PLD 2013 Judgments

P L D 2013 Federal Shariat Court 1

Present: Shahzado Shaikh, Dr. Fida Muhammad Khan and Sheikh Ahmad Farooq, JJ

Dr. ZAHOOR AHMAD AZHAR---Applicant

Versus

FEDERATION OF PAKISTAN---Respondent

Shariat Miscellaneous Application No.6/I of 2011, decided on 22nd October, 2012.

Constitution of Pakistan---

----Arts. 31(2)(a) & 203-DD---Islamic way of life---Application for promoting arabic language in Pakistan---Applicant has stated that Arabic language, being very important, it was necessary to promote the same in Pakistan as; it is the language of basic source of Islamic Law; it was the language of Holy Qur'an and Sunnah; that United Nations Organization had also recognized it as one of its official languages; that, Arabic was also one of the official languages of organization of Islamic Conference and African Union; that it had status of official language in 21 Arabic Speaking Countries and means of international communication, trade and economic development; that it was a source of promotion of Islamic Values throughout the word; that since Arabic was international religious language of the Muslim Ummah and language of Qur'an, Hadith and original source of law, it required to be introduced as compulsory subject from Primary to Higher Secondary level, in all educational institutions; that Islamic Ideology Council, had already drafted bill as "The Compulsory Teaching of Arabic Language Act, 2011 and that Art.31(2)(a) of the Constitution required facilitating the learning of Arabic language---Validity---Federal Shariat Court directed the Federation of Pakistan to the effect that under Art.31(2)(a) of the Constitution, Shariat Act, 1991, necessary steps, stated to be already under-way, in certain respect in that regard, be finalized early for promotion of Arabic language for the educational and other relevant systems; it should regularly be monitored in order to ensure positive progress on the same, to be submitted to the cabinet within six month.

Ch. Saleem Murtaza Mughal, Asstt. A.G., Punjab for Punjab Government.

Muhammad Kasim Mir Jat, Addl. A.G. Sindh for Sindh Government.

Aziz ur Rehman on behalf of A.G. Khyber Pakhtunkhwa for Khyber Pakhtunkhwa Government.

Date of hearing: 22th October, 2012.

P L D 2013 Federal Shariat Court 7

Present: Shahzado Shaikh, Dr. Fida Muhamamd Khan and Sheikh Ahmad Farooq, JJ

Qazi MUHAMMAD HAROON, ADVOCATE, HIGH COURT, BALOCHISTAN--Petitioner

Versus

FEDERAL GOVERNMENT OF PAKISTAN---Respondent

Shariat Petition No.4/I of 2010, decided on 22nd October, 2012.

(a) Islamic jurisprudence---

----Evidence---Quality and competence of witness---Scope---Quality and competence essentially required to stand straight (bil qist) as witnesses discharge that sacred duty for Allah---Emphasis on points and rules as mentioned in 'Verse 2.282 of Holy Qur'an' on ensuring quality and competence of evidence, from the very beginning could not be missed in those broader pointers---Law could neither remain static, nor limited by apparent lexicographics and by space and time; it was ever evolving---Stagnation of 'Ijtihad', putrefied the corpus of law---Injunctions of Qur'an and the Sunnah embody universal, timeless, immutable, broad laws, which need to be expanded and elaborated on the time line---Not only number of witnesses, but also the quality and competence of such witnesses, and all pieces (of evidence) in circumstances, combine to constitute admissible, reliable and truth-revealing evidence.

Rashida Patel v. State PLD 1989 FSC 95; Verse 2.282; 1991 MLD 2576; PLD 1992 Lah. 45; 1991 MLD 2459; 2001 SCMR 199; 1990 PCr.LJ 73; PLD 2005 Lah. 654; PLD 1995 Lah. 395; 1998 MLD 1592; PLD 1996 SC 256; PLD 1996 Lah. 367; PLD 2008 Lah. 51; PLD 2008 Lah. 511; 2008 SCMR 1639; 2002 SCMR 1391; PLD 2003 SC 31; 2004 MLD 620; PLD 2007 Lah. 254; 2002 SCMR 1089; PLD 1996 Lah. 367; PLD 2001 SC (AJ&K) 1 and PLD 2008 SC 140 rel.

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

----Art. 17(1)(2)---Competence and number of witnesses---Requirement of one man and two women witnesses---Scope---Proviso to Art.17(2) of Qanun-e-Shahadat, 1984, although apparently had case-specific stipulations, but could be extended by systemic analogy to akin classes and categories of cases---Such was not a general prescription for all kinds of litigation, including criminal---"Two witnesses from your own men" ( ), had highlighted another principle that in such cases of financial stake of futuristic effect, longer duration or perpetual nature, preferable choice of witnesses had been advised to be from one's own community or relations---In cases of female witnesses, the relationship had been further preferred by using the phrases 'Mimman tardhoan', i.e., whom you preferably choose, which would not exclude evidence of other men and women, not necessarily related to the parties and did not exclude chance witnesses and circumstantial or corroborative evidence---Evidence of one woman in many classes of litigation was admissible, and particularly solitary statement of victim, duly corroborated, was also competent---Verse 2.82 of the Holy Qur'an had laid down the important principle that "if two men were not there, then one man and two women from those witnesses whom you like"; it did not say that if two men were "not there" then four women, which would mean that one man had to be there---Woman as a special relaxation had been given exemption, as far as possible and it was not desirable to compel a female witness to compulsorily appear for hearing before a court, during natural and biological period of her stress---Woman could not be over-stressed during period of suckling a child---Choosing women to be witnesses, would not only be least desirable for women themselves, but also in all probability be disadvantageous for the person who had to make a choice for her to be her witness, as his case would suffer because of her oft non-availability, and even for longer period---Keeping two male witnesses, would not mean that each one of those two men would stand as 'half (1/2) witness'---No concept of fractionalization of a witness in any legal evidentiary system existed---Instituting two ladies, if one of the two men was 'not there' would not fractionalize them as witnesses to be 1/2 of the 1/2 (=1/4) of the unit of a witness---No such splitting or dissection of a person of a witness was available.

Holy Qur'an Verse 2-282 rel.

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

----Arts. 163 & 17(2)---Constitution of Pakistan, Art.203-DD---Repugnancy to Injunctions of Islam---Competence and number of witnesses---Acceptance or denial of claim on oath---Article 163 of Qanun-e-Shahadat, 1984, had provided that the plaintiff would take oath in support of his claim, the court would on the application of the plaintiff, call upon the defendant to deny the claim on oath---Contention of the petitioner was that it was the responsibility of the plaintiff to prove his claim through evidence, while the defendant had to take oath---Traditions of Holy Prophet (P.B.U.H.) relied upon by the petitioner, would mean that it was responsibility of the claimant to establish his claim on the basis of undeniable 'proof', but such a 'proof' (haq) could not be set aside merely on 'oath', e.g. the scientific law and fact providing the 'proof' of the Sun could not merely be denied on oath---Application or petition, in some cases, could require an oath to 'admit' the same for process---Proceedings for disposal and decision would require the whole set of appraisement and evaluation of all relevant evidence---Denial of the defendant could not necessarily close the matter solely on the strength of the oath; it was not merely the mechanics but the mind which made a judgment and took a decision---Articles 17(2) and 163 of Qanun-e-Shahadat, 1984 were not contradictory to Islamic Injunctions.

Al-Qur'an Verse 10-252 and Muhammad Rafi v. Federation of Pakistan Shariat Petition No.8/L of 1996 rel.

Nemo for Petitioner.

Nemo for the State.

Nemo for Feederal Government.

Date of hearing: 22nd October, 2012.

P L D 2013 Federal Shariat Court 18

Before Dr. Fida Muhammad Khan, Rizwan Ali Dodani and Sheikh Ahmad Farooq, JJ

Professor KAZIM HUSSAIN and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Law, Justice and

Parliamentary Affairs, Islamabad and others---Respondents

Shariat Petitions Nos.8/I of 2004, 6/I, 8/I, 12/I and 69/I of 1994, decided on 12th December, 2012.

(a) Constitution of Pakistan---

----Art. 203-D(1)---Federal Shariat Court---Jurisdiction---Jurisdiction conferred on Federal Shariat Court by the Constitution is confined only to Injunctions of Islam as contained in the Holy Qur'an and Sunnah of the Holy Prophet (may peace be upon him) and no other consideration or extraneous circumstance has any bearing on its judgments in Shariat petitions.

(b) Islamic jurisprudence---

----Equality before law---Hallmark of Islamic Injunctions is principle of equality before law and equal protection of law for all people, irrespective of their gender, colour or creed and there is no concept of discrimination in administration of justice between one person and another on any basis---No human being can be denied or deprived of any fundamental right, in social and legal perspectives, nor any judicial right can be reserved for any particular group on external consideration of his wealth, status, caste, colour or any other ground---Equality before law and equal protection of law is the cardinal principle, which runs like golden chord in all Injunctions of Islam.

Holy Quran, Verses 4:1 rel.

(c) Interpretation of statutes---

----Rules under a statute and Office Memorandums---Object, purpose and scope---Rules made in pursuance of delegated authority must be consistent with statute under which they came to be made---Authority is delegated only to the end that provisions of statute may be better carried into effect and not with the view of neutralizing or contradicting those provisions---Purpose of framing Office Memorandums/Rules is just to facilitate and provide for procedural matters which are subsidiary to the provisions of Act itself---If rules framed under statutes or bye-laws framed under rules, are in excess of provisions of the statute or are in contravention of or inconsistent with such provisions, then such provisions/rules etc. must be regarded as ultra vires the statute and cannot be given effect to.

(d) Constitution of Pakistan---

----Art. 203-D---Office Memorandums No. R.2(3)/03, dated 31-7-2004, Ministry of Housing and Works, F-5(17)/Gaz-Imp(i)/73, dated 20-11-1974 & F.2(1)-R5/91, dated 25-8-1991, Ministry of Finance Division---Repugnancy to Injunctions of Islam---House rent allowance to husband and wife---Entitlement---Petitioners were civil servants and their grievance was that when both husband and wife were civil servants they both were entitled to house rent individually and not only to one out of the two---Validity---Marriage was not a disqualification nor an offence and therefore, civil servant after getting married should not be penalized or deprived of his / her due house rent---Both spouses were entitled to get conveyance allowance even if they were working at same station and same place and same logic applied to house rent as well---Office memorandum/rule to the extent of depriving one of the spouses who were civil servants and one of whom was allotted government accommodation of the house rent allowance, were repugnant to the Injunctions of Islam---Federal Shariat Court, in view of Art.203-D(3) of the Constitution, directed Federal Government, as well as the Provincial Governments of Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa and relevant autonomous bodies and institutions including universities, to take necessary steps to amend office memorandums/rules so as to bring the same in conformity with Injunctions of Islam---Petition was allowed accordingly.

Kowkab Iqbal for Petitioners.

Shabbir Mehmood Malik, Standing Counsel-II and Abdul Ghaffor, S.O. M/o Finance, Islamabad for Federal Government.

Ch. Saleem Murtaza Mughal, Asstt. A.-G., M. Javed Ali, District Accounts Officer, Finance Department, Punjab and Habib-ur-Rehman, S.O. Judicial-II, Home Department, Lahore for Government of the Punjab.

Muhammad Qasim Mirjat, Addl. A.-G. for Government of Sindh.

Aziz-ur-Rehman and Amanat Ullah, S.O., Finance Department Khyber Pakhtunkhwa for Government of Khyber Pakhtunkhwa.

Azam Khan Khattak, Addl. A.-G. for Government of Balochistan.

Barrister Feroze Jamal Shah Kakakhel as Amicus Curiae.

Date of hearing: 19th June, 2012.

P L D 2013 Federal Shariat Court 42

Before Allama Dr. Fida Muhammad Khan and Sheikh Ahmad Farooq JJ

AMJAD ALI and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.32-I of 2012, decided on 30th April, 2013.

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

----S.18---Penal Code (XLV of 1860), Ss. 294 & 354-A---Criminal Procedure Code (V of 1898), S.345---Obscene acts and songs, assault or use of criminal force to woman and stripping her of her clothes, attempting to commit an offence---Compromise---Scope---Despite compromise between the parties, accused persons could not be acquitted as they had been convicted for offences, which were not compoundable under statutory law as contained in S.345, Cr.P.C.---Compromise could not legally be effected in a case where accused had been convicted for an offence under S.18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---High Court was not competent to give effect to a compromise in the non-compoundable offences, which had been committed by accused persons as the same was against the law as well as Public Policy---Compromise, however could be considered as a mitigating circumstance for the purpose of awarding sentence in non-compoundable offences in appropriate cases, except in heinous offences which were considered crime against society---To compound, non-compoundable offence was against Public Policy, keeping in view the state of facts existing on the date of application to compound---No offences would be compounded, except where the provisions of S.345, Cr.P.C. were satisfied as to all matters mentioned therein.

Muhammad Ashraf and 3 others v. The State 1989 PCr.LJ 1453; Muhammad Saleem and another v. The State 1988 PCr.LJ 2321; Lal Khan v. The State 2006 SCMR 1846; Ghulam Yasin v. The State 2010 PCr.LJ 221; Qadir Shah and others v. The State 2009 SCMR 916; Muhammad Akbar and another v. The State PLD 1996 Quetta 56; Niaz Muhammad v. The State PLD 1997 Quetta 17 and Ghulam Farid alias Farida v. The State PLD 2006 SC 53 rel.

(b) Words and phrases---

----"Stripping"---Meaning explained.

Webster New World College Dictionary; PLD 2005 Pesh. 128; PLD 1008 Lah. 308 and 2009 SCMR 913 rel.

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

----S. 354-A---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Assault or criminal force to woman and stripping her of her clothes, attempt to commit an offence---Appreciation of evidence---Alleged victim, neither was stripped off her clothes making her naked nor she was exposed to public view in that condition; as no one from the general public was present at the scene of incident---No evidence was at all available regarding the use of any criminal force or assault by accused---No eye-witness of the occurrence was on record---Even the date and time of the occurrence, was neither mentioned in the F.I.R., nor specified by any witness of the prosecution during the trial---Only evidence produced by the prosecution was the photographs, which had been prepared on the Memory Card, but the same also did not substantiate the allegation of the prosecution that alleged victim was stripped off her clothes and exposed to public view in that condition---From the photographs, alleged victim seemed to be a consenting party to all the obscene acts being done by accused---Playing of a video film or photograph shown to public at large by other persons, would not bring the act of accused within the mischief of S.354-A, P.P.C.---No evidence was available on record of the Trial Court to record the conviction of accused under S.354-A, P.P.C. and award the sentence of life imprisonment thereof---Conviction recorded and sentence awarded to accused, were set aside, in circumstances.

(d) Words and phrases---

----"Attempt",---Meanings, explained.

Arshad Mehmood v. The State PLD 1991 FSC 268 and Black's Law Dictionary rel.

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

----Ss. 16 & 18---Enticing or taking away a woman with criminal intent---"Attempt" to commit an offence---Scope---Person was guilty of an attempt to commit a crime, if, acting with the kind of culpability, otherwise required for commission of the crime, he (a) purposely would engage in conduct which would constitute the crime, if the attendant circumstances were as he believed them to be; or (b) when causing a particular result was an element of the crime, did not or omit to do anything with the purpose of causing or with the belief, that it would cause such result without further conduct on his part; or (c) purposely did or omitted to do anything, which, under the circumstances as he believed them to do, was an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime---Attempt was an act done in part execution of criminal design amounting to more than mere preparation, but falling short of actual consummation and possessing, except for failure to consummate, all the elements of substantive crime---Attempt signified an act which, if successful would amount to commission of offence---Offence of zina being an offence requiring actual penetration, attempt to rape, must be an attempt at penetration involving catching of female in such a manner that penetration might be facilitated---In the present case, there was no attempt to commit 'zina' by accused persons with the alleged victims, as neither the male and female accused had put off their clothes nor any stain of semen was found on their shalwars by Investigating Officer, or the Chemical Examiner---Even from the photographs, it was not established that accused had committed some overt act, towards achieving their object of committing 'zina' with the victims---Trial Court was not justified in recording the conviction of accused persons under S.18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Alleged victims were married women and were taking away by accused persons from their houses with criminal intent of having illicit intercourse---Such act of accused persons fell within the mischief of S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and were sentenced accordingly.

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

----S. 16---Enticing or taking away or detaining with criminal intent a woman---Ingredients of S.16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979---In order to attract provisions of S.16 of the Ordinance, two conditions should exist, firstly, taking or enticing away any woman, and secondly, intention that she could have illicit intercourse with any person---Word "take" as used in said S.16 of the Ordinance, did not mean the taking by force, it implied to get into possession or to cause a female to go with an accused---Element of force could not be inferred by incorporating the word "taking" which did not mean taking by force---Word 'take' included constructive taking such as meeting at appointed place outside---In the present case, accused must have exercised some influence or some kind of inducement to take female accused to the place of occurrence---No chance of false implication of accused by the complainant existed in the case, as the complainant was the real father and uncle of the victims respectively---Photographs revealed that accused were kissing, embracing and molesting the female, thus they had an intention to have illicit intercourse with them, which was punishable under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

(g) Words and phrases---

----'Preparation'---Meanings explained.

Arshad Mehmood v. The State PLD 1991 FSC 268 and Black's Law Dictionary rel.

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

----S. 294---Obscene acts and songs---Accused persons were indulging in obscene act in a public place---No doubt, the place of occurrence was located in mountainous area, but same was not an abundant place, and accessible to the public at large---Accused, in circumstances, were rightly convicted by the Trial Court under S.294, P.P.C.

Sahibzada Asadullah for Appellants.

Nemo for the State.

Ghulam Farooq Awan for the Complainant.

Date of hearing: 25th April, 2013.

P L D 2013 Federal Shariat Court 55

Before Shahzado Shaikh, Muhamamd Jehangir Arshad and Sheikh Ahmad Farooq, JJ

Dr. MAHMOOD-UR-REHMAN FAISAL and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Justice, Law and Parliamentary Affairs, Islamabad and others---Respondents

Shariat Petitions Nos. 24/I, 34/I, 38/I, 44/I, 45/I of 1990, 1/I, 2/I of 1991, 1/K, 2/K of 1993, 9/I of 1994 and 14/I of 1996, decided on 7th January, 2013.

(a) Zakat and Ushr Ordinance (XVIII of 1980)---

----Ss. 2(xxiii), 3(1) & (5)---Constitution of Pakistan, Art. 203-D---Repugnancy to Injunctions of Islam---Charge and collection of Zakat from person who is a "sahib-e-nisab"---Exemption of non-declaration of total financial position of "sahib-e-nisab"---Exemption of current bank accounts from deduction of Zakat---Said exemptions did not mean that "sahib-e-nisab" had been exempted from payment of Zakat---Liability and duty for payment of Zakat, as prescribed under the Injunctions of the Holy Quran and Sunnah of the Prophet (P.B.U.H.) remained in force and intact, against the "sahib-e-nisab"---Said exemptions had limited implication/application only to the reference and extent of the relevant provisions of the Zakat and Ushr Ordinance, 1980, and it remained incumbent upon the "sahib-e-nisab" to discharge the liability and duty of payment of due Zakat, loyally and faithfully, under his own arrangements---Federal Shariat Court observed that the present system of deduction and distribution of Zakat lacked confidence of public at large and as such, they tended to opt for exemptions on one ground or other----Federal Shariat Court directed that the Ministry of Finance and Law in consultation with Islamic Ideology Council as well as Provincial Governments should take necessary steps, within the legal framework, in the light of Injunctions of the Quran and Sunnah of the Prophet (P.B.U.H.) to bring uniformity and clarity in the system of deduction of Zakat through banks and should ensure the transparent distribution of Zakat strictly according to the Injunctions of the Quran and Sunnah of the Prophet (P.B.U.H.)---Petition was dismissed accordingly.

(b) Zakat and Ushr Ordinance (XVIII of 1980)---

----S. 3(3)---Constitution of Pakistan, Art. 203-D--- Repugnancy to Injunctions of Islam---Charge and collection of Zakat---Refund of excess or undue amounts deducted as Zakat to non-Muslims and foreigners---Such refund was quite reasonable and apparently logical and not repugnant to Injunctions of Islam as all undue amounts deducted in excess must be refunded to the legitimate/legal owners of such amount---Petition was dismissed accordingly.

(c) Zakat and Ushr Ordinance (XVIII of 1980)---

----S. 3(3)---Constitution of Pakistan, Art. 203-D---Repugnancy to Injunctions of Islam---Charge and collection of Zakat on General Provident Fund of Government employees---General Provident Fund was a saving, which was liable to deduction of Zakat---Charge and collection of Zakat on General Provident Fund was not repugnant to Injunctions of Islam---Petition was dismissed accordingly.

(d) Zakat and Ushr Ordinance (XVIII of 1980)---

----Ss. 2(xxxii) & 3---Constitution of Pakistan, Art. 203-D---Charge and collection of Zakat in month of Ramadan---Lunar calendar---Scope---Zakat deducted thrice during two years on the basis that month of Ramadan came three times during two years---Validity---Zakat was applicable within the Lunar calendar---Apparently, in the present case, occurrence of Islamic month of Ramadan had been mistakenly counted in the Solar calendar instead of Lunar---Petition was dismissed accordingly.

(e) Zakat and Ushr Ordinance (XVIII of 1980)---

----S. 3(1)---Constitution of Pakistan, Art. 203-D---Repugnancy to Injunctions of Islam---Charge and collection of Zakat---Zakat not deducted from maturity/surrender value of an asset/investment maintained in foreign currency and the return on which and the value on encashment redemption or withdrawal of which, was payable in foreign currency---Foreign currency was not the local legal tender---Most money in present times was fiat money, i.e. that which had been declared to be legal tender by a government and would not be regarded as such without government backing---Zakat and Ushr Ordinance, 1980 covered a very limited segment in banking system using local legal tender, and it did not reckon all wealth and assets in which Zakat was legitimately leviable under the Injunctions of the Quran and Sunnah of the Holy Prophet (P.B.U.H.)---Petition was dismissed accordingly.

(f) Zakat and Ushr Ordinance (XVIII of 1980)---

----S. 1(2)---Constitution of Pakistan, Art. 203-D---Repugnancy to Injunctions of Islam---Charge and collection of Zakat---Zakat not deducted from companies with more than 50% of their shares owned by non-Muslims or foreigners---Majority shares in a company showed its character or nature of investment and its overall financial composition---Share of local Muslim investor could possibly be reckoned for levy of Zakat by him as the present system did not comprehend all possible sources qualifying for levy of Zakat---Zakat and Ushr Ordinance, 1980 had not introduced an all comprehensive Zakat system in the country---Petition was dismissed accordingly.

(g) Zakat and Ushr Ordinance (XVIII of 1980)---

----Ss. 2(xxxii), 3 & First Sched.---Constitution of Pakistan, Art.203-D---Repugnancy to Injunctions of Islam---Charge and collection of Zakat---Zakat deducted on maturity of investments on 1st of Ramadan---Plea was that First Schedule of Zakat and Ushr Ordinance, 1980 provided that Zakat would be deducted on the date on which the first return is paid on date of withdrawal or date of maturity, whereas in Islam Zakat became payable on the date when one year had passed over the assets---Validity---Practice of levying Zakat on yield when it became mature/available on a time line (i.e. 1st of Ramadan) within a time frame (Lunar year) was quite in conformity with Islamic practice---Petition was dismissed accordingly.

(h) Zakat and Ushr Ordinance (XVIII of 1980)---

----Preamble---Constitution of Pakistan, Arts. 203B(c) & 203D(1)--- Jurisdiction of Federal Shariat Court---Scope---Muslim personal law---Scope---Zakat and Ushr Ordinance, 1980 was not a Muslim personal law and was amenable to the jurisdiction of Federal Shariat Court.

Mian Khalid Rauf v. President of Pakistan and another PLD 1982 FSC 237; Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120 and PLD 1991 FSC 35 distinguished.

PLD 1994 SC 607 ref.

Nemo for Petitioners (in all the Petitions).

M. Nazir Abbasi, Standing Counsel for Federal Government.

Ch. Saleem Murtaza Mughal, Asstt. A.-G. Punjab. for Province of Punjab.

Muhammad Kasim Mirjaat, Addl. A.-G. Sindh for Province of Sindh.

Muhammad Azam Khan, Addl. A.-G. Balochistan for Province of Balochistan.

Aziz-ur-Rehman for Province of Khyber Pakhtunkhwa.

Barrister Feroz Jamal Shah Kakakhel: Amicus Curiae.

Dr. Raja Muhammad Hanif, Dy. Administrator General, Zakat, Islamabad for Administrator-General Zakat.

Date of hearing: 20th November, 2012.

P L D 2013 High Court (AJ&K) 1

Before Munir Ahmed Chaudhary, J

MUHAMMAD KHURSHEED and others---Appellants

Versus

BAROO and others---Respondents

Civil Appeals Nos.61 and 67 of 2007, decided on 27th February, 2013.

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

----Ss. 39 & 42---Limitation Act (IX of 1908), S.91---Suit for cancellation of registered gift deed and declaration of its mutation as null and void---Gift deed registered on 7-12-1993 and its mutation attested on 29-12-1993 in presence of donor---Filing of the suit by donor on 28-3-2003---Validity---Plaintiff could file such suit within three (3) years of execution of gift deed---Suit was dismissed for being time-barred.

2012 MLD 86; 2002 MLD 507; 1999 MLD 236; 1999 CLC 1755; 1999 CLC 130; 1992 CLC 1854; PLD 1985 SC 153 and 1998 SCR 204 ref.

1995 CLC 130; 2012 MLD 86 and 1992 CLC 1854 rel.

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

----O. II, R.2---Second suit on same cause of action against same parties during pendency of first suit---Maintainability---Plaintiff could sue in one suit for all available reliefs---Splitting up a cause of action was not permissible---Second suit was dismissed for not being maintainable.

1999 MLD 236 and 2002 MLD 507 rel.

Rafiullah Sultani, for Appellant/Respondent.

Mehmood Akhtar Qureshi for Appellants/Respondents.

P L D 2013 High Court (AJ&K) 6

Before Munir Ahmed Chaudhary, J

IMTIAZ ALI and another---Petitioners

Versus

Raja LIAQAT ALI KHAN and 2 others---Respondents

Civil Revision No.19 of 2012, decided on 13th February, 2013.

Azad Jammu and Kashmir Right of Prior Purchase Act (1993 (B.K.)---

----S. 6---Civil Procedure Code (V of 1908), O.XLI, R.27---Decree in pre-emption suit---Sale of ancestral land by plaintiff to arrange decretal amount---Appeal against decree, pendency of---Production of additional evidence, application for---Defendant sought to place on record sale-deed in respect of ancestral land sold by plaintiff in order to show that he had no money to make payment of decretal amount, thus, he had filed suit only for personal hostility---Validity---No provision existed in law to bar plaintiff from selling his another land to deposit decretal amount---Said sale deed was not required by court for pronouncing judgment or any other substantial cause---Such application did not fulfil requirements of O.XLI, R.27, C.P.C. which was dismissed in circumstances.

Ch. Muhammad Siddique for Petitioners.

Sahadat Ali Kiani for Respondents.

Date of hearing: 13th February, 2013.

P L D 2013 High Court (AJ&K) 8

Before Munir Ahmed Chaudhary, J

Mst. RAKHMAT JAN---Appellant

Versus

UMAR MEHMOOD (Minor) and another---Respondents

Civil Appeal No.168 of 2006, decided on 12th February, 2013.

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

----O. XXXII, Rr. 3, 7 & S.96---Appeal against decree passed on basis of compromise arrived at between plaintiff and minor defendant through his father---Validity---Guardian-at-litem without permission of Trial Court could not enter into an agreement with plaintiff on behalf of minor defendant---Duty of Trial Court was to enquire as to whether such compromise was interest of minor or not, and whether interest of such guardian was in clash with that of minor defendant or not---Trial Court had not appointed any guardian-at-litem of minor defendant---Mother of minor defendant for being de facto guardian was competent to watch interest of her minor son---Mother had competently filed such appeal on behalf of minor son for being his next friend---Impugned decree could not be treated as a compromise decree under S.96, C.P.C.---Impugned decree was set aside in circumstances.

(b) Islamic law---

----Gift deed---Non-delivery of possession by donor to donee though relating to each others within prohibited degrees---Effect---Transfer of possession of gifted land in such case would not be necessary---Gift deed on such ground could not be set aside.

Muhammad Rafique Dar for Appellant.

Bostan Chaudhary for Respondents.

Date of hearing: 12th February, 2013.

P L D 2013 High Court (AJ&K) 11

Before Ghulam Mustafa Mughal, C J

Mst. KOSAR FATIMA and another---Appellants

Versus

SHAUKAT ALI SHAH and others---Respondents

Civil Appeal No.8 of 2012, decided on 15th April, 2013.

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

----O. V, R.20---Substituted service---Conditions precedent to be fulfilled by court stated.

The question of substituted service would arise only when the conditions listed in O.V, Rule 20, C.P.C. are fulfilled. The condition precedent is that the court should be satisfied and has reasons to believe that defendant is keeping out of the way for the purpose of avoiding the service or that for any other reason the summons cannot be served in the ordinary way, then Rule 20(1)(e) of Order V, C.P.C. is to be invoked.

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

----O. V, Rr. 15, 20 & O. IX, R. 13---Application for setting aside of ex parte decree---Service of summons upon defendant by affixation of its copy on outer door of defendant and through publication in a local newspaper---Defendant's plea was that he resided in England and was not duly served---Validity---Nothing was available on record to show that process server had affixed summons on outer door of defendant---Evidence on record showed that process server had handed over summon to a family member of defendant---Substituted service without complying with provisions of O.V, R.15, C.P.C. would not be proper---Evidence showed that plaintiff knew at time of filing suit that defendant was residing abroad, thus, substituted service of defendant was not proper---Proclamation had been issued in a local newspaper having no wide circulation---Ex parte decree was set aside in circumstances.

Zaran Begum v. Saidal Khan PLD 1975 AJK 122; Muhammad Faryad v. Muhammad Asif PLD 1993 Lah. 469; Haji Akbar and others v. Gul Baran and 7 others 1996 SCMR 1703; Akhtar and Hafmann Ltd. v. Messrs ULBRICHT'S WWE, GES, M.B.H AUSTRIA and others 1991 SCMR 1284; National Bank of Pakistan v. Bawany Industries Ltd. and 6 others 1989 CLC 363; Ch. Muhammad Altaf and another v. Muhammad Sadiq and 9 others PLD 2004 SC (AJ&K) 45; Messrs Rehman Weaving Factory (Regd.) Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC 21 and Syed Muhammad Anwar v. Sheikh Abdul Haq 1985 SCMR 1228 ref.

Muhammad Aslam v. Additional District Judge, Rawalpindi and others 1979 SCMR 85; Mazhar Ali Shah's case 1990 MLD 1070; Muhammad Ibrahim v. Mehmooda 1987 CLC 1994; Major Tajuddin and others v. Muhammad Akhtar and others 1989 CLC 2183; Haji Karamat Hussain v. Naik Khan Muhammad 1986 CLC 6; Munshi Tamizuddin Howaldar and others v. Altafuddin Moral and others PLD 1970 Dacca 483; Begum Kishwar Abid Hussain and another's case PLD 1976 Lah. 1521; National Bank of Pakistan v. Bawany Industries Limited and others 1992 CLC 1553; Farid Khan v. Gulzar Khan and 10 others PLD 1985 SC(AJ&K) 74 and Azad Kashmir Logging and Saw Mill Corporation Ltd. v. Messrs Muhammad Farid Khan and Company Brothers, Contractors AKLASC PLD 1986 AJ&K 228 rel.

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

----O. IX, R. 13---Limitation Act (IX of 1908), Art. 164---Application for setting aside of ex parte decree---Limitation---Plea that defendant was not duly served---Validity---Limitation would start from date of knowledge, when defendant was not duly served---Such plea would be treated as sufficient cause for setting aside ex parte decree and condonation of delay.

National Bank of Pakistan v. Bawany Industries Limited and others 1992 CLC 1553 rel.

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

----O. IX, Rr.6 & 13---Ex parte judgment in ex parte proceedings---Duty of court---Scope---Mere defendant's absence would not be sufficient to approve case of plaintiff as he had to stand on his own legs---Principles.

Ex parte proceedings or judgment cannot absolve the Judicial Officer from his duty to see as to whether ex parte evidence brought on the record supports the claim of the plaintiff for granting the relief. Mere absence of the defendant is not sufficient to approve the case of the plaintiff, who has to stand on his own legs and establish his claim on the basis of cogent evidence.

Abdul Rasheed Abbasi for Appellants.

Muhammad Yaqoob Khan Mughal for Respondents.

P L D 2013 High Court (AJ&K) 23

Before Azhar Saleem Babar, J

MUHAMMAD KHURSHID KHAN---Applicant

Versus

MUHAMMAD AZAM KHAN---Non-Applicant

Civil Miscellaneous No.11 of 2011, decided on 14th May, 2013.

(a) Azad Jammu and Kashmir High Court Procedure Rules, 1984--

----R. 9(3) & (4)---Civil Procedure Code (V of 1908), O.IX, R.8 & O.XX, R.1---Application for restoration of appeal dismissed by High Court for non-prosecution on a date fixed for hearing by order of Deputy Registrar of the court---Validity---Deputy Registrar under R.9(4) of Azad Jammu and Kashmir High Court Procedure Rules, 1984, had powers to place case before High Court for its hearing---According to O.XX, R.1, C.P.C. stage of arguments in a case would definitely be a stage of "hearing" therein---Law would not support a sluggish person having slept over his rights---Impugned order had rightly been passed due to non-appearance of appellant-High Court declined to restore appeal in circumstances.

Messrs Fateh Textile Mills Ltd. v. West Pakistan Industrial Development Corporation PLD 2008 Kar. 103 and Mst. Habiba Begum v. Haji Iqbal-ud-Din (deceased) through legal heirs 2012 MLD 1786 ref.

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

----O. XX, R.1---Stage of arguments in a case---Definitely a stage of "hearing".

(c) Limitation---

----Void order---Limitation would not run against a void order.

(d) Administration of justice---

----Case should be decided on merits instead of technicalities.

(e) Administration of justice---

----Law does not support a sluggish person, who sleeps over his rights.

Sardar Muhammad Suleman Khan for Applicant.

Kh. Shahbir Ahmed for Non-Applicant.

P L D 2013 High Court (AJ&K 27

Before Ghulam Mustafa Mughal, C J

MUHAMMAD SHAFIQUE---Appellant

Versus

Mst. ZATOON AKHTAR and another---Respondents

Civil Appeal No.173 of 2012, decided on 20th May, 2013.

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

----O. IX, R.8---Dismissal of suit for non-appearance of plaintiff---Scope---Court could not dismiss suit when either plainitff's claim was wholly or partly admitted by defendant or when plaintifff's presence was not required---Dismissal of suit on a date not fixed for hearing would be a nullity in eye of law---Principles.

Habib Bank Ltd. v. Kh. Muhammad Ishaque PLD 1983 SC (AJ&K) 223 rel.

Muhammad Hussain v. Allah Dad and 13 others PLD 1991 SC 1104 ref.

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

----O. IX, R.8---Suit dismissed for non-prosecution---Application for restoration of---Validity---Record showed that relevant date had been fixed by Reader of court on a previous date, when Presiding Judge was on leave---Neither presence of plaintiff was required on relevant date nor same was a date of hearing---Suit was restored in circumstances.

PLD 1966 AJ&K(HC) 10; PLD 1964 SC 97, PLD 1979 Lah; 332, 1991 SCMR 1104; 1997 SCMR 1365 and Mst. Akhtar Begum's case 1981 CLC 778 ref.

Muhammad Din v. Zabardast Khan and another PLD 1972 AJ&K 7 rel.

Ch. Amjad Ali for Appellant.

Sardar Muhammad Riaz Khan for Respondents.

P L D 2013 High Court (AJ&K) 34

Before Ghulam Mustafa Mughal, C.J., M. Tabaasum Aftab Alvi, Abdul Rasheed Sulehria, Sardar Abdul Hameed Khan, Ch. Jahandad Khan and Azhar Saleem Babar, JJ

SAJJAD HUSSAIN SHAH and others---Petitioners

Versus

AZAD JAMMU AND KASHMIR COUNCIL SECRETARIAT through Joint Secretary Council Secretariat Sector F-5/2 Islamanad and others---Respondents

Writ Petitions Nos.2318, 2432 of 2012 and 101 of 2013, decided on 20th June, 2013.

(a) Azad Jammu and Kashmir Adaptation of Laws Act (IV of 1979)---

----Preamble---Azad Jammu and Kashmir Bar Council (Memorandum of Associations) Rules, 2001, Rr.3 & 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.4, 21 & 44---Writ Petition as pro bono publico---Maintainability---Azad Jammu and Kashmir Adaptation of Laws Act, 1979 alleged to be ultra vires of the Constitution due to absence of lawfully constituted Azad Jammu and Kashmir Council at relevant time---Locus standi of petitioners/Advocates to file such petition---Validity---Petitioners being admittedly State Subjects alleged that adaptation of laws in such manner had violated their fundamental rights---Nothing on record to show that petitioners had filed the petition as proxy-game or with any ulterior motive---Neither Legislative Assembly nor Azad Jammu and Kashmir Council could make any law inconsistent with fundamental rights of State Subjects---Duty of lawyers community would be to ensure supremacy of Constitution and rule of law without any fear and favour---High Court without treating petitioners as aggrieved persons could strike down any provision of law, if found same to be inconsistent with fundamental rights or constitutional provision---Petitioners being aggrieved could challenge constitutionality of any law militating against status of subjects of State of Jammu and Kashmir---High Court repelled respondent's objection raised about maintainability of such petition.

S.P. Gupta and others v. President of India and others AIR 1982 SC 149; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Government of Sindh through Chief Secretary to Government of Sindh Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Sh. Masood Iqbal and others v. Azad Government through Chief Secretary and others 2008 PLC (C.S.) 11; Muntizma Committee, Al-Mustafa Colony (REGD.) Karachi and 3 others v. Director Katchi Abadies, Sindh and 5 others PLD 1992 Kar. 54; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Kashmir Council, Islamabad and 3 others v. Messrs Jabeer Hotel Mirpur and another 2001 YLR 1687; Messrs Jabeer Hotel, Mirpur v. Kashmir Council Islamabad through its Secretary and others 2001 PLC (C.S.) 11 and Government of N.-W.F.P. through Secretary Forest Department, Peshawar and others v. Muhammad Tufail Khan. PLD 2004 SC 313 ref.

Muhammad Kamran Mullahkhail and others v. Government of Balochistan through Chief Secretary and others PLD 2012 Bal. 57; Mir Abdul Baqi Baluch's case PLD 1975 Kar. 639; Pakistan Lawyers Forum v. Federation of Pakistan and others PLD 2003 Lah. 371; Atta Ullah Khan Malik's case PLD 2010 Lah. 605; Azad Jammu and Kashmir Government through Chief Secretary Muzaffarabad and others v. Muhammad Younas Tahir Advocate, Mirpur and others 1994 CLC 2339; Umar Ahmad Ghumman v. Government of Pakistan and others PLD 2002 Lah. 521; AIR 1984 SC 280; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Robkar Adalat v. Sarfraz Alam, Assistant Town Planner Mirpur Dev. Authority Mirpur 1996 MLD 1752 rel.

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

----S. 44(2)(c)---Writ petition, filing of---Locus standi of petitioner---Scope---Not necessary for a petitioner in each case to be direct affectee of an action or inaction of public functionary or promulgation of any law against fundamental rights---Despite locus standi or aggrieved person being sine qua non for maintainability of such petition, High Court in public interest litigation without treating a petitioner as aggrieved person could strike done any law, if found same to be violative of fundamental rights or constitutional provisions---Principles.

High Court under section 44(2)(c) of the Interim Constitution Act, 1974 can be moved by an aggrieved person for enforcement of his fundamental rights but the recent trend of the judicial pronouncements reveals that the superior Courts of the sub-continent have liberally construed the question of locus standi and have not closed their doors merely on the ground that a petitioner is not directly affected from action or inaction of a public functionary or from promulgation of any law against the fundamental rights enshrined in the Constitution.

For invoking the jurisdiction under section 44(2)(c) of the Interim Constitution Act it is the constitutional requirement that a person who is approaching the Court must have locus standi and be aggrieved but the doors of Court cannot be closed when any of the member of the civil society brings into the notice of the Court that fundamental rights of the State Subjects conferred by Interim Constitution Act, 1974 have been violated or curtailed due to the enactment passed by the Legislative Assembly or the Council as the case may be, however, extraordinary jurisdiction of this Court cannot be invoked for personal gain, political motivation or oblique consideration. The Court is duty bound to judge the bona fide of the petitioner while entertaining such like petitions.

If petitioners may not be treated as aggrieved, even then, High Court while hearing a case or a matter if comes across that any subordinate law or its provision takes away or abridges fundamental rights conferred by section 4 of the Interim Constitution Act, 1974 or is violative of any constitutional provision then this Court is duty bound to strike down such provision.

Question of locus standi or aggrieved person employed in section 44(2)(c) is sine qua non for invoking extraordinary jurisdiction of this Court but in appropriate cases where petition is filed in the larger interest of the society by a lawyer or a State Subject in which violation of the fundamental rights is pointed out then the question of locus standi can be construed liberally but subject to law laid down in this regard by the superior Courts in various pronouncements.

Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir and others PLD 1980 SC (AJ&K) 5; Muhammad Malik v. Karam Elahi and another 2011 SCR 431; Ch. Muhammad Yasin v. Sardar Muhammad Naeem Khan and 3 others 2010 SCR 17; Asif Hussain v. Azad Govt. and 47 others 2008 SCR 619; Raja Iqbal Rasheed Minhas v. AJ&K Council and 3 others PLD 2002 SC (AJ&K) 1 ref.

AIR 1984 SC 280; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Robkar Adalat v. Sarfraz Alam Assistant Town Planner Mirpur Development Authority, Mirpur 1996 MLD 1752 rel.

(c) Azad Jammu and Kashmir Adaptation of Laws Act (IV of 1979)---

----Preamble---Azad Jammu and Kashmir Council Validation of Laws Act 1995, Preamble---Azad Jammu and Kashmir Council (Adaptation and Validation) Act, 1998), Preamble---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.4, 21 & 44---Writ petition---Azad Jammu and Kashmir Adaptation of Laws Act, 1979 alleged to be ultra vires of the Constitutin due to absence of lawfully constituted Azad Jammu and Kashmir Council at relevant time---Validity---Azad Jammu and Kashmir Council had validated Azad Jammu and Kashmir Adaptation of Laws Act, 1979 subsequently by promulgating Azad Jammu and Kashmir Council (Validation of Laws) Act, 1995---Counsel by passing Azad Jammu and Kashmir Council (Adaptation and Validation) Act, 1998 had validated all amendments made in laws specified in Shedule I of Azad Jammu and Kashmir Adaptation of Laws Act, 1979---High Court dismissed writ petition in circumstances.

Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 and Nusrat Baig Mirza v. Government of Pakistan and another PLD 1992 Federal Sh.C. 412 ref.

Chairman Azad Jammu and Kashmir Council through Secretary Azad Jammu and Kashmir Council, Islamabad and 2 others v. Raja Nisar Ahmad 1995 CLC 1958 rel.

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

----Ss. 44, 48, 49 & 31---Federal Public Service Commission Ordinance (XLV of 1977), Preamble---Writ petition---Azad Jammu and Kashmir Council---Induction of persons in service of Council---Powers of Council to establish its own Public Service Commission or delegate its powers to Federal Public Service Commission for such purpose---Scope---Council and Legislative Assembly both could legislate for territories of Azad Jammu and Kashmir under S.31(1) of Azad Jammu and Kashmir Interim Constitution Act, 1974, but none of them could legislate with respect to matters specified in S.31(3) thereof---Council under S.31(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974 could legislate exclusively with respect to matters specified in Council Legislative List given in Third Schedule thereof, which included regulation of Counsel Service, establishment of Council Service Tribunal and Council Public Service Commission---Council and Government both had powers under S.49(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974 to regulate their respective services through an Act of Council or Act of Assembly, which must be in consonance with provisions of the Constitution---Expression "a" Public Service Commission for Azad Jammu and Kashmir as used in S.48 of Interim Constitution could not restrict powers of Council to establish its separate Commission, otherwise its powers under S.31 read with Third Schedule and S.49 thereof would become redundant---Council could not delegate its authority to Federal Public Service Commission---High Court directed the Council to amend Federal Public Service Commission Ordinance, 1977 and establish its own Public Service Commission---Principles.

Messrs Jabbeer Hotel Mirpur v. Kashmir Council Islamabad and 4 others 2001 PLC (C.S.) 11; Messrs Spintex Limited, Mirpur and others v. Income Tax Officer Govt. of AJ&K Mirpur and others 1998 PTD 2567; Chief Secretary/Referring Authority, Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K) 95; Jammu and Kashmir Council for Human Rights through Secretary, Rawalpindi and another v. Secretary Azad Jammu and Kashmir Legislative Assembly Muzaffarabad and 4 others 1994 CLC 1108; Raja Iqbal Rashid Minhas, Advocate v. Azad Jammu and Kashmir Council through AJ&K Council, Islamabad and 3 others PLD 2002 SC AJ&K 1; Muhammad Aslam v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 3 others 2005 CLC 1979; United Bank Limited Employees' Union through President and General Secretary and 4 others v. United Bank Ltd. 2000 PLC (C.S.) 930; Khan Muhammad Khan v. Azad Jammu and Kashmir Govt. through Chief Secretary, Muzaffarabad and 5 others PLD 2004 AJ&K 1; Mushtaq Ahmed Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 and Nusrat Baig Mirza v. Govt. of Pakistan and another PLD 1992 F.Sh.C 412 ref.

Hakim Khan's case PLD 1992 SC 595; PLD 1983 SC(AJ&K) 95; Federation of Pakistan through the Secretary, Ministry of Kashmir Affairs and Northern Affairs Division, Islamabad v. Malik Muhammad Miskeen and 8 others PLJ 1995 SC(AJ&K) 1 and M/s. Jabbeer Hotel Mirpur's case 2001 PLC (C.S.) 11 rel.

(e) Interpretation of statutes---

----Indefinite article "a" in a statute, use of---Effect---Use of such article before a noun would not always mean "one"---Principles.

The placing of indefinite article "a" before a noun does not necessarily mean "one".

Indefinite article "a" when used grammatically, it also gives the meanings of one singular noun, but when used in a general sense it denotes a host of nouns, persons and institutions, hence, the use "a" is to be seen with reference to general and specific provisions contained in an enactment.

Corpus Juris Secundum rel.

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

----Ss. 4(4), 21, 31 & 44---Azad Jammu and Kashmir Civil Service Rules (General), Rr.17 & 35-B---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, R.19---Writ petition---Azad Jammu and Kashmir Council, service of---Notification issued by Council inviting applications for various posts from citizens of Pakistan instead of State Subjects--Validity---Counsel could not make law or rules against fundamental rights conferred by S.4(4) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Right of service and right of entry into any lawful profession would be available only to State Subjects and could not be claimed by any other person---According to R.19 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, only State Subject would be eligible to enter into State service, but Government in case of non-availability of qualified State Subjects could relax such condition---Power of Council and Legislative Assembly to make laws would extend beyond territories of Azad Jammu and Kashmir only in respect of State Subjects and not in respect of citizens of Pakistan---High Court set aside impugned notification while directing Council to incorporate therein condition of being State Subjects for applicants instead of "a citizen of Pakistan"---Principles.

1997 SCMR 1043; Muhammad Jamil Aghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Mst. Sakina Bibi v. Federation of Pakistan PLD 1992 Lah. 99; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Pakistan, through Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan (deceased) 1992 SCMR 2450; Inamur Rehman v. Federation of Pakistan and others. 1992 SCMR 563 and Excise and Taxation Officer, Karachi and another v. Burmah Shell Storage and Distribution Company of Pakistan Ltd. and 5 others 1993 SCMR 338 ref.

Messrs Jabbeer Hotel Mirpur v. Kashmir Council Islamabad and others 2001 PLC (C.S.) 11; Azad Government of the State of J&K v. Nafees Bakers PLD 1995 SC(AJ&K) 47; 1997 SCMR 1043 and PLD 1992 FSC 412 rel.

Sardar K.D. Khan, Sardar Mansoor Parvez and Syed Burhan Ali Gardezi for Petitioners.

Mushtaq Ahmed Junjua for Respondents assisted by Raja Tariq Mehmood, Deputy Secretary, Kashmir Council.

Abdul Rasheed Abbasi, Raja Muhammad Hanif Khan and Barrister Humayun Nawaz Khan Amici curiae.

Date of decision: 20th June, 2013.

P L D 2013 Islamabad 1

Before Iqbal Hameedur Rahman, C J

RIMSHA MASIH---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION RAMNA and others---Respondents

Writ Petition No.3172-Q of 2012, decided on 20th November, 2012.

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

----S. 295-B---Constitution of Pakistan, Art. 199---Criminal Procedure Code (V of 1898), S. 561-A---Constitutional petition---Defiling etc., of copy of the Holy Qur'an---Quashing of F.I.R.---Juvenile accused with limited mental capacity---Planting of incriminating material---Ulterior motives of complainant---False implication---Effect---Allegation against accused, who was a Christian girl, was that she was proceedings towards a garbage heap to dispose of a polythene bag, when the complainant intercepted her and found half burnt pages of prayer (Namaz) book in the bag---Contention on behalf of accused was that complainant and local imam (prayer leader) of the area wanted to expel the Christian community from the area---Validity---Accused was a juvenile Christian girl, who was not literate and her medical report showed that her mental capacity was below her actual age---People in ordinary daily life never bothered to inquire from any person and particularly from a minor girl as to what she was carrying in her bag and what she intended to do with the same---Prudent man would never bother to intercept a girl in such a situation, which manifested that complainant had some ulterior motives as contended by the accused---Prior to the alleged occurrence, local imam (prayer leader) of the area had urged in his sermon that Christian community residing in the area should be expelled---Mala fide on part of complainant was very much apparent---Complainant's statement showed that he suspected that polythene bag carried by accused contained verses from the Holy Qur'an, but he failed to explain how he suspected the same, when he had not stated that such verses were visible from the polythene bag---Police took possession of polythene bag through recovery memo, which was attested by complainant and local imam (prayer leader), but surprisingly it was mentioned in the recovery memo that bag also contained two burnt pages of the Holy Qur'an---Inclusion of pages of the Holy Qur'an in polythene bag and mentioning of same in the recovery memo by the complainant and local imam after a short while of the alleged occurrence was a clear contradiction in the prosecution story---Police had opined that accused was not mentally sound and she was completely unaware of religious feelings and preachings of Christianly and Islam---Investigation also revealed that accused did not have any mens rea to commit the offence alleged, which was the most important consideration for an offence under S.295-B, P.P.C.---Accused did not have any wilfull intention of defiling or destroying text of the Holy Qur'an, therefore she could not be considered to have any mens rea to commit the offence alleged---Investigation also revealed that no one witnessed accused putting fire to the pages of prayer (Namaz) book---Accused had been placed in column No.2 of the police report under S. 173, Cr.P.C.---One of the witnesses, who got his statement recorded under S.164, Cr.P.C. categorically stated that local imam had planted pages of the Holy Qur'an in the polythene bag, on account of which said imam had been declared as an accused and was taken into custody---Continuation of present proceedings, in circumstances, would be miscarriage of justice and abuse of process of court---Constitutional petition was allowed and F.I.R. was quashed to the extent of the accused.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Maqbool Rehman v. The State and others 2002 SCMR 1076; Muslimabad Cooperative Housing Society Ltd. v. Mrs. Siddiqa Faiz PLD 2008 SC 135; PLD 2011 SC 963; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Ghulam Hussain and 2 others v. The State 1991 PCr.LJ 431; Muzaffar Iqbal v. The State 1993 PCr.LJ 125; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969; Abdul Jabbar and 2 others v. Nizam Khan and another 1993 PCr.LJ 1; Ali Akbar v. The State and 2 others 1999 PCr.LJ 258; Zafarullah Khan v. Station House Officer, Police Station Sukheki and 3 others 2011 PCr.LJ 561 and 1983 PCr.LJ 408 ref.

Abdul Ahad v. The State and another PLD 2007 Pesh. 83 rel.

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

----S. 295-B---Defiling etc., of copy of the Holy Qur'an---Proof---Mens rea---Scope---Most important factor for consideration under S.295-B, P.P.C was whether there existed any mens rea on part of accused for committing the offence---Where accused did not have any intention of wilfully defiling, damaging, desecrating, destroying or contemptuously disrespecting text of the Holy Qur'an or part of it, he/she could not be considered to have any mens rea to commit the offence under S. 295-B, P.P.C.

Abdul Ahad v. The State and another PLD 2007 Pesh. 83 rel.

(c) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 561-A---Quashing of proceedings---Constitutional jurisdiction of High Court---Scope---High Court, while exercising jurisdiction under Art.199 of the Constitution and S. 561-A, Cr.P.C was not barred from burying the proceedings by way of quashment.

Muhammad Aslam (Amir Aslam) and others v. District Police Officer, Rawalpindi and others 2009 SCMR 141 rel.

(d) Constitution of Pakistan---

---Art. 199--- Constitutional jurisdiction of High Court---Scope---When there were extraordinary circumstances, High Court was bound to protect the life, liberty, honour and dignity of every citizen.

(e) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Constitutional jurisdiction of High Court---Scope---Quashing of F.I.R.---Non-availing of alternate remedy---Effect---High Court was competent and had inherent powers to quash an F.I.R. in an appropriate case and it was not necessary to direct the accused to first exhaust an alternate remedy.

Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 rel.

Abdul Hameed Rana for Petitioner.

Tariq Mehmood Jehangiri, Deputy Attorney-General for the State.

Ch. Abdul Aziz for Respondent No.3/Complainant.

Amir Umer, S.I. with record.

Date of hearing: 14th November, 2012.

P L D 2013 Islamabad 11

Before Muhammad Azim Khan Afridi, J

Mst. MIRRAT MANZOOR BAJWA---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ISLAMABAD and another---Respondents

Writ Petition No.2888 of 2010, decided on 30th May, 2012.

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

----S. 5 Sched. & S.17---Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), Ss. 2(b) & 10---Dowry and Bridal Gifts (Restriction) Rules, 1976, R.4---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dowry articles---Rule of thumb---Applicability---List of dowry articles produced in evidence by both parties in support of their respective claim---Decree passed by Family Court on basis of such list produced by husband upheld by Appellate Court---Wife's plea that rule of thumb would apply to proceedings before Family Court and not provisions of Qanun-e-Shahadat, 1984 or its principles, thus, receipts in respect of purchase of dowry articles produced by her were liable to be relied upon by courts below---Validity---Wife in her statement had admitted that such list was not prepared at time of her Nikah, while her father had deposed otherwise---Rule of thumb would not absolve a party from establishing his/her claim---Party denying liability, on basis of such rule, could not be burdened to shoulder claim of opposite party without its proof---Dowry list produced by wife was not prepared in shape of Form D-1 as prescribed in R.4(1) of Dowry and Bridal Gifts (Restriction) Rules, 1976, therefore same was not to be considered in support of her claim---Receipts in respect of purchase of household articles on basis of rule of thumb, would not qualify and meet essential requirement of proof of purchase of said articles by parents of wife and its giving to her before or after marriage---High Court dismissed constitutional petition in circumstances.

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

----S. 17---Proceedings before Family Court---Rule of thumb, applicability of---Scope---Such rule would not absolve a party from establishing his/her claim---Party denying its liability, on basis of such rule, could not be burdened to shoulder claim against him/her without its proof.

Hifza Bukhari for Petitioner.

Sh. Khizar-ur-Rasheed for Respondents.

Date of hearing: 30th May, 2012.

P L D 2013 Islamabad 15

Before Muhammad Anwar Khan Kasi, J

MUHAMMAD MUSA KHAN---Appellant

Versus

SPECIAL JUDGE, CENTRAL, RAWALPINDI and another---Respondents

Criminal Appeal No.458 of 2009, decided on 12th November, 2012.

Emigration Ordinance (XVIII of 1979)---

----Ss. 18 & 22---Fraudulently inducing to emigrate receiving money, etc. for providing foreign employment---Appreciation of evidence---Non-production of passports as evidence---Effect---Allegation against accused was that he received money from the affectees with the commitment to send them abroad against a valid visa for employment---Visas affixed on passports of affectees were allegedly bogus, where after, accused issued cheques to the affectees to return their money, but said cheques were dishonoured due to insufficient funds---Prosecution contended that dishonouring of cheques in question was sufficient to establish guilt of accused---Trial Court convicted and sentenced accused under Ss.18 & 22 of Emigration Ordinance, 1979---Validity---Passports of affectees containing alleged forged visas were never produced in court---Investigation officer did not take any material in possession to establish offences under Ss.18 and 22 of Emigration Ordinance, 1979---Without any passport, visa or related documents, it could not be concluded that prosecution had established any case for the offences under Emigration Ordinance, 1979---Appeal was allowed conviction recorded by Trial Court was set-aside and accused was acquitted of the charge.

1986 MLD 2719; 1984 PCr.LJ 283; 2009 YLR 2390; 1994 PCr.LJ 2451; 1985 PCr.LJ 2982 and PLD 2004 Lah. 767 ref.

Syed Abaid Ullah Shah for Appellant.

Raja Shakeel Ahmed Abbasi, Standing Counsel for the State.

P L D 2013 Islamabad 18

Before Shaukat Aziz Siddiqui, J

FAZAL HUSSAIN---Petitioner

Versus

CHIEF COMMISISONER, ISLAMABAD and others---Respondents

Writ Petition No.3515 of 2011, decided on 15th October, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Corruption in public institutions---Rule of law---Duty of High Court.

It is the prime duty of the constitutional courts to preserve and uphold the objectives of the Islamic Welfare State, set forth through the organic law of the country, that is, the Constitution. Rule of law is the only mechanism through which prosperity with transparency can be achieved and evil of corruption can be eliminated. The High Court is the creation of the Constitution and is under obligation to pass orders for protecting the constitutionally guaranteed rights, impact of which shall ensure rule of law, fair play, transparency and protection of the nation's assets with a consequence of discouraging corruption, discrimination, exploitation, favoritism, and nepotism. The constitutional courts are required to guard the legal fibre of the country, against the inroads and invasion made through arbitrary orders, colourable exercise of authority, polluted actions, motivated decisions and nefarious designs have to be checked.

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

----Preamble---Civil Procedure Code (V of 1908) O. XXVI, R. 1---Constitution of Pakistan, Art. 199---Constitutional petition, inter alia, praying for the investigation and examination of allegations of corruption, arbitrary exercise of authority, inaction and dubious dealings in the Capital Development Authority (CDA)---High Court directed the constitution of a Commission to investigate said allegations and enumerated the objects of said Commission with directions that the Commission was to examine as to whether legal formalities coupled with organics of transparency and fair play were adhered to or not in various projects and actions of the CDA and to indicate who were the persons responsible for causing loss to the country; to determine the quantum of the loss caused and the gains that were obtained by the officials of CDA and to give recommendations with regard to the enforcement of the "Rules Culture" within the CDA---Commission would be empowered to inspect record of the CDA and if appropriate, could visit certain areas for physical inspection, and to summon any record and witnesses for recording of statements and to further appoint some specialist as local commission---Commission would have all powers necessary to be exercised in the discharge of its function to arrive at a conclusion with regard to the issues raised by the High Court---Chairman CDA was directed to ensure full cooperation with the commission and to give it proper assistance.

Niaz Ullah Khan Niazi, Raja Inam Minhas, Ch. Ehtisham-ul-Haq, Dr. Babar Awan, Qazi Muhammad Siddique, Malik Tariq Mehmood Noon, Malik Muhammad Kamran Noon, Hafiz Arfat Ahmad Chaudhry, Barrister Babar Sattar and Aamir Abdullah Abbassi for Petitioners.

Barrister Masroor Shah, Haseeb Muhammad Chaudhry, Muhammad Nazir Jawad, Misbah Gulnar Sharif, Atta Ullah Hakim Kundi and Khalid Zaman for Respondents.

Javed Iqbal Standing Counsel.

P L D 2013 Islamabad 26

Before Noor Ul Haq N. Qureshi, J

Makhdoomzada Syed MUSHTAQ HUSSAIN SHAH---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, ISLAMABAD and 6 others---Respondents

Writ Petition No.1451-Q of 2012, decided on 5th July, 2012.

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

----Ss. 22, 22-A & 25---Ex-officio Justice of Peace---Exercise of power in Islamabad Capital Territory---Scope---Plea that by virtue of S.22, Cr.P.C Justice of Peace was to be notified by the Provincial Government and since Islamabad Capital Territory had not been declared as a Province, therefore, there was no Provincial Government there, hence powers exercised by Ex-officio Justice of Peace without notification was illegal---Validity---Section 25, Cr.P.C. provided that Sessions Judge by virtue of his office was a Justice of Peace within the whole District of the Province in which he was serving---Sessions Judge could also nominate an Additional Sessions Judge as Justice of Peace, who on nomination would be a Justice of Peace in the same manner as a Sessions Judge---Exclusion of Islamabad Capital Territory as a Province did not mean that Sessions Judge or Additional Sessions Judges could not exercise powers as Justices of Peace by virtue of their respective offices---Plea was dismissed accordingly.

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

----Ss. 22-A & 154---Federal Investigation Agency Rules, 2002, R. 5---Power of Justice of Peace to issue directions to Federal Investigation Agency (FIA) for registration of F.I.R.---Scope---Federal Investigation Agency (FIA), status of---Scope---Status of Federal Investigation Agency (FIA) was that of a police station, in charge whereof was an officer in charge of a police station---Ex-officio Justice of Peace could issue directions to Federal Investigation Agency for registration of F.I.R. while exercising powers under S.22-A, Cr.P.C.

2010 MLD 1346 rel.

Sher Afzal Khan for Petitioner.

P L D 2013 Islamabad 31

Before Iqbal Hameedur Rahman, C J

HASSAN RAZA SYED---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE (WEST), ISLAMABAD---Respondent

Writ Petition No.1741 of 2012, decided on 12th June, 2012.

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

----Arts. 87 & 85---High Court (Lahore) Rules and Orders, Vol. V, Chap.5, Part B---Constitution of Pakistan, Art. 199---Constitutional petition---Supply of certified copies of record---Public document---Scope---Judicial record---Scope---Preliminary inquiry conducted by judicial officer regarding missing of a file from record of court---Report submitted in court after conducting of preliminary inquiry---Application submitted by petitioner for supply of certified copies of inquiry proceedings dismissed by District Judge on the basis that only preliminary inquiry was conducted and a report was submitted, whereas orders were passed for a regular inquiry, therefore, inquiry had not yet been concluded and at such stage petitioner had no right to inspect any document relating to inquiry proceedings---Contention on behalf of petitioner was that in terms of Art.85 of Qanun-e-Shahadat, 1984 a 'judicial inquiry' came within the definition of a public document; that in view of Art.87 of the said Qanun-e-Shahadat, 1984 every public officer having custody of a public document, which a person had a right to inspect, should give that person on demand a copy of such document---Validity---Inquiry conducted by a judicial officer regarding missing of a file or negligence or omission/commission of an act by an official of the District Court could not be termed as a judicial inquiry, rather, such inquiry was conducted in pursuance of the administrative order passed by the authority concerned---Part B, Chapter 5, Rules and Orders High Court (Lahore), Volume V provided that a copy or translation of a judicial record might be granted in the manner prescribed by the rules to any person who was legally entitled to receive it, whereas in the present case, inquiry proceedings, which had not yet been concluded, could not be termed as judicial record---Constitutional petition was dismissed in circumstances.

Irshad Ahmed Suleria for Petitioner.

P L D 2013 Islamabad 34

Before Iqbal Hameedur Rahman, C J

Dr. VIKTOR HACKER---Petitioner

Versus

Dr. SHAHIDA MANSOOR and others---Respondents

Criminal Miscellaneous No.14-H of 2012, heard on 18th September, 2012.

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

----S. 491---Civil Procedure Code (V of 1908), S. 13(b)---Habeas corpus petition---Recovery of minor children---When the foreign judgment not conclusive---Scope---Court of foreign country "A" granted sole custody of minor children to the father (petitioner)---Mother of minor children brought them to Pakistan---Father filed habeas corpus petition contending that mother had unlawfully and in patent violation of orders of court of foreign country "A" removed the minors, and that minors were foreign nationals and could not be brought to Pakistan without his lawful permission and consent---Mother contended that judgment passed by court of foreign country "A" was passed in her absence and same was not passed on merits, and that even otherwise such judgment was not conclusive as appeal filed against the same was still pending in the apex court of foreign country "A"---Validity---Judgment passed by court of foreign country "A" was not a conclusive judgment because firstly it was not delivered on merits, and secondly appeal against said judgment was still pending in the apex court of foreign country "A"---Minors were in custody of their real mother, therefore, it could not be held that they were in illegal confinement---High Court while dealing with the petition could not assume jurisdiction of executing court of judgment passed by court of foreign country "A"---Petition was dismissed with the observation that father might approach the Guardian Judge for custody of minors.

PLD 1995 SC 633; PLD 2010 Lah. 48; 1993 SCMR 1690; 2008 YLR 2647; 2007 YLR 399; PLD 1983 SC 280; 2009 MLD 367; 2004 CLD 1407; 2004 CLD 207 and 1997 SCMR 323 ref.

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

----S. 491---Guardians and Wards Act (VIII of 1890), S. 25---Habeas corpus petition---Scope---Issue of custody of minors---High Court while dealing with a petition under S.491, Cr.P.C, had no jurisdiction to decide the issue of custody of minors.

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

----S. 491---Guardians and Wards Act (VIII of 1890), S. 7---Habeas corpus petition--- Scope--- Appointment of guardian of minors---High Court while exercising jurisdiction under S.491, Cr.P.C cannot decide the question of appointment of guardian of minors, and such jurisdiction solely lies with the Guardian Judge.

Ali Raza for Petitioner.

Syed Nayyab Hassan Gardezi for Respondent No.1.

Sahibzada Muhammad Raees Satti, Standing Counsel for Respondents Nos. 2 and 3.

Date of hearing: 18th September, 2012.

P L D 2013 Islamabad 39

Before Muhammad Anwar Khan Kasi, J

BADSHAH JAN---Petitioner

Versus

ALLAH DITTA SETHI and others---Respondents

Criminal Miscellaneous No.196-BC of 2012, decided on 10th December, 2012.

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

----Ss. 497(5) & 497(2)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Petition for cancellation of bail, dismissal of---"Qarz-e-Hasna", meaning of---Criminal liability for dishonoured cheque issued against "Qarz-e-Hasna"---Scope---Petitioner allegedly gave "Qarz-e-Hasna" to the accused, against which the accused provided a cheque, which was dishonored on presentation---Trial Court granted bail to accused---Validity---"Qarz-e-Hasna" was a special kind of loan, which was given for the purpose of helping another with an object that it should be payable only when the borrower was in a position to pay---Since disputed amount in the present case had been advanced as "Qarz-e-Hasna", no criminal liability could be constituted---Present case was one of further inquiry---Bail granting order did not suffer from any illegality---Petition for cancellation of bail was dismissed accordingly.

Tafheem-ul-Qur'an Vol. I by Maulana Abu-ul-Ala Modoodi rel.

(b) Islamic jurisprudence---

----"Qarz-e-Hasna"---Meaning---"Qarz-e-Hasna" was a kind of loan, given on compassionate grounds, free from interest/mark-up or service charges and was repayable, if and when the borrower was able to pay.

Habib Bank v. Messrs Qayyum Spinning Ltd. 2001 MLD 1351 and Dr. M. Aslam Khaki v. Syed Muhammad Hussain and 2 others PLD 2000 SC 255 rel.

Sher Afzal Khan for Petitioner.

Qazi Rafi-ud-Din Babar, D.A.G. with Saleem ASI .

P L D 2013 Islamabad 42

Before Muhammad Anwar Khan Kasi and Shaukat Aziz Siddiqui, JJ

Jail Appeal No.376 of 2008

ASAD ALI---Appellant

Versus

THE STATE---Respondent

C.S.R. No. 3 of 2008

THE STATE---Appellant

versus

ASAD ALI---Respondent

Jail Appeal No.376 and C.S.R. No.3 of 2008, decided on 28th May, 2012.

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

----S. 9(c)---Possession and transportation of narcotic---Appreciation of evidence---Sentence, reduction in---Sample of recovered narcotic sent for chemical analysis---"Representative sample"---Scope---"Sufficient quantity" of narcotic sent for analysis---Definition---Narcotic weighing 200 kilograms was recovered from the vehicle which was being driven by the accused--- Six samples of 5 grams each were separated from the recovered charas and sent for chemical analysis---Accused was sentenced to death at conclusion of trial---Validity---Separate samples from each packet/piece were not collected for purposes of chemical analysis, therefore sample sent could not be said to be a "representative sample" and it also did not come within definition of "sufficient quantity"---Only that quantity of charas regarding which conclusive evidence by way of chemical report was available had to be presumed as recovered from the accused---Statement of one of the prosecution witnesses (customs official) was also not clear with regard to quantity of charas recovered---Vehicle was also not owned by the accused---Death sentence imposed by Trial Court being too harsh, in circumstances was converted into imprisonment already undergone by accused---Appeal was dismissed accordingly.

PLD 2012 SC 380 rel.

Raja Ghaneem Aabir Khan for Appellant.

Rehan-ud-Din Khan, Standing Counsel for the State.

Date of hearing: 24th April, 2012.

P L D 2013 Islamabad 45

Before Iqbal Hameed-ur-Rahman, C.J.

MUHAMMAD AKRAM---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, ISLAMABAD and others---Respondents

Writ Petition No.4807 of 2010, decided on 6th July, 2011.

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

----Ss. 22-A, 22-B & 154---Constitution of Pakistan, Art.199---Constitutional petition---Registration of F.I.R.---Civil and criminal proceedings---Petitioner impugned order of Justice of Peace, whereby his application for registration of F.I.R. against respondents for faking his signatures of mutation of land, was dismissed on the ground that the matter pertained to civil litigation and civil court would be in a better position to take punitive action---Validity---Mere pendency of civil suit did not bar registration of criminal case against delinquent, if a cognizable offence was committed---Application of petitioner submitted to the Station House Officer showed that he had categorically mentioned that his thumb impression and signatures on the mutation were fake and there were discrepancies between the mutation lying with the Halqa Patwari and the record of Revenue Department, therefore, inference could be drawn that prima facie, a cognizable offence had been committed by the respondents: and that they had deprived the petitioner from a valuable right---Allegations levelled by the petitioner required a thorough investigation---Order of Justice of Peace stating that the civil court, adored with plenary jurisdiction would be in a better position to take punitive action, was not in accordance with law---Petitioner had a right that his allegation be recorded under S.154, Cr.P.C. and he could not be asked to wait for punitive action of civil court---High Court set aside impugned order of Justice of Peace and directed the S.H.O. to register an F.I.R. against the respondents---Constitutional petition was allowed, accordingly.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 rel.

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

----Ss. 22-A & 22-B---Civil and criminal proceedings---Mere pendency of civil suit did not bar registration of criminal case against delinquent, if a cognizable offence was committed.

Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192 rel.

Sardar Arshad Mehmood Khan for Petitioner.

Tariq Mehmood Jahangiri, Deputy Attorney-General.

Raja Faisal Younas for Respondents Nos. 2 to 4.

P L D 2013 Islamabad 49

Before Muhammad Anwar Khan Kasi, J

MUHAMMAD RAZA and others---Petitioners

Versus

JAMMU AND KASHMIR CO-OPERATIVE HOUSING SOCIEITY, and others---Respondents

Writ Petition No.1777 of 2011, decided on 28th May, 2012.

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

----Ss. 12 & 13---Constitution of Pakistan, Art. 199---Constitutional petition---Housing Schemes---Duties and obligations of the Capital Development Authority in relation to housing schemes/societies---Petitioners were residents of the respondent Housing Society and impugned the deviation from approved layout places and conversion of open spaces into residential and commercial plots---Contention of the petitioners was that such actions of the respondent Housing Society were illegal and against their rights---Validity---Capital Development Authority (CDA) had admitted that the Housing Society committed violations of the approved layout plans and the report of the Development Authority stated that the Housing Society had not completely developed the society within the prescribed period and had converted open parks into plots without approval---Capital Development Authority was under an obligation to take action against defaulter Society for not completing the scheme within time and for violation of approved plans----Land specified for a particular purpose cannot be used for any other purpose---High Court directed the Chairman of the CDA to take action against the respondent Housing Society and to ensure that the Housing Society acts strictly in accordance with the approved layout plan---Constitutional petition was allowed, accordingly.

Residents' Welfare Society, Sector G-13 Islamabad through President v. Federal Government Employees' Housing Foundation through Director General and another 2010 CLC 1663 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Alternate remedy---Maintainability of constitutional petition during pendency of a civil suit on the subject matter---Scope---Plea of pendency of civil suit lost force where there was a clear violation of rules and where an authority acted in a manner altogether unwarranted by law, and in such a scenario, the remedies provided under the law need not be exhausted before having recourse to the constitutional jurisdiction of High Court.

Qazi Ghulam Dastgir for Petitioners.

Muhammad Ramzan Chaudhary, Muhammad Abdur Rafeh and Tariq Mehmood Mirza for Respondents.

Date of hearing; 24th April, 2012.

P L D 2013 Islamabad 55

Before Noorul-Haq N. Qureshi, J

WARID TELECOM (PVT.) LTD. and others---Petitioners

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY, ISLAMABAD and others---Respondents

Writ Petitions Nos.1152 of 2012 and FAOs. Nos.16 to 19 of 2012, decided on 8th March, 2013.

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

----S. 4(m)---Telecom Consumer Protection Regulations, 2009, Regln.8 ---Constitution of Pakistan, Art. 199---Constitutional petition---Unfair commercial practices---Protection of consumer rights---Maxim: Audi alteram partem---Applicability---Public interest---Petitioner mobile telecommunication-services companies impugned order of Pakistan Telecommunications Authority ("PTA") whereby "prize-schemes"/lucky draw were suspended by the PTA on the ground that such schemes were prima facie contrary to the law and in violation of Regln. 8 of the Telecom Consumer Protection Regulations, 2009---Contention of the petitioners was, inter alia, that such suspension amounted to being condemned unheard and was contrary to the principle of audi alteram partem---Validity---Petitioners had themselves pleaded that the prize schemes were launched for the purpose of marketing and providing incentives to the customers, but the same did not affect their original business, therefore , no right of the petitioners was being infringed and petitioners could not allege the same to be a natural right---Petitioners had stated before the court that they were not capable of stopping malpractices associated with such schemes, and therefore, they were not capable of taking responsibilities, and could not claim rights on the same footing---Under provisions of the Pakistan Telecommunication Re-organization Act, 1996; consumer's interest was protected and was therefore, an undisputed legal right---Under Ss.4(m) and 18 of the said Act, paramount consideration was consumer's interest---Consumers could not be left to the mercy of the telecom companies, as such schemes had been launched without any accountability---Relief claimed by petitioners was against public interest---Constitutional petitions were dismissed, in circumstances.

PLD 1989 FSC 60; 2001 CLC 385; PLD 2010 SC 61; PLD 1992 SC 153; 2004 YLR 1161; 2006 CLC 342; 1998 SCMR 1863; 2007 SCMR 289; 2007 SCMR 410; 2011 YLR 2705; PLD 2010 SC 676; PLD 1989 SC 61; PLD 1965 SC 90; 2008 CLC 694; 2003 CLC 331 and PLD 2010 SC 483 ref.

2009 MLD 367; 2007 YLR 399; 2008 YLR 2381; PLD 1983 SC 280 and 2004 CLC 324 rel.

(b) Administration of justice---

----If anyone escaped from his responsibilities, he could not claim rights on the same footing.

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

----Ss. 7 & 3---Telecom Consumer Protection Regulations, 2009, Regln.8---Pakistan Telecommunication Authority---Order/directive issued by Director Consumer Protection suspending lucky draw prize schemes launched by mobile telecom operators---Appeal against such directive not maintainable---Directive issued by Director Consumer Protection was not to be deemed as a "decision" by the Authority in view of Ss.3 and 7 of the Pakistan Telecommunication (Re-organization) Act, 1996 and therefore, no appeal against the same could be preferred.

(d) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Scope---Rights guaranteed under Art.18 of the Constitution were attracted with certain conditions envisaged and not entirely unfettered.

Ali Raza, Ali Sibtain Fazli and Malik Sardar Khan for Petitioners/Appellants.

Afnan Karim Kundi and Misbah-ul-Mustafa for Respondents.

Dates of hearing: 4th and 8th March, 2013.

P L D 2013 Islamabad 66

Before Shaukat Aziz Siddiqui, J

Gen. (R) PERVEZ MUSHARRAF---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.222/B of 2013, decided on 18th April, 2013.

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

----S. 498---Penal Code (XLV of 1860), Ss. 344/34---Anti-Terrorism Act (XXVII of 1997). Ss. 6(1)(b), 6(2)(b), (g), (i), (m) & 7---Wrongful confinement for ten or more days, common intention, acts of terrorism---Pre-arrest bail, cancellation of---Confinement of Judges of superior Courts---Allegation against the accused, who was a former President of Pakistan and Chief of Army Staff, was that he suspended the Chief Justice of Pakistan and 60 other Judges of superior Courts from their positions and placed them under house arrest for a period of five and half months due to which they were unable to perform their judicial functions---Perusal of F.I.R. clearly suggested that police did not insert the sections of relevant law which were made out from the contents of the F.I.R.---Confining Judges of Superior Courts and stopping them from performance of their duties was an act of terrorism---Prima facie offence under S.7 of Anti-Terrorism Act, 1997 was attracted to the present case---Police was bound under the law to insert the sections of relevant law which contents of F.I.R. suggested---According to investigating officer accused did not join the investigation, rather a telephonic message was conveyed (by him) that material would be provided to court---Such act of accused was defiance of court order and misuse of concession of bail---Accused failed to point out any mala fide on part of police or complainant---Offence alleged fell within the prohibitory clause of S.497(1), Cr.P.C---Accused was also a proclaimed offender and as such could not claim his normal rights---Accused was specifically nominated in the F.I.R. and was also required for further investigation---Act of accused through which Judges of Superior Court(s) were confined to their residencies shocked the entire nation more particularly community of lawyers--- Such act of accused spread fear in the society, insecurity amongst judicial officers, alarm in the lawyers community and terror throughout the country---Pre-arrest bail of accused was declined accordingly.

PLD 2009 SC 427; 2005 MLD 519; 2011 MLD 93; PLD 1974 SC 151 and 2005 YLR 3133 rel.

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

----Ss. 6(1)(b), 6(2)(b), (g), (i), (m) & 7---Act of terrorism---Scope---Confining Judges of Superior Courts and stopping them from performance of their duties---Such an act was an act of terrorism as defined by Ss.6(1)(b), 6(2)(b), (g), (i) & (m).

Malik Qamar Afzal, Advocate Supreme Court, Nabeel Rehman, Ms. Zainab Effendi and Rehana Zaman, for Petitioner (Petitioner in person on ad interim bail).

Tariq Mehmood Jehangir, D.A.G. and Sultan Mehmood, S.I./I.O. for the State.

Complainant in person.

Ch. Muhammad Ashraf Gujjar, Sardar Asmat Ullah Khan, Advocate Supreme Court, Nazir Ahmed Bhutta and M. Saleheen Mughal for the Complainant.

P L D 2013 Islamabad 71

Before Riaz Ahmad Khan, J

ABDUL SAMAD KHAN---Petitioner

Versus

ASSISTANT COMMISSIONER (SECTT) ICT, ISLAMABAD and another---Respondents

Writ Petition No.2507 of 2011, heard on 31st January, 2013.

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

----Ss. 9, 11 & 19---Constitution of Pakistan, Art.199---Constitutional petition---Declaration of newspaper---Ex-parte order of Assistant Commissioner cancelling such declaration of petitioner---Plea of Authority was that earlier publisher of newspaper had left Pakistan many years ago without permission of Deputy Commissioner, thus, such declaration was declared as null and void---Validity---Declaration of a newspaper could be cancelled under S.19 of Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, if same was not published regularly or its publisher/printer left Pakistan---No order under any provision of the Ordinance could be passed to declare such declaration as null and void---Presuming such plea of Authority to be correct, then they were required to approach Press Registrar to move an application to Deputy Commissioner, who after issuing notice to petitioner and holding an inquiry into allegations against him could pass order under S.19 of the Ordinance---Assistant Commissioner had no power to cancel such declaration---Nothing on record was available to show that Assistant Commissioner had passed impugned order with approval of Deputy Commissioner---Record showed that address of petitioner finding mention in impugned order was totally different from its certificate of registration issued by Government---Nothing on record to show service of any notice upon petitioner before passing of impugned order thus, he had been condemned unheard---High Court declared impugned order to be illegal, without jurisdiction and of no legal effect.

PLD 2006 Lah. 76 and 2009 YLR 1248 ref.

Ch. Waqas Zamir and Ch. Ehtasham-ul-Haq for Petitioner.

Syed Jalil Hussain, D.A.G. and Sher Afzal Khan for Respondent No.3.

Date of hearing: 31st January, 2013.

P L D 2013 Islamabad 75

Before Riaz Ahmad Khan, J

Al-Haj JAFAR ALI ALVI---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.19-Q of 2010, decided on 28th June, 2011.

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

----S. 188---Liability for offences committed beyond the limits of Pakistan (Tribal areas)---Trial of such offence in Pakistan---Pre-requisites---Section 188, Cr.P.C. created a condition for the trial of an offence under it, that the certificate of the Political Agent in the area in which the offence was committed or where there was no Political Agent, the sanction of the Federal Government should be obtained---Object of the provision was to prevent the accused being tried over again in the same offence at two different places.

AIR 1934 Sindh 96 ref.

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

----S. 188---Liability for offences committed beyond the limits of Pakistan (Tribal areas)---Conditions for trial of such offences within Pakistan---Extradition of an accused---Scope---Where person committed an offence beyond the limits of Pakistan and was later on found in Pakistan, there were two courses open, he can be tried in Pakistan under S.188, Cr.P.C., if a case falls within its purview, or he can be extradited, i.e. arrested and sent to the place where he committed the offence to take his trial there---Certificate from the Political agent or from the Federal Government is mandatory for the trial of an offence committed beyond the limits of Pakistan

2002 PCr.LJ 351 ref.

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

----Ss. 188, 249-A & 561-A---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Transaction taking place beyond the limits of Pakistan (Tribal areas)---Occurrence had taken place beyond the limits of Pakistan---Civil and criminal courts of the area of the occurrence had passed orders in respect of the disputed cheques---Application of accused filed under S.249-A, Cr.P.C. seeking his acquittal was dismissed by court in Pakistan---Validity---No certificate had been issued by the Federal Government for the prosecution of accused in Pakistan---Offence was allegedly committed in the year 2003---F.I.R. was registered in Pakistan in the year 2005 and since then the case had been pending---Courts below had found that though the accused had been tried beyond the limits of Pakistan, but the courts in Pakistan had jurisdiction in the matter---No doubt, the court in Pakistan had jurisdiction; however for trial of such an offence, certificate from the Federal Government was required---No sanction of Federal Government for the trial of the accused being available trial would not proceed in the matter in circumstances---Proceedings pending against accused were quashed accordingly.

Aftab Ahmed Khan for Petitioner.

Rao Abdul Ghaffar, Standing Counsel along with Safdar Hussain ASI for the State.

Date of hearing: 21st June, 2011.

P L D 2013 Islamabad 80

Before Muhammad Anwar Khan Kasi, C J

MAQSOOD AHMED---Petitioner

Versus

ADDITIONAL DEPUTY COMMISSIONER (GENERAL/INQUIRY MAGISTRATE) and others---Respondents

Writ Petition No.4213 of 2012, decided on 8th April, 2013.

Extradition Act (XXI of 1972)---

----Ss. 8, 9 & 10---Criminal Procedure Code (V of 1898), Chap.XXII-A [Ss.265-A to 265-N] & S.342---Constitution of Pakistan, Art.199---Constitutional petition---Extradition order---Prima facie evidence---Scope---Petitioner was fugitive offender against whom extradition order was passed by Inquiry Officer---Plea raised by petitioner was that order of extradition passed against him was without any evidence---Validity---Recording of oral evidence by prosecution under S.8 of Extradition Act, 1972 was not necessary---If some material which got force of evidence, was already placed on record by prosecution, same could be taken into consideration for coming to prima facie conclusion with regard to factum of commission of offence---Circumstantial evidence and even probability could be considered as evidence in the case and it could be taken into consideration for the decision of the fact in issue---Proceedings in question were in nature of inquiry to be held to see as to whether prima facie case was made out against fugitive offender to face trial in criminal case which was pending in the court of foreign treaty country---Documents relied by prosecution were per se evidence as per provision of S.9 of Extradition Act, 1972, and were admissible material which could be looked into by government, while passing extradition order---Inquiry Officer was not bound to hold inquiry in such cases exactly in accordance with the mode of trial of session cases---Inquiry Officer under S.8 of Extradition Act, 1972, was empowered to hold inquiry in accordance with such mode---Inquiry Officer adopted proper procedure by providing copies of extradition request and its enclosures to fugitive offender---Prosecution produced documentary evidence and fugitive offender was examined under S.342, Cr.P.C. wherein he denied charge and after hearing parties, Inquiry Officer passed order for his extradition which warranted no interference under constitutional jurisdiction---Petition was dismissed in circumstances.

Muhammad Azim Malik's case PLD 1989 SC 519; Abdul Ghaffar v. Federation of Pakistan 2000 SCMR 1536; Nasrullah Khan Henjra v. Government of Pakistan 1998 SCMR 1072 and Nargis Shaheen v. Federation of Pakistan 1994 SCMR 1706 rel.

Muhammad Siddique Awan for Petitioner.

Qazi Rafi-ud-Din Babar Deputy Attorney-General with Ali Muhammad Malik, S.O. Law, Ministry of Interior.

P L D 2013 Islamabad 85

Before Shaukat Aziz Siddiqui, J

Messrs M. N. CONSTRUCTION COMPANY---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petitions Nos.3387, 3724 of 2012 and 582 of 2013, decided on 28th March, 2013

(a) Constitution of Pakistan---

---Art. 184(3)---Jurisdiction of Supreme Court under Art.184 of the Constitution---Scope---Executive functionaries/public officials----Arbitrary exercise of authority---Corruption and corrupt practices---Looting of public money---Supreme Court, in exercise of its constitutional jurisdiction could check arbitrary exercise of authorities, looting of public by executive functionaries and involvement of public office holders in corruption and corrupt practices.

Sindh High Court Bar Association's case PLD 2009 SC 879; PLD 2011 SC 927; PLD 2010 SC 731; 2011 PLC (C.S.) 1130; Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Hajj Corruption's case 2011 PLC (C.S.) 1076; Watan Party v. Federation of Pakistan PLD 2012 SC 292; Munir Hussain Bhatti v. Sindh High Court Bar Association PLD 2011 SC 407; Raja Pervez Ashraf's case 2012 SCMR 773 ref.

(b) Public Procurement Regulatory Authority Ordinance (XII of 2002)---

---S. 2(h)---Public Procurement Rules, 2004. Rr. 50 & 47---Constitution of Pakistan, Art. 199---Constitutional petition---Development projects in the constituency of the Ex-Prime Minister, approved under his directives while he was in office---Mis-procurement---Lack of transparency---Award of projects in violation of procurement laws and rules---Non-disclosure of documents relating to evaluation of bid and award of contract---Effect---Loss of billions caused to public exchequer---Construction company (petitioner) along with other parties participated in the prequalification process for the development projects in question---During post qualification process of inviting bids for award of contract, the Prime Minister, all of a sudden issued a directive by which projects were assigned to National Logistic Cell (NLC), which was a government organization---Plea of construction company that discretion exercised by the Prime Minister was in violation of the Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004, besides the fact that a non-transparent mechanism had been adopted---Validity---Development projects in question were for the constituency from where Ex-Prime Minister was elected as Member of National Assembly, and he was also a candidate in the forthcoming election from the same constituency---Process of pre-qualification started with publication of notice in newspapers, which did not fall in the category of leading newspapers, circulation wise---National Logistic Cell (NLC), which was a government organization, failed to pre-qualify for the projects---Both projects were assigned to National Logistic Cell (NLC), on the direction of the then Prime Minister on the basis that it was a government organization with further direction of transfer of funds, although no provision of law existed in such regard in the Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004---After issuance of directive by then Prime Minister cost of projects increased by Rs.3.6 billion but scope of work remained the same---Total payment of initial cost of projects was made in violation of High Court's order, by which operation of Prime Minister's directive was suspended---No reason was advanced as to why pre-qualified companies were ousted from the process and why bidding could not take place---Memorandum of Understanding (MOU) signed between concerned Secretary and National Logistic Cell (NLC), was never made public---Officials of Public Works Department (PWD),who were public servants, acted in aid of illegal acts, rather became privy to conspiracy, through which loss of billions of rupees had been caused to public exchequer---Said officials at every stage abetted, facilitated, and surrendered assets without any repose, which could be termed as corruption, corrupt practices, criminal breach of trust, fraud, forgery and bribe---Government officials not only obeyed illegal orders (of their seniors) but even violated and disobeyed the orders of the High Court---Assigning of work of development projects in question was mis-procurement as defined in S.2(h) of Public Procurement Regulatory Authority Ordinance, 2002 and Rule 50 of Public Procurement Rules, 2004---Documents relating to the evaluation of assigning of work had not been made public, which was violation of Rule 47 of Public Procurement Rules, 2004---Increase in cost of projects was left at the discretion of National Logistic Cell (NLC) in the most clandestine manner---Increase of almost Rs. 4 billion in cost of projects had not been disclosed which led to the presumption that for irrelevant consideration and with dishonest intent, a deal had been made between National Logistic Cell (NLC) and persons at helm of affairs, on the dictates of the then Chief Executive of the government---Assigning of work to National Logistic Cell (NLC) was illegal, unconstitutional, and in violation of Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004---Directive issued on behalf of Prime Minister, Memorandum of Understanding between concerned Secretary and National Logistic Cell (NLC) and all subsequent orders passed were declared to be void and set aside---Assigning of work to National Logistic Cell (NLC) NLC was cancelled with the direction that it shall return all amount received for execution of projects within one week of the receipt of present order---High Court further directed that concerned procuring agency might initiate the procurement procedure afresh strictly in accordance with Public Procurement Regulatory Authority Ordinance, 2002 and the Public Procurement Rules, 2004 and by following the dictums laid down on the point of public procurement by the Supreme Court; that Chairman of National Accountability Bureau should initiate proceedings against all those persons involved in the present scam, including the Ex-Prime Minister, concerned Secretaries and all officials of concerned Department who abetted, aided and executed the illegal orders issued on behalf of the Ex-Prime Minister and also against involved officials of National Logistic Cell; that District Returning Officer of Ex-Prime Minister's constituency should appreciate as to whether in the light of the observations made in the present judgment, Ex-Prime Minister, could be believed as sagacious, righteous, honest, upright, trustworthy and ameen---Constitutional petition was disposed of accordingly.

Sindh High Court Bar Association's case PLD 2009 SC 879; PLD 2011 SC 927; PLD 2010 SC 731; 2011 PLC (C.S.) 1130; Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651; Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132; Hajj Corruption's case 2011 PLC (C.S.) 1076; Watan Party v. Federation of Pakistan PLD 2012 SC 292; Munir Hussain Bhatti v. Sindh High Court Bar Association PLD 2011 SC 407; Raja Pervez Ashraf's case 2012 SCMR 773 and Messrs Malik Goods Transport Co. Lahore v. Federation of Pakistan through Secretary Railways, Islamabad and 9 others PLD 2010 Lah. 289 ref.

(c) Public Procurement Regulatory Authority Ordinance (XII of 2002)---

---S. 2(k) & (h)---Public Procurement Rules, 2004. R. 50---Constitution of Pakistan, Arts. 78 & 199---Constitutional petition---Development projects executed from "Deposits Works" as defined in Central Public Works Account Code---Applicability of Public Procurement Rules, 2004 to such projects---Scope-"Public Account" as defined under Art.78 of the Constitution---Scope---"Public Fund", meaning of---Development projects in the constituency of the Ex-Prime Minister, approved under his directives while he was in office---Projects in question were awarded to National Logistic Cell (NLC), a government organization, in violation of procurement laws and rules---Plea that Public Procurement Rules, 2004 did not apply to works, which were to be executed by National Logistic Cell (NLC) from "Deposits Works" as same were not part of Federal Consolidated Funds and Public Account---Validity---Deposits Works under no stretch of imagination could be termed other than "Public Funds", therefore, Public Procurement Rules, 2004 were fully applicable on development projects in question---Article 78 of the Constitution, the definition of "Public Fund" provided under S.2(k) of Public Procurement Regulatory Authority Ordinance 2002 and term "Deposits Work", contained in Central Public Works Account Code, made it abundantly clear that, money spent on projects in question was public money for all practical intent and purposes---Plea regarding Deposits Works had been taken to escape from the applicability of golden principles of transparency, fairness, honesty and openness---Money, which came to the government treasury from whichever source, belonged to the country and its citizens---Amount in "Deposits Works" was not part of personal account of the Prime Minister, regarding which King's like direction could have been issued, for its distribution like bounties and entrustment to the loyals---Public money had always been treated as sacred trust in any welfare State and democratic setup, which had to be spent with extra caution and care---Responsibility to deal and disburse public money became more delicatein an Islamic State, which required due diligence---Constitutional petition was disposed of accordingly.

Pervaiz Oliver's case PLD 1999 SC 26 ref.

(d) Public Procurement Rules, 2004---

----Rr. 4 & 2(c)---Public Procurement Regulatory Authority Ordinance (XII of 2002), S. 2(l) & Preamble---Public procurement-Bidding process---Assigning of work---Award of contract-Government organization competing with public/private sector companies---Undue favour or advantage not to be extended to government organization---Scope---Government organization/entity which was competing with companies of private and public sectors could not be put in an advantageous position for assigning of work or award of contract, merely on the ground that it was a government organization or entity---Any government organization which opted to take part in the competitive process could not be treated differently from its competitors---Once process of public procurement had started under the Public Procurement Rules, 2004, then under no circumstances, it could be stopped and wound up to extend undue favour to any government organization.

(e) Civil service---

----Public servants obeying illegal orders of seniors---Legality---Public servants were not supposed to obey illegal orders of their bosses/seniors.

(f) Constitution of Pakistan---

---Art. 5---Loyalty to State---Scope---Executive functionaries obeying illegal orders---Legality---Executive functionaries were not supposed to obey illegal orders as the Constitution cast duty upon them to remain loyal to the State.

(g) Administration of justice---

---Order of court used by litigant to blackmail the other party---Permissibility---Litigant could not be allowed to use an order of court of law, to blackmail any other party and on achieving the desired result back-out from the proceedings and close his eyes on pointed illegalities.

Shah Khawar, Advocate Supreme Court for Petitioner (in W.P.No.3387 of 2012).

Syed Nayyab Hassan Gardezi for Petitioner (in W.P.No.3724 of 2012).

Ch. Saeed Anwar (in W.P.No.582 of 2013) in person.

Tariq Mehmood Jehangiri, D.A.G.

Messrs Rashid Mehmood Sindhu, Malik Abdul Ghafoor and Sarfraz Hussain for Respondent No.5 (NLC).

Shah Din Sheikh, D.G. Pak. PWD.

Date of decision: 28th March, 2013.

P L D 2013 Islamabad 121

Before Muhammad Anwar Khan Kasi, C J

ZAFAR MEHMOOD KHOKHAR and others---Petitioners

Versus

Dr. MUHAMMAD AFZAL---Respondent

Criminal Revision No.56 of 2012, decided on 22nd May, 2013.

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

----Ss. 3, 4, 5 & 7---Criminal Procedure Code (V of 1898), S. 265-K---Prevention of illegal possession of property---Allegations against the accused were that they illegally occupied the property owned by the complainant and also demolished the constructions---Contention of the accused persons was that they, being owners of the disputed property, were in possession of the same---Accused moved application under S.265-K, Cr. P. C. for their acquittal but the same was dismissed by the Trial Court---Validity---Complainant purchased various lands through registered sale deeds and in his cursory evidence specifically asserted that he purchased land during the period 2003 to 2007 and took over possession and in his absence in May 2007, the accused illegally took over the possession of his property and demolished a constructed room and by converting the shape of the land into housing society, started illegal alienation---Witnesses of the complainant also supported his version and in such state of affairs it would not be in the interest of justice to put an end to the proceedings as apparently there existed sufficient material---Police report was not conclusive and had no binding effect as the complaint would be decided on the basis of its own merits and the evidence advanced by both sides and accused would have full opportunity to adduce their version in defence---Circumstances of the present case did deserve cursory disposal of the matter and there was no bar on the aggrieved person from availing remedy against the offender under any other law as well as under the Illegal Dispossession Act, 2005, as subsection 2(3) was clear in such respect, so pendency of civil suit inter se the parties created no embargo for proceedings under the special law---Revision was dismissed.

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

----Preamble-Scope---Applicability---Illegal Dispossession Act, 2005, had been promulgated to protect the rights of the owner and of the lawful occupant of the property as against the unauthorized and illegal occupants and all cases of illegal occupants were covered by the said Act, except few cases where such issue had already been taken-up---Person not in legal possession would be possessing the property illegally and would fall within the ambit of Illegal Dispossession Act, 2005, and such type of activities deserved special care and caution as the rationale behind the enactment of the Act was to discourage the land grabbers and to protect the rights of owner and lawful occupants of the property and against the unauthorized and illegal occupants---Provisions of the Act, convered all cases of illegal occupants without any distinction.

Syed Zulfiqar Abbas Naqvi for Petitioners.

Qazi Naseer Ahmad for Respondent/Complainant.

Date of hearing: 15h May, 2013.

P L D 2013 Sindh 1

Before Mushir Alam C.J. and Nisar Muhammad Shaikh, J

MUHAMMAD RAMZAN KATIAR through Legal Heirs---Appellants

Versus

PAKISTAN REFINERY LTD. and another---Respondents

High Court Appeal No.231 of 1999, decided on 10th September, 2012.

Cantonments Act (II of 1924)---

----Ss.60, 83 & 99-A---Specific Relief Act (I of 1877), Ss.42 & 54---Law Reforms Ordinance (XII of 1972), S. 3---Suit for declaration, injunction and recovery of money-Infra-court Appeal---Import and use of curde oil within limits of Cantonment Board---Octroi charges, recovery of---Legality---Plaintiff was contractor of Cantonment Board and collected octroi on articles imported for use, consumption or sale within the limits of Cantonment Board-concerned---Defendant-company was oil refinery and denied import of crude oil from abroad and refused to pay octori on the ground that oil was supplied through underground pipelines---Validity---Octroi tax was not like toll tax so as to be imposed at entry of road or bridge but octroi tax was liable not merely on import or entry of goods in octroi limits but also on its sale, consumption or use within such limits---Mere import of crude oil was not of any significance so as to attract levy of octroi---Entry of crude oil within octroi limits was admitted, therefore, it would be immaterial if the same was brought through underground pipelines or by road etc.---Defendant availed remedy provided under S.99-A of Cantonments Act, 1924, but without success due to retrospection of notification in question, which was since issued in favour of defendant under the . provisions of same statute, hence its applicability could not be denied by defendant---Octroi duty imposed on import, use etc. of crude/mineral oil, mentioned in duly approved octroi schedule issued under notification dated 10-9-1976, with previous sanction of Federal Government and also published in official gazette in compliance of S.60 and other sections of Cantonments Act, 1924, could not be termed to be ultra vires of the Constitution in any way---Division Bench of High Court directed defendant to pay octroi duty on import and use of crude oil in its refinery within octroi limits of Cantonment Board to plaintiff for period of his octroi---Division Bench of High Court reversed findings of Judge in Chambers of High Court on material issues---Appeal was allowed accordingly.

Mst. Nargis Mocen and another v. Government of Pakistan through Secretary Defence, Islamabad and another PLD 2003 Lah. 730; Bela Automatic Ltd. v. KIM and 2 others PLD 1999 Kar. 410; Messrs Universal Merchants v. Commissioner of Karachi and 2 others 1980 CLC 704; Municipal Committee Multan v. Burmah Shell Storage and Distributing Co. of Pakistan Ltd. and another PLD 1976 Lah. 726; Municipal Corporation, Faisalabad v. Atta Muhammad and others 1990 SCMR 84; Messrs Anwar Khan Mahbooh Co. v. The State of Bombay and others AIR 1961 SC 213; Burmah Shell Oil Storage and Distributing Co. of India Ltd. Belgaum v. Belgaum Borough Municipality, Belgaum AIR 1963 SC 906; Burshane (Pakistan) Ltd.'s case PLD 1983 Kar. 517; C.E.O. and another v. Burshane (Pak.) Ltd. 1986 SCMR 1308; AIR 1947 F.C. 14; Chief. Officer, Corporation City of Lahore v. The Punjab Flour and General Mills Co.. Ltd. Lahore (Regular Second Appeal No.1744 of 1943; Messrs Saadat Factory v. The Chairman, Municipal Committee, Dera Gazi Khan (Writ Petition No.42 of 1961); Jafarabad Municipality v. Kathiawar Industries . Ltd. AIR 1969 Gujarat 344; Kathiawar Industries Ltd. v. Jaffrabad Municipality AIR 1979 SC 1721; Chief Administrator Auqaf v. Mst. Amna Bibi 2008 SCMR 1717; Ashraf Sugar Mills v. Federation of Pakistan and others 1993 CLC 910; Collector of Central Excise and Sales Tax Lahore v. Messrs Abdullah Sugar Mills Ltd. 2008 PTD 894; M.A. Rashid Khan and 2 others v. Azad Government and others PLD 1981 AJ&K 30 and Sheikh Fazal Ahmad v. Raja Ziauliah Khan and another PLD 1964 SC 494 ref.

Messrs Army Welfare Sugar Mills Ltd. and another v. Federation of Pakistan and others 1992 SCMR 1652.distinguished.

Bilal Khilji for Appellants.

Muhammad Chunai and Tahir Mahmood Parihar for Respondent No.1.

None present for Respondent No.2.

Dates of hearing: 29thh September, 2010 and 27th August, 2012.

P L D 2013 Sindh 25

Before Muhammad Shaft Siddiqui, J

HABIB-UR-REHMAN and 7 others---Petitioners

Versus

VIITH ADDITIONAL DISTRICT JUDGE, HYDERABAD and 2 others--Respondents

Constitution Petition No. S-313 of 2009, decided on 5th October, 2012.

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

----Ss. 8, 9 & 15---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord---Default in payment of rent-Restriction on enhancement of rent---Scope---Ejectment application and appeal filed by landlord were concurrently dismissed by Rent Controller and Lower Appellate Court on the ground that annual increase of rent mentioned in rent agreement was against law and landlord failed to provide detail of his bona fide requirement of premises---Validity---Restriction imposed on enhancement of rent under S. 9 of Sindh Rented Premises "Ordinance, 1979, by not more than 10% per annum and that too after three years, was on' "Fair Rent", which was to be determined by Rent Controller under S. 8 of Sindh Rented Premises Ordinance; 1979---No "Fair Rent" was determined by Rent Controller in the present case, therefore, conditions of S. 9 of Sindh Rented Premises Ordinance, 1979, were not applicable and agreement between parties was not inconsistent with the principal Statute i.e. Sindh Rented Premises Ordinance, 1979---Tenant at all times was at liberty to move an application under S.8 of Sindh Rented Premises Ordinance, 1979, for fixation of "Fair Rent", if he had felt that "Fair Rent" was not the one that was being claimed and liable to be paid by him---Clause of rent agreement pertaining to enhancement of rent annua4ly was not inconsistent thus operative---Tenant had defaulted while not tendering rent pursuant to the rent agreement between the parties---Landlord was , not required to give fullest possible description of his personal use of property, when it had been established that in pursuance of family expansion, the accommodation was requ5d accordingly---Good faith was a matter which related to attending circumstances of landlord and should ordinarily be accepted without imputing bad faith unless strong circumstances to the contrary were brought on record---Non­-mentioning of personal requirement in notice could not prima facie be enough to militate against personal requirement, which was otherwise proved---High Court set aside orders passed by two courts below and allowed ejectment application as landlord required premises for his personal bona fide need---Constitutional petition was allowed in circumstances.

Dr. Surayya Matin and others v. Mst. Akhtarunnisa 1995 MLD 456; Miss Akhtar Qureshi v. Nisar Ahmad 2000 SCMR 1292; Mrs.Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190; Laus Deo Enterprises through its Partner, Karachi v. Mrs. Suraya Jameel and another PLD 1991 Kar. 309; Syed Asghar Ali Imam v. Muhammad Ali PLD 1988 SC 228; Shaikh Muhammad Sadiq v. Mst. Sain Islam PLD 2008 Kar. 20; Mst. Mobin Fatima v. Muhammad Yamin and 2 others PLD 2006 SC 214; Muhammad Rafique v. Messrs Habib Bank Ltd. 1994 SCMR 1012; 'Muhammad Arif v. Mrs. Anwar Jehan 2000 SCMR 1960; Allies Book Corporation through L.Rs. v. Sultan Ahmad and others 2006 SCMR 152; Tariq Hussain and another v. Additional District Judge and 2 others 2010 MLD 1498; 1993 SCMR 67; 1992 ALD 176; 1992 ALD 538; 1992 MLD 1601 and 1994 CLC 927 ref.

Rafiq Ahmed Khan for Petitioners.

Abdul Rehman Shaikh for Respondents.

Date of hearing: 25th September, 2012.

P L D 2013 Sindh 39

Before Muhammad Tasnim, J

Mst. SAEEDA through her son Muhammad Abid---Petitioner

Versus

MUHAMMAD NAEEM and 3 others---Respondents

Constitutional Petition No.S-627 of 2011, decided on 15th October, 2012. -

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

----S.15---Ejectment of tenant---Bona fide need of landlord-Proof--Such need stands discharged, the moment landlord appears in witness box and makes statement on oath or in the form of affidavit-in-evidence as prescribed by law, provided it remains un-shattered in cross-examination and un-rebutted in evidence adduced by opposite party.

Mst. Toheed Khanum v. Muhammad Shamshad 1980 SCMR 593 and Hassan Khan v: Munawar Begum PLD 1976 Kar. 832 rel.

(b) Constitution of Pakistan--

----Art.199---Constitutional petition---Judgments at variance---Findings of fact, reliance on---Principle---In the event of conflicting judgments, findings of Appellate Court are to be preferred and respected unless it is shown from record that such findings are not supported by evidence and conclusion drawn is against material available on record and order of Appellate Court suffers from misreading and non-reading of evidence or that reasons recorded for reversal of order are arbitrary, fanciful and perverse.

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

----S.15---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Constitution of Pakistan, Art.23---Property rights---Ejectment of tenant---Bona fide need of landlord---Bona fide---Proof---Onus to prove---No unreasonable restriction can be placed on exercise of right of landlord which would offend fundamental rights guaranteed under. Art. 23 of the Constitution---Initial burden for landlord to prove bona fide is very light and court is required to consider that evidence adduced on behalf of landlord, which if unshaken and consistent with averments made by him in ejectment application, then the burden would shift to tenant to establish that claim of landlord is not bona fide---Real test whether premises is required for personal use is whether need is based on good faith---Such being question of fact and finding on the subject cannot be taken exception to unless it is shown that it suffers from violations of some fundamental legal principle in the matter of appreciation of evidence or 'omission of evidence or misreading of evidence.

Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. and others 2006 SCMR 117; Jehangir Rustam Kakalia v. Messrs Hashwani Sales and Servies (Pvt.) Ltd. 2002 SCMR 241; Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613; Zarina Ayaz v. Khadim Ali Shah 2003 SCMR 1398; United Bank Ltd. v. Mrs. Alafia Hussain 1999 SCMR 1796; Iqbal Book Depot and others v. Khatib Ahmed and others 2001 SCMR 1197; Nisar Ahmad Khan v. Noor Muhammad Khan and others 1990 SCMR 544 and Pakistan Institute of International

Affairs v. Naveed Merchant and others 2012 SCMR 1498 rel.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition--Ejectment of tenant---Bona fide need of landlord---Determination--Principle---Ejectment application filed by landlord was allowed by Rent Controller but Lower Appellate Court allowed appeal of tenants and dismissed ejectment application---Validity---Question as to whether demand made by landlord was reasonable and fair should be judged from the view point of landlord rather that tenants who were already enjoying fruits of property for almost three decades---Tenants could not be permitted to say that their long standing established business would be uprooted on account of their ejectment---Although tenants had enjoyed tenancy rights for more than 30 years, but they could not claim life-long tenancy rights in demised property---Tenants failed to point out any illegality in order passed by Rent Controller nor any misreading or non-reading of material evidence was pointed out---Findings recorded by Rent Controller were in accordance with law and evidence available on record---Findings recorded by. Lower Appellate Court were not in accordance with law or evidence on record---High Court in exercise of constitutional jurisdiction set aside order passed by Lower Appellate Court and restored that of the Rent Controller---Constitutional petition was allowed accordingly.

Mst. Shirin Bai v. Famous Art Printers (Pvt.) Ltd. and others 2006 SCMR 117 rel.

Abdul Rahman v. Pakistan State Oil Company Ltd. and another PLD 2004 SC 921; Muhammad Anwar Azim and another v. R. I. G. Education Board PLD 2003 Kar.' 34; Zaheeruddin Babar v. Mst. Kishwar and others 2009 YLR 1052; Muhammad Mohsin Malik v. Mst. Qamar Jehan and others 2009 YLR 289; Mrs. Mariam v. Naeem Ahmed 2001 SCMR 1676; S.M. Nooruddin and others v. Saga Printers 1998 SCMR 2119; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925; .Nelofar Soomar v. Mst. Shahida 1)10 CLC 447; Qamar Zaman v. IInd Additional District Judge, Karachi ,arid another 2008 CLC 431; Muhammad Shoaib Alam and others v. Muhammad Iqbal 2000 SCMR 903 and Sher Afgan v. Sheikh Anjum Iqbal PLD 2004 SC 671 ref.

Mst. Saira Bai v. Syed Anisur Rahman I989,-SCMR 1366: Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398; Malik Islam Akber v. Mustafa Hussain 1992 CLC 1753; Qamruddin v. Hakim Mahmood Khan 1988 SCMR 819 and Muhammad Asghar v. Abdul Rehman and others 2010 MLD 665 distinguished.

Jhamat Jethanand for Petitioner.

Shamsuddin Memon for Respondents Nos. 1 and 2.

Dates of hearing: 1st and 5th October, 2012.

P L D 2013 Sindh 60

Before Muhammad Shafi Siddiqui, J

MUHAMMAD ISSA ABBASI through Legal Representatives and others---Applicants

Versus

ABDUL QADIR through Legal Heirs and others---Respondents

Civil Revision No.100 of 2008, decided on 15th October, 2012.

(a) Easement---

----Easement right---Public road and Government land---Erection of wall on such road/land for security purposes by owners of adjoining properties---Validity---Such wall could not be erected on such road/land, rather such owners for ensuring their safety ought to erect wall on their own land.

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

----S. 91-Suit for removal of encroachment from common passage/pathway---Applicability of S.91, C.P.C. to such suit---Scope---Such suit was not covered by S.91, C.P.C.

Pakistan National Oils Ltd. and another v. Sattar Muhammad 1980 SCMR 686; Clifton and Defence Traders Welfare Association through General Secretary V. President. Clifton Cantonment Board. Karachi and 4 others PLD 2003 Kar. 495; Mst. Seema and others v. Messrs Millennium Developers and others 2003 CLC 632; Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633; Ghulam Muhammad and others v. Murad Bakhsh and another PLD 1969 Lah. 95; Fazlur Rehman v. Younus Ali Gilani and 9 others 1999 MLD 1565; Mst. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540; Rooh ul Qadoos v. Muhammad Rafique and 2 others 2002 CLC 379; Muhammad Hussain v. Faiz Bakhsh and another 2001 CLC 1203; AIR 1952 Punjab 387; AIR 1945 Madras 53; Messrs Chaudhry Brothers v. The Gerahanwala Central Bank Ltd. 1968 SCMR 804; Bin Yamin and others v. Hakim 1996 SCMR 336; Lahore Cantt. Co-Operative Housing Society v. Messrs Builders and Developers PLD 2002 SC 660 and 2004 CLC 587 ref.

PLD 2004 SC 633 and 1988 CLC 1301 rel.

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

---S.91 & O. VII, R.11---Snit containing multiple causes of public and private nuisances---Filing of such suit without obtaining permission from Advocate General---Provision of S.91, C.P.C. would not apply to such suit, thus, its plaint could not rejected on account of absence of such permission.

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

----Ss. 54, 70 & 70-A---Civil Procedure Code (V of 1908), S.91---"Business of Society "---Scope---Jurisdiction of Registrar to decide dispute relating to business of society---Scope---Any act done by society beyond parameters of its business world not be an act done under law, thus, remedy of suit there against would not be barred by Ss. 54, 70 & 70-A of Co-operative Societies Act, 1925---Principles.

The business of society shall mean and in fact includes only that act which is lawful and rests within the jurisdiction, powers and domain of the society. Any act done beyond the parameters of the society's business is not an act done under the law and as such raising grievances in respect of such acts by filing suit would not be hit by Ss. 54, 70 & 70-A of the Co-operative Societies Act, 1925.

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

----S.115---Concurrent findings of fact by courts below---Interference in such findings by High Court in its revisional jurisdiction---Scope---Such findings, if supported by evidence on record, could not be termed either perverse or arbitrary, thus, would be immune from further scrutiny in revisional jurisdiction.

Jhamat Jethanand for Applicants.

M. Yousif Leghari for Respondent No.l.

Ghulam Qadir H. Siyal for Respondent No.6.

A.B. Soomro, Addl. A.G. for the State.

Date of hearing: 15th October, 2012.

P L D 2013 Sindh 68

Before Abdul Rasool Memon, J

MUHAMMAD NAVEED SHEIKH and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Applications Nos.1.99 to 202 of 2012, decided on 11th October, 2012.

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

----Ss. 498, 499 & 561-A---Penal Code (XLV of 1860), S. 489-F---Surety amount, fixing of-Principle-Reduction in surety amount---Accused persons were granted bail and amount of surety was fixed as equivalent to the amount of dishonored cheques---Plea raised by accused persons was that amount of surety was to be fixed by court keeping in view financial position of accused---Validity---Fixing of surety equivalent to the amount of dishonored cheque could not applied as a matter of rule in all cases---Amount of surety could not be used to penalize accused persons or deprive them from concession of bail in appropriate cases---Object of calling upon accused to furnish surety was not to penalize them but to ensure their presence in court---Amount of surety must be fixed with regard to nature of offence and means of accused---High Court reduced surety amount for each of the accused from 50% to 25% of the amount of dishonoured cheques--- , Application was allowed accordingly.

Mian Abdul Wahid v. The State 1989 MLD 4731; Kamal and another v. The State 1992 PCr.LJ 1152; Abdul Qadir and another v. The State PLD 1991 Kar. 353; (Swami) Chetanand v. Gurbakhsh Singh AIR 1930 Lah. 668; Khan Shah v. The State and another 1989 MLD 2652; Imran v. The State 2011 MLD 462; Dr. Anjurn Ara Manzar v. The State 2011 YLR 2914; Aman Ullah v. The State 2007 YLR 1120; Shaukat Ali, Manager N.B.P. v. M. Anwar and others 2007 YLR 2892 and Ali Hakimuddin Ghulam Ali Mandviwala v. The State 2009 MLD 1189 ref.

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

----S. 498--Bail bond---Object, purpose and scope---Purpose of releasing accused on surety bond is to ensure his attendance on each and every date of hearing before Trial Court till conclusion of trial for compliance thereof---Person who stands surety executes surety bond in required sum or money, and undertakes to produce accused on each date of hearing.

(c) Administration of justice---

----Each and every case is to be decided on its own peculiar facts and circumstances.

Muhammad Saleem's case 1994 SCMR 2213 rel.

Samiullah Soomro for Applicants.

Mehmoodul Hassan and Ismail Ahmed for the Complainant.

Abdul Rehman Kolachi, A.P.G. for the State.

Date of hearing: 26th September, 2012.

P L D 2013 Sindh 73

Before Muhammad Ali Mazhar, J

Miss ZAINAB attorney of her father---Applicant

Versus

MUHAMMAD JAVED and 6 others---Respondents

Judicial Miscellaneous No.21 and C.M.A. No.10657 of 2012, decided on 9th October, 2012.

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

----S. 12(2) & O. III, R. 2---Application under S. 12(2), C.P.C. for setting aside order of dismissal of suit as withdrawn---Filing of such application through attorney after revocation of his power of attorney by plaintiff---Validity---Such attorney could not represent plaintiff to espouse his cause---Such application was dismissed in circumstances.

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

----O XXIII, R. 1---Suit for possession of inherited share in estate of deceased---Withdrawal of suit by plaintiff on assurance of defendant to give him claimed share---Failure of defendant to give plaintiff such share---Effect---Plaintiff could initiate fresh proceedings.

(c) Fraud---

----Fraud would vitiate most solemn proceedings---Fraud could be taken as a ground of attack and defence at same time.

2010 SCMR 1097 rel.

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

----S. 12(2)---Application under S.12(2), C.P.C., decision of---Procedure to be adopted by court---Scope---Court in every such application would not be obliged to follow procedure of suit, frame issues and record evidence---Court in its discretion could adopt any mode for deciding such application while keeping in view nature of allegation made therein---Principles.

There is no procedure provided to decide an application under section 12(2), C.P.C., however, for determination of such an application, court is not under obligation in every case to frame issues, record evidence of the parties and follow procedure prescribed for decision in suit. Matter is left to the satisfaction of the court which has to regulate its proceedings and keeping in view the nature of allegation in the application the court may in its discretion adopt any mode for its disposal.

Muhammad Akram Shaikh v. Messrs Pak Libya Holding Company PLD 2010 Kar. 400 and Mrs. Azra Shabbir v. Mrs. Rehana Khatoon 2010 CLC 1578 rel.

Ms. Syeda Sara Kanwal for Applicant.

Tariq Mehmood for Respondent No.4.

Anwar Fazlani and Ghulam Mohiduddin for Ghulam Mohiuddin father of the Applicant.

Date of hearing: 9th October, 2012.

P L D 2013 Sindh 80

Before Mushir Alam, C.J. and Muhammad Farooq Shah, J

PAKISTAN TELECOMMUNICATION LTD. through General Manager---Petitioner

Versus

Mst. FAIZAN BIBI and 9 others---Respondents

Civil Petition No.D-1101 of 2011, decided on 28th September, 2012.

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

---S.24 & O. VII, R.10---"Transfer of suit" and "return of plaint"--Distinction---Consequence of return of plaint in terms of O. VII R. 10 C.P.C. and transfer of suit under S. 24 C.P.C. are entirely different---Where plaint is returned under O. VII, R. 10 C.P.C., on its re-presentation to court of competent jurisdiction, for all intents and purposes, it is treated as fresh institution and limitation would be computed from the day of representation of plaint in court---Consequence of transfer of suit or proceeding from one court to another in exercise of power under S. 24 C.P.C. is that proceeding are deemed to be continued from the day when it is originally presented and not from the moment it stands transferred or proceeded by transferee Court.

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

----O. VII, Rr.10 & 11(d)---Limitation Act (IX of 1908), S.14---Constitution of Pakistan; Art.199---Constitutional petition---Rejection of plaint---Remedy before wrong forum---Condonation of delay---Suit filed by plaintiff was returned by Trial Court for presenting the same before court having jurisdiction---Suit filed by plaintiff in proper court was rejected being time barred---Validity---Remedy available to plaintiff was either to apply for transfer of case, if it was within the jurisdiction of same district before District Court or where proceedings were pending in one district and were intended to be transferred to another district, then jurisdiction to transfer vested in High Court to entertain such application for transfer---Such course was not adopted and on the contrary, plaintiff adopted the course which • entailed its own consequence and none else but counsel for plaintiff was responsible---Another course open to plaintiff was to have invoked provision of S. 14 of Limitation- Act, 1908, to have sought condonation of delay in pursuing remedy before wrong forum, which also counsel for plaintiff did not resort to---Plaintiff even could have challenged order passed by Trial Court in exercise of power under. O. VII, R. 10 C.P. C. before revisional Court and instead he chose to approach High Court that too much after limitation---High Court declined to interfere in order passed by Trial Court---Petition was dismissed in circumstances.

Kashif Hanif for Petitioner.

Abdul Sattar Respondent No.3.

Date of hearing: 28th September, 2012.

P L D 2013 Sindh 83

Before Maqbool Baqar, J

ABDUL AZIZ---Plaintiff

Versus

ABDUL REHMAN and another---Defendants

Suit No.11 of 2008 and C.M.As. Nos.8142 of 2006 and 11084 of 2008, decided on 16th August, 2012.

Civil Procedure Code (V of 1908)---

----O. I, R. 10(2) & O. VI, R. 17---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Amendment of pleadings---Proper/necessary party, impleading of---Principles---Term "questions involved" used in 0.1, R.10(2), C.P.C.---Scope---Plaintiff filed an application for impleading a person as defendant on the ground that he was Benami of one of the defendants and also sought amendment in pleadings---Validity---Primary object of impleading proper party in suit was to avoid multiplicity of legal proceedings and to determine effectually and finally all questions involved in proceedings---Term "questions involved" used in 0. I, R. 10(2), C.P.C. included all matters, material to a proper decision of case but object of making such persons party was to prevent multiplicity of proceedings and such person must, therefore, be a person whose interest was likely to be affected even though no relief was claimed against him---As such the same did not extend to persons who had no interest which was likely to be affected by proceedings---Court should not drag any party in the array of suit to suffer rigours of trial unnecessarily---Court had wide discretion in the matter of joinder of parties; any person who was neither necessary nor proper party could be joined at the convenience of plaintiff---Court had to ensure that such amendment would not harm opposite party by destroying a right already accrued to it by omission to include proposed claim or ground of attack in original suit---Leave to amendment could be granted if amendment was made without injustice to the other side---Amendment must not injure the other party, so that he could not be compensated in cost---Where a period of limitation had commenced since accrual of a particular case, amendment would not be allowed, which had the effect of adding such a cause of action notwithstanding the fact that limitation period in relation to it had. not expired when writ in the action was issued---High Court declined to allow proposed amendments and/or impleading of new person in suit as defendant---Application was dismissed in circumstances.

Muhammad Iqbal v. Muhammad Ramzan PLD 1987 AJ&K 170; K. Maracair and 3 others v. Abdul Ghafoor and 2 others PLD 1995 Kai. 256; Mst. Sanaullah Khan v. Lahore Municipal Corporation Lahore 1979 CLC 891 and Malik Mumtaz Ali v. Government of Pakistan through the Secretary, Refugees and Works, Government of Pakistan, Rawalpindi and 3 others PLD 1971 Lah. 395 ref.

H.A. Rahmani for Plaintiff.

Makhdoom Ali Khan for Defendant No.1.

Abid S. Zuheri for Defendant No.2.

Abdul Sattar Pirzada for proposed Defendant.

Dates of hearing: 19th August 2008 and 8th August, 2012.

P L D 2013 Sindh 104

Before Irfan Saadat Khan, J

HABIB METROPOLITAN BANK LTD.---Plaintiff

Versus

Mian ABDUL JABBAR GIHLLIN and another---Defendants

Suit No.B-67 of 2009, decided on 5th November, 2012.

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

---S. 9---Suit for recovery of loan amount---Suit plaint signed by attorney, whose power of attorney was duly signed by directors of a Bank, which was subsequently taken over by plaintiff-Bank with permission and under rules and regulations of State. Bank of Pakistan---Competency---Suit was, held, to have been instituted by competent person.

Messrs Saudi Pak Commercial Bank Ltd. v. Messrs Marvi Agrochem (Pvt.) Ltd. and 9 others 2007 CLD 1734 distinguished..

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

----Ss. 9 & 10---Electronic Transaction Ordinance (LI of 2002), S.3---Suit for recovery of loan amount by Bank---Application for leave to defend---Electronically generated statement of accounts filed by Bank along with plaint---Defendant's plea that such statement had no legal value due to absence of signature of officer and seal of Bank thereon---Validity---Electronically generated documents would not require any signature by virtue of Electronic Transaction Ordinance, 2002---Such statement of accounts containing complete picture of loan facility obtained by defendant would. not be considered to be a document having no legal authenticity---Non-denial of obtaining of loan facility by defendant established execution of documents mentioned in plaint and his failure to discharge his liability in accordance with agreed terns---Defendant while filing leave application had failed to comply with provisions of Ss.10(3), 10(4) & 10(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Grant of leave to defend suit could not be considered a matter of routine or right, unless the suit involved substantial question of fact and law---Defendant had neither denied execution of loan documents nor complied with mandatory requirement of law, thus, was not entitled to leave to defend---High Court dismissed leave application and suit was decreed resultantly.

National Bank of Pakistan v. Al-Asif Sugar Mills Ltd. 2001 CLJ 127; Sahib Deed v. Inam and 4 others PLD 1985 Quetta 69; Shafiq Ahmad v. Mirza Muhammad Anwar Beg PLD 1968 Lah. 367; National Bank of Pakistan v. Messrs Mujahid Nawaz Cotton Ginners 2007 CLD 678; Bankers Equity Ltd. and 5 others v. Messrs Bentonite Pakistan Ltd. 2010 CLD 651; Bankers Equity Ltd. v. Messrs Bentonite Pakistan Ltd. 2003 CLD 931; SBLR 2011 Sindh 4'99; Bolan Bank Ltd. v. Baig Textile Mills (Pvt.) 'Ltd. 2002 CLD Lah. 557; Saudi-Pak Industrial and Agricultural Investment Company (Pvt.). Ltd. Islamabad v. Mohib Textile Mills Ltd. Lahore and 3 others 2002 CLD 1170; National Development Finance Corporation v. Spinning Machinery Company of Pakistan Ltd. 2002 CLD 53; Industrial Development Bank of Pakistan v. N.T.N. (Pvt.) Ltd. 2002 CLD 369; Allied Bank of Pakistan Ltd. v. Mohib Fabric Industries Ltd. 2002 CLD 716; International Finance Corporation v. Sarah Textiles Ltd. and 3 others 2009 CLD 761; Industrial Development Bank of Pakistan, Karachi v. Messrs ZAMCO (Pvt.) Ltd. 2007 CLD 217; National Bank of Pakistan v. Messrs Al Brothers (Private) Ltd. and others 2007 CLD 1356; Hajji Ali Khan and Company, Abbotabad and 8 others v. Messrs Allied Bank of Pakistan Ltd., Abbotabad PLD 1995 SC 362; United Bank Ltd. v. Ch. Ghulam Hussain 1998 CLC 16; National Bank of Pakistan v. EFFEF Industries Ltd. and 11 others 2002 CLD 1431; Messrs Saudi Pak Commercial Bank Ltd. V. Messrs Marvi Agrochem (Pvt.) Ltd. and 9 others 2007 CLD 1374; United Bank Ltd. v. Progas Pakistan Ltd. 2010 CLD 828; NIB Bank Ltd. v. Taha Spinning-Mills Ltd. and others 2010 CLD 635; Habib Bank Ltd. v. Paragon Industries (Pvt.) Ltd. 2009 CLD 1346; H.B.L. v. Crescent Softwear Products (Pvt.) Ltd. 2009 CLD 412; Faysal Bank Ltd. 4 Genertech Pakistan Ltd. and 6 others 2009 CLD 856; Habib Bank Ltd. v. Messrs SABCOS (Pvt.) 2006 CLD 244; Shahid Farooq Sheikh v. Allied Bank of Pakistan Ltd. 2005 CLD 1489; Zeeshan Energy Ltd. and 2 others v. Faisal Bank Ltd. 2004 CLD 1741; Bank of Khyber v. Messrs Spencer Distribution Ltd. and 14 others 2003 CLD 1406; Allied Bank Ltd. v. Sholl International (Pvt.) Ltd. (Unreported judgment in the case bearing Suit No.B-25 of 2008); lmtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another 1991 SCMR 2114; North-West Frontier Province Government, Peshawar v. Abdul Ghafoor Khan PLD 1993 SC 418; Riaz Hussain and others v. Muhammad Akbar and others 2003 SCMR 181; Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR 318; Messrs U.B.L. v. Messrs Sindh Tech. Industries Ltd. 1998 CLC 1152; Messrs Malik and Company v. Muslim Commercial Bank 2002 CLD 1621; Muhammad Mujtaba and 5 others v. The Bank of Punjab 2004 CLD 712; Muhammad Mumtaz and 2 others v. Pakistan Industrial Credit and Investment Corporation Ltd. and another 2006 CLD 1384; Messrs Saudi Pak Commercial Bank Ltd. v. Messrs Marvi Agrochem (Pvt.) Ltd. and 9 others 2007 CLD 1734 ref.

(c) Electronic Transaction Ordinance (LI of 2002)---

----Preamble---Electronic Transaction Ordinance, 2002---Object stated.

The Electronic Transaction Ordinance, 2002 was promulgated with the view to provide recognition and facilitation of documents, records, information, communications and transactions in electronic form etc. By virtue of this Ordinance, a legal cover has been provided to the electronic forms by categorizing that their legal recognition and admissibility etc., would not be called in question, if the same has not been attested by any witness, in case the same is in electronic form. It is observed that rapid changes have occurred in the recent years as old and conventional system of banking has been done away with to a great extent. Inspite of having conventional and old method banking system latest technology has taken over by way of introduction of electronic and digital methods.

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

----Ss. 9 & 10---Suit for recovery of loan amount by Bank---Application for leave to defend suit---Execution of loan documents not denied by defendant---Effect---Defendant would not be entitled to such leave.

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

----S. 10---Leave to defend suit, grant of---Scope---Grant of leave could not be considered a matter of routine or right unless the suit involved a substantial question of fact and law.

Jam Asif Mehmood for Plaintiff.

Altaf Hussain for Defendant No.1.

Bilal Aziz Khilji for Defendant No.2.

Dates of hearing: 23rd and 24th October, 2012.

P L D 2013 Sindh 117

Before Munib Akhtar and Aftab Ahmed Gorar, JJ

Syeda WAHEEDA SHAH---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and 4 others---Respondents

Constitutional Petitions Nos.D-565, D-2175 and D-1134 of 2012, decided on 19th September, 2012.

(a) Constitution of Pakistan---

----Arts. 218 & 199---Representation of the People Act (LXXXV of 1976), S.3(2)---Election Commission Order, 2002, Arts. 8 & 9E---Constitutional petition---Bye-election for a seat of Provincial Assembly---Abusing and beating of election staff at polling station by a contesting candidate---Earlier, directions had been given by two Members of Election Commission to Returning Officer to register F.I.R. with regard to such incident---Taking cognizance of such incident by Returning Officer in terms of Notification dated 14-2-2012 at subsequent directions of three Members of the Commission---Plea of accused candidate was that without convening a formal meeting of all five members, impugned decision of three Members was not by a properly constituted Commission and had no legal effect---Validity---Election Commission was not mandatorily required to act and take decisions always in a formally notified meeting of its all the five Members---Commission could take its decision by a simple majority of its Members for the time being---Two Members would not constitute requisite majority---Impugned decision had been taken by three Members, thus, same being a decision of majority members of Commission was binding, resultantly direction of two Members and any action/proceedings taken on its basis ceased to have effect---Non-convening of formal meeting of all five Members of the Commission would not invalidate impugned decision---Officers and employees of Commission would not be entitled to insist that directive or orders given to them must come from at least three Members of the Commission---Employees and officers of the Commission would be obliged to act in terms of order which they received from one or two Members, unless same was overridden subsequently by order of remaining Members constituting a majority---High Court repelled such plea of accused candidate, in circumstances---Principles.

(b) Constitution of Pakistan---

----Arts. 218, 220 & 222---Election Commission Order, 2002, Art. 9---Representation of the People Act (LXXXV of 1976), Ss. 5 & 7---Election Commission of Pakistan, duty and power of---Federal and Provincial Executive Authorities, obligations of---Scope---Duty of Election Commission being to ensure holding of elections in an honest, just, fair and legal manner and guard such elections from corrupt practices---Legislation would not be required to infuse life into such constitutional mandate of the Commission for same being self-sustaining---Federal and Provincial Executive authorities individually and collectively were bound to provide assistance to the Commission in discharge of its functions, and their failure or refusal to do so would be breach of a constitutional obligation and not simply a violation of a statutory provision---Principles.

(c) Words and phrases---

----"Functus officio"---Meaning.

Moulana Atta-ur-Rehman v. Al Hajj Sardar Umar Farooq and others PLD 2008 SC 663 ref.

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

----Ss. 39, 42, 50, 86 & 86A---Representation of the People (Conduct of Election) Rules, 1977, R. 28---Constitution of Pakistan, Art. 199---Constitutional petition---General election or bye-election in relation to a particular seat to an Assembly---Notification issued by Election Commission empowering Returning Officer to exercise powers of Magistrate of First Class in respect of offences punishable under S.86 of Representation of the People Act, 1976---Petitioner's plea was that Returning Officer could not exercise such powers after having signed Form XVI of Representation of the People (Conduct of Election) Rules, 1977 as his office would stand ceased to exist thereafter---Validity---Returning Officer after signing Form XVI (i.e. consolidated statement of results) had to forward same to the Commission pursuant to S. 42 of Representation of the People Act, 1976 in terms of Form XVII as specified in R. 28 of Representation of the People (Conduct of Election) Rules, 1977---Election Commission would declare winning candidate on basis of such return submitted by Returning Officer---Electoral process would come to an end on the polling day, such cognizance could not be taken beyond polling day as long as Returning Officer had not become functus officio for purposes of Representation of the People Act, 1976---Returning Officer after signing Form XVI had to do many other things such as ensuring submission of election expenses by all candidates under S. 50 of Representation of the People Act, 1976, which could be done up to 30 days after publication of name of winning candidate---High Court repelled the plea of petitioner, in circumstances.

Imran Khan and others v. Election Commission of Pakistan and others 2012 SCMR 448; Black's Law Dictionary, (7th Edn. 1999 p.682); Kunwar Khalid Younus v. Federation of Pakistan and others PLD 2003 Kar. 209 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

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

----S. 86---Offences, kinds of---"General offences" and "offences of strict liability"---Distinction---Proof of mens rea and actus reus would be essential to establish general offences---Absence of proof of mens rea in offences of strict liability would not be fatal to prosecution, rather only proof of actus reus would be sufficient---Principles.

If the relevant provision does not itself so provide, there is a presumption that mens rea must be shown in the case of an offence. It is not enough to only establish the actus reus. This is a strong presumption and not easily or lightly to be displaced. In other words, generally an offence is regarded as comprising both of these elements (or ingredients) that together make up the prescribed act or omission (i.e. the actus reus), and also of the requisite fault liability, either by way of intent, knowledge, negligence, recklessness or otherwise (mens rea) to do that which is forbidden. Nonetheless, the law does recognize that some offences can be of strict liability. In respect of such offences, it is sufficient to establish only the actus reus.

Nasir Abbas v. The State and another 2011 SCMR 1966 rel.

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

----S. 86---Offences mentioned in S. 86 of Representation of the People Act, 1976---Nature of---Offences mentioned in S. 86 of the Act, were not general offences remaining alive at all times against public at large, rather same were offences of strict liability for being particularized in time committable only on polling day (but not a day before or later), localized in place and/or person (i.e. committable in or near a polling station and in relation to electors and/or election officials)---Interference in any task of polling staff at polling station would constitute offence under S. 86 of the Act---Intent to commit an offence (mens rea) under S. 86 of the Act would be irrelevant---Offence under S. 86(3)(b) of the Act was not personal to the victim, rather same being election offence must be considered of election under the Act--- Principles.

Sherras v. De Rutzen (1895) 1 QB 918; Gammon (Hong Kong) Ltd. and others v. Attorney General of Hong Kong (1984) 2 All E.R. 503 and Srinivas Mall Bairoliya and another v. Emperor AIR 1947 PC 135 rel.

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

----S. 86(3)(b)---Criminal Procedure Code (V of 1908), S. 417(2A)---Constitution of Pakistan, Art. 199---Constitutional petition---Bye-election for a seat of Provincial Assembly---Abusing and beating of Presiding Officer and Assistant Presiding Officer at polling station by petitioner (contesting candidate)---Conviction of petitioner by Returning Officer for an offence under S.86(3)(b) of Representation of the People Act, 1976 on the basis of her statement and producing CD of such incident admitting to have committed such offence while denying any mens rea---Order of Additional Sessions Judge (ASJ) setting aside such conviction of petitioner---Plea of Election Commission was that offence under S. 86(3)(b) of Representation of the People Act, 1976 was an offence of strict liability, which stood established from petitioner's such statement, thus, her acquittal by impugned order was not legally justified---Petitioner's plea was that her conviction without framing of charge and holding of trial was illegal---Validity---Such offence was of strict liability, for which only actus reus was to be proved---Petitioner had voluntarily made inculpatory statement to have hit such election officials while denied mens rea, which would not be relevant in an offence under S. 86 of the Act---Act of hitting an election official at polling station would be interference with performance of his duties, thus, question as to whether or not polling was as result thereof would be irrelevant for such offence---Such statement of petitioner itself was sufficient to prove actus reus beyond reasonable doubt---Petitioner/candidate had committed such offence, for which she had been convicted rightly by the Returning Officer---High Court set aside impugned order of acquittal of accused passed by Additional Sessions Judge and restored that of his conviction passed by Returning Officer.

Sherras v. De Rutzen (1895) 1 QB 918; Gammon (Hong Kong) Ltd. and others v. Attorney General of Hong Kong (1984) 2 All E.R. 503 and Srinivas Mall Bairoliya and another v. Emperor AIR 1947 PC 135 rel.

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

----S.86---Abusing and beating of Presiding officer of the Polling Station by contesting candidate---Conviction of accused candidate by Returning officer---Scope---Prosecution would be bound to prove its case beyond reasonable doubt---Any weakness or lacuna in defence could not be sufficient for conviction---Defence would be considered as a whole i.e. both inculpatory and exculpatory parts thereof---Principles.

It is for the prosecution to prove the case beyond reasonable doubt and any weakness or lacuna in the defence cannot be sufficient for conviction.

If at all accused puts in any defence, he intends for it to be exculpatory: that is why it is called a defence. Even if the defence fails to exculpate, that itself not sufficient to convict the accused. This is what is meant when it is said that the defence is. "weak" or "defective" or "full of lacunas": the version put forward by the accused does not satisfy. This in itself, however, does not mean that the accused can be convicted; the offence must still be proved beyond reasonable doubt. A defence set up by an accused may also have an inculpatory element. The accused cannot, of course, require that any inculpatory element in his defence be ignored, and only the exculpatory part be considered: the defence must be considered as a whole.

(i) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.417(2A)---Constitutional petition---Maintainability---Scope---Additional Sessions Judge had announced order on 30-5-2012, whereagainst constitutional petition was filed on 15-6-2012 i.e. within period of 30 days---Constitutional petition could easily be converted into or regarded as an appeal against acquittal under S. 417(2A), Cr.P.C.

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

----Ss. 86(3)(b) & 100---Constitution of Pakistan, Art. 199---Constitutional petition---Bye-election for a seat of Provincial Assembly---Abusing and beating of election officials at polling station by petitioner (contesting candidate)---Conviction of petitioner by Returning Officer of an offence under S. 86(3)(b) of Representation of the People Act, 1976---Disqualification of petitioner for two years by majority decision of Election Commission on account of such conviction of petitioner on complaint made by rival contesting candidate---Validity---Chief Election Commissioner (CEC) alone had jurisdiction to pass order under S. 100 of Representation of the People Act, 1976, but not the Commission---Disqualification of a candidate would take place only by an order passed to such effect by Chief Election Commissioner---Impugned decision of the Election Commission was without jurisdiction---High Court set aside impugned decision of the Commission while observing that Chief Election Commissioner in his direction could pass an order against accused after providing him an adequate opportunity of hearing.

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

----Ss. 86(3)(b), 86-A, 100 & 103AA---Constitution of Pakistan, Art. 199---Constitutional petition---Bye-election for a seat of Provincial Assembly---Abusing and beating of Presiding Officer and Assistant Presiding Officer at polling station by petitioner (contesting candidate)---Conviction of petitioner by Returning Officer of an offence under S. 86(3)(b) of Representation of the People Act, 1976 on the basis of her statement and CD of such incident admitting its commission thereby---Order of majority Members of the Election Commission directing the holding of fresh election in the constituency on account of such conviction of the petitioner/candidate---Petitioner's plea was that overall polling in constituency could not be upset on account of such incident being confined to one polling station out of 102 polling stations---Validity---Petitioner had filed her detailed objections before the Commission, which fulfilled requirement of summary inquiry---Record showed that petitioner did hit the election officials and used inappropriate language and ordered them to stop polling as a result of which, poll did stop for some time---Video clips of such incident played on news channels clearly indicated that blow given by petitioner to election official was deliberate and intended---Such incident had been described as "unfortunate and sordid" in the impugned order---Blow landed on person of an election official would be regarded as blow to electoral process itself---Illegality or violation involved was grave within meaning of S.103AA of Representation of the People Act, 1976 for being an act of interference with performance of duty of such election officials at polling station, which had been committed personally by a winning candidate by physical assault on their persons---High Court upheld impugned decision for being lawful in circumstances---Principles.

Mir Ghalib Domki v. Election Commission of Pakistan and others PLD 2006 Kar. 314; Haji Ibrahim Khan v. Abdul Hameed Khan Achakzai and others PLD 1990 SC 352; Yousuf Muneer Shaikh and others v. Election Commission of Pakistan and others 2005 CLC 123; Syed Saeed Hasan v. Pyar Ali and others PLD 1976 SC 6; Abdul Hamid Khan Achakzai v. Election Commission of Pakistan and others 1989 CLC 1833 and Mian Khursheed Mehmood Kasuri v. Returning Officer and others 1994 CLC 296 rel.

Rashid A. Razvi, Syed Haider Imam Rizvi and Farhat Ullah, for Petitioners (in C.P. No.D-2175/2012 (respondent No.3 in C.P.D-1134 of 2012).

Muhammad Ali Shaikh, DAG (Hyd.) for the Election Commission of Pakistan (in C.P.No.2175 of 2012).

Muhammad Munir Paracha, for Election Commission of Pakistan (in C.P.No.1134 of 2012).

Muhammad Yousaf Laghari, for Intervener, Amir Zardari (in C.P.No.2175 of 2012).

Naimatullah Soomro for Respondent No.5 (in C.P.D-2175 of 2012).

Adnan Karim, A.A.G.

Ali Asghar Sial, Returning Officer, District Election Commission, Respondent No.4 in C.P. No.D-2175 of 2012 along with Abdullah Hanjrah, Law Officer, Election Commission of Pakistan.

Dates of hearing: 25th, 26th, 30th, 31st July and 1st August, 2012.

P L D 2013 Sindh 168

Before Mushir Alam, C.J. and Syed Muhammad Farooq Shah, J

ARY COMMUNICATION (PVT.) LTD. through Authorized Officer---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Information and Broadcasting, Islamabad and another---Respondents

Constitution Petition No.D-2534 of 2010, decided on 25th October, 2012.

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

----Ss. 19, 22, 30-A & 33---Pakistan Electronic Media Regulatory Authority (Appeal and Review) Regulation, 2008, Regln. 14---Constitution of Pakistan, Art.199---Constitutional petition---Broadcasting licence, issuance of---Discrimination---Exercise of discretion by licence granting Authority---Principle---Petitioner applied to Pakistan Electronic Media Regulatory Authority (PEMRA) for licence of landing rights of satellite television channel for transmiting religious and educational knowledge---Grievance of petitioner was that despite deposit of processing fee, the Authority had not issued required licence for the past many years---Validity---Authority in its absolute unfettered discretion, acted arbitrarily and discriminately by issuing licence to entertainment, sports, English and other television channels by ignoring channel of petitioner without any sufficient reasons and cause---Authority in pursuance of powers conferred upon it, had delayed licence to such an extent that petitioner was kept waiting for years without any fault on its part, thus Authority did not act fairly, transparently, judiciously and above any suspicion---Vested right of individual was protected by the Constitution and by fundamental rights guaranteed to citizens---Functionaries like Authority in question, which exercised statutory power were legally and constitutionally bound to discharge their functions strictly in accordance with law, otherwise an action contrary to law would not be sustainable and such Authority would expose itself for discriminatory treatment, which amounted to denial of valuable fundamental rights of people, for whose benefit such Authority had been created---Action of Authority was ultra vires, contrary to the Constitution and law, having no legal sanctity--- High Court directed the Authority to strictly follow principles of 'equity' and 'fairness' for taking decision on application submitted by petitioner for issuance of licence---Constitutional petition was allowed accordingly.

Abid Hussain Shirazi v. Secretary M/O Industries and others 2005 SCMR 1742; Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2000 SCMR 1956; Messrs Arshad and Company v. Capital Development Authority, Islamabad through Chairman 2000 SCMR 1557; Sheraz Ata Ullah Khan (Minor) through his Real Maternal Uncle v. Nazir Ahmad Khan and others 1993 CLC 945; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Abdul Razak Rathore v. The State PLD 1992 Kar. 39; Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Messrs Shadman Cotton Mills Limited, Rawalpindi v. Federation of Pakistan through Secretary, Ministry of Finance, Federal Secretariat, Islamabad and another 2001 CLC 385; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Abdul Baqi and others v. Muhammad Akram and others PLD 2003 SC 163; Syed Kamal Shah v. Government of N.-W.F.P. 2010 SCMR 1377; Dr. Shahid Masood and others v. Federation of Pakistan and others 2010 SCMR 1849; G Sambasiva Rao v. APSRTC (1997) 1 An LT 219 at 230 and Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 ref.

Asim Mansoor Khan for Petitioner.

Kashif Hanif for Respondent No.2.

Date of hearing: 29th August, 2012.

P L D 2013 Sindh 183

Before Syed Muhammad Farooq Shah, J

DHANI BUX---Applicant

Versus

VI-ADDITIONAL SESSIONS JUDGE, HYDERABAD and 2 others---Respondents

Criminal Revision Application No.S-100 of 2012, decided on 28th November, 2012.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 5---Complaint filed by landlord under Ss. 3 & 5 of Illegal Dispossession Act, 2005 alleging therein that he was owner of agricultural land and accused persons had dispossessed him and occupied the same without lawful justification---Sale price of produce of land was deposited in court by the accused persons (harees)---Application for release of such amount by accused persons---Scope---'Harees' filed an application before Trial Court to release disputed amount of produce of land deposited with the accountant of the court---Trial Court dismissed said application by observing that 'harees' and landlord were entitled to the extent of their respective shares in the produce, therefore, entire amount could not be released to either parties, as the matter was of redemption of account and civil court was competent to resolve such a controversy---Legality---Trial Court had not committed any illegality in dismissing application of 'harees' (accused persons)---Constitutional petition regarding the present issue was also pending adjudication before the High Court---Revision application was dismissed and impugned order of Trial Court was maintained.

Abdul Sattar Sarki for Applicant.

Jagdesh R. Mullani for Respondents.

Syed Meeral Shah, D.P.G. for the State.

P L D 2013 Sindh 186

Before Mushir Alam, C.J. and Syed Muhammad Farooq Shah,J

NAZIR ADENWALA---Petitioner

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary Ministry of Interior, Islamabad and 2 others---Respondents

Constitutional Petition No.D-3101 of 2011, decided on 9th October, 2012.

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

----S. 2(3)--- Non-disclosure of grounds for placing name of a person on Exit Control List---Scope---Where the Government proposed to place the name of any person on Exit Control List and there were circumstances, which justified that such grounds were not to be disclosed in the public interest, then there had to be recorded finding giving justification for not disclosing the reasons to withhold such grounds "in the public interest"---Where there was no public interest, Government could not exercise any power to withhold the ground, therefore, it could not be said that in terms of S.2(3) of Exit from Pakistan (Control) Ordinance, 1981, Government had unfettered or unbridled authority to withhold the reason or ground under any and every circumstance.

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

----Ss. 2 & 3---Constitution of Pakistan, Art. 199---Constitutional petition---Non-disclosure of grounds for placing name of a person on Exit Control List---Scope---Name placed on Exit Control List on account of a private dispute---Legality---Name of petitioner was placed on Exit Control List without specifying any ground for doing the same---Petitioner contended that his name had been placed on the said List on the recommendation of Ministry of Finance as he owed some money to a private company---Validity---Right of petitioner to be heard before placing his name in Exit Control List had been specifically taken away from him in terms of S.2(2) of Exit from Pakistan (Control) Ordinance, 1981, but it did not take away his right to be informed of the reasons for placing his name in the said List---Allegedly there was a private dispute between the petitioner and a private company and almost one year had passed but no substantial material or information was placed before the court---Any claim or dispute of any person or entity could be established and enforced through civil and/or criminal proceedings but private parties could not be allowed to use the Exit from Pakistan (Control) Ordinance, 1981 to settle personal scores---Even Exit from Pakistan (Control) Rules 2010, framed under section 5 of the Exit from Pakistan (Control) Ordinance, 1981 did not authorize the Federal Government to place name of any person on the Exit Control List, who was indulged in a private dispute---Constitutional petition was allowed and impugned order, by which name of petitioner was put on Exit Control List, was set aside.

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

----Preamble---Application of General Clauses Act, 1897---Scope---Provisions of General Clauses Act (X of 1897) were to be read as part of every federal statute, reasons being to abridge the statute and maintain precision and to avoid verbosity in any enactment.

Ismat Mehdi for Petitioner.

Muhammad Ashraf Mughal, D.A.G.

P L D 2013 Sindh 190

Before Sadiq Hussain Bhatti, J

STATE/ANF through Deputy Director (Law)---Appellant

Versus

Mst. MEHWISH SULTANA and another---Respondents

Special Criminal Appeal No.37 of 2009, decided on 8th November, 2012.

Prevention of Smuggling Act (XII of 1977)---

----S. 31---Property suspected to be acquired by smuggling---Restriction imposed on such property after issuance of notice under S.31 of Prevention of Smuggling Act, 1977---Non-issuance of notice to person having title over such property---Effect---Release/unfreezing of property---Subject property was booked and purchased by mother of the respondent in the year 1993 and later on same was gifted to the respondent---Subject property was registered on 6-10-1996, whereas notice under S.31 of Prevention of Smuggling Act, 1977, imposing restriction over said property was issued by the court on 10-10-1996---Respondent party submitted application before Trial Court to release the property, which application was accepted and property was accordingly released---Validity---Notice under S.31 of Prevention of Smuggling Act, 1977 had been issued upon the accused and his associates but not upon the mother of respondent---Serving of said notice upon mother of respondent was not only mandatory but also practical since she was the registered title owner at that time---Prosecution had not been able to establish any links or business between the accused and his associates on one hand and the company, which sold the property to the respondent party, on the other---Prosecution had sufficient time to collect tangible evidence to connect the respondent, respondent's mother and company which sold the property to the respondents with the accused and his associates, but same was not done---Prosecution had also not collected any evidence to prove that respondent or her mother were involved in drug smuggling business or that they had purchased subject property through ill-gotten money or any other illegal source, therefore it could not be assumed that mother of respondent did not have sufficient sources to purchase the subject property---Appeal was dismissed in circumstances.

PLD 2006 Kar. 25 ref.

Hussain Bux Baloch, Special Prosecutor for ANF.

Bashir Ahmed for Respondents.

Date of hearing: 23rd October, 2012.

P L D 2013 Sindh 194

Before Mushir Alam, C J

Mst. MARIUM HAYAT---Petitioner

Versus

AHMED SAROOSH and 2 others---Respondents

Constitutional Petition No.S-154 of 2012, decided on 16th May, 2012.

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

----S. 476---Perjury---Cognizance of offence---Principle---All courts that are empowered to record evidence, may it be in the exercise of civil, criminal, or revenue jurisdiction have independent jurisdiction to take cognizance of perjury committed in any proceedings before it---If offence of perjury is committed before more than one judicial forum or court, each judicial forum or court is competent to take cognizance in its own right---Cognizance of perjury by one court does not regulate or affect cognizance or otherwise of the offence by any other judicial forum or court.

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

----S. 5, Sched.---Penal Code (XLV of 1860), Ss.193, 468 & 220---Criminal Procedure Code (V of 1898), Ss.195, 476 & 476-A---Constitution of Pakistan, Art.199---Constitutional petition---Perjury---Cognizance, taking of---During proceedings in suit for recovery of dowry articles filed by wife, husband relied upon certain receipts of gold ornaments which the jeweller denied to have issued---Wife filed application for initiation of proceedings against husband for giving false evidence before Family Court---Family Court as well as Lower Appellant Court declined to initiate proceedings of perjury against husband---Validity---Family Court was categorized as Civil Court, empowered to record evidence, thus Family Court being Civil Court could take cognizance under Ss.195 and 476, Cr.P.C. which provisions were a check on litigant and parties---Such provisions armed the courts with authority to commit any person who had misled court by producing perjured evidence---Courts exercising civil, criminal or revenue jurisdiction were competent to try offence punishable under numerous provisions of Penal Code, 1860, enumerated therein including S.193, P.P.C. (punishment for giving false evidence), when such offence was alleged to have been committed in or in relation to any proceedings in any court which was competent to take cognizance---When any person dared to give false evidence in any court competent to record evidence, would expose himself to be committed for perjury---High Court set aside orders passed by Family Court and Lower Appellate Court and application under Ss.193/468/220, P.P.C. filed by wife was granted---High Court directed the Family Court to take cognizance of the offence, try the same itself an/or forward the same to the court having jurisdiction in terms of S.476-A, Cr.P.C.---Petition was allowed accordingly.

Hakim Muhammad Ahmed v. Shaheen Bibi and others 1991 PCr.LJ 1879 H. Munawar Ali v. Mst. Sarwar Bano ;1989 MLD 4654; Abdullah Tang v. Saleem Saba and another 2001 PCr.LJ 1976; Dr. Raees Farhan Mushtaq and another v. Mst. Naheed alias Mona and 3 others 1996 MLD 1749; Naila Junaid v. Additional District Judge and 2 others 2005 MLD 834; Abdul Hafeez v. The State PLD 1981 SC 352 and Syed Essa Noori v. Deputy Commissioner, Turbat and 2 others PLD 1979 Quetta 188 ref.

Amir Saleem and Habib Ahmed for Petitioner.

M. Waheed Kazi for Respondent No.1.

Date of hearing: 16th May, 2012.

P L D 2013 Sindh 203

Before Aqeel Ahmed Abbasi and Farooq Ali Channa, JJ

Mrs. FOZIA SULTANA---Petitioner

Versus

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

Constitutional Petitions Nos.D-2920, 2921, 2922, 2924, 2925, 2926, 2928, 3087, 3088, 3089, 3090, 3138, 3139 of 2012, decided on 25th September, 2012.

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

----Ss. 9(4) & 6---Control of Narcotic Substances Act (XXV of 1997), S.9---Criminal Procedure Code (V of 1898), S.382-B---Constitution of Pakistan, Art.199---Constitutional petition---Pakistani nationals/ convicts found in possession of heroin in a foreign country---Sentences imposed by foreign court on convicts not compatible with the relevant law of Pakistan---Transfer of said convicts to Pakistan to serve out their sentences---Convicts having already undergone maximum sentence of imprisonment had they been convicted under the relevant law of Pakistan---Effect---Convicts (petitioners) were arrested in a foreign country on charges of possessing heroin and were subsequently sentenced to life imprisonment by the competent court of said foreign country---Convicts fulfilled conditions of S.6 of Transfer of Offenders Ordinance, 2002 and were deported and jailed in Pakistan in terms of S.9 of the said Act---Contentions of convicts were that on calculation of their detention period, remissions under the law of Pakistan and the benefit of S.382-B, Cr.P.C, they had already served out a sentence which was more than the maximum period of imprisonment that could be imposed on them had they been convicted under Pakistani law i.e. S.9 of Control of Narcotic Substances Act, 1997; that according to the law of the foreign country in question sentences awarded to all convicts was life imprisonment, irrespective of the quantity of heroin recovered, which was incompatible with the sentences that could be awarded under S.9 of Control of Narcotic Substances Act, 1997, and that they were also entitled to remissions under the Pakistan Prisons Code (Jail Manual) including benefit of S.382-B, Cr.P.C, which benefit was not provided in the law of the foreign country in question---Anti Narcotics Force had no objection to the contention of the convicts but contended that under provisions of Control of Narcotic Substances Act, 1997, offenders, besides sentence of imprisonment were also liable to fine, therefore, provisions of Transfer of Offenders Ordinance, 2002 should be applied in toto and not in piece-meals---Validity---Section 9(4) of Transfer of Offenders Ordinance, 2002 provided that sentence awarded to a citizen of Pakistan in a foreign country should be compatible to the law of Pakistan and consequently a court of competent jurisdiction in Pakistan could adopt the sentence, however, the same should correspond as far as practicable to the sentence imposed by the foreign court---All the present convicts were sentenced to imprisonment for life, without considering the quantity/weight of heroin allegedly recovered from each of them, therefore, such sentences were not compatible to the sentences which could have been awarded under the law of Pakistan i.e. S.9 of Control of Narcotic Substances Act, 1997---All convicts had already undergone the maximum sentence of imprisonment including imprisonment in lieu of any unpaid fine---Giving benefit of remissions to the convicts that they could have earned in both the countries including benefit under S.382-B, Cr.P.C, their sentences were reduced to one already undergone by them---Constitutional petitions were allowed and all convicts were directed to be released.

Imran Ali v. Province of Sindh 2007 PCr.LJ 1364; Akif Shoaib and others v. Province of Sindh and others PLD 2011 Kar. 633; Muhammad Iqbal v. Province of Sindh and 2 others PLD 2011 Kar. 32; Shakeel Ahmed Siddiqui v. Province of Sindh and others C.Ps. Nos.1416/1419 of 2006 and Muhammad Sarwar v. Province of Sindh C.P.No.1050 of 2009 ref.

Javed Iqbal Burqi and Younus Shad for Petitioners (in C.Ps. Nos.D-2920, 2921, 2922, 2924, 2925, 2926, 2928, 3087, 3088, 3089 and 3090 of 2012).

Imran Rana for Petitioners (in C.Ps. Nos. D-3138 and 3139 of 2012).

Saifullah, A.A.G. for Respondents.

Hussain Bukhsh Baloch, Spl. Prosecutor ANF.

Dilwar Hussain, Standing Counsel.

Akhtar Rehanan, Addl. P.G.

Imdad Mirza Dep. Superintendent Central Prison, Karachi and Mrs. Abida Samir, D.S.S.P. Women, Karachi along with custody.

Date of hearing:19th September, 2012.

P L D 2013 Sindh 209

Before Syed Muhammad Farooq Shah, J

DANISH---Petitioner

Versus

Mst. FOZIA DANISH and another---Respondents

Constitutional Petition No.S-758 of 2012, decided on 11th December, 2012.

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 7(6)---Constitution of Pakistan, Art. 199---Constitutional petition---Re-marriage---Parties were husband and wife inter se and their marriage had been dissolved on the basis of Khula, vide ex parte decree dated 7-11-2009---Plea raised by parties was that suit for dissolution of marriage was filed on misunderstanding and both of them wanted to re-marry without intervening marriage (Hallala)---Validity---Approved mode of divorce, under Muslim Family Laws Ordinance, 1961, was by one "Talaq" and such mode was obligatory for husband to divorce by one mode of "Talaq" other than "Talaq-e-Ahsan"---Couple could remarry without any intervening marriage except where wife had been divorced thrice and third divorce had become effective and only in that case they could not remarry without "Hallala"---All divorces were revocable under S.7(6) of Muslim Family Laws Ordinance, 1961---High Court allowed reunion of parties after revival of "Nikkah" particularly when wife was willing to live again with her husband and to perform her matrimonial conjugal rights within the limits ordained by the Holy Quran and Sunnah---Petition was allowed in circumstances.

Gulzar Hussain v. Mst. Mariam Naz 2000 MLD 447; Fazal-e-Subhan v. Mst. Sabreen PLD 1003 Pesh. 169; Interpretation from Bhihshti Zaivar authored by Moulana Ashraf Ali Thanvi, Marhoom; Fatwas (Islamic Verdicts) of Mufti Saifullah Haqani of Jamia Darul Uloom Haqania Akora Khattak; Muhammad Ayoub Khan v. Mst. Shehla Rasheed PlD 2010 Kar. 131; Majmua-e-Qawaneen-e-Islam Vol II, Qanun-e-Talaq by Justice Tanzeel-ur-Rehman and Renowned Book "Hedaya" by Charles Hamilton, 1975, p.107 rel.

Nafees Ahmed Qureshi for Petitioner.

Muhammad Irfan Rajput for Respondents.

Ch. Bashir Ahmed, Asstt. A.G.

Date of hearing: 5th December, 2012.

P L D 2013 Sindh 214

Before Farooq Ali Channa, J

GHULAM RASOOL---Applicant/Complainant

Versus

THE STATE---Respondent

Criminal Revision Application No.S-78 of 2012, decided on 4th December, 2012.

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

----Ss. 342 & 493---Power of Trial Court to examine accused--- Complainant proposing question to be asked from the accused in terms of S.342, Cr.P.C---Scope---Counsel privately instructed to be under direction of Public Prosecutor---Scope---Complainant/applicant filed application before Trial Court proposing a question to be put to accused in his statement under S.342, Cr.P.C, as in the opinion of complainant proposed question was essential to confront the accused with incriminating piece of evidence against him---Trial Court declined said application of complainant after concluding that questions put up to the accused during his examination under S.342, Cr.P.C covered the question proposed by the complainant---Validity---Under S.342, Cr.P.C it was for the Trial Court to put such questions, while examining the accused, which it considered necessary---Question proposed by complainant could not be put to the accused, if the Trial Court considered the same to be unnecessary---Trial Court had considered the question proposed by complainant and came to the conclusion that same was covered by the questions put up to accused during his examination under S.342, Cr.P.C---Even otherwise application moved before Trial Court for adding proposed question in statement of accused under S.342, Cr.P.C was moved by the counsel for complainant without consent of Public Prosecutor, who in terms of S.493, Cr.P.C was in charge of the case---By-passing authority of Public Prosecutor was against the spirit of S.493, Cr.P.C---Revision application was dismissed in circumstances.

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

----S. 493---Counsel privately instructed to be under direction of Public Prosecutor---Scope---Any private counsel engaged (by complainant) could only assist the Public Prosecutor, thus filing of any application, by-passing/without the authority of Public Prosecutor was against the spirit of section 493, Cr.P.C.

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

----Ss. 342---Power of Trial Court to examine accused---Complainant proposing question to be asked from the accused in terms of S.342, Cr.P.C---Scope---Under S.342, Cr.P.C it was for the Trial Court to put such questions, while examining the accused, which it considered necessary--- Question proposed by complainant could not be put to the accused, if the Trial Court considered the same to be unnecessary.

Zuber Ahmed Rajput For Applicant/Complainant.

Sardar Ali Shah, A.P.G.

P L D 2013 Sindh 217

Before Farooq Ali Channa, J

AHMED and another---Petitioners

Versus

REHMAT ALI and others---Respondents

Civil Revision No.88 of 2011, decided on 17th December, 2012.

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

----O.XLI, R.23---Remand of case---Appellate Court---Pre-condition---Powers have been conferred upon the court of first appeal to remand case to Trial Court, if suit has not been disposed of upon preliminary point and has omitted to try any material issue of fact.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1998), O.XLI, Rr.23 & 24---Suit for declaration and injunction---Remand of case---Judgment and decree passé by Trial Court was twice set aside by Lower Appellate Court and matter was remanded to Trial Court for decision afresh---Validity---Lower Appellate Court framed eight points for determination and decided the same after detailed discussion/finding on each point, however, while concluding remanded the case to Trail Court---Such observation in detail on each point could cause prejudice to any party and might influence Trial Court and the same should have been avoided---High Court set aside judgment passed by Lower Appellate Court and with consent of parties remanded the matter to Lower Appellate Court for decision afresh on appeal---Revision was allowed accordingly.

Soomardas R. Parmani for Applicant.

Mian Abdul Salam Arain for Respondents Nos. 1-A to 1-D.

Agha Athar Hussain Pathan, A.A.G.

P L D 2013 Sindh 220

Before Aftab Ahmed Gorar, J

MUHAMMAD SHAHID KHATTAK and another---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos.222 and 223 of 2012, decided on 15th November, 2012.

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

----S. 173---Penal Code (XLV of 1860), Ss.161/34---Prevention of Corruption Act (II of 1947), S.5(2)---Public servant taking gratification other than legal remuneration in respect of an official act, common intention, criminal misconduct---Power of Trial Court to disagree with police report/challan---Scope---Report submitted under S.173 recommended disposal of case---Trial Court disagreed with the said report and directed for submission of final charge-sheet---High Court set aside impugned order of Trial Court and directed the same to pass fresh order on the final report---Trial Court again disagreed with the report under S.173, Cr.P.C. and took cognizance against the accused persons---Accused persons contended that present case was registered without conducting any trap proceedings and that no permission or sanction was obtained from the competent authority for submitting challan---Validity---Trial Court was not bound by the report submitted by police under S.173, Cr.P.C. and it might or might not agree with the conclusions reached by investigating officer---Judicial Magistrate was deputed to supervise the trap proceedings and accordingly arrived at the pointed place along with the complainant and mashir---Objection regarding obtaining of permission from competent authority before submitted challan had not been raised by accused persons when order of trial Court was impugned for the first time before the high Court---No irregularity or illegality was found in the order passed by Trial Court---Application was dismissed accordingly.

PLD 2002 Kar. 464 and 1989 P.Cr.LJ 1361 distinguished.

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

----S. 173---Power of Magistrate to disagree with police report/challan---Scope---Magistrate was not bound by the report submitted by police under S.173, Cr.P.C. and he may or may not agree with the conclusions reached by investigating officer---Magistrate was only required by law to apply his independent mind to the material placed before him and form his own opinion about the matter.

2005 PCr.LJ 560 and 2004 PCr.LJ 1023 rel.

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

----Ss. 190 & 173---Cognizance of offence taken by Magistrate after disagreeing with police report/challan---Scope---Magistrate could taken cognizance of a case under S.190, Cr.P.C. in spite of police report (to the contrary).

Fiaz H. Shah for Applicant.

Zahoor Shah, A.P.G. for the State.

Date of hearing: 8th November, 2012.

P L D 2013 Sindh 223

Before Syed Muhammad Farooq Shah, J

DOULAT---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.S-206 of 2003, decided on 20th December, 2012.

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

----S. 164---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Confessional statement---Handing over of accused to same police officer---Accused was convicted and sentenced by Trial Court on the basis of retracted confessional statement---Validity---After recording of confessional statement, Magistrate sent the accused to judicial custody through same police officer who brought him for confession---Such act of handing over accused to same police officer had detracted from sanctity of judicial confession as voluntarines of judicial confession which was essential pre requisite, had become doubtful in circumstances.

Muhammad Pervez and others v. The State and others 2007 SCMR 670), Muhammad Ibrahim v. The State PLD 2000 Kar. 128 and 1984 PCr.LJ 611 rel.

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

----S. 302(b)---Criminal Procedure Code(V of 1898), S.103---Qatl-e-amd---Appreciation of evidence---Benefit of doubt---Motive, proof of---Recovery--Accused was convicted on the basis of retracted confessional statement and he was sentenced by Trial Court for committing Qatl-e-amd---Validity---Two different version of motive were taken by prosecution, first motive of causing murder was that deceased being uncle of accused had developed illicit relations with his wife and when accused found them in objectionable condition, he accused murder but his wife ran away and wife of accused was not examined by prosecution to support the version of motive---Another motive as disclosed by prosecution witnesses was that there was criminal case prior to the incident, in which deceased was involve din murder of a female relative of accused but nothing had been brought on record in such respect---Both Mahirs/marginal witnesses did not support Mashirnama of place of occurrence, arrest and recovery; there was also non-compliance of S.103, Cr.P.C. as police did not examine any inhabitant of locality to witness recovery, arrest and place of incident etc.---Even single doubt was sufficient for extending benefit to accused---For extending benefit of doubt, it was snot necessary that there should be many circumstances creating doubt and if there was one circumstance which could create reasonable doubt in a prudent mind about guilt of accused, then accused was entitled to benefit not as a matter of grace and concession but as a mater of right---high Court set aside conviction and sentence awarded to accused and he was acquitted of the charge, as prosecution failed to prove the case---Appeal was allowed in circumstances.

Iftikhar Ahmed Dar and another v. The State 1997 PCr.LJ 2026, Sobho and 2 others v. The State PLD 2004 Kar. 8; Muhammad Arif v. The State 2005 YLR 1065; Bullando and others v. The State 2011 PCr.LJ 1682; Liauat Ali v. The State 2008 SCMR 95; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Muhammad Arif v. The State 2010 SCMR 1122; Muhammad Rafiq v. The State 2009 YLR 1279; Saeedullah alias Bacha v. The State 1988 PCr.LJ 19; Falak Sher v. The State 1989 PCr.LJ 2107; Muhammad Abbas v. The State 2007 YLR 45; Allah Ditta v. The State 2006 PCr.LJ 84; Muhammad Nawaz and another v. The State 2009 PCr.LJ 506; Muhammad Ramzan and another v. The State 2009 PCr.LJ 533; Muhammad Pervaiz v. The State 2006 PCr.LJ 221; Khalid Mehmood and others v. The State 2011 SCMR 664 and Allah Bakhsh v. Shammi and others PLD 1980 SC 225 ref.

(c) Criminal trial---

----Motive of enmity---Scope---Enmity is double edged weapon if prompts one to cause harm to his adversary, the same can be a factor with other to rope in him falsely.

Gurgage through Miss Nasira Shaikh for Appellant.

Shahzada Saleem Nahyoon,A.P.G. for Respondent.

Date of hearing: 20th December, 2012.

P L D 2013 Sindh 232

Before Irfan Saadat Khan and Aftab Ahmed Gorar, JJ

MUHAMMAD HANIF---Petitioner

Versus

STATION HOUSE OFFICER, P.S. RAJO KHANANI, DISTRICT BADIN and 2 others---Respondents

Criminal Miscellaneous Application No.D-90 of 2013 in MA No.1757 of 2012, decided on 7th February, 2013.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.494, 34 & 506-A---Marrying again during life-time of husband and wife, common intention, criminal intimidation---Quashing of proceedings, petition for---Respondent had leveled allegation that during subsistence of his Niakh with his wife---She had contracted marriage with the accused, but she denied such allegation---Investigating Officer, who was fully in knowledge about the matter, failed to discharge his duties in connection with investigation of the case---Investigating Officer while submitting challan also failed to produce entire material before the Magistrate including Nikahnama, statement of wife (Co-accused) and order of High Court, whereby the respondent could initiate legal proceedings against wife before appropriate court---Investigating Officer, was supposed to record the statements of wife (co-accused), Nikahkhawan as well as Nikah Registrar to arrived at the right conclusion of the matter---Only the Family Court, was competent to decide the question of validity of marriage etc.---Respondent ought to have approached the Family Court, but he with mala fide intention, cooked up the story and registered, false F.I.R.---Case was a fit one for quashing of proceedings as continuance of trial would be abuse of process of the court.

Mst. Hameeda v. The State 2007 MLD 1700 and Muhammad Bashir v. Muhammad Usman and others 2003 SCMR 1339 ref.

Ghulamullah Chang for Petitioner.

Muhammad Aslam Sipio for Respondent No.3 alongwith Respondent No.3.

Allah Bachayo Soomro Addl. A.G. Sindh along wtih Investigation Officer, SIP Ghulam Akber Chhalgri, P.S. Rajo Khanani.

Date of hearing: 7th February, 2013.

P L D 2013 Sindh 236

Before Ahmad Ali M. Shaikh and Salahuddin Panhwar JJ

SALAHUDDIN DHARAJ---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Local Government Department and 4 others---Respondents

Constitutional Petition No.D-688 of 2012, decided on 7th August, 2012.

(a) Administration of justice---

----Dispensation of justice not being function of court alone, rather public functionaries for being trustees of public power equally responsible to act fairly and legally---Principles.

Dispensation of justice is not alone the function of the court, but public functionaries are equally responsible to act fairly and keeping in view the law, relevant rules, regulations, notifications or the policy etc., because the public functionaries are the trustees of the public power, hence are required to act accordingly.

(b) Constitution of Pakistan---

----Arts. 184 & 199---Public interest litigation---Scope.

It is not always that each and every affected person has to the courage and resources to approach the court challenging the vires, implication or ramification of law, rules etc., by an authority.

Public interest litigation can now be initiated not only by filing formal petition in court, but even by writing letters of applications. A person can invoke jurisdiction of superior courts as probono publico provided he shows that he has approach the court in the public interest and for the public good and for the welfare of the general public.

Any person can bring any issues before the court, which is related to the public functionaries and its work affecting general public.

High Court, being the custodian and guardian of the fundamental rights of every single individual cannot be hoped to shut its eyes and let illegal and mala fide exercise of powers and jurisdiction by an authority go unchecked more particularly where the same is alleged to have been at the cost of rules, procedure, regulations and notifications.

State v. M.D. Wasa and others 2000 CLC 471; Federation of of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; Saiyid Abul A'la Maudoodi and others v. The Government of West Pakistan through Secr3tary to Government of West Pakistan, Home Department, Lahore PLD 1964 (W.P.) Kar. 478 and PLJ 2001 Kar. 131 ref.

Khurram Khan, Advocate v. Government of Punjab through Chief Secretary and 6 others PLD 2009 Lah. 22; Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 Supreme Court 482; Ardeshir Cowasjee and 11 others v. Sindh Province and others 2004 CLC 11353(?) and Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious affairs 2011 SCMR 1621 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition challenging policy---Maintainability---Policy could be challenged, if same being in conflict with law or violation of fundamental rights of a citizen.

Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious affairs 2011 SCMR 1621 rel.

(d) Administration of justice---

----Thing required to be done in a particular must be done in such way and not otherwise.

(e) Notification--

----Conditions essential for a valid notification being its issuance by an authority having power under law and its publication in official gazette.

PLD 2006 Kar. 536 ref.

Mir Ghulam Sarwar and 2 others v. Provincial Government through Chief Secretary and others 2009 CLF 72 rel.

(f) Public functionaries---

----Public functionaries---Not permitted to use power in an illegal manner---Principles.

Public functionaries cannot be permitted to use their power, jurisdiction and authority in any other manner except as required by law, procedure, policy and natural justice more particularly when there is apprehension of infringement of rights, interest and claims of the people at large, because the development schemes which involved huge public exchequer are always meant and processed for the benefit of people at large, hence exercise of power by a public functionaries causing prejudice to rights, interest and claims cannot be allowed to go unchecked.

Mukesh Kumar G. Karara for Petitioner.

Bhajandass Tajwani and Manoy Kumar Tejwani for Respondent No.4.

Zulfiqar Ali Sangi for Respondent No.5.

Imtiaz Ali Soomro, A.A.G.

P L D 2013 Sindh 245

Before Abdul Rasool Memon, J

MUHAMMAD ISHAQUE QURESHI---Petitioner

Versus

ZAHIR HUSSAIN JAFRI and 2 others---Respondents

Constitutional Petition No.S-612 of 2012, decided on 14th January, 2012.

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

----S. 15(2(ii)---Ejectment petition---Default in payment of rent of demised premises by tenant---Tenant's plea was that after refusal of landlord to receive rent for October and November, 2008 sent through money order on 27-11-2008, he deposited same in court on 6-2-2009---Validity---Default in payment of rent since October, 2008 as alleged by landlord's attorney during his evidence made the tenant liable to prove its offer to landlord personally and his refusal to receive same---Landlord's attorney had denied tendering of rent for disputed period through money order---Copies of money order coupons produced by tenant did not prove delivery thereof to landlord and his refusal to receive same---Tenant during crossexamination had admitted that rent sent through money order was for month of November, whereas he had failed to prove payment of rent for October, 2008---Tenant in his evidence had admitted not to have issued notice to landlord regarding deposit of rent in court---Deposit of rent from October, 2008 to February 2009 in court on 6-2-2009 would establish that rent for October, November and December, 2008 had been deposited beyond sixty days after same having become due---Tenant could not change mode of payment of rent without proving refusal of landlord to accept rent by tender or through money order, otherwise his such conduct would be termed as contumacious and would operate as an act of harassment---Ejectment petition was accepted in circumstances.

Shahzad v. Mst. Kulsoom 2009 YLR 2166; Abdul Fayyaz Khan v. IIIrd Additional District Judge, Karachi South 2012 CLC 793; Javed Ahmad v. Muhammad Imran Malak PLD 2011 Isl. 30; Malak Muhammad Ramzan v. Messrs General Iron Stores and others 1995 SCMR 1125; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925; Raees Ahmed Pasha v. Kamaluddin and others 2004 MLD 587; Messrs F.K. Irani & Co. v.Begum Feroze 1996 SCMR 1178; Abdul Qadeer v. S. Azeemuddin Ahmad 1987 CLC 2347; Ghualm Nabi and another v. T. Ismail 2000 MLD 186; Mirza Yawar Baig v. Usman Ghani Chippa 1989 CLC 247 and Muhammad Amin v. Ghulam Muhammad Dossal 1987 CLC 1777 ref.

Muhammad Asif v. Shaikh Israr 2008 SCMR 1872 rel.

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

----S. 15---Ejectment petition---Bona fide personal need by landlord---Appearance of landlord's attorney in witness box in support of the need---Scope---Landlord instead of appearing himself in witness box could prove such ground by examining his attorney---Non-appearance of landlord and his representation through attorney would not be fatal to his case---Principles.

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

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

----Ss. 15(2) & 15-A---Ejectment petition---Bona fide personal need by landlord---Tenant's plea was that landlord was suffering from brain tumor and could not run business in demised shop while his sons were settled abroad---Proof---Deposition of landlord's attorney recorded in court was in conformity with landlord's version pleaded in ejectment petition and could not be shaken during his cross-examination by tenant---Possession of demised shop could be restored to tenant in case of failure of landlord to occupy same personally---Landlord's attorney had denied tenant's suggestion that landlord due to brain tumor could not work on demised shop---Landlord's claim was based on honesty and sincerity---Ejectment petition was accepted in circumstances.

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

----S. 15(2)---Ejectment petition---Bona fide personal need by landlord---Tenant's plea was that landlord having other properties had not led evidence to show as to why demised shop was suitable for his business---Validity---Selection of business place out of several properties being a sole prerogative of landlord, no restriction could be enforced upon him as to his choice of demised shop.

Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 rel.

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

----S. 15---Ejectment petition---Bona fide personal need by landlord---Tenant's plea to have obtained possession of demised shop from previous tenant on payment of Pagri---Failure of tenant to produce documentary evidence or examine previous tenant in support of such plea---Validity---Mere plea of pagri would not disentitle landlord to seek eviction of tenant on ground of personal need---Such plea was repelled in circumstances.

Raees Ahmed Pasha v. Kamaluddin and others 2004 MLD 587 rel.

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

----Ss.15---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Ejectment proceedings---Constitutional jurisdiction of High Court could not be invoked to substitute another appeal against such order, Appellate Court being a final authority under Sindh Rented Premises Ordinance, 1979.

Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 rel.

Hamid Idrees for Petitioner.

Azizur Rehman Akhund for Respondent No.1.

Date of hearing: 19th November, 2012.

P L D 2013 Sindh 254

Before Muhammad Ali Mazhar, J

TRADING CORPORATION OF PAKISTAN (PVT.) LTD., KARACHI---Plaintiff

Versus

Messrs ABDULLAH SUGAR MILLS LIMITED (DEPALPUR) and others---Defendants

Suits Nos.774, 798 and 836 of 2011 and C.M.As. Nos. 11345, 11613 and 11497 of 2011, decided on 18th January, 2013.

Arbitration Act (X of 1940)---

----S. 34---Stay of proceedings---Principles---Arbitration agreement---Suit for recovery of money---Defendants filed application for stay of proceedings and referring the matter to arbitration---Validity---Stay of legal proceedings could be obtained under S.34 of Arbitration Act, 1940, but in order to invoke such provision, it was necessary that there must be an arbitration agreement in existence; legal proceedings must have been started by a party to the agreement; proceedings must be with respect to matter agreed to be referred to arbitration; application for stay must have been filed before filing written statement or taking any step in proceedings; and party asking for stay must be ready and willing to do all things necessary to proper conduct of arbitration-Application under S.34 of Arbitration Act, 1940, could merit rejection, when in the application there was no averment that applicant was ready and willing to have dispute settled through arbitration---No obligation on court to necessarily refer dispute to arbitration but it gave the court discretion to stay proceedings, if it was satisfied that there was no sufficient reason as to why matter should not be referred to in accordance with arbitration proceedings---Legal proceeding which was sought to be stayed must be in respect of matter which parties had agreed to refer and the same was within the terms of arbitration agreement---Before order for staying of suit could be made under S.34 of Arbitration Act, 1940, it must be established that suit had been instituted in respect of matter agreed to be referred---Where suit had commenced as to the matter which was outside the submission, the court was competent to refuse the stay---Court under S.34 of Arbitration Act, 1940, could stay a suit and could also exercise its jurisdiction to entertain the suit for adjudication of claim of parties containing arbitration clause and could also consider whether exercise of such discretion in particular case would be judicious and reasonable---High Court declined to stay proceedings and directed defendants to file written statements---Application was dismissed in circumstances.

Mrs. Rubby Hameedullah and others v. Dr. Arif and others 2010 YLR 331; Sqn. Ldr. (R.) Khurram Zaman v. Mrs.Afia Zafar and others 2008 CLD 662 and Dar Okaz Printing and Publishing Ltd. Liability Company v. Printing Corporation of Pakistan Private Ltd. PLD 2003 SC 808 distinguished.

Novelty Cinema Layllpur v. Firdaus Films and another PLD 1958 (W.P.) Lah. 208; Maganlal Jhawar and others v. Messrs M.R. Khan and Co. (Jute) Ltd. PLD 1968 Dacca 361; Syed Arshad Ali v. Sarwat Ali Abbasi 1988 CLC 1350; Messrs Eckhardt and Co. Marine GmbH v. Muhammad Hanif PLD 1993 SC 42 and Halsbury's Laws of England pp.255-256, 4th Edn., Vol. 2 ref.

Syed Mamnoon Hassan for Plaintiff.

Ali Sibtain Fazli for Defendants.

Date of hearing: 17th October, 2012.

P L D 2013 Sindh 264

Before Aziz-ur-Rehman, J

TRUSTEES OF THE PORT OF KARACHI through Chairman, KPT---Plaintiff

Versus

Messrs N.K. ENTERPRISES through Partner---Defendant

Suit No.1254 of 2003, decided on 13th February, 2013.

(a) Karachi Port Trust Act (VI of 1886)---

----Ss. 43, 43(A) & 43(B)---Notification altering scales of tolls, rates, dues and charges for services provided at port by Karachi Port Trust Board---Validity---Such notification would have no force of law or binding effect, unless published in official Gazette after sanction of Federal Government---Such notification, if published in official Gazettee after sanction of Federal Government, would have force of law and binding effect from date of its publication, but not from date of its sanction or prior thereto---Notification could not be given retrospective effect so as to override prevailing rates of charges or otherwise cause a disadvantage to a beneficiary thereof vis-a-vis existing vested rights.

Sheikh Fazal Ahmed and another v. Claims Commissioner, Lahore PLD 1964 SC 494 and Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others 1992 SCMR 1652 rel.

(b) Notification---

----Notification could not be given retrospective effect lest for taking away vested rights accrued.

Sheikh Fazal Ahmed and another v. Claims Commissioner, Lahore PLD 1964 SC 494 and Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others 1992 SCMR 1652 rel.

Muhammad Sarfraz Sulehri for Plainitiff.

Nemo for Defendant.

Date of hearing: 6th February, 2013.

P L D 2013 Sindh 277

Before Muhammad Ali Mazhar, J

LUCKY ENTERPRISES, GOODS FORWARDING AGENCY through Proprietor---Plaintiff

Versus

Messrs ZEAL PAK CEMENT FACTORY LTD. through Chairman/Managing Director---Defendant

C.M.A. No.9050 of 2011 in Civil Suit No.218 of 2011, decided on 15th February, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, R.10---Return of plaint---Forged documents, determination of---Principe---Suit for recovery of money was filed at place "K" and defendant company sought return of plaint on the ground that courts at place "H" had territorial jurisdiction over the matter---Plea raised by defendants was that receipts attached by plaintiff with plaint were forged---Validity---"For the purpose of determining application under O.VII, R.10, C.P.C., contents of plaint were to be taken on their face value---Question of return of plaint must be determined on the basis of allegations made in plaint---Plaintiff's choice to sue defendant was circumscribed by two conditions i.e. place where cause of action accrued and the place where defendant resided or was carrying on business or personally worked for gain---Discretion under O. VII, R.10, Cr.P.C. had been given to court to return plaint at any stage of the suit for presentation before proper court---Court which had no jurisdiction over a suit could not pass any judicial order in such a suit except orders which statute had empowered it to pass---When court found that it had no jurisdiction to try the suit, it should return the plaint for presentation before appropriate court having jurisdiction---Allegation that plaintiff had manipulated and forged few documents, such aspect could only be decided after evidence and no definite finding could be given at such stage and preview of plaint adverting that no case of return of plaint was made out---Head office of defendant company was situated at place "K" therefore, plaintiff's suit was maintainable and court had ample jurisdiction to try and dispose of the same---Application was dismissed in circumstances.

Ismat Asad v. Pakistan Oxygen Ltd. and another 2010 CLC 1226 distinguished.

Muhammad Naveed Aslam and others v. Mst. Aisha Siddiqui and others PLD 2010 Kar. 261; Murlidhar P.Gangwani (Engineer) v. Engineer Aftab Islam Agha and others 2005 MLD 1506; Haji Riaz Ahmad v. Messrs Habib Bank Ltd. 2012 CLC 507; 2011 CLC 1176 and 2010 CLD 760 ref.

Muhammad Ikram Siddiqui for Plaintiff.

Akhtar Hussain for Defendant.

Date of hearing: 11th December, 2012.

P L D 2013 Sindh 285

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

Syed MUZAHIR HUSSAIN QUADRI---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

C.P. No.D-2061 of 2009, decided on 14th April, 2011.

(a) Constitution of Pakistan---

----Art.199(1)(b)(ii)---Quo warranto, writ of---Essential conditions for issuance stated.

In order to challenge the occupation of the public office, the petitioner must have rights in present and secondly the person whose appointment is challenged must be holding office when the petition is brought before this Court and thirdly such person is not qualified to hold such office.

In the present case, the respondent was not holding any public office at the time when the present petition was brought to High Court, therefore, writ of quo warranto on this ground alone failed and was dismissed.

Capt. Retd. Muhammad Naseem Hijazi v. Province of Punjab 2000 SCMR 1720 rel.

(b) Pharmacy Act (XI of 1967)---

----Ss. 26 & 34---Constitution of Pakistan, Arts. 5 & 199---Constitutional petition---Notification issued by Provincial Pharmacy Council prescribing fee for registration of pharmacist including fee for renewal and issuance of verification letter---Petitioner's plea was that no bye-laws had yet been framed, thus, the Council had no power to prescribe such fees except its President---Validity---Pharmacy Council with prior approval of Provincial Government had powers under S.34 of Pharmacy Act, 1967 to frame bye-laws for carrying out its purposes including matters contained in S.26(2) thereof---Council, in absence of such bye-laws, had no authority to prescribe fees in terms of S.26(2) of the Act---Public functionaries being repository of public trust had to adhere to Constitution and law stringently---Thing required/ prescribed by law to be done in a particular manner must be done in such manner, and any violation thereof would amount to stepping over authority rendering such act to be without lawful authority---High Court accepted constitutional petition in circumstances.

(c) Constitution of Pakistan---

----Arts. 4 & 5---Constitution and law, obedience to---Obligations of public functionaries stated.

Under Article 5 of the Constitution of Islamic Republic of Pakistan, obedience to the Constitution and law is the inviolable obligations of every citizen and public functionaries are no exception and on the contrary public functionaries who are repository of public trust would strangely adhere to the Constitution and law. When law prescribes any thing to be done in particular manner, it is to be done as mandated by law, any transgression amounts to stepping over the authority rendering the act without lawful authority. In terms of Article 4 of the Constitution, all persons are entitled to be treated in accordance with law and no one can compel a person to do something, which the law does not require him to do.

(d) Administration of justice--

----Act/thing not done in a manner mandated by law would be without lawful authority---Principles.

When law prescribes anything to be done in a particular manner, it is to be done as mandated by law, any transgression would amount to stepping over the authority rendering the act without lawful authority.

Sohail Hameed for Petitioner.

Abrar Hassan for Respondent Nos. 4 and 5.

Sher Muhammad K. Shaikh, Addl. A.G.

Date of hearing: 14th April, 2011.

P L D 2013 Sindh 290

Before Aziz-ur-Rehman, J

ARABIAN SEA ENTERPRISES LIMITED---Plaintiff

Versus

ABID AMIN BHATTI---Defendant

Suit No.517 of 2007, decided on 7th February, 2013.

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

----S. 73---Suit for damages---Breach of contract---Passing of decree on doctrine of "unjust enrichment" (no one can be permitted to derive benefit from an undue advantage to become unjustifiably enrich at expense of another)---Scope---Plaintiff was bound to prove that defendant was enriched by receipt of a benefit; that such enrichment was at plaintiff's expense; that such enrichment and/or retention of benefit was unjust; and that defendant could legally be compelled to compensate plaintiff---Mere such assertions would not entitle plaintiff for damages without discharging his such legal obligations to prove the same.

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

----S. 73---Suit for damages---Burden of proof---Heavy burden would lie on plaintiff to prove damages even in absence of defence/evidence of defendant.

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

----S. 73---Suit for damages---Proof---Failure of plaintiff to give details in respect of damages and lead sufficient evidence in support thereof---Effect---Damages could not be granted merely on basis of plaintiff's ipse dixit routine assertions---Plaintiff would be obliged to specifically plead regarding actual losses/damages suffered with details and then to lead sufficient, truthworthy and positive evidence---Plaintiff even in absence of any defence/evidence in rebuttal would not be entitled for claimed damages without discharging onus of proof.

Malik Umar Aslam v. Sumaira Malik and another NLR 2007 Civil 226 ref.

Syed Ahmad Saeed Kirmani v. Messrs Muslim Commercial Bank Ltd, Islamabad 1993 SCMR 441 rel.

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

----S. 73---Civil Procedure Code (V of 1908), S.9---Arbitration Act (X of 1940), Ss.20 & 34---Suit for recovery of damages for breach of contract---Agreement containing arbitration clause---Jurisdiction of civil court to entertain such suit---Scope---Assertions made in plaint would be deemed and accepted as correct for assumption of jurisdiction by civil court---Mere presence of arbitration clause would not bar jurisdiction of civil court, when subject matter in dispute fell and cause of action had arisen within its jurisdiction, particularly when defendant had failed and/or avoided to appear and file application under S.34 of Arbitration Act, 1940 for staying proceedings in suit---Illustration.

Major General (Retd.) Fazle Ghafoor v. Total Parco Pakistan Ltd. 2009 MLD 1396 rel.

Syed Ejaz Hussain Shirazi for Plaintiff.

Nemo for Defendant.

Date of hearing: 29th January, 2013.

P L D 2013 Sindh 300

Before Mushir Alam, C.J. and Sadiq Hussain Bhatti, J

ABDUL HAMEED PANHWAR and 2 others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and 4 others---Respondents

Constitutional Petitions Nos.D-177, D-204, D-255 and D-273 of 2013, decided on 8th February, 2013.

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

----Ss. 11, 42(3-A) & 108---Election Rolls Act (XXI of 1974), Ss.23 & 26---Constitution of Pakistan, Arts.5, 118(3), 218, 224, 254 & 199---Constitutional petition---Provincial Assembly---Bye-election on seats having become vacant on 30-11-2012 due to resignation tendered by six (6) Members---Notification dated 11-1-2013 issued by Election Commission of Pakistan notifying bye-election on such seats to be held on 18-2-2013---Petitioners being voters contended that holding of bye-election would be an exercise in futility as general election was about to be held; that delay in announcing schedule of bye-election made its holding insignificant; and that bye-election could not be held as preparation of electoral roll was in process---Validity---According to Art.224(1) of the Constitution, no bye-election would be held on a seat fallen vacant at a time when 120 days or less were left for term of respective Assembly to expire or was dissolved earlier---Duty of Election Commission being to arrange election and ensure same to be conducted honestly, justly, fairly and in manner free from corrupt practices---Term of Assembly would expire on 4-4-2013, thus, 125 days remained for its term to expire if counted from 30-11-2013 i.e. date on which such seats became vacant due to resignation---Continuity of electoral process would strengthen democracy and democratic institutions---Parliament being mother of all democratic institutions, whereas National and Provincial Assemblies being its integral part---Election Commission like other citizens and public functionaries would be bound to obey and follow Constitution and laws of Pakistan---Mere delay would not absolve Election Commission from performance of its constitutional duty to organize and conduct elections to fill casual vacancies in an Assembly---Belated performance of a constitutional duty would not invalidate same or make same ineffective---Delay in issuing impugned notification would not render schedule of bye-election as invalid or unconstitutional---No revision or correction of an electoral roll could be made after announcement of election schedule by Commission---Electoral rolls prepared and published lastly would be foundation for conducting bye-election---Holding election and continuing democratic process would be secured at all cost---High Court dismissed constitutional petition in circumstances.

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61; PLD 2012 SC 448; Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681, Amanullah Khan Yousufzai v. Federation of Pakistan PLD 2011 Kar. 451; Munir Hussain Bhatti, Advocate v. Federation of Pakistan PLD 2011 SC 407; Maulana Amir Zaman Bukhari v. Election Commission of Pakistan PLD 2004 Quetta 88; Ghulam Mustafa Jatoi v. Addl. District and Sessions Judge and Returning Officer, NA 158 and others PLD 1994 Kar. 1; Aurangzeb Khan v. Election Commissioner of Pakistan, Islamabad, through Secretary and others PLD 2010 SC 34(37) and Lt.-Gen. (R) Salahuddain Tirmizi's case PLD 2008 SC 735 (763) (767) ref.

Imran Khan v. Election Commission of Pakistan C.P. No.31 of 2011 and Reference No.1 of 1988 (PLD 1989 SC 76) rel.

Haq Nawaz Talpur for Petitioners (in C.P. No.D-177 of 2013).

Mrs. Shazia Ahmed Hanjrah for Petitioners (in C.P. No.D-204 of 2013).

Syed Yasir Ahmed Shah for Petitioner (in C.P. No.D-255 of 2013).

Abid S. Zuberi for Petitioiners (in C.P. No.D-273 of 2013).

Miran Muhammad Shah, A.A.G., Muhammad Ashraf Mughal, D.A.G. and Abdullah Hanjrah, Law Officer Election Commission for Respondents.

Date of hearing: 29th January, 2013.

P L D 2013 Sindh 314

Before Muhammad Ali Mazhar, J

MARI GAS COMPANY LTD. Through Arshad Iqbal---Plaintiff

Versus

BYCO PETROLEUM PAKISTAN LTD. Through Chief Executive Officer and another---Defendants

Suit No.636 and C.M.A. No.10508 of 2012, decided on 25th March, 2013.

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

----O. VII, Rr. 1 & 7---Reading of a plaint---"Facts constituting a cause of action"---Connotation---Facts constituting a cause of action had to be pleaded and where the plaint did not disclose the cause of action, it was not a plaint in the eye of the law---"Cause of action" was a bundle of facts which were alleged by the plaintiff to secure the relief sought by him---Prayer clause in the plaint was the substance of the plaint, and where no relief was claimed in the plaint, the plaint must be looked into as a whole in order to determine the relief that may be granted, if the same was decipherable from the reading of the plaint---Prayer clause cannot be read in isolation, but it would be read with the case set up by the plaint .

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

----O. I, R. 10---Interpretation of O.I, R.10, C.P.C.---"Necessary and proper party", impleading of---Scope---Under O.I, Rule 10, C.P.C. two classes of persons namely necessary and proper party could be joined in a suit and when no relief was sought against a person otherwise, his presence was not necessary to enable the court to settle the controversy, and such person may not be added as a defendant---Party should be joined to a suit if its presence was required for complete and conclusive adjudication of the suit---Necessary party was one whose presence on record was enjoined by law or in whose absence no effective decision could be given---Dispute, if it could be adjudicated upon effectively in absence of a person, such person was not a necessary party while a proper party was a person, if his presence before the court was necessary to enable it to effectually and completely adjudicate upon and settle the questions involved in the suit and it was not necessary that the plaintiff must seek relief against such a proposed defendant.

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

----O. I, R. 10(2)---Interpretation of O.I, R.10(2), C.P.C.---Expression "questions involved in the suit", connotation---Expression "questions involved in the suit" had reference to only those questions which arose between the parties to the suit.

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

----O. I, R. 10---Necessary and proper party, impleading of---Object---Striking of name of a party improperly or wrongly impleaded---Scope---Object of adding proper party to a suit was to avoid needless multiplicity in a suit---Person impleaded in a suit, must be such a person whose interest was likely to be affected even if no relief was claimed against him and did not extend to a person who had no interest that was likely to be affected by the proceedings nor does it embrace a person whose general interest was in common with others---Name of defendant found to be neither a necessary nor proper party could be struck out and where there was no cause of action against any defendant, his name may be struck off from the plaint---Where a person who had been joined as a formal defendant in the suit was neither necessary party nor proper party nor any relief had been sought by the plaintiff against him, his name as defendant may be struck off from the plaint---Court even suo motu could strike off name of a defendant who had been wrongly impleaded and against whom no cause of action was shown---Only reason which made it necessary to make a person party to an action was that he should be bound by the result of the action.

Udit Narain Singh v. Board of Revenue AIR 1963 SC 786; Lal Mohan Saha v. Krishnalal Saha and others PLD 1965 Dacca 266 and 2003 CLC 930 rel.

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

----O. I, R. 10---Necessary and proper party, impleading of---Pro forma defendants---Mere mentioning the words "pro forma defendant" in the title of a plaint was not sufficient to fulfil the criteria and acid test of "necessary or proper party".

Naeem Bukhari for Plainitff.

Salman Talibuddin for Defendant No.1.

Khalid Mehmood Siddiqui for Defendant No.2.

Date of hearing: 25th February, 2013.

P L D 2013 Sindh 320

Before Faisal Arab and Nisar Muhammad Shaikh, JJ

Mrs. SANJEEDA NUSHAT---Applicant

Versus

Shaikh MUHAMMAD HUSSAIN QURESHI and others---Respondents

Civil Revision No.72 of 2008, decided on 29th January, 2013.

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

----Ss. 114, 115 & O.XLVII, R.1---Application for review of judgment passed by High Court in revision petition---Failure of Court to discuss in the impugned judgment other grounds raised in revision petition and argued by applicant---Validity---Review on such ground would be competent and maintainable---Revision petition would deserve consideration on merits on other grounds except one already discussed therein---High Court accepted review application in circumstances.

Land Acquisition Officer and A. C. Hyderabad v. Gul Muhammad PLD 2005 SC 311 rel.

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

----S. 96 & O.XLI, R.33---First appeal---Observation of Appellate Court while deciding appeal that evidence of defendant for being confusing in nature could not be considered in judgment---Validity---Such observation would amount to refusal to exercise jurisdiction vested under law in the Appellate Court.

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

----O.XLI, R.31---Judgment in appeal---Issues not properly framed by Trial Court---Effect---Appellate Court would not be bound in such case to give findings issue-wise, rather would be required to formulate relevant points for determination.

Muhammad Junaid Farooqui for Applicant.

K.A.Wahab for Respondent No.1.

Nemo for Respondents Nos. 2 to 4.

Date of hearing: 29th January, 2013.

P L D 2013 Sindh 327

Before Aziz-ur-Rehman, J

ZULFIQAR ALI MUBASHAR---Plaintiff

Versus

MUHAMMAD MUMTAZ ALAM through Legal Heirs---Defendants

Suit No.673 of 2002, decided on 12th March, 2013.

(a) Registration Act (XVI of 1908)---

----S. 49---Non-registration of document---Effect---Un-registered document is not admissible in evidence, so also does not create any right in suit property in favour of party relying on it, even if it is supposed to be genuine document.

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

----Ss. 58 & 59---Registration Act (XVI of 1908), S.49---Civil Procedure Code (V of 1908), S.11---Specific Relief Act (I of 1877), S.54---Suit for injunction---Mortgage of property---Proof---Res judicata principle of---Applicability---Plaintiff claimed to have suit property mortgaged in his favour by defendant and sought execution of documents in his favour---Defendant contended that unregistered mortgage deed relied upon by plaintiff was a forged document---Validity---Mortgage deed besides being forged and fabricated was without any consideration and the same being unregistered document did not create any right or interest in favour of plaintiff vis-a-vis suit property---In cases filed by defendant and contested by plaintiff up to Supreme Court relationship between plaintiff and defendant was proved to be that of tenant and landlord---in said cases main defence taken by plaintiff was that demise premises/suit property was mortgaged with him and he was holding possession thereof in his capacity as a mortgagee and not as tenant, which stand could not be proved in that cases---Findings on relationship of plaintiff and defendant had already attained finality and doctrine of res judicata was also attracted---Plaintiff could not prove his case and was not entitled to any relief as claimed by him---Suit was dismissed in circumstances.

Hakim-ud-Din v.Faiz Bakhsh 2007 SCMR 874 rel.

(c) Damages--

----Recovery---Principle---Damages cannot be granted in absence of positive evidence and require evidence vis-a-vis details of losses actually suffered---Even fixed amount of damages cannot be granted unless quantum of actual losses is proved---Party claiming damages has to firstly plead and then prove damages by sufficient, cogent, trustworthy and independent evidence.

Muhammad Amin Muhammad Bashir Ltd. v. Muhammad Amin Brothers Ltd. PLD 1969 Kar. 233 and Daoud Shami v. Messrs Emirates Airlines and another PLD 2011 SC 282 rel.

Nemo for Plaintiff.

Nawab Mirza for Defenedants.

Date of hearing: 14th February, 2013.

P L D 2013 Sindh 348

Before Mushir Alam, C.J. and Nadeem Akhtar, J

Syed SAJID ABBAS RIZVI---Petitioner

Versus

Mst. NAUREEN and others---Respondents

Constitutional Petition No.D-288 of 2013, decided on 30th April, 2013.

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

----S. 10, proviso---Constitution of Pakistan, Art.199---Constitutional petition---Pre-trial proceedings---Suit for dissolution of marriage on basis of Khula'---Petitioner impugned S.10 and proviso thereto, of the West Pakistan Family Courts Act, 1964 on the ground that the same was against Injunctions of Islam---Contention of the petitioner was inter alia that Khula' could not be granted at the initial stage of the proceedings; that the proviso to S.10 overrode the main section, and that there was ambiguity in S.10 of the Act with regard to pre-trial and post-trial reconciliation---Validity---Proviso contained in S.10 of the West Pakistan Family Courts Act, 1964 empowered the Family Court to pass a decree for dissolution of marriage forthwith upon failure of reconciliation and further provided that the wife shall be ordered to return the Haq Mahr received by her---Muslim woman had been given the right in Islam to get herself released from the bond of marriage if she felt, due to any reasons, that she could not live with her husband within the limits prescribed by Allah and in such an event she had the right to seek "Khula" by foregoing the Haq Mehr received by her---Wife could also pronounce Talaq to herself on behalf of the husband, provided such right and authority had been given to her by the husband at the time of the Nikkah, and Khula' could be granted only by the Family Court having jurisdiction in the matter---High Court held that there was nothing in the proviso to S.10 of the West Pakistan Family Courts Act, 1964 that was contrary to the Injunctions of Islam, and also that proviso did not have an overriding effect but in fact supported and complemented S.10---Decree for dissolution of marriage was passed under S.10 either when the defendant/husband did not file his written statement and there was no pre-trial hearing, or when the reconciliation failed at the pre-trial stage, and also after the filing of written statement, consideration of pleadings, framing of issues and recording of evidence---No ambiguity, therefore, existed in S.10 of the Act with regard to pre-trial and post-trial reconciliation between the parties in case of Khula'---Contentions of the petitioner were therefore, without force---Constitutional petition was dismissed, in circumstances.

Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others 2011 SCMR 1361 and Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others PLD 2007 SC 571 rel.

Enmay Zed Publications (Pvt.) Ltd. through Director-General v. Sindh Labour Appellate Tribunal through Chairman and 2 others 2001 SCMR 565; Dr. Muhammad Anwar Kurd and 2 others v. The State through Regional Accountability Bureau, Quetta 2011 SCMR 1560; Naseem Ahmed Khan v. XIVth Civil and Family Judge, Karachi Central, and another, 2011 YLR 2625; Syed Matanat Moazzam Bukhari v. Dr. Arfa Saeed and 2 others, 2010 CLC 58; Aamir lqbal Khan v. Mst. Faryal Aamir Khan and another, 2010 CLC 942; Shakeel Ahmad v Judge, Family Court, 2010 CLC 1 and Mudassar Butt v. Judge, Family Court, Lahore and another, 2010 CLC 1729 ref.

(b) Islamic law---

----Dissolution of marriage on the basis of Khula and where right and authority of divorce had been given to wife by the husband the time of Nikkah---Scope.

A Muslim woman has been given the right in Islam to get herself released from the bond of marriage if she feels, due to any reason, that she cannot live with her husband within the limits prescribed by Allah Almighty. In such an event, the wife has to seek Khula by foregoing the Haq Mehr received by her from her husband in consideration of the marriage. The wife can also pronounce Talaq to herself on behalf of the husband, provided such right and authority had been given to her by the husband at the time of the Nikah. Khula can be granted only by the Family Court having jurisdiction in the matter.

Abbad-ul-Hasnain for Petitioner.

Masood Khan Ghauri for Respondents Nos. 1 to 4.

Miran Muhammad Shah, Addl. A.-G., Sindh for Respondent No.5.

Date of hearing: 25th April, 2013.

P L D 2013 Sindh 357

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

NASEEM ABDUL SATTAR and 6 others---Petitioners

Versus

FEDERATION OF PAKISTAN and 4 others---Respondents

Constitutional Petition No.D-720 of 2013, decided on 7th May, 2013.

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

----Ss. 18(b)(ii) & 32---Civil Procedure Code (V of 1908), O.I, R.10---Constitution of Pakistan, Art.199---Constitutional petition---Cognizance of offences---Private complaint---Complainant could not take charge of proceedings initiated under the National Accountability Ordinance, 1999 and effect independent representation in such proceedings---Petitioner sought direction from the high Court inter alia for restraining NAB officials from taking coercive actions against them and to quash the proceedings initated by NAB on private complaint by the complainant Bank---Complainant Bank was sought to be impleaded in the proceedings as a respondent---Validity---Perusal of S.18(b)(iii) of the Ordinance showed that the Chairman or an officer of the NAB duly authorized by the Chairman, was empowered to initiate proceedings against any person "on receipt of a complaint" but the entire Ordinance did not confer any right upon the complainant to take charge of the proceedings initiated by the Chairman NAB or to effect representation independently---Law in such respect was so rigid that it did not even permit the Accountability Court to take cognizance of any offence except on a reference made by the Chairman NAB or an officer of the NAB duly authoriszed by the Chairman NAB---Section 32 of the National Accountability Ordinance, 1999 provided a right of appeal which reflected that no right of the appeal had been conferred upon the complainant, and even in those cases which were initiated on basis of private complaint, the right of appeal had been exclusively conferred upon the Chairman NAB or the convict---High Court held that the National Accountability Ordinance 1999 was limited to its application to only those who were provided with the right of appeal under the Ordinance---Application of complainant Bank to be impleaded as a respondent was dismissed, however, High Court allowed the counsel of the respondent to assist the prosecution.

The State v. Fazal Ahmed and others SBLR 2013 Sindh 489 and Capt. (Retd.) Nayyar Islam v. Judge, Anti-Terrorism Court No.III and others 2012 SCMR 669 rel.

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

----Ss. 9(a)(ix) & 18---Penal Code (XLV of 1860), S.415---Corruption and corrupt practices---Offence of cheating as defined in S.415, P.P.C.---Jurisdiction of the National Accountability Bureau to take cognizance of offence of cheating as defined in S.415, P.P.C.---Scope---Scope of S.415, P.P.C. for the purposes of the National Accountability Ordinance, 1999 was limited---Under S.9(a)(ix) of the Ordinance, the National Accountability Bureau had no jurisdiction to take cognizance of an offence of cheating under S.415, P.P.C. unless the accused had dishonesty induced members of the public-at-large to deliver any property including money or valuable security to any person and not in an individual case.

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

----Ss. 31-D, 5(r) & 18---"Wilful default", scope of---Inquiry/investigation in cases of "wilful default" without reference from Governor State Bank of Pakistan in terms of S.31-D of the National Accountability Ordinance, 1999---Effect---Chairman NAB's authorization of initiating an inquiry or investigation into cases of wilful default without reference from Governor State Bank of Pakistan in terms of S.31-D of the Ordinance, was an illegality which rendered the entire proceedings void and vitiated.

Messrs Kaloodi International (Pvt) Ltd. v. Federation of Pakistan and others PLD 2001 Kar. 311 rel.

Dr. Arsalan Iftikhar v. Malik Riaz Hussain and others PLD 2012 SC 903; Mian Munir Ahmed v. The State 2004 PCr.LJ 2012; Asim Textile Mills Ltd. and others v. National Accountability Bureau and others PLD 2004 Kar. 638 and Ghulam Hussain Baloch and another v. Chairman, National Accountability Bureau, and others PLD 2007 Kar. 469 ref.

Ms. Ismat Mehdi for Petitioners.

Pir Riaz Muhammad Shah, Standing Counsel for Respondent No.1.

Regional Director General, National Accountability Bureaus for Respondent No.2.

Noor Muhammad Dayo, ADPG for Respondent No.3.

Muhammad Ashraff Kazi and Shahab Sarki for the Complainant.

Dates of hearing: 11th and 16th April, 2013.

P L D 2013 Sindh 374

Before Sajjad Ali Shah and Niamatullah Phulpoto, JJ

ALLIED BANK LIMITED through Authorised Officer---Applicant

Versus

SIKANDAR ALI and 4 others---Respondents

Criminal Revision No.130 of 2011, decided on 21st February, 2013.

Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)

----S. 2(d)---Penal Code (XLV of 1860) Ss. 467, 468 & 471---Banking Companies Ordinance (LVII Of 1962) S. 7---Interpretation of S.2(d) of the Offences in Respect of Banks (Special Courts) Ordinance 1984---Special Court (Banks) jurisdiction of---"Scheduled offence", definition and scope---Banking Company impugned order of Special Court (Banks) whereby its criminal complaint against respondents was dismissed under S.203, Cr.P.C. on ground that the complaint did not fall within the definition of "scheduled offence" under the Offences in Respect of Banks (Special Courts) Ordinance, 1984---Contention of Bank was that the respondents who had availed finance facility from the Bank, had manipulated documents from the Bank, in order to show that they had discharged their liability to the Bank and had redeemed their mortgaged properties from the charge of the Bank, and the same fell under the definition of "scheduled offence" under Offences in Respect of Banks (Special Courts) Ordinance, 1984---Validity---Perusal of manipulated documents revealed that the same were manipulated with the sole intent of depriving the Bank from recovery of outstanding liability and to unsecure the finance facility, which prima facie appeared to fall within the ambit of Ss. 467, 468 and 471, P.P.C.---Special Court (Banks) misled itself by holding that such manipulation did not indicate that the accused had allegedly committed any cheating fraud or manipulation in respect to or in connection with the business of the Bank, and had given a very narrow meaning to the words "business of the bank"---Special Court (Banks) erred by holding that its jurisdiction only extended to cases where some monetary fraud was committed in the transaction---Words "alleged to have been committed in respect of or in connection with the business of a bank" used in S.2(d) of the Ordinance, did not call for a narrow interpretation but embraced all such acts which pertained to banking transactions and withdrawal of an amount from a bank account was undoubtedly a banking transaction---Special Court (Banks) in order to determine whether an offence was triable as a "scheduled offence" or not had to examine whether the allegation which constituted such offence was in any manner linked with the business of the financial institution or not and had to keep in mind that with the passage of time the Financial Institutions had expanded their business as earlier banks dealt in documents only but now hypothetically dealt in goods also---Business which the banks engaged in was detailed in S.7 of the Banking Companies Ordinance, 1962---Respondents in the present case, had manipulated the documents to show that they had paid their entire liability and had redeemed their properties from the charge for the bank, and since creation of charge/mortgaged to secure finance was business of the bank according to S.7(g) of the Banking Companies Ordinance, 1962, therefore, the same had a direct nexus with mortgage and the business of the bank, and fell exclusively within the jurisdiction of the Special Court as a scheduled offence---High Court set aside impugned order and directed Special Court (Banks) to bring complaint on record and issue process accordingly---Revision was allowed, in circumstances.

A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Karachi College Teachers Co-operative Housing Society v. Judicial Magistrate XVI, Karachi East and another 2011 YLR 1825; Ali Hussain and 2 others v. Presiding Officer Special Court for Offences in Respect of Banks Karachi and 3 others PLD 1989 Kar. 157 and Sikandar Ali v. The State 1989 PCr.LJ 614 rel.

Shaukat Hayat for Applicant.

Shiraz Iqbal Choudhry, Standing Counsel.

Sohail Qasim for Respondent No.5/SECP.

P L D 2013 Sindh 386

Before Muhammad Ali Mazhar, J

FARID VIRANI and another---Plaintiffs

Versus

FEROZ VIRANI---Defendant

Suit No.438 and C.M.A. No.4582 of 2012, decided on 20th March, 2013.

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

----S. 34---Stay of legal proceedings by court due to subsistence of valid arbitration agreement between parties---Proceeding and scope---Mere such agreement would not bar jurisdiction of court to entertain suit---Not obligatory on court in such case to refer dispute to arbitration, rather to stay suit or not being its discretion---Principles.

Section 34 of the Arbitration Act, 1940 relates to stay of proceedings brought before the court in the subsistence of valid agreement of arbitration. This Section aims at to make arbitration agreement effective and to prevent a party from going to court contrary to his own agreement. Where the provisions of this Section are attracted, the court may stay the proceedings requiring the matter to be referred to the Arbitrator. In order to stay the legal proceedings, it is necessary that the proceedings must have been commenced by a party to arbitration agreement against any other party to the agreement, the legal proceedings which are sought to be stayed must be in respect of a matter agreed to be referred, the applicant for stay must be a party to the legal proceedings, the applicant must have taken no steps in the proceedings after appearance, the applicant must also satisfy that he was not only at the time when the proceedings were commenced, but still ready and willing to do everything necessary for the proper conduct of the arbitration and the court must be satisfied that there is no sufficient reason why the matter should not be referred to arbitration. Mere existence of an arbitration clause in the agreement does not bar jurisdiction of civil court, but such clause only provides that where a party to an agreement commences legal proceedings against another party to the agreement, then such a party before filing a written statement or taking any other legal step in the proceedings may apply to the court to stay the proceedings.

The court has jurisdiction to entertain the suit, however, the court in its discretion may stay the suit, but the court has to consider whether discretion should be exercised in a particular case or not. section 34 does not make it obligatory on the court to necessarily refer the dispute to arbitration and may exercise the discretion to stay the proceedings, if it is satisfied that there is no sufficient reason why the matter should not be referred to in accordance with the arbitration agreement.

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

----Ss. 42 & 54---Partnership Act (IX of 1932), Ss. 7 & 43---Civil Procedure Code (V of 1908), O. XX, R. 15 & O. XL, R. 1---Arbitration Act (X of 1940), S. 34---Suit for accounts, appointment of receiver of dissolved firm, permanent injunction and damages---Existence of arbitration clause in partnership deed---Defendant's application under S.34 of Arbitration Act, 1940 to stay plaintiff's suit after filing written statement therein and subsequent suit against plaintiff for declaration, permanent injunction and damages---Validity---No specific condition relating to dissolution of firm was mentioned in such arbitration clause in agreement, rather parties had broadly agreed thereby to refer to arbitration any difference or dispute arising amongst partners or matter relating to interpretation of deed or touching or concerning partnership affairs, while matters not covered thereby would be governed by Partnership Act, 1932---Plaintiff in suit had not asked for dissolution of partnership firm, rather had alleged partnership to have already dissolved by giving its notice to defendant and intimation to Registrar of Firms---Defendant in his suit had sought various declarations regarding partnership firm, which was also subject matter of plaintiff's suit wherein application for its stay and reference of dispute to arbitration had been made by defendant---Absence of prayer in defendant's suit regarding reference of dispute to Arbitrator had made arbitration clause redundant and unworkable---Both suits involved complicated and overlapping issues of law and facts regarding partnership business---Staying plaintiff's suit and proceeding with defendant's suit would not advance cause of justice, rather would create legal complications---Arbitration would not be suitable method of determining questions raised by both parties---High Court dismissed defendant's application and fixed both suits together for hearing in circumstances.

Vawdrey v. Simpson [1896] 1.Ch 166; Walmsley v. White [1892] L.T. 433; Befild v. Bourne [1893] 1.Ch.521; Dhulia-Amalner M.T. v. Raychand Rupsi Dharamsi AIR 1952 Bombay 337; Ram Singh v. Ram Chand AIR 1924 Privy Concil 2; Sathappa v. Subrahmanyan AIR 1927 Privy Council 70; Ali Mohamedbhai v. Sadruddin PLD 1959 (W.P.) Kar. 452; Olver v. Hillier [1959] 2 All E.R.220; Sh. Khursheed Anwar v. Kaiser Arts & Crafts and 2 others 1988 CLC 570 and Ganesh Chandra v. Kamal Kumar AIR 1971 Calcutta 317 (V 58 C 65) ref.

Olver v.Hillier[1959] All E.R.220; Joplin v. Postlethwaite [1889], 61 L.T.629; Vawdrey v. Simpson [1896], 1 Ch. 166; AIR 1924 Cal. 796; AIR 1943 Pat. 53 and Messrs Eckhardt & Co. v. Muhammad Hanif PLD 1993 SC 42 rel.

(c) Partnership Act (IX of 1932)---

----Ss. 7, 43 & 44---Partnership at will, dissolution of---Scope---In absence of any provision in contract regarding duration or determination of partnership, then same could be dissolved by giving its notice by any one or more of partners---Dissolution would take effect from date specified in such notice or from date of communication of such notice when no date was mentioned therein---Dissolution of partnership could not be refused by court in absence of any time frame in contract ---Principles.

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

----S. 34---Stay of legal proceedings due to existence of arbitration clause in agreement between parties---Scope---Court would not grant such stay in a case involving complicated questions of law and facts.

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

----S. 34---Partnership Act (IX of 1932), S. 44---Dissolution of partnership firm, legal proceedings for---Stay of such proceedings by court due to existence of arbitration clause in partnership agreement --- Scope---Even a widest arbitration clause could not bar court to refuse to give such stay---Court could decide question as to whether or not dissolution of firm would be just and equitable---Principles.

The arbitration clause is a universal feature of almost all partnership agreements, the definite existence of arbitration clause in partnership agreement that all disputes between the partners falling within the scope of arbitration clause would have to be submitted to arbitration. The court can itself adjudicate upon matters of law where a partner applied for dissolution on the ground of its being just and equitable, even a widest arbitration clause was not able to prevent the court in refusing to give its stay. The court permitted the action to continue because whether it is just and equitable to dissolve a firm is entirely a matter for the court to decide.

An arbitration agreement will fall to be construed in the same way as in other contract. There will be assumption that all disputes will fall within the ambit of such an agreement. Accordingly, whilst the expression "disputes or difference" is likely to be construed more widely than the word, "dispute" appearing alone. In most instances the clause will either expressly or by necessary implication authorizes the Arbitrator to order dissolution of the firm.

Erach F.D.Metha Case AIR 1971 SC 1653; [1998] 1 W.L.R. 727 (C.A.); (2007) Bus. L.R.686) (2010) 2 Lloyd's Rep. 209 (2005) 1 W.L.R. 2339 (CA); 2007) EWHC 1143 (Ch.) p. 342 (10-272 Lindley and Banks on Partnership, Nineteenth Edn. by Roderick I Anson Banks rel.)

Arshad Tayebally for Plaintiff.

Aziz A. Munshi and Abdullah Munshi for Defendant.

Dates of hearing: 16th, 30th November, 7th and 18th December, 2012.

P L D 2013 Sindh 406

Before Nadeem Akhtar, J

Haji NAIMATULLAH---Plainitff

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and another---Defendants

Suit No.949 of 2010, decided on 19th December, 2012.

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

----Preamble---Arbitration---Scope, object and purpose of arbitration stated.

Arbitration is an arrangement for investigation and determination of a dispute or disputes between parties by one or more persons chosen by the parties. It must be kept in mind that the essence of arbitration is the settlement of a dispute by the decision, not of a regular or ordinary court of law, but of one or more persons acting as Arbitrators, whose decision the parties agree to accept as binding whether they agree with the decision or not. The concept of arbitration is based upon the principle of withdrawing the dispute from the ordinary courts and enabling the parties to resolve their dispute before a domestic tribunal. The person deciding such private disputes are called arbitrators as they have an arbitrary power, if their decision is within the four corners of the dispute referred to them by the parties. The arbitral tribunal derives jurisdiction solely from the arbitration agreement that may be found in the underlying contract between the parties, which in the present case, was the contract.

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

----S. 20---Appointment of arbitrator by the court---Appointment of Arbitrator by an interested party---Scope---Application under S.20 for appointment of arbitrator by the court---Dispute between two parties to a contract---Plaintiff sought appointment of the arbitrator by the court, whereas contention of the defendants was that the mode and forum of appointment of arbitrator was provided by the arbitration clause in the contract between the parties---Contention of the plaintiff was that the arbitration clause of the contract provided that in case of a dispute, the sole arbitrator was to be appointment by the Secretary, Ministry of Law Justice and Human Rights of the Federal Government, and since said Ministry had subsequently been reconstituted and further that since the Federal Government was itself a party to the contract, therefore, it could not be a judge in its own cause, hence the mode of appointment provided by the contract was invalid, and same should be instead appointed by the court---Validity---Contention that the Federal Government being a party to the contract could not be judge in its own cause, was not tenable, as the known interest of an arbitrator did not in any way invalidate the appointment of such an arbitrator, and it was only in case where such an interest was concealed or came into existence after the appointment, that the appointment was rendered invalid or liable to be revoked---Plaintiff was fully aware of the fact at the time of entering into the contract, that in case of a dispute, the same would have to be referred to the Federal Government for appointment of an arbitrator, therefore, plaintiff was now estopped from objecting to the appointment being made by the Federal Government---When the plaintiff agreed to submit to an arbitration by an arbitrator chosen by the Ministry of Law Justice and Human Rights Division, then the Rules of Business of said Ministry stood incorporated into the contract---Real intention of the parties was to refer the dispute to some senior and responsible officer of the Federal Government for appointment of an arbitrator and it certainly was not the intention of the parties to keep objecting whenever the composition or structure of the Ministry changed---Intention, object, and purpose of the parties had not been defeated and could still be achieved despite the Ministry being reconstituted---High Court observed that the plaintiff may apply to the Secretary of the present Ministry of Law Justice and Parliamentary Affairs for appointment of an arbitrator within fifteen days, and in case an arbitrator was not appointed within fifteen days from the date of plaintiff's application, or if said arbitrator did not proceed to arbitrate in accordance with law, only then the plaintiff would be at liberty to invoke S.20 of the Arbitration Act, 1940---Application was disposed of accordingly.

Project Director, Balochistan Minor Irrigation Development Project, Quetta Cantt. v. Messrs Murad Ali and Co. 1999 SCMR 121; Board of Intermediate and Secondary Education, Multan v. Fine Star and Co. Engineers and Contractors 1993 SCMR 530 and Design Group of Pakistan v. Clifton Cantonment Board 1990 MLD 2010 distinguished.

Lahore Stock Exchange Ltd. v. Fedrick J. Whyte Group (Pakistan) Ltd. and others PLD 1990 SC 48; Intertrade Ltd., Karachi v. Trading Corporation of Pakistan Ltd. and another PLD 1976 Kar. 496 and Messrs Hafiz Abdul Aziz Cotton Ginning Factory v. Messrs Haji Ali Muhammad Abdullah and Co. and another PLD 1966 (W.P.) Kar. 197 ref.

Chaitram Rambilas v. Bridhichand Kesrichand AIR 1916 Cal. 689; M.A. Ghani Soofi and Sons v. The Feeration of Pakistan PLD 1957 (W.P.) Lah. 363; Saadullah Khan and Brothers (SKB) Engineers and Contractors, Karachi and another v. Province of Sindh through Secretary, Works and Services Department, Government of Sindh, Karachi and another 2009 YLR 799; Muhammad Umar v. Yar Muhammad and others 2009 CLD 305 and Waqqas Limited v. Province of Punjab 1988 CLC 1865 rel.

(c) Interpretation of documents---

----Principles---Fundamental principle of interpretation of documents and statutes, was that they were to be interpreted in their entire context following a full consideration of all provisions of the document or statute, as the case may be, and that every attempt should be made to save the documents, and for this purpose, difference between general statements and particular statements of the document should be differentiated properly in order to save the document rather than nullifying it---No provision of the document should be read in isolation or in bit and pieces, but the entire document should be read as a whole to gather the intention of the parties---Court should lean to an interpretation which effectuates an instrument, rather than one which invalidates an instrument.

Saudi-Pak Industrial and Agricultural Investment Company (Pvt) Ltd., Islamabad v. Messrs Allied Bank of Pakistan and another PLD 2003 SC 215 rel.

Chaudhry Atif Rafiq for Plaintiff.

Syed Tariq Ali, Standing Counsel for Defendants.

Date of hearing: 1st November, 2012.

P L D 2013 Sindh 417

Before Nadeem Akhtar, J

Mst. HAJRA BEGUM through Legal Heirs---Plaintiffs

Versus

Mst. BADAR-UN-NISSA and others---Defendants

Suit No.138 of 2007, and C.M.A. No.7503 of 2012, decided on 15th April, 2013.

Civil Procedure Code (V of 1908)---

----O. XVI, Rr. 1 & 14---Witness to be summoned through court to give evidence and produce official record not named in List of Witnesses---Scope---Provision of O. XVI, R. 1, C.P.C., allowing a party to call with leave of court a witness not included in such list, must be construed liberally to enable parties to produce their evidence and save them from technical knock-out---Main object of O. XVI, Rr. 1(2) & 14, C.P.C. being that entire evidence, which was relevant and necessary for ascertaining truth and deciding issues involved completely and effectively, should come before court at any stage of trial before passing of judgment---Court might permit summoning of proposed witness, if satisfied that party requiring his production had shown a good cause for not including his name in such List---Party's evidence should not be shut out for his failure to file such list within seven days of framing of issues---Technicalities should not be allowed to defeat ends of justice---Trial Court had discretion to condone delay and allow application in such regard official/public record of unimpeachable authenticity, if essential for resolving controversy and just decision of case, should be allowed to be produced at any stage of trial---Parties should be allowed to place on record all available evidence proving or defending their case---Principles.

Anwar Ahmad v. Mst. Nafees Bano through legal heirs 2005 SCMR 152; Messrs Trading Corporation of Pakistan v. Messrs Rahat and Company 2005 CLC 1305; Mst. Mussarat Bibi and 2 others v.Tariq Mahmood Tariq 1999 SCMR 799; Umar Hayat v. Additional District Judge and others 2004 SCMR 1367; Mian Muhammad Hafiz and others v. Aziz Ahmad and others 1980 SCMR 557; Australasia Bank Ltd. v. Messrs Mangora Textile Industries Swat and others 1981 SCMR 150; Mst. Hajan Nawab Bibi v. Additional District Judge, Lahore and 3 others PLD 1993 Lah. 492; Musarrat Bano and others v. Additional District Judge, Lahore and others 2010 MLD 1656 and Bashir Ahmad v. Fazal Din 1994 CLC 1920 rel.

Imran Ahmed for Plaintiffs.

Agha Zafar Ahmed for Defendants Nos. 1 to 4.

Defendants Nos. 5 to 7 (absent).

P L D 2013 Sindh 423

Before Maqbool Baqar and Riazat Ali Sahar, JJ

Syeda AFSHAN---Petitioner

Versus

Syed FARUKH ALI and 3 others---Respondents

Constitutional Petition No.D-957 of 2013, decided on 11th March, 2013.

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

----S. 173---Police report submitted before the Magistrate---Power of Magistrate to agree/disagree with such a report---Scope---Magistrate was not bound to agree with the report submitted by police under S.173, Cr.P.C and was at liberty to either agree or disagree with the conclusions reached by the investigating officer, subject to giving cogent reasons for the conclusion arrived at by him---Magistrate under S.173, Cr.P.C was not expected to blindly follow investigation undertaken by the police, as ipse dixit of the police was never binding upon the Magistrate or court---Magistrate was bound to apply his independent mind to the material placed before him and then form his opinion about the matter---After applying his judicial mind if the Magistrate was of the view that the opinion expressed by the investigating officer in the report under S.173, Cr.P.C was just and appropriate, he was fully competent to accept the report and dispose of the case as proposed (by the investigating officer).

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

----Ss. 173, 155 & 156---Constitution of Pakistan, Art. 8---Disposal of a case by Magistrate under "A", "B" or "C" class after disagreeing with the police report---Legality---Classes "A", "B" or "C" were in practice to dispose of criminal cases after completion of investigation---Although there was no procedural law by which a Magistrate could grant administrative approval for disposal of a case under "A", "B" or "C" class, but such continuous practice had become usage, which had the force of law and was a part and parcel of the procedural law---Such practice was not inconsistent with or in derogation of Art.8 of the Constitution.

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

----S. 173--- Disposal of a case under "A", "B" or "C" class--- Definition of said classes stated.

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

----Ss. 173 & 561-A---Disposal of a case by Magistrate under "A", "B" or "C" class after disagreeing with the police report---Impugning such order of Magistrate before the High Court---Scope---Disposal of a case by a Magistrate (under any of the classes) was an administrative order, which could be challenged under S.561-A, Cr.P.C by invoking inherent jurisdiction of the High Court.

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

----Ss. 190, 435 & 439---Magistrate taking cognizance of an offence---Impugning such order of Magistrate by way of revisional jurisdiction---Scope---Taking cognizance of a case was a judicial act/order, which could be challenged under revisional jurisdiction before the competent forum.

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

----Ss.173 & 561-A---Penal Code (XLV of 1860), Ss.506-B/337-A(i)/ 504---Constitution of Pakistan, Art. 199---Constitutional petition---Disposal of a case by Magistrate under "C" class after disagreeing with the final report of police to dispose it under "B" class---Legality---Complainant (petitioner) alleged that her accused-brother pointed pistol at her and issued threats of killing her due to a property dispute, however due to intervention of their sister, she was saved and the pistol as? well? as? a? bullet? from? the? weapon? dropped? from? the? hand ?of accused---F.I.R. was registered against accused, whereafter police submitted final report under S.173, Cr.P.C for disposal of case in "B" class---Magistrate, while disagreeing with the police report, disposed of the case under "C" class and declined to take cognizance of the case---Legality---Magistrate did not blindly agree with the opinion expressed by investigation officer but applied his judicial mind to the material placed before him---Final report submitted by investigating officer mentioned that he had issued notices to prosecution witnesses but no witness appeared except sister of the complainant---Complainant also failed to produce her witness before the investigating officer---No incriminating article including alleged crime weapon was recovered from possession of accused---Ocular testimony in respect of alleged offences under Ss.506-B and 337-A(i), P.P.C was not supported by unimpeachable evidence---Medico-legal report of complainant was not available on record, because of which it could be safely inferred that no offence under S.337-A(i), P.P.C was made out---Although complainant had alleged that the weapon and a bullet dropped from the hand of the accused, however such assertion did not appeal to a prudent mind as it was not possible for a live bullet to be directly extracted from the magazine or chamber of a weapon without unloading it---Possibility of any cognizable offence having taken place did not arise in such circumstances and at most presumption of offence under? S.504, P.P.C. could? be? made? out,? which? too? was? non-cognizable---Although F.I.R. could not be termed as "maliciously false" to bring the same in the category of "B" class but at the same time it lacked the ingredients of a cognizable offence, thus it fell under "C" class---Magistrate had rightly disagreed with the police report and exercised his discretion to dispose of the case in "C" class---Constitutional petition was dismissed accordingly.

??????????? Pervaiz Ahmed Khan Mastoi for Petitioner.

??????????? Date of hearing: 11th March, 2013.

P L D 2013 Sindh 430

Before Muhammad Ali Mazhar, J

Messrs NIB BANK LIMITED---Decree-Holder

Versus

Messrs APOLLO TEXTILE MILLS LIMITED and 2 others---Judgment-Debtor

Execution Application No.84 of 2011 in Suit No.B-59 of 2008, decided on 2nd April, 2013.

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

----O. XXI, R. 66---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.19---Execution of decree with or without intervention of court---Mode---Scope---Suit upon announcement of judgment and decree by court would stand converted into execution proceedings automatically---Court had discretion to adopt any mode for execution of decree---Court or financial institution once having opted and invoked provision of O.XXI, C.P.C. could not later on avoid its express provisions relating to auction proceedings and issuance of public notice of sale through newspapers---Duty of court would be to protect rights of judgment-debtor by trying to fetch appropriate price through sale of his properties and would avoid its sale at throwaway price---Principles.

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

----O. XXI, R. 66---Execution proceedings---Sale of property by public auction---Essential conditions---Such sale, if made without fulfilling mandatory requirements of O. XXI, R. 66, C.P.C., would be unlawful and liable to be set aside---Principles.

Provisions of Order XXI, Rule 66, C.P.C. are mandatory in nature and without fulfilling basic requirements, if auction is taken place, it would not be considered to have been lawfully made.

The absence of mandatory notice to the judgment-debtors under Order XXI, Rule 66, C.P.C. is by itself sufficient for setting aside the court auction. Before calling upon Court Auctioneer to conduct auction, duty of Executing Court is to have satisfied itself that mandatory notice has been issued to judgment-debtors. Such contravention of provisions of Order XXI, Rule 66, C.P.C. by Executing Court would vitiate entire proceedings including sale, which is nullity in eyes of law.

The word "cause" appearing in Rule 66, Order XXI, C.P.C. requires a specific order of court, which produces the effect of drawing the proclamation envisaging the terms and conditions of sale. Thus, includes the settlement of conditions etc., by court itself or to approve those filed by parties after hearing them. It is duty of the court to cause to be made a proclamation of sale. Such proclamation must be drawn after notice to the judgment debter.

Intention of law is to fix reserve price in proclamation to safeguard rights of judgment debtor.

The proclamation should include the estimate if any, given by either judgment debtor or decree-holder or both the parties.

It is mandatory that the value so determined by the parties i.e. the decree-holder and the judgment-debtor, is to be stated in the proclamation, as the word "shall" has been stated therein. The rationale behind stating the said value in the proclamation is to ensure full disclosure to the prospective bidders.

Muhammad Amin alias Jaloo v. Judge Banking Court and others 2011 CLD 280; Muhammad Hassan v. Messrs Muslim Commercial Bank Ltd. and others 2003 CLD 1693; Khursheed Begum and others v. Inam-ur-Rehman Khan and others PLD 2009 552; Muhammad Attique v. Jami Limited and others PLD 2010 SC 993; [Brig. Rtd.) Mazhar-ul-Haq and another v. Muslim Commercial Bank Ltd., Islamabad PLD 1993 Lah. 706; Desh Bandhu Gupta v. N.I. Anand and Rajinder Singh 1994 1 S.C.C 131; Mirza Munawar Baig and others v. Bank Alfalah Limited and others 2007 YLR 126; Messrs Ripple Jewellers (Pvt.) Ltd. v. First Woman Bank 2003 CLD 1318; Messrs Spinghar Textile Mills Ltd. and another v. United Bank Ltd. and another 2011 CLD 1683; Mrs.Aziz Fatima and others v. Mrs. Rehana Chughtai and others 2000 CLC 863; Mrs.Shahida Saleem and another v. Habib Credit and Exchange Bank Ltd. and others 2001 CLC 126; Mst.Nadia Malik v. Messrs Makki Chemical Industries Pvt. Ltd. 2011 SCMR 1675; Balram v. Ilam Singh and others AIR 1996 SC 2781; Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad AIR 1954 SC 349; Appu v. Achuta Menon and others AIR 1926 (Madras) 755; Shahid Ali v. Mrs. Aziz Fatima and others PLD 2010 SC 38; Muhammad Ahmed Sheikh v. J.S. Bank Limited 2012 CLC 498; Feroz Abdul Karim v. Muslim Commercial Bank Ltd. 2012 CLC 545; (Capt. Rtd.) Nayyar Islam v. Judge, Accountability Court No.III 2012 SCMR 669; Commissioner of Income-Tax v. D.P.S.(I.) (Pvt.) Ltd. 1998 PTD 2809 and Ibrar Hussain v. State 2012 YLR 805 ref.)

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

----O. XXI, R. 85---Deposit of remaining purchase money by purchaser within 30 days as per direction of Court Auctioneer---Validity---Provision of O. XXI, R. 85, C.P.C. requiring such deposit to be made within 15 days was mandatory---Non-payment of such money would render sale proceedings as a complete nullity---Court in such circumstances could take suo motu action for setting aside sale.

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

----O. XXI, R. 66---Proclamation of sale---Reserve price of property not fixed in proclamation---Effect---Such omission would render proclamation to be illegal and make auction proceedings liable to be set aside.

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

----O. XXI, Rr. 66, 84 & 85---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 19---Sale of mortgaged property in execution of decree by Official Assignee by adopting mode provided in O.XXI, C.P.C.---Proclamation of sale not containing particulars required to be incorporated therein by Official Assignee in terms of O. XXI, Rr. 66, 84 & 85, C.P.C.---Effect---Such proclamation for being illegal would not be sustainable---High Court set aside such sale while directed Official Assignee to set down fresh draft of proclamation of sale in terms of O. XXI, Rr. 66, 84 & 85, C.P.C. in presence of both parties and submit same before Court.

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

----O. XXI, R. 65---Sale in execution of decree---Official Assignee, appointment of---Scope---Court for conducting such sale could appoint Official Assignee.

(g) Interpretation of statutes---

----Special law---Applicability---Provisions of special law would exclude application of general law.

Yawar Faruqui and Irfan Memon for Decree Holder.

Mian Raza Rabbani, Zeeshan Abdullah and Sajid Ansari for Judgment Debtor Nos. 1 & 2.

Naveed-ul-Haq for the Bank of Punjab.

S. Nauman Zahid Ali for Standard Chartered Bank Ltd.

P L D 2013 Sindh 449

Before Faisal Arab, Sajjad Ali Shah and Aqeel Ahmed Abbasi, JJ

Messrs SHAHBAZ GARMENTS (PVT.) LTD. and others---Petitioners

Versus

PAKISTAN through Secretary Ministry of Finance, Revenue Division, Islamabad and others---Respondents

Constitutional Petitions Nos.D-2753 of 2009, D-3482, D-1084, D-115, D-1483, D-1619, D-230, D-2700, D-2876, D-2877, D-2878, D-344, D-345, D-346, D-347, D-348, D-3483, D-3484, D-3488, D-3489, D-439, D-3490, D-3491, D-3492, D-3493, D-3494, D-356, D-357, D-358, D-359, D-360, D-367, D-3912, D-3913, D-3914, D-4119, D-440, D-495, D-589, D-590, D-605, D-679, D-680, D-699, D-856, D-857, D-4120, D-4121 of 2011, D-2754, D-2755, D-2756 of 2009, D-1394, D-2688, D-3143, D-3521, D-3618, D-452 and D-6 of 2010, decided on 1st March, 2013.

(a) Words and phrases---

----"Fee"---Defined and explained.

Chambers 21st Century Dictionary (Revised Edition); Black's Law Dictionary (Sixth Edition); Wharton's Law Lexicon Dictionary (Fifteenth Edition); Judicial Dictionary 13th Edition K J Aiyar; Legal Terms and Phrases 2006 Edition by M. Ilyas Khan and Supreme Court on Words and Phrases by Justice M. L. Singhal rel.

(b) Words and phrases---

----"Tax"---Defined and explained.

Black's Law Dictionary (Sixth Edition); Wharton's Law Lexicon Dictionary (Fifteenth Edition); Judicial Dictionary 13th Edition K J Aiyar; Legal Terms and Phrases 2006 Edition by M. Ilyas Khan; Supreme Court on Words and Phrases by Justice M. L. Singhal and Chambers 21st Century Dictionary (Revised Edition) ref.

(c) Words and phrases---

----"Tax and Fee"---Defined and distinguished.

Wharton's Law Lexicon Dictionary (Fifteenth Edition); Judicial Dictionary 13th Edition K J Aiyar; Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; Pakistan Burmah Shell Ltd. v. Federation of Pakistan 1998 PTD 1804; Pakistan Flour Mills Association v. Government of Sindh 2003 SCMR 162; Messrs Mutual Funds Association of Pakistan (MUFAB) v. Federation of Pakistan 2010 PLC 306; Messrs Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; The Elel Hotels and Investments Ltd., and another v. Union of India AIR 1990 SC 1664; Sohail Jute Mills Ltd. v. Federation of Pakistan PLD 1991 SC 329 and Syed Nasir Ali v. Pakistan 2010 PTD 1924 ref.

(d) Constitution of Pakistan---

----Arts. 73, 199 & 260(1)---Taxation by Government through Money Bill (Finance Act)---Judicial review of Money Bill by High Court---Scope---Legislative competence of Government to raise funds by imposing various taxes must be jealously guarded instead of making an attempt to declare a taxing statute ultra vires---Principles.

Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; Pakistan Burmah Shell Ltd. v. Federation of Pakistan 1998 PTD 1804; Pakistan Flour Mills Association v. Government of Sindh 2003 SCMR 162; Messrs Mutual Funds Association of Pakistan (MUFAB) v. Federation of Pakistan 2010 PLC 306; Messrs Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; The Elel Hotels and Investments Ltd., and another v. Union of India AIR 1990 SC 1664; Sohail Jute Mills Ltd. v. Federation of Pakistan PLD 1991 SC 329; Syed Nasir Ali v. Pakistan 2010 PTD 1924 and Morey v. Doud (1957) U.S. 457 rel.

(e) Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----Ss.2(c), 3 to 6 & Sched.-A, Ch.-1---Constitution of Pakistan, Arts.73, 199 & 260(1)---Constitutional petition---Amendments introduced in Workers' Welfare Fund Ordinance, 1971 through Finance Acts (Money Bills) of 2006 and 2008---Petitioner's plea was that Workers' Welfare Fund being a fee and not a tax, thus, such amendments could not be introduced through Finance Act (Money Bill)---Validity---Definition of word "tax" would be given widest meanings and any levy having attributes of a tax would fall in its ambit irrespective of name and nomenclature or ultimate use of fund generated through particular statute---Word "taxation" as defined in Art. 260(1) of the Constitution would include all types of duties---Levy under Workers' Welfare Fund Ordinance, 1971 could be said to be "duty" falling within meaning and scope of such word "taxation"---Such fund being a charge on income of an industrial establishment would be utilized solely for benefit of workers for providing them housing facilities etc., and not for its payer (industrial establishment)---Element of quid pro quo being a pre-requisite in case of fee was totally missing in case of such Fund---Legislature had not used word "fee" for such fund in the Ordinance, nor was same charged by Government for providing any services to its payer nor would be utilized for benefit of its payer, thus, same had all attributes and characteristics of tax imposed in nomenclature of such fund upon total income of an industrial establishment to be assessed and collected by concerned Taxation Officer---High Court declared such amendments to be intra vires of the Constitution---Principles.

Mutual Fund Association of Pakistan v. Federation of Pakistan 2010 PLC 306; Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi 1999 SCMR 2883; C.I.T v. Kamran Model Factory 2002 PTD 14; East Pakistan Chrome Tannery (P.) Ltd. v. Federation of Pakistan 2011 PTD 2643; M. Ismail and Co. v. Chief Collector PLD 1966 SC 388; Pakistan Agricultural Storage and Service Corporation Ltd. v. Province of Punjab and another PLD 1989 Lah. 367; Collector of Customs v. Sheikh Spinning Mills 1999 SCMR 1402; Biafo Industries v. Federation of Pakistan 2000 CLC 170; Messrs Lever Brothers (Pakistan) Ltd., Karachi v. Market Committee, Rahimyar Khan PLD 1980 Baghdadul Jadid 23; Abdul Majid v. Province of East Pakistan PLD 1960 Dacca 502; Dr. Abdul Jamil v. Malik Nazar Mohyuddin and others PLD 1988 Pesh. 15; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 789; Mir Muhammad Idris v. Federation of Pakistan PLD 2011 SC 213; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan PLD 1997 SC 582; Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; C.A. 1891 Unwin v. Hanson 115; Kawther Grain (Pvt.) Ltd. v. DCIT Gujranwala 1999 PTD 4028; Collector of Central Excise, Bombay-1 and another v. Messrs Parle Exports (P) Ltd. AIR 1989 SC 644; Messrs Hindustan Aluminum Corporation Ltd. v. The State of U.P and another AIR 1981 SC 1649; Messrs Indian Cable Company Ltd. Calcutta v. Collector of Central AIR 1995 SC 64 ref.

Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; Pakistan Burmah Shell Ltd. v. Federation of Pakistan 1998 PTD 1804; Pakistan Flour Mills Funds Association v. Government of Sindh 2003 SCMR 162; Messrs Mutual Association of Pakistan (MUFAB) v. Federation of Pakistan 2010 PLC 306; Messrs Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; The Elel Hotels and Investments Ltd., and another v. Union of India AIR 1990 SC 1664; Sohail Jute Mills Ltd. v. Federation of Pakistan PLD 1991 SC 329; Syed Nasir Ali v. Pakistan 2010 PTD 1924; Morey v. Doud (1957) U.S. 457 and East Pakistan Chrome Tanney (Pvt.) Ltd. v. Federation of Pakistan 2011 PTD 2643 rel.

(f) Interpretation of statutes---

----Preamble of a statute---Validity---Preamble could be used as an aid to ascertain purpose of statute, but could not determine its scope or validity.

(g) Interpretation of statutes---

----Taxing statute, charging section in---Object stated.

In taxing statute, the provision relating to chargeability of the levy determines the jurisdiction and scope of such levy. The charging provision not only defines the mandate of the levy, but also the subject from whom such levy is to be charged and collected.

Dr. Muhammad Farogh Naseem, Khalid Javed Khan, Rashid Anwar, M. Anas Makhdoom, Anwar Kashif Mumtaz, Naveed A. Andrabi, Khalid Mehmood Siddiqui, Ghulam Murtaza, Lubna Pervez, Abid Shahban, Junaid Farooqi, Muhammad Rafi Kamboh, Kazim Hasan, Abdul Rahim Lakhani, Aminuddin Ansari, Ali Mumtaz Shaikh, Abdul Hameed Kazi and Muhammad Adnan for Petitioners.

Amjad Javed Hashmi, Dr. Tariq Masood, Additional Commissioner (Legal), M. Asif Mangi, Standing Counsel, M. Sarwar Khan, Addl. A.G., Chaman Lal, S. Mohsin Imam and S. Riazuddin and Muhammad Saleem Mangrio for Respondents.

Date of hearing: 10th December, 2013.

P L D 2013 Sindh 481

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

ABDUL QADIR TAWAKKAL---Appellant

Versus

THE STATE---Respondent

Criminal Accountability Appeal No.38 of 2012, decided on13th March, 2013.

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

----Ss. 10(d) & 16A---Remission in sentence, entitlement to---Scope---Bar placed by S.10(d) of National Accountability Ordinance, 1999 on remission in sentence---Retrospective effect---Scope---Accused was arrested in the year 1996 and was initially put to trial before the Special Court constituted under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 and at that time he was entitled to pre and post-conviction remissions in sentence---Subsequently after promulgation of National Accountability Ordinance, 1999 (NAB Ordinance) case of accused was transferred to Accountability Court constituted under the National Accountability Ordinance, 1999---Accountability Court conducted regular trial of accused and convicted and sentenced him to imprisonment of 12 years with a fine---Pleas of accused was that he was arrested and put to trial prior to promulgation of NAB Ordinance, therefore, provisions of S.10(d) of the said Ordinance, which prohibited grant of remissions to convicts, could not be made applicable to him; that on the date of his arrest, he was entitled to pre and post-conviction remissions in sentence in accordance with Jail Rules, therefore such right of his could not be taken away by giving retrospective effect to S.10(d) of NAB Ordinance---Validity---Accused was entitled to pre and post-conviction remissions at the time of his arrest and his trial commenced before insertion of section 10(d) in NAB Ordinance, therefore, his right to remission in accordance with the law had already accrued---Subsequent change in law, without a clear intention to vary such right, did not have the effect of depriving accused of the right which was available to him at the time when the offence was committed and trial commenced---Perusal of S.10(d) of National Accountability Ordinance, 1999 did not even remotely suggest that it had retrospective effect or that it had the effect of taking away rights that were available to an accused on the date when the crime was registered or trial commenced---Superintendent Jail was directed to allow remissions to the accused in accordance with the Jail Rules---Application was allowed accordingly.

M. Aslam Mouvia v. Home Secretary PLD 2011 Lah. 323 rel.

Shah Hussain v. State PLD 2009 SC 460 ref.

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

----S. 10(d)---Remission in sentence, entitlement to---Scope---Bar placed by S.10(d) of National Accountability Ordinance, 1999 on remission in sentence---Retrospective effect---Scope---Perusal of S.10(d) of National Accountability Ordinance, 1999 did not even remotely suggest that it had retrospective effect or that it had the effect of taking away rights that were available to an accused on the date when the crime was registered or trial commenced---Provisions of S.10(d) were prospective in nature, therefore, embargo placed by said section on remission of a person convicted by Accountability Court under National Accountability Ordinance, 1999 would have no application to cases where trial had commenced before introduction of S.10(d), and thus rights of such a person were to be decided on the basis of law prevailing at the relevant time.

M. Aslam Mouvia v. Home Secretary PLD 2011 Lah. 323 rel.

Shahab Sarki, Zulfiqar Ali Langah and Shahnawaz M. Sahito for Appellant.

Noor Muhammad Dayo, Special Prosecutor NAB.

P L D 2013 Sindh 488

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

Shaikh MUHAMMAD AAMIR and another---Petitioners

Versus

GOVERNMENT OF SINDH through Home Secretary and 4 others---Respondents

Constitutional Petition No.D-3772 and Misc. No.40570 of 2012, decided on 8th March, 2013.

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

----S. 489-F---Criminal Procedure Code (V of 1898), Ss. 561-A & 154---Constitution of Pakistan, Art. 199---Dishonestly issuing a cheque---Constitutional petition---Quashing of proceedings---"Dishonest issuance" of a cheque---Scope---Undated cheque issued with the mutual agreement that it would not be presented to any bank without written consent of drawer (i.e. issuer of cheque)---Effect---Accused had issued ten undated cheques to complainant-company, and each cheque contained an endorsement on its back stating that it was mutually agreed that the company would not present it to any bank without written consent of accused---Complainant-company, without written consent of accused, presented two of the cheques before a bank and got them dishonoured---F.I.R. under S.489-F, P.P.C was lodged against accused---Plea of accused that cheques were issued with a clear understanding that they would not be presented unless consent in writing was obtained from him, therefore, neither there was any dishonesty on his part nor ingredients of S.489-F, P.P.C were attracted, thus, F.I.R. was a result of mala fide of complainant-company---Validity---Undated cheques were admittedly issued by accused on different dates with the condition that they should not be presented without his written consent, which condition was accepted by complainant-company without any objection, therefore, presentation of cheques without obtaining written consent of accused was totally unauthorized and would not bring such presentation within the mischief of "dishonest issuance" as the cheques were not issued by accused for payment---No successful prosecution of accused was possible even if the allegations in the F.I.R. were not rebutted, therefore, present criminal proceedings were nothing but an abuse of process of the court---Proceeding emanating from F.I.R. under S.489-F, P.P.C were quashed in circumstances---Constitutional petition was allowed accordingly.

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

----S.489-F---Offence of dishonestly issuing a cheque---Pre-requisites---Basic ingredients of S.489-F, P.P.C were the "dishonest issuance of a cheque" towards repayment of a loan or fulfilment of an obligation, and that the cheque was dishonoured on presentation.

Mian Allah Ditta v. The State 2013 SCMR 51 rel.

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

----S. 489-F---Dishonestly issuing a cheque---Words "dishonest issuance" used in S.489-F, P.P.C---Scope---Words "dishonest issuance" reflected the state where the drawer had issued the cheque directing payment of the amount mentioned therein knowing that he had no funds, and that on presentation the cheque would be dishonoured.

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

----Ss. 561-A & 154---Quashing of criminal proceedings by High Court in exercise of its inherent powers---Scope---Power to quash proceedings in criminal cases was to be exercised sparingly and that too in extra-ordinary cases where the court was convinced that the prosecution was mala fide and/or motivated or that the trial of person was nothing but a farce and abuse of process of law.

Rana Shahid Ahmed Khan v. Tanveer Ahmed 2011 SCMR 1937 rel.

Mohsin Shahwani for Petitioners.

Nazir Tanoli and Abdul Latrif Shaikh for Respondent No.4.

Sher Muhammad K. Shaikh, A.A.G.

Ali Haider Saleem, A.P.G.

ASI Munir Ahmed and ASI Shahzad of P.S.Mithdar.

P L D 2013 Sindh 494

Before Irfan Saadat Khan, J

Haji Syed IQBAL AHMED---Applicant

Versus

Sahibzada Syed LIAQUAT ALI---Respondent

Civil Revision Application No.181 of 2007, decided on 28th January, 2013.

Damages---

----Compensation for mental torture/agony---Quantum of damages to be awarded to the plaintiff, determination of---Principles---No yardstick or definite principle for assessing damages could be determined---Only a tentative assessment was to be made with regard to assessing fair compensation which, even though was the sole discretion of the court, however, a number of factors were to be considered before granting compensation---Adequate care should be taken while determining the quantum of the amount---Court should be vigilant seeing whether the claim was fanciful or remote keeping in view the paying capacity of the person upon whom the said damages had been awarded---Amount awarded must be reasonable and should not appear punitive or exemplary and was to be determined in all fairness looking into the facts of the case---Assessment of damages should be fair ,reasonable and dependent upon the facts of the case , and should appear to be genuine in a judicial parlance---Court was entitled to allow damages looking into the peculiar facts and circumstances of a case but special care should be taken while determining the quantum of the award.

Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 ref.

Muhammad Rafique Memon v. Hakim Ali 2010 CLC 1957 and Abdul Wahab Abbasi v. Gul Muhammad Hajano PLD 2008 Kar. 558 rel.

Rahid Raees for Applicant.

Atta Hussain Gaddi Pathan for Respondent.

Date of hearing: 21st January, 2013.

P L D 2013 Sindh 501

Before Nadeem Akhtar, J

MUHAMMAD IBRAHIM---Applicant

Versus

PROVINCE OF SINDH through D.C.O. Revenue and 4 others---Respondents

Civil Revision Application No.174 of 2010, decided on 19th March, 2013.

Islamic law---

----Gift---Gift deed neither finding mention of acceptance of gift by donee nor delivery of possession of property to him---Gift deed mentioned that donee would be entitled to his share after death of donor and during life time of donor, donor would remain owner of property to extent of his share---Validity---Gift in order to be valid one must be absolutely unconditional---Gift would become void in case any condition was imposed by donor---Such deed in view of such major defects therein could not be treated as a valid gift---Illustration.

Saeeduddin Sididqui for Applicant.

Muhammad Azeem Panhwar, State Counsel for Respondents Nos. 1 to 4.

Ejaz Ali Hakro for Respondent No.5.

Date of hearing: 26th February, 2013.

P L D 2013 Sindh 508

Before Aqeel Ahmad Abbasi, J

AMMAR FAROOQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.40 of 2013, decided on 13th March, 2013.

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

----S. 426---Penal Code (XLV of 1860), S. 320---Qatl-e-khata by rash or negligent driving---Suspension of sentence---Bail, grant of---Allegation against accused was that he drove his motorcycle rashly and negligently and hit the victim, which resulted in her death---Trial Court convicted accused under S.320, P.P.C and sentenced him to 10 years' imprisonment and also directed him to pay Rs.700,000 as Diyat to the legal heirs of deceased-victim---Validity---Except complainant, who was husband of deceased, no eye-witness of the incident had been examined---None of the prosecution witnesses directly implicated the accused for the crime---Admittedly accused was arrested subsequently on the pointation of a prosecution witness, who was not examined---Trial Court did not consider any medico-legal report of deceased showing nature of her injuries and cause of her death---Impugned judgment of Trial Court was also silent about identification of accused as the person who hit the deceased---Sentence imposed on accused by Trial Court was suspended in circumstances during pendency of his appeal and he was enlarged on bail.

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

----S. 426---Application for suspension of sentence during pendency of appeal---Appreciation of evidence---Scope---While hearing an application under S.426, Cr.P.C , seeking release of accused during pendency of appeal by suspending his sentence, deeper appraisal of evidence was to be avoided, however apparent defects in the impugned judgment could not be ignored---Where the matter required consideration and examination of evidence, such exercise could not be undertaken at the time of hearing an application under S.426, Cr.P.C.

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

----S. 426---Suspension of sentence during pendency of appeal---Bail, grant of---Discretion of Appellate Court---Scope---Appellate Court's discretion to grant bail under S.426, Cr.P.C was not fettered or restricted by reference either to the conviction or to the sentence passed against the accused by Trial Court, but like all discretions vested in courts, discretion under S.426, Cr.P.C had to be exercised judicially.

Altaf Hussain Shah v. The State 1986 PCr.LJ 2202 and Abdul Ghaffar v. Anwar ul Hassan 1978 SCMR 149 rel.

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

----S. 426---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Conviction and sentence for murder---Suspension of sentence---Bail, grant of---Scope---Section 426, Cr.P.C. did not impose any limitation on the powers of the High Court to grant bail to an accused convicted even for murder.

Abdullah Khan v. Karam Dad Khan and another 1986 SCMR 1064 rel.

Naheed Afzal Khan for Appellant.

Muhammad Akbar Khan for the Complainant.

Muntazir Mehdi, A.P.G for the State.

Date of hearing: 7th March, 2013.

P L D 2013 Sindh 513

Before Aziz-ur-Rehman, J

Captain Syed WARASAT HUSSAIN---Plaintiff

Versus

MUHAMMAD AHAD SAAD---Defendant

Old Suit No.1037 of 2000 and New Suit No.1396 of 2002, decided on 17th April, 2013.

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

----Art. 133---Failure of defendant to cross-examine plaintiff and lead evidence in rebuttal---Effect---Material fact deposed in examination-in-chief, if not rebutted in cross-examination, would be deemed to be admitted---Plaintiff's assertions and evidence would be deemed to be admitted by defendant---General denial on part of defendant in written statement would be of no evidentiary value---Averments made in written statement could not be treated as evidence for failure of defendant to examine himself---Only admissions made directly or indirectly in plaint and/or written statement could be used and/or relied upon.

Friends Engineering Corporation The Mall Lahore v. Government of Punjab and 4 others 1991 SCMR 2324 and Purushotham Haridas and others v. Messrs Amruth Ghee Co. Ltd., Guntur and others [AIR 1961 And. Pra. 143 (V 48 C 41)].

Nazir Ahmed Khan and 2 others v. Muhammad Ashraf Khan and others PLD 1975 Kar. 598; Muhammad Noor Alam v. Zair Hussain and 3 others 1988 MLD 1122; Fateh Muhammad through L.Rs. and others v. Fida Hussain through LRs. 2007 CLC 1885; Hakimuddin v. Faiz Bux 2007 SCMR 874 and Muhammad Yasin v. Shabbir Ahmed 1985 CLC 2111 rel.

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

----Art.133---Material fact deposed in examination-in-chief, if not rebutted in cross-examination, would be deemed to be admitted.

Nazir Ahmed Khan and 2 others v. Muhammad Ashraf Khan and others (PLD 1975 Kar. 598; Muhammad Noor Alam v. Zair Hussain and 3 others 1988 MLD 1122; Fateh Muhammad through L.Rs. and others v. Fida Hussain through LRs. 2007 CLC 1885; Hakimuddin v. Faiz Bux 2007 SCMR 874 and Muhammad Yasin v. Shabbir Ahmed 1985 CLC 2111 rel.

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

----O.XX, R.16---Suit for accounts, relief in---Scope---Such relief being an equitable relief would always be available to party, if he besides entitled for account had not been given such accounts.

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

----O.XX, R.16---Provisions of O.XX, R. 16, C.P.C.---Scope---Such provisions in addition to suit for rendition of accounts between principal and agent would cover all other suits for accounts---Principles.

Bare perusal of Order XX, Rule 16, C.PC. would show that it is not restricted only to "suit for accounts" between the principal and agent but it also covers all other suits for accounts, where it is found necessary to ascertain the amount of money due to or from any party to other party. In such eventuality, a "preliminary decree" is necessarily passed before a final decree. No preliminary decree, however, needs to be passed where the "liability of account" is not established or otherwise, necessary scrutinies of the accounts are not required.

Ram Lal Kapur and Sons v.Asian Commercial Assurance Co. Ltd. AIR 1953 Lah. 483; Messrs Friend Engineering Corporation, The Mall Lahore v. Government of Punjab and 4 others 1991 SCMR 2324; Purushotham Haridas and others v. Messrs Amruth Ghee Co. Ltd. Gantur and others AIR 1961 And. Pra. 143 (V 48 C 41) and Pandurang and others v. Gunwand Rao and others AIR 1928 Nag. 299 (300) rel.

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

----Art. 133---Assertions made in plaint and evidence led by plaintiff gone unrebutted/unchallenged---Effect---Presumption would be that plaintiff's evidence besides being true and correct was deemed to be admitted by defendant---Illustration.

Adnan Iqbal Chaudhry for Plaintiff.

Nemo for Defendant.

Date of hearing: 13th March, 2013.

P L D 2013 Sindh 532

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

IFTEKHAR ALI---Applicant

Versus

The STATE---Respondent

Criminal Revision Applications Nos.48 and 49 and C.Ms. Nos.1797 and 1794 of 2013, decided on 23rd April, 2013.

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

----S. 239---Penal Code (XLV of 1860), Ss.302/324/34/109---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, abetment---Consolidation of trial of accused and co-accused---Scope---During trial case of accused was bifurcated from case of co-accused as the former remained an absconder and non-bailable warrants were issued against him---Accused subsequently joined trial and his case proceeded separately---Application filed by accused before Trial Court under S.239, Cr.P.C. for consolidation of cases was dismissed---Validity---Trial Court had rightly observed that case of accused was bifurcated from case of co-accused to avoid delay in conclusion of trial; that evidence of 13 prosecution witnesses during trial of co-accused and 15 prosecution witnesses during trial of accused had been recorded and all prosecution witnesses were cross-examined at length---Inconvenience would be caused to the prosecution witnesses if they were recalled and both cases were amalgamated---Accused could not point out any prejudice that would be caused by if trials were conducted separately---Revision application was dismissed accordingly.

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

----Ss. 235 & 239---Trying persons/offences jointly---Scope---Court was not bound in every case to try offences or persons jointly.

Noor Ahmed v. The State PLD 1964 SC 120 rel.

Muhammad Riaz Abbasi for Applicant.

Ali Haider Saleem, Asstt. Prosecutor General, Sindh.

P L D 2013 Sindh 536

Before Faisal Arab and Muhammad Shafi Siddiqui, JJ

Messrs SYNGENTA PAKISTAN LTD. through Authorised Supply Manager---Petitioner.

Versus

S.M. ASIF and 2 others---Respondents

Constitutional Petition No.1365 of 2012, decided on 31st May, 2013.

(a) Constitution of Pakistan--

----Arts. 207(3)(b) & 199---Interpretation and object of Art.207, Constitution---Expression a person who has held office as a permanent Judge of a High Court, shall not plead or act in any court or before any authority within its jurisdiction", used in Art.207(3)(b) of the Constitution---Scope---Phrase "within its jurisdiction"---Connotation---Question before High Court was as to whether a retired permanent Judge of the High Court could plead or act in cases before the High Court, of which he was a permanent Judge---Held, that interpretation of the phrase "any court within its jurisdiction" used in Art.207(3)(b) of the Constitution could not be given a restricted meaning so as to mean only the courts that were subordinate to the High Court as the term "within its jurisdiction" also included the entire judicial jurisdiction of the High Court including original jurisdiction as well as appellate jurisdiction---Courts that function as the High Court could not be excluded from the ambit of the phrase "any court within its jurisdiction" as appearing in Art.207(3) of the Constitution---Term "any court" appearing in Art.207(3) of the Constitution, in fact embraced the entire judicial jurisdiction of the High Court under which the High Court functioned as well as the courts that were subordinate to the High Court , and therefore, when Art.207(3) spoke of "any courts" it referred not only to all courts of subordinate jurisdiction, but also courts that functioned under the banner of the High Court under its original or appellate jurisdiction---Constitution created the institution of the High Court and all courts that function under said institution could only be termed as courts that were functioning within the jurisdiction of the High Court---Main object behind Art.207(3)(b) of the Constitution was to maintain the dignity of the High Court and said object would be seriously impaired in case permanent Judges after their retirement were allowed to plead cases in the High Court of which they were permanent Judges---High Court further held, that bar on a person who had been a permanent Judge of the High Court as contained under Art.207(3)(b) of the Constitution was not limited only to appearance before the courts which were under the administrative control of the said High Court but the bar also encompassed within its ambit, courts which functioned as the High Court.

PLD 1961 SC 431; PLD 1969 SC 623; PLD 1990 SC 57; PLD 2013 SC 279; Mr. S.M. Zafar's Book "Understanding Statutes-Canons of Construction"; Principle of Statutory Interpretation by Guru Prasanna Singh; N.S.Bindra's Interpretation of Statuties and Maxwell on the Interpretation of Statutes by P.St.J. Langan ref.

PLD 1965 SC 527 and PLD 1950 Lah. 384 rel.

(b) Constitution of Pakistan--

----Art. 207(3)(b)---Expression "A person who has held office as a permanent Judge of a High Court, shall not plead or act in any court or before any authority within its jurisdiction", occurring in Art.207(3)(b) of the Constitution---Scope---Bar on a person who had been a permanent Judge of the High Court as contained under Art.207(3)(b) of the Constitution was not limited only to appearance of such a person before courts which were under the administrative control of the said High Court but said bar also encompassed within its ambit, the courts which functioned as the High Court---Said restriction under Art.207(3)(b) of the Constitution, however, was only with regard to the acting or pleading of a case before the court and the Chief Justice of a High Court may require a retired Judge to render certain services for the institution of the High Court which services in no way required a retired Judge to plead a case before a court of law, be it High Court or its subordinate courts and in such a case, a retired Judge's services could be engaged.

(c) Jurisdiction---

----Meaning of---Term "jurisdiction" in legal parlance is used in a variety of senses and takes its colour from its context---Conventionally the term "jurisdiction" was referable to territorial, pecuniary, relating to a person or as to the character of a question to be decided and meant control, power or authority.

Shahid Anwar Bajwa for Petitioner.

Ejaz Ahmed, amicus curiae.

Ms. Meena Kumari for Petitioner.

Abdul Ghaffar.

Ms. Iqra Salim, State Counsel.

Date of hearing: 22nd May, 2013.

P L D 2013 Sindh 551

Before Abdul Rasool Memon and Nisar Muhammad Shaikh, JJ

MUHAMMAD YAKOOB GOPANG---Applicant

Versus

PRESIDING OFFICER, HYDERABAD and others---Respondents

Criminal Miscellaneous No.D-251 of 2013, decided on 25th June, 2013.

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

----S. 193---Perjury, nature and proof of---Perjury, was one of the most heinous and moral offence; it was not only an offence punishable under law, but was also against the Injunctions of Islam---Section 193, P.P.C. had provided punishment for intentionally giving false evidence---In order to make out the prima facie case of perjury against any person, it must be shown by positive evidence, or by circumstances of the case that a false statement had been given by him in relation to the proceedings in the court.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.193, 384, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S.6(2)(k)---False evidence, extortion, abetment, common intention---Quashing of proceedings, application for---Trial Court had observed in its judgment that applicant/complainant and Mashir had given false statements before the court and notices under S.193, P.P.C. were ordered to be issued against them---Plea of the applicant was that Mashir had not filed separate reply to notice under S.193, P.P.C., but he adopted the reply submitted by him, despite the fact that notice issued against the Mashir had been withdrawn, while notice against him was still pending---Applicant had contended that he was being insisted upon for personal appearance, which was discrimination on the part of the Trial Court---Validity---No previous statement of the applicant was recorded on oath, in such circumstances, there was nothing before the Trial Court which constituted an offence of perjury under S.193, P.P.C., against the applicant---Notice issued to applicant/complainant, therefore, amounted to abuse of process of court, which could not be allowed as High Court had powers under S.561-A, Cr.P.C. to prevent abuse of process of court or to secure ends of justice---Show-cause notice under S.193, P.P.C., issued against applicant, and proceedings emanating therefrom were quashed, in circumstances.

Applicant in person.

Muhammad Iqbal Kalhoro Additional Prosecutor General Sindh for the State.

Date of hearing: 25th June, 2013.

P L D 2013 Sindh 555

Before Muhammad Ali Mazhar, J

MEDIA MAX (PVT) LTD. Through Chief Executive---Plaintiff

Versus

ARY COMMUNICATION PVT. LTD. Through Chief Executive and another---Defendants

Suits Nos.115, 124 and 165 of 2012, decided on 26th June, 2013.

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

----O. XXXIX, Rr. 1, 2 & 4---Injunction order---Powers of court to amend or set aside such order---Scope stated.

The court has ample powers to discharge, vary or set aside the injunction order and even where subsequent to passing of the injunctive order, some development took place and new circumstances emerged requiring consideration, the court may in appropriate cases vary, modify or even discharge the injunction order.

Muhammad Qasim v. Tahir Saleem and another 2004 MLD 1820; Muhammad Inam v. Dr. Muhammad Safdar 1988 CLC 230 and Sindh Madrasatul Islam Board Society v. Shamim 1982 CLC 2242 ref.

(b) Interpretation of statutes---

----Illustrations attached with a section of statute---Scope stated.

Illustrations should not be read as extending the meaning of a section, they should also not be read as restricting its operation, especially so when the effect would be to curtail a right which the plain words of the section would confer.

Principles of Statutory Interpretation, Ninth Edn. by Justice G.P. Singh; Mahomed Sydeol Ariffin v. Yeah Oai Gawk, 43 IA 256; (1916) 2 AC 575 and Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji AIR 1938 PC 67 rel.

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

----S. 202---Agent's authority coupled with an interest in subject matter of agency, determination of---Essential factors stated.

Where an agreement is entered into on a sufficient consideration whereby an authority is given for the purpose of securing some benefit to the donee of such authority, such an authority is irrevocable. The interest of the agent in the subject of the agency may be inferred from the language of the document creating the agency, and from the course of dealings between the parties. It is the existence of the interest and not the mode in which it is given, that is of importance. The interest which an agent has in effecting a sale and the prospect of remuneration to arise therefrom do not constitute such an interest as would prevent the termination of the agency. The prospect of earning a commission is not an interest for this purpose. Where the agent has only to get commission after the accrual of the net collection, he cannot prima facie be said to have any interest. The rule of S. 202 of Contract Act, 1872 applies to the cases, where the authority is given for the purpose of being a security or as a part of security, and not to cases where the authority is given independently and the interest of the donee of the authority arises afterwards and incidentally only. As for instance, the goods are consigned to a factor for sale. This confers an implied authority to sell. Afterwards the factor makes advances. This is not an authority coupled with an interest, but an independent authority and interest subsequently arising.

Raja Abdul Hameed v. Shehri-CBE PLD 2010 Kar. 213; Abdul Habib Rajwani v. Messrs Brothers Industries Ltd. 2007 YLR 590; Cooper & Co. (Pvt.) Ltd. v. Laurel Navigation (Mauritius) Ltd. PLD 2009 Kar. 288; Messrs Time N Nisions International (Pvt.) Ltd. v. Dubai Islamic Bank Pakistan Ltd. PLD 2007 Kar. 278; Messrs Fospak (Private) Ltd. v. Fosroc International Ltd. PLD 2011 Kar. 362; Messrs Al-Mumtaz Agencies v. Millat Tractors Ltd. 2006 MLD 367; Messrs World Wide Trading Co. v. Sanyo Electric Trading Co. PLD 1986 Kar. 234; Puri Terminal Ltd. v. Government of Pakistan 2004 SCMR 1092; PLD 2004 SC 860; 2005 CLD 1805; 2005 SCMR 1408; PLD 1989 Kar. 499 and 1999 YLR 1529 ref.

Contract and Specific Relief Acts by Polluck and Mulla 13th Edn. Vol.II rel.

(d) Contempt of court---

----Charge of---Duty of court stated.

The issue of contempt of court is a serious issue, which is always a matter between the court and the alleged contemnor, but before framing issue or charge, it is incumbent upon the court to first examine the matter whether any prima facie case of contempt is made or not, which warrants on merits issuance of show cause or framing of issue or charge.

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

----O. XL, R. I --- Receiver of property, appointment of --- Object of such appointment and duty of court stated.

The object and purpose of the appointment of Receiver may generally be stated to be the preservation of the subject matter of the litigation pending judicial determination of the rights of the parties. Appointment of Receiver is an act of the court and made in the interest of justice. The words "just and convenient" do not mean that the court is to appoint Receiver simply because the court thinks it convenient. The order is discretionary and the discretion must be exercised in accordance with the principles on which judicial discretion is exercised. The terms "just and convenient" used in O.XL, R.1, C.P.C.does not mean arbitrary whim or pleasure of the court. Appointment of Receiver deprives a person from enjoyment of the property, therefore, it has been regarded as harsh remedy.

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

----O. XL, R. I & O. XXXIX, Rr. 1, 2---"Appointment of Receiver" and "granting of temporary injunction" in a case---Distinction stated.

The distinction between a case in which temporary injunction may be granted and a case in which a Receiver may be appointed is that while in either case it must be shown that property should be preserved from waste and alienation. In the former case, it is sufficient that if it be shown that the plaintiff in the suit has a fair question to raise as to the existence of the right alleged, while in the latter case a good prima facie title to the property over which the Receiver is sought to be appointed as to be made out. A Receiver cannot be appointed unless there is some substantial background for such interference that the property in suit dissipated or other irreparable mischief may be done, unless the court appoints a Receiver.

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

----O. VII, R. 11(d)---Rejection of plaint for being barred by law---Material essential to be considered by court stated.

Only the contents of the plaint may be looked into without any extraneous consideration, and even the court may not see the written statement/affidavits etc., filed by the defendants. Court has to confine itself only to the averments made in the plaint and has to take the contents thereof to be true and cannot go beyond the same. If, however, on taking the averments made in the plaint, the court finds the plaint to be barred by law, the court can reject the plaint, but cannot do so by resolving the contested facts. The plaint can only be rejected where its perusal shows that the relief claimed by the plaintiff was barred under any provision of law or a suit on the basis of it was incompetent.

The court cannot take into consideration the pleas raised by the defendants in the suit in his defence as at that the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record.

Muhammad Shabbir v. Faraha Bibi and others 2010 CLC 1603; Badal v. Mansoor Ahmed Awan and others 2010 CLC 1968 and Bano alias Gul Bano v. Begum Dilshad Alam and others 2011 CLC 88 rel.

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

----O. VII, R. 11(a)---Rejection of plaint for non-disclosing cause of action---Scope---Totality of facts constituting a cause of action must co-exist, thus, any of such facts missing in plaint would render suit as incompetent---Right to seek relief on basis of alleged cause of action must be in existence at time of institution of suit---Lack or weakness of proof would not justify rejection of plaint for want of cause of action---Principles.

The words "cause of action" means bundle of facts " which if traversed, a suitor claiming relief is required to prove for obtaining judgment. Nevertheless, it does not mean that even one such fact, a constituent of cause of action is in existence, the claim can succeed. The totality of the facts must co-exist, and if anything is wanting the claim would become incompetent. A part is included in the whole, but the whole can 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 is done, but also at the time of the institution of the claim. A suitor is required to show that not only a right has 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. It has no relation to the defence that may be set up nor does it depend upon the character of the relief prayed. Lack of proof or weakness of proof in circumstances of the case did not furnish justification for coming to conclusion that there was no cause of action shown in the plaint.

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

----S. 2(2), O. XII, R.6, O. XX, Rr.12 to 16, 18 & O.XXXIV, Rr.2 to 5, 7 & 8---"Preliminary decree", "final decree" and "judgment/decree on basis of admissions in pleadings"---Distinction stated.

A preliminary decree declares the rights and obligations of the parties leaving further matters to be determined in subsequent proceedings. Such decrees are normally determinative of controversies of a fundamental nature. C.P.C. provides and vests in the court to pass preliminary decrees under Order XX, Rules 12 to 16 and 18 and under Order XXXIV, Rules 2 to 5 and 7 and 8. A preliminary decree and a final decree are both distinct and independent entities. According to the Explanation attached to section 2(2), C.P.C., a decree is preliminary when further proceedings have to be taken in the suit and the suit has not been completely disposed of. In contrast, Order XII, Rule 6, C.P.C. is embedded with the language that a party may apply for a judgment on admission without waiting for the determination of any other question between the parties and the decree can be drawn up in respect of the portion of the admitted claim.

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

----O.XII, R.12---Passing of judgment on basis of admissions in pleadings---Duty of court stated.

Order XII, Rule 6, C.P.C. enables a court upon application by either party to dispose of the suit with regard to which there is no dispute between the parties. The entire plaint or written statement is required to be read for the purposes of finding out the nature of admission. For the purposes of decreeing suit on admission, it is necessary that the admission must be clear, specific, unambiguous, definite and categorical and court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission.

Bolan Beverages (Pvt.) Ltd. v. Pepsico INC and others PLD 2004 SC 860; Roomi Enterprises (Pvt.) Ltd. v. Stafford Miller Ltd. 2005 CLD 1805; Sinaullah v. Muhammad Rafique 2005 SCMR 1408; Gulfam v. Ali Muhammad PLD 1989 Kar. 499; Khadim Hussain v. Muhammad Fazil 1999 YLR 1529 and Faisalabad Development Authority v. Messrs Sarwar Latif Associates 2012 CLD 1380 ref.

CDGK v. Faqir Muhammad 2008 CLC 645; G.R.Syed v. Muhammad Afzal 2007 SCMR 433; Messrs Gerry's International (Pvt.) Ltd. v. Messrs Qatar Airways PLD 2003 Kar. 253; Macdonald Layton and Company Pakistan Ltd. v. Uzin Export Import Foreign Trade Co. 1996 SCMR 696; Syed Waqar Haider Zaidi v. Mst. Alam Ara Begum 2013 CLC 535 and 2007 SCMR 1933 rel.

Abid S. Zuberi and Haseeb Jamali for Plaintiff (in Suits No.115 and 165 of 2012 and for the Defendant in Suits No.124 of 2012.

Anwar Mansoor Khan, Asim Mansoor and Muhammad Ali Talpur for Defendants (in Suits Nos. 115 and 165 of 2012 and for the Plaintiff in Suit No.124 of 2012).

Dates of hearing: 2nd, 23rd January, 12th February and 15th March, 2013.

P L D 2013 Sindh 586

Before Sajjad Ali Shah and Aftab Ahmed Gorar, JJ

ASIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.290 of 2010, decided on 26th November, 2012.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic---Appreciation of evidence---Accused was allegedly apprehended on basis of prior information and 11 kilograms of chars was recovered from the back seat of the vehicle, wherein accused was sitting---Trial Court convicted and sentenced accused under S.9(c) of Control of Narcotic Substances Act, 1997---Accused contended that according to F.I.R. recovery was effected from the back seat of the vehicle but according to the charge framed recovery was effected from the dashboard of the vehicle; that complainant (police official) had investigated the case himself; that samples were sent to chemical examiner after a delay, and that no private persons were engaged to witness the recovery proceedings---Validity---Defect in framing of charge was not of such nature that would vitiate the entire proceedings---Evidence adduced did not contain any material contradictions about the material aspects of the case---Since there was no objection from the accused that contraband was unsealed or tampered with or manipulated, therefore delay in sending the same for examination would not affect the result of analysis---Report of chemical examiner was in positive and defence had neither disputed nature of substance nor challenged the authenticity of the report of chemical analyst---Although no private person had been associated to witness recovery proceedings, but compliance with provisions of S.103, Cr.P.C. was excluded in narcotics cases by virtue of S.25 of Control of Narcotic Substances Act, 1997---Prosecution had produced tangible and trust-worthy ocular and circumstantial evidence against the accused to connect him with the commission of the offence---Appeal was dismissed accordingly.

2006 MLD 1121; PLD 2006 Pesh. 39 and PLD 2009 SC 39 rel.

PLD 2004 Kar. 201; PLD 2009 Kar. 191; 2010 PCr.LJ. 350 and PLD 2005 Kar. 128 distinguished.

(b) Criminal trial-

----Prosecution witnesses, evidence of---Minor discrepancies---Effect---Minor discrepancies in evidence of prosecution witnesses were to be ignored and no importance could be attached thereto---Mere discrepancies in details of fact did not amount to contradiction.

Sardar Khan v. State PLD 2005 Pesh. 166 and Riaz Muhammad v. State PLD 1993 FSC 25 rel.

(c) Control of Narcotic Substances (Government Analyst) Rules, 2001---

----Rr. 4 & 5---Time period for sending samples for examination---Breach---Effect---Language employed in Rr.4 & 5 of Control of Narcotic Substances (Government Analyst) Rules, 2001, coupled with the fact that no consequence was provided for their breach, made the said rules advisory and not mandatory.

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

----S. 21---Control of Narcotic Substances (Government Analyst) Rules, 2001, non-compliance with---Search, seizure and arrest proceedings---Effect---Failure to follow the rules under Control of Narcotic Substances (Government Analyst) Rules, 2001 would not render the search, seizure and arrest under Control of Narcotic Substances Act 1997 absolute nullity and non-est.

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

----S. 156---Weakness in investigation---Effect---Weakness of investigation due to insufficiency of police or otherwise would not benefit the accused and damage the prosecution case.

2001 SCMR 36 rel.

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

----S. 156---Complainant/police official also acting as investigating officer of the case---Legality---No legal prohibition existed for a police officer to be complainant as well as investigating officer of a case, and in such an event trial would not be vitiated.

2003 PCr.LJ 82 and PLD 2005 Kar. 4 rel.

(g) Criminal trial---

----Police witnesses, evidence of---Scope---Police officials were as good and respectable as other reliable witnesses.

Umar Awan for Appellant.

Khadim Hussain, D.P.G. for the State.

Date of hearing: 16th November, 2012.

P L D 2013 Sindh 592

Before Mushir Alam, C.J. and Aftab Ahmed Gorar, J

Khawaja MUHAMMAD ALI and 6 others---Appellants

Versus

SIR JEHANGIR KOTHARI TRUST through Trustees and 16 others---Respondents

High Court Appeal No.131 of 2011, decided on 6th August, 2013.

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

----S. 92 & O.VII, R.11---Law Reforms Ordinance (XII of 1972), S.3---Intra-court Appeal---Suit under S.92, C.P.C.---Scope---Breach of any express or constructive trust created for public purposes of a charitable or religious nature---Classes of persons who could initiate suit for such breach under S.92 of the C.P.C.---Expression "persons having an interest in the Trust" occurring in S.92, C.P.C.---Scope---Plaintiffs were tenants of a building owned by a Trust created for charitable purposes and had initiated suit under S.92, C.P.C. contending that the trustees had planned to dispose of and sell the Trust building---Plaint was rejected on the ground that under S.92 of the C.P.C. plaintiffs had no locus standi to file such suit---Validity---Suit in respect of Trust property could be brought either by the Advocate General himself, or by two or more persons having an interest in the trust provided that such persons had obtained the consent in writing of the Advocate General---Appellants/plaintiffs being merely tenants did not fall within the definition of "persons having an interest in the trust"---Position of tenants would not be disturbed even if the building was sold, except in accordance with law and they would simply cease to be tenants of the Trust and become tenants of the new owners---Suit under S.92 of the C.P.C. must be brought in a representative capacity on behalf of the public at large and not for the enforcement of a private or an individual claim or right---Plaintiffs, in the present case, were asserting individual rights which were personal to themselves and not for the benefit of the public at large---Plaintiffs/appellants were therefore, not "persons having an interest in the trust" hence had no locus standi to institute the suit---Plaint was therefore, rightly rejected---Intra-court appeal was dismissed in circumstances.

Muhammad Irfan Azad v. Mst. Sultana Begum and 8 others PLD 1971 Kar. 91 and Begum Hafizunnisa Qureshi and others v. Shaikh Muhammad Hussain and others 2003 CLC 1156 ref.

Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283 rel.

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

----S. 92---Breach of any express or constructive Trust created for public purposes of a charitable or religious nature---Pre-conditions for the presentation/institution of suit under S.92, C.P.C. stated.

There must be a Trust for a public purpose of a charitable or religious nature; and that the plaint must either allege that there is breach of trust or that the directions of the Court are necessary for the administration of the Trust; and the suit must be representative one on behalf of the public and not for the ascertainment of the personal rights of the plaintiffs and that the relief claimed must be one of the reliefs enumerated in section, 92, C.P.C.

Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283 rel.

(c) Administration of justice---

----Stillborn suit must be buried at its inception, without formal ceremony.

S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338 rel.

Malik Naeem Iqbal for Appellants.

R.F. Virjee for Respondent Nos. 1 to 3.

Ms. Mohammad Younus for Respondents Nos. 4 to 17

P L D 2013 Lahore 1

Before Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ

MUHAMMAD HUSNAIN and another---Appellants

Versus

ADDITIONAL SESSIONS JUDGE, MULTAN and 2 others---Respondents

Intra Court Appeal No.302 of 2011 in Writ Petition No.3221 of 2010, heard on 2nd October, 2012.

(a) Possession---

----Principle---Possession would follow title.

(b) Words and phrases---

----"Proceedings"---Meanings.

Black's Law Dictionary Eighth Edition by Bryan A. Garner at Page 1241 ref.

(c) Words and phases---

----"Proceedings", meaning of---Scope---Word "proceedings" would include appeal.

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

----Ss.3, 4 & 9---Criminal Procedure Code (V of 1898), S.417---Law Reforms Ordinance (XII of 1972), S.3---Order passed under Illegal Dispossession Act, 2005---Right of appeal and revision against such order---Scope---Complaint under Illegal Dispossession Act, 2005 accepted by Trial Court---Constitutional petition filed by accused (appellants) challenging such order of Trial Court dismissed by High Court---Intra-Court Appeal filed by accused---Competency---Complainant's plea that order of Trial Court was appealable, thus, Intra-Court Appeal would not be maintainable against dismissal of constitutional petition filed by accused---Validity---Rights of appeal and revision were the creation of statute---Where special statute gave rise to a legal right, but did not confer right of appeal and ordinary courts were competent to decide such right, then ordinary rules of procedure would apply to such courts and appeal would lie if allowed under such rules---Right of appeal had not been provided under Illegal Dispossession Act, 2005---Sessions Court while exercising power under Illegal Dispossession Act, 2005 acted as a normal court and not as a Special Court---Provisions of Criminal Procedure Code, 1898 including right of appeal and revision provided thereunder would apply to Sessions Court while deciding a complaint under Illegal Dispossession Act, 2005---Word "proceedings" would include appeal---Criminal Procedure Code, 1898, was made applicable to proceedings under Illegal Dispossession Act, 2005 by virture of S.9 of said Act, thus, right of appeal and revision existed against orders passed under Illegal Dispossession Act, 2005---Right of appeal was available in the present case against impugned order of Trial Court---High Court dismissed Intra-Court Appeal for being incompetent.

Bashir v. Additional Sessions Judge, Faisalabad and 4 others PLD 2010 SC 661; Pakistan Oilfield Ltd. Rawalpindi v. Province of Punjab and others 2010 SCMR 328; Nasrullah and others v. The State 2011 SCMR 549; Waqar Ali and others v. The State through Prosecutor General/Advocate-General Peshawar and others PLD 2010 SC 181; Muhammad Fazal and others v. Saeedullah Khan and others 2011 SCMR 1137; Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 SC 231 and Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 ref.

Black's Law Dictionary Eighth Edition by Bryan A. Garner at Page 1241 and R.M. A. RA. Adiakappa Chettiar and another v. R. Chandrasekhara Thevar PLD 1947 SC 279 rel.

Rana Mehboob Ali for Appellants.

Malik Maqbool Hussain Thaheem for Respondent No.2.

Mirza Muhammad Saleem Baig, Additional Advocate-General for the State.

Date of hearing: 2nd October, 2012.

P L D 2013 Lahore 8

Before Sardar Tariq Masood, J

MUHAMMAD SARWAR---Petitioner

Versus

MUHAMMAD AFZAL and 2 others---Respondents

Criminal Revision No.588 of 2012, decided on 27th September, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 161, 162 & 439---Qanun-e-Shahadat (10 of 1984), Art.140---Penal Code (XLV of 1860), S.302/34---Criminal trial---Word "shall" used in S. 162 Cr.P.C.---Scope---Previous statement, confronting of---Principle---Statement before police---During trial, accused produced defence witness who had appeared before police during investigation and his statement was also recorded under S. 161 Cr.P.C.---During cross-examination, complainant was not allowed to confront said defence witness with his statement recorded earlier by Investigating Officer during investigation---Validity---Statement recorded under S.161 Cr.P.C. could only be used by accused for such limited purpose and the same could not be used for any other purpose--- Legislature used word "shall" for making absolute bar of using such statement for any other purpose---Article 140 of Qanun-e-Shahadat, 1984, was controlled by S.162, Cr.P.C. and prohibition contained in S.162 Cr.P.C. could not be defeated---Statement under S. 161, Cr.P.C. recorded by police could not be utilized as substantive evidence and it could only be utilized under S.162 Cr.P.C. to contradict such witness in the manner provided by Art. 140 of Qanun-e-Shahadat, 1984---When statement to be confronted was recorded under S.161 Cr.P.C., then rider of S.162, Cr.P.C. would apply but Art. 140 of Qanun-e-Shahadat, 1984, being part of general law of evidence had its own independent legal efficacy and application upon any other previous statement of witness, which might have been made by him in some other judicial, quasi-judicial, administrative, executive proceedings or inquiries or before such of the forums or even privately made through some instrument i.e. agreement or affidavit, could be confronted to that person, if relevant, in any criminal case, however subject to its proof--- High Court maintained order passed by Trial Court whereby complainant was not permitted to confront defence witness with his earlier statement recorded under S.161 Cr.P.C.---Revision was dismissed in circumstances.

Sarfraz Talib v. Abdul Waheed 2001 PCr.LJ 698 distinguished.

Shaukat Ali v. The State 2005 MLD 147 and The State and others v. Abdul Khaliq and others PLD 2011 SC 554 ref.

Aurang Zaib Marl for Petitioner.

Muhammad Naeem Sheikh, D.P.G. for the State.

Ch. Farooq Haider, Muhammad Hanif Raja and Malik Shahzad Shabbir for Respondents Nos. 1 and 2.

P L D 2013 Lahore 12

Before Syed Muhammad Kazim Raza Shamsi, J

MOHSAN ALI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, FAISALABAD and another---Respondents

Criminal Miscellaneous No.64-Q of 2011, decided on 18th October, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 28, 30, 561-A & Sched.-II---Penal Code (XLV of 1860), Ss.337-A(i), 337-L(2), 365, 147 & 148---Trial---Court, jurisdiction of---Addition of offence---Investigating officer prepared his investigation report and submitted challan before Magistrate (First Class) for trial but the Magistrate while taking cognizance observed that offence under S.367 P.P.C. was made out and he had no jurisdiction to try the same---Magistrate sent reference to Sessions Judge, who entrusted the same to Additional Sessions Judge for trial---Plea raised by accused was that in Sched.-II of Cr.P.C., offence under S.367, P.P.C. was triable by Court of Session and Judicial Magistrate could take cognizance of the case---Validity---Provisions of S.30, Cr.P.C. excluded applicability of S. 28, Cr.P.C. in clear terms by making exception to it in respect of courts mentioned in Column 8 of Schedule-II of Cr.P.C.---Magistrate First Class with powers under S.30, Cr.P.C. had jurisdiction to try all those offences, which were not punishable with death---Judicial Magistrate by sending reference to Sessions Judge for entrusting case to Court of Session, as offence under S.367, Cr.P.C. was not triable by it, was an illegal exercise of jurisdiction by the court concerned---High Court set aside order of Judicial Magistrate as well as that of Sessions Judge by which case was entrusted to Additional Sessions Judge for trial---High Court withdrew the case from court of Additional Sessions Judge and entrusted the same to Magistrate S. 30, Cr.P.C. for conclusion of trial---Petition was allowed in circumstances.

Allah Wasaya and others v. Sikandar Hayat and others 2012 SCMR 193 and Noor Hussain v. The State PLD 1996 SC 88 ref.

Ch. Muhammad Yousaf for Petitioner.

Muhammad Ishaque, D.P.G. for the State.

Zafar Ullah Cheema for Respondent No.2.

P L D 2013 Lahore 17

Before Shahid Waheed, J

SHAKOOR---Petitioner

Versus

PROVINCE OF PUNJAB through Collector and others---Respondents

Civil Revision No.2581 of 2012, heard on 25th September, 2012.

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

----O.XLI, R.27---Appeal, pendency of---Additional evidence, production of---Scope---Party that had opportunity, but elected not to produce evidence, could not be allowed to give evidence that could have been given in court below---Illustration.

Zar Wali Shah v. Yousaf Wali 1992 SCMR 1778 and Mst. Fazal Jan v. Roshan Din and others PLD 1992 SC 811 ref.

State of U.P. v. Manbodhan Lal Srivastava AIR 1957 SC 912; Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849 and Mustafa Kamal and others v. Daud Khan and others 2009 SCMR 221 rel.

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

----S.107(1)(d) & O.XLI, R.27---Additional evidence, production of---Powers of Appellate Court to take additional evidence---Scope---Party to appeal could not be allowed to produce additional evidence to patch up weaker parts of its case or fill up an omission---Appellate Court could ordinarily neither travel beyond record of Trial Court nor take evidence on appeal---Permission to produce additional evidence could not be claimed as of right by a party, rather Appellate Court in its discretion could permit so, subject to conditions/limitations laid down in O.XLI, R.27, C.P.C.---Principles.

Section 107, C.P.C. enables Appellate Court to take additional evidence or to require such other evidence to be taken subject to conditions and limitations as prescribed under O.XLI, R. 27 C.P.C. Principle to be observed ordinarily is that the Appellate Court can neither travel outside the record of the Trial Court nor take evidence on appeal. However, S.107(d) C.P.C. is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the O. XLI, R. 27, C.P.C. are found to exist. The Court is not bound under the circumstances mentioned under the rule to permit additional evidence and parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is, of course to be exercised judiciously and sparingly.

The Appellate Court may require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The expression "to enable it to pronounce judgment", has been subject to several decisions of superior Courts wherein it has been held that when Appellate Court finds itself unable to pronounce judgment owing to lacuna or defect in the evidence as it stands, it may admit additional evidence but a party to the appeal cannot be allowed to produce additional evidence so as to patch up the weaker parts of its case or fill up an omission.

The ability to pronounce a judgment is to be understood as ability to pronounce a judgment satisfactorily to the mind of the court delivering it. It is only lacuna in the evidence that will empower the court to admit additional evidence.

But mere difficulty in coming to a decision is not sufficient for admission of evidence under O. XLI, R. 27 C.P.C. The words "or for any other substantial cause" must be read with the word "require" which is set out at the commencement of the provisions so that it is only where, for any other substantial cause, Appellate Court requires additional evidence. It is under these circumstances such power may be exercised.

Kessowji Issur v. GIP Railways (1907) ILR 31 Bom. 381; Messrs Muhammad Siddiq Muhammad Umar and another v. The Austrlasia Bank Ltd. PLD 1966 SC 684; The Secretary of the Government of West Pakistan, Communication and Works and another v. Gulzar Muhammad PLD 1969 SC 58; Messrs Muhammad Siddiq Muhammad Umar and another The Austrlasia Bank Ltd., Muhammad Yousaf v. Mst. Maqsooda Anjum and others 2004 SCMR 1049; Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304; Subba Naidu v. Ethirajammal and others AIR 1916 M. 966; Bur Singh v. Santa Singh and others AIR 1938 Lah. 161; The Municipal Corporation of Greater Bombay v. Lal Pancham and others AIR 1965 SC 1008; Qalandar v. Muhammad Zarian and another 1980 CLC 1417; Parsotim Thakur and others v. Lal Mohar Thakur and others AIR 1931 PC 143; Seth Kunjilal Manakchandji Bhawasar and others v. Shankar Nanuram AIR 1943 Nag 289; Ghulam Farid and 12 others v. Gahroo and 12 others 1972 SCMR 372; Muhammad Lal v. Mohko PLD 1979 SC(AJ&K) 15 and Muhammad Siddique v. Abdul Khaliq and 28 others PLD 2000 SC (AJ&K) 20 rel.

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

----Ss.96, 107(1)(d), 115 & O. XLI, R.27(1)(b)---Revision---First Appellate Court dismissing application for production of additional evidence---Validity---Necessity to produce additional evidence would arise only if Appellate Court required such evidence for pronouncing judgment, but not otherwise---Where Appellate Court did not find necessity to allow such application, then High Court could not interfere with such order particularly when the whole appeal was not before the High Court---Revision petition was dismissed in circumstances.

Muhammad Farooq Qureshi Chishti for Petitioner.

Shahid Mubeen, Addl. A.G. for Respondents Nos. 1 to 3.

Rana Rashid Akram Khan for Respondent No.4.

Date of hearing: 25th September, 2012.

P L D 2013 Lahore 23

Before Muhammad Farrukh Irfan Khan, J

Rana KHALIL AHMAD---Petitioner

Versus

MEMBER (JUDICIAL-II), BOARD OF REVENUE, LAHORE and others---Respondents

Writ Petition No.284 of 2008, decided on 13th August, 2012.

(a) West Pakistan Land Revenue Rules, 1968---

----Rr.17 & 19---Constitution of Pakistan, Art.199---Constitutional petition---Lambardar (Village Headman), post of---Preferential right of appointment---Refusal of authority to appoint petitioner against such post having fallen vacant on demise of his father---Validity---Petitioner had a hereditary claim, which was liable to be considered as one of relevant considerations---Petitioner had served for 13 years as temporary Lamberdar on such post without any complaint of default of Government's dues on his part---Petitioner owned 16 kanals land, which was less than respondent, but would be sufficient to be used as surety for payment of dues collected on behalf of Government---Petitioner had experience of recovering and depositing money in Government Treasury due to which he had a preferential right of becoming Lamberdar over respondent who did not have such experience---High Court accepted constitutional petition in circumstances.

Maqbool Ahmad Qureshi v. The Islamic Republic of Pakistan PLD 1999 SC 484 ref.

(b) West Pakistan Land Revenue Rules, 1968---

----R.17---Lamberdar (Village Headman), appointment of---Criteria---Owning of more property by a candidate alone could not be considered as of primary importance for such appointment---Principles.

No doubt the extent of property owned by a candidate is one of the criteria to be considered, however, this fact alone cannot be considered as of primary importance while making the appointment as Lamberdar. Ownership of large land holding is meant to safeguard the interest of the Government in payment of the Government dues by the Lamberdar. However, a Lamberdar having more property/land, if mortgages his holding and delivers the possession of the holding to the mortgagee, is required to leave the office of the Lamberdar. The payment of government dues can be safeguarded by ordering a candidate to furnish an adequate surety.

(c) Colonization of Government (Punjab) Act (V of 1912)---

----S.10---West Pakistan Land Revenue Rules, 1968, R.17---Lamberdari grant---Scope---Such grant was State land and could not be sold by a person not being owner thereof.

Tufail Alvi for Petitioner.

Ch. Sagheer Ahmad for Respondent No.4.

Manzer Hafeez, Tehsildar Khanewal and Ashiq Hussain Patwari Halqa for Respondents Nos.1 and 3.

P L D 2013 Lahore 30

Before Shahid Waheed, J

NOOR and others---Appellants

Versus

Mst. SATTAN through Legal Representatives and others---Respondents

R.S.A. No.207 of 2004 and C.M. No.1-C of 2006, decided on 1st October, 2012.

(a) Pre-emption---

----Right of pre-emption---Inheritability and transferability---Scope --- Right of pre-emption could be transferred or inherited only after passing of decree in favour of pre-emptor, but not prior thereto ---Principles.

The right of pre-emption runs with the land and is not personal initially; it turns out to be personal for the purpose of its enforceability in a court of law right from time of sale of the property till the date of decree in favour of the pre-emptor. In other words, the right optimizes to be personal to a pre-emptor until a decree is passed in his favour, and during this interregnum, this right is neither transferrable nor inheritable. In such a situation, if the pre-emptor dies before obtaining a decree in his favour in the Trial Court or as the case may be, the appellate or revisional court, his right of pre-emption shall remain exclusively personal and shall not survive to his heir. But no sooner is a decree passed in favour of the pre-emptor, then the right becomes a proprietary one and is not only capable of being transferred, but also inherited.

Government of N.W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360; Sardar Ali v. Muhammad Ali PLD 1988 SC 287 and Nazir Begum and others v. Fazal Dad and others 1999 SCMR 210 ref.

Ram Sahai v. Gaya (1884) 7-ALL 107 and Arshad Iqbal through L.Rs. v. Abdul Qayyum Khan Babar 1990 CLC 1883 rel.

(b) Punjab Pre-emption Act (I of 1913)---

----Ss. 6 & 22 --- Civil Procedure Code (V of 1908), S.100, O.XIV, R.1 & O. XLI, R. 27---Second appeal---Pre-emption suit---Pre-emptor's plea in plaint that had suit land been offered to her, then she would have purchased same by paying its full sale price---Remand of case by Supreme Court for recording of additional evidence by Trial Court---Suit dismissed by Trial Court, but decreed by First Appellate Court---Plea raised by defendant-vendee in second appeal before High Court that pre-emptor had applied to Trial Court for allowing her to furnish security instead of depositing Zar-e-Punjam, which showed that she had no money at time of institution of suit, thus, she could not raise such plea in plaint---Validity---Defendant had neither raised such plea in written statement nor in first round of litigation up to Supreme Court---Defendant had also not raised any such objection before Trial Court nor got an issue framed to such effect---Plea of a party would stand abandoned in case of its failure to claim any issue thereon---Record showed that pre-emptor had deposited entire decretal amount in accordance with decree passed in her favour by High Court in earlier round of litigation---High Court overruled such plea of defendant.

Muhammad Qasim and others v. Mushtaq Hussain and 10 others C.Ps. Nos.771-L and 772-L of 1999 and Muhammad Salim v. Suleman 2005 SCMR 929 ref.

Atta Hussain Khan v. Muhammad Siddique Khan and others 1979 SCMR 630 rel.

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

----O.XIV, R.1---Failure of a party to claim framing of an issue on a plea---Effect---Such plea would stand abandoned.

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

----Ss. 96, 100 & O. XLI, R. 22---Second appeal---First Appeal against decree of Trial Court dismissing suit on merits while holding suit to be within limitation---Non-filing of cross-objection by defendant against findings of Trial Court on issue of limitation---Appellate Court decreed suit holding same to be within limitation---Defendant alleged before High Court that suit was barred by time and could not be decreed---Validity---Defendant had not taken any objection in second appeal regarding bar of limitation---High Court overruled such objection in circumstances.

Khairati and 4 others v. Aleemud Din and another PLD 1973 SC 295 rel.

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

----O. XLI, R. 27---Remand of case by Supreme Court for its decision afresh by Trial Court after recording evidence in affirmation and rebuttal---Defendant's objection that Trial Court could not consider evidence recorded prior to such remand order---Validity---Supreme Court had not passed any order for de novo trial of suit---Trial Court was not precluded to consider evidence already available on record---Defendant's objection was rejected in circumstances.

Imam Bakhsh and others v. Ghulam Nabi and others 1999 SCMR 34 rel.

(f) Punjab Pre-emption Act (I of 1913)---

----S. 15---Pre-emption, superior right of---Contest between collaterals of vendor for such right---Test for determining such right stated.

Superior right of pre-emption in terms of section 15 of the Punjab Pre-emption Act, 1913 is to be determined in the order of succession in between the contesting parties. If there is a successor, who is higher in order of succession, but does not pre-empt the sale, status of such person is irrelevant and does not debar or exclude any other person from agitating his right of pre-emption even if he is lower in the order of succession. The term "order of succession" under which persons inter se would be entitled to inherit, and if a person nearer in order of succession does not seek to pre-empt the sale, the person next in succession is entitled to do so, and such person shall have the superior right of pre-emption as opposed to an utter stranger.

Federation of Pakistan v. Raja Fazal Dad Khan PLD 1954 Lah. 634 ref.

Jalal Din v. Saeed Ahmad and others PLD 1979 SC 879; Muhammad and another v. Muhammad Yar and another PLD 1986 SC 231; Muhammad Shafi and others v. Muhammad Hussain and another 2006 CLC 899 and Aftab Ahmad Khan and others v. Ghafoor Ahmad and others PLD 2009 Lah. 473 rel.

(g) Punjab Pre-emption Act (I of 1913)---

----S. 6 --- Civil Procedure Code (V of 1908), S. 100 & O. XLI, R.1---Pre-emption suit --- Decree passed by First Appellate Court in favour of plaintiff challenged in second appeal by seven vendees out of eight---Maintainability---Sale in the present case was not divisible as amount contributed by eight vendees was not specified qua each vendee---Where transaction was not divisible, then filing of appeal by some of the vendees would not be competent---High Court dismissed second appeal in circumstances.

Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Sher Muhammad v. Muhammadi and others 1981 Law Notes 214; Nazar Muhammad and others v. Sami Khan and others 1984 CLC 305 and Ghulam Muhammad 5 others v. Shamim Ahmad and 5 others PLD 2003 Lah. 245 rel.

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

----S. 100-- Qanun-e-Shahadat (10 of 1984) Art. 84---Second appeal---Defendant's application to High Court for comparing thumb impression of plaintiff affixed on plaint and on grounds of appeal---Maintainability---Defendant had not taken such objection in written statement---Plaintiff during her life time got her statement recorded in Trial Court, but defendant had not put to her question regarding her disputed thumb impression---Defendant had filed such application after death of plaintiff for first time in second appeal, and also after remand of case by Supreme Court---Omission of signature or thumb impression on appeal or power of attorney were not fatal defects---High Court dismissed such application in circumstances.

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

----O. III, R.1 & O. XLI, R.1---Signature or thumb impression on appeal or power of attorney, omission of---Effect---Such omissions would not be fatal defects.

Mehdi Khan Chauhan for Appellants.

Sh. Naveed Shehryar for Respondent No.1.

Gulzar Ahmad Nanga for Respondent No.2.

Date of hearing: 6th September, 2012.

P L D 2013 Lahore 41

Before Shujaat Ali Khan, J

Mst. NADIA BIBI----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.5510 of 2012/BWP, decided on 23rd October, 2012.

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

----Ss. 13, 5 & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Return of benefits in lieu of dissolution of marriage on basis of Khula---Return of benefits by wife in lieu of Khula---Scope---Suit for dissolution of marriage on basis of Khula was decreed in favour of wife (petitioner) without any condition---Husband subsequently filed petition for return of benefits of Khula, which was allowed by Revisional Court---Validity---Suit for dissolution of marriage was decreed in favour of wife without any condition for return of anything in lieu of Khula---Court could dissolve marriage on basis of Khula without fixing any condition qua return of benefits received by wife as a result of marriage---Under S.13 of West Pakistan Family Courts Act, 1964, execution only lay against a judgment/order and decree in favour of a party, but in the present case, no order or decree especially a decree for money was passed in favour of husband and therefore, his petition praying for return of benefits should have been dismissed---Revisional court made an error while passing impugned order, which was set aside accordingly---Constitutional petition was allowed, in circumstances.

Mikan Izhar Ahmad Joyia for Petitioner.

Nemo for Respondent No.2.

P L D 2013 Lahore 45

Before Ijaz Ahmad and Shujaat Ali Khan, JJ

RAMESSA KHALID----Petitioner

Versus

GOVERNMENT OF PUNJAB and others----Respondents

Writ Petition No.14261 of 2012, heard on 22nd November, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Admission---Reserved quota for underdeveloped areas---Criteria---Petitioner was denied admission on reserved quota for underdeveloped area due to the fact that she had not obtained her education at place of her area of domicile, which was an underdeveloped area---Contention of petitioner was that no school existed in her area of domicile therefore, she obtained her education at a different place---Validity---One of the conditions for said quota stated that besides being domiciled from a district falling under an underdeveloped area, candidates were required to have studied from class one to intermediate from an institution in the same district---Logic for reservation of seats was non-availability of educational facilities in underdeveloped areas and if intention of policy makers was to consider a person only on basis of domicile, said condition would not have been there---Contention of petitioner, if accepted, would evaporate basic distinction between students who got qualification from developed areas and those who got theirs from underdeveloped areas---Competent authority had power to draw reasonable classification amongst different groups and same could not be upset until and unless same was proved to have been launched against fundamental rights of citizens---Courts should refrain from interfering with policies launched by public authorities for smooth working of public institutions until and unless they were proved to be repugnant to fundamental rights of citizens---Contention of petitioner, if accepted, would amount to discrimination with others, which could not be accepted---Constitutional petition was dismissed, in circumstances.

Miss Amina Rafique v. Joint Admission Committee, Khyber Medical University and others 2009 SCMR 697 distinguished.

Dr. Shahnaz Wajid v. Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Islamabad 2012 PLC (C.S.) 1052 and Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Public authority---Drawing of classification, interference in---Scope---Competent authority had power to draw reasonable classification amongst different groups and same could not be upset until and unless same was proved to have been launched against fundamental rights of citizens.

Dr. Shahnaz Wajid v. Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Islamabad 2012 PLC (C.S.) 1052 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Public authorities, policies of----Interference---Scope---Courts should refrain from interfering with polices launched by public authorities for smooth working of public institutions until and unless they were proved to be repugnant to fundamental rights of citizens.

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

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court, exercise of---Scope---Constitutional jurisdiction of High Court could not be exercised in aid of any person which otherwise would result in discrimination with others.

Tahir Mehmood for Petitioner.

Zafar Iqbal Khan Khakwani, A.A.-G. and M.A. Hayat Raj for Respondent No.3.

Date of hearing: 22nd November, 2012.

P L D 2013 Lahore 51

Before Shujaat Ali Khan, J

MAULA BAKHSH---Petitioner

Versus

MUHAMMAD HUSSAIN and others---Respondents

Civil Miscellaneous No.986 of 2006 in Civil Revision No.397-D of 2001, decided on 10th September, 2012.

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

----S. 12(2)---Bar to further suit---Jurisdiction of court to entertain application under S.12(2), C.P.C.---Scope---Court having finally adjudicated matter could entertain such an application.

Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247; Abid Kamal v. Mudassar Mustafa 2000 SCMR 900; Province of Punjab v. Muhammad Irshad Bajwa 1999 SCMR 1555; Khawaja Muhammad Yousaf v. Federal Government and others 1999 SCMR 1516; Mubarik Ali v. Fazal Muhammad and another PLD 1995 SC 564 and Secretary Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171 rel.

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

----Ss. 12(2), 115 & O.VII, Rr.1 & 11---Application under S.12(2), C.P.C. made to a court which had not finally adjudicated the matter---Rejection of such application under O.VII, R.11, C.P.C.---Scope---Such application could not be treated as plaint under O.VII, R.1, C.P.C. thus, court could not reject the same under O.VII, R.11, C.P.C.---Order of Trial Court rejecting such application would be nullity in the eyes of law, whereagainst revision petition, if filed, would be maintainable.

Salah-ud-Din v. Mst. Zia Farhat 1996 SCMR 1528 rel.

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

----O. VIII, R.13 & S.12(2)---Decree passed without impleading a legal heir of deceased defendant---Application under S.12(2), C.P.C. for setting aside such decree---Maintainability---Failure of defendant to comply with provision of O.VIII, R.13, C.P.C. could not debar court to proceed with matter in absence of defendant's heirs.

Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193; Abdul Hameed and others v. Jehan Khan and others 2004 MLD 501; Habib-ur-Rehman v.Shah Jehan and 21 others 2004 YLR 2088; Abdul Sattar v. Ibrahim and others PLD 1992 Kar. 323 and National Commercial Bank Ltd. Karachi v. Nazir Ahmed Qureshi PLD 1980 BJ 9 ref.

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

----S. 12(2)---Application under S.12(2), C.P.C., filing of---Limitation---Scope---When ground of fraud and misrepresentation were taken in such an application , then there would be no limitation for its filing.

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

----O. VIII, R.13 & S.12(2)---Decree passed without impleading a legal heir of deceased---List of legal representatives was filed by defendant along with written statement without mentioning name of one of his sons---Decree was passed by Trial Court in favour of plaintiff after death of defendant without impleading said son as one of defendant's legal heirs---Application under S.12(2), C.P.C. filed by said son of deceased defendant for setting aside such decree on the ground that he was required to be impleaded as necessary party by plaintiff, who concealed such fact from court---Validity---Failure of deceased defendant to comply with provision of O.VIII, R.13, C.P.C. while filing his written statement could not debar the court from proceeding with the matter in absence of his legal heirs---Provision of O.VIII, R.13, C.P.C. were not mandatory, rather directory in nature, thus, no penal action could be taken for non-compliance with said provision strictly---Plaintiff while filing amended plaint had arrayed other legal heirs of deceased defendant except the son in question thus, decree was obtained by concealing material facts from court---Application was accepted in circumstances.

Abdul Baseer and others v. Muhammad Hanif and others 2007 YLR 1952 and Mst. Allah Jawai v. Farid PLD 1952 Lah. 31 ref.

Muhammad Sajid v. Zaib-un-Nisa 2012 YLR 6 and Saghir Ahmad and others. v. Begum Akhtar Akhlaq Hussain and others 1987 SCMR 1923 rel.

Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193; Abdul Hameed and others v. Jehan Khan and others 2004 MLD 501; Habib-ur-Rehman v.Shah Jehan and 21 others 2004 YLR 2088; Abdul Sattar v. Ibrahim and others PLD 1992 Kar. 323 and National Commercial Bank Ltd. Karachi v. Nazir Ahmed Qureshi PLD 1980 BJ 9 distinguished.

Ch. Naseer Ahmad for Petitioner.

Jawad-ul-Hassan for Respondents Nos. 1 to 3.

P L D 2013 Lahore 59

Before Syed Iftikhar Hussain Shah and Rauf Ahmad Sheikh, JJ

Sheikh MUHAMMAD AJMAL---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.156 of 2012, decided on 18th September, 2012.

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

----S. 48--- Criminal Procedure Code (V of 1898), S. 516-A--- Appeal filed under S.48 of Control of Narcotic Substances Act, 1997 against an order of court of ordinary jurisdiction---Competency---Alleged owner of vehicle (appellant) filed application before Magistrate seeking superdari of vehicle, which had been taken into possession by police in connection with the narcotics case---Magistrate dismissed said application on grounds that vehicle was case property and was an important piece of evidence and its superdari would prejudice the case---Revision petition filed against order of the Magistrate was dismissed by Additional Session Judge---Appeal under S.48 of Control of Narcotic Substances Act, 1997 was filed against order of Additional Session Judge and that of the Magistrate---Validity---Firstly no appeal could be preferred against an order passed in criminal revision, and secondly an appeal under S. 48 of Control of Narcotic Substances Act, 1997 could be preferred against an order of Special Court constituted under the Act---Impugned orders had been passed by courts of ordinary jurisdiction and not by courts constituted under the Control of Narcotic Substances Act, 1997, therefore appeal was incompetent--- Appeal was dismissed accordingly.

Mian Tahir Iqbal for Appellant.

Muhammad Amjad Rafique, DPG.

P L D 2013 Lahore 61

Before Syed Muhammad Kazim Raza Shamsi, J

NAUSHER ALI---Petitioner

Versus

MUHAMMAD AHMAD and others---Respondents

Criminal Revision No.184 of 2011, decided on 11th September, 2012.

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

----Ss. 173 & 200---Penal Code (XLV of 1860), Ss. 302/337-J/34---Qatl-e-amd, causing hurt by means of a poison, common intention---Dismissal of private complaint on basis of unproved summary evidence---Legality---Allegation against accused persons (respondents) was that they had killed the deceased (complainant's brother) by administering poison to him---Police during investigation found the accused persons as innocent and recommended case for cancellation, which prompted the complainant to lodge a private complaint---Trial Court after recording summary evidence of complainant dismissed his private complaint without summoning accused persons on the ground that on basis of summary evidence there would be no probability of conviction of accused persons--- Validity--- After recording evidence of complainant Trial Court was not left with the option to dismiss the private complaint on the basis that there was no probability of conviction of accused persons as such exercise could be undertaken by the court subsequently on the application of accused persons---Trial Court passed a verdict after relying on unproved summary evidence, therefore, said verdict did not enjoy any sanction of law---Such exercise of jurisdiction by the court could be termed as an illegal act---Revision petition was allowed, impugned order of Trial Court was set aside and the court was directed to hold the trial of the complaint case and to stop proceedings in the challan case till the decision of the complaint case.

Noor Elahi v. The State and 2 others PLD 1966 SC 708 and Mst. Haleema Bibi v. The State and another 2008 YLR 1144 rel.

Syed Ghulam Murtaza v. Baber Akbar 1991 PCr.LJ 720 and Abdul Rehman and others v. The State PLD 1983 SC 73 distinguished.

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

----Ss. 173 & 200---'Challan case' and 'complaint case'---Mode of trial---Preference---Question was as to which case was to be tried first---Where a person was dissatisfied with the findings of the police in respect of the allegations levelled in his crime report, criminal complaint lodged by him would be put to trial first, while the proceedings in the challan case would be stopped till the decision of the complaint case--- Such preference would be given provided the complainant had filed the complaint against the same set of accused with the same allegation as mentioned by him in the F.I.R.

Noor Elahi v. The State and 2 others PLD 1966 SC 708 and Mst. Haleema Bibi v. The State and another 2008 YLR 1144 rel.

Abdul Khaliq Safrani for Petitioner.

Ghulam Sabir Kaifi for Respondents Nos. 1 and 2.

Muhammad Ishaque, DPG for the State.

P L D 2013 Lahore 64

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD SHAHBAZ KHALID---Petitioner

Versus

JUDGE FAMILY COURT, LAHORE and others---Respondents

Writ Petition No.15745 of 2012, decided on 5th October, 2012.

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

----Ss. 17A & 12A, proviso---Constitution of Pakistan, Art. 199---Constitutional petition---Interpretation of Ss.17A and 12A, proviso, West Pakistan Family Courts Act, 1964---Interim order fixing maintenance allowance---Time period for which such interim order would remain valid---Scope---Joint reading of Ss.17A and 12A of West Pakistan Family Courts Act, 1964 revealed that when Family Court was made competent to pass an interim order for payment of maintenance allowance, it was also made incumbent upon the Family Court to dispose of the case pending before it within a period of six months from the date of institution---Order passed under S.17A of the West Pakistan Family Courts Act, 1964 would be, at most, effective for a period of six months, which time had been allocated by virtue of S.12A for final disposal of a lis pending before Family Court---When the maximum age of an interim order passed under S.17A of the West Pakistan Family Courts Act, 1964 expired, continuation of proceedings before Family Court, would violate provisions of S.12A of the said Act---Age of an order passed under S.17A of West Pakistan Family Courts Act, 1964 for interim maintenance would at maximum be six months and if proceedings were not concluded within such time in the main suit wherein interim order was passed, the Family Court should not insist upon the implementation of the order of interim maintenance---High Court observed that Family Court had to report to the High Court for non-implementation of S.12A of West Pakistan Family Courts Act, 1964 or in case of failure of Family Court to do so, either party would have a right to bring to notice of High Court such illegality being continued in the Family Court and High Court shall then, either under proviso to S.12A of the said Act or under Art.199 of the Constitution, pass appropriate order and reconsider quantum of maintenance---Constitutional petition was disposed of accordingly.

Mst. Sitwat Chughtai and another v Judge, Family Court, Lahore and another PLD 2009 Lah. 18 ref.

Sardar Zulfiqar Umar Khan Thaheem for Petitioner.

Rana Nadeem Ahmad for Respondent No.2.

P L D 2013 Lahore 69

Before Shahid Waheed, J

ZIA ULLAH MALIK---Appellant

Versus

NADEEM BAIG---Respondent

F.A.O. No.133 of 2009, heard on 17th October, 2012.

(a) Punjab Consumer Protection Act (II of 2005)---

----S. 2(c)---West Pakistan General Clauses Act (VI of 1956), S. 2(47)---"Consumer", definition of---Scope---"Firm" as a consumer---Scope---Complaint filed by a "firm" against a manufacturer of products---Pre-requisites---Firm being a "person" fell within the definition of "consumer" as provided in S.2(c) of Punjab Consumer Protection Act, 2005 and might competently maintain a complaint against a manufacturer in respect of a product before the Consumer Court, if it satisfied that there was a transaction of sale or lease; that the sale or lease was of a product; that buying or leasing of product was for consideration; that obtaining of product was not for resale purposes, and that obtaining of product was not for a commercial purpose, which did not include use by a consumer of product bought and used by him only for purpose of his livelihood as a self-employed person.

Laxmi Engineering Works v. P.S. G. Industrial Institute AIR 1995 SC 1428; Ravi Kant and others v. National Consumer Disputes Redressal Commission and others AIR 1997 Del. 182; Department of Enterprise Trade and Investment v. The Carrill Group Ltd. (2007) NICA 39; MFI Furniture Centre Ltd. v. Hibbert 160 JP 178 and Benincasa v. Dentalkit (1998) All ER (EC) 135 ref.

(b) Punjab Consumer Protection Act (II of 2005)---

----S. 2(c)---"Consumer", definition of---Scope---Term "consumer" was comprehensive and covered not only consumer of products but also consumer of services---Term "consumer" did not include a person or entity which obtained any product either for resale or for any commercial purpose, which did not include use by a consumer of products bought and used by him only for the purpose of his livelihood as a self-employed person.

(c) Punjab Consumer Protection Act (II of 2005)---

----S. 2(c)---West Pakistan General Clauses Act (VI of 1956), S. 2(47)---Consumer, definition of---"Firm" as a consumer---Scope---Complainant (appellant) who was running a registered firm purchased an Electronic Bagging Plant ("Plant") from the defendant---Said Plant was installed by defendant at the premises of the complainant, but it did not work properly---Complainant filed a complaint before the Consumer Court for recovery of entire amount paid to defendant as cost of the machine; for recovery of extra cost paid for purchase of new machine, and for recovery of economic losses arising from deficiency and loss of use of product---Consumer Court returned complaint holding that Corporation (firm) of complainant did not fall within the definition of consumer as given in Punjab Consumer Protection Act, 2005---Validity---Firm being a "person" fell within the definition of "consumer" as provided in S.2(c) of Punjab Consumer Protection Act, 2005 and might competently maintain a complaint against a manufacturer in respect of a product before the Consumer Court---Appeal was allowed, impugned order was set-aside and case was remanded to Consumer Court for decision afresh in accordance with the law.

Laxmi Engineering Works v. P.S. G. Industrial Institute AIR 1995 SC 1428; Ravi Kant and others v. National Consumer Disputes Redressal Commission and others AIR 1997 Del. 182; Department of Enterprise Trade and Investment v. The Carrill Group Ltd. (2007) NICA 39; MFI Furniture Centre Ltd. v. Hibbert 160 JP 178 and Benincasa v. Dentalkit (1998) All ER (EC) 135 ref.

Naveed Zafar Khan for Appellant.

Nemo for Respondent.

Date of hearing: 17th October, 2012.

P L D 2013 Lahore 73

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD AZAM---Appellant

Versus

NATIONAL BANK OF PAKISTAN and others---Respondents

F.A.O. No.447 of 2011, decided on 3rd October, 2012.

(a) Punjab Consumer Protection Act (II of 2005)---

----Ss. 4, 5 & 6---"Manufacturing" or "design defect"---Scope--- Complainant (appellant) obtained an auto rickshaw after obtaining loan facility from Bank---Complainant filed complaint before Consumer Court on the basis that auto rickshaw was consuming too much petrol and its parts were not working properly---Consumer Court rejected the complaint---Contentions of complainant were that expert, who was deputed for inspection by the Consumer Court, categorically stated that rickshaw was not equipped with an air filter which shortened the life of the engine, and that solenoid valve was faulty which caused difficulty in starting the rickshaw---Validity---Grievance of complainant did not attract Ss. 4, 5 or 6 of Punjab Consumer Protection Act, 2005---Non-availability of air filter could not be termed as a "manufacturing defect", as an air filter was a replaceable part in an engine and had a specific life span and had to be replaced after it exhausted its life expectancy---Similarly a "solenoid" was also a part which might become defective through rough or improper use and had a definite life span and could be replaced to use the equipment or machine (auto rickshaw)---Defects pointed out by complainant could not be said to have caused any effect on the basic design and were not material deviation from the manufacturer's own specification and such fact had been admitted by the expert during his cross-examination---Defects alleged by complainant were of minor nature and could also occur due to negligence/rough use---Said defects could simply be overcome by replacing the relevant parts---Complainant did not get the rickshaw inspected by the Motor Vehicle Examiner or some other expert of similar qualification to support his allegation regarding inherent mechanical defect---Complainant after having apparently made an ill-informed choice of getting an auto rickshaw, wanted to get rid of it and was trying to use the Consumer Protection Act, 2005 as a tool to obtain back the money invested by him and wriggle out of his contractual relationship with the manufacturer and the bank---Complainant could not produce any cogent and reliable evidence from which it could be inferred that auto rickshaw contained any manufacturing defect, which had caused him any damage---Appeal was dismissed in circumstances.

(b) Words and phrases---

----"Manufacturing defect"---Meaning.

Black's Law Dictionary 8th Edn. ref.

(c) Punjab Consumer Protection Act (II of 2005)---

----Preamble & S. 25---Consumer Protection Act, 2005 was not to be invoked where a consumer made a wrong or an ill-advised choice of purchasing a product or service, which he might not like later or which might not meet his aesthetic requirement and which was otherwise non-defective, properly designed and had no inherent mechanical defect.

Ch. Liaquat Ali Sial for Appellant

P L D 2013 Lahore 78

Before Syed Iftikhar Hussain Shah, J

DILSHAD AHMED through Special Power of Attorney---Petitioner

Versus

Mst. JAMIYAT SULTANA through Legal Heirs and 2 others---Respondents

Civil Revision No.903 of 2012, decided on 1st October, 2012.

Civil Procedure Code (V of 1908)---

----O.XLI, R. 27 & O.X, R.2---Specific Relief Act (I of 1877), S.42---Summoning of witness before Appellate Court for recording of better statement---Scope---Suit for declaration of title was dismissed by Trial Court---During pendency of appeal, plaintiff preferred application for summoning of one of the defendants for recording of her better statement, which was dismissed---Contention of the plaintiff was that said statement was necessary for just decision of the appeal---Validity---Application of plaintiff was required to be disposed of in the manner prescribed under O.XLI, C.P.C. and in the said Order there was no provision to the effect that parties would be summoned by Appellate Court for recording of better statement---Under O.XLI, R.27, C.P.C., Appellate Court could allow production of additional evidence provided the Appellate Court required any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause---Under O.X, R.2, C.P.C. only Trial Court was empowered to examine parties for clarification of pleadings and to ascertain real controversy between the parties---Parties, in the present case, had already led evidence in respect of real controversy between them, and only reappraisal of said evidence was required by Appellate court---No illegality was found in the impugned order of Appellate Court---Revision petition was dismissed, in circumstances.

Malik Muhammad Latif for Petitioner.

P L D 2013 Lahore 81

Before Mrs. Ayesha A. Malik, J

Haji BASHIR AHMAD and others---Petitioners

Versus

CANE COMMISSIONER, PUNJAB---Respondent

Writ Petition No.11483 of 2012, heard on 26th September, 2012.

Punjab Sugar Factories Control Rules, 1950---

----R. 17---Sugar Factories Control Act (XXII of 1950) Ss.6 & 6A---West Pakistan Land Revenue Act (XVII of 1967), S. 80---Constitution of Pakistan, Art. 199---Constitutional petition---Dispute over payment of sugarcane supplied to mill---Power of Cane Commissioner to adjudicate upon such dispute---Scope---Petitioners were sugarcane growers and impugned order of the Cane Commissioner whereby he refused to hear their claim on the ground that he was not competent authority to decide the matter and the same should be tried before Civil Court---Contention of Cane Commissioner was that original owner of Sugar mill were not available and the matter related to crushing season of the years 1998-99---Validity---Under Punjab Sugar Factories Control Rules, 1950, the Cane Commissioner was the competent authority to decide claim of the petitioners and could also refer the dispute to arbitration---Cane Commissioner could recover amounts due through modes prescribed in S.80 of West Pakistan Land Revenue Act, 1967 as powers of the Collector were available to the Cane Commissioner---High Court directed the Cane Commissioner to adjudicate upon the claim of the petitioners---Constitutional petition was allowed, in circumstances.

Abdul Hameed Rana for Petitioners.

Syed Nayyar Abbas Rizvi,Addl. A.G. along with Syed Sibt-e-Hassan, Superintendent from the office of the Cane Commissioner for Respondent.

Date of hearing: 26th September, 2012.

P L D 2013 Lahore 85

Before Abdul Sami Khan, J

MUHAMMAD SIDDIQUE---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and 4 others---Respondents

Writ Petition No.8799 of 2012, decided on 26th September, 2012.

(a) Police Order (22 of 2002)---

----Art. 18(6)---Criminal Procedure Code (V of 1898), S. 173--- Change/transfer of investigation after submission of challan--- Scope--- Perusal of Art. 18(6) of Police Order, 2002 indicated that law bestowed a power on the duly constituted Board to recommend re-investigation---Where the constituted Board recommended re-investigation of the case even after submission of challan, re-investigation could not be debarred.

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

----Ss. 156 & 173---Investigating officer, role of---Scope---Investigating officer was not to render any opinion regarding guilt or innocence of an accused and under the relevant statutory provisions contained in Code of Criminal Procedure, 1898, the Police Order, 2002 and the Police Rules, 1934, he was only to collect all the relevant evidence and had to submit his report before the relevant Magistrate so that the Magistrate or the Trial Court could form their own independent opinion regarding sufficiency or otherwise of the evidence and material in order to decide whether to take cognizance of the offence or not to summon any person to face trial.

Khizer Hayat and others v. Inspector General of Police, Lahore and others PLD 2005 Lah. 470 rel.

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

----S. 173---Subsequent challan, submission of---Scope---Submission of subsequent challan was not debarred under the provisions of the Criminal Procedure Code, 1898, however it was entirely the discretion of the Court to admit additional evidence if the cognizance of the case submitted to it by the police had already taken place.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 ref.

(d) Police Order (22 of 2002)---

----Art. 18(6)---Criminal Procedure Code (V of 1898), S.173---Change/transfer of investigation after submission of challan---Scope---Investigating officer had thoroughly investigated the case and during investigation accused persons were declared innocent and challan was submitted in the Trial Court---Investigation was transferred on the recommendation of Special Standing Board constituted under Art.18(6) of Police Order, 2002---Contention on behalf of accused persons was that after submission of challan before the Trial Court, investigation could not have been transferred---Validity---Perusal of Art.18(6) of Police Order, 2002 indicated that law bestowed a power on the duly constituted Board to recommend re-investigation---Where the Board recommended re-investigation of the case even after submission of challan, re-investigation could not be debarred---Charge had not been framed and no prosecution witness was recorded till date---Accused persons had not been able to satisfy the court that procedure for change of investigation had not been followed or that transfer of investigation was mala fide---Impugned order of transfer of investigation in terms of Art.18(6) of Police Order, 2002 did not suffer from any illegality or misuse of any authority--- Constitutional petition was dismissed in circumstances.

Muhammad Ramzan Khalid Joyia for Petitioner.

Aziz-ur-Rehman Khan, A.A.G. with Sarwar Khan, S.I.

P L D 2013 Lahore 88

Before Muhammad Farrukh Irfan Khan, J

Major QAMAR ZAMAN QADIR---Petitioner

Versus

JUDGE FAMILY COURT, JEHLUM and others---Respondents

Writ Petition No.1982 of 2011, decided on 19th October, 2012.

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

----S. 5 & Scehd.---Muslim Family Laws Ordinance (VIII of 1961), S.7---Constitution of Pakistan, Art.199---Constitutional petition---Dissolution of marriage on the basis of Khula'---Scope---Khula' obtained from wife under coercion---Effect---Suit for dissolution of marriage on basis of Khula' was decreed when husband in his statement stated that he would have no objection to such decree---Special attorney appeared on behalf of wife and she did not tender appearance in person and no pre-trial reconciliation took place--Wife made statement before High Court that Khula' was not sought by her on her own freewill and was procured by appointment of special attorney by her father under coercion---Contention of the husband (petitioner) was that said decree was illegal and of no binding effect---Validity---Pivotal question to be determined was as to what was the effect of decree of dissolution of marriage and whether parties could rejoin as husband and wife after pronouncement of Khula' by court---Khula' was repudiation with consent at instance of wife in which she agreed to give consideration to husband for release from marital bond and it had the effect of "talaq bayen" (single divorce)---Pronouncement of Khula' by court would amount to single divorce and husband would be at liberty to marry the wife again after solemnization of nikah without intervention of a third person---Section 7(6) of the Muslim Family Laws Ordinance, 1961 did not debar wife whose marriage had been terminated by divorce under S.7 of the said Ordinance from remarrying the same husband without intervening marriage with a third person---High Court set aside orders of courts below---Constitutional petition was allowed, accordingly.

Mst. Naila Perveen and another v. The State and 2 others PLD 2011 Lah. 37; Muhammad Ayyub Khan v. Mst. Shehla Rasheed and another PLD 2010 Kar.131; Gulzar Hussain v. Mst. Mariyam Naz 2000 MLD 447; Attiq Ahmed Khan v. Noorul Sabah and another 2011 CLC 1211; Abdul Rehman v. Mst. Nagmali 2003 CLC 1332 and Charles Hamilton 1975, Edn. p.112 of Chap.VIII rel.

Ch. Zahid Mehmood for Petitioner.

Mrs. Nadia Yasmin, Respondent No.2 (in Person).

P L D 2013 Lahore 92

Before Syed Muhammad Kazim Raza Shamsi, J

FAISAL ZAWAR---Petitioner

Versus

THE STATE and others---Respondents

Criminal Revision No.735 of 2012, decided on 15th November, 2012.

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

----S. 7---Application claiming juvenility filed after framing of charge---Scope---Accused claimed that he was aged about 16 years at the time of occurrence of offence, and filed an application before Trial Court for declaring him as a juvenile after getting his ossification test---Complainant opposed said application and relied upon birth certificate of accused, which showed that he was more than 18 years of age at the time of the incident---Trial Court dismissed application filed by accused holding that same was filed at a belated stage i.e. after framing of charge---Validity---Accused had filed an application for his ossification test at the stage when only charge had been framed against him, thus such stage could not be treated as a belated one for the reason that prosecution evidence was summoned after framing of charge, which was yet to be produced in court---Document produced by accused showed that he was less than 18 years of age at the time of occurrence, while according to documentary evidence produced by complainant, accused was aged about 19 years at the time of occurrence---Determination of said documents in accordance with the provisions of Qanun-e-Shahadat, 1984 might have consumed much more time compared to the time that would be consumed in getting a report from the Medical Board--- Normal course for the Trial Court was to secure a medical report from the concerned authorities for just decision of the case---Trial Court had exercised its jurisdiction with material irregularity---Revision petition was allowed, impugned order passed by Trial Court was set aside and application filed by accused for having his ossification test was accepted with a direction to the Trial Court to obtain a report from a validly constituted Medical Board.

Muhammad Akram v. Muhammad Haleem alias Hamayun and others 2004 SCMR 218 and Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758 ref.

Muhammad Aslam and others v. The State and another PLD 2009 SC 777 distinguished.

Nassir Ahmad Awan for Petitioner.

Muhammad Ishaq, Deputy Prosecutor General.

Ch. Fiaz Ahmad Singhairah for Respondent No.2.

P L D 2013 Lahore 95

Before Mamoon Rashid Sheikh, J

ALTAF HUSSAIN---Appellant

Versus

ARIFA FAROOQI and 7 others---Respondents

F.A.O. No.27 of 2012, decided on 15th October, 2012.

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

----S. 17---Qanun-e-Shahadat (10 of 1984), Arts. 75 & 76---Constitution of Pakistan, Art.10A---Ejectment of tenant---Reconstruction of premises, plea of---Proof---Photocopies of documents, reliance on---Effect---Rent Controller relying on photocopies of documents, allowed ejectment applications filed by landlords on the plea of reconstruction---Validity---Rent Controller noted that since extract of revenue record and sanctioned building plan etc. where photocopies, therefore, such documents would be marked as Exhibits---Landlords having brought photocopies of sanctioning letter and sanctioned building plan on record did not prove them in accordance with law---Rent Controller on the basis of same proceeded to decide issue relating to approval of building plan and reconstruction of demised premises against tenants---Rent Controller, therefore, erroneously arrived at the decision in respect of such issue--- Rent Controller had denied opportunity of fair trial and due process to tenants--- Entitlement to fair trial and due process, after insertion of Art.10-A in the Constitution, was a fundamental right--- High Court in exercise of appellate jurisdiction, set aside ejectment orders passed by Rent Controller and remanded the matter to him for decision afresh after affording opportunity of leading additional evidence to parties--- Petition was allowed accordingly.

Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Hiers and others PLD 1985 SC 341; Syed Nizam Ali and 2 others v. Ghulam Shah through Legal Heirs and another PLD 2000 Lah. 168; Mst. Nazira Begum v. Mir Hussain Khan and others PLD 1984 (AJ&K) 1; Malik Riaz Ahmad and others v. Mian Inayat Ullah and others 1992 SCMR 1488; Ilyas Akhtar and 2 others v. Khan Zaman and another 2001 MLD 1617; Kifayatullah Bangash v. Umar Gul 2000 SCMR 1080 and Manzoor Elahi v. Mst. Surraya Jabin PLD 2004 Pesh. 62 ref.

(b) Power of attorney---

----Acting as attorney/agent---Principle---No person can act for and on behalf of another person unless specifically or impliedly authorized to do so.

Syed Hamid Ali Bokhari for Appellant.

Khawaja Shahid Rasool Siddiqui for Respondents.

P L D 2013 Lahore 102

Before Ibad-ur-Rehman Lodhi, J

MUHAMMAD SHABBIR---Petitioner

Versus

REHANA KAUSAR and others---Respondents

Writ Petition No.7607 of 2012, decided on 24th May, 2012.

(a) Islamic Law---

----Dower, payment of---"Prompt" and "deferred" dower---Principle---According to Islamic Injunctions, there is no split on the dower, whether deferred or prompt---Dower was obligatory on husband, which was the entitlement of wife as consideration of marriage.

Saadia Usman and another v. Muhammad Usman Iqbal Jodoon and another 2009 SCMR 1458; Head Note 290 of Muhammadan Law by D.F.Mullah and Holy Qur'an Verse 24 of Surah-e-Nisa distinguished.

Dr. Anees Ahmad v. Mst. Uzma PLD 1998 Lah. 52; Dr. Sabira Sultana v. Maqsood Sulari , Additional District and Sessions Judge, Rawalpindi and 2 others 2000 CLC 1384 and Muhammad Azam v. Additional District Judge and others 2006 YLR 33 rel.

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

----S. 5 & Sched.---Muslim Family Laws Ordinance (VIII of `1961), S.6(5)---Deferred dower---Suit for recovery of deferred dower---Husband contracting second marriage without prior permission of existing wife or that of Arbitration Council---Effect---Dower even if termed as deferred, would forthwith become payable by the husband to the wife in such circumstances.

Munazza Noor and 2 others v. Additional District Judge and others 2009 CLC 374 and Mst. Shaheen Begum v. Zakaullah Khan "Ghouri and others 2009 MLD 1124 rel.

Syed Mumtaz Hussain Bukhari for Petitioner.

Zafar Abbas Khan Baloch for Respondents.

Date of hearing: 18th May, 2012.

P L D 2013 Lahore 106

Before Muhammad Farrukh Irfan Khan, J

ROBEENA SHAHEEN---Petitioner

Versus

MUHAMMAD MUNIR AHMAD---Respondent

Civil Revision No.1563 of 2004, decided on 5th October, 2012.

Civil Procedure Code (V of 1908)---

----S. 107(b)---Powers of Appellate Court---Remand of case to Trial Court---Scope---Remand could only be ordered when evidence on record was insufficient to pronounce judgment---Remand should not be made in routine and where evidence on record was sufficient for Appellate Court to pronounce judgment and decide the issue, remand of case for fresh decision was not necessary---Reasons advanced, in the present case, by Appellate Court for remanding case to Trial Court were neither in line with settled law nor supported by record---Purpose of Appellate Court was to correct misreading and non-reading of evidence, if in its view any such misreading and non-reading was committed by Trial Court---Trial Court's finding, in circumstances, were based on presumption but instead of recording its own findings, it remanded the matter to Trial Court---Order of Appellate Court remanding the case was set aside---Revision Petition was allowed accordingly.

Arshad Ameen v. Messrs Swiss Bakery and others 1993 SCMR 216 ref.

Muhammad Anwar Bhatti for Petitioner.

Zafar Iqbal Chowhan for Respondent.

Date of hearing: 5th October, 2012.

P L D 2013 Lahore 110

Before Muhammad Farrukh Irfan Khan, J

PIONEER CEMENT LIMITED through Company Secretary---Appellant

Versus

FECTO CEMENT LIMITED through Chief Executive Officer and 3 others---Respondents

First Appeal from Order No.213 of 2012, decided on 28th September, 2012.

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

----O. VII, R. 14 & O.XLI, R.1---First appeal---Documents filed along with appeal---Such documents not filed along with plaint before the Trial Court---Appellant filing such documents at appeal stage without seeking permission of court by making a separate application---Validity---Had such application been made by appellant, then court would have issued notice thereof to respondent before allowing or disallowing such request on merits---Such documents were, held, to be inadmissible at stage of appeal against impugned order.

Messrs Ghulam Muhammad Dossul & Co. v. Messrs Vulcan Co. Ltd. and another 1984 SCMR 1024 rel.

(b) Trade Marks Ordinance (XIX of 2001)---

----S. 5(2)---Use of specific trademark to goods to be exported from Pakistan---Scope---Specific trademark, if applied to goods to be exported from Pakistan, would be deemed to have been actually used in Pakistan, thus, its prior use, reputation and goodwill would be deemed to have existed in Pakistan giving right to its owner (prior user) to restrain its infringement by third party.

(c) Trade Marks Ordinance (XIX of 2001)---

----S. 39---Distributor in trademark matters, role of---Scope---Distributor for being a representative of owner of trademark could not get its registration in his own name---Principles.

Unless otherwise shown, the concept of a distributor in trademark matters is that a distributor is merely a representative of the owner of the trademark for a specified territory for supply or distribution of goods manufactured/ assembled/packed by the owners under his trademark. For such service, the distributor gets a certain commission. In such cases, distributor has no other relationship with the manufacturer/packer/assembler of goods, who is also the owner of trademark, and merely by distributing goods on behalf of the owner, a distributor does not and cannot become entitled to claim ownership of a mark to register the said trademark in his own name and even if he succeeds in securing trademark registration, that will be liable to be cancelled/rectified after the true owner obtains knowledge of existence of such registration.

(d) Trade Marks Ordinance (XIX of 2001)---

----Ss. 39 & 40---Prior user and proprietor of an unregistered trademark, principle of---Applicability and proof---Such principle would be applicable when none of contesting parties had a registered trademark---Prior use and proprietorship of an unregistered trademark could be proved at interim stage by filing independent documentary evidence such as copies of undisputable sale invoices, advertisements, sale and publicity figures etc.

The Welcome Foundation Limited v. Messrs Karachi Chemicals Industries (Private) Limited 2000 YLR 1376; Mehtabur Rehman v. Saeed Ahmed and 2 others 1986 CLC 348 and Syed Muhammad Maqsood v. Naeem Ali Muhammad 1985 CLC 3015 rel.

(e) Trade Marks Ordinance (XIX of 2001)---

----S. 39--- Trade mark rights, infringement of---Consequences stated.

Trademark rights are lifeline of businesses and un-authorised use of owner's trademark by third parties results in un-quantifiable loss and damage to its goodwill and business, which is irreparable in nature.

(f) Trade Marks Ordinance (XIX of 2001)---

----S. 46(2)---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Infringement of trademark---Suit for damages, injunction and accounts---Relief---Scope---Under S.46(2) of Trade Marks Ordinance, 2001 all such reliefs by way of damages, injunction, accounts were available to the proprietor of a trademark simultaneously and not as an alternate to each other---Where in addition to interim injunction a plaintiff had claimed damages and compensation in a suit relating to trademark rights, interim relief could not be denied to proprietor of trademark on such ground.

Syed Azeem Abbas Naqvi for Appellant.

Mian Bilal Ahmad for Respondents.

Date of hearing: 24th August, 2012.

P L D 2013 Lahore 119

Before Mamoon Rashid Sheikh, J

Mst. RUKHSANA BHATTI---Appellant

Versus

K & N'S FOODS (PVT) LTD. and others---Respondents

F.A.O. No.99 of 2011, decided on 27th September, 2012.

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

----S. 17---Transfer of Property Act (IV of 1882), S. 107---Registration Act (XVI of 1908), Ss.17(d) & 49---Ejectment of tenant---Bona fide personal need of landlord---Un-registered lease agreement---Ejectment application filed by landlord on the plea of bona fide personal need was dismissed by Rent Controller on the ground that it was premature as lease agreement between the parties subsisted---Validity---Unregistered lease agreement for the purpose of tenure would only be binding up to initial period of 11 months, whereafter relationship between parties was regulated by terms of Cantonments Rent Restriction Act, 1963---Tenant was a statutory tenant and tenancy was to continue on month to month basis---As specified period in lease agreement did not extend beyond initial eleven months, there was no impediment in the way of landlord from seeking eviction of tenant on the basis of bona fide personal need---High Court repelled contention of tenant that there was valid and binding agreement between parties, which was to inure till 31-5-2016---High Court set aside order passed by Rent Controller and remanded the matter for decision afresh on issue pertaining to personal bona fide need of landlord vis-à-vis demised premises---Appeal was allowed accordingly.

Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185; M.K. Muhammad and another v. Muhammad Abu Bakar 1993 SCMR 200; Hassan Khan v. Mrs. Munawar Begum PLD 1976 Kar. 832; M/s Eveready Pictures Ltd. v. Chaman Begum PLD 1982 Kar. 770; Mumtaz Begum v. Muhammad Yousaf (deceased) represented by Mst. Nasim Begum and 6 others 1982 CLC 1735; Muhammad Zaman v. Mehboob Ellahi PLD 1981 Lah. 609 and M/s Syed Brothers v. M/s Film Exhibitors Ltd. and 10 others 1984 CLC 3434 ref.

M/s. Shama Soap factory, Faisalabad v. Commissioner of Income Tax, Zone, Faisalabad 2006 PTD 178 rel.

Muhammad Atif Farzouq Raja for Appellant.

Muhammad Akbar Butt for Respondents.

P L D 2013 Lahore 123

Before Abdus Sattar Asghar and Malik Shahzad Ahmad Khan, JJ

MANZOOR AHMAD and 2 others---Petitioners

Versus

MUHAMMAD NAWAZ and 18 others---Respondents

C.M. No.5192 of 2012 in Intra-court Appeal No.127 of 2012, decided in 10th September, 2012.

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

----Ss. 114 & 12(2)---Review petition---Complainant seeking review of High Court order which had been passed in contradiction to an earlier order of the High Court---Counsel for complainant failing to disclose the presence of said earlier order---Effect---F.I.R. was lodged against accused (respondent)---Accused succeeded in getting bail---Complainant (petitioner) filed application for cancellation of bail and stated that he would not press the application provided a direction was issued to conclude the trial expeditiously---High Court directed Trial Court to conclude the trial as early as possible in view of the statement of the complainant---Subsequently accused (respondent) filed constitutional petition before High Court seeking quashing of F.I.R., which was allowed and F.I.R. against him was quashed---Complainant (petitioner) filed application under S.12(2), C.P.C against quashing of F.I.R. order contending that same had been procured by practicing fraud and misrepresentation; that quashing of F.I.R. order had been passed by the High Court without appreciating that it was contradictory to the directions passed in the earlier bail cancellation order---Said application of complainant was dismissed and intra-court appeal filed thereagainst was also dismissed---Validity---Directions given in bail cancellation order were passed in presence of counsel of complainant---Similarly quashing of F.I.R. order was also passed in presence of the same counsel---Record revealed that counsel for complainant did not bother to point out to the High Court during proceedings of constitutional petition for quashing of F.I.R. that directions had earlier been passed by the High Court in the bail cancellation application, therefore, complainant's subsequent plea that quashing of F.I.R. order was obtained through fraud and misrepresentation, was devoid of any force---Complainant's application under S.12(2), C.P.C had been rightly dismissed---Review petition was dismissed accordingly.

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3---Constitution of Pakistan, Art.199---Criminal Procedure Code (V of 1898), S.154---Intra-court appeal against quashing of F.I.R.---Maintainability---Single Judge of High Court ordering quashing of F.I.R. in constitutional jurisdiction under Art.199 of the Constitution---Intra-court appeal against such order would not be maintainable.

Nawaz ul Haq Chowhan v. The State 2003 SCMR 1597 rel.

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

----Ss. 369 & 561-A---Power to review---General rule and exceptions---General rule was that power to review was a statutory power and no court or authority could exercise such power unless specifically conferred by law---Said general rule had two exceptions: Firstly where a court had an inherent jurisdiction to set aside judgment or order which it had delivered without jurisdiction, and secondly where court or authority had the power to review an order or judgment obtained by fraud---High Court in exercise of criminal jurisdiction was also competent to exercise power of review conferred upon it by the Letters Patent besides its inherent jurisdiction

Sardar Ali v. State PLD 1987 Lah. 633 ref.

Chief Election Commissioner v. Muhammad Fazil PLD 1975 SC 331 rel.

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

----S. 114 & O. XLVII, R. 1---Constitution of Pakistan, Art. 199---Review of order passed by High Court in exercise of its constitutional jurisdiction---Scope---High Court apart from its power to correct errors apparent on face of record in exercise of its inherent jurisdiction, had power under C.P.C. to review its order made in exercise of its constitutional jurisdiction.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 rel.

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

----Ss. 369 & 561-A---Civil Procedure Code (V of 1908), S. 114 & O.XLVII, R. 1---Civil and criminal jurisdiction---Power of High Court to review its order---Scope---High Court had ample powers to review its orders in the light of Letters Patent, its inherent jurisdiction and the power conferred upon it in terms of Ss. 369 and 561-A, Cr.P.C and S.114 and O. XLVII, C.P.C.

Masood Ahmad Dogar for Petitioners.

P L D 2013 Lahore 129

Before Abdus Sattar Asghar, J

TALIB HUSSAIN---Petitioner

Versus

Mst. PARVEEN AKHTAR---Respondent

F.A.O. No.224 of 2012, decided on 24th January, 2013.

Civil Procedure Code (V of 1908)

----S. 51 & O. XXI, Rr. 37 & 40---Execution of decree---Power of court to enforce execution---Warrant of arrest of judgment-debtor---Scope---Judgment-debtor impugned the order of Executing Court for his detention, on the ground that said order was violative of provisions of S.51 and O. XXI, C.P.C.---Validity---Before issuing a warrant of arrest, a notice to show cause had to be given to the judgment-debtor to explain why he should not be detained in prison and such a notice could only be dispensed with, if the court was satisfied by affidavit or otherwise that the judgment-debtor was likely to abscond or leave local limits of the court's jurisdiction to avoid payment of decretal amount---Detention of the judgment-debtor could only be ordered after the conclusion of the inquiry by the Executing Court subject to satisfaction of the pre-requisites of S.51, C.P.C.---No notice, in the present case, was served upon the judgment-debtor nor any inquiry was conducted by the Executing Court before passing order of detention---Impugned order was therefore, violative of S.51 and O. XXI, R. 37 & 40 of the C.P.C.---High Court set aside the impugned order---Appeal was allowed, in circumstances.

Muhammad Akhtar Rana for Petitioner.

Qamar ul Haq Bhatti for Respondent.

Date of hearing: 24th January, 2013.

P L D 2013 Lahore 133

Before Muhammad Khalid Mehmood Khan, J

Ch. IRSHAD ALI SAJID---Petitioner

Versus

DIRECTOR-GENERAL, LAHORE DEVELOPMENT AUTHORITY and another---Respondents

Writ Petition No.5326 of 2005, heard on 22nd May, 2012.

(a) Legitimate expectation, doctrine of---

----Applicability---Such doctrine is recognized doctrine in legal parlance but rationale for implementing the doctrine is that if decision or action taken by authority is conveyed to its beneficiary.

Council of Civil Services Unions and others v. Minister for the Civil Service (1948) All ER 953; Attorney General of Hong Kong v. Ng Yuen Shiu (1983) All ER 346 and National Buildings Construction Corporation v. S. Raghunthan and others (1998) 7 Supreme Court Cases 66 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Legitimate expectation, doctrine of---Applicability---Auction of plot---Petitioner was declared the highest bidder, who had deposited required amount after the bid but later on Authority rejected his bid without assigning any reasons to him---Plea raised by petitioner was that on the basis of doctrine of legitimate expectation it was his right to get the plot in question---Validity---Decision of Authority was not conveyed to petitioner and as such he could not claim that Authority assured him that his bid had been accepted---Case of petitioner did not fall within the ambit of doctrine of legitimate expectation---From year 2001 to 2005, when the Authority had disallowed petitioner's bid the Authority should not have retained amount of petitioner---Even after 7-1-2005, Authority had not shown its willingness to refuse petitioner's amount; it was very easy for the Authority to have refunded the amount by issuing a cross pay order in the name of petitioner and could send the same through postal services---Respondent Authority was bound to pay interest on petitioner's amount, which was lying with it---Period of four years from the date of auction and rejection of bid and also till the petition was heard was not a reasonable time---Respondent Authority was to decide fate of the bid within the period not more than ninety days and as such the Authority was liable to pay interest on bank rate---High Court directed the Authority to refund petitioner's amount along with interest---Petition was dismissed accordingly.

Dr. Shoukat Pervez v. Federation of Pakistan through Secretary Establishment Division, Islamabad and another 2011 PLC (C.S.) 26; Dr. Marvi Shah and 9 others v. Province of Sindh through Chief Secretary and 2 others 2009 PLC (C.S.) 182; Muhammad Arshad Quershi v. Chairman, Water and Power Development Authority Lahore and 3 others 2009 PLC (C.S.) 186; Rafaqat Ali v. Executive District Officer (Health) and others 2011 PLC (C.S.) 1615 and Mst. Saira Shah Nawaz v. Punjab University and others 2011 MLD 617 ref.

Ali Sibtain Fazli and Nadeem Ahmad Sheikh for Petitioner.

Mian Muzaffar Hussain for Respondents.

Date of hearing: 22nd May, 2012.

P L D 2013 Lahore 170

Before Abdul Sattar Asghar, J

ABDUL MAJEED and others---Petitioners

Versus

MANZOOR HUSSAIN and others---Respondents

Civil Revision No.3675 of 2012, decided on 12th December, 2012.

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

----O. VII, R. 11(a)---Criminal Procedure Code (V of 1898), Ss. 154 & 200---Rejection of plaint of suit for malicious prosecution---Suit for recovery of damages on basis of malicious prosecution arising out of an F.I.R.---"Cause of action" to file such a suit---Scope---Suit for malicious prosecution filed by accused against complainant on the basis of cancellation report of police officer---Maintainability---Complainant/ defendant lodged an F.I.R. against the accused/plaintiffs---During investigation police found accused as innocent and accordingly prepared cancellation report---Accused/plaintiffs filed suit for recovery of damages against complainant/defendant for malicious prosecution---Complainant/defendant resisted the suit on the grounds that police wrongly declared the accused/plaintiffs as innocent, and that a private complaint under S.200, Cr.P.C had been lodged against the accused/plaintiffs---Trial Court rejected plaint of suit for malicious prosecution under O.VII, R.11(a), C.P.C---Appeal against order of Trial Court was also dismissed---Validity---Mere cancellation report by police officer did not amount to termination of prosecution in favour of the accused/plaintiffs---Since complainant/defendant had lodged a private complaint against accused/plaintiffs, which was pending trial, therefore, plaintiffs lacked any cause of action to file suit for recovery of damages for malicious prosecution merely on the basis of cancellation report of the police officer---Trial Court had rightly rejected the plaint in terms of O.VII, R.11(a), C.P.C---Revision petition was dismissed in circumstances.

(b) Words and phrases---

----"Prosecution"---Meaning.

Halsbury's Laws of England (4th Edn., Vol. 45, p.612, para 1342 ref.

(c) Malicious prosecution---

----Suit for damages on basis of malicious prosecution arising out of a criminal charge---Conditions essential to constitute a cause of action for such suit stated.

Malicious prosecution was an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. To be actionable as a tort the prosecution must have been malicious and terminated in favour of the plaintiff. For an action for malicious prosecution plaintiff had to prove that:

(i) he was prosecuted by the defendant of a criminal charge;

(ii) the proceedings complained of terminated in his favour;

(iii) the defendant instituted or carried on such prosecution maliciously or in other words the prosecution was instituted and carried on with a malicious intent;

(iv) there was absence of reasonable and probable cause for such proceedings; and

(v) he had suffered damage.

Halsbury's Laws of England (4th Edn., Vol. 45, p.612, para 1342 fol.

Malikzada Hameed ur Rehman for Petitioners.

P L D 2013 Lahore 173

Before Ibad-ur-Rehman Lodhi, J

ABDUL SATTAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.16117-B, 16118-B, 16510-B, 15931-B and 15932-B of 2012, decided on 15th November, 2012.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Accused allegedly issued a cheque to the complainant, which was dishonoured on presentation---Complainant contended that there were five other cases similar to present one registered against the accused, which established the fact that accused was a habitual offender in issuing cheques, and that unless recovery of amount was effected from accused, he was not entitled to be released on bail---Validity---Although different F.I.Rs. had been registered against accused for issuing cheques, which got dishonoured on presentation, but he was not convicted in any one of them---Complainant in a criminal case under S.489-F, P.P.C. could not ask criminal court to effect any recovery of amount involved in the cheque---Accused was released on bail in circumstances.

Shameel Ahmed v. The State 2009 SCMR 174 ref.

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

----S. 489-F & Chaps. XVII [Ss.378 to 462] & XVIII [Ss.463 to 489-F]---Dishonestly issuing a cheque---Recovery of cheque amount---Scope---Complainant in a criminal case under S.489-F, P.P.C could not ask a criminal court to effect any recovery of amount involved in the cheque---Cheque amount involved in the offence under S.489-F, P.P.C was never considered as stolen property---Had the same been treated as stolen property, the investigating agency would certainly have been equipped with a power to recover said amount as provided under Chap. XVII, P.P.C---Section 489-F, P.P.C had been inserted in Chap. XVIII, P.P.C, under which only remedy provided for the prosecution was the conviction of accused and no process for recovery could be effected.

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

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail---Cheque issued for a huge amount---Recovery of cheque amount---Complainant opposing grant of bail to accused on the ground that huge amount was involved and recovery was yet to be effected---Police requesting physical remand of accused and cancellation of bail in order to facilitate process of recovery of amount in investigation---Validity---No such process could be allowed to be adopted either by courts dealing with matter of remand or trial of the offence under S.489-F, P.P.C, or the investigating agency to effect recovery.

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

----Ss. 489-F & 384---Dishonestly issuing a cheque---Bail---Cheque issued as guarantee/security---Recipient of the cheque using the same to exert pressure on the issuer to force him to surrender to his illegal demands---Such misuse of S.489-F, P.P.C for the purpose of securing money would be termed as extortion.

Malik Saleem Iqbal Awan for Petitioner.

Chaudhary Karamat Ali, Addl. Prosecutor-General for the State with Hamid Ullah ASI.

Ghulam Hussain Malik for the Complainant.

Bashir Abbas Khan for the Complainant in Crl.Misc.No.15931-B of 2012.

P L D 2013 Lahore 178

Before Kh. Imtiaz Ahmad, J

MUHAMMAD ZAFAR and 4 others---Petitioners

Versus

THE STATE and another--Respondents

Criminal Revision No.119 of 2012, decided on 17th December, 2012.

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

----Arts. 151 & 150---Hostile-witness---Declaration of investigating officer of a case/prosecution witness as a hostile witness---Scope---Investigating officer/prosecution witness found accused persons to be innocent and placed them in column No.2 of the report under S.173, Cr.P.C---During his examination-in-chief investigating officer made a statement to the effect that after completion of investigation he found accused persons to be innocent, because of which he placed their names in column No.2 of the report under S.173, Cr.P.C---Complainant sought to declare investigating officer as a hostile-witness on the ground that in his examination-in-chief he had no discretion to declare anybody guilty or non-guilty, therefore, he should be declared hostile and permission should be given to cross-examine him under Art.150 of Qanun-e-Shahadat, 1984---Trial Court permitted complainant to cross-examine the investigating officer---Validity---Investigating officer while appearing as prosecution witness verified the entire proceedings of investigation conducted by him, which resulted in his opinion with regard to innocence of accused persons and placing of accused person in column No.2 of the report under S.173, Cr.P.C---Investigating officer in his examination-in-chief stated everything exactly according to the record and nothing said by him was against the record entitling the prosecution to get him declared as hostile---Investigating officer in his examination-in-chief only narrated the facts of his investigation and did not add a single word when he appeared as a witness in court---Complainant never challenged investigation conducted by investigating officer, wherein accused persons were declared as innocent---Trial Court had committed illegality by declaring investigating officer to be hostile and allowing complainant to cross-examine him---Revision petition was allowed, impugned order of Trial Court whereby investigating officer was declared as hostile was set-aside and it was further held that cross-examination conducted upon investigating officer was illegal and would not form part of the evidence.

2010 MLD 1848 and Muhammad Boota and another v. The State and another 1984 SCMR 560 ref.

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

----Art. 150---Hostile-witness---Scope---Witness who was unfavorable was not necessarily hostile---Hostile-witness was one whose manner of giving evidence showed that he was not desirous of telling the truth to the court---For declaring a witness to be hostile it was necessary to establish that he had made a statement against the record.

Muhammad Boota and another v. The State and another 1984 SCMR 560 rel.

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

----Arts. 151 & 150--- Hostile-witness---Scope---Party cross-examining its own witness---Scope---Fact that answers given by a witness to questions were in direct conflict with the evidence of other witnesses was not a reason for allowing the witness to be treated as hostile and for getting permission to cross-examine him.

Shaukat Hussain Raja for Petitioners.

Malik Jawad Khalid for Respondents.

Kashif Saleem Rana, Law Officer.

Sajjad Ahmad ASI, P.S. Kotli Sattian.

P L D 2013 Lahore 182

Before Muhammad Khalid Mehmood Khan, J

PAKISTAN FLOUR MILLS ASSOCIATION (PUNJAB BRANCH) through Vice Chairman---Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) and others---Respondents

Writ Petition No.26524 of 2011, decided on 28th January, 2013.

(a) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 31---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules 1998, Rr. 2(1)(m) & 17(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Domestic consumers of electricity---Electricity bills---Fuel Adjustment Charges---Levy and demand of such charges in electricity bills as arrears with retrospective effect---Legality---Protection of interest of consumers---Scope---Petitioners challenged recovery of fuel adjustment charges ascertained by the National Electric Power Regulatory Authority ("NEPRA") vide impugned notifications with the contentions that NEPRA had no powers to redetermine the tariff of electricity under the garb of fuel adjustment charges; that NEPRA had no power to direct the electricity distribution companies to recover the difference of redetermined tariff from consumers after bills had already been paid; that fuel adjustment charges were being recovered with retrospective effect after payment of the final bill of consumed energy, and as such it became a past and closed transaction and a vested right accrued in favour of the petitioners, and that after making the full payment of the costs of the consumed energy, it was the consumers' legitimate expectation, that they would not be burdened with any additional amount---Validity---While determining tariffs it was the duty of NEPRA to protect the interest of both the parties i.e. the consumers and the power generation companies---NEPRA was responsible to fix, renew, revise or modify the tariff of energy after conducting an inquiry and hearing the consumer, the electricity distribution companies, the power generation companies and the National Transmission and Dispatch Company (NTDC)---Definition of tariff with reference to the present case meant the final cost of energy offered to consumer---NEPRA determined energy tariff on the basis of reference fuel price and any subsequent difference in fuel price was added by NEPRA, as such it was in the knowledge of the consumer that they were paying the price of energy which was arrived at on the basis of tentative fuel price and the actual price would be payable on the receipt of actual invoice of the fuel---Fuel adjustment price was a pre-agreed liability of the consumer which was payable as and when finally determined. thus in such circumstances, no question of vested right and any legitimate expectancy arose---Vested right was a right which was complete in all respects and was not dependent on any contingency---High Court directed that domestic consumers who were utilizing more than 350 units of electricity were liable to pay the fuel adjustment price; that domestic consumers who were consuming 350 Units of electricity or less per month were not liable to pay the fuel adjustment price and the electricity distribution companies were bound to refund the already recovered fuel adjustment charges to such consumers or might adjust the refundable amount in future monthly bills; that after re-examining the present issue if NEPRA came to the conclusion that power generation companies had wrongly claimed fuel adjustment costs and other expenses, then NEPRA will recover the said amount from its beneficiaries, which might be the power generation companies or the Federal Government, and will refund the said amount to the consumers by way of adjustment in their monthly bills; that NEPRA will also determine the transmission losses after holding detail probe and in case it was proved that line loss represented the price of stolen energy, NEPRA will direct the Federal Government to refund the said amount to the consumers by way of adjustment in the monthly bills and will also take appropriate legal action against the culprits in accordance with law--- Constitutional petition was allowed accordingly.

Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Qamaruddin v. Muhammad Sadiq and others 2001 CLC 848; ICC Textiles Limited through Authorized representative and 31 others v. WAPDA, WAPDA House, Lahore through Chairman and 15 others 2009 CLC 1343; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Hajj Corruption's case 2011 PLC (C.S.) 1076; State of Karnataka and others v. Narasimhamurthy and others AIR 1996 SC 90; Minir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407; Rana Aamer Raza Ashfaq and another v. Dr.Minhaj Ahmad Khan and another 2012 SCMR 6; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another PLD 2011 Lah. 120; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islambad and 3 others 1999 SCMR 1379; Samina Kanwal v. Director Punjab Forestry Research Institute, Faisalabad 2011 PLC (C.S.) 1553; Atta Ullah Khan Malik v. Federation of Pakistan through President of Pakistan and 3 others PLD 2010 Lah. 605; Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others 2000 SCMR 1137; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1; Malik Nisar Ahmed v. Messrs Kohistan Goods Forwarding Agency and 4 others 2001 CLC 342; Muhammad Ibrahim Khan v. Secretary Ministry of Labour and others 1984 SCMR 1014; Hafiz Abdul Waheed v. Mrs. Asma Jehangir and others PLD 2004 SC 219; Muhammad Ali Shah and another v. Election Tribunal (Union Council No.49 Narhal) District Khanewal and 4 others 2004 CLC 1922; Muhammad Ramzan v. Trustees of Port of Karachi 1990 CLC 1086; Mst. Yasmin Zafar v. Muhammad Anwar Khan and others PLD 1989 Lah. 38; The Secretary Auqaf Department, Government of Sindh, Karachi South and 3 others v. Syed Sher Ali Shah and 9 others PLD 1999 Kar. 417; M. Daud Khan and 20 others v. Government of West Pakistan and 2 others PLD 1971 Lah. 462; The Chairman, Electricity WAPDA, Lahore and 2 others v. Ch. Muhammad Shafi, Advocate PLD 1976 SC 254; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Flying Board and Paper Products Ltd. and others v. Government of Pakistan through Secretary Cabinet Division and others 2010 SCMR 517; Messrs Noorani Steel Mills v. Federation of Pakistan 2010 YLR 2872; Sh. Saleem Ali v. Sh. Akhtar Ali and 7 others PLD 2004 Lah 404; The Chief Land Commissioner, Sindh and others v. Ghulam Hyder Shah and others 1988 SCMR 715; Province of East Pakistan v. Sharafatullah and 87 others PLD 1970 SC 514; Messrs Burjor Ardshir Industries Limited v. Pakistan Industrial Credit and Investment Corporation 2003 CLD 1299; Dilawar Hussain and 6 others v. Province of Sindh through Secretary, Revenue Department, Karachi and 2 others PLD 2003 Kar. 174; Board of Intermediate and Secondary Education v. Hafiz Ahmad Sufyan PLD 2004 SC 25; Commissioner of Income Tax v. Shahnawaz Ltd. and others 1993 SCMR 73; Pt. Eram Parkash, v. Smt. Savitri Devi, AIR 1958 Punjab 87; Syed Akhlaque Husain, Advocate's case PLD 1965 (W.P.) Lah 147; Mehran Advertiser and others v. Government of Punjab and others PLD 2011 Lah. 61; Dilawar Hussain and 6 others v. The Province of Sindh through Secretary Revenue Department, Karachi and 2 others PLD 1993 Kar. 578; Messrs Gold Trade Impex through Partner and another v. Appellate Tribunal of Customs, Excise and Sales Tax through Collector of Customs, and 2 others 2012 PTD 377 and Messrs Malah Rice Mlls, Jacobabad and others v. Presiding Officer, Banking Tribunal, Larkana and others 1997 CLC 679 ref.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 and Baz Muhammad Khan v. Federation of Pakistan PLD 2010 SC 923 rel.

(b) Words and phrases---

----" Tariff"--- Meaning.

(c) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 31(1)---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules 1998, R. 2(1)(m)---Electricity bills---Fuel adjustment charge, nature of---Fuel adjustment charge was the price of energy and not a charge or additional charge.

(d) National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules 1998 ---

----R. 17(3)---Energy tariff, determination of---Line losses in transmission of electricity---Line losses was not an item which was to be considered for the purpose of determining energy tariff.

(e) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 31(2)---Energy tariff, determination of---Protection of interest of consumers---Scope---National Electric Power Regulatory Authority ("NEPRA") was bound to protect consumers against monopolistic and oligopolistic prices---Electricity was a monopoly product of Water And Power Development Authority (WAPDA), thus NEPRA was bound to examine minutely each and every component required and used for generation of energy while ascertaining the tariff.

(f) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 31---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules 1998, Rr. 2(1)(m) & 17(3)---Constitution of Pakistan, Arts. 18 & 199---Constitutional petition---Industrial Units---Electricity bills---Fuel Adjustment Charges---Levy and demand of such charges in electricity bills as arrears with retrospective effect---Legality---Industrial units/petitioners challenged recovery of fuel adjustment charges ascertained by National Electric Power Regulatory Authority ("NEPRA") vide impugned notifications with the contentions that fuel adjustment charges were being recovered with retrospective effect after payment of the final bill of consumed energy, and as such it became a past and closed transaction, and that Industrial Units were being deprived from doing their legitimate business---Validity---Industrial Units added the cost of energy on their products and in this way recovered the said cost from the end consumer---Industrial Units were purchasing energy and debiting the (additional cost) to the end consumer---Government had not imposed any restriction on the Industrial Units in the present case---Industrial Units calculated their profit after the close of financial year and the impugned additional amount/fuel adjustment charges would be adjustable in the yearly profit---At most fuel adjustment charges might fractionally affect the ratio of projected profit of Industrial Units but the ultimate loser was the Federal Government as it would get less income tax on gross profit of Industrial Units---Electricity distribution companies were entitled to recover fuel adjustment price from the Industrial Units as per impugned notifications---Constitutional petition was allowed accordingly.

(g) Constitution of Pakistan---

----Arts. 9 & 14---Right to receive electricity---Scope---Right to receive electricity was a fundamental right of citizens.

Al-Dhrriyat 51; Bani Isrial 17:26; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Arshad Mehmood and others v. Government of Punjab through Secretary Transport Civil Secretariat, Lahore and others PLD 2005 SC 193; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 and Alleged Corruption in Rental Power Plants etc.'s case 2012 SCMR 773 ref.

(h) Vested right---

----Scope---Vested right is that right which is complete in all respects and is not dependent on any contingency.

Umar Farooq, Anum Saleem and Ms. Mehnaz Sheraz for Petitioner

Khawaja Ahmad Tariq Raheem and Sh. Muhammad Ali for Federation of Pakistan.

Munawar us Salam and Usman Akram Sahi with Syed Mubashar Masood, Legal Advisor for LESCO.

Umar Sharif for NEPRA.

Aurangzeb Mirza, Mian Muhammad Javaid and Dr. M. Irtaza Awan for LESCO.

Sarfraz Ahmad Cheema, Ch. Fiaz Ahmad Singharra and Faisal Nasim Chaudhary for other Respondents.

Date of hearing: 18th December, 2012.

P L D 2013 Lahore 210

Before Sh. Najam ul Hasan and Mamoon Rashid Sheikh, JJ

GHAZI KHAN and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.700 of 2006, Criminal Revision No.480 and Murder Reference No.328 of 2006, decided on 4th September, 2012.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Conversion of death sentence into imprisonment for life---Injuries received by accused suppressed by complainant side---Weapon and crime empties not sent to Forensic Laboratory---Effect---Accused allegedly murdered his brother/deceased due to litigation between them---Trial Court convicted accused under S.302(b), P.P.C and sentenced him to death with a direction to pay Rs.100,000 as compensation to legal heirs of deceased---Validity---F.I.R. was lodged about 3 hours after the occurrence at a police station which was 30 kilometers from the place of occurrence, therefore, it would seem that F.I.R. was not lodged with undue delay---After his arrest accused led to the recovery of crime weapon used by him during the occurrence---Five crime empties were also recovered from the place of occurrence---Medical evidence and post mortem report of deceased also supported the prosecution version---One of the prosecution witnesses was real brother of accused and deceased, therefore, the fact that he deposed against the accused lent credence to the prosecution case---Trial Court had rightly convicted the accused under S.302(b), P.P.C, however accused was also admittedly injured during the occurrence and it was not explained as to how he received the injuries---Accused was examined by a doctor three hours after the occurrence and was found to have received two firearm injuries---Said doctor appeared as a witness and attested to the fact of accused having received firearm injuries---Complainant suppressed evidence of doctor who had examined the accused---Circumstances showed that there was an exchange of fire between the parties during the course of which deceased received fatal firearm injuries---Dead body of deceased was recovered from a part of land which belonged to the accused, and such fact was admitted by the complainant in his cross-examination---Weapon recovered from accused and crime empties recovered from place of occurrence were not sent to Forensic Science Laboratory---Conviction recorded by Trial Court was maintained in circumstances, however death sentence awarded to accused was converted into imprisonment for life---Accused was directed to pay compensation to legal heirs of deceased as ordered by Trial Court---Appeal was dismissed accordingly.

Haji Inayat Ali v. Shahzada and others 2008 SCMR 1565; Muhammad Akram v. The State 2012 SCMR 440; Mushtaq Hussain and another v. The State 2011 SCMR 45 and Umar Hayat v. the State 2007 SCMR 1296 ref.

(b) Criminal trial---

----Sentence---Benefit of doubt---Scope---Whilst convicting and sentencing an accused the court had to consider the prevailing circumstances and if there was any doubt the benefit thereof had to be given to the accused.

Israr Ali v. The State 2007 SCMR 525 and Rasheed alias Sheeda v. The State 2011 PCr.LJ 129 rel.

Azam Nazeer Tarar for Appellant.

Syed Zahid Hussian Bokhari for the Complainant.

Shahid Bashir Chaudhry, Deputy Prosecutor-General for the State.

Date of hearing: 4th September, 2012.

P L D 2013 Lahore 221

Before Amin-ud-Din Khan, J

WAPDA through Authorised Attorney and 4 others---Appellants

Versus

Messrs CRESCENT GROUP OF SERVICES through Authorised Person and others---Respondents

F.A.O. No.114 of 2004, heard on 10th January, 2013.

Limitation Act (IX of 1908)---

----S. 14---Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983), Art.1---Computation of the period of limitation---Exclusion of time of bona fide proceeding in court without jurisdiction---Wafaqi Mohtasib (Federal Ombudsman), status of---Wafaqi Mohtasib was not a court, therefore, the benefit of S.14 of the Limitation Act, 1908 could not be given to a person who consumed any time before the Wafaqi Mohtasib and time consumed before Wafaqi Mohtasib could not be excluded from the prescribed period of filing of a lis.

Munawar Hussain and 2 others v. Sultan Ahmad 2005 SCMR 1388; Maulvi Aziz-ur-Rehman v. Ahmad Khan and others 2004 SCMR 1622; Idris Ahmed Rizwani v. Federal Public Service Commission through Secretary, Chughtai Plaza, Blue Area, Islamabad and 3 others 2000 SCMR 1889; Khooshamonai Tribe of Samagole, Tehsil Morkeh, District Chitral through Representative v. Provincial Government of N.-W.F.P. Home and Tribal Affairs, District Courts, Peshawar and 3 others 2000 SCMR 1657; Shifaatullah Qureshi v. Federation of Pakistan through Secretary/Chairman, Railways, Ministry of Railways Islamabad 1999 CLC 364 and Sualeh Sons (Private) Limited v. Karachi Development Authority 1997 CLC 893 ref.

Sh. Muhammad Ismail for Appellants.

Muhammad Nauman Aslam for Respondents.

Date of hearing: 10th January, 2013.

P L D 2013 Lahore 224

Before Umar Ata Bandial, C J

FAISAL ILYAS, ADVOCATE---Petitioner

Versus

Rana ASIF MEHMOOD and 5 others---Respondents

Writ Petition No.8697 of 2012, decided on 16th November, 2012.

(a) Constitution of Pakistan---

----Arts. 63(1)(c) & 199(1)(b)(ii)---Canadian Passport Order, 1981, S.4(2) & Sched.---Constitutional petition---Quo warranto, writ of---Member of Provincial Assembly on a minorities seat---Respondent was alleged to have incurred disqualification on ground of being Canadian national and holding passport issued by Canadian Government---Validity---Respondent had admitted himself to be a national of Canada and holding Canadian passport---According to S.4(2) of Canadian Passport Order, 1981, a Canadian Passport could be issued only to a Canadian citizen---Every person admitted as a citizen of Canada would be bound to take oath as contained in Schedule to Canadian Passport Order, 1981 by swearing or affirming that he would faithfully observe laws of Canada and fulfil his duties as a Canadian citizen---Respondent could not produce any law in support of his plea that he was holding Canadian Passport without having become a Canadian Citizen---Neither Pakistani law nor Canadian law recognized any notion of a non-citizen of State being given its nationality---Respondent was holding an Overseas Pakistani Card issued by Government of Pakistan finding mention therein his Canadian address allowing him visa free entry into Pakistan---Nothing was available on record to show as to when respondent had acquired Canadian nationality and whether he was aware of his disqualification as a result to his office---High Court directed Election Commission of Pakistan to de-notify membership of respondent from the Provincial Assembly.

Umar Ahmad Ghumman v. Government of Pakistan and others PLD 2002 Lah. 521; Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others C.P. No.5 of 2012 and Farzand Ali's case PLD 1970 SC 98 rel.

(b) Constitution of Pakistan---

----Arts.199(1)(b)(ii) & 225---Constitutional petition---Maintainability---Challenge to election of Member of Parliament or Provincial Assembly---Scope---Object of Art.225 of the Constitution was to protect sanctity of election process and not to bar filing of such petition after completion of election process---Such petition would be competent to enforce a disqualification of holder of a public office on constitutional premise that no public office would be held by a person not satisfying its qualification provided by law.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others C.P. No.5 of 2012 and Farzand Ali's case PLD 1970 SC 98 rel.

Saif-ul-Malook for Petitioner.

Naveed Inayat Malik, D.A.-G.

Jamshed Rehmat Ullah for Respondent No.1.

Muhammad Jamil Khan for NADRA .

Muhammad Zubair Kamal, Election Officer.

P L D 2013 Lahore 228

Before Ibad-ur-Rehman Lodhi, J

NASIR AHMAD---Petitioner

Versus

Dr. FAIZA BASHIR and 3 others---Respondents

Writ Petitions Nos.11182 and 21093 of 2011, decided on 25th October, 2012.

(a) Words and phrases---

----"Maintenance"---Defined and explained.

Muhammadan Law, by D.F. Mulla, para.369 and Black's Law Dictionary, (8th Edn.) ref.

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

----S. 5, Sched. Entry No.3---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of maintenance allowance of minor daughter---Decree of Family Court awarding maintenance to minor with 10% annual increase therein upheld by Appellate Court---Father's plea was that in absence of any provision in West Pakistan Family Courts Act, 1964, Family Court on its own could not grant such increase in maintenance to minor---Validity---Nothing was available in S.5 of West Pakistan Family Courts Act, 1964 or its Sched. to prohibit Family Court from granting maintenance to needy minor with annual increase therein---Basic requirements of life of a minor would grow with his growing age---Family Court would always be deemed to exercise its parental jurisdiction and supposed to look into future needs of minor while granting maintenance in its age of infancy---Maintenance would never be considered as charity---Forcing minor to stand in attendance before father or appear before Family Court every year with folded hands for annual increase in maintenance would be violative to his/her dignity---Legislature had not provided any fixed rate of maintenance, thus, Family Court could fix its rate while keeping in view financial and social status of parties and requirements of minor and evidence of parties in support thereof---Family Court could grant annual increase in maintenance of minor---High Court by virtue of S.5(3) of West Pakistan Family Courts Act, 1964 had power to add annual increase in already existing Entry at Sr. No.3 of Sched., thereof---High Court dismissed constitutional petition filed by father and directed the Registrar of the Court to place present judgment before Chief Justice for adding suitable entry against Column No.3 of Sched. to the Act by exercising powers provided in S.5(3) thereof---Principles.

Khadeeja Bibi and others v. Abdul Raheem and others 2012 SCMR 671 ref.

Muhammad Anwar v. Nadia Nasreen and others PLD 2012 Lah. 110 and M. Umar Fraz v. Additional District Judge and others PLD 2012 Lah. 170 fol.

Mehr Umar Hayat for Petitioner.

Muhammad Rashid Mirza for Respondents.

Date of hearing: 19th September, 2012.

P L D 2013 Lahore 234

Before Abdul Sattar Asghar, J

FAIZ AHMAD and 23 others---Petitioners

Versus

AHMAD KHAN and 7 others---Respondents

Civil Revision No.919 of 1993, decided on 18th December, 2012.

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

----S. 8---Suit for possession of Shamlaat Deh land and not a joint Khata of owners---Non-impleading of all co-sharers as party in suit by plaintiff being co-owners in estate---Effect---Plaintiff could not file suit for possession against co-sharers of Shamlaat Deh land without seeking partition thereof, thus, no decree therein could be passed in favour of plaintiff only.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 rel.

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

----O. XLI, R. 33 & S.96---First appeal---Powers of Appellate Court---Non-filing of cross objections by respondent against findings of Trial Court on an issue recorded in judgment decree impugned in appeal---Effect---First Appellate Court in appeal being a continuation of original suit could look into all dimensions of law and facts in order to resolve real matter in controversy and do complete justice---Principles.

First Appellate Court has ample jurisdiction under Order XLI, Rule 33 of Civil Procedure Code, 1908 to look into all the dimensions of law and facts to resolve the real matter in controversy and to do complete justice.

Appeal being a continuation of the original suit an Appellate Court can pass any order that can be made by a Trial Court in the interest of justice. Order XLI, Rule 33 of Civil Procedure Code, 1908 therefore confers unfettered discretion which should not be limited or restricted and must be used to adjust the rights of the parties in accordance with law, justice, equity and good conscience.

(c) Administration of justice--

----Mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat ends of justice.

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

----S. 115(1)---Revisional jurisdiction of High Court---Scope---High Court could correct non-exercise or refusal of courts below to exercise discretion to make proper order in accordance with law and facts.

Ch. Amjad Hussain and Malik Amjad Pervaiz for Petitioners.

Taqi Ahmad Khan for Respondents.

Date of hearing: 18th December, 2012.

P L D 2013 Lahore 241

Before Ijaz Ahmad and Muhammad Yawar Ali , JJ

IMTIAZ AHMAD KHAN---Appellant

Versus

Mst. AQSA MANZOOR and others---Respondents

I.C.A. No.154 of 2012, decided on 20th December, 2012.

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

----S. 14---Civil Procedure Code (V of 1908), S.11---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---"Decision given" and "interlocutory order"---Distinction---Suit for recovery of maintenance allowance and dower---Application of appellant under S.11, C.P.C. for rejection of suit on ground of res judicata was dismissed by Family Court and said order of Family Court was not interfered with by Single Judge High Court in a constitutional petition filed by the appellant---Contention of the respondent was that present intra-court appeal was not maintainable since impugned order of Family Court was in the nature of a "decision given" and was appealable under S.14 of the West Pakistan Family Courts Act 1964---Validity---Question as to whether the court could try the subsequent suit when the earlier one had already been dismissed for want of evidence was finally decided by the impugned order of Family Court and therefore, it fell within the terms of "a decision given"---Order that was impugned in the constitutional petition finally decided the application made by the appellant and could not therefore be termed as an "interlocutory order"---Intra-court appeal arising out of the proceedings whereby law provided a remedy by way of an appeal and revision was not competent---Intra-court appeal was dismissed, in circumstances.

Rao Muhammad Owais Qarni v. Mst. Tauheed Aisha and others 1991 MLD 1097 ref.

Abdul Quddus Khan Tareen for Appellant.

Muhammad Tanveer Hussain Ansari for Respondents Nos. 1 and 2.

P L D 2013 Lahore 243

Before Muhammad Qasim Khan, J

ALLAH NAWAZ---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION MAHMOOD KOT DISTRICT, MUZAFFARGARH

Criminal Miscellaneous No.566-H of 2012, decided on 14th September, 2012.

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

----S. 375---Child Marriage Restraint Act (XIX of 1929), Ss.2(a) & (b)---Criminal Procedure Code (V of 1898), S. 491---Habeas Corpus petition for recovery of detenue---Rape---Scope---Marriage of Muslim girl below sixteen years of age who had otherwise attained puberty and consented to the marriage---Legality---Complainant (father of alleged detenue) filed present petition for recovery of her daughter contending that she was a minor girl and accused was subjecting her to rape---Alleged detenue contended that she had attained puberty and contracted marriage with the accused out of her own free will and consent---Validity---Medical reports of alleged detenue revealed that she was between 14 and 15 years of age, therefore, it was established that she was below sixteen years of age at the time of her marriage with the accused---Medico-Legal certificate available on record showed that alleged detenue had developed all physical characteristics of having attained puberty---Marriage of a Muslim girl who was below sixteen years of age, but had attained puberty and was also a consenting party to the marriage, was valid for all intent and purposes---Relationship of accused with the alleged detenue could not be equated with rape in such circumstances---Alleged detenue claimed to have attained puberty and admitted her wilful Nikah with the accused and also deposed to accompany him---Petition for recovery of alleged detenue was dismissed, in circumstances.

Yousaf Masih alias Baggah Masih and another v. The State 1994 SCMR 2102 and Mst. Hajra Khatoon and another v. Station House Officer, Police Station Fateh Jang, District Attock and 2 others PLD 2005 Lah. 316 rel.

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

----S. 375(v)---Child Marriage Restraint Act (XIX of 1929), Ss.2(a) & (b)---Rape---Scope---Female under sixteen years of age admitting to having entered into marriage wilfully---Effect---Although S.375(v), P.P.C. provided that in case of sexual intercourse of a man with a girl under the age of sixteen years would amount to rape whether such act was committed with or without consent of such girl, but said section could not be made applicable to a case where the girl, though under sixteen years of age, admitted to having entered into marriage in explicit terms.

(c) Words and phrases---

----"Rape"---Definition.

Block's Law Dictionary 6th Edn. ref.

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

----S. 375---Child Marriage Restraint Act (XIX of 1929), Ss.2(a) & (b)---Rape---Scope---Marriage of Muslim girl below sixteen years of age, who had otherwise attained puberty and consented to the marriage---Legality---Performance of conjugal rights by the spouses under such a marriage could not be termed as "unlawful sexual intercourse" so as to attract S.375, P.P.C. in order to initiate proceedings against them.

Atif Mushtaq Bhutta for Petitioner.

Malik Muhammad Jaffar, Deputy Prosecutor General.

Miss Robina Magasi for Respondent No.2.

Muhammad Zafar, ASI and Saima Raza No.4363/LC with Mst. Jameela Bibi alleged detenue.

P L D 2013 Lahore 249

Before Syed Muhammad Kazim Raza Shamsi, J

AMIR MASIH---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.1042-B of 2013, decided on 8th March, 2013.

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

----Ss. 497, 498 & 369---Bail order, review of---Scope---Order passed in a bail application/petition was not reviewable by the same court.

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

----S. 369---Power of court to review its own judgment---Scope---Section 369, Cr.P.C. clearly restrained the court from reviewing its own judgment and orders except if some clerical or typographical error was found therein.

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

----Ss. 561-A, 369, 424 & 430---Inherent power of High Court to review, revoke or alter its own order/judgment---Scope---High Court, in rare and exceptional cases, had the inherent power to revoke, review or alter its on earlier decision in the case which was not governed by Ss.369, 424 and 430, Cr.P.C. with a view to give effect to any order under Cr.P.C. or to prevent abuse of process of any court or otherwise to secure ends of justice.

Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335 and Saleem Akhtar v. The State PLD 1980 Lah 127 rel.

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

----Ss. 497 & 498---Bail order, nature of---Scope---Orders passed by court in bail application filed under Ss. 497 or 498, Cr.P.C. was not equal to judgment, which was the result of conducting a full-fledged trial of a criminal case.

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

----Ss. 497 & 426---Bail application---Application for suspension of sentence---Exercise of discretion---Principles---Provisions of S.497 & 426, Cr.P.C. were analogous provisions and in the absence of any guideline, the principles which governed S.497, Cr.P.C. might guide the exercise of discretion under S.426, Cr.P.C.

Mazhar Ahmed v. The State and another 2012 SCMR 997 and Shamshad Hussain v. Gulraiz Akhtar PLD 2007 SC 564 rel.

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

----S. 497---Second bail petition, filing of---Petitioner to show "fresh ground" or "necessity"---Scope---Withdrawal of first bail application when same was not decided on merits---Bar on filing second bail application---Scope---Plea that it had become common practice that when a court was going to announce order of dismissal of a bail petition, the petitioner (accused) usually withdrew the same for availing second chance of filing bail; that a second bail application filed in such circumstances could not be entertained unless and until a fresh ground was urged---Validity---Although filing of successive bail applications after withdrawal (of first) without decision on merits, was not barred, but practice of filing successive bail application, without disclosing any fresh ground or the circumstances which might have taken place after withdrawal of the first bail application, creating necessity for institution of second one, had to be deprecated---Second bail petition would be dismissed where the petitioner was not able to canvass any fresh ground or necessity for filing the same after withdrawal of the first one---Bail petition was dismissed accordingly.

Ali Hassan v. The State 2001 SCMR 1047 and Muhammad Riaz v. The State 2002 SCMR 184 ref.

Mahram Ali Bali for Petitioner.

Muhammad Ishaq, Deputy Prosecutor General.

Rana Sajjad Ahmad for the Complainant.

Noor Ali, S.I. with record.

P L D 2013 Lahore 254

Before Ijaz Ahmad, J

FAROOQ SIDDIQUI---Petitioner

Versus

Mst. FARZANA NAHEED and 2 others---Respondents

Writ Petition No.1326 of 2012, decided on 8th November, 2012.

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

----S. 25---Constitution of Pakistan, Art.199---Constitution petition---Custody of minor---Surrogate mother, right of---Petitioner sought custody of minor on the plea that he was father of the minor and alleged that respondent was only a surrogate mother---Validity---Petitioner did not take a stance that he himself transplanted fertilized egg into the womb of respondent and asserted that it was some third person who did it---Petitioner did not produce the third person in witness box thus case of subrogation was not proved---Law in Pakistan did not recognize surrogation and even if it was recongized law of land and transplantation of fertilized egg was proved, there was no evidence that sperm that fertilized the egg, originated from petitioner---Petitioner had no right over the child not born in consequence of a lawful marriage---Whether marriage was established or not, the child belonged to the bed---Adulterer might be convicted and punished but custody of child would go to mother who housed the fetus for nine months---Baby was born to respondent and her motherhood was undeniable---Petitioner whether he was or was not, the father of child through marriage or the source of sperm that fertilized the egg, had no right to the custody of minor girl---Both the courts below had legally refused petitioner, the custody of minor child---Petition was dismissed in circumstances.

Mst. Razia Bibi v.Riaz Ahmad and another 2004 SCMR 821 rel.

Petitioner in Person.

P L D 2013 Lahore 257

Before Nasir Saeed Sheikh and Amin-ud-Din Khan, JJ

NATASHA HUSSAIN---Applicant

Versus

SHABBIR HUSSAIN and 2 others---Respondents

Review Application No.89 of 2012 in W.P. No.26003 of 2010, decided on 21st November, 2012.

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

----Art. 162---Civil Procedure Code (V of 1908), O.XLVII, Rr. 1, 2 & S.114---Constitution of Pakistan, Art. 199---Constitutional petition---Original jurisdiction of High Court---Scope---Review of order passed in the exercise of constitutional jurisdiction of High Court---Limitation---Applicant sought review of order of High Court passed in constitutional petition---Review was barred by time under Art.162 of the Limitation Act, 1908---Contention of applicant was that Art.162, Limitation Act, 1908 did not apply to the present case, as the order sought to be reviewed was not passed while exercising original jurisdiction of High Court, since the constitutional petition emanated from the suit decided by the Family Court---Validity---Concept of "original jurisdiction" as envisaged and stated in Art.162 of the Schedule to Limitation Act, 1908 did not make any classification between constitutional petition instituted under Art.199 of the Constitution which arose out of proceedings of a civil suit or which were filed against some order independent of any civil suit proceedings---Concept of original jurisdiction under Art.162 of the Schedule to the Limitation Act, 1908 was with reference to the first forum available under the Constitution, for entertainment of a petition and passing of an order as visualized under Art.199 of the Constitution---Concept of "original jurisdiction" was in contrast to the exercise of appellate or revisional jurisdiction of High Court---High Court, as a forum for the entertainment of constitutional petition was created by the Constitution under Art.199, therefore, when a High Court entertained a constitutional petition against any order, whether the same was judicial or administrative, it entertained the same in exercise of its original jurisdiction which was conferred upon the High Court through the Constitution---Review, being time-barred, was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Jurisdiction of High Court under Art.199 of the Constitution---Nature---High Court, as a forum for the entertainment of constitutional petitions was created by the Constitution under Art.199, therefore, when a High Court entertained a constitutional petition against any order, whether the same was judicial or administrative, it entertained the same in exercise of its original jurisdiction which was conferred upon the High Court through the Constitution.

Iftikhar Ullah Malik for Applicant.

P L D 2013 Lahore 259

Before Abdul Sami Khan, J

CHAIRMAN, SCACER CITIZEN COMMUNITY BOARD, MULTAN through Abdul Razak and another---Petitioners

Versus

The STATE and another---Respondents

Writ Petition No.3446 of 2012, decided on 6th June, 2012.

Penal Code (XLV of 1860)---

----Ss. 409 & 21---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan, Art.199---Constitutional petition---Criminal breach of trust by public servant, criminal misconduct---Petition for quashing of proceedings, dismissed of---"Public servant"---Definition---Scope---Community Board utilizing public funds provided by Government exchequer---Status of official of such Community Board as public servant---Scope---Officials of Community Board (petitioners) were alleged to have misappropriated a huge amount during the completion of a project, which was partly funded by the District Government---Contention of said officials was that they did not fall under the definition of "public servant", therefore, proceedings before Judge, Anti-Corruption were coram non-judice and were liable to be quashed---Validity---Community Board in question did fall within the definition of S.409, P.P.C. which was triable by Judge, Anti-Corruption---Where funds were provided to any Board by the Government exchequer for use of public purposes, the persons, associated with discharging their functions by using such public funds were deemed to be public servants even though they might not be government employees or were not receiving their salaries/ remuneration from the Government---Officials of Community Board in question also sought to resolve factual controversies through present constitutional petition, which was the job of the Judge, Anti-Corruption---Constitutional petition was dismissed accordingly.

PLD 1963 Dhaka 839; PLD 1963 Dhaka 139 and 1991 SCMR 994 ref.

Nida-e-Millat, Citizen Community Board, Multan through Chairman v. Director Anti-Corruption Establishment, Multan Region, Multan and 8 others 2010 YLR 643 rel.

Muhammad Suleman Bhatti for Petitioners.

Aziz-ur-Rehman, Asstt. A.G. for Respondents with Nadeem Mahboob, DCO, Khanewal and Mian Abdul Ghafoor, EDO, Khanewal.

P L D 2013 Lahore 264

Before Amin-ud-Din Khan, J

NAZAR MUHAMMAD and 3 others---Petitioners

Versus

MUHAMMAD AZAM and 8 others---Respondents

Civil Revision No.1295 of 2002, heard on 26th November, 2012.

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

----S. 144---Application for restitution---Scope.

Principle of restitution was applicable or attracted where the applicant fulfilled the conditions that the restitution must be in respect of the decree, which had been varied or reversed; that the party applying for restitution must be entitled to benefit under the reversing decree; that the relief must be properly consequential on reversal and variation of decree; and was not opposed to any other principle of equity.

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

----S. 144---Specific Relief Act (I of 1877), S.12---Suit for specific performance to sell immovable property, dismissal of---Application for restitution---Scope---Suit of plaintiff was dismissed, whereafter during pendency of appeal filed by plaintiff, one of the defendants registered a sale deed in favour of the plaintiff, after which the appeal by the plaintiff was withdrawn---Subsequently the other defendants filed application under S.144 of the C.P.C. contending that the sale-deed was liable to be set aside, which application was allowed by Appellate Court---Contention of the plaintiff was that Appellate Court had no jurisdiction to entertain application under S.144, C.P.C. for restitution---Validity---Provisions of S.144, C.P.C. embodied the principle that nobody shall be prejudiced by the act of the court meaning thereby that it was the paramount duty of the court to take care that the act of the court did not injure the parties and when such injury was found by the court on account of subsequent event of variation or reversal of decree, then it was the foremost duty of the court to undo the wrong and reinstate the wronged party to the position it was entitled to---In the present case, there was no decree passed by the Trial Court and the suit had been dismissed in toto, and sale deed was registered during pendency of appeal and therefore application filed under S.144, C.P.C. was not maintainable since the sale-deed was registered between the parties and had not been registered with the aid of the court---Impugned order being without jurisdiction was set aside---Revision was allowed in circumstances.

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

----S. 52---Specific Relief Act (I of 1877), S.12---Transfer of property pending suit relating thereto---Suit for specific performance of agreement to sell immovable property was dismissed---During pendency of appeal filed by the plaintiff a sale deed in respect to suit land was executed by one of the defendants in favour of the plaintiff whereafter plaintiff withdrew his appeal---Contention of the other defendants was that the sale-deed was hit by the principle of lis pendens in terms of S.52 of the Transfer of Property Act, 1882---Validity---Section 52 of the Transfer of Property Act, 1882 was inapplicable to the present case as it laid down the precondition that proceedings should have been decided in favour of the plaintiff and in absence of such a situation, S.52 would not apply---Revision was dismissed.

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

----O. XXXIX, Rr.1 & 2(3)---Transaction (transfer of property) carried out in presence of a stay order---Effect---Any transaction made during existence of a stay order was not a nullity in the eye of law---Disobedience of a stay order could be ground for punishment to the person who disobeyed the order, but the transaction does not automatically nullify.

Arshad Malik Awan for Petitioners.

Sh. Naveed Shaharyar for Respondent No.2.

Date of hearing: 26th November, 2012.

P L D 2013 Lahore 269

Before Muhammad Qasim Khan and Ibad-ur-Rehman Lodhi, JJ

NATIONAL BANK OF PAKISTAN through Attorney of the Bank---Appellant

Versus

KHALID JAVED QURESHI and 12 others---Respondents

I.C.A. No.180 and C.M. No.2 of 2012, decided on 3rd December, 2012.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S.12 & Art.151---High Court (Lahore) Rules and Orders, Vol. V, Chap.1, R.4---Intra-court appeal---Computation of limitation for filing of intra-court appeal---Time consumed in obtaining certified copies of impugned order to be excluded in the computation of limitation under S.12 of the Limitation Act, 1908---Contention of appellant was that time period consumed in obtaining certified copy of impugned order of single Judge had to be excluded from the period of limitation---Validity---Intra-court appeal had to be filed within twenty days but the present intra-court appeal was filed with a delay of eight days---Under the High Court (Lahore) Rules and Order, Vol. V, Chap. 1, R.4 the memorandum of appeal was not required to be accompanied by copy of impugned order but the said Rules themselves provided that the period of limitation had to be computed in accordance with provisions of S.12 of the Limitation Act, 1908---Under S.12 of the Limitation Act, 1908 time consumed in obtaining certified copies of impugned order was excluded---Although certified copy of the impugned judgment was not required to be attached with intra-court appeal but by a liberal interpretation of the High Court Rules and Orders, it could be said that the settled practice of appending certified copy of impugned order was a facility for the litigant and where under a prima facie bona fide impression a party considers that a certified copy was required for filing intra-court appeal and that solely formed the reason in the delay in filing of intra-court appeal, such delay had to be condoned in suitable cases depending on the facts and circumstance of the case, especially where valuable rights of the parties were involved and a technical knock out was expected to infringe such right---Benefit of S.12 of the Limitation Act, 1908 was therefore, available to the appellant and the time consumed in applying for certified order of single Judge, till its preparation and till the fling of the intra-court appeal, was excluded and therefore, the present intra court appeal was within time.

Board of Governors, Area Study Centre for Africa and North America, Quaid-e-Azam, University, Islamabad and another v. Ms. Farah Zahra PLD 2005 SC 153; Muhammad Islam v. Inspector-General of Police, Islamabad and others 2011 SCMR 8; Aftab Alam Khan v. The Settlement Commissioner and 3 others PLD 1972 Quetta 97 and Additonal Chief Engineer (Army) Okara Cantt. and others v. Messrs Nasim Co. (Pvt) Ltd. 1991 CLC 1476 ref.

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3---High Court (Lahore) Rules and Orders, Vol. V---Intra-court appeal---Objection that certified copies obtained for the purpose of filing appeal before Supreme Court could not be used for filing of intra-court appeal---Validity---No such distinction or prohibition existed in the High Court (Lahore) Rules and Orders, Vol. V---Objection was overruled.

Mughees Aslam Malik and Ch. Muhammad Ashraf Khan for Appellant.

Malik Muhammad Latif Khokhar for Respondents.

P L D 2013 Lahore 273

Before Umar Ata Bandial, C J

Lt.-Col. IQBAL JANJUA---Petitioner

Versus

MILITARY ESTATE OFFICER, LAHORE and 3 others---Respondents

Writ Petition No.1487 of 1989, decided on 19th November, 2012.

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

----Ss. 4 & 16---Return of land to its original owner---Scope---Purpose of acquiring land abandoned---Effect---Where announced public purpose of acquiring land had been abandoned; such land was returnable to the original owner provided he had continued to retain possession thereof.

Mst. Asmat un Nisa and another v. Government of N.-W.F.P. and others 2010 SCMR 480 rel.

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

----Ss. 9(3) & 5-A---Acquisition of land---Notice to be given to persons interested/affected---Scope---Notice under S.9(3) of Land Acquisition Act, 1894 was a mandatory requirement for validity of the acquisition proceedings, otherwise such proceedings were void---Object of the notice was to enable the affected party to raise objections under S.5-A of the Act to the acquisition of his land.

Mst. Sardar Begum v. Lahore Improvement Trust, Lahore and 3 others PLD 1972 Lah. 458; Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore Improvement Trust, Lahore and 2 others PLD 1970 Lah. 321 and Muhammad Hanif Khan v. Province of Sindh and 8 others PLD 2006 Kar. 531 rel.

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

----Ss. 4, 9(3) & 16---Constitution of Pakistan, Art.199---Constitutional petition---Acquisition of land---Purpose of acquiring land abandoned---Return of land to its original owner---Scope---Notice to persons interested/affected not provided---Effect---Part of petitioner's land was acquired by Federal Government for the purpose of extending a depot of Pakistan Army---Extension of depot was subsequently abandoned and Pakistan Army issued a letter directing that acquired land should be returned to the petitioner---Plea of Federal Government was that Pakistan Army was merely a user of the land, which was actually acquired by the Federal Government, therefore, any return of land was to be done by the Federal Government only---Validity---Record did not contain any material sustaining service of a prior notice on the petitioner in terms of S.9(3) of Land Acquisition Act, 1894, whereby he might have challenged the acquisition of his land in terms of S.5-A of the Act---Project/purpose for which land was acquired had been abandoned---Report of Patwari stated that the petitioner's land and all the land adjoining it was retained in possession of its original owners in the revenue record---Constitutional petition was allowed and it was directed that petitioner's land was liable to be returned to him.

Mst. Asmat un Nisa and another v. Government of N.-W.F.P. and others 2010 SCMR 480 ref.

Farooq Bedar for and along with Petitioner.

Muhammad Naseem Kashmiri Deputy Attorney General for Pakistan.

P L D 2013 Lahore 277

Before Abdus Sattar Asghar, J.

LIAQAT HUSSAIN ZIA---Petitioner

Versus

MUHAMMAD DIN and others---Respondents

Writ Petition No.11119 of 2010, decided on 19th February, 2013.

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

----Ss. 35, 36, 61 & 11---Civil Procedure Code (V of 1908), O.XXXVII, Rr.1 & 2---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery on basis of promissory note---Defect or deficiency of stamps on a promissory note or bill of exchange---Effect---Inadmissibility of instruments not duly stamped---Scope---Defendant impugned order of Trial Court whereby his application for de-exhibiting pro note on the ground that same was not stamped as required under S.11 of the Stamp Act, 1899, was dismissed---Validity---Perusal of record revealed that the pro note was admittedly not stamped as required under S.11 of the Stamp Act, 1899---Section 35 of the Stamp Act, 1899 enjoined the court not to admit in evidence an instrument which was not duly stamped however, S.36 of the Stamp Act, 1899 contemplated that where an instrument was admitted in evidence, such admission shall not, except according to procedure provided in S.61 of the Act, be called in question at any stage in the same suit or proceedings on the ground that the instrument had not been duly stamped---Deficiency in payment of stamp duty, if any, could be made up in accordance with law---Object of Ss.35, 36 and 61 of the Stamp Act, 1899 was to collect the dues of the State revenue for public use and not to deprive any party of valuable rights arising out of any instrument---Plaintiff had stated on the record that he was ready to affix the stamps upon the pro note in accordance with S.61(2) of the Stamp Act, 1899, and on basis of such statement, High Court directed the Trial Court to get the pro note impounded in terms of S.61(2) of the Stamp Act, 1899 within a period of ten days---Constitutional petition was disposed of, accordingly.

Abul Hashem v. Serajul Haque and others PLD 1961 Dacca 596 and Muhammad Ashiq and another v. Niaz Ahmad and another PLD 2004 Lah. 95 rel.

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

----Ss. 35, 36 & 61---Object and Scope of Ss.35, 36 & 61 of Stamp Act, 1899---Defect or deficiency in the payment of stamp duty on promissory notes or bills of exchange---Effect---Deficiency in payment of stamp duty, if any, could be made up in accordance with law---Object of Ss.35, 36 and 61 of the Stamp Act, 1899 was to collect the dues of the State revenue for public use and not to deprive any party of valuable rights arising out of any instrument.

Abul Hashem v. Serajul Haque and others PLD 1961 Dacca 596 and Muhammad Ashiq and another v. Niaz Ahmad and another PLD 2004 Lah. 95 rel.

Umair Khan Niazi for Petitioner.

Malik Saleem Iqbal Awan for Respondents.

Date of hearing: 19th February, 2013.

P L D 2013 Lahore 282

Before Umar Ata Bandial, J

Messrs AZGARD NINE LTD.---Petitioner

Versus

PAKISTAN through Secretary and others---Respondents

Writ Petitions Nos.23393, 23394 of 2009, 27165, 27166 of 2010, 136, 3662, 11988, 15224 of 2011 and 98 of 2012, decided on 21st May, 2012.

(a) Workers Welfare Fund Ordinance (XXXVI of 1971)---

----Ss. 4, 2(i), 6 & 11B---Constitution of Pakistan, Arts. 73, 78, 77 & 199---Constitutional petition---Money Bill---Scope---"Tax" and "Fee", distinction---Contributions made to the Workers' Welfare Fund by industrial undertakings were in the nature of a "fee" and not "tax"---Petitioners impugned amendments made in S. 4 of the Workers' Welfare Fund Ordinance, 1971 whereby quantum of industrial contributions to the Workers' Welfare Fund was enhanced---Contention of the petitioners was that under the prescribed scope of Money Bill under Art.73 of the Constitution, provisions of the Workers' Welfare Fund Ordinance, 1971 fell beyond the scope of Federal Finance Legislation, and such contributions had the character of a "fee" and not of a "tax; and the impugned amendments were therefore ultra vires the Constitution---Validity---"Tax" was a compulsory exaction of money by public authority for public purposes, whereas "fee" was a quid pro quo, and a recompense for services rendered---Contributions to the Fund were made by industrial undertakings, and the beneficiaries of the disbursements from the Workers' Welfare Fund were workers of such undertakings and therefore, such contributions lacked a direct quid pro quo which was considered a classic feature of a fee however still such contributions did contain a collateral recompense in which the contributor-employer's workers were the beneficiaries of disbursements from the Fund---Distinction between a tax and the fee lay primarily in the fact that a tax was levied a part of a common burden, while a fee was a payment for a special benefit or privilege---Tax was levied to raise funds for meeting the "necessary expenses" of the State, therefore, a tax was not co-related to services rendered or special benefit or privilege conferred on the taxpayer and accordingly the taxpayer was sharing/discharging his obligation under a common burden without being a beneficiary of a corresponding benefit, whereas in contrast, a fee was not part of the common burden but was payment made in lieu of a benefit, service or privilege by the payer of such fee---Workers Welfare Fund could not be applied for general requirements of the State and contributions made to it had a specified and restricted purpose and therefore the Fund was not part of a common burden and lacked such essential attribute of a "tax"---Workers' Welfare Fund was body corporate under S.11B of the Ordinance, and contributions made to it did not form part of the general revenues of the Federal Government as envisaged in Art.78(1) of the Constitution---Workers' Welfare Fund did not form part of the Federal Consolidated Fund as it had an independent statutory existence and for the same reason it did not get credited to the Public Account of the Federation---Under Art.73(2) of the Constitution, a financial charge that neither fell within the ambit of the Federal Consolidated Fund or the Public Account of the Federation, could not fall within the scope of a "Money Bill"---High Court observed that neither the Workers' Welfare Fund nor contributions made thereto bore the attributes of a "tax" nor fell within ambit of the Art.73 of the Constitution in order to be levied, modified or enhanced by a Money Bill as had happened in the present case---Impugned amendments to the Workers' Welfare Fund Ordinance, 1971 were ultra vires the Constitution and the competence of the Parliament and were accordingly set aside---Constitutional petition was allowed, in circumstances.

East Pakistan Chrome Tannesry (Pvt). Ltd. v. Federation of Pakistan 2011 PTD 2643; Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; Sheikh Muhammad Ismail and Co. Ltd. v. The Chief Cotton Inspector, Multan PLD 1966 SC 388 and Mathews v. Chicory Marketing Board 60 CLR 263 rel.

Messrs Saif Textile Mills Limited v. Pakistan through Secretary PLD 1998 Pesh. 15 distinguished.

(b) Constitution of Pakistan---

----Arts. 73, 77 & 78---Fiscal legislation---Money Bill---Interpretation and Scope---"Tax" and "Fee", distinction---"Tax" was a compulsory exaction of money by a public authority for public purposes, whereas a "fee" was a quid pro quo, and a recompense for services rendered---Distinction between a tax and the fee lay primarily in the fact that a tax was levied as a part of a common burden, while a fee was a payment for a special benefit or privilege---"Tax" was levied to raise funds for meeting the "necessary expenses" of the State, therefore, a "tax" was not co-related to services rendered or special benefit or privilege conferred on the taxpayer and accordingly the taxpayer was sharing/discharging his obligation under a common burden without being a beneficiary of a corresponding benefit, whereas in contrast, a fee was not part of the common burden but was payment made in lieu of a benefit, service or privilege by the payer of such fee---Under Art.73(2) of the Constitution, a financial charge that neither fell within the ambit of the Federal Consolidated Fund or the Public Account of the Federation, could not fall within the scope of a "Money Bill"

Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402 rel.

Dr. Muhammad Farogh Naseem assisted by Munir-uz-Zaman and Wasif Majeed for Petitioners.

Imtiaz Rasheed Siddiqui assisted by Messrs Sehriyar Kasuri and Asif-ur-Rehman for Petitioners in connected petitions.

Muhammad Arshad and Muhammad Waseem Ch. for Petitioners in connected petitions.

Muhammad Naseem Kashmiri, D.A.G.

Syed Sajjad Haider Rizvi for Respondents Nos. 3 to 7.

Nemo for Respondent No.8.

P L D 2013 Lahore 289

Before Mrs. Ayesha A. Malik, J

SNGPL---Petitioner

Versus

OGRA and others---Respondents

OGRA Petition No.467 of 2012, decided on 15th February, 2013.

(a) Administration of justice---

----When something was required to be done in a certain way, then same must be done in such way---Any deviation from such prescribed way would render decision a nullity---Illustration.

(b) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 7 & 8---Natural Gas Regulatory Authority Licensing Rules, 2002, R.3---Natural Gas Tariff Rules, 2002, Rr.4, 17 & 20---Decision of Oil and Gas Regulatory Authority determining unaccounted for Gas (UFG)---Scope---Tariff would be determined as per Oil and Gas Regulatory Authority Ordinance, 2002 and Natural Gas Tariff Rules, 2002---Authority for determining UFG component had to fix target for each financial year---Licensee succeeding to achieve such UFG target could retain gain on such account, otherwise loss on account of its failure to achieve such target would not be considered or made part of Estimated Revenue Requirement---Word "benchmark" as used in R.17(1)(c) of Natural Gas Tariff Rules, 2002 would mean setting of a standard by Authority to measure performance and efficiency of licensee---Benchmarks could not be set without yardsticks---Benchmarking through yardstick regulations set out by Authority to encourage/motivate optimum performance by licensee would need to be done annually---Principles.

PLD 1996 SC 324; PLD 2007 SC 323; 2004 SCMR 456; 2006 PTD 1132; 2004 PTD 1179; PLD 2001 SC 201; 2010 PTD 534; 1990 CLC 784; 2005 PTD 1663; 1984 MLD 468; 1998 CLC 1278; PLD 2005 Lah. 571 and 2001 PTD 19 ref.

(c) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 7 & 8---Natural Gas Tariff Rules, 2002, R.17---Decision of Oil and Gas Regulatory Authority in respect of unaccounted for gas (UFG) by licensee---Jurisdiction of High Court to interfere into such decision---Scope---Authority could exercise its discretion to advance objects of Oil and Gas Regulatory Authority Ordinance, 2002, Natural Gas Tariff Rules, 2002 and Natural Gas Regulatory Authority Licensing Rules, 2002---Authority itself would determine factors to be relevant for UFG, but not licensee by putting forward its own factors---High Court could review decision making process, but could not direct Authority to change its decision, if having been made after following due process.

(d) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 7 & 8---Natural Gas Regulatory Authority Licensing Rules, 2002, R.3---Natural Gas Tariff Rules, 2002, Rr.4, 17 & 20---Decision of Oil and Gas Regulatory Authority determining unaccounted for Gas (UFG)---Duty of Authority to maintain consultation process while making such decision---Scope---Authority in order to set targets to keep UFG within acceptable limits would be required to maintain a process of open consultation with experts and licensee---Such process must be meaningful in order to give the Authority information required for setting UFG targets---Such open consultation could not control decision of Authority to set UFG targets, but could shape its making.

(e) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 7 & 8---Natural Gas Regulatory Authority Licensing Rules, 2002, R.3---Natural Gas Tariff Rules, 2002, Rr.4, 17 & 20---Fixation of tariff and prices for natural gas---Discretion of Oil and Gas Regulatory Authority determining unaccounted for Gas (UFG)---Scope---Object of Oil and Gas Regulatory Authority Ordinance, 2002 being to safeguard public interest and protect interests of all stakeholders including consumers and licensees---Such discretion not being open ended, rather would be regulated by Oil and Gas Regulatory Authority Ordinance, 2002, Natural Gas Tariff Rules, 2002 and Natural Gas Regulatory Authority Licensing Rules, 2002---Principle.

Tariq Aziz-ud-Din and others' case 2010 SCMR 1301 rel.

Mirza Mahmood Ahmad for Petitioner.

Salman Akram Raja, Abdul Basit Qureshi, Senior Law Officer, OGRA with Muhammad Yasin ED (Enforcement), Syed Abdul Hai Gillani, Addl. Attorney General with Bismillah Rai Director for Ministry for Petroleum.

Date of hearing: 3rd December, 2012.

P L D 2013 Lahore 305

Before Umar Ata Bandial, C J

MUHAMMAD RIAZ---Petitioner

Versus

PRESIDENT, P.C. BANK, LAHORE---Respondent

Writ Petition No.13234 of 2006, decided on 30th October, 2012.

Prudential Regulations for Consumer Financing (State Bank of Pakistan)---

----Reglns. 6 & 14---Constitution of Pakistan, Art.199---Constitutional petition---Consumer financing---Auto-finance---Termination of loan---Consumer impugned actions of respondent Bank whereby his car finance loan was terminated a few months after the disbursement of the loan, and he was asked to pay an amount for delivery of the vehicle to the petitioner---Contention of the petitioner was that the action of the respondent (Bank) was in violation of the Prudential Regulations for Consumer finance issued by the State Bank of Pakistan---Validity---Termination of auto-lease was effected without notice and without the case of the petitioner incurring classification under Regln.14 of the said Prudential Regulations for Consumer Finance (State Bank of Pakistan)---Termination letter was not preceded by any notice in terms of Regln.6 of the Prudential Regulations for Consumer Finance (State Bank of Pakistan) and the specific default period of 90 days as per the said Regulations, was not attracted to the present case and the repossession of the vehicle was therefore contrary to the said Regulations---Conduct of the respondent bank also had an element of mala fide and coercion and there was a failure of the respondent Bank to confront the petitioner with his specific default and with the means to cure the same---High Court directed the State Bank of Pakistan to probe the transactions and dealing of the respondent Bank in order to determine a suitable compensation for the petitioner and to take appropriate action against the respondent Bank---Constitutional petition was disposed of accordingly.

Ms. Safina Aslam and others v. Muslim Commercial Bank and another 2011 CLD 18 ref.

C.M. Sarwar for Petitioner.

Shahid Ikram Siddique for Respondents Nos. 1 and 3.

Rehan Nawaz for SBP.

P L D 2013 Lahore 309

Before Amin-ud-Din Khan, J

NAZIR AHMED and another---Petitioners

Versus

SARFRAZ ALI and 2 others---Respondents

Civil Revision No.1756 of 2011, heard on 22nd November, 2012.

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

----O.VI, R.17---Punjab Pre-emption Act (IX of 1991), S.5---Pre-emption suit---Sale deed registered through court in execution of decree passed in suit for specific performance of sale agreement---Defendant's application under O.VI, R.17, C.P.C. seeking to amend written statement for incorporation therein factum of sale agreement on basis of which suit for specific performance was filed---Order of Trial Court dismissing such application upheld by Appellate Court---Plaintiff's plea was that defendant had moved such application after four (4) years of filing of written statement---Validity---Plaintiff's evidence had not yet been completely recorded---Delay alone was not a determining factor while deciding application under O.VI, R.17, C.P.C.---Plaintiff in order to claim right of pre-emption on a sale had to file a suit for pre-emption while admitting such sale and its sale deed in toto---Proposed amendments, if allowed, would neither change existing plea of defence nor nature of written statement nor raise any new plea of defence---Defendant would not be able to produce evidence regarding sale agreement, which remained subject matter of suit for specific performance---Proposed amendment would be necessary for determining real matter in controversy---High Court allowed such application in circumstances.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Ahmed Jamil Ansari v. Messrs Al-Hoqani Securities and Investment Corporation (Pvt.) Limited) 2008 CLC [Karachi] 946; Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR 318; Ahsan Kausar and others v. Ahmad Zaman Khan 1986 SCMR 1799; Treasurer of Charitable Endowments for Pakistan v. Inamur Rehman Alvi 1993 CLC 2033 and Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191 rel.

Karamat Ali and 6 others v. Hakim Ghulam Hussain 1997 SCMR 416 distinguished.

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

----O. VI, R. 17---Amendment of pleadings, application for---Scope---Delay in making such application was not the only determining factor while deciding same---Illustration.

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

----O. VI, R.17---Amendment of pleadings---Powers of Court---Scope---Power to grant such amendment for being procedural must be exercised for purpose of dispensation of complete justice---Formal defect in pleadings, if bona fide and occurred due to mistake of fact or misrepresentation, should be allowed to be corrected by amendment.

Naik Muhammad Khokhar for Petitioners.

Muhammad Hanif for Respondents.

Date of hearing: 22nd November, 2012.

P L D 2013 Lahore 313

Before Nasir Saeed Sheikh, J

NATIONAL HIGHWAY AUTHORITY through General Manager Motorway and another---Petitioners

Versus

Haji SHAH AHMAD KHAN and 13 others---Respondents

Civil Revisions Nos.3102 and 3103 of 2012, decided on 2nd November, 2012.

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

----O. XVII, Rr.1(3) & 3---Non-production of evidence by defendant despite availing twenty three (23) adjournments some of which being with costs and warnings---Order of Trial Court closing defendant's right to produce evidence for such failure---Defendant's plea was that prior to date of hearing i.e. 20-6-2012, when his evidence was closed, previous date of hearing was 16-6-2012 on which date lawyers were on strike and cases were adjourned by court, thus, such previous adjournment was not granted at his instance and penal provisions of O.XVII, R.3, C.P.C. could not be invoked against him---Validity---Presence of defendant's counsel was marked in previous order dated 16-6-2012, when trial Court could not record evidence due to strike of lawyers---Non-production of evidence by defendant on relevant date was wilful and contumacious, thus, Trial Court had no option except to refuse further adjournment and close his evidence---Trial Court had not specifically passed impugned order by applying provisions of O.XVII, R.3, C.P.C. but had passed same keeping in view provision of R.1(3) thereof---High Court dismissed revision petition in limine.

Pirzada Amir Hassan and others v. Mrs. Shamim Shah Nawaz and others 1984 CLC 3080 and The Administrator, Lahore Municipal Corporation, Lahore v. Abdul Hamid and others 1987 CLC 1261 rel.

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

----O. XVII, R.3---Provision of O.XVII, R.3, C.P.C.---Applicability---Scope---Such provision being penal in nature would be construed strictly and could not be applied to a case, when adjournment on previous date had not been granted at instance of defaulting party.

Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and another 2012 SCMR 361; Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109 and Mubashir Khan v. Javaid Kamran alias Javed Iqbal 2007 MLD 1072 ref.

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

----O. XVII, R.1(3)---Failure of a party to show sufficient cause for grant of an adjournment---Effect---Court in such case would not be obliged to grant further adjournment, but could proceed with case forthwith.

Pirzada Amir Hassan and others v. Mrs. Shamim Shah Nawaz and others 1984 CLC 3080 and The Administrator, Lahore Municipal Corporation, Lahore v. Abdul Hamid and others 1987 CLC 1261 rel.

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

----O.XVII, R.1---Adjournment, grant of---Scope---Granting of an adjournment is in discretion of court.

Muhammad Rafiq Shad for Petitioners.

P L D 2013 Lahore 320

Before Umar Ata Bandial, C J

IQBAL AHMAD KHAN---Petitioner

Versus

IFTIKHAR AHMAD KHAN and others---Respondents

Election Petition No.259 of 2008, decided on 26th March, 2013.

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

----S. 78(3)(d)---Election petition---Provincial Assembly, election of---Academic qualification of returned candidate (respondent)---Petitioner's plea was that respondent had obtained B.A. degree by fraudulent means through an impersonator as Roll Number Slip issued to respondent by University bore photograph and National Identity Card (NIC) number of impersonator and not that of respondent---Proof---Evidence on record showed that respondent himself had filled examination admission form and roll number slip, whereas NIC number finding mention therein did not belong to him---Record further showed that admission form contained an attested photograph of respondent, whereas roll number slip contained attested photograph of impersonator, whose identity could not be established during trial---Photographs of respondent and impersonator had been attested by same officer and affixed on admission form and roll number slip at time of filling and filing the admission form by respondent---Mentioning of wrong NIC number on admission form and roll number slip by respondent was not an innocent mistake, rather he by concealing his identity had facilitated impersonator to appear on his behalf in B.A. examination---Vice Chancellor of University on basis of report of Inquiry Committee had quashed respondent's result of B.A., on account of difference of photographs on his admission form and roll number slip and three changes in examination center---Respondent had not personally sit for and take B.A. examination, but had been substituted by impersonator---Degree of B.A., issued to respondent by University was valid and not fake, but he had obtained same through impersonator by adopting dishonest practice, fraudulent and illegal means---Respondent was not qualified to contest election on nomination date---Election Tribunal accepted petition and imposed penalty upon respondent in terms of S.62 of Representation of the People Act, 1976.

Munawar Hussain v. University of Azad Jammu and Kashmir and others Civil Appeal No.177 of 2010; Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others 2012 SCMR 366 and Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 ref.

Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others 2012 SCMR 366 rel.

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

----S. 62---Qanun-e-Shahadat (10 of 1984), Art.84---Election petition---Comparison of disputed writing with other writing admitted by a party before Election Tribunal---Scope---Tribunal under S.62 of Representation of the People Act, 1976 had power to invoke provision of Art.84 of Qanun-e-Shahadat, 1984 for such purpose.

Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others 1985 SCMR 214; Muslim Commercial Bank Ltd. through General Attorney and another v. Amir Hussain and another 1996 SCMR 464; Ghulam Rasool and others v. Sardar-ul-Hassan and another 1997 SCMR 976 and Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others 1999 SCMR 85 rel.

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

----S. 78(3)(d)---Election petition---Provincial Assembly, election of---Academic qualification of returned candidate (respondent)---Petitioner's plea was that respondent had obtained degree of B.A., by fraudulent means---Cancellation of respondent's result of B.A., by Vice Chancellor of the University on basis of report of Inquiry Committee---Validity---Findings of such Committee would be instructive, but would not be binding on Election Tribunal---Such report, if produced in evidence before Tribunal, would have corroborative force.

(d) Words and phrases---

----"False statement" would mean an untrue statement.

Black's Law Dictionary ref.

A.K. Dogar for Petitioner.

Muhammad Shehzad Shoukat for Respondents.

Date of hearing: 7th November, 2012.

P L D 2013 Lahore 333

Before Abdus Sattar Asghar, J

MATLOOB RABBANI and 5 others---Petitioners

Versus

MANZOORAN BEGUM and another---Respondents

Civil Revision No.564 of 2011, decided on 29th January, 2013.

(a) Islamic law---

----Gift/divorce through attorney---Scope---Muslim could confer authority in such matters on his attorney---Principles.

According to Islamic Law, in the matters of gift and divorce etc. a Muslim can confer the authority to an agent. Matters like gift and divorce etc. being personal act of the principal are to be based upon his own mental decision. Declaration of gift is the prerogative of the donor who after making such declaration however can appoint an agent conferring the authority upon him to take necessary steps for accomplishment of the gift.

Mst. Bandi v. Province of Punjab and others 2005 SCMR 1368 rel.

(b) Islamic law---

----"Tamleek"---Meanings---"Tamleek" would mean assignment of ownership---"Tamleek" being a kind of gift in favour of expected legal heir.

Muhammad Mujtaba Hassan Khan for Petitioners.

Arif Hussain Cheema for Respondents.

Date of hearing: 29th January, 2013.

P L D 2013 Lahore 339

Before Umar Ata Bandial, C J and Amin-ud-Din Khan, J

GEPCO---Petitioner

Versus

Malik WAQAS AHMAD and others---Respondents

I.C.A. No.316 of 2010, heard on 26th June, 2012.

Constitution of Pakistan---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Civil Service---Recruitment---Walk in interviews---Appellant, Power Company (employer) assailed judgment of Single Judge in a constitutional petition, whereby appointments made by the Power Company against various advertised posts, were declared illegal on ground that same were non-transparent as they were made on the basis of "walk-in" interviews only---Validity---In the recruitment process 432 persons were appointed and only 138 of those had survived scrutiny on the touchtone of merit transparency and fairness while the rest of the appointments had been accommodated on extraneous considerations which found no merit or sanction in the existing rules and regulations and which was also a violation of the rules of competition, transparency and fairness for appointment to public office---Selection based on interviews alone was arbitrary since it was entirely subjective---No illegality was found in order of Single Judge---High Court directed that copy of its judgment be sent to the National Accountability Bureau for examination of causes of issuance of letter by Managing Director of the Power Company on basis of which the recruitment process became derailed---Intra-court appeal was dismissed, accordingly.

Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 and Waheed Ahmed and another v. Executive District Officer (Revenue) Faisalabad and others 2012 PLC (C.S,) 733 rel.

Muhammad Ilyas Khan, Aurangzeb Mirza along with Hashmat Ali Kazmi Director, HR & Admn., Syed Ejaz Ahmad, Manager HRM and Muhammad Siddique Malik, Director (Legal), GEPCO for Petitioner.

Asad Mehmood for PEPCO (Respondents)

Date of hearing: 26th June, 2012.

P L D 2013 Lahore 343

Before Syed Mansoor Ali Shah, J

Barrister SARDAR MUHAMMAD---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.29005 of 2012, heard on 15th January, 2013.

(a) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Scope and object of proceedings---Quo warranto proceedings afforded a judicial remedy by which any person, who held an independent substantive public office was called upon to show by what right he held the said office, so that his title to it might be duly determined, and in case the finding was that the holder of the office had no title, he would be ousted from that office by a judicial order---Procedure of quo warranto gave the judiciary a weapon to control the executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he had a right---Quo warranto proceedings also tended to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the executive or by reason of its apathy.

Halsbury's Law of India -- Vol.35 (Constitutional Law-II) Lexis Nexis Butterworths 2007-p.145 rel.

(b) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Writ of quo warranto, remedy of---Scope and object---Object of constitutional remedy of writ of quo warranto was to protect the sanctity of the "public office" by safeguarding against unlawful appointments---Constitutional objective in regard to said remedy appeared to be more institutional---Constitutional courts, acting as gatekeepers, protect the sanctity of a "public office" and, as a result, shield public institutions from usurpers---Constitutional obligation was to ensure that persons selected to man public institutions were appointed in accordance with law without the slightest taint of impropriety---Writ of quo warranto was also a constitutional platform for the "whistle-blowers" to come forward in public interest and raise their concern about wrongdoing within organizations, as a result of which institutions/organizations were more open and accountable to their employees, shareholders and the greater public in their activities.

(c) Constitution of Pakistan---

---Art. 199(1)(b)(ii)---Quo warranto, writ of---Nature of proceedings---Locus standi of petitioner---Scope---Proceedings of writ of quo warranto were not strictly adversarial in nature and could be put into motion by any person (who need not be aggrieved)---Said proceedings, therefore, carried an inquisitorial rigour to protect the "public office" and, more importantly, the public institution behind it.

(d) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Territorial jurisdiction of High Court to issue such a writ, determination of ---For the purposes of a writ of quo warranto the focus was on the jurisdictional locale of the public office rather than the physical presence (i.e., residence or office) of person holding the office---Geographical location of the individual holding public office was of little significance---Real test was to see the geographical extent of the jurisdiction enjoyed by the "public office"---Physical location of the place of work or residence of the "person" holding public office was insignificant and the territorial jurisdiction of the "public office" under the law was relevant.

Messrs Sethi & Sethi Sons through Humayun Khan v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and others 2012 PTD 1869 and LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1498 ref.

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

----Ss. 3(2) & (3)---Constitution of Pakistan, Art.199(1)(b)(ii)---Appointment of Members and Chairman of Pakistan Telecommunication Authority challenged by way of writ of quo warranto---Territorial jurisdiction of High Court to issue such a writ---Scope---Members of Pakistan Telecommunication Authority (PTA) including the Chairman, exercised jurisdiction nationwide, therefore, their appointment could be challenged in any High Court in Pakistan---Even if the Pakistan Telecommunication (Re-organization) Act, 1996 provided that the head office of Chairman PTA was in Islamabad it would still make no difference because the test was the territorial jurisdiction of the public office---Geographical jurisdiction of the "public office" was determined under the law that established the said public office and it was the same law that helped to determine whether the public office fell with the territorial jurisdiction of a particular High Court---No person could be deprived of the constitutional remedy of quo warranto, under Art.199 of the Constitution, against a statutory or public sector institution that operated nationwide, on mere cosmetics and technicalities like the location of the place of work, head office or the residence of the incumbent to the public office.

(f) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo-warranto, writ of---Territorial jurisdiction of High Court to issue such writ---Scope---Public office belonging to a Provincial public or statutory authority with its jurisdiction limited to the Province---Territorial jurisdiction of High Court to issue writ of quo warranto in relation to such public office---Scope---For purposes of issuing writ of quo warranto, such a public office would fall within the territorial jurisdiction of the High Court of the relevant Province.

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

----S. 3(3)---Constitution of Pakistan, Arts. 199(1)(b)(ii) & 212---Service Tribunals Act (LXX of 1973), S. 4---Appointment of Chairman of Pakistan Telecommunication Authority (PTA) challenged by way of writ of quo warranto---Maintainability---Plea that transfer/posting order of Chairman PTA (a civil servant) could not be assailed before the High Court in terms of the bar contained under Art.212 of the Constitution---Validity---Article 212 of the Constitution was attracted only if the concerned Service Tribunal had the jurisdiction to entertain the appeal under S.4 of the Service Tribunals Act, 1973---Under S.4 of the Service Tribunals Act, 1973, only an aggrieved civil servant could agitate a matter before the Service Tribunal---In the present case, the transferee and appointee i.e., Chairman PTA was not aggrieved of his transfer/posting order but a member of the general public was, hence, Art.212 of the Constitution was not attracted.

(h) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Locus standi of petitioner/ "whistle blower"---Scope---For purposes of maintaining a writ of quo warranto there was no requirement of an "aggrieved person"---Any "whistle blower" need not be personally aggrieved in the strict sense for purposes of a writ of quo warranto.

(i) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Scope---Appointment to public office---Selection and recruitment process---Judicial review---Scope---Entire process of recruitment leading to an appointment to a "public office" could be judicially reviewed under Art.199(1)(b)(ii) of the Constitution---Such process had to pass the test of law, which included the settled principles of due process, openness, fairness, participation and transparency---Appointment to a "public office" was a public trust reposed by the people in the competent authority and it was a key institutional decision and marked the future progress, growth and development of the public institution, which was to be manned by the prospective incumbent to the said public office---Such trusteeship in the hands of the competent authority (the Executive) could not be discharged in a whimsical, temperamental, partial and preferential manner---Recruitment process must be above board, devoid of even the slightest taint of favoritism---Court was under an obligation to judicially review the integrity of the selection process to a public office.

Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Pakistan Tobacco Board and another v. Tahir Raza and others 2007 SCMR 97 and Sindh High Court Bar Association, through Honorary Secretary v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and 4 others PLD 2009 Kar. 408 rel.

(j) Civil service---

----Public sector post---Recruitment process---Public notice/ advertisement of post---Scope and benefits---For purposes of filling public sector posts, participatory recruitment process, through open public advertisement was to be followed---Requirement to reach out to the public (through public notice or advertisement) before filling public posts was an essential obligation of trusteeship to be exercised by the executive---Workable democracy must be pillared in an unwavering commitment to rule of law and due process with the vision to develop inclusive and participatory institutions, which formed the bedrock and engines of growth of any progressive nation---Recruitment to a "public office" orchestrated behind closed-doors, driven by greed of nepotism, without open public participation was undemocratic and deeply injured the constitutional objectives of political, social and economic justice and also fractured the ownership of an ordinary person in the government and gradually eroded their confidence in the State.

Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287; Abdul Jabbar Memon and others (Human Rights Case) 1996 SCMR 1349; Government of N.-W.F.P. through Secretary, Forest Department, Peshawar and others v. Muhammad Tufail Khan PLD 2004 SC 313; Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Obaid Ullah and another v. Habib Ullah and others PLD 1997 SC 835 and Abdur Rashid v. Riaz ud Din and others 1995 SCMR 999 rel.

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

----Ss. 3(3) & (8)---Rules of Business, 1973, R. 15---Chairman of Pakistan Telecommunication Authority, appointment of---Selection process---Scope---After the appointment of three Members of the Pakistan Telecommunication Authority ("Authority"), the Federal Government was to appoint the Chairman from amongst the three Members providing a pyramidic stewardship structure for running the Authority---Such second tier appointment of Chairman required initiation of a fresh process but with a different set of considerations---One of the considerations was evident from S.3(8) of Pakistan Telecommunication (Re-organization) Act, 1996, which provided that the powers of the Authority in matters relating to its administration and staff should be exercised by the Chairman---Other considerations or qualifications needed to be drawn up by the Cabinet Division in consultation with the Establishment Division in order to develop the profile of an ideal Chairman which could best serve the interest of the Authority---Such exercise was mandatory and was required to be undertaken prior to the selection of Chairman---Three Members of the Authority had to undergo a fresh interview by the Selection Committee unless rules under the Act (not yet framed) provided another transparent alternative---Recommendations of the Selection Committee along with the recommendations of the Cabinet and Establishment Divisions charting out a clear comparative evaluation of the three Members was to be placed before the competent authority (Prime Minister) for approval in terms of Rule 15 of the Rules of Business, 1973---Unless the summary put up before the competent authority was in accordance with the said manner, the exercise of discretion would lack relevant facts resulting in abuse of discretion---Any appointment without first framing the profile of the Chairman and without carrying out a comparative evaluation of the Members for the selection of the Chairman, would be open to the negative forces of nepotism and favourtism.

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

----S. 3(2)---Members of Pakistan Telecommunication Authority (PTA), appointment of---Ad hoc/temporary appointment of a Member---Legality---No provision existed in Pakistan Telecommunication (Re-organization) Act, 1996 for making ad hoc or temporary appointments to the post of Member, PTA.

(m) Constitution of Pakistan---

----Art. 99(3)---Rules of Business (1973)---Scope and purpose ---Conduct of Business of Federal Government---Adherence to the rule of law, in general, and to the Rules of Business, in particular, in conducting its business determined the quality of governance of the government in power---Rules of Business (1973) flowed out of the Constitution, and were the sinews of a workable government---Besides providing a departmental organogram of a workable democracy, said Rules were a fine weave of democratic principles including: participatory engagement, written and reasoned dialogue, divergence of opinion, open and transparent deliberations, etc.----Rules of Business (1973) besides providing a procedural manual for the Federal Government to conduct its business also acted as constraints on governmental power.

(n) Constitution of Pakistan---

----Part II, Chapts. 1 & 2 [Arts.7-40]---Fundamental Rights and Principles of Policy---Public institutions, development of---Scope and importance---"Inclusive institutions" and "extractive institutions", meaning of---Developing sound and strong public institutions was a constitutional obligation with its foundations pillared in democracy, equality, tolerance, social, economic and political justice---Institutional design and the configuration of its governance must be sensitive to the Fundamental Rights of the people and its vision aligned with the Principles of Policy---Such broad principles translated into institutional literature required the public institution to be open, equitable, accessible, transparent, rule-based, participatory and inclusive---Public institutions were trustees of the people and worked for the advancement of public interest---Persons who manned public institutions must invariably be selected from the public through a broad-based, publically accessible selection system---Such institutions were referred to as 'inclusive institutions" as opposed to "extractive institutions"---To be inclusive, economic institutions must feature secure private property, an unbiased system of law, and a provision of public services that provided a level playing field in which people could exchange and contract---Institutions opposed to the properties of an inclusive institution were called extractive institutions - extractive because such institutions were designed to extract incomes and wealth from one subset of society to benefit a different subset.

Daron Acemoglu & James A. Robinson- "Why Nations Fail - the origins of power, prosperity and poverty" by Crown Business - 2012. Pp. 74, 75 & 76 ref.

(o) Civil Servants Act (LXXI of 1973)---

----S. 10---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 7 & 8---Appointment by transfer---Civil servant transferred to a post under S.10 of Civil Servants Act, 1973 without qualifying the requirements of the said post---Legality----Section 10 of Civil Servants Act, 1973 only cast an obligation on a civil servant that he could be transferred to any post, it did not entitle the Federal Government or the civil servant to appoint or to be appointed, as the case might be, to any post through transfer without qualifying the requirements of the said post under the law---Such aspect was also evident from the reading of Rules 7 and 8 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Said Rules provided that promotions and transfers to posts in BS-2 to 18 and BS-19 to 21 and equivalent should be made on the recommendations of the appropriate Departmental Promotion Committee or Selection Boards, respectively---Section 10 of Civil Servants Act, 1973, therefore, was subject to the requirement of the post in question.

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

----Ss. 3(4) & 6---Member of Pakistan Telecommunication Authority (PTA) ---Impartiality ---"Conflict of interest" of a Member ---Scope---Section 3(4) of Pakistan Telecommunication (Re-organization) Act, 1996 provided that a person to be considered for appointment as a Member of PTA must not even have a hint of conflict between his private interest and the interest of the institution/PTA (public interest)---Said section provided that a Member of PTA should not have any business connection with any person, which rendered telecommunication services in Pakistan or abroad---In a case of "conflict of interest" what needed to be seen was whether the Member, PTA, had any direct or indirect financial interest or business connection with any person, any establishment or firm which rendered telecommunication services in Pakistan or abroad or supplied telecommunication equipment to any telecommunication sector in Pakistan or abroad---Actual influence of the interest on the decision-making of the Member was not relevant-Concept (of conflict of interest) was akin to "automatic disqualification for bias" and was rooted in perception and appearance rather than the actual influence based on empirical data on the decision making of the regulator---"Explanation" provided under S.3(4) of Pakistan Telecommunication (Re-organization) Act, 1996 brought under its fold even the involvement of a spouse or blood relation of any Member with any telecommunication establishment---Such statutory pre-condition for a Member to be unbiased, insular, unconnected and impartial actually defined the character of the public institution---Fundamental to any effective regulatory institution was its fierce and unflinching independence, neutrality and detachment from the players it was set out to regulate---Effective and neutral umpirage by the regulator provided fair competition and a level playing field in the market and it was only with such backbone of independence that PTA could successfully watch the interests of users of telecommunication services by making decisions that were prompt, non-discriminatory, equitable, consistent and transparent.

Pinochet (No.2) [2000] 1 A.C. 119 at 132-133 ref.

(q) Constitution of Pakistan---

----Arts. 4, 18 & 25---Business/trade in the public sector---Fair competition---Scope- Due process under Art.4 of the Constitution, freedom to carry out a lawful trade or business under Art.18 by maintaining fair competition and the right against discrimination under Art.25 of the Constitution, collectively provided the requisite constitutional underpinning to maintain level playing field, in all public sectors, at all times.

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

----S.3(3)---Rules of Business, (1973), R. 3(3), Sched. II, Item No.53---Constitution of Pakistan, Art. 199(1)(b)(ii)---Constitutional petition---Chairman of Pakistan Telecommunication Authority (PTA), appointment of---Legality---Public advertisement not made---Lack of public interest---Effect---Cabinet Division enjoyed administrative control over PTA and had laid down a procedure for appointment of Chairman and Members of PTA---Under the said procedure the appointment to the post of Member was subject to advertisement in the press followed by interview by the Selection Committee---Panel of three names was to be recommended by the Selection Committee for final approval of one name by the competent authority (Prime Minister) on the basis of the recommendations of the Establishment Division and the Selection Committee---Said procedure had not been followed in the present case and the Chairman, riding high on the horse of favourtisim, effortlessly landed as Chairman PTA behind closed doors and at the exclusion of any other more deserving candidate---No public advertisement was made prior to appointing the Chairman---Appointment of the Chairman was stealthily rushed through, without first drawing up his profile---Competent authority did not consider whether Chairman was suitable for the post ---Entire recruitment process lacked logic and was devoid of public interest---Constitutional petition was allowed, appointment of Chairman, PTA was declared to be without lawful authority and direction was given to fill the post in accordance with law.

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

----S. 3(3)---Rules of Business, (1973), Rr. 8(2) & (3), 11(c), 15(2) & 3(3), Sched. II, Item No. 53---Constitution of Pakistan, Art.199(1)(b)(ii)---Constitutional petition---Chairman of Pakistan Telecommunication Authority (PTA), appointment of---Legality---Role of Cabinet and Establishment Divisions in appointment of Chairman, PTA---Scope---Cabinet Division was under a constitutional obligation under the Rules of Business (1973) to supervise and oversee the affairs of PTA which was under its administrative control and in spite of summary put up by the Cabinet Division to appoint another person as acting Chairman, the Establishment Division practically ignored the said summary and issued a letter, which stated that respondent should be considered for appointment---Need assessment for any such appointment had to be initiated by the Cabinet Division enjoying administrative control over PTA---Summary put up by the Cabinet Division was not agreed upon by the Establishment Division---Under the Rules of Business (1973), such conflicting opinions should have been placed before the competent authority (Prime Minister), who after weighing the view points of both the Divisions should have exercised its discretion, however same was not done in the present case as the competent authority approved the appointment of respondent as Member and as Chairman through the same order---Record also revealed that in spite of the fact that Cabinet Division enjoyed administrative control over PTA under the Rules of Business (1973), the Establishment Division, as a consultee department, had overshadowed and monopolized the appointment of Chairman, leaving the concerns and recommendations of the Cabinet Division un-redressed---Rule 15(2) of the Rules of Business (1973) required a "self-contained, concise and objective summary" to be placed before the Prime Minister (competent authority)---Objective summary placed before the Prime Minister in the present case should have disclosed all the relevant facts including the bypassing of the Office Memorandum of the Establishment Division; procedure formulated by the Cabinet Division; lack of public advertisement; bypassing of interview; handpicked selection of Chairman; disregard of the divergent views of the two Divisions and the monopolizing role of Establishment Division-Since the summary put before the Prime Minister (competent authority) lacked material particulars the discretion so exercised by the competent authority on the basis of the summary remained irreparably defective---Constitutional petition was allowed, appointment of Chairman, PTA was declared to be without lawful authority and direction was given to fill the post in accordance with law.

Shaikh Zayed Hospital and Post Graduate Medical Institutes through Chairman and Dean and another v. Dr. Muhammad Saeed and another 2010 PLC (C.S.) 967 ref.

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

----S. 3(3)---Civil Servants Act (LXXI of 1973), S.10---Constitution of Pakistan, Art.199(1)(b)(ii)---Constitutional petition---Appointment to post of Chairman, Pakistan Telecommunication Authority (PTA) made by way of transfer order---Legality---Plea that a civil servant (respondent) had simply been appointed as Member and then Chairman, PTA through transfer under S.10 of the Civil Servants Act, 1973, hence, his appointment was not in conflict with Pakistan Telecommunication (Re-organization) Act, 1996---Validity---Post of Member and Chairman, PTA could not be filled through a mere transfer order without following an open and transparent procedure of appointment for the said posts---Invoking S.10 of Civil Servants Act, 1973 for the appointment of respondent to the post of Member and Chairman, PTA appeared to be a colourable exercise of power---Question was as to how respondent was handpicked from the pool of civil bureaucracy without a proper broad-based search on the basis of an objective criteria---Pre-ordained selection of respondent, besides being illegal, carried a ring of favouritism---Constitutional petition was allowed, appointment of respondent as Chairman, PTA was declared to be without lawful authority and direction was given to fill the post in accordance with law.

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

----Ss. 3(3) & (4)---Constitution of Pakistan, Art. 199(1)(b)(ii)---Constitutional petition---Chairman of Pakistan Telecommunication Authority (PTA), appointment of---Legality---"Conflict of interest" of Chairman---Scope---"Regulatory Capture", concept of---Scope- Respondent sat on the Board of Pakistan Telecommunication Company Limited (PTCL) as a Chairman and during such period note was put up by the Establishment Division proposing his name for the Member of Pakistan Telecommunication Authority (PTA)---Stepping down of respondent as Chairman PTCL and his appointment as Member and Chairman PTA had a striking and somewhat dubious synchronicity i.e., both the actions took place on the same day---Time spent by respondent on the Board of PTCL, which spread over several months, cloaked him in a fiduciary bond with PTCL besides making him privy to the strategic vision and future financial planning of the said company---Such relationship and linkage of respondent with PTCL constituted "business connection" and more importantly a perception of business connection, therefore, it was highly unethical and distasteful besides being irregular and illegal that respondent, the day he stepped down as Chairman PTCL, was appointed as Chairman of the PTA, which was the apex regulatory authority in the telecom sector---Appointment of respondent in such circumstances, appeared to be ex-facie discriminatory, to the interests of the users of telecommunication services, as well as, telecommunication service providers other than PTCL and its subsidiary---Independence of respondent was further weakened since record showed that he accepted a hefty sum of money as Chairman's fee for attending Board meetings during his stay at PTCL---Federal Government had majority shareholding in PTCL, therefore, appointment of a nominee of the Federal Government (civil servant) as Chairman of PTA amounted to direct or indirect financial interest of the Federal Government through respondent in the matter---Being an employee of the Federal Government, respondent was likely to watch out for or be amenable to the interests of the Federal Government and its telecommunication service provider in the market---Conflict of interest provision [S.3(4) of Pakistan Telecommunication (Re-organization) Act, 1996] was also a statutory safeguard against any possibility of "Regulatory Capture"---Fiduciary relationship of respondent with the telecommunication provider i.e., PTCL, was offensive to S.3(4) of Pakistan Telecommunication (Re-organization) Act, 1996 and passed for regulatory capture or the perception of it---Conflict of interest blunted the independence and fiat of the Regulator (i.e. PTA) and the fear of regulatory capture shattered the confidence of the market which was grounded in fair competition---Independence of the regulator (i.e. PTA), the disqualification on the ground of conflict of interest, fair and meritorious appointments to public office were measures to ensure that PTA shielded against regulatory capture and provided a level playing field in the telecom sector---Allowing respondent to continue even for one extra day as a Member and Chairman, PTA would have been an affront to justice and fair play, laying serious threat to the level playing field and fair competition in the telecom sector---Constitutional petition was allowed, appointment of respondent as Chairman, PTA was declared to be without lawful authority and direction was given to fill the post in accordance with law.

(v) Constitution of Pakistan---

----Art. 18 (b)---Regulation of trade, commerce or industry---"Regulatory capture", concept of---Scope---Regulatory capture occurred when a regulatory agency, created to act in the public interest, instead advanced the commercial or special concerns of interest groups that dominated the industry or sector it was charged with regulating---Regulatory capture was a form of government failure---(Regulatory) capture occurred when some special interest, typically an industry group, persuaded government actors to exercise the coercive power of the State in ways that were not in the "public interest", i.e. the interests of the industry group diverged from the public interest and the government choose the former over the latter.

M. Elizabeth Magill- Dean and Richard E. Lang Professor, Stanford Law School. - Courts and Regulatory Caputre. ref.

Babar Sattar, Syed Raza Ali and Barrister Sardar Muhammad Ali for Petitioner.

Nasim Kashmiri, Dy. A.-G. for Respondents Nos.1, 2 and 4.

Ali Sibtain Fazli and Nasar Ahmed for Respondents Nos.3 and 5.

Barrister Mahrukh Hameed, Assistant Director, PTA for Respondent No.3.

Sohail Shafiq (ASJ/Senior Research Officer), Sher Hassan Parvez, Amir Munir, Nadeem Ahmed Sohail Cheema and Rai Muhammad Khan (Civil Judges/Research Officers) Lahore High Court Reasrch Centre (LHCRC).

Date of hearing: 15th January, 2013.

P L D 2013 Lahore 386

Before Ijaz ul Ahsan and Syed Mansoor All Shah, JJ

TANVEER AHMAD KHAN---Appellant versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and 3 others--Respondents

Service Appeal No.2 of 2009, decided on 16th January, 2013.

(a) High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules---

----Rr. 26, 7 & 20---Lahore High Court Notification No 10218/ Gaz.1. V. Z.2(a), dated 10-7-2009---Promotion to post of Deputy Registrar, (Lahore) High Court---Selection process ---Power of competent authority/Chief Justice to appoint or promote any person/officer ---Scope---Prontotees/respondents were promoted to the post of Deputy Registrar, (Lahore) High Court by the impugned order of Chief Justice---Appellant, who was Reader, was superseded by the promotees, contended that impugned order of promotion did not furnish any reasons for superseding him; that despite being senior to the promotees he was not promoted; that no "objective criteria" had been evolved for. selection to the post of Deputy Registrar, therefore, the impugned order amounted to discrimination---promotees contended that they were preferred over the appellant because of their better educational qualification, and that under R.26 of High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules, the Chief Justice of the Lahore High Court had unlimited powers to appoint and promote any officer of the High Court---Validity---Service record of appellant and promotees showed that one of the promotees and the appellant had the same educational qualification,- and that appellant was senior.to some of the promotees---Impugned order failed to furnish reasons as to why the appellant stood superseded when his service record and educational qualification were at par with one of the promotees---Impugned order also did not state as to why said promotee was selected for promotion when four other Readers in the selection pool, holding better educational qualification, were ignored--Recruitment under R.7 of the High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules front amongst the pool of officers awaiting promotion on the basis of an open, transparent and intelligent objective criteria followed by a speaking order, was in the public interest and in the larger interest of the institution--- Power of selection under R.7 of the said Rules could not be used to select or pick and choose any officer of liking from amongst the officers without considering all the officers awaiting promotion in the pool---Although educational qualification was a valid parameter for the purpose of selection posts but was not the sole parameter---Power vested with the competent authority/Chief Justice under R.26 of High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules did not vest hint with unfettered and unguided power to override the regular selection process under R.7 of the said Rules or to brush aside the vested rights of officers, who were awaiting their turn to be considered for promotion---Rule 26 could not be invoked to pick and choose any officer awaiting promotion or otherwise without first considering all the °fficers in the pool--:Impugned order of promotion to the extent of one 0f the promotees, who was Junior to the 'appellant and possessed the state educational qualification, was set aside in circumstances and appellant was promoted as Deputy Registrar, w.e.f: 10-7-2009, without back benefits, while the remaining promolees were to retain their inter seniority as maintained prior to their promotion---High Court directed that all appointmentsand promotions to selection posts should be made in accordance with R.7 of High Court (Lahore) Establishmejt (Appointment and Conditions of Service) Rules by considering the service record and other antecedents of the officers by employing an objective criteria, and that Registrar, High Court should place all the orders passed by the competent authority (now or in the past) under R.26 or R.7 (without consideration of the officers in the pool) before the competent authority for appropriate orders in accordance with law---Appeal was allowed accordingly.

Service Appeal No.10 of 1999 distinguished.

Tariq Aziz-ud-Din and others's case 2010 SCMR 1301 rel.

(b) High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules---

----Rr. 24 & 20 & Schedule II ---Order of appointment or promotion to the post of Deputy Registrar, Assistant Registrar and Private Secretary made by Chief Justice of the High Court---Appeal against such an order-Scope-Where the order passing authority was the Chief Justice of the High Court, the appellate authority against such an order would be a bench of two Judges of the High Court.

Service Appeal No.10 of 1999 distinguished.

(c) Civil service---

----Selection-post---Suitability of candidate, determination of---Merit---Scope---Selection post was to be filled purely on merit by carefully evaluating the suitability of the officer for the post---Suitability of the officer for a selection post, was not to be simply gauged on the basis of seniority or eligibility but required a deeper subjective assessment of the meritoriousness of a candidate---To evaluate merit, the ability and achievement demonstrated by the officer in the post held by him played a pivotal role---Competent authority, therefore, had to devise a strategic formulae or intelligent objective criteria or smart parameters that were geared towards evaluating the suitability of the candidate and helped to select the best person for the job.

Tariq Aziz-ud-Din and other's 2010 SCMR 1301 rel.

(d) Civil service-

--Selection-post---Selection process---"Discretion" of competent authority---Scope---Discretion at work behind the selection process must be structured, rational, logical and objective---Discretion without a uniform yardstick or a formula' was a loose jumble of haphazard human subjectivity, which was inescapably susceptible to error and indubitably arbitrary, ex facie discriminatory, highly irrational and illogical---Administrative compulsion and wisdom to structure discretion was to remove human subjectivity from exercise of discretion---Intelligent objective criteria or smart parameters were tools for the selecting authority to logically fashion its discretion--Constitutional and jurisprudential importance of structured discretion was that it nursed the requirement of due process, fairness and fair trial and safeguarded the discretion against the vice of discrimination and arbitrariness. [pp. 398, 399, 400] D, E, F & G

Tariq Aziz-ud-Din and others's case 2010 SCMR 1301; Imran Hussain v. Water and Power Development Authority through Chairman WAPDA and 4 others PLD 2010 Lah. 546; Corruption in Hajj Arrangements in ' 2010 PLD 2011 SC 963; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Muhammad lqhal Khokhar and 3 others v. The Government of the Punjab, through the Secretary to Government of the Punjab, Lahore and 2 others PLD 1991 SC 35 and Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others 2012 PLC (C.S.) 1062 rel.

(e) Civil service-

---Selection-post-Selection order made by competent authority---Scope---Non-speaking selection order---Effect---Exercise of structured discretion was incomplete if it was not translated into a speaking order, furnishing reasons---Unreasoned and non-speaking order generated mistrust, suspicion, dubiety and frustration amongst the officers and compelled them to harbour doubts about the recruitment process hence lowering the prestige and credibility of the selection process and as a result of the institution---Such an order also had a dispiriting effect on the officers who continued to work with wavering interest and loyally thus putting down the overall productivity of the institution.

Messrs Airport Support Services v. The Airport Manager, Quaid-a-Azam International Airport, Karachi and others 1998 SCMR 2268; Liaqat Ali Memon and others v. Federation of Pakistan and others PLO 1994 SC 556; Secretary to Government of N.-W.F.P. and another v. Muhammad Nawaz and another PLD 1996 SC 837; Rukhsar Ali and II others v. Government of N.-W.F.P. through Secretary Education, Peshawar and 3 others 2003 PLC (C.S.) 1453; Pakistan International: Airlines Corporation through Chairman and others v, Shahzad Farooq Malik and another 2004 SCMR 158 and Ashfaq Hussain v. Government of the Punjab and others 2011 PLC (C.S.) 799 rel.

(f) Civil service---

----Selection post---Criteria for selection---Seniority of candidate Significance---Seniority was not the determining factor in a selection post but could tilt the scales in favour of the senior officer in case of a tie.

Tariq Aziz-ud-Din and others's case 2010 SCMR 1301 and Liaqat All Chugtai v. Federation of Pakistan through Secretary Railways and 6 others 2012 PLC (C.S.) 1062 rel.

(g) High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules---

----Rr. 26 & 7---Constitution of Pakistan Arts.4, 10A & 25---Power of competent authority/Chief Justice of the (Lahore) High Court to appoint or promote any person/officer of the High Court---Scope---Power vested with the competent authority/Chief Justice under R.26 of High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules did not vest him with unfettered and unguided power to override the regular selection process under R.7 of the said Rules or to brush aside the vested rights of officers, who were awaiting their turn to be considered for promotion---Such an interpretation would offend the constitutional obligation of due process and fair trial under Arts.4 and 10A of the Constitution---Rule 26 of High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules could not equip the competent authority with the license to pick and choose any officer for promotion as that would be facially discriminatory, offending Art.25 of the Constitution---Rule 26 of High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules appeared to empower the competent authority with unabridged power but in substance the said Rule itself regulated and harnessed the power by providing. its exercise "in a unanner as may appear to him [competent Authority] to be just and equitable-Power vested under R.26 was and exception and had a limited use and could be invoked in special emergent circumstances---For purposes of appointment and promotion R.26 of High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules would be available to the competent authority only when all the officers available in the talent pool for appointment or promotion to the post in question had been (MY considered and not found suitable through a speaking order---Exercise of such special power was harnessed by strict requirement of detailed deliberations by the competent authority followed by a well-reasoned cider that would justify side tracking the normal procedure under the Rules.

Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab, through the Secretary to Government of the Punjab, Lahore and 2 others PLD 1991 SC 35 and Manzoor Hussain and 2 others v. Muhammad Ashraf and another 1999 PLC (C.S.) 279 rel.

(h) Discretion---

---Exercise of---Principles---Discretion without a uniform yardstick or a formula was a loose jumble of haphazard human subjectivity, which was inescapably susceptible to error and indubitably arbitrary, ex facie discriminatory, highly, irrational and illogical---Administrative compulsion and wisdom to structure discretion was to remove human subjectivity from exercise of discretion---Constitutional and jurisprudential importance of structured discretion was that it nursed the requirement of due process, fairness and fair trial and safeguarded the discretion against the vice of discrimination and arbitrariness.

Syed Ijaz Qutab for Appellant.

Shahid Mubeen along with Hafiz Muhammad Sajjad, Assistant Registrar (Gazette-II), Lahore High Court, Lahore.

Respondents Nos.2 to 4 in person.

Syed Aamir, Ali, Assistant Registrar (Legislation), on Courts' call.

Date of hearing: 22nd November, 2012.

P L D 2013 Lahore 405

Before Umar Ata Bandial, C J

NADEEM AFTAB SINDHU---Petitioner

Versus

F.O.P. through Secretary of Law, Justice and Parliamentary Affairs and others---Respondents

Writ Petition No.3053 of 2012, decided on 23rd October, 2012.

(a) Constitution of Pakistan Olympic Association---

----Art. IV(2)(5)(9)(17)---Pakistan Olympic Association Election Rules, 2012, R.37---Constitution of Pakistan, Art.199---Constitutional petition---Election of the President of Pakistan Olympic Association---General Council of the Association approving joint proposal of contesting candidates to hold such election by show of hands and not by prescribed secret ballot---Validity---Record showed that Secretary General of the Association through notification had notified Election Commission to conduct elections in accordance with the Constitution of "Pakistan Olympic Association" and Pakistan Olympic Association Election Rules, 2012---Pakistan Olympic Association Election Rules, 2012 prescribed separate and secret ballot for election of each office bearer of Association---Procedure of election for such post by secret ballot could be abandoned by making an amendment in the Rules and not otherwise---Such proposed amendment must be made subject to notice, comment and debate by Election Commission before their adoption---Proposed amended procedure of election must be notified prior to fixation of election schedule---Modified election procedure as approved by General Council would promote panels of candidates nominated by Presidential contests, but not merit of individual candidate---Abandoning legally applicable and notified procedure of election would curtail the sanctity of election---Impugned approval of General Council had no legal sanction---High Court declared impugned appointments made by the show of hands as illegal and without lawful authority while observing that Association if it wanted, could hold fresh elections in accordance with applicable charter, law and rules---Principles.

PIAC and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Maqsood Ahmed Toor and 4 others v. Federation of Pakistan and others 2000 SCMR 928 and Anoosha Shaigan v. Lahore University of Management Sciences through Chancellor and others PLD 2007 Lah. 568 ref.

(b) Constitution of Pakistan Olympic Association---

----Art. IV(2)(5)(9)(17)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Election of the President of Pakistan Olympic Association---Holding of such election by show of hands and not by prescribed secret ballot on basis of agreement between contesting candidates approved by General Council of Association---Association's objection was that Association being an independent and autonomous entity affiliated with International Olympic Committee had no connection whatsoever with Federal Government for rendering same to be amenable to constitutional jurisdiction of High Court---Validity---Association had exclusive powers to represent Pakistan at all international games and select candidates for such games with approval of Pakistan Sports Board and Federal Government---Such Association having authority to encourage/ promote/control/assist in development of sports in Pakistan and hold or authorize and supervise national games at all Pakistan basis---Funds being paid to Association by Federal Government through Pakistan Sports Board were meant for meeting its expenses incurred on transportation of national team and conducting of international games---Logo of such Association contained national emblem and its athletes during international games used to carry national flag---Such functions being discharged by Association to be public functions had nexus with obligations of Federal Government---Association for having such powers, despite not being a government owned and controlled organisation, would be accountable to High Court for its actions taken while performing such public functions having connection with affairs of Federation---Principles.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244 and PIAC v. Tanweer ur Rehman and others PLD 2010 SC 676 rel.

(c) Constitution of Pakistan---

----Art. 199(5)---"Person" amenable to constitutional jurisdiction of High Court---Test.

Writ petition is maintainable under Article 199(5) of the Constitution against a "person" including a body politic or corporate, which must be performing functions in connection with the affairs of, inter alia, the Federal to become amenable to the constitutional jurisdiction of the High Court under Article 199(5) of the Constitution.

The law propounds a trial test for amenability of a person to judicial review, namely, performance of public function, reliance on public finance and a degree of public say about the actions taken by such a private person. However, this test needs to be satisfied with exactitude in every case. The preponderance of the public element, public interest and stake in the impugned action becomes a good measure for determining the compliance necessary for affirming justifiability.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244; PIAC v. Tanweer ur Rehman and others PLD 2010 SC 676 and Murad Ahmad Khan and 3 others v. Pakistan Golf Federation, Rawalpindi through Secretary and another PLD 2011 Lah. 313 rel.

Munawar-us-Salam and Usman Akram Sahi for Petitioner.

Ali Raza, Owais Waheed, Muhammad Umer Qureshi and Qasim Asad Malik for Respondent No.3, POA.

P L D 2013 Lahore 413

Before Syed Mansoor Ali Shah, J

LIAQAT ALI CHUGTAI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Railways and 6 others---Respondents

Writ Petitions Nos.25301, 25300, 25299, 26541 and 25302 of 2011, heard on 17th February, 2012.

(a) Constitution of Pakistan---

----Arts.199 & 212---Federal Service Tribunals Act (LXX of 1973), S.4---Constitutional petition---Maintainability---Bar contained under Art.212 of the Constitution---Applicability---Supersession of the civil servants (petitioners) by the Central Selection Board---Present constitutional petitions pertained to promotion of the civil servants to selection posts in BS-20 and BS-21---Appointment through promotion to 'selection' posts was based on 'merit', which required subjective assessment regarding "fitness" and "suitability" of the officers, to the said post subject to their eligibility---Impugned decision of supersession of the civil servants was, in effect, determination of their fitness for the posts in question---Assessment of fitness and suitability were excluded from the ambit of the Service Tribunal under S.4 of the Federal Service Tribunals Act, 1973, therefore, bar contained under Art.212 of the Constitution was not attracted to the constitutional petitions---Constitutional petitions were maintainable, in circumstances.

Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Dr. Omer Farooq Zain v. Bahauddin Zakariya University, Multan through Vice-Chancellor and 6 others 2008 PLC (C.S.) 1012; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; W.P. No.9703 of 2009; W.P. No.7677 of 2011; W.P. No.1152 of 2011 and W.P. No.603 of 2009 ref.

Mian Abdul Malik v. Dr. Sabir-Zameer Siddiqui and 4 others 1991 SCMR 1129; Government of Punjab, through Secretary Health Department, Civil Secretariat, Lahore and another v. Dr. Aman-ul-Haq, M.S. District Headquarter, Gujranwala 2000 SCMR 1805 and Mushtaq Hussain Shah v. Director, Food, Lahore Region and others 1990 SCMR 1492 rel.

(b) Civil Service---

----Selection Board (public authority)--- Selection of officers---Subjective assessment--- Scope--- Exercise of discretion--- Scope--- Subjective assessment by a public authority must rest on an open and transparent objective criteria---Subjective assessment did not empower or grant a licence to a public authority to exercise discretion without first structuring it.

(c) Constitution of Pakistan-

----Arts.10A, 14 & 199---Civil Servants Act (LXXI of 1973), S.9(2)(a)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.7, 7-A & 8--- Constitutional petition---Right to fair trial---Scope---Inviolability of dignity of man, etc.---Scope---Supersession of the civil servants (petitioners) by the Central Selection Board for failing to meet the minimum requirement of Aggregate Marks of Efficiency Index---Evaluation of integrity and performance of the civil servants---Reliance on personal opinion and impression of Members of the Central Selection Board for such evaluation---Validity and legality---Central Selection Board consciously adopted a policy to place reliance on the personal views and impressions of the Members regarding the integrity and reputation of the officers under consideration---Personal views or opinions of the Members regarding integrity and performance of the civil servants did not stem from the record i.e., the service dossier of the officers placed before them or arose from any tangible evidence tabled before the Central Selection Board---Reasons provided by the Board for superseding the civil servants did not correlate to their service dossier, which were placed before the Board---Central Selection Board had to meticulously review the service dossier of the officers under consideration and formulate a collective opinion, but the reasons given for superseding them were purely on the basis of the personal opinions of the Members and it appeared that the service dossier was not considered---Central Selection Board was composed of 12 Members belonging to different provinces and it was difficult to imagine that all the members knew about the inefficiency and performance of the civil servants, hence, personal opinion of some members seemed to have been casually adopted by the rest of the members without independent application of mind and without carrying out a punctilious review of the service record of the civil servants---Such process adopted by Board negated the very purpose of a Central Selection Board which was expected to form a collective view after independent application of mind to the facts and circumstances of each case---Central Selection Board had failed to notice that the Revised Promotion Policy framed by the Federal Government [ESTA Code (Federal Government) Enclosure at Sr.Nos.162 & 163] which enjoyed the force of law provided for guidelines for the Board to follow---Board instead of evolving a criteria on the basis of the Revised Promotion Policy placed reliance on the personal opinions of the Members and also went against the said Policy---Where Central Selection Board had relied on other evidence collected through its own source in addition to the service dossier of the officers, it was bound to confront the same to the officer under consideration and only after granting an opportunity of defence to the said officer regarding the new evidence being introduced, places reliance on it and not otherwise---Such due process seemed to be missing in the present case, therefore, there was no room for Board to blindly rely and pass an adverse order on the basis of impressions nurtured and opinions harboured by its Members without first tabling the tangible evidence against an officer before the Board and then confronting the said evidence to the officer under consideration---Process employed by the Board of placing reliance on the personal opinion of the Members of Central Selection Board was an affront to fairness, due process and Art.10A of the Constitution---Impugned recommendations of the Board were also offensive to Art.14 of the Constitution which provided that dignity of man was inviolable---Constitutional petition was allowed, selection process carried out by Central Selection Board was declared unconstitutional and illegal and was therefore set aside and the Central Selection Board was directed to formulate a well thought out objective criteria in accordance with the Revised Promotion Policy and consider the cases of the civil servants afresh.

W.P. No.7677 of 2011 ref.

PLD 2008 SC 769; 1991 SCMR 628; 1996 SCMR 1297; Muhammad Zafeer Abbasi, Deputy Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron, Government of Pakistan, Pak Secretariat, Islamabad v. Government of Pakistan through Secretary, Establishment Division (Cabinet Secretariat), Cabinet Block, Constitution Avenue, Islamabad and 4 others 2003 PLC (C.S.) 503; Tanvir Ashraf v. Riasat Ali and 5 others 2004 YLR 659 and Kanda v. Government of Malaya 1962 AC 322 rel.

(d) Constitution of Pakistan---

----Art.199---Civil Servants Act (LXXI of 1973), S.9(2)(a)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.7, 7-A & 8---Constitutional petition---Supersession of the civil servants (petitioners) by the Central Selection Board for failing to meet the set criteria i.e. the minimum requirement of Aggregate Marks of Efficiency Index---Whether said criteria was 'structured objective criteria' and whether collective discretion of Central Selection Board had been lawfully exercised---Determination---Collective discretion of the Central Selection Board had been pegged on personal opinions of some of the Members of the Board and instead of relying on the criteria and factors mentioned in the Revised Promotion Policy [ESTA Code (Federal Government) Enclosure at Sr. Nos.162 & 163], the Board developed its own criteria, which was not sufficiently structured or elaborately tailored to reflect thorough deliberation and proper analytical assessment of the officers to be promoted by the Board---Slackness in the criteria adopted by the Board, questioned the transparency of the process and therefore weakened the credibility of the selection---Criteria adopted by the Board did not set parameters or standards that could determine as to who was to be rated "outstanding" or "below average"---Key determining factors needed to be spelled out in writing and corresponding weightage allocated from the very start---Discretion devoid of any prefixed evaluation structure resulted in an unguided and unfettered exercise of power which was facially discriminatory and hence bad in law---Constitutional petition was allowed, selection process carried out by Central Selection Board was declared unconstitutional and illegal and was set aside and the Central Selection Board was directed to formulate a well thought out objective criteria in accordance with the Revised Promotion Policy and consider the cases of the civil servants afresh.

(e) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Scope---Disclosure of material to be used against a person---Scope---Where prejudicial allegations were to be made against a person, he must normally be given particulars of them before the hearing so that he could prepare his answers---Such a person must also be enabled to controvert, correct or comment on other evidence, or information that might be relevant to the decision and influential material on which the decision maker intended to rely---Where relevant evidential material was not disclosed at all to a party which was potentially prejudiced by it, there was prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing.

(1962) 2 WLR 1153 (PC); PLD 1989 SC 335; DeSmith's Judicial Review, 6th Edition pp.389-391; (1970) 2 QB 417; University of Dacca v. Zakir Ahmed PLD 1965 SC 90 and Natwar Singh v. Director of Enforcement and another (2010) 13 Supreme Court Cases 255 ref.

(f) Civil service---

----Selection Board (public authority)---Selection of officers---Procedure adopted offending natural justice---Effect---Decision affecting legal rights of an individual which was arrived at by a procedure which offended against the principles of natural justice was outside the jurisdiction of the decision-making authority.

(1980) AC 718 rel.

(g) Constitution of Pakistan---

----Art. 14---Inviolability of dignity of man, etc.---"Dignity of man"---Definition and scope---Dignity of man was that valued and serene condition in a person's social and individual life which was violated when he was, publicly or privately, subjected by another to offensive and degrading treatment, or when he was exposed to ill-will ridicule disesteem or contempt---Dignity in humans involved the earning or the expectation of personal respect or of esteem and it was something that was inherently a person's God-given inalienable right that deserved to be protected and promoted by the Government and the community---Human dignity was in itself enshrined as the corner stone of society from the very beginning of civilization and was the foundation, the cause and end of all social institutions, therefore, all social institutions, governments, States, laws, human rights and respect for persons originated from the concept of dignity of man or his personhood---Any attempt to undermine the dignity of a human being would also undermine the very foundation and support upon which an orderly society was structured.

University of Pretoria v. Tommie Meyer Films (Edms) Bpk 1979 1 SA 441(A). and JEAN FREDERIC PONOO v. ATTORNEY-GENERAL [2010] SCCC 4 rel.

(h) Constitution of Pakistan---

----Art. 14---Inviolability of dignity of man, etc.---Scope---Value of human dignity was not only concerned with an individual's sense of self-worth, but also constituted an affirmation of the worth of human beings in the society and included the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements---Value of human dignity, therefore, valued both the personal sense of self-worth as well as the public's estimation of the worth or value of an individual.

Khumalo v. Holomisa 2002 (5) SA 401 rel.

(i) Civil service---

----Selection Board (public authority)----Members of Selection Board (public officials)---Selection of officers---Criteria---Discretion of public authority and public officials---Nature and scope---Discretion vested in a public authority was a sacred trust exercised by the public officers as trustees---Public officials did not act for their own sake but rather for the sake of the public interest---Role of the public official in a democracy, like the role of the State itself, was to serve the interest of the public and its members---Exercise of discretion was not a casual affair driven by personal likes or dislikes---Structuring of discretion meant that the authority must first apply its mind to tailor an intelligent objective criteria that was best suited for the selection of the officers under consideration and then begin the process of selection, which must be based on relevant considerations required for selecting the best officer for the job.

Imran Hussain's case PLD 2010 Lah. 546; The Judge in a Democracy - Aharon Barack, p.220; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti, 2006 SCMR 1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 ref.

(j) Discretion---

----Public authority---Discretion of public authority and public officials---Nature and scope.

Imran Hussain's case PLD 2010 Lah. 546; The Judge in a Democracy - Aharon Barack, p.220; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti, 2006 SCMR 1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 ref.

Ali Akbar Qureshi for Petitioners.

Ms. Shaista Qaisar, Deputy Attorney General for Pakistan.

Hafiz Ahsan Ahmad Khokhar for Respondents.

Hafiz Tariq Nasim for Private Respondents.

Muhammad Awais Kundi, Joint Secretary, Establishment Division.

Shamas-ud-Din Baloch, Section Officer, Establishment Division, Islamabad.

Bilal Ahmad, Assistant Ministry of Railways.

M. Nadeem Ahmed Sohail and Nadir Hussain Shah Gilani Civil Judges/Research Officers, Lahore High Court Research Centre for Research Assistant.

Date of hearing: 17th February, 2012.

P L D 2013 Lahore 442

Before Umar Ata Bandial, J

MADAWA through President---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and 15 others---Respondents

Writ Petition No.3657 of 2012, decided on 29th March, 2012.

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

----S. 489-F---Criminal Procedure Code (V of 1898), Ss.154 & 156---Police Rules, 1934, Chap. 34, R.1---Negotiable Instruments Act (XXVI of 1881), S.30---Constitution of Pakistan, Art.199---Constitutional petition---Dishonestly issuing a cheque---Pre-requisites/instructions issued by Inspector General Police (IGP) for registration of F.I.R. for an offence under S.489-F, P.P.C.---Legality---Pre-requisites noted in the Instructions were (presenting of) dishonour slip, notice under S.30 of Negotiable Instruments Act, 1881, establishment of dishonesty and obligation, and genuineness of signatures of the drawer---Plea of petitioner that Instructions/pre-requisites issued by Inspector General Police (IGP) were beyond his legal authority and they were in conflict with the settled law declared by superior courts that commission of a cognizable offence was the sole basis for registration of F.I.R. and no inquiry into commission of such offence might be launched by Station House Officer (SHO) prior to registration of F.I.R.---Validity---Establishing dishonesty and obligation, and genuineness of signatures of the drawer were matters that required probe and evidence, whereas police did not have authority to carry out inquiry prior to registration of case, therefore, said pre-requisites should be applied after registration of F.I.R. and if justified by the facts, before the arrest of an accused-drawer of a dishonoured cheque---Other pre-requisites/Instructions, namely (presenting of) dishonour slip and notice under S.30 of Negotiable Instruments Act, 1881, were valid demands by a police officer before registering a case under S.489-F, P.P.C.---Constitutional petition was disposed of accordingly.

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

----S. 154---Police Rules, 1934, Chap. 34, R.1---Registration of F.I.R.---Police carrying out inquiry/investigation prior to registration of F.I.R.---Legality---Police officer did not have the authority to carry out an inquiry prior to registration of a case.

Muhammad Bashir v. S.H.O. and others PLD 2007 SC 539 rel.

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

----Ss. 154, 156 & Pt. III, Chap.V---Arrest of accused for investigation of a crime---Scope---Arrest of a suspect or an accused was not necessary or sine qua non for investigation of a crime---Suspect was not to be arrested straightaway upon registration of F.I.R. or as a matter of course---Arrest was to be deferred till such time that sufficient material or evidence became available on the record of investigation, prima facie satisfying the investigating officer about correctness of the allegation levelled by a complainant party against a suspect's involvement in the commission of the crime alleged.

Khizer Hayat and others v. Inspector General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 rel.

Faiz Rasool Jalyani for Petitioner.

Khawar Ikram Bhatti, Addl. A.G.

P L D 2013 Lahore 445

Before Umar Ata Bandial, C J

AMIR ULLAH JAN---Petitioner

Versus

MEMBER BOARD OF REVENUE (COLONIES) PUNJAB and 3 others---Respondents

Writ Petition No.1169 of 1977, decided on 17th December, 2012.

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

----O. VII, Rr.19 & 24---Constitution of Pakistan, Art.199---Constitutional petition dismissed for non-prosecution---Application for restoration---Notice issued to the parties through postcard---Change in the address for service---Effect---Obligation to file correct address of service---Scope---Order VII, R.19, C.P.C., clearly imposed a duty on the petitioner to notify his correct address of service---Effort by petitioner to reverse that duty of effecting service on to the court, thereby implying an obligation to find an absent party all over the country, was not intended by O.VII, R.19, C.P.C.---Application was dismissed.

Begum Darab Sultana and others v. Custodian and others PLD 1982 SC 330 ref.

Hussain Bukhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 rel.

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

----O. VII, Rr.19 & 24---Constitution of Pakistan, Art.199---Constitutional petition dismissed for non-prosecution---Application for restoration filed after 18 years---Conduct of the party was so indolent as not to inquire about the fate of its case from its counsel---Delay of two decades in filing application for restoration of petition actually tantamount to abandonment of the cause---No merit having been found for restoration of the constitutional petition, same was dismissed.

Malik Noor Muhammad Awan for Petitioner.

M. Ashraf Nawaz Chhena for Respondents

P L D 2013 Lahore 448

Before Umar Ata Bandial and Muhammad Farrukh Irfan Khan, JJ

SHEHZADA AKHTAR---Appellant

Versus

BANK AL-FLAH LTD. and others---Respondents

F.A.O. No.29 of 2012, decided on 23rd February, 2012.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 2(c), 7 & 15---Suit for recovery---Necessary party to suit for recovery---Non-impleadment of owner of mortgaged property---Effect---Suit for recovery was decreed and during execution proceedings, the applicant moved application under S.12(2), C.P.C. for setting aside decree contending inter alia that she was the owner in possession of the mortgaged property and she was never impleaded in the suit and had neither mortgaged the said property nor had obtained any finance facility---Application was dismissed by Trial Court---Validity---Bank, at time of filing of suit, was aware that the applicant was the lawful owner of the mortgaged property and the mortgaged deed in favour of bank was executed on her behalf by her alleged attorney (her husband)---In terms of the definition of "customer" in S.2(c) of the Ordinance, applicant was the mortgagor of the security, and therefore, she fell within the said definition of "customer" and was a necessary party to the suit and her non-impleading as a defendant in the suit was a gross error---Effect of such non-impleadment was that there existed neither any decree against applicant nor could her personal property be sold in execution of a decree to which she was not a party to---Nothing on record showed that it could be inferred that the agent (husband) ever communicated to the principal (applicant) about the mortgage of her property and finance facility was only for the benefit of the husband---High Court observed that the plaintiff bank should have been more cautious about such fact before awarding the finance facility and should at least have impleaded the applicant as party to the suit---High Court set aside order of Trial Court and remanded the case to the said Court with the direction to provide the applicant an opportunity to file application for leave to contest---Appeal was allowed, accordingly.

Pakistan Water and Power Development Authority (WAPDA) through Authorized Signatory v. American Express Bank Limited 2005 CLD 1764; Vesu and another v. Thekkedath Veetil Kannama and others AIR 1926 Mad. 991; Fida Muhammad v. Pir Muhammad Khan and others PLD 1985 SC 341 and Malik Riaz Ahmad and others v. Mian Inayat Ullah and others 1992 SCMR 1488 rel.

Iftikhar Ullah Malik for Appellant.

Muhammad Farooq for Respondent No.1.

P L D 2013 Lahore 454

Before Nasir Saeed Sheikh, J

ALLIED BANK LTD, FAISALABAD through Attorneys of the Bank---Appellant

Versus

KHALID MEHMOOD---Respondent

F.A.Os. Nos.203, 204, 205 and 373 of 2009, decided on 21st November, 2012.

(a) Punjab Consumer Protection Act (II of 2005)---

----S. 2(d)---"Damage", definition of---Scope---Account holder of a bank suffering losses and damage due to fraud committed by employees of the Bank---Such damage would be covered under the term "damage" defined in S.2(d) of Punjab Consumer Protection Act, 2005.

(b) Punjab Consumer Protection Act (II of 2005)---

----S. 2(k)---"Services", definition of---Scope---Term "services" had not been given restricted sense (definiton) for the purpose of Punjab Consumer Protection Act, 2005 and a generalized definition had been placed upon the term.

Lacknow Development Authority v. M.K.Gupta AIR 1994 SC 787 ref.

(c) Punjab Consumer Protection Act (II of 2005)---

----S. 2(k)---"Services", definition of---Scope---Services provided by a Bank to its account holders---Concept (of services) provided in the Punjab Consumer Protection Act, 2005 was wide enough to include therein the services provided by a Bank which encompassed all kinds of facilities, advice or assistance being provided to its account holders.

Standard Chartered Bank Ltd. v. Dr. B.N. Raman AIR 2006 SC 2810 ref.

(d) Punjab Consumer Protection Act (II of 2005)---

----S. 2(c) & (k)---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 2(c)---Account holder (consumer) of a bank (service provider)---"Consumer" and "services" as defined under the Punjab Consumer Protection Act, 2005 and "customer" as defined under the Financial Institutions (Recovery of Finances) Ordinance, 2001---Scope---Decision of superior courts on the Financial Institutions (Recovery of Finances) Ordinance, 2001 which had defined the term "customer" had no relevance to the definition of "consumer" as well as of "services" being provided by the bank which were amenable to the jurisdiction of the Punjab Consumer Courts.

Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others 2008 SCMR 240 rel.

(e) Punjab Consumer Protection Act (II of 2005)---

----Ss. 2(d), (k) & 27---Account holder of a Bank suffering losses and damage due to fraud committed by employees of the Bank---Complaint filed by account holder against the Bank---Consumer Court, jurisdiction of---Scope---Account holder of a Bank when defrauded by the Bank or its employees could justifiably lodge a claim against the Bank before the Consumer Court established under the Punjab Consumer Protection Act, 2005.

Syed Fazal Mahmood for Appellant.

Pervaiz Akhtar Tahir for Respondents.

Date of hearing: 2nd November, 2012.

P L D 2013 Lahore 464

Before Ali Baqar Najafi, J

GAKHAR HUSSAIN---Petitioner

Versus

Mst. SURAYYA BEGUM and others---Respondents

Writ Petition No.2232 of 2012, decided on 10th December, 2012.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for maintenance of daughter including educational expenses---Claim of past maintenance---Maintenance---Definition---Suit was decreed and father (petitioner) was ordered to pay past maintenance including for education of daughter---Contention of the father (petitioner) was inter alia, that his daughter was disobedient and was therefore, not entitled to recover maintenance and that maintenance did not include education expenses---Validity---Father was bound to maintain his daughter until she was married, and the father was not bound to maintain a child which was capable of being maintained out of his or her own property---Definition of "maintenance" was to be liberally interpreted which included the process of maintenance or being maintained and provisions of means to support life---Father was bound to maintain a daughter and she was entitled to receive maintenance regardless of her age till such time she was married---Even on attaining the age of majority, the father was responsible for daughter's maintenance---Father in the present case had been providing maintenance to his other children from his other wives and as such he treated his daughter with discrimination---Contention that the daughter was disobedient had no force, since, firstly, the father was unable to show his love or affection for his daughter, therefore he could not expect her to return, secondly no instance was mentioned showing disobedience, and thirdly, under Islamic law, there was no institution of abandonment ("aaq") for a disgruntled son/daughter depriving him/her from inheritance and therefore a daughter could not be deprived of her right to be maintained by her father during his life time---No interference was called for in the impugned orders---Constitutional petition was dismissed, in circumstances.

Mukhtarul Hassan Siddiqui v. Judge Family Court, Rawalpindi and 4 others 1994 CLC 1216; Abdul Rauf and others v. Mrs. Shereen Hassan PLD 2001 SC 31; Muhammad Nawaz v. Mst. Khurshid Begum and others PLD 1972 SC 302; Mst. Anar Mamana and another v. Misal Gul and 2 others PLD 2005 Pesh. 194; Farkhanda Mumtaz v. Muhammad Sharif and 2 others PLD 2006 Pesh. 96; Mst. Farah Naz v. Judge Family Court, Sahiwal PLD 2006 SC 457; Rasheed Ahmad v. Mst. Shamshad Begum and 3 others PLD 2007 CLC 656; Arbab Mir Muhammad v. Mst. Iram Iltimas PLD 2005 SC 24 and Muhammad Asad v. Mst. Humera Naz and others 2000 CLC 1725 ref.

Chap. XIX of Muhammadan Law by D.F.Mulla'; Abdul Rauf v. Mrs. Shereen Hassan PLD 2001 SC 31; Mian Muhammad Sabir v. Mst. Uzma Parveen and 2 others PLD 2012 Lah. 154 and Arbab Mir Muhammad v. Mst. Iram Iltimas PLD 2005 SC 24 rel.

(b) Islamic law---

----"Maintenance"---Definition---Maintenance included food, raiment and lodging.

Chap. XIX of Muhammadan Law by D.F.Mulla's; rel.

(c) Islamic law---

----Inheritance---Under Islamic law, there was no institution of abandonment (aaq) for a disgruntled son/daughter depriving him/her from his/her inheritance.

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

----S. 5, Sched.---Limitation Act (IX of 1908), Art.120---Claim of past maintenance---Limitation---Claim of past maintenance was governed by Art.120 of the Limitation Act, 1908 which described a period of six years from the date when the right to sue accrued, and time during which the father/husband remained away from Pakistan would be excluded for reckoning the period of limitation---Claim of past maintenance subject to the limitation was permissible in relevant circumstances.

Mst. Farah Naz v. Judge Family Court Sahiwal PLD 2006 SC 457; Rasheed Ahmad v. Mst. Shamshad Begum and 3 others 2007 CLC 656 and Muhammad Nawaz v. Mst. Khurshid Begum and 3 others PLD 1972 SC 302 rel.

Ch. Muhammad Waris Khan along with Petitioner.

Abid Hussian Abid along with Respondents.

P L D 2013 Lahore 468

Before Nasir Saeed Sheikh, J

NIB BANK LTD. through Power of Attorney---Appellant

Versus

PRESIDING OFFICER, DISTRICT CONSUMER COURT, AT SIALKOT and another---Respondents

F.A.O. No.94 of 2013, decided on 6th March, 2013.

(a) Punjab Consumer Protection Act (II of 2005)---

----S. 33---Limitation Act (IX of 1908) S. 5---Appeal to High Court---Limitation---Condonation of delay---Provisions of S. 5 of Limitation Act, 1908 had been excluded from application to cases covered by special laws and therefore, cases instituted under Punjab Consumer Protection Act, 2005,which was a special law, could not be governed by provisions of S. 5 of the Limitation Act, 1908---Benefits available for seeking condoation of delay under S. 5 of the Limitation Act, 1908 therefore, could not be extended in such cases---Appellate Court, under S.33 of the Punjab Consumer Protection Act, 2005 did not have suo motu powers in respect of condoning delay.

Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400 distinguished.

(b) Punjab Consumer Protection Act (II of 2005)---

----S. 27---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) S. 7---Jurisdiction of Consumer Court in respect of matters between a Financial Institution/Bank and its customer---Consumer/complainant sought damages from respondent Bank contending inter alia that he had paid all due instalments of the auto vehicle leased from the bank, however, the bank despite repeated requests, did not release the registration book of said vehicle and had created an embargo on further transfer of the vehicle's ownership---Consumer Court directed respondent Bank to pay damages to the consumer/complainant---Contention of the Bank was that said matter fell under the exclusive jurisdiction of the Banking Court under the Financial Institutions (Recovery of Finances) Ordinance, 2001, and the Consumer Court had no jurisdiction in the matter---Validity---No objection regarding jurisdiction of the Consumer Court was raised by the Bank before the Consumer Court---Consumer Court was vested with the power granting damages to the complainant/consumer in view of the peculiar circumstances of the case---Appeal was dismissed in circumstances.

Amar Sana for Appellant.

P L D 2013 Lahore 473

Before Ibad-ur-Rehman Lodhi, J

GHULAM RAZA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.431 of 2012, decided on 11th January, 2013.

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

----S. 514---Bail bond, forfeiture of---Order for attachment of property---Non-issuance of show cause notice---Effect---Petitioner stood surety for accused who was allowed bail---Accused absented himself from a date of hearing as a result of which Trial Court issued notice to the petitioner for appearance and proceeded to impose a penalty of Rs.10,000 upon him and also issued warrant for attachment of moveable property belonging to petitioner, in case he failed to deposit the said amount within one week---Legality---No show cause notice was available on file and simply notice for appearance was issued to petitioner, which was treated as a show cause notice---Petitioner did appear before the Trial Court but despite such fact he was shown as someone who was playing hide and seek with the court---Nothing existed on record to substantiate such a finding of the Trial Court---Trial Court passed the impugned order without observing the necessary steps, which had to be taken prior to imposing a penalty upon the surety---Impugned order of Trial Court was set aside---Revision petition was allowed accordingly.

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

----S. 514---Bail bond, forfeiture of---Procedure---Scope---For proceeding under S.514, Cr.P.C. court was bound to establish that the bond under Cr.P.C. furnished by surety had been forfeited; to record grounds of proof of such forfeiture, and to call upon the person bound by such bond (i.e. surety) to pay the penalty thereof, or to show cause why it should not be paid---Where sufficient cause was not shown and penalty was not paid, the court might proceed to recover the same by issuing a warrant for the attachment and sale of movable property belonging to such person (i.e. surety) or his estate, if he was dead---Where such penalty was not paid and could not be recovered by attachment or sale (of property), the person so bound (i.e. surety) should be liable to imprisonment in civil jail for a term, which might extend to 6 months.

Muhammad Bilal v. State 2000 YLR 2676 ref.

Ch. Zia-ur-Rehman Abid for Petitioner.

Muhammad Abdul Wadood, Deputy Prosecutor-General for the State.

P L D 2013 Lahore 476

Before Mrs. Ayesha A. Malik, J

TAHIR RIAZ CHAUDHRY---Petitioner

Versus

CHANCELLOR, UNIVERSITY OF THE PUNJAB, LAHORE and 3 others---Respondents

Writ Petition No.16961 of 2012, decided on 15th January, 2013.

(a) Constitution of Pakistan---

----Art. 199---Writ of certioraie---Petition for writ of certiorari could be filed by an "aggrieved person".

(b) University of the Punjab Act (IX of 1973)---

----Ss. 11-A, 11(8), 10(i), 11(1) & 11(2--6)---Constitution of Pakistan, Art.105---Functions of Chancellor of the Punjab University (Governor of the Province)---Advice of Chief Minister---Governor of the Punjab as Chancellor of the University was an "officer of the University"---Chancellor would act and be bound in the same manner as Governor of a Province would act and was bound under Art.105 of the Constitution.

(c) University of the Punjab Act (IX of 1973)---

----S. 11(8)---All functions performed by the Chancellor of the University were either executive or judicial and there was no legal basis upon which, the functions of the Chancellor could be so distinguished.

(d) University of the Punjab Act (IX of 1973)---

----S. 11(8)---Constitution of Pakistan, Art.105---Functions of Chancellor (Governor of the Province)---Advice of Chief Minister---Chancellor of the University (Governor), while performing his functions, was bound in the same manner as the Governor of the Punjab---Article 105 of the Constitution provided that the Governor, while performing his functions would act on and in accordance with the advice of the Chief Minister and said Article did not distinguish the functions of the Governor.

Messrs Norwich Union Fire Insurance Society Ltd. v. Muhammad Javed Iqbal and another 1986 SCMR 1071 ref.

(e) University of the Punjab Act (IX of 1973)---

----Ss. 11-A & 11(8)---Constitution of Pakistan, Art.105---Functions of Chancellor (Governor of the Province)---Advice of Chief Minister---Powers and functions of the Chancellor of the University were subject to the advice of the Chief Minister as provided by the Constitution and Constitution had not drawn any distinction between the executive and judicial functions of the Governor, hence no distinction would be read into S.11(8) of the University of the Punjab Act, 1973---To read the distinction, drawn with reference to the functions of the Chancellor, in S.11(8) of the Act, would go against the mandate of Art.105 of the Constitution.

(f) University of the Punjab Act (IX of 1973)---

----S. 11-A---Constitution of Pakistan, Art.105---Advice of the Chief Minister---Chancellor (Governor of the Province) was bound by the advice of the Chief Minister.

Hafiz Tariq Naseem for Petitioner.

Ch. Amir Rehman for Respondent No.5.

Shahzad Shaukat for Punjab University.

Aatir Mahmood for Respondent No.1.

Syed Nayyar Abbas Rizvi, Addl.A.G.

Date of hearing: 21st December, 2012.

P L D 2013 Lahore 484

Before Umar Ata Bandial, J

AKHTAR MEHMOOD and others---Petitioners

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Diary No.73657 of 2011, decided on 5th September, 2011.

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

----Vol. I, Chap.16, Part B, R.15---Court fee, charging of---Scope---Petitioner joining several causes of action against different persons---Effect---When one petitioner joined several causes of action against different persons, court fee was payable separately for each cause of action---Court fee shall be charged with reference to each claim separately.

Ava A. Cowasjee v. Nasreen Nizam Shah 1984 CLC 2705 rel.

Ainullah v. Abdul Rashid 1985 SCMR 1991 ref.

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

----Vol. I, Chap.16, Part B, R.15---Court-fee, charging of---Scope---Joint/co-petitioners having a common grievance---Although co-petitioners had a common grievance yet it was only when they had a joint cause of action that court fee was chargeable with reference to their joined petition rather than their individual persons.

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

----Vol. I, Chap.16, Part B, R.15---Court-fee, charging of---Scope---Joint petitioners asserting a "joint" right---Joint cause of action---Effect---Plaintiffs had filed a suit against three petitioners (defendants) in respect of land of which the petitioners claimed ownership and possession as heirs of deceased---Petitioners were occupying and were statedly defending their title and possession of common ancestral property under their common/joint rights---Present case was a case where a joint right was being asserted by the petitioners and their causes of action were in fact joint and therefore one---Court fee was chargeable on their joint petition as one proceeding rather than with reference to the number of petitioners therein---Objection was overruled accordingly.

Zahoor Ahmad v. Member (Consolidation) Board of Revenue (PLD 2007 Lah. 461 rel.

Malik Noor Muhammad Awan for Petitioners

P L D 2013 Lahore 486

Before Umar Ata Bandial, J

NAWAB ALI through Legal Heirs---Petitioner

Versus

Soofi NAWAB DIN and others---Respondents

Diary No.27094 of 2012, decided on 29th March, 2012.

High Court (Lahore) Rules and Orders---

----Vol. I, Chap. 16, Part B, R.15---Court fee---Scope---Several appellants with "joint" interest---Single cause of action---Plea that where co-owners, co-claimants or co-appellants were seeking a relief under one cause of action then the court fee chargeable was only one---Validity---Prayer in the present case by separate sets of plaintiffs in the suit sought relief regarding different mutations, which did not demonstrate a single cause of action---Objection was sustained accordingly.

Malik Noor Muhammad Awan for Petitioners.

P L D 2013 Lahore 487

Before Mrs. Ayesha A. Malik and Abid Aziz Sheikh, JJ

BANK OF PUNJAB---Petitioner

Versus

INTERNATIONAL CERAMICS LTD. and 4 others---Respondents

Writ Petition No.5864 of 2013, decided on 29th April, 2013.

Constitution of Pakistan---

----Art. 199---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 10, 22 & 13--- Constitutional petition---Suit for recovery---Leave to defend, application for---Constitutional petition against order of Banking Court rejecting or allowing application for leave to defend in a suit for recovery---Scope---Financial Institutions (Recovery of Finances) Ordinance 2001 contemplated expeditious decisions on matters relating to Financial Institutions---Such intent could be seen in S.13 of the Ordinance which provided that in a suit where leave to defend was granted, the case should be disposed of within a period of ninety days---Section 22 of the Ordinance, therefore, prevented appeal, review or revision of an order granting leave so that cases could be decided as soon as possible once the stage of application for leave to defend was over---In such a situation, filing a constitutional petition against order granting or rejecting leave to defend would defeat the object of the Financial Institutions (Recovery of Finances) Ordinance, 2001---High Court held that the general rule was that constitutional petition would not lie against an order granting or rejecting leave to defend and observed that constitutional petition would be maintainable in exceptional circumstances where the petitioner could show a blatant illegality in the impugned order, such as that the Banking Court had not followed the express mandate of law or that the Banking Court had exercised its powers outside the jurisdiction conferred upon it---In order to meet the ends of justice, constitutional petition would be maintainable in such circumstances.

Sheikh Abdul Sattar Lasi and another v. Judge Banking Court 2007 CLD 69; Messrs United Bank Ltd. through Authorised Attorneys v. Banking Court No.II and 2 others 2012 CLD 1556; United Bank Ltd. v. Presiding Officer, Banking Court No.2, Karachi and 6 others 2011 CLD 931 and Agricultural Development Bank of Pakistan and others v. Yar Muhammad and others 2004 CLD 1084 distinguished.

Messrs Sajid Brothers and Co. through Proprietor and 2 others v. Manager, Allied Bank Limited and 8 others 2012 CLD 1858 rel.

Muhammad Ahmad Pansota for Petitioner.

P L D 2013 Lahore 493

Before Syed Mansoor Ali Shah, J

MUHAMMAD NAVEED YASEEN---Petitioner

Versus

FEDERATION OF PAKISTAN through Cabinet Secretary and another---Respondents

Writ Petition No.7859 of 2013, decided on 4th April, 2013.

Constitution of Pakistan---

----Arts. 63(1)(o) & 199---Representation of the People Act (LXXXV of 1976), S.14(3A)---Constitutional petition---Disqualification for membership of Parliament (Majlis-e-Shoora) on basis of default in making payment of government dues or utility bills---Scope---Person could be disqualified from being elected as member of Parliament if he was a defaulter in payment of government dues and utility expenses in excess of ten thousand rupees for over six months, at the time of filing his nomination papers---Event of default was the non-payment of government dues or utility expenses for over six months at the time of filing nomination papers, therefore, if a person had deposited the said dues prior to filing of his nomination papers, he was no more a defaulter at the time of filing the nomination papers and the disqualification under Art.63(1)(o) of the Constitution stood cured---Such view was also echoed in S.14(3A) of Representation of the People Act, 1976--- Constitutional petition was disposed of accordingly.

Reckitt and Colman of Pakistan Ltd. v. Saifuddin G. Lotia and 3 others 2000 SCMR 1924; Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others PLD 2012 SC 774 and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1054 distinguished.

Fahad Ahmad Siddiqui for Petitioner.

Nasir Javed Ghuman,Standing Counsel.

Ali Akhtar Khan, Law Offifer, ECP.

P L D 2013 Lahore 495

Before Amin-ud-Din Khan, J

Mrs. SARWAR NAZIR---Appellant

Versus

Mirza RASHID AHMAD---Respondent

R.S.A. No.72 of 2005, heard on 15th January, 2013.

Civil Procedure Code (V of 1908)---

----O. XLI, R.1---Appeal from original decree---Formal defects in memorandum of appeal---Effect---Suit for possession was dismissed by Trial Court---Appeal filed by plaintiff/appellant thereagainst was dismissed on the ground that on the opening sheet of the appeal, "suit for mandatory injunction" was written instead of "suit for possession" and certain grounds of appeal related to "suit for mandatory injunction"---Appellant's application for amendment in the opening sheet was dismissed by Appellate Court---Contention of the appellant was that the appeal was filed for the suit for possession and only inadvertently suit for mandatory injunction had been written on the opening sheet---Validity---No doubt that along with the appeal certified copy of judgment in suit for possession was attached and appeal was filed before the correct forum in relation to the jurisdictional value for a suit for possession---Such formal defects were ignorable by the Appellate Court and even amendment sought by the appellant was for removal of formal objections and even without such amendment, the appeal was to be proceeded on merits---When names of the parties were correct, certified copies of correct judgment and decree were annexed with the appeal and the value of the purpose of court-fee and jurisdiction were correctly mentioned in the opening sheet, then the Appellate Court was bound under law to decide the appeal on merits---High Court set aside impugned order and directed the Appellate Court to decide the cases on merits---Appeal was allowed, accordingly.

2004 SCMR 1740 distinguished.

Imran Muhammad Sarwar for Appellant.

Ch. Mushtaq Ahmad Khan for Respondent

Date of hearing: 15th January, 2013.

P L D 2013 Lahore 498

Before Shujaat Ali Khan, J

MUKHTAR AHMAD GONDAL---Petitioner

Versus

DISTRICT OFFICER (REVENUE), LAHORE and 5 others---Respondents

Writ Petition No.1993 of 2013, decided on 19th March, 2013.

(a) Words and phrases---

----"Gift"---Definition.

D.F.Mulla's principles of Muhammadan Law; Black's Law Dictionary 6th Edn. and Concise Oxford English Dictionary ref.

(b) Words and phrases---

----"Tamleek"---Definition.

Black's Law Dictionary 6th Edn. ref.

(c) Islamic law---

----"Gift" and "Tamleek"---Distinction stated.

The only line of distinction which can be drawn between "Gift" and "Tamleek" is that in the former, the donor can transfer property to anybody else, but where the property is to be transferred under the latter, the condition precedent is that same should be amongst the family members/legal heirs.

(d) Punjab Local Government (Tax on Transfer of Immovable Property) Rules, 2001---

----R. 9---West Pakistan Land Revenue Act (XVII of 1967), S.46---Stamp Act (II of 1899), S.33---Attestation of mutation and transfer of ownership of property on basis of decree of court---Payment of tax and mutation fee---Scope---Transfer of ownership of property on basis of court decree would not be exempted from payment of tax under R. 9 of Punjab Local Government (Tad on Transfer of Immovable Property) Rules, 2001 and mutation fee payable as per law in vogue.

Said Akbar and others v. Mst. Kakai PLD 1975 SC 377; Abdul Aziz v. Deputy District Officer (Revenue) 2011 YLR 1759; Messrs Marathon Construction Co. Pvt. Ltd. v. Oil and Gas Development Co. Ltd. PLD 2010 Lah.707; Allah Ditta Bhatti v. Amjad Saeed and others PLD 2009 Lah. 440; Okara Textile Mills Ltd. and another v. Deputy District Officer (Registration) Okara and another PLD 2007 Lah. 507; Khurshid Begum v. Sub Registrar and 2 others 2010 CLC 157; Komal Chand and another v. The State of Madhya Pardesh AIR 1966 Madh. Par. 20; Mst. Anwar Sultan v. Collector Lahore PLD 1994 West Pakistan (Rev.) 49 and Muhammad Akbar and another v. Allah Ditta and 3 others 1991 CLC 282 ref.

Muhammad Arif v.Tahira Asif PLD 2005 SC 972 rel.

Talal Farooq Sheikh for Petitioner.

Rana Shamshad Khan, A.A.G. with Rana Sajjad Iqbal, Naib Tehsildar and Muhammad Iftikhar, Patwari.

P L D 2013 Lahore 506

Before Shahid Hameed Dar, J

THE STATE---Petitioner

Versus

ABDUL SHAGOOF----Respondent

Criminal Miscellaneous No.875-BC of 2013, decided on 12th March, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 392 & 397/34---Robbery, robbery or dacoity, with intent to cause death or grievous hurt---Suo motu notice under S.497(5), Cr.P.C---Mala fide of police--- Probability of false implication in the offence by the police--- Effect---Accused had been granted post arrest bail by Trial Court---High Court issued suo motu notice under S.497(5), Cr.P.C to the accused on the basis that bail granting order seemed to have been passed in disregard to the material available---Plea of accused that he had been involved in the case due to vindictive police officials---Validity---Accused was being harassed by the police which led him to file a petition under Ss.22-A & 22-B, Cr.P.C against Station House Officer, which was disposed of by Justice of Peace with a direction to Station House Officer not to cause undue harassment to the accused and his family---Accused was subsequently picked up and confined by the same Station House Officer, because of which wife of accused filed a habeas corpus petition under S.491, Cr.P.C, wherein a bailiff was appointed by the court to recover the accused-detenu from the custody of the police---During such stage, Station House Officer devised a supplementary statement of the complainant of the F.I.R. and roped the accused in the case---Date of implication of accused in the offence coincided with the date of his recovery by the bailiff---Residential address of the accused assimilated with the address of the complainant, which gave rise to the probability that complainant and his witnesses might have been familiar and acquainted with the accused, prior to the date of test identification parade---Probability could not be ruled out that accused had been involved in the case due to mischievous wire-pulling by the police---Trial of accused had already commenced---Although bail granting order of Trial Court was not ideally good nor based on cogent arguments, yet, High Court refused to interfere in the same---Suo motu notice issued to accused under S.497(5), Cr.P.C was withdrawn accordingly.

Ch. Muhammad Jehangir, Deputy Prosecutor General Punjab for the State with Muhammad Ashraf S.I.

Respondent in person with Muhammad Asghar Bhatti.

P L D 2013 Lahore 509

Before Ijaz-ul-Ahsan, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

RASHID---Petitioner

Versus

RETURNING OFFICER, NANKANA SAHIB---Respondent

Writ Petition No.8680 of 2013, decided on 23rd April, 2013.

(a) Constitution of Pakistan---

----Arts. 63(1)(n)(o) & 199---Representation of the People Act (LXXXV of 1976), S.14(3-A)---Constitutional petition---Disqualification for membership of Majlis-e-Shoora (Parliament)---Loan of over two million obtained by candidate from bank remaining unpaid for more than one year from due/default date---Candidate in question had obtained such loan which remained unpaid at the time of filing his nomination papers for Provincial Assembly but was deposited subsequently before his papers were accepted---Objection raised by objector was that candidate had deposited the loan amount after filing of nomination papers, therefore, he was disqualified in view of Art.63(1)(n) of the Constitution---Returning Officer rejected objection raised by objector and accepted nomination papers of candidate---Plea of candidate that although he had deposited the loan amount after filing his nomination papers, but in terms of S.14(3-A) of Representation of the People Act, 1976 he had deposited the amount before his nomination papers could be rejected, therefore, disqualification under Art.63(1)(n) of the Constitution was not attracted to his case---Validity---Admittedly candidate had obtained a loan facility of over 2 million, which remained unpaid and finally a decree was passed against him by the Banking Court---Candidate filed his nomination papers on 31-3-2013---Loan amount was paid subsequently after decree was passed on 5-4-2013 but before the acceptance of nomination papers on 7-4-2013---Disqualification under Art.63(1)(n) of the Constitution was not attracted if the loan simply remained unpaid for more than one year from due date, but stood attracted if the loan remained unpaid at the time when the candidate presented himself for election (i.e. filed his nomination papers)---Disqualification under Art.63(1)(n) of the Constitution stood crystallized if the loan remained unpaid till the time of filing of nominations papers---Any payment (i.e. return/deposit of loan) made after filing of nomination papers did not cure such constitutional disqualification---Although S.14 (3-A) of Representation of the People Act, 1976 provided that if payment of unpaid loan was made before rejection of nomination papers, disqualification under Art.63(1)(n) of the Constitution was not attracted, however said section was inconsistent with the scheme of the Constitution in general and Art.63(1)(o) & (n) in particular---Candidate, in the present case had admittedly paid the unpaid loan after filing his nomination papers, which did not cure the disqualification under Art.63(1)(n) of the Constitution---Order of acceptance of nomination papers passed by Returning Officer was set aside, and nomination papers of candidate in question were rejected---Returning Officer was directed to remove name of candidate from the list of validly nominated candidates---Constitutional petition was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 63(1)(n)---Disqualification for membership of Majlis-e-Shoora (Parliament) under Art.63(1)(n) of the Constitution---Scope---Loan of over two million obtained from bank remaining unpaid for more than one year from due/default date---Disqualification under Art.63(1)(n) of the Constitution was not attracted if the loan simply remained unpaid for more than one year from due date, but stood attracted if the loan remained unpaid at the time when the candidate presented himself for election (i.e. filed his nomination papers)---Disqualification under Art.63(1)(n) of the Constitution stood crystallized if the loan remained unpaid till the time of filing of nomination papers--- Any payment (i.e. return/deposit of loan) made after filing of nomination papers did not cure such constitutional disqualification.

Rana Javed Iqbal for Petitioner.

Shehram Sarwar Ch. for Respondent.

Nasir Javed Ghuman, Standing Counsel assisted by Rana Muhammad Aslam Khan, Deputy Director, ECP.

Ali Akhtar Khan, Law Officer, ECP.

Ch. Muhammad Yasin Zahid along with Muhammad Umar Tarrar, Ahlmad to Addl. Sessions Judge, Nankana.

P L D 2013 Lahore 513

Before Abdus Sattar Asghar, J

EHSAN ULLAH and others---Petitioners

Versus

MARYAM BIBI and others---Respondents

Civil Revision No.3498 of 2012, decided on 27th November, 2012.

Specific Relief Act (I of 1877)---

----S. 8---West Pakistan Land Revenue Act (XVII of 1967) Ss.135 & 177---Suit for possession of immovable property---Maintainability---Contention of the plaintiffs was that defendants had encroached upon their property---Validity---Perusal of record revealed that plaintiffs were not exclusive owners of suit land and the defendants were also co-sharers in the said land---No local commission was appointed by the court to conduct demarcation, rather the plaintiffs opted to produce the Tehsildar as a witness who admitted that the correct "naqsha tajawaz" was neither prepared, nor signed by him---Report of the local commission in a previous suit did not state whether the suit land was duly measured and demarcated and could not be termed as a reliable piece of evidence---Since the plaintiffs were not exclusive owners of the suit land, they could not claim possession of any land without seeking partition of the joint khata, and admittedly they never moved to the Revenue Officer for partition or demarcation of the disputed land under Ss.135 and 177 of the West Pakistan Land Revenue Act, 1967 , and therefore suit under S.8 of the Specific Relief Act, 1877 was not maintainable---Plaintiff's suit for possession, was therefore, rightly dismissed by courts below---Revision was dismissed, in circumstances.

Mian Muhammad Faheem Bashir for Petitioners.

P L D 2013 Lahore 517

Before Amin-ud-Din Khan, J

NAZIR AHMAD and another---Petitioners

Versus

MUHAMMAD YOUSAF and others---Respondents

Civil Revision No.792 of 2000, heard on 20th December, 2012.

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

----O. XLI, R.23---Remand of case---Principles---If there is any prejudice caused to any party, then framing of issue and remanding of case may be necessary for administration of justice.

Muhammad Yousaf and others v. Haji Murad Muhammad and others PLD 2003 SC 184 ref.

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

----S. 8---Transfer of Property Act (IV of 1882), S.41---Civil Procedure Code (V of 1908), O.XLI, R.23---Suit for possession of immovable property---Purchase from ostensible owner---Additional issue framing of---Defendants sought remand of case after framing of additional issue with regard to purchase of suit property by them in good faith for value in order to take benefit of S.41 of Transfer of Property Act, 1882---Validity---Remanding of case and framing of issue was not necessary, as without framing of issue sufficient material in shape of pleadings and evidence was available on record to decide matter in issue, as the matter could be decided while deciding other issues---Framing of issue and remanding of case was not allowed in circumstances.

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

----S. 41---Transfer by ostensible owner---Title of the owner---Scope---Ostensible owner does not mean complete owner without any defect.

(d) Words and phrases---

----"Ostensible"---Meaning.

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

----S. 41---Transfer by ostensible owner---Silence of real owner---Effect---When at the time of transfer of property by ostensible owner in favour of any person who is a person claiming title and interest in the property remains silent on that transfer that means that he has impliedly admitted that transfer.

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

----S. 8---Transfer of Property Act (IV of 1882), S. 41---Limitation Act (IX of 1908), Art.142---Suit for possession of immovable property---Limitation---Transfer by ostensible owner---Concurrent findings of fact by the courts below---Suit filed by plaintiff was resisted by defendants on the plea of bona fide purchaser from ostensible owner---Trial Court and Lower Appellate Court concurrently decreed the suit---Validity---According to Art.142 of Limitation Act, 1908, plaintiff was bound to file the suit within 12 years from the date of dispossession or discontinuation of possession---Plaintiff did not prove transfer of possession in his favour under the sale and it was proved on record that defendants had been in possession of suit land as owners from their purchase since year, 1976 and filing of suit in year 1991 was time barred---Defendants purchased suit property in good faith for value and possession was also delivered to them under the sale, therefore, they were fully entitled to take benefit of S.41 of Transfer of Property Act, 1882---High Court set aside judgments and decrees passed by two courts below and suit filed by plaintiff was dismissed---Revision was allowed in circumstances.

Dost Muhammad through Legal Heirs v. Jahangir Khan and another 2000 CLC 1745; Rehman Shah v. Muhammad Shah and others 1974 SCMR 255; Ijaz Baig and 16 others v. Irshad Baig and 2 others 2003 CLD 1805; Muhammad Tufail and 2 others v. Maula Bakhsh and 45 others 2002 MLD 589 and Maqsood Hussain Shah v. Noor Hussain Shah and 3 others PLD 1989 SC(AJ&K) 45 ref.

Ch. Khurshid Ahmad for Petitioners.

Ch. Abdul Majeed for Respondent No.1.

Respondents Nos. 2-14: Ex parte.

Date of hearing: 20th December, 2012.

P L D 2013 Lahore 528

Before Amin-ud-Din Khan, J

MUHAMMAD ALAM---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Industries Department and another---Respondents

Writ Petitions Nos.5992, 26535 of 2010; 4162, 8870, 8873, 12116 of 2011 and 31331 of 2012 decided on 26th February, 2013.

(a) Constitution of Pakistan---

----Art. 18---Legislation for regulation of trade and business---Powers of Government---Scope---Government though having such legislative powers was not legally bound to give reasons for such legislation---Principles.

The Government can legislate for regulation of the trade and business in accordance with Art.18 of the Constitution, and giving reason in the provisions of law for its legislation is not the requirement of law, but it is the home-work before the legislation and consultation and deliberations, which is required.

(b) Constitution of Pakistan-

----Art. 199---Policy decision by Government---Constitutional jurisdiction of High Court to interfere in such decision---Scope.

When policy decision has been made by the Government in accordance with its executive authority, the High Court cannot sit in judgment over the policy decision by the Government, when the court comes to the conclusion that the process of such policy decision was arrived at after due deliberations, that was not open to exception.

Madina Sugar Mills v. Secretary, Ministry of Industries and others PLD 2001 Lah. 506; Haji Ghulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dhaka 156; Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another PLD 2011 Lah. 120; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193 ref.

Kh. Saeed-uz-Zafar and Asjad Saeed for Petitioners (In W.P. No.5992 of 2010).

Hassan Nawaz Makhdoom for Petitioners (in W.P. No.26535 of 2010).

Nasir Ahmad Awan for Petitioners (in W.P.No.4162 of 2011).

Dr. Khalid Ranjha and Barrister Afzal Hussain for Petitioners (in W.P.No.12116 of 2011).

Haq Nawaz Chatha for Petitioners (in W.P.No.31331 of 2012).

M.S. Baqir for Petitioners (in W.P. Nos.8870 and 8873 of 2011).

Abdul Hafeez Pirzada, Hamid Ahmad and Sikandar Bashir Mohmand for Respondent No.2 (in W.P. No.5992/2010).

Rana Shamshad Khan and Muhammad Nasir Chohan, A.A.Gs., Law Officer.

Kashif Mushtaq Warraich, Senior Law Officer, Industries Commerce and Investment Department Government of Punjab.

Ijaz Ahmad Awan and Komal Malik Awan for Pakistan Sugar Mills Association.

Shehzad Elahi for Applicant (in C.M. No.1/2011 in W.P.No.5992/2010).

Dates of hearing: 12th, 17th December and 31st January, 2013.

P L D 2013 Lahore 538

Before Muhammad Yawar Ali, J

IQRA JAVED alias SABA---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Writ Petition No.1610-Q of 2013, decided on 11th February, 2013.

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

----S. 365-B---Criminal Procedure Code (V of 1898), Ss.154 & 561-A---Constitution of Pakistan, Art. 199---Kidnapping, abducting or inducing woman to compel for marriage etc.---Constitutional petition---Quashing of F.I.R.---According to F.I.R. accused allegedly kidnapped the alleged abductee---Alleged abductee stated in court that she was never abducted by anyone and married the accused with her own free will and consent without any duress and coercion---Taking any action in pursuance of F.I.R., in such circumstances, would be an abuse of the process of law---Constitutional petition was allowed, and impugned F.I.R. for offence under S.365-B, P.P.C was quashed.

(b) Islamic Law---

----Marriage---Nikahnama---Validity---Law did not permit others to challenge the validity of the Nikahnama, when its contents were admitted by the husband and the wife.

Zarjuma alias Jamna Bibi v. S.H.O. P.S. Saddar District Bhakkar and 4 others PLD 2009 Lah. 546 rel.

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

----Ss. 154, 173 & 561-A---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of F.I.R. when report under S.173, Cr.P.C has already been submitted---Scope---Where the High Court was of the opinion that an F.I.R. had been registered against innocent citizens on account of malice and there was no chance of their conviction, the same could be quashed notwithstanding the fact that a report under S.173, Cr.P.C had been submitted before the Trial Court.

The State v.Asif Ali Zardari and another 1994 SCMR 798 and Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 rel.

Muhammad Ashfaq Mughal for Petitioner.

Mrs. Samia Khalid, A.A.G. with Nasir S.I.

Complainant/Respondent No.3 in person.

P L D 2013 Lahore 540

Before Shahid Hameed Dar, J

BAHADAR ALI---Petitioner.

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.18819-B of 2012, decided on 13th February, 2013.

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

----S.497---Second bail application, filing of---Fresh grounds---Scope---When first bail application of accused was dismissed as withdrawn, all the grounds available on the date extinguished, necessitating a fresh ground to be raised by the accused for purpose of repeating his bail application.

The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 and Muhammad Siddique v. The State and another Criminal Petition No.896-L of 2012 rel.

Muhammad Riaz v. The State 2002 SCMR 184 distinguished.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-e-amd, common intention---Bail, refusal of---Second bail application, filing of---Fresh grounds---Scope---First bail application dismissed as withdrawn after arguments at some length---Effect---Such withdrawal was not withdrawal simpliciter---Fact that counsel for accused withdrew first bail application, without having sensed the outcome thereof, could not be believed---Fresh ground for filing subsequent bail application was one which shot into existence after rejection of earlier bail application either on merits or having not been pressed---Request of accused for withdrawal of his first bail application would haunt all his subsequent endeavors for release on bail, till he came across a fresh ground in the real sense--- Bail application of accused was dismissed in circumstances.

Aziz Ahmad Bhatti for Petitioner.

Mrs. Muqadass Tahira, Addl. Prosecutor-General Punjab for the State with Irshad S.I.

Mansoor-ur-Rehman Khan Afridi for the Complainant.

P L D 2013 Lahore 543

Before Abdus Sattar Asghar, J

MUHAMMAD ZULFIQAR---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.1287-M of 2012, heard on 28th March, 2013.

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

----Ss. 436, 202 & 203---Power of Sessions Court to summon accused in a private complaint without inquiry---Scope---Complainant initiated a private complaint before the Magistrate alleging that accused persons took away his wife and illegally detained her for purpose of effecting a compromise between the parties, whereafter complainant along with witnesses went to the accused and demanded her return but instead he was threatened with dire consequences---Magistrate after recording cursory evidence of complainant and prosecution witnesses dismissed the complaint for want of sufficient evidence to summon the accused---Sessions Judge set aside order of Magistrate, summoned the accused persons to face trial and remanded the case to the Magistrate---Plea of accused persons that Sessions Judge was not competent to summon the accused rather he could have only remanded the case to Magistrate in terms of S.436, Cr.P.C for further proceedings in accordance with law---Validity---Sessions Court could order the summoning of accused without directing any further inquiry---Section 436, Cr.P.C conferred a discretion upon the Sessions Judge to order summoning of accused after inquiry or without further inquiry while remanding the case to Trial Magistrate---Despite the fact that allegations levelled by complainant were corroborated by prosecution witnesses, Magistrate dismissed the complaint---No jurisdictional error or legal infirmity was found in the impugned order of Sessions Judge---Petition was dismissed accordingly.

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

----Ss. 436, 202 & 203---Power of Sessions Court to summon accused in a private complaint without inquiry---Scope---Sessions Court could order the summoning of accused without directing any further inquiry---Section 436, Cr.P.C conferred a discretion upon the Sessions Judge to order summoning of accused after inquiry or without further inquiry while remanding the case to Trial Magistrate.

Muhammad Tariq Nadeem for Petitioner.

Mehr Mazhar Hussain Hiraj for Respondents.

Date of hearing: 28th March, 2013.

P L D 2013 Lahore 548

Before Ijaz ul Ahsan, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

HAMEED AKBAR KHAN---Petitioner

Versus

ELECTION APPELLATE TRIBUNAL and others---Respondents

Writ Petitions Nos.9300 and 9301 of 2013, decided on 30th April, 2013.

(a) Constitution of Pakistan---

----Art. 63(1)(o)---Disqualification for membership of Parliament (Majlis-e-Shoora) on basis of non-payment of government dues or utility expenses---Scope---Disqualification under Art.63(1)(o) of the Constitution envisaged a default in payment of government dues and utility expenses for over a period of six months at the time of filing of nomination papers---Said disqualification, therefore, crystallizes when the default subsisted till the time of filing of the nomination papers---Said disqualification, however, stood cured if the default was removed by making payment of government dues or utility expenses before it crystallized i.e. before the filing of the nomination papers and not otherwise---Payment of government dues and utility expenses after the filing of the nomination papers did not cure the disqualification under Art.63(1)(o) of the Constitution.

(b) Constitution of Pakistan---

----Art. 63(1)(o)---Representation of the People Act (LXXXV of 1976), S.14 (3A)--- Disqualification for membership of Parliament (Majlis-e-Shoora) on basis of non-payment of government dues or utility expenses---Scope---Government dues or utility expenses paid/cleared after filing of nomination papers but before their rejection---Effect---Although S.14(3A) of Representation of the People Act, 1976 provided that disqualification under Art.63(1)(o) of the Constitution was not attracted if the government dues and utility expenses were paid before rejection of the nomination papers, but said section was inconsistent with the provisions of Art.63(1)(o) of the Constitution---Disqualification under Art.63(1)(o) of the Constitution crystallized when the default subsisted at the time of filing of nomination papers, therefore, such constitutional disqualification could not be improved upon or altered through sub-constitutional provision of S.14(3A) of Representation of the People Act, 1976.

(c) Constitution of Pakistan---

----Arts. 63(1)(o) & 199---Representation of the People Act (LXXXV of 1976), S.14---Constitutional petition---Disqualification for membership of Parliament (Majlis-e-Shoora) on basis of non-payment of utility expenses---Scope---Default in making payment of water bills---Nomination papers of candidate were rejected by Election Tribunal on the ground that he defaulted in payment of water charges---Plea of candidate that he was part owner of property in relation to which water charges were unpaid, therefore he could not be saddled with liability of said charges, and that in any case he came to know about the outstanding charges at the time of scrutiny of his nomination papers, and he immediately cleared them upon getting knowledge of the same---Validity---Candidate was part owner of property for which water charges were unpaid---Said charges remained unpaid even after filing of nomination papers---Disqualification under Art.63(1)(o) of the Constitution crystallized when the default subsisted at the time of filing of nomination papers, therefore, payment of government dues and utility expenses after filing of the nomination papers did not cure the disqualification under Art.63(1)(o)---Candidate in the present case, admittedly cleared/paid the outstanding dues after filing his nomination papers---Water charges were payable since the year 1985, and if candidate was unaware of the same, the responsibility fell on him, who admittedly was part owner of the property and should have been more vigilant in clearance of utility expenses---Constitutional petition was dismissed accordingly.

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

----S.14(3-A)---Constitution of Pakistan, Art.63(1)(o)---Section 14(3-A), Representation of the People Act, 1976 was inconsistent with the provisions of Art.63(1)(o) of the Constitution.

Muhammad Shahzad Shaukat for Petitioner.

Nasir Javed Ghuman, Standing Counsel assisted by Rana Muhammad Aslam Khan, Deputy Director, Election Commission of Pakistan.

Muhammad Ahsan Bhoon, Azam Nazir Tarar, Mushtaq Ahmad Mohal for Respondents.

Salman Babar, Deputy Director Rev. (GBT) WASA, LDA, Lahore.

P L D 2013 Lahore 552

Before Ijaz ul Ahsan, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

Raja PERVAIZ ASHRAF---Petitioner

Versus

ELECTION TRIBUNAL and others---Respondents

Writ Petition No.9674 of 2013, decided on 22nd April, 2013.

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

----S. 14---Constitution of Pakistan, Art.199---Rejection of nomination papers by Returning Officer or Election Tribunal---Constitutional petition challenging such rejection of nomination papers---Maintainability---Constitutional jurisdiction of the High Court could be invoked against orders passed by the officers in the Election hierarchy i.e. the Returning Officers or the Election Tribunals prior to culmination of the electoral process.

Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others PLD 2008 SC 313; Ch. Muhammad Arif Hussain v. Rao Sikandar Iqbal and 10 others PLD 2008 SC 735 and Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644 rel.

(b) Constitution of Pakistan---

----Art. 62(1)(f)---Qualification for membership of Parliament (Majlis-e-Shoora)---Depriving a candidate from contesting elections on basis of Art.62(1)(f) of the Constitution---Scope---Article 62(1)(f) of the Constitution made it abundantly clear that the Constitution required a declaration by a court of law to term a candidate as being not sagacious, righteous, non-profligate, honest and ameen---To deprive a citizen of his fundamental right to contest election, the requirement of a declaration by a court of law, as provided in Art.62(1)(f) of the Constitution had to be strictly construed.

(c) Constitution of Pakistan---

----Arts. 62(1)(f) & 199---Representation of the People Act (LXXXV of 1976), S. 14---Constitutional petition---Qualification for membership of Parliament (Majlis-e-Shoora)---Depriving a candidate from contesting elections on basis of Art.62(1)(f) of the Constitution---Scope---Rejection of nomination papers---Nomination papers of candidate in question were rejected by Returning Officer and also by Election Tribunal on the basis that Supreme Court and Islamabad High Court had made adverse declarations/observations against him in the cases of Alleged Corruption in Rental Power Plants etc., reported as 2012 SCMR 773 and MN Construction Company (W.P. No.3387/2012 dated 28-3-2012) respectively---Validity---Supreme Court in the case of Alleged Corruption in Rental Power Plants etc., after considering the facts of the case in its wisdom did not record any finding or issue a direction to disqualify the candidate or others, and it rightly referred the matter for further probe to National Accountability Bureau, therefore, there was no declaration in terms of Art.62(1)(f) of the Constitution---Islamabad High Court in the case of MN Construction Company (W.P. No.3387/2012 dated 28-3-2012) sent a copy of the judgment to the Chief Election Commissioner as well as Returning Officer of the candidate's constituency and directed them to appreciate "observations" made in the judgment and make an independent decision whether the candidate could be believed to be a sagacious, righteous, honest, upright, honest, trustworthy---No definitive declaration was issued by Islamabad High Court, of the nature required to attract the provisions of Art.62(1)(f) of the Constitution, and the language was in the nature of an observation and the matter was left to the discretion of the Returning Officer to determine whether or not he believed the candidate to fulfil the requirements of Art. 62(1)(f) of the Constitution---Constitutional petition was allowed, impugned orders of Returning Officer and Election Tribunal were set aside, and direction was issued to Returning Officer to include name of candidate in the list of eligible candidates.

(d) Constitution of Pakistan---

----Art. 62(1)(f)---Representation of the People Act (LXXXV of 1976), S.14---Qualification for membership of Parliament (Majlis-e-Shoora)---Rejection of nomination papers of a candidate by Returning Officer or Election Tribunal on basis of a declaration issued by court of law in terms of Art.62(1)(f) of the Constitution---Scope---Neither the Returning Officer nor the Election Tribunal had the power to issue any declaration by itself in a summary jurisdiction under the provisions of Representation of the People Act, 1976, unless there was a declaration issued by a court of law placed before them, in which event they could invoke the provisions of Art.62(1)(f) of the Constitution.

Farooq H. Naik,Sardar Muhammad Latif Khan Khosa, Ahsan Boon and Abid Saqi for Petitioners.

Nasir Javed Ghuman, Standing Counsel.

Sheikh Zameer Ahmed for Repsondent No.3.

Rana Muhamamd Aslam Khan, Deputy Direcotr, ECP.

Muhammad Akbar Tarar, Addl. Prosecutor General.

P L D 2013 Lahore 560

Before Ijaz ul Ahsan, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ

GHULAM MURTAZA SATTI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Writ Petition No.9772 of 2013, decided on 24th April, 2013.

(a) Constitution of Pakistan---

----Arts. 63(1)(e) & (k), 260 & 199---Representation of the People Act (LXXXV of 1976), S. 14---Constitutional petition---Disqualification for membership of Parliament (Majlis-e-Shoora)---Rejection of nomination papers---Person in service of Pakistan---Scope---Person acting in capacity of advisor of a Government owned company---Effect---Candidate was an advisor of Infrastructure Project Development Facility (IPDF), which was a registered company wholly owned by the Ministry of Finance---Nomination papers of candidate were accepted by the Returning Officer, but rejected by Election Tribunal on the basis that he fell within the definition of a "person, who was in the service of Pakistan"---Validity---Candidate was appointed as an advisor of the company but he did not draw any salary, was not a member of the Board and did not have any regular appointment of the company as a regular employee, which was evident from the fact that no letter of appointment containing terms and conditions of service including salary, perks and privileges, was issued in his favour either by the company or by the Ministry of Finance---Perusal of Art.260 of the Constitution shows that advisors to the Prime Minister as well as Chief Ministers were specifically excluded from the definition of "persons in the service of Pakistan"---Using the analogy of Art.260, if advisors appointed under the constitutional mandate had been excluded from the service of Pakistan, prima-facie it appeared that the same benefit should be available to the candidate in question as well---Candidate, in the present case, was not in the service of the company, but was performing services for the company and was, therefore, not an employee of the company---No credible material was available on record that indicated that he was receiving any salary, other benefits, perks, privileges, house rent etc. from the company on regular basis---Order passed by the Election Tribunal was set aside, and order of the Returning Officer was upheld---High Court issued direction to the concerned Returning Officer to include the name of the candidate in the list of eligible candidates---Constitutional petition was allowed accordingly with the observation that High Court through present judgment was not recording definitive findings on the status of the candidate, because the court was not inclined to go into factual controversies and record evidence, therefore, the objector was free to agitate the matter through an election petition, if so advised, if the candidate was returned as a result of election.

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

----S. 14---Constitution of Pakistan, Art. 199---Nomination papers of a candidate---Declaration/statements of a candidate in his nomination papers---Ascertaining correctness of such declaration/statements in constitutional jurisdiction of High Court---Scope---Question as to whether such declaration/statements were false or incorrect, could not be ascertained without carrying out a factual probe through recording of evidence, which exercise could not be undertaken in constitutional jurisdiction of High Court.

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

----Ss. 14(3), (5) & (5A)---Nomination papers of a candidate---Declaration/statements of a candidate in his nomination paper---Ascertainment of correctness of such declaration/statements by Returning Officer or Election Tribunal---Scope---Question as to whether such declaration/statements were false or incorrect, could not be ascertained without carrying out a factual probe through recording of evidence, which exercise could not be gone into by Returning Officer or Election Tribunal in their summary jurisdiction.

Aitazaz Ahsan, Uzair Karamat Bhandari and Shahid Saeed for Petitioner.

Nasir Javed Ghuman, Standing Counsel.

Rana Muhammad Aslam Khan, Deputy Director ECP.

Adil Anwar, Chief Executive, IPDF.

P L D 2013 Lahore 565

Before Muhammad Khalid Mehmood Khan, J

Sardar DILDAR AHMAD CHEEMA---Petitioner

Versus

BOARD OF REVENUE, PUNJAB through Member (Revenue) and others---Respondents

Writ Petition No.796 of 1992, decided on 22nd January, 2013.

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

----S.4---Notification of acquisition---Object, scope and purpose---Notification under S.4 of Land Acquisition Act, 1894, is issued to give notice to public at large that land subject matter of notification is required for public purpose and it further means that there is "an impediment to anyone to encumber land acquired thereunder"---Any encumbrance created after gazette notification is void against State.

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

----Ss.4, 5-A, 6 & 17---Constitution of Pakistan, Art.199---Constitutional petition---Acquisition of land---Non-assailing by landowner---Notification of acquisition of land was issued on 28-9-1956 and landowner who was father of petitioner did not receive compensation nor filed any objection---Plea raised by authorities was that petition was suffering from laches---Validity---Issuance of notification showed that in absence of any objection on the part of owner, suit land stood vested in Provincial Government and compensation ascertained and deposited in government treasury became property of landowner---Predecessor-in-interest of petitioner did not challenge acquisition proceedings nor raised any objection against ascertainment of compensation---When landowner died, his estate was compensation money regarding acquired land and after his death his legal heirs only inherited deposited compensation money and not the land---In case the owner or interested person failed to raise objections or to challenge acquisition proceedings after issuance of gazette notification under S.4 read with Ss.17(1) and 6 of Land Acquisition Act, 1894, the acquisition proceedings regarding such person were generally neither quashed nor were vitiated regarding owner of land by any error of law---Once land was vested in State free from all encumbrances, it could not be divested and proceedings under Land Acquisition Act, 1894, would not lapse, even if award was not made within statutory stipulated period---Authorities had deposited compensation and right to receive the same was alive as authorities were not denying right of petitioner to receive compensation, hence no question of laches---High Court directed the authorities to pay compensation to petitioner along with 8% interest per annum---Petition was dismissed in circumstances.

Nadir Khan v. The State PLD 1992 FSC 392; Muhammad lqbal Khan v. Election Tribunal, Zila Council, Muzaffargarh and 5 others 1999 SCMR 1577; Messrs Pfizer Laboratories Limited v. Federation of Pakistan and others PLD 1998 SC 64; Naeem Hussain Chatha v. Tawakkal Ullah and another 1997 CLC 192; Nazar-ul-Hussain v. The Collector Lahore PLD 1990 Lah.472; Kh. Zubair Ahmed and others v. Collector and others 1990 MLD 1941; Ouadrat Ullah v. Government of West Pakistan and others 1992 CLC 680; Taquer Ahmed Khan v. Government of Pakistan 1994 MLD 1866; Mst.Abida Aman-i-Rehman v. Government of N.-W.F.P. PLD 2012 Pesh. 172; Land Acquisition Officer and Collector v. Muhammad Jumman and others 2004 YLR 1123; Province of Sindh v. Ramzan and others PLD 2004 SC 512; Noor-u-Din v. Government of Pakistan and others 1997 CLC 1971; Rashid-A-Khan v. West Pakistan Railway Board and others PLD 1973 Lah. 733; Pacific Multinational (Pvt.) Limited v. Inspector General Police Sindh PLD 1992 Kar. 283; Zohra and others v. Government of Sindh and others PLD 1966 Kar. 1; Shauket and others v. Government of Pakistan and others PLD 1977 SC 342; Arif Builders and Developers v. Govenment of Pakistan PLD 1977 Kar.627 and Government of Punjab v. Madina Jute Mills 2010 CLC 812 ref.

Government of A.P. and another v. Sayed Akbar AIR 2005 SC 492; Allahabad Development Authority v. Nasiruzzaman and others (1996) 6 SCC 424 and Fruit and Vegetable Merchants Union v. The Delhi Improvement Trust AIR 1957 SC 344 rel.

Syed Ali Zafar and Salman Aslam Butt for Petitioner.

Ch. Muhammad Iqbal, Addl. Advocate General Punjab with Asmat Ullah Raheem, Law Officer (Housing) for Respondents.

Hasan Akmal Qureshi, Legal Advisor (PHATA)

Date of hearing: 19th December, 2012

P L D 2013 Lahore 575

Before Syed Mansoor Ali Shah, J

MUNIR AHMAD---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Writ Petition No.7651 of 2013, decided on 5th April, 2013.

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

----S. 14(3)---Constitution of Pakistan, Arts. 62(1)(e), (f), (g) & 199--- Constitutional petition---Scrutiny of nomination papers of candidates by Returning Officers---Scope---Returning Officers asking unrelated and unwanted questions from candidates, in front of live television, during the scrutiny of the nomination papers---Plea that candidates were being intrusively examined by the Returning Officers relating to their personal life and the questions posed had no co-relation or nexus with the information submitted in the nomination papers or collected by the Returning Officers through any other source---Validity---Returning Officers instead of building public confidence and trust, had done otherwise, deeply damaging the image of the judiciary by embarking upon an inquisition through self-tailored subjective questions in front of live electronic media---Returning Officers in their overzealous virtuousness lost track of the law---Under S.14(3) of Representation of the People Act, 1976, the Returning Officer could carry out a summary inquiry on its own motion, but such inquiry was not a fishing or a roving inquiry into the personal affairs of a candidate, insensitively trampling over his personal belief and deep rooted religious commitments---Inquiry envisaged under the law could only be triggered by the information placed before the Returning Officer i.e., the information in the nomination paper and the objections filed against it by the other side, if any, or information gathered and collected by the Returning Officer, on his own, through credible sources---Returning Officer had no reason to doubt the veracity and sanctity of the declaration and oath made by candidate on the nomination paper unless there was evidence to the contrary and the Returning Officer after being fully satisfied arrived at the conclusion that the said declaration was false---Declaration of the candidate on oath meant that it was to be assumed that the requirements of Art.62 of the Constitution had been fulfilled---Such assumption could only be pierced if there was credible evidence to the contrary but not through poking silly personal questions from the candidate by the Returning Officer---Allowing the Returning Officer to ask questions on his own was to allow him to interpret Art.62(1)(e), (f) and (g) of the Constitution---Any such move would defy the Constitutional wisdom---Returning Officer could not embark upon a subjective inquisition by throwing a volley of self-styled questions, unrelated to the record before him, to determine, according to his subjective understanding whether Art.62(1)(e), (f) and (g) of the Constitution were attracted---Returning Officer must not over-step the law and exceed his limits, lest the scrutiny appeared to be a witch-hunt, tarnishing the neutrality and independence of the judiciary as a whole---High Court directed that all District and Sessions Judges/District Returning Officers/Returning Officers should immediately refrain from asking random intrusive and inquisitive questions that had no nexus with the information supplied in the nomination paper or which did not arise from the objections raised by the other side or from the information collected or received by the Returning Officer from the authorized agencies; that the declaration of the candidate on oath submitted along with the nomination papers should only be questioned by the Returning Officer if there was tangible and credible material to the contrary on the record in the shape of nomination papers or objections by the other side or information procured by the Returning Officer through authorized agencies.

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

----S. 14(3)---Constitution of Pakistan, Arts.62(1)(e), (f), (g) & 199---Constitutional petition---Scrutiny of nomination papers of candidates by Returning Officers---Scrutiny proceedings televised live on television channels in the electronic media---Legality---Since proceedings before the Returning Officers were being televised live on television channels some of the Returning Officers were asking irrelevant and unrelated questions to gain cheap publicity---Use of live video recording of court proceedings was not permitted---Such live recording had never been done in the country and more importantly there had been no permission granted to the district judiciary by the High Court to allow access to electronic media to enter the court rooms and capture live proceedings nor had the Election Commission of Pakistan permitted the Returning Officers or the media to do so---High Court directed Election Commission of Pakistan and District Returning Officers all over the province not to allow electronic media to telecast the judicial proceedings from inside the court room on national television, however the members of the press/media could be inside the court to record and report the proceedings.

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

----S. 14(3)---Constitution of Pakistan, Art. 62---Scrutiny of nomination papers of candidate by Returning Officer---Scope---Returning Officer was a neutral umpire and an impartial arbiter who was not vested with the power to assume an inquisitorial role of holding an invasive inquiry into the personal affairs of a candidate totally unrelated to the information placed before him---Word "satisfied" used in S.14(3) of Representation of the People Act, 1976 meant that the Returning Officer must have credible evidence before him in order to proceed against the candidate, hence, the power exercised by the Returning Officer under S.14(3) was restricted to the information in the nomination papers or placed before the Returning Officer through the objections filed against the candidate, if any or the information gathered by the Returning Officer through authorized sources---Returning Officer could not go outside the scope of the material placed before him and build a hypothetical construct to judge the qualification of the candidate under Art.62 of the Constitution by posing a set of random questions that came to the mind of the Returning Officer and according to his limited understanding met the requirement of the said Article---Any questions asked by the Returning Officer must emanate from the record before him and not otherwise.

Muhammad Azhar Siddiqui for Petiitoner.

Nasim Kashmiri and Khalid Habib Elahi, Deputy Attorney Generals for Pakistan.

Nasir Javed Ghuman, Standing Counsel.

Rehan Nawaz and Asad Ahmad Ghani for State Bank of Pakistan.

Muhamamd Shahzad Shaukat and Bilal Hasan Minto, Amici Curaie.

Abid Saqi, President Lahore High Court Bar Association.

Nasar Ahmed Waqar A. Sheikh and Imran Raza Chaddhar, (on their own Assisted the Court).

Rana Muhammad Aslam, Deputy Director, PECP.

Ali Akhtar Khan, Law Officer, ECP.

Zubair Kamal, Election Officer, ECP.

P L D 2013 Lahore 586

Before Muhammad Khalid Mehmood Khan, J

WAHEED SABIR---Petitioner

Versus

Rana ZAHID HUSSAIN KHAN and others---Respondents

Writ Petitions Nos.15025, 22151, 9588, 4299, 19012 and 11188 of 2010, decided on 4th April, 2013.

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

----S. 99(cc)---Constitution of Pakistan, Arts. 62, 63 & 199(b)(ii)---Constitutional petition---Election to National Assembly---Educational degrees of elected members alleged to be fake, thus, they were not legally entitled to hold public office (MNA) and were liable to refund amounts drawn as salaries and other benefits---Respondents (members) plea that after dissolution of Parliament, respondents ceased to be holder of such public offices and cause of action alleged thereagainst also ceased to exist rendering constitutional petition as non-maintainable---Validity---General election had been announced to be held on 11-5-2011---Respondents were not holding any public office after dissolution of Parliament---Writ of quo warranto could be issued against a person holding a public office without any lawful authority, but not against a person already ceased to hold such office---Relief of refund of salaries and other benefits from usurper of a public office could not be granted in proceedings for quo warranto---University and Board of Intermediate concerned had confirmed respondents' degree to be fake --- Petitioner before Returning Officer could object eligibility of respondents qua Arts.62 & 63 of the Constitution, if they filed nomination papers to contest general election---High Court dismissed constitutional petition for having become infructuous.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1089; Khuda Bakash v. Mir Zafar Ullah Jamali 1997 SCMR 561; Ch. Muneer Ahmed and others v. Malik Nawab Sher and others PLD 2010 Lah. 625; Haji Khizar Hayat v. Sarfraz Khan and another PLD 1968 Lah. 381; P.L. Lakhanpa1 v. Alit Ray, Chief Justice of India, New Delhi and others AIR 1975 Delhi 66; Sardar Asseff Ahmad Ali v. Muhammad Khan Junejo and others PLD 1986 Lah. 310; Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; Muhammad Liaquat Munir Rao v. Shams ud Din and others 2004 PLC (C.S.) 1328; Rana Muhammad Hayat Khan v. Rana Imtiaz Ahmad Khan PLD 2008 SC 85; Khuda Bakhsh v. Mir Zafarullah Khan Jamali 1995 CLC 1860; Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066; Abdul Hamid v. Muhammad Shahidullah and 3 others PLD 1969 SC 535; Pakistan through the Secrtary, National Assembly v. Khondkar Ali Afzal and another PLD 1960 SC Pak 1; Jumma. Khan Baluch v. The Government of Pakistan and others PLD 1957 (W.P.) Kar. 939; Khalid Mehmood v. Muhammad Anwar Khan and others (C.P. No.513- L/2013), Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others (C.P.No.632/2011) Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others (W.P.No.11538/10) Meyer v. Strouse (Supreme Court of Pennsylvania) (422 Pa. 136 (1966), Pundlik Vishwapath v. Mahader Binjraj and others AIR 1959 Bombay 2 (V 46 C 2; The State of Bombay v. Smt. Shrish v. Pai and others AIR 1959 Bombay 6 (V 46 C 3); Carlton R. Seavey v. Frank A. Van Hatten, and Edward W. Lambert et al. (Appellate Division of the Supreme Court of State of New York, Forth Department) (276 A.D. 260 (1949), Parmatma Ram and others v. Siri Chand and others (AIR 1962 Himachal Pradesh 19 (V 49 C 9); K.C. Chandy v. R. Billa Pillai AIR 1986 Kerala 116; The University of Mysore v. C.D. Govinda Rao and another AIR 1965 SC 491 (V 52 C 80); Sajid Hussain v. Shah Abdul Latif University, Khairpur thorugh Registrar and 4 others PLD 2012 Sindh 232; Malik Nawab Sher v Ch. Muneer Ahmed and others (Civil Petition No.175- L of 2012) and Mian Najeeb ud Din Owasi and another v. Amir Yar Waran and others C.M.As. No.1712/12 in C.As. Nos. 191-L and 409/10 ref.

Halsbury's Laws of England, Third Edn. Vol.11, para 281; P.L. Lakhanpal v. Ajit Nath Ray, Chief Justice of India New Delhi and others AIR 1975 Delhi 66; Pundlik Vishwapath v. Mahader Binjraj and others AIR 1959 Bombay 2 (V 46 C 2); The State of Bombay v. Smt. Shirish Pai and others AIR 1959 Bom 6 (V 46 C 3; Abdul Hamid v. Muhammad Shahidullah and 3 others PLD 1969 SC 535 and Pakistan through the Secretary National Assembly v. Khondkar Ali Afzal and another PLD 1990 SC 1 rel.

(b) Constitution of Pakistan---

----Art. 199(b)(11)---Quo warranto, writ of---Issuance---Scope---Such writ could neither be issued against a person ceased to hold public office nor be used to quash acts already done by usurper of public office---High Court in proceedings of such writ could not direct usurper of public office to refund salaries and other benefits received by him while holding such office --- Principles.

A writ of quo warranto is information in nature placed before the court and the petitioner may not be an aggrieved person.

The words in Article 199(b)(ii) of the Constitution are "holding or purporting to hold a public office".

Writ of quo warranto can be issued against a person, who is holding a public office without any lawful authority or he is a usurper. The word used in Article 199(b)(ii) of the Constitution are "the holder of public office" denotes that relief of writ of quo warranto will be available to a person against a holder of public office and not a retired person. The intention of the legislature is clear that relief of quo warranto is available only against those who are present and not who were public office holder or would be public office holder. When the holder of public office ceased to hold the office, the relief of quo warranto also becomes not available to an aggrieved party or any other person.

The only object of the writ of quo warranto is to inquire into and determine the authority of a person holding a public office, and the consequence of the acceptance of the petition is the ouster of the person from the public office, the relief by way of writ of quo warranto remain only available so long as the person attacked is in actual possession and user of the office.

As a general rule, therefore, quo warranto to question a person's title to office will not be granted after he has ceased to hold that office.

The writ of quo warranto cannot be used to quash acts already done by a usurper. Quo warranto is meant to prevent a continued exercise of authority unlawfully asserted and not to correct what already has been done under it or to vindicate private rights.

As far as the right of person to ask for refund of salaries or other benefits from a usurper to a public office is concerned, it cannot be determined in a proceeding for quo warranto. The said determination is an independent right and can be ascertained in appropriate proceedings according to law.

Halsbury's Laws of England, Third Edn. Vol.11, para. 281; P.L. Lakhanpal v. Ajit Nath Ray, Chief Justice of India New Delhi and others AIR 1975 Delhi 66;Pundlik Vishwapath v. Mahader Binjraj and others AIR 1959 Bombay 2 (V 46 C 2); The State of Bombay v. Smt. Shirish Pai and others AIR 1959 Bom 6 (V 46 C 3); Abdul Hamid v. Muhammad Shahidullah and 3 others PLD 1969 SC 535 and Pakistan through the Secretary National Assembly v. Khandkar Ali Afzal and another PLD 1990 SC 1 rel.

Arshad Malik Awan, Azam Nazir Tarar, Shahram Sarwar Ch., Kh. Saeed uz Zafar and Majid Karim Khokhar for Petitioners.

Maqbool Elahi Malik, Umer Riaz and Ali Sibtain Fazali for Respondents.

Nadeem-ud-Din Malik with Khawaja Ijaz for BISE, Faisalabad.

Jehangir Akhtar Jojha, M. Aqeel Wahid Ch. and Asif Afzal Bhatti for Punjab University.

Mehboob Azhar Sheikh for BISE, Lahore.

Miss Uzma Zahoor for CECP.

Date of hearing: 3rd April, 2013.

P L D 2013 Lahore 598

Before Umar Ata Bandial, J

IMTIAZ AHMAD KAIFI---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petitions Nos.11372, 11480 and 11751 of 2013, heard on 15th May, 2013.

(a) Punjab Law Department Manual, 1938-

----Para. 1.18(4)---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Additional Advocate General/ Assistant Advocate General holding office during pleasure of Government---Removal from such office/employment without assigning any reasons---Justiciability---Such employment at pleasure (of Government) was justiciable.

Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 ref.

(b) Constitution of Pakistan---

----Art. 100--- Attorney General for Pakistan holding office during the pleasure of the President of Pakistan---Removal from office---Scope---Loss of confidence---Appointment of Attorney General involved an element of lawyer-client relationship and loss of confidence therefore, was a very relevant criterion for withdrawal of pleasure.

B.P. Singhal v. Union of India and another (2010) 6 SCC 331 ref.

(c) Punjab Law Department Manual, 1938---

----Para. 1.18(4)---Constitution of Pakistan, Arts. 25 & 199---Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006), S.4(b)(v)---Constitutional petition---Additional Advocate General/ Assistant Advocate General (law officers) holding office during pleasure of Government---Removal of selected law officers by Caretaker Provincial Government without assigning any reasons or providing intelligible criteria for termination---Legality---Discrimination---By way of impugned order of Caretaker Provincial government 13 Assistant Advocates General and 7 Additional Advocates General (law officers) were "removed from office with immediate effect" without assigning any reasons---Pleas of removed law officers were that their removal was arbitrary as it was selective without reference to any criteria in targeting them; that no intelligible differentia distinguished them from the law officers that had been retained in service, therefore, their removal order was discriminatory in effect---Plea of Caretaker Provincial Government that appointment of Additional Advocate General and Assistant Advocate General was at the pleasure of the government, therefore, they might be terminated at any time without assigning any reasons---Validity---Law officers in question had been removed from office without assigning any reason---Some justification for removal from service of a law officer had to exist because such action was justiciable to assess its fairness---Since in the present case no reasons were assigned by the Caretaker Provincial Government for removing law officers in question, therefore, it could be interpreted as loss of confidence of the government in them---On account of the peculiar nature of lawyer-client relationship attendant to the post of law officers in question, the requirement for disclosure of reasons for removal from service might arguably be dispensed, however the manner in which they were removed from office, namely by their individual selection whilst many other law officers had been retained in office, created differentiation between two groups of law officers---As no reasons for impugned action were given, therefore, a heavy burden was cast on the Caretaker Provincial Government to justify selective loss of confidence in the removed law officers---Presuming that law officers in question had been removed by Caretaker Provincial Government to maintain strict neutrality as they had been appointed by the (previous) political government, then the retention of other law officers appointed by the same (previous) political government had no justification---Allegation of discrimination was well founded on such ground--- Terminology used in the removal order namely "removal from service" had a negative connotation in the context of government employment, and was a penalty under relevant provincial disciplinary law, namely S.4(b)(v) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Removed law officers had a fundamental right under Art.25 of the Constitution that identically placed persons must be treated identically---Difference between law officers who had been removed from office against those who had been retained had to be based on intelligible criteria---Classification adopted by Caretaker Provincial Government was arbitrary and violated Art.25 of the Constitution---Removal of law officers in question was declared to be illegal and of no legal effect---Constitutional petition was allowed accordingly.

(d) Constitution of Pakistan---

----Arts. 224(1A) & 218(3)---Caretaker Government, duty of---Scope---Discretion of Caretaker Government to appoint non-partisan officers---Scope---Caretaker Government had no politics---Caretaker Government shared duty of the Election Commission of Pakistan to conduct the general elections honestly, justly, fairly and in accordance with law and that corrupt practices were guarded against---Caretaker government had discretion to make changes that strengthened its ability to discharge its constitutional obligation---Significant aspect of said constitutional obligation of a Caretaker government was to demonstrate and maintain strict neutrality in the discharge of its functions, inter alia, by appointing non-partisan officers.

Kh. Ahmad Tariq Rahim v. Federation of Pakistan and others PLD 1992 SC 646 rel.

Imtiaz Ahmad Kaifi, Muhammad Azhar Siddique and Zaka-ur-Rehman Awan for Petitioner.

Ch. Muhammad Hanif Khatana, Senior Addl. A.G.

Masud Abid Naqvi, Hafiz Ansar ul Haq, Sibghat Ullah Naseer Khawer Khan, Muhammad Ejaz Jamal, Zair Sikandar Khan Burki and Mirza Viqas Rauf for Respondents, Respondents/Additional Advocates General in person.

P L D 2013 Lahore 607

Before Abid Aziz Shaikh, J

AMIR SALEEM---Petitioner

Versus

PRESIDING OFFICER and others---Respondents

Writ Petition No.9210 of 2013, decided on 16th April, 2013.

Punjab Consumer Protection Act (II of 2005)---

----S. 30---Civil Procedure Code (V of 1908) O.V, R. 3---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Scope---Interim order---Consumer Court, jurisdiction of---Petitioner, who was defendant in complaint before Consumer Court, impugned order of Consumer Court whereby he was ordered to appear in person---Contention of the petitioner/defendant was that said order for personal appearance, was without jurisdiction and liable to be set aside---Validity---Consumer Court under S.30 of the Punjab Consumer Protection Act, 2005 had same powers as vested in a civil court under C.P.C. in respect of various matters in relation to trying of a suit, and under O. V, R.3 C.P.C. , the court may order personal appearance of parties to the suit, therefore, the Consumer Court had jurisdiction to order personal appearance of the petitioner/defendant---Impugned order was also interim in nature and questions as to the propriety of such interim order could not be entertained in a constitutional petition---Constitutional petition was dismissed, in circumstances.

Abdur Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Badrul Haque Khan v. The Election Tribunal, Dacca PLD 1963 SC 704; Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24; Muhammad Hussain Munir v. Sikandar PLD 1974 SC 139; Zulfiqar Khan Awan v. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 8 others 1974 SCMR 530; Begum Wazir Ahmad Industrial Home v. Niaz Begum PLD 1976 SC 214; Muhammad Ramzan and 12 others v. The Member (Revenue), Board of Revenue, Punjab Lahore and 7 others 1994 SCMR 55; Bolan Bank Limited v. Capricorn Enterprise (Pvt.) Ltd. 1998 SCMR 1961; Muhammad Zubair and 4 others v. Muhammad Zameer and 11 others 1999 CLC 2045 and Mst. Aysha Bibi v. District Judge 2005 CLC 894 rel.

Irshad Hussain Watto for Petitioner.

P L D 2013 Lahore 610

Before Ijaz ul Ahsan, J

LIAQAT ABBAS BHATTI---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary, ECP and others---Respondents

Writ Petition No.12491 of 2013, decided on 21st May, 2013.

(a) Constitution of Pakistan---

----Art. 218---Election Commission---Duties, powers and obligations---Primary obligation of Election Commission of Pakistan to ensure organization and conduct of election and make such arrangements as are necessary to ensure that elections are conducted honestly, justly and fairly and in accordance with law and Constitution---Till such time that results have been notified, Election Commission of Pakistan continues to be supervisor of the process and can in appropriate cases interfere in the matter in order to fulfil its constitutional obligations.

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

----Ss. 39, 46 & 103---Constitution of Pakistan, Art.199---Constitutional petition---Recounting of votes---Fair election, ensuring of---Petitioner candidate was aggrieved of order passed by Election Commission directing Returning Officer to recount ballot papers---Validity---Provision of S.46 of Representation of the People Act, 1976, was enabling provision which empowered Election Tribunal, if it had considered appropriate, to pass order to open packets of counterfoils and certificates or inspection of any counted ballot papers---Such power was available if and when Election Tribunal was approached by any of the candidates---Provision of S.46 of Representation of the People Act, 1976, did not take away powers available to Election Commission under Ss.39 & 103 of Representation of the People Act, 1976, which included power, in appropriate cases, to order recount of votes---Recount would not prima facie lead to any prejudice being caused to petitioner in view of the fact that matter was still sub judice before Election Commission---In case petitioner was aggrieved of any order that could be passed by Election Commission, legal and constitutional remedies were available to petitioner, who could avail the same at appropriate time---High Court in exercise of constitutional jurisdiction declined to interfere in order passed by Election Commission---Petition was dismissed in circumstances.

Malik Nausher Khan Langerial v. Khalid Mahmood Chohan and others 2004 CLC 1249; Sardar Bakhsh v. Mst. Sahib Khatoon 1988 CLC 2037; Qaisar Ifraheem Saroya v. Returning Officer and 2 others 1995 CLC 917; Syed Nayyar Hussain Bukhari v. District Returning Officer NA-49, Islamabad and others PLD 2008 SC 487; Jashbhai Chunibhai Patel v. Anverbeg A. Mirza AIR 1969 SC 586 and Sardarmal Lalwani v. State of Madhya Pardesh and others 1973 SCC 599 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Interim order---Scope of challenging interim order under Art.199 of the Constitution is narrow and limited.

Abid Saqi for Petitioner.

Azam Nazeer Tarrar along with Khalid Ishaq for Respondents.

M.Nasim Kashmiri, Dy. A.-G.

Nasir Javed Ghumman, Standing Counsel along with Rana Muhammad Aslam Khan, Deputy Director, ECP.

P L D 2013 Lahore 617

Before Syed Mansoor Ali Shah and Abid Aziz Sheikh JJ

COMMISSIONER INLAND REVENUE, MULTAN---Petitioner

Versus

Messrs ALLAH WASAYA TEXTILE AND FINISHING MILLS LTD.---Respondent

T.R. Nos.22 and 23 of 2012, decided on 30th May, 2013.

Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----Ss. 2(ha) & 4(4)---General Clauses Act (X of 1897) S. 8---Income Tax Ordinance (XLIX of 2001) Ss. 207, 122 & 133---High Court Reference---Construction of references to repealed enactments---"Taxation Officer," meaning of---Term "Taxation Officer" to be read as "Officer Inland Revenue" for purposes of Workers' Welfare Fund Ordinance, 1971---Taxpayer did not include its liability under S. 4(4)of the Workers' Welfare Fund Ordinance, 1971 after which under the amended assessment order taxpayer was held liable to pay an amount under S. 4(4) of the Workers' Welfare Fund Ordinance, 1971---Said addition was deleted by Appellate Tribunal on the ground that under S.4(4) Deputy Commissioner Inland Revenue had no jurisdiction under the Workers' Welfare Ordinance, 1971 as S. 4(4) referred to "Taxation Officer" whereas in the nomenclature of the amended Income Tax Ordinance, 2001, the word "Taxation Officer" was substituted by "Officer Inland Revenue", which did not find mention in S. 4(4) the Workers' Welfare Fund Ordinance, 2001---Held that, under S. 8 of the General Clause Act, 1897, it was clear that after the repeal of the Income Tax Ordinance, 1979 and enactment of Income Tax Ordinance, 2001, reference in any other enactment of the repealed Ordinance or its provisions would be read as the new Ordinance, which was the Income Tax Ordinance, 2001 along with the new provisions---Term "Taxation Officer", therefore, for all practical purposes, would be read as the "Officer Inland Revenue", as appearing in the Income Tax Ordinance, 2001---Repeal of the Income Tax Ordinance, 1979 therefore, did not absolve the taxpayer of his liability simply on the pretext that appropriate amendment was not made in the nomenclature of the "Taxation officer" in S. 2(ha) of the Workers' Welfare Fund Ordinance, 1971---Reference was answered in negative.

Haji Nasim-ur-Rehman v. Commissioner of Income Tax/Wealth Tax and others 2009 PTD 164 distinguished.

Rana Muhammad Ashraf for Petitioner.

Sh. Zafar-ul-Islam, Niaz Ahmad Khan and Tanveer Ahmad for Respondents.

Date of hearing: 30th May, 2013.

P L D 2913 Lahore 621

Before Umar Ata Bandial, C J

Ch. NAZIR AHMAD---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.3575 of 2012, heard on 17th December, 2012.

University of the Punjab Act (IX of 1973)---

----Ss. 14 & 16---Public Sector Universities (Amendment) Act (LX of 2012) S. 2, 14 & 16---Constitution of Pakistan, Art. 199---Constitutional petition---University---Appointment of Vice-Chancellor--Validating legislation, retrospective effect of---Petitioner impugned the re-appointment of the Vice Chancellor on the ground that under the University of Punjab Act, 1973, the Vice Chancellor could only be appointed for one term not exceeding four years and that the retirement age for the incumbent of said office was sixty years, whereas the incumbent Vice Chancellor had already attained age of superannuation and since his first term was over, his continued appointment was illegal---Contention of the University was that issues raised by the petitioner had become redundant in the light of the promulgation of the Public Sector Universities (Amendment) Act, 2012 whereby amendments were made to the University of the Punjab Act, 1973---Held, that the amendments in the University of the Punjab Act, 1973 envisaged that a person may be appointed as Vice Chancellor prior to attaining the age of sixty-five years and in the present case, the Vice Chancellor was reappointed at the age of sixty-one years---Section 14(8) of Public Sector Universities (Amendment) Act, 2012 provided that the incumbent Vice Chancellor was not allowed extension in his tenure but was eligible to compete for the Vice-Chancellor post after expiry of his term, and therefore, an incumbent Vice-Chancellor could be a candidate for re-appointment in a fresh selection process for the post---Vice-Chancellor, in the present case, was re-appointed as a result of a fresh selection process Public Sector Universities (Amendment) Act, 2012 contained a validation clause, whereby it could operate retrospectively, and it was a curative and remedial law which operated retrospectively to correct omissions and mistakes that were the subject matter of pending proceedings like the present case---Even otherwise, if the defects pointed out by the petitioner were presumed to exist, the same stood cured and remedied by the Public Sector Universities (Amendment) Act, 2012 with retrospective effect---Constitutional petition was therefore dismissed, in circumstances.

Malik Hussain Mubashar v. Muhammad Sajjad Hussain and Suo Motu case No.24 of 2010 (PLD 2011 SC 582) ref.

Syed Wajid Ali and 4 others v. Globe Automobiles Ltd. and another 1993 SCMR 819; Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180; Malik Hussain Mubashar v. Muhammad Sajjad Hussain (Civil Appeals Nos.81-L to 89-L of 2012) and Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42 rel.

Aftab Ahmad Bajwa for Petitioner.

Fayyaz Ahmad Mehr and Nasir Ahmad Awan for Petitioners in connected petitions.

Ahmad Rauf, Addl. A.-G. for Respondents.

Muhammad Akram Sheikh assisted by Shrjil Adnan for Respondents.

Shahzad Shaukat, Advocate/Legal Advisor for Punjab University.

Muhammad Tariq Hanif,Law Officer, HED, Government of Punjab.

Date of hearing: 17th December, 2012.

P L D 2013 Lahore 627

Before Syed Mansoor Ali Shah and Abid Aziz Sheikh JJ

COMMISSIONER INLAND REVENUE---Petitioner

Versus

Ch. MUHAMMAD AKRAM---Respondent

T.R. No.45 of 2010, decided on 30th May, 2013.

Income Tax Ordinance (XLIX of 2001)---

----Ss.122(4)(a) & 122(4)(b)---Amendment in assessment---Limitation---Term "later of", as used in S.122(4)(b) of the Income Tax Ordinance, 2001---Connotation and scope---Taxpayer / assesse filed tax return on 29-2-2007, after which taxpayer filed a revised return under S.114 of the Income Tax Ordinance, 2001 on 26-4-2008, whereby original assessment order stood amended---Said assessment order was subsequently further amended on 12-1-2010---Appellate Tribunal had held that the further amendment on 12-1-2010 was in violation of S.122(4)(b) of the Ordinance, which provided a period of one year for any further amendment---Department contended that S.122(4) provided two separate and distinct timelines (five years in S.122(4)(a) and one year in S.122(4)(b)) and "later of" the two timelines were available to the Department---Validity----Language used in Ss.122(4)(a) and 122(4)(b) was clear and unambiguous and both timelines dealt with different periods of limitation for amendment(s) in assessment orders---Only difference was that both timelines had a different reference/starting point for calculating period of limitation and in S.122(4)(a) the period began from end of financial year in which the Commissioner had issued or had treated as having been issued the original assessment order to the taxpayer while in the period of one year in S.122(4)(b) began from the end of the financial year in which the Commissioner had issued or had treated as having been issued amended assessment order---Section 122(4)(a) did not imply that only original assessment order could be amended for the first time within a period of five years and in fact it referred to "original assessment order" as a reference point for commencement of the period of limitation---An original assessment could be amended any number of times within a period of five years from the end of the financial year in which the Commissioner had issued or treated as having issued the original assessment order---In S.122(4)(b) the start of the timeline of one year was from the end of the financial year in which the Commissioner had issued or was treated as having issued the amended assessment order---Department had the option to invoke the available timeline, hence the term "later of" was used in S.122(4)(b) of the Ordinance; which indicated that both timelines were available and the Department had the option to place reliance on the timeline which expired later in time---Original assessment order in the present case was dated 29-2-2007, therefore, period of five years under S.122(4)(a) of the Ordinance would expire on 29-2-2013, and therefore, the amendment brought on 12-1-2012 fell within the timeline.

Ch. Muhammad Asghar Saroha and Asif Rasool, Additional Commissioner Inland Revenue, Multan for Petitioner.

Sh. Zafar-ul-Islam, Niaz Ahmad Khan and Tanveer Ahmad for Respondent.

Date of hearing: 30th May, 2013.

P L D 2013 Lahore 631

Before Umar Ata Bandial, C J

Messrs CMH TRADERS---Petitioner

Versus

CHIEF SETTLEMENT COMMISSIONER and others---Respondents

Writ Petition No.14952 of 2011, decided on 3rd May, 2013.

Punjab Procurement Rules, 2009---

----R. 9---Constitution of Pakistan, Art. 199---Limitation on splitting or regrouping of proposed procurement---Scope---Public procurement---Under Rule 9 of the Punjab Procurement Rules, 2009 the splitting of works contract ought not to be done after the stage of shortlisting the contractors; otherwise such splitting could be used to exclude competition by eligible contractors of a lower category by awarding the contract to a favored higher category public contractor---Higher category contractor had higher overheads and was therefore likely to demand a higher price and such caution should be exercised to ensure transparent utilization of public money on public contracts in accordance with the law---Regulatory mechanism established in the Punjab Procurement Rules, 2009 was meant to advance the object of the Rules, and the Standard Operating Procedures and primarily ensure utilization of public funds in a transparent, fair and reasonable manner that promoted public interest---Punjab Procurement Rules, 2009 must be complied strictly by authorities responsible for utilizing public funds, otherwise their actions were invalid and ineffective.

Muhammad Umer Riaz for Petitioner.

Ahmad Rauf, Addl. A.G.

Muhammad Rafiq, Executive Engineer Toba Tek Singh, Respondent No.1 in person.

P L D 2013 Lahore 634

Before Syed Mansoor Ali Shah and Abid Aziz Sheikh, JJ

CARETEX---Petitioner

Versus

COLLECTOR SALES TAX AND FEDERAL EXCISE and others---Respondents

S.T.R. No.1 of 2009, decided on 31st May, 2013.

(a) Sales Tax Act (VII of 1990)---

----S. 36(1)---Interpretation of S.36(1), Sales Tax Act, 1990---Recovery of tax not levied or short-levied or erroneously refunded---Issuing of show-cause notice to taxpayer under S. 36(1) of the Sales Tax Act, 1990---Essentials---Phrase "where by reason of" used in S. 36(1) of the Sales Tax Act, 1990 mandated that the tax department could not begin to assume jurisdiction under S. 36 of the Sales Tax Act, 1990 and issue show case notice to taxpayer until and unless the department was seized of sufficient evidence "by reason of" which collusion, deliberate act, inadvertence, error, or misconstruction was established---Taxpayer must have had a pre-mediated or pre-arranged plan to evade tax and the evidence must show and establish a calculated stratagem or a game plan behind the transaction tailored for the specific purpose of evading tax---"Collusion" required that there must be a more than one person scheming to defraud or there must be a conspiracy of a fraudulent act resulting in evasion of tax and on the whole unless there was a deliberate design or an agreement between the persons to defraud the tax department and the same was clearly and preciously laid out in the show cause notice---Mere mentioning of S. 36(1) or mentioning the words "deliberate act" or "collusion" in the show cause notice would not vest the tax department with the jurisdiction to invoke S. 36(1) of the Sales Tax Act, 1990---Legal enforceability and jurisdictional validity of a show cause notice vested from its content, that was, the facts supported by tangible evidence referred to in the show cause notice and not from the cosmetic showcausing of statutory provisions or from the use of statutory key words like "collusion" or deliberate act in the show cause notice.

D.G. Khan Cement Company Ltd., Lahore v. Collector of Customs, Sales Tax and Central Excise, Multan and 2 others 2003 PTD 1797 ref.

Assistant Collector Customs, Dry Port, Peshawar and others v. Messrs Khyber Electric Lamps MFG Co. Ltd., Peshawar 2001 SCMR 838; Caltex Oil (Pakistan) Ltd. v. Collector, Central Excise and Sales Tax and others 2005 PTD 480; Collector of Sales Tax and Central Excise, Lahore v. Zamindara Paper and Board Mills and others 2007 PTD 1804; D.G. Khan Cement Company Limited 53-A Lawrence Road, Lahore v. The Collector of Customs, Sales Tax and Central Excise, Multan and 2 others 2003 PTD 1797; Messrs Inam Packages, Lahore v. Appellate Tribunal Customs Central Excise and Sales Tax, Custom House, Lahore and 2 others 2007 PTD 2265; Osman Abdul Karim Bawaney v. The Collector of Customs, Chittagong and others PLD 1962 Dacca 162 and Collector of Central Excise, Hyderabad v. Messrs Chemphar Drugs and Liniments, Hyderabad AIR 1989 SC 832 rel.

(b) Show-cause notice---

----Show-cause notice issued in relation to taxation matters---Essential ingredients and prerequisites---Show-cause notice, was a foundational document, which was to comprehensively describe the case made out against the taxpayer by making reference to the evidence collected in support of the same and was a narration of facts in the show-case notice along with the supporting evidence which determined the offence attracted to a particular case---Show-cause notice was not a casual correspondence or a tool or license to commence a roving inquiry in to the affairs of the taxpayer based on assumptions and speculations but was a fundamental document that carried definitive legal and factual position of the department against the taxpayer---Legal enforceability and jurisdictional validity of a show cause notice vested from its content, that was, the facts supported by tangible evidence referred to in the show cause notice and not from the cosmetic showcausing of statutory provisions or from the use of statutory key words in the show cause notice.

(c) Words and phrases----

----"Delibrate"---Meaning of.

Black's Law Dictionary Sixth Edition (at page 426) and The Law Lexicon of British India by P. Ramanatha Aiyar (at page 310) rel.

(d) Words and phrases---

----"Collusion"---Meaning of.

www.freedictinoary.com. Sixth Edition (at page 264) and Sixth Edition (at page 759) rel.

(e) Words and Phrases---

----"Inadvertence"---Meaning of.

The Law Lexicon of British India by P. Ramanatha Aiyar (at page 570) and Black's Law Dictionary Sixth Edition (at page 542) rel.

(f) Words and Phrases---

----"Error"---Meaning of.

Black's Law Dictionary Sixth Edition (at page 542) rel.

(g) Words and phrases---

----"Misconstruction---Meaning of.

www.freedictionary.com rel.

Mian Abdul Basit for Petitioner.

Ahmed Raza for Respondents.

Date of hearing: 31st May, 2013.

P L D 2013 Lahore 643

Before Mazhar Iqbal Sidhu, J

GHULAM MUSTAFA WASEEM through Bashir Ahmed---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.18608-B of 2012, decided on 12th April, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 466 & 497---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Bail, grant of---Accused of unsound mind---Bipolar affective disorder---Accused allegedly fired at the deceased due to a money dispute---Plea on behalf of accused that on account of his insanity he committed the crime, therefore, he was entitled for concession of bail---Validity---On request of counsel for complainant accused was referred to a mental health institute---Medical Board of said institute after examining the accused observed that he was suffering from bipolar affective disorder and was unfit to stand trial and was advised treatment---Medical report of accused was signed by eight members of the medical board including the chairperson---Case of accused squarely fell within the ambit of S.466, Cr.P.C.---Accused was released on bail accordingly.

The State of Rajasthan v. Shera Ram alias Vishnu Dutta 2012 SCMR 1768 distinguished.

Muhammad Ahasn Bhoon, assisted by Iftikhar Ahmad Rajpoot for Petitioner.

Azam Nazir Tarar assisted by Barrister Momin Malik for the Complainant.

Muhammad Akhlaq D.P.G. with M. Arshad S.I.

P L D 2013 Lahore 646

Before Shahid Hameed Dar, J

RIAZ alias MABDAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1190/B of 2013, decided on 20th March, 2013.

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

----S. 497---Bail, refusal of---Post-arrest bail petition withdrawn by accused after arguments at some length---Filing of subsequent bail petition on fresh grounds---Scope---First bail petition of accused was dismissed as having not been pressed, after arguments at some length---Accused himself decided to abandon his right of bail (by withdrawing his first bail petition), hence it was incumbent upon him to raise a fresh ground in his subsequent bail petition, which ground was not available to him earlier and had arisen subsequent to the withdrawal order---Withdrawal of first bail petition was not withdrawal-simpliciter as was manifest from the order, which hinted at advancement of arguments at some length by counsel for the accused, who having anticipated the outcome, took a decision to bring a premature halt to his quest for bail---Bail application of accused was dismissed in circumstances.

The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 rel.

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

----S. 497---Post-arrest bail application withdrawn after arguments at some length---Filing of subsequent bail application on fresh grounds---Scope---Withdrawal of a post-arrest bail application synchronized with exhaustion of all grounds available---For moving second/subsequent bail application(s) it was expedient for the accused to search for a fresh ground, which was not available to him earlier and had arisen subsequent to the withdrawal order.

The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 rel.

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

----S. 497(1), fifth proviso---Bail, refusal of---High Court dismissing bail application with a direction to Trial Court to conclude trial within 3 months---Delay in conclusion of trial occasioned by adjournments sought by defence---Effect---Record showed that direction for conclusion of trial within 3 months could not be complied with mainly due to stubbornness of the defence, as it sought repeated adjournments when prosecution witnesses were in attendance, therefore case fell within the mischief of fifth proviso to S.497(1), Cr.P.C---Bail application was dismissed accordingly.

Ch. Imtiaz Hussain Bhatti for Petitioner.

Ch. Muhammad Jehangir, Deputy Prosecutor General Punjab for the State with Arshad Ali, S.I.

Sardar Akbar Ali Khan Dogar for the Complainant.

P L D 2013 Lahore 649

Before Mazhar Iqbal Sidhu, J

KASHIF ALI and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1205-B of 2013, decided on 13th February, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Sole allegation of raising lalkaras---Non-attribution of any injury during the occurrence---Effect---Accused persons were alleged to have shouted lalkaras during the occurrence so as to encourage co-accused persons, who fired at the deceased and injured witness---Prosecution's own case was that accused persons did not cause any injury to the deceased as well as injured witness---Partway investigation accused persons were found innocent, therefore, their involvement in the offence needed further probe---Accused persons were admitted to bail accordingly.

Shahid Mehmood Mir for Petitioners.

Khawaja Shoaib Mushtaq for the Complainant, M. Jahangir, D.P.G. with Javaid Iqbal, S.I.

P L D 2013 Lahore 651

Before Shahid Hameed Dar, J

ALI RAZA and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos.741-B and 1465-B of 2013, decided on 26th March, 2013.

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

----Ss. 497 & 345---Penal Code (XLV of 1860), Ss. 395/41---Dacoity, dishonestly receiving stolen property---Bail, grant of---Grant of bail on basis of compromise for a non-compoundable offence---Scope---Accused persons allegedly snatched cash from the complainant and his wife---Accused persons and complainant subsequently reached a compromise and terms and conditions of the same had been reduced into writing vide an agreement deed, which was signed by complainant and one of the accused---Complainant being fully satisfied with the terms and conditions of compromise had no objection if accused persons were admitted to bail---Plea of public prosecutor that offence in question was non-compoundable, therefore accused persons could not be granted bail---Validity---Although offence alleged was not compoundable, but eagerness of the parties to settle their dispute by executing an agreement had to be given a sense of respect, so that they might harvest benefit thereof---Complainant and his wife were doctors by profession, hence educated persons, who understood the terms of the compromise well---If loss sustained by the complainant at the hands of accused persons was made good to his satisfaction, then there might be no harm in admitting accused persons to bail---Complainant had expressly stated that on account of the compromise he did not intend to prosecute the accused persons further---Accused persons were admitted to bail in such circumstances with the observation that complainant would be within his right to lodge a request for withdrawal of bail, if the accused side showed hesitation in complying with the terms and conditions of the compromise agreement.

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

----S. 345---Compromise in case of a non-compoundable offence---Scope---Compromise even in non-compoundable offences was a redeeming factor, which brought peace, harmony and coherence in the society, and it might have far-reaching positive effects in the lives of warring parties.

Syed Khadim Hussain Zaidi, Mazhar Hayat and Ch. Inayat-ur-Rasool Uppal for Petitioners.

Zahid Younas, District Public Prosecutor.

Muhammad Ahsan Bhoon and Tariq Bashir Awan for the Complainant.

Imran S.I. with record.

P L D 2013 Lahore 655

Before Mazhar Iqbal Sidhu, J

AFTAB ALAM and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.3514-M of 2012, decided on 22nd February, 2012.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 249-A & 344--- Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Quashing of proceedings---Non-recording of evidence by prosecution despite lengthy delay---Complainant delaying prosecution of the case---Effect---Right of accused to speedy trial---Scope---F.I.R. was registered against accused under S.406, P.P.C---Application filed by accused persons under S.249-A, Cr.P.C seeking their acquittal was dismissed by Trial Court--- Revisional Court upheld order of Trial Court---Validity---Trial Court had issued non-bailable warrants of arrest of prosecution witnesses but none of them entered appearance---Complainant left the country because of which it could be construed that he lacked interest in prosecution of the case---Despite lapse of more than three years neither the complainant nor his witnesses had entered appearance---Requirement of law was that trial of an accused should be concluded within a reasonable time---Speedy trial was right of accused---Section 344, Cr.P.C bound the court that without any reasonable cause proceedings in the trial might not be postponed---Continuing proceedings of the case before the Trial Court would amount to abuse of process of law and wastage of precious judicial time as in the circumstances of the case no probability existed of conviction of accused due to lack of proof---Impugned orders passed by Trial Court and Revisional Court were set-aside and proceedings of the F.I.R. before the Trial Court were terminated and quashed---Application was allowed accordingly.

The State v. Jagmal Singh alias Madhu Singh and 4 others 1970 PCr.LJ 649 and Abdul Razak Gabole and 2 others v. The State 2012 PCr.LJ 999 rel.

Zubair Khalid Chaudhry for Petitioners.

Naveed Ashraf for Respondent No.2.

M. Akhlaq D.P.G. for the State.

P L D 2013 Lahore 659

Before Umar Ata Bandial, C J

Syed FEROZE SHAH GHILLANI and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petitions Nos.8777, 26689, 26838, 21963, 22539, 25528, 22492, 20789 of 2012 and 9304 of 2011, decided on 29th November, 2012.

(a) Constitution of Pakistan--

----Arts 154, 153, 9, 256 & 199---Council of Common Interests ("CCI")---Construction of Kalabagh Dam and Water Reservoir---Decisions of the CCI, nature of---Scope---Petitioners sought direction for the implementation of two decisions of the Council of Common Interest (CCI)) whereby express approval was given for the construction of the Kalabagh Dam and for addressing the political and technical concerns about the same---Contention of the petitioners was that said decisions of the CCI did not receive any attention from the Federal Government and that a technical study undertaken by representatives of all four Provinces had endorsed and approved the feasibility of the project---Validity---Constitution conferred a preeminent position to the CCI to formulate and regulate polices for the Federation in relation to a number of subjects, including Water and Power---Decision of the CCI had an obligatory effect unless the same was modified by the Parliament at the instance of the Federal Government under Art.154(7) of the Constitution---Shortage of available electric power in the national grid, scarcity, and depletion of irrigation water resource for arable land in the country and the frequent occurrence of floods in the Indus had adversely affected the quality and security of life of the citizens in the Province of Punjab and the country as a whole and the resulting degradation in the quality and conditions of life of the affected citizen violated their fundamental rights guaranteed under Arts.9 & 25 of the Constitution---High Court directed the Federal Government that in the performance of its duty under Art.154 of the Constitution, it shall, in letter and spirit take steps to implement the decisions of the CCI regarding construction of the Kalabagh Dam---High Court observed that bona fide steps in such regard were necessary when in the light of the available material, the project was admittedly feasible both technically and economically---High Court further directed that the Federal Government shall faithfully strive to explore and devise an administrative framework and safeguards that allayed the apprehensions, political or otherwise, nurtured by concerned quarters in relation to the construction of the Kalabagh Dam and that steps should be taken expeditiously with a resolve to comply with the provisions of Art.154 of the Constitution by effectuating the will of the CCI as expressed or by seeking further guidance and direction therefrom if such need arose---Constitutional petitions were disposed of accordingly.

(b) Constitution of Pakistan--

----Art. 154 & 153---Council of Common Interests ("CCI")---Decisions taken by the CCI---Nature and Scope---Constitution conferred a pre-eminent position to the CCI to formulate and regulate polices for the Federation in relation to a number of subjects, including Water and Power---Decision of the CCI had an obligatory effect unless the same was modified by the Parliament at the instance of the Federal Government under Art.154(7) of the Constitution.

(c) Constitution of Pakistan--

----Arts. 9 & 25---Security of person and equality of citizens---Fundamental rights---Shortage of electricity and water resources---Shortage of available electric power in the national grid, scarcity, and depletion of irrigation water resource for arable land in the country and the frequent occurrence of floods in the Indus had adversely affected the quality and security of life of the citizens in the Province of Punjab and the country as a whole and the resulting degradation in the quality and conditions of life of the affected citizens violated their fundamental rights guaranteed under Arts.9 & 25 of the Constitution.

A.K. Dogar for Petitioner (in W.P. No.8777/2012).

Azhar Siddique, Shahanshah Shamil Paracha, lrfan Mukhtar and Munir Ahmad for Petitioner (in W.P. No.26689/2012).

Mian Ghulam Allah Khan Joyia for Petitioner (in W.P. No.26838/2012).

Muhammad Suleman Khan Petitioner in person (in W.P. No.21963/2012).

Malik Munsaf Awan for Petitioner (in W.P. No.22539/2012).

Syed Nisar Safdar for Petitioner (in W.P. No.25528/2012).

Mian Bilal Ahmad for Petitioner (in W.P. No.22492/2012).

M. Aslam Awan for Petitioner (in W.P. No.20789/2012).

Rana Nadeem Ahmad for Petitioner (in W.P. No.9304/2011).

Pervez lqbal Cheema, DAG for Pakistan along with Shahzad lqbal, Sr. Joint Secretary and Rana Sajjad Anwar, SO(CCI).

Khawar lkram Bhatti, Addl.A.G.

Wasim Mehmood Malik vice Counsel for Respondent No.1.

P L D 2013 Lahore 663

Before Umar Ata Bandial, C J

Mst. ZAHIDA SULTANA---Petitioner

Versus

DEFENCE HOUSING AUTHORITY LAHORE and others---Respondents

Writ Petition No.9362 of 2011, decided on 27th February, 2013.

Defence Housing Authority Construction and Development Regulations, 2007---

----Regln. 2(y)---Defence Housing Authority Lahore Order (26 of 2002) [F.No.2(4)/2002-Pub. dated 19-9-2002)], Art.7(1)(j)---Constitution of Pakistan, Art, 199---Constitutional petition---Amenity plot---Public use---Conversion of amenity plot located in a residential area for commercial use---Executive Board of the Defence Housing Authority, powers of---Scope---Petitioner was owner of a house located in a residential zone of the Defence Housing Authority ("DHA") and impugned the decision of the Executive Board of the DHA to convert the adjacent plot which was designated "parking area" into a commercial plaza---Contention of the petitioner was that the Executive Board was illegally converting an amenity plot located in a residential area for commercial use---Validity---Parking area, in question, was located in a residential area and had no commercial buildings connected with it in terms of definition of "parking space" contained in Regln. 2(y) of the Defence Housing Authority Construction and Development Regulations, 2007 and could accommodate the overflow of traffic from nearby mosque and school and was open for use by the public---Parking plaza, if constructed at the said land, would be a public convenience facility that promoted accessibility of its area for visitors and on account of its availability for public use for the parking space, was therefore an amenity plot---Parking space did not as such host any trade commercial or business activity---In the light of the Defence Housing Authority Construction and Development Regulations, 2007 and the law, the parking area was not a commercial plot and could not be converted for full-fledged commercial use---Power of the Executive Board of DHA under Art.7(1)(j) Defence Housing Authority Lahore Order, 2002 may be exercised in a manner consistent either with design and characteristics of a parking plaza or of a residential building, however such statutory power may not be exercised to convert an amenity plot to a construction and the use that violated the safeguards implicit in the plot's dedication as a parking space---In the present case a commercial structure was intended to be erected rather than a parking plaza, and on a reasonable interpretation of Regulations, it was fair that such construction in a parking area should be prevented and same should be made to conform the Rules and standards applicable thereto as otherwise the structural harmony, privacy, security and tranquility of the residential neighborhood may be harmed---Impugned construction of a building comprising of a basement plus three floors on the parking area, was therefore excluded as the land in question was not a commercial plot and construction thereon must respect the building byelaws of the zone in which such land was located---High Court disallowed the impugned commercial construction on the parking area, however observed that the DHA was at liberty to consider and authorize other suitable construction on said land that complied with limitations outlined by the High Court and to permit such structure to be erected that did not violate the safety, privacy and tranquility of the neighborhood and complied with the regulations and byelaws applicable thereto---Constitutional petition was allowed, accordingly.

Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers, Housing Authority and 2 others 2010 MLD 1267 and Municipal Committee, Chakwal v. Ch. Fateh Khan and others 2006 SCMR 688 ref.

Khalid Mahmood Sheikh for Petitioner.

Asim Hafeez for Respondent/DHA.

Usman Akram Sahi for Respondent No.4/Bank Al-Habib Limited.

P L D 2013 Lahore 667

Before Umar Ata Bandial, J

PAK MOBILE COMMUNICATION and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.2928 of 2010, heard on 10th May, 2012.

Pakistan Telecommunication (Reorganization) Act (XVII of 1996)---

----Ss.27A, 2(mb) & 2(qb)---Constitution of Pakistan, Arts. 199 & 25---Constitutional petition---Charging of fee for provision of Right of Way by Public Authorities to licensee under the Pakistan Telecommunication (Re-organization) Act, 1996---Enhancement of fee---Petitioner telecommunications company impugned increase the charging and increase of, fee charged by respondent Defense Housing Authority ("DHA") and Cantonment Board, for providing of right of way for use of land for installation of telecom towers---Contention of respondents was that the impugned fee levied and increased on basis of orders passed by Director General Military Lands and Cantonment; and Boards of Management of DHA---Validity---Licence rights conferred on the petitioner visualized and included charging of fee on installation of telecom network by the petitioners and as the business of the petitioners was controlled by the terms and conditions of said licence; therefore, the petitioner's obligation to pay impugned fee could not be disputed---Neither Pakistan Telecommunication (Re-organization) Act, 1996 nor the Regulations made thereunder, had specified the quantum of such fee chargeable by a Public Authority for the provision and use of right of way by a licensee---Neither the Director General Military Lands and Cantonment, nor the Board of Management of Defense Housing Authority ("DHA") had any authority under the Pakistan Telecommunication (Re-organization) Act 1996 to determine the policy regarding charging or rate of impugned fee---Even otherwise, the parent legislation of the Cantonment and DHA lacked any technical or financial mechanism for regulating the provision of telecom services nor for any terms and conditions of charging of fee from telecom service providers---Dispute essentially was the consequence of inaction of the regulator, the Pakistan Telecommunication Authority ("PTA")---High Court directed that a committee be constituted for enjoining the PTA to resolve the dispute between the parties---Said committee would determine the existence and if so, the extent of legal right of the respondents to charge fee in excess of rates and amounts originally fixed by the Inter-Provincial Coordination Committee ("IPCC") and determine whether respondents in comparison to other public authorities render any service or confer any privilege to the class of persons to which petitioners belonged, that justified differential treatment of such persons by the respondent DHA and Cantonment Boards---High Court further directed that the decision of the said committee shall be notified and enforced by the PTA in accordance with law and until such decision was taken, the existing rate of fee would remain in effect---Constitutional petition was disposed of, accordingly.

Ali Raza, Owais Waheed, Mirza Abdullah Baig and Ms. Sophia Khan for Petitioners.

Mirza Viqas Rauf for Cantonment Board/Respondent Nos. 3 to 29.

Asim Hafeez for DHA.

Maqbool Ellahi Malik and M. Umar Riaz for Respondent No.4.

Taffazul Haider Rizvi for Respondents Nos. 16 and 17.

Rana Manzoor Ahmad Khan, Executive Officer, Cantt. Board, Rawalpindi.

Date of hearing: 10th May, 2012.

P L D 2013 Lahore 673

Before Umar Ata Bandial, C J

Syed JAFAR HUSSAIN SHAH and another---Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary Transportation and 3 others---Respondents

Writ Petition No.18105 of 2011, decided on 22nd April, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Public interest litigation---Constitutional petition was filed to bring to the notice of the High Court the rapid rise in the number of vehicular accidents taking place in various cities of the Province---High Court on basis of a report by Punjab Emergency Services, observed that the primary causes could be addressed through better monitoring and enforcement, which fell within the jurisdiction of CTOs and traffic police in the Province---High Court directed that the authorities shall make efforts to improve the monitoring and inspection of vehicle drivers on the road and that the data provided in such regard by the office of the Director General Punjab Emergency Services be published in newspapers to make the public aware of road traffic accidents and the main causes therefor---High Court further directed that the petitioners be provided with access to information and data available with the authorities so that if need be, they could approach the High Court again---Constitutional petition was disposed of, accordingly.

Syed Moazzam Ali Shah for Petitioners.

Ahmed Rauf, Addl. A.G.

Nadeem Iqbal Zahid, Asstt. Director (Legal), on behalf of Respondent No.1.

P L D 2013 Lahore 675

Before Syed Mansoor Ali Shah, J

Rao NAEEM SARFARAZ---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and others---Respondents

Writ Petitions Nos.28685 and 29224 of 2012, decided on 29th November, 2012.

(a) Constitution of Pakistan---

----Arts. 225, 224 & 199---Representation of the People Act (LXXXV of 1976), Ss. 108, 11, 11-A & 52---Constitutional jurisdiction of High Court---Bye-elections, alteration in Schedule---Bar of Art.225 of the Constitution on adjudication of election disputes by High Court---Scope---Constitutional petition impugning notification issued by Election Commission for alteration in bye-election schedule under S.11-A of the Representation of the People Act, 1976---Maintainability---Alternate remedy---Contention of the respondents that the only remedy available to the petitioner was to file an election petition under S.52 of the Representation of the People Act, 1976 and that jurisdiction of High Court was barred under Art.225 of the Constitution---Held, that interference could be made by the High Court under Art.199 of the Constitution if the order under challenge was without lawful authority, coram non judice, and was based on mala fide---Constitutional petition was maintainable.

Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; Lt.-Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan 2008 SCMR 735; Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad and another PLD 2005 SC 52; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others 1994 SCMR 1299 rel.

(b) Constitution of Pakistan---

----Arts. 224(4), 224(1), 224(2) & 199---Representation of the People Act (LXXXV of 1976), Ss. 42 & 108---Bye-elections---Constitutional time frame---Declaration of results---Interpretation of Art.224(4) of the Constitution---Term "election", connotation---Question before the High Court was whether there should be clear 120 days between the polling date for bye-elections and the date of expiry of Assemblies; or did the period of 120 days as stipulated under Art.224(4) began from the time of occurrence of the vacancy of the seat for which bye-election was to be held---Held, that Art.224(4) of the Constitution clearly stated that the period of 120 days started from the date of occurrence of vacancy---Minimum period of 120 days was required between the date of occurrence of vacancy and the date of expiry of the term of the Assembly and therefore, if a general seat fell vacant when the time between the date of occurrence of vacancy and the date of expiry of term of Assembly was less than 120 days, in such a situation, bye-elections could not be held under Art.224(4) of the Constitution---Hypothetically in a situation where the seat fell vacant on the 120th day before the date of expiry of the Assembly, under Art.224(4) of the Constitution bye-elections had to be held within sixty (60) days from the occurrence of the vacancy; and if the "election" was to cover the entire process culminating in a candidate being elected, the remaining period of 60 days was available for the returned candidate to sit in the Assembly and represent the constituency ; however, a closer look at Arts.224(1) & 224(2) of the Constitution read with S.42 of the Representation of the People Act, 1976 showed that the term "election" did not include the time spent in the announcement of the election result for which an extra period of 14 days had been envisaged and therefore, a period of 74 days (60 plus 14 days) was spent on electing a candidate against a vacant seat and the remaining period for the returned candidate to sit in the Assembly and represent his constituency was therefore, reduced to 46 days (which was 120 days minus 74 days)---Constitutional mandate under Art.224(4) of the Constitution appeared to be that unless Forty-Six (46) days or more were available for a candidate to sit in the Assembly, bye-elections could not be held---Argument that 120 days must exist between the polling date and date when the term of the Assemblies expired, was fallacious and did not flow form the Constitution.

Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 rel.

(c) Constitution of Pakistan---

----Art. 254---Constitutional timeline---Failure to comply with requirement as to time does not render an act invalid---Scope and purpose---Article 254 of the Constitution mandated that if any act was not done within a particular time, as provided under the Constitution, the said act would not be invalid because of such reason alone---Constitutional relaxation did not extend an unqualified licence or in any way diluted the importance of constitutional timelines---Extension must be grounded in good cause and justified by bona fide reasons---Purpose of Art.254 of the Constitution was not to permit anyone to defeat or frustrate the Constitution, hence it was not available where the constitutional timeframe was not honoured without any justifiable public interest or for oblique political ends or to override the scheme of the Constitution

(d) Constitution of Pakistan---

----Arts. 254, 224 & 199---Representation of the People Act (LXXXV of 1976), Ss. 108, 11 & 11-A---Bye elections---Extension of constitutional timeline for holding of bye-elections---Public interest---Question before the High Court was whether the Election Commission of Pakistan could extend that polling date for bye-election beyond the period of 60 days as prescribed under Art.224(4) of the Constitution---Held, that reason for the extension in the present case was an imminent threat of a law and order situation and security of the public at large and it was for such eventualities that the Constitution provided a relaxation for constitutional timelines under Art.254 of the Constitution---Polling date, in the present case, was extended in the public interest and to avoid the threat of a law and order situation, which gave a lawful justification for extending time---Such extension, did not upset the constitutional minimum of 46 days to represent the constituency as a Member of the Assembly, and was therefore, valid.

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

----Preamble & S. 108---Constitution of Pakistan, Preamble & Art.224---Bye-elections---Expense and wastage of funds---Representation of the people---Argument that bye-elections would result in wastage of funds could not be held over and above the constitutional principle of representation of the people in the Assemblies through their representatives, which was an essential characteristic of a Republic and could not be compromised.

Ch. Ahmed Uzair for Petitioner (in W.P. No.28685 of 2012) and Dr. Khald Ranjha for Petitioner (In W.P.No.29224 of 2012).

Syed Abdul Hayee Gillani, Additional Attorney General for Pakistan.

Ch. Muhammad Hussain, Dy. Attorney General for Pakistan.

Shan Gull, Addl.A.G.

Rashdeen Nawaz on behalf of Respondent No.3.

Muhammad Umer Riaz and Saqib Haroon, for Respondent No.4.

Muhammad Ijaz Anwar for Voter Gujrat NA-107.

Nadeem Yousaf Rana for Respondnet No. 3 (in W.P.N o.29224 of 2012).

Muhammad Naeem Akhtar, Asstt. Director (Legal).

Ali Akhtar Khan, Law Officer, Election Commission of Pakistan.

Raja Amer Khan and Ch. Naseem Ahmed, Respondents No.4 and 5 (in W.P.No.29224 of 2012) in person.

Date of hearing: 29th November, 2012.

P L D 2013 Lahore 689

Before Umar Ata Bandial, C J

Messrs OLIVE GRILL RESTAURANT through Sole Proprietor---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Home Department and others---Respondents

Writ Petition No.23510 of 2012, decided on 10th December, 2012.

(a) Prohibition of Smoking and Protection of Non-Smokers Health Ordinance (LXXIV of 2002)---

----Ss. 2(c) & 3---S.R.O. 653(I)/2003, dated 3-7-2003---Constitution of Pakistan, Art.199---Constitution petition---Prohibition on smoking of Sheesha in cafes imposed by City District Government---Powers to declare no-smoking places of public work or use---Designated smoking areas---"Place of public work or use", connotation and meaning of---"Open place" was meant to be a place that was not either of public work or of public use---In the context of S.2(c) of the Prohibition of Smoking and Protection of Non-Smokers Health Ordinance, 2002, an "open place" is a place that first of all did not have or cater public interaction and secondly was open in the sense of being "not closed, settled, fixed or terminated"---Any place that was open to sky but was cordoned in a manner to accommodate persons engaging in smoking within the enclosed restricted area could not be described as an "open place"---"Open place in such context must necessarily be a place where an individual exercises his preference of smoking individually and not collectively---Consequently, City District Government taking of prohibitory action against enclosed places open to the sky situated within "Sheesha Cafes" was lawful within meaning of S.3 read with S.2(c) of the Prohibition of Smoking and Protection of Non-Smokers Health Ordinance, 2002.

Black's Law Dictionary 9th Edn. rel.

(b) Words and Phrases---

----"Place"---Meaning.

Black's Law Dictionary 9th Edn. rel.

(c) Words and phrases---

----"Open place"---Meaning.

Black's Law Dictionary 9th Edn. rel.

M. Shahzad Shaukat for Petitioner.

Ahmad Rauf, Addl. A.G.

Iftikhar Ahmad Mian for CDGL

Muhammad Abdullah Amin for Applicant in C.M. No.3708 of 2012.

Muhammad Younas Zahid, Deputy District Officer, Environment for Respondent No.2.

Syed Zulfiqar Hussain, Consusltant, Anti-Drug/Narcotics.

P L D 2013 Lahore 693

Before Syed Mansoor Ali Shah, J

D.G. KHAN CEMENT COMPANY LTD. through Chief Financial Officer---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and 3 others---Respondents

Writ Petition No.3515 of 2012, heard on 22nd November, 2012.

(a) Constitution of Pakistan---

----Part II, Chap. 1 [Arts 8 to 28]---Democracy---Fundamental Rights---Purpose, scope and limitations.

Fundamental rights and their protection is essential to a modern democracy. "Take human rights out of democracy, and democracy has lost its soul. Human rights are the crown jewels of democracy. A democracy without human rights is like an empty vessel." However, even in a democracy fundamental rights have limitations, this is because "in a democratic society, a human right may be limited to ensure the very existence of the State; to ensure its continued existence as a democracy; to ensure public health; to ensure public education; as well as several other national causes. These are the purposes for which a democratic society may limit the rights of its members. This demonstrates the special nature of democracy, which is based on the idea that the state protects the rights of the individual, and the individual protects the State - its safety and peaceful existence."

A. Barak, Proportionality (Cambridge), p.161 ref.

(b) Constitution of Pakistan---

----Part II, Chap. 1 [Arts 8 to 28] & Preamble---Fundamental Rights---Sub-constitutional limitations or "reasonable restrictions" on Fundamental Rights---Proportionality---Scope---Laws could restrict human rights, but only in order to make conflicting rights compatible or to protect the rights of other persons or important community interests---Any restriction of human rights not only needs a constitutionally valid reason but also needed to be proportional to the rank and importance of the right at stake---"Reasonable restriction" or any sub-constitutional limitation or law; on a constitutional fundamental right must also flow from the Constitution to protect lawful rights and interests of the others or the society at large---"Law" or "reasonable restrictions" in pith and substance must promote and advance fundamental rights of the community at large in order to qualify as a limitation to override the fundamental rights guaranteed to an individual under the Constitution---"Law" or the "reasonable restrictions" must be fashioned to uphold the constitutional themes of democracy, freedom, equality, tolerance, social justice and advance the principles of policy under the Constitution---Roots of sub-constitutional limitation ("law" or "reasonable restrictions") must be grounded in the Constitution itself, only then can they possess the constitutional character and strength to take away the Fundamental Rights of an individual.

D. Grimm "Human Rights and Judicial review in Germany" in D.M. Beatty (ed) p.139/140 barak ref.

(c) Constitution of Pakistan---

----Preamble, Part II, Chap. 1 [Arts 8 to 28] & Part II, Chap. 2 [29 to 40]---Universal Declaration of Human Rights, 1948, Art.29---Canadian Charter of Rights and Freedoms, S. 1---Constitution of Republic of South Africa, Art.36---Federal Constitution of the Swiss Confederation AS 2007 5225 (3)---Interpretation of Constitution---Sub-Constitutional limitations on Fundamental Rights---Test of proportionality, necessity and public good---Scope---Examination of comparative constitutional literature.

S. v. Makwanyane, 1995 (3) SA 391; Aharon Barak (Cambridge), 2012; Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230; Messrs East and West Steamship Company v. Pakistan and others PLD 1958 SC (Pak) 41 and The State of Madras v. V.G. Row AIR 1952 SC 196 rel.

(d) Interpretation of Constitution ----

----Principle of proportionality---Components of the principle of proportionality, i.e. proper purpose, rational connection, necessary means and proportionality stricto sensu; explained.

S. v. Makwanyane, 1995 (3) SA 391; Aharon Barak (Cambridge), 2012; Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230; Messrs East and West Steamship Company v. Pakistan and others PLD 1958 SC (Pak) 41 and The State of Madras v. V.G. Row AIR 1952 SC 196 rel.

(e) Sales Tax Act (VII of 1990)---

----Ss. 8(1)(ca), 8-A, 8(1)(d) & 7---Constitution of Pakistan, Arts.23, 24 & 199---Constitutional petition---Protection of property rights---Sales tax---Determination of tax liability---Claim/deduction of input tax against output tax---Cases in which tax credit was not allowed---Deduction of input tax claimed by the petitioner/taxpayer was denied under S.8(1)(ca) of the Sales Tax Act, 1990 on the ground that the supplier had failed to deposit the sales tax in the treasury---Contention of the petitioner was that it was being penalized for the default and fault of another person, the supplier, which amounted to an unreasonable restriction on the right of the petitioner to use his property under Art.23 of the Constitution---Validity---Real question to be determined was whether S.8(1)(ca) of the Sales Tax Act, 1990 passed the test of "reasonable restriction" or "law" under Arts.23 & 24 of the Constitution and whether the same sufficiently and proportionally advanced public interest; and whether the harm to the constitutional fundamental right of the petitioner was proportional to the benefit gained from the said limitation by the society or community at large---Section 8(1)(ca) of the Sales Tax Act, 1990 imposed liability of person A on person B in the absence of any relationship between the two---Every person had a separate legal character and enjoyed distinct rights and liabilities under the law---Imposition of the liability of one over the other was opposed to basic fundamentals of law and offended due process, logic and rationality and axed an innocent person for the wrong of the other---Said S.8(1)(ca) diminished the legal character of a person under the law by implying that every person was the agent of the other; which assumption also negated free and fair competition in a market economy---Section 8(1)(ca), therefore, did not advance any public interest or passed the test of proportionality and was illogical, absurd and unreasonable---In case of "collusion" or "tax fraud" S.8(1)(d) of the Act was attracted which provision disentitled a registered person from deducting or claiming input tax if there was a "fake invoice"; and therefore, contention of the respondents/ Department urging High Court to read collusion and fraud into S.8(1)(ca) was not convincing---Non-deposit of tax in the government treasury by the supplier was dealt under S.8-A of the Sales Tax Act, 1990 which simply required that the department had to establish that the buyer had "knowledge" that the supplier would not (eventually) deposit the sales tax in the exchequer---Impugned show-cause notice does not, however, set up a case against the petitioner under S.8-A of the Act, which was different from S.8(1)(ca) and is triggered by the requirement of "knowledge" of the past practice of the supplier and the Department had therefore, mistakenly tried to read S.8-A into S.8(1)(ca)---High Court declared that S.8(1)(ca) of the Sales Tax Act, 1990 besides being illogical and absurd, offended Arts.23 & 24 of the Constitution and was therefore unconstitutional and was accordingly struck down---Constitutional petition was allowed, in circumstances.

Messrs Elahi Cotton Mills Limited and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others, (PLD 1997 SC 582), Messrs Chenone Stores Limited v. The Federal Board of Revenue etc. 2012 PTD 1815 and In the matter of Reference No.2 of 2005 by the President of Pakistan PLD 2005 SC 873 and Sheikhoo Sugar Mills Ltd. Government of Pakistan and others 2001 PTD 2097 =2001 SCMR 1376 ref.

Civil Writ Petition No.6573/2007 and Optigen Ltd., Fulcrum Electronics Ltd and Bond House Systems Ltd. v. Commissioners of Customs and Excise, (Joined Cases C-354/03, C-355/03 and C-484/03) distinguished.

Imtiaz Rasheed Siddique and Barrister Shehryar Kasuri for Petitioner.

M.M. Akram, Muhammad Ajmal Khan, Muhammad Farooq Sheikh and Amir Umer Khan for Petitioners in connected petitions.

Nasir Javed Ghuman, Standing Counsel for Government of Pakistan.

Muhammad Yahya Johar for Respondents.

Ehsan-ur-Rehman Sheikh, Sajjad Haider Rizvi, Mian Qamar-ud-Din Ahmed and Sh. Nadeem Ahmad for Respondents in connected petitions.

Abdul Latif Tariq on behalf of Ch. Muhammad Zafar Iabal for Respondents (in W.P.No.9575 of 2012.)

Dr. Muhammad Iqbal, Chief Tax Policy, FBR, Muhammad Muzaffar Khan Lashari, Commissioner, Inland Revenue, LTU, Zone-I, Lahore.

Dr. Ishtiaq Ahmad, Addl. Commissioner, Inland Revenue, Lahore.

Sher Hassan Parvez, Research Associate/Civil Judge, LHCRC Research Assistant.

Date of hearing: 22nd November, 2012.

P L D 2013 Lahore 711

Before Umar Ata Bandial, C J

ASHFAQ AHMAD and others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Writ Petition No.1137 of 2013, decided on 11th February, 2013.

Constitution of Pakistan---

----Arts. 224(4) & 199---Representation of the People Act (LXXXV of 1976), S.108---Constitutional petition---Bye-election---Election Commission of Pakistan, discretion of---Time of election and bye-election---Constitutional deadline requiring minimum unexpired term of 60 days of the Assembly, for a vacancy to be filled vide a bye-election, was implied and not express---Petitioner impugned schedule of bye-election on the ground that under Art.224 of the Constitution a bye-election should be held at least 60 days prior to the expiry of the legislative term of the Assembly; whereas the present bye-election was scheduled only 47 days before the expiry of the Assembly, and as such offended the Constitutional principle and should not therefore, be held---Validity---Article 224(4) of the Constitution did not expressly mandate/require a minimum unexpired legislative term of 60 days of the Assembly in which a vacancy had occurred in order for a bye-election to be held to fill such vacancy; however, it was clear that the period of unexpired legislative term of the Assembly was a crucial factor, which if less that 120 days from the occurrence of the vacancy, did not contemplate a bye-election to be held to fill such vacancy---Election Commission of Pakistan (ECP) performed its function autonomously except where exercise of its discretion suffered from illegality or unreasonableness in which even High Court may interfere with the performance of such functions---Notwithstanding the right of the voters to be duly represented in the Assembly, Constitution did envisage their non-representation where a vacancy occurred on a date less than 120 days prior the expired legislative term; for which some guidance needed to be derived from the Constitutional criterion to balance the financial cost of the bye-election with non-representation of the constituency---In the present case, unexpired legislative term of the Assembly was only 13 days short of the implied minimum term of 60 days; and as the constitutional deadline in the matter was not express, therefore, the Election Commission of Pakistan possessed the discretion to strike a balance---Election Commission of Pakistan, in the present case, therefore, exercised its discretion in accordance with the constitutional provisions and reasonably, even though the present was a borderline case---Constitutional petition was dismissed, in circumstances.

Muhammad Azhar Siddique v. Government of Punjab PLD 2010 Lah. 138 rel.

Sikandar Khan for Petitioners.

Muhammad Naseem Kashmiri, D.A.G.

S.M. Tariq Qadir, Provincial Election Commissioner, Punjab and Ali Akhtar, Law Officer, Election Commission of Pakistan.

P L D 2013 Lahore 716

Before Syed Mansoor Ali Shah, J

GULISTAN TEXTILE MILLS LTD.---Plaintiff

Versus

ASKARI BANK LTD. and others---Defendants

C.O.S. No.128 of 2012, decided on 27th December, 2012.

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

----O. VII R. 11---Rejection of plaint---Power of the court to reject plaint under O.VII, R.11, C.P.C.---Scope---Court enjoyed an independent, suo motu and sua sponte power to examine the plaint at any stage of the suit under O.VII, R.11, C.P.C. under the wisdom that the court could always, nip a frivolous suit in the bud, by rejecting the plaint in order to retain its docket and time for more serious claims---O.VII, R.11, C.P.C. contemplated firstly that a stillborn suit should be properly buried, at its inception, so that no further time is consumed on a fruitless litigation and secondly, it gave the plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may found a properly constituted case---Such power is grounded in good public policy and the court enjoyed an insular power under O.VII, R.11, C.P.C. to examine the plaint, primarily on the basis of the contents of the plaint---For the court it did not matter if the defendants in a suit had been issued summons or applications for leave to defend or written statements have been filed by the defendants or even whether the defendants were in court to defend their positions; the court could still proceed unilaterally against the plaintiff alone without engaging the other party, if the court was of the view that the plaint was liable to be rejected.

Mst. Shamim Tahira and others v. Zarai Taraqiyati Bank of Pakistan Ltd. through Manager and another 2007 CLD 778; Platinum Insurance Company's case 1997 MLD 2394; Falcon Ventures Pvt. Ltd. through Chief Executive, Iftikhar Ahmad v. Punjab Banking Court No.II, Lahore and another 2004 CLD 726; Sheikh Muhammad Kashif v. Askari Leasing Limited through Manager/Chief Executive of Branch/Recovery Officer 2004 CLD 1645; Manzoor Ahmad and another v. Agricultural Development Bank of Pakistan through Manager Nankana Sahib Branch and 3 others 2005 CLD 653; Muhammad Azwar Siddiqui v. Chief Executive Union Leasing Ltd. and 21 others 2006 CLD 946; Mst. Shamim Tahira and others v. Zarai Taraqiyati Bank of Pakistan Ltd. through Manager and another 2007 CLD 778; Messrs Multimed Marketers through Managing Partner and 7 others v. United Bank Limited through Manager 2007 CLC 344; distinguished.

PLD 1967 Dacca 190 and AIR 2003 SC 759 rel.

(b) Words and Phrases---

----"Sua sponte"; meaning of---Latin: "of their own accord"---Describes an act of authority taken without formal promoting from another party.

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

----Ss. 7(2), 9 & 10(8)---Civil Procedure Code (V of 1908) O.VII, R.11---Procedure of Banking Court---Power of Banking Court to reject plaint if the same did not disclose a cause of action---Scope---Contention of the plaintiff was that the plaint could not be rejected under O.VII, R.11, C.P.C. before considering application for leave to defend filed by the defendants---Held, that inherent power of the Banking Court under O.VII, R.11, C.P.C. preceded the statutory obligation of the Banking Court under S.10(8) of the Financial Institutions (Recovery of Finances) Ordinance, 2001---Banking Court had a primary obligation to examine the plaint and reject it, inter alia, if the same did not disclose a cause of action and such power could be exercised at any stage of the suit and it did not matter if an application for leave to defend, or written statement had been filed by the defendant---Power of the court under O.VII, R.11, C.P.C. read with S.7(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 preceded and prevailed over the power of the court under S.10(8) of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826; Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCMR 459; S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338; Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian Abdul Latif and others PLD 2008 SC 371; Bank Alfalah Limited v. Iftikhar A. Malik 2003 CLD 363; ARY Traders (Pvt.) Ltd. v. Muslim Commercial Bank Ltd. 2003 CLD 1601; Raja Ali Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741; Abdul Rehman v. Sher Zaman and another 2004 CLC 1340; Saleem Bhai and others v. State of Maharashtra and others AIR 2003 SC 759; Samar Singh v. Kedar Nath and others AIR 1987 SC 1926; I.T.C. Limited v. Debts Recovery Appellate Tribunal and others (1998) 2 SCC 70; P.R. Sukeshwala and another v. Dr. Devadatta V.S. Kerkar and another AIR 1995 Bom. 227; and Burmah Eastern Ltd v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190 rel.

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

----S. 9---Standard of plaint in a suit filed under the Financial Institutions (Recovery of Finances) Ordinance, 2001---Essential requirements enumerated.

Plaint filed in a regular suit has to meet the standards of "pleadings" and "plaint" given under Orders VI and VII of the C.P.C. Plaint under the Financial Institutions (Recovery of Finances) Ordinance, 2001, however, has a special format, requiring a higher standard of precision. The plaint under the special law has to be tailored strictly in accordance with the statutory standards set-out and given in section 9 of the Ordinance i.e., the plaint must bring to the Banking Court a dispute between the "financial institution" and the "customer" only. It must arise out of the contractual relationship indicating default in fulfilment of any "obligations" of "Finance." It must indicate the contractual breach, which is to be monetized and reflected in the Statement of Account (certified in case of a financial institution), which has to accompany the plaint. In addition, the plaint can carry a claim for damages if it arises out of the Finance Agreement between the parties but not tortious claims simpliciter. Such is the standard required of a plaint in a banking suit under section 9 (1) and (2) of the Ordinance. The "cause of action" to be pleaded in a plaint under the Ordinance must be fashioned to meet the above requirements. Narration of general allegations of breach without reference to the Finance Agreement or allegation of damages without any monetized quantification of the damage caused or absence of reference to the precise violation of the finance agreement (indicating the relevant clause) does not constitute a plaint that meets the standard of section 9 of the Ordinance.

(e) Administration of Justice---

----Non-actionable plaint was a non-starter and in the interest of administration of justice and good judicial governance, it was best if such a plaint, which did not disclose a cause of action, was removed from the docket of the court at the earliest.

Nasimuddin Siddiqui and another v. United Bank Limited and others 1998 CLC 1718; Citi Bank N.A. v. Syed Shahanshah Hussain 2009 CLD 1564; Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd. 2012 CLD 337 and Messrs United Bank Ltd., Karachi v. Messrs Mohibali Tannery Ltd., Karachi and 8 others PLD 1994 Kar 275 rel.

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

----O. VII, Rr. 1 & 11---Examination of plaint---Standard of plaint---"Cause of action", meaning and connotation of---Essential elements of "cause of action"---Cause of action was the foundation of a law suit and was the totality of material facts which it was necessary for the plaintiff to allege and prove in order to succeed---Elements of a cause of action were: first, the breach of duty owing by one person to another; second the damage resulting to the other from the breach---"Cause of action" has been held from the earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse---Test of "cause of action" was that if what the plaintiff stated was taken to be correct, did it entitle him to a relief or not in law---Cause of action meant the infringement of the right which furnished occasion for the action and must be antecedent to the institution of a suit and on the basis of it the suit must be filed---Plaint if it did not disclose a cause of action, a court will reject such a plaint---Plaint must, therefore, be pregnant with a lawful cause of action for the suit to progress and fructify---For court it would be meaningless and futile to proceed with a suit if upon examination the court found it to be devoid of any cause of action---Purpose of conferment of powers under O.VII, R.11, C.P.C. was to ensure that litigation which was meaningless and bound to prove abortive should not be permitted to occupy the time of the court---Obligatory upon the courts to judicially assess, ideally at the very beginning, if the plaint disclosed a "cause of action" and if it did not, reject the same without further ado.

PLD 1959 SC 356; (2004) 3 SCC 277; 1991 SCMR 2030; 2000 CLC 63; 1986 Supp SCC 315; (1998) 2 SCC 70 and PLD 1967 Dacca 190 rel.

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

----Ss. 9 & 7---Suit under the Financial Institutions (Recovery of Finances) Ordinance, 2001---Examination of plaint---Standard of plaint---Plaint under S.9 of the Ordinance must disclose a cause of action which spelled out the "default in fulfilment of any obligation with regard to any finance" and for this reason that S.9(2) of the Ordinance prescribed that the plaint must be supported by statement of account, which was applicable to both the parties i.e., customer and the financial institution---Additional requirement existed for the financial institution to get their statement of account certified under the Bankers' Books Evidence Act, 1891 and such requirement of the Statement of Account is to quantify the default complained of under the Finance Agreement(s) entered between the parties---Default or breach, arising out of the contract between the parties or in fulfilment of any obligation with regard to any finance, must be numerically quantified and reflected through the Statement of Account---Section 9(2) of the Ordinance further stated that the plaint shall be supported by all other relevant documents relating to the grant of finance.

Salman Butt, Munawar-us-Salam and Shahzad A. Elahi for Plaintiff.

Mansoor Ali Ghangro and Serjeel Mowahid for Askari Bank Limited/Defendant No.1.

Barrister Hassan Nawaz, Advocate for Habib Metropolitan Bank Limited/Defendant No.2.

Salman Akram Raja and Barrister Haroon Dugal, for Bank Al-Falah Limited/Defendant No.17 in COS No.128 of 2012, for Defendant No.13 in COS No.129 of 2012, for Defendant No.10 in COS No.133 of 2012 and for Defendant No.11 in COS No.134 of 2012.

Imtiaz Rasheed Siddiqui and Barrister Shehryar Kasuri for KASB Bank/Defendant Nos.13 and 31 in COS No.128, for Respondents Nos.10 and 22 in COS No.129 of 2012, for Defendants Nos. 8 and 14 in COS No.133 and for Defendants Nos.8 and 17 in COS No.134 of 2012.

Akhtar Javaid for Bank of Khyber/Defendant No.5 in COS No.128 of 2012.

Muhammad Akram Pasha for Burji Bank Limited/Defendant No.16 in COS No.128 of 2012, for Defendant No.12 in COS No.129 of 2012 and for Defendant No.10 in COS No.134 of 2012.

Ashar Elahi for Defendant No.23 in COS No.128 of 2012, for Defendant No.17 in COS No.129 of 2012 and for Defendant No.16 in COS No.133 of 2012.

Salman Faisal, Umer Liaqat and Ms. Farrah Malik for NBP Leasing Limited/Defendant No.28.

Majid Ali Wajid for Standard Chartered Bank (Pakistan) Limited/Defendant No.20 in COS No.128 of 2012, Defendant No.15 in COS No.129 of 2012 and Defendant No.15 in COS No.133 of 2012.

Arshad Nazir Mirza for Defendants Nos.12, 17 and 27 in COS No.128 of 2012, for Defendants Nos.7, 8 and 9 in COS No.129 of 2012, for Defendants Nos.5, 6 and 7 in COS No.133 of 2012 and for Defendants Nos.6, 7 and 18 in COS No.134 of 2012.

Abdul Majeed Chohan and Imran Muhammad Sarwar for Defendants Nos. 4, 8, 9 and 21 in COS No.128 of 2012, for Defendants Nos.5, 6 and 16 in COS No.129 of 2012 for Defendant No.4 in COS No.133 of 2012 and for Defendant No.5 in COS No.134 of 2012.

Rana Haseeb Ahmad Khan for Defendant No.18 in COS No.128 of 2012.

Mrs. Samia Faiz Durrani along with Sh. Nadeem Anwaar, Advocates for Defendant/First Habib Modarba.

Muhammad Aqeel Malik for Defendant No.4 in COS Nos.129 of 2012 and 134 of 2012.

Kazim Hasan for Defendants Nos.14, 25 and 29 in COS No.128 of 2012, for Defendants Nos.18 and 20 in COS No.129 of 2012, for Defendant No.11 in COS No.133 of 2012 and for Defendant No.13 in COS No.134 of 2012.

Assisted by Muhammad Amir Munir, Rai Muhammad Khan and Sher Hassan Parvez, Research Associates, Research Centre, Lahore High Court, Lahore.

Dates of hearing: 26th and 27th December, 2012.

P L D 2013 Peshawar 1

Before Dost Muhammad Khan, C.J and Mrs. Irshad Qaiser, J

Mst. HUSSAN JAMALA and another---Petitioners

Versus

GOVERNMENT OF KHYBER PUKHTUNKHWA through Secretary, Home and Tribal Affairs, Peshawar---Respondent

Writ Petition No.2976 of 2011, decided on 12th September, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Death compensation---Uniform Compensation Package---Entitlement of parents---Petitioners were parents of a police official who met Shahadat during firing by terrorists on police party---Grievance of petitioners was that Uniform Compensation Package was given to widow of their son and they had been deprived of the same---Validity---Uniform Compensation Package was death compensation allowance given by Government to those who embraced Shahadat and sacrificed their lives for security / cause of nation and homeland---Such compensation could come within the definition of Diyat amount payable in normal murder case and was covered in the definition of Tarka---After Shahadat of a police official, his legacy had to be devolved amongst the Quranic legal heirs---Principle regarding inheritance of Islamic Law would and should be applicable instead of any rule or notification---The Holy Quran is a complete code of life and verdicts in the Holy Quran and sayings of Holy Prophet Muhammad (P.B.U.H.) are the supreme law for Muslim Ummah---No preference could be given to rules / orders / notifications against the supreme law laid down by Allah in the Holy Quran and Holy Prophet Muhammad (P.B.U.H.)---High Court directed competent authority to distribute shares amongst legal heirs of deceased in accordance with Sharia---Petition was allowed accordingly.

Federal Government v. Public-at-Large PLD 1991 SC 731 fol.

(b) Islamic Law---

----Inheritance---Issueless male deceased---Shares of legal heirs---Deceased was survived by widow, father and mother---Entitlement---Widow was entitled to her share to the extent of 1/4 (in absence of child) as sharer while father and mother were entitled to take each one sixth 1/6 as sharers if there was no child or son's child how low so ever, while for remaining share, parents were entitled to receive the same as residuary---According to Islamic Law in default of residuaries of first class i.e. sons and son's son how low so ever and daughters and son's daughter how low so ever when not sharers, the residue devolved on the father as class 11 of residuaries while widow could not claim any share as residuary etc.

Amjid Ali for Petitioners.

Naveed Akhtar, A.A.-G. for Respondent.

Date of hearing: 12th September, 2012.

P L D 2013 Peshawar 5

Before Mrs. Irshad Qaiser, J

MUHAMMAD SAEED and 3 others---Petitioners

Versus

MUMTAZ and 14 others---Respondents

Civil Revision Petition No.681-P of 2012, decided on 31st August, 2012.

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

----Arts.90, 91, 92, 93, 94, 95, 96, 97, 98, 100 & 129---Presumptions---Scope---Presumptions mentioned in Arts. 90 to 95 of Qanun-e-Shahadat, 1984, are obligatory whereas presumption mentioned under Arts. 96 to 98, 100 and 129 of Qanun-e-Shahadat, 1984, are permissive in nature and court may or may not raise a presumption.

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

----S. 8---Qanun-e-Shahadat (10 of 1984), Arts. 72, 78, 79 & 100---Civil Procedure Code (V of 1908), S.115---Suit for recovery of possession---Thirty years old document---Presumption---Concurrent findings of fact---Plaintiffs claimed to be owners of suit land and sought recovery of its possession---Defendants relying upon agreement to sell dated 1-6-1967 asserted that their predecessor-in-interest purchased suit land from predecessors-in-interest of plaintiffs and since then they were owners in possession---Trial Court and Lower Appellate Court, concurrently decreed suit and appeal in favour of plaintiffs---Plea raised by defendants was that presumption of truth was attached to agreement to sell in their possession---Validity---Presumption was attached to thirty years old document, which had come from proper custody---Court had discretion to presume that signature / thumb impression and every other part of such document, which purported to be in hand writing of any person, was in that person's handwriting and it was duly executed by the person by whom it was purported to be executed---Proof of such agreement would be sine qua non for proving ownership of defendants---Though provisions of Art.79 of Qanun-e-Shahadat, 1984, were not applicable as agreement was allegedly executed on 1-6-1967 but in view of Art. 78 of Qanun-e-Shahadat, 1984, document of sale agreement allegedly said to have been signed/thumb impressed by predecessors-in-interest of plaintiffs was to be proved to be their thumb impression---Plaintiffs in their statement had totally denied execution of any deed between predecessors-in-interest of parties and stated that it was fake and bogus document---Defendants were to prove that agreement in question had been thumb impressed by predecessors-in-interest of plaintiffs and further that amount of sale consideration was also paid to them---Except statement of defendant, no evidence was produced to prove the unregistered agreement---Defendants were expected to produce best evidence to prove the agreement but statements made by defence witnesses in their cross-examination falsified contents of alleged agreement---Concurrent findings of both the courts below in respect of factual controversy required no interference by High Court in exercise of revisional jurisdiction---Revision petition was dismissed in circumstances.

Javed Ali for Petitioners.

Nemo for Respondents.

Date of hearing: 31st August, 2012.

P L D 2013 Peshawar 9

Before Miftah-ud-Din Khan and Mrs. Irshad Qaiser, JJ

Messrs NEELAB CNG FILLING STATION through Managing Director---Appellant

Versus

MANAGING DIRECTOR, SUI NORTHERN GAS PIPELINE LTD. and 4 others---Respondents

R.F.A. No.480 of 2010, decided on 3rd October, 2012.

Khyber Pakhtunkhwa Consumers Protection Act (VI of 1997)---

----S. 3---Civil Procedure Code (V of 1908), S. 9 & O.VII, R.10---Civil courts, jurisdiction of---Maxim "ubi jus ibi remedium (where there is a right, there is a remedy)---Applicability---Plaintiff filed suit assailing excessive bill sent by gas authorities---Trial Court returned the suit under O. VII, R., 10 C.P.C. to seek remedy before Consumer Court---Validity---Maxim "ubi jus ibi remedium" (where there is a right, there is a remedy) was a fundamental principle of law---Any person having a right had corresponding remedy to institute suit in court, unless jurisdiction of court was barred---By virtue of provision of S.9 C.P.C., Civil Courts were granted general jurisdiction to try all suits of civil nature---Wherever object of proceedings was the enforcement of civil rights, a Civil Court had jurisdiction to entertain suit independently of statute unless its cognizance was either expressly or impliedly barred---Section 3 of Khyber Pakhtunkhwa Consumers Protection Act, 1997, was in addition to and not in derogation of the provision of any other law for the time being in force and the same did not oust jurisdiction of Civil Court---Trial Court had misconceived the matter and wrongly presumed that with establishment of Consumer Court, their jurisdiction over some matters had been ousted---High Court set aside order passed by Trial Court and remanded case for decision afresh---Appeal was allowed accordingly.

1988 PCr.LJ 39 ref.

Muhammad Yasir Khattak for Appellant.

Ghulam Shoaib Jally for Respondents.

Date of hearing: 3rd October, 2012.

P L D 2013 Peshawar 12

Before Mian Fasih-ul-Mulk and Rooh-ul-Amin Khan, JJ

MUHAMMAD FAISAL KHAN---Petitioner

Versus

Mst. SADIA and another---Respondents

Writ Petition No.1405 of 2011, decided on 10th October, 2012.

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

----S.10---Pre-trial proceedings---Compatibility with Muslim Law---Scope---Provision of S.10 of West Pakistan Family Courts Act, 1964 were fully in consonance with Muslim Law.

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

----S. 5, Sched. & S.10---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2---Dissolution of marriage on ground of Khula'---Scope---Consent of husband for such dissolution would not be necessary---Judge, in case of husband's dis-agreement to dissolve marriage, could determine question as to whether spouses, if they continued living together, could observe limits of God or not---Duty of Judge to make genuine attempt for reconciliation between spouses---Judge in case of failure of reconciliation efforts could pass forthwith decree for dissolution of marriage---Where Judge while passing such decree, observed that wife was not willing to live with husband without any fault of his, then Judge would have no option but to restore to husband dower (Haq-e-Mehr) received by wife at time of marriage---Wife seeking divorce for having developed extreme hatred and disliking for her husband would have to restore the consideration of marriage (dower) to husband---Where in view of Judge husband by his arrogant, cruel and obnoxious nature or behavior compelled wife to seek "Khula", then she would be entitled to all due benefits along with dissolution of marriage---Principles and illustration.

Mst. Bilqis Fatima v. Najmul Ikram Qureshi PLD 1959 Lah. 566; Shahid Javed v. Sabba Jabeen and others 1991 CLC 805 and Sadiq Rasool Khan v. The Additional District Judge, Lakki Marwat 1991 MLD 1732 rel.

(c) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2---West Pakistan Family Courts Act (XXXV of 1964), S. 5, Sched. & 10---Khula, right of---Meaning---Burden of proof---Scope---Exercise of right of Khula by wife and duty of court---Scope---Khula being right of wife to seek divorce by returning her dower to husband---Wife could exercise such right where circumstances made it impossible for her to live with her husband within limits of God---Where compelling the wife to live with her husband would give birth to hateful union or where she was not ready to live with her husband at any cost, then court would be bound to grant her right of "Khula" irrespective of the fact whether she claimed or omitted to claim such right in her plaint or failed to prove grounds, other than "Khula", taken by her for dissolution of marriage---Principles.

The right of the wife to claim dissolution of her marriage is recognized by the Holy Quran and Hadees and the technical term for the wife's right to divorce by returning her dower is called "Khula". "Khula" is an Arabic term, which literally means "to take out" and "remove". The definition of "Khula" as explained by the famous Hanifa Mujtahid Ibn-e-Human is as follows:

"To remove the union of marriage in exchange of financial settlement within the words of "Khula".

"Khula" is release from matrimonial bond and can be exercised by the wife, if the circumstances divulge that it is impossible for the parties to live within the limits prescribed by Allah and the compelling of wife to live with her husband, will give birth to a hateful union, then the Court is bound to grant the right of "Khula" to a woman where she has expressly claimed or has omitted to claim in her pleadings or in case the other ground for seeking dissolution of marriage could not be proved.

If the dissolution of marriage is claimed on any ground recognized under Dissolution of Marriages Act, 1939, then it is the duty of the wife and the burden lies on her shoulders to prove the allegation levelled for dissolution of marriage. If she successfully discharges her burden and proves the allegations, then the Court shall grant her decree for dissolution of marriage along with other benefits. But if she fails to prove the allegation, then the mere fact that the wife could not establish her allegation qua ground taken for dissolution of marriage would not disentitle her for dissolution of marriage on ground of "Khula". If the wife fails to substantiate her case on the grounds claimed in the plaint for dissolution of her marriage then the court is under legal obligation to dissolve the marriage but on the basis of "Khula", particularly when the wife is not ready to live with her husband at any cost.

Mst. Bilqis Fatima v. Najmul Ikram Qureshi PLD 1959 Lah. 566 and Shahid Javed v. Sabba Jabeen and others 1991 CLC 805 rel.

Under Muslim Law as well as the law of Pakistan, the wife is entitled to terminate the contract of her marriage one sidedly like "Talaq", but for the same she shall remit the dower amount, if not received, or pay it back to the husband, if so received. Where there is no dispute existing between the parties regarding dower, then in terms of proviso to section 10(4) of the West Pakistan Family Courts Act, 1964 a decree for dissolution of marriage, shall be granted to the wife immediately on the failure of reconciliation in pre-trial proceedings. However, if a dispute arises and the wife claims dissolution of marriage, on recognized grounds for dissolution of marriage, then court shall proceed with the matter and record evidence of the parties to ascertain her entitlement for dower and other benefits. If the courts, after pro and contra evidence arrives at a conclusion that the husband has compelled the wife by his arrogant, cruel and obnoxious nature or behaviour, then she is to be held entitled for all the due benefits along with dissolution of marriage. On the other hand, if the court finds that the wife is adamant not to reside with the husband and the conscious of the court is satisfied that there is no fault of the husband, but the wife is claiming dissolution for her own personal reasons such as abhorrence or disliking of her husband, then the wife shall be directed to restore the consideration of marriage to the husband, for the reason that if she had developed extreme hatred and disliking for her husband, then she should also not like the benefits in the shape of dower from the husband.

2009 MLD 419; PLD 2009 Pesh. 92 and 2000 CLC 1337 ref.

Verse No.229 of Sura Baqra; Mst. Bilqis Fatima v. Najmul Ikram Qureshi PLD 1959 Lah. 566; Shahid Javed v. Sabba Jabeen and others 1991 CLC 805 and Sadiq Rasool Khan v. The Additional District Judge, Lakki Marwat 1991 MLD 1732 rel.

Muhammad Javed Yousafzai for Petitioner.

Neelam A. Khan for Respondents.

Date of hearing: 10th October, 2012.

P L D 2013 Peshawar 23

Before Dost Muhammad Khan, C J and Waqar Ahmad Seth, J

GUL KHAN---Petitioner

Versus

S.H.O. POLICE STATION ANTI-NARCOTICS FORCE, PESHAWAR and 8 others---Respondents

Writ Petition No.14 and Constitutional Petitions Nos.722, 1451, 25, 1921, 1804 and 3123 of 2011, decided on 13th August, 2012.

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

----Ss. 9(c), 46 & 48---Anti-Narcotics Force Act (III of 1997) S.5---Constitution of Pakistan, Arts.10-A, 247 & 199---Notifications S.R.O. 1295(I)/98, dated 16-11-1998---Notification S.R.O. 489(I)/98 & 4-4/98-ANF, dated 6-12-2010---Constitutional petition---Fair trial, right of---Anti-Narcotics Force---Functions---Federally Administered Tribal Area (FATA)---Petitioner was accused arrested under Control of Narcotic Substances Act, 1997, from the area situated in FATA---Petitioner sought quashing of proceedings on the ground that neither Control of Narcotic Substances Act, 1997, nor Anti-Narcotics Force Act, 1997, was applicable in FATA---Validity---Notifications/ Regulations issued by the President were within his legislative competence with regard to FATA---Effect of both the enactments i.e. Anti-Narcotics Force Act, 1997 and Control of Narcotic Substances Act, 1997, had been extended and made effective/operative in FATA---All raids conducted by Anti-Narcotics Force in two Tehsil of Khyber Agency were within lawful authority of police station Anti-Narcotics Force Peshawar---All actions taken, investigation conducted, inquiries made, seizure of narcotics made, recovery of the same effected were lawful and same could not be quashed or set at naught---Petition was allowed accordingly---Once President through notification had conferred jurisdiction on Political Agent and extended applications of Anti-Narcotics Force Act, 1997 and Control of Narcotic Substances Act, 1997, to FATA then hierarchy setup under Frontier Crimes Regulations, 1901 continued to exercise its jurisdiction and authority in such cases by necessary implications---Jurisdiction of High Court was not extended to FATA in view of Art. 247(7) of the Constitution---High Court recommended that such legal anomaly, posing considerable confusion, needed to be clarified and ambiguity had to be removed by the President while exercising powers conferred upon him under Art.247(5)(6) of the Constitution, so that High Court would be invested with and conferred upon appellate jurisdiction to hear appeals against order of conviction or acquittal, as the case might be, passed by Political Agent in exercise of powers of Sessions Judge, in cases of Control of Narcotic Substances Act, 1997---Quantum of punishment provided under S. 9(c) of Control of Narcotic Substances Act, 1997, was harsh and required to be scrutinized and reappraisal of evidence to be made in a fair and just manner by High Court and not by Executive Officer like Commissioner under Frontier Crimes Regulations, 1901---Without making such clarification and conferring powers of Appellate Court on High Court against order of Political Agent in the capacity of Sessions Judge, mandatory requirements of Art. 10-A of the Constitution would stand violated and fair trial being a fundamental right, would be denied to the accused---Proceedings conducted by Anti-Narcotics Force of Peshawar police station were within its lawful authority---Petition was allowed accordingly.

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

----Ss. 9(c), 46 & 48---Anti-Narcotics Force Act, (III of 1997), S.5---Frontier Crimes Regulations, 1901, S. 11---Notification 4-4/98-ANF, dated 6-12-2010---Recovery of narcotics---Forum of trial---Political Agent/Council of Elders---Powers---Scope---Power and jurisdiction of Sessions Judge have been invested on Political Agent, while exercising powers under Frontier Crimes Regulation, 1901, therefore, in view of notification, including two enactments i.e. Control of Narcotic Substances Act, 1997 and Anti-Narcotics Force Act, 1997 and in view of Second Schedule of Frontier Crimes Regulations as well as necessary corollary and unavoidable implications, District Magistrate / Political Agent has to exercise powers of a Sessions Judge in offences under the provision of Control of Narcotic Substances Act, 1997, and role of Council of Elders to which a reference is made under the provisions of S.11 of Frontier Crimes Regulation, 1901, has become either redundant or has been narrowed in its scope and application.

Abdul Latif Afridi for Petitioner.

Shakeel Ahmad, Special PP, Iqbal Mohmand, D.A.G., Naveed Akhtar, A.A.-G. and Shah Nawaz Khan Advocate on behalf of Barrister M. Zahoor-ul-Haq for Respondents.

Date of hearing: 14th June, 2012.

P L D 2013 Peshawar 32

Before Shah Jehan Khan Akhundzada, J

ARIFULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1307 of 2012, decided on 5th October, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 21 & 22---Possession of narcotic, mode of making searches and arrest---Bail, grant of---Further inquiry---Police officer below the rank of Sub-Inspector carrying out search, seizure, arrest and investigation proceedings---Effect---Assistant Sub-Inspector (A.S.-I.), who was below the rank of Sub-Inspector, allegedly received information of smuggling of narcotics and laid a picket---Said Assistant Sub-Inspector (A.S.-I.) stopped vehicle of accused at the picket for checking and conducted search of the vehicle---Charas was recovered from secret cavities of the vehicle---Said Assistant Sub-Inspector (A.S.-I.) arrested the accused, drafted Murasila on the basis of which F.I.R. was registered and also carried out material investigation into the case in the shape of seizure, weighing, packing and sealing of narcotic---Entire action taken by said Assistant Sub-Inspector (A.S.-I.) by way of registration of case and resultant investigation, from its inception to the end was violative of the law under Control of Narcotic Substances Act, 1997, therefore, case of accused was one of further inquiry---Accused was released on bail accordingly.

Nasrullah v. The State PLD 2001 Pesh. 152 rel.

M. Ijaz Khan for Appellant.

Murad Afzal Khattak for the State.

Date of hearing: 5th October, 2012.

P L D 2013 Peshawar 35

Before Dost Muhammad Khan, C.J. and Shah Jehan Khan Akhundzada, J

THE STATE through Regional Director ANF---Petitioner

Versus

IKRAMULLAH and others---Respondents

Criminal Revision No.3 of 2012, decided on 4th October, 2012.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.243---Possessing and trafficking narcotics---Revision petition seeking enhancement of sentence, dismissal of---Pleading guilty during trial---Effect---Award of lesser punishment by Trial Court---Scope---Accused persons (respondents) were arrested and found in possession of 10 kilograms of heroin, which they were trafficking through a vehicle---Before all the prosecution evidence was recorded by the Trial Court, accused persons submitted an application, wherein they pleaded guilty to the charge and stated that they belonged to poor families; that they remained unemployed despite attempts to find a lawful profession and due to these reasons, got involved in drug trafficking; that they had learnt their lesson in jail, and that due to their heinous activities, their families were suffering badly---Trial Court convicted accused persons under S. 9(c) of Control of Narcotic Substances Act, 1997 and sentenced each of them to 18 months imprisonment with a fine of Rs.30,000---Prosecution contended that it had proved the case against accused persons regarding recovery of huge quantity of heroin, but the Trial Court awarded them lesser punishment, which was contrary to the provisions of S.9(c) of Control of Narcotic Substances Act, 1997---Validity---Prosecution had not produced any reliable ocular or circumstantial evidence to establish the charge but it was the accused persons themselves, who submitted an application before the Trial Court, pleading guilty to the charge and placed themselves at the mercy of the court in respect of their sentences---Court always took a lenient view once a person pleaded guilty to the charge levelled against him---Trial Court had rightly taken a lenient view in respect of the sentences of accused persons, which was neither illegal nor contrary to the punishment provided in S.9(c) of Control of Narcotic Substances Act, 1997---Revision petition was dismissed accordingly.

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

----S. 243---Pleading guilty to the charge---Sentence, quantum of---Effect---Where a person involved in a criminal case wanted to plead guilty to the charge levelled against him and placed himself at the mercy of the court, he became a friend of the court and a lenient view was to be taken in respect of his sentence.

Shakeel Ahmad for the State.

Respondent in person.

Date of hearing: 4th October, 2012.

P L D 2013 Peshawar 38

Before Nisar Hussain Khan, J

BILAWAR KHAN---Petitioner

Versus

AMIR SABAR RAHMAN and others---Respondents

Civil Revision No.39-B of 2005, decided on 13th November, 2012.

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

----Ss. 20, Art. 148 & S.28 [since Committed by Limitation (Amendment) Act (II of 1995)]---Transfer of Property Act (IV of 1882), S.92---Suit for possession through redemption of mortgaged land---Suit land jointly mortgaged in year 1910 by predecessor-in-interests of parties being real brothers inter se---Defendant's plea that plaintiff had redeemed suit land to the extent of his share in extent year 1953, while mortgage to the extent of defendant remained intact, thus, plaintiff's suit filed after 60 years, was time barred by virtue of Art. 148 of Limitation Act, 1908---Suit dismissed by Trial Court was decreed by Appellate Court---Validity---Defendant after having redeemed suit property on basis of decree obtained in year 1985 had become mortgagee to the extent of share of plaintiff on principle of subrogation contained in S. 92 of Transfer of Property Act, 1882---Revenue record and oral evidence supported possession of defendant over suit land and use of its usufruct as its owner as well as mortgagee to the extent of share of plaintiff since long---Defendant after having substituted original mortgagee by redeeming suit land had become entitled to reimbursement of mortgage amount paid by him in respect of share of plaintiff by stepping into shoes of original mortgagees---Possession of defendant after redemption of suit land could not be adverse to interest of other co-owner i.e. plaintiff---Every co-owner in possession of joint property would be enjoying possession on behalf of all co-owners and could not urge plea of adverse possession against his co-owners---According to S.20(2) of Limitation Act, receipt of rent or usufruct of mortgaged land by mortgagee in possession would be deemed to be acknowledgement of payment of debt, thus, time would be computed from date of such acknowledgment---Receipt of produce on every harvest would be deemed as an acknowledgment giving fresh start to period of limitation---Plaintiff in such case would have recurring cause of action on each harvest---Section 28 of Limitation Act, 1908 had been declared to be repugnant to Injunctions of Islam---Logic behind such declaration was that no lawful owner could be deprived of his right merely by efflux of time nor a person enjoying possession for a long time could be awarded with premium of ownership---Mortgagee having enjoyed possession of mortgaged land for more than 60 years or more would have recovered through its usufruct more than his mortgage money, thus, he could not be bestowed with ownership on expiry of 60 years---Courts would have to follow logic behind such declaration till omission of Art.148 of Limitation Act, 1908 by legislature as in case of conflict between law of Sharia and codified law, former would prevail---Article 148 of Limitation Act, 1908 required omission from statute, otherwise despite omission of S.28, thereof, mortgagee in possession without fixing time could not be evicted after 60 years despite the fact such mortgagee could not get decree of prescription after omission of S. 28 thereof---High Court dismissed revision petition while directing to send copy of its judgment to Law, Justice and Parliamentary Affairs Division to consider omission of Art. 148 of Limitation Act, 1908.

Ahmad Khan's case 2009 SCMR 191; Abdul Haq's case 1999 SCMR 2531 and Maqbool Ahmad's case 1991 SCMR 2063 rel.

(b) Adverse possession---

----Co-owner in possession of joint property would be enjoying possession on behalf of all co-owners and could not assert plea of adverse possession against his co-owners.

(c) Administration of justice---

----Laws are for welfare of people and not to usurp their rights.

(d) Maxim---

----"Salus populi est suprema lex" (the welfare of people is supreme).

(e) Constitution of Pakistan---

----Art. 2-A---Conflict between law of Sharia and codified law---Effect---Law of Sharia in such case would prevail---Principles.

By virtue of Article 2-A of the Constitution the courts are to follow the laws enshrined in Sharia and adopt the interpretations compatible to Islamic Injunctions. Whenever there is a conflict between the law of Sharia and the codified law, the former shall prevail.

(f) Interpretation of statutes---

----Conflict between law of Sharia and codified law---Effect---Law of Sharia in such case would prevail.

Salamat Shah Mehsood for Petitioner.

Haji Umar Daraz for Respondent.

Date of hearing: 13th November, 2012.

P L D 2013 Peshawar 46

Before Yahya Afridi, J

YASIR KHAN---Petitioner

Versus

IMTIAZ and 2 others---Respondents

Criminal Miscellaneous Quashment No.14-A of 2011, decided on 8th October, 2012.

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

----Ss. 4(1), 54, 60, 61, 154, 156, 157, 167, 169, 172, 173(3)---Investigation of case---Arrest of accused---Stages explained.

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

----Ss. 169, 173(3), 190(3) & 193---Release of accused on personal bond---Purpose and scope---'Inquiry' by Magistrate and Sessions Court---Scope---Purport of S. 169, Cr.P.C was essentially to render the police officer, the authority to release an accused, if he considered that no case was made out against him, on his furnishing a bond, with or without sureties, with direction to the released accused to appear as and when he was summoned to appear before the Magistrate---Once the accused was summoned and appeared before the Magistrate, the life of the personal bond executed by the accused would end and same shall be subject to further orders of the Magistrate, as provided under S.173(3), Cr.P.C---Once challan was put before the Magistrate, he was required to conduct an inquiry without recording of evidence, by reviewing the evidence collected by the police during the investigation and thereafter form an opinion to either discharge the bond and sureties or to proceed against the released accused, if prima facie a triable case was made out---Magistrate had to pass an order in writing qua the bond and sureties furnished by the accused and the fate of the case---Where Magistrate was not competent to take cognizance of the offence he would refer the same to the Sessions Court under S. 190(3), Cr.P.C.---Even where police and referring Magistrate had opined for cancellation of the case, the Sessions Court, after taking cognizance of the case under S.193, Cr.P.C, would have the authority to carry out another 'inquiry', without recording of evidence, by reviewing the evidence collected by the police and pass an order in writing qua the bond and sureties furnished by the accused and the fate of the case.

Muhammad Ramzan's case PLD 2010 SC 585 and Mehr Khan's case 1984 SCMR 267 rel.

Naseer's case 2011 SCMR 1433 ref.

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

---S. 169---Release of accused on personal bond---'Inquiry' by Magistrate, nature of---Inquiry carried out by the Magistrate and the decision so rendered thereafter regarding the discharge of bonds or the fate of the case were administrative orders and not judicial in nature.

Sher Muhammad Unar's case PLD 2012 SC 179 rel.

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

---Ss. 169 & 561-A---Constitution of Pakistan, Art.199---Investigation of offence---Constitutional petition---Police releasing accused on personal bond---Justiciability of such action of police under S.561-A, Cr.P.C.---Scope---Inherent jurisdiction of High Court under S.561-A, Cr.P.C. could not be exercised to judicially correct an action or inaction of a police officer during investigation of the criminal offence---High Court might exercise its constitutional jurisdiction under Art. 199 of the Constitution to entertain such a matter, however even such authority was to be exercised scarcely and only in cases, where impugned action or inaction of the police authority was "mala fide" or "without lawful authority".

Kh. Nazir Ahmad's case AIR 1945 PC 18; Ghulam Muhammad's case PLD 1967 SC 317; Shanaz Begum's case PLD 1971 SC 677; Khawaja Fazal Karim's case PLD 1976 SC 461; Brig. Imtiaz's Case 1994 SCMR 2142 and Hayatullah Khan's case 2011 SCMR 1354 rel.

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

----Ss. 169 & 497(5)---Police releasing accused on personal bond---Power of Sessions Court to cancel release order of accused---Scope---Sessions Court was not vested with the powers under S. 497(5), Cr.P.C. to cancel the release order of an accused passed by a police officer, however Sessions Court might order arrest of such a released accused, if he was being summoned under S. 204, Cr.P.C.; if accused absented from appearing during trial which lead to issuance of warrant of arrest by the Sessions Court; if prosecution witnesses were being pressurized or threatened to render their testimony or the process of court was being abused or threatened, or if re-investigation of the case could not be carried out without the arrest of the released accused, who might cause interference in a fair investigation.

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

----Ss. 156 & 173---Re-investigation after submission of challan and during trial of offence---Legality---Such practice though not approved, yet was not legally barred.

Bahadur Khan's case 2006 SCMR 373 rel.

Masood-ur-Rehman Tanoli for Petitioner.

Muhammad Nawaz Khan Swati, A.A.-G. and Qazi Muhammad Arshad for Respondents.

Date of hearing: 8th October, 2012.

P L D 2013 Peshawar 58

Before Mrs. Irshad Qaiser, J

MURAD GUL---Petitioner

Versus

THE STATE through Advocate-General Khyber Pakhtunkhwa, Peshawar and 3 others---Respondents

Q.P. No.170-P of 2012, decided on 11th January, 2013.

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

----S. 561-A---Inherent power of High Court--- Interference by High Court in criminal proceedings in exercise of its inherent power under S.561-A, Cr.P.C---Scope---Section 561-A, Cr.P.C should never be understood to provide an additional or alternate remedy nor could the same be used to over-ride the express provision of law---Section 561-A, Cr.P.C could ordinarily be exercised only where no provision existed in Cr.P.C to cater for a situation or where Cr.P.C offered no remedy for the redress of a grievance---Inherent power of High Court under S.561-A, Cr.P.C could only be invoked to make a departure from the normal course prescribed in exceptional cases of extraordinary nature and reasons must be offered to justify such a deviation.

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

----Ss. 561-A & 154---Quashing of F.I.R. by High Court in exercise of its inherent power---Scope---In the matter of quashing criminal proceedings the trial must ordinarily be permitted to take its regular course envisaged by law and the provision of S.561-A, Cr.P.C should be invoked in exceptional cases for reasons to be recorded.

1996 SCMR 186 ref.

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

----Ss. 561-A, 154 & 265-K---Control of Narcotic Substances Act (XXV of 1997), S. 9(b)---Possession of narcotic---Petition for quashing of F.I.R., dismissal of---Plea of mala fide raised by accused to seek quashing of F.I.R.---Validity---Plea of mala fide intention could not be considered for quashing of criminal proceedings in a slipshot manner without affording an opportunity to the prosecution to prove its case because High Court, while exercising its inherent power, could not hold an inquiry as to whether the evidence available on record was reliable or not---Since case of accused was already put in the Trial Court, the court had to be allowed to proceed with the case and record statement of prosecution witnesses in order to confirm the guilt or innocence of the accused---Accused, however, had the remedy/right to file an application for his acquittal under S.265-K, Cr.P.C at any stage of the trial---Revision petition seeking quashing of F.I.R. was dismissed accordingly.

2000 PCr.LJ 143; 1993 PCr.LJ 223; PLD 1997 SC 275 and 1996 PCr.LJ 1309 rel.

Sahibzada Riazatul Haq for Petitioner.

Ibrahim Shah for Respondent.

Date of hearing: 11th January, 2013.

P L D 2013 Peshawar 61

Before Nisar Hussain Khan and Waqar Ahmad Seth, JJ

ALI RAHMAN and 8 others---Petitioners

Versus

NAIK AMAL KHAN and 11 others---Respondents

Writ Petition No.984 of 2011, decided on 7th February, 2013.

Criminal Procedure Code (V of 1898)---

----S. 145---Constitution of Pakistan, Art. 199---Constitutional petition---Scope and application of S.145, Cr.P.C.---Dispute concerning land likely to cause breach of peace---Applicability of S.145, Cr.P.C.---Scope---Attachment---Land in question was 'Shamilat' belonging to four tribes---Provisions of S.145, Cr.P.C., were applicable in the case, because object of S.145, Cr.P.C. was prevention of dispute of immovable property likely to cause breach of peace; and to maintain status quo till the controversy was decided by the court of competent jurisdiction---Section 145, Cr.P.C. was aimed to meet an emergent situation (only causing threat to the peace) and same could not be used for settling the rights of the parties---Trial Court under S.145, Cr.P.C. though was legally bound to inquire into the matter, but as in present case seven persons had been murdered; and in that respect criminal cases had been registered, there was likelihood of breach of peace between the parties---Trial Court gave opportunity to parties to submit their objections, with regard to the attachment order---No official or private partition had taken place nor any demarcation proceedings had been conducted in that regard---Matter, prima facie, seemed to be a civil dispute, and no one could claim his exclusive/absolute ownership---Basic purpose of proceedings under S.145, Cr.P.C., was to meet an emergent situation in order to maintain peace; and further to enable parties to set the controversies at naught through civil court, regarding title or claim of property in dispute---Mandatory requirement of S.145, Cr.P.C. was that there must not only be a dispute, but it was essential that dispute was likely to cause breach of peace---Where 7/8 murders had been committed over the same dispute, lower forum had rightly passed preliminary order vide which disputed property was attached, with direction that objection, if any, regarding said attachment order could be submitted to the court---Said impugned order not suffering from jurisdictional defect, illegality or material irregularity could not be interfered with by High Court under constitutional jurisdiction.

Sher Muhammad Khan for Petitioners.

Said Hakim for Respondents.

Date of hearing: 7th February, 2013.

P L D 2013 Peshawar 64

Before Dost Muhammad Khan, C.J. and Waqar Ahmad Seth, J

GHULAM NABI, ADVOCATE SUPREME COURT OF PAKISTAN, PRESIDENT ISLAMIC LAWYER MOVEMENT KHYBER PAKHTUNKHWA

and 2 others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 3 others---Respondents

Writ Petition No.2956-P of 2012, decided on 7th November, 2012.

Khyber Pakhtunkhwa Judicial Service Rules, 2011---

----R. 5(e)---Khyber Pakhtunkhwa Public Service Commission Ordinance (XI of 1978), S. 7(1)(a)(i)---Khyber Pakhtunkhwa Public Service Commission (Functions) Rules, 1983, R.3---Constitution of Pakistan, Arts. 2-A, 175(3), 199 & 203---Constitutional petition---Judicial Officers including Civil Judges, Magistrates, Illaqa Qazis etc., recruitment of---Summary referred by Provincial Cabinet to Committee headed by Minister for Law vide Notification dated 5-10-2012 for retaining powers to recruit such Judicial Officer through Public Service Commission---Validity---Judges of superior courts after 18th Constitutional Amendment could be elevated on recommendations of Judicial Commission headed by Chief Justice of Supreme Court---Provincial executive authorities were not justified in retaining powers to recruit Judicial Officers of subordinate judiciary through Public Service Commission---Retention of such powers by Executive Authority would make clear that they were not ready to give full independence to judiciary, rather they wanted to implant their own favourities in subordinate judiciary likely to be elevated to High Court and Supreme Court in due course of time---High Court alone would be competent to make recruitment and selection of such judicial officers and not Public Service Commission---Provinces of Punjab and Balochistan through their respective notifications had already surrendered such powers and authority to their respective High Courts---Retention of such powers by Executive Authority would amount to giving discriminatory treatment to Peshawar High Court, undermining its authority and independence---High Court accepted constitutional petition and declared impugned action of Provincial Cabinet as without lawful authority and of no legal effect while directed Provincial Government particularly Establishment Department to move forthwith summary for making required amendment by substituting High Court for Public Service Commission in S. 7(1)(a)(i) of Khyber Pakhtunkhwa Public Service Commission Ordinance, 1978, R. 3 of Khyber Pakhtunkhwa Public Service Commission (Functions) Rules, 1983 and Khyber Pakhtunkhwa Judicial Service Rules, 2001 in order to make High Court as a sole authority with powers and function to recruit such judicial officers through its own process; and that till making such amendments, such impugned provisions of law would remain in-operative and of no legal effect.

Government of Sindh through Chief Secretary to Government of Sindh Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Al-Jehad Trust through Raees-ul-Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Sheikh Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Sindh High Court Bar Association v. Federation of Pakistan PLD 2010 SC 879 and Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407 rel.

Petitioners in person.

Obaid Razzaq, A.A.-G. along with Farhat Ullah Khan AMIT-II and Qasam Jan Khan, Consultant Law Department for Respondents.

Date of hearing: 7th November, 2012.

P L D 2013 Peshawar 71

Before Khalid Mehmood and Mrs. Irshad Qaiser, JJ

Senator Haji GHULAM ALI and another---Petitioners

Versus

KHYBER PAKHTUNKHWA OLYMPIC ASSOCATION through President and 4 others---Respondents

Writ Petition No.806-P of 2012, decided on 21st February, 2013.

(a) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S.11 & O.VII, R.11---Constitutional petition---Election of the President of Khyber Pakhtunkhwa Olympic Association---Petitioners being President and Secretary of Khyber Pakhtunkhwa Net Ball Association and also being members of such Association alleged such election to have been conducted without providing them opportunity to contest same---Plea of Association was that its another member had challenged validity of such election in civil suit, wherein plaint was rejected for want of cause of action, thus, present constitutional petition challenging same election was not entertainable---Validity---Neither petitioner was party to such suit nor same had been decided on merits---Rejection of such plaint for not being res judicata would not bar present constitutional petition against Association---High Court repelled such plea of Association in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Election of the President of Khyber Pakhtunkhwa Olympic Association---Petitioners being President and Secretary of Khyber Pakhtunkhwa Net Ball Association and also being members of such Association alleged such election to have been conducted without providing them opportunity to contest same---Plea of Association was that petitioners lacked locus standi to invoke constitutional jurisdiction of High Court---Validity---Petitioners being members of such Association had been deprived of their fundamental right to participate in such election---Question regarding violation of constitution of such Association raised by petitioners would attract jurisdiction of High Court---Such plea of Association was repelled in circumstances.

Nadeem Aftab Sindhu v. FOB and others decided on 23-10-2012 rel.

(c) Election---

----Holding of---Pre-requisites stated.

For all sort of elections, certain principles are observed for holding an election i.e. formation of independent and impartial Election Commission for holding fair election, criteria/qualification regarding proposed office-bearers, election schedule by the day of submitting nomination papers, scrutiny, displaying the final list of candidates, date of withdrawal of candidates, the date of declaring holding election and procedure for resolution of disputes regarding the election.

Pakistan Sports Board and another v. Pakistan Volley Ball Federation and others (Civil Appeals Nos. 368 to 370 of 2011).

Shumail Ahmad Butt for Petitioners.

Aamir Sabir for Respondents.

Obaid Razaq, A.A.G.

Date of hearing: 21st February, 2013.

P L D 2013 Peshawar 78

Before Shah Jehan Khan Akhundzada and Rooh-ul-Amin Khan, JJ

SHAKEEL NAWAZ and another---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No.14-B of 2012, decided on 30th January, 2013.

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

----Ss. 302 & 34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---No one was charged in the F.I.R.---Involvement of accused was surfaced through tracker dogs---Person who brought the sniffer dogs to the spot, could not be found---Handler of the tracker dogs was unknown and had never been examined by the prosecution---Reliability of dogs, as tracker and detector of crime had also not been tested by local Police---Tracker dogs having allegedly been brought on the next day after spot inspection by the Investigating Officer, it would be unjust to say that the trail was not stale and contaminated with different scent and it would not be possible to hold accused guilty of offence, merely on the basis that the tracker dogs had gone to the residence/Baithak of accused---Case against accused was sought to be proved by the prosecution with the help of circumstances, but those circumstances were not established by the prosecution, and were insufficient to form a complete chain pointing unerringly to the guilt of accused---Story of last seen was afterthought and concocted after three days of the occurrence---Such last seen evidence could not be based for conviction of accused---Recovery of blood stained weapon of offence, was of no avail to prosecution, as same was not sent to the Laboratory for analysis and expert report---DNA test, being not conducted from notified laboratory, was not admissible in the evidence, and could not be based for conviction in a case of capital punishment, especially when it had no sanctity---Prosecution case, being full of material contradictions, benefit of doubt was extended to accused---Impugned judgment of conviction and sentence, passed against accused, by the Trial Court, was set aside, accused was acquitted from the charge and was set free, in circumstances.

(b) Criminal trial---

----Evidence of dogs tracking---Sanctity and admissibility of---Tracker dogs---Involvement of accused surfaced through tracker dogs---No doubt, in the present scientific arena, dogs were reliable and efficient scent detector and trained dogs could significantly reduce the amount of time in detecting crime, but for that purpose proper training institute at Government level, were required to be established---In order to tracker dog's evidence to be accepted, in any criminal case, there were certain basic points, to the effect that the handler of dog must be qualified by properly trained from a recognized institute/training centre, and equipped with sufficient experience to handle the dog and interpret his action; that dog should be sufficiently trained to track human scent and it must be evident from the past history that the dog had been reliable tracker of human scent, and had not committed mistake in the past; and that the trail left by the suspect, was not so stale and contaminated, so as to interfere with the accurate ability of the dog to track and the dog was placed on the track, where circumstances indicated the suspect had been---Dog, no doubt was an intelligent animal with many thought processes, similar to the thought process of human beings, but, where there were thought processes, there was always the risk of error, deception and even self-deception---In the present state of scientific knowledge evidence of dogs tracking, even if admissible, was not ordinarily of much weight---Such dogs could be useful to the Investigating Officers, but their movements, would not be of any help to the court in evaluating the evidence in criminal cases, because, firstly, it was not possible to test the correctness of the canine movements; secondly, that the life and liberty of human being should not be made to depend on animal sensibilities; thirdly, that the possibility of a dog misjudging the smell, or mistaking the track could not be ruled out and fourthly, that even today, the science had not finally pronounced about the accuracy of canine tracking---From scientific point of view there was little knowledge and much uncertainty as to the precise facilities, which enabled Police Dogs to track and identify criminals---Police dogs engaged in those actions by virtue of instincts and also by the training imparted to them, could not be ruled out.

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

----S. 161---Statement under S.161, Cr.P.C., sanctity of---Statement under S.161, Cr.P.C. recorded by the Local Police, after a considerable delay without any tangible and plausible explanation, must vanish its sanctity, and would not be held confidence inspiring evidence.

(d) Criminal trial---

----Last seen evidence---Last seen evidence, due to its inherent defects, was basically a weak type of evidence---If such evidence was believed to be true, no conviction could be based on it, unless strongly corroborated by other circumstantial evidence.

(e) Criminal trial---

----Presumption---Presumption, however, strong it could be, could not take the shape of proof.

Pir Liaqat Ali Shah for Appellants.

Ahmad Farooq Khattak, A.A.G. for the State.

Quaidullah Khattak for the Complainant.

Date of hearing: 30th January, 2013.

P L D 2013 Peshawar 88

Before Rooh-ul-Amin Khan and Malik Manzoor Hussain, JJ

Mst. SAEEDA JAVED---Petitioner

Versus

JAVED IQBAL and 2 others---Respondents

Writ Petition No.1962 of 2010, decided on 27th March, 2013.

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

----S. 5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Suit for dissolution of marriage by wife on ground of infertility of husband---Maintainability---Neither Islam nor Dissolution of Muslim Marriages Act, 1939 recognized such ground for dissolution of marriage as fertility or infertility or other incapacitation for being beyond control of human being and an act of nature---Marriage in case of infertility of husband could be dissolved either by him by giving Talaq to wife or by her through "Khula"---Principles.

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

----S. 5, Sched. & S.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 ground of infertility of husband---Suit dismissed by Family Court decreed by Appellate Court on ground of "Khula"---Husband's plea was that Appellate Court had no jurisdiction to dissolve marriage on an unclaimed ground of "Khula"---Validity---Wife, if either failed to prove claimed ground also recognized by Dissolution of Muslim Marriages Act, 1939 OR she was not desirous to live with husband for any reasons not recognized by the Act, would still be entitled to dissolution of marriage on ground of "Khula"---Wife in case of dissolution of marriage on ground of "Khula" would have to either remit dower amount, if not received by her or pay back same to husband, if so received by her---Record showed that wife in the present case, was not ready to live with husband despite having failed to prove any cruelty on his part---Muslim spouses could not be forced to live a life devoid of harmony and happiness---Court in such case had no alternative but to dissolve marriage on ground of "Khula" even being an unclaimed ground---Principles---High Court dismissed constitutional petition in circumstances.

Holly Quran Sura Baqara Verse 229 ref.

Arshad Jamal Qureshi for Petitioner.

Niaz Wali Khan for Respondents.

Date of hearing: 27th March, 2013.

P L D 2013 Peshawar 94

Before Dost Muhammad Khan, C.J. and Musarrat Hilali, J

FOUNDATION FOR FUNDAMENTAL RIGHTS---Petitioner

Versus

FEDERATION OF PAKISTAN and 4 others---Respondents

Writ Petition No.1551-P of 2012, decided on 9th May, 2013.

(a) Constitution of Pakistan---

----Arts. 199 & 245(1)---Geneva Conventions, 1949---Constitutional petition---Drone attacks/strikes carried out by intelligence agency of a foreign country (United States of America) in territory of Pakistan---Legality---Breach of sovereign territory/airspace of Pakistan---Breach of United Nations Charter and its Conventions---War crimes---Extra-judicial killing of civilians---Destruction of moveable and immoveable property---Compensation of victims of drone strikes---Duty of Armed Forces of Pakistan to protect sovereign territory and airspace of Pakistan---Scope---Foreign country in question (United States of America) through self-framed opinion labelled foreign militants hiding in Tribal Agencies of Pakistan as their enemy, and was carrying out drone strikes in said areas on spy information to hit and kill these elements---Forming of an opinion by the intelligence agency of foreign country that drone strikes targeted groups of men, who were militants having links with terrorist groups, was based on figment of imagination and till date no tangible, reliable and convincing proof had been furnished to such effect by the authorities and intelligence agency of foreign country---Ratio of killing of foreign elements (through drone strikes) was negligible while casualties of local civilians, non-combatants were shockingly considerable, besides damage caused to properties of the local population, their households and other moveable properties---Majority of the victims of drone attacks were women and small children including suckling babies besides, animals/cattle heads and wildlife---During drone strikes the degree of precision was hardly maintained---Killing was never the sole objective of an operation as was the case in the drone strikes being carried out in the territory of Pakistan---Drones strikes were a blatant breach of absolute right to life---Huge loss to life and property, suffered by nationals of Pakistan due to drone strikes, was strictly prohibited not only by the Charter of the United Nations but also by the Geneva Conventions of 1949--- Admittedly, neither the (United Nations) Security Council nor the United Nations in general at any point of time had permitted the authorities of foreign country particularly its intelligence agency to carry out drone attacks within the territory of Pakistan---Drone strikes were a clear and naked aggression on sovereign territory/airspace of Pakistan---Such strikes were carried out at the whims and will of intelligence agency of foreign country in question, and neither the Government of Pakistan nor its security agencies were taken into confidence before carrying out such strikes---Although authorities of foreign country claimed that a former President of Pakistan had given verbal consent to carry out drone attacks but there was nothing in writing to that effect to lend support to such view point---Aggression made on the territory of a sovereign State (Pakistan) was in clear violation of the United Nations Charter and different Conventions approved and adopted by the United Nations Member States---Under the United Nations Charter and Conventions, the people of Pakistan had every right to ask its security forces either to prevent drone strikes by force or to shoot down the intruding drones because such right was conferred upon the Member State, aggressed upon, to defend itself, its people and territory against foreign aggression---President of Pakistan, the Parliament through unanimous resolution, the Prime Minister and his Cabinet and military leadership had openly condemned drone attacks and had lodged protests with authorities of the foreign country---Drones strikes were blatant violation of basic human rights and were a war crime cognizable by the International Court of Justice or Special Tribunal for War Crimes, constituted or to be constituted by the United Nations for such purpose---Drone strikes were absolutely illegal and blatant violation of the sovereignty of the State of Pakistan because frequent intrusion was made on its territory/airspace without its consent rather against its wishes---Government of foreign country was bound to compensate all the victims' families---High Court directed that the Government of Pakistan and its security forces shall ensure that in future drone strikes were not conducted and carried out within the sovereign territory of Pakistan; that proper warning should be administered in such regard and if that did not work, the Government of Pakistan and State institutions particularly the security forces shall have the right being under constitutional and legal obligations to shoot down the drones attacking territories of Pakistan or when they entered the airspace of Pakistan's sovereign territory; that Government of Pakistan should take the matter seriously before the United Nations Security Council and in case it did not succeed there then, an urgent meeting of the General Assembly be requisitioned through a written request to resolve the menace (of drone attacks) in an effective manner; that the Government of Pakistan should also file a proper complaint, giving complete details of the losses sustained by civilians of Pakistan both to life and properties due to drone strikes, making a request to the Secretary General of United Nations, to constitute an independent War Crime Tribunal which shall have the mandate to investigate and enquire into all the matters and to give a final verdict as to whether the same amounted to war crime or not, and in the former case to direct the authorities/government of foreign country in question to immediately stop the drone strikes and arrange for the complete and full compensation for the victims' families both for life and properties at the rate and ratio laid down under the international standards; that Ministry of Foreign Affairs should prepare a draft resolution/complaint within the minimum possible time and should ask and require the (United Nations) Security Council and the General Assembly, as the case might be, to pass a resolution condemning the drone strikes, and that in case authorities of foreign country did not comply with the said resolution, the Government of Pakistan should sever all ties with the foreign country and as a mark of protest should deny all logistic and other facilities to the foreign country within Pakistan---Constitutional petition was allowed accordingly.

Mary O Connell in "Unlawful Killing with Combat Drones" ref.

(b) Constitution of Pakistan---

----Arts. 4(2)(a), 9 & 199---Constitutional jurisdiction of High Court---Scope---Protection of life and property of citizens---Article 199 of the Constitution put the High Court under tremendous obligation to safeguard and protect the life and property of the citizens of Pakistan and any person for the time being in Pakistan.

Mirza Shahzad Akbar for Petitioner.

Iqbal Mehmand, D.A.G. and Naveed Akhtar, A.A.G. for Khyber Pakhtunkhwa.

Date of hearing: 11th April, 2013.

P L D 2013 Peshawar 105

Before Dost Muhammad Khan, C.J., Malik Manzoor Hussain, Syed Afsar Shah

and Ikramullah Khan, JJ

Syed PERVEZ MUSHARAF---Petitioner

Versus

APPELLATE TRIBUNAL FOR GENERAL ELECTION 2013 AND 3 OTHERS

Writ Petitions Nos.1129-P, 1133-P, 1130-P, 1131-P and 1132-P of 2013, decided on 30th April, 2013.

(a) Constitution of Pakistan---

----Arts. 6, 62(1)(f) & 199---Representation of the People Act (LXXXV of 1976), S. 14---High Treason (Punishment) Act (LXVIII of 1973), S.2---Constitutional petition---Rejection of nomination papers---Disqualification for membership of Parliament (Majlis-e-Shoora) for life---Scope---Unconstitutional actions---Subversion of the Constitution---Violation of human rights---Imposing of Martial law---Conducting of controlled and pre-planned elections---Illegal confinement of Judges of the superior judiciary and their families---Unconstitutional appointment of Judges of superior judiciary---Blocking of electronic and print media---Nomination papers of candidate in question, who was a former President of Pakistan and also Chief of Army Staff, were accepted by the Returning Officer---Election Tribunal set aside order of Retuning Officer and rejected nomination papers of candidate on the basis that he imposed an Emergency in the country and also dismissed the entire superior judiciary through unconstitutional means---Plea of candidate that all his alleged unconstitutional measures had been validated by the Supreme Court followed by a further validation from the Parliament in the year 2002 through the 17th Amendment in the Constitution, therefore he could not be held to be a usurper---Validity---Candidate had toppled a duly elected government in a coup d'état and imposed an Emergency throughout the country, which was almost a Martial Law---All the elected institutions like Parliament, Provincial Assemblies, Federal Government and Provincial Governments (Cabinets) were dismissed, and the duly elected President was shown the door of exit---Candidate in question in a very controlled and pre-planned manner, held elections to the Parliament and Provincial Assemblies in the year 2002 and installed the Governments of his choice---Out of fear that he might be tried for high treason offence, candidate got validation for his unconstitutional actions through the 17th Amendment in the Constitution before allowing the newly elected government to start functioning---Candidate gave an undertaking to the Parliament (at that time) that he would put off his army uniform by the cut of date i.e. December, 2004, however he broke such promise and remained in uniform for years thereafter, hence, in view of the broken promises in quick succession at different stages, candidate could neither be held to be an "ameen" nor "sadiq"---Subsequently candidate apprehended his disqualification from the Supreme Court from contesting election for the post of President of Pakistan, therefore, in gross violation of the constitutional command, he again subverted and abrogated the Constitution in the year 2007 and imposed an Emergency in the country for the second time---Chief Justice of Pakistan, all the Judges of the Supreme Court and majority of the Judges of the High Courts were sacked and prevented from performing their constitutional duties and were put under house arrest along with their family members, which was a gross violation of fundamental human rights---Few judges, who collaborated with the dictator (candidate), were selected and elevated and a new Chief Justice of Pakistan was appointed in clear violation of the constitutional command---All the vacancies in the four High Courts were filled up by the dictator (candidate) with hand-picked Judges, who took oath under the Provisional Constitutional Order (PCO)---During struggle of lawyers and civil society for restoration of superior judiciary, many lawyers were butchered, killed, burnt alive and thousands of them were illegally arrested and detained in prisons---Candidate (the then dictator) in order to suppress the uprising of the nation fully choked the voice of the national media---Offices of media both print and electronic were put under locks and there was a complete blackout of news in the field---After resigning as President of Pakistan, candidate left the country and stayed abroad for many years---Subsequently upon coming back to the country he decided to contest for elections despite the fact that many criminal cases were pending against him in different courts, including high profile cases of murders, attempted murders, and high treason under Art.6(2) of the Constitution---Candidate was also charged in a case for butchering and burning alive pre-teen age orphan girls and boys in an operation in a mosque---All unconstitutional and illegal actions taken by the candidate at the time of imposing second Emergency in the country remained invalid because they were not validated by the Parliament (at that time)---Candidate was guilty of subverting the Constitution and completely demolished the superior judiciary, which was an important limb of the State---Subversion of the Constitution, as committed by candidate in question, was an act which was punishable under Art.6(2) of the Constitution, and under the High Treason (Punishment) Act, 1973 he was likely to earn the penalty of death---All actions taken by candidate at the time of imposing second Emergency in the country in the year 2007 and thereafter attracted un-condonable disqualification for him for all times to come because the quantum and magnitude of disqualification earned through his unconstitutional and illegal acts, was continuous, sustained and recurring and not for one time---Candidate had earned a life time disqualification for contesting election for Parliament, Provincial Assemblies, Senate or any public office in the country nor he was qualified and eligible to hold any other public office of any representative character---Constitutional petition was dismissed accordingly.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 ref.

(b) Constitution of Pakistan---

----Art. 6(2)---High Treason (Punishment) Act (LXVIII of 1973), S.2---Punishment for high treason---Scope---Aiding or abetting abrogation, subversion, suspension or holding in abeyance of the Constitution---Members of Parliament who validated unconstitutional and illegal acts of dictators/usurpers---Liability---Language used in Art.6(2) of the Constitution included members of Parliament and the Parliament as a whole---When any validation was accorded by the Parliament to unconstitutional and illegal acts of a usurper (dictator) through any means whatsoever, the Parliament as a whole shall cease to exist because each member by such act would earn the penalty of high treason and would be liable to be prosecuted under the provisions of High Treason (Punishment) Act, 1973---Parliament as a whole was no exception nor was it exempted from such liability rather it was equally liable for such punishment and the moment it endorsed or validated action of dictators on whatever ground, it shall immediately cease to exist and fresh election shall essentially be held for the new Parliament.

Ahmad Raza Qasori and Muhammad Saad Shibli for Petitioners.

Date of hearing: 30th April, 2013.

P L D 2013 Peshawar 117

Before Rooh-ul-Amin Khan, J

ALLAH BAKHSH and another---Petitioners

Versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous Quashment Petition No.154 with Crl. Miscellaneous No.1550 of 2011, decided on 11th January, 2013.

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

----S. 561-A---Penal Code (XLV of 1860), Ss. 406, 419, 420, 427, 467, 468, 471 & 34---Quashing of F.I.R. by High Court in exercise of its inherent powers---Scope---Accused persons were charged in the F.I.R. for commission of fraud and forgery, however they succeeded in getting ad interim pre-arrest bail from the Trial Court---Contentions of accused persons were that the F.I.R. was based on mala fide and ulterior motives, and that neither the alleged transaction took place nor there were any business relations between the parties---Validity---Complainant had charged the accused persons for commission of a cognizable offence---Contents of present petition under S.561-A, Cr.P.C and that of the F.I.R., when put in juxtaposition to each other, raised disputed questions of fact and law, requiring proper probe, investigation and evidence of parties, which could not be resolved by the High Court in exercise of its inherent power under S.561-A, Cr.P.C---After getting ad-interim pre-arrest bail , accused persons instead of joining the investigation, filed present petition under S.561-A, Cr.P.C in haste---Petition for quashing of F.I.R. was dismissed in circumstances.

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

----S. 561-A---Inherent power of High Court---Scope---Disputed questions of fact and law, requiring proper probe, investigation and evidence of parties could not be resolved by the High Court in exercise of its inherent power under S.561-A, Cr.P.C.

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

----Ss. 561-A & 154--- Inherent power of High Court---Quashing of F.I.R. by High Court in exercise of its inherent power---Scope---Where an offence prima facie, had been committed, the ordinary course of trial before the competent court could not be allowed to be deflected by resorting to exercise of inherent jurisdiction of the High Court---Section 561-A, Cr.P.C could not be frequently applied for determining the guilt or innocence of an accused at a premature stage--- Stifling and throttling criminal proceedings was against the scheme provided by Cr.P.C---Section 561-A, Cr.P.C could not be applied lightly as the same would tend to circumvent the due process of law---Extraordinary powers of the High Court under S.561-A, Cr.P.C were only to be invoked in exceptional cases where the court found that continuation of process would amount to abuse of the process of the court.

Sher Afgan Khan Niazi v. Ali Habib and others 2011 SCMR 1813 rel.

Muhammad Ismail Alizai and Tehsin Alamdar for Petitioner.

Khan Wali Khan Mehsud, A.A.G. for the State.

Sanaullah Khan Gandapur and Burhan Latif Khaisori for Respondent No.2.

Saleemullah Khan Ranazai for Respondent No.3.

Date of hearing: 11th January, 2013.

JUDGEMENT

ROOH-UL-AMIN KHAN J.- Through the instant petition filed under section 561-A, Cr.P.C, the petitioners, namely, Allah Bakhah and Muhammad Tahseen seek the quashment of F.I.R. No. 513 dated 24-8-2011 registered against them under sections 406/419/420/427/ 467/468 and 471/34, P.P.C. at Police Station Cantt: D.I. Khan.

1. Brief but relevant facts of the case are that on 11-8-2011, the complainant, namely, Yaqoob Khan son of Toti Khan, had submitted an application to the District Police Officer Dera Ismail Khan, wherein the petitioner Allah Bakhsh along with his three sons were charged for commission of fraud and forgery, whereby the respondent was deprived from a huge amount of Rs.26,00,000/-. The DPO marked the application to the S.H.O. concerned for necessary action and consequently the F.I.R. ibid was registered against the petitioners. On getting knowledge about the said F.I.R., the petitioners in the first instance approached the court of Sessions Judge and succeeded to get ad interim pre-arrest bail vide order dated 26-8-2011 and soon thereafter they filed the instant petition on the grounds that the co-accused Ashiq Salim, a notorious person, has gone into hiding, whose whereabout is not known. He is required to local police in various cases of fraud and forgery etc; and now has been declared proclaimed offender. The petitioners having no nexus with him have been dragged by the complainant in the instant case F.I.R. for ulterior motives.

2. Learned counsel for the petitioners vividly argued that the registration of impugned F.I.R. No.513 is based on mala fide, against the admitted realities and is aimed only to harass, blackmail and pressurize them for ulterior motive. He argued that prior to registration of the F.I.R. ibid, respondent No.2 and his brother Ahmad Khan Kamrani have already registered another F.I.R. against the said Aashiq Salim under section 489-F, P.P.C. but at that time no allegations of the present nature were levelled, therefore, it is a cooked up case registered after deliberation and consultation. He contended that the alleged occurrence had taken place on 5-5-2005 but till the filing of the present petition, the respondents have remained mum and there is no reasonable explanation for such long delay of about six years. He urged that the petitioners reside within the limits of Police Station City D.I. Khan, while the alleged T.T. was encashed in Islamabad, thus the registration of F.I.R. ibid at Police Station Cantt: D.I. Khan was unjustified. The last limb of his arguments was that neither the alleged transaction took place nor there were any business relations of the petitioners with respondent No.2. The complainant failed to produce any independent and impartial witness in this regard has been produced to substantiate the allegations against the petitioners, thus the F.I.R. is liable to be quashed.

3. In rebuttal, the learned Additional Advocate-General representing the State assisted by the learned counsel for respondents Nos.2 and 3 opposed the petition on variety of grounds.

4. Having heard the arguments of the learned counsel for the parties and perusal of the record reveals that the complainant has charged the petitioner along with others for commission of a cognizable offence. In case the contents of the instant petition and that of the F.I.R. are put in juxtaposition to each other, it brings the case of the parties within the area of disputed questions of facts and law which cannot be resolved by this court in the exercise of its inherent jurisdiction under section 561-A Cr.P.C. which requires proper probe, investigation and evidence of the parties, which is absolutely the job of the trial court. By now it is a settled law that if, prima facie, an offence has been committed, the ordinary course of trial before the competent court cannot be allowed to be deflected by resorting to the exercise of inherent jurisdiction of this court.

5. I have decided to refrain from making any observation about the merits of the case, lest it may prejudice case of either party during the trial. Suffice it to say at this juncture that the grounds urged here hardly furnish any justification for quashment of the F.I.R. in question.

6. Admittedly, the petitioners are charged in the F.I.R. ibid for commission of a cognizable offence and they have succeeded in getting ad interim pre-arrest bail from the court of learned Additional Sessions Judge-I, D.I. Khan vide order dated 26-8-2011. Instead of joining the invesligation, they have filed the instant.petition under section 561-A Cr.P.C. in haste. Needless to mention here that the said section of law has been inserted in the Code of Criminal Procedure for the purpose to recognize and reiterate the inherent powers of the High Courts for passing such an order as would enable it to do justice. The basic object of section 561-A, Cr.P.C. is to fill-up a lacunae existing in the said Code for the matters for which no specific provision or remedy has been provided. Section 561-A, Cr.P.C. undoubtedly could not be frequently applied for determining the guilt or innocence of an accused at a premature stage. Stifling and throttling of criminal proceedings has been disapproved by the apex court through various pronouncements, as it is against the scheme provided by the criminal procedure code. In this respect, reliance may be placed on the case titled Sher Afgan Khan Niazi v. Ali Habib and others 2011 SCMR 1813. The application of the section ibid should not lightly be made as the same would tend to circumvent the due process of law. The principles for invoking the inherent provisions of section 561-A, Cr.P.C. have been enunciated in detail by the honourabnle apex court in the case of Bashir Ahmad v. Zafar ul Islam reported as PLD 2004 SC 298 which are of binding nature.

P L D 2013 Peshawar 120

Before Assadullah Khan Chamkani,J

Qari HAZRAT ALI and 2 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No.52-M of 2013, decided on 8th March, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-e-amd, common intention---Bail, grant of---Case of cross-versions---Delay in registration of F.I.R.---Effect---Accused persons were alleged to have killed the deceased by making indiscriminate firing upon him---First F.I.R. was registered on the day of the occurrence, while the second F.I.R. of complainant was registered after more than two months, vide an order passed by Justice of Peace---Questions as to which version in the two F.I.Rs was correct and which party was aggressor were to be decided by Trial Court after elaborate evaluation of evidence, therefore, case of accused persons came within the ambit of further inquiry---Accused persons were released on bail accordingly.

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

----S. 497(2)---Bail, grant of---Grounds---Case of cross versions arising from the same occurrence---Such cases were covered by grant of bail on the ground of further inquiry as contemplated under S.497(2), Cr.P.C for the reason that question as to which version was correct was to be decided by Trial Court during trial after recording of evidence.

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

----S. 497---Bail, grant of---Grounds---Commencement of trial---Effect--- Where an accused was entitled to concession of bail on merits, then the factum of commencement of trial would not constitute any legal bar to the grant of bail.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

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

----S. 497---Bail, right of---Scope---When an accused became entitled to grant of bail then bail was not a favour but became his right, which could not be refused on any other ground much less hypothetical one.

Syed Ahmad Ali Rizvi and another v. The State PLD 1995 SC 500 rel.

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

----S. 497(1)---Bail, refusal of---Grounds---Offence falling within the prohibitory clause of S.497(1), Cr.P.C.---Effect---Mere fact that offence fell under the prohibitory clause of S.497(1), Cr.P.C. was no ground for refusal of bail.

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

----S. 497(1)---Bail, refusal of---Grounds---Heinousness of the offence---Mere heinousness of the offence was no ground for refusal of bail.

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

----S. 497(1)---Bail, refusal of---Prohibitory clause of S.497(1), Cr.P.C---Scope---Bail could only be refused to an accused if sufficient material had been brought on record showing reasonable ground to believe that accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.

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

----S. 497(1)---Bail, grant of---Scope---Offence falling within the prohibitory clause of S.497(1), Cr.P.C.---Where the accused satisfied the court that reasonable grounds were available to believe that he was not guilty of the offence then the court must release him on bail irrespective of the fact that offence fell within the prohibitory clause of S.497, Cr.P.C.

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

----S. 497---Bail---Tentative assessment of evidence---Scope---Although at bail stage deep scrutiny of evidence was not permissible but at the same time court of law was not precluded from tentatively perusing evidence of eye-witnesses, recovery witnesses, medical reports, cross version and other connecting evidence, and the plea of defence, if any, to form a tentative opinion as to whether accused was prima facie connected with the commission of the offence or not.

Ihsanullah for Petitioners.

Muhammad Esa Sehar for the Complainant.

Khawaja Salahuddin for the State.

Date of hearing: 8th March, 2013.

P L D 2013 Peshawar 127

Before Rooh-ul-Amin Khan, J

ZAIRI GUL---Petitioner

Versus

UMAR ZAD KHAN and others---Repondents.

Civil Revision No.33-B of 2013, decided on 7th February, 2013.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Khyber Pakhtunkhwa Pre-emption Act (X of 1987) Ss.13 & 5---Suit for pre-emption---Production of additional evidence at appellate stage---Scope---Plaintiff impugned order of Appellate Court whereby his application to produce additional evidence regarding notice of Talb-e-Ishhad, before Appellate Court, was dismissed---Validity---Sufficient opportunity was given to the plaintiff for production of evidence and he was legally required to bring before the Trial Court all evidence which was required of him to prove his claim and at such belated stage, to allow plaintiff to produce additional evidence and that too, officials of the Post-Office regarding notice of Talb-e-Ishhad, which had been categorically denied by the vendees, would amount to filling up a lacuna---Additional evidence could not be allowed in order to allow a party to patch up weaker parts of its case or fill up omissions or enable it to raise a new point---Party to an appeal could move the court for production of additional evidence only if it was required by the Appellate Court itself on basis of its own appreciation of the evidence already on record---No illegality existed in the impugned order---Revision was dismissed, in circumstances.

Muhammad Bashir and others' case 2007 SCMR 1105; Bashir Ahmed's case 2011 SCMR 762; Muhammad Yousaf v. Mst. Maqsooda Anjum 2004 SCMR 1049 and Zarait Ullah Khan v. Fazal Ahmad and 29 others PLD 2004 SC (AJ&K) 35 rel.

Sifat Ali Khan Khattak for Petitioner.

P L D 2013 Peshawar 129

Before Qaiser Rashid and Lal Jan Khan Khattak, JJ

Khalifa ABDUL QAYUM---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.6 of 2013, decided on 10th April, 2013.

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

----Ss.12 (2) & 78(3) (d)---Penal Code (XLV of 1860), Ss.199, 200 & 471---Corrupt practice and false declaration---Appreciation of evidence---Scrutiny, non-conducting of---Sentence, quantum of---Determining factors---Accused was ex-Member of Provincial Assembly and allegation against him was that he made false declaration regarding his educational qualification before Returning Officer at the time of filing of his nomination papers---Election Commission filed complaint against accused for committing corrupt practice---Trial Court convicted accused and sentenced him to 3 years' imprisonment with fine---Plea raised by accused was that in his nomination papers he did not declare on oath that degree awarded to him was by a Madrisa having affiliation or registration with Wafaq Tanzeem-ul-Madaris or Rabit-ul-Madaris---Validity---If Returning Officer had taken a little pain to demand from accused his basic Sanad of Shahdat Alia, situation with which accused was faced, could have easily been thwarted---After filing of nomination papers, date was fixed for scrutiny of papers and on that date candidates attended office of Returning Officer who scrutinized their nomination papers and if there was anything short or any loophole in nomination papers then such nomination papers were usually rejected---Returning Officer did not perform his part of duty by asking accused about his basic Sanad of Shahdat Alia, therefore, case for taking lenient view regarding quantum of sentence was made out---Division Bench of High Court maintained conviction awarded to accused but reduced his sentence from 3 years to one year simple imprisonment and fine was maintained---Appeal was dismissed accordingly.

PLD 2010 SC 1089 and PLD 2005 SC 858 rel.

Saleemullah Khan Ranazai and Zahid Mohibullah for Petitioner.

Khan Wali Khan Mehsud, A.A.G. for the State.

Kamran Hayat Miankhel, Federal Standing Counsel for Respondent No.2.

Date of hearing: 10th April, 2013.

P L D 2013 Peshawar 139

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

Mst. SONIYA SHARIF---Petitioner

Versus

BASHIR KUNDI through Legal Heirs and others---Respondents

Writ Petition No.1582/P of 2012, decided on 16th April, 2013.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13-A & 13---Constitution of Pakistan, Art. 199 ---Constitutional petition---Ejectment of tenant---Denial of relationship of landlord and tenant by tenant---Ejectment petition was dismissed concurrently inter alia on the ground that no notice of change of ownership was served on the tenant after the original landlord died---Validity---Perusal of evidence revealed that the tenant had admitted the relationship of landlord and tenant but had later on, after attestation of mutations concerning the premises, had not only denied said relationship but also set up a new story of ownership, firstly in favour of his wife and then another person---Rent Controller non-suited the landlord solely on failure of landlord to comply with S.13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 regarding notice of change of ownership---Notice under S.13-A of the Ordinance, if not served, would not amount to absence of relationship of landlord and tenant and institution of ejectment petition, was also to be treated as a notice of change of ownership---Person, even if he was not owner of a property could be deemed to be a landlord, and similarly he may be the owner but not a landlord---Courts ought to have looked into relationship of landlord and tenant and should not go into the disputed question of title as it was the job of the civil court and not that of the Rent Controller---High Court set aside impugned orders and directed the tenant to vacate the premises---Constitutional petition was allowed, accordingly.

1986 SCMR 751 and 2010 CLC 1941 rel.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Rent Controller, jurisdiction of---Scope---Relationship of landlord and tenant---Person even if he was not owner of a property could be deemed to be a landlord, and similarly he may be owner but not a landlord---Courts ought to look into relationship of landlord and tenant and should not go into the disputed questions of title as the same was the job of the civil court and not that of the Rent Controller.

Alizzur Rahman for Petitioner.

Ajmal Khanzada for Respondents

Date of hearing: 16th April, 2013.

P L D 2013 Balochistan 1

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

Dr. MUHAMMAD ABDULLAH---Petitioner

versus

GOVERNMENT OF PAKISTAN, MINISTRY OF SCIENCE AND TECHNOLOGY through Secretary, Islamabad---Respondent

Constitutional Petition No.372 of 2007, decided on 6th November, 2012.

Constitution of Pakistan---

----Art.204---Obstructing the court proceedings---Strike by law officers---Effect---Court was prevented from hearing petition, as well as large number of other cases, wherein Federation was arrayed as party, because of intentional non-appearance by Federation's law officers---Cause of such non-appearance was Attorney General's personal grievance, which purportedly occurred in Federal Capital---Gripe of Attorney General held dispensation of justice to ransom throughout Pakistan on 1-10-2012---High Court declined to ignore such intentional non-appearance by law officers, as it constituted violation of their statutory duties and could also be categorized as obstructing, interrupting or prejudicing process of law---High Court took lenient view, as it was the first case of its kind and law officers might have been pressurized to become party to illegal protest to secure their respective positions---Deputy Attorney General and Standing Counsel elected not to work on 1-10-2010, therefore, there was no justification for them to be paid for that day---High Court directed government to deduct one day salary of the law officers and recommended Federal Government to treat at par other law officers of the country, who had boycotted court proceedings on 1-10-2012---Order accordingly.

Malik Sikandar Khan, Deputy Attorney General, Chaudhry Mumtaz Yousaf and Rauf Atta, Standing Counsel.

Date of hearing: 1st November, 2012.

P L D 2013 Balochistan 6

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

ISHAQUE---Appellant

Versus

RASHEED and 2 others---Respondents

Criminal Acquittal Appeal No.100 of 2012, decided on 24th October, 2012.

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

----S. 3---Criminal Procedure Code (V of 1898), Ss.265-K & 417---Appeal against acquittal---Appreciation of evidence---Ownership of subject property not established---Time and date of dispossession not mentioned---Civil proceedings pending with regard to subject property---Effect---Complainant (appellant), who claimed to be lawful owner of subject property, filed a complaint against accused persons (respondents) under the Illegal Dispossession Act, 2005---After framing of charge, accused persons filed an application under S.265-K, Cr.P.C, which was accepted by the Trial Court and they were acquitted of the charge---Validity---Admittedly, complainant was not recorded owner of subject property and he had not brought any material on record in support of his complaint---Perusal of complaint showed that grandfather of complainant had granted/gifted part of the subject property to the accused persons---Such admission in the complaint created hurdles in the way of the complainant---Contents of complaint did not reveal as to when accused persons occupied the subject land---Non-mentioning of such fact in the complaint created serious doubts with regard to applicability of Illegal Dispossession Act, 2005 in the matter---Civil litigation regarding the subject property was sub judice before the civil court and present criminal proceedings appeared to be an attempt to prevent the civil proceedings---Trial Court had rightly allowed the application filed under S.265-K, Cr.P.C as the law was settled that incompetent proceedings must be buried at their very inception---No probability existed of accused persons being convicted of any offence---Appeal against acquittal was dismissed, in circumstances.

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

----S. 3 & Preamble---Dispossession occurring prior to enforcement of Illegal Dispossession Act, 2005---Scope---Such dispossession did not entitle the complainant to resort to the provisions of Illegal Dispossession Act, 2005.

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

----S. 265-K---Application under S. 265-K, Cr.P.C, filing of---Stage of proceedings---Scope---No particular juncture/stage was provided in the Criminal Procedure Code, 1898 for filing an application under S.265-K, Cr.P.C and it was the idiosyncrasy of an accused to make such an application and the judicial wisdom of the court seized of the matter to take into account as to whether the application so filed could be disposed of in view of the material on record.

Rehmatullah Bareach for Appellant.

Nemo for Respondents.

Date of hearing: 22nd October, 2012.

P L D 2013 Balochistan 10

Before Qazi Faez Isa C.J. and Naeem Akhtar Afghan, J

MUHAMMAD SALEEM KHAN---Petitioner

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF RELIGIOUS AFFAIRS ZAKAT AND USHER through Secretary and 2 others---Respondents

Constitutional Petition No.668 of 2012, decided on 19th December, 2012.

(a) Constitution of Pakistan---

----Arts. 199 & 189---Hajj Policy, 2012---Constitutional petition---Performance of Hajj on Government expense/public exchequer---Legality---Petitioner was amongst the candidates who had been selected by the respondent-Department for performance of Hajj on Government expense---Provincial Government sent a cheque to the Ministry of Religious Affairs to bear the Hajj expenses for said candidates---Ministry of Religious Affairs declined to receive such payment on the basis that Hajj Policy, 2012 did not contain any provision for performance of Hajj on Government expense, and that Supreme Court in its order dated 8th April, 2012, passed in Suo Motu Case No. 24 of 2010 had observed that no one was authorized under any law to utilize the Government money without any legal justification---Petitioner contended that order of Supreme Court relied upon by the Ministry of Religious Affairs was only an interim order, and even otherwise said judgment did not prohibit the performance of Hajj on Government expense---Validity---Petitioner was seeking permission to perform Hajj at the expense of the people of the province/country, as it was they who generated all revenues that were spent by the Government---No law existed which required that Government could send anyone to perform Hajj at the Government's expense---Money with the Government was the wealth of the people, and the Government was trustee of this trust or "amanat"---Although order relied upon by Ministry of Religious Affairs was only an interim order but it did not mean that same could be disregarded---Article 189 of the Constitution stipulated that any decision of the Supreme Court shall, to the extent that it decided a question of law or was based upon or enunciated a principle of law, be binding on all other courts in the country---Petitioner had also not identified as to which particular Fundamental right of his was being violated, therefore, he was not an aggrieved party/person under Art.199 of the Constitution---Constitutional petition was dismissed in circumstances with the observation that Hajj was a duty on those who were able and could afford the expenses, and that someone who was not able or could not afford the expenses, did not sin if he did not perform Hajj.

(b) Constitution of Pakistan---

----Art. 189---Interim order of Supreme Court---Binding effect---Scope---Interim order of the Supreme Court could not be disregarded---Article 189 of the Constitution stipulated that any decision of the Supreme Court shall, to the extent that it decided a question of law or was based upon or enunciated a principle of law, would be binding on all other courts in the country.

Surah Al-Imran of the Holy Quran, Verse 97 and Surah Hud, 11:85 rel.

Tahir Ali Balochi and Noor Khan Achakzai and Zahoor Mengal for Petitioners.

Date of hearing: 3rd October, 2012.

P L D 2013 Balochistan 13

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

ASMATULLAH KHAN---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and another---Respondents

Constitutional Petition No.257 of 2012, decided on 19th December, 2012.

Constitution of Pakistan---

----Arts. 25, 8, 4, 33 & 199---System of Sardari (Abolition) Act (XL of 1976), Preamble---Constitutional petition---"Sardar/Sardari" system---Petitioner sought direction to the effect that he be declared head of Miankhail tribe and be made a member of the Local Committee in his area---Petitioner wanted representation of the tribe on the Local Committee and based on his contention of being its "sardar" claimed such right and/or privilege for himself---Validity---Constitution neither recognized nor acknowledged that any person was higher in status than another and Art.25 of the Constitution mandated equality of all citizens, which negated anyone from claiming superiority, including superiority on account of being a nawab, sardar, malik, or any other title---System of "sardari" was abolished by the Parliament by System of Sardari (Abolition) Act 1976 and Art.33 of the Constitution read that the State shall discourage parochial, racial, tribal, sectarian and provincial prejudices among citizens---Article 8 of the Constitution stipulated that any "custom or usage", if inconsistent with any Fundamental Right under the Constitution shall be void and therefore, "sardars" or the "sardari" system would be void if treated on the touchstone of Art. 25 of the Constitution---Petitioner, in the present case, was not being denied protection of the law nor he had been able to show that he was not being treated in accordance with law, therefore Art.4 of the Constitution did not support the petitioner---Petitioner was not an "aggrieved person" within meaning of Art. 199 of the Constitution---Constitutional petition was dismissed.

Saleem & Co. v. Deputy Collector of Customs PLD 2001 Lah. 5; Muhammad Asmatullah v. D.C. Sargodha 1998 MLD 1977; Government of Balochistan v. Azizullah Memon PLD 1993 SC 34; Saleem Raza v. State PLD 2007 Kar. 139 and Shaukat Ali v. Secretary, Industries and Mineral Development 1995 MLD 123 ref.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Shela Zia v. WAPDA PLD 1994 SC 693 and Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 rel.

Zafar Khan Mandokhail for Petitioner.

Date of hearing: 18th September, 2012.

P L D 2013 Balochistan 26

Before Qazi Faez Isa, C J

REGISTRAR, HIGH COURT OF BALOCHISTAN---Petitioner

Versus

ABDUL MAJEED and 3 others---Respondents

Civil Revision (Suo Motu) No.244 of 2012, decided on 14th December, 2012.

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

----S. 115(1)---Suo Motu exercise of revisional jurisdiction by High Court---Limitation---No time limit prescribed for exercising such jurisdiction.

Banori (Mst) v. Jilani PLD 2010 SC 1186 and Rehmdil v. Province of Balochistan 1999 SCMR 1060 rel.

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

----S. 115(1)---Non-availing of remedy of appeal against judgment challenged before High Court in revision petition---Effect---Availability of alternate remedy or non-filing of appeal would not preclude High Court from exercising revisional jurisdiction itself---Principles.

Naoomal v. Tarachand AIR 1933 Sind 200 and Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678 rel.

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

----S. 42---University of Balochistan Act (III of 1996), S.3(3)---National Database and Registration Authority Ordinance (VIII of 2000), S.3(2)---Civil Procedure Code (V of 1908), Ss.12(2), 20, 115(1) & O.I, Rr.3, 9---Limitation Act (IX of 1908), S.3 & Art.120---Suit for declaration---Correction of date of birth of plaintiff (Additional District and Sessions Judge) recorded in his National Identity Card issued by National Database and Registration Authority (NADRA) and his degree issued by University of Balochistan, Quetta sought on basis of Age Certificate issued by Medical Superintendent and Dental Surgeon of Government Hospital---Defendants arrayed in the suit being Assistant Controller of Examination of such University and District Registration Officer of the District where suit was filed---Suit decreed by District Judge---University's application under S.12(2), C.P.C. was neither decided nor dismissed by District Judge---Suo Motu exercise of revisional jurisdiction by High Court on basis of note of its Registrar prepared 3 years and 8 months after said judgment/decree, when plaintiff on its basis sought correction of his date of birth in record of High Court---Validity---No time limit prescribed for High Court to exercise revisoinal jurisdiction itself---Non-filing of appeal against impugned judgment/decree would not preclude High Court from exercising revisional powers---Non-suing University and NADRA by their respective names, but instead suing their respective employees by plaintiff would constitute non-joinder of necessary parties---Incorrect description of parties would not be a fatal defect, but plaintiff despite objection raised by University had not amended plaint---Impugned judgment/decree had not been passed against proper parties, thus, same was not binding upon them---Plaintiff's sole object to file such suit was to change his date of birth in record of High Court by extending his date of retirement by three years, but had not impleaded therein High Court through its Registrar---Record sought by plaintiff to be corrected were at Quetta, where alleged cause of action had accrued to him and he was posted---District Judge had exercised territorial jurisdiction not vested in him by law---Suit was time barred for having been filed 31 years after plaintiff got Matriculation Certificate---Accepting date of birth put forward by plaintiff would mean that he would have started schooling at age of two years and done matriculation at age of twelve years---Form-A submitted for getting National Identity Card and lying on record, plaintiff had himself written his date of birth as "1957", which he later on had got changed to 5-12-1960---District Judge had not decided University's application, wherein not only serious allegations were made against plaintiff, but important legal questions were raised---High Court set aside impugned judgment/decree and declared all actions taken pursuant thereto including changes made in plaintiff's degree, national identity card and record of High Court to be illegal, of no legal effect and void ab initio.

Banori (Mst.) v. Jilani PLD 2010 SC 1186; Rehmdil v. Province of Balochistan 1999 SCMR 1060; Naoomal v. Tarachand AIR 1933 Sind 200; Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678 and Muhammad Murad Ali Bugti v. Senior Memebr Board of Revenue (C.P. No.670 of 2011) rel.

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

----O. I, Rr. 3 & 9---Incorrect description of parties---Not a fatal defect.

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

----O. IX, R. 6(1)---Ex parte decree, passing of---Duty of court---Court while proceeding ex parte must ensure passing of its judgment against a legal party.

Registrar High Court for Petitioner.

Respondent No.1 (in person).

Nazeer Khajjak for Respondent No.3.

Date of hearing: 7th September, 2012.

P L D 2013 Balochistan 39

Before Qazi Faez Isa, C.J. and Mrs. Syeda Tahira Safdar, J

THE STATE through Assistant Advocate-General, Ex-Officio and Public Prosecutor Balochistan, Quetta---Appellant

Versus

ABDUL WADOOD---Respondent

Criminal Acquittal Appeal No.352 of 2002, decided on 4th December, 2012.

(a) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)---

----S. 7---Anti-Terrorism Act (XXVII of 1997), Ss.18 & 25---Criminal Procedure Code (V of 1898), S.492---Appeal---Assistant Advocate General---Locus standi to file appeal---Scope---Objection was raised to maintainability of appeal on the ground that appeal filed by Assistant Advocate General was not filed by competent person---Validity---At the relevant time Advocate General and Assistant Advocate General were conducting cases on behalf of the State before High Court, therefore, it was presumed that Assistant Advocate General was duly empowered to file appeal---Objection was overruled in circumstances.

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

----S. 265-K---Power of court to acquit accused at any stage---Discretion---Scope---Discretion is surely available with court before whom case is pending for adjudication but same is to be exercised with due care and caution and within the parameters provided under S.265-K, Cr.P.C.

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

----S. 265-K---Acquittal of accused---Principle---Determining factor for acquittal is non-existence of any probability that accused can be convicted of any offence---Exercise of discretion under S.265-K, Cr.P.C. must be based on reasons, which are to be recorded by court on the basis of material available on record.

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

----S. 17(3)---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7---Criminal Procedure Code (V of 1898), S.265-K---Acquittal---Proceedings at final stage---Sufficient evidence available---Accused was acquitted under S.265-K, Cr.P.C. by Trial Court---Validity---Presence of sufficient evidence, coupled with the fact that proceedings were at final stage---Trial Court should not have acquitted accused while exercising powers under S.265-K, Cr.P.C. and instead should have concluded proceedings after examining accused, and recording evidence in defence, and decided the case on merits---Premature acquittal of accused did not create double presumption of innocence in his favour, which needed consideration while dealing with acquittal secured after judgment on merits and not one based on acquittal in intermediary stage under S.265-K, Cr.P.C.---Trial Court was not justified in accepting application under S.265-K, Cr.P.C. and recording pre-mature acquittal in favour of accused---High Court set aside order of acquittal passed by Trial Court and remanded the case to Trial Court for decision on merits---Appeal was allowed accordingly.

The State v. Raja Abdul Rehman 2005 SCMR 1544 and The State v. Azam Malik PLD 2005 SC 686 ref.

Liaquat Ali for the State.

Syed Ayaz Zahoor for Respondent.

Date of hearing: 14th June, 2012.

P L D 2013 Balochistan 52

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

REHMATULLAH and others---Petitioners

Versus

A. HAMEEDULLAH and others---Respondents

Civil Revisions Nos. 453 of 2007, 338 of 2008 and Constitutional Petitions Nos.455, 538 of 2009, decided on 24th October, 2012.

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

----S. 79---Specific Relief Act (I of 1877) Ss. 42 & 54---Suit by or against the government or public officers in their official capacity---Non-impleadment of government as party in such case---Effect---Suit for declaration and permanent injunction contending inter alia that the plaintiffs' forefathers were co-sharers in suit land; that they were "lathband bazgards" of the Provincial Government over part of suit land and sought to restrain defendants from interfering with their possession of the suit land---Suit was decreed by Trial Court---Contention of the defendants was that suit was not competent in terms of S.79, C.P.C. since suit property was vested with the Provincial Government, which was not impleaded by the plaintiffs as defendants in the suit---Validity---Perusal of record revealed that suit property vested with the Provincial Government and the defendants had raised such objection before the Trial Court upon which an issue was framed---Findings of the Trial Court on said issue were illegal and perverse as in a case where subject matter of a suit was immovable property and the same vested with or was claimed by the Government, in such like cases, Member Board of Revenue through its Secretary was a necessary party---In case of non-impleadment of the Government in the suit, the suit would be incompetent and non-maintainable---High Court set aside the decree of Trial Court and dismissed suit filed by the plaintiffs, with the observation that plaintiffs were at liberty to file fresh suit subject to all just exceptions---Revision was allowed, accordingly.

Government of Balochistan, CWPP & H Department and others v. Nawabzada Mir Tariq Khan Magsi 2010 SCMR 115 rel.

(b) Contempt of Court Ordinance (V of 2003)---

----S. 12---Civil contempt---Contempt proceedings initiated on basis of a decree which itself was a nullity, must be set aside.

(c) Contempt of Court Ordinance (V of 2003)---

----Ss. 5 & 12---Conviction for civil contempt recorded by Trial Court in the light of a decree in a civil suit---Validity---Under S.5 of the Contempt of Court Ordinance, 2003 only the High Court and the Supreme Court could proceed with the matter and record conviction if the case of contempt was made out---Trial Court, in the present case, should have made a reference to the High Court after entertainment of the contempt application but instead of adopting the legal course, the Trial court proceeded with the matter and recorded conviction, which was a course that was in utter disregard to the relevant law and the entire proceedings were therefore, void ab inito and coram nonjudice.

Yasir Arfat v. Vice-Chancellor, Mehran University 2000 CLC 387 rel.

Adnan Ejaz for Petitioners (in Civil Revision No.453 of 2007).

Abdul Majeed Kakar and Abdul Aziz Khilji, Addl. A.G. for Respondents (in Civil Revision No.453 of 2007).

Adnan Ejaz for Petitioners (in Civil Revision No.338 of 2008).

Abdul Majeed Kakar and Abdul Aziz Khilji, Addl. A.G. for Respondents (in Civil Revision No.338 of 2008).

Adnan Ejaz for Petitioners (in Civil Revision No.455 of 2009).

Abdul Majeed Kakar and Abdul Aziz Khilji, Addl. A.G. for Respondents (in Civil Revision No.455 of 2009).

Adnan Ejaz for Petitioners (in Civil Revision No.538 of 2009).

Abdul Majeed Kakar and Abdul Aziz Khilji, Addl. A.G. for Respondents (in Civil Revision No.538 of 2009).

Date of hearing: 17th October, 2012.

P L D 2013 Balochistan 59

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

QAMAR GILL---Petitioner

Versus

IRAM NATHANIEL and 2 others---Respondents

Constitutional Petition No.233 of 2011, decided on 26th December, 2012.

Divorce Act (IV of 1869)---

----Ss. 36 & 3(2)---Constitution of Pakistan, Art.199---Constitutional petition---Christian divorce---Suit for recovery of maintenance allowance (alimony) for wife and minor was decreed concurrently---Contention of the husband (petitioner) was that Trial Court had no jurisdiction in the matter and courts below had not considered evidence in its true perspective---Validity---Husband had not raised the question of jurisdiction in his written statement, as such husband could not go beyond his pleadings and the provisions of S.3(2) of the Divorce Act, 1869 would apply to the present case, whereby the suit could be tried by a civil court in the area where the spouses resided or had been residing together---Since the parties belonged to the Christian faith, the grant of maintenance (alimony) to wife was covered under provisions of the Divorce Act, 1869, and the quantum of the maintenance allowance was to be in conformity with the provisions of S.36 of the Divorce Act, 1869---Findings of courts below could not be interfered with---Constitutional petition was dismissed, in circumstance.

Syeda Tehmina Samad for Petitioner.

Ghulam Mustafa Butt for Respondents.

Date of hearing: 13th November, 2012.

P L D 2013 Balochistan 62

Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ

ABDUL HALEEM and others---Petitioners

Versus

MIR ZAHID and others---Respondents

Constitutional Petitions Nos. 897 of 2007 and 713 of 2010, decided on 24th January, 2013.

British Balochistan Rent Control Regulation (II of 1945)---

----S. 1---West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959), S. 21 & Preamble---West Pakistan Civil Courts Ordinance (II of 1962), S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Redundant legislation---Effect---Eviction applications filed against petitioners under the British Balochistan Rent Control Regulation, 1945 were allowed by Trial Court---Contention of the petitioners was that British Balochistan Rent Control Regulation, 1945 was no longer in field and therefore, order of Trial Court was illegal---Contention of the respondents was that the West Pakistan Urban Rent Restriction Ordinance, 1959 had not been extended to Tribal Areas, to which the present cases pertained, therefore, the British Balochistan Rent Control Regulation, 1945 was still applicable---Validity---British Balochistan Rent Control Regulation, 1945 was promulgated in the year, 1945 and extended to the whole of British Balochistan, and the Chief Commissioner was assigned the power to extend the said regulation to other areas and was authorized to make Rules---After the creation of Pakistan, and upon establishment of the province of Balochistan, the areas known as British Balochistan were no longer in existence, and therefore the British Balochistan Rent Control Regulation, 1945 ceased to hold field---Office of the Chief Commissioner under the said regulation had been abolished and no authority was left to extend the said regulation to the new province---Proceedings under the British Balochistan Rent Control Regulation, 1945 were to be conducted by the courts established under the British Balochistan Courts Regulation, 1938 which had also ceased to exist as presently, the courts were established under the Civil Courts Ordinance, 1962 for the civil matters---Courts were, therefore, not competent to try rent matters under British Balochistan Rent Control Regulation, 1945---Proceedings under the British Balochistan Rent Control Regulation, 1945 were coram non judice---High Court observed that West Pakistan Urban Rent Restriction Ordinance, 1959 was applicable to all urban areas and there would be no harm, with the approval of the Governor, to extend the same to Tribal Areas to provide the people of such areas a mechanism in rent matters---High Court held that no court or Rent Controller shall proceed in matters under the British Balochistan Rent Control Regulation (II of 1945) and directed the Secretary Law and Parliamentary Affairs, of the Provincial Government to immediately take steps for extension of West Pakistan Urban Rent Restriction Ordinance, 1959 to Tribal Areas within a period of thirty days---Constitutional petitions were allowed, accordingly.

Abdullah Khan Kakar for Petitioner.

Tahir Ali Baloch and Noor Khan Achakzai for Respondents Nos. 1 and 2.

Abdul Aziz Khan Khilji, Addl.A.G. Official Respondent:

W.N. Kohli: Amicus curiae.

Date of hearing: 27th September, 2012.

P L D 2013 Balochistan 66

Before Jamal Khan Mandokhail and Muhammad Noor Meskanzai, JJ

MUHAMMAD ASLAM BHOOTANI---Petitioner

Versus

DEPUTY SPEAKER, BALOCHISTAN PROVINCIAL ASSEMBLY and 2 others---Respondents

Constitutional Petition No.926 of 2012, decided on 9th January, 2013.

(a) Constitution of Pakistan---

----Art. 53(7)(c)---Speaker/Deputy Speaker---Removal from office by a resolution of the Assembly---Procedure---Conditions---Article 53(7)(c) of the Constitution provided two conditions for the removal of a Speaker or Deputy Speaker; firstly the issuance of seven days prior notice before tabling a resolution, and secondly, the resolution must be carried out with a majority of the total membership of the Assembly.

(b) Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business, 1974---

----R.2(o)---"Motion" moved by a member of the Provincial Assembly---Meaning---Motion meant any proposal made for the purpose of eliciting a decision of the House to do something, order something to be done or express an opinion with regards to the same matter.

(c) Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business, 1974---

----R. 11--- Constitution of Pakistan, Art. 69 read with Art.127---Court not to inquire into proceedings (internal affairs) of Assembly---Scope--- Proceedings of no confidence motion against Speaker of Provincial Assembly--- Such proceedings came within the purview of "internal affairs" of Assembly.

(d) Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business, 1974---

----R. 11(8)---Constitution of Pakistan, Art. 69 read with Art.127---Court not to inquire into proceedings (internal affairs) of Assembly---Parliamentary privilege enjoyed by members of Assembly---Scope and exceptions--- Assembly, its members and other participants in the parliamentary process did enjoy immunity as far as internal affairs of Assembly were concerned---Courts always uphold and refuse to question the control of House over its internal proceedings to ensure smooth functioning of the Assembly---Assembly was the judge of its internal affairs, but only when the privilege breached, had been declared by law to be parliamentary privilege---Court could however intervene in the internal affairs of Assembly in case of contravention of the Constitution; in case of breach of a fundamental rights or violation of the law; in case a criminal act was committed by a member; in case of an endeavor to trample the constitutional prohibitions, and cases where interpretation of a provision of the Constitution or any statute was involved.

(e) Parliamentary privilege---

----Breach of privilege by member of Parliament---Initiation of proceedings---Jurisdiction and scope---Constitution in no way prevented the legislature from proceeding against its own members for the breach of privilege or any rule, hence, jurisdiction over members exclusively belonged to the House.

(f) Interpretation of Constitution---

----Privileges contemplated by the Constitution---Interpretation---Such privileges were to be liberally interpreted.

(g) Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business 1974---

----R.11(8)---Constitution of Pakistan, Art. 53(7)(c) read with Arts.127 & 199---Constitutional petition---No confidence motion against Speaker of Provincial Assembly---Resolution to remove the Speaker---Voting---Allegation against some members of the Assembly of not maintaining secrecy of ballot---Plea of petitioner (Speaker removed through no confidence motion) was that certain members of the Assembly failed to maintain secrecy of ballot by exhibiting/showing their ballots papers during the vote, which was against Rule 11(8) of Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business, 1974---Validity---Rule 11(8) of Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business, 1974 was directory in nature, as on its violation, no consequence upon the voting proved was suggested, consequently non-adherence of the said Rule would not vitiate the entire proceedings---Allegation of exhibiting ballot papers had been levelled against two to five members---Such allegation, even if true, was a personal act of an individual, therefore, his vote could be cancelled---47 members cast their vote in favour of the resolution, and even if votes of 5 members against whom allegation was made, were deducted, still 42 votes, i.e. majority remained in favour of the resolution---Alleged violation of Rule 11(8) of Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business, 1974 by some of the members would have no bearing upon the net result of the resolution---Proceedings of the resolution could not be termed as illegal in circumstances---High Court, however, observed that members of the Provincial Assembly who violated sanctity of secret ballot violated the rules, which was injurious to the dignity of the House, and it was expected of the Speaker that he might take strict action against such members---Constitutional petition was dismissed accordingly.

(h) Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business 1974---

----R-11---Constitution of Pakistan, Arts. 53(7)(c), 69 (both read with Art.127) & 199---Constitutional petition---No confidence motion against Speaker of Provincial Assembly---Resolution to remove the Speaker---Plea of petitioner (Speaker removed through no confidence motion) was that procedure provided for no confidence motion against him was violated in the present case, therefore, notification vide which he was removed from office should be set aside---Validity---Motion against petitioner was moved and notices were issued within the time stipulated under Art.53(7)(c) of the Constitution read with Art.127 thereof---Resolution was supported by 47 members out of a total of 65 by casting of votes---Petitioner failed to show any constitutional violation to enable the High Court to interfere in the internal proceedings of the Provincial Assembly--- Constitutional petition was dismissed accordingly.

Hadi Shakil Ahmed, Baz Muhammad Kakar, Jamal Abdul Nasir and Wajahat Khan Ghaznavi for Petitioner.

Sardar Abdul Latif Khosa, Kamran Murtaza, Raja Abdul Rehman, Asim Mumtaz, Qari Rehmatuallh, Aminullah Kakar, Munir Ahmed Kakar, Muhammad Qahir Shah and Ali Ahmed Lehri for Respondents.

Amanullah Kanrani, A.G.

Date of hearing: 31st December, 2012.

P L D 2013 Balochistan 75

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

HIGH COURT BAR ASSOCIATION and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Home and Tribal Affairs Department and 6 others---Respondents

Constitutional Petition No.682 of 2011, decided on 5th March, 2013.

(a) Constitution of Pakistan---

----Art. 4---Right of individuals to be dealt with in accordance with law---Scope---Interpretation of Art.4 of the Constitution---Article 4 of the Constitution, though not stipulated as a Fundamental Right, might also be categorized as one on account of the language used therein i.e. it was the inalienable right (of every citizen) to enjoy the protection of the law and to be treated in accordance with the law.

(b) Constitution of Pakistan---

----Art. 199(2) & Part. II, Chap. 1 [Arts.8 to 28]---Jurisdiction conferred upon High Court under Art.199 of the Constitution for enforcement of any Fundamental Right---Scope ---Such jurisdiction could not be abridged or taken away because the Constitution had forbidden it---Any amendment made to the Constitution too might not abridge a Fundamental Right and the power of the High Court to enforce it---In respect of matters of Fundamental Rights no procedural or ceremonious trappings or fetters could be placed upon the High Court.

(c) Constitution of Pakistan---

----Art. 199(1)---Constitutional jurisdiction of High Court---Availability of adequate alternate remedy---Scope---Jurisdiction (under Art.199 of the Constitution) might only be invoked if the High Court was satisfied that no other adequate remedy was provided by law, but this was not an absolute bar since it was to the satisfaction of the High Court to determine the adequacy of the alternative remedy.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition filed before High Court---Non-compliance with any procedural requirement, condonation of---Scope---High Court, might in appropriate cases condone non-compliance with any procedural requirement (for filing a Constitutional petition), if a good cause was shown---Each case had to be considered by the High Court on its own merits.

(e) Constitution of Pakistan---

----Arts. 184(3) & 199---Supreme Court, jurisdiction of---Words "without prejudice" used in Art.184(3) of the Constitution---Meaning--- Words "without prejudice" used in Art.184(3) of the Constitution meant that the Supreme Court had concurrent jurisdiction, which it might exercise, provided the matter was also one of public importance.

(f) Constitution of Pakistan---

----Arts. 199 & 184(3)---Exercise of jurisdiction by High Court under Art.199 of the Constitution---Pre-condition---Scope---Term "public importance" (as used in Art.184(3) of the Constitution) did not find mention in Art.199 of the Constitution and the same was not a precondition for the exercise of jurisdiction under the Art.199 by the High Courts.

(g) Constitution of Pakistan---

----Art. 199---Constitutional petition filed before the High Court under Art.199 of the Constitution---Categories---Filing of petition by an aggrieved party---Scope---Most petitions filed in the High Court under Art.199 of the Constitution were adversarial in nature---Such petitions had to be filed by an aggrieved party or aggrieved person who was also required to comply with the procedural requirements contained in Art.199 of the Constitution, including, to show to the satisfaction of the High Court that there was 'no other adequate remedy' available and he/she/they were 'aggrieved party' in respect of the remedies sought under Art.199(1)(a)(i) and (ii) or 'aggrieved person' in terms of Art.199(1)(c) of the Constitution---Second category of petitions (filed under Art.199 of the Constitution) were those that sought writs of habeas corpus or quo warranto and for such petitions the procedural requirement of an aggrieved party/person had been removed, and a personal grievance need not be shown---Since such a petition fell within the ambit of public interest litigation the High Court might also initiate action itself (suo motu)---Third category of petitions were those where there had been an apparent violation of any Fundamental Right of a serious or grave nature and the High Court itself intervened to ensure that the benefit of the provisions of the Fundamental Rights of the Constitution were not denied merely because nobody had approached the court---Affected person(s) might not be aware of their rights and the protection that the Constitution provided, or they might be scared to approach the court, or there might be other compelling circumstances not to do so--- For such category of cases the procedural requirements would not be a hurdle in the way of the High Court itself, as to hold otherwise would be to effectively abridge the Fundamental Rights enshrined in the Constitution, which was specifically prohibited by Art.199(2) of the Constitution.

(h) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction of High Court under Art.199 of the Constitution---Restrictions---Legality---Jurisdiction of High Court under Art.199 of the Constitution could not be denuded or curtailed, and if an attempt was made the same would be unconstitutional.

(i) Constitution of Pakistan---

----Art. 175(2)---Jurisdiction of superior courts--- Provision of law ousting jurisdiction of superior courts, interpretation of---Scope---Ouster of jurisdiction of the superior courts was not to be presumed and any provision in such regard must be strictly construed.

Fazlul Quader Chowdhury v. Muhamamd Abdul Haque PLD 1963 SC 486 and State v. Zia-ur-Rehman PLD 1973 SC 49 rel.

(j) Constitution of Pakistan---

----Art. 199---Suo motu notice/action by High Court under Art.199 of the Constitution---Practicalities of such a notice/action---When the High Court took suo motu notice in respect of a transgression within its territory it might be able to immediately attend to it---Provincial Government's seat of government was the provincial metropolis, which was also the principal seat of the High Court, therefore, notices would be promptly attended to and also the requisite record and/or facts placed before the court, and the court was better placed to monitor any action that was required to be taken---Sometimes major transgressions of Fundamental Rights might not even come to the notice of the Supreme Court; if they were only reported in the local press or a letter in such regard had been sent to the High Court---Element of cost also had to be considered---Principal seat of the Supreme Court was at Islamabad (capital city of Pakistan) and the victims (and even the perpetrators) who were in the province might not have the funds to travel to and stay at Islamabad or might face other difficulties---Further the respondents in a suo motu petition, if they wanted to assail the decision of the High Court, would be able to approach the Supreme Court.

(k) Constitution of Pakistan---

----Art. 199---Public interest litigation---Jurisdiction exercised by High Court in public interest litigation, nature of---Nature of jurisdiction that the High Court exercised itself in a public interest litigation was inquisitorial (and not adversarial) in nature.

(l) Constitution of Pakistan---

----Arts. 199 & 184(3)---Jurisdiction of High Court under Art.199 and jurisdiction of Supreme Court under Art.184(3) of the Constitution---Distinction---Article 184(3) did not control Art.199 of the Constitution as the former attended to the jurisdiction of the Supreme Court whereas the latter to the jurisdiction of the High Courts---Article 184(3) of the Constitution should not be used as an interpretative tool to determine the scope of Art.199, and also there was no mention of Art.184(3) in Art.199 of the Constitution.

(m) Constitution of Pakistan---

----Arts. 199 & 189---Suo motu notice/action by the High Court under Art.199 of the Constitution---Legality---Plea that High Court did not have any suo motu powers under Art.199 of the Constitution in view of various judgments of the Supreme Court---Validity---Article 199 of the Constitution did not prohibit the High Court itself (or suo motu) from taking notice of the violation of Fundamental Rights---Decisions of the Supreme Court which were prior to the 1973 Constitution (which incorporated Art.199(2)) wherein it was observed that the High Court could not of itself (or suo motu) take notice of the violation of any Fundamental Right or those decisions which did not specifically consider the scope of Art.199(2) or the specific question of the suo motu powers of the High Court were decisions on facts of individual cases or per incuriam and could not be categorized as a "decision … to the extent that it decides a question of law or is based upon or enunciates a principle of law" in terms of Art.189 of the 1973 Constitution.

State v. Inspector General of Police Punjab PLD 2010 Lah. 326; Students of Government Girls College, Kuchlak v. Government of Balochistan 2010 CLC 168; Human Rights Commission of Pakistan v. Government of Pakistan PLD 2009 SC 507; State v. M.D.WASA 2000 CLC 471; Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty 1996 AIR SC 992; Suo Motu v. State of Rajasthan RLW 2005 (2) Raj 1385; Nirmal Singh Kahlon v. State of Punjab AIR 2009 SC 984; R v. Greater London Council, ex parte Blackburn [1976] 3 All ER 184 and Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. 1982 AC 617 rel.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; State v. S.P. Traffic Lahore 2000 PCr.LJ 1290 and Abdul Qaddus Mughal v. Federal Government 2010 YLR 360 ref.

Pakistan v. Ali Afzal PLD 1960 SC 1; Fazl-e-Haq v. State PLD 1960 SC 295; Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192; Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677; Akbtar Abbas v. Nayyar Hussain 1982 SCMR 549; Muhammad Sadiq v. Khairati 1984 CLC 2239; Juvenile Jail Landhi Karachi's case 1990 PCr.LJ 1231; Manzoor Ahmed Watto v. Abdul Wahabul Khairi PlD 1994 Lah. 466; Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Ali Muhammad v. Chief Settlement Commissioner 2001 SCMR 1822 distinguished.

(n) Constitution of Pakistan---

----Art. 199--- Suo motu jurisdiction of the High Court---High Court taking suo motu notice under Art.199 of the Constitution upon a letter addressed to the Chief Justice or a note put up before the Chief Justice that identified serious transgression of Fundamental Rights---Legality---Word "application" used in Art.199 of the Constitution, meaning of---Word application used in Art.199 of the Constitution could not be limited to mean something written on a piece of paper (as the Constitution did not state written application)---Since the word "application" had not been defined in the Constitution, therefore, the same should be given its ordinary English language meaning, which did not restrict "application" to mean (something) only in a written form---Application was in the nature of a 'submission', 'request' or 'claim' and could be written or verbal, or expressed in any other form---Letter addressed to the Chief Justice of a High Court or a note put up before the Chief Justice that identified serious transgression of Fundamental Rights, should be deemed to be an "application" as envisaged under Art.199 of the Constitution---Persons who had been wronged or were subjected to indignities or had suffered atrocities or violence were usually those who did not have knowledge of their Fundamental Rights or were weak or were not in a position to complain, let alone resist the transgression, but were in the fullest sense of the word "aggrieved", therefore, if a letter or a note was put up before the Chief Justice, the same could be deemed to be one submitted on their behalf and thus, even if a pedantic view was taken to determine the scope of the words, "application" and "aggrieved person/party", appearing in Art.199 of the Constitution, both said conditions were met.

(o) Constitution of Pakistan---

----Art. 199---Suo motu notice/action by the High Court under Art.199 of the Constitution---Scope---High Court should exercise care when taking (suo motu) action itself under Art.199 of the Constitution, as there was potential for misuse, and even mischief.

(p) Constitution of Pakistan---

----Art. 199---Suo motu notice/action taken by the High Court under Art.199 of the Constitution---Rules and procedure for such notice/action stated.

High Courts while exercising suo motu jurisdiction under Article 199 of the Constitution should ensure the following:

(i) If a letter is received that prima facie evidences violation of any Fundamental Right, an initial examination should be undertaken to ascertain the identity of the person, the nature of the grievance and whether he is acting bona fide;

(ii) In respect of a serious violation of Fundamental Rights reported in the media or elsewhere, the veracity of such report may be ascertained;

(iii) Where it is considered by the Registrar that the High Court may take notice of the reported violation of Fundamental Rights he should put up a note before the Chief Justice on the administrative side, and if the Chief Justice deems it necessary he may have the same converted into a petition, and direct that the same be numbered as such;

(iv) Save the Chief Justice, individual judges should not take suo motu notice, to avoid confusion and possibly contradictory orders being passed in respect of the same matter;

(v) Depending on the nature of the matter, any person who has the requisite expertise, a reputable non-governmental organization and / or bar association may by arrayed as petitioner(s) so that the High Court receives proper and independent assistance;

(vi) Before proceeding with the matter the Federation, Province and/or a local authority, as the case may be, and any other concerned organization, department or person should be arrayed as respondents;

(vii) Notices should be also issued to the Advocate General and or the Attorney General for Pakistan, as the case may require;

(viii) Before issuing notices, the court should be prima facie satisfied that the information that has been laid before the court requires examination and pertains to the violation or infringement of Fundamental Rights;

(ix) Notices issued to the respondents, the Attorney General and/or the Advocate General must enclose copies of the documents on which cognizance of the matter has been taken, and they must be provided with an opportunity to submit their respective replies;

(x) The High Court should ensure before making a decision that the facts contained in the letter / report are correct;

(xi) If during the course of hearing any additional information is received, which may have a bearing on the case, the same should also be provided to the respondents and they should be given an opportunity to respond thereto;

(xii) The particular Fundamental Right(s) which may have been violated must be identified to enable the respondents to address the same and these must also be mentioned in the decision;

(xiii) If during the hearing of the petition it transpires that there has been no violation of any Fundamental Right, or there is no case to answer in respect of habeas corpus or quo warranto the proceedings should be withdrawn / dismissed;

(xiv) The High Court should not exercise such powers in routine but should do so in exceptional cases, and particularly where those whose Fundamental Rights have been violated are the poor, the weak, the disenfranchised, women, children, members of any minority community, and those who live in fear of force or threat;

(xv) The matter should be heard by a bench of two judges, ideally comprising of the Chief Justice and another judge;

(xvi) The High Court should not involve itself in any dispute which may adversely affect any pending litigation or which may prejudice the private right of any party / person; and

(xvii) A cautious approach should be adopted with a view to ensure that the process of the court is not abused or misused.

(q) Constitution of Pakistan---

----Art. 19---Freedom of speech, restrictions on---Scope---Extremist hate literature, wall-chalking and threatening and spiteful press releases were not permissible because they were contrary to the injunctions (of Islam), undermined the integrity, security and defence of Pakistan, public order, decency and morality---Same were also crimes under the laws of Pakistan, and they incited others to commit crime.

(r) Constitution of Pakistan---

----Arts. 184(3), 199 & 189---Decisions of the superior courts with regard to the enforcement of Fundamental Rights which do not have binding effect---Scope---Decisions of the superior courts with regard to the enforcement of Fundamental Rights under Art.98 of the 1962 Constitution or Art.170 of the 1956 Constitution and which were given at a time of purported suspension of Fundamental Rights or at a time when the High Courts were ostensibly denuded of the power to issue writs or at a time when the powers of the High Court had been curtailed or an independent judiciary had been undermined could no longer be treated as binding precedent with regard to deciding a question of law or which enunciated a principle of law (in terms of Art.189 of the 1973 Constitution) because they were in conflict with the judgment of the Supreme Court in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879).

Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879 ref.

(s) Constitution of Pakistan---

----Arts. 4, 9, 14, 15, 20, 25 & 199---Anti-Terrorism Act (XXVII of 1997), S.11-B---Balochistan Prohibition of Expressing Matters on Walls Ordinance (LI of 2001), Ss.2 & 3---Suo motu notice/action by High Court under Art.199 of the Constitution concerning murder of 26 persons belonging to a particular sect in District Mastung by a banned organization---Victims of the incident were murdered in contravention of the law and the Constitution, and their Fundamental Rights to life, liberty, dignity, movement and religion were abused, contravened and violated---Both the Provincial and Federal Governments failed to protect the lives of countless citizens and thus the right to life guaranteed as a Fundamental Right in the Constitution stood violated---Organization which claimed responsibility for carrying out the murders was a banned organization under S.11-B of Anti-Terrorism Act, 1997---Persons/organizations committing murder, advocating murder, indulging in hate speech, spreading hate propaganda, instilling fear, compelling by threat or force of arms their views contravened the Injunctions of Islam---High Court directed that the investigating team of the murders in question should thoroughly investigate the matter and trace out the perpetrators, ensure their arrest and prosecute them in accordance with the law; that all concerned should extend every possible assistance to the investigating team; that Federal and Provincial Governments should provide requisite resources to the investigators that would help them in detecting, arresting and prosecuting the criminals; that telephone and mobile telephone service providers should provide their record in respect of the crime as required by police; that Federal and Provincial Governments should coordinate and develop an effective mechanism, including sharing of information, for monitoring potential terrorists, and apprehending the perpetrators of present and other terrorist crimes; that Federal and Provincial Governments should develop and maintain a data-bank with information of perpetrators/suspects of heinous crimes and terrorist organizations, including their names, aliases, parentage, addresses, photographs, thumb impressions, DNA, telephone number, weapons used, particular type of explosives used and their respective modus operandi; that access to said data-bank should be provided to senior investigators to help determine similarities and linkages between different crimes and criminals so that they could be traced, arrested and prosecuted; that Federal Government should issue requisite instructions to the Frontier Corps ("FC") deployed in the Province to come to the immediate assistance of the local law enforcement agencies when called upon to do so, and standing operating procedures in such regard should be developed, which should detail how best an effective cooperation methodology between the local law enforcement agency and the nearest FC post be developed; that a specialized cell/unit/division should be established in respect of terrorist acts committed in the Province and such crimes be investigated by senior and experienced officers of police and/or under their supervisions and all Provincial law enforcement personnel should cooperate with them, including the Levies Force operating in the Province; that in respect of serious crimes or terrorist acts the local police/levies should immediately inform the nearest police station, the Police Headquarters and the office of the Home Secretary, who should in turn immediately inform the Interior Ministry; that Federal and Provincial Governments should complete the Forensic Laboratory being setup in the Provincial capital at the earliest; that payment of adequate compensation should be made to the legal heirs of the victims, if the same had not already been paid; that strict compliance should be made with the Balochistan Prohibition of Expressing Matters on Walls Ordinance, 2001 and prosecutions must be launched against those violating S.2 thereof; that all local councils through their respective heads/administrators should immediately remove wall-chalking within the area of their respective jurisdictions; that all Deputy Commissioners serving in the Province should ensure that the officers of the local councils under their jurisdiction were bringing prosecutions under S.2 of the Ordinance, and undertaking their obligations under S.3, failing which disciplinary action against the recalcitrant officers must be initiated, and that concerned officials of the Provincial Government should seek periodical reports from the Deputy Commissioners under their jurisdiction with regard to compliance of the provisions of the Ordinance.

(t) Constitution of Pakistan---

----Arts. 19 & 199---Anti-Terrorism Act (XXVII of 1997), Ss.11-B & 11-W---Suo motu notice/action by High Court under Art.199 of the Constitution concerning murder of 26 persons belonging to a particular sect in District Mastung by a banned organization---Print and electronic media broadcasting and printing propaganda of banned organizations and extremists---Plea of reporters of television channels and newspapers that they were threatened (on the telephone) that if the statement issued by the banned organizations were not prominently announced/printed and at a particular time or on a particular page they would be attacked, therefore, out of fear the reports of banned organizations were published---Validity---Fear could not be accepted to justify propagating the views of banned organizations---Where a threat was extended to media personnel they should immediately report the matter to the police, but under no circumstances a threat could be justified to propagate the views of banned organizations---When the electronic media and the press published propaganda reports out of fear and propagated the views of banned organizations they were not acting as good and responsible journalists, but as mouthpieces for malicious and vile propaganda and also contravened S.11-W of the Anti-Terrorism Act, 1997---High Court directed that both Federal and Provincial Governments should closely monitor the media in such regard to ensure strict compliance of S.11-W of the Anti-Terrorism Act, 1997; that the concerned Ministry and Federal and Provincial intelligence agencies should closely monitor extremist and hate literature and its propagation and should bring the same to the notice of the concerned authorities for proceeding against the perpetrators in accordance with the law; that Federal and Provincial Government should ensure that the organizations proscribed under S.11-B of the Anti-Terrorism Act, 1997 and those in respect of which observations and orders had been passed under S.11-D of the Act, must not be allowed to propagate their views, and strict compliance with S.11-W of the Act should be made against the transgressors, including the electronic and print media.

Zahoor Ahmed Shahwani, Syed Nazir Agha, Dawood Kasi and Iftikhar Raza Khan for Petitioners.

Malik Sikandar Khan, D.A.G., Amanullah Kanrani, A.G., Abdul Ghias Nousherwani, PC., Abdul Aziz Khilji and Amanullah Tareen, Addl. A.Gs., Shai Haq, Asstt. A.G. and Miss Sarwat Hina, Addl. P.C. for Respondents.

Iftikhar Gilani, Senior ASC, S.M. Zafar, Senior ASC and Zain Sheikh, ASC as Amici curiae:

Hadi Shakeel, Syed Ayaz Zahoor, Kamran Mullakhail for (Other counsel who were heard).

Dates of hearing: 16th May, 18th July, 5th and 24th September, and 16th October, 2012.

P L D 2013 Balochistan 133

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

Mst. ZAHRA and another---Petitioners

Versus

MINISTRY OF INTERIOR through Secretary, Government of Pakistan and another---Respondents

Constitutional Petition No.603 of 2012, decided on 24th April, 2013.

Constitution of Pakistan---

----Arts. 33 & 199---Constitutional petition---Non-issuance of Computerized National Identity Cards (CNICs) to persons belonging to the ethnic Hazara community---Racial and sectarian bias and prejudice---Discrimination---One of the petitioners applied for renewal of her Computerized National Identify Card (CNIC) but her card was not renewed by National Databases and Registration Authority (NADRA)---Another petitioner after attaining age of eighteen years applied for her Computerized National Identity Card, but the same was not issued to her by NADRA---Legality---Plea of concerned Ministry and NADRA was that first petitioner did not have a legitimate manual national identity card, and that name of other petitioner was not mentioned in the local certificate of her father---Validity---Both the petitioners belonged to the ethnic Hazara community---Petitioners had attached overwhelming evidence with the present petition---Original documents were also produced before the court and concerned verification officer of NADRA did not point out any discrepancy therein---None of the documents relied upon by the petitioners, which were spread over several years, had been refuted or alleged to have been forged or fake---Both petitioners had produced overwhelming evidence to establish that they were citizens of Pakistan---Even family member of petitioners had been issued Computerized National Identity Cards by NADRA, but petitioners were denied their cards for no cogent reasons---High Court directed NADRA to issue Computerized National Identity Cards to the petitioners and pay them compensatory costs of Rs.5000 each---Constitutional petition was allowed accordingly with the observations that a large number of cases of non-issuance of Computerized National Identity Cards to persons belonging to ethnic Hazara community were coming before the High Court; that it might be that there was a bias or prejudice against said community amongst local officers of NADRA; that Art.33 of the Constitution absolutely forbid any sort of discrimination and prejudices, therefore it was incumbent upon NADRA to stamp out any such bias or prejudice, and it should instruct its officers in such regard.

Syed Muhammad Javed Ahmed and Syed Muhammad Pervaiz Jamal Shah for Petitioners.

Zubair Naseem Khawaja, Law Officer, along with Sheryar Khan Achakzai, Asstt. Director (Verification) NADRA for Respondents.

Date of hearing: 24th April, 2013.

P L D 2013 Balochistan 138

Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ

THE STATE through Prosecutor General Accountability, Pakistan---Appellant

Versus

TARIQ NOUMAN and another---Respondents

Criminal Acquittal Ehtesab Appeals Nos.12, 13, 14, 15, of 2009, decided on 19th March, 2013.

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

----Ss. 249-A & 265-K---Acquittal of accused---Scope---Order of acquittal of accused under S.249-A or 265-K, Cr.P.C. in appeal or revisions proceedings has not the same sanctity as orders of acquittal on merits---Principles which are to be observed and applied in setting aside findings of acquittal or principles relating to presumption of double innocence, when accused is acquitted after full-fledged inquiry and trial to acquittals under S.265-K, Cr.P.C., are not applicable---Paramount consideration of court is to ensure that miscarriage of justice is prevented, which may arise from acquittal of guilty and is no less than from conviction of an innocent---Where admissible evidence is ignored, duty is cast upon appellate court to re-appreciate evidence in case, where accused has been acquitted for the purpose of ascertaining as to whether any of the accused committed any offence or not.

(b) Evidence---

----Circumstantial evidence---Scope---Such evidence is not direct to point in issue but consists of evidence of various other facts, which are so closely associated with fact in issue, if taken together they form a chain of circumstances, from which existence of principal fact can be legally inferred or presumed.

(c) Administration of justice---

----Law favours disposal of cases on merits---Interest of justice demands that both parties be provided opportunity to prove their versions by producing evidence---Duty of court is not only to protect innocent but also to punish the guilty.

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

----Ss. 249-A & 265-K---Acquittal of accused---Object, scope and purpose---Object of exercise of powers under S.265-K & 249-A, Cr.P.C. available to Trial Court is to prevent abuse of law---Where sufficient prima facie evidence is available, powers may not be exercised as to throttle process of justice---Main consideration to be kept in view is whether continuance of proceedings before court would be futile exercise, wastage of time and abuse of process of court or not---If on the basis of facts admitted and patent on record no offence can be made out, then it would amount to abuse of process of law to allow prosecution to continue with trial.

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

----Ss. 9(a), 25 (b) & 32---Criminal Procedure Code (V of 1898), Ss.249-A & 265-K---Corruption and corrupt practices---Acquittal of accused---Availability of incriminating evidence---Scope---Accused were acquitted by Trial Court under S.265-K, Cr.P.C.---Plea raised by authorities was that there was sufficient evidence against accused which could have resulted in conviction of accused---Validity---In case of corruption and misappropriation of public money, court was required to act with extreme care and caution in deciding such case and should not proceed hastily in acquitting accused persons involved therein either under S.249-A or 265-K, Cr.P.C., as the cases might be---Prosecution should provide every possible opportunity to prove its case and establish guilt of accused after a full-fledged trial---Besides evidence of two witnesses, record was also indicative of the fact that two accused who were holders of public office while taking benefit of S.25 of National Accountability Ordinance, 1999, voluntarily returned embezzled amount acquired by them---Most of bogus claims were submitted by employees of accused and whole embezzled amount of Rs.52 million along with interest was also deposited by co-accused, who happened to be nephew of principal accused---Such evidence required explanation from accused without which it could not have been ignored or discarded from consideration---Orders of acquittal passed by Trial Court were set aside and cases of accused were remanded to Trial Court to proceed from the stage at which the case stood when application of accused persons under S.265-K, Cr.P.C. were decided.

The State through Advocate General, Sindh High Court of Karachi v. Raja Abdul Rehman 2005 SCMR 1544 rel.

Syed Mansoor Shah, Special Prosecutor (NAB) for Appellants.

Mujeeb Ahmed Hashmi, Rauf Ahmed Hashmi and Bahadur Khan for Respondents.

Date of hearing: 31st October, 2011.

P L D 2013 Balochistan 144

Before Mrs. Syeda Tahira Safdar and Abdul Qadir Mengal, JJ

THE STATE and another---Appellants

Versus

HAMEED and another---Respondents

Murder Reference No.8 and Criminal Appeal No.210 of 2012, decided on 12th March, 2013.

Penal Code (XLV of 1860)---

----Ss. 302(b), 309, 310, 311 & 323---Criminal Procedure Code (V of 1898), S.345---Qatl-e-amd---Compromise---Waiver---Afw of Qisas---Payment of Badal-e-Sulh---Compromise was arrived at between accused and legal heirs of the deceased, whereby legal heirs of the deceased had waived their right of Qisas without accepting any Diyat or compensation, and prayed that accused be acquitted of the charge---Genuineness of compromise arrived at between the parties was duly verified by the Sessions Judge---Out of nine legal heirs of the deceased two were minors---Mother of said minors appeared before the court and recorded her statement on their behalf, with the assertion that she had waived the right of Qisas on behalf of the minors being their mother and natural guardian, and that she had forgone the Diyat---Validity---In view of S.309, P.P.C., there could be no waiver of right of Qisas to the extent of minors, only right available would be compounding of right of Qisas, which could be exercised by 'Wali' of minor on their behalf---Such right was further protected by the Proviso contained in subsection (2) of S.309, P.P.C.; there must be an acceptance of "Badal-e-Sulh" and value of the same would not be less than the value of Diyat---Waiver of right of Qisas by mother of the minors on their behalf without accepting any compensation, was neither legal nor just---Condition provided in S.310, P.P.C. of "Badal-e-Sulh", was to be observed being a legal requirement and without determination of value of "Badal-e-Sulh", the right of Qisas could not be allowed to be compounded---Settlement arrived at between the parties only would amount to waiver or compounding of right of Qisas, and order of acquittal was not its ultimate result---Discretion lay with the court to make an order of acquittal or conviction of the offender, keeping in view the facts and circumstances of the case and nature of the offence---Accused was acquitted of the charge under S.302(b), P.P.C.; he would remain in custody until he paid the amount of 'Badal-e-Sulh' determined as Rs.32,00,000 as per requirement of S.311, P.P.C.---Said amount would be deposited in the National Savings in the names of minors in equal shares until they attained majority.

Muhammad Wasay Tareen, Prosecutor-General for the State (in Murder Reference No.8 of 2012).

Sardar Ahmed Haleemi for Respondents (in Murder Reference No.8 of 2012).

Sardar Ahmed Haleemi for Respondents (in Criminal Appeal No.210 of 2012).

Muhammad Wasay Tareen, Prosecutor-General for the State (in Criminal Appeal No.210 of 2012).

Date of hearing: 28th November, 2012.

P L D 2013 Supreme Court 1

Present: Iftikhar Muhammad Chaudhry, C J

Jawwad S. Khawaja and Khilji Arif Hussain, JJ

Air Marshal (Retd.) MUHAMMAD ASGHAR KHAN---Petitioner

Versus

General (Retd). MIRZA ASLAM BAIG, FORMER CHIEF OF ARMY STAFF and others---Respondents

Human Rights Case No.19 of 1996, decided on 19th October, 2012. (Application by Air Marshal (Retd.) Muhammad Asghar Khan)

(a) Constitution of Pakistan---

----Arts. 17(2), 41(1), 42, 51(6)(a), 244 & 184(3)---Human Rights Case concerning creation of "Election Cell" in the Presidency with the aid of Chief of Army Staff and officials of intelligence agencies to provide financial assistance from public exchequer to favoured candidates, or a group of political parties to achieve desired results in the elections held in the year 1990---Maintainability---Present case was based on the fundamental right of citizens enshrined in Art.17 of the Constitution and raised an important question of public importance to enforce the fundamental rights---President of Pakistan at that time, supported a group of political parties through the "Election Cell" established in the President House and for that purpose, funds were arranged and the same were distributed to various politicians/political parties through intelligence agencies--- People were thus deprived of their fundamental right under Art.17 of the Constitution to participate in a free, fair and just election, particularly in the constitution of national or provincial assemblies, where interference was made by a person not below the status of a functionary who was Head of the State and symbol of unity as per Art.41(1) of the Constitution---Sums were disbursed to a group of politicians by individuals, who were members of the Armed Forces, in particular intelligence agencies with a view to manoeuvre the election results in derogation of the fundamental right guaranteed under Art.17(2) of the Constitution---Present case was of great significance and the Supreme Court, in exercise of its jurisdiction under Art.184(3) of the Constitution was called upon to discharge its responsibility of enforcing fundamental rights of the people guaranteed under the Constitution---Case was registered under Art.184(3) of the Constitution by the Supreme Court, accordingly.

Mian Nawaz Sharif v. Federation PLD 1993 SC 473; Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681; Shahid Orakzai v. The Federation PLD 2011 SC 365; Benazir Bhutto's case PLD 1988 SC 416; Benazir Bhutto v. Federation of Pakistan PLD 1989 SC 66; Muhammad Nasir Mahmood v. Federation of Pakistan PLD 2009 SC 107; Smt. Indira Nehru Gandhi v. Raj Narain AIR 1972 SC 1302 = [(1975) Suppl 1 SCC 1] and People's Union for Civil Liberties v. Union of India (2009) rel.

Benazir Bhutto v. The Federation PLD 1988 SC 416 at 518-533.; Mian Nawaz Sharif v. The President PLD 1993 SC 473 at 558, 559; Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad PLD 2010 SC 817 at 826; Muhammad Rizwan Gill v. Nadia Aziz PLD 2010 SC 828 at 838; Alleged Corruption in Rental Power Plants 2012 SCMR 773; NRO Implementation proceedings 2012 SCMR 1434; PLD 2012 SC 866; Watan Party v. The Federation (Memo Matter) PLD 2012 SC 292; Watan Party v. The Federation, (Karachi Suo Motu), PLD 2011 SC 997; Shahid Orakzai v. The Federation PLD 2011 SC 365 and Mst. Amatul Begum v. Muhammad Ibrahim Sheikh, 2004 SCMR 1934, Para 8 ref.

(b) Constitution of Pakistan---

----Arts. 17(2), 41(1), 42, 51(6)(a), 243(2), 244 & 184(3)---Human Rights Case concerning creation of "Election Cell" in the Presidency with the aid of Chief of Army Staff and officials of intelligence agencies to provide financial assistance from public exchequer to favoured candidates, or a group of political parties to achieve desired results in the elections held in the year 1990---President of Pakistan, apolitical role of---Scope---Involvement of intelligence agencies in political affairs---Effect---Corrupt practices in election process---Material produced established that "Election Cell" had been created in the Presidency with the aid of Chief of Army Staff and Director General of the intelligence agency---Said "Election Cell" was functioning to provide financial assistance from public exchequer to favoured candidates, or a group of political parties to achieve desired results by polluting the election process and depriving people from being represented by their chosen representatives---President of Pakistan, under Art.41(1) of the Constitution, was the Head of the State and represented the unity of the Republic, whereas by virtue of Art.243(2) of the Constitution, he was also the Supreme Commander of the Armed Forces, therefore, he was not supposed to undertake any activities in pursuance whereof a particular group of the political parties might be allegedly supported in the name of "national interest"---President, under the Constitution, was the Supreme Commander of the Armed Forces, he obviously had no authority to create "Election Cell" or support a favoured candidate/political party/group of political parties, either by issuing directions to the Armed Forces or to civilians to make efforts for achieving desired results---Even if any such illegal order was transmitted, the same was not worthy to be obeyed---Certain sum of money was raised for the purpose of supporting favoured candidates of a specific political group in the general elections held in the year, 1990; the money was raised under instructions received from the "Election Cell" established in the Presidency; the disbursement of such money was carried out under the supervision of Director General of the intelligence agency by opening certain accounts---Officers of the Presidency under the direct supervision of the President were involved in disbursement of the money---Duly elected representative (the President) under no circumstances had power to encourage any political or unconstitutional activities of the intelligence agency, however, in the present case, Director General of the intelligence agency, with full knowledge and information of the then Chief of Army Staff, with illegal orders, blocked the flow of democratic order instead of allowing the citizens/voters/electors to elect their chosen representatives freely, fairly and justly---Such action by uniformed Generals of the Army not only violated discipline but also brought a bad name to the institution of the Armed Forces---Chief of Army Staff and Director General of intelligence agency with the connivance of the then President, supported the latter in ensuring the success of favoured candidates or a political party or a group of political parties to achieve the desired result as they indulged into corruption and corrupt practices by furnishing and providing finances to some of the political personalities and in this manner, the election process was corrupted---Chief of Army Staff and Director General of the intelligence agency participated in unlawful activities of the "Election Cell" in violation of the responsibilities of their respective institutions, and their acts were individual acts and not of the institutions represented by them---Intelligence agencies had no role to play in the political activities/politics, for formulation or destabilization of political Governments, nor could they facilitate or show favour to a political party or group of political parties or politicians individually, in any manner, which might lead in their success---Supreme Court directed that any "Election Cell"/"Political Cell" in the Presidency or intelligence agencies or within their formations should be abolished immediately and any letter/notification to the extent of creating any such Cell/Department should stand cancelled forthwith; that the acts of the then President, Chief of Army Staff and Director General of intelligence agency had brought a bad name to the country, Armed Forces as well as secret agencies, therefore, notwithstanding that they might have retired from service, the Federal Government should take necessary steps under the Constitution and law against them; that a transparent investigation should be initiated by the Federal Investigation Agency against all those politicians who allegedly received donations to spend on election campaigns in the general election of year 1990, and if sufficient evidence was collected, they should be sent up to face trial, according to law; that Chief Executive of the bank in question (who provided financial assistance) should also be dealt with in the same manner, and that proceedings should also be launched against the persons (politicians) for effecting the recovery of sums received by them with profit thereon by initiating civil proceedings against them, according to law.

Ahmed Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646 and Mian Nawaz Sharif v. Federation PLD 1993 SC 473 ref.

(c) Constitution of Pakistan---

----Art. 184(3)---Human Rights Case---Inquisitorial proceedings---Supreme Court, jurisdiction of---Scope---Supreme Court had ample powers and jurisdiction to adjudicate upon a case if the same fell within the ambit of inquisitorial proceedings.

Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681; Watan Party v. Federation of Pakistan PLD 2011 SC 997 and All Pakistan Newspapers Society v. Federation of Pakistan PLD 2012 SC 1 rel.

(d) Constitution of Pakistan---

----Arts. 17(2), 41(1), 42, 51(6)(a), 243(2), 244 & 184(3)---Human Rights Case concerning creation of "Election Cell" in the Presidency with the aid of Chief of Army Staff and officials of intelligence agencies to provide financial assistance from public exchequer to favoured candidates, or a group of political parties to achieve desired results in the elections held in the year 1990---Objection regarding bias of Supreme Court Bench---Attorney General contended that there was a strong appearance of bias on the part of the Judges constituting the present Bench, therefore, if justice was to be seen to be done, then all the Judges of the present Bench might consider the propriety of recusing themselves from the Bench, and a larger bench might be constituted, excluding the present Judges---Validity---Regarding Superior courts, it was entirely a matter for the concerned Judges to decide as to whether they would or would not sit in any particular case---Objection raised by the Attorney General was based purely on conjectures and was unwarranted, particularly when he himself had been appearing in the present case and participating in the proceedings ever since its hearing was taken up by the present Bench and during such period, the case was heard on more than 30 dates--- Members of the present Bench were fully conscious of their responsibilities and were capable of dispensing justice without fear or favour, ill-will or affection---Objection of Attorney General was untenable and was overruled by Supreme Court accordingly.

Pakistan v. Abdul Wali Khan PLD 1976 SC 57; Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Canons of Professional Conduct and Etiquette of the Pakistan Bar Council, Chap. III rel.

(e) Constitution of Pakistan---

----Arts. 41(1), 42, 48 & 243--- Parliamentary Republic---President, office of---Apolitical role---Scope---Constitutional system of government in Pakistan was that of a Parliamentary Republic---President was the Head of the State and represented the unity of the Republic, therefore, after being sworn in as the President, he owed a constitutional duty to represent the unity of the Republic as Head of the State and under the Constitution he was not supposed to support any favoured candidate in the elections or a group of political parties---Need for a symbolic figurehead who was representative of the State in its majesty was central to the structure of the parliamentary system---President in Parliamentary Republics was expected to be apolitical/non-partisan and objectively disengaged with any and all affiliations of political, ethnic, linguistic, or geographic nature---President being the symbol of the unity of the Federation occupied a neutral position under the Constitution and was not envisaged by the Constitution to be supporting or backing any particular political party or a group of political parties, or certain individual politicians or candidates contesting election from a given platform to the disadvantage of any other political party, politician, political worker, individual, etc.---President represented the majesty of the State, though only symbolically, and had rapport with all manner of people and parties, being above politics---President, as the constitutional Head of the State, was obliged to perform his functions and duties neutrally and impartially and was not supposed to indulge into politics.

Mian Nawaz Sharif v. Federation PLD 1993 SC 473; Pakistan Lawyers' Forum v.Federation of Pakistan PLD 2011 Lah. 382; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Constituent Assembly Debates: Official Report', New Delhi: Lok Sabha Secretariat 1999 and Samsher Singh v. Punjab AIR 1974 SC 2192 rel.

Sindh High Court Bar v. Federation of Pakistan PLD 2009 SC 879; State v Dosso PLD 1958 SC 533; Asma Jilani v. Government of the Punjab PLD 1972 SC 139; Begum Nusrat Bhutto v. Chief of Army Staff PLD 1977 SC 657; Syed Zafar Ali v. Federation of Pakistan PLD 2000 SC 869; Wasim Sajjad v. Federation of Pakistan PLD 2001 SC 233; Federation of Pakistan v. Haji Saifullah Khan PLD 1989 SC 166; Kh. Ahmed Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646, Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473; Mohtarma Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Qazi Hussain Ahmed v. General Pervez Musharraf PLD 2002 SC 853; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2011 Lah. 382; Muhammad Khan Achakzai v. Federation of Pakistan PLD 1997 SC 420; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Province of Sindh v. Rasheed A. Rizvi PLD 2012 SC 649; Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84; Sajjad Ali Shah v. Asad Ali 1999 SCMR 640 and Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 ref.

(f) Parliamentary system---

----"Common law tradition" and "Civilian (Roman) law tradition"---Distinction.

Muhammad Suhail v. Government of N.-W.F.P. 1996 PLC (C.S.) 364 ref.

(g) Constitution of Pakistan---

----Art. 260(1)---President, as a person in "Service of Pakistan"--- President after entering into his office obtained the status which fell under the definition of a person who was in the "Service of Pakistan".

Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244;Henry Farran Darley v. Reg. [(1846) 8 ER 520]; Syeda Abida Hussain v. Tribunal for NA 69 PLD 1994 SC 60 and Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

(h) Constitution of Pakistan---

----Art. 260(1)---Judge as a person in "Service of Pakistan"---Judges and Chief Justices of the superior courts were included in the scope of "Service of Pakistan"

(i) Constitution of Pakistan---

----Art. 255---Oath of office---State functionary---Oath of office, violation of---Commission of an illegal act--- Effect--- Any violation of the oath of office or any other illegal act committed by a State functionary was a personal act for which the individual concerned would be liable in accordance with law, and the institution to which such individual might belong would not be involved in it in any way.

(j) Constitution of Pakistan---

----Arts. 243(1) & 245(1)---Armed Forces---Action undertaken without direction of Federal Government--- Effect--- Any action of the Armed Forces undertaken without a direction by the Federal Government was unconstitutional, illegal, void ab initio and consequently of no legal effect.

Sindh High Court Bar v. Federation of Pakistan PLD 2009 SC 879 rel.

(k) Constitution of Pakistan---

----Arts. 243(1), 244 & 245(1)--- Member of Armed Forces---Constitutional duty---Scope---Within the prescribed parameters, a soldier had to remain committed to defending the country against external aggression or threat of war, and subject to law, acting in aid of civil power when called upon to do so under the directions of the Federal Government---Soldier, in the course of the discharge of his duties, was obligated to seeing that the Constitution was upheld, it was not abrogated, and it was not subverted or mutilated---When a member of the Armed Forces did any of the said acts, or any other similar act, he violated his oath and rendered himself liable to action under and in accordance with the Constitution and the law.

Sindh High Court Bar v. Federation of Pakistan PLD 2009 SC 879 rel.

(l) Constitution of Pakistan---

----Arts. 17(2), 243(2), 244, 245(1) & 184(3)---Pakistan Army Act (XXXIX of 1952), S. 33---Human Rights Case concerning creation of "Election Cell" in the Presidency with the aid of Chief of Army Staff and officials of intelligence agencies to provide financial assistance from public exchequer to favoured candidates, or a group of political parties to achieve desired results in the elections held in the year 1990---Authority of the President over Armed Forces---Scope---Obligation of officials not to obey unlawful orders of superiors---Scope---Contention on behalf of the Chief of Army Staff was that he was bound to follow the orders of the then President in terms of S.33 of the Pakistan Army Act, 1952---Validity---President could not have issued any command to the Army Chief or the Director General (DG) of the intelligence agency as the President did not have any operational authority with respect to the Armed Forces---Although as per Art.243 of the Constitution, the Supreme Command of the Armed Forces was said to vest in the President, but no independent executive authority was given to the President---Vesting of the Supreme Command in the President did not empower the President to act in his discretion or upon his satisfaction, therefore, no question of a command, let alone a command by the then President to make disbursement of money among favoured politicians arose---Chief of Army Staff and Director General (DG) of the intelligence agency were required to comply with only those orders/directions of their superiors which were legal and within their competence---Compliance with an illegal or an incompetent direction/order from the then President could neither be justified on the plea that it came from a superior authority nor could it be defended on the ground that its non-compliance would have exposed them to the risk of disciplinary/adverse action.

Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Darwesh M. Arbey, Advocate v. Federation of Pakistan through The Law Secretary PLD 1980 Lah. 206; Justice Hasnat Ahmed Khan v. Federation of Pakistan PLD 2011 SC 680; Sindh High Court Bar Association v. The Federation PLD 2009 SC 879; Watan Party v. Federation PLD 2011 SC 997; NRO Judgment Implementation: Adnan A. Khawaja v. State [Criminal Miscellaneous Application No. 486 of 2010 in Criminal Appeal No. 22 of 2002 and Suo Motu Case No. 4 of 2010]. Order dated 10-01-2012; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530; Muhammad Akhtar Shirani v. Punjab Tex Book Board 2004 SCMR 1077; Province of Punjab v. Ibrar Younas Butt 2004 SCMR 67; Iqbal Hussain v. Province of Sindh 2008 SCMR 105; Government of Pakistan v. Farheen Rashid 2009 PLC (C.S.) 966; Human Rights Cases No. 4668 of 2006, etc. PLD 2010 SC 759 and Muhammad Afsar v. Malik Muhammad Farooq 2012 SCMR 274 ref.

(m) Civil service---

----Unlawful orders of superiors---Liability of officials obeying such orders---Scope---Government functionaries were expected to comply with only those orders/directions of their superiors which were legal and within their competence---All officers who obeyed unlawful commands were individually liable--- Compliance with an illegal or incompetent direction/order could neither be justified on the plea that it came from a superior authority nor could it be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action---All superior officers who gave unlawful commands or who failed to prevent unlawful action on the part of their subordinates were liable and culpable.

Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 and Muhammad Akhtar Shirani v. Punjab Tex Book Board 2004 SCMR 1077 rel.

Province of Punjab v. Ibrar Younas Butt 2004 SCMR 67; Iqbal Hussain v. Province of Sindh 2008 SCMR 105; Government of Pakistan v. Farheen Rashid 2009 PLC (C.S.) 966; Human Rights Cases No.4668 of 2006, etc. PLD 2010 SC 759 and Muhammad Afsar v. Malik Muhammad Farooq 2012 SCMR 274 ref.

(n) Constitution of Pakistan---

----Art. 5 & Third Sched.---Oaths of office---Oath taken prior to existence of present Constitution---Allegiance to the existing/present Constitution---Scope---Article 5 of the Constitution (1973) imposed upon every citizen an inviolable obligation to obey the Constitution--- Any earlier oath that required allegiance to the country necessarily included allegiance to the present Constitution.

(o) Constitution of Pakistan---

----Art. 17 & Preamble---Election process---Right of citizens to elect their representatives---Scope---Citizens as a matter of right were free to elect their representatives in an election process which was conducted honestly, justly, fairly and in accordance with law.

(p) Constitution of Pakistan---

----Arts. 41(1) & 42---Office of the President---"Duty to treat all equally"---Scope---President being Head of the State represented the unity of the Republic under Art.41 of the Constitution and as per oath of his office, he had to do right to all manner of people, according to law, without fear or favour, affection or ill-will, in all circumstances---Holder of office of the President would violate the Constitution, if he failed to treat all manner of people equally and favoured any set.

(q) Constitution of Pakistan---

----Arts. 244 & 245(1)--- Political affairs --- Process of elections--- Role of intelligence agencies---Scope--- Intelligence agencies had no role to play in the political affairs of the country such as formation or destabilization of government, or interference in holding of honest, free and fair elections---Involvement of the officers/members of secret/intelligence agencies in unlawful (political) activities, individually or collectively called for strict action being violative of oath of their offices, and if involved, they were liable to be dealt with under the Constitution and the law.

Salman Akram Raja, Advocate Supreme Court assisted by Malik Ghulam Sabir, Advocate along with Air Marshal (R) M. Asghar Khan for Petitioner.

Irfan Qadir Attorney General for Pakistan, Dil Muhammad Khan Alizai, DAG, Raja Abdul Ghafoor, Advocate-on-Record assisted by Barrister Shehryar Riaz Sheikh, Advocate, Commander Hussain Shahbaz, Director (L), Wing Comd. M. Irfan, Deputy Director for the Federation/M.O. Defence.

Muhammad Akram Sheikh Senior Advocate Supreme Court assisted by Ch. Hassan Murtaza Mann, Advocate along with General Retd. Mirza Aslam Baig for Respondent No.1.

Ltd. General Retd. Asad Durrani, Ex-D.G., ISI (in person) as Respondent No.2.

Muhammad Munir Piracha, Senior Advocate Supreme Court for Respondent No.3.

Sh. Khizar Hayat, Senior Advocate Supreme Court for Appellants (in C.M.A. No.918/2007).

Roeded Khan (in person) as Appellant (in C.M.A. NO.3196/2012).

Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in C.M.A. No.3410/2012).

Malik Asif Hayat, Secretary to the President and Arshad Ali Chaudhry, Director Legal (On Court's Notice (for President Secretariat).

Raja Abdul Ghafoor, Advocate-on-Record for SBP.

Mazhar Ali Chaudhry, DPG and Brig.(R) Hamid Saeed (in person) for NAB.

Nemo for HBL

Date of hearing: 19th October, 2012.

P L D 2013 Supreme Court 120

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

IMRAN KHAN and others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 31 of 2011, 45 of 2007, 111 and 123 of 2012, decided on 5th December, 2012.

(a) Constitution of Pakistan---

---Arts. 218(3) 219 & 220---General election/ bye-election---Election Commission, duties of---Scope---Under Art. 218(3) of the Constitution, it was the duty of the Election Commission to organize and conduct the elections and to make such arrangements as were necessary to ensure that the election was conducted honestly, justly, fairly and in accordance with law, be it a general election or a bye-election---For achieving such purpose Election Commission could seek assistance, if necessary from the Executive authorities in the Federation, which were obliged to render such assistance by virtue of Art.220 of the Constitution.

(b) Constitution of Pakistan---

----Art. 219---Electoral rolls, preparation and revision of---Duty of Election Commission---Scope---Under Art. 219 of the Constitution, the Election Commission was charged with the duty of preparing electoral rolls and revising the same annually so as to enable all the eligible voters to exercise their right of franchise.

(c) Constitution of Pakistan---

----Art. 184(3)---Proceedings under Art.184(3) of the Constitution---Scope---Such proceedings were not limited to adversarial proceedings to be initiated by a wronged litigant seeking redressal of his individual grievance.

(d) Constitution of Pakistan---

----Art. 184(3) & Part. I, Chap. 1 [Arts.8-28]---Public interest litigation---Locus standi, rule of---Scope---Rule of locus standi was not applicable to cases involving questions of public importance with reference to enforcement of the Fundamental Rights, especially in the domain of public interest litigation to ensure a meaningful protection of the rule of law to all citizens.

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Muhammad Yaseen v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 C 132 rel.

(e) Constitution of Pakistan---

---Arts. 218(3), 219(a) 51(2)(c) & 184(3)---Constitutional petitions under Art. 184(3) of the Constitution concerning errors and irregularities in the preparation of electoral rolls of city of Karachi---Maintainability---Under Art. 184(3) of the Constitution, Supreme Court was empowered to ensure fulfilment of the command of the Constitution of holding elections honestly, justly, fairly and in accordance with law---Present petitions were maintainable and the grievances raised therein were justiciable by the Supreme Court---Constitutional petitions were maintainable.

Mubasher Lucman v. Federation of Pakistan and others PLD 2011 SC 775 ref.

Lakshmi Charan Sen and others v. A.K.M. Hassan Uzzaman and others AIR 1985 SC 1233 and C. Lakshmi Narain v. The Chief Election Commission AIR 1997 Madras 125 distinguished.

(f) Constitution of Pakistan---

---Arts. 218(3), 219(a), 51(2)(c) & 184(3)---Electoral Rolls Act (XXI of 1974), Ss. 4 & 17---Constitutional petitions under Art. 184(3) of the Constitution concerning errors and irregularities in the preparation of electoral rolls of city of Karachi---Contentions of petitioners were that a large number of voters of Karachi had been disenfranchised and their names had been removed from the electoral roll; that approximately 50% votes of the electors of Karachi had been shifted to other parts of the country and in their places, names of unverified voters had been inserted, which was likely to lead to rigging in the elections and that the object of holding free, fair, honest and just election would be defeated unless the names of voters were re-verified on a door-to-door basis in accordance with the Constitution and the law through their Computerized National Identity Cards (CNIC)---Validity---Even after the preparation of final electoral rolls of Karachi, the necessity of a further door-to-door verification was conceded by the Election Commission---Election Commission had also not implemented directions of the Supreme Court regarding delimitation of different constituencies of Karachi given in the judgment of Watan Party v. Federation of Pakistan (PLD 2011 SC 997)---Discrepancies in the electoral rolls of Karachi identified by the petitioners, examined in conjunction with the admitted position of the Election Commission that a door-to-door verification of the entire residents of Karachi had not been carried out lead to the conclusion that the electoral rolls of Karachi did not inspire confidence and the possibility that a significant number of residents of Karachi might have been disenfranchised could not be ignored---Accurate electoral rolls was a sine qua non for the holding of a free, fair and transparent election, which was not only the command of the Constitution but also a Fundamental Right of the citizens, which appeared to have been compromised qua the residents of Karachi---Electoral rolls of the city of Karachi were required to be revised by the Election Commission in exercise of powers conferred upon it under Art. 219 of the Constitution read with Electoral Rolls Act, 1974---Supreme Court directed the Election Commission to carry out proper and complete door-to-door verification in Karachi so as to ensure that no voter was disenfranchised or dislocated and all other discrepancies were rectified as early as possible, and that in view of the peculiar security situation in Karachi such verification must be carried out by the Election Commission with the help and assistance of Army and Frontier Constabulary.

Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681 and Watan Party v. Federation of Pakistan PLD 2011 SC 997 ref.

(g) Constitution of Pakistan---

---Arts. 218(3) & 219(a) & 51(2)(c)---Electoral roll, accuracy of---Significance---Accurate electoral rolls was a sine qua non for the holding of a free, fair and transparent election, which was not only the command of the Constitution but also a Fundamental Right of the citizens.

Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681 ref.

(h) Words and phrases---

---"Annual"---Meaning and definition.

World Book Dictionary, Volume One; American Heritage (R) Dictionary of the English Language, Fourth Edition; American Heritage (R) Science Dictionary and Webster's 1913 Dictionary ref.

(i) Constitution of Pakistan---

---Arts. 218(3), 219(a) & 51(2)(c)---Electoral Rolls Act (XXI of 1974), S.4---Electoral rolls, preparation of---Scope---Elections must not only be held in a fair, just and honest manner but also appear to be so; in order to inspire the confidence of the electorate---Provisions of Art.219 of the Constitution and the Electoral Rolls Act, 1974 and rules framed thereunder must necessarily be interpreted in a manner so as to achieve the said object.

National Insurance Company v. Life Insurance Corporation (AIR 1963 SC 1171 and Prem Kevalram Shahani v. Government of Pakistan PLD 1989 Kar. 123 ref.

Hamid Khan, Senior Advocate Supreme Court, Waqar Rana, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in Const. P.31 of 2011).

Sardar Khurram Latif Khan Khosa, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners (in Const. P.45 of 2007).

Rashid A. Razvi, Senior Advocate Supreme Court for Petitioners (in Const. P.111 of 2012).

Dr. M. Shamim Rana, Advocate Supreme Court with Saleem Zia, Advocate for Petitioners (in Const. P. 123 of 2012).

Dr. Muhammad Farogh Naseem, Advocate Supreme Court for Applicant (in C.M.A. No.4840 of 2012).

Dil Muhammad Alizai, DAG for Federation.

Muhammad Munir Paracha, Advocate Supreme Court, Syed Sher Afghan, DG (Elections) and Muhammad Nawaz, Law Officer for Election Commission.

Mehmood A. Shaikh, Advocate-on-Record and Muzaffar Ali, DG for NADRA.

Date of hearing: 28th November, 2012.

P L D 2013 Supreme Court 160

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

Nawabzada SHAH ZAIN BUGTI and others---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.349 of 2012, decided on 5th November, 2012.

(Against the judgment of the High Court of Balochistan dated 6-9-2012 passed in Criminal Revision No.92 of 2012).

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

----S. 540---Power of court to summon material witness---Scope---Section 540, Cr.P.C gave wide powers to the court to examine any witness as a court witness at any stage of the case and in certain cases imposed a duty on the court to summon witnesses who could not otherwise be brought before the court---Where court found that investigation was defective, it could not sit idle and had to exercise all enabling provisions under the law including S.540, Cr.P.C to discern the truth---For purposes of S.540, Cr.P.C, the Court even without any formal application from prosecution or accused, could summon any person as witness or examine any person in attendance as a witness or recall and re-examine any person already examined.

Jamatraj Kewalfi Govani v. State of Maharashtra AIR 1968 SC 178; Ansar Mehmood v. Abdul Khaliq 2011 SCMR 713 and Shahbaz Masih v. The State 2007 SCMR 1631 ref.

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

----S. 540---Power of court to summon material witness---Application under S.540, Cr.P.C, dismissal of---Scope---Court could not summarily dismiss an application for additional evidence in terms of S.540, Cr.P.C by merely holding that either the said witness was not mentioned in the challan or that it was belated or that it might fill up lacunas in the prosecution case, unless the totality of material placed before the court was considered to find out whether examination of the said witness was essential for a just decision of the case.

Iddar and others v. Aabida and another AIR 2007 SC 3029 ref.

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

----S. 540---Penal Code (XLV of 1860), Ss. 353/109/186---Anti-Terrorism Act (XXVII of 1997), S.7---Pakistan Arms Ordinance (XX of 1965), Ss.13(d)/16/20---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---Power of court to summon material witness---Scope---Frontier Constabulary and police acting co-jointly allegedly recovered huge quantity of arms and ammunition from accused persons (petitioners)---Prosecution filed an application before the Trial Court under S. 540, Cr.P.C for summoning officials of Frontier Constabulary as prosecution witnesses on the ground that they were eye-witnesses of the occurrence, and the police official who was an eye-witness and investigated the case had died and could not be examined---Trial Court dismissed the application, however High Court reversed the same holding that it was appropriate to allow the prosecution to produce the remaining witnesses---Validity---Case of the prosecution was that a joint team (comprising of officials of Frontier Constabulary and police) was formed which intercepted the convoy from which arms and ammunitions mentioned in the F.I.R. were allegedly recovered---Examination of officers who were part of the joint team was essential for just decision of the case, more so when the investigating officer, who was also an eye-witness, died during the trial---Judgment of High Court insofar as it allowed prosecution to produce additional evidence was in accord with the mandate of S.540, Cr.P.C, however, observations made by the High Court in its order with regard to quality of investigation was uncalled for and was likely to prejudice the case of either side---Petition was converted into appeal and allowed, judgment of High Court insofar as it allowed prosecution to produce additional evidence was upheld, and Trial Court was directed to proceed with the trial uninfluenced by any observation made by the High Court in its judgment which might have had the effect of prejudicing either parties case on merits.

Abdul Hafeez Pirzada, Sr. Advocate Supreme Court, Afzal Siddiqi, Advocate Supreme Court and M.A. Sheikh, Advocate-on-Record for Petitioners.

Tahir Iqbal Khattak, Addl. P.G. Balochistan for the State.

Date of hearing: 5th November, 2012.

P L D 2013 Supreme Court 167

Present: Anwar Zaheer Jamali and Asif Saeed Khan Khosa, JJ

WATAN PARTY and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.28 of 2012, decided on 7th November, 2012.

(Petition under Article 184(3) of the Constitution)

(a) Constitution of Pakistan---

---Arts. 29, 38 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution relating to non-provision of funds and inordinate delay in the gasification project of available Thar coal reserves---Development projects---Policy making---Federal and Provincial Governments, domain of---Scope---Interference in policy making by Supreme Court---Scope---Petitioners contended that policies and priorities of the Government with regard to the project in question were neither pragmatic nor bona fide, therefore, Supreme Court should issue necessary directions to expedite the completion of the project, which was likely to play a vital role in the economic development of the country and for the betterment of the poor people---Validity---Policies were to be made by the respective Federal and Provincial Governments and all decisions regarding their implementation were also to be taken by them on the basis of determined priorities of different projects and availability of financial resources at their disposal---Such exercise could not be ordinarily interfered with by the Supreme Court by invoking its jurisdiction under Art.184(3) of the Constitution, unless shown to be mala fide or in violation of the fundamental rights guaranteed under the Constitution to every citizen of the country, thereby affecting the interest of public at large---Concerned officials from Federal and Provincial Government stated in court that funds had been released for the project in question and work was in progress---Supreme Court observed that in view of statement of said officials and material placed on record, it was satisfied that no further action was required to be taken in the present petition, which had served its purpose to a great extent upon release of 50% funds for the project in question and commitment of Federal Government for release of remaining 50% funds within the financial year---Constitutional petition was disposed of accordingly.

PLD 1994 SC 693 ref.

(b) Constitution of Pakistan---

---Arts. 29 & 38---Development projects---Policy making---Federal and Provincial Governments, domain of---Scope---Functions of policy making or determining priorities of various development projects in the country, were the exclusive domain and function of the Federal and Provincial Governments, as the case might be, who had their own ministers, departments, commission and consultants, etc. for policy making and for determining priorities of various projects and their implementation.

Barrister Zafarullah Khan, Advocate Supreme Court for Petitioners.

Habibullah Shakir, Addl. Attorney General and Azhar Khan, Director, M/o Petroleum for Respondents Nos. 1 and 2.

Muhammad Qasim Mirjat, Addl. A.G. Sindh and Ajaz Ali Khan, Secretary, Coal and Energy Deptt. for Government of Sindh.

Abdul Rehman, Chief (S&T) Planning Commission for Respondent No.4.

Date of hearing: 7th November, 2012.

P L D 2013 Supreme Court 171

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

DILBER KHAN---Appellant

Versus

MUHAMMAD ASHRAF---Respondent

C.M.A. No.261 of 2011 in Civil Appeal No.1432 of 2010, decided on 27th September, 2012.

(On appeal from the judgment dated 2-11-2010 of Lahore High Court, Rawalpindi Bench in C.R.No.113 of 2002).

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

---S. 13---Constitution of Pakistan, Art. 189---Suit for pre-emption---Talb-i-Muwathibat---Particulars of Talb-i-Muwathibat not pleaded in the plaint---Effect---Binding effect of a judgment of the Supreme Court, passed during pendency of a lis before the High Court---Scope---Trial Court passed decree in favour of pre-emptor (appellant)---Appeal filed by defendant/respondent was dismissed by the First Appellate Court---High Court in its revisional jurisdiction allowed revision petition filed by respondent/defendant and dismissed suit of pre-emptor by relying on the judgment of Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302)---Contentions of pre-emptor were that decree in his favour was passed prior to the said judgment, therefore the applicable law to the matter was the one before the said judgment, which prescribed that there was no requirement of mentioning particulars in the plaint of a suit for pre-emption, and that High Court could not transgress its revisional authority by relying upon law laid down by the Supreme Court during the pendency of the revision petition before it---Validity---Latest judgment of the Supreme Court, which enunciated a principle of law, in respect of a specific particular law by interpreting the same, should be given full effect and should be strictly followed till the time the lis stood finally terminated/determined, meaning thereby that it (lis) was not pending before any forum; this was irrespective of the fact as to when the case was instituted or the decision was passed by the first Court or subsequent courts---Final and conclusive judgment of the apex (Supreme) Court deciding a question of law, or based upon or enunciating a principle of law, should have binding effect and should be adhered to in letter and spirit---Present case was squarely covered by the judgment of Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) at revisional stage and revisional Court (High Court) was duty bound to decide the matter as per thereto in terms of Art.189 of the Constitution---Pre-emptor was required to prove/establish particulars (of Talb-e-Muwathibat) but evidence showed that said particulars were conspicuously missing---None of the witnesses produced by the appellant with regard to Talb-e-Muwathibat had deposed about the date, time and venue of making the same---Appeal was dismissed in circumstances.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 ref.

Ch. Afrasiab Khan, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellant.

Nemo for Respondent.

Date of hearing: 27th September, 2012.

P L D 2013 Supreme Court 174

Present: Tassaduq Husssain Jillani, Mian Saqib Nisar and Sarmad Jalal Osmany, JJ

DIRECTOR GENERAL, NATIONAL SAVINGS, ISLAMABAD---Appellant

Versus

BALQEES BEGUM and others---Respondents

Civil Appeal No.1060 of 2010, decided on 27th September, 2012.

(On appeal from the order dated 27-7-2010 of Lahore High Court Multan Bench, Multan in I.-C.A. No.263 of 2010).

(a) Prize Bonds Rules, 1999---

----R. 15---Public Debt Act, (XVIII of 1944), S. 24---Constitution of Pakistan, Art. 199---Prize bond---Time period of six years allowed for presenting prize bond for attaining prize---Relaxation in such time period---Scope---"Compassion" as a ground for providing relief under Art. 199 of the Constitution---Scope---Prize bond was presented by respondent after the expiry of period of six years provided under R. 15 of Prize Bonds Rules, 1999, but High Court in its constitutional jurisdiction allowed her claim on compassionate grounds by observing that she was a simple village folk residing in a remote village having no means to check whether she had won the prize, and that her claim was only barred by four months---Legality---High Court had admitted that claim of respondent was unenforceable under law and only compassion prevailed with the judge in the peculiar circumstances of the case---Compassion, which could be said to have the shade, overtone and nexus to the rules of equity could not be given precedence and over-riding effect over clear mandate of law---Concepts of "compassion" and "hardship" should be considered by courts for providing relief to an aggrieved party in terms of Art. 199 of the Constitution, only when there was room in the relevant law to do so, but undoubtedly not by breach of law---Rule 15 of Prize Bonds Rules, 1999 unambiguously contemplated that not only the liability of Federal Government to pay the prize would come to an end by the flux of time, but also that the right of a person/holder of prize bond would stand extinguished---Said rule was a double check/ bar on the right of the prize bond holder to receive the money and was a clear mandate of law---No provision in the Prize Bond Rules, 1999 catered for situations of "hardship" or "compassion" and no power was vested under the said Rules with any authority to enlarge/relax the period of six years on such grounds---Appeal was allowed, impugned judgments were set-aside and consequently writ petition filed by respondent stood dismissed.

Messrs Pfizer Laboratories Limited v. Federation of Pakistan and others PLD 1998 SC 64 distinguished.

(b) Equity---

----Principles---Relief---Scope---Equity had to give way to law and its principles could only be resorted to and invoked when the resolution of a proposition was not provided and available by or under the law; it was equity then which came into play to fill up the vacuum, where the law provided no answer for doing justice---Rules of equity could not be taken into account to frustrate and defeat the law.

(c) Constitution of Pakistan---

---Art. 199---Constitutional petition---"Compassion"/ "hardship" as a ground for awarding relief---Scope---Concepts of compassion and hardship should be considered by Courts for providing relief to an aggrieved party in terms of Art. 199 of the Constitution, only when there was room in the relevant law to do so, but undoubtedly not by breach of law and moreso not by stultifying the right accrued to the opposite side and /or by enforcing a right which the aggrieved party under the law had lost.

Raja Aleem Khan Abbasi, D.A,G. for Appellant.

Kh. Muhammad Farooq, Sr. Advocate Supreme Court for Respondent.

Date of hearing: 27th September, 2012.

P L D 2013 Supreme Court 179

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

Malik IQBAL AHMAD LANGRIAL---Appellant

Versus

JAMSHED ALAM and others---Respondents

Civil Appeals Nos.812 and 813 of 2012, decided on 1st October, 2012.

(On appeal from the judgment dated 8-8-2012 passed by the Election Tribunal Punjab in Election Petitions Nos.139 and 142 of 2008).

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

----S. 99(1)(cc)---Conduct of General Elections Order (7 of 2002), Art.8A---Constitution of Pakistan, Art. 62(1)(f)---Election petition---Fake degrees presented for contesting elections---Power of Court/Tribunal to declare a person as not sagacious, righteous or ameen for purposes of being elected or chosen as member of Parliament---Scope---Election Tribunal declared the appellant a person who was neither righteous nor honest and ameen on the grounds that; firstly, he was declared an imposter by the Provincial Election Tribunal regarding his claim of educational qualification at the time of elections held in the year 2002; secondly, he was not holder of a sanad (degree) from a madrassa recognized by the Higher Education Commission; thirdly, two sanads (degrees) of Deeni Madrassa (religious education institution) presented by him in the elections held in the year 2008 were fraudulently manufactured through dishonest means of forgery and fabrication; and lastly, he had not passed the two additional subjects as per law laid down by the Supreme Court---Validity---Regarding elections held in the year 2002, Provincial Election Tribunal had concluded that appellant was not a graduate and filed fake educational documents to pose himself a graduate to overcome the disqualification provided under S.99(1)(cc) of Representation of the People Act, 1976---During the elections held in the year 2008, appellant produced two sanads (degrees) of Deeni Madrassa (religious education institution) to substantiate that he held a Bachelor's degree to become eligible to contest the election, however after thorough examination of record and evidence, Election Tribunal held that both the sanads (degrees) were the result of forgery and fabrication---Appellant also could not produce any documentary evidence to prove his claim that he had passed the two additional subjects as per law laid down by the Supreme Court---Under Article 62(1)(f) of the Constitution there was no restriction upon the Court/Tribunal to declare any person to be not sagacious, righteous or ameen---Admittedly the appellant had used fake documents not only in the year 2002 but also in the year 2008 and also made a false declaration making him liable to criminal action---Spirit with which words sagacious, righteous, non-profligate, honest and ameen had been used by the Constitution for the eligibility of candidates contesting elections of National or Provincial Assembly could not be allowed to be frustrated by allowing entry into the doors of National or Provincial Assembly of persons who secured their educational documents through unfair means and were found guilty of such condemnable acts by the competent authority---Appellant was not worthy of credence and could not be allowed to be entrusted with State responsibilities of law making or be given charge of the national exchequer or be eligible to represent the people---Finding of Election Tribunal to the effect that appellant was not righteous, honest or ameen could not be expunged in circumstances---Findings of Election Tribunal were unexceptionable---Appeals were dismissed accordingly.

Sanaullah Khan v. District Returning Officer, Mianwali PLD 2005 SC 858; Asmatullah Khan v. Muhammad Sarwar 2011 SCMR 107; Muddasar Qayyum Nahra v. Ch. Bilal Ijaz 2011 SCMR 80 and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan (Constitution Petitoin No.5 of 2012) ref.

Hamid Khan, Sr. Advocate Supreme Court, Muhammad Waqar Rana, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Mian Abdul Qudoos, Advocate Supreme Court for Respondent.

M. Siddique Baloch, Advocate Supreme Court for the State.

Nemo for the Remaining Respondents.

Date of hearing: 1st October, 2012.

P L D 2013 Supreme Court 188

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

Dr. MUHAMMAD ASLAM KHAKI and others---Petitioners

Versus

S.S.P. (OPERATIONS) RAWALPINDI and others---Respondents

Constitutional Petition No.43 of 2009, decided on 25th September, 2012.

(Under Article 184(3) of the Constitution)

Constitution of Pakistan---

---Arts. 9, 23, 25A, 51(2) & 184(3)---Constitutional petition under Art.184(3) of the Constitution against molestation and humiliation of eunuchs and restoration of their fundamental rights---Fundamental rights of eunuchs---Scope---Present petition was instituted for the enforcement of fundamental rights of eunuchs, guaranteed under the Constitution including security of life and property, as they were more vulnerable amongst citizens---Rights of eunuchs were fully protected under the Constitution including the right to inherit property---Eunuchs were not to be deprived from their legitimate right to movable and immovable property, their right to get education and their right of franchise---Participation jobs of eunuchs in all walks of life had to be ensured and they should not be intervened either by their relatives or by any other functionary---Eunuchs enjoyed the same rights under the Constitution and were entitled to be respected by all segments of the society and they should be treated equally with other citizens---Supreme Court observed that in the past eunuchs were not treated at par with other citizens but now with the cooperation of the Federal and Provincial Governments and other organizations, eunuchs were being respected as citizens of the country---Constitutional petition was disposed of accordingly.

Dr. Muhammad Aslam Khaki (in person) with Shahana Abbas, Shazia and Mahwish (Unix) for Petitioners.

Dil Muhammad Khan Alizai, DAG for the Federation.

Muhammad Azam Khattak, Addl. A.G. for the Government of Balochistan.

Syed Arshad Hussain Shah,Addl. A.G., Syed Masoom Shah, DS,S.W. and Jehandad, Dy. Director for Government of Khyber Pakhtunkhwa.

Jawwad Hassan, Addl. A.G. and Muhammad Shafique Awan, D.O.S.W. for Government of Punjab.

Sahib Jamal, Manger (Law) for NADRA.

Nemo for ICT.

Nemo for Rwalpindi Police.

Date of hearing: 25th September, 2012.

P L D 2013 Supreme Court 190

Present: Mian Saqib Nisar and Muhammad Ather Saeed, JJ

UNAIR ALI KHAN and others---Petitioners

Versus

FAIZ RASOOL and others---Respondents

Civil Petitions Nos.1834-L and 1835-L of 2010, decided on 7th December, 2012.

(Against the judgment dated 11-5-2010 of the Lahore High Court, Multan Bench, Multan passed in Civil Revisions Nos.12-D and 13-D of 2005).

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

---Ss. 14 & 13---Suit for pre-emption---Issuance of Talb-i-Ishhad through attorney/agent---Scope---Power of attorney not specifically authorizing agent to issue notice of Talb-i-Ishhad---Effect---Pre-emptors' (petitioners) had filed a suit for pre-emption through their attorney/agent, who also issued notice of Talb-i-Ishhad---Suit was dismissed on the ground that power of attorney of agent did not empower him to make Talb-i-Ishhad by issuing a notice in the context of S.13 of Punjab Pre-emption Act, 1991---Pre-emptors contended that power of attorney authorized their agent to institute a suit for pre-emption and such authority also included ancillary and incidental powers/authority given by principal, qua issuance of notice of Talb-i-Ishhad---Validity---Power of attorney in question was restricted to institution of suit for pre-emption and matters incidental thereto (the suit), and it made no mention at all of empowering the agent/attorney to issue notice of Talb-i-Ishhad---Under S. 14 of Punjab Pre-emption Act, 1991 power of making Talbs could be delegated to an agent, but such power must be conferred specifically and in express terms and that too before making of Talbs---Pre-emptors, in the present case, had not made a valid Talb-i-Ishhad, therefore, their claim of pre-emption had been rightly dismissed by courts below---Petition was dismissed accordingly and leave was refused.

Nawab Ali through General Attorney v. Javaid Iqbal Nabi and others PLD 2009 Lah. 49 approved.

(b) Power of attorney---

---Interpretation---Agent/attorney, powers of---Scope---Power of attorney should be construed strictly and only such powers, which were expressly and specifically mentioned in the power of attorney, must be exercised by the agent as considered to have been delegated to him.

PLD 2002 SC 71 rel.

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

----Ss. 14 & 13---Suit for pre-emption---Making of Talbs through attorney/agent---Scope---Under S.14 of Punjab Pre-emption Act, 1991 power of making Talbs could be delegated to an agent, but such power must be conferred specifically and in express terms and that too before making of Talbs---Where there was no express authority, such lapse could not be made up by the principal subsequently on the principle of ratification under the law of agency.

Pir S. Kaleem A. Khurshid, Sr. Advocate Supreme Court for Petitioners.

Alamgir, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Respondents.

Date of hearing: 7th December, 2012.

P L D 2013 Supreme Court 193

Present: Mian Saqib Nisar and Muhammad Ather Saeed, JJ

ABDUL KHAN---Petitioner

Versus

RAMZANO BIBI---Respondent

Civil Petition No.1851-L of 2010, decided on 7th December, 2012.

(Against the order dated 14-9-2010 of the Lahore High Court, Lahore passed in Civil Revision No.150 of 2008).

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

----S. 13(3)---Suit for pre-emption---Talb-i-Ishhad, notice of---Proof---Notice of Talb-i-Ishhad had to be attested by two truthful witnesses which requirement was sine qua non for making a valid Talb-i-Ishhad and also for the exercise of right of pre-emption.

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

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for pre-emption---Talb-i-Ishhad, notice of---Admissibility as evidence---Requirement---Notice of Talb-i-Ishhad was to be attested by two witnesses and it could not be used in evidence until and unless said two witnesses had been produced to prove attestation of the same.

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

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for pre-emption---Notice of Talb-i-Ishhad, proof of---Attesting witnesses of such notice not examined---Effect---Pre-emptor's (petitioner) suit for preemption had been dismissed by courts below on the ground that attesting witnesses of the notice of Talb-i-Ishhad had not been examined by him---Validity---Without examination of witnesses of notice of Talb-i-Ishhad, said notice would not qualify the test of proof as envisaged under Art. 79 of Qanun-e-Shahadat, 1984 and thus could not be used as a piece of evidence to prove making of Talb-i-Ishhad by the preemptor---Pre-emptor's right of pre-emption was extinguished in such circumstances---Petition was dismissed in circumstances and leave was refused.

Abdul Rauf Farooqi, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 7th December, 2012.

P L D 2013 Supreme Court 195

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Khilji Arif Hussain, JJ

Syed MAHMOOD AKHTAR NAQVI and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

[Petition by Ms. Anita Turab for protection of Civil Servants: In re]

Constitution Petitions Nos.23 and 11, Criminal Original Petitions Nos.23, 24 and 27, H.R.C. No. 14427-P, C.M.As. Nos. 1575, 1611, 1792, 197-K and 231-K and Criminal Miscellaneous Application No.587 of 2012 in Criminal Original Petition No. 24 of 2012 in Constitution Petition No.11 of 2012.

(a) Civil Servants Act (LXXI of 1973)---

----Ss. 4, 5, 9 & 10---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Constitution of Pakistan, Arts. 9, 14, 18 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution seeking elaboration of constitutional and legal safeguards relating to the working of civil servants---Maintainability---Matter of tenure, appointment, posting, transfer and promotion of civil servants could not be dealt with in an arbitrary manner; it could only be sustained when it was in accordance with the law---Decision which deviated from the accepted or rule-based norm without proper justification, could be tested on the touchstone of a manifest public interest---Fundamental rights of civil servants, inter alia, under Arts.9, 14 & 18 of the Constitution were aspects arising in the present constitutional petition---Constitutional petition was maintainable.

Tariq Aziz-ud-Din's case 2010 SCMR 1301; Syed Yousaf Raza Gillani v. Assistant Registrar PLD 2012 SC 466 and Mehmood Akhtar Naqvi v. Federation of Pakistan, Constitution Petition No.5 of 2012 ref.

(b) Civil Servants Act (LXXI of 1973)---

----S.16---Constitution of Pakistan, Arts. 5 & 184(3)---Civil servant, duties of---Non-subservience to political executive and impartiality---Scope---Although civil servants did have a duty to follow the policy guidelines and directions of the political executive yet, because of Art.5 of the Constitution, their foremost duty was "obedience to the Constitution and the law", not unthinking obedience to all directives (right or wrong) issued from the political executive---Civil servants were public servants and were, therefore, meant to take decisions only in accordance with law in the public interest---Civil servants in their capacity as advisors in decision making or as administrators and enforcers of law, were not subservient to the political executive---Civil servants were under an obligation to remain compliant with the Constitution and law, hence they were not obliged to be servile or unthinkingly submissive to the political executive---Civil servants to give advice in the best public interest and were to administer the law impartially being incharge of the machinery of the State.

Quaid-e-Azam Mohammad Ali Jinnah Speeches as Governor General of Pakistan 1947-48, Sang-e-Meel Publications, Lahore: 2004 ref.

(c) Civil Servants Act (LXXI of 1973)---

----Ss. 3 & 5---Rules of Business, (1973), R. 5(10)---Appointment and conditions of service of civil servants---Transaction of business---Civil servant, opinion of---Scope---Implementation of policy or directives, might be required in some cases notwithstanding the considered views of a civil servant to the contrary, however in such an event, the civil servant should record his/her honest and considered opinion without fear---Decisions violating the law relating to appointment and terms and conditions of service of civil servants which were manifestly wrong and were likely to cause gross injustice or undue hardship should be considered important enough for the purpose of R. 5(10) of Rules of Business, (1973).

(d) Civil Servants Act (LXXI of 1973)---

----Preamble---Object of civil Servant Act, 1973---Parliament had enacted Civil Servants Act, 1973 for providing meaningful legal guarantees to civil servants and doing away with arbitrariness---Object of Civil Servants Act, 1973 was to legally "regulate the appointment of persons to, and the terms and conditions of service of persons in, the service of Pakistan" (Preamble)---Rule of law was the key idea reflected in the whole scheme of the Act.

(e) Civil Servants Act (LXXI of 1973)---

----Ss. 4, 5, 9 & 10---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution seeking elaboration of constitutional and legal safeguards relating to the working of civil servants---Tenure, appointment, promotion and posting/transfer of civil servants---Favoritism/discouragement of merit---Effect---Tenure, appointment, promotion and posting/transfer were of utmost importance in the civil service, and if same were made on merit in accordance with definite rules, instructions etc., they would rightly be considered and treated as part of the terms and conditions of service of a civil servant; however, where rules and instructions were deviated from and as a result merit was discouraged on account of favoritism, sifarish or considerations other than merit, it should be evident that the civil service would not remain independent or efficient.

(f) Civil Servants Act (LXXI of 1973)---

----Ss. 5 & 11---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---Civil Servants (Efficiency and Discipline Rules), 1973---Constitution of Pakistan, Art. 184(3)---Appointment and removal of civil servants---Principles---Whenever there were statutory provisions or rules or regulations which governed the matter of appointments of civil servants, the same must be followed, honestly and scrupulously---Even where there were no explicit rules governing the appointment process, and appointments were to be made in the exercise of discretionary powers, such discretion must be employed in a structured, transparent and reasonable manner and in the public interest---Appointing authorities could not be allowed to exercise discretion at their whims, or in an arbitrary manner; rather they were bound to act fairly, evenly and justly and their exercise of power was judicially reviewable---Removal and dismissal of civil servants from service was not left to anyone's whims and caprice and it was governed by rules and regulations---Anachronistic concept where government servants held office during the pleasure of the Authority had no place in a dispensation created and paid for by the people.

Tariq Aziz-ud-Din's case 2010 SCMR 1301; Corruption of Hajj Arrangement's case PLD 2011 SC 963 and Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

(g) Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan, Art. 184(3)---Promotion of civil servants---Discretion---Principles---Discretion in matters of promotion must be exercised fairly and in a transparent manner---Such discretion had to be understood within the four corners of the concept of rule of law upon which the system of governance was founded---Every Authority in the State was bound to obey the dictates of the law and had no personal or absolute discretion.

Tariq Aziz-ud-Din's case 2010 SCMR 1301 ref.

(h) Civil Servants Act (LXXI of 1973)---

----Ss. 4 & 10---Constitution of Pakistan, Art. 184(3)---Tenure, posting and transfer of civil servants---Principles---When the ordinary tenure for a posting had been specified in the law or rules made thereunder, such tenure must be respected and could not be varied, except for compelling reasons, which should be recorded in writing and were judicially reviewable---Transfers of civil servants by political figures which were capricious and were based on considerations not in the public interest were not legally sustainable.

Corruption of Hajj Arrangement's case PLD 2011 SC 963; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 and Farrukh Gulzar v. Secretary Local Government and Rural Development Department, Lahore and 2 others 1998 SCMR 2222 ref.

(i) Civil Servants Act (LXXI of 1973)---

-----S.16---Constitution of Pakistan, Arts. 5 & 184(3)---Civil servant, duty of---Non-compliance with illegal orders of superiors---Scope---Duty of public officers was to independently discharge their functions and not be influenced by "dictatorial misuse of powers" at the hands of political figures---Civil servants were not bound to obey orders from superiors which were illegal or were not in accordance with accepted practices and rule-based norms; instead, in such situations, they must record their opinion and, if necessary, dissent---Compliance with illegal orders of superiors was not justified on the basis of having been issued from higher authority as it was the law and the Constitution which must be obeyed---Illegal orders (of superiors) could not be defended on the plea that they could expose the concerned government servant to the risk of disciplinary action.

Syed Nazar Abbas Jafri v. Secretary to the Government of the Punjab and another 2006 SCMR 606; Province of Punjab v. Azhar Abbas 2002 SCMR 1; Samiullah Khan Marwat v. Government of Pakistan 2003 SCMR 1140; Iqbal Hussain v. Province of Sindh 2008 SCMR 105; Human Rights Cases Nos.4668 of 2006, 111 of 2007 and 15283-G of 2010 PLD 2010 SC 759 and Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 ref.

(j) Civil Servants Act (LXXI of 1973)---

----S.10---Constitution of Pakistan, Art. 184(3)---Posting of a civil servant as Officer on Special Duty (OSD)---Principles---Officer should not be posted as Officer on Special Duty (OSD) except for compelling reasons, which must be recorded in writing and were judicially reviewable---If at all an officer was to be posted as Officer on Special Duty (OSD), such posting should be for the minimum period possible and if there was a disciplinary inquiry going on against him, such inquiry must be completed at the earliest.

Corruption of Hajj Arrangement's case PLD 2011 SC 963; Mir Shah Nawaz Marri v. Government of Balochistan and others 2000 PLC (C.S.) 533; Syed Ajmal Hussain Bokhari v. Commissioner, Rawalpindi 1997 PLC (C.S.) 754; Sajjad Ahmad Javed Bhatti v. Federation of Pakistan 2009 SCMR 1448 and Lt. Col. (R.) Abdul Wajid Malik v. Government of the Punjab 2006 SCMR 1360 ref.

(k) Civil Servants Act (LXXI of 1973)---

----S.16---Constitution of Pakistan, Arts. 189, 190 & 204(2)(a)---Decision of---Supreme Court---Binding nature of---Scope---Decision given by the Supreme Court on a point of law would be binding on concerned departmental functionaries who would be obliged to apply such legal principle in other similar cases regardless of whether or not a civil servant had litigated the matter in his own case---In view of Art.189 and 190 of the Constitution, a civil servant would be entitled to make a departmental representation or initiate legal proceedings before a competent forum to enforce a legal principle enunciated by the Supreme Court---Failure of a State functionary to apply a legal principle which was clearly and unambiguously attracted to a case, might expose him to proceedings under Art.204(2)(a) of the Constitution.

Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84; Hameed Akhtar Niazi v. The Secretary Establishment Division 1996 SCMR 1185 and Baaz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 870 ref.

(l) Civil Servants Act (LXXI of 1973)---

----Ss. 4, 5, 9 & 10---Constitution of Pakistan, Art. 184(3)---Tenure, appointments, promotions and transfers of civil servants---Discretion of Executive Authority---Interference by courts---Scope---Responsibility of deciding suitability of an appointment, posting or transfer fell primarily on the executive branch of the State which comprised of both the political executive and civil servants---Decision making in relation to tenure, appointments, promotions and transfers remained rule-based and was not susceptible to arbitrariness or absolute and unfettered discretion---Courts ordinarily would not interfere in the functioning of the executive as long as it adhered to the law and established norms and acts in furtherance of its fiduciary responsibility.

Petitioners in person.

Hafiz S.A. Rehman, Sr. Advocate Supreme Court: Amicus Curiae.

Abdul Fateh Malik, A.G., Adnan Karim, A.A.-G., Ali Sher Jakhrani, AIG and Maqsood Ahmed, DSP for Government of Sindh.

Syed Arshad Hussain Shah, A.A.-G. for Government of Khyber Pakhtunkhwa.

Azam Khattak, A.A.-G. for Government of Balochistan.

Jawad Hassan, A.A.-G. for Government of Punjab.

Date of hearing: 18th October, 2012.

P L D 2013 Supreme Court 223

Present: Mian Shakirullah Jan, Jawwad S. Khawaja and Ijaz Ahmed Chaudhry, JJ

SUPERINTENDENT CENTRAL JAIL, ADYALA, RAWALPINDI---Petitioner

Versus

HAMMAD ABBASI---Respondent

Civil Petition No.1393 of 2010, decided on 7th December, 2011.

(Against the judgment dated 15-6-2010 of the Lahore High Court, Rawalpindi Bench, passed in Writ Petition No.426 of 2010).

Civil Procedure Code (V of 1908)---

----O. XXVII-A, R. 1---Anti-Terrorism Act (XXVII of 1997), S. 21-F---Case involving substantial question as to the interpretation of constitutional law---Non-issuance of notice to the Provincial Advocate General---Effect---High Court in its constitutional jurisdiction declared S.21-F of Anti-Terrorism Act, 1997 as ultra vires of the Constitution and struck it down, without issuing notices to the Provincial Advocate General as required under O. XXVII-A, C.P.C.---Legality---Petition for leave to appeal was converted into appeal and allowed, judgment of High Court was set-aside and writ petition was remanded to the High Court for its decision afresh after issuance of notices to the concerned Advocate General and Attorney General.

Federal Public Service Commission v. Syed Muhammad Afaq PLD 2002 SC 167 ref.

Abdul Razzaq Mirza Addl. A.G. for Petitioner.

Ilyas Siddiqui, Advocate Supreme Court for Respondent No.1.

Raja Muhammad Aleem Abbasi, D.A.G. (on Court's call).

Date of hearing: 7th December, 2011.

P L D 2013 Supreme Court 224

Present: Jawwad S. Khawaja and Khilji Arif Hussain, JJ

Engineer IQBAL ZAFAR JHAGRA and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition Nos. 33 and 34 of 2005 and H.R.C. No.5332 of 2006 and C.M.A. No.4567 of 2012, decided on 21st December, 2012.

(a) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 8, 21 & 3(2)---Compressed Natural Gas (Production and Marketing Rules), 1992, R. 13---Constitution of Pakistan, Art.184(3)---Constitutional petition/human right case under Art.184(3) of the Constitution---Sale price of Compressed Natural Gas (CNG), determination of---Oil and Gas Regulatory Authority (OGRA), duty of---Nature---Policy guidelines of Federal Government---Scope---Primary responsibility for determining the sale price of Compressed Natural Gas (CNG) for consumers fell on Oil and Gas Regulatory Authority (OGRA)---Said Authority must include policy guidelines issued by the Federal Government in its consideration and decision-making process, however it was not bound by such policy guidelines, which were guidelines at most---Legislature had provided Oil and Gas Regulatory Authority (OGRA) with a strong measure of independence from the Federal Government.

(b) Interpretation of statutes---

----Principle---General principle of statutory interpretation was that the language of the legislature must not be rendered superfluous.

(c) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition/human right case under Art.184(3) of the Constitution---Determination of prices---Executive functionaries, powers of---Scope---Review of prices by court---Scope---Determination of prices was a power vested by various laws on the executive functionaries and agencies of the State established under law---Executive had also been equipped by the law with sufficient expertise and enforcement capability for such purpose---Duty of court, however, extended to reviewing the manner in which the executive exercised its powers and to see that the fundamental rights of citizens including the right to their hard earned income was protected.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

(d) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----Ss. 8, 7(2)(a), 6(2)(q), 3(2) & Preamble---Compressed Natural Gas (Production and Marketing Rules), 1992, R.13---Constitution of Pakistan, Art. 184(3)---Constitutional petition/Human rights case under Art.184(3) of the Constitution concerning pricing process/formula for Compressed Natural Gas (CNG)---Sale price of Compressed Natural Gas (CNG), determination of---Oil and Gas Regulatory Authority (OGRA), duty of---Scope---Various items listed in the Compressed Natural Gas (CNG) consumer price formula appeared to have been determined arbitrarily and not in accordance with law and without any reference to the accounts of CNG stations---Operating cost of CNG Stations was calculated as per a Memorandum of Understanding entered into between the Government and CNG Associations and CNG station owners---Said Memorandum of Understanding purported to fix the price of CNG in the whole country for a certain period and was "subject to revision, through identical consultative process between the parties, on bi-annual basis…"---Fixing the sale price of CNG in such a manner represented a clear violation of the law---Oil and Gas Regulatory Authority (OGRA), which bore the primary responsibility in price fixing of CNG, was not even a party to the said Memorandum of Understanding---Oil and Gas Regulatory Authority (OGRA), instead of intervening to protect the public interest, simply chose to enforce the said Memorandum of Understanding, which constituted a blatant abandonment of its duties and abdication of its statutory role as protector of the interests of the citizens who had to bear the brunt of unjustifiable prices---Oil and Gas Regulatory Authority (OGRA), had been envisaged as an independent body which was supposed to protect the public interest and its failure to protect ordinary consumers from oligopolistic and monopolistic activities could not be condoned---Supreme Court directed the Oil and Gas Regulatory Authority (OGRA) to come up with a pricing formula for Compressed Natural Gas (CNG), based on evidence and in accordance with the prescribed process and to do so in a swift manner, after obtaining all necessary feedback from the stakeholders.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

Ikram Chaudhry, Advocate Supreme Court for Petitioners.

Miangul Hassan Aurangzeb, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Applicants (in CMAs No.4544-4545 of 2012).

Waseem Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Applicants (in C.M.A. No.4567 of 2012).

M. Asif Chaudhry, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Applicants (in C.M.A. No.4707 of 2012).

Ch. Akhtar Ali, Advocate-on-Record for Applicants (in C.M.As. Nos.4760-61 of 2012).

Hafiz Muhammad Idrees, Advocate Supreme Court (In C.M.A.No.5288 of 2012).

Zulfiqar Ali (in person) (in C.M.A.No.4765 of 2012).

Giyas Paracha, President and Khalid Rashid for CNG Association Station Owners.

Asim Mansoor Khan, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Waqar Masood Secretary Petroleum for Respondents.

Dil Muhammad Khan Ali Zai, D.A.G. for the Federation.

Fawzi Zafar, (Addl.P.G.) NAB for NAB.

Malik Shakil-ur-Rehman, Advocate Supreme Court for FBR.

Slaman Akram Raja, Advocate Supreme Court Malik Ghulam Sabir, Advocate, Mahmood A. Sheikh, Advocate-on-Record, Saeed Ahmed Khan, Chairman, Ms. Misbah Yaqoob, JED(F), Syed Faisal Ishtiaq, LO, Iltaf Hussain DED(F) and Abdul Basit Qureshi SLO for OGRA.

Abid Hasan Minto, Senior Advocate Supreme Court, Asim Iqbal, Advocate Supreme Court, Mahmood A. Sheikh, Advocate-on-Record with Arif Hameed, MD, SNGPL, Shoaib Warsi, SGM(D) SSGC, Faisal Iqbal GMF, SNGPL and Aamir Nasim, SGMD for SNGPL and SSGC.

Date of hearing: 20th December, 2012.

P L D 2013 Supreme Court 239

Present: Mian Saqib Nisar and Muhammad Ather Saeed, JJ

ABAID ULLAH MALIK---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MIANWALI and others---Respondents

Civil Petition No.2073-L of 2009, decided on 5th December, 2012.

(Against the order dated 7-7-2009 of the Lahore High Court, Lahore passed in Writ Petition No.5562 of 2008).

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

----O. VI, R. 17---Punjab Pre-emption Act (IX of 1991), S. 13---Constitution of Pakistan, Art. 185(3)---Amendment of plaint in pre-emption suit---Scope---Pre-emptor seeking amendment of time of making Talb mentioned in the plaint---Withdrawal from admission made in the plaint about the time given in the plaint after the recording of his statement and statements of plaintiff's witnesses---Mala fides of pre-emptor---Effect---Pre-emptor stated in his plaint that he learnt about the sale at 10 a.m. and made Talb-i-Muwathibat, however in evidence-in-chief, all witnesses and pre-emptor himself testified the time to be 11 a.m.---Pre-emptor made application under O. VI, R. 17, C.P.C seeking amendment of the time in the plaint---Trial Court dismissed said application---Revisional Court set-aside order of Trial Court, however, High Court in its constitutional jurisdiction set-aside order of Revisional Court and restored that of Trial Court---Pre-emptor contended that amendment in pleadings should be liberally allowed---Validity---Mentioning of date, time, venue and names of witnesses was essential to a pre-emption plaint---Pre-emptor in his plaint had, in unequivocal and unambiguous terms, mentioned the time as 10 a.m., whereafter written statement was filed by the vendee, issues were framed and parties were put to trial---Till such time pre-emptor felt no expediency for amending the plaint, so as to change the time given therein---During examination-in-chief, pre-emptor and his witnesses deposed the time of making Talb-i-Muwathibat as 11 a.m., which was a clear contradiction to the time given in the plaint---Application for amendment was moved with an object to overcome the said contradiction---Amendment in the pre-emption plaint was not sought with bona fide intentions---Intention of the party seeking the amendment was a relevant factor for allowing or refusing the request---Pre-emptor, by virtue of the amendment, wanted to withdraw from his admission about the time given in the plaint and that too after recording of his statement and that of his witnesses---Petition for leave to appeal was dismissed by Supreme Court, in circumstances.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 rel.

Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518 distinguished.

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

----O.VI, R. 17---Amendment of pleadings---Stage of proceedings---Scope---Court had ample authority and discretion to allow amendment of pleadings in appropriate cases, which authority could be exercised at any stage of the proceedings in the trial, and in certain cases amendments could be permitted at the stage of appeal or even in revisional jurisdiction.

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

----O.VI, R. 17---Amendment of pleadings---Principles---Courts were to exercise their power and authority of allowing amendments liberally, however, keeping in view that proposed amendment(s) was/were expedient for the purpose of determining the real questions in controversy between the parties, and that same should not alter the nature of the suit or the defence---Court had to keep in mind that amendment sought/proposed must not be tainted with dishonesty of purpose; that it was not meant to withdraw and resile from an admission made in the pleadings of the parties; that it should not cause prejudice to the opposite party, particularly to deprive opposite side of a benefit attained by it from the evidence adduced on record by the party asking/seeking amendment---Conduct and motive of the party and object/purpose behind the request for amendment must also be kept in mind by the Court.

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

----O. VI, R. 17---Amendment of pleadings---Intention of party seeking amendment-Scope---Intention of the party seeking the amendment was a relevant factor for allowing or refusing the request.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 rel.

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

----O. VI, R. 17---Amendment of pleadings---Principles---Admission made by party in the pleadings---Scope---While allowing amendment of pleadings, the courts should keep in view the admissions, which had been made by the parties therein (pleadings)---Amendment should not be allowed, where it tantamounted to the withdrawal of an admission or where it obliterated an admission.

Secretary to Government (West Pakistan) Now N.-W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil PLD 1978 SC 242 rel.

Ch. Khurshid Ahmed, Sr. Advocate Supreme Court for Petitioner.

Sh. Naveed Shehryar, Advocate Supreme Court for Respondent No.3.

Date of hearing: 5th December, 2012.

P L D 2013 Supreme Court 244

Present: Jawwad S. Khawaja and Khilji Arif Hussain, JJ

HAMID MIR and another---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No.105 of 2012 along with C.M.As. Nos.3795 and 3798 of 2012, HRC No.23957-S of 2012 and Const.P.53 of 2012; Constitution Petition No.104 of 2012 and C.M.A. No.3464 of 2012 and Constitution Petition No.117 of 2012, decided on 15th January, 2012.

(a) Constitution of Pakistan---

----Arts. 19, 19A & 184(3)---Supreme Court Rules, 1980, O. XXXII---Civil Procedure Code (V of 1908), O. XXVI---Constitutional petitions under Art.184(3) of the Constitution concerning accountability of the media and determination of its code of conduct---Formation of a Commission by the Supreme Court to look into the matter---Respondents contended that appointment of a Commission to look into the matter was unnecessary because the Press Council of Pakistan had already dealt with the issues raised in the present petitions---Validity---Jurisdiction of the Press Council of Pakistan was restricted to the print media while the present petitions were largely in relation to the electronic media---Even in relation to the Press Council of Pakistan and the print media, the existing laws and any Code of Conduct required examination in the context of fundamental rights guaranteed by Arts. 19 and 19A of the Constitution---Reservation/objection of the respondents to the appointment of a Commission was not tenable in circumstances.

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

----Ss. 6(1) & 3(4)---Pakistan Electronic Media Regulatory Authority (Content) Regulations, 2012---Constitution of Pakistan, Arts. 19, 19A & 184(3)---Supreme Court Rules, 1980, O. XXXII---Civil Procedure Code (V of 1908), O. XXVI---Constitutional petitions under Art.184(3) of the Constitution concerning accountability of the media and determination of its code of conduct---(Acting) Chairman of Pakistan Electronic Media Regulatory Authority (PEMRA), acts of---Legality---Respondents contended that appointment of such a Commission was not necessary as PEMRA had already issued the Pakistan Electronic Media Regulatory Authority (Content) Regulations, 2012, and that PEMRA being the competent authority enjoyed a statutory mandate for framing content regulations and code of conduct for the media and effective enforcement thereof, thus only PEMRA should determine such matters---Petitioners contended that when Pakistan Electronic Media Regulatory Authority (Content) Regulations, 2012 were in the process of being made or when the same were adopted and notified, PEMRA did not have a Chairman but only an acting Chairman---Effect---Person who was purportedly working as the acting Chairman of PEMRA was never appointed to such post---Even otherwise Pakistan Electronic Media Regulatory Authority Ordinance, 2002 did not provide for the position of an Acting Chairman---De facto doctrine incorporated in S.3(4) of the Ordinance would not save the acts of the purported Acting Chairman as said doctrine was limited to those public functionaries who acted bona fide and whose legal status had not been objected to---No permanent Chairman of PEMRA having been appointed, and such a defect had already been highlighted by the Supreme Court, it was hard to see as to how purported Acting Chairman's subsequent acts could be considered bona fide for the purpose of giving legal recognition or protection to the same---Interpreting the de facto doctrine incorporated in S.3(4) of the Ordinance to save acts of the purported acting Chairman would be disregarding the rule of law---Resorting to such loose and offhand reasoning (interpretation) would amount to an invocation of the 'doctrine of necessity'---Pakistan Electronic Media Regulatory Authority (Content) Regulations, 2012 purported to be prepared and issued in the name of PEMRA were, therefore, of no legal consequence.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 ref.

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

----S. 6(1)---Chairman of Pakistan Electronic Media Regulatory Authority (PEMRA)---Eligibility criteria---Appointment process---Scope---Position of Chairman PEMRA had to be filled by a person who fulfilled the exceptional and stringent requirements prescribed in the Ordinance and not by a casual appointee---Appointment of Chairman had to be made through an open and transparent process to ensure that the appointee met the objective criteria specified in the Ordinance.

(d) Constitution of Pakistan---

----Arts. 19A & 184(3)---Constitutional petitions under Art.184(3) of the Constitution concerning accountability of the media and determination of its code of conduct---Right to information---Scope---Creation and utilization of secret funds in the Ministry of Information and Broadcasting---Disclosure of the nature and use of such funds---Prima facie, in view of the provisions of Art.19A of the Constitution, Ministry of Information and Broadcasting was obliged to disclose the nature and use of all funds allocated to it including the secret funds.

(e) Constitution of Pakistan---

----Arts. 19, 19A & 184(3)---Supreme Court Rules, 1980, O. XXXII--- Civil Procedure Code (V of 1908), O. XXVI---Constitutional petitions under Art.184(3) of the Constitution concerning accountability of the media and determination of its code of conduct---Formation of a Commission by the Supreme Court to look into the matter---Supreme Court appointed a two member Commission headed by a retired Judge of the Supreme Court with another member---Terms of Reference of the said Commission were to consider the role of the Ministry of Information and Broadcasting and other Government agencies in ensuring freedom of print and electronic media and whether or not there was information and material brought before the Commission to justify the continued functioning of the said Ministry, consistent with Art.19 of the Constitution; to analyze whether and to what extent PEMRA had been able to fulfil its developmental mandate and regulatory functions independently under the Ordinance; to determine if it advanced or was consistent with the fundamental right under Art.19 of the Constitution to allow the Government or its instrumentalities to be major players in the media through State Television and Radio broadcasters; to ascertain if Pakistan Television Corporation (PTV), Pakistan Broadcasting Corporation (PBC) and Associated Press of Pakistan (APP), the recipients of public funding of billions of rupees, had independent in-house management and transparent policies in place which advanced the objectives of fairness and even-handedness expected of publicly funded entities and to determine if there were adequate checks against lop-sided or biased dissemination of information by these publicly funded entities; to consider the feasibility of letting the media adopt a self-regulatory code of conduct instead of content regulation, in the light of international standards and best practices; to enquire into allegations of media-related corruption and suggest steps to ensure impartial and independent media for the upcoming elections; to inquire whether, when giving money to different media houses directly for or on the pretext of advertisement, were the government or its functionaries pursuing a transparent, duly approved, bona fide government advertisement allocation policy or were the decisions to buy advertisement space with public money made arbitrarily or without objective criteria or to favour particular T.V. channels, journalists or media houses; to propose a single, transparent, objective, non-discriminatory policy for allocation of government advertisements among electronic and print media; to inquire whether the Federal and Provincial Governments, autonomous and semi-autonomous bodies, Government corporations or agencies adhered to Public Procurement Regulatory Authority Rules or other transparent processes while granting advertisement contracts to advertising agencies or media houses, and if not, then to suggest processes which were fair and transparent and which ensured the greatest value and fairest dissemination of information---Supreme Court directed that the Commission shall have all the powers set out in O. XXXII of the Supreme Court Rules, 1980 together with such powers as might be considered necessary or appropriate by it to make its report on the Terms of Reference; that the Commission might seek such further orders or clarifications from the court as it might consider necessary, and that report of the Commission might be submitted in court on or before 31-3-2013 or on such other date as might fixed by the court if requested by the Commission.

Hamid Mir and Absar Alam (in person) (in Const.P.105 of 2012).

Dr. Tariq Hassan, Advocate Supreme Court and Syed Safdar Hussain, Adovcate-on-Record for Petitioner (in Const.P.53 of 2012).

Tausif Asif, Advocate Supreme Court (Nemo) (regarding abscene and objectionable material in media) for Petitioners (in Cons.P.104 of 2012).

Sheikh Ahsan ud Din, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (Sh. Ahsan ud Din) (in Const.P.117 of 2012).

Zulfiqar Khalid Maluka, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record, Nasir Jamal, D.G. and Rashid Ahmed (Secy.) and Muhammad Azam (Press Information Officer) for Respondent No.1.

Hasnain Ibrahim Kazmi, Advocate Supreme Court for Respondent No.2.

Nemo for Respondent No.3.

Hasnain Ibrahim Kazmi, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondent No.3 (Sh. Ahsan ud Din) (in Const.P.117 of 2012).

Dil Muhammad Khan Alizai, DAG and M.S.Khattak, Advocate-on-Record for Respondent No.4 (Sh. Ahsan ud Din) (in Const.P.117 of 2012).

Jawwad Hassan, Addl. A.G. for Respondent No.5 (Sh. Ahsan ud Din) (in Const.P.117 of 2012).

Syed Zahid Hussain Bukhari, Advocate Supreme Court (Nemo) for Respondents Nos. 4 & 5.

Nemo for Respondent No.6.

Naveed Ihsan and Asif Hussain for Respondent No.7.

Nemo for Respondent No.8.

Nemo (Sh. Ahsan ud Din) for Respondents Nos. 1, 2, 6 and 8 (in Const.P.117 of 2012).

Jawwad Hassan, Addl. A.G., Tahir Raza, Addl. Secretary Information Department and Hassan Raza Khan, Dy. Director, ACE for Respondents Nos. 9 and 10.

Syed Arshad Hussain Shah, Addl. A.G. for Province of Khyber Pakhtunkhwa (in Const.P.105 and in Const.P.117 of 2012).

Dil Muhammad Khan Alizai, D.A.G. for Federation.

Yasin Azad, Advocate Supreme Court, Raja Muqsat Nawaz, Advocate Supreme Court and Ch. Akhtar Ali Advocate-on-Record for Respondent No.11 and Value TV.

Hashmat Ali Habib, Advocate Supreme Court for Applicants (in C.M.A.4033 of 2012 in Const. P.105 of 2012).

Nemo for Applicants (in C.M.A. 3820 of 2012 in Const.P.105 of 2012).

Arshad Sharif, Bureau Chief, DUNYA TV for Applicants (in C.M.A. 3428 of 2012 in Cons.P.105 of 2012).

Ghulam Nabi, President Press Association SC for Applicants ((in CMA 4063 of 2012 in Const.P.105 of 2012).

M. Hanif Awan (in person) (in C.M.A. 3464 of 2012 in Const.P.104 of 2012).

Nemo (in C.M.A. 3631 of 2012 in Const.P.105 of 2012).

Nemo for Applicants (in C.M.A. 4210 of 2012 in Const.P.105 of 2012).

Nemo for Applicants (in HRC 23957-S of 2012).

Adnan Iqbal Chaudhry, Advocate Supreme Court for M/s Vision Network.

Munir A. Malik, Senior Advocate Supreme Court (Nemo) along with Faisal Siddiqi, Advocate (Nemo) for M/s. AURORA.

Mehmood A. Sheikh, Advocate Supreme Court for AAJ TV, Kashash TV, AVT, DHOOM, APNA TV.

Asad Kharl (Reporter) for Express TV.

Nemo for VIVE TV.

Shahid Mehmood Khokhar, Advocate Supreme Court for PTV.

Nemo for PUNJAB TV.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for PEMRA (in Const.P.104 of 2012) (regarding obscene and objectionable material in media).

M. Bilal, Senior Advocate Supreme Court and Babar Bilal, Advocate Supreme Court for Airways Media.

Nemo for ARY.

Dr. Amjad Hussain Bukhari, Advocate Supreme Court for Cable Operators.

Mian Gul Hassan Aurangzeb, Advocate Supreme Court for Pakistan Broadcasters (in C.M.A. 3521 of 2012 in Const.P.104 of 2012). (regarding obscene and objectionable material in media).

Dr. Amjad Hussain Bukhari, Advocate Supreme Court and M.S. Khatta, Advocate-on-Record for Cable Operators Association (in C.M.A. 3464 of 2012 and Const.P.104 of 2012) (regarding obscene and objectionable material in media).

Tariq Ismail for Indus Television.

Date of hearing: 15th January, 2013.

P L D 2013 Supreme Court 255

Present: Mian Saqib Nisar and Sh. Azmat Saeed, JJ

MUHAMMAD ANWAR and others---Petitioners

Versus

Mst. ILYAS BEGUM and others---Respondents

Civil Petition No.1947-L of 2008, decided on 25th October, 2012.

(Against the judgment dated 15-10-2008 of the Lahore High Court, Lahore passed in Writ Petition No.3250 of 2008).

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

----O. XVI, Rr. 1(1) & (2)---Summoning of witness with permission of the court---Scope---Language of O.XVI, R.1, C.P.C stipulated that parties to a lis were required to furnish the list of witnesses, whom they proposed to give evidence or to produce documents, within seven days of the framing of issues---Process and the authority of the court in terms of O.XVI, R.1, C.P.C to call and summon a witness by a party, had been made subject to, rather conditional to the list of witnesses which a party was mandated to file in terms thereof--- Power and machinery of the court for summoning/calling of the witnesses through process/permission of court, as envisaged by O.XVI, C.P.C could only be invoked if a witness list had been provided and not otherwise.

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

----O. XVI, R.1(1)--- Presenting list of witnesses in court, requirement of---Object---Object of such a requirement was that no one should be taken by surprise in the course of the trial and the parties, before commencement of trial, must be conscious, aware and fully prepared as to what kind of evidence was expected to be given by the witnesses of the opposite side, so that they could make necessary preparations for cross-examination etc. , and secondly to prevent the concoction and fabrication of the evidence and to make up blatant omissions made by the litigants during the course of the trial--- Object of O.XVI, R.1(1), C.P.C was to bind the parties to such genuine evidence which was available to them at the time of the start of the trial, so that they should not subsequently avail stock and fudge evidence to make up their cases and the deficiencies.

(c) Words and phrases---

----"Good cause"---Meaning.

Black's Law Dictionary Eighth. Edn. ref.

(d) Words and phrases---

----"Good cause" and "sufficient cause"---Interpretation--- Expression "good cause" was to be construed in a wider terms than the expression "sufficient cause".

Arjun Singh v. Mohindra Kumar and others AIR 1964 SC 993 ref.

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

----O. XVI, R. 1(2)---Summoning of witness with permission of the court---Party seeking to summon witness to show "good cause" for failing to submit list of witnesses before court or for omitting to name of such witness in the list---Expression "good cause"---Meaning---No absolute criteria could be set forth as benchmark to test if a case of omission to file the list of witnesses or a name in such list was on account of "good cause", as it depended upon the facts of each case---Party in default had to show a legally sufficient reason, as to why its request should be granted or its inaction/omission should be excused, in other words, the judicial conscious of the court should be satisfied with justifiable reasons---Party in default could not, as a matter of right or as a matter of course, without assigning or establishing any good cause for the omission, ask for calling/summoning or even producing witness(es) only on account of a lame excuse/reason and a bald assertion that it shall be in the interest of justice and/or it shall facilitate the court in deciding the matter.

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

----O. XVI, R.1(2)--- Summoning of witness with permission of the court---Court to grant/refuse such permission after recording reasons---Principles---Court was not free to grant such permission as per its own whim and caprice and in an arbitrary manner, rather it should record reasons for such a permission---Conditions of recording reasons obviously was a check on the unbridled and absolute discretion of the court, which (reasons) should have nexus to the good cause as set out by the delinquent party---Order allowing permission had to conform to those reasons which were justifiable in the eyes of law, which reflected the judicial application of mind by the court and the disposal of the request in a judicial manner---Court was required to record its reasons even when disallowing the application of a party for summoning the witnesses.

(g) Administration of justice---

----Where law required an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law could not be termed as a technicality.

(h) Constitution of Pakistan---

----Arts. 199 & 4---Right of individuals to be dealt in accordance with law---Scope---Order passed by court in violation of express provisions and spirit of law--- Power of High Court to rectify such illegality in its constitutional jurisdiction---Scope---Where an order had been passed by any forum or court, which was patently illegal and violative of law, especially express provisions and spirit of law, which (order) if allowed to stay intact tantamount to and caused prejudice and serious breach of legal rights of litigants, the High Court in its constitutional jurisdiction could ratify the illegality and violation of law, and undo the harm caused by the order of the court.

Utility Store Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 and Muhammad Hussian Munir v. Sikandar PLD 1974 SC 139 rel.

(i) Constitution of Pakistan---

----Arts. 199 & 4---Civil Procedure Code (V of 1908), S. 115---Right of individuals to be dealt in accordance with law---Scope---Order passed by Revisional Court in violation of express provisions of law---Power of High Court to interfere in such an order in its constitutional jurisdiction---Scope---No specific bar existed on the High Court from exercising its authority in terms of Art.199 of the Constitution to interfere in an order passed by the Revisional Court.

Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518 and Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 rel.

Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 and Habib Ullah v. Azmat Ullah PLD 2007 SC 271 distinguished.

(j) Administration of justice---

----Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it was bound and obligated to render decisions in accordance with law and the law alone.

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

----O. XVI, R. 1---Constitution of Pakistan, Art. 185(3)---Summoning of witness with permission of the court---Scope---Party seeking to summon witnesses failing to show "good cause" for omitting to name such witnesses in the list of witnesses submitted before Trial Court---Effect---Plaintiff/respondent filed a civil suit against the defendant/petitioner---Trial Court recorded evidence of plaintiff and the case lingered on for the evidence of defendants---Defendants were given a last opportunity to record their evidence, whereafter they moved an application before Trial Court for summoning of certain witnesses through process of the Court---Said application was dismissed by Trial Court, however the same was allowed by Revisional Court---High Court, in its constitutional jurisdiction set aside order of Revisional Court and restored order of Trial Court---Defendants contended that witnesses sought to be summoned were officials, who were supposed to bring official record along with them, which was quite germane for the purpose of resolving the controversy between the parties; that for purposes of dispensing justice, technicalities of law should not be allowed to impede and prejudice the rights of the litigants, and that provisions of O.XVI, R.1, C.P.C. were directory in nature and in appropriate cases the court had the authority and power to summon witnesses whose names had not been mentioned in the list of witnesses---Validity---Admittedly names of witnesses sought to be summoned by the defendants were not present in the list of witnesses required to be filed in terms of Order XVI, Rule 1, C.P.C, rather counsel for defendants was not even sure whether such a list had been filed at all within the stipulated time of seven days of framing of issues by the Trial Court---Reason provided by defendants in their application for summoning of witnesses was hardly a reason for not complying with the time provided for giving names of witnesses in terms of O.XVI, R.1(1), C.P.C, nor did it constitute as "good cause" within the purview of O.XVI, R.1(2), C.P.C---Revisional Court while overturning the order of Trial Court absolutely failed to assign any valid reasons for doing so, except invoking the general principle that technicalities of law should not be allowed to thwart the rights of litigants---Defendants had dragged the plaintiffs unnecessarily up to the Supreme Court, which was a clear abuse of law and misuse of process of the court, therefore special cost of Rs.25,000 was imposed on the defendants, which was to be paid to the plaintiffs--- Petition for leave to appeal was dismissed accordingly with costs.

Ch. Ali Muhammad, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioners.

Taki Ahmed Khan, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for Respondent No.1.

Date of hearing: 25th October, 2012.

P L D 2013 Supreme Court 268

Present: Anwar Zaheer Jamali, Tariq Parvez and Ejaz Afzal Khan, JJ

UMAR BAZ KHAN through L.Hrs.---Appellants

Versus

Syed JEHANZEB and others---Respondents

Civil Appeal No.558 of 2002, decided on 8th January, 2013.

(On appeal against the judgment dated 11-4-2000 of the Peshawar High Court, Peshawar passed in W.P. No.229 of 1987).

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Dismissal for non-payment of costs---Scope---First constitutional petition withdrawn with permission to file fresh/second petition on payment of costs---Filing of second petition without payment of costs---Effect---Rule that second petition was liable to be dismissed for non-payment of costs was a rule of procedure rather than law and same could not be applied to every case with blithe disregard to its facts and circumstances---Failure to pay costs was, of course, a fault but not of a magnitude as could be made a ground for dismissing a petition, voicing a grievance against an injustice of a grave nature, and more so when it could be rectified by giving the litigant a chance to do the needful.

Malang Dad v. Mst. Mah Pari and others PLD 1993 SC 6 rel.

Ambubai Hanmantrao v. Shankarsa Naqosa AIR 1925 Bom.272(1); Guran Ditta Mal and others v. Banna Mal (deceased) through Sain Dass and others AIR 1958 Punjab 469 (V 45 C 138) and Haji Abdul Rashid Sowdaqar v. S.M. Lalita Roy and others PLD 1959 SC (Pak) 287 distinguished.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Dismissal on grounds of laches---Scope---Withdrawal of first constitutional petition---Second/fresh constitutional petition filed three years after withdrawal of the first without any explanation---Plea that second constitutional petition was liable to be dismissed on grounds of laches---Validity---Dismissal of second petition on grounds of laches in such circumstances was not a rule of universal application which could be applied in every case without examining the dictates of equity, justice, fair play and circumstances of the case, nor could it be treated at par with the law of limitation prescribing a period for enforcing a right or liability and requiring the court to dismiss a lis if not filed within such period.

Pakistan Posts Office v. Settlement Commissioner and others 1987 SCMR 1119 and Masood Begum through Legal Heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others PLD 2003 SC 90 rel.

(c) Laches---

----Dismissal of lis on ground of laches---Scope---No court could dismiss a lis on the ground of laches if it defeated the cause of justice and thereby perpetuated an injustice.

(d) Laches---

----Bar of laches---Scope---Recurring cause of action---Effect---Bar of laches could not be over emphasized in a case where the relief claimed was based on a recurring cause of action.

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

----Ss. 60 & 58(c)---Frontier Crimes Regulations (III of 1901), Regln.8---Mortgage by conditional sale---Redemption of mortgage---Dispute over mortgaged property resolved through oath taken by mortgagee---Legality---Mortgagee taking oath in absence of the mortgagor---Effect---Mortgagor mortgaged his land to the mortgagee against a sum of Rs.120,000 for a period of six years---Terms of the mortgage provided that in case of failure to refund the money within the period of six years, the property so mortgaged would be deemed to have been sold to the mortgagee with a further payment of Rs.30,000---Mortgagor sought to redeem his property and therefore offered mortgage amount to the mortgagee before expiry of the stipulated period, however, mortgagee was reluctant to receive the money and prolonged receipt of it in order to expire the stipulated period---Mortgagor approached the concerned authority under the Frontier Crimes Regulation 1901, ten days before the expiry of the stipulated period to settle the dispute---Frontier Crimes Regulation, 1901 was subsequently repealed, where after mortgagor filed a suit before the Assistant Collector, who decreed the suit in favour of the mortgagor---Mortgagee filed appeal before Commissioner against order of Assistant Collector, which appeal was accepted and case was remanded for disposal under the Frontier Crimes Regulation, 1901---Jirga (Council of Elders) was constituted in terms of the Frontier Crimes Regulation, 1901 and mortgagee was directed to take an oath about the payment of money---Mortgagee took an oath before the Jirga in absence of the mortgagor and resultantly an award was made in favour of the mortgagee---Mortgagor filed constitutional petition before the High Court, which was allowed and order passed by Assistant Collector, whereby suit was decreed in favour of mortgagor, was restored---Mortgagee contended that when orders passed by the fora functioning in the hierarchy of Frontier Crimes Regulations, 1901 were given effect by administering oath, the dispute not only stood resolved but also attained finality---Validity---Once the order redeeming the property on payment of mortgage money was passed (by the Assistant Collector) in conformity with the law, it could not be set aside on any technical ground---Question was as to how an oath could be administered to the mortgagee in the absence of the mortgagor, who neither offered it nor accepted the offer for resolution of dispute on such basis---Even if the resolution of dispute was sought to be made on basis of an oath, it should have been, in the first instance offered to the mortgagor and then to the mortgagee---Mortgagor, under no circumstances, could be put in the labyrinth of procedural formalities when he had approached the competent forum for redemption of his mortgaged property before expiration of the period stipulated in the mortgage agreement---Case of mortgagor was to be decided there and then when he was willing to pay the mortgage money, and at no stage of the proceedings he refused to pay the said amount---Order of Assistant Collector, by which mortgagor was allowed to redeem his property on payment of mortgage money was just and proper---High Court, in exercise of its constitutional jurisdiction rightly set at naught proceedings under the Frontier Crimes Regulation, 1901---Appeal was dismissed in circumstances.

Sardar Nawab Haji Muhammad Khan v. Additional Commissioner and Commissioner, Frontier Crimes Regulation, Quetta Division, Quetta and others PLD 1964 (W.P.) Lah. 401; Abdul Samad and others v.Painda Muhammad and others PLD 1997 Pesh. 35; Dharba Veera Venkata Satyanarayana and another v. National Insurance Co. Ltd. Calcutta AIR (34) 1947 Mad. 51; F.X.D. Pinto and another v. Sheenappa Malli and others AIR (38) 1951 Madras 524; Manik Chand Raut. v. Baldeo Chaudhary and others AIR (38) 1951 Patna 327 and Abdul Sattar v. Mst. Sardar Begum and 12 others 1992 SCMR 417 distinguished.

Qazi M. Anwar, Senior Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Appellants.

Gulzarin Kiyani, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.1-4, 7, 9 12(i) and 13.

Nemo for Respondents Nos. 12(ii), 14-17, 5, 6 and 11.

Date of hearing:8th January, 2013.

P L D 2013 Supreme Court 279

Present: Khilji Arif Hussain, Tariq Parvez, Ejaz Afzal Khan, Gulzar Ahmed and

Sh. Azmat Saeed, JJ

REFERENCE NO.01 OF 2012

[Reference by the President of Pakistan under Article 186 of the Constitution of Islamic

Republic of Pakistan, 1973]

Reference No.1 of 2012, heard on 14th December, 2012 (Reserved).

Per Khilji Arif Hussain, J; Tariq Parvez, Gulzar Ahmed and Sh. Azmat Saeed, JJ, agreeing, Ejaz Afzal Khan, J. differing on certain point.

(a) Constitution of Pakistan---

----Art. 175A---Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Suitability of a candidate, determination of---Judicial Commission, powers of---Scope---Suitability of a candidate regarding his ability, legal competency and integrity, was to be determined by the Judicial Commission.

(b) Constitution of Pakistan---

----Art. 175A---Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Suitability of a candidate, determination of---Role of most senior Judges of the Supreme Court/High Courts as members of the Judicial Commission---Scope---For purposes of selecting the best person as a Judge of the superior Courts, the most senior Judges of the Supreme Court and the High Courts, being members of the Judicial Commission, having one vote each, were supposed to form their opinions independently about the ability, legal competency, integrity and administrative skill of the person, whose name was initiated by the Chief Justice of Pakistan or by the Chief Justice of the High Court.

(c) Constitution of Pakistan---

----Arts. 213(1) & (2A) & 218 (2)(b)---Appointment of Chief Election Commissioner and members of the Election Commission---Discretion of the President of Pakistan---Scope---Although the President had to appoint the Chief Election Commissioner and members of the Election Commission, (but) he had no discretion except to appoint the "person" whose name was confirmed by the Parliamentary Committee.

(d) Constitution of Pakistan---

----Art. 224(1A)---Appointment of care-taker Prime Minister---Discretion of the President of Pakistan---Scope---Although the President had to appoint the care-taker Prime Minister but he was only a symbolic appointing authority with no discretion, and had to appoint the person nominated by the outgoing Prime Minister and the Leader of the Opposition as care-taker Prime Minister.

(e) Constitution of Pakistan---

----Art. 242 (1A)---Chairman of Federal Public Service Commission, appointment of---President of Pakistan to act on advice of Prime Minister---Scope---For purposes of appointment of Chairman of Federal Public Service Commission, the President had to act on the advice of Prime Minister and he might require the Prime Minister to re-consider such advice.

(f) Constitution of Pakistan---

----Art. 243(4)---Chiefs of the Armed Forces, appointment of---President of Pakistan to act on advice of Prime Minister---Scope---For purposes of appointment of Chiefs of the Armed Forces, the President had to act on the advice of Prime Minister and he might require the Prime Minister to re-consider such advice.

(g) Constitution of Pakistan---

----Art. 175A---Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Discretion of the President of Pakistan---Scope---After the nomination of a name for appointment by the Parliamentary Committee, the President had no discretion except to appoint the nominee.

(h) Constitution of Pakistan---

----Art. 175A---Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Advice of Prime Minister--- Scope---For appointment of Judges in the superior Courts, the advice of the Prime minister was not required.

Muhammad Younas Tahir and another v. Shaukat Aziz Advocate, Muzaffarabad and others PLD 2010 SC(AJK) 42 ref.

(i) Constitution of Pakistan---

----Arts. 213 & 218---Appointment of Chief Election Commissioner and members of the Election Commission---Advice of Prime Minister---Scope---For appointment of Chief Election Commissioner and members of the Election Commission, the advice of the Prime Minister was not required.

(j) Interpretation of Constitution---

----Principles---Constitution being a living organ for all times was to be interpreted dynamically, as a whole, to give harmonious meaning to every Article of the Constitution---Constitution being an organic document had been conceived in a manner so as to apply to the situations and conditions which might arise in the future, therefore the words and expressions used in the Constitution, in such sense, had no fixed meaning and must receive interpretation based on the experience of the people in the course of working of the Constitution.

(k) Interpretation of statutes---

----Function of court---Scope---Function of the court, while interpreting the statute, was to discover the true legislative intent, and after having done so, the court must strive to interpret the statute as to promote/advance the object and purpose of the enactment--- For such purpose, where necessary, the court might even depart from the rule that plain words should be interpreted according to their plain meaning.

(l) Words and phrases---

----"Forward"---Meaning.

Concise Oxford Dictionary (9th Edn.) ref.

(m) Constitution of Pakistan---

----Arts. 175A (13) & 48---Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Role of Prime Minister---Scope---When Parliamentary Committee confirmed the name of a nominee of the Judicial Commission or the same was deemed to have been confirmed by it, the Prime Minister was left with no discretion but to forward the same to the President of Pakistan for appointment---Prime Minister after confirmation of the name of the nominee by the Parliamentary Committee was not required to advise the President, under Art.48 of the Constitution or vice versa since no advice was given by the Prime Minister to return the same for reconsideration.

Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407 and Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84 ref.

(n) Constitution of Pakistan---

----Arts. 175A---Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Process---Role of the President and Prime Minister of Pakistan---Scope---Role of the Prime Minister and the President in the appointment of Judges of the superior Courts was nothing but ministerial, and after receiving the nominations from the Parliamentary Committee, the Prime Minister and the President had no discretion but to forward/appoint the nominees.

(o) Constitution of Pakistan---

----Art. 192(1)---Inter se seniority of Judges of the High Court appointed/elevated on the same date/day---Determination---Recognized principle for determining seniority amongst the Judges of High Courts appointed on the same day irrespective of their appointments from subordinate Judiciary or Bars, was the seniority in age.

(p) Constitution of Pakistan---

----Art. 192(1)---Inter se seniority of Judges of the High Court---Determination---Notification of appointment of Judges by the Law Secretary---Significance---Law Secretary who issued the notifications of appointment (of Judges) had no lawful authority to determine the seniority amongst Judges of the High Court nor did the serial-wise appearance of names in the notification have any nexus with the determination of seniority.

Federal Ministry of Justice and Parliamentary Affairs' Letter No.F.12(5)/86-AII, dated 30-4-1987 ref.

(q) Constitution of Pakistan---

----Arts. 176, 192(1) & 175(3)---Inter se seniority of Judges of superior Courts---Determination---President of Pakistan, power of---Scope---Neither the Constitution nor any law authorized the President of Pakistan, who was a symbolic appointing authority, to decide the inter se seniority of Judges, which even otherwise was not only against the principles of independence of Judiciary but also violated Art.175(3) of the Constitution, which provided for separation of the Judiciary from the Executive.

(r) Constitution of Pakistan---

----Arts. 175A(1), 176 & 192(1)---Inter se seniority of Judges of superior Courts---Determination---Judicial Commission, authority of---Scope---Judicial Commission was created by the Constitution and could not be given the status of a court to decide the issue of inter se seniority between two persons---Judicial Commission had no mandate to decide the inter se seniority of Judges.

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

(s) Constitution of Pakistan---

----Arts. 175A, 192(1), 196 & 186---Judicial Commission of Pakistan Rules, 2010, R.3(1)---Reference to Supreme Court under Art.186 of the Constitution by the President of Pakistan---Appointment of Chief Justice of the High Court---Legitimate expectation of the most senior Judge of a High Court to be appointed as Chief Justice of that High Court---Scope---Judicial Commission nominating a Judge of Islamabad High Court, who was not the most senior Judge of that Court , as Chief Justice of Islamabad High Court---Legality---Question of suitability for appointment of the Chief Justice of the High Court was to be decided by the Judicial Commission---Neither Art.175A(5) nor Art.196 of the Constitution made it mandatory that in the case of a vacancy, the most senior Judge of the High Court would be appointed as Chief Justice of that High Court---Articles 175A(3) & (5) of the Constitution read with R.3 of the Judicial Commission of Pakistan Rules, 2010 indicated that instead of making it mandatory to appoint the most senior Judge as Chief Justice of the High Court, the matter was left to the discretion of the Chief Justice of Pakistan to initiate the name for Chief Justice of the High Court and the Commission by majority of its total membership nominated one person for the said post---Although the practice of appointment of a Judge, other than the most senior Judge, as Chief Justice of the High Court was against the convention and might not be in the interest of the judiciary, however, such an appointment could not be termed as violative of the Constitution---Question of nomination by the Judicial Commission and confirmation by the Parliamentary Committee of a Judge, who was not the most senior Judge, as Chief Justice of the High Court, could not be answered in advisory jurisdiction of the Supreme Court and might be adjudicated upon in other jurisdiction---Reference under Art.186 of the Constitution was answered accordingly.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407; Budget Reference: PLD 1989 SC 85; Ghulam Hyder Lakho v. Federation of Pakistan PLD 2000 SC 179; Supreme Court Bar Association v. Federation of Pakistan PLD 2002 SC 939; AIR 1994 SC 268 and Tariq Aziz-ud-Din: in re 2010 SCMR 1301 ref.

(t) Interpretation of statutes---

----Words/phrases in a statute, interpretation of---Scope---While interpreting statutes, it was presumed that the Legislature choose its words carefully, therefore, if a word or phrase had been added somewhere, such addition was not to be deemed redundant; conversely, if a word or phrase had been left out somewhere, such omission was not be deemed inconsequential---Change in language (of a statute) implied a change in the intent.

Maxwell on the Interpretation of Statutes, 11th Edn. 1962, p.311 ref.

(u) Constitution of Pakistan---

----Arts. 175A(8) & 186---Reference to Supreme Court under Art.186 of the Constitution by the President of Pakistan---Judicial Commission, composition of---Judicial Commission nominating names for appointment of Judges of the Islamabad High Court in the absence of the most senior Judge of Islamabad High Court in the proceedings of the Commission---Legality---Contentions on behalf of Referring Authority (the President) were that Judge of Islamabad High Court who sat, voted and took part in the proceedings of the Judicial Commission was not the most senior Judge of Islamabad High Court; that Judicial Commission could not be said to have been properly constituted in the absence of the most senior Judge of Islamabad High Court, therefore, nominations made by the Judicial Commission would not have any legal or constitutional sanctity, notwithstanding that they had been confirmed by the Parliamentary Committee, sent to the Prime Minister and then forwarded to the President---Validity---Judicial Commission after deliberations nominated names of Judges by majority of 7 to 2---Even if it was accepted that Judge of Islamabad High Court who attended the meeting of the Judicial Commission was not the most senior Judge of the said Court, it was established from the record that on the date when the meeting of the Commission was called, the most senior Judge of Islamabad High Court was on ex-Pakistan leave and Judge who attended the proceedings of the Commission was the most senior Judge available---Term "most senior Judge" had not been defined by the Constitution---Even if it was accepted that the Judge of Islamabad High Court who attended the meeting of the Judicial Commission, was not eligible to sit in the meeting, Art.175A(8) of the Constitution stipulated that the decision of the nomination of a person for any vacancy of a Judge of the superior Court was to be taken by the Commission, by majority of its total members and as such, attendance of said Judge in the meeting did not vitiate the entire proceedings or made the nominations invalid---Proceedings of the Judicial Commission, whereby nominations were made for appointment as Judges of Islamabad High Court, were not vitiated because of the attendance of a Judge who was not the most senior Judge of Islamabad High Court---Reference under Art.186 of the Constitution was answered accordingly.

Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 SC 759); Federation of Pakistan v. Aftab Ahmad Khan Sherpao PLD 1992 SC 723; Regina v. Bow Street Metropolitan Stipendiary Magistrate and others Ex parte Pinochet Ugarte (No.2) [1999] 1 AU E.R. 577, [1999] 2 WLR 272; Federation of Pakistan v. Sindh High Court Bar Association PLD 2012 SC 1067; Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879; Managing Director SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724 and Anderson v. City of Persons (496, P.2d 1333-Kan: SC 1972 ref.

Ghulam Hyder Lakho v. Federation of Pakistan PLD 2000 SC 179 and Muhammad Saleem and 12 others v. Secretary Prosecution, Government of Punjab Lahore and another 2010 PLC (C.S.) 1 rel.

(v) Constitution of Pakistan---

----Arts. 175A & 186---Reference to Supreme Court under Art.186 of the Constitution by the President of Pakistan---Appointment of Judges of superior Courts---Power of Supreme Court to review role and parameters of Judicial Commission and Parliamentary Committee in its advisory jurisdiction---Scope---Roles of Parliamentary Committee and Judicial Commission as well as the parameters before the Committee for confirmation of a nomination by the Commission in terms of Art.175A(12) of the Constitution could not be reviewed by the Supreme Court in its advisory jurisdiction---Reference under Art.186 of the Constitution was answered accordingly.

Cauvery Water Disputes Tribunal AIR 1992 SC 522 ref.

(w) Constitution of Pakistan---

----Art. 175A---Judicial Commission of Pakistan Rules, 2010, R.3---Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Power of the Chief Justice of the Court to initiate nomination for appointment against anticipated or actual vacancy---Scope---No member of the Judicial Commission, except the Chief Justice of Pakistan or the Chief Justice of the Federal Shariat Court or of a High Court, could initiate the nomination for appointment against anticipated or actual vacancy therein---Chief Justice of Pakistan or the Chief Justice of the concerned High Court was the best person to practically/technically evaluate a person's caliber to be nominated as a Judge, including his legal competence and integrity---Except initiating the nomination of a person, the Chief Justice of Pakistan or the Chief Justice of the High Court had no other special role in the appointment process and was just like any other member of the Commission and merely because he initiated the nomination, the same itself could not be recommended, but was to be considered as an act of mere procedure--- Commission after deliberations and technical/professional evaluation of a person's caliber as a Judge, nominated the name of such person to be appointed as Judge of the superior Courts by majority of its total membership.

Sindh High Court Bar Association, Sukkur through President v. Pakistan through Secretary, Ministry of Law, Parliamentary Affairs and Justice, Islamabad and another PLD 2012 Sindh 531 ref.

(x) Constitution of Pakistan---

----Art. 175A---Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Nominations made by the Judicial Commission---Discretion of the President of Pakistan to send name of a nominee for reconsideration---Scope---In terms of Art.175A of the Constitution, the President of Pakistan had no discretion to send the name of nominee of the Judicial Commission, who was confirmed by the Parliamentary Committee, for reconsideration.

Per Ejaz Afzal Khan, J.

(y) Constitution of Pakistan---

----Arts. 175A & 48---Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Nominations made by the Judicial Commission---Discretion of the President of Pakistan to send name of a nominee for reconsideration---Scope---Nomination originating from the Judicial Commission, confirmed by the Parliamentary Committee was not an advice in terms of Art.48 of the Constitution, nor was it open to the incidence of return for reconsideration because Art.175A of the Constitution did not envision any such thing--- President had no power to return a nomination to any of the tiers it had passed from, even if it was violative of the Constitution or the law.

(z) Interpretation of statutes---

----Casus omissus, doctrine of---Scope---Casus omissus could, in no case, be supplied by the Court of law as that would amount to altering the provision---Court of law was not entitled to read words into the Constitution or an Act of Parliament unless clear reason was found within the four corners of either of them.

Attorney General v. Bihari, re Australia Factors Limited (1966) 67 S.R. (N.S.W.) 150 ref.

(aa) Constitution of Pakistan---

----Art. 175A, 177, 193 & 42---Appointment of Judges to the Supreme Court and High Courts---Judicial Commission and Parliamentary Committee nominating name of a Judge in contravention of the Constitution and the law---Power of the President of Pakistan to not appoint such a nominee---Scope---President before appointing a person as Judge or a Chief Justice of a High Court or a Judge of the Supreme Court should ensure that his nomination so made was in accordance with the Constitution and the law---President should not appoint a person as a Judge of the Supreme Court or a Judge or Chief Justice of a High Court, whose nomination, in his opinion, was against the Constitution and the law---Where nomination sent to the President for appointment in terms of Art.175A of the Constitution was against the Constitution and the law, a deadlock would inevitably be the consequence as the President could neither return the nomination to the source it had originated from or processed through nor could he appoint the person, thus nominated---Only way out of such a deadlock would be recourse to an advisory or adjudicatory jurisdiction of the Supreme Court---If the Supreme Court upheld the opinion of the President, the Commission should initiate proceedings de novo in accordance with the opinion of the Court, but if the opinion of the President was not upheld by the Court, he should appoint the person so nominated. [Different view].

(bb) Constitution of Pakistan---

----Art. 192(1)---Inter se seniority of Judges of the High Court appointed/elevated on the same date/day---Determination---Established practice and yardstick for determining seniority amongst the Judges of a High Court, elevated on the same day, was seniority in age except in the case of Judges from service whose inter se seniority remained intact even on their elevation irrespective of their age---Such principle merited respect and reverence because it not only ruled out personal whim and caprice of the person at one peak or another and shut doors and windows for manipulation at ministerial level but also created an environment which was conducive for the rule of law, supremacy of the Constitution and independence of Judiciary.

Federal Ministry of Justice and Parliamentary Affairs' Letter No.F.12(5)/86-AII, dated 30-4-1987 ref.

(cc) Constitution of Pakistan---

----Arts. 175A, 192(1) & 186---Reference to Supreme Court under Art.186 of the Constitution by the President of Pakistan---Appointment of Chief Justice of the High Court---Legitimate expectation of the most senior Judge of a High Court to be appointed as Chief Justice of that High Court---Scope---Judicial Commission nominating a Judge of Islamabad High Court as Chief Justice of said Court, who was not the most senior Judge of that Court---Legality---Practice/convention that the senior most Judge of the High Court, in the absence of any concrete and valid reason had to be appointed as the Chief Justice of the High Court was esteemed, honoured and also had the approval of the Supreme Court--- First proviso to Art.175A(5)(iv) of the Constitution, which provided that for appointment of the Chief Justice of a High Court the most senior Judge of that High Court should not be member of the Judicial Commission, unmistakably indicated that the most senior Judge of the High Court should be nominated as Chief Justice in the absence of any valid reason---Most senior Judge of Islamabad High Court, therefore, had a legitimate expectancy to be appointed as Chief Justice, and that subject to any valid reason which was yet to be recorded by the Commission, he would be entitled to be appointed as such---Premises recorded by the Commission for departing from the well established principle of determining seniority were not correct---Reference under Art.186 of the Constitution was answered accordingly. [Minority view].

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407 and Malik Asad Ali and others v. Federation of Pakistan and others PLD 1998 SC 33 ref.

Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs and Justice, Islamabad v. Sindh High Court Bar Association through President and another PLD 2012 SC 1067 distinguished.

(dd) Constitution of Pakistan---

----Art. 192(1)---Inter se seniority of Judges of High Courts, determination of---President of Pakistan, power of--- Scope---President of Pakistan could not determine the seniority of Judges of the High Courts.

(ee) Constitution of Pakistan---

----Arts. 175A(8) & (14) & 186---Reference to Supreme Court under Art.186 of the Constitution by the President of Pakistan---Judicial Commission, composition of---Judicial Commission nominating names for appointment of Judges of the Islamabad High Court in the absence of the most senior Judge of Islamabad High Court in the proceedings of Judicial Commission---Legality---Contentions on behalf of Referring Authority (the President) were that Judge of Islamabad High Court who sat, voted and took part in the proceedings of the Judicial Commission was not the most senior Judge of Islamabad High Court; that Judicial Commission could not be said to have been properly constituted in the absence of the most senior Judge of Islamabad High Court, therefore, nominations made by the Judicial Commission would not have any legal or constitutional sanctity, notwithstanding that they had been confirmed by the Parliamentary Committee, sent to the Prime Minister and then forwarded to the President---Validity---Failure of most senior Judge of Islamabad High Court to attend the meeting of the Judicial Commission would not vitiate the proceedings of the Commission---Art.175A(14) of the Constitution clearly provided that no action or decision taken by the Commission or Committee would be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof---Accepting that Judge of Islamabad High Court who sat, voted and took part in the proceedings of the Commission culminating in the nomination of Judges, was a non-entity, yet it would not vitiate the proceedings when the Judicial Commission, in view of Art.175A(8) of the Constitution, had nominated the Judges by majority of its total membership---Proceedings of the Commission would have been vitiated or materially affected if it had nominated the Judges with a margin of one, but where the Commission nominated the Judges by a majority of 7 against 2, the presence or participation of a Judge, who was not the most senior Judge of Islamabad High Court, in the meeting would not be of any consequence---Reference under Art.186 of the Constitution was answered accordingly.

Managing Director, Sui Sourthrn Gas Company Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724 ref.

Regina v. Bow Street Metropolitan Stipendiary Magistrate and others Ex parte Pinochet Ugarte (No.2) [1999] AU E.R. 577, [1999] 2 WLR 272 distinguished.

(ff) Constitution of Pakistan---

----Arts. 175A & 186---Reference to Supreme Court under Art.186 of the Constitution by the President of Pakistan---Proceedings of Judicial Commission held in camera---Propriety---Contention on behalf of Referring authority (the President) was that proceedings in the Judicial Commission could not be held in camera when the legislature purposely provided otherwise so as to ensure complete transparency and open scrutiny---Validity---Members of the Judicial Commission not only represented all the essential segments of the Bar and Bench but also those of the Federation and the Province through Attorney General for Pakistan, Minister for Law and Justice of the Federation and Minister for Law of the Province---Scrutiny was open in the truest sense of the word when each member was at liberty to present his point of view one way or the other---Transparency in the proceedings could not be affected by holding it in camera if every member consciously and conscientiously gave his input in the nomination, keeping in view its overall impact on the institution on the one hand and society at large on the other---Reference under Art.186 of the Constitution was answered accordingly.

Wasim Sajjad, Senior Advocate Supreme Court, Abdul Latif Yousafzai, Senior Advocate Supreme Court, Idrees Ashraf, Advocate and Mehr Khan Malik, Advocate-on-Record for President.

Irfan Qadir, A. G. for Pakistan, Dil Muhammad Alizai, DAG, Barrister Shehryar Riaz Sh. Advocate Mrs. Shafaq Mohsin, Advocate and Faisal Hussain, Advocate for Federation.

Makhdoom Ali Khan, Senior Advocate Supreme Court, Khurram M. Hashmi, Advocate, Umair Majeed Malik, Advocate, Hyder Ali Khan, Advocate, Saad M. Hashmi, Advocate and Mrs. Asma Hamid, Advocate and Khawaja Haris Ahmed, Senior Advocate Supreme Court, Assisted by:

i) Kh. Zaheer Ahmed, Advocate

ii) Syed Ali Shah Gilani, Advocate, Amici Curiae.

Date of hearing: 14th December, 2012. (Reserved)

OPINION

KHILJI ARIF HUSSAIN, J.---Briefly stating the facts, relevant to give opinion on the questions referred to by the President of Pakistan, through Reference No.1 of 2012, under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred to as 'the Constitution'], are that in a meeting of the Judicial Commission of Pakistan [hereinafter referred to as 'the Commission'], held on 27-9-2012 to fill a vacancy, the Chief Justice of Pakistan initiated the names of Mr. Justice Iqbal Hameed-ur-Rahman, the Chief Justice of Islamabad High Court, Islamabad, as a Judge of this Court. After deliberations, the Commission nominated Mr. Justice Iqbal Hameed-ur-Rahman as a Judge of this Court.

1. In another meeting of the Commission, on the same day, which was attended by Mr. Justice Iqbal Hameed-ur-Rahman, the Chief Justice of Islamabad High Court, Islamabad, the Chief Justice of Pakistan initiated the name of Mr. Justice Muhammad Anwar Khan Kasi, as Chief Justice of Islamabad High Court, Islamabad, who after deliberations and with majority of 7 to 2, was nominated.

2. When the tenure of Mr. Shaukat Aziz Siddiqui; Mr. Noor-ul-Haq N. Qureshi; and Mr. Muhammad Azeem Khan Afridi, who were initially appointed as Additional Judges of Islamabad High Court, Islamabad, for a period of one year with effect from the date they took oath of their offices was nearing expiry, their cases were referred to the Commission and after deliberations it nominated the names of Mr. Shaukat Aziz Siddiqui, as a Judge of Islamabad High Court, Islamabad with a vote of 8 to 2 and unanimously nominated Mr. Noor-ul-Haq N. Qureshi, as an Additional Judge of Islamabad High Court, Islamabad, for further period of six months from the date of expiry of his present term, whereas the name of Mr. Muhammad Azeem Khan Afridi was dropped he was not nominated.

3. The meeting of the Commission was attended by Mr. Justice Muhammad Anwar Khan Kasi, as most senior Judge of Islamabad High Court, Islamabad.

4. On receipt of nominations, in respect of Mr. Justice Iqbal Hameed-ur-Rahman, as a Judge of this Court; Mr. Justice Muhammad Anwar Khan Kasi, as Chief Justice of Islamabad High Court, Islamabad; Mr. Shaukat Aziz Siddiqui, as a Judge of Islamabad High Court, Islamabad; and Mr. Noor-ul-Haq N. Qureshi, as an Additional Judge of Islamabad High Court, Islamabad, for a period of six months from the date of expiry of his tenure, the Parliamentary Committee [hereinafter referred to as 'the Committee'], after due consideration unanimously endorsed the nominations made by the Commission and sent the same to the Prime Minister of Pakistan to forward them to the President of Pakistan for issuance of requisite notifications. The President of Pakistan, after receipt of the aforesaid nominations, instead of issuing the notifications, by way of filing a Reference (Reference No.1 of 2012) under Article 186 of the Constitution, sought opinion of this Court on the following questions of law, considering them to be of public importance:--

"(i). Whether in view of the decision by the Chief Justice of the IHC that Mr. Justice Riaz was the senior most judge of the IHC, which decision of the Chief Justice was also confirmed by the President of Pakistan, Mr. Justice Kasi could be treated as most senior Judge of the IHC?

(ii) Whether Mr. Justice Riaz had a legitimate expectancy to be appointed as Chief Justice of the IHC on the ground that he was the most senior Judge of that Court in the light of the judgment of the Supreme Court in the Al-Jehad case referred to above?

(iii) Whether the JCP acted in accordance with the Constitution and conventions thereof in recommending a junior Judge as Chief Justice of the IHC?

(iv) Whether JCP was properly constituted as per provision of Article 175-A of the Constitution as Mr. Justice Kasi who participated in the meeting was not a Member thereof and was a stranger to the proceedings?

(v) Whether the President who is bound by oath of office to preserve, protect and defend the Constitution is obliged to make the appointments which are not in accordance with the provisions of the Constitution?

(vi) What should be the manner, mode and criteria before the Judicial Commission with respect to the nomination of a person as a Judge of High Court, Supreme Court and Federal Shariat Court in terms of Clause (8) of Article 175-A of the Constitution of Islamic Republic of Pakistan, 1973?

(vii) What is the proper role of the Judicial Commission and Parliamentary Committee under the Constitution of Pakistan with respect to appointment of Judges of Supreme Court, High Court and Federal Shariat Court?

(viii) What should be the parameters before the Parliamentary Committee for the confirmation of the nominee of the Judicial Commission in terms of Clause (12) of Article 175-A of the Constitution of Islamic Republic of Pakistan, 1973?

(ix) Whether the Constitution prohibits reconsideration of the nominations by JCP and confirmed by the Parliamentary Committee in the light of the observations made by the President?

(x) What should be the criteria for elevating a Judge/Chief Justice of the High Court to the Supreme Court? Is it, their seniority inter- se as Judge of the High Court or their seniority inter-se as Chief Justice of respective High Court be the consideration for elevation to the Supreme Court?

(xi) Whether the Constitution of Pakistan prohibits individual Members of the JCP to initiate names for appointments of Judges to the Supreme Court, the High Courts and the Federal Shariat Court?

(xii) The Parliamentary Committee under Article 175-A of the Constitution may confirm or may not confirm a nomination in accordance with the provisions stated therein. What is the true import and meaning of the word "confirm" and what is the effect of the proviso to Clause 12 of Article 175-A which reads as follows:

"Provided further that if nomination is not confirmed, the Commission shall send another nomination"

(xiii) Whether by not providing in camera proceeding for JCP in Article 175-A of Constitution of Pakistan, the intention of the legislature is to ensure complete transparency and open scrutiny?"

1. As the subject matter of the Reference is of utmost importance with regard to the independence of the Judiciary and the principle of trichotomy of powers, this Court decided to seek the assistance of some senior Lawyers and thus appointed Mr. Makhdoom Ali Khan, learned Senior Advocate Supreme Court and Khawaja Haris Ahmed, learned Advocate Supreme Court, as amicus.

2. Mr. Waseem Sajjad, learned Senior Advocate Supreme Court while appearing on behalf of the Referring Authority contended that the principle underlying the determination of seniority of Judges, elevated on the same day is seniority in age, Mr. Justice Riaz Ahmed Khan, being senior in age is the most Senior Judge and thus is to be nominated as Chief Justice, Islamabad High Court. This practice, the learned counsel added, being more than a century old has been consistently followed in the Indian sub-continent and even after its partition. The learned counsel, to substantiate his argument, referred to the letter No.F.12(5)/86-AII, dated 30-4-1987, Government of Pakistan, Ministry of Justice and Parliamentary Affairs (Justice Division). The learned counsel by elaborating his argument contended that when according to the dictum laid down in the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 Supreme Court 324), the most senior Judge of a High Court has a legitimate expectancy to be appointed as Chief Justice, in the absence of any concrete reason, Mr. Justice Riaz Ahmed Khan being the most senior Judge was entitled to be nominated for appointment as Chief Justice and that the nomination of Mr. Justice Muhammad Anwar Khan Kasi was not only an out right departure from the century old practice but also against the law of the land, therefore, the President is not bound to appoint such person as Chief Justice. The learned counsel next contended that even the Judicial Commission, nominating Mr. Justice Shaukat Aziz Siddique for appointment and Mr. Justice Noor-ul-Haq Qureshi for extension as Judges of the High Court, cannot be said to have been properly constituted in the absence of the most senior Judge, therefore, their nominations will not have any legal or constitutional sanctity, notwithstanding it having been confirmed by the Parliamentary Committee, sent to the Prime Minister and then forwarded to the President. It would be all the more without any legal and Constitutional sanctity, argued the learned counsel, when it does not conform to the manner prescribed by the Constitution. The learned counsel to support his contention referred to the cases of Human Rights Cases Nos. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 Supreme Court 759) and Federation of Pakistan v. Aftab Ahmad Khan Sherpao (PLD 1992 Supreme Court 723). The fact, maintained the learned counsel, that a non-entity, sat, voted and took part in the proceedings would also call for its annulment on this score alone. The learned counsel to support his contention placed reliance on the case of "Regina. v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex-parte Pinochet Ugarte (No.2) [1999] 1 AU E.R. 577, [1999] 2 WLR 272. Even otherwise, the learned counsel submitted, that the President being appointing authority is duty bound to ensure obedience to the Constitution and the law cannot appoint a person who has not been nominated in accordance with the provisions of the Constitution.

3. The learned counsel further contended that if the principle of seniority and that of legitimate expectancy linked therewith, are ignored without reasons to record, it would give rise to the whim and caprice of the person sitting at the peak which is not conducive for independence of judiciary. The learned counsel also waxed eloquent by asking this Court to redefine the mode and manner of appointing Judges but when we observed that all these questions have been elaborately dealt with in the case of Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 Supreme Court 407), the learned counsel submitted that since they have been dealt with collaterally the judgment so rendered being obiter dicta will not have binding force. We would have agreed with the learned counsel for the President but he could not point out anything striking or significant in the judgment which went un-noticed or unattended. It is, therefore, not obiter dicta by any attribute. This judgment could have been treated as sub-silentio a precedent not fully argued, but again the learned counsel could not advert to any legal or Constitutional aspect of the case which escaped the notice of the Bench, rendering the judgment, so as to relegate it, to the status of sub-silentio. The learned counsel after taking us through various parts of the judgment rendered in the case of Federation of Pakistan v. Sindh High Court Bar Association (PLD 2012 Supreme Court 1067), contended that its reference in the minutes of the meeting of the Judicial Commission, to justify the inference that Mr. Justice Muhammad Anwar Khan Kansi is the most Senior Judge of the High Court, is absolutely uncalled for, as it, when read carefully, does not support any such inference. How could the proceeding in the Judicial Commission be held in camera, asked the learned counsel, when the legislature in its wisdom purposely provided otherwise so as to ensure complete transparency and open scrutiny. What would be the criterion asked the learned counsel, for elevating Judges or a Chief Justice of a High Court to the Supreme Court and whether it is inter se seniority of the Judges or the Chief Justices of the High Courts which constitutes a determining factor?

4. Learned Attorney General appearing on the notice of the Court contended that the Judicial Commission was not properly constituted, as persona designata did not attend the meeting and the person who attended the meeting was just a non-entity, therefore, the whole process shall stand vitiated. The President, the learned Attorney General submitted, is not bound to appoint a nominee of such Judicial Commission notwithstanding nomination so made was confirmed by the Parliamentary Committee and forwarded to the President by the Prime Minister on its receipt. The learned Attorney General next contended that where in the judgment rendered in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 Supreme Court 879), this Court annulled the appointment of many Judges for want of recommendation by the consultee, a nomination originating from the Judicial Commission which was not properly constituted has to be given alike treatment. The learned Attorney General by referring to the commentary on the Constitution of India by Durga Das Basu argued that the President is not a robot placed in the President House nor a Computer controlled automation, nor a figure head nor ornamental piece placed in the show window of the nation called the President's House. Instead, the learned Attorney General submitted, he is a living human who on being selected by the nation is endowed with all dignity, honour and prestige as head of the republic for upholding the Constitution and the laws, therefore, his role as such cannot be doubted in any situation. Seen from such an angle, the learned Attorney General concluded, the President cannot be kept out of the affairs regulating the appointment of Judges.

5. Mr. Makhdoom Ali Khan, learned Sr. ASC appeared as Amicus Curiae on notice of the Court. The learned counsel in the first instance addressed the Court as to the binding nature of an advice rendered by this Court in the exercise of its advisory jurisdiction. The learned counsel by referring to the relevant paragraph of the judgment rendered in Reference No.02 of 2005 by the President of Pakistan (PLD 2005 Supreme Court 873), submitted that though an opinion given by the Court on a reference filed by the President is not a decision between the parties but since it is handed down after undertaking an extensive judicial exercise and hearing of Advocates it has a binding force. Such advice, the learned counsel submitted has to be esteemed and accepted with utmost respect. The learned counsel then by referring to various Articles of the Constitution in general and Article 175-A in particular contended that the mode and manner of appointing Judges of the superior Courts has undergone a change and that the whole process from the inception to the end is now regulated by the latter. The learned counsel submitted that after a person has been nominated by the Judicial Commission, his name has been confirmed by the Parliamentary Committee, sent to the Prime Minister and then forwarded by the latter to the President for appointment, the President will have no choice but to appoint him. While commenting on the mode and manner of appointment of Judges and things ancillary thereto, the learned counsel submitted that an exhaustive exercise has been taken in the cases of Al-Jehad Trust (supra) and Munir Hussain Bhatti (supra), therefore, yet another exercise is hardly called for. The learned counsel, however, submitted that the principle and practice of appointing the most Senior Judge as Chief Justice is not open to any dispute and thus cannot be departed from without reasons to be recorded as held in the case of Al-Jehad Trust (supra). The President or for that matter any other person performing the affairs of Federation, the learned counsel submitted, is duty bound to protect the Constitution and that the instant reference appears to be an effort in this behalf.

6. Khawaja Haris Ahmed, Senior Advocate Supreme Court who was also asked to assist the Court as Amicus Curiae, highlighted the salient features of his written submissions. He by referring to Article 175-A of the Constitution of Pakistan submitted that the role of the President in the appointment of Judges is more-or-less ministerial, once a nomination originating from the Judicial Commission and confirmed by the Parliamentary Committee has been sent to the Prime Minister and then forwarded to the President. He by referring to the judgment rendered in the case of Munir Hussain Bhatti (supra), submitted that where almost all of the questions raised in the reference have been answered in the judgment it would be futile to reiterate the same.

7. With regard to the question relating to seniority, the learned counsel submitted that the same being person specific is not one of law, therefore, this Court cannot afford to decide such question in its advisory jurisdiction. The learned counsel next contended that the omission to mention the expression most senior Judge in the provision relating to appointment of the Chief Justice of a High Court is significant and that in the absence of any express provision even the most senior Judge cannot have legitimate expectancy, as the Constitution on this score has remained the same even after the dictum laid down in the case of Al-Jehad Trust (supra).

8. In order to give an opinion on the questions referred to by the President of Pakistan and reproduced hereinabove, we would like to discuss the legislative history of various Articles of the Constitution.

9. The first document that served as the Constitution of Pakistan was the Government of India Act, 1935. The constituent assembly, elected in the year 1946, after nine years adopted the first Constitution of 1956, which was abrogated in October, 1958 by Gen. (R) Ayub Khan. The 1962 Constitution was abrogated on 25-3-1969 by second Martial Law Administrator Gen. (R) Muhammad Yahya Khan. In December, 1970, elections were held, however, due to various reasons, which we would not like to comment upon, the National Assembly did not meet due to widespread disturbance in East Pakistan and Mr. Zulfiqar Ali Bhutto was sworn in on 20-12-1971 as President of Pakistan. After gaining power, Mr. Zulfiqar Ali Bhutto invited the leaders of political parties to meet on 19-7-1972, which after intensive discussions resulted in an agreement. A Committee of 25 Members was appointed to prepare a draft for a permanent Constitution of Pakistan and after deliberations; the Assembly passed a bill unanimously on 19-4-1973. The Constitution of Pakistan, 1973 came into effect on 14-8-1973, providing Parliamentary Form of Government, based on the trichotomy of power.

10. Prior to Constitution (Eighteenth) Amendment, the procedures for appointment of a Judge of the superior Courts mentioned in the Constitutions of Islamic Republic of Pakistan, 1962 and 1973 were identical to some extent. Before Constitution (Eighteenth) Amendment, the Articles 177 and 193 of the Constitution empowered the President of Pakistan to appoint the Chief Justice of Pakistan; the Chief Justices of the High Courts; and the Judges of the superior Courts. From perusal of the said Articles, it appears that though appointment of a Judge of the superior Courts was to be made by the President, but after consultation with the Chief Justice of Pakistan, the Governor concerned and the Chief Justice of the concerned High Court (except where the appointment is that of a Chief Justice). The appointment of a Judge of the superior Courts is a constitutional appointment and mode thereof is provided by the Constitution itself. The "consultation", as envisaged prior to the Constitution (Eighteenth and Nineteenth) Amendments, required by the President of Pakistan from the consultees was not a formality, but was mandatory and no appointment or confirmation of a Judge of the superior Courts could be made without resorting to the consultative process.

11. In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 Supreme Court 324), it was held that if the Chief Justice of the High Court and the Chief Justice of Pakistan give a positive opinion about the suitability of a candidate, but the Governor on the basis of information received about his antecedents gives a negative opinion, the President is empowered to decline the appointment of the candidate. On the other hand, if the Chief Justice of the High Court and the Chief Justice of Pakistan give a negative opinion about a candidate on the basis of their expert opinion that the candidate cannot be appointed, then the opinion of the Chief Justice cannot be ignored and due weight is to be given to his opinion. It was further held that the President/ Executive does not have a final say in the matter of appointment of the Judges of the superior Courts and if the opinion of the Chief Justice is ignored, the President/ Executive should give reasons which could be juxtaposed with the reasons of the Chief Justice to find out as to what reasons are in the public interest.

12. Immediately, after the pronouncement of judgment in the case of Al-Jehad Trust (supra), the President of Pakistan filed a Reference (Reference No.2 of 1996) under Article 186 of the Constitution seeking opinion of this Court whether the President's powers to make the appointment of Judges of the superior Courts, such appointment is subject to the provisions of Article 48(1), which prescribed that in the exercise of his functions, the President shall act in accordance with the advice of the Prime Minister. This Court, vide judgment reported as Al-Jehad Trust v. Federation of Pakistan (PLD 1997 Supreme Court 84), after discussing all aspects of the matter, in detail, came to the conclusion that in respect of appointment of the Judges as contemplated under Articles 177 and 193 of the Constitution, the advice of the Cabinet/Prime Minister under Article 48 (1) is attracted. In the said case at page 141, it was held as under:--

"74. After considering the arguments advanced for and against the proposition on the point whether for making appointments of Judges under Articles 177 and 193, which are special provisions, advice of the Prime Minister to the President under general provision of Article 48 is attracted or not, we are of the considered opinion that there is no apparent conflict in Articles 48 on one side and 177 and 193 on the other side because Articles 177 and 193 are to be read in conjunction with Article 48 (1) which is omni potent provision being special characteristic of Constitution of 1973 which envisages Parliamentary Form of Government. If the Constitution-makers intended even after promulgation of Eighth Amendment to exclude Article 48(1) from application to Articles 177 and 193, then they could have expressly mentioned in Articles 177 and 193 that the President while performing his functions under these Articles is allowed to act in his discretion excluding advice of the Prime Minister and would be deemed to be acting under Article 48(2). For such reasons we are of the view that there is no conflict as appointments under Articles 177 and 193 of the Constitution are made in conjunction with Article 48(1) of the Constitution always attracting and applying advice of the Prime Minister to the President."

1. After the pronouncement of the authoritative decision by this Court in the case of Al-Jehad Trust (ibid) by Constitution (Eighteenth) Amendment Act, 2010 (Act 10 of 2010), the appointment procedures of the Judges of the superior Courts were radically changed.

"175A. Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court.--(1) There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as herein after provided.

(2) For appointment of Judges of the Supreme Court, the Commission shall consist of--

(i) Chief Justice of Pakistan; Chairman

(ii) two most senior Judges of the

Supreme Court; Members

(iii) a former Chief Justice or a former

Judge of the Supreme Court of Pakistan

to be nominated by the Chief Justice of

Pakistan, in consultation with the two

member Judges, for a term of two years; Member

(iv) Federal Minister for Law and Justice Member

(v) Attorney-General for Pakistan; and Member

(vi) a Senior Advocate of the Supreme

Court of Pakistan to be nominated by the

Pakistan Bar Council for a term of two years. Member

(3) Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.

(4) The Commission may make rules regulating its procedure.

(5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely: ---

(i) Chief Justice of the High Court to which

the appointment is being made; Member

(ii) the most senior Judge of that High Court; Member

(iii) Provincial Minister for Law; and Member

(iv) a senior advocate to be nominated by

the Provincial Bar Council for a term of

two years: Member

Provided that for appointment of the Chief Justice of a High Court, the most senior Judge of the Court shall be substituted by a former Chief Justice or former Judge of that Court, to be nominated by the Chief Justice of Pakistan in consultation with the two member Judges of the Commission mentioned in clause (2):

Provided further that if for any reason the Chief Justice of High Court is not available, he shall also be substituted in the manner as provided in the foregoing proviso.

(6) For appointment of Judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely:---

(i) Chief Justice of the Islamabad

High Court; and Member

(ii) the most senior Judge of that

High Court: Member

Provided that for initial appointment of the Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission:

Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply.

(7) For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its members:

Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos to clause (5) shall, mutatis mutandis, apply.

(8) The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be;

(9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely:---

(i) four members from the Senate, and

(ii) four members from the National Assembly.

(10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition.

(11) Secretary, Senate shall act as the Secretary of the Committee.

(12) The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed:

Provided that the committee may not confirm that nomination by three-fourth majority of its total membership within the said period, in which case the Commission shall send another nomination.

(13) The Committee shall forward the name of the nominee confirmed by it or deemed to have been confirmed to the President for appointment.

(14) No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof.

(15) The Committee shall make rules for regulating its procedure."

The Constitution (Eighteenth) Amendment was called in question through various petitions in this Court and after hearing, an interim short order was passed; for convenience sake relevant portion therefrom, reads as under:--

"While doing so we take note of the fair stand taken by Mian Raza Rabbani, Chairman of the Special Committee of the Parliament for Constitutional Reforms and the Attorney General for Pakistan to which reference has been made in Para-12 above and hold that Article 175A shall be given effect to in the manner as under:--

(i) In all cases of an anticipated or actual vacancy a meeting of the Judicial Commission shall be convened by the Chief Justice of Pakistan in his capacity as its Chairman and the names of candidates for appointment to the Supreme Court shall be initiated by him, of the Federal Shariat Court by the Chief Justice of the said Court and of the High Courts by the respective Chief Justices.

(ii) The Chief Justice of Pakistan as head of the Judicial Commission shall regulate its meetings and affairs as he may deem proper.

(iii) The proceedings of the Parliamentary Committee shall be held in camera but a detailed record of its proceedings and deliberations shall be maintained. The Parliamentary Committee shall send its approval of recommendations of the Judicial Commission to the Prime Minister for onward transmission to the President for necessary orders. If the Parliamentary Committee disagrees or rejects any recommendations of Judicial Commission, it shall give specific reasons and the Prime Minister shall send copy of the said opinion of the Committee to the Chief Justice of Pakistan and the same shall be justicable by the Supreme Court.

1. In the light of the interim order, the Constitution (Nineteenth) Amendment Act of 2011 was passed and to some extent, the observations made by this Court were accepted and Article 175A was amended, which reads as under:--

175A. Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court.--

(1) There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided.

(2) For appointment of Judges of the Supreme Court, the Commission shall consist of---

(i) Chairman Chief Justice of Pakistan;

(ii) Members four most senior Judges of the Supreme Court;

(iii) Member a former Chief Justice or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the four member Judges, for a term of two years;

(iv) Member Federal Minister for Law and Justice;

(v) Member Attorney-General for Pakistan; and

(vi) Member a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years.

(3) Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.

(4) The Commission may make rules regulating its procedure.

(5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely:-

(i) Member Chief Justice of the High Court to which the appointment is being made;

(ii) Member the most senior Judge of that High Court;

(iii) Member Provincial Minister for Law; and

(iv) Member An advocate having not less than fifteen years practice in the High Court to be nominated by the concerned Bar Council for a term of two years:

Provided that for appointment of Chief Justice of a High Court, the most senior Judge mentioned in paragraph (ii) shall not be Member of the Commission:

Provided further that if for any reason the Chief Justice of High Court is not available, he shall be substituted by a former Chief Justice or former Judge of that Court, to be nominated by the Chief Justice of Pakistan in consultation with the four member Judges of the Commission in paragraph (ii) of clause (2):

(6) For appointment of Judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely:-

(i) Member Chief Justice of the Islamabad High Court;

and

(ii) Member the most senior Judge of that High Court.

Provided that for initial appointment of the Chief Justice and the Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission:

Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply.

(7) For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its members:

Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos to clause (5) shall, mutatis mutandis, apply.

(8) The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be.

(9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely:-

(i) Four members from the Senate; and

(ii) Four members from the National Assembly:

Provided that when the National Assembly is dissolved, the total membership of the Parliamentary Committee shall consist of the members from the Senate only mentioned in paragraph (i) and the provisions of this article, shall, mutatis mutandis, apply.

(10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition.

(11) Secretary, Senate shall act as the Secretary of the Committee.

(12) The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed:

Provided that the Committee, for reasons to be recorded, may not confirm the nomination by three-fourth majority of its total membership within the said period:

Provided further that if a nomination is not confirmed by the Committee it shall forward its decision with reasons so recorded to the Commission through the Prime Minister:

Provided further that if a nomination is not confirmed, the Commission shall send another nomination.

(13) The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment.

(14) No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof.

(15) The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained.

(16) The provisions of Article 68 shall not apply to the proceedings of the Committee.

(17) The Committee may make rules for regulating its procedure.

It is in this background that thirteen questions have been framed and are placed before this Court seeking opinion under Article 186 of the Constitution.

1. We are recording this opinion without touching the vires of Article 175A which is subject matter of various petitions pending before this Court.

2. First of all, we would like to give our opinion on questions Nos.(v) & (ix) although framed separately but are interconnected. These are as under:--

(v) Whether the President who is bound by oath of office to preserve, protect and defend the Constitution is obliged to make the appointments which are not in accordance with the provisions of the Constitution? and

(ix) Whether the Constitution prohibits reconsideration of the nominations by JCP and confirmed by the Parliamentary Committee in the light of the observations made by the President?

1. The suitability of a candidate about his ability, legal competency and integrity, which was to be determined by the Chief Justice of Pakistan and the Chief Justice of the concerned High Court prior to the Constitution (Eighteenth and Nineteenth) Amendments now is to be determined by the Commission, a body consisting of experts from all stakeholders i.e. the Judiciary, the Executive and Bars, created by Article 175A of the Constitution. Although each Member of the Commission is equal, including the Chief Justice of Pakistan/ Chief Justice of the concerned High Court having one vote each, yet the Constitution Framers in their wisdom gave decisive vote to the Judiciary, as out of 11 Members of the Commission 08 Members are from the Judiciary along with one retired Judge of the Supreme Court, nominated by the Chief Justice of the Pakistan.

2. To discharge the duty put on their shoulders by the Constitution Makers, to select the best person as a Judge of the superior Courts, the most senior Judges of the Supreme Court and the High Courts, being Members of the Commission, having one vote each, are supposed to form their opinions independently about the ability, legal competency, integrity and administrative skill of the person, whose name is initiated by the Chief Justice of Pakistan or the Chief Justice of the High Court, without which, the fundamental rights of the Citizens cannot be secured.

3. The President of Pakistan makes appointment to various (non-elective) constitutional offices besides appointing the High Court and Supreme Court Judges like the Auditor General of Pakistan; the Chief Election Commissioner and its Members; the Chairman, Federal Public Service Commission; Care Taker Prime Minister, Members of Islamic Council and the Chiefs of Armed Forces. We would like to reproduce hereinbelow the relevant Articles of the Constitution to appreciate the questions involved:--

"Audit and Accounts

168. (1) There shall be an Auditor-General of Pakistan, who shall be appointed by the President.

(2) Before entering upon office, the Auditor-General shall make before the Chief Justice of Pakistan oath in the form set out in the Third Schedule.

(3) The Auditor-General shall, unless he sooner resigns or is removed from office in accordance with clause (5), hold office for a term of four years from the date on which he assumes such office or attains the age of sixty-five years, whichever is earlier.

(3A) The other terms and conditions of service of the Auditor- General shall be determined by Act of Majlis-e-Shoora (Parliament); and, until so determined, by Order of the President.]

(4) A person who has held office as Auditor-General shall not be eligible for further appointment in the service of Pakistan before the expiration of two years after he has ceased to hold that office.

(5) The Auditor-General shall not be removed from office except in the like manner and on the like grounds as a Judge of the Supreme Court.

(6) At any time when the office of the Auditor-General is vacant or the Auditor-General is absent or is unable to perform the functions of his office due to any cause, [the President may appoint the most senior officer in the Office of the Auditor-General to] act as Auditor- General and perform the functions of that office.

Appointment of Supreme Court Judges.

177. (1) The Chief Justice of Pakistan and each of the other Judges of the Supreme Court shall be appointed by the President in accordance with Article 175A.

(2) A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and -

(a) has for a period of, or for periods aggregating, not less than five years been a Judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or

(b) has for a period of, or for periods aggregating, not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day).

Appointment of High Court Judges.

193. [(1) The Chief Justice and each of other Judges of a High Court shall be appointed by the President in accordance with Article 175A.]

(2) A person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, is not less than [forty-five] years of age, and-

(a) he has for a period of, or for periods aggregating, not less than ten years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or

(b) he is, and has for a period of not less than ten years been, a member of a civil service prescribed by law for the purposes of this paragraph, and has, for a period of not less than three years, served as or exercised the functions of a District Judge in Pakistan; or

(c) he has, for a period of not less than ten years, held a judicial office in Pakistan.

[Explanation.-In computing the period during which a person has been an advocate of a High Court or held judicial office, there shall be included any period during which he has held judicial office after he became an advocate or, as the case may be, the period during which he has been an advocate after having held judicial office.]

(3) In this Article, "District Judge" means Judge of a principal civil court of original jurisdiction.

Chief Election Commissioner and Election Commissions

213. (1) There shall be a Chief Election Commissioner (in this Part referred to as the Commissioner), who shall be appointed by the President.

(2) No person shall be appointed to be Commissioner unless he is, or has been, a Judge of the Supreme Court or is, or has been, a Judge of a High Court and is qualified under paragraph (a) of clause (2) of Article 177 to be appointed a Judge of the Supreme Court.

(2A) The Prime Minister shall in consultation with the Leader of the Opposition in the National Assembly, forward three names for appointment of the Commissioner to a Parliamentary Committee for hearing and confirmation of any one person.

(2B) The Parliamentary Committee to be constituted by the Speaker shall comprise fifty percent members from the Treasury Benches and fifty percent from the Opposition Parties, based on their strength in Majlis-e-Shoora (Parliament), to be nominated by the respective Parliamentary Leaders:

Provided that in case there is no consensus between the Prime Minister and the Leader of the Opposition, each shall forward separate lists to the Parliamentary Committee for consideration which may confirm any one name:

[Provided further that the total strength of the Parliamentary Committee shall be twelve members out of which one-third shall be from the Senate:

Provided also that when the National Assembly is dissolved and a vacancy occurs in the office of the Chief Election Commissioner, the [total membership of the Parliamentary Committee shall consist of] the members from the Senate only and the foregoing provisions of this clause shall, mutatis mutandis, apply.]

(3) The Commissioner shall have such powers and functions as are conferred on him by the Constitution and law.

Time of Election and bye-election

224(1)(1A) On dissolution of the Assembly on completion of its term, or in case it is dissolved under Article 58 or Article 112, the President, or the Governor, as the case may be, shall appoint a care-taker Cabinet:

Provided that the care-taker Prime Minister shall be appointed by the President in consultation with the Prime Minister and the Leader of the Opposition in the outgoing National Assembly, and a care-taker Chief Minister shall be appointed by the Governor in consultation with the Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly:

"224A. Resolution by Committee or Election Commission.-

(1) In case the Prime Minister and the "Leader of the Opposition in the outgoing National Assembly do not agree on any person to be appointed as the care-taker Prime Minister, within three days of the dissolution of the National Assembly, they shall forward two nominees each to a Committee to be immediately constituted by the Speaker of the National Assembly, comprising eight members of the outgoing National Assembly or the Senate, or both, having equal representation from the Treasury and the Opposition, to be nominated by the Prime Minister and the Leader of the Opposition respectively.

(2) In case a Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly do not agree on any person to be appointed as the care-taker Chief Minister, within three days of the dissolution of that Assembly, they shall forward two nominees each to a Committee to be immediately constituted by the Speaker of the Provincial Assembly, comprising six members of the outgoing Provincial Assembly having equal representation from the Treasury and the Opposition, to be nominated by the Chief Minister and the Leader of the Opposition respectively.

(3) The Committee constituted under clause (1) or (2) shall finalize the name of the care-taker Prime Minister or care-taker Chief Minister, as the case may be, within three days of the referral of the matter to it:

Provided that in case of inability of the Committee to decide the matter in the aforesaid period, the names of the nominees shall be referred to the Election Commission of Pakistan for final decision within two days.

Composition, etc., of Islamic Council.

228. (1) There shall be, constituted within a period of ninety days from the commencing day a Council of Islamic Ideology, in this part referred to as the Islamic Council.

(2) The Islamic Council shall consist of such members, being not less than eight and not more than [twenty] as the President may appoint from amongst persons having knowledge of the principles and philosophy of Islam as enunciated in the Holy Quran and Sunnah, or understanding of the economic, political, legal or administrative problems of Pakistan.

(3) While appointing members of the Islamic Council, the President shall ensure that-

(a) so far as practicable various schools of thought are represented in the Council;

(b) not less than two of the members are persons each of whom is, or has been a Judge of the Supreme Court or of a High Court;

(c) not less than [one third] of the members are persons each of whom has been engaged, for a period of not less than fifteen years, in Islamic research or instruction; and

(d) at least one member is a woman.

[(4) The President shall appoint one of the members of the Islamic Council to be the Chairman thereof.]

(5) Subject to clause (6), a member of the Islamic Council shall hold office for a period of three years.

(6) A member may, by writing under his hand addressed to the President, resign his office or may be removed by the President upon the passing of a resolution for his removal by a majority of the total membership of the Islamic Council.

Public Service Commission

242. (1) Majlis-e-Shoora (Parliament) in relation to the affairs of the Federation, and the Provincial Assembly of a Province in relation to the affairs of the Province may, by law provide for the establishment and constitution of a Public Service Commission.

(1A) The Chairman of the Public Service Commission constituted in relation to the affairs of the Federation shall be appointed by the President on the advice of the Prime Minister.

(1B) The Chairman of the Public Service Commission constituted in relation to affairs of a Province shall be appointed by the Governor on advice of the Chief Minister.]

(2) A Public Service Commission shall perform such functions as may be prescribed by law.

Armed Forces

243. (1) The Federal Government shall have control and command of the Armed Forces.

(2) Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President.

(3) The President shall subject to law, have power-

(a) to raise and maintain the Military, Naval and Air Forces of Pakistan; and the Reserves of such Forces; and

(b) to grant Commissions in such Forces.

(4) The President shall, on advice of the Prime Minister, appoint-

(a) the Chairman, Joint Chiefs of Staff Committee ;

(b) the Chief of the Army Staff;

(c) the Chief of the Naval Staff; and

(d) the Chief of the Air Staff, and shall also determine their salaries and allowances]"

1. A bare reading of the Article 168 prior to Constitution (Eighteenth and Nineteenth) Amendments, reveals that Clause 3 of Article 168 was substituted by Sub-Clause 3 of Article 168(1) of the Constitution, as adopted in 1973 Constitution by providing a term of office of the Auditor General of Pakistan.

2. Articles 177(1) and 193(1) were amended by Constitution (Eighteenth and Nineteenth) Amendments by providing that the Chief Justice of Pakistan and Chief Justices of the Provincial High Courts and Judges of superior Courts will be appointed by the President of Pakistan, in accordance with Article 175A of the Constitution, which Article gives a complete process and mechanism for the appointment of Judges of the superior Courts.

3. Article 213 for appointment of Chief Election Commissioner and its Members was amended by inserting new Clauses 2A & 2B by Constitution (Eighteenth) Amendment and proviso to clause 2B by Constitution (Nineteenth) Amendment. By Clause 2B of Article 213 of the Constitution, a Parliamentary Committee (to some extent identical to Parliamentary Committee in the matter relating to appointment of Judges of the superior Courts) has been constituted to confirm one person out of three names each proposed by the Prime Minister and the Leader of the Opposition, if there is no consensus between them on three names. The 'discretion' of the President to appoint the Chief Election Commissioner, as provided in the 1973 Constitution was omitted from sub clause 1 of Article 213 of the Constitution, which means that though the President of Pakistan has to appoint the Chief Election Commissioner and its Members, he now has no discretion except to appoint the "person" whose name is confirmed by the Parliamentary Committee, as provided by Article 175A(13) of the Constitution for appointment of Judges of the superior Courts. He is completely ousted from the process of nomination of name and the only role left for him is to "appoint" the nominee of the Committee and or of Prime Minister and Leader of Opposition as the case may be.

4. Article 224(1A) is inserted by Constitution (Eighteenth) Amendment, whereas Article 224A is inserted by Constitution (Twentieth) Amendment providing for appointment of care-taker Cabinet/ Prime Minister. On dissolution of the Assembly on completion of its term or in case it is dissolved under Article 58 or Article 112, the President or the Governor, as the case may be, shall appoint a care-taker Prime Minister in consultation with the Prime Minister and the Leader of Opposition in the outgoing National Assembly. The proviso of Article 224(1A) inserted by Constitution (Eighteenth) Amendment made it mandatory to appoint the person as care-taker Prime Minister, nominated by the Prime Minister and the Leader of the Opposition. In case, the Prime Minister and the Leader of the Opposition in the outgoing National Assembly do not agree on any person, they shall forward two nominees each to a committee comprising 8 members of the outgoing National Assembly or the Senate or both, having equal representation from the Treasury and the Opposition, to be nominated by the Prime Minister and the Leader of the Opposition, respectively. The Committee shall finalize the name of the care-taker Prime Minister within 3 days of the referral of the matter to it. If committee is unable to finalize the name of care-taker Prime Minister within 3 days of the referral, the name of the nominee shall be referred to the Election Commission for final decision within two days.

5. Although, the President of Pakistan has to appoint the care-taker Prime Minister but by Constitution (Eighteenth & Twentieth) Amendments, now he is only a symbolic appointing authority with no discretion, but to appoint the person nominated by the outgoing Prime Minister and the Leader of the Opposition as care-taker Prime Minister within 3 days of the dissolution of National Assembly and if they do not agree then by the Committee comprising 8 Members of the outgoing National Assembly or the Senate or by the Election Commission, as the case may be, as in the matter of appointment of Judges of the Superior Courts.

6. The Chairman of Public Service Commission and Chiefs of Armed Forces now by Constitution (Seventeenth) Amendment are to be appointed by the President on the advice of the Prime Minister instead of "in his discretion".

7. From the perusal of different Articles referred to above for appointments of various constitutional offices, by the President in the matter of appointment of Chairman, Public Service Commission, Chiefs of Armed Forces, it appears that the President has to act on the advice of Prime Minister and he may require the Prime Minister to re-consider such advice whereas, in the matter of appointment of Judges in the Superior Courts; Chief Election Commissioner and Members of the Commission; and care-taker Prime Minister, the advice of Prime Minister is not required and after the nomination of name for appointment, by the Committee, the President has no discretion except to appoint the nominee.

8. We would like to mention here that the Azad Jammu and Kashmir Interim Constitution Act, 1974 provides that a Judge of the Supreme Court or High Court shall be appointed by the President on the advice of a Council after consultation with the Chief Justice of the Azad Jammu and Kashmir. The Prime Minister or the person nominated by him is one of the members of the council along with six members to be elected by the Assembly, including five members nominated by the Prime Minister of Pakistan and others. In the case of Muhammad Younas Tahir and another v. Shaukat Aziz, Advocate, Muzaffarabad and others (PLD 2010 SC AJK 42) while dealing with question whether advice of Prime Minister is required while appointing Judges of superior courts it was held that since a Judge in the Supreme Court is appointed by the President on the advice of the "Council" and after consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court the advice of Prime Minister is not relevant for the purpose of appointment of judges.

9. The Constitution, being a living organ for all times is to be interpreted dynamically, as a whole, to give harmonious meaning to every Article of the Constitution.

34.The function of the Court, while interpreting the statute, is to discover the true legislative intent. Having ascertained the intention, the Court must strive to interpret the statute as to promote/advance the object and purpose of the enactment. For this purpose, where necessary, the Court may even depart from the rules that plain words should be interpreted according to their plain meaning. The Constitution was framed by its Framers, keeping in view the situations and conditions prevailing at the time of its making, but being an organic document it has been conceived in a manner so as to apply to the situations and conditions which might arise in the future. The words and expressions used in the Constitution, in that sense, have no fixed meaning and must receive interpretation based on the experience of the people in the course of working of the Constitution.

1. The general principle of interpretation of statutes is equally applicable while interpreting any provision of the Constitution. However, while interpreting a provision of the Constitution, great caution has to be taken by the Court, as the Constitution is supreme law, which creates the Legislature itself which makes ordinary law and statutes with respect to which canons of statutory interpretation have been formulated by the Courts. The task of expounding a Constitution is crucially different from that of construing a statute. An ordinary statute can easily be enacted or repealed by a simple majority of the Members of the Parliament, whereas any provision of the Constitution can be amended only by 2/3rd majority of both the Houses.

2. In the case of Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 Supreme Court 407), this Court held that the Parliamentary Committee under Article 175A of the Constitution cannot be equated with the Parliament nor can it be treated as a sub­set of the Parliament in the manner in which a Parliamentary Committee elected and answerable to the Parliament can be considered to be part of the Parliament. The role of the Parliamentary Committee has been dealt with in detail in the said judgment and the Review Petition filed there-against by the Federation of Pakistan. We would like to reproduce hereinbelow paras.15 and 16 of the judgment, under review, dated 24-4-2011:--

"15. Let me say at once that the Committee has and can exercise the powers which under the earlier dispensation were exercisable by the Prime Minister. We have specifically held that " [t]he role which they [the Prime Minister and President] were performing in the previous legal set up ... is now logically to be performed by the Committee". Therefore, if the Prime Minister's role in the previous appointment mechanism was not considered to be meaningless, we fail to see how the Committee, charged with performing the same role, can be considered redundant. That the Committee is only an "institutionalized forum" for performing the functions which were previously the domain and province of the Prime Minister is made clear in our judgment more than once. This can be further buttressed if one considers the speeches of Mr. Raza Rabbani, Chairman of the Parliamentary Committee on Constitutional Reform (PCCR), on the floor of Parliament at the time the 18th Amendment bill was being debated. On 6-4-2010, for instance, with the object of convincing the members of the National Assembly to approve Article 175A, Mr. Rabbani said, "in actual fact what is happening is that the functions that were being performed by the Prime Minister in terms of the present [pre amendment] system of appointment of Judges would be taken over by this Parliamentary Committee". The very same intention was repeated six days later on the floor of the Senate on 12-4-2010 when Mr. Rabbani, with the same clarity of expression and intent stated that "what in actual fact has been done here [in Article 175A] is, that the role that was assigned to the Prime Minister in terms of appointment of Judges ... has now been assigned to this Parliamentary Committee".

16. It may be noted here that Mr. Raza Rabbani was not just any member of Parliament making any odd speech on the floor of the Houses of Parliament to put forward his own point of view. He was the Chairman of the PCCR. It was he who was steering the Constitutional amendments through Parliament. We can presume that within the PCCR, comprised of 27 members, there would have been discussion and divergent points of view on Article 175A before it was given the shape it finally took in the 18th Amendment. These divergent views were sorted out which resulted in the view expressed by Mr. Rabbani while explaining the function of the Committee. It has not been suggested and, in any event, there would be no warrant for the premise that the intent of Parliament was anything different from what was stated by Mr. Rabbani in Parliament, in the solemn proceedings effecting important provisions of the Constitution. It would, therefore, be reasonable to rely on Mr. Raza Rabbani, as providing evidence of Parliamentary intent. It is such intent after all, which we are engaged in ascertaining and in this effort we are immeasurably benefited by what Mr. Rabbani said. We have already commented on the relevance of Parliamentary proceedings as an aid to interpretation of statutory text. While considering the domain and functions of the Committee we should also note that Mr. Rabbani was unambiguous in informing Parliament that the members of the PCCR "were also mindful of the fact that the manner in which the trichotomy of power has been defined in that [Sindh High Court Bar Association] judgment, the balance of that should not be upset". Our judgment under review has ensured that this balance is maintained."

1. The President of India under Article 143 of Constitution of India, sought the opinion of the Indian Supreme Court as to whether the expression "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of opinion of the Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute consultation within the meaning of the said Articles. It gave its opinion as under:--

"19. It is, we think, reasonable to expect that the collegiums would make its recommendations based on a consensus. Should that not happen, it must be remembered that no one can be appointed to the Supreme Court unless his appointment is in conformity with the opinion of the Chief Justice of India. The question that remains is: what is the position when the Chief Justice of India is in a minority and the majority of the collegiums disfavor the appointment of a particular person? The majority judgment in the second Judges case has said that if "the final opinion of the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the view that the recommendee is unsuitable for stated reason, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible". This if the majority of the collegiums is against the appointment of a particular person, that person shall not be appointed, and we think that this is what must invariably happen. We hasten to add that we cannot easily visualize a contingency of this nature; we have little doubt that if even two of the Judges forming the collegiums express strong views, for good reasons, that are adverse to the appointment of a particular person the Chief Justice of India would not press for such appointment.

20. The majority judgment in the second Judges case contemplates the non-appointment of a person recommended on the ground of unsuitability. It says that such non- appointment "must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. If the Chief Justice of India does not find it necessary to withdraw his recommendation even thereafter, but the other Judges of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person for reasons to be recorded, may be permissible in the public interest...... However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made". It may be that one or more members of the collegium that made a particular recommendation have retired or are otherwise unavailable when reasons are disclosed to the Chief Justice of India for the non-appointment of that person. In such a situation the reasons must be placed before the remaining members of the original collegium plus another Judge or Judges who have reached the required seniority and become one of the first four puisne Judges. It is for this collegium, so re-constituted, to consider whether the recommendation should be withdrawn or reiterated. It is only if it is unanimously reiterated that the appointment must be made. Having regard to the objective of securing the best available men for the Supreme Court, it is imperative that the number of Judges of the Supreme Court who consider the reasons for non-appointment should be as large as the number that had made the particular recommendation (AIR 1999 Supreme Court 1).

1. The Parliament, keeping in view the principle laid down by this Court in Al-Jehad Trust case (i.e. the opinion of the Chief Justice of Pakistan, being pater-familias about suitability of a candidate's ability, legal competency and integrity deserves due deference and that the President/Executive should give justicable reasons, which could be juxtaposed with the reasons of the Chief Justice, if the opinion of the Chief Justice of Pakistan is ignored) and the principle laid down by Supreme Court of India that instead of nomination by Chief Justice of India, the nomination will be made by the collegiums of Judges with majority, amended the process of appointment, by constituting a Commission having members from the Judiciary, Bars and the Executive to nominate one person each for each vacancy of a Judge in the Supreme Court, High Courts or the Federal Shariat Court, as the case may be, by majority of its members. Now instead of the President/Executive, under the old dispensation, the Parliamentary Committee either confirm the nomination by a majority of its total membership within fourteen days on receipt of a nomination from the Commission, failing which the nomination shall be deemed to have been confirmed or for justifiable reasons, to be recorded, may not confirm the nomination by a three-fourth majority of its total membership within fourteen days.

2. In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1997 Supreme Court 84) [Reference No.2 of 1996, filed by the President of Pakistan], it was held that if the Prime Minister within the time-frame fixed in the judgment of this Court fails to tender his advice, he or she, shall be deemed to have agreed to the recommendations of the Chief Justice of Pakistan and the Chief Justice of Provincial High Court, as the case may be, and the President may proceed to make the final appointment on that basis. Keeping in view the authoritative decision given by this Court in the said case, the Constitution Framers by Clause 12 of Article 175A of the Constitution provided that if the Parliamentary Committee on receipt of a nomination from the Commission fails to confirm the nominee or to record reasons for not confirming the same by three- fourth majority of its total membership within said period, the nomination shall be deemed to have been confirmed. Clause 12 of Article 175A of the Constitution read with the law laid down in the cases of Munir Hussain Bhatti and Al-Jehad Trust leaves no room of doubt that the advice of the Prime Minister for the appointment of Judges of the superior Courts, which was binding upon the President under Article 48(1) of the Constitution, is now conferred upon the Committee and it is for this reason that Clause 13 of Article 175A of the Constitution provided that the Prime Minister shall forward the nominee confirmed by the Committee to the President of Pakistan for appointment. It does not require that the Prime Minister shall then advice the President for appointment.

3. To appreciate the proposition, it would be advantageous to reproduce hereinbelow the definition of the word "forward" as defined in 'The Concise Oxford Dictionary (Ninth Edition), which is the foremost authority on current English Language:--

Onward so as to make progress (not getting any further forward); send (letter etc.) on to a further destination.

1. From a bare reading of Clause 13 of Article 175A of the Constitution, it appears that the Committee, if confirms the name of a nominee of the Commission or the same is deemed to have been confirmed by it, the Prime Minister is left with no discretion but to forward the same to the President of Pakistan for appointment. The Prime Minister after confirmation of the name of the nominee by the Committee is not required to advice the President, under Article 48 of the Constitution or vice versa since no advice is given by the Prime Minister to return the same for reconsideration.

2. The role of the Prime Minister and the President of Pakistan in the appointment of Judges of the superior Courts is nothing but ministerial, and after receiving the nominations from the Committee the Prime Minister and the President have no discretion but to forward/appoint the nominees.

3. If Article 175A along with the Scheme of the Constitution, keeping in view its Preamble, which refers to an independent judiciary as well as Article 175(3) of the Constitution, which aims to separate the Judiciary from the Executive, is examined, it will lead to an irresistible conclusion that the role of the Executive in the appointment process of the Judges of the Superior Courts has become more-or-less ministerial and the entire process of appointment revolves around two bodies, created by/under the Constitution i.e. the Judicial Commission and the Parliamentary Committee.

4. Neither the learned Sr.ASC for the Referring Authority nor the learned Attorney General for Pakistan pointed out that the method of selecting Judges by the Commission in its meetings dated 27-9-2012 and 22-10-2012 and by the Committee thereafter was violative of Article 177(2) or 193(2) of the Constitution or any provision of the Constitution. The questions are answered in above terms.

5. Now we would revert to question No. (i), to give my opinion on the same, which for convenience sake is reproduced hereinbelow:--

(i). Whether in view of the decision by the Chief Justice of the IHC that Mr.Justice Riaz was the senior most judge of the IHC, which decision of the Chief Justice was also confirmed by the President of Pakistan, Mr. Justice Kasi could be treated as most senior Judge of the IHC?

1. Mr. Justice Riaz Ahmad Khan was born on 15-5-1952. He qualified C.S.S. Examination in the year 1977 and joined Civil Services Academy Lahore. At the time, when he was posted at Peshawar, the PCS (Judiciary) Exam was announced in Khyber Pakhtunkhwa (the then N.-W.F.P.) and he participated in the said examination and qualified the same. On his request, his services were transferred from Federal Government to the Provincial Government of Khyber Pakhtunkhwa and was posted as Civil Judge at Kohat, Haripur, and Peshawar and lastly as Senior Civil Judge at D.I. Khan. He resigned from the said post and started practicing law. He was elevated to the Bench on 4-1-2011 as an Additional Judge of Islamabad High Court, Islamabad and was confirmed on 21-11-2011 as a Judge of the said High Court.

2. Conversely, Mr. Justice Muhammad Anwar Khan Kasi was born on 28-11-1956. He was enrolled as an Advocate in 1982 and joined the Judicial Service of Balochistan as a Civil Judge in May, 1986. He was appointed as an Additional District and Sessions Judge in 1991 and as a District and Sessions Judge in 1997. He was elevated as an Additional Judge of Islamabad High Court, Islamabad on 4-1-2011 and was confirmed as a Judge of the said High Court on 21-11-2011.

3. Both the learned Judges were appointed through the same Notification, issued by the Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad, wherein the name of Mr.Justice Muhammad Anwar Khan Kasi appeared at Sr.No.1, whereas the name of Mr. Justice Riaz Ahmed Khan appeared at Sr.No.2. The Hon'ble Chief Justice of Islamabad High Court, Islamabad, while fixing their seniority, vide his order dated 22-12-2011 treated Mr. Justice Riaz Ahmad Khan, being elder in age, as senior to Mr. Justice Muhammad Anwar Khan Kasi. Mr. Justice Muhammad Anwar Khan Kasi made a representation to the Chief Justice of Islamabad High Court, Islamabad, against the determination of his seniority, which was forwarded to the Secretary Ministry of Law, because the appointment notification issued by the said Ministry had placed the name of Mr. Justice Muhammad Anwar Khan Kasi at a senior serial number of the notification, to resolve the dispute of inter se seniority at the earliest. The President of Pakistan decided the representation and declared Mr. Justice Riaz Ahmad Khan senior to Mr. Justice Muhammad Anwar Khan Kasi in the seniority of the Judges of Islamabad High Court, Islamabad.

4. The letter No.F.12(5)/86-Add, dated 30-4-1987, issued by the Ministry of Law for the purpose of laying down the principle for inter se seniority of the Judges appointed on the same day, is nothing more than an equitable principle consistently adopted but is not backed by any provision of the Constitution or law. However, the convention of inter se seniority of a Judge is on the basis of 'senior in age', which by passage of time has become convention and ought to have been respected. We would like to reproduce hereinbelow the letter dated 30-4-1987:--

"No.F.12(5)/87-AII Dated 30.04.1987.

GOVERNMENT OF PAKISTAN

MINISTRY OF JUSTICE AND PARLIAMENTARY

AFFAIRS(JUSTICE DIVISION)

Subject:- SENIORITY LIST OF HIGH COURT JUDGES

My dear Chief Justice, Please refer to the correspondence resting with High Court of Sindh letter No.Gaz-IV, Z, 14(i) dated the 30th March, 1987, on the subject noted above.

2. An equitable principle consistently adopted in this regard is that Judges whose appointments are made by a single order take seniority according to age. If the appointment of two or more service candidates is also simultaneously made with that of candidate from the Bar, the service Judges will retain their existing seniority in the department regardless of their age which of course would be the determining factor in respect of their seniority vis-à-vis candidates from the Bar. This principle has the approval of the President.

1. I am to request you to please confirm whether the seniority list of Sindh High Court Judges has been prepared in the light of the above principle.

With kind regards.

Yours sincerely, (Sd.)

(Irshad Hussain Khan)"

1. We have gone through various seniority lists of the Judges of the superior Courts and notifications of their appointments which leave no room for doubt that the recognized principle for determining seniority amongst the Judges of High Courts appointed on the same day irrespective of their appointments from Subordinate Judiciary or Bars, is the seniority in age, and the Law Secretary who issues the notifications of appointment has no lawful authority to determine the same nor does the serial-wise appearance of names in the notification have any nexus with the determination of seniority. We would like to reproduce hereinbelow, as illustration, some of the notifications, issued by Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad and seniorities as determined by the High Courts:--

| | | | --- | --- | | "As shown in the Notification, dated 14-9-2009, issued by Ministry of Law, Justice and Parliamentary Affairs Government of Pakistan, Islamabad | As placed in the seniority list, prepared by the Lahore High Court, according to their dates of birth:-- |

| | | | | | --- | --- | --- | --- | | 1. | Syed Mansoor Ali Shah | Mr. Justice Sagheer Ahmed Qadri | 2-12-1951 | | | | | | | 2. | Sh. Najam ul Hassan | Mr. Justice Nasir Saeed Sheikh | 12-12-1951 | | | | | | | 3. | Mr. Manzoor Ahmad Malik | Mr. Justice Sh. Najam ul Hassan | 15-3-1952 | | | | | | | 4. | Mr. Asad Munir | Mr. Justice Kh. Imtiaz Ahmed | 30-3-1953 | | | | | | | 5. | Mr.Ijaz ul Ahsan | Mr. Justice Manzoor Ahmed Malik | 1-5-1956 | | | | | | | 6. | Hafiz Abdul Rehman Ansari | Mr. Justice Sardar Tariq Masood | 11-3-1959 | | | | | | | 7. | Sardar Tariq Masood | Mr. Ijaz ul Ahsan | 5-8-1960 | | | | | | | 8. | Mr. Tariq Javaid | Mr. Justice Saed Mansoor Ali Shah | 28-11-1962 | | | | | | | 9. | Mr. Nasir Saeed Sheikh | | | | | | | | | 10. | Mr. Mansoor Akbar Kokab | | | | | | | | | 11. | Khawaja Imtiaz Ahmad | | | | | | | | | 12. | Mr. Sagheer Ahmad Qadri | | | | | | | |

| | | | --- | --- | | "As shown in the Notification, dated 11-5-2011, issued by Ministry of Law, Justice and Parliamentary Affairs Government of Pakistan, Islamabad | As placed in the seniority list, prepared by the Lahore High Court, according to their dates of birth:-- |

| | | | | | --- | --- | --- | --- | | 1. | Syed Kazim Raza Shamsi | Mr. Justice Altaf Ibrahim Qureshi | 6-3-1953 | | 2. | Mr. Abdul Waheed Khan | Mr. Justice Abdus Sattar Asghar | 20-3-1953 | | 3. | Syed Iftikhar Hussain Shah | Mr. Justice Mehmood Maqbool Bajwa | 27-5-1954 | | 4. | Mr. Abdus Sattar Asghar | Mr. Justice Amin-ud-Din | 1-12-1960 | | 5. | Ch. Muhammad Younus | Mr. Justice Muhammad Ameer Bhatti | 8-3-1962 | | 6. | Mr. Mehmood Maqbool Bajwa | Mr. Justice Ch. Muhammad Younus | 16-9-1951 | | 7. | Syed Ijaz Hussain Shah | Mr.Justice Iftikhar Hussain Shah | 1-4-1953 | | 8. | Mr. Amin-ud-Din Khan | Mr. Justice Syed Muhammad Kazim Raza Shamsi | 6-9-1956 | | 9. | Mr. Muhammad Ameer Bhatti | Mr. Justice Malik Shahzad Ahmed Khan | 15-3-1963 | | 10. | Mr. Altaf Ibrahim Qureshi | | | | 11. | Malik Shahzad Ahmad Khan | | |

| | | | --- | --- | | As shown in the Notification, dated 24-10-2005, issued by Ministry of Law, Justice and Parliamentary Affairs Government of Pakistan, Islamabad | As placed in the seniority list, prepared by the High Court of Sindh, according to their dates of birth:-- |

| | | | | | --- | --- | --- | --- | | 1. | Mr. Justice Munib Ahmed Khan | Mr.Justice Shamsuddin Hisbani | 1-12-1946 | | 2. | Mr. Justice Muhammad Athar Saeed | Mr. Justice Munib Ahmed Khan | 8-5-1949 | | 3. | Mr. Justice Faisal Arab | Mr. Justice Muhammad Athar Saeed | 29-9-1949 | | 4. | Mr. Justice Sajjad Ali Shah | Justice Mrs. Yasmeen Abbasey | 5-1-1950 | | 5. | Mr. Justice Nadeem Azhar Siddiqui | Justice Mrs. Qaiser Iqbal | 13-12-1949 | | 6. | Mr. Justice Shamsuddin Hisbani | Mr. Justice Ali Sain Dino Metlo | 1-3-1950 | | 7. | Justice Mrs. Yasmeen Abbasey | Mr. Justice Faisal Arab | 5-11-1955 | | 8. | Justice Mrs.Qaiser Iqbal | Mr.Justice Sajjad Ali Shah | 14-8-1957 | | 9. | Mr. Justice Ali Sain Dino Metlo | Mr. Justice Nadeem Azhar Siddiqui | 22-1-1959 |

| | | | --- | --- | | As shown in the Notification, dated 24-9-2009, issued by Ministry of Law, Justice and Parliamentary Affairs Government of Pakistan, Islamabad | As placed in the seniority list, prepared by the High Court of Sindh, according to their dates of birth:-- |

| | | | | | --- | --- | --- | --- | | 1. | Mr. Justice Shahid Anwar Bajwa | Mr. Justice Bhajandas Tejwani | 1-1-1950 | | 2. | Justie Ms. Rukhsana Ahmed Malik | Mr. Justice Shahid Anwar Bajwa | 5-10-1950 | | 3, | Mr.Justice Ghulam Sarwar Kurai | Mr.Justice Ali Bin Adam Jaffery | 14-1-1952 | | 4. | Mr. Justice Ahmed Ali Sheikh | Mr. Justice Ghulam Sarwar Korai | 5-4-1952 | | 5. | Mr.Justice Ali Bin Adam Jaffery | Justice Ms. Rukhsana Ahmed Malik | 15-4-1957 | | 6. | Mr. Justice Bhajandas Tejwani | Mr. Justice Tufail H. Ibrahim | 10-5-1958 | | 7. | Mr. Justice Irfan Saadat Khan | Mr. Justice Ahmed Ali Sheikh | 3-10-1961 | | 8. | Mr.Justice Aqeel Ahmed Abbasi | Mr. Justice Irfan Saadat Khan | 7-2-1963 | | 9. | Mr.Justice Muneeb Akhtar | Mr. Justice Aqeel Ahmed Abbasi | 16-6-1963 | | 10. | Mr. Justice Tufail H. Ibrahim | Mr.Justice Muneeb Akhtar | 14-12-1963" |

1. Likewise neither the Constitution nor any law authorizes the President of Pakistan, who is a symbolic appointing authority, to decide the inter se seniority of Judges, which even otherwise is not only against the principles of Independence of Judiciary but also violative of Article 175(3) of the Constitution, which provides for separation of the Judiciary from the Executive.

2. Like the Supreme Judicial Council, a forum created by the Constitution, as held "not a Court" in case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 Supreme Court 61), the Judicial Commission is also created by the Constitution and cannot be given the status of a Court to decide the issue of inter se seniority between two persons. The Commission, which is assigned the function of nominating the names of the candidates for appointment of Chief Justices of High Courts and the Judges of superior Courts by taking in consideration their legal competency etc, who meet the minimum qualification provided by Articles 177(2) and 193(2) of the Constitution has no mandate to decide the inter se seniority of Judges. Anyone, if aggrieved, by the determination of his seniority by the Chief Justice of the High Court and or by the Chief Justice of Pakistan being paterfamilias in the absence of rules, can seek remedy from the Court of competent jurisdiction. However, in the absence of specific guideline it is expected from the constitutional functionaries to regulate the exercise of their discretionary power in the matter as per norms emerging from the actual practice and convention, and legitimate expectancies.

3. Since no rules have been framed for determining the inter se seniority of Judges in superior Courts appointed on same day, we endeavor to draw out a criterion of inter se seniority from the example of a neighboring country.

4. According to the seniority norm in India, a judge (X) is considered to be senior to another judge (Y) if X was appointed to the court prior in time to Y. The presumption here is that both X and Y are appointed to the same court. If, say, X is appointed to the Bombay High Court, and then Y is appointed to the Calcutta High Court, it's not entirely clear if X is senior to Y. So let's assume that X and Y are both appointed to the Bombay High Court. What if they are appointed on the same date? If one of them is a lawyer being appointed to the court, and another is a subordinate court judge, the lawyer is considered senior to the subordinate judge, though they're appointed on the same date. This is entirely based on convention, however, at one point it was not - the Indian High Courts Act, 1861, said that "Judges of each High Court shall have Rank and Precedence according to the Seniority of their appointments". This provision was also seen in the Government of India Act, 1915, and in the Government of India Act, 1935.

5. Interestingly, in the U.S. Supreme Court as well as in Pakistan, associate justices have "precedence according to the seniority of their commissions", and then according to age if they're appointed on the same date; the same rule applies to US federal circuit court Judges.

6. Though it is not relevant for the purposes of giving opinion on the questions referred to, but time has come to avoid such an unpleasant situation in the future, instead of relying upon the opinion of Law Secretary given in the year 1987 rules should be framed by the superior Courts as to what should be the criteria for inter se seniority between (a) Judges appointed on the same day?; (b) A lawyer and a Judge from the District Service? Should it be date of appointment, age or date of registration as an advocate.

7. To record our opinion on question Nos. (ii); (iii); and (x), the same are reproduced hereinbelow:--

(ii) Whether Mr. Justice Riaz had a legitimate expectancy to be appointed as Chief Justice of the IHC on the ground that he was the most senior Judge of that Court in the light of the judgment of the Supreme Court in the Al-Jehad case referred to above;

(iii) Whether the JCP acted in accordance with the Constitution and conventions thereof in recommending a junior Judge as Chief Justice of the IHC; and

(x) What should be the criteria for elevating a Judge/Chief Justice of the High Court to the Supreme Court? Is it, their seniority inter-se as Judge of the High Court or their seniority inter-se as Chief Justice of respective High Court be the consideration for elevation to the Supreme Court?

1. The Hon' ble Chief Justice of Pakistan initiated the name of Mr.Justice Iqbal Hameed-ur-Rahman, the Chief Justice of Islamabad High Court, Islamabad, for appointment as a Judge of this Court, in terms of Rule 3(1) of the Judicial Commission of Pakistan Rules, 2010 framed in exercise of powers conferred on the Commission by Clause 4 of Article 175A of the Constitution. After deliberation and taking into consideration various aspects of the matter including the criteria for elevation of a Judge in Supreme Court, he was nominated as a Judge of this Court. In another meeting, held on the same day, which was attended by Chief Justice of Islamabad High Court, Islamabad, the name of Mr. Justice Muhammad Anwar Khan Kasi was initiated for appointment as Chief Justice of the Islamabad High Court, Islamabad and after deliberation he was nominated for Chief Justice of Islamabad High Court, Islamabad and send the same to the Parliamentary Committee.

2. The names of Mr. Justice Iqbal Hameed-ur-Rahman, as a Judge of this Court and Mr. Justice Muhammad Anwar Khan Kasi, as Chief Justice of Islamabad High Court, Islamabad, were confirmed by the Committee.

60 As regards the legitimate expectancy of the most senior Judge to be appointed as Chief Justice of the High Court, in the case of Al-Jehad Trust (supra) it was held as under:-

"Article 193 of the Constitution empowers the President of Pakistan to appoint the Chief Justice of the High Court. Apparently there is no constitutional requirement to appoint senior most Judge as Chief Justice of the High Court whenever permanent vacancy occurs in the High Court, but to secure the independence of Judiciary from the Executive, it is necessary to advert to the Constitutional convention which has developed by the continuous usage and practice over a long period of time. The Constitutional convention to appoint most Senior Judge of the High Court as a Chief Justice, had been consistently followed in the High Courts since before partition of the sub-continent. The senior most Judge has an edge over rest of the Judges of the High Court on the basis of his seniority and entertains a legitimate expectancy to be considered for appointment as Chief Justice against permanent vacancy of the office of the Chief Justice. Apparently there is wisdom in following the Constitutional convention of appointing most senior Judge of the High Court as permanent Chief Justice, otherwise a junior most Judge in the High Court may aspire to become Chief Justice of the High Court by bypassing his seniors and to achieve this object resort to undesirable conduct by going out of his way to oblige the Government in power. It he succeeds in securing his appointment as Chief Justice by superseding his seniors, by resorting to such measures he will endanger the independence of Judiciary and destroy the public confidence in the Judiciary. If a departure to follow the established convention of appointing the senior most Judge is to be made, the appointing authority should record reasons for not appointing most senior Judge as Chief Justice of the High Court. The complexion of the Institution is likely to be impaired by so doing."

1. Having notice of the principles laid down by this Court in the case of Al-Jehad Trust (ibid) that the most senior Judge has the legitimate expectancy to be appointed as Chief Justice of the High Court, the Parliament in its wisdom, while making it mandatory that the most senior Judge of the Supreme Court will be appointed as the Chief Justice of Pakistan under Article 175A(3) of the Constitution, left the question of suitability for appointment of the Chief Justice of the High Court to be decided by the Judicial Commission, a forum created by the Constitution, having four most senior Judges of this Court along with the Chief Justice of Pakistan and Chief Justice of the concerned High Court with one vote each. The contention of the learned counsel that if the principles of seniority and legitimate expectancy linked therewith are ignored, it would give rise to the whim and caprice of the person initiating the name, which will affect the independence of the judiciary and its working. At first sight, it seems to have force, but on a careful perusal of Clause 5 of Article 175A of the Constitution, it appears that the process of nomination by one person, prior to Constitution (Nineteenth) Amendment now vests in a body consisting of all stakeholders i.e. the Judiciary, the Representatives of Bars and the Executive. The four most senior Judges of this Court, the Chief Justice of the High Court, a retired Judge of Supreme Court, persons of integrity, who have first hand information about the administrative skill and other related matters, decide who is the most suitable person to be appointed as Chief Justice of the High Court. Knowing well the principles laid down by this Court in Al-Jehad Trust case, if the Commission decides to nominate someone other than the most senior Judge as Chief Justice, it may give cause to question before an adjudicatory forum, and the issue may be decided there, but not in this (Reference) jurisdiction.

2. In the Budget Reference (PLD 1989 Supreme Court 85), this Court said "it cannot in this (reference) jurisdiction decide the matter as a lis between the parties, wherein exercise of other powers is available to the Court including discretionary and taking other consequential actions". But on this count nomination cannot be termed as violative of the Constitution.

3. We may mention here that after Al-Jehad Trust case and even after Constitution (Nineteenth) Amendment, the President of Pakistan appointed the Chief Justices of Lahore and Peshawar High Court, who were not the most senior Judges of that Courts.

4. The Constitution is an organic law which creates the very Legislature which makes ordinary statutes.

5. Prior to the Constitution (Nineteenth) Amendment, the Chief Justice of Pakistan being the head of the judiciary nominates a candidate for the post of Chief Justice of the High Court or Judges of the Superior Courts. The "ability, competency, knowledge and suitability" of the nominee were held to be determined by the Chief Justice of Pakistan being pater familias, his view deserved due deference, which power now is exercised by the Judicial Commission consisting of Senior Judges, including Chief Justice of the High Court, Representative of Bar, Attorney General for Pakistan and the Law Minister. The power to appoint a Judge of the superior Courts was initially vested in the Chief Justice of Pakistan prior to Constitution (Nineteenth) Amendment, which then devolved upon the Judicial Commission. As held in the case of Munir Hussain Bhatti, (supra) that the principle laid down in the authoritative decision of Al-Jehad Trust case is still applicable. In the said case, it was held that in the matter of Judges the "satisfaction" of the Chief Justice of Pakistan (now Judicial Commission of Pakistan) is "subjective" and that such satisfaction is not subject to judicial review. In the case of Ghulam Hyder Lakho v. Federation of Pakistan (PLD 2000 Supreme Court 179), it was held that satisfaction of the Chief Justice of Pakistan is "subjective" and was not justifiable. This view was again reaffirmed in the case of Supreme Court Bar Association v. Federation of Pakistan (PLD 2002 Supreme Court 939).

6. Although minutes of meeting of Judicial Commission have been placed on record by referring authority. We are not taking note of it nor making any comments on it for the reason that satisfaction of the Chief Justice of Pakistan prior to 19th Constitutional Amendment and of Judicial Commission now is "subjective" as held in the cases of Al-Jehad Trust, Ghulam Hyder Lakho and Munir Ahmed Bhatti and not open to judicial review.

7. In this view of the matter, when this Court, time and again, by authoritative decisions held that the "satisfaction" in the appointment of Judges of the superior Courts including the Chief Justice of the High Court is "subjective" and not open to Judicial Review, the question of nomination by the Commission and confirmation by the Committee of a Judge who is not the most senior Judge of that Court as Chief Justice of High Court, cannot be answered in advisory jurisdiction and may be adjudicated upon in other jurisdiction. Although the practice of appointment of a Judge other than most senior Judge is against the convention and may not be in the interest of the judiciary, however, the appointment of a Judge not most senior as Chief Justice of the High Court cannot be termed as violative of the Constitution.

8. Proviso to Sub-clause 5(iv) of Article 175A provided that for the appointment of a Chief Justice of the High Court the most senior Judge mentioned in paragraph (ii) shall not be a member of the Commission have wisdom in it. If it is supposed that the Judicial Commission decided to nominate most senior Judge of the High Court as a Chief Justice, it is not desirable that he should be a part of such nomination process being one of the interested parties and in case the Judicial Commission decided not to nominate the most senior Judge as the Chief Justice to avoid embarrassment to him because of his presence in the Commission, as various issues may be related to him come under discussion.

9. In this view of the matter, the Advisory Jurisdiction of the Court is not suitable for such a determination, as the person whose rights are likely to be affected is not before us.

10. When we analyze Clauses 3 and 5 of Article 175A along with Articles 180 and 96 of the Constitution, it appears that the Constitution Framers made it mandatory under Clause 3 of Article 175A that the most senior Judge of the Supreme Court shall be appointed as Chief Justice of Pakistan and during the absence of the Chief Justice of Pakistan, the most senior Judge of the Supreme Court shall be appointed as Acting Chief Justice of Pakistan, whereas in the case of Chief Justice of the High Court neither Clause 5 of Article 175A nor Article 196 of the Constitution make it mandatory that in the case of a vacancy, the most senior Judge of the High Court will be appointed as Chief Justice of the High Court and in case of absence of the Chief Justice of the High Court, the most senior Judge of the High Court shall be appointed as Acting Chief Justice.

11. It is a principle of legal policy that law should be altered deliberately rather than causally. When the Legislature provided two different modes of appointment of the Chief Justice of Supreme Court and the Chief Justice of the High Court, then so long as the Article of the Constitution is not amended or in adjudicatory jurisdiction, the Court has to follow the same criteria as in the case of the Chief Justice of Pakistan, the appointment of a Judge other than most senior Judge cannot be held, in Advisory Jurisdiction, against the Constitution.

12. As regards the criteria for the appointment of a Judge of the Supreme Court, the Chief Justice of Pakistan, pater familias of the Judiciary, in terms of Rule 3 of the Judicial Commission of Pakistan Rules, 2010, initiates nomination of a Judge in the Supreme Court, keeping in view the number of sitting Judges from different High Courts and in this Court, work load of High Courts, their administrative difficulties and other related issues. The Supreme Court is the highest Court of Pakistan and its Judges should reflect the geographic diversity of Pakistan i.e. Judges are appointed to the Supreme Court by taking into account all the Provincial High Courts and Islamabad High Court. Justice Ahmadi while disagreeing with the majority view in second Judge case (AIR 1994 Supreme Court 268) held that the seniority norm ought to be deviated from while appointing Judges to the Supreme Court of India in order to achieve a more representative course.

13. The Judicial Commission consisting of four most senior Judges of this Court; a retired Judge of Supreme Court; a senior Advocate nominated by the Pakistan Bar Council; the Law Minister; and the Attorney General for Pakistan, after deliberations, in terms of Clause 8 of Article 175A, by majority decides whether to nominate or not to nominate the candidate whose name was initiated by the Chief Justice of Pakistan.

14. Generally, in interpreting statutes, it is presumed that the Legislature chooses its words carefully. Therefore, if a word or phrase has been added somewhere, such addition is not to be deemed redundant; conversely, if a word or phrase has been left out somewhere, such omission is not be deemed inconsequential. Instead, a change in language implies a change in intent. Maxwell, an authority on statutory interpretation remarks: "When precision is required, no safer rule can be followed than always to call the same thing by the same name." (P.311, Maxwell on the Interpretation of Statures, Eleventh Edition, 1962)

15. In any case, we work on the understanding that the Parliament and its draftsmen are not so careless that they would, within the space of a single article, make such a fatal error. We owe the Legislature more deference that the Legislature is presumed to have chosen its words even more carefully in this case, since we are not talking of some obscure procedural statute over here; we are dealing with a document no less sacred than the Constitution itself.

16. Although due consideration of every legitimate expectation in the decision making process is a requirement of the rule of non-arbitrariness therefore, it is expected that this norm to be observed, while initiating the name in term of Rule 3 of Judicial Commission Rules, 2010 and then by the Judicial Commission. A three Member Bench of this Court in the case of Tariq Aziz-ud-Din: in re (2010 SCMR 1301) held as under:--

"Suffice to observe as is pointed out hereinabove, as well, that posting a junior officer to hold the charge of a senior post, ignoring seniors who are eligible for promotion, does not advance the object of achieving good governance because the rules framed on the subject, noted hereinabove, are not redundant in any manner, therefore, same need to be respected and followed accordingly. It is a settled principle of law that object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness and openness in consonance with the command of the Constitution enshrined in different Articles including Articles 4 and 25. Once it is accepted that the Constitution is the supreme law of the country, no room is left to allow any authority to make departure from any of its provisions or the law and the rules made thereunder. By virtue of Articles 4 and 5 (2) of the Constitution, even the Chief Executive of the country is bound to obey the command of the Constitution and to act in accordance with law and decide the issues after application of mind with reasons as per law laid down by this Court in various pronouncements [Federation of Pakistan through Secretary, Establishment Division v. Tariq Pirzada (1999 SCMR 2744)]. It is also a settled law that even Chief Executive of the country is not above the Constitution [Ch. Zahur Ilahi v. Mr. Zulfikar Ali Bhutto (PLD 1975 SC 383)]. It is the duty and obligation of the competent authority to consider the merit of all the eligible candidates while putting them in juxtaposition to find out the meritorious amongst them otherwise one of the organs of the State i.e. Executive could not survive as an independent organ which is the command of the Constitution. Expression 'merit' includes limitations prescribed under the law. Discretion is to be exercised according to rational reasons which means that; (a) there be finding of primary facts based on good evidence; and (b) decisions about facts be made for reasons which serve the purposes of statute in an intelligible and reasonable manner. Actions which do not meet these threshold requirements are considered arbitrary and misuse of power [Director Food, NWFP v. M/s Madina Flour and General Mills (Pvt) Ltd. (PLD 2001 SC 1)]. Equally, discretionary power conferred on Government should be exercised reasonably subject to existence of essential conditions, required for exercise of such power within the scope of law. All judicial, quasi judicial and administrative authorities must exercise power in reasonable manner and also must ensure justice as per spirit of law and seven instruments which have already been referred to above regarding exercise of discretion. The obligation to act fairly on the part of the administrative authority has been evolved to ensure the rule of law and to prevent failure of justice Mansukhlal Vithaldas Chauhan v. State of Gujarat [1997 (7) SCC 622]."

However, a perusal of Clause 3 of the Article 175A read in juxtaposition with Clause 5 of Article 175A along with its proviso indicates that instead of making it mandatory to appoint the most senior Judge as Chief Justice of the High Court, as provided in Clause 3 of Article 175A read with Rule 3 of the Judicial Commission of Pakistan Rules, 2010, the matter is left to the discretion of the Chief Justice of Pakistan to initiate the name for Chief Justice of the High Court and the Commission by majority of its total membership to nominate one person for said post. When the Constitution Framers in the case of the appointment of the Chief Justice of Pakistan made it mandatory that only the most senior Judge of Supreme Court shall be appointed as Chief Justice of Pakistan, it left room to appoint a person, who may not be the senior most Judge as Chief Justice of the High Court. Appointment of a Judge other than most senior Judge though may be violative of the convention and is not desirable, but cannot be termed as violative of the Constitution. However, it may give cause to the aggrieved person to seek remedy before the adjudicatory forum, and question can be answered in said jurisdiction.

1. As regards question No.(iv) "Whether JCP was properly constituted as per provision of Article 175-A of the Constitution as Mr. Justice Kasi who participated in the meeting was not a Member thereof and was a stranger to the proceedings". Mr. Justice Muhammad Anwar Khan Kasi attended the meeting of the Commission, dated 22-10-2012. The Chief Justice of Islamabad High Court, Islamabad, initiated the names of Mr. Shaukat Aziz Siddiqui, as a Judge and Mr. Noor-ul-Haq N. Qureshi, as an Additional Judge [for a period of six months] of Islamabad High Court, Islamabad. For this reason, the notifications in respect of these learned Judges were not issued. The Commission after deliberations nominated the above named learned Judges by majority of 7 to 2. Even if it is accepted that Mr. Justice Muhammad Anwar Khan Kasi was not the most senior Judge of Islamabad High Court, Islamabad, and attended the meeting of the Commission, it is established from the record that on the date when the meeting of the Commission was called for the purpose of considering the appointment of three Additional Judges of the High Court, Mr. Justice Riaz Ahmad Khan was on ex-Pakistan Leave and the former (Mr. Justice Muhammad Anwar Khan Kasi) was the most senior Judge available of the said High Court. The terms "Chief Justice" and "Acting Chief Justice" have been defined by the Constitution, whereas the term "most senior Judge" has not been defined. However, even if it is accepted that Mr. Justice Muhammad Anwar Khan Kasi, was not eligible to sit in the meeting of the Commission, Clause 8 of Article 175A stipulates that the decision of the nomination of a person for any vacancy of a Judge of the superior Court is to be taken by the Commission, by majority of its total members and as such, his attending the said meeting does not vitiate the entire proceedings or makes the nomination invalid.

2. In the case of Managing Director, SSGC Ltd. v. Ghulam Abbas (PLD 2003 Supreme Court 724), it was held that:-

"Perusal of subsection (1) of section 3-A of the Act, 1973 reveals that "minimum strength of a Bench to exercise or perform functions of the Tribunal is two Members, including the Chairman," meaning thereby that while conducting hearing, the status of a Chairman is also of a Member. Whereas under clause (a) of section 3-A(2), decisions are to be pronounced by the majority of the Members. Clause (b) of section 3-A (2) further provides that in case of division between Members of the Bench or in case of equal division of the Members, the case shall be referred to the Chairman and whatever opinion is expressed by him, would have supremacy and constitute the decision of the Tribunal. In this case impugned judgment has been authored by the Chairman and all the Members have concurred with him, therefore, presuming that Mr. Aftab Ahmed joined proceedings without lawful authority but nevertheless impugned judgment can sustain, as it has been rendered by the Bench comprising of more than two Members of the Service Tribunal and apprehension of influencing the judgment by Mr. Aftab Ahmed (Retired Member) stands excluded as it was authored by a former Judge of High Court being the Chairman of the Service Tribunal.

In addition to above legal position, the impugned judgment can be treated to have been delivered validly under de facto doctrine.

Thus endorsing the principles discussed in above paras, the impugned judgment is declared to have been passed validly because Mr. Aftab Ahmed immediately before his retirement had been performing same functions, therefore, it would be deemed that in exercise of same powers in good faith he associated himself in the proceedings.

Besides above conclusion, the inclusion of Mr. Aftab Ahmed as a Member of the Bench, had also not caused prejudice to any of the parties because he has not authored the judgment nor there is any likelihood of his having influenced the judgment in any manner as it was authored by the Chairman and remaining two Members of the Bench had concurred with him. No useful purpose as such would be served by remanding the case to the Service Tribunal for fresh decision because dispute is lingering on between the parties for the last so many years, therefore, justice demands that now cases should be decided finally unless remand of the cases is inevitable under the circumstances of each case."

1. In the case of Muhammad Saleem and 12 others v. Secretary Prosecution, Government of Punjab, Lahore and another (2010 PLC (C.S.) 1), a three member Bench of the Lahore High Court, while dealing with the question that the committee which conducted the interviews of the petitioners did not comprise all the four members, appointed by the Chief Minister of Punjab vis-à-vis the persons (strangers), who have participated in the interview process, applied the rule of severance, excluded the marks given by the stranger and held that whatever result emerges on account of the exclusion of the stranger's marks, shall be taken to be the result of the committee, as quorum of the selection committee was complete.

2. In the case of Anderson v. City of Persons (496, P.2d 1333-Kan: Supreme Court 1972), the Supreme Court of Kansas while dealing with a question, "The appellants' first point involves an alleged conflict of interest arising from the fact that City Commissioners Myer S. Freshman and Barton Dean and all of the five urban renewal commissioners owned property within the general urban renewal area at the time they voted on various resolutions during the progress of the urban renewal program. The legislature provided in the urban renewal law for a special conflict of interest section to disqualify any officer or employee of the city or of the urban renewal board who owned property included or planned to be included in an urban renewal project." noted as under:--

"It is undisputed in the evidence that on May 16, 1966, at the time the resolutions were passed by the city commission declaring certain areas of Parsons to be "slum and blight areas" and creating and appointing the urban renewal agency, two of the three Parsons city commissioners owned real estate in the slum or blight areas. The same two commissioners continued to own their properties at the time the urban renewal plan was adopted. The two commissioners mentioned were Myer S. Freshman and Barton Dean. On January 22, 1969, the city commission by resolution approved the urban renewal project. At that time commissioners Freshman and Dean owned property within the urban renewal area but did not own any land within the area covered by the urban renewal project. As pointed out heretofore, at all stages in the development of the urban renewal program, all of the five urban renewal commissioners had an interest in property located within the general urban renewal area. The first issue to be determined is whether or not the various actions of the urban renewal board in establishing and developing the urban renewal program and the various actions of the Parsons city commissioners in approving the urban renewal plan and in approving the urban renewal project were so tainted with conflict of interest within the meaning of K.S.A. 17-4758 as to completely invalidate ab initio all of the actions and steps taken by the urban renewal board and by the city commissioners in developing the Parsons urban renewal program. It should be emphasized that each of the commissioners made a full disclosure of his property interest in the urban renewal area before participating in any action of his board.

We, of course, recognize the common law principle that a public officer owes an undivided duty to the public whom he serves and is not permitted to place himself in a position that will subject him to conflicting duties or cause him to act other than for the best interests of the public. If he acquires any interest adverse to those of the public, without a full disclosure it is a betrayal of his trust and a breach of confidence. (United States v. Carter, 217 U.S. 286, 54 L.Ed. 769, 30 S.Ct. 515.)

The law, however, does not forbid the holding of an office and exercising powers thereunder because of a possibility of a future conflict of interest. (Reilly v. Ozzard, 33 N.J. 529, 166 A.2d 360, 89 A.L.R.2d 612.) It has generally been held that the vote of a council or board member who is disqualified because of interest or bias in regard to the subject matter being considered may not be counted in determining the necessary majority for valid action. There are many cases cited in the annotation in 42 A.L.R. 698 in support of this principle. It is also the rule that where the required majority exists without the vote of the disqualified member, his presence and vote will not invalidate the result and further that a majority vote need not be invalidated where the interest of a member is general or of a minor character. (Beale v. City of Santa Barbara, 32 Cal.App. 235, 162 P. 657; Corliss v. Village of Highland Park, 132 Mich. 152, 93 N.W. 254, adhered to on rehearing 132 Mich. 159, 95 N.W. 416; 56 Am.Jur.2d, Municipal Corporations, Etc. Section 172.)

1. As regards Pinochet case (R v Bow Street Metropolitan Stipendiary Magistrate (1999) UK (H.L.52), the House of Lords on allegation that one of the Law Lords member of majority decision had links with Amnesty International complaining of the extradition of Gen. Pinochet, set aside his earlier majority decision by 3 to 2.

2. Consequently, in our opinion, in view of the principle laid down in the cases of Ghulam Abbas and Muhammad Saleem (supra), the proceedings of the Judicial Commission, thereby nominating the names of two, mentioned above, as Judges of Islamabad High Court, Islamabad, are not vitiated because of the attendance of Mr. Justice Muhammad Anwar Khan Kasi in the meeting.

3. Attending to questions Nos. (vi), (vii), (viii) & (xii) reproduced hereinbelow, which are interconnected and require to be answered together:--

(vi) What should be the manner, mode and criteria before the Judicial Commission with respect to the nomination of a person as a Judge of High Court, Supreme Court and Federal Shariat Court in terms of Clause (8) of Article 175- A of the Constitution of Islamic Republic of Pakistan, 1973;

(vii) What is the proper role of the Judicial Commission and Parliamentary Committee under the Constitution of Pakistan with respect to appointment of Judges of Supreme Court, High Court and Federal Shariat Court;

(viii) What should be the parameters before the Parliamentary Committee for the confirmation of the nominee of the Judicial Commission in terms of Clause (12) of Article 175- A of the Constitution of Islamic Republic of Pakistan, 1973; and

(xii) The Parliamentary Committee under Article 175-A of the Constitution may confirm or may not confirm a nomination in accordance with the provisions stated therein. What is the true import and meaning of the word "confirm" and what is the effect of the proviso to Clause 12 of Article 175-A which reads as follows:

"Provided further that if nomination is not confirmed, the Commission shall send another nomination;

Clause 9 of Article 175A of the Constitution provides for the constitution of a Parliamentary Committee and Clause 10 thereof provides for quorum of the Committee, whereas Clause 12 of the said Article provides that the Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed. Proviso to Clause 12 of Article 175A of the Constitution provides that the Committee, for reasons to be recorded, may not confirm the nomination by three-fourth majority of its total membership within the said period and shall forward its decision with reasons so recorded to the Commission through the Prime Minister. The role of the Committee after receipt of nominations from the Commission has been discussed in depth by a four Member Bench of this Court in the case of Munir Hussain Bhatti (supra) and it was held as under:--

"The nominations made by the Judicial Commission and the refusal of the Parliamentary Committee to confirm the same appear to have generated considerable public interest, providing a great deal of material for debate in the public, the media and the legal fraternity. The Bar Associations of the High Courts in the country have also debated the impugned decisions of the Committee. The Sindh High Court Bar Association, which is itself a petitioner in Constitution Petition No.18 of 2011, has placed on record its resolution dated 23-2-2011 "condemning" the action of the Committee. The proceedings in these petitions and the short order of 4-3-2011 have also made headlines in the print and the electronic media. Moreso, critical comments on our order dated 4-3-2011 have been carried prominently in the media. We, therefore, find little substance in the factual assertion advanced by Mr. K. K. Agha.

"26. The repeatedly emphasized imperative of maintaining a record both of the proceedings of the Committee and of the "reasons" behind its decisions, very strongly suggests that the Committee's decisions were intended to be subject to judicial review. Otherwise, if the Committee's decisions were meant to be non-justiciable, and beyond judicial scrutiny, the insistence on recording reasons would not make much sense. It is an established rule of interpretation that Parliament does not waste words and redundancy should not be imputed to it. This principle would apply with even greater force to the Constitution - the supreme law of the land. On this point Mr. K. K. Agha was hard pressed to respond. It will be seen that even an insular reading of this Article, leaves the impression that the decisions of the Committee are subject to review. He, however, argued that even though the 19th amendment had required the Committee to give reasons for its decisions, it did not make any provision for these decisions to be challenged in a court of law.

27. The above submission was augmented by Mr. K. K. Agha, by adverting to the Order of the seventeen-member Bench dated 21-10-2010 wherein it had, inter alia, been said that "in case of rejection of nomination by the Parliamentary Committee ... [it] shall have to state reasons which shall be justiciable". The gist of this argument appears to be that in view of the order of the larger Bench, this Court should infer that through the 19th amendment, it was intended by Parliament that decisions taken by the Parliamentary Committee should not be subject to judicial review. Such inference was sought on the basis that the suggestion in the aforesaid Order as to justiciability was not incorporated in the amended Article. The argument of the learned Additional Attorney General, based on implication and not on the wording of Article 175A as amended, is contrary to the jurisprudence that has evolved in our jurisdiction. Furthermore, the argument ignores the legal precept explained above that the Constitution has to be construed as an organic whole."

34. On the other hand, Article 175A has set up an independent constitutional body having a specific role assigned to it relating to the appointment of Judges of this Court and of the High Courts. This constitutional body, as adverted to above, has been referred to as a Parliamentary Committee but it is neither part of Parliament when acting under Article 175A nor is it elected by or answerable to Parliament. An examination of the Constitution and established Parliamentary practice will further demonstrate this distinction between the Committee set up under Article 175A and a parliamentary committee. By virtue of Article 67 of the Constitution, each House of Parliament may "make rules for regulating its procedure and the conduct of its business". This authority has been exercised by both Houses of Parliament and as a result, rules have been framed. The upper House has framed the "Rules of Procedure and Conduct of Business in the Senate 1988" (the 'Senate Rules') while the National Assembly has adopted its own rules known as the "Rules of Procedure and Conduct of Business in the National Assembly, 2007" (the 'Assembly Rules'). From the Senate Rules and the Assembly Rules, it is very clear that a parliamentary committee is a body elected by the respective houses of Parliament and answerable to such houses. For instance, the Assembly Rules in Rule 200, state that "[e]xcept as otherwise provided in these rules, each Committee shall consist of not more than seventeen members to be elected by the Assembly within thirty days after the ascertainment of the Leader of the House." Likewise, the Senate Rules in Rule 145(1) provide that "[e]ach Committee shall consist of not less than six members and not more than twelve members to be elected by the Senate...

38. It would be obvious from a plain reading of the above provisions that the limited ouster of jurisdiction stipulated therein is in respect of, inter alia, the proceedings and conduct of business of the Parliament. The decisions of the Committee (even if comprised of persons who are honorable members of Parliament) cannot be considered immune from judicial scrutiny by virtue of Article 69. This conclusion necessarily follows from the fact that the Committee is a creation of the Constitution and not of the Parliament. Furthermore, it is independent of and separate from Parliament notwithstanding its composition. It performs, as noted above, an executive function relating to the Judiciary and, therefore, has been placed in the Chapter relating to the Judicature rather than in Chapter 2 [The Majlis-e-Shoora (Parliament)] dealing with Parliament.

39. The justiciability of the decisions of the Parliamentary Committee can also be approached from another angle, which would be manifest from a holistic examination of the Constitution. The governance of state organs in Pakistan is based on checks and balances where the powers of each organ are counter-balanced by some other organ of the State. Thus, executive action taken by the various administrative and executive functionaries of the State can be called in question, inter alia, under Articles 199 and 184(3) of the Constitution. Such executive action may additionally be subject to Parliamentary review and over-sight in our parliamentary system of governance. Legislative action can also be called in question in Court, inter alia, on the touchstone that it is violative of the Constitution. Likewise, decisions rendered by this Court can be modified or reversed by legislation (in recognized circumstances) and such legislation may also be retrospective. Thus we see that each organ of the State, be it the Judiciary, the Executive or the Legislature, operates under constitutional constraints which effectively make these organs of State limited in their actions.

1. The principles laid down in the said case were reiterated by another four Members Bench of this Court in the case of Federation of Pakistan v. Sindh High Court Bar Association (PLD 2012 Supreme Court 1067).

2. The roles of the Committee and the Commission as well as the parameters before the Committee for confirmation of a nomination by the Commission in terms of Clause 12 of Article 175A of the Constitution are well settled by the reading of the Constitution itself and also by the principles laid down by this Court in the afore-referred two judgments and in Advisory Jurisdiction the same cannot be reviewed.

3. In the matter of Cauvery Water Disputes Tribunal (AIR 1992 Supreme Court 522), the Supreme Court of India declined to answer the question of law under Article 148 of the Indian Constitution, which is parallel to Article 186 of the Constitution and held that:--

"when the Supreme Court in its adjudicatory jurisdiction pronounces its authoritative opinion on a question of law, it cannot be said that there is any doubt about the question of law or the same is res integra so as to require the President to know what the true position of law on the question is. The decision of the Supreme Court on a question of law is binding on all Courts and authorities and under the said clause the President can refer a question of law only when this Court has not decided it. Secondly, a decision given by the Supreme Court can be reviewed only under Article 137 read with Rule 1 of Order XL of the Supreme Court Rules, 1966 and on the conditions mentioned therein. When, further, the Supreme Court overrules the view of the law expressed by it in an earlier case, it does not do so sitting in appeal and exercising an appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief. Under the Constitution such appellate jurisdiction does not vest in the Supreme Court, nor can it be vested in it by the President under Article 148 of the Indian Constitution".

1. For the foregoing reasons, it is not necessary to answer questions Nos.(vi), (vii), (viii) and (xii), as the same have already been answered in the above referred cases.

2. Now coming to questions Nos.(xi) & (xiii),which read as under:--

(xi) Whether the Constitution of Pakistan prohibits individual Members of the JCP to initiate names for appointments of Judges to the Supreme Court, the High Courts and the Federal Shariat Court; and

(xiii) Whether by not providing in camera proceeding for JCP in Article 175-A of Constitution of Pakistan, the intention of the legislature is to ensure complete transparency and open scrutiny?

Clause 1 of Article 175A of the Constitution provides that there shall be a Judicial Commission of Pakistan for the appointment of the Judges of the Supreme Court, High Courts and the Federal Shariat Court. The composition of the Commission is provided in Clauses 2 and 5 of Article 175A of the Constitution for appointment of Judges of the Supreme Court and of the High Courts, respectively, and Clause 6 thereof relates to the composition of the Commission for appointment of Judges of the Islamabad High Court, whereas Clause 7 of the Article deals with the appointments of Judges of the Federal Shariat Court. The Constitution itself has not provided a mechanism by which the name of the proposed Judge for appointment in the Supreme Court, High Courts or Federal Shariat Court can be placed before the Commission except providing qualification in terms of Articles 177(2) and 193(2). However, Clause 4 of Article 175A of the Constitution confers powers upon the Commission to make rules regulating its procedure and Clause 15 thereof empowers the Committee to make rules to regulate its proceeding.

1. The Commission, in exercise of the powers conferred on it by Clause 4 of Article 175A (1), framed the Judicial Commission of Pakistan Rules, 2010, which were duly published in the Gazette of Pakistan, dated 8-11-2010. Rule 3 of the said Rules reads as under:-

"3. Nominations for Appointments.(1) For each anticipated or actual vacancy of a Judge in the Supreme Court or the Chief Justice of Federal Shariat Court or the Chief Justice of a High Court, the Chief Justice of Pakistan shall initiate nominations in the Commission for appointment against such vacancy.

(2). For each anticipated or actual vacancy of a Judge in the Federal Shariat Court or Judge in the High Court, the Chief Justice of the respective Court shall initiate and send nomination for appointment against such vacancy to the Chairman for convening meeting of the Commission.

5(4). The proceedings of the Commission shall be held in camera. A record of the proceedings shall be prepared and maintained by the Secretary duly certified by the Chairman under his hand."

Till date, the said Rules are not amended. No Member of the Commission, in terms of the Rules duly framed and not in conflict with any provision of Article 175A, except the Chief Justice of Pakistan or the Chief Justice of the Federal Shariat Court or of a High Court, can initiate the nomination for appointment against anticipated or actual vacancy therein.

1. In terms of the said Rules, the Commission itself in its wisdom decided and rightly so that for each anticipated or actual vacancy of a Judge in the Supreme Court, High Courts and Federal Shariat Court, the Chief Justices of the said Courts shall initiate nomination in the Commission for appointment against such vacancy of a person duly qualified in terms of Articles 177(2) and 193(2) of the Constitution and sent to the Chairman of the Commission. The Chairman of the Commission shall then call a meeting of the Commission where such nomination shall be discussed and deliberated upon and then either it will be approved or rejected. The wisdom behind the Rules framed by the Commission is that the Chief Justice of Pakistan or the Chief Justice of the concerned High Court is the best person to practically/ technically evaluate a person's caliber to be nominated as a Judge, including his legal competence and integrity. The Chief Justice of the High Court holding the highest office in the judicial hierarchy of the Province is the best person to know about all the Judicial Officers working in the Province and Advocates appearing before the High Court and on the basis of such personal knowledge, information and material before him, he recommends a person to be appointed as a Judge of the superior Courts.

2. Except initiating the nomination of a person, the Chief Justice of Pakistan or the Chief Justice of the High Court has no other special role in the appointment process and is just like any other member of the Commission and merely because he initiates the nomination, the same itself cannot be recommended, but to be considered as an act of mere procedure. The name initiated by the Chief Justice of Pakistan or the Chief Justice of the Provincial High Court is discussed in the Commission comprising all members from different spheres including the Executive, Representatives of Bars and Senior Judges of the Supreme Court and the High Courts. After deliberations and technical/professional evaluation of person's caliber as a Judge, the Commission nominates the name of such person to be appointed as a Judge of the superior Courts by majority of its total membership of the Commission.

3. In the case of Sindh High Court Bar Association, Sukkur through President v. Pakistan through Secretary, Ministry of Law, Parliamentary Affairs & Justice, Islamabad and another (PLD 2012 Sindh 531), the learned High Court of Sindh while dealing with the question of nominating a person as a Judge or an Additional Judge, in the meeting of the Commission held as under:--

"We had the benefit of going through the judgment proposed to be delivered by our learned brother Maqbool Baqar J. We are in agreement with the conclusion drawn by him. However we intend to append our own reasoning in order to clarify that initial nomination for appointment as Additional Judge or a Judge in the High Court is to be made exclusively by the Chief Justice of the concerned High Court and after receiving the initial nomination, the Chairman, convenes meeting of the Judicial Commission of Pakistan where the nomination is considered. Judicial Commission then either recommends or rejects such nomination but on its own does not initiate the process of nomination. The reasons for stating so are as follows.

Appointment of Judges of the superior courts are made under the provisions of Article 175-A of the Constitution. The said Article provides the procedure that is to be followed by the Parliamentary Committee but it does not provide the procedure that is to be followed by the Judicial Commission. Under sub- Article (4) of Article 175-A of the Constitution it was left to the Judicial Commission to devise its procedure by framing its own rules. Such rules were framed by the Judicial Commission described as Judicial Commission of Pakistan Rules, 2010. Rule 3(2) of the said Rules provide that for each vacancy of a Judge in a High Court, nomination for appointment is to be initiated by the Chief Justice of the concerned High Court. Hence under the new dispensation also it is the Chief Justice of the concerned High Court who initially proposes a name against an anticipated or actual vacancy in his Court and sends it to the Chairman of the Judicial Commission. The Chairman then convenes meeting of the Judicial Commission. The nomination is discussed and deliberated and then either it is approved or rejected.

We may add here that in case it is interpreted in a way that initial nomination of the person as a Judge or Additional Judge can also be made by other members of the Judicial Commission then it might lead to a bizarre situation. The Judicial Commission for appointment in the High Courts comprises of thirteen members. Apart from five sitting judges of the Supreme Court and two of the concerned High Court, the other six members of the Judicial Commission comprise of a retired judge, Federal Law Minister, Provincial Law Minister, Attorney General and one representative each from Pakistan Bar Council and Provincial Bar council. If they as members of Judicial Commission also become entitle to nominate persons for the consideration of the Judicial Commission in addition to the nominations sent by the Chief Justice of the concerned High Court then each of such members would be coming up with his own list of nominees whom he might consider suitable for appointment. There is strong possibility that at a time scores of nominations would be before the Judicial Commission for consideration. Pressure groups might also emerge lobbying with certain members of Judicial Commission to initiate nomination of persons of their choice. The entire process of appointment might get confused and become unworkable. It is to avoid all this that Rule 3(2) of Judicial Commission of Pakistan Rules, 2010 provides that initial nomination for appointment, be it for a Judge or Additional Judge of a High Court, is to be sent to the Judicial Commission by the Chief Justice of the concerned High Court. This has always been the procedure in the previous dispensation and has also been recognized under the present dispensation under Rule 3(2) of Judicial Commission of Pakistan, Rules, 2010. The only change that has been brought about after the 18th amendment to the Constitution is that determination of capability of a nominee of the Chief Justice of the High Court is not left to be decided by the Chief Justice of the concerned High Court and the Chief Justice of Pakistan only but to a thirteen member body called Judicial Commission of Pakistan."

1. Rules being delegated Legislation are subject to certain fundamental factors. Underlying the concept of delegated legislation is the basic principle that the Legislature delegates because it cannot directly exert its will in every detail.

2. The Judicial Commission of Pakistan Rules, 2010 are not in contravention with or inconsistent or repugnant to any provision of the Constitution, and have been made and promulgated in exercise of the authority conferred on it by the Constitution.

3. On having dilated upon the questions referred to by the President of Pakistan and opinion recorded hereinabove, we are of the opinion that Mr. Justice Riaz Ahmad Khan is senior most Judge of the Islamabad High Court.

4. Though it is desirable that the most senior Judge of the High Court should be appointed as Chief Justice of that Court, however, in view of Clauses 2 and 3 of Article 175A read with Clause 5, appointment of a Judge not most senior Judge as a Chief Justice of the High Court is not violative of any provision of Constitution.

5. The recommendations made by the Judicial Commission in its meeting dated 22-10-2012 are not vitiated merely because Mr. Justice Muhammad Anwar Khan Kasi attended the said meeting.

6. In terms of Article 175A of the Constitution, the President of Pakistan has no discretion to send the name of nominee of the Judicial Commission and confirmed by the Parliamentary Committee for reconsideration.

7. The Judicial Commission in exercise of powers conferred by Clause 4 of Article 175A framed rules who can initiate .the name of a person as a Judge of the High Court, Federal Shariat Court and the Supreme Court and the Chief Justice of the High Courts and Federal Shariat Court, as the case may be.

8. The roles of the Parliamentary Committee and the Judicial Commission and parameters for the confirmation of the nominee of the Judicial Commission, have been dealt with, in detail, by this Court in the case of Munir Hussain Bhatti (supra).

(Sd.)

Khilji Arif Hussain

Judge

(Sd.)

Tariq Parvez

Judge

(Sd.)

Ejaz Afzal Khan

Judge

(Sd.)

Gulzar Ahmed

Judge

(Sd.)

Sh. Azmat Saeed, Judge

EJAZ AFZAL KHAN, J.---I have gone through the judgment authored by my brother Mr. Justice Khilji Arif Hussain. I have also gone through the answers to the questions and the reasons recorded therefor. I am not inclined to agree with some of them and thus answer the questions in my note recorded as under.

1. Brief facts leading to the institution of the reference and the Constitution Petition are that a vacancy occurred in this Court on the retirement of Mr. Justice Mian Shakirullah Jan. In order to fill the said vacancy, the Judicial Commission of Pakistan in its meeting held on 27-9-2012 nominated Mr. Justice Iqbal Hameed-ur-Rehman as a Judge of this Court. His nomination as such necessitated the nomination of a Judge of the said High Court for appointment as Chief Justice. Mr.Justice Muhammad Anwar Khan Kasi was nominated for appointment as Chief Justice of the High Court on the ground that he was the most Senior Judge of the said Court. His nomination was confirmed by the Parliamentary Committee and sent to the Prime Minister, who forwarded it to the President for appointment. The President having serious reservations to the status of Mr. Justice Muhammad Anwar Khan Kasi as the most Senior Judge declined to appoint him and thus filed the reference raising the questions recounted above. Constitution Petition mentioned above is also a corollary of the same episode.

2. Mr. Waseem Sajjad, learned Sr. ASC while appearing on behalf of the President contended that when the principle underlying determination of seniority of the Judges elevated on the same day is seniority in age, Mr. Justice Riaz Ahmed Khan, being senior in age is the most Senior Judge to be nominated as Chief Justice, Islamabad High Court. This practice, the learned counsel added, being more than a century old has been consistently followed in the Indian sub-continent and even after its partition. The learned counsel to substantiate his argument referred to the letter No.F.12(5)/86-AII, dated 30-4-1987, Government of Pakistan, Ministry of Justice and Parliamentary Affairs (Justice Division). The learned counsel by elaborating his argument contended that when according to the dictum laid down by this Court in the case of "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others" (PLD 1996 SC 324), the most senior Judge of a High Court has a legitimate expectancy to be appointed as Chief Justice, Mr. Justice Riaz Ahmed Khan being the most senior Judge of the High Court, would be entitled to be nominated for appointment as Chief Justice in the absence of any valid reason and that the nomination of Mr. Justice Muhammad Anwar Khan Kasi is not only an out right departure from the century's old practice but also against the law of the land, therefore, the President is not bound to appoint such person as Chief Justice. The learned counsel next contended that the Judicial Commission, nominating Mr. Justice Shaukat Aziz Siddique for appointment and Mr. Justice Noor-ul-Haq Qureshi for extension as Judges of the High Court, cannot be said to have been properly constituted in the absence of most senior Judge, therefore, their nomination will not have any legal or constitutional sanctity notwithstanding it having been confirmed by the Parliamentary Committee was sent to the Prime Minister and then forwarded to the President. This nomination would be all the more without any legal and Constitutional sanctity, argued the learned counsel, when the proceedings before the Commission have not been conducted in the manner prescribed by the Constitution. The learned counsel to support his contention referred to the cases of "Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010, (Action taken on news clippings regarding Fast Food Outlet in F-9 Park, Islamabad). (PLD 2010 Supreme Court 759), and "Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others" (PLD 1992 SC 757(K). The fact, maintained the learned counsel, that a non-entity, sat, voted and took part in the proceedings of the Judicial Commission would alone call for their annulment. The learned counsel to support his contention placed reliance on the case of "Regina. v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex-parte Pinochet Ugarte (No.2). Even otherwise, the learned counsel submitted, the President being appointing authority is duty bound to ensure obedience to the Constitution and the law cannot appoint a person who has not been nominated in accordance with the provisions of the Constitution.

3. During the course of arguments I asked the learned counsel for the President that when the proceedings in the house in view of the provision contained in Article 67 of the Constitution do not become invalid on the ground that some persons who were not entitled to sit, vote or otherwise take part in the proceedings, sat, voted and took part therein, how a proceedings of the Commission can become invalid on this score, the reply of the learned counsel was that the proceedings in the former case do not become invalid because it has been so provided in the aforesaid article but there is nothing of that sort in Article 175-A of the Constitution. The learned counsel by referring to Article 48 of the Constitution contended that despite insertion of Article 175-A in the Constitution, the President still has the power to send back a nomination to the Judicial Commission for reconsideration. But when asked whether a nomination originating from the Judicial Commission, confirmed by the Parliamentary Committee, and forwarded by the Prime Minister to the President could be treated as an advice and returned as such for reconsideration in terms of Article 48 of the Constitution when it does not provide for any such eventuality, the learned counsel did not give any satisfactory answer. The fact is that his own reply to our query with reference to Article 67 of the Constitution barricaded his way to take a U-turn. Though he swang to yet another argument by submitting that the Constitutional provisions have to be interpreted as a whole and not in isolation but that would not be of any help to him. The learned counsel further contended that if the principle of seniority and that of legitimate expectancy linked therewith, are ignored without reasons to be recorded, it would give rise to the whim and caprice of the person sitting at the peak which is not conducive for independence of judiciary. The learned counsel also waxed eloquent by asking this Court to redefine the mode and manner of appointing judges but when I observed that all these questions have been elaborately dealt with in the case of "Munir Hussain Bhatti, Advocate and others. v. Federation of Pakistan and another" (PLD 2011 SC 407), the learned counsel submitted that they have been, but since they have been dealt with collaterally, the judgment so rendered being obiter dicta will not have a binding force. I would have agreed with the learned counsel for the President but he could not point out anything striking or significant in the judgment which went un­noticed and unattended. It is, therefore, not obiter dicta by any attribute. This judgment could have been treated as sub-silentio: a precedent not fully argued, but again the learned counsel could not advert to any legal or Constitutional aspect of the case which escaped the notice of the Bench rendering the judgment, so as to relegate it to the status of sub-silentio. The learned counsel next contended that Mr. Justice Muhammad Anwar Khan Kasi could not be held as most senior Judge on the strength of the judgment rendered in the case of "Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs and Justice, Islamabad v. Sindh High Court Bar Association through President and another". (PLD 2012 Supreme Court 1067), as it does not provide any premises for such conclusion. How the proceedings in the Judicial Commission could be held in camera, asked the learned counsel, when the legislature in its wisdom purposely provided otherwise, so as to ensure complete transparency and open scrutiny. What would be the criterion, asked the learned counsel, for elevating a Judge or a Chief Justice of a High Court to the Supreme Court and how far the inter se seniority of the Judges or the Chief Justices of the High Courts would be relevant in this behalf?

4. Mr. Muhammad Akram Sheikh, learned Sr. ASC appearing on behalf of the petitioner contended that once the Judicial Commission nominated Mr. Justice Shaukat Aziz Siddique for appointment and Mr.Justice Noor-ul-Haq Qureshi for extension for a period of six months as Judges of the Islamabad High Court, the Parliamentary Committee after having confirmed their nomination sent it to the Prime Minister and the Prime Minister forwarded it to the President for appointment, the President has no other option but to do the needful. The learned counsel next contended that Mr. Justice Muhammad Anwar Khan Kasi being the most Senior Judge rightly participated in the meeting of the Judicial Commission nominating the Judges mentioned above, therefore, the President has no power whatsoever to delay or decline the appointment on any pretext if it is seen in the light of Eighteenth and Nineteenth Amendment. Even if it is assumed, added the learned counsel, that the Judge participating in the meeting was a non­entity, it would not materially affect the result if the doctrine of severance is applied. The learned counsel to support his contention placed reliance on the case of "Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others" (PLD 2003 SC 724). The learned counsel next contended that had the decision been made by a margin of one, the argument of the learned counsel for the President and the judgment rendered in the case of "Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex-parte Pinochet Ugarte (No.2) would have had some relevance but where the decision is by the majority of 7 against 2, absence of the persona designata or participation of a non-entity would be of little consequence. When I asked what course of action would be open before the President if a person nominated for appointment of a Judge of the Supreme Court does not fulfil the requirements laid down by Article 177(2) or a person nominated for appointment of a Judge of the High Court does not fulfil the requirements laid down by Article 193 (2) of the Constitution, the learned counsel except referring to the stance taken by the Government in C.M.A. No. 1602 of 2010 in Constitution Petition No. 11 of 2010 could not state anything more.

5. Learned Attorney General appearing on the Court's notice contended that the Judicial Commission was not properly constituted, as the persona designata did not attend the meeting and the person who attended the meeting was just a non-entity therefore, the whole process shall stand vitiated. The President, the learned Attorney General submitted, is not bound to appoint a nominee of such Judicial Commission notwithstanding his nomination was confirmed by the Parliamentary Committee and forwarded to the President by the Prime Minister on its receipt. The learned Attorney General next contended that when in the judgment rendered in the case of "Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others" (PLD 2009 SC 379), this Court annulled the appointment of many Judges for want of recommendation by the consultee, a nomination originating from the Judicial Commission which was not properly constituted has to be given alike treatment. The learned Attorney General by referring to the commentary on the Constitution of India by Durga Das Basu argued that the President is not a robot placed in the President House nor a Computer controlled automation, nor a figure head nor ornamental piece placed in the show window of the nation called the President's House. Instead, the learned Attorney General submitted, he is a living human who on being selected by the nation is endowed with all dignity, honour and prestige as head of the republic for upholding the Constitution and the laws, therefore, his role as such cannot be doubted in any situation. Seen from such angle, the learned Attorney General concluded, the President cannot be kept off the affairs regulating the appointment of Judges.

6. Mr. Makhdoom Ali Khan, learned Sr. ASC appeared as Amicus Curiae on Court's notice. The learned counsel in the first instance addressed the Court as to the binding nature of an advice rendered by this Court in the exercise of its advisory jurisdiction. The learned counsel by referring to the relevant paragraph of the judgment rendered in "Reference No. 02 of 2005 by the President of Pakistan" (PLD 2005 Supreme Court 873) submitted that though an opinion given by the Court on a reference filed by the President is not a decision between the parties but since it is handed down after undertaking an extensive judicial exercise and hearing of Advocates it has a binding force. Such advice, the learned counsel submitted has to be accepted and acted upon with utmost respect. The learned counsel then by referring to various Articles of the Constitution in general and Article 175-A in particular contended that mode and manner of appointing Judges of the superior Courts has under gone a change and that the whole process from the inception to the last is now regulated by the latter. The learned counsel argued that once Judicial Commission has nominated a person, the Parliamentary Committee after having confirmed his name has sent it to the Prime Minister and the Prime Minister has forwarded it to the President for appointment, the President will have no choice but to appoint him. While commenting on the mode and manner of appointment of Judges and things ancillary thereto, the learned counsel submitted that an exhaustive exercise has been taken in the cases of "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others. v. Federation of Pakistan and others" (supra), and "Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another" (supra), therefore, yet another exercise is hardly called for. The learned counsel, however, submitted that the principle and practice of appointing most Senior Judge as Chief Justice is not open to any dispute and thus cannot be departed from without reasons to be recorded as held in the case "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others. v. Federation of Pakistan and others" (supra). The President or for that matter any other person performing in the affairs of Federation, the learned counsel submitted, is duty bound to protect the Constitution and that the instant reference appears to be an effort in this behalf. When asked, whether the President shall appoint a person a Judge of the Supreme Court, if he does not fulfil the requirements laid down by Article 177(2) or a Judge of a High Court if he does not fulfil the requirements laid down by Article 193 of the Constitution, notwithstanding Clause 13 of Article 175-A of the Constitution, the learned counsel readily replied in no. But when asked, how a deadlock occasioning due to refusal of the President to appoint a person nominated, who does not fulfil the requirements laid down by the Articles mentioned above, would be brought to an end especially when the President in view of the provision contained in Article 175-A cannot send the nomination back to the Commission for reconsideration, the learned counsel could not give any satisfactory reply.

7. Khawaja Haris Ahmed, Sr. ASC who was also asked to assist the Court as Amicus Curiae, highlighted the salient features of his written submissions. He by referring to Article 175-A of the Constitution submitted that the role of the President in appointment of Judges, is more or less ministerial when the Judicial Commission has nominated a person, the Parliamentary Committee after having confirmed his name has sent it to the Prime Minister and the Prime Minister has forwarded it to the President for appointment. He by referring to the judgment rendered in the case of "Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another" (supra), submitted that where almost all of the questions raised in the reference have been answered in the judgment, it would be just futile to rehearse the same.

8. With regard to the question relating to seniority, the learned counsel submitted that the same being person specific is not one of law, therefore, this Court cannot afford to decide such question in its advisory jurisdiction. The learned counsel next contended that omission to mention the expression most senior Judge in the provision relating to appointment of Chief Justice of a High Court is significant and that in the absence of any express provision even the most senior Judge cannot have legitimate expectancy, as the Constitution on this score has remained the same even after the dictum laid down in the case of "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others" (supra).

9. I have gone through the relevant record carefully and considered the submissions made by the learned counsel for the parties as well as amicus curiae.

10. Before I discuss the arguments addressed at the bar by the learned counsel and answer the questions raised in the reference and the petition, it is worthwhile to mention that the mode and manner of appointing Judges underwent a radical change after Eighteenth and Nineteenth Amendments of the Constitution. Almost all the process of appointing Judges, Chief Justices of the High Courts, the Federal Shariat Court and Judges of the Supreme Court has been capsuled in Article 175-A of the Constitution. A reference to the said Article would, therefore, be relevant which reads as under :-

"175-A, (1). There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided.

(2) For appointment of Judges of the Supreme Court, the Commission shall consist of

(i) Chief Justice of Pakistan;

(ii) (four) most senior Judges of the Supreme Court;

(iii) a former Chief Justice or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the (four) member Judges, for a term of two years;

(iv) Federal Minister for Law and Justice;

(v) Attorney-General for Pakistan; and

(vi) a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years.

(3) Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.

(4) The Commission may make rules regulating its procedure.

(5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely :----

(i) Chief Justice of the High Court to which the appointment is being made;

(ii) the most senior Judge of that High Court;

(iii) Provincial Minister for Law; and

(iv) an advocate having not less than fifteen years practice in the High Court to be nominated by the concerned Bar Council for a term of two years;

[Provided that for appointment of the Chief Justice of a High Court the most Senior Judge mentioned in paragraph (ii) shall not be member of the Commission:

Provided further that if for any reason the Chief Justice of High Court is not available, he shall be substituted by a former Chief Justice or former Judge of that Court, to be nominated by the Chief Justice of Pakistan in consultation with the four member Judges of the Commission mentioned in paragraph (ii) of clause (2)].

(6) For appointment of Judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely : ---

(i) Chief Justice of the Islamabad High Court; Member and

(ii) the most senior Judge of that High Court:

Provided that for initial appointment of the [Chief Justice and the] Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission:

Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply.

(7) For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its member:

Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos, to clause (5) shall, mutatis mutandis, apply.

(8) The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be.

(9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely:---

(i) four members from the Senate; and

(ii) four members from the National Assembly [:]

[Provided that when the National Assembly is dissolved, the total membership of the Parliamentary Committee shall consist of the members from the Senate only mentioned in paragraph (i) and the provisions of this article shall, mutatis mutandis, apply.].

(10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition.

(11) Secretary, Senate shall act as the Secretary of the Committee.

(12) The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed:

[Provided that the Committee, for reasons to be recorded, may not confirm the nomination by three-fourth majority of its total membership within the said period:]

[Provided further that if a nomination is not confirmed by the Committee it shall forward its decision with reasons so recorded to the Commission through the Prime Minister:

[Provided further that if a nomination is not confirmed, the Commission shall send another nomination.]

(13) The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment].

(14) No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof.

(15) The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained.

(16) The provisions of Article 68 shall not apply to the proceedings of the Committee.]

[(17)] The Committee may make rules for regulating its procedure.]"

1. A look at the above quoted provision would reveal that it prescribed the mode and manner as to how the Judicial Commission shall proceed to nominate a person for appointment as a Judge or Chief Justice of a High Court, the Federal Shariat Court or a Judge of the Supreme Court and how the Parliamentary Committee would look at such nomination while confirming or refusing to confirm it. Who is eligible to be appointed as a Judge or Chief Justice of a High Court, the Federal Shariat Court or a Judge of the Supreme Court and whether the person sought to be nominated possesses the caliber, capacity and conduct befitting the slot, are the questions to be considered by the tiers listed in the provision mentioned above. Once a person is nominated by the Judicial Commission his name will go to the Parliamentary Committee. The Parliamentary Committee may confirm such nomination by majority of its total membership within fourteen days. If it fails to confirm a nomination within fourteen days it shall be deemed to have been confirmed. It may refuse to confirm a nomination by 3/4th and send it back to the Commission through the Prime Minister for reconsideration but after recording reasons therefor. The Commission shall, then, send another nomination. The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment.

2. Now the questions arise what is nomination in its pith and substance; whether it can be treated as an advice to the President and if so whether it can be returned for reconsideration to the source it has originated from or processed through. Before I answer these questions, a careful look at Article 48 of the Constitution would be quite advantageous. It, thus, reads as under:--

"President to act on advice, etc.

[48. (1) In the exercise of his functions, the President shall act [on and] in accordance with the advice of the Cabinet [or the Prime Minister]:

[Provided that [within fifteen days] the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall [, within ten days,] act in accordance with the advice tendered after such reconsideration.]

(2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so [and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever].

(3) Clause (3) omitted.

(4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any court, tribunal or other authority.

(5) Where the President dissolves the National Assembly, notwithstanding anything contained in clause (1), he shall,---

(a) appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to a Assembly; and

(b) appoint a care-taker Cabinet [in accordance with the provisions of Article 224 or, as the case may be, Article 224A.]]

[(6) If at any time the Prime Minister considers it necessary to hold a referendum on any matter of national importance, he may refer the matter to a joint sitting of the Majlis-e-Shoora (Parliament) and if it is approved in a joint sitting, the Prime Minister may cause such matter to be referred to a referendum in the form of a question that is capable of being answered by either --- Yes" or --- Not".]

(7) An Act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum.

1. A bare reading of this Article would reveal that the President in the exercise of his functions shall act in accordance with the advice of the Cabinet or the Prime Minister. The President in view of the proviso to Article 48(1) has the power to require the Cabinet or the Prime Minister as the case may be, to reconsider such advice generally or otherwise. Similarly, the President, in view of the provision contained in Article 75 of the Constitution, has the power to return a bill, other than a money bill, presented to him for his assent, for reconsideration. A nomination originating from the Commission, confirmed by the Committee is also an advice in its pith and substance inasmuch as it is forwarded by the Prime Minister to the President for being acted upon. But since it originates from the Commission in terms of Article 175-A of the Constitution, it is not an advice in terms of Article 48 of the Constitution. Nor is it open to the incidence of return for reconsideration because Article 175-A of the Constitution does envision any such thing. This omission appears to be deliberate and purposeful. For whatever power the President had before Eighteenth and Nineteenth Amendments, including the power to return a nomination for reconsideration to the source it has originated from, has now been conferred on the Parliamentary Committee. If a power requiring the Prime Minister or the Cabinet to reconsider an advice, under Article 48, or a power requiring the Parliament to reconsider a bill, under Article 75 of the Constitution, has been conferred on the President, a power requiring the Commission or the Parliamentary Committee, to reconsider a nomination, too, could have been conferred on him, but it has not been conferred. When it has not been conferred, I am bound to take the Constitutional provisions as they are. A Casus Omissus can, in no case, be supplied by the Court of law as that would amount to altering the provision. "It is not our function, as was held by Mr. Justice Walsh, in the case of "Attorney General v. Bihari, re Australia Factors Limited (1966) 67 S.R. (N.S.W.) 150; to repair the blunders that are to be found in the legislation". They must be corrected by the legislator". A Court of law is not entitled to read words into the Constitution or an Act of Parliament unless clear reason is found within the four corners of either of them. Yes, the President can act in the exercise of his discretionary powers under Article 48(2) of the Constitution but the areas of such powers are well defined and well marked. He cannot return a nomination for reconsideration even under the garb of his discretionary power when it in its origin and specie is not an advice in terms of Article 48(1) of the Constitution. I, therefore, hold that the President has no power to return a nomination to any of the tiers it has passed from, even if it is violative of the Constitution or the law. But at any rate the President shall not appoint a person a Judge of the Supreme Court or a Judge or Chief Justice of a High Court as the case may be, whose nomination, in his opinion, is against the Constitution and the law. For the Constitution which makes obedience to the Constitution and the law the inviolable obligation of every citizen would never ever require a person no less than the President to do something against the Constitution and the law. Nor would his oath of office, which requires him to discharge his duties and perform his functions in accordance with the Constitution and the law, permit him to do any such thing. Reference may well be made to Articles 177 and 193 of the Constitution and Oath of the President which read as under:--

"Article 177: Appointment of Supreme Court Judges.

[(1) The Chief Justice of Pakistan and each of the other Judges of the Supreme Court shall be appointed by the President in accordance with Article 175A.]

(2) A person shall not be appointed a Judge of the Supreme Court unless he is a citizen of Pakistan and--

(a) has for a period of, or for periods aggregating, not less than five years been a judge of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or

(b) has for a period of, or for periods aggregating, not less than fifteen years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day) ".

"Article: 193: Appointment of High Court Judges.

[(1) The Chief Justice and each of other Judges of a High Court shall be appointed by the President in accordance with Article I75A.]

(2) A person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, is not less than [forty-five] years of age, and--

(a) he has for a period of, or for periods aggregating, not less than ten years been an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day); or

(b) he is, and has for a period of not less than ten years been, a member of a civil service prescribed by law for the purposes of this paragraph, and has, for a period of not less than three years, served as or exercised the functions of a District Judge in Pakistan; or

(c) he has, for a period of not less than ten years, held a judicial office in Pakistan.

[Explanation.-In computing the period during which a person has been an advocate of a High Court or held judicial office, there shall be included any period during which he has held judicial office after he became an advocate or, as the case may be, the period during which he has been an advocate after having held judicial office.]"

And

"OATHS OF OFFICE

President

[Article 42]

(In the name of Allah, the most Beneficent, the most Merciful.)

I,....................., do solemnly swear that I am a Muslim and believe in the Unity and Oneness of Almighty Allah, the Books of Allah, the Holy Quran being the last of them, the Prophethood of Muhammad (peace be upon him) as the last of the Prophets and that there can be no Prophet after him, the Day of Judgment, and all the requirements and teachings of the Holy Quran and Sunnah:

That I will bear true faith and allegiance to Pakistan:

That, as President of Pakistan, I will discharge my duties, and perform my functions, honestly, to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law, and always in the interest of the sovereignty, integrity, solidarity, well- being and prosperity of Pakistan:

That I will not allow my personal interest to influence my official conduct or my official decisions:

That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan:

That, in all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will:

And that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me as President of Pakistan, except as may be required for the due discharge of my duties as President.

[ay Allah Almighty help and guide me (A'meen)]"

1. The above quoted provisions of the Constitution as well as the oath of his office would show that the President before appointing a person, a Judge or a Chief Justice of a High Court or a Judge of the Supreme Court shall ensure that his nomination is in accordance with the Constitution and the law. He shall not appoint a person, a Judge or a Chief Justice of a High Court or a Judge of Supreme Court, if his nomination does not conform to the Constitution and the law. Especially when there is no provision in Article 175-A of the Constitution, in para materia with that of Article 48 requiring the President to do the needful within ten days, or a deeming provision in para materia with that of Article 75 of the Constitution requiring the President to do the needful within ten days failing which the needful shall be deemed to have been done. A deadlock, would inevitably be the consequence as the President can neither return the nomination to the source it has originated from or processed through nor can he appoint the person, thus nominated. As the deadlock revolves around the constitutionality, legality or otherwise of the nomination recourse to an advisory or adjudicatory jurisdiction of this Court would be the only way out. If the Court upholds the opinion of the President, the Commission shall initiate proceedings de novo in accordance with the opinion of the Court. If it does not, the President shall appoint the person nominated accordingly.

2. Who is senior, what is the criterion for determining seniority amongst the Judges elevated on the same day and what is the way of deciding about the most senior Judge for appointment as Chief Justice? Answers to these questions have been provided in the letter of Law Department dated 30-4-1987 which reads as under:--

"No.F.12(5)/86-AII. Dated . 30-4-1987.

GOVERNMENT OF PAKISTAN MINISTRY OF JUSTICE

AND PARLIAMENTARY AFFAIRS (JUSTICE DIVISION)

SUBJECT: SENIORITY LIST OF HIGH COURT JUDGES

My dear Chief Justice, Please refer to the correspondence resting with High Court of Sindh letter No. Gaz-IV,Z,14(i) dated the 30th March, 1987, on the subject noted above.

2. An equitable principle consistently adopted in this regard is that Judges whose appointments are made by a single order, take seniority according to age. If the appointment of two or more service candidates is also simultaneously made with that of candidate from the Bar, the service Judges will retain their existing seniority in the department regardless of their age which of course would be the determining factor in respect of their seniority viz-a-viz candidates from the Bar. This principle has the approval of the President.

1. I am to request you to please confirm whether the seniority list of Sindh High Court Judges has been prepared in the light of the above principle.

With kind regards.

Yours sincerely, (Sd.)

(Irshad Hassan Khan)"

1. A perusal of the letter reproduced above leaves no doubt that the established practice and the time honoured yardstick for determining seniority amongst the Judges of a High Court, elevated on the same day, is seniority in age except in the case of Judges from service whose inter se seniority remains intact even on their elevation irrespective of their age. This principle has been consistently followed hitherto without exception ever since the establishment of the High Courts in the Indian Subcontinent and also after its partition. This principle even otherwise merits respect and reverence because it not only rules out personal whim and caprice of the person at one peak or another and shuts doors and windows for manipulation at ministerial level but also creates an environment which is conducive for the rule of law, supremacy of the Constitution and independence of Judiciary. This principle being too clear and conspicuous cannot be disputed. At times it has been departed from but that was only when there was something concrete against the Judge. This is what was laid down in the case of "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others" (supra). The relevant paragraph would be germane to the case in hand which reads as under:--

"It is true that in Article 193 of the Constitution which relates to inter alia to the appointment of a Chief Justice in a High Court, it has not been provided that most of the senior of Judges shall be made as the Chief Justice. The reason seems to be obvious, namely, it is possible that the senior most Judge, at the relevant time, may not be physically capable to take over the burden of the office or that he may not be willing to take upon himself the above responsibility. The Chief Justice of Pakistan, who is one of the consultees under Article 193 will be having expertise knowledge about the senior most Judges of a High Court. If the senior most Judge is bypassed for any of the above reasons, he cannot have any grievance but if he is superseded for extraneous considerations, the exercise of power under Article 193 of the Constitution will not be in accordance therewith and will be questionable.

I am, therefore, of the view that keeping in view the provisions of the Constitution as a whole and the well-established convention as to the appointment of the senior most Judges in the High Court as the Chief Justice followed consistently in conjunction with the Islamic concept of 'Urf'. The most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned.

Before parting with the discussion on the above question, I may observe that there seems to be wisdom in following the convention of seniority. If every Judge in a High Court aspires to become Chief Justice for the reason that he knows that seniority rule is not to be followed, it will adversely affect the independence of judiciary. The junior most Judges may feel that by having good terms with the Government in power he can become the Chief Justice. This will destroy the institution and public confidence in it. The Chief Justices of the High Courts have the power to fix the roster i.e. to decide when a case is to be fixed and before whom it is to be fixed. In other words, they regulate the working of the forum it is, therefore, very important that the Chief Justices should not be pliable and they should act independently".

The word "Urf" used in the above quoted paragraph is of tremendous significance which means commonly known, commonly received and commonly approved of. This principle was reiterated in the case of "Malik Asad Ali and others v. Federation of Pakistan and others"(PLD 1998 SC 33), the relevant paragraph for the facility of reference is reproduced as under:-

"6. This Court in case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 while interpreting the provisions of Article 193 of the Constitution, relating to the appointment of Chief Justice of a Provincial High Court, on the basis of convention followed in this behalf held, that the senior most Judge of the High Court, in the absence of any concrete and valid reason has to be appointed as the Chief Justice of the High Court. We are of the view that the above rationale laid down by this Court for appointment of the Chief Justice of High Court applied with greater force in the case of appointment of Chief Justice of Pakistan under Article 177 of the Constitution, in view of the more consistent practice and convention followed in this regard for appointment of Chief Justice of Pakistan in the past and especially in view of the provisions contained in Article 180 of the Constitution which recognizes the principle of seniority as the sole criteria for appointment of Acting Chief Justice of Pakistan."

This Court in the case of "Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another" (supra) while reaffirming the dicta laid down in the cases of "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others" (supra) and "Malik Asad Ali and others v. Federation of Pakistan and others" (supra) held as under:--

"31. At this stage, it would also be appropriate for us to note that the contention of the AAG that earlier judgments on the issue of appointment of Judges are irrelevant is a bit misconceived. The change in the appointment process has merely diversified decision making amongst the many members of the two new collegiate bodies, but essentially the roles of these bodies, looked at collectively, remains the same. So as such the principles of law enunciated in earlier judgments such as Al-Jehad Trust case, Malik Asad Ali and several others would continue to apply to the new mechanism with full force. In face, these principles can be said to be applicable even more strongly after the introduction of the newly constituted bodies under Article 175-A."

It, irresistibly, follows that this principle, practice or convention, whatever one may like to call it, besides being esteemed, honoured and upheld throughout has also been blessed with the approval of this Court in the judgments cited above. It is now a declared law of the land to all intents and purposes. I, therefore, do not see any reason much less tenable warranting any deviation therefrom.

1. Yet another provision contained in the first proviso to Clause 5(iv) of Article 175-A of the Constitution, which provides that for appointment of the Chief Justice of a High Court the most senior Judge mentioned in Clause 5(ii) of the Article shall not be member of the Commission, unmistakably indicates that it has all along been taken for granted that it is the most senior Judge of the High Court who shall be nominated as Chief Justice in the absence of any valid reason. Otherwise, it would have been provided in the aforesaid clause that the Judge whose nomination for appointment as Chief Justice is in the offing shall not be member of the Commission. Therefore, the argument advanced by Kh. Haris Ahmed, learned Sr. ASC that the Constitutional provisions on this score have remained the same even after the dictum laid down in the case of "Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others" (supra) is without force. I am, therefore of the opinion, that Mr. Justice Riaz Ahmed Khan, being the most senior Judge of the High Court has a legitimate expectancy to be appointed as Chief Justice and that subject to any valid reason which is yet to be recorded by the Commission, he would be entitled to be appointed as such.

2. Next question in the sequence is as to who determines seniority amongst the Judges appointed on the same day? Again the answer can be found in the long standing practice. It is the Chief Justice of the respective High Court who determines inter se seniority of the Judges in the light of the principle mentioned above. It is, then, the Judicial Commission nominating the most Senior Judge for appointment as Chief Justice, which determines inter se seniority of the Judges so elevated. The President in this scheme does not figure anywhere. It is, however, a fact well worth remarking that seniority in this case has been determined by the Chief Justice of the Islamabad High Court and that Mr. Justice Riaz Ahmed Khan being senior in age has already been declared the most senior Judge of the High Court. Needless to say that settling the principle underlying the determination of a question can never become person specific.

3. Then comes the question as to whether the well established principle underlying the determination of inter se seniority amongst the Judges has been departed from by the Commission on correct premises. Reference has been made to a paragraph from the judgment rendered in the case of "Federation of Pakistan v. Sindh High Court Bar Association through its President" (C.P.L.A. No.1390 of 2012) (supra) which runs as under:--

"..........It is for this reason that in number of judgments of the apex Court, out of which two have been referred to above, in service matters, concept of reinstatement into service with original seniority and back benefits has been developed and followed on case to case basis to give complete relief to an aggrieved party. Following the same equitable principle, while passing our short order, we have specifically mentioned that the issuance of notification for permanent appointment of the two Judges shall have its effect from 17-9-2011 when four other recommendees of the Commission in the same batch were notified after clearance by the Committee, so that they shall have their respective seniority and all other benefits as permanent judges of the High Court".

But a careful reading of the above quoted paragraph would reveal that it has not judicially laid down any criterion for determining, inter se seniority among the Judges appointed on the same day. Nor has it justified a deviation from the recognized course. It, when read with reference to the context, deals with a situation different altogether. No such question was involved in that case, nor has it been decided as such. It would not thus be ominous to draw a parallel between this case and that case or to treat them alike. I, therefore, have no hesitation to hold that the premises recorded by the Commission for departing from the well established principle of determining seniority are not correct.

1. The next question emerging for the consideration of this Court on its advisory as well as adjudicatory side is whether the Judicial Commission in this case was properly constituted in the absence of a persona designata and whether the presence or participation of a person, who was a non-entity in the Commission, could vitiate the nomination for the appointment of Mr. Justice Shukat Aziz Siddique and extension of Mr. Justice Noor-ul-Haq Qureshi? Answers to these questions are simple and straightforward. Accepting that Mr. Justice Riaz Ahmed Khan being the most Senior Judge was required to attend the meeting of the Commission but his failure to do so for any reason, would not vitiate the proceedings of the Commission. For clause 14 of Article 175-A of the Constitution clearly provides that no action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof. Accepting that Mr. Justice Muhammad Anwar Khan Kasi being a non-entity sat, voted and took part in the proceedings culminating in the nomination of the Judges mentioned above, yet it would not vitiate the proceedings when the Judicial Commission, in view of Clause 8 of Article 175-A of the Constitution, has nominated the Judges by majority of its total membership. It would have vitiated or materially affected the proceedings of the Commission if it had nominated the Judges for appointment and extension with a margin of one. But where the Commission nominated the Judges by majority of 7 against 2, the presence or participation of Mr. Justice Muhammad Anwar Khan Kasi in the meeting would not be of any consequence. The case of "Managing Director, Sui Southern Gas Company Ltd., Karachi. v. Ghulam Abbas and others" (supra) may well be referred to in this behalf wherein it was held as under: -

"Perusal of subsection (1) of section 3-A of the Act, 1973 reveals that "minimum strength of a Bench to exercise or perform functions of the Tribunal is two Members, including the Chairman,' meaning thereby that while conducting hearing the status of a Chairman is also of a Member. Whereas under clause (a) of section 3-A(2), decisions are to be pronounced by the majority of the Members. Clause (b) of section 3-A(2) further provides that in case of division between Members of the Bench or in case of equal division of the Members, the case shall be referred to the Chairman and whatever opinion is expressed by him, would have supremacy and constitute the decision of the Tribunal. In this case impugned judgment has been authored by the Chairman and all the Members have concurred with him, therefore, presuming that Mr. Aftab Ahmed joined proceedings without lawful authority but nevertheless impugned judgment can sustain, as it has been rendered by the Bench compromising of more than two Members of the Service Tribunal and apprehension of influencing the judgment by Mr. Aftab Ahmed (Retired Member) stands excluded as it was authored by a former Judge of High Court being the Chairman of the Service Tribunal."

1. The principle enunciated in the aforesaid judgment is not alien or extraneous, on any account, to our jurisprudence. It has also been recognized by Article 67 of the Constitution, which does not allow a proceedings of the House to become invalid simply because a person who was not entitled to sit, vote or otherwise take part in the proceedings, sat, voted or took part therein. The case of "Regina v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex-parte Pinochet Ugarte (No.2), therefore, has no relevance to the case in hand.

2. Mr. Muhammad Akram Sheikh, learned Sr. ASC also referred to Establishment Manual but could not cite any clear and definite provision of law, rule or convention as could justify a deviation from the course which has been consistently followed till date. He failed to refer to any precedent much less relevant to support his stance. He also failed to bring anything exceptional, extraordinary or outstanding in our notice as could dilute, diminish or discount the binding force of the said principle. Even otherwise, I would not approve substitution or replacement of a principle which has unquestionably been accepted and acted upon throughout.

3. The argument addressed by the learned Attorney General on the strength of "Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others" (supra) that if this Court annulled the appointment of many Judges for want of recommendation of the consultee, the nomination originating from the Judicial Commission which was not properly constituted has to be given alike treatment is wholly misconceived inasmuch as the status of the Chief Justice of Pakistan before the amendments has been brought at par with the status of a member after the amendments without appreciating that the Chief Justice of Pakistan before such amendments was the chief consultee. Even after the amendments he being the Chairman of the Commission is not only the chief consultee but no meeting of the Commission can be held in his absence. Whereas absence of any other member or vacancy in view of clause 14 of Article 175-A of the Constitution is of no consequence whatever.

4. The argument of the learned counsel for the President that such nomination would be all the more without any legal or constitutional sanctity when the proceedings before the Commission were not conducted in the manner prescribed by the Constitution is also devoid of force as this provision for want of envisaging the consequence of failure or neglect to comply therewith cannot be treated as mandatory.

5. The argument that the proceedings in the Judicial Commission could not be held in camera when the legislature purposely provided otherwise so as to ensure complete transparency and open scrutiny appears to be ornamental as its members not only represent all the essential segments of the Bar and Bench but also those of the Federation and the Province through Attorney General for Pakistan, Minister for Law and Justice of the Federation and Minister for Law of the Province. The scrutiny is open in the truest sense of the word when each member is at liberty to present his point of view one way or the other. Transparency in the proceedings cannot be affected by holding it in camera if every member consciously and conscientiously gives his input in the nomination, keeping in view its overall impact on the Institution on the one hand and society at large on the other. I do not understand what does the learned counsel for the President want to project by using the expressions "complete transparency and open scrutiny". If he by using these expressions wants the inclusion and intrusion of all and sundry, I am afraid, he is far off the lines drawn by the Constitution. It was in view of this backdrop, that the Judicial Commission while framing the rules in exercise of the powers conferred on it under clause 4 of Article 175-A of the Constitution provided for holding the proceedings in camera.

6. Question relating to criterion for elevating a Judge or Chief Justice of a High Court to the Supreme Court has been fully answered by Article 177 of the Constitution reproduced above. I, therefore, would not like to add anything thereto. The more so when the convention followed thus far is also in conformity with the letter and spirit of the Article mentioned above.

7. Having thus considered, I answer the questions raised in the reference accordingly. The detailed reasons for the Short Order dated 21-12-2012 in the Constitution Petition No. 126 of 2012 are also included in the Judgment.

8. While parting of the judgment, we would appreciate the enlightened assistance rendered by Mr. Makhdoom Ali Khan and Khawaja Haris Ahmed, learned Senior Advocates Supreme Court.

P L D 2013 Supreme Court 361

Present: Mian Saqib Nisar, Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

THE STATE through Mehmood Ahmad Butt, Deputy Director, Regional Directorate, Anti-Narcotics Force, Lahore---Appellant

Versus

Mst. FAZEELAT BIBI---Respondent

Criminal Appeal No.142-L of 2010, decided on 18th February, 2013.

(Against the judgment dated 18-8-2010 passed by the Lahore High Court Lahore in Criminal Appeal No.1263 of 2008).

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

----Ss. 47 & 48(1)---Sentence awarded by Trial Court (Special Court, Control of Narcotic Substances)---Appeal against order of Trial Court filed before High Court seeking enhancement of sentence---Maintainability---High Court holding that such appeal for enhancement of sentence was not maintainable in view of S.48 of Control of Narcotic Substances Act, 1997 and therefore converted the same into a writ petition---Legality---Right of appeal conferred by S.48(1) of the Control of Narcotic Substances Act, 1997 was all pervasive catering for every kind of appeal from every kind of order passed by a Special Court and the provisions of S.48(1) of the Control of Narcotic Substances Act, 1997 did not make any distinction between an appeal against a conviction, an appeal against an acquittal or an appeal seeking enhancement of a sentence passed against a convict---Appeal was allowed, impugned judgment of High Court was set aside by the Supreme Court and appeal seeking enhancement of sentence was restored to be decided by the High Court on merits.

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

----S. 47---Criminal Procedure Code (V of 1898), Chapters, XXXI & XXXII & Preamble---Application of Cr.P.C. to trials and appeals before a Special Court, Control of Narcotic Substances---Scope---Provisions of S.47 of the Control of Narcotic Substances Act, 1997 made Cr.P.C. applicable "to trials and appeals before a Special Court" under the Act of 1997, which showed that only the procedure provided in Cr.P.C. was applicable to trials and appeals provided for under the Act of 1997---Section 47 of Control of Narcotic Substances Act, 1997 had not transposed any remedy of appeal or revision from Cr.P.C. to the Act of 1997.

Sahibzada Anwar Hameed, Special Prosecutor, Anti-Narcotics Force for Appellant.

Hammad Akbar, Advocate Supreme Court for Respondents.

Date of hearing: 18th February, 2013.

P L D 2013 Supreme Court 364

Present: Mian Saqib Nisar and Muhammad Ather Saeed, JJ

Syed MEHMOOD ALI SHAH---Petitioner

Versus

ZULFIQAR ALI and 5 others---Respondents

Civil Petitions Nos. 2054-L to 2060-L of 2010, decided on 24th January, 2013.

(On appeal from the judgment dated 18-10-2010 passed by the Lahore High Court, Lahore in Writ Petitions Nos. 16463 to 16469 of 2005).

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

----S. 12(2)---Punjab Pre-emption Act (I of 1913), S.21---Constitution of Pakistan, Art.185(3)---Fraud---Property acquired by pre-emptor through consent of vendee---Pre-emptor selling such property to purchasers---Pre-emptor after having sold the property, giving his consent to a decree in a suit, which affected rights of purchasers qua the property---Effect---Fraud committed by pre-emptor upon purchaser---Scope---Abatement of pre-emption suits filed under the Punjab Pre-emption Act, 1913 in view of the judgment of Supreme Court in the case of N-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360)---Scope---Pre-emptors filed separate suits for possession through pre-emption against vendee---Suit of first pre-emptor was decreed on account of consent of vendee, and having acquired ownership of the suit property, he further sold it to the purchasers (respondents)---Second pre-emptor after seeking amendment in his plaint challenged consent decree passed in favour of first pre-emptor---During pendency of second pre-emptors' suit Punjab Pre-emption Act, 1913 was declared as ultra vires to Injunctions of Islam and all pending pre-emption suits in which a decree of pre-emption had not been passed in favour of pre-emptor by 31st July, 1986 stood abated---Trial Court instead of dismissing suit of second pre-emptor as having abated, kept the matter pending, and when vendee and first pre-emptor conceded to claim of second pre-emptor, his suit was decreed---Aggrieved of such decree, purchasers filed applications under S.12(2), C.P.C contending that they were the owners of suit property that had been purchased by them from the first pre-emptor, and that vendee and first pre-emptor had no right to give consent in favour of second pre-emptor's decree--- Validity---Supreme Court categorically held in the case of N-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360) that all suits, appeals etc. pending adjudication on 31st July 1986 in which a decree for pre-emption had not been passed in favour of pre-emptor by the said date, stood abated, meaning thereby, that all such cases were terminated, stood annulled and the very existence of the cases came to an end by the operation of law---Such command of the law had to take effect ipso jure, without recourse to anything else, therefore, no valid suit on behalf of second pre-emptor could be deemed in law to be pending before the court, in respect of which it could exercise jurisdiction---Even if the vendee and first pre-emptor had given their consent, suit of second pre-emptor stood abated in view of the said judgment of Supreme Court, since such consent was likely to affect rights of persons who were not part thereto---Decree passed in favour of second pre-emptor was void, even if it was a consent decree--- Besides first pre-emptor had sold the suit property in favour of purchasers and thus was left with no right or interest in such property, therefore, he could not give consent to deprive the purchasers of their lawful right to the property--- Purchasers purchased suit property from first pre-emptor for valuable consideration on basis of consent decree passed in favour of the latter (before repeal of Punjab Pre-emption Act, 1913), therefore their rights could not be obliterated---Vendee was also in no position to give his consent, having consented to the decree in favour of first pre-emptor---Fraud was obvious in the present case, played by both pre-emptors upon the purchasers---Petition for leave to appeal was refused accordingly.

Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and Ameer Umar and another v. Additional District Judge, Dera Ghazi Khan and others 2010 SCMR 780 rel.

Muhammad Khan v. Massan and 13 others 1999 SCMR 2464; Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 and Mst. Tabbasum Shaheen v. Mst. Uzma Rahat and others 2012 SCMR 983 distinguished.

Government of N.-W.F.P. through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 ref.

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

----S. 12(2)---Fraud---Effect---Fraud vitiated the most solemn of proceedings and transactions.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Petitioner (in all cases).

Nemo for Respondents (In all cases).

Date of hearing: 24th January, 2013.

P L D 2013 Supreme Court 369

Present: Tassaduq Hussain Jillani, Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

KHIZAR HAYAT---Petitioner

Versus

SARD ALI KHAN and others---Respondents

Civil Petitions Nos.642 and 643 of 2012, decided on 11th February, 2013.

(Against the judgment dated 30-1-2012 passed by the Peshawar High Court, D.I. Khan Bench in Civil Revisions Nos. 31 and 32 of 2006).

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 31(a) & 32(1)---Constitution of Pakistan, Art. 185(3)---Suit for possession through pre-emption---Limitation period, computation of---Registrar registering the sale-deed failing to give public notice within two weeks of such registration as required under S.32(1) of Khyber Pakhtunkhwa Pre-emption Act, 1987---Plea that due to such failure of Registrar period of limitation for filing pre-emption suit would be counted from date of knowledge of pre-emptor and not from registration of sale deed---Validity---Provisions with regard to issuance of public notice by the Registrar contained in S.32 of Khyber Pakhtunkhwa Pre-emption Act, 1987 had no nexus with the period of limitation prescribed by S.31 of the Act for filing a pre-emption suit in respect of sale transaction effected through a registered sale deed---Plea was rejected in circumstances---Petition for leave to appeal was dismissed and leave was refused.

Muhammad Ramzan v. Lal Khan 1995 SCMR 1510 and Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 rel.

Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499 ref.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court for Petitioner (in both cases).

Nemo for Respondents.

Date of hearing: 11th February, 2013.

P L D 2013 Supreme Court 378

Present: Anwar Zaheer Jamali and Ejaz Afzal Khan, JJ

SHAHID ORAKZAI---Petitioner

Versus

PAKISTAN through Secretary Law and another---Respondents

Civil Petition No.1665 of 2012, decided on 9th January, 2013.

(On appeal from judgment of Islamabad High Court, Islamabad, dated 12-9-2012, passed in I.C.A. No.525-W of 2012).

(a) Constitution of Pakistan---

----Arts. 103(2) & 102---Governor, office of---Non-political status---Scope---Article 103(2) of the Constitution emphasized upon the non-political status of a Governor by stating that even if the candidate for the post of Governor was an elected member of Parliament or Provincial Assembly, before entering upon the office of Governor, he had to vacate such membership and further had to take oath as contemplated under Art.102 of the Constitution.

(b) Constitution of Pakistan---

----Arts. 213(2) & 177(2)(a)---Chief Election Commissioner, office of---Qualifications for appointment---Scope---Article 213(2) of the Constitution provides two disjunctive (separate) categories of qualifications for appointment as Chief Election Commissioner, firstly, that no person shall be appointed to such office unless he is, or has been, a Judge of the Supreme Court; secondly, unless such person is, or has been, a Judge of the High Court and is qualified under Art.177(2)(a) of the Constitution to be appointed as Judge of the Supreme Court.

(c) Constitution of Pakistan---

----Arts. 213(2) & 179---Chief Election Commissioner, office of---Appointment of retired/serving Judge of Supreme Court as Chief Election Commissioner---Condition of upper age limit---Scope---Person who is or has been a Judge of the Supreme Court in the past, is outrightly eligible to hold office of Chief Election Commissioner without any condition of upper age limit.

Malik Hamid Sarfraz v. Federation of Pakistan and another PLD 1979 SC 991 ref.

(d) Constitution of Pakistan---

----Arts. 213(2), 179, 207(2), 215 & 216---Chief Election Commissioner, office of---Qualifications for appointment---Bar to appointment---Scope---Requirement under Art.213 of the Constitution that no person should be appointed to office of Chief Election Commissioner unless he is or has been a Judge of the Supreme Court, did not "ipso facto" attract the disabilities visualized under Arts.179 and 207(2) of the Constitution, more so when such aspects (disabilities) were separately dealt with under Arts.215 and 216 of the Constitution.

(e) Constitution of Pakistan---

----Arts. 213(2), 214, 179, 102, 103(2) & 185(3)---Chief Election Commissioner, office of--- Qualification for appointment---Past political affiliations of Chief Election Commissioner---Scope---Upper age limit for appointment as Chief Election Commissioner---Scope---Retired Judge of Supreme Court, who had also served as Governor of a province, appointed as Chief Election Commissioner---Such appointment was challenged on the grounds that Chief Election Commissioner remained a Governor of a province and had political affiliations in the past, and that in view of Art.213(2) of the Constitution he was disqualified from being appointed due to the bar of upper age limit of 65 years---Validity---Appointment as Governor of a province was to be considered as non-political during tenure of such office---Oath taken by Chief Election Commissioner in terms of Art.214 of the Constitution also made it abundantly clear that if the new incumbent had any political affiliations in the past, he had denounced such affiliation and was required to hold the office of Chief Election Commissioner strictly in terms of the oath---Person who is or has been a Judge of the Supreme Court in the past, is eligible to be appointed to office of Chief Election Commissioner without any condition of upper age limit---Grounds upon which appointment of Chief Election Commissioner was challenged were devoid of merit--- Petition for leave to appeal was dismissed accordingly.

Malik Hamid Sarfraz v. Federation of Pakistan and another PLD 1979 SC 991 ref.

Petitioner in person.

Nemo for Respondents.

Date of Hearing: 9th January, 2013.

P L D 2013 Supreme Court 386

Present: Anwar Zaheed Jamali and Ejaz Afzal Khan, JJ

MUHAMMAD SARFRAZ---Petitioner

Versus

THE STATE through P.G. Punjab and another---Respondents

Criminal Petition No.468 of 2012, decided on 16th January, 2013.

(On appeal against the judgment dated 2-11-2012 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Revision No.226 of 2012).

Criminal Procedure Code (V of 1898)---

----Ss. 162 & 161---Statement of witness recorded under S.161, Cr.P.C.---Witness turning hostile---Trial Court allowing prosecution to confront hostile witness with his statement under S.161, Cr.P.C. during his cross examination for purposes of contradicting him---Legality---Prosecution could not be permitted to confront a witness with his previous statement recorded under S.161, Cr.P.C. for the purpose of contradicting him even after being declared hostile---Petition for leave to appeal was converted into appeal and allowed and order of Trial Court was set aside.

Sana Mia and another v. The State PLD 1959 Dacca 400; Anis Mondal v. The State PLD 1959 Dacca 36 and Fazlul Haque v. The State PLD 1959 Dacca 931 rel.

Shaukat Ali v. The State 2005 MLD 1470; Notiar Abdullah Taiyab v. The Kutch Government (AIR (37) 1950 Kutch 87 and Dwarka Singh and another v. Emperor AIR (34) 1947 Patna 107 ref.

Sardar M. Ishaq Khan, Senior Advocate Supreme Court for Petitioner.

Ch. M. Waheed Khan, Addl. P.G. Punjab for the State.

Malik Waheed Anjum, Advocate Supreme Court for Respondent No.2.

Date of hearing: 16th January, 2013.

P L D 2013 Supreme Court 392

Present: Mian Saqib Nisar and Muhammad Ather Saeed, JJ

FARMAN ALI---Appellant

Versus

MUHAMMAD ISHAQ and others---Respondents

Civil Appeal No.635-L of 2012, decided on 7th March, 2013.

(On appeal from the judgment dated 16-7-2010 of Lahore High Court, Multan Bench passed in Civil Revision No.601 of 1993).

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

----S. 115---Revisional jurisdiction---Object and principles---Revisional jurisdiction of court was helpful in curtailing the possibility of frequent remand of cases, as the orders etc. were scrutinized and corrected at an early stage, thus saving time and rescuing the litigant from the menace of delay and inconvenience---High Court should necessarily possess and exercise revisional jurisdiction in order to keep the litigants protected and secured against errors noted in S.115, C.P.C, committed by subordinate courts---Revisional jurisdiction had the aim and object of dispensation of justice.

Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 and Riasat Ali v. Muhammad Jaffar Khan and 2 others 1991 SCMR 496 ref.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Flaws/deficiencies in filing a revision petition---Effect---High Court should not shy away from its duty to examine and look into orders/judgments challenged before it in revisional jurisdiction merely on account of technical flaws in the institution of revision petition or proper documentation attached with the same; because any deficiency in the proper filing of revision petition cannot be termed as insurmountable deficiency or defect, which cannot be cured under the law---Litigants must be provided with sufficient and fair chance to remove such deficiencies, however revision petition should accompany certified copy of the decision under challenge and should be filed within the prescribed period of limitation.

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

----S. 115---Limitation Act (IX of 1908), S. 5---High Court (Lahore) Rules and Orders, Vol. V, Ch. 1, Part A, Rr. 9-A, 9, 6 & 7---Power of office of High Court to return a revision petition for re-filing the same after making up deficiencies therein---Scope---Revision petition filed before High Court suffering from certain deficiencies---Deputy Registrar of High Court returning revision petition for re-filing of the same within specific time period after removal of deficiencies--- Petitioner failing to re-file the revision petition within the said specific time period---Deputy Registrar of High Court requiring petitioner to file an application for condonation of delay in re-filing revision petition---High Court dismissing said application and consequently the revision petition observing that condonation of delay (section 5 of Limitation Act, 1908) was inapplicable to a civil revision petition---Legality---Rule 9 of High Court (Lahore) Rules and Orders Volume V, Chapter 1, Part A authorized Deputy Registrar of High Court to return a revision petition for making up deficiencies therein if it was not in consonance with Rule 6 or 7 of the said Rules, however, it did not empower the Deputy Registrar to refuse to entertain the petition, or in other words to dismiss the petition as having not been validly instituted---In case, however, the deficiency was not corrected by the petitioner and revision petition was not re-filed within the time given by Deputy Registrar, Rule 9-A of the said Rules postulated that a notice should be affixed upon the notice board for such purpose and if within seven days, thereafter, the deficiency was still not made good, the matter should be placed before a Judge of the High Court for an order on a date to be notified by fixing such a petition in the motion cause list---High Court had to decide as to what should be done with such a deficient petition, because the ministerial and administrative staff of the High Court could not be empowered and allowed to decide the fate of the revision petition (even if it was deficient)--- Deputy Registrar had no authority to declare a deficient revision petition, which had been filed within the prescribed period of limitation, as time barred, only because the office objection had not been met in time; he could also not require the petitioner to file an application for condonation of delay---Where the revision petition was filed beyond the period of limitation, the Deputy Registrar could point out to the petitioner such aspect and caution him, but had to fix the matter before the High Court for its decision on the question of limitation leaving it for the petitioner to seek the indulgence of the court on the question of limitation or otherwise---Error had been committed in the present case by the Deputy Registrar when he rendered the revision petition as time barred due to failure of petitioner in making up deficiencies in the time specified by the office and by requiring the petitioner to file an application for condonation of delay---High Court was also in error for simply dismissing the revision petition---Appeal was allowed by the Supreme Court, judgment of High Court was set aside and the matter was remanded to the High Court for decision afresh on merits.

Mst. Sabiran Bi v. Ahmad Khan and another 2000 SCMR 847 rel.

Syed Kabeer Mehmood, Advocate Supreme Court for Appellants.

Mian Allah Nawaz, Senior Advocate Supreme Court and Ahmad Waheed Khan, Advocate Supreme Court On Court's call.

Nemo for Respondents.

Date of hearing: 4th January, 2013.

P L D 2013 Supreme Court 401

Present: Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

DIRECTOR-GENERAL, ANTI-CORRUPTION ESTABLISHMENT, LAHORE and others---Appellants

Versus

MUHAMMAD AKRAM KHAN and others---Respondents

Civil Appeal No.127-L of 2013, decided on 27th February, 2013.

(Against the order dated 30-9-2011 passed by the Lahore High Court, Lahore in Writ Petition No.16970 of 2011).

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

----Ss. 154 & 173--- Penal Code (XLV of 1860), Ss.409 & 109--- Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, abetment, criminal misconduct---Partial quashing of F.I.R.---Scope---High Court partially quashing F.I.R. to the extent of one of the accused after Trial Court had taken cognizance of the case and challan had been submitted---Legality---Partial quashing of an F.I.R. to the extent of some of the accused persons was a legal impossibility---High Court quashed F.I.R. to the extent of accused at a time when challan had already been submitted before the Trial Court and the court had already taken cognizance of the case---When Trial Court had taken cognizance of a case, F.I.R. could not be quashed and the fate of the case and of the accused persons challaned therein was to be determined by the Trial Court itself---Appeal was allowed and order passed by High Court was set aside by Supreme Court.

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

----Ss. 154, 173, 249-A & 265-K--- Quashing of F.I.R. after Trial Court had taken cognizance of the offence---Legality---When Trial Court had taken cognizance of a case, F.I.R. could not be quashed and the fate of the case and of the accused persons challaned therein was to be determined by the Trial Court itself---Accused person in such circumstances, could avail the remedy under Ss.249-A & 265-K, Cr.P.C. to seek his premature acquittal, if the charge was found to be groundless or there was no possibility of his conviction.

Muhammad Azeem Malik, Addl. A.-G. Punjab for Appellants.

Imtiaz A. Shaukat, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos.2 to 12.

Date of hearing: 27th February, 2013.

P L D 2013 Supreme Court 403

Present: Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

DIRECTOR CITY CIRCLE GEPCO LTD. and others---Petitioners

Versus

SHAHID MIR and others---Respondents

Civil Petition No.1889-L of 2011 and Civil Miscellaneous Application No.1945-L of 2011, decided on 12th March, 2013.

(Against the order dated 24-8-2011 passed by the Lahore High Court, Lahore in Writ Petition No.19104 of 2011).

(a) Constitution of Pakistan---

----Art. 175(2)---Ouetta Declaration, 1991 (PLD 1991 Jour. 142)---Jurisdiction of courts---Scope---Sessions Judge passing an order in the assumed capacity of Director Human Rights deriving inspiration from Quetta Declaration, 1991---Legality---Registrar of Lahore High Court requested concerned authorities to take appropriate measures for supplying electric power to courts in the province of the Punjab---Sessions Judge directed concerned electric power company ("company") to give effect to request of Registrar deeming the same to be an "order" of the Lahore High Court---Company filed constitutional petition against order of Sessions Judge which was dismissed on the grounds that it did not disclose a justiciable cause of action; that company was in gross default for not complying with the "order" of the Lahore High Court, and that corrective action should be taken against officer of the company responsible for causing delay in compliance of the order---Validity---Order passed by Sessions Judge was not passed in any legal capacity as it had been passed by him in the (so-called) capacity of Director Human Rights ostensibly deriving inspiration from the Quetta Declaration, 1991---High Court did not appreciate that by virtue of Art.175(2) of the Constitution no court had any jurisdiction save as or might be conferred on it by the Constitution or by or under any law---Capacity of Director Human Rights assumed and exercised by the Sessions Judge in the matter was not conferred upon him by the Constitution or by or under any law and, thus, the company was justified in assailing his order before the High Court---Issues of jurisdiction brought before the High Court were thus justiciable---Request made by Registrar of Lahore High Court to the concerned authorities was not an order of the High Court---Registrar was merely an employee of the court and not the court itself---Direction issued by High Court for taking action against officer of the company responsible was unwarranted in circumstances, as the company was not bound to comply with the request made by Registrar, as such request could not be termed as an order of the Court---Petition for leave to appeal was converted into appeal and allowed and impugned order of High Court was set aside.

(b) Constitution of Pakistan---

----Art. 175(2)---Registrar of High Court making a request to Provincial Chief Secretary (civil servant)---Status of such request---Scope---Such a request could not be termed as on order of the High Court---Registrar of High Court was merely an employee of the court and not the court itself.

Aurangzeb Mirza, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.

Respondent No.1 (In person).

Ch.Muhammad Hanif Khatana, Addl. A.-G. Punjab for Respondent No.2.

Date of hearing: 12th March, 2013.

P L D 2013 Supreme Court 406

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

WORKERS' PARTY PAKISTAN through General Secretary and 6 others---Petitioners

Versus

FEDERATION OF PAKISTAN and 2 others---Respondents

Civil Miscellaneous Application No.64 of 2013 and Civil Review Petition No.191 of 2012 in Constitution Petition No.87 of 2011, decided on 14th March, 2013.

(For Implementation of Judgment dated 8-6-2012, passed by this Court in Constitution Petition No.87 of 2011).

(a) Constitution of Pakistan---

----Arts. 89, 218 & 219---Power of President of Pakistan to issue an Ordinance for purpose of holding general elections---Scope---In view of the importance of holding general elections in the country, the President of Pakistan was always competent to issue an Ordinance to meet the requirement and to fulfil the objects and purposes for which it was to be promulgated.

(b) Constitution of Pakistan---

----Arts. 218(3), 222, 62, 63 & 184(3)---Representation of the People Act (LXXXV of 1976), Ss.103, 104 & 107---Representation of the People (Conduct of Election) Rules, 1977, R.3---Election Commission, duty of---Scope---Nomination papers for candidates of National and Provincial Assemblies---Election Commission making additions/ improvements in nomination papers and getting them printed without getting approval for such additions from the President of Pakistan---Legality---Plea on behalf of Federal Government that under S.107 of the Representation of the People Act, 1976, a request was sent by Election Commission of Pakistan for the amendment of R.3 of the Representation of the People (Conduct of Election) Rules, 1977 but the President of Pakistan had not as yet approved the amendments, therefore, without adhering to the rules, the Election Commission might have not got printed nomination papers as Government had reservations on some of its portions---Validity---Election Commission had made additions in the nomination forms following the command of Art.218(3) of the Constitution as well as keeping in view observations/directions given by the Supreme Court in the cases of Workers' Party Pakistan through Akhtar Hussain and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681)---Election Commission was responsible to arrange, organize and conduct elections honestly, justly, fairly and in accordance with law and emphasis was that corrupt practices should be guarded against---Solemn object, in view of Art.218(3) of the Constitution should be that no corrupt person was allowed to enter in the Parliament, and with such commitment of the Constitution, Election Commission without changing the complexion or contents of R.3 of the Representation of the People (Conduct of Election) Rules, 1977, had made improvements in the pro forma of nominations papers---No hard and fast rule existed for purposes of making improvements in a pro forma of nomination paper, particularly when required object was to enforce Art.218(3) of the Constitution---All the stakeholders i.e. political parties, voters, and the country as a whole expected that representation in the Parliament should be made by honest person(s) who were not polluted by allegation of corruption in any manner, thus, Election Commission in compliance of Art.218 read with Art.222 of the Constitution and Ss.103 & 104 of Representation of the People Act, 1976 as well as the judgment in the case of Workers' Party Pakistan through Akhtar Hussain and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681) had prepared/improved nomination papers for the general elections of National and Provincial Assemblies, in accordance with the Constitution and the law.

(c) Constitution of Pakistan---

----Arts. 62 & 63---Qualification/disqualification of candidate for National or Provincial Assembly---Disclosure of personal information---Scope---Candidate who came forward for election was supposed to provide his complete credentials to the voters enabling them to cast votes in favour of such person who was honest, believed in fairness and was free from any disqualification under Art.63 of the Constitution and was also qualified under Art.62 of the Constitution---Obtaining detailed information about a candidate was essential as on his success he had to represent a constituency on behalf of thousands of elections for a period of five years and he was amongst those responsible for governing the country.

Hamid Khan, Senior Advocate Supreme Court, Bilal Hassan Minto, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Applicant/Petitioners.

Irfan Qadir, Attorney-General for Pakistan for Federation.

Muhammad Munir Paracha, Senior Advocate Supreme Court, Abdul Rehman, Addl. D.G. (Elections) and Sanaullah Malik Director (L) for the ECP.

Date of hearing: 14th March, 2013.

P L D 2013 Supreme Court 413

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Dr. MUHAMMAD TAHIR-UL-QADRI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary M/o Law, Islamabad and others---Respondents

Constitution Petition No.5 of 2013, decided on 13th February, 2013.

(Challenging the Constitution of Election Commission of Pakistan).

(a) Constitution of Pakistan---

----Arts. 213, 218(2)(a), (b) & 184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Chief Election Commissioner and Members of Election Commission of Pakistan---Maintainability---Petitioner unable to establish violation of any of his Fundamental Rights---Effect---Petitioner primarily emphasized that the procedure provided in Arts.213 and 218 of the Constitution with regard to appointment of the Chief Election Commissioner as well as the Members of Election Commission had not been followed in letter and spirit---Petitioner neither listed infraction of any of the Fundamental Rights in the petition nor their enforcement had been sought in the prayer clause; and even during the course of arguments the petitioner failed to identify any of the Fundamental Rights, which might have been violated, thus, one of the fundamental requirements of Art.184(3) of the Constitution, namely, the violation of any of the Fundamental Rights, enabling the Supreme Court to exercise jurisdiction conferred by said Article, was apparently missing in the present petition---Burden of proof was upon the petitioner to demonstrate as to which of his Fundamental Rights had been infringed upon but he failed to point out an infraction of any of his Fundamental Rights---Constitutional petition was dismissed accordingly.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Muhammad Saifullah Khan v. Federation of Pakistan 1989 SCMR 22; Shehla Zia v. WAPDA PLD 1994 SC 693; Yasmin Khan v. Election Commission of Pakistan 1994 SCMR 113; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Wattan Party v. Federation of Pakistan PLD 2006 SC 697 and Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 distinguished.

(b) Constitution of Pakistan---

----Arts. 213, 218(2)(a), (b), 63(1)(c) & 184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Chief Election Commissioner and Members of Election Commission of Pakistan---Maintainability---Bona fide of petitioner---Scope---Supreme Court observed that the country remained in the clouds of extra-constitutional eras from time to time and finally succeeded in establishing a democratic order in the country through the process of last general elections; that democratic system had continued for a period of 5 years, as the Parliament was about to complete its term and registered voters were ready to elect their representatives in the upcoming elections, which were a few months away; that at such critical stage, no objection or reservation had been shown to appointment of the Chief Election Commissioner and Members of the Election Commission by the citizens, registered voters, members of the National and Provincial Assemblies and members of Senate; that even prospective candidates for the forthcoming elections had also not raised a question of public importance for enforcement of any of their Fundamental Rights, either in the Supreme Court or before any of the Provincial High Courts, for the simple reason that the entire nation was ready for the forthcoming elections; that the Election Commission had also geared up the process of elections and statistical pre-poll preparations had almost been completed; that in such a situation, appointments to the Election Commission had been challenged by a person, who though could exercise his own right to vote but was disqualified from contesting elections in view of the bar contained in Art.63(1)(c) of the Constitution; that in a speech delivered by the petitioner he insisted upon delaying the elections, and to achieve such declared agenda of his, the petitioner also led a Long March; that during the proceedings at one stage petitioner claimed that he filed present petition in the nature of quo warranto, despite admitting that he had no objection(s) to the eligibility or competency of the Chief Election Commissioner and the Members of the Election Commission; that such moulded relief of writ of quo warranto sought by petitioner clearly reflected on his bona fides---Supreme Court further observed that petitioner lacked bona fides in approaching the Court under Art.184(3) of the Constitution; that present petition was geared against the Election Commission, an independent institution and creature of the Constitution that ensured the very strength, survival and continuity of the democratic system; that given the fact that it was election year, the importance of Election Commission was highlighted more than ever and Court had to exercise caution so as not to appear to be partaking in placing restrictions upon the independent and constitutional functions of the Election Commission---Constitutional petition was dismissed accordingly.

Workers Party Pakistan v. Federation of Pakistan PLD 2012 SC 681 ref.

(c) Constitution of Pakistan---

----Arts. 213, 218(2)(a), (b), 63(1)(c) & 184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Chief Election Commissioner and Members of Election Commission of Pakistan---Maintainability---Petitioner holding dual citizenship/ nationality---Effect---Petitioner has acquired the citizenship of a foreign country and had taken an oath inter alia to pledge his loyalty and allegiance to the foreign country, and as such this disqualified him from contesting elections to Parliament, in view of the bar contained in Art.63(1)(c) of the Constitution---After acquiring the citizenship of another country and pledging his loyalty to that country, petitioner has lost some of his rights including the right to be elected as Member of Parliament, even though he did not lose his Pakistani citizenship as well as other rights granted under the Constitution and the law, as a consequence of his dual nationality---Although acquisition of nationality of any foreign country was not an impediment by itself in filing a petition under Art.184(3) of the Constitution, but petitioner had failed to make out a case for exercising the discretionary jurisdiction of Supreme Court under Art.184(3) of the Constitution since violation of any of the Fundamental Rights under Chap.1 of Part II of the Constitution had neither been listed in the petition nor established during course of arguments---Petitioner had also failed to prove his bona fides to invoke the jurisdiction of the Supreme Court coupled with the fact that he had no locus standi to claim relief as prayed for in the present petition, inter alia, for the reasons that being a holder of dual citizenship, he was not qualified to contest the election to the Parliament in view of the constitutional bar under Art.63(1)(c) of the Constitution---Constitutional petition was dismissed accordingly.

(d) Constitution of Pakistan---

----Arts. 213, 218(2)(a), (b), 63(1)(c) & 184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Chief Election Commissioner and Members of Election Commission of Pakistan---Maintainability---Laches---Effect---Petitioner (who resided abroad) filed present petition about two months after coming to Pakistan, when the general elections were around the corner---Number of bye-elections had been held under the supervision of incumbent Chief Election Commissioner and the Members of the Commission---National Assembly as well as Provincial Assemblies were about to complete their constitutional terms---Electoral rolls by and large had been completed and as such much water had flown under the bridge---Laches were vital in the present case---After having become fully functional, the Election Commission was headed towards holding elections and no one except the petitioner alone, as a voter, had questioned their appointments---Present petition suffered from laches and thus was not maintainable---Constitutional petition was dismissed accordingly.

State Bank of Pakistan v. Imtiaz Ali Khan 2012 PLC (C.S.) 218; Muhammad Azhar Siddiqui v. Federation of Pakistan PLD 2012 SC 774; Dr.Akhtar Hussain Khan v. Federation of Pakistan 2012 SCMR 455 and Air India Ltd. v. Cochin International Airport Ltd. [(2002) 2 SCC 617] ref.

(e) Constitution of Pakistan---

----Arts. 204(3), 213, 218(2)(a), (b) & 184(3)---Contempt of Court Ordinance (V of 2003), S. 3---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Chief Election Commissioner and Members of Election Commission of Pakistan---Contempt of Supreme Court---Exercise of restraint by the Supreme Court---Petitioner made uncalled for aspersions against members of the Bench during his arguments, which prima facie tantamount to undermine its authority calling for action against the petitioner for contempt of court under Art.204(3) of the Constitution read with S.3 of the Contempt of Court Ordinance, 2003---Supreme Court, however, while exercising restraint, decided not to proceed against the petitioner following the principle that jurisdiction for contempt of court had to be exercised sparingly on case to case basis.

(f) Constitution of Pakistan---

----Art. 51(2)(c)---Electoral Rolls Act (XXI of 1974), S.6---Citizen of Pakistan living abroad holding dual citizenship---Overseas citizen of Pakistan---Right to vote in general elections conducted in Pakistan---Scope---Citizens of Pakistan living abroad, some of whom might be holding dual citizenship, could exercise their right to vote if their names had been incorporated in the electoral rolls---Such right was recognized under the Constitution.

Yasmin Akhtar v. Election Commission of Pakistan 1994 SCMR 113 rel.

Ch. Nasir Iqbal v. Federation of Pakistan (Constitutional Petition No.39 of 2011 etc.) ref.

(g) Constitution of Pakistan---

----Art. 218(3)---Election Commission of Pakistan, duty of---Scope---Election Commission of Pakistan had to conduct/organize elections enabling the people to elect their representatives by means of a free and fair electoral process.

(h) Constitution of Pakistan---

----Art. 63(1)(c)---Disqualification from membership of Majlis-e-Shoora (Parliament)---Person having dual citizenship---Such a person was expressly prohibited from being elected as member of Parliament under Art.63(1)(c) of the Constitution.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan PLD 2012 SC 1089 rel.

(i) Constitution of Pakistan---

----Art. 184(3)---Exercise of jurisdiction by Supreme Court under Art.184(3) of the Constitution---Conditions---Original jurisdiction of Supreme Court [under Art.184(3) of the Constitution] was to be exercised on the availability of two conditions i.e. question of public importance and enforcement of any of the Fundamental Rights, subject to discretion of the Court---Essentially, consideration of the Court remained on the existence of public importance, which was to be interpreted depending upon the particular facts raised before it on a case to case basis.

(j) Constitution of Pakistan---

----Art. 184(3)--- Constitutional petition filed before the Supreme Court under Art.184(3) of the Constitution---Locus standi of petitioner---Scope---Jurisdiction of the (Supreme) Court [under Art.184(3) of the Constitution]could be invoked individually and collectively by citizen(s) who succeeded in establishing his/their locus standi to achieve the purposes envisaged by the Constitution.

(k) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition filed before the Supreme Court under Art.184(3) of the Constitution---Bona fides of petitioner---Scope and proof---Citizen who invoked the jurisdiction of the Supreme Court was bound to satisfy the Court that he had come before the Court with bona fide intentions and therefore, he had locus standi to seek enforcement of the Fundamental Rights in question---For a person to invoke the jurisdiction of Supreme Court as a public interest litigant, for the enforcement of the Fundamental Rights of a group or a class of persons, he must show on the given facts that he was acting bona fide---Court had to decide, on the given facts, whether petitioner was acting bona fide or not---Bona fides had to be apparent or should be shown from the record---Expression 'bona fide', for the purpose of invoking jurisdiction of Supreme Court under Art.184(3) of the Constitution, had to be applied in contradistinction to the expression 'mala fide' because mala fide, if alleged against any person, was to be proven by bringing admissible evidence on record, whereas to prove bona fide, burden was placed upon the person who had approached the Court and persuaded it to exercise jurisdiction.

Shahid Hussain Qureshi v. Manager SBFC 2001 YLR 454; Waqar Haider Butt, Judge Family Court 2009 SCMR 1243 and Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 rel.

Ashok Kumar Pandey v. State of West Bengal AIR 2004 SC 280 and Dr. Akhtar Hussain Khan v. Federation of Pakistan 2012 SCMR 455 ref.

(l) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition filed before the Supreme Court under Art.184(3) of the Constitution---Nature of proceedings of the petition---Scope---Article 184(3) of the Constitution did not mention as to what proceedings should be followed---Nature of proceedings must be judged in light of the purpose, that is, the enforcement of any of the Fundamental Rights---Article 184(3) of the Constitution provided abundant scope for the enforcement of Fundamental Rights of an individual or a group or a class of persons, however, it would be for the Court to generally lay down the contours in order to regulate the proceedings initiated by a group or class from case to case.

(m) Pakistan Citizenship Act (II of 1951) ---

----S. 14---Constitution of Pakistan, Art.184(3)---Person having dual citizenship---Right of such person to enforce his rights by way of constitutional petition before the Supreme Court---Scope---Person who had acquired dual citizenship could claim his individual rights or other private rights and could also sue for the enforcement of such rights.

(n) Words and phrases---

----"Bona fide"---Definition.

Corpus Juris Secondum p.387; Chambers 20th Century Dictionary; Law Dictionary, Mosley and Whitley; Stround's Judicial Dictionary and Concise Law Dictionary of Osborn rel.

(o) Constitution of Pakistan---

----Arts. 184(3) & 199---Constitutional petition, filing of---Limitation period---Laches---Scope---Constitutional bar of limitation was not applicable to the proceedings under Art.199 or Art.184 of the Constitution, however, insistence was placed on initiating proceedings promptly and within a reasonable time to avoid the question of laches.

(p) Pakistan Citizenship Act (II of 1951)---

----S. 14---Constitution of Pakistan, Arts. 184(3) & 199---Constitutional petition filed by a person having dual citizenship---Maintainability---Acquisition of nationality of any foreign country was not an impediment by itself in filing a petition under Art.184(3) or 199 of the Constitution.

Petitioner in person.

Irfan Qadir, A.G. for Pakistan on Court Notice and for the Federation (Respondents Nos.1 & 3).

Muhammad Munir Peracha, Senior Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record and Abdul Rehman, Addl. D.G. Legal for Election Commission.

Muhammad Latif Qureshi, Joint Secretary, National Assembly for Parliamentary Committee.

Dates of hearing: 11th to 13th February, 2012.

P L D 2013 Supreme Court 443

Present: Iftikhar Muhammad Chaudhry, C.J. Jawwad S. Khawaja, Khilji Arif Hussain, Amir Hani Muslim and Ejaz Afzal Khan, JJ

SUO MOTU CASE NO.16 OF 2011 ALONG WITH CMAs

(Implementation proceedings of Judgment of this Court reported as PLD 2011 SC 997)

Suo Motu Case No. 16 of 2011 along with CMAs., Crl. O. Petition No. 96 of 2012; Crl.O. Petition No. 29 of 2013; Suo Motu Case No. 04 of 2009 and Civil Petition No. 506-K of 2009, decided on 22nd March, 2013.

(a) Constitution of Pakistan---

----Art. 184(3)---Suo motu action regarding law and order situation in Karachi---Implementation of the judgment of the Supreme Court in the case of Watan Party v. Federation of Pakistan (PLD 2011 SC 997)---"No Go Areas" in Karachi city, definition of---Scope---"No Go Area" did not mean physical obstruction on the entry point of a particular area, thereby not allowing uniformed personnel or civilian to enter and walk through conveniently, but in substance it meant the areas in which writ of the State was challenged---Record, in the present case, established that 'No Go Areas' did exist in Karachi city---Supreme Court directed that the Inspector General of Police (IGP) himself and if necessary the Director General (DG) Rangers should personally lead the operation into such areas to make Karachi free of 'No Go Areas' and a peaceful city to protect and provide a congenial atmosphere free from hold of the criminals so that the (citizens) might live peacefully and also participate in forthcoming general elections, and that such task had to be completed within a period of two weeks.

Watan Party v. Federation of Pakistan PLD 2011 SC 997 ref.

(b) Constitution of Pakistan---

----Arts. 9, 24 & 184(3)---Suo motu action regarding law and order situation in Karachi---Implementation of the judgment of the Supreme Court in the case of Watan Party v. Federation of Pakistan (PLD 2011 SC 997)---Police and Rangers force, duty of---Scope---Supreme Court observed that any further failure to protect the life and property of the citizens was likely to cause unprecedented disaster, therefore, all efforts were to be made to avoid the same in the interest of the country; that law enforcing agencies both Police and Rangers had been directed by Supreme Court to protect the life and property of the citizens but unfortunately the law and order situation was further deteriorating day by day in the city; that both said forces were to be blamed for such a situation because it was their constitutional, legal and moral duty to take care of the high-handedness and exploitation of the citizens of the city by the criminals; that ordinary citizens wanted security of life and property from the State, law enforcing agencies and the Executive and such demand of their's was increasing day-by-day as the rate of crime had increased whereas the relevant forums had no control over it and no solution had been provided by the State functionaries; that the Provincial Government/State should have fulfilled their constitutional duty but it was the other way round as there was no improvement in the law and order situation and lives of citizens were not being protected and that general elections/polls were due in the coming month, therefore, it was duty of the State/Chief Secretary, Inspector General of Police (IGP) and Director General (DG) Rangers to take all steps to ensure that life and property of the citizens were secured and protected.

(c) Civil Servants Act (LXXI of 1973)---

----S. 14---Constitution of Pakistan, Art. 184(3)---Suo motu action regarding law and order situation in Karachi---Implementation of the judgment of the Supreme Court in the case of Watan Party v. Federation of Pakistan (PLD 2011 SC 997)---Police officers re-employed/inducted in the police department after their retirement---Legality---Re-employment in disciplinary force like the police or for that matter in any other department had to be made subject to S.14 of the Civil Servants Act, 1973, read with instructions contained in Estacode, Volume 1, Edition, 2007 under the heading "Re-Employment"---Summaries vide which police officers were re-employed after retirement did not mention a single word, showing that their services were hired in the public interest---Prima facie, re-employment of police officers in question was not in conformity with the law and the judgment of the Supreme Court given in Suo Motu Case No.24 of 2010 (PLD 2011 SC 277).

Suo Motu Case No.24 of 2010 PLD 2011 SC 277 ref.

(d) Civil Servants Act (LXXI of 1973)---

----S. 14---Employment after retirement---Scope---Promotion of an employee was not to be blocked to accommodate a retired officer, however, if the right of promotion was not blocked by re-employment, then such powers could be exercised, but only in exceptional cases.

(e) Constitution of Pakistan---

----Art. 184(3)---Suo motu action regarding law and order situation in Karachi---Implementation of the judgment of the Supreme Court in the case of Watan Party v. Federation of Pakistan (PLD 2011 SC 997)---Project Director, Information Technology (IT) appointed on contract against a vacant post of Superintendent of Police (BPS-18) and allowed to draw salary equal to the post of Superintendent of Police by abolishing three posts of constables---Legality---Appointment in question was not in accordance with law because against the post in question, a Deputy Superintendent of Police (DSP) in regular service was required to be promoted as Superintendent of Police---For such a position the police department or Provincial Government might create a post of Project Director, IT Department and instead of accommodating the officer in question against the post of a police officer, she (officer in question) might be declared holder of an independent post against the budgetary provision of the police department--- Supreme Court directed that Provincial Government might, if feasible, create a separate post of Project Director, IT in the police department and such post would not be converted into any other post of regular police service nor the incumbent should be posted against any of the sanctioned posts of police department.

(f) Sindh Public Property (Removal of Encroachment) Act (XVIII of 2010)---

----Ss. 3, 12 & 25---Constitution of Pakistan, Art. 184(3)---Suo motu action regarding law and order situation in Karachi---Implementation of the judgment of the Supreme Court in the case of Watan Party v. Federation of Pakistan (PLD 2011 SC 997)---Land grabbing and unauthorized encroachment upon Government land--- Supreme Court observed that it was quite possible to identify the lands, which had been grabbed/encroached in an unauthorized manner; that it was not understandable how cases registered under the Sindh Public Property (Removal of Encroachment) Act , 2010 could be disposed of in "A" or "C" class---Supreme Court directed that (Provincial) Board of Revenue should collect information on the basis of satellite imagery for whole of the Karachi to identify the encroachment of the lands; that concerned official of Encroachment Cell should submit his report within 7 days stating as to whether the encroachments by the land-grabbers had been cleared within his jurisdiction; that such report should state details of each case, which was disposed of either as 'A' or as 'C' class during investigation, and the cases which were quashed; that the Prosecutor-General might also submit the details of such cases with his comments separately stating as to whether any further action in such behalf had been taken or not and if the cases had failed in court for want of sufficient evidence, he should fix responsibility on the investigation team or other concerned, and he should further point out whether the properties in possession of encroachers/land-grabbers had been retrieved or were still in their unlawful possession; that regarding land/revenue record of 872 Dehs, which was allegedly burnt, reconstruction of such record should only be considered, if it was established that the record actually had been destroyed, burnt etc.; that (Provincial) Board of Revenue should place on record evidence to establish that the revenue record in different districts was burnt and matter was reported to the respective police stations by giving details of the relevant record; that for purposes of reconstruction of the record relevant documents of concerned Land Record Office should be considered, and in the absence of such documents record should not be reconstructed from the record of officer of Survey Superintendent as well as Micro Filming Unit or from the office of Sub Registrars etc., because there was likelihood that the Government property might be claimed by those persons, who were not the owners of such land; that (Provincial) Board of Revenue should put up details of the claims submitted by the alleged owners, allottees, lessees of the agricultural properties, filed before the Revenue authorities, Mukhtarkar etc. during re-construction of the revenue record, which was allegedly burnt---Supreme Court further directed the Provincial Board of Revenue to determine that out of estimated area of 6,81,000 acres of land in 93 Dehs of all the five districts of Karachi, how much area was occupied by authorized owners/allottees/leaseholders, and the law under which they were enjoying such status; to determine the status of remaining area of land; to determine whether the government functionaries had control over the entire area of land owned by the Provincial and or Federal Government; to determine whether any action to retrieve the property had been taken against unauthorized persons; to determine as to how many cases had been filed against the land grabbers/encroachers before the Tribunal or Special Court constituted under the Sindh Public Property (Removal of Encroachment) Act, 2010 and the present status of such cases, and to determine whether the competent authority had taken steps to approach the Tribunal under the said Act for retrieval of the properties which had been forcibly encroached upon by the land grabbers.

(g) Sindh Forest Act (XVI of 1927)---

----S. 27---Constitution of Pakistan, Art. 184(3)---Suo motu action regarding law and order situation in Karachi---Implementation of the judgment of the Supreme Court in the case of Watan Party v. Federation of Pakistan (PLD 2011 SC 997)---Allegation was that an area of land meant for reserved forest was de-notified by the Land Utilization Department and allotted to fictitious persons on lease---Land Utilization Department de-notified the forest lands, which were not actually under the Forest Department---Subsequently land was transferred on lease in favour of different persons---Prima facie, de-notifying reserved forest was contrary to the provision of S.27 of Sindh Forest Act, 1927---No notification was issued by the Land Utilization Department for the change of status of the land in question---Government functionaries being the custodians of its properties were bound to follow a legal and transparent procedure for disposal of the lands owned by the Forest Department or Revenue Department, but no such procedure was followed in the present case and the lands were allotted in favour of 100 persons in an arbitrary manner---Supreme Court directed that concerned District and Sessions Judge should appoint a judicial officer not below the rank of Senior Civil Judge, who should be required to visit the site in presence of the concerned President of District Bar Association, and prepare a report indicating the status of land on spot and state whether land was being utilized by any person for any purpose; that the Senior Civil Judge should notify his proposed visit to the concerned Deputy Commissioner who should accompany him with relevant revenue record to identify the land; that Member of Land Utilization Department should visit the site independently and submit his report, and if any construction work had commenced over there, he should submit details of the persons, company etc. who had occupied the same for utilization.

(h) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10---[as amended by the Colonization of Government Lands (Sindh Amendment) Act (V of 2009)]---Constitution of Pakistan, Art.184(3)---Suo motu action regarding law and order situation in Karachi---Implementation of the judgment of the Supreme Court in the case of Watan Party v. Federation of Pakistan (PLD 2011 SC 997)---Allotment of Government land on lease at rates lower than the market rates---Government property had been allotted or transferred on lease etc. prima facie without following the principle of transparency---Valuable property, price of which ran into billions, had been transferred on throw away prices in the names of persons of choice---542 allottees succeeded in getting the allotments in their favour under the policy on the basis of statement of conditions mentioned therein and obtained land at rates lower than the market rates---Supreme Court directed that the Chief Secretary should constitute a Commission headed by Consultant of Revenue Department to determine as to whether in terms of lease agreement under the statement of policy issued by the Provincial Government under S.10 of Colonization of Government Lands (Punjab) Act, 1912, the allottees or the lessees who got allotments in their favour and to whom such properties had been transferred up to 15-3-2013, had utilized the same as per the terms and conditions within the stipulated period; to determine as to whether in terms of S.10(5) of the Colonization Act, any action had been taken by reversing the entry in their names and whether the allotment or lease in respect of land in question from 2006 onward up to 15-3-2013 in Karachi Division had been made in a transparent manner on receiving the market price following the phenomena of willing seller and willing buyer; to determine if any irregularity had been committed, and if it was then to fix responsibility on the officer responsible; to determine whether granting lease or making allotments of government lands in Karachi in a transparent manner could prove to be helpful in the future for the development of the city, and to determine any other issue, which the Commission considered needed to be addressed.

Syed Mohsin Imam, DAG for Federation of Pakistan (on Court Notice

Abdul Fatah Malik, AG. Sindh, Muhammad Shahadat Awan, PG, Muhammad Sarwar Awan, Addl. AG, Adnan Karim, AAG, Sindh, Arif Ahmed Khan Incharge Chief Secretary/Additional Secretary P&D, Muhammad Naseer Jamali, Additional Chief Secretary (Services) for Government of Sindh.

Shah Khawar, ASC, Ghulam Shabbir Shaikh, Acting IGP Zakir Hussain, Addl. IGP, Rasool Bux, IGP (Special Branch). Capt (R) Tahir Naveed, DIG East, Zafar Abbas Bukhari, DIG West, Shahid Hayyat, DIG, South, Ali Sher Jakhrani, AIG Legal, Farooq Ahmed Awan, SSP, SIU, Niaz Ahmed Khosa, SSP, AVCC, Maqsood Ahmad, SP, Najam Tareen S.P, Irfan Bahadur, SP (Anti-Encroachment Force) for Sindh Police.

Capt. (R) Salman Syed Muhammad, DIG., Rasool Bux Saand, DIG, Comdr (R) Shoukat Ali Shah DIG., Lt.-Col. (R) Nadeemullah Qazi DIG, Lt. Col. (R) M.A. Wahid Khan, SP, Manzoor Ahmed Mughal DIG, Mrs. Tabassum Abbasi, Project Director, Mohib Ali, SP, Muhammad Hassan Dal, SP, Mirza Abdul Majeed, SP, Syed Sahib Ali Shah, DSP, Anwar Alam Subhani, PDSP, Rehmatullah, DSP, Fateh Muhammad, DSP and Saad Thaheem for Sindh Police Officers on Contract basis.

Yawer Farooqui, ASC, Muhammad Ahmed Pirzada, ASC with Shahzar Shamoon, Secretary, Nazar Mohammad Leghari, Consultant Syed Zulfiqar Ali Shah, Member, Saqib Soomro, Member L.U., Nawaz Sahu, DC Thatta, Kanwar Ali Leghari, DC West, Qazi Jan Muhammad, D.C. Malir and Mir Laiq Ali, Office Superintendent LU for Board of Revenue.

Shahid Anwar Bajwa, ASC with Major Ashfaque Ahmed, DA JAG, for DG Rangers.

Syed Mehmood Akhtar Naqvi (Applicant in C.M.A. No.148-K/2013), Fareed Ahmed Arain (Applicant in C.M.A. No.148-K/2013), Moulana Orangzeb Farooqui (Applicant in C.M.A. No.108-K/2013), Mohammad Ismail Shaheedi (Applicant in C.M.A. No.179-K/2013) Maqsood Ahmad, SP (Applicant in C.M.A. No.487-K/2013) and Ali Haider, Inspector (Applicant in C.M.A. No.390-K/2013) Applicants.

Date of hearing: 22nd March, 2013.

P L D 2013 Supreme Court 472

Present: Nasir-ul-Mulk, Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

Rao ABDUL JABBAR KHAN---Petitioner

Versus

LAHORE HIGH COURT, LAHORE through Registrar---Respondent

Criminal Petition No.469 of 2012, decided on 8th April, 2013.

(a) Expunction of remarks from judgment---

----Adverse remarks by High Court in its judgment against member of subordinate judiciary accusing him for "misusing his judicial powers" etc.---Trial Judge (petitioner) convicted accused persons under S.396, P.P.C. and sentenced each of them to death---High Court acquitted accused persons of the charge taking strong exception to the judgment passed by Trial Judge mainly on the grounds that there was no direct evidence available on the record against the accused persons; that the attending circumstances of the case had not received any corroboration from any independent source; that the trial Judge had exclusively relied upon opinion of the investigating officers who had conducted the investigation in a dishonest manner, and that the heirs of the deceased had made statements in favour of the accused persons during the course of the trial---High Court observed in its judgment that the Trial Judge had "acted with extreme high handedness" and had misused his judicial powers; that the sentences passed by the Trial Judge were quite "harsh" which did not appeal to the mind of a person of ordinary prudence and, thus, he was either incapable to adjudicate sessions cases or his integrity was doubtful as a judicial officer---High Court issued a direction to the Registrar of the High Court to place its findings on the personal file of the Trial Judge so that the matter could be taken up on the administrative side---Validity---High Court was not justified in observing that no direct evidence was available on the record regarding involvement of the accused persons in the offence inasmuch as a prosecution witness had categorically stated before the Trial Court that one of the accused had fired a shot at the deceased and the said witness claimed to have witnessed the firing of the shot---Such evidence was definitely a direct piece of evidence at least against one of the accused persons---During the course of investigation many recoveries had allegedly been affected from the possession of the accused persons and for reasons recorded by the Trial Judge in his judgment, such recoveries had been believed by him and, thus, it could not have been observed by the High Court, that no corroboration was available on the record from any independent source---High Court however, could have agreed or disagreed with the Trial Judge vis-a-vis the evidentiary worth and value of such corroboration available on the record---Trial Judge had mentioned in his judgment that although he was of the considered view that opinion of an investigating officer regarding guilt or innocence of an accused person was inadmissible in evidence being irrelevant but he was constrained to rely upon such opinion on the basis of a judgment (precedent) rendered by the High Court---Despite his opinion being otherwise, Trial Judge had only extended deference to a judgment (precedent) of the High Court, which although being bad law, was still binding upon the Trial Judge by virtue of Art. 201 of the Constitution---Obedience and deference depicted by the Trial Judge could not be taken an exception to by the High Court, for recording harsh observations against his conduct and for commenting upon his integrity or capacity as a judicial officer---High Court also took exception to the fact that Trial Judge had not given importance to statements of some prosecution witnesses which were favourable to accused persons, but High Court ought to have appreciated that the offence under S.396, P.P.C. was not a compoundable offence and, thus, any compromise between the accused persons and the heirs of the deceased was of little consequence---Circumstances of the case showed that the High Court was not justified in making the observations against the Trial Judge and, therefore, the direction issued by it to the Registrar of High Court, regarding placing of said observations on the personal file of the Trial Judge so that disciplinary proceedings could be taken against him was uncalled for---Petition was converted into an appeal and allowed and consequently (adverse) observations and direction passed by the High Court were expunged from its judgment.

Altaf Hussain and 4 others v. The State PLD 2000 Lah. 216 ref.

(b) Constitution of Pakistan---

----Art. 201---Judgment of the High Court---Binding effect---Judgment of High Court was binding upon the presiding officer of a court which was subordinate to the said High Court.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Petitioner.

Respondent in person.

Asjad Javed Ghurral, Additional Prosecutor General, Punjab for the State.

Date of hearing: 8th April, 2013.

P L D 2013 Supreme Court 478

Present: Main Saqib Nisar and Iqbal Hameedur Rahman, JJ

NASRULLAH KHAN and others---Petitioners

Versus

MUKHTAR-UL-HASSAN and others---Respondents

Civil Petition No.2435-L of 2012, decided on 15th March, 2013.

(Against the judgment dated 19-9-2012 of the Lahore High Court, Lahore passed in Writ Petition No.22320 of 1996).

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

----S. 12(2)---Application under S.12(2), C.P.C.---Forum---Scope---Such application was to be filed before the court which passed the final judgment---"Final judgment"/decree/order---Scope---Final decree/order of the last court in the series, even if such decree was of affirmation, should be considered and treated to be final judgment/decree/order in terms of S.12(2), C.P.C. for approaching the relevant forum---Where the decree/order of a forum below had been affirmed by the higher forum on merits, both on points of fact and law, it should be such decree/order (of higher forum) which attained the status of final decree-order within the purview of S.12(2), C.P.C.---Where a decree/order has been modified or reversed by the Appellate or Revisional Court, it shall be such decree/order (of Appellate or Revisional Court), which will be final in nature for the purpose of S.12(2), C.P.C. and accordingly application could only be initiated before such forum which had altered the verdict.

Muhammad Aslam (deceased) through L.Rs. and others v. Molvi Muhammad Ishaq (deceased) through L.Rs. 2012 SCMR 147; Sarfraz v. Muhammaad Aslam Khan and another 2001 SCMR 1062; Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCMR 1516; Muhammad Yousaf through Legal Heirs and others v. Noor Din and others PLD 2002 SC 391 and Abid Kamal v. Mudassar Mustafa and others 2000 SCMR 900 distinguished.

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

----Ss. 2(2), 96 & 115---Merger of decree, principle of---Scope---When a judgment and decree of a court below was assailed in appeal or revision before the higher forum and it was affirmed by such (higher) forum, the decree/order of the forum below merged into the decree of the higher forum, meaning thereby, that it was integrated, implanted, inculcated, infixed and instilled into the decree of the higher forum and became the decree/order of the higher forum for all legal intents and purposes.

Maulvi Abdul Qayyum v. Syed Ali Asghar shah and 5 others 1992 SCMR 241 ref.

Ahmed Waheed Khan, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioners.

Qasim Haroon Cheema son of Respondent No.2 for Respondent.

Date of hearing: 15th March, 2013.

P L D 2013 Supreme Court 482

Present: Iftikhar Muhammad Chaudhry, C.J., Amir Hani Muslim and Sh. Azmat Saeed, JJ

Mian NAJEEB-UD-DIN OWASI and another---Appellants

Versus

AMIR YAR WARAN and others---Respondents

Civil Miscellaneous Application No.1712 of 2013 in Civil Appeal Nos.191-L & 409 of 2010, decided on 1st April, 2013.

(For implementatin of judgment of this Court passed in Civil Appeal No.409 of 2010 titled Muhammad Rizwan Gill v. Nadia Aziz and others regarding initiation of action against those who were involved in corrupt practices of submitting bogus degrees at the time of getting of their nomination papers during the election of 2008).

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

----Ss. 78(3)(d), 12 & 14---Constitution of Pakistan Arts. 62, 63 & 218(3)---Implementation proceedings of the judgment of the Supreme Court in the case of Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828---Members of National and Provincial Assemblies and the Senate who had submitted bogus/fake degrees (educational qualifications) at the time of getting their nomination papers during the general elections held in 2008---Duty of Election Commission of Pakistan to de-notify such Members---Scope---Supreme Court observed that when a Member of the Parliament was disqualified, before or after the election, on the account that he made a false declaration on his/her nomination form (stating) that he fulfilled the conditions laid down under Arts.62 and 63 of the Constitution, he would have no right to hold office as a Parliamentarian/Member of National Assembly/Provincial Assembly or the Senate, and in such a situation it was obligatory upon the Election Commission of Pakistan to proceed against such member by de-notifying him retrospectively, that once a person was disqualified on the basis of his own declaration under his signature, he could not plead or take that stand that as his prosecution was pending, therefore, he might not be de-notified, that notwithstanding the fact that condition of being a graduate or having a degree of equal requisite academic skills was not available (i.e. applicable) after the general elections of 2008, yet if a candidate had declare himself to be a graduate, but it was subsequently found that he was not, then he would be liable to face the consequences under Arts.62 and 63 of the Constitution or other relevant provisions of the Pakistan Penal Code, 1860; that while making declarations in the nomination papers, a candidate must provide a crystal clear statement about his credentials and antecedents, therefore, whatever a candidate possessed in terms of academic qualification, bank credits and taxes etc. he should declare each and everything required for the qualification to contest the election; that no period of limitation was relevant for declaring a person to be disqualified because such disqualification was suffered at the time when Member had filed the nomination papers by making a declaration, while having a fake degree in his hand; that regarding cases of Members which had been closed pursuant to their resignation or due to decision of different courts, or due to the condition of (bachelor's) degree being lifted, or because of other different grounds, such cases had to be dealt with (by the Election Commission) in accordance with the law and observations of the present case.

Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828 and Muhammad Nasir Mahmood and others v. Federation of Pakistan through Secretary M/o Law. PLD 2009 SC 107 ref.

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

----Ss. 78(3)(d) & 14---Higher Education Commission Ordinance (II of 2002), S.10---Constitution of Pakistan, Arts.62, 63, 218(3)---implementation proceedings of the judgment of the Supreme Court in the case of Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828---Verification of degrees (educational qualifications) of Members of National and Provincial Assemblies and the Senate submitted during the general elections held in 2008---Members to whom Higher Education Commission had issued process through the Election Commission of Pakistan to verify their degrees but who had given no response---Effect---Supreme Court directed that Higher Education Commission and Election Commission of Pakistan should provide such Members another opportunity to get their degrees verified on or before 5-4-2-13; that if declaration of any such Member was found to be incorrect then their disqualification would commence from the date when the notification declaring them to be a successful candidate was issued by the Election Commission of Pakistan; that the Election Commission of Pakistan should inform the Returning Officers before whom such Members might have filed nomination papers (for the upcoming elections), to give their decision in respect of their educational qualifications after receipt of decision by the Higher Education Commission, and similar exercise was to be put into effect in respect of Parliamentarians whose cases had been closed.

Nemo for Appellants

Nemo for Respondents

On Court Notice.

Ishtiaq Ahmed Khan, Secretary and Abdul Rehman Khan, Addl. DG(L) for ECP.

Dr. Javed R. Laghari, Chairman for HEC.

Muhammad Akram Shaikh, Senior Advocate Supreme Court (on behalf of Ch. Nisar Ali Khan in CMA 1715 of 2013), Voluntarily Appeared.

Date of hearing: 1st April, 2013.

P L D 2013 Supreme Court 489

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

HASNAIN NAWAZ KHAN---Appellant

Versus

GHULAM AKBAR and another---Respondents

Civil Appeal No.568-L of 2012, decided on 25th February, 2013.

(Against the judgment dated 29-6-2010 of the Lahore High Court, Lahore passed in Writ Petition No.15800 of 2008).

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

----S. 24, first proviso---Suit for pre-emption---Deposit of Zar-e-Soem by pre-emptor---Limitation period---Discretion of court---Scope---Trial Court was obliged and duty bound to require the pre-emptor to deposit with the Court 1/3rd of the sale price of the property pre-empted---Period within which such amount could be ordered to be deposited was left to the discretion of the court, which discretion was not unbridled, rather was circumscribed by a span of 30 days from the date of institution/filing of the suit---Court should provide adequate time to the pre-emptor to make the deposit, but under no circumstances it had the discretion to allow the pre-emptor to make the deposit beyond the period of 30 days from the filing of the suit---Even where the court on account of omission or some lapse failed to specify the time in such behalf, it shall be deemed that full 30 days period had been allowed by the court to the pre-emptor to make the deposit, and not withstanding such omission/lapse, it would be the duty of the pre-emptor to make the deposit within a period of 30 days from the institution of the suit.

(b) Limitation---

----Limitation period fixed by a statute---Power of courts to extend such period---Scope---Where the time (period) had been fixed by a statute, the court had no power and discretion at all to enlarge/extend such time (period), unless it was provided otherwise and it was permissible by or under the law---Court could, however, extend the time (period) in appropriate cases, where it had been fixed by the court in its discretionary power.

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

----S. 24, second proviso---Suit for pre-emption---Deposit of Zar-e-Soem---Sale price of suit property not mentioned in the sale deed/mutation---Assessment of probable value of suit property by the court for purpose of depositing Zar-e-Soem---Scope---Where no sale price was mentioned in the sale deed/mutation and pre-emptor had set out the probable value of suit property in his plaint, the pre-emptor should append evidence/material with his plaint in order to enable the court to assess the probable value---Court on the basis of material placed on record by the pre-emptor, might, if satisfied that the price propounded by the pre-emptor was ostensibly correct, either fix the same as the value of suit property or determine any other amount, which in the facts of the case could justifiably and reasonably be the probable value---Court could also issue a notice to the vendee for purpose of determining probable value of suit property and upon hearing both the sides, could fix the probable value on the basis of material brought from both sides.

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

----S. 24, first and second proviso---Suit for pre-emption---Deposit of Zare-e-Soem---Sale price of suit property not mentioned in the sale deed/mutation---Assessment of probable value of suit property by the court for purpose of depositing Zar-e-Soem---Scope---Where no sale price was mentioned in the sale deed/mutation it was mandatory and imperative for the court to determine the probable value of suit property and pass an order for depositing Zar-e-Soem within the prescribed period of time.

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

----S. 24, first and second proviso---Suit for pre-emption---Deposit of Zar-e-Soem---Sale price of suit property mentioned in the sale deed/mutation challenged by the pre-emptor as being inflated/exaggerated---Assessment of probable value of suit property by the court for purpose of depositing Zar-e-Soem---Principles---Discretion of court---Scope---Court was conferred with the discretion to fix the probable value of suit property---Such exercise of discretion had to be in consonance with the judicial norms and should not be exercised whimsically, arbitrarily, capriciously, subjectively and against the material on record---Court should not venture to fix the probable value of suit property on the basis of mere bald and unsubstantiated stance of pre-emptor that the price of suit property was inflated, because possibility could not be ruled out that a buyer might agree to pay more than the market value of a property due to a specific need of his or because of the location of the property etc.---Price given in the sale deed/mutation on the basis of which the parties (to the sale) had paid the stamp duty, taxes and other dues and fees for transfer, should sparingly be interfered with unless the court was convinced on the basis of material placed before it that the price mentioned in the sale deed/mutation was inconceivably high and most improbable---Where the court did interfere it had to pass a reasoned order---When material of unimpeachable and most credible nature was not forthcoming from the plaintiff side, it would be safer course to adhere to the price mentioned in the sale deed/mutation for the purpose of depositing Zar-e-Soem.

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

----S. 24---Suit for pre-emption---Deposit of Zar-e-Soem by pre-emptor---Purpose---Law had imposed a condition on the pre-emptor to deposit Zar-e-Soem to prevent mischievous pre-emption suits; to check the bona fides of the pre-emptor and to save the vendee from mala fide pre-emption action.

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

----Ss. 24, 27 & 28---Suit for pre-emption---Court determining probable value of suit property for purpose of depositing Zar-e-Soem---Market value of suit property subsequently determined by court under Ss.27 and 28 of Punjab Pre-emption Act, 1991 different than the probable value determined earlier---Effect---Amount of Zar-e-Soem deposited by the pre-emptor could be adjusted towards the final price settled by the court in terms of Ss.27 and 28 of Punjab Pre-emption Act, 1991, and pre-emptor was entitled to get a refund of any excess paid by him.

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

----S. 24---Suit for pre-emption---Deposit of Zar-e-Seom by pre-emptor---Limitation period---Scope---Probable value of suit property determined by the court for purpose of depositing Zar-e-Soem challenged by the pre-emptor before Revisional/Appellate Court---Question as to whether statutory period of 30 days for depositing Zar-e-Soem would continue during such period (of challenge)---Where pre-emptor had challenged the probable value of suit property determined by the court, and in the process prescribed period of 30 days elapsed and deposit of Zar-e-Soem was not made, the suit should be dismissed as per S.24(2) of the Punjab Pre-emption Act, 1991, however if (Revisional/Appellate Court) suspended order of Trial Court, the time period would stop, and on the final decision of the (Revisional/Appellate) court, the time would automatically start from where it stopped---Where probable value of suit property determined by Trial Court was upheld or some modification was made in it, the pre-emptor would not be entitled to any further/fresh time, rather he would be bound to deposit the amount of Zar-e-Soem within the unexhausted period left with him out of the 30 days statutory period provided for such purpose.

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

----S. 24(2)---Suit for pre-emption---Deposit of Zar-e-Soem by pre-emptor---Limitation period---Scope---Pre-emptor challenged sale price of suit property mentioned in the sale deed/mutation claiming that the same was inflated---Trial Court determined probable value of suit property for purpose of depositing Zar-e-Soem---Pre-emptor challenged value determined by Trial Court before Revisional Court, which remanded the matter back to Trial Court to determine the probable value of suit property and for reassessment of Zar-e-Soem---High Court set aside order of Revisional Court and restored that of the Trial Court---Effect---Trial Court had exercised its discretion to fix the probable value of the suit property for purpose of depositing of Zar-e-Soem---Statutory period for depositing Zar-e-Soem was 30 days, and assuming probable value of suit property determined by Trial Court was incorrect and case was rightly remanded by the Revisional Court, after the order of High Court, the order of Trial Court resurrected, i.e. it re-emerged and became operative at once, therefore, the pre-emptor should have deposited the amount of Zar-e-Soem within the remaining days which were left out of the statutory period of 30 days---Even if no days were left and there was no fault on part of the pre-emptor, he could have deposited the amount the very next day---Pre-emptor being aggrieved of the order of the High Court, should have deposited the amount of Zar-e-Soem as fixed by the Trial Court and approved by the High Court and then he should have approached the Supreme Court to get the order suspended in order to save himself from the consequences of S.24(2) of the Punjab Pre-emption Act, 1991---In the event of a favourable decision from the Supreme Court, pre-emptor could have always sought refund of any excess amount paid by him or adjustment of the same towards the pre-emption money---Since pre-emptor had not complied with S.24(2) of the Punjab Pre-emption Act, 1991, his suit for pre-emption was liable to be dismissed --- Appeal was allowed accordingly.

Zafar Iqbal Chohan, Advocate Supreme Court for Appellant.

Zahid Hussain Khan, Advocate Supreme Court for Respondent No.1.

Ahmed Waheed Khan, Advocate Supreme Court and Kh. Saeed-uz-Zafar, Advocate Supreme Court as Amicus Curiae.

Date of hearing: 25th February, 2013.

P L D 2013 Supreme Court 501

Before Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Sh. RIAZ-UL-HAQ and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Ministry of Law and others---Respondents

Constitutional Petitions Nos.53 of 2007 and 83 of 2012, decided on 9th January, 2013.

(a) Constitution of Pakistan---

----Art. 9---Access to justice, right of---Scope---Right of access to justice was a well-recognized inviolable right enshrined in Art.9 of the Constitution and was equally found in the doctrine of "due process of law"--- Such right 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.

(b) Constitution of Pakistan---

----Arts. 9 & 175(3)---Access to justice and independent judiciary, right of---Scope---Right of access to justice and independent judiciary was one of the most important rights of the citizens and if there was any threat to the independence of judiciary, it would tantamount to denial of access to justice, which was a fundamental right under Art.9 of the Constitution.

Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923 ref.

(c) Constitution of Pakistan---

----Art. 184(3)---Public interest litigation, nature of---Jurisdiction of Supreme Court---Scope---Public interest litigation was inquisitorial in nature and not adversarial---Supreme Court had the jurisdiction to adjudicate upon a case if it fell within the ambit of inquisitorial proceedings.

Wattan Party v. Federation of Pakistan PLD 2011 SC 997; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2012 SC 1 and Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681 ref.

(d) Words and phrases---

---"Court"---Meaning.

Corpus Juris Secundum Vol 21; Halsbury's Laws of England, 4th Edn. Vol. 10; The Oxford Companion to Law by David M. Walker; Words and Phrases Legally Defined (1969 Edn. Vol 1, p.367); The Major Law Lexicon, 4th Edn. 2010; Black's Law Dictionary and Ballentine's Law Dictionary ref.

(e) Constitution of Pakistan---

----Arts. 175(3), 2A, Preamble & Part.II, Chap. 1 [Arts. 8 to 28]---Independence of judiciary-Scope and significance---Independence of judiciary was a basic principle of the constitutional system of governance---Constitution made it the exclusive power/responsibility of the Judiciary to ensure the sustenance of the system of "separation of powers" based on checks and balances and this was a legal obligation assigned to the Judiciary---Judiciary was called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals, and to do so, it had to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances, and also had to be strong and independent enough to dispense justice fairly and impartially.

Zafar Ali Shah v. Pervez Musharraf PLD 2000 SC 869 ref.

(f) Constitution of Pakistan---

----Art. 8---Vires of legislation---Judiciary, duty of---Scope---Judiciary had the duty to examine vires of a legislation at the touchstone of the Constitution.

Shahid Nabi Malik v. Chief Election Commissioner PLD 1997 SC 32; Chenab Cement Products v. Banking Tribunal PLD 1996 Lah. 672 and Kilbourn v. Thompsons [103 US 168; 26 L ED 377 ref.

(g) Service Tribunals Act (LXX of 1973)---

----S. 3---Punjab Service Tribunals Act (IX of 1974), S. 3---Balochistan Service Tribunals Act (V of 1974), S. 3---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S. 3---Sindh Service Tribunals Act (XV of 1973), S. 3---Constitution of Pakistan, Arts. 212(1)(a), 9 & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Maintainability---Appointment of Chairman and Members of Federal and Provincial Service Tribunals---Procedure---Constitutionality---Plea that petitioners had no cause of action to file the present petition as the Chairman and the Members of Service Tribunals were appointed in accordance with law, and that the present matter was not one of great public importance and no Fundamental Rights of the petitioner had been infringed---Validity---Civil servants being citizens of Pakistan had Fundamental Rights including the right of access to justice as envisaged under Art.9 of the Constitution---Enforcement of terms and conditions of service of civil servants depended upon an impartial, independent and unbiased Tribunal---(Civil) services were the backbone of the State as the affairs of the Government were performed by the civil servants, therefore, ultimately, the general public got affected from the functioning of the Service Tribunals; as such, present case involved a question of public importance---Constitutional petition was maintainable accordingly.

(h) Service Tribunals Act (LXX of 1973)---

----S. 3---Punjab Service Tribunals Act (IX of 1974), S. 3---Balochistan Service Tribunals Act (V of 1974), S. 3---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S. 3---Sindh Service Tribunals Act (XV of 1973), S. 3---Constitution of Pakistan, Arts. 212(1)(a), 175, 9 & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Federal and Provincial Service Tribunals, judicial functions of---Scope---Separation of Service Tribunals from the Executive---Scope---Service Tribunals performed 'judicial functions' in exercise of 'judicial powers' conferred upon them by the Legislature and therefore, enjoyed status of a 'Court' and were required to be separated from the Executive in terms of Art.175(3) of the Constitution---Tribunal did not always function as a 'Court', nor its action was always judicial; however, the determining factor was the nature of the dispute to be resolved by the Tribunal---When the Tribunal had to determine a dispute relating to a right or liability, recognised by the Constitution or law and was under an obligation to discover the relevant facts, in the presence of the parties, in the light of the evidence produced by them, it acted judicially---Whenever judicial power was vested in a forum, be it called a Court or Tribunal, for all legal intents and purposes it was a court---Exercise of judicial power was considered to be an essential feature of a court, and it distinguished a court from an administrative tribunal---Under S.5(2) of the Service Tribunals Act, 1973, the Tribunal was deemed to be a civil Court having all the powers which were vested in the civil court---Section 5(1) of Service Tribunals Act, 1973 provided that the Tribunal could set aside, vary or modify the order in an appeal before it, after full and final hearing of the appeal, thus, the Tribunal performed judicial functions---Service Tribunals were not only deemed to be civil court(s) but also exercised judicial powers, therefore, they were included in the term 'Court' mentioned in Art.175 of the Constitution, as such, (Service) Tribunals were to be manned, controlled and regulated in accordance with the law relating to management, regulation and control of courts---Service Tribunals (Federal and Provincial) were bound to follow the principle of independence of judiciary for the purpose of ensuring enforcement of fundamental right of access to justice under Art.9 of the Constitution, thus, they were required to be separated from the Executive under Art.175(3) of the Constitution--- Constitutional petition was disposed of accordingly.

Shell Co. of Australia Limited v. Federal Commissioner of Taxation [(1930) All E R 671; United Engineering Workers' Union v. Uevanayaqam {(1976) 2 All E R 367; Imran Raza Zaidi v. Government of Punjab 1996 SCMR 645; Tariq Transport Company v. The Sargodha Bhera Bus Service PLD 1958 SC 437; Muhammad Hashim Khan v. Province of Balochistan PLD 1976 Quetta 59; Iftikhar Ahmad v. Muslim Commercial Bank Ltd. PLD 1984 Lah. 69; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504 and Messrs Ranyal Textiles v. Sindh Labour Court PLD 2010 Kar. 27 ref.

(i) Service Tribunals Act (LXX of 1973)---

----S. 3---Punjab Service Tribunals Act (IX of 1974), S. 3---Balochistan Service Tribunals Act (V of 1974), S. 3--- Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S. 3--- Sindh Service Tribunals Act (XV of 1973), S.3---Federal Service Tribunal Chairman and Members Service Rules, 1983, R.1---Service Tribunals (Qualifications of Members) Rules, 1974, R.2---Constitution of Pakistan, Arts. 212(1)(a), 175, 2A, 9 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Appointment of Chairman and Members of Federal and Provincial Service Tribunals---Procedure---Constitutionality---Consultation with the Chief Justice of Pakistan/Chief Justice of the respective High Court---Scope---Although the Act(s) and the rules (regarding Service Tribunals) did not provide for consultation with the respective Chief Justice, but since (Service) Tribunals established under Art.212 of the Constitution fell within the contemplation of Art.175(3) of the Constitution, the requirements of said provision had to be adhered to while making appointment of the Chairman/Members of the (Service) Tribunals---Matters regarding appointment of the Chairman and Members of the Service Tribunals were as important as those of Judges of the High Courts---Whenever the appointment of a 'judicial officer' or the Chairman/Member of a Tribunal performing 'judicial functions' was made, consultation with the concerned Chief Justice was a prerequisite---For making the Chairman and the Members of the Service Tribunals independent, it was necessary to make their appointments with the meaningful consultation of the Chief Justice i.e. for the purpose of Federal Service Tribunal, with the Chief Justice of Pakistan and for Provincial Service Tribunals, with the Chief Justice of the respective High Court---All appointments made without such consultation were void---Where a retired Judge of the High Court was to be appointed as Chairman of the (Service) Tribunal, selection should be made in consultation with the Chief Justice of the High Court in the case of a Provincial Service Tribunal and in consultation with the Chief Justice of Pakistan in the case of Federal Service Tribunal---Tenure of such incumbent should not be for a period of more than three years for one time only---Although there were civil servants who were quite capable of performing their functions independently without being influenced by any of their seniors amongst the Executive, however, the selection of Members (of Service Tribunals) had to be made in consultation with the Chief Justice, on having gone through the credentials of nominees (civil servants) and by also giving preference to those, who had a legal background and had not reached the age of superannuation in respect to their tenure, which was to be restricted to a one time tenure of not more than a period of three years or till the date of superannuation, whichever was earlier---Where District Judges or incumbent civil servants were not available for appointment, the Executive with the consultation of the respective Chief Justice might appoint Advocates qualified for appointment as a Judge of the High Court, either as a Member or the Chairman(of Service Tribunals), as the case might be---Supreme Court declared that Ss.3(1), (3), (3)(b), (4) & (7) of the Service Tribunals Act, 1973; S.3(3)(b) of the Sindh Service Tribunals Act, 1973; S.3(3)(b) of the Khyber Pakhtunkhwa Service Tribunals Act, 1974; S.3(3)(b) of the Balochistan Service Tribunals Act, 1974; Rule 1 of Federal Service Tribunal Chairman and Members Service Rules, 1983, and Rule 2 of Service Tribunals (Qualifications of Members) Rules, 1974 were void, ultra vires to the Constitution and unconstitutional being in derogation of Arts.2A, 9 and 175 of the Constitution---Supreme Court directed that Federal and Provincial Governments were allowed 30 days' time to make fresh appointments of Chairmen/Members of the (Service) Tribunals, following the conclusions and findings of the present petition; that if no steps were taken within the stipulated time, either through temporary or permanent legislation, the provisions of the legislation which had been declared void (and unconstitutional) would seize to have effect, as a consequence whereof, the incumbent Chairmen/Members of the(Service) Tribunals, whose cases were not covered under the proposed provisions, would seize to hold their positions---Constitutional petition was disposed of accordingly.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Imran v. Presiding Officer, Punjab Special Court PLD 1996 Lah. 542; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Hazrat Baz v. Political Agent/District Magistrate Khyber Agency PLD 2010 Pesh. 7; Messrs Ranyal Textiles v. Sindh Labour Court PLD 2010 Kar. 27 and S.P. Sampath Kumar v. Union of India AIR 1987 SC 386 ref.

(j) Service Tribunals Act (LXX of 1973)---

----S. 3(3)(b)---Punjab Service Tribunals Act (IX of 1974), S. 3(3)(b)---Balochistan Service Tribunals Act (V of 1974), S. 3(3)(b)---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S. 3(3)(b)---Sindh Service Tribunals Act (XV of 1973), S. 3(3)(b)---Constitution of Pakistan, Arts. 212(1)(a) & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Appointment of Members of Federal and Provincial Service Tribunals---Legal/judicial experience of such Members---Scope---Law prescribed that the Chairman of the (Service) Tribunal must be a person who was or had been qualified to be a Judge of the High Court, which had an inbuilt mechanism of having legal/judicial experience, however, there was no requirement of having legal or judicial experience for the Members of the (Service) Tribunal---Where the Members, who belonged to the Executive, constituted a Bench, there was likelihood that they might not be able to decide the judicial question in an appropriate manner, having no judicial experience and if the case was against the orders of the President/Governor or senior officers they might not be able to act fairly, justly and independently being under pressure, thereby eroding the concept of fair administration of justice--- Supreme Court observed that it was necessary that not only the Chairman but the Members of the (Service) Tribunals also had legal/judicial experience, therefore, a person who was or had been qualified to be a District Judge, might be appointed as Member of the (Service) Tribunal--- Constitutional petition was disposed of accordingly.

Muzaffar Hussain v. The Superintendent of Police 2002 PLC (C.S.) 442 ref.

(k) Service Tribunals Act (LXX of 1973)---

----S. 3(3)(a)--- Punjab Service Tribunals Act (IX of 1974), S. 3(3)(a)---Balochistan Service Tribunals Act (V of 1974), S. 3(3)(a)---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S. 3(3)(a)---Sindh Service Tribunals Act (XV of 1973), S. 3(3)(a)---Constitution of Pakistan, Arts. 212(1)(a) & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Appointment of a sitting Judge of the High Court as Chairman of Federal/Provincial Service Tribunal--- Propriety---Supreme Court observed that preferably, it would be appropriate and in the interest of the institution if a sitting Judge (of the High Court) was not asked to perform his duties as Chairman of a Federal or Provincial Service Tribunal, however, appointments for the position of Chairman could conveniently be made from amongst the Judges who had been Judges of the High Court--- Constitutional petition was disposed of accordingly.

(l) Service Tribunals Act (LXX of 1973)---

----S. 3-A---Punjab Service Tribunals Act (IX of 1974), S. 3-A--- Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.5--- Balochistan Service Tribunals Act (V of 1974), S. 3(3)---Sindh Service Tribunals (Procedure) Rules, 1974, Rr.23 & 24---Constitution of Pakistan, Arts. 212(1)(a), 9 & 184(3)--- Constitutional petition under Art.184(3) of the Constitution---Federal and Provincial Service Tribunals---Composition of Benches---Guidelines---Supreme Court observed that the Chairman should preferably constitute each bench comprising of one judicial/legal Member and one Member from civil service; that in such a situation, with reference to the disputes of civil servants, both (Members) could give their input on the judicial and executive sides, which would improve the quality of decision making and the judgments pronounced and strengthen the independence of judiciary in its role of enforcing the Fundamental Right of access to justice, and that where a single Member Bench was to be constituted, preference should be given to the judicial Member to hold the hearing.

(m) Service Tribunals Act (LXX of 1973)---

----S. 3---Punjab Service Tribunals Act (IX of 1974), S. 3---Balochistan Service Tribunals Act (V of 1974), S. 3---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S. 3---Sindh Service Tribunals Act (XV of 1973), S. 3---Constitution of Pakistan, Arts. 212(1)(a), 175(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Federal and Provincial Service Tribunals---Financial autonomy---Allocation of independent budget---Scope---(Service) Tribunals, as judicial fora, should enjoy financial autonomy as had been given to the High Courts and the Supreme Court, otherwise they cannot discharge their functions independently---(Service) Tribunals must be duly empowered to disburse their annual funds, allocated by the Parliament and the Provincial Assemblies, in their respective annual budgets, within the prescribed limit by the Chairman of the respective Tribunals, without the need to seek approval of the Finance Ministry or Provincial Finance Department---Supreme Court directed that independent budgetary allocation for annual expenditures of the Service Tribunals should be provided for in accordance with the Constitution, enabling the Tribunals to function independently---Constitutional petition was disposed of accordingly.

Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 ref.

M. Shoaib Shaheen, Advocate Supreme Court for Petitioners (in Const.P. No.53 of 2007).

Nemo for Petitioner Const.P.83 of 2012.

Attorney General for Pakistan (absent) on Court's Notice.

Muhammad Azam Khattak, Addl. A.G. for Government of Balochistan.

Syed Arshad Hussain Shah, Addl. A.G. for Government of Khyber Pankhtunkhwa.

Jawwad Hassan, Addl. A.G. for Government of Punjab.

Muhammad Qasim Mirjat, Addl.A.G. for Government of Sindh.

Raja Faisal Iftikhar, Deputy Secretary for Law Commission.

Date of hearing: 9th January, 2013.

P L D 2013 Supreme Court 557

Present: Mian Saqib Nisar, Asif Saeed Khan Khosa and Ijaz Ahmed Chaudhry, JJ

HUMAYUN HASSAN---Appellants

Versus

ARSLAN HUMAYUN and another---Respondents

Civil Appeal No.5-L of 2013, decided on 20th February, 2013.

(On appeal from the judgment dated 28-2-2012 of Lahore High Court, Lahore passed in Writ Petition No.3112 of 2012).

Per Mian Saqib Nisar, J; Asif Saeed Khan Khosa, J, agreeing--

(a) Islamic law---

----Maintenance, definition of---Scope---Obligation of father to pay maintenance to his children---Scope---Maintenance meant and included food, raiment and lodging---Such definition was neither conclusive nor exhaustive, and had a wider connotation and should be given an extended meaning for the purposes of meeting and catering for the present days social, physical, mental growth, upbringing and well-being of the minor, keeping in mind the status of the family, the norms of the society and his educational requirement, but obviously corresponding to and commensurating with the means and the capacity of the father to pay.

Muhammadan Law by D.F. Mullah Para.369 ref.

Ahmadellah v. Mafizuddin Ahmad and another AIR 1973 Gauhati 56 ref.

(b) Islamic law---

----Maintenance for children---Obligation of father to pay maintenance to his son---General rule and exception---Scope---Father in the normal course was bound to maintain his son(s) only till the time he attained the age of puberty, however there was an exception to such rule, and that was the disability of the son by infirmity or disease in which case the obligation of the father was extended to an adult son as well.

Muhammadan Law by D.F. Mullah, Para 370 ref.

(c) Islamic law---

----Maintenance for (adult) son who has attained age of majority---Obligation of father to maintain his adult son for purposes of his educational needs---Scope---Obligation of the father to maintain his adult son who had not yet completed his basic education, enabling him to earn his livelihood, might be considered by the court(s) in an appropriate case (an exception to the general rule)---For such purposes a specific case had to be initiated and set out by the (adult) son before the court of original jurisdiction (competent jurisdiction), and the court on the basis of the case so propounded and pleadings of the parties, was obliged to determine, with reference to the facts of the case, whether the adult son should at all be entitled to the maintenance, as he was still pursuing his education---Court in such regard should keep in consideration age (of adult son); whether he (i.e. adult son) had his own resources to sustain his studies; the nature and stage of his studies; his academic results, his fervor and zeal for education; the extent of education which was essential to enable him to earn a livelihood, but it did not include higher studies and education abroad, especially where the (adult) son had gone aboard for such education either of his own without there being any promise by the father or on the behest of someone else who had assured to support him---While determining and adjudging whether the father should provide maintenance to his adult son court(s) should also keep in view the fact whether the son gave due respect and showed regard to his father, and was not disobedient or estranged---Capacity of the father also had to be kept in view.

Mohummadan Law by Neil B.E. Baillie rel.

Mahommedan Law by Ammer Ali (Syed) [revised edition by Justice S.H.A. Raza], Principles of Mohammedan Law by Dr. Nishi Purohit and Alaf Din v. Mst. Parveen Akhtar PLD 1970 SC 75 rel.

Arbab Mir Muhammad v. Mst. Iram Iltimas PLD 2005 SC 24 distinguished.

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

----Ss. 13(4) & 5, Sched.---Decree for maintenance of child passed by Family Court---Jurisdiction of Family Court (Executing Court) to execute such decree---Scope---Son (who was a minor at the time) filed a suit for maintenance against his father---Family Court passed a decree in favour of the son, which decree attained finality up to the Supreme Court---During pendency of execution proceedings of the said decree son crossed the age of 18 years and attained age of majority---Father moved an application before the Executing Court (Family Court) contending that his son had reached age of majority, therefore, he was under no obligation to pay further maintenance, and the execution petition should accordingly be dismissed---Executing Court (Family Court) dismissed application of father finding that it was in the interest of justice, equity and fair play that father should maintain his son up to the time that he completed his education and became a working hand---Constitutional petition filed by father against order of Executing Court was also dismissed---Legality---No specific judgment and decree had been passed in favour of the son, directing the father to provide maintenance to the (adult) son, even after he had attained the age of majority or had ceased to be a minor---Executing court had no jurisdiction to go beyond the decree and thus could not require and direct the father to continue paying the maintenance to his adult son, only for the reason that he was still studying---Decree passed by Family Court, which had attained finality, contained no specific command to the effect that it should remain in force even beyond the majority of son , thus it ceased to have effect automatically the day the son attained 18 years of age---Executing court was divested of its jurisdiction to enforce the decree further and could not extend its life, when it had lapsed---Execution proceedings initiated by the (adult) son against his father for enforcement of decree of Family Court came to an end from the date the son attained age of majority i.e. 18 years---Appeal was allowed accordingly and judgments of High Court and Executing Court were set aside.

Per Asif Saeed Khan Khosa, J; agreeing with Mian Saqib Nisar, J.

(e) Islamic law---

----Parental obligations---Principles relevant for adjudication by court---Where a court of law was to adjudicate upon parental obligations of a Muslim it was only the legal principles concomitant to such obligations which were relevant and not the social or moral principles.

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

----Ss. 13(4) & 5, Sched.---Decree for maintenance of child---Principles relevant for passing such decree---Scope---Jurisdiction of Family Court (Executing Court) to execute a decree for maintenance of child---Scope---Son (who was a minor at the time) filed a suit for maintenance against his father---Family Court passed a decree in favour of the son, which decree attained finality up to the Supreme Court---During pendency of execution proceedings of the said decree son crossed the age of 18 years and attained age of majority---Father moved an application before the Executing Court (Family Court) contending that his son had reached age of majority, therefore, he was under no obligation to pay further maintenance, and the execution petition should accordingly be dismissed---Executing Court (Family Court) dismissed application of father finding that it was in the interest of justice, equity and fair play that father should maintain his son up to the time that he completed his education and became a working hand---Constitutional petition filed by father against order of Executing Court was also dismissed by the High Court---Legality---Where a court of law was to adjudicate upon parental obligations of a Muslim it was only the legal principles concomitant to such obligations which were relevant and not the social or moral principles---Father or any of the parents in a given case, might be under a social or moral expectation, compulsion or obligation to maintain a minor offspring for as long as the offspring did not attain the requisite physical, mental, intellectual and financial capacity to survive and sustain on his own but present case before the Trial Court was only in respect of maintenance of a minor son by his father which issue, on the legal plane, could not have been stretched by the Executing Court (Family Court) and High Court to a stage beyond the son's minority by blurring the distinction between social and moral obligations and legal obligations under the principles of Muslim personal law---Appeal was allowed accordingly and judgments of High Court and Executing Court were set aside.

Atir Mahmood, Advocate Supreme Court for Appellants.

Sanaullah Malik, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondent No.1.

Date of hearing: 20th February, 2013.

P L D 2013 Supreme Court 568

Present: Tassaduq Hussain Jillani, Anwar Zaheer Jamali, Asif Saeed Khan Khosa, Amir Hani Muslim and Muhammad Athar Saeed, JJ

Ch. NISAR ALI KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petition No.73 of 2011, decided on 30th May, 2013.

(Against the appointment of Chairman, National Accountability Bureau).

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

----S. 6(b)(i)---Chairman, National Accountability Bureau, appointment of---"Consultation" with Leader of the Opposition in the National Assembly---"Consultation"---Scope---"Consultation" had to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play and in order to establish that a consultation was meaningful and purposive it should manifestly be shown that a serious, sincere and genuine effort was made towards evolving a consensus---First priority in any consultation had to be directed towards evolving a consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidate---Consultation practically amounted to an effort made towards meeting of minds.

Shahid Orakazi and another v. Pakistan through Secretary Law, Ministry of Law, Islamabad and another PLD 2011 SC 365 ref.

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

----S. 6(b)(i)---Constitution of Pakistan, Art.184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Chairman, National Accountability Bureau---Chairman, National Accountability Bureau, appointment of---Proper "Consultation" with the Leader of the Opposition in the National Assembly as required under S.6(b)(i) of the Ordinance---Scope---Appointment made by the President without meaningful, purposive or consensus-oriented consultation with Leader of the Opposition---Effect---Such an appointment was without lawful authority as it was not in accordance with S. 6(b)(i) of National Accountability Ordinance, 1999---Appointment of Chairman, National Accountability Bureau was set aside with immediate effect and Federal Government was directed to make fresh appointment without further loss of time---Constitutional petition was allowed accordingly.

On 9-10-2011 the President through a letter had proposed to the Leader of the Opposition in the National Assembly name of respondent for appointment as Chairman, National Accountability Bureau. On 13-10-2011 the Leader of the Opposition wrote back to the President, wherein he momentarily withheld his opinion regarding suitability or otherwise of respondent for the proposed appointment and instead made a few suggestions, including asking for a panel of possible candidates, which itself was indicative of the fact that he entertained reservations against the nomination of respondent. Through his letter Leader of the Opposition, while making a few suggestions regarding the process to be adopted, had reserved his right to give his views about suitability or otherwise of any nominee. The President sent another letter to Leader of the Opposition on 15-11-2011, wherein he rejected the latter's suggestions regarding the process to be adopted for consultation and decided to appoint respondent as the Chairman, National Accountability Bureau without actually soliciting the opinion of Leader of Opposition about the respondent. Once the President had decided to ignore, disregard or reject the suggestions regarding the process made by the Leader of the Opposition, the President ought to have written to the Leader of the Opposition that the suggestions made by him regarding the process were not acceptable and that he should give his opinion regarding suitability or otherwise of respondent in black and white. The President did not deem it important or necessary to do that and decided to proceed with appointment of respondent as the Chairman, National Accountability Bureau. No serious, sincere and genuine effort was made by the President towards evolving a consensus over the particular nominee and no mutual discussion regarding the merits or demerits of the nominee was deemed by the President to be a necessary part of the consultative process. Process of consultation undertaken in the present case could not be termed or accepted as meaningful, purposive or consensus-oriented. Proper consultation as required by the provisions of section 6(b)(i) of the National Accountability Ordinance, 1999 had not taken place in the present case before appointment of respondent as the Chairman, National Accountability Bureau. Impugned appointment of respondent was declared to be without lawful authority and was set aside with immediate effect. Federal Government was directed to make fresh appointment without further loss of time.

(c) Constitution of Pakistan---

----Art. 189---Judgment of Supreme Court---Suggestion or recommendation made by the Supreme Court in its judgment---Status---Such suggestion or recommendation though entitled to due respect, deference and consideration, did not travel beyond a suggestion or a recommendation and it did not by itself assume the status of law---By its nature and form a suggestion or a recommendation was simply what it was, nothing more and nothing less.

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

----S. 6(b)(i)---Chairman, National Accountability Bureau, appointment of---"Consultation" with Leader of the Opposition in the National Assembly---"Consultation"---Scope---For the purposes of S.6(b)(i) of the National Accountability Ordinance, 1999 it was only the opinion of the Leader of the Opposition in the National Assembly which was relevant for the President and not the opinion of any political party to which the Leader of the Opposition might belong or of its head.

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

----S. 6(b)(i)---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution challenging the appointment of Chairman, National Accountability Bureau---President appointing Chairman, National Accountability Bureau unlawfully because of lack of meaningful, purposive or consensus-oriented consultation with Leader of the Opposition in the National Assembly---Plea that incumbent Chairman, National Accountability Bureau had already served in his office for about a year and three quarters and was about to complete one half of his fixed term of office of four years, therefore, at such late stage his appointment might not be disturbed by the Supreme Court---Validity---Any length of service unlawfully utilized was not long enough to deter the Supreme Court from pronouncing upon the legality of the same when the matter was properly brought before it for adjudication---Incumbent Chairman, National Accountability Bureau had been appointed to head the premier anti-corruption agency of the country, which was a very important office---Although incumbent Chairman had already served as the Chairman for about a year and three quarters out of a term of four years but at the same time it was equally true that the remaining term of office was about two years and a quarter which was a considerably long period of time---Person could not be allowed to continue holding such an important office if his appointment to that office had been found by the Supreme Court to have been brought about in a manner which was not lawful---Appointment of incumbent Chairman, National Accountability Bureau was set aside with immediate effect and Federal Government was directed to make fresh appointment without further loss of time---Constitutional petition was allowed accordingly.

(f) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---Person appointed in Government service unlawfully---Appointment of such person challenged in the Supreme Court after he had served out substantial portion of his service tenure---Legality---Any length of service unlawfully utilized was not long enough to deter the Supreme Court from pronouncing upon the legality of the same when the matter was properly brought before it for adjudication.

Muhammad Akram Sheikh, Senior Advocate Supreme Court Arshad Ali Chaudhry, Advocate-on-Record assisted by Barrister Sherjeel Adnan Sh, Advocate, Ch. Hassan Murtaza Mann, Advocate and Syed Faraz Raza, Advocate for Petitioner.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court and Chaudhry Akhtar Ali Advocate-on-Record for Respondent No.3.

Irfan Qadir, Attorney-General for Pakistan assisted by Barrister Sheryar Riaz, Advocate (on Court's notice.).

Dates of hearing: 27th and 28 May, 2013.

P L D 2013 Supreme Court 594

Present: Anwar Zaheer Jamali, Asif Saeed Khan Khosa and Amir Hani Muslim, JJ

ABDUL AZIZ MEMON and others---Appellants/Petitioners

Versus

The STATE and others---Respondents

Criminal Appeal No. 140 of 2005 and Criminal Miscellaneous Applications Nos. 629 of 2010, 141 of 2005, 228 to 233 of 2004, Civil Petition No. 205 of 2006 and Civil Miscellaneous Application No. 393 of 2007, Civil Appeals Nos. 91 and 609 of 2006 and Civil Miscellaneous Application No. 2710 of 2013, Civil Appeal No. 1189 of 2008, Criminal Appeal No. 1-Q of 2010, Civil Appeal No. 1324 of 2007, Criminal Appeals Nos. 274 to 279 of 2006, Criminal Petitions Nos. 78-L and 79-L of 2004, Civil Petitions Nos. 1355-L, 1188-L, 1363-L and 1013-L of 2010, Civil Petitions Nos. 1749, 1548 of 2009, 226-L of 2010, 1936-L of 2011, 1145-L, 1326-L, 2534-L of 2009, 629-L of 2008, Criminal Original Petition No. 31 of 2007 in Civil Appeal No. 1324 of 2007, Civil Petition No. 318 of 2008, Civil Appeals Nos. 483-L, 484-L of 2009, Criminal Appeals Nos. 101, 102 of 2005, 86 of 2003 and Criminal Petitions Nos. 96 and 97 of 2003, decided on 7th June, 2013.

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

----Preamble & S.33-C---Ehtesab Act (IX of 1997), Preamble---Promulgation of National Accountability Ordinance, 1999 and Ehtesab Act, 1997---Object, scope and purpose---Distinction between the two laws---Preamble to Ehtesab Act, 1997, manifested that it was enacted only "for eradication of corruption and corrupt practices from public offices" whereas Pre-amble to National Accountability Ordinance, 1999, does not even mention "public offices" and instead it states objects to be achieved as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices; to provide for effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kickbacks, commissions; recovery of State money and other assets from those persons who have misappropriated or removed such money or assets through corruption, corrupt practices and misuse of power or authority; to seek, obtain or give mutual legal assistance internationally in matters concerning corruption; and to educate society about causes and effects of corruption and corrupt practices to implement policies and procedures for prevention of corruption in society---Scope of applicability of National Accountability Ordinance, 1999, is much larger than the scope of Ehtesab Act, 1997, and it would be naïve to examine the former through narrow prism of the latter---Stated object of National Accountability Ordinance, 1999, is to rid the whole society of menace of corruption.

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

----Ss. 4 & 9(a)---Term "any other person" appearing in S.9(a) of the National Accountability Ordinance, 1999---Applicability---Scope---Provisions of National Accountability Ordinance, 1999, are not restricted in its applicability to "holders of public offices" only and the all en-compassing sway of the same covers all citizens of Pakistan wherever they may be and even persons of other nationalities available, operating or transacting within Pakistan and it is in such context that words "any other person" appearing in S.9(a) of National Accountability Ordinance, 1999, must be understood---Provisions of National Accountability Ordinance, 1999, are applicable even to a person who is not holder of public office, also to a person who has not aided, assisted, abetted, attempted or acted in conspiracy with holder of public office and words "any other person" appearing in S.9(a) of National Accountability Ordinance,1999, are to be understood and applied accordingly---Stand alone private person can be proceeded against under National Accountability Ordinance, 1999, if the other conditions mentioned in the Ordinance in that respect are satisfied.

Jamat-i-Islami Pakistan through Syed Munawar Hassan, Secretary-General v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs PLD 2000 SC 111; In the matter of: Reference No. 2 of 2005 by the President of Pakistan PLD 2005 SC 873; Jibendra Kishore Achharyya Chowdhry and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan PLD 1957 SC (Pak.) 9; Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Rauf Bakhsh Kadri v. The State and others 2003 MLD 777; Mir Munawar Ali Talpur v. State through Chief Ehtesab Commission, Islamabad and 2 others PLD 2003 SC 46; Vijant Kumar and 4 others v. State through Chief Ehtesab Commissioner, Islamabad and others PLD 2003 SC 56; Black's Law Dictionary; 2nd Edn. Mr. S.M. Zafar's Book Understanding Statutes; PLD 2000 Central Statues 57; Abdul Aziz Memon v. The State 2003 YLR 617; Ch. Zulfiqar Ali v. Chairman, NAB and others PLD 2003 Lah. 593; Haji Kabir Khan v. The State 2003 YLR 1607; Khan Asfandyar Wali and others v. Federation of Paksitan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Justice Khurshid Anwar Bhinder and others Federation of Pakistan and another PLD 2010 SC 483; Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26; Chaudhary Aamir Ali v. The State 2002 YLR 1902 and Nazar Hussain v. The State 2002 PCr.LJ 440 ref.

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

----S. 5(n)---Word "person"---Connotation---Word "person" used in National Accountability Ordinance, 1999, includes relevant person of a company or a body corporate---Inclusion of a company or a body corporate in definition of word "person" is also an unmistakable indication that National Accountability Ordinance, 1999, is not restricted in its applicability to holders of public offices only.

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

----S. 9(a) (i) to (xii)---Ehtesab Act (IX of 1997), S.3---"Holders of public office" or "any other person"---Applicability of National Accountability Ordinance, 1999---Scope------Offence of corruption and corrupt practices under S.3 of Ehtesab Act, 1997, were triable only to holder of a public office, whereas provisions of S.9(a)(i) to (xii) of National Accountability Ordinance, 1999, show quite evidently that "any other person" not holding any public office and not aiding or abetting or conspiring with holder of public office may also be tried independently for offence of corruption and corrupt practices.

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

----S. 9(a)---Words "holder of public office or any other person"---Applicability of National Accountability Ordinance, 1999---Scope---Such words used in S.9(a) of National Accountability Ordinance, 1999, are disjunctive as they refer to different classes of persons---In the context of scheme and scope of National Accountability Ordinance, 1999, words "any other person" are to be given their ordinary meanings and are simply to be accepted as referring to any other person, nothing more or nothing less.

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

----S. 9(a) (ix) & (x)---Offences of cheating and criminal breach of trust---Reasonable classification, principle of---Applicability---Offence of cheating mentioned in S.9(a)(ix) of National Accountability Ordinance, 1999, and offence of criminal breach of trust referred to in S.9(a)(x) of National Accountability Ordinance, 1999, can be dealt with under the Ordinance only if such offences affect "public at large" as stipulated therein---Reasonable classification exists in S.9(a)(ix) and (x) of National Accountability Ordinance, 1999, so as to ward-off a criticism based upon discrimination.

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

----S. 9(a) (ix) & (x)---Term "public at large"---Determination---Question as to whether an alleged cheating or criminal breach of trust affects public at large or not is a question which is initially to be determined by National Accountability Bureau and its Chairman and subsequently such determination may, in appropriate case, be amenable to judicial review.

Abid Hassan Minto, Senior Advocate Supreme Court, Afzal Siddiqui, Advocate Supreme Court and M.S.Khattak, Advocate-on-Record for Appellant(s) (in Crl.A. No.140 of 2005, Crl. Misc. Application No.629 of 2010 and Civil Appeal No.141 of 2005).

K.K. Agha, Prosecutor-General, NAB and Fauzi Zafar, Addl. Prosecutor-General, NAB for Respondent (in Crl.A. No.140 of 2005 & Crl. Misc. Application No.629 of 2010 and Civil Appeal No.141 of 2005).

K.K. Agha, Prosecutor-General, NAB and Fauzi Zafar, Addl. Prosecutor-General, NAB for Appellant(s) (in Crl.As.228 to 233 of 2004).

Rana Muhammad Bashir, Senior Advocate Supreme Court for Respondent(s) (in Crl.As.228 to 233 of 2004).

Afzal Siddiqui, Advocate Supreme Court and Sardar Muhammad Ghazi, ASC for Petitioner (in C.P.205/2006 and C.M.A. No.393/07).

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and M.S. Khattak, AOR for Respondent No.1 (in C.P.205/2006 and C.M.A. No.393/07).

Nemo for Respondent No.3 (in C.P.205/2006 and C.M.A. No.393/07).

K.K. Agha, Prosecutor-General, NAB and Fauzi Zafar, Addl. Prosecutor-General, NAB for Appellant (in C.A. 91 of 2006).

Nemo for Resondent No.1 (in C.A. 91 of 2006).

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant (in C.A.No.609/2006 and C.M.A. 2710/13).

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and M.S. Khattak, AOR a/w for Respondent No.1 (in C.A.No.609/2006 and C.M.A. 2710/13).

Syed M. Iqtidar Haider (in person) (in C.A.No.609/2006 and C.M.A. 2710/13).

M. Akram Sheikh, Senior Advocate Supreme Court, Naseer-ud-Din Khan, Advocate Supreme Court and Ch. Akhtar Ali Advocate-on- Record for Appellant (in C.A.No.1189/2008).

Nemo for Respondent No.1 (in C.A. 1189 of 2008).

Nemo for Appellant (in Crl.A. No.1-Q of 2010).

K.K.Agha PG (NAB) for Respondent (in Crl.A. No.1-Q of 2010).

Kamran Murtaza, ASC for Appellant (in C.A.No.1324 of 2007).

K.K. Agha, Prosecutor-General, NAB, Fauzi Zafar, Addl. Prosecutor-General, NAB, M.S. Khattak, AOR for Respondent No.1 (in C.A.No.1324 of 2007).

Ali Shafi (in person) as Respondent No.7 (in C.A.No.1324 of 2007).

K.K. Agha, Prosecutor-General, NAB, Fauzi Zafar, Addl. Prosecutor-General, NAB, for Appellant(s) (in Crl.As.Nos.274 and 276 of 2006).

Ch. Aitzaz Ahsan, Senior ASC for Respondent (in Crl.As. Nos.274 and 276 of 2006).

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court for Appellant(s) (in Crl.As. Nos.277 and 279 of 2006, Crl.Ps.78 and 79-L of 2004 and C.P.No.1335 of 2010.

K.K. Agha, Prosecutor-General, NAB, Fauzi Zafar, Addl. Prosecutor-General, NAB for Respondent (in Crl.As. Nos.277 and 279 of 2006, Crl.Ps.78 and 79-L of 2004 and C.P.No.1335 of 2010).

Nemo for Petitioner (in Cr.P.79-L of 2004).

K.K. Agha, Prosecutor-General, NAB, Fauzi Zafar, Addl. Prosecutor-General, NAB for Respondent (in Cr.P.79-L of 2004).

Nemo for Petitioner (in C.P.1188 of 2010).

Respondent not represented (in C.P.1188 of 2010).

Nemo for Petitioner (in C.Ps.1363-L and 1013/2010).

Respondent not represented (in C.Ps.1363-L and 1013/2010).

M. Akram Sheikh, Senior Advocate Supreme Court and Naseer-ud-Din Khan, ASC for Petitioner (in C.P.No.1749 of 2009).

Respondent not represented (in C.P.1749 of 2009).

K.K. Agha, Prosecutor-General, NAB, Fauzi Zafar, Addl. Prosecutor-General, NAB for Petitioner (in C.P.No.1548 of 2009).

Nemo for Respondent (in C.P.No.1548 of 2009).

Dr. A. Basit, Sr. ASC for Petitioner (in C.P.No.226-L/2011).

Respondent not represented (in C.P.226-L of 2011).

K.K. Agha, Prosecutor-General, NAB, Fauzi Zafar, Addl. Prosecutor-General, NAB for Petitioner (in C.P.No.1936-L of 2011).

Respondent in person (in C.P.No.1936-L of 2011).

Nemo for Petitioner(s) (in C.Ps. Nos. 1145-L, 1326-L/2009 and 2534-L of 2009).

Respondent not represented (in C.Ps. Nos. 1145-L, 1326-L/2009 and 2534-L of 2009).

Nemo for Petitioner(s) (in C.P. No. 629-L of 2008).

Respondent not represented (in C.P. No. 629-L of 2008).

K.K. Agha, Prosecutor-General, NAB, Fauzi Zafar, Addl. Prosecutor-General, NAB for Petitioner (in C.P.No.318 of 2008).

Nemo for Respondent (in C.P. No. 318 of 2008).

Appellant No.2 in person (in C.A. 483 and 484-L of 2009).

Nemo for Respondent No.1 (in C.As. Nos. 483 and 484-L of 2009).

Nemo for Official Respondents (in C.As. Nos. 483 and 484-L of 2009)

M. Akram Sheikh, Senior Advocate Supreme Court and Naseer-ud-Din Khan, ASC for Appellant(s) (in Crl.As.Nos.101 and 102 of 2005).

K.K. Agha, PG (NAB) and Fauzi Zafar, Dy. PG (NAB) for Respondents (in Crl.As.Nos.101 and 102 of 2005).

Abid Hassan Minto, Senior Advocate Supreme Court for Appellant (in Crl.A.No.86 of 2003).

K.K. Agha, PG (NAB) and Fauzi Zafar, Dy. PG (NAB) for Respondent (in Cr.A.No.86 of 2003).

K.K. Agha, Prosecutor-General, NAB, Fauzi Zafar, Addl. Prosecutor-General, NAB for Petitioner(s) (in Crl.Ps.Nos.96 and 97 of 2003).

Abid Hassan Minto, Sr. ASC for Respondent (in Crl.Ps.Nos.96 and 97 of 2003).

Dates of hearing: 21st and 22nd May of 2013.

P L D 2013 Supreme Court 641

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Maulana ABDUL HAQUE BALOCH and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Industries and Mineral Development and others---Respondents

Civil Petition No.796 of 2007 and C.M.As.Nos.4560 & 4561 of 2009 and C.M.A.No.116 of 2011 and C.M.As. Nos.403 & 406 of 2012, decided on 7th January, 2013.

(On Appeal from the judgment of the High Court of Balochistan, Quetta dated 26-6-2007 passed in Constitution Petition No.892 of 2006.)

(a) Balochistan Mining Concession Rules, 1970---

----Rr. 98 & 3---Regulation of Mines and Oil-fields and Mineral Development (Government Control) Act (XXIV of 1948), S. 5---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of Province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Respondent-company was granted relaxation/ exemption of certain rules under R.98 of Balochistan Mining Concession Rules, 1970 in order to enable it to carry out exploration work---Legality---Concerned department of the Provincial Government granted as many as thirteen relaxations to the respondent-company purportedly with a view to enable it to carry out the exploration work without any hindrance---Not only was respondent-company well aware of the restrictions imposed by Statute, but they also attempted to bind future governments to ratify the departures being made from the law---Said relaxations were in the nature of exemptions granted from the application of the rules to respondent-company and the entire Joint Venture exploration project without any reference to the provision of R.3 of Balochistan Mining Concession Rules, 1970---Balochistan Mining Concession Rules, 1970, in such circumstances, were rendered nugatory in all substantial aspects---Rule 3 of Balochistan Mining Concession Rules, 1970 provided that except with the previous sanction of the Government, no licence to prospect for any mineral and no lease of mines and minerals shall be granted otherwise than in accordance with said rules---Admittedly, no such previous sanction as envisaged by R.3 was sought by respondent-company or the Provincial Development Authority---Rule 98 of Balochistan Mining Concession Rules, 1970 provided for relaxation of any of the provisions of said Rules in cases of individual hardship and under special circumstances to be recorded in writing, and that too, on certain terms and conditions to be fixed while granting the relaxation---Neither respondent-company nor Provincial Development Authority in seeking relaxation of the rules fulfilled the requirements stated in R. 98 of Balochistan Mining Concession Rules, 1970, namely, showing "hardship" and "special circumstances"--- Competent authority also failed to determine the terms and conditions to be fixed in granting the relaxations sought for-In absence of the requirements of R. 98 of Balochistan Mining Concession Rules, 1970 being fulfilled in the present case, all relaxations were granted in excess of authority and were entirely beyond the scope of the provisions of the law, and therefore ultra vires the powers granted under R.98 of Balochistan Mining Concession Rules, 1970 read with section 5 of the Regulation of Mines and Oil-fields and Mineral Development (Government Control) Act, 1948, and thus void---Under a clause of the Joint Venture agreement respondent-company could have sought only 'consents', 'approvals' or 'assurances', and not 'relaxation' of any rule, but in the present case, in respect of every provision of the agreement, which ran contrary to the provision of any rule of Balochistan Mining Concession Rules, 1970, relaxation in the name of 'consent, approval and assurance' was sought by the respondent-company---Respondent-company, therefore, could not be said to have been acting justly and faithfully from the very inception of their relationship with the Provincial Development Authority as contemplated by the parties in one of the clauses of the Joint Venture agreement---Joint Venture exploration agreement in question, therefore, had no legal sanctity and consequently remained an agreement entered into against the provisions of law, hence not enforceable---All the key provisions of Joint Venture agreement were made subject to reliance on relaxations which were illegal and void ab initio, thus illegality seeped to the root of the said agreement, as such, no operative part of the agreement survived to be independently enforceable and the principle of severability could not be applied to save any part thereof---Joint Venture exploration agreement in question was, therefore, void and unenforceable in its entirety under the law.

Government of Andhra Pradesh v. Sri D. Janardhana Rao [(1976) 4 SCC 276; J.C. Yadav v. State of Haryana 1990 AIR SC 857; M. Venkateshwarlu v. Government of A.P. [(1996) 5 SCC 167; Sandeep Kumar Sharma v. State of Punjab [1997) 10 SCC 298 and Ashok Kumar Uppal v. State of J&K [(1998) 4 SCC 179 ref.

(b) Words and phrases---

----"Hardship"---Definition and meaning.

(c) Balochistan Mining Concession Rules, 1970---

----Rr. 30, 31 & 32---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan--Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Clauses of the Joint Venture agreement concerning grant of prospecting licences and renewal thereof---Legality--- Said clauses of the agreement violated Rules 30, 31 & 32 of Balochistan Mining Concession Rules, 1970---Joint Venture exploration agreement in question was, therefore, held to be void and unenforceable.

(d) Balochistan Mining Concession Rules, 1970---

----Rr. 27---Rights under a prospecting licence---Scope---Rule 27 of Balochistan Mining Concession Rules, 1970, conferred an exclusive right on the holder of the licence to mine, quarry, bore and search for, etc., for any specified mineral lying or being within, under or throughout the land specified in the licence---Said rule provided an exclusive right to mine for a specified mineral, but did not envisage exclusive possession of the area for which prospecting licence was granted---Right under a prospecting licence was an exclusive right for exploration of the specified minerals, but not the right to exclusive possession of the area in question.

(e) Balochistan Mining Concession Rules, 1970---

----Rr. 28 & 42---Contract Act (IX of 1872), S. 29---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Prospecting licence---Respondent-company was granted prospecting licences for exploration in an area, which was in excess of the maximum limit provided by Balochistan Mining Concession Rules, 1970---Certain clauses of the Joint Venture agreement concerning aggregate area for which prospecting licenses and mining leases were to be granted created uncertainty within the ambit of S.29 of Contract Act, 1872 and were also in violation of Rules 28 and 42 of the Balochistan Mining Concession Rules, 1970--- Joint Venture exploration agreement in question was, therefore, held to be void and unenforceable.

Clause 5.3.1 of the Joint Venture exploration agreement provided that the aggregate prospecting area shall not be more than 50 sq km whereas as per clause 5.3.2 of the agreement, where at any time the Joint Venture was active in ten prospecting licences having in aggregate an area of fifty square kilometers, it (respondent-company) shall not be permitted to apply for additional prospecting licences within the exploration area unless it first relinquished from one or more of its existing prospecting licences an area equivalent to the size of the proposed prospecting licence. However, clause 5.10 of Joint Venture agreement provided that the area shown in a map (Schedule B to the said agreement) might be revised so as to accurately represent the current status from time to time of the exploration area including all prospecting licences or mining leases in existence from time to time including the revision or relinquishment of any prospecting licences or mining leases. This clearly nullified clause 5.3.1 in the first instance, and then negatived the provision of R. 28 of Balochistan Mining Concession Rules, 1970, which provided that except as otherwise decided by the Government, a prospecting licence shall not be granted in respect of any area measuring more than 10 square miles, and R.42 of the same Rules, which laid down that the lease shall not be granted in respect of any area of more than five square miles save in case where special exemption was granted by the Government. Initially respondent-company was granted a Prospecting Licence for an area of 50 sq km for exploration, which was illegally extended to 1000 sq km pursuant to the request made by respondent-company and Provincial Development Authority. This part of the Joint Venture agreement was entered into against the letter and spirit of the law.

Clause 5.3.1 of the Joint Venture exploration agreement provided that the aggregate prospecting area shall not be more than 50 sq km. However, by virtue of clause 5.10 of the same agreement, the map attached as a Schedule to the agreement, covering an area of 13000 sq km, could be revised so as to accurately represent the current status of the area from time to time. It clearly established that the area was not final and constituted uncertainty within the ambit of section 29 of the Contract Act, 1872.

Sheikh Shahabuddin v. Vilayat Ali AIR 1926 Nagpur 435 at 439; Abdul Khaliq v. Sabir Ahmed PLD 1961 BJ 79; Rauf Ahmed Ghori v. Managing Director, Cholistan Development Authority, Bahawalpur 1998 CLC 1464 and Ahmed Ali Khan v. City District Government, Karachi 2009 MLD 704 ref.

(f) Balochistan Mining Concession Rules, 1970---

----Rr. 30 & 31---Balochistan Mineral Rules, 2002, Rr. 125 & 67---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Prospecting licences for exploration granted to respondent-company---Extension/renewal of such prospecting licences was made in violation of Balochistan Mining Concession Rules, 1970---At the time of promulgation of Balochistan Mineral Rules, 2002 prospecting licence of respondent-company had expired and was not further renewed, as such its rights under the licence ceased and were never protected---Provincial Government, in such circumstances, instead of inviting bids for awarding new exploration licences for Reko Diq area awarded exploration licence to the respondent-company, which was renewed for a further period of 6 years---Extraordinary and undue favour were granted under the Joint Venture exploration agreement---Joint Venture exploration agreement in question was, therefore, held to be void and unenforceable.

Prospecting licences granted to respondent-company were renewed for a period of one year in 1998 and in 1999 and it was extended the facility of prospecting licence in the Reko Diq area for a period of 5 years as against 3 years provided under R. 31 of Balochistan Mining Concession Rules, 1970. This provision was attempted to be circumvented by issuing a fresh prospecting licence on 21-2-2000 for the same area for 2 years wherein the licensee was given the option to retain the area beyond one year subject to their giving one month's notice in writing of their intention to do so. This was contrary to R. 30 of Balochistan Mining Concession Rules, 1970, which stipulated grant of (new) prospecting licence for a period not exceeding one year.

Balochistan Mineral Rules, 2002, were promulgated on 9-3-2002 and the licences and leases granted prior to the notification of said Rules, which were continuing at that time were protected by means of R.125 of the said Rules. Respondent-company did not have any mineral title at the time of notification of Balochistan Mineral Rules, 2002 as fresh prospecting licence issued to it on 21-2-2000 had already expired on 21-2-2002 and was not further renewed. As such, its rights accrued under fresh prospecting licence, having already ceased, were never protected. Since respondent-company did not have any mineral title under the Balochistan Mineral Rules, 2002, Provincial Government was empowered under R.67 of the said Rules to invite bids to tender for award of exploration licences for the same area. However, Provincial Government did not exercise its prerogative and instead granted exploration licence for the Reko Diq area to the respondent-company, which was renewed for a further period of 6 years. Under the Joint Venture exploration agreement, respondent-company enjoyed rights for exploration in the Reko Diq area between 1994 and 1996; held a prospecting licence for the same area for 5 years and an exploration licence for the same area for 9 years, meaning thereby that the exploration/prospecting facility was extended to respondent-company for a total period of 17 years, which was an extraordinary and undue favour in itself granted under the Joint Venture exploration agreement.

(g) Balochistan Mining Concession Rules, 1970---

----R. 39---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Confidentiality clause in the said agreement regarding information acquired by the respondent-company in the course of its operations---Legality---Disclosure of information acquired during course of operations---Scope---One of the clauses of the Joint Venture exploration agreement provided that the terms and conditions of the agreement and all mining information acquired by a party by reason of the operation of the agreement shall be confidential---Said clause ran contrary to the provision of R.39 of Balochistan Mining Concession Rules, 1970, which provided that if so required by the licensing authority, the licensee shall, before the return of the deposit made by him, disclose confidentially to the licensing authority all information acquired in the course of the operations carried or the geological formation of any area not taken up by him under a mining lease---Joint Venture exploration agreement was, thus, held to be void and unenforceable.

(h) Balochistan Mining Concession Rules, 1970---

----Rr. 65 & 98---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Royalty to be paid to the Government---Procedure to be followed in case of non-payment of such royalty---Scope---Entire procedure to be followed in case of non-payment of royalty in terms of R.65 of Balochistan Mining Concession Rules, 1970 was done away with under the Joint Venture agreement in question---Effect---Joint Venture exploration agreement was held to be void and unenforceable.

Rule 65 of Balochistan Mining Concession Rules, 1970 required the licensee or lessee to pay royalty at the rates to be notified by the Government from time to time of all minerals extracted by him. It further laid down that in case of non-payment of royalty within the prescribed time, the first two months shall be treated as grace period whereafter a penalty @ 6% of royalty dues shall be charged in case the payment was made after the expiry of the second month next after the due date. Furthermore, in case royalty along with penalty was not paid until expiry of the fourth month from the due date, the licensee or lessee shall be liable to pay a further penalty of up to Rs.50,000/- as determined by the licensing authority and in case it was not paid until the expiry of the six months after the date it first became due, the licence or lease shall be cancelled forthwith. From the perusal of the relaxation sought by the respondent-company in the present case and the provision of the rule in question, it was clear that the entire procedure to be followed in case of non-payment of royalty was done away with under the Joint Venture exploration agreement. Such a relaxation could not be sought and granted. It was an illegal exercise.

(i) Balochistan Mining Concession Rules, 1970---

----R. 33---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Payment of annual fee by the licencee---Amount of annual fee to be paid by the respondent-company (licencee) was first reduced and then waived off in relaxation of R.33 of Balochistan Mining Concession Rules, 1970---Legality---Competent authority waived off the annual fee, which was to be paid by the respondent-company for a period of three years, without mentioning as to why it was necessary to exempt the company from paying such fee---Respondent-company had been exempted from the payment of annual fee in relaxation of R. 33 of Balochistan Mining Concession Rules, 1970---No justification was provided for such waiver, which was an extraordinary treatment meted out to respondent-company whereby a (huge) loss was caused to the public exchequer without any justification whatsoever having been brought on the record---Joint Venture exploration agreement was, thus, held to be void and unenforceable.

(j) Balochistan Mining Concession Rules, 1970---

----R. 3---Contract Act (IX of 1872), S. 23--- UNIDROIT Principles of International Commercial Contracts 2010, Art. 3.2.7---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Lack of transparency---Lack of understanding of the issue on part of the Provincial Government---Manipulation of Provincial Government by foreign companies---Effect---Neither any tenders were invited nor any public advertisement was made before the said agreement---Such handling of an issue of great public importance was against public policy because it certainly caused injury to the public good---Joint Venture exploration agreement was entered into in violation of a large number of provisions of Balochistan Mining Concession Rules, 1970, therefore, it was opposed to public policy and was hit by S.23 of the Contract Act, 1872---Different foreign companies (respondents) by means of the Joint Venture exploration agreement and other related agreements preyed upon the huge gaps in understanding on the part of Provincial Government of large scale mineral extraction and were in a distinct position to manipulate and dominate the will of the Provincial Government, therefore, Joint Venture agreement in question was unenforceable under Art.3.2.7 of the UNIDROIT Principles of International Commercial Contracts (2010)---Various provisions in the Joint Venture exploration agreement and other agreements related to it, purported to bind the (Provincial) Government and its functionaries in the discharge of their statutory duties, which was not permissible, and was also opposed to public policy in terms of S. 23 of the Contract Act, 1872---Joint Venture exploration agreement and all other agreements related to it were, thus, void and unenforceable.

No initiative was taken by the Provincial Development Authority or any other department of the Provincial Government to publish advertisement in the press and invite tenders with a view to providing opportunity to other investors in the field of mining to come forward and compete with others. No doubt foreign investment in any modern economy was to be encouraged by all means, but all such activities were required to be carried out observing due process of law, which alone was a sure guarantee of the protection and promotion of the public interest. In the present case, it appeared that Provincial Development Authority entered into negotiations with respondent-company and took up the issue of grant of exploration rights with Provincial Government in the most haphazard manner. Provincial Development Authority ought to have provided adequate opportunities to concerned departments for proper examination of the case and it was in neither party's interest to enter into an agreement without considering its pros and cons.

Processing of the matter by Provincial Government substantiated that public advertisements were not resorted to in the interest of transparency and to obtain the best competitive price for the disposal of public property, i.e., mineral resources in Reko Diq, and thereby denied participation to other investors of the field to the detriment of the general public, and especially the people of the province. Such handling of an issue of great public importance was against public policy as well because it certainly caused injury to the public good and, therefore, provided a basis for denying the legality of the transaction in question. Section 23 of the Contract Act, 1872 provided that the consideration or object of an agreement was lawful, unless it was forbidden by law; or was of such a nature that, if permitted, it would defeat the provisions of any law; or was fraudulent; or involved or implied injury to the person or property of another; or the court regarded it as immoral, or opposed to public policy. Every agreement for which the object or consideration was unlawful was void. In the present case, Joint Venture exploration agreement was entered into in violation of a large number of provisions of Balochistan Mining Concession Rules, 1970, therefore, it was opposed to public policy and was hit by section 23 of the Contract Act, 1872.

Nothing had been brought on the record to show that the Finance Department, which was required under Balochistan Government Rules of Business 1976 to scrutinize such a joint venture, had approved the project in question. An attempt was made to take undue advantage out of the political instability prevailing at that time, inasmuch as at that time, a Caretaker Government was in place. Different foreign companies (respondents) by means of the Joint Venture exploration agreement and other related agreements preyed upon the huge gaps in understanding on the part of Provincial Government of large scale mineral extraction and were in a distinct position to manipulate and dominate the will of the Provincial Government. Under Art.3.2.7 of the UNIDROIT Principles of International Commercial Contracts (2010) a contract which had been conceived by a party seeking to take unfair advantage of the other party's dependence, economic distress or its improvidence, ignorance, inexperience and lack of bargaining skill could not be enforced.

Various recitals in the Joint Venture exploration agreement and other agreements related to it, purported to bind the (Provincial) Government and its functionaries in the discharge of their statutory duties, which was not permissible. Such aspect too was opposed to public policy in terms of section 23 of the Contract Act, 1872. Accordingly, all the said instruments were void and not enforceable in the courts of law.

Queensland Titanium Mines v. Chalk 1975 AC 520 ref.

(k) Balochistan Mining Concession Rules, 1970---

----R. 3---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Irregularities in the execution of the said agreement---Record showed that the executant of the Joint Venture agreement was an officer who held dual position of Chairman of Provincial Development Authority and Additional Chief Secretary at the relevant time---Said two positions were very distinct in the eyes of the law; the first was an office holder in a statutory incorporated body while the latter was an officer of the Provincial Government authorized to represent the Government---In the former position, officer in question forwarded the case to the Provincial Government whereupon in the latter position he chaired the meeting wherein decisions regarding the Joint Venture agreement were taken---Such circumstances made it a clear case of conflict of interest---Record also showed that officer in question showed a visible haste on his part to execute the Joint Venture agreement, when in fact there was a greater burden on him not only to be fair in his adherence to the law, but also to disassociate himself from the matter as far as his position as applicant was concerned---Record also showed that officer in question disregarded caution sounded by several departments---Joint Venture exploration agreement was, thus, held to be void and unenforceable.

(l) Balochistan Mining Concession Rules, 1970---

----R.14---Companies Ordinance (XLVII of 1984), Ss. 451, 452 & 456---Constitution of Pakistan, Arts. 185(3) & 184(3)---"Mining licence or lease only to be granted to a company incorporated in Pakistan"---Scope---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Plea of petitioner that neither respondent-company was registered under the Companies Ordinance, 1984 nor did it have any place of business in Pakistan on the date of execution of Joint-Venture agreement as required by the said Ordinance, therefore, respondent-company was not competent to apply for and have a grant of mineral licences in terms of Rule 14 of Balochistan Mining Concession Rules, 1970---Validity---Rule 14 of the Balochistan Mining Concession Rules, 1970 provided that a licence or lease shall only be granted or assigned to a company incorporated in Pakistan---Joint Venture agreement in question itself provided that the law applicable to it shall be the law of Pakistan, including the principles of international law as duly acknowledged and agreed by the parties---Every foreign company operating in Pakistan was required under the law to obtain a permission to establish a liaison office or branch office---Companies that were issued such permission to establish an office registered with the Board of Investment were regulated by the Companies Ordinance, 1984---Sections 451 & 452 of the said Ordinance, laid down requirements for documents to be delivered to the Registrar of Companies by foreign companies and returns to be delivered where alterations were made in documents---Respondent-company was incorporated in a foreign country and for all practical and legal purposes, it was to be treated as a foreign entity for all references to its nationality vis-à-vis rights and obligations accruing under the law---Respondent-company failed to produce before the court certificates of registration from the Board of Investment or the Registrar of Companies issued in its favour---Under S.456 of the Companies Ordinance, 1984, in the absence of such registration, a foreign company could not institute legal proceedings without fulfilling requirements of Ss.451 & 452 of the said Ordinance, and it lost its rights to bring a suit or legal action for any liability arising in its favour out of any contract it might have entered into in default of such registration---Joint Venture exploration agreement was, thus, held to be void and unenforceable.

Hala Spinning Mills Ltd. v. International Finance Corporation 2002 SCMR 450 ref.

(m) Balochistan Mining Concession Rules, 1970---

----R. 3---Registration Act (XVI of 1908), S. 17---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Respondent-company transferring its interest under the Joint Venture agreement to another company without getting the said agreement registered---Legality---Section 17(1)(b) of the Registration Act, 1908 provided that an instrument, which purported or operated to create, declare, assign, limit or extinguish, whether in present or in future any right or interest of the value of one hundred rupees and upwards to or in immovable property shall be registered---In the present case, both parties to the Joint Venture agreement failed to get the agreement registered under S.17 of the Registration Act, 1908---Subsequent assignment of rights under the Joint Venture agreement purported to be done through another agreement was also not registered in terms of S.17 of the Registration Act, 1908---Joint Venture exploration agreement was, thus, held to be void and unenforceable.

(n) Balochistan Mining Concession Rules, 1970---

----R. 3 & Part III--- Regulation of Mines and Oil-fields and Mineral Development (Government Control) Act (XXIV of 1948), S.2---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Provincial Government was purportedly made part of the said agreement---Sovereignty of Provincial Government---Plea of petitioner was that if Provincial Government itself had become a party to the Joint Venture agreement, it would then be bound by all the decisions taken by the operating committee of the Joint Venture, where decisions would be taken on the basis of voting strength, determined by percentage interest in the Joint Venture; that all powers relating to prospecting and mining operations would then be vesting in the respondent-company and Provincial Government, which was the licensing authority for mines, would be performing its functions subject to direction by the respondent-company and that all this was tantamount to subordinating sovereign rights of the province to a foreign company for the latter's monetary interests---Validity---Joint Venture agreement provided for its own framework for the transfer of interests under the contract for mining development far away from the statutory framework provided in the Balochistan Mining Concession Rules, 1970---Joint Venture agreement in question was tantamount to usurpation of executive and legislative prerogatives---No exemption or relaxation of rules could grant a foreign company the power to create ad hoc rules to apply to a specific contract with regard to licences issued by a statutory body---Joint Venture agreement not only made relevant rules redundant, but also created the possibility of mining development without Government approval and even to the exclusion of the Provincial Development Authority---Joint Venture agreement also provided for the inclusion of other parties in the future as a mining consortium without recourse to government licensing or authorization---Terms of the Joint Venture agreement gave it an overriding effect over the legislative process and thereby attempted to make subservient the laws of a sovereign country, which could not be approved---Joint Venture exploration agreement was, thus, held to be void and unenforceable.

Part III of Balochistan Mining Concession Rules, 1970 provided for the issuance of a mining lease and the statutory procedure for making applications for the same. In the absence of the application of Balochistan Mining Concession Rules, 1970, Joint Venture agreement in question attempted to exercise the statutory right of creating rules governing its operations, which was a right reserved for competent authority under section 2 of Regulation of Mines and Oil-fields and Mineral Development (Government Control) Act, 1948. Joint Venture agreement provided for its own framework for the transfer of interests under the contract for mining development far away from the statutory framework provided in the Balochistan Mining Concession Rules, 1970. It utterly disregarded all the rules provided therein and attempted to create an ad hoc system of awarding the parties mining leases automatically. It declared that prospecting licences issued by the Provincial Government shall be 'converted into' mining licences. This went much beyond the scope of an exemption and was tantamount to usurpation of executive and legislative prerogatives. No exemption or relaxation of rules could grant a foreign company the power to create ad hoc rules to apply to a specific contract with regard to licences issued by a statutory body. Joint Venture agreement provided that where the Joint Venture or a participating party elected to develop a mine, then, subject only to compliance with routine Government requirements, it shall be entitled to convert the relevant prospecting licence(s) into mining licences so as to give a secure title over the required mining area. This not only rendered the rules redundant, but also created the possibility of continuing 'mining development' without Government approval and even to the exclusion of the Provincial Development Authority. It also disregarded the terms and conditions of the prospecting licences issued to the respondent-company by the concerned Directorate of Mineral Development, which, inter alia, provided that the licence would not confer upon respondent-company any right to renewal of the prospecting licence or grant of a mining lease over the area or any part thereof unless the prospecting or work obligations as required under the licence had been carried out to the satisfaction of the said Directorate. Besides, Joint Venture agreement provided for the inclusion of other parties in the future as a mining consortium without recourse to government licensing or authorization.

Joint Venture agreement also provided that in case of change in legislation, which was applicable to the agreement, if the change or the new provision was more favourable to the Joint Venture or one of the parties than the relevant laws, Acts, rules or regulations in effect on the date the agreement was signed, the Joint Venture and the party concerned shall promptly apply to receive the benefits of such change or new provision. However, if, on account of the change or new provision, the economic benefits to any party or the Joint Venture existing, or to arise under the Joint Venture, were materially and adversely affected, directly or indirectly, then Joint Venture agreement shall continue to be implemented in accordance with its original terms. Clearly this gave an overriding effect to Joint Venture agreement over the legislative process and thereby attempted to make subservient the laws of a sovereign country, which could not be approved.

(o) Balochistan Mining Concession Rules, 1970---

----R. 3---Balochistan Development Authority Act (X of 1974), Ss. 3(2), 16(1)(b)(i) & 17(6)--- Contract Act (IX of 1872), Ss. 20 & 196---Balochistan Government Rules of Business, 1976, R. 7(2)---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Provincial Government was subsequently made party to the said agreement by the Provincial Development Authority, which purportedly acted as an agent of the Provincial Government---Legality---Uncertainty as to the relationship between principal and agent---"Mistake of fact"---Effect---Provincial Government was purportedly made a party to the Joint Venture agreement by way of an addendum to the agreement---While signing the said addendum Provincial Development Authority purportedly acted as an agent of the Provincial Government under the Joint Venture agreement, which was a mistake of fact, therefore, the same was void under S.20 of the Contract Act, 1872--- Provincial Development Authority possessed its own legal personality, distinct and separate from the Provincial Government---Balochistan Development Authority Act, 1974 did not authorize the Provincial Development Authority to act as an agent of the Provincial Government---By means of the addendum, in the name of ratification in terms of S.196 of the Contract Act, 1872, instead of making amendments in the Joint Venture agreement, its entire complexion was changed---Provincial Development Authority while entering into the addendum remained in a state of confusion as to whether Joint Venture agreement was, or any subsequent agreement on the subject had, to be entered into by it independently of any other department of the Provincial Government---Such confusion on the part of Provincial Development Authority as well as Provincial Government led to a fundamental "uncertainty" and ambiguity in the Joint Venture agreement, which rendered the contract void ab initio---Joint Venture agreement suffered from "uncertainty" as to the parties to the agreement and was void ab initio.

As per the definition clause of Joint Venture agreement, "parties" (to the agreement) meant respondent-company and Provincial Development Authority. Both Provincial and the Federal Government were entities outside the ambit of "parties" as defined in the Joint Venture agreement. However by execution of an addendum, which was signed some 7 years after the signing of the Joint Venture agreement, Provincial Government was purportedly made a party to the agreement. The opening page of the addendum recited that the same was made between the Governor of the province for and on behalf of the province, and the Provincial Development Authority. Thus, in the Addendum, as against the original bipartite agreement, a tripartite agreement was executed, and Provincial Government was purported to be made a party. Such an assumption constituted a "mistake of fact". Merely because Governor of the province was mentioned in the title of the Joint Venture agreement would not mean that Provincial Government had become a party to the agreement. Addendum was a device to indirectly bring Provincial Government into the pale of the Joint Venture agreement, which object could only be achieved by following the course provided under the law. All clarifications and ratifications provided in the addendum were based on a mistake of fact within the contemplation of section 20 of the Contract Act, 1872. Such a "mistake of fact" on the part of respondent-company made the contract void and unenforceable.

Inclusion of Provincial Government as a new party to the Joint Venture agreement required an affirming signature under the hand of a duly authorized representative or agent of the Provincial Government in terms of R.7 of the Balochistan Government Rules of Business, 1976, however the same was not done in the present case.

An undated authorization letter on a plain paper was got signed from the then Governor of the province purporting to authorize the Provincial Development Authority to sign the addendum on behalf of the Governor. Purported authorization by the Governor to sign the agreement as an agent in favour of Provincial Development Authority was through a note by the Governor titled 'Authorization Letter' which was not printed on the Governor's letterhead, carried no date, notification number, nor was it addressed to any office or authority or even stamped. Neither was there any supporting documentation, nor did the said letter provide a reference to a decision of the Cabinet on the matter. Approval obtained from the Governor on an undated plain paper was improper and untenable in the eyes of law. By means of the addendum, in the name of ratification in terms of section 196 of the Contract Act, 1872, instead of making amendments in the Joint Venture agreement, its entire complexion was changed.

Provincial Government, in the present case was at all times aware of the actions of Provincial Development Authority as being performed by the latter in its own name and authority. The principle of ratification as envisaged in S.196 of the Contract Act, 1872 was not applicable. As such, the ratification purported to be made in the addendum was of no consequence.

All agreements signed subsequent to the Joint Venture agreement were also premised on a mistake of fact that Provincial Development Authority was an agent of the Provincial Government under the Joint Venture agreement, therefore, the same were also void under S.20 of the Contract Act, 1872. At no stage of the proceedings, was any document creating relationship of principal and agent between Provincial Government and Provincial Development Authority produced or referred to. Balochistan Development Authority Act, 1974 did not authorize the Provincial Development Authority to act as an agent of the Provincial Government, rather the said Act required Provincial Development Authority to seek approval of the Provincial Government in certain matters while performing its functions enumerated in the said Act.

Provincial Development Authority possessed its own legal personality, distinct and separate from the Provincial Government and was not even listed as an attached department under any of the Departments of Provincial Government in the Balochistan Government Rules of Business, 1976. Provincial Development Authority while entering into the addendum remained in a state of confusion as to whether Joint Venture agreement was, or any subsequent agreement on the subject had, to be entered into by it independently of any other department of the Provincial Government. All that Provincial Development Authority was required to do was to seek approval of the Provincial Government through its Board of Directors for the project of mineral exploration in terms of section 4 of Balochistan Development Authority Act, 1974 and enter into a Joint Venture Agreement in terms of section 17 read with section 16 of the same Act. This confusion on the part of Provincial Development Authority as well as hierarchy of Provincial Government led to a fundamental "uncertainty" and ambiguity in the Joint Venture agreement, which rendered the contract void ab initio.

Provincial Government was not a party to the Joint Venture agreement, therefore, it could not be said to have entered into an agreement with any company or a prospective licensee of the nature referred to in said agreement or the addendum. Joint Venture agreement suffered from uncertainty as to the parties to the agreement and was void ab initio.

(p) Balochistan Mining Concession Rules, 1970---

----R. 3---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Provincial Government made party to the said agreement--- Percentage interest of each party in the said agreement: Respondent-company entitled to 75% interest under the said agreement, while Provincial Government/Provincial Development Authority was given 25% "free carried interest up to discovery"---Adequacy---Provincial Development Authority was liable to bear a host of expenditures in connection with the Joint Venture activities, and it could not be said that Provincial Government was entitled to 25% "free carried interest up to discovery"---Joint Venture agreement in question was entered into for an inadequate consideration as regards the percentage interest of Provincial Development Authority---Joint Venture exploration agreement was, thus, held to be void and unenforceable.

During mineral exploration both the lessor and lessee did not get any return until the activity reached the final stage, i.e., extraction of the mineral in question, its smelting and thereafter its marketing. Therefore, to say that Provincial Development authority would be getting 25% interest from the inception of the agreement did not reflect the correct position.

Consideration of Provincial Government under the Joint Venture agreement could not in fact be termed as 25%. Provincial Development Authority was liable to bear a host of expenditures in connection with the Joint Venture activities. Certain clauses of the Joint Venture agreement provided that the costs of activities and operations within a mining area shall be paid for by the participating parties in proportion to their respective percentage interests; that upon minerals being produced from the mining area, respondent-company shall be entitled to recover from Provincial Development Authority (i) all of those costs (principal sums) which respondent-company contributed on behalf of Provincial Development Authority to the mining development and (ii) compounding interest accruing on the principal sums (with interest); that Provincial Development Authority would provide support/services to respondent-company in terms of appropriate administrative support as required for the obtaining of all leases, licences, claims, permits or other authorities of any kind whatsoever being necessary for the conduct of Joint Venture activities; that Provincial Development Authority would be responsible for providing interpretation and liaison services as might be reasonably required and it would also be responsible for providing all mining information and any other relevant information in its possession; that Provincial Development Authority would provide accommodation of a reasonable standard for persons involved in the conduct of the Joint Venture activities and would also be responsible to provide suitable security arrangements for persons engaged upon Joint Venture activities within the exploration area or whilst such persons were in the course of travelling to or from the exploration area; that Provincial Development Authority would be liable for negotiating all necessary land access agreements in connection with further prospecting licences and also for liaising with relevant Provincial Government and local government authorities and with affected local landholders to ensure that good relations were maintained between the Joint Venture and other persons during the conduct of Joint Venture activities.

Provincial Development Authority was liable to bear a host of expenditures in connection with the Joint Venture activities, and it could not be said that Provincial Government was entitled to 25% "free carried interest up to discovery". Joint Venture agreement was entered into for an inadequate consideration as regards the percentage interest of Provincial Development Authority.

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

----S.196---Agency by ratification--- Scope--- One of the established essentials of ratification in law was that the purported agent must have been acting in the name of the purported principal, always having been representing himself as a lawful agent of the same--- Acts done by a person in his own name and in his separate legal capacity were not capable of subsequent ratification by another person.

Sanaullah v. Muhammad Rafiq 2003 CLC 138; Muhammad Zakaria v. Basher Ahmad 2001 CLC 595 and Imperial Bank of Canada v. Mary Victorial Beqley AUIR 1936 PC 193 ref.

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

----Ss. 62 & 23---Novation, rescission and alteration of contract---Novation of contract, which is based on an illegal contract---Enforcement of---Scope---Section 62 of the Contract Act 1872, dealt with novation, rescission and alteration of contract, and provided that if the parties to a contract agreed to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed---Necessary element for the execution of a valid novation of contract was the validity of the original agreement that was to be substituted---Where an agreement was void, all subsequent alterations, variations or novations based upon such agreement would also be invalid---When a contract was unlawful or illegal as being prohibited by a specific provision of the statute, it could not be enforced, although the parties might have entered into a novation of the contract on the basis of such unlawful or illegal consideration---Further, a collateral illegal contract or an earlier illegal contract, in spite of a novation would, still remain illegal and a court of law would decline to grant any relief to any one of the parties even in respect of such a collateral contract, or an earlier illegal contract, which was the basis of the suit contract and on which a cause of action might be founded---Court of law should decline to enforce even a perfectly innocent and legal contract where it arose out of a collateral illegal contract or an immoral contract or any legal contract which had for its basis an earlier illegal or immoral contract, in spite of the fact that the parties might have entered into a novation---Where there was a direct connection between a fresh contract after novation and the earlier illegal contract or the earlier collateral contract, the novated contract would still continue to be illegal or immoral and the court would refuse to enforce the same in view of the provisions of S.23 of the Contract Act, 1872.

Haji Habib v. Bhikamchand Jankilal Shop AIR 1954 Nag. 306; Hussain Kasam Dada v. V.C. Association AIR 1954 Mad. 528 and Peddi Virayya v. Deppalapudi Subba Rao AIR 1959 Andra Pra. 647 ref.

(s) Balochistan Mining Concession Rules, 1970---

----R. 3---Transfer of Property Act (IV of 1882), S. 7---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Said agreement allowing respondent-company to assign its interest under the agreement to any other corporation/company without consent of licensing authority---Legality---One of the clauses of the Joint Venture agreement entitled respondent-company to assign its interest or any part thereof to a related corporation without the consent of the non-assigning party, thus, said clause was contrary to the provisions of R. 12 of Balochistan Mining Concession Rules, 1970---All such clauses in the Joint Venture agreement advanced and safeguarded the interests of just one party, namely, respondent-company and/or its assignee---Joint Venture agreement was itself void in terms of various provisions of the Contract Act, 1872, and consequently unenforceable---No transfer or assignment of an interest under a void agreement could be made by any of the parties to such an agreement as it would be violative of the principle contained in S.7 of the Transfer of Property Act, 1882, which provided that only such person was competent to transfer property who was competent to contract and entitled to transferable property or authorized to dispose of transferable property---Joint Venture exploration agreement was, thus, held to be void and unenforceable.

(t) Balochistan Mining Concession Rules, 1970---

----R. 3---Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011), S.2(a) & Sched.---Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York" Convention), Art. 11(3)---United Nations Convention against Corruption 2003, Art. 34---Constitution of Pakistan, Arts.185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Arbitration proceedings in connection with said agreement were initiated before international forums---Jurisdiction of Supreme Court of Pakistan to decide the legality of said agreement in such circumstances---Scope---Law applicable to the Joint Venture agreement in question, was the law of Pakistan, therefore, the courts of Pakistan were the appropriate forum to decide the legality of the said agreement---Respondent-company first obtained interim orders (from the courts in Pakistan), but then rushed to international forums without first exhausting the legal remedies available to them under the law of Pakistan, which was the applicable law of the agreement---Article 11(3) of the New York Convention stated that the court of a contracting State, when seized of an action in a matter in respect of which the parties had made an agreement within the meaning of the said Article shall, at the request of one of the parties, refer the parties to arbitration, unless it found that the agreement was null and void, inoperative or incapable of being performed---Article 34 of the UN Convention against Corruption 2003 provided that with due regard to the right of third parties, acquired in good faith, each State party shall take measures, in accordance with the fundamental principles of its domestic law, to address consequences of corruption, and, in such context, States parties might consider corruption as a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument or take any other remedial action---Supreme Court of Pakistan, in such circumstances, could decide upon (the legality of) the Joint Venture agreement in question and documents related to it.

(u) Balochistan Mining Concession Rules, 1970---

----R. 3---Balochistan Mineral Rules, 2002, R. 7---Minerals in land---Scope---Minerals in land were nature's endowment for the people of the country--Minerals were in nature of public trust---Rules regarding minerals acted as guardians of the said public trust---Title in minerals could be given away only in accordance with law and not through any other means---Adherence to rules regarding minerals ensured that minerals were exploited and given away in national interest.

(v) Words and phrases---

----"Sovereignty of State"---Meaning and scope.

Concept of sovereignty meant supreme authority in a political community. A sovereign State was often described as one that was free and independent. In its internal affairs it had undivided jurisdiction over all persons and property within its territory. It claimed the right to regulate its economic life without regard for its neighbours and to increase its armaments without limit. No other nation might rightfully interfere in its domestic affairs. In its external relations, it claimed the right to enforce its own conception of rights and to declare war. In political theory, the ultimate authority of the State in the decision-making process and in the maintenance of order was called sovereignty. Its supreme and independent power was exercised in the domestic and foreign policy. As per dictionary meaning, sovereignty was supreme and unrestricted power, as of a State; the position, dominion, or authority of a sovereign, and an independent State. Sovereignty was manifested above all in the way a State functioned, but it was most apparent in the system of State rights, including sovereign rights. It is precisely the State's powers that ensured the State's authority and thus its sovereignty. Only State power could authoritatively influence and, when necessary, exercise coercion on all aspects of life in human society. State power was in effect universal and sovereign in nature. A State's domestic sovereignty was closely linked with its independence from foreign powers.

(w) International law---

----Contract---Where a contract is entered into with a foreign national or a foreign company, it is governed by the municipal laws of the country where the contract is executed subject to any special provision to the contrary incorporated in the contract.

(x) Balochistan Mining Concession Rules, 1970---

----R. 3---Civil Procedure Code (V of 1908), O. VI, R.1---Constitution of Pakistan, Arts. 199, 185(3) & 184(3)---Pleadings, retraction of---Scope---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Said agreement was challenged before the High Court by way of a constitutional petition, and the Provincial Government, which was a party to the petition, defended the said agreement---Joint Venture agreement was subsequently challenged before the Supreme Court by way of petitions under Art.184(3) of the Constitution and this time Provincial Government challenged the legality of said agreement---Plea of respondent-company that Provincial Government had modified its position before the Supreme Court, which amounted to retraction of pleadings---Validity---Present petitions were filed by the petitioners and entertained by the Supreme Court by way of public interest litigation considering the peculiar facts and circumstances of the present case where despite the fact that grave illegalities and irregularities were committed in the execution of Joint Venture agreement and other instruments, the Provincial Government failed to defend the petition filed before the High Court under Art.199 of the Constitution and protect the interests of the people of the province---No question of retraction of pleadings existed on the part of Provincial Government inasmuch as the law permitted parties to modify position if there were developments subsequent to the filing of the case or new facts came to light---Record of the Joint Venture agreement in question made shocking disclosures of extensive irregularities and corruption---Provincial Government examined record of the Joint Venture agreement and decided not to defend the said acts and accordingly rendered full assistance to the Supreme Court.

(y) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of the Supreme Court under Art.184(3) of the Constitution---Scope---Supreme Court had wide powers in terms of Art.184(3) of the Constitution to oversee the acts/actions of the other organs of the State, namely, the Executive and the Legislature.

(z) Constitution of Pakistan---

----Arts. 184(3) & 199---Judicial review of acts of State functionaries---Grounds---Scope---Discharge of constitutional duty by the state functionaries in deviation to the spirit of the Constitution could be anvil to the Constitution and was challengeable on diverse grounds including mala fide and colourable exercise of the power in bad faith for ulterior motive---Validity and immunity could not be conferred to the mala fide act or action from judicial scrutiny in exercise of power of judicial review which was inherent in the superior courts.

Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; Sabir Shah v. Federation of Pakistan PLD 1994 SC 738; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Asad Ali v. Federation of Pakistan PLD 1998 SC 161; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263; Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57; Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; In the matter of Reference No.2 of 2005 by the President of Pakistan PLD 2005 SC 873; Javed Jabbar v. Federation of Pakistan PLD 2003 SC 955; Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; Wattan Party v. Federation of Pakistan PLD 2006 SC 697; 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; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61; Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Bank of Punjab v. Haris Steel Industries (Pvt) Ltd. PLD 2010 SC 1109; Shahid Orakzai v. Pakistan PLD 2011 SC 365; Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407; Federation of Pakistan v. Munir Hussain Bhatti PLD 2011 SC 752 and Wattan Party v. Federation of Pakistan PLD 2011 SC 997 ref.

(aa) Balochistan Mining Concession Rules, 1970---

----R. 3---Regulation of Mines and Oil-fields and Mineral Development (Government Control) Act (XXIV of 1948), S. 5---Contract Act (IX of 1872), Ss. 20, 23 & 29---Transfer of Property Act (IV of 1882), S. 7---Constitution of Pakistan, Arts. 185(3) & 184(3)---Copper and gold reserves in Reko Diq area of province of Balochistan---Joint Venture exploration agreement between Provincial Development Authority and respondent-company---Irregularities and illegalities committed in the execution of the said agreement---Jurisdiction of Supreme Court to adjudge the validity of said agreement---Scope---Supreme Court had the jurisdiction to adjudge the validity of Joint Venture agreement in question on several grounds, including non-transparency, violation of law/rules, curtailment of the fundamental rights of the general public, etc.---Joint Venture agreement was executed contrary to the provisions of the Regulation of Mines and Oil-fields and Mineral Development (Government Control) Act, 1948, the Balochistan Mining Concession Rules, 1970, the Contract Act, 1872, the Transfer of Property Act, 1882, etc., and was even otherwise not valid, therefore, the same was illegal, void and non est---All subsequent agreements which were based upon or emanated from the Joint Venture agreement were also illegal and void---All such agreements did not confer any right on respondent-company or any other company---Exploration licence granted in respect of Reko Diq area tantamount to exploration contrary to rules and regulations as it was based on the Joint Venture agreement, which itself had been held to be non est---Joint Venture exploration agreement in question was held to be void and unenforceable.

Raza Kazim, Senior Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record assisted by Usman Raza Jamil for Petitioner (in C.P. No.796 of 2007).

Trariq Asad, Advocate Supreme Court, Petitioner in person (in Const.P. No.68 of 2010).

Barrister Zafarullah Khan, Advocate Supreme Court, Petitioner (in person) (in Const.P. No.69 of 2010 and Crl.O.Ps.1 of 2011 and 95 of 2012).

Sahibzada Ahmed Raza Khan Qasuri, Senior Advocate Supreme Court for Petitioners (In Const. P.No.1 of 2011).

Tariq Asad, Advocate Supreme Court with Muhammad Azam Khan Swati for Petitioners (in Cons.P.No.4 of 2011).

Hasnain Ibrahim Kazmi, Advocate Supreme Court for Applicant (in Crl.M.A.No.8 of 2011).

Malik Shakeel-ur-Rehman Advocate Supreme Court for Applicant (in C.M.As. Nos.3687 of 2010 and 151 of 2011).

M. Ikram Chaudhry, Advocate Supreme Court for Applicant (in C.M.A.No.215 of 2011).

Raja Abdul Rehman, Advocate Supreme Court for Applicant (in C.M.As.Nos.324 of 2011 and 718 of 2012).

Saleem Khan, Advocate Supreme Court and Afshan Ghazanfar, Advocate Supreme Court for the Applicant (in C.M.A. 414 of 2011).

Aurangzeb, Advocate Supreme Court/Advocate-on-Record for Applicant (in C.M.A. 690 of 2011).

Ms. Robina Shah, Social Worker, Applicant (in person) (in C.M.A. 2924 of 2012).

For the Respondents:

Amanullah Kanrani, A.G., Ahmar Bilal Soofi, Advocate Supreme Court, M. Aslam Ghuman, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate on Record with Zarbat Khan, Director, Azhar Ghaffar, Dy. Dir, (Mining) assisted by M/s. Noor Ahmed Zeb, Shehzad Haider and Osman Karim Khan, Advocates for Government of Balochistan (Resp.No.1 in C.P.No.796 of 2007, Resp.Nos.2, 3 and 5 in Const.P.68 of 2010, Resp.Nos.3 and 4 in Const.P.69 of 2010, Resp.No.1 in Const. P.1 of 2011 and Resp. Nos.2-4 in Const.P.4 of 2011)

Raja Abdul Ghafoor, Advocate-on-Record, Irshad Ali Khokhar, D.G., Mineral and M. Iqbal Dir. (Mining) for Federation through M/o Petroleum etc. (Resp. No.3 in C.P. 796 of 2007), Resp.Nos.1 and 4 in Const.P.68 of 2010, Resp.Nos.1 and 2 in Const.P.69 of 2010, Resp. Nos.2, 3 and 5 in Const.P.1 of 2011 and Resp.Nos.1 and 8 in Const.P.4 of 2011).

Khalid Anwar, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record, Mehr Khan Malik, Advocate-on-Record, assisted by Barrister Zeeshan Adhi and Anas Makhdoom, Advocates for Tethyan Copper Co. Pakistan: (Resp.No.4 in C.P.796 of 2007; Resp. No.6 in Const.P.69 of 2010, Resp.No.4 in Const. P.1 of 2011 and Resp.No.6 in Const.P.4 of 2011).

Mansoor Ahmed Sheikh, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Antofagasta Plc London and Barrik Gold Corp. Canada (Resp.Nos.5 and 7 in C.P.No.796 of 2007).

Khalid Anwar, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Muslim Lakhani (Resp.No.6 in C.P. 796 of 2007).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Sikandar Bashir Mohmand, Advocate Supreme Court, Arshad Ali Ch. Advocate-on-Record assisted by Mustafa Aftab Sherpao and Hamid Ahmad, Advocates for BHP Minerals (Resp.No.8 in C.P.796 of 2007 and (Resp.No.5 in Const.P.4 of 2011).

Hadi Shakeel Ahmad, Advocate Supreme Court for Balochistan Development Authority (Resp.No.2 in C.P. 796 of 2007).

Qazi Ahmed Naeem Qureshi, Advocate Supreme Court for State Bank of Pakistan (Resp.No.5 in Const.P.69 of 2010).

Nemo for Dr. Samar Mubarakmand ((Respondent No.6 in Constitution Petitions Nos.68 of 2010 and 1 of 2011).

Nemo for Shaheen Sehbai and Ahmad Norani (Resp.No.7 in Const.P.68 of 2010).

Raja Muqsit Nawaz Khan, Advocate Supreme Court for Sardar Atif Ali Sanjarani (Resp.No.7 in Const.P.No.1 of 2011).

Shahid Kamal Khan, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Benway Corporation (Resp.No.7 in Const.P.4 of 2011).

Nemo for TCC (on Court notice).

Dates of hearing: 13th-16th, 19th-23rd, 26th-29th November, 3rd-7th, 10th-11th, 17th-21st December, 2012.

P L D 2013 Supreme Court 775

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Muhammad Ather Saeed, JJ

Rana ABDUL HAMEED TALIB---Appellant

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Civil Appeal No.679-L of 2012, decided on 21st June, 2013.

(Against the order dated 9-8-2012 of the Lahore High Court, Lahore passed in Writ Petition No.9871 of 2012).

(a) Words and phrases---

----"Lease"---Definition stated.

Black's Law Dictionary (8th Edn.) ref.

(b) Words and phrases---

----"Tenancy"---Meaning stated.

(c) Words and phrases---

----"Lease" and "tenancy"---Distinction.

Ramzan and 5 others v. Member, Board of Revenue and others 1991 CLC 2125 and Legal Terms and Phrases (2006 Edn.) by M. Ilyas ref.

(d) Words and phrases---

----"Fine"---Definition stated

(e) Punjab Rented Premises Act (VII of 2009)---

----S. 9---Tenancy agreement not conforming to the provisions of the Punjab Rented Premises Act, 2009---Application filed by landlord/tenant before Rent Tribunal on basis of such tenancy agreement---Depositing of fine by the landlord/tenant---Scope---Where the tenancy agreement was not entered into within the provisions of Punjab Rented Premises Act, 2009 and was not registered, and a landlord or the tenant approached the Tribunal for the enforcement of his right(s) under the said Act, he had to pay fine---Rent Tribunal was left with no discretion to waive off, exonerate or absolve a party coming before it, from such a fine.

(f) Words and phrases---

----"Entertain"---Definition and meaning stated.

Black's Law Dictionary Eighth Edn.; Concise Oxford Dictionary Eleventh Edn; Napram Kali Singh v. Mutum Chana Singh and another AIR 1955 Manipur 39; Messrs Lakshmiratan Engineering Works Ltd. v. Asst. Commissioner (Judicial), I, Sales Tax, Kanpur Range Kanpur and another AIR 1968 SC 488; Hindusthan Commercial Bank Ltd. v. Punnu Sahu (dead) through legal representations AIR 1970 SC 1384; Amjad Ali alias Amjadulla Talukdar and others v. Asadulla and another PLD 1952 Dacca 301; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC 600; Ch. Bashir Ahmad and 4 others v. Province of Punjab through Collector, Sargodha and 4 others 1990 MLD 986; Pakistan Steel Peoples Workers' Union v. Registrar of Trade Unions, Karachi and 6 others 1992 PLC 715 and Divisional Superintendent, P.W.R. Multan v. Abdul Khaliq 1984 SCMR 1311 ref.

(g) Punjab Rented Premises Act (VII of 2009)---

----S. 9---Interpretation and effect of S.9 of the Punjab Rented Premises Act, 2009---Tenancy agreement not conforming to the provisions of the Punjab Rented Premises Act, 2009---Application filed by landlord/tenant on basis of such an agreement before the Rent Tribunal---Entertaining of such an application by the Rent Tribunal---Scope---Where tenancy agreement did not conform to the provisions of the Punjab Rented Premises Act, 2009, the ministerial staff of the Rent Tribunal or for that matter the Tribunal itself, shall not refuse to receive an application of the landlord/tenant, as the case might be, when brought before it, rather on the first date when the matter comes before the Tribunal for the purposes of proceeding with it, the Tribunal shall (firstly) ascertain from the applicant (of the case) if a validly executed and registered tenancy agreement (as per the provisions of Punjab Rented Premises Act, 2009) was there and its availability on the record, and if that was not the case, then (secondly) whether the applicant had deposited the amount of fine as envisaged by S.9 of Punjab Rented Premises Act, 2009---If both said aspects were missing, the Rent Tribunal shall halt further proceeding in the matter---No notice shall be issued to the respondent of the case and the applicant shall first be required and directed to deposit the fine by specifying the exact amount as assessed by the Tribunal on the basis of the assertion of the applicant with regard to the rate of rent, within a specified period of time to be mentioned in the order---If such amount was deposited by the applicant/petitioner of the case within such period or the time further extended by the Tribunal, the matter shall be proceeded with further, otherwise the application shall be dismissed---Such dismissal, however, shall not operate as a bar in the way of the applicant to initiate the case afresh after depositing the fine or having a tenancy agreement (executed and registered according to law)---No proceeding to determine the case on merit shall be conducted and continued by the court, until and unless the fine was deposited by the applicant---Such was the mandate of S.9 of Punjab Rented Premises Act, 2009, which was mandatory.

(h) Punjab Rented Premises Act (VII of 2009)---

----Ss. 8 & 9---Time limit of 2 years stipulated under S.8 of Punjab Rented Premises Act, 2009 for a landlord/tenant to bring a tenancy agreement in conformity with the provisions of the said Act---Depositing of fine by landlord/tenant to bring the tenancy agreement in conformity with the said Act---Question as to whether a landlord/tenant having an existing tenancy could approach the Rent Tribunal for enforcement of his rights under the Punjab Rented Premises Act, 2009, without depositing such fine on the basis that period of two years provided under S.8 of said Act had not as yet lapsed---On the enforcement of the Punjab Rented Premises Act, 2009 all the rights and remedies under the said Act were available to the tenant or the landlord as the case might be, therefore it was ludicrous to conceive and interpret that although landlord/tenant could avail the remedies and enforce such rights and duties, but was obliged to pay the fine in terms of S.9 of the said Act because two years' time was available to him---Landlord/tenant could bring the existing tenancies in conformity with the Punjab Rented Premises Act, 2009 within two years period---Where the applicant (landlord/tenant) wanted to avail the remedy of law under Punjab Rented Premises Act, 2009, and exercise his right to enforce the duties of the opposite side, he shall be obliged to pay the fine as mentioned in S.9 of the said Act, notwithstanding it was an existing tenancy or otherwise---No exemption or moratorium etc. on the basis of two years period mentioned in S.8 of said Act shall be available to him.

(i) Punjab Rented Premises Act (VII of 2009)---

----Ss. 8 & 9---Time limit of 2 years stipulated under S. 8 of Punjab Rented Premises Act, 2009 for a landlord/tenant to bring a tenancy agreement in conformity with the provisions of the said Act---Depositing of fine by landlord/tenant to bring the tenancy agreement in conformity with the said Act---Mandatory---As to the fate of petitions, applications in relation to cases of existing tenancies which had been entertained by the Rent Tribunal under the (incorrect) impression that a landlord/tenant having an existing tenancy could approach the Rent Tribunal for enforcement of his rights under the Punjab Rented Premises Act, 2009, without depositing such fine on the basis that period of two years provided under S.8 of said Act had not as yet lapsed---Procedure---Held, that where such cases had been entertained by the Rent Tribunal and the matter was either pending before the Rent Tribunal where some (considerable) proceedings had already taken place, or the Rent Tribunal had finally decided the matter before it and the further challenge thereto was pending in appeal or before the High Court in its constitutional jurisdiction, or even before the Supreme Court, all such courts seized of the matter shall halt the proceedings and should direct the original petitioner/applicant of the case to first pay the fine as mandated by S.9 of Punjab Rented Premises Act, 2009, by determining the exact amount payable and by fixing the period in which the needful should be done; and if the amount of fine was paid, the case/matter shall be proceeded and decided on merits, if however, the order was not complied and the needful was not done the original petition/application, of the landlord or the tenant as the case might be, shall be dismissed---Where the order passed on the original side (petition/application) had attained finality and the execution proceedings were pending, the executing forum shall stop further proceedings in the matter and shall first direct the execution petitioner to pay the fine in the mode and the manner provided (above)for determining the amount and fixing the time, and till the time such fine was deposited/paid, the execution proceedings shall remain stayed---However, where the order was already executed, the rule of past and closed transaction shall be attracted and no order shall be annulled on the basis the fine envisaged by S.9 of Punjab Rented Premises Act, 2009 had not been paid.

Qamar Zaman Qureshi, Advocate Supreme Court for Appellant.

Iqbal Mehmood Awan, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondent No.3.

Date of hearing: 9th January, 2013.

P L D 2013 Supreme Court 793

Present: Anwar Zaheer Jamali, Asif Saeed Khan Khosa and Amir Hani Muslim, JJ

HASSAN and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos. 13, 14, 15 & 16 of 2004 and 53 of 2011, decided on 31st May, 2013.

(Against the judgment dated 18-2-1999 passed by the Lahore High Court, Lahore in Criminal Appeal No.322 of 1991, Criminal Revisions Nos.82 of 1992 and 178 of 1993 and Murder Reference No.499 of 1991).

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

----Ss. 302, 307, 148 & 149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Reappraisal of evidence---Sentence, reduction in---Reduction of sentence from death to imprisonment for life---Unconscionably delayed punishment---Convict who had been sentenced to death had undergone a period of custody equal to or more than a full term of imprisonment for life during the pendency of his legal remedy against his conviction and sentence of death---Effect---Accused and co-accused allegedly launched an attack on the complainant party, which resulted in death of three persons and injuries to others---Trial Court sentenced accused and co-accused to death, which sentence was upheld by the High Court---Validity---Accused was arrested from the spot by the police with a firearm in his hand---Ocular account of the incident had been furnished by four eye-witnesses out of whom two had the stamp of injuries on their bodies to vouchsafe their presence at the scene of the crime at the relevant time---Motive set up by the prosecution had been admitted by the accused party and the same had provided corroboration to the ocular account---Medical evidence provided support to the ocular account---According to the prosecution's own case it was the complainant party which had gone to the place of occurrence whereat the accused party was already present and, thus, it could well be that it was not a case of any premeditation on the part of the accused party and the incident could have taken place when the parties, otherwise inimical towards each other, had come face to face by way of a chance encounter---Present case was a case of a fight between the parties during which firing had been resorted to by both the parties---F.I.R. itself had mentioned that one of the deceased was carrying a rifle with him at the relevant time and during the spot inspection as many as twenty crime-empties of the same rifle had been secured from the place of occurrence---According to the prosecution accused was carrying a rifle at the relevant time yet no crime-empty of said rifle had been secured from the spot---No independent evidence had been brought on the record by the accused party to support its contention that complainant party was the aggressor---Despite having an ample opportunity to cause more injuries to the complainant party by keeping on firing both the accused and co-accused fired only once causing one injury each to their victims---Accused and co-accused had spent more than twenty-five years of their lives in custody, out of which period they had spent about twenty-two years in death-cells---Both of them had already spent in custody a period more than a full term of imprisonment for life and if their sentences of death were upheld by the Supreme Court then they would, for all practical purposes, be punished with death after spending a period in custody which was more than a full term of imprisonment for life and such a bizarre situation might run contrary to the letter and the spirit of section 302(b), P.P.C. which provided for a sentence of death or a sentence of imprisonment for life---Legislative intent might lean in favour of extending some relief to the accused and co-accused placed in such a predicament which was not of their own making and the least that the Supreme Court could do for them in such an unfortunate situation was to exercise its discretion in the matter of their sentences by reducing their sentences of death to imprisonment for life on the basis of the facts and circumstances of the case and also on the basis of the principle of expectancy of life---Accused and co-accused had been vegetating and rotting in death cells awaiting their execution for so long that they now appeared to have become victims themselves, victims of a monumental systemic failure which the system must acknowledge and own and in return it should extend the accused and co-accused some respite or reparation---On account of the mitigating circumstances oozing out of the facts and circumstances of the present case and also on account of the principle of expectancy of life the sentences of death passed against accused and co-accused were reduced to imprisonment for life---Supreme Court observed that the relief granted to accused and co-accused in the present case could possibly be misused through clever machinations of a convict whose neck was on the line, therefore such relief shall not be applicable to any delay caused by the Executive in processing or deciding a condemned prisoner's mercy petition or in executing his sentence of death after his judicial remedies had been exhausted; that such relief shall also not be applicable to a case wherein the convict was himself demonstrably and significantly responsible for the delay occasioned in conclusion of his judicial remedies---Appeal was disposed of accordingly.

Dilawar Hussain v. The State (Criminal Review Petition No.72 of 2007).

(b) Constitution of Pakistan---

----Art. 185---Penal Code (XLV of 1860), S.302(b)---Qatl-e-Amd---Criminal appeal before Supreme Court---Sentence, quantum of---Scope---In a case lacking malice aforethought on the part of the accused party and in a case of an occurrence developing at the spur of the moment the Supreme Court, depending upon the circumstances of the case, generally looked at the matter of sentence with some degree of empathy and consideration.

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

----S. 403(1)---Constitution of Pakistan, Art. 185---Double jeopardy---Autrefois acquit and autrefois convict, principles of---Applicability---Convict who was sentenced to death had undergone a period of custody equal to or more than a full term of imprisonment for life during the pendency of his legal remedy against his conviction---Question was as to whether sentence of death awarded to convict could be maintained by the Supreme Court despite the fact that he had already served out one of the two legal sentences provided for in S.302(b), P.P.C.---Plea of accused was that in such a situation the Supreme Court must not, affirm the sentence of death and might reduce the same to imprisonment for life in view of provisions of S.403, Cr.P.C---Validity---Principles of autrefois acquit and autrefois convict contained in S.403(1), Cr.P.C. forbid a new trial after a conviction or acquittal on the basis of the same facts had attained finality but it was equally obvious that the said principle had no application to the present situation wherein holding of a new trial was not in issue---Principles of autrefois acquit and autrefois convict contained in S.403(1), Cr.P.C. had no relevance to a case wherein the question under consideration in an appeal was not as to whether a new trial of the convict should be held or not but the issue was as to which sentence would be the appropriate sentence for a convict.

Abdul Malik and others v. The State and others PLD 2006 SC 365 and Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 ref.

(d) Constitution of Pakistan---

----Art. 189---Divergent views expressed in two different judgments of the Supreme Court---General rule as to which view/judgment was to be followed was that in such a situation usually the view expressed by a Bench of greater numerical strength was to be followed even if its view was expressed prior in time to a different view expressed by a Bench of smaller numerical strength at some subsequent stage.

(e) Constitution of Pakistan---

----Art. 13(a)---Penal Code (XLV of 1860), S.302(b)---Qatl-e-Amd---Protection against double punishment---Sentence, enhancement of---Enhancement of life imprisonment to death---Scope---Complainant/ State seeking enhancement of sentence of convict from life imprisonment to death at a time when convict had already served out a period in custody equal to or more than a full term of imprisonment for life during pendency of his appeal---In such a case wherein the convict sentenced to imprisonment for life had already served out his entire sentence of imprisonment for life, the court might, in its discretion, not enhance his sentence of imprisonment for life to death and while considering the issue of such enhancement of sentence the court might, consider the provisions of Art.13(a) of the Constitution along with the other factors for deciding whether the sentence of imprisonment for life passed against the convict might be enhanced to death or not.

Mst. Razia Begum v. Jahangir and others PLD 1982 SC 302; Mst. Promilla and others v. Safeer Alam and others 2000 SCMR 1166; Amir Khan and others v. The State and others 2002 SCMR 403; Aziz Muhammad v. Qamar Iqbal and others 2003 SCMR 579; Abdul Haq v. Muhammad Amin alias Manna and others 2004 SCMR 810; Abdul Malik and others v. The State and others PLD 2006 SC 365; Haji Tahir Hussain v. Saqlain and others 2008 SCMR 817 and Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 ref.

(f) Constitution of Pakistan---

----Art. 13(a)---Protection against double punishment---Autrefois acquit and autrefois convict, principles of---Scope---Provisions of Art.13 of the Constitution recognized the principles of autrefois acquit and autrefois convict and granted them the status of a Fundamental Right, which right could not be violated or abridged and against which no legislation could be passed.

(g) Constitution of Pakistan---

----Art. 13(a)---Penal Code (XLV of 1860), S.302(b)---Qatl-e-Amd---Protection against double punishment---Principle of life expectancy---Applicability---Autrefois acquit and autrefois convict, principles of---Applicability---Sentence, reduction in---Convict sentenced to death had undergone a period of custody equal to or more than a full term of imprisonment for life during the pendency of his legal remedy against his conviction and sentence of death---Reduction of sentence of such convict from death to imprisonment for life---Principles---Principle relevant to the question of reduction of sentence of such convict from death to imprisonment for life would be that of expectancy of life along with the peculiar facts and circumstances of the case rather than the question of applicability or otherwise of Art.13(a) of the Constitution, as such a convict was neither to be prosecuted again nor punished again---Only issue involved in such a situation would be a possible variation of the sentence of the convict which was hardly relevant to the principles of autrefois acquit and autrefois convict meant by Art.13(a) of the Constitution to be elevated to the status of a Fundamental Right.

Abdul Malik and others v. The State and others PLD 2006 SC 365 and Mst. Razia Begum v. Jahangir and others PLD 1982 SC 302 ref.

Iftikhar Ahmed Khan v. Asghar Khan and another 2009 SCMR 502 per incuriam.

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

----S. 302(b)---Constitution of Pakistan, Art.13(a)---Qatl-e-Amd---Sentence, reduction or enhancement of---Life expectancy, principle of---Applicability---Practice followed by the courts in respect of the principle of expectancy of life when considering sentence of an accused stated.

Following are the principles of practice followed by the courts in respect of the principle of expectancy of life.

(i) In a case where delay was occasioned in final disposition of a legal remedy being pursued by a convict sentenced to death on a charge of murder and where the undergone period of his incarceration was less than that of a term of imprisonment for life, there the principle of expectancy of life for its use for the purpose of reduction of the sentence of death to imprisonment for life stood abandoned by the courts.

(ii) In a case where the State or the complainant party was seeking enhancement of a sentence of imprisonment for life of a convict to death and before or during the pendency of such recourse the convict served out his entire sentence of imprisonment for life and he had, or had not yet, been released from the jail, there the principle of expectancy of life was still relevant for not enhancing the sentence of imprisonment for life to death. Article 13(a) of the Constitution was not directly relevant to such a situation but the spirit of said Article might be considered in such a case as a factor along with the other factors like expectancy of life and the facts and circumstances of the case, etc. for not enhancing the sentence of imprisonment for life to death at such a late stage.

(iii) In a case where a convict sentenced to death underwent a period of custody equal to or more than a full term of imprisonment for life during the pendency of his judicial remedy against his conviction and sentence of death, there the principle of expectancy of life might be a relevant factor to be considered along with the other factors for reducing his sentence of death to imprisonment for life.

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

----S. 302(b)---Qatl-e-amd---Sentence, reduction in---Unconscionably delayed punishment---Expectancy of life, principle of---Scope---Convict sentenced to death for murder had undergone a period of custody equal to or more than a term of imprisonment for life during the pendency of his legal remedy against his conviction and sentence of death---Effect---Where a convict sentenced to death on a charge of murder failed to obtain a final judicial determination qua validity of his conviction or desirability of his sentence of death for such a long time that his period of custody stretched to a period equal to or exceeding a full term of imprisonment for life, which was one of the two alternative legal sentences provided in S.302(b), P.P.C., there the State, acting through its judicial organ, might acknowledge failure of its constitutional responsibility of ensuring expeditious justice and might exercise discretion in the matter of the sentence of such convict by reducing it from death to imprisonment for life---Such a case might not strictly be termed as a case of double punishment but it could more appropriately be called a case of an unconscionably delayed punishment, delayed to such an extent that the punishment was aggravated beyond the contemplation of the relevant law itself---Legislative intent might lean in favour of extending some relief to a convict placed in such a predicament which was not of his own making and the least that the court could do for him in such an unfortunate situation was to exercise its discretion in the matter by reducing his sentence of death to imprisonment for life on the basis of the facts and circumstances of the case and also on the basis of the principle of expectancy of life---Such relief, however, could possibly be misused through clever machinations of a convict whose neck was on the line, therefore such relief shall not be applicable to any delay caused by the Executive in processing or deciding a condemned prisoner's mercy petition or in executing his sentence of death after his judicial remedies had been exhausted---Such relief shall also not be applicable to a case wherein the convict was himself demonstrably and significantly responsible for the delay occasioned in conclusion of his judicial remedies.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 367(5)---Qatl-e-amd---Punishment, awarding of---Alternative sentences---Sentence of death or sentence of imprisonment for life---Plea was that in view of S.367(5), Cr.P.C sentence of death was the normal sentence for a case of murder---Validity-Section 302(b), P.P.C. clearly provided for two alternative sentences, i.e. sentence of death or sentence of imprisonment for life for the offence of murder and it did not state that any one of said sentences was to be treated as the normal sentence---Section 302(b), P.P.C. itself mentioned that any one of the two alternative sentences provided for therein was to be passed "having regard to the facts and circumstances of the case"---Plea was repelled accordingly.

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

----S. 367(5) & Pt. VI, Ch. XXVI (Ss.366 to 373) & Pt. VII---Contents of judgment---Requirements of S. 367(5), Cr.P.C.---Applicability of---Scope---Section 367(5), Cr.P.C. was placed in Chap. XXVI of Part VI of the Code of Criminal Procedure, 1898 and Part VI of the said Code pertained only to 'Proceedings in Prosecutions' before a Trial Court---Matters pertaining to the appellate and revisional courts were provided for in Part VII of the Code of Criminal Procedure, 1898 and said Part of the Code did not contain any provision akin or similar to that S.367(5), Cr.P.C., thus, the requirements of S.367(5), Cr.P.C. were relevant only to a Trial Court and they had no application to an appellate or revisional court---When an appellate or revisional court was considering a question of propriety or otherwise of a sentence passed against a convict the provisions of S.367(5), Cr.P.C. could not be pressed into service before it.

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

----Ss. 302, 148 & 149---Criminal Procedure Code (V of 1898), S.417---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Reappraisal of evidence---Appeal against acquittal, dismissal of---Benefit of doubt---Allegation against accused persons was that they launched an attack on the complainant party which resulted in death of three persons and caused injuries to others---Trial Court sentenced accused persons to imprisonment for life, however they were acquitted by the High Court---Validity---Accused persons had been acquitted by the High Court on the grounds that none of them had been arrested at the spot; that they were not saddled with any specific injury on the person of any of the victims and that no independent corroboration was forthcoming to their extent, therefore, they were entitled to be acquitted by extending benefit of doubt to them---Occurrence in the present case had taken place in the year 1986 and the accused persons had earned their acquittal from the High Court way back in the year 1999, i.e. about fourteen years ago---Reasons recorded by the High Court for acquitting the accused persons were not found to be fanciful or perverse---Appeal against acquittal of accused persons was dismissed in circumstances.

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

----Ss. 302, 148 & 149---Criminal Procedure Code (V of 1898), S.417---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Appeal against acquittal, dismissal of---Reappraisal of evidence---Prosecution witnesses making improvements in the version contained in the F.I.R.---Effect---Allegation against accused persons was that they launched an attack on the complainant party which resulted in death of three persons and caused injuries to others---Trial Court acquitted accused persons and their acquittal was upheld by the High Court---Validity---While acquitting accused persons, courts below had observed that accused persons had not been attributed any specific injury in the F.I.R. but during the trial prosecution witnesses had improved the version contained in the F.I.R. and had attributed effective firing to them; that one of the accused had not been attributed any effective role in the F.I.R. but the prosecution witnesses had made improvements in such regard before the Trial Court and had alleged that he had played an active part in the incident and that two of the accused were old and infirm persons and the allegations levelled by the prosecution against them were even otherwise difficult to be accepted at their face value---Complainant (appellant) failed to point out any misreading or non-reading of the evidence on part of the courts below--Reasons recorded by the courts below for recording acquittal of the accused persons were not found to be arbitrary---Appeal against acquittal of accused persons was dismissed in circumstances.

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court for Appellants (in Crl.As. Nos.13 and 16 of 2004).

Sh. Zamir Hussain, Senior Advocate Supreme Court for Appellants (in Crl.As. Nos.14 and 15 of 2004 and Crl.A.No.53 of 2011).

Ahmed Raza Gillani, Addl. Prosecutor-General, Punjab for the State ( In all cases).

Not represented for Respondents Nos.1 to 3 (in Crl. A. No.14 of 2004).

Not represented for Respondents Nos.1 to 5 (in Crl. A. No.15 of 2004).

Mirza Waqas Rauf, Addl. Advocate-General, Punjab, Syed Arshad Hussain Shah, Additional Advocate-General, KPK and Naseer Ahmed Baugulzai, Additional Advocate-General, Balochistan (On Court's Notice).

Dates of hearing: 30th and 31st May, 2013.

P L D 2013 Supreme Court 829

Present: Anwar Zaheer Jamali, Mian Saqib Nisar, Ejaz Afzal Khan, Muhammad Ather Saeed and Iqbal Hameedur Rahman, JJ

Constitution Petition No.127 of 2012

(REGARDING PENSIONARY BENEFITS OF THE JUDGES OF SUPERIOR COURTS FROM THE DATE OF THEIR RESPECTIVE RETIREMENTS, IRRESPECTIVE OF THEIR LENGTH OF SERVICE AS SUCH JUDGES)

H.R.C. No.40927-S of 2012

(APPLICATION BY ABDUL REHMAN FAROOQ PIRZADA)

Civil Miscellaneous Appeal No.176/2012 in Constituion Petition No.Nil of 2012

(BEGUM NUSRAT ALI GONDA V. FEDERATION OF PAKISTAN and others)

Constitution Petition No.127 of 2012; H.R.C. No.40927-S of 2012 and Civil Miscellaenous Appeal No.176/2012 in Constitution Petition No.Nil of 2012, decided on 11th April, 2013.

Per Anwar Zaheer Jamali, J; Ejaz Afzal Khan, J agreeing; Mian Saqib Nisar, Muhammad Ather Saeed and Iqbal Hameedur Rehman, JJ, though agreeing on the issue of judgment under challenge being "per incuriam" but differing on the issues of present judgment "having retrospective effect and return of pensionary benefits availed by retired judges."

(a) Constitution of Pakistan---

----Arts. 188, 187 & 184(3)---Judgment of the Supreme Court laying down an incorrect law---Power of Supreme Court to reopen, revisit or review such a judgment---Scope---Supreme Court had unlimited jurisdiction to reopen, revisit or review, and for such purpose examine any judgment earlier pronounced by it to set the law correct, to cure injustice, save it from becoming an abuse of the process of law and the judicial system---Supreme Court was competent to pass any order to foster the cause of justice; eliminating the chances of perpetuating illegality and to save an aggrieved party from being rendered remediless.

Abdul Ghaffar-Abdul Rehman's case PLD 1998 SC 363; Sindh High Court Bar Association's case PLD 2009 SC 879; Justice Khurshid Anwar Bhinder's case PLD 2010 SC 483; Syed Wajihul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801 and Mrs.Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632 ref.

(b) Constitution of Pakistan---

----Arts. 205, Fifth Sched. 184(3) & 188---Suo motu review proceedings of judgment of the Supreme Court titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), wherein it was held that retired judges of the High Court were entitled to get pension and pensionary benefits with other privileges admissible to them from the date of their respective retirements, irrespective of their length of service as such Judges---Maintainability---Public interest litigation---Plea that present suo motu review proceedings had emanated from a note of the Registrar of the Supreme Court, who in such regard, had no judicial or administrative jurisdiction or authority at all to undertake such critical examination of an earlier judgment of the Supreme Court, which had become final, following the doctrine of stare decisis, and became past and closed transaction---Validity---Even if the note of the Registrar was improper and its contents were discarded, at the same time the issue in relation to the illegality of a judgment, which had taken the form of a precedent laying down an incorrect law, and its colossal fallout on the public exchequer, which had brought it within the domain of public interest litigation, had come to the notice of the Supreme Court in any form, whether for some technical reasons alone, the court should not desist from exercising its jurisdiction vested under Arts. 184(3), 187 & 188 of the Constitution--- Supreme Court had unlimited jurisdiction to reopen, revisit or review, and for such purpose examine any judgment earlier pronounced by it to set the law correct, to cure injustice, save it from becoming an abuse of the process of law and the judicial system--- As a result of the judgment under challenge, the Supreme Court had hugely burdened the public exchequer with uncalled for financial liability (by way of pensions and pensionary benefits), therefore, being custodian of public interest and public welfare, it was just, fair and equitable for the Supreme Court to treat present proceedings as public interest litigation to protect the rights of every citizen of the country qua public exchequer and to lay down the correct law for such purpose---Present suo motu review proceedings were held to be maintainable accordingly.

Abdul Ghaffar-Abdul Rehman's case PLD 1998 SC 363; Sindh High Court Bar Association's case PLD 2009 SC 879; Justice Khurshid Anwar Bhinder's case PLD 2010 SC 483; Syed Wajihul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801 and Mrs. Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632 ref.

(c) Words and phrases---

----"Pension"---Definition and meaning.

Black's Law Dictionary; New Encyclopedia Britannica Vol. 9. 15th Edn. at p.266 and Law Laxicon defined "Pension" ref.

I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 ref.

(d) Pension---

----Pension, right of---Scope---Pension was a right which the Government servants or employees in different positions and different capacities earned in terms of the relevant statutory provisions applicable to their cases, mostly depending upon their length of service---Pension was not a State bounty which could be awarded to any individual outside the scope of the applicable statute, as a favour.

(e) Interpretation of Constitution---

----Basic principles for interpretation of the Constitution.

Following are the basic principles for interpretation of Constitution:

(i) The entire Constitution had to be read as an integrated whole.

(ii) No one particular provision should be so construed so as to destroy the other, but each should sustain the other provision. This was the rule of harmony, rule of completeness and exhaustiveness.

(iii) The words of written Constitution prevailed over all unwritten conventions, precedents and practices to the contrary.

(iv) Legislative history was relevant for interpreting constitutional provisions.

(f) Interpretation of statutes---

----Basic principles for interpretation of statutes.

Following are the basic principles for interpretation of Statutes:

(i) Duty of interpretation arose only where the words were not clear, or the provision in question was ambiguous, that is, it was fairly and equally open to diverse meanings.

(ii) Intention had to be gathered from the language of the enactment, otherwise known as the 'plain meaning rule'.

(iii) It was an elementary rule of construction that it was to be assumed that the words and phrases of technical legislation were used in their technical meaning, if they had acquired one, and otherwise in their ordinary meaning. Critical and subtle distinctions were to be avoided and the obvious and popular meaning of the language should, as a general rule, be followed.

(iv) It was a cardinal rule of construction of statutes that no words were to be added or omitted or treated as surplus or redundant.

(g) Constitution of Pakistan---

----Arts. 205, Fifth Sched. 188 & 184(3)---High Court Judges (Leave, Pension and Privileges) Order [President's Order 3 of 1997], Para.29---Suo motu review proceedings of judgment of the Supreme Court titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), wherein it was held that retired judges of the High Court were entitled to get pension and pensionary benefits with other privileges admissible to them from the date of their respective retirements, irrespective of their length of service as such Judges---Minimum length (duration) of actual service required of a High Court Judge so as to entitle him to pension and pensionary benefits---Scope---Right to pension of every retired judge of the High Court was to be determined strictly in line with Art.205 of the Constitution along with its Fifth Schedule read with applicable Presidential Order No.9 of 1970 or Presidential Order No.3 of 1997---Paragraphs 2 and 3 of Fifth Schedule to Art.205 of the Constitution either read separately/conjunctively or disjunctively, did not alter/change in any manner the requirement of minimum five years length of actual service for every Judge of the High Court as one of the basic condition to earn the right to pension---Said paragraphs made it abundantly clear that the President at the time of determination of right to pension for a retiring Judge of the High Court had made not less than five years actual service as bottom line for entitlement/right to pension with full intent and, thus, excluded all those who had not met such minimum threshold of actual service---Supreme Court observed that certain retired judges of the High Court who had actually served for a period of more than four years or in some cases just a few days less than the required five years of service, were eligible to lay their claim for pensionary benefit before the competent authority (President) by following due process of law for condonation of deficiency in their length of service in line with paragraph-29 of President's Order 3 of 1997 and applicable service regulation No.423 of the Civil Service Regulations; that those retired judges of the High Court, who had retired as such before coming into force of President's Order 3 of 1997 on 12-2-1997, for the purpose of making up similar deficiency would be governed by the proviso to paragraph 13(c) of President's Order 9 of 1970, and not by paragraph 29 of the President's Order 3 of 1997 read with regulation No.423 of the Civil Service Regulations---Suo motu review proceedings were disposed of accordingly.

(h) Constitution of Pakistan---

----Arts. 205, Fifth Sched. 188 & 184(3)---Suo motu review proceedings of judgment of the Supreme Court titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), wherein it was held that retired judges of the High Court were entitled to get pension and pensionary benefits with other privileges admissible to them from the date of their respective retirements, irrespective of their length of service as such Judges---Said judgment of the Supreme Court was held to be per incuriam---Effect---Legal and moral duty of retired judges of the High Court who had less than five years of actual service as such judges to return the pension and pensionary benefits availed by them---Scope---Plea on behalf of retired judges was that since the judgment under challenge (review) was in full force and implemented at the relevant time therefore, valuable (pensionary) rights had accrued in their favour on the principles of legitimate expectancy, locus poenitentiae and estoppel---Validity---Judgment under challenge (review) was outcome of improper assistance to the court due to which number of relevant provisions of law necessary for a just and fair adjudication of the issue were entirely overlooked and the findings were built on entirely wrong premises---From the very language of the judgment under challenge, it was clear that for all intent and purposes appeal against a private person challenging the judgment of the High Court regarding his individual grievance was widened in scope and treated as a judgment in rem, benefit whereof was open endedly extended even to other retired Judges who were not party to the said appeal and even to those who were at one stage of the proceedings party through some miscellaneous applications, but had earlier withdrawn the same during its pendency---Additionally benefit of the judgment under challenge was also extended to the retired judges of the Federal Shariat Court of Pakistan, though prima facie no such issue was involved in the proceeding---Judgment under challenge was passed by a bench of the Supreme Court at a time when the whole superior judiciary of the country was in chaos, crises and disarray due to unconstitutional measures taken by the then President/dictator, who by hook or crook wanted to remain in power and in such perspective attempted to destroy the institutions in the country, particularly targeting the superior judiciary, to bring them under his thumb and control---Judgment under challenge fell in the category of per incuriam and made it without jurisdiction and nullity in the eyes of law, as if it never existed at all---Due to the judgment under challenge, which was per incuriam, public exchequer had been unjustly burdened with the liability of Rs.1,647,130,156/-,besides additional payment of Rs.32,604,359/- towards monthly pension, thus, in all fairness such mistake of law was to be cured in a manner to repair such huge financial loss to the public exchequer---Due to the act or mistake of the court no prejudice should be caused to the interest of the Federal or Provincial Government like any other ordinary litigant before the court---Since the judgment under challenge was per incuriam, its natural fallout was that whosoever had availed its benefit in any form he was bound to restore it in favour of the other, whose interest had been prejudiced due to such act of the court---All retired Judges of the High Court, who had less than minimum five years actual service to their credit as such and were beneficiaries of the judgment under challenge, were legally and morally bound to restore all such gains to the public exchequer so as to set an example for the society about their high morals and conduct---[Minority view]---Retired judges of the High Court could not claim any benefit on account of the implementation of the judgment under challenge by the concerned authorities on the principle of past and closed transaction or on the principle of estoppel---Locus poenitentiae was the power of receding till a decisive step was taken but it was not a principle of law that an order once passed became irrevocable and past and closed transaction---If the order was illegal then perpetual rights could not be gained on the basis of such an illegal order---In order to do complete justice and stick to the norms of equity and fair play the Supreme Court was not denuded of its powers to order implementation of present judgment retrospectively from the date of the judgment under challenge---No tenable legal ground existed to hold the applicability of present judgment prospectively and not retrospectively, so as to curb the mischief of earlier erroneous enunciation/interpretation of law in the judgment under challenge---[Minority view]---Suo motu review proceedings were disposed of accordingly.

South Eastern Coalfields Ltd. v. State of M.P. AIR 2003 SC 4482; Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207 and Abdul Haq Indhar v. Province of Sindh 2000 SCMR 907 ref.

(i) Interpretation of statutes---

----Legislative meaning of a provision of a statute---General/long usage of a certain interpretation of a provision---Scope---General usage under a statute might make for a practical construction of it, which will be accorded great consideration by the courts---General usage of long duration would frequently be of great assistance in the search of legislative meaning---Meaning publicly given by contemporary or long professional usage, is presumed to be a true, even when the language has etymologically or popularly a different meaning---Language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near the time when it was passed, might reasonably be supposed to be better acquainted than their descendants with the circumstances to which it had relation, as well as with the sense then attached to legislative expressions.

Sheppard v. Gosnold (1672 Vangham 159, p.169 and National and Grindlays Bank Ltd. v. Municipal Corporation for Greater Bombay (AIR 1969 SC 1048) ref.

(j) Constitution of Pakistan---

----Arts. 197, 205 & Fifth Sched.---Retired Additional Judge of the High Court---Right to pension and pensionary benefits---Scope---Retired Additional Judge of the High Court would be entitled for equal treatment like a permanent Judge of the High Court for his right to pension, but subject to subsisting determination of such right by the President in terms of Art.205, read with Fifth Schedule of the Constitution and the applicable Presidential Order--- No exception could be taken in determination of right to pension of a retired Additional Judge of the High Court for the reason that he had not been appointed as permanent judge of the High Court--- For claiming right to pension a retired Additional Judge of the High Court would have to have minimum five years actual service to his credit.

(k) Interpretation of statutes---

----Maxims: "Expressum Facit Cessare Tacitum" & "Expressio Uni est exclusio alterius"---Applicability---Scope---Maxim: "Expressum Facit Cessare Tacitum" meant that "what is expressed makes what is implied to cease", while the maxim: "expressio uni est exclusio alterius" meant that "the express mention of one thing implies the exclusion of another"---Where a statute contained express covenants or mention of things and contingencies, no other implication of any covenant or contingency on the same subject matter could be raised---Where the legislature postulated and specified something for some category of persons only, it, in line with the said maxims, impliedly excluded others---Principle propounded in said two maxims, in certain situations, could have dangerous repercussions, therefore, it was to be applied with extra care and caution.

(l) Constitution of Pakistan---

----Arts. 189 & 190---Supreme Court Rules, 1980, O. X---Judgment/order of the Supreme Court---Retrospective effect---Scope---Supreme Court, while delivering its judgment or making an order could lay down the parameters for its implementation including the option of its retrospective applicability from any particular date---For doing so, one of the underlining principle was "Actus Curiae Neminem Gravabit" (an act of the Court shall prejudice no man).

(m) Administration of justice---

----Nobody should suffer due to any act, omission or mistake of the court---Similarly nobody should take undue advantage or benefit of any act, omission, mistake or legal error committed by the court (in its judgment)---To avoid adverse effect of such a judgment, powers were to be exercised by the court in the manner to save it from becoming an abuse of the process of law.

(n) Maxim---

----"Actus Curiae Neminem Gravabit" (an act of the Court shall prejudice no man)---Scope---Concept of "prejudice no man" visualized in the maxim "Actus Curiae Neminem Gravabit", included not only individual parties before the court but also any juristic person such as corporations, banks, government functionaries, including Federal or Provincial Governments.

(o) Constitution of Pakistan---

----Art. 188---General Clauses Act (X of 1897), S. 21---Review of Supreme Court judgment---Locus poenitentiae,principle of---Applicability---Scope---Principle of locus poenitentiae, which refrained from rescinding, if a decisive step was taken in furtherance of some action, was mainly confined to administrative actions and not to judicial pronouncements, as rescinding in the form of review, recalling, varying or amending the earlier order or judgment would have statutory backing in the form of Art.188 of the Constitution and S.21 of the General Clauses Act, 1897---Principle of locus poenitentiae could not placidly take away the authority of the Supreme Court to undo a wrong occasioned due to the act of the court---Locus poenitentiae was the power of receding till a decisive step was taken but it was not a principle of law that order once passed became irrevocable and past and closed transaction---If the order was illegal then perpetual rights could not be gained on the basis of such an illegal order.

Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207 and Abdul Haq Indhar v. Province of Sindh 2000 SCMR 907 ref.

(p) Administration of justice---

----Equal dispensation of justice for all---Scope---While dealing with a lis at any level and in any form, every court had to keep in mind the golden principle that all laws in any form, might they be constitutional provisions, including fundamental rights provided in the Constitution or the sub-Constitutional legislations of different nature, were based on one broad principle of equal dispensation of justice for all, for which every citizen of the country enjoyed similar legal status, thus, he could not be discriminated on any high moral ground---Interest of public at large was to be given priority and preference over the interest of individuals, therefore, interest of public at large could not be sacrificed to extend profane benefits to some individuals.

Per Mian Saqib Nisar, J; agreeing with Anwar Zaheer Jamali, J, on the issue of judgment under challenge being "per incuriam" but differing on the issues of "present judgment having retrospective effect and return of pensionary benefits availed by retired judges".

(q) Constitution of Pakistan---

----Arts. 189 & 190---Correct enunciation of the law by the Supreme Court--- Scope and significance---Reading Arts.189 & 190 of the Constitution conjointly, and while keeping in view the scheme of the Constitution, the very purpose, the pivotal position and the status of the Supreme Court, it was expedient that correct law should be pronounced by the Supreme Court---Supreme Court was cumbered with an inviolable responsibility, and a sacred duty, to interpret, declare and enunciate the law correctly, so that it should be followed, obeyed and adhered to purposively and in letter and spirit, by all the other organs of the State (including all other courts in the country)---Any invalid enunciation of law, shall contravene and impugn the very character, and attribute(s) of the Supreme Court and such bad/wrong law shall cause drastic adverse effects on the socio-economic, political, geographical, ethnic, cultural aspects and dynamics of the nation, the society, the people at large and the State in present or in the future.

(r) Constitution of Pakistan---

----Arts. 189 & 190---Supreme Court Rules, 1980, O. X--- Per incuriam judgment/law pronounced by the Supreme Court---Scope---If any law which had been invalidly pronounced and declared by the Supreme Court, which in particular was based upon ignorance of any provisions of the Constitution, and/or was founded on gross and grave misinterpretation thereof; or the provisions of the relevant law had been ignored, misread and misapplied; or the law already enunciated and settled by the Supreme Court on a specific subject, had not been taken into account, all this, inter alia, constituted a given judgment(s) as per incuriam.

(s) Constitution of Pakistan---

----Arts. 184(3) & 188---Per incuriam judgment of the Supreme Court--- Duty of Supreme Court to correct such a judgment---Scope---Source through which knowledge of a per incuriam judgment was brought to the notice of the Supreme Court, relevance of---While hearing some case, if it was brought to the attention of the (Supreme) Court by the member(s) of the Bar; or during the hearing of any matter, the (Supreme) Court itself found an earlier judgment to be per incuriam; or if a Judge of the Supreme Court in the course of his study or research, came across any judgment which in his view was per incuriam or if any information through the Registrar of the (Supreme) Court was passed on to the Chief Justice or to any other Judge of the Supreme Court, by any member of the Bar, or the member of the civil society (any organization/group of the society) that a judgment was per incuriam, the (Supreme) Court in exercise of its inherent suo motu power had the due authority and the empowerment to examine such a judgment, in order to ascertain and adjudge if the law laid down therein was incorrect or otherwise---In such a situation it shall not be of much significance, as to who had brought the vice of the judgment to the notice of the (Supreme) Court or through which channel it had reached there, rather, the pivotal aspect and concern of the Supreme Court should be to examine the judgment and if it was per incuriam, to set the law right with considerable urgency---Where a judgment or a decision of the Supreme Court was found to be per incuriam, it shall be the duty of the Supreme Court to correct such a wrong verdict and to set the law right---Supreme Court should not shun from such a duty---Leaving a per incuriam decision intact would be ludicrous and shall lead to drastic effect(s)---In such a situation the Supreme Court, having special position in the judicature had the inherent, intrinsic and inbred power (jurisdiction) vested in it, to declare a judgment per incuriam; to decline to follow the same as a valid precedent, and/or to set it aside.

Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and others PLD 1962 SC 335; M.S. Ahlawat v. State of Haryana and another AIR 2000 SC 1680; Bengal Immunity Co. Ltd., v. State of Bihar and others (AIR 1955 SC 661) and Superintendent and Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta (AIR 1967 SC 997) ref.

(t) Constitution of Pakistan---

----Arts. 205, Fifth Sched., 184(3) & 188---Suo motu review proceedings of judgment of the Supreme Court titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), wherein it was held that retired judges of the High Court were entitled to get pension and pensionary benefits with other privileges admissible to them from the date of their respective retirements, irrespective of their length of service as such judges---Maintainability---Plea that present suo motu review proceedings had emanated from a note of the Registrar of the Supreme Court, who in such regard, had no judicial or administrative jurisdiction or authority at all to undertake such critical examination of an earlier judgment of the Supreme Court---Validity---No bar or clog existed upon the Registrar of the Supreme Court , being the principal officer of the court, to bring to the notice of the Chief Justice of Pakistan or the Supreme Court as the case might be, that any decision earlier rendered by the (Supreme) Court was per incuriam or needed to be reviewed---Judgments/decisions of the Supreme Court which were per incuriam were a class apart, to which the limitations or the rider of Arts.188 & 184(3) of the Constitution were inapplicable and not attracted---Said Articles of the Constitution and their limitations had no nexus for the exercise of the inherent jurisdiction of the Supreme Court and the discharge of its duty for the correction of the decisions per incuriam---Supreme Court had the duty to declare and discard a judgment as per incuriam and for such purpose neither the source of its knowledge nor the confines of ordinary review and/or Art.184(3) of the Constitution were of much relevance---Present suo motu review proceedings were held to be maintainable accordingly.

(u) Pension---

----Right to pension---Scope---Such right was neither absolute nor unqualified---Pension was not a bounty from the State/employer to the servant/employee, but it was fashioned on the premise and the resolution that the employee served his employer in the days of his ability and capacity and during the former's debility, the latter compensated him for the services so rendered---Right to pension had to be earned and for the accomplishment thereof, the condition of length of service was most relevant and purposive.

(v) Constitution of Pakistan---

----Arts. 205, Fifth Sched., 188 & 184(3)---Suo motu review proceedings of judgment of the Supreme Court titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), wherein it was held that retired judges of the High Court were entitled to get pension and pensionary benefits with other privileges admissible to them from the date of their respective retirements, irrespective of their length of service as such judges---Minimum length (duration) of actual service required of a High Court Judge so as to entitle him to pension and pensionary benefits---Scope---Minimum five years length of actual service was one of the basic conditions for every retired judge of the High Court to earn the right to pension---Judge per se on the basis of his appointment would not become entitled to pension, rather he had to earn such right by meeting the qualifications and by fulfilling the requirements stipulated by the legal instruments in force at the relevant point of time (or from time to time)---Right to pension was subject to, dependent upon, and circumscribed by the condition of determination; and when the said determination had prescribed certain qualifications and the requirements for the conferment and/or for acquiring such rights, the right shall only be created, as was mandated by law, and (when) the conditions laid down therein were first satisfied---Considering the right to pension in terms of the convention etc., there had not been a single instance in the sub-continent by which a retired judge, who had not completed the requisite term of service, had asked for or was granted pension, which thus developed into a convention and such was also the contemporaneous understanding of the law---Judgment under challenge was per incuriam---Suo motu review proceedings were disposed of accordingly.

Pana Chand Jain v. Union of India and others (AIR 1996 Rajasthan 231) ref.

(w) Perpetual right

----Scope---No perpetual right could be created in favour of a citizen/ person, which (right) was against the law---No right in perpetuity could either be created or be continued on the basis of a law, which had ceased to exist and had been annulled.

(x) Locus poenitentiae, principle of---

----Applicability, scope and exception---Locus poenitentiae conceptually connoted, that authority which had the jurisdiction to pass an order and take an action, had the due authority to set aside, modify and vary such order/action, however there was an exception to such rule i.e. if such order/action had been acted upon, it created a right in favour of the beneficiary of such order etc. and the order/action could not thereafter be set aside/modified etc. so as to deprive the person of the said right to his disadvantage---Principle of locus poenitentiae (with its exception), primarily had nexus and application to administrative orders and actions, and would not apply to judicial decisions---Where a judgment was set aside as being per incuriam, the rule of locus poenitentiae, along with its exception, shall not be applicable, because the doctrine primarily belonged to the administrative domain of the State and was restricted to administrative orders/actions alone.

(y) Vested Right---

----Scope---No valid and vested right could be founded upon an order, which by itself was against the law.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207; Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 and Messrs Excell Builders and others v. Ardeshir Cowasjee and others 1999 SCMR 2089 ref.

(z) Legitimate expectation, doctrine of---

----Scope---Doctrine of legitimate expectation was not a part of any codified law, rather the doctrine had been coined and designed by the courts primarily for the exercise of their power of judicial review of administrative actions---Said doctrine only had nexus to administrative decisions and actions, and no one could have resort to it, for the purposes of claiming any right found upon any decisions of the court, which decision and the law laid down therein was found by the court to be per incuriam.

Halsbury's Laws of England, Vol. 1(1), 4th Edn. para.81, pages 151-152; R. v. Secretary of State of Transport, Exporte Greater London Council (1985) 3 All. ER 300 and Union of India v. Hindustan Development Corporation (1993) 3 SCC 499 ref.

(aa) Constitution of Pakistan---

----Arts. 25, 205, Fifth Sched. 188 & 184(3)---Suo motu review proceedings of judgment of the Supreme Court titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), wherein it was held that retired judges of the High Court were entitled to get pension and pensionary benefits with other privileges admissible to them from the date of their respective retirements, irrespective of their length of service as such judges---Minimum five years length (duration) of actual service provided in Fifth Schedule to Art.205 of the Constitution as one of the basic conditions for a retired judge of the High Court to earn the right to pension, while no such condition provided for a retired judge of the Supreme Court to earn his right to pension---Plea that the two parts of Fifth Schedule to Art.205 of the Constitution, relating to the Supreme Court judges and the High Court judges, were discriminatory, thus, violative of Art.25 of the Constitution---Validity---Reasonable classification and differentia was permissible under Art.25 of the Constitution---Judges of the Supreme Court had been treated by the Constitution itself as a class apart from the judges of the High Courts for the purpose of pension, and by no conceivable reason, it could be held that both the categories of the judges i.e. Supreme Court and High Court formed part of one and the same class---Plea with reference to discrimination, therefore, had no force--- Suo motu review proceedings were disposed of accordingly.

(bb) Judgment---

----Prospective/retrospective application of a judgment---Scope---Prospective or the retrospective application of a particular judgment depended upon the facts and circumstances of each case, and it was for the court to decide (in each case), if the judgment should be made applicable prospectively or otherwise.

Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161 ref.

(cc) Constitution of Pakistan---

----Arts. 205, Fifth Sched., 188 & 184(3)---Suo motu review proceedings of judgment of the Supreme Court titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), wherein it was held that retired judges of the High Court were entitled to get pension and pensionary benefits with other privileges admissible to them from the date of their respective retirements, irrespective of their length of service as such judges---Said judgment of the Supreme Court was held to be per incuriam by way of present judgment--- Question as to whether present judgment was to be given prospective or retrospective effect, and whether retired judges of the High Court who had already availed pensionary benefits on the basis of judgment under challenge, which was per incuriam, were bound to return such benefits---Present judgment warranted prospective application i.e. from the date of its pronouncement [Majority view] because majority of the retired judges of the High Court in question had not even approached the Supreme Court to seek the relief for the grant of pension, rather it was only in terms of the per incuriam judgment of the Supreme Court Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522)] that they were contacted by the Registrar of the respective High Courts and were offered the pension; because some of the beneficiaries of the per incuriam judgment were widows of retired Judges; because it was not argued that the retired judges in question had practiced and played any fraud or committed some foul in gaining and procuring the pension, rather to the contrary they had received the monies under the judicial dispensation by the Supreme Court, which was considered as valid enunciation of law, till the present judgment and the pension was paid and received by them in bona fide belief of its entitlement; because depravity and vice of the per incuriam judgment was never pointed out by any of the concerned, even though said judgment was known at all the levels of the High Court(s) and also in other judicial circles, rather it was a publicly known fact, yet the verdict was left outstanding for a considerably long period, thereby allowing the judges to derive benefit of the same; because no timely action was initiated to set the wrong law, right and time was allowed to pass; because on account of lapse of considerable time, most of the retired judges in question might have spent and consumed the amount received by them, as they were expected to have a decent living after their retirement, and if the amount was ordered to be recovered from them now, they might have to sell their assets (shelter) and belongings, and those who had no assets or saving might be compelled and constrained to entreat others or borrow, which would definitely not behove with their status and position as retired judges; because baring few, most of retired judges in question were of old age and might not have the ability and capacity, at such an advance age to generate the requisite amount for the refund---Amount so far received by the retired judges in question should not be recovered, from them, as it shall be oppressive and prejudicial to them, however their right to receive pension (in future) had ceased and come to an end, rather they were disentitled to receive pension in future [Majority view]--- Suo motu review proceedings were disposed of accordingly.

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

(dd) Constitution of Pakistan---

----Arts. 197, 205 & Fifth Sched.---Retired Additional Judge of the High Court---Right to pension and pensionary benefits---Scope---Retired Additional Judge of the High Court was not entitled to pension, even if he had served for a duration of five years.

Per Ejaz Afzal Khan, J; agreeing with Anwar ZaheerJamali, J.

(ee) Constitution of Pakistan---

----Arts. 205, Fifth Sched., 188 & 184(3)---Suo motu review proceedings of judgment of the Supreme Court titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), wherein it was held that retired judges of the High Court were entitled to get pension and pensionary benefits with other privileges admissible to them from the date of their respective retirements, irrespective of their length of service as such judges---Minimum length (duration) of actual service required of a High Court judge so as to entitle him to pension and pensionary benefits---Scope---Judge shall have a right to pension only if he had put in the prescribed qualifying service---Mere appointment as a Judge would not entitle him to pension---Many instruments regulating the entitlement of judges of the High Court to privileges and allowances and rights in respect of leave of absence and pension had been enforced but none of them entitled them to rights to pension if they had put in less than five years of service---Judgment under challenge (review) was per incuriam---Suo motu review proceedings were disposed of accordingly.

(ff) Constitution of Pakistan---

----Arts. 205, Fifth Sched., 188 & 184(3)---General Clauses Act (X of 1897), S. 21---Suo motu review proceedings of judgment of the Supreme Court titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), wherein it was held that retired judges of the High Court were entitled to get pension and pensionary benefits with other privileges admissible to them from the date of their respective retirements, irrespective of their length of service as such judges---Said judgment of the Supreme Court was held to be per incuriam---Effect---Legal duty of retired judges of the High Court who had less than five years of actual service as such judges to return the pension and pensionary benefits availed by them---Scope---Plea on behalf of retired judges in question was that since the judgment under challenge (review) was in full force and implemented at the relevant time therefore, valuable (pensionary) rights had accrued in their favour on the principle of locus poenitentiae, and that present judgment could not be given retrospective effect on the principle of past and closed transaction---Validity---Although a subsequent precedent overruling a previous one being prospective in operation could not be applied retrospectively but such principle would not apply when the judgment furnishing a basis for a right or entitlement stood annulled on having been reviewed--- Principle of locus poenitentiae could not help the case of retired judges in question firstly because it was not applicable to judicial proceedings and secondly because it could not be applied in a vacuum without considering the import of provisions contained in S.21 of the General Clauses Act, 1897---According to provisions of the said section, the Authority passing such order, in the first instance must have a power to pass, and then recall, revoke or rescind it---Where the Authority passing the order had no power to pass it, its recall, revocation or rescindment could not be precluded on the ground that it had been acted upon and in consequence a valuable right had accrued---Order passed without a power, would be just non est---Judgment under challenge (review) did not appear to have been based on and backed by any order, instrument or any statutory provision worth the name, therefore, it had no basis altogether---No justification was found for retired judges in question to retain the benefits received by them---Benefit extended in derogation of the law could not be justified to be retained simply because it had been received as such [Minority view]--- Suo motu review proceedings were disposed of accordingly.

Per Muhammad Ather Saeed, J; agreeing with Anwar Zaheer Jamali, J, on the issue of judgment under challenge being per incuriam; but differing on the issues of present judgment having retrospective effect and return of pensionary benefits availed by retired judges.

(gg) Constitution of Pakistan---

----Arts. 205, Fifth Sched., 188 & 184(3)---Suo motu review proceedings of judgment of the Supreme Court titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), wherein it was held that retired judges of the High Court were entitled to get pension and pensionary benefits with other privileges admissible to them from the date of their respective retirements, irrespective of their length of service as such judges---Said judgment of the Supreme Court was held to be per incuriam by way of present judgment---Question as to whether present judgment was to be given prospective or retrospective effect, and whether retired judges of the High Court who had already availed pensionary benefits on the basis of judgment under challenge, which was per incuriam, were bound to return such benefits---With regard to the judgment under challenge, which was per incuriam, the Supreme Court had not been wrongly persuaded by the party but on its own examination of the relevant law court reached the wrong conclusion---Retired judges in question had not done anything illegal in drawing pensionary benefits in view of the judgment under challenge, and in most of the cases the various High Courts had themselves asked the judges to apply for pensionary benefits in view of the dictum of the judgment under challenge---Although no continuing or continuous right or benefit could be gained from an illegal order, but this did not mean that benefits gained during the validity of an illegal judgment could not be retained---Present judgment which declared judgment under challenge as being per incuriam should be given prospective effect and the pensionary benefits being paid to retired judges in question should be stopped forthwith but no direction should be given to them for returning the pensionary benefits they had acquired till the passing of present judgment [Majority view]---Suo motu review proceedings were disposed of accordingly.

Malik Asad Ali and others v. Federation of Pakistan and others PLD 1998 SC 161 and South Eastern Coalfileds Ltd. v. State of MP AIR 2003 SC 4482 ref.

Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207; Abdul Haq Indhar v. Province of Sindh 2000 SCMR 907; Syed Mehmood Akhtar Naqvi v. Federation of Pakistan PLD 2012 SC 1054 and Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 distinguished.

Per Iqbal Hameedur Rehman, J; agreeing with Anwar Zaheer Jamali, J, on the issue of judgment under challenge being per incuriam; but differing on the issues of present judgment having retrospective effect and return of pensionary benefits availed by retired judges.

(hh) Constitution of Pakistan---

----Arts. 205, Fifth Sched., 188 & 184(3)---Suo motu review proceedings of judgment of the Supreme Court titled Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others (PLD 2008 SC 522), wherein it was held that retired judges of the High Court were entitled to get pension and pensionary benefits with other privileges admissible to them from the date of their respective retirements, irrespective of their length of service as such judges---Said judgment of the Supreme Court was held to be per incuriam by way of present judgment---Question as to whether present judgment was to be given prospective or retrospective effect, and whether retired judges of the High Court who had already availed pensionary benefits on the basis of judgment under challenge, which was per incuriam, were bound to return such benefits---Present judgment by which judgment under challenge was held to be per incuriam should be given prospective effect and the pensionary benefits being paid to the retired judges in question should be discontinued with effect from passing of the present judgment, but no direction for the recovery of pensionary benefits and emoluments already availed by them could be given, [Majority view] as the same were undoubtedly not obtained by them on account of any commission of wrong, fraud or fault on their part rather the same had been availed on account of a mistaken judgment by the Supreme Court--- Present judgment could not be given retrospective effect in such circumstances---Suo motu review proceedings were disposed of accordingly.

Hamid Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Justices (R) Rustam Ali Malik, Rana M. Arshad Khan, Ghulam Sarwar Sheikh, Farrukh Latif, Pervez Ahmed, Muhammad Jehangir Arshad and Ahmed Farooq Sheikh.

Munir A. Malik, Senior Advocate Supreme Court and Faisal Kamal Alam, Advocate Supreme Court for Justice (R) Mrs. Majida Rizvi, Justices Nadeem Azhar Siddiqui, Tariq Mehmood and Justice (Retd.) Mrs. Qasier Iqbal.

Rafiq Rijwana, Advocate Supreme Court for Mr.Justice (R) Shah Abdul Rashid.

M. Akram Sheikh, Senior Advocate Supreme Court for Mr.Justices (R) Khan Riaz-ud-Din Khan and Saeed-ur-Rehman Farrukh.

Farhat Nawaz Lodhi, Advocate Supreme Court for Justice (R) Amjad Ali.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Justices (R) Riaz Kiani, Aqil Mirza, Sharif Hussain Bokhari, Ghulam Muhammad Qureshi, Abdul Hafeez Cheema, Munir Ahmed Mughal, Rao Iqbal Khan and Mrs. Shahida Khurshid W/o Justice (R) Raja M. Khurshid.

Afnan Karim Kundi, Advocate Supreme Court for Justice (R) Raza A. Khan.

M. Afzal Siddiqui, Advocate Supreme Court for Mr. Justice (R) Syed Najamul-Hassan Kazmi.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Mr. Justice (R) Mansoor Ahmed.

Amir Alam Khan, Senior Advocate Supreme Court for Justices (R) Sh. Javaid Sarfraz, Fazal-e-Miran Chohan, Syed Asghar Haider, Tariq Shamim, M. Nawaz Bhatti through widow Mrs. Perveen Nawaz.

Mehmood A. Sheikh, Advocate Supreme Court for Justice (R) Aslam Arian.

Abdul Rahim Bhatti, Advocate Supreme Court for Justice (R) Abdul Ghani Sheikh.

Zaheer Bashir Ansari, Advocate Supreme Court for Justice (R) Tanvir Bashir Ansari through widow Mrs. Shahnaz Ansari.

Muhammad Munir Peracha, Advocate Supreme Court for Justices (R) Sheikh Abdul Rashid, Ch. Mushtaq Ahmad Khan, Sh. Abdul Manan and Munib Ahmed Khan.

Ghuzarin Kiani, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Justice (R) Muhammad Muzamil Khan.

Abdul Aziz Kundi, Advocate Supreme Court for Justice (R) Sher Bahadur.

Sardar Muhammad Aslam, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Justices (R) Iftikhar Ahmed Cheema and M.K.N. Kohli.

Ms. Asma Jehangir, Advocate Supreme Court for widow of Justice (R) M. Khayar Khan.

Rana M. Shamim, Advocate Supreme Court for Justice (R) Ghous Muhammad.

Nemo for Jusices (R) G.M. Kourejo and Ali Sain Dino Metlo.

Justices (R) Salim Khan, M. Sadiq Laghari, Abdul Aziz Kundi, Azam Khan and Hamid Farooq Durrani (In person).

Nemo for Justices (R) Abdul Ghafoor Khan Ladhi, Mian Ghulam Ahmad, Muhammad Ismail Bhatti, Ch. Shahid Saeed, Sagheer Ahmed Qadri, Abdul Rehman Khan, Kaif, Abdul Khaliq Khan, Qazi Hamid-ud-Din, Raja Muhammad Khan, Muhammad Raza Khan, Said Maroof Khan, Attaullah Khan, Salim Dil Khan, Amanullah Abbasi, S.A. Rabbani and Shahid Anwar Bajwa.

Applicant in HRC-40927-S/2012 Justice (R) Abdul Farooq Pirzada (Absent).

Sardar Muhammad Aslam, Advocate Supreme Court for the Applicant in C.M.A. No.176/2012 in Const.P.No.Nil/2012.

Irfan Qadir, Attorney General for Pakistan, Azam Khan Khattak, Addl. A.G. Balochistan, Muhamamd Qasim Mirjut, Addl. A.G. Sindh, Muhammad Hanif Khatana, Addl. A.G. Punjab and Arshad Hussain Shah, Addl. A.G. KPK (On Court notice).

Khawaja Haris Ahmed, Senior Advocate Supreme Court and Salman Akram Raja, Advocate Supreme Court (On Court notice (amici curiae).

Abdul Qadeer Ahmed, Deputy Accountant General, Sindh (On Court's Call).

Dates of hearing: 26th, 27th, 28th, 29th March, 2013 and 2nd, 3rd, 8th, 9th, 10th and 11th April, 2013.

P L D 2013 Supreme Court 1024

Present: Jawwad S. Khawaja, Anwar Zaheer Jamali, Mian Saqib Nisar, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Muhammad Ather Saeed and Iqbal Hameedur Rahman, JJ

REVIEWS ON BEHALF OF JUSTICE (RETD.) ABDUL GHANI SHEIKH and others: in the matter of

C.R.Ps. Nos. 102, 103, 105 108, 129, 179 of 2013 and C.M.As. Nos.4302, 4257 of 2013 in Const. P.No.127 of 2012 and C.M.A. No.2990 of 2013 in C.R.P. No.Nil of 2013 in Const.P.No.127 of 2012, decided on 11th July, 2012.

Per Jawwad S. Khawaja, J; Anwar Zaheer Jamali and Ijaz Ahmed Chaudhry, JJ agreeing; Mian Saqib Nisar; Muhammad Ather Saeed and Iqbal Hameedur Rahman, JJ not agreeing--

(a) Judgment--

----Short Order---Significance---Short Order would be determinative of the rights and obligations of the various parties in the matter---Reasoning for Short Order which was recorded at a later date could only be in support of the Short Order and not in deviation from the same---Short Order was sufficient for disposal of a lis as well as being operative for all intents and purposes and even in the absence of the supporting reasons, was a valid judgment---Such Order which had been recorded and signed by the Judges concerned and had been pronounced in court shall be fully operative in law and in consequence thereof, the case in respect of which the same had been passed shall stand disposed of in law even in the absence of the supporting reasons, was a valid judgment---Situation in some ways was akin to the well recognized distinction between a "decree" and judgment in civil matters; it was the decree which was operative and was required to be implemented and not the reasoning compiled in a judgment---In the present case, short order was analogous to a decree while the detailed reasoning of each of five Judges (given separately) could be equated with a judgment; "decree" i.e. operative part had been made by all the five Judges while each of them had given his own respective reasons---Reasoning of the Judges could only support the Short Order and could not be in variation from the same---Parties concerned will have to follow the Short Order in letter and spirit with all consequences of such Order taken to their logical and legal conclusion.

State v. Asif Adil and others 1997 SCMR 209 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v President of Pakistan PLD 2010 SC 61 ref.

Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522 mentioned.

Per Anwar Zaheer Jamali, J--

(b) Constitution of Pakistan--

----Art. 188---Review of Supreme Court judgment---Withdrawal of review petition---Scope---Petitioner, has every right to withdraw his petition unconditionally and cannot be denied such right.

(c) Judgment--

----Short Order---Despite unanimous Short Order of the court subsequently there had been difference of opinion; it was appropriate that the matter be referred to the Chief Justice to take up the case suo motu by constituting a larger Bench to resolve such difference of opinion amongst the Members of the Bench, more particularly, when huge sum of public exchequer was involved in the matter which was a sacred public trust, and final outcome of the controversy was likely to affect large number of other similar cases involving recovery of public exchequer.

Per Mian Saqib Nisar, J; Muhammad Ather Saeed and Iqbal Hameedur Rahman, JJ agreeing--

(d) Review---

----Hearing of review petition by Court/Judge---Principles.

There is great wisdom in law, that the review, generally and ordinarily should be heard by the same court and the court in this context is an interchangeable term with the Judge. The object behind the above principle is, that the Court/Judge who has heard and decided the matter has a full comprehension as to what was argued before him; what was debated upon at the time of hearing of the matter (order under review) and what was the understanding of the Judge while adverting and attending to the pleas raised before him at the time of hearing of the matter and passing the order/judgment. It is so because while exercising the review jurisdiction, which otherwise has a limited scope, the judgment/order under review could be analyzed and heeded to by the Court/Judge, inter alia, in the light of the above considerations.

(e) Judgment---

----Short Order---In the present case, at the time of formulating of Short Order consensus could not be developed between the Members of the Bench about the recovery of amount in question, or in other words, if the judgment should have retrospective effect or not, it was consciously, as per the clear understanding of the Members of the Bench, left open for each of the Judges to give his/their own decision which would follow the Short Order, Short Order thus was never formulated and was not meant to be final and conclusive in regard to recovery of the amount in question, it was for such reasons that it was not provided in the Short Order as to what consequences shall follow, and it was not always necessary that in the eventuality of setting aside a judgment under challenge in any proceedings, it shall entail all the conceivable consequences---Court/Bench had consciously refrained to provide and specify that the amount in question already received shall be recovered from the recipients and judgment shall have retrospective effect---Members of the Bench who formulated the Short Order having declined the recovery in the judgment were well within their authority and nothing eluded their attention while doing so---Reasoned judgments given by the said Judges on the issue about non-recovery of the amount already received by the recipients was in no way either beyond the scope of the Short Order or in variation or in deviation or in derogation thereof.

(f) Constitution of Pakistan---

----Art. 188---Review of Supreme Court judgment---Withdrawal of review petition unconditionally by petitioner---Scope---Petitioner had right under the law, to withdraw the petition---Such petition was to be dismissed simpliciter as withdrawn.

Per Ejaz Afzal Khan, J--

(g) Judgment---

----Short Order/detailed reasons---Effect---No sweeping opinion as to the effect of Short Order or the detailed reasons could be given by the court without hearing the concerned party---Where, however, such a controversy had cropped up, in a case, which was unprecedented, if looked at in view of the judgments rendered by the Supreme Court from time to time, the petitioner could be heard on the issue so arisen.

Per Muhammad Ather Saeed, J agreeing with Mian Saqib Nisar, J

(h) Constitution of Pakistan---

----Art. 188---Review of Supreme Court judgment---Scope---Petitioners sought withdrawal of review petitions unconditionally---In the present case, Bench was constituted to hear review petitions and was not mandated to decide the issue as to whether Short Order in the case under review or reasons enunciated in support of the Short Order were to be implemented, therefore, while allowing the withdrawal of review petitions, petitioners could not be subjected to legal principles enunciated by the Bench---Once the Review Petitions had been unconditionally withdrawn as per the withdrawal applications and submissions of the petitioners and their counsel, then no condition could be attached to withdrawals by the Bench specially without giving any notice of the intention to apply condition to the Review Petitioners and hearing them on the point---When detailed reasons were given and by majority view it was held that the judgment had prospective application then there was no question left to be decided by the Bench as to which of the two (detailed reasons or Short Order) was to be implemented---After withdrawal of the review petitions the dismissal order had become a past and closed transaction and question of implementation of detailed reasons or Short Order in the case under review could only be decided in suo motu review, if such powers were exercised---Review petitions should be dismissed as withdrawn simpliciter.

Per Iqbal Hameedur Rahman, J agreeing with Mian Saqib Nisar, J--

(i) Constitution of Pakistan--

----Art. 188---Review of Supreme Court judgment---Petitioners had sought withdrawal of review petitions unconditionally---Scope---Petitions deserved to be allowed as withdrawn simpliciter unconditionally and the matter be deemed to be a past and closed transaction.

P L D 2013 Supreme Court (AJ&K) 1

Before Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

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

Versus

MUHAMMAD ABBAS KHAN KHATAK through next friend---Respondent

Civil Appeals Nos.120 and 121 of 2010, decided on 24th December, 2012.

(On appeal from the judgment and decree of the High Court dated 22-3-2010 in Civil Appeals Nos.40 and 85 of 2007).

(a) Electricity Rules, 1937---

----R. 69(2)(3)---Suit for recovery of damages---11000, K.V. Electric Transmission Aerial Line crossing at height of 4 to 6 inches from roof of house---Plaintiff being student of Class-III (about 10 years age) while playing on roof of such house caught by such Line, which burnt his abdomen and arm, which was later on amputated from shoulder making him disable for ever, while his other arm was badly damaged and his internal and external parts of abdomen were badly damaged---Plaintiff's claim against Government etc., for recovery of Rs.150 Million as damages---Trial Court decreed suit to tune of Rs.21,50,000/-, where against appeals filed by both parties were dismissed by High Court---Validity---Local Commission appointed for spot inspection by Trial Court at defendant's request had submitted his report along with Site Plan---None of parties had cross-examined Local Commission while deposing in support of his report---Such report for not having been challenged had attained status of an admitted piece of evidence---According to such report, defendants after construction of such house had installed such Line while keeping wire ropes thereof at height of 4 to 6 from roof of such house---Defendants after such incident had placed wire ropes of such Line at height of three feet from roof---Defendants had not taken care or caution while installing such Lines just close to roof of house, which resulted into such tragic incident---Defendants were legally obliged to maintain prescribed height of 15 feet or greater to prevent danger---Such failure on part of defendants would not only amount to negligence, but was also misconduct and malpractice---Plaintiff could not enjoy amenities of life as a normal man could do---Person having become permanently disabled would be entitled to compensation for mental and physical pain suffered and loss of earning capacity---Court while awarding compensation for loss of earning capacity would have to consider expected life and years purchased---Expected age of a person having become disabled or lost his life would be considered 65 years---Courts below had granted compensation to tune of Rs.10,00,000/- for mental torture to plaintiff and his family members, whereas Rs.10,00,000/- as compensation for permanent life disability---None of family members of plaintiff had filed suit or claimed compensation, thus, compensation for agony suffered by them had wrongly been granted, which was accordingly deducted---Plaintiff at age of 10 years met such accident, thus, while deeming his expected life as 65 years, then 55 years of his age would be considered as years purchased for calculation of compensation---Plaintiff according to his wish and family background claimed to become a Commissioned Officer---Minimum per month expected future earning of plaintiff could not be less than Rs.8000/- ---While calculating 55 years purchased @ 3/4th of such minimum wages, amount of plaintiff's compensation would come to Rs.39,06,000/- ---Supreme Court modified impugned judgment and decree while decreeing suit to tune of Rs.1,50,000/- as costs for medical treatment, Rs.5,00,000/- as compensation for mental torture to plaintiff and Rs.39,06,000/- as his expected earning of years purchased.

Remesh Chandra v.Randhir Singh and others AIR 1977 Allah. 330; Messrs Chaurasia and Co. Chhatarpur and another v. Smt. Pramila Rao and others AIR 1975 Madhya Pradesh. 31 and Jafar Ali and another v. Sindh Road Transport Corporation and others 1981 CLC 1106 rel.

(b) Damages---

----Claim for---Person having lost life or become disabled for whole of life---Expected age of such person would be considered 65 years.

Jafar Ali and another v. Sindh Road Transport Corporation and others 1981 CLC 1106 rel.

(c) Electricity Rules, 1937---

----R. 69(2)(3)---Electric Aerial Supply Lines, installation of---Electricity Department and Government, duty of---Scope---Department was statutorily obliged to take all precautionary measures to protect citizens and property from damage or injury due to such Lines---Department and its officials would be liable for injury, if any, caused to any person or property due to its negligence in maintaining or installing such Lines according to statutory prescribed manner---Principles.

Supreme Court of Azad Jammu and Kashmir directed the Government and Electricity Department to strictly maintain the standards required in the statutes for installation of electric aerial supply lines. The Secretary Electricity shall take necessary steps and issue directions to the functionaries of the department to conduct survey and ensure that all the electricity supply lines are installed according to the prescribed statutory standard and if any modification or alteration is necessary, it must be carried out. It is also clarified that enjoyment of benefits of property is constitutionally guaranteed fundamental right of every citizens, therefore, it is the duty of the department and other electricity supply agencies to install the electric supply lines in such a manner that the enjoyment of fundamental rights of property by a citizen should not be interrupted or adversely affected. If for peaceful and beneficial enjoyment of fundamental rights of property of a citizen, any alteration, modification or change is necessary, it must be carried out. It is further observed that it is the duty of the Department to maintain and take all such precautionary measures to protect the citizens and the property from any damage or injury due to their aerial lines. If any injury is caused to any person or property due to failure of Electricity Department or any other Electricity Supplying Agency to install or maintain the installed aerial electricity supply lines according to the statutory prescribed manner, the liability shall be upon the department and the concerned officials.

Raja Gul Majeed Khan for Appellants (in Civil Appeal No.120 of 2010).

Noorullah Qureshi and M. Yaqoob Khan Mughal for Respondents (in Civil Appeal No.120 of 2010).

M. Yaqoob Khan Mughal for Appellants (in Civil Appeal No.121 of 2010).

Raja Gul Majeed Khan for Respondents (in Civil Appeal No.121 of 2010).

Date of hearing: 30th October, 2012.