PLD 2014 Judgments - Pakistan Legal Archive

Courts in this Volume

Federal Shariat Court
Islamabad
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Supreme Court
Supreme Court Azad Kashmir

Federal Shariat Court

PLD 2014 FEDERAL SHARIAT COURT 1 #

P L D 2014 Federal Shariat Court 1

Agha Rafiq Ahmed Khan, C. J., Muhammd Jehangir Arshad, Sheikh Ahmad Farooq and Shahzado Shaikh, JJ

QASIM HASSAN BUKI and 2 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice Human Rights and Parliamentary Affairs, Islamabad and 2 others---Respondents

Shariat Petitin No.6/h of 2006, decided on 8th July, 2013.

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

----Ss. 10, 11, 12 & 25---Constitution of Pakistan, Art. 203-D---Shariat petition---Application for plea bargaining, rejection of---Repugnancy to Injunctions of Islam---Absence of petitioner and his counsel on dates of hearing---Lack of interest on part of petitioner in pursuing shariat petition---Effect---Accused persons, who were husband and wife, were alleged to have acquired immoveable/moveable properties and pecuniary resources, which were disproportionate to their known sources of income---Chairman National Accountability Bureau (NAB) made a reference against accused persons before the Accountability Court to the amount of Rs.25, 00, 000---Accused persons made an application before Accountability Court for plea bargaining under S.25 of National Accountability Ordinance, 1999 and offered the entire amount mentioned by Chairman NAB under his reference---Accountability Court rejected said application on the ground that accused persons had more property than the offered amount and convicted them under S.9(2)(v) read with S.10 of National Accountability Ordinance, 1999 and awarded them punishment of ten years imprisonment along with fine of Rs.95 million each---High Court reduced period of imprisonment to 3 years and reduced amount of fine to Rs.25 million each---Supreme Court upheld judgment of High Court---Plea of petitioners was that amount offered during plea bargaining was not less than the amount sent by the Chairman NAB in his reference; that rejection of application for plea bargaining in such circumstances was against Injunctions of Islam; that said discrepancy was not agitated up till the Supreme Court and attained finality but could be re-opened by the Federal Shariat Court on the ground of Islamic Injunctions; that sentence of imprisonment awarded to one of the accused, who was a house wife was against the Injunctions of Islam, and that Ss.10, 11 & 12 of National Accountability Ordinance, 1999 were also against Injunctions of Islam---Validity---Petitioners had not explained as to how impugned sections of National Accountability Ordinance, 1999 were repugnant to Injunctions of Holy Quran and Sunnah 'of the Holy Prophet (p.b.u.h.)---Petitioners had not even bothered to submit text of verses of the Holy Quran quoted by them in their petition---Contents of the present petition showed that petitioners had approached the Federal Shariat Court in order to get relief in personam because their father and mother (i.e. accused persons) were convicted by Accountability Court---High Court did reduce the sentence of imprisonment and amount of fine, which was upheld by the Supreme Court---Petitioners and their counsel had not been appearing before the Federal Shariat Court since filing of present shariat petition in spite of services of notices upon them---Absence of petitioners showed that that they had no interest in pursuing the present petition and had no argument--- Shariat petition was dismissed in circumstances.

(b) Constitution of Pakistan---

----Arts. 203-D & 203-B---Shariat petition before Federal Shariat Court challenging the judgment of Supreme Court---Maintainability---Jurisdiction of Federal Shariat Court---Scope---Plea of the petitioner was that judgment of the Supreme Court had attained finality and became "law", and any "law" could be challenged before the Federal Shariat Court for being repugnant to Injunctions of Islam; that some important points regarding Islamic Injunctions, could not be agitated before the High Court and Supreme Court, but same could be invoked before Federal Shariat Court by way of shariat petition---Validity---Art.203-Dof the Constitution pertained to jurisdiction of the Federal Shariat Court to examine and decide the question whether or not any law or provision of law was repugnant to Injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet---Judgment of Supreme Court did not fall within the definition of "law" or "provision of law"---Definition of "law" provided in Art.203-B of the Constitution made it clear that it did not include a judgment---Stance of petitioners that they had not agitated some important points before the High Court and Supreme Court was not relevant to invoke jurisdiction of Federal ,Shariat Court against judgment of Trial Court, High Court or the Supreme Court---Any individual or a party could not extend any jurisdiction to the Federal Shariat Court, suitable to his prayer---Shariat petition was dismissed as not maintainable in circumstances.

Asalat v. State 1978 PCr.LJ 18 ref.

---"Judgment"---Definition.

(d) Words and phrases---

----"Jurisdiction"---Meaning---Jurisdiction of a court meant the competent jurisdiction of the court, i.e. its power to decide a case or a question.

Nemo for Petitioners.

Nemo for Federal Government.

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

Nemo for Province of K.P.K.

Nemo for Province of Balochistan.

Nemo for Province of Sindh.

Date of hearing: 8th July, 2013.

PLD 2014 FEDERAL SHARIAT COURT 15 #

P L D 2014 Federal Shariat Court 15

Before Dr. Fida Muhammad Khan, Muhammad Jehangir Arshad and Sheikh Ahmad Farooq, JJ

FAZAL-UR-REHMAN RANA---Petitioner

Versus

FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Law and Parliamentary Affairs, Islamabad---Respondent

Shariat Petition No.3/I of 2004, decided on 26th April, 2004.

Criminal Procedure Code (V of 1898)---

----S. 172(2)---Constitution of Pakistan, Art. 203-D---Shariat petition---Police investigation diary---Accused not entitled to call for or see such diary during inquiry or trial---Repugnancy to Injunctions of Islam--- Plea of petitioner was that S. 172(2) Cr.P.C, which barred the accused from calling for or seeing the police investigation diary was against the Injunctions of Islam and should be amended to bring it in conformity with the same, allowing the accused to have right of access to police diaries and ziminies , before submission of challan in court---Validity---Information obtained under S. 172, Cr.P.C could not be treated as evidence and neither was it admissible in evidence nor could it be considered at par with statement made under S. 161, Cr.P.C---Section 172(2), Cr.P.C pertained only to a diary of investigational procedure wherein investigating police officer recorded his day to day proceedings, as and when he received any relevant information from any place---Such a diary did not assume the status of evidence and could not be used against the accused which might prejudice his case in any manner---According to S. 172(2), Cr.P.C, any criminal court might call for such police diaries of a case under inquiry or trial, and might use such diaries, not as evidence in the case, but just as elucidation of certain facts to aid the court in such inquiry or trial---If such police diaries were to be used by the police officer, who had made them, then it was only for refreshing his memory---If the court used such diaries for the purpose of contradicting the police officer, who had made them, the provisions of Qanun-e-Shahadat, 1984, and Ss.145 & 161, Cr.P.C, as the case might be, shall apply---Even if such police diaries were consulted by the court for elucidation of certain facts, no judgment could be passed on the basis of information contained in such diaries---Information obtained under S. 172(2), Cr.P.C, thus, was just procedural in nature and had no material or evidentiary value to cause prejudice to the accused---Shariat petition was dismissed accordingly.

Versus 13:49; 27: 34; 51: 33; 248: 2; 106: 16; 18:35; 17:45; and 20:28 distinguished.

Nemo for Petitioner.

Muhammad Nazir Abbasi, Standing Counsel for Federal Government.

Date of hearing: 26th April, 2013.

PLD 2014 FEDERAL SHARIAT COURT 18 #

P L D 2014 Federal Shariat Court 18

Before Allama Dr. Fida Muhammad Khan, Rizwan Ali Dodani, Muhammad Jehangir Arshad, Sheikh Ahmad Farooq and Shahzado Shaikh, JJ

ILYAS MASIH MONEM, ADVOCATE and another---Petitioners

Versus

FEDERATION OF PAKISTAN and another---Respondents

Shariat Petition No.8/I/2007 and Shariat Miscellaneous Application No.9/I/2010, decided on 4th December, 2013.

Constitution of Pakistan---

----Art. 203-D(3-b)---Penal Code (XLV of 1860), S.295-C---Derogatory remarks in respect of Holy Prophet (p.b.u.h.)---Federal Shariat Court had declared the punishment of imprisonment of life for an offence falling under S.295-C, P.P.C., as repugnant to the Injunctions of Islam and ordered that the same be deleted from the statute book up to 30th April, 1991---Said judgment of Federal Shariat Court had attained finality as appeal filed against it had been dismissed by the Shariat Appellate Bench of the Supreme Court on 19-5-1991---Federal Ministry of Law had reported that judgment of the Federal Shariat Court was deemed to have been implemented to the extent of omitting punishment of life imprisonment under S.295-C, P.P.C. with effect from the date on which the decision of the Federal Shariat Court had taken effect i.e. 30-4-1991---Federal Shariat Court directed the Secretary, Ministry of Law, Justice and Human Rights, to take necessary steps for the implementation of the judgment in question and would ensure that the punishment i.e. imprisonment for life provided under S.295-C, P.P.C. was deleted from P.P.C., as well as relevant law books; and the Registrar of all the High Courts be directed to circulate the same among all the Judicial Officers of Pakistan.

Al-Qur'an Verses 17:55; 2:253; 2:136; 3:84 and 2:85, 4:150, 4:152 rel.

Hashmat Ali Habib for Applicant/Petitioner.

PLD 2014 FEDERAL SHARIAT COURT 23 #

P L D 2014 Federal Shariat Court 23

Before Dr. Agha Rafiq Ahmed Khan, C.J., Allama Dr. Fida Muhammad Khan and Ashraf Jahan, JJ

Cap. (R) MUKHTIAR AHMED SHAIKH---Petitioner

Versus

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

Shariat Review Petition No.2/I of 2000, decided on 5th March, 2014.

(a) Service Tribunals Act (LXX of 1973)---

----Ss. 3-A(2) (a) & (c)---Constitution of Pakistan, Arts.203-D & 203-DD---Shariat Review petition---Members of a Bench of Service Tribunal differing in opinion as to the decision to be given on any point---Opinion of the Chairman to prevail as provided under S.3-A(2)(c) of Service Tribunals Act, 1973-- Repugnancy to Injunctions of Islam---Equality among all human beings---Scope---Plea that all human beings were equal and thus Chairman could not be entitled to any preferential treatment, and that the Chairman could not be equated with two Members of the same Bench---Validity---Chairman, Service Tribunal could not enjoy any preferential authority in deciding a judicial matter---Concept of equality among human beings was enshrined in the Holy Qur'an and Sunnah of the Holy Prophet---Islam strongly advocated the concept of equality among mankind irrespective of their colour, creed, gender or any other consideration---All were considered equal and entitled to equal protection of law, and the Chairman of Service Tribunal was no exception---Rule/law giving preferential authority was even alien to the Chief Justice of a High Court, Federal Shariat Court and even the Supreme Court, who enjoyed equal judicial powers with all other members of a Bench---As such S.3-A(2)(c) of Service Tribunals Act, 1973, which granted double weight to the opinion of the Chairman and let him decide the fate of a judicial matter solely on his strength, was repugnant to the Injunctions of Islam---Shariat review petition was allowed accordingly with a direction to the Federal Government to take necessary steps to amend S.3-A(2)(c) of Service Tribunals Act, 1973 so as to bring same in conformity with Injunctions of Islam before 30th June, 2014, whereafter said section shall become void and have no legal effect.

Al-Qur'an Suras 49:13; 4:1 and Al-Musnad, Ahmad Ibn Hunbal, Vol. V, p.111 printed Beirut ref.

(b) Service Tribunals Act (LXX of 1973)---

----Ss. 4(1), proviso (a), 6 & 7--- Service Tribunals (Procedure) Rules, 1974, R.8---Limitation Act (IX of 1908), S.5---Constitution of Pakistan, Arts.203-D & 203-DD---Shariat Review petition---Appeal before Service Tribunal---Limitation---Fixation of time limit for filing appeal---Repugnancy to Injunctions of Islam---Plea that Shariah did not contemplate any time frame to extinguish the rights of human beings; that limitation debarred decision on merit and thus opposed principles of justice and fair play---Validity---By way of limitation for filing an appeal, as substantive right could not be usurped nor it got extinguished---Limitation prevented a claimant from knocking at the doors of a court, and without limitation a floodgate of matters piled up during past years would open, when evidence of the same would have been destroyed or lost and no record or evidence would be available for the courts to decide the same---Judges always stood in need for evidence, which might not remain available indefinitely---Plea challenging proviso (a) to S.4(1) & Ss. 6 & 7 of Service Tribunals Act, 1973 on point of limitation was misconceived and said provisions were not repugnant to Injunctions of Islam---Shariat review petition was dismissed accordingly.

PLD 1989 FSC 89 and 1991 SCMR 2075 ref.

Petitioner in person.

M. Aslam Butt, Deputy Attorney-General for Federal Government.

Ch. Saleem Murtaza Mughal, Asstt. Advocate-General for Government of Punjab.

Abdul Majeed, Advocate for Government of Sindh.

Mujahid Ali Khan, Deputy Advocate-General for Government of Khyber Pakhtunkhwa.

Naseer Ahmed Bangulazai, Additional Advocate-General for Government of Balochistan.

Dates of hearing: 28th and 29th January, 2014.

PLD 2014 FEDERAL SHARIAT COURT 43 #

P L D 2014 Federal Shariat Court 43

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

SALEEM AHMAD and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Attorney General of Pakistan and 2 others---Respondents

Shariat Petitions Nos.3/L of 2005, 2/L of 2006, 1/K, 2/K, 3/K, 1/I of 2007, decided on 28th May, 2009.

(a) Constitution of Pakistan---

----Art. 203-D(c)---Federal Shariat Court, jurisdiction of---Declaration of a law/provision to be repugnant to the Injunctions of Islam---Fatwas, verdicts and views of scholars, relevancy of---Federal Shariat Court was vested with the power to declare laws/provisions of laws against Injunctions of Islam as defined in Art. 203-B(c) of the Constitution, on the touchstone of only the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h)---As such scope and jurisdiction of Federal Shariat Court was limited only to the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h)---Federal Shariat Court could not declare any law or provision of law repugnant to Injunctions of Islam merely on the basis of views, verdicts and Fatawa issued by the scholars whosoever they might be---Unless there was .a clear specific "Nass" of the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h) prohibiting or enjoining commission or omission of any particular act, Federal Shariat Court could not declare any law or provision of law as repugnant to the Injunctions of Islam.

(b) Islamic jurisprudence---

----Marriage---Objectives of marriage in Islam.

Following were the main objectives of marriage in Islam:

(i) Procreation of children, preservation and perpetuation of the human race, through legitimate sexual intercourse between a man and a woman whose relationship as husband and wife was publicly declared and made known to the society at large.

(ii) Protection of morals through legally justified satisfaction of natural biological urges and, resultantly, curbing pre-marital or extra marital sex.

(iii) Establishment of sound emotional, spiritual, happy, lovely and peaceful life-long companionship.

Al-Quran Verses 4.1; 2:223; 4:25; 5;5 and 30:21 ref.

----Marriage---Scope---Civil contract---Mutual rights and obligations--Marriage was not a sacrament; it was not irrevocable but, in essence, it was a civil contract between husband and wife which credted mutual rights and obligations---Marriage contract was a life-long commitment, meant to last happily for the whole life between husband and wife.

Al-Qur'an Verse 4:21 ref.

(d) Islamic jurisprudence---

----Marriage, termination of--- "Divorce" and "khula "---Preconditions---Both divorce and khula were most undesirable options and were allowed only when the spouses genuinely came to the conclusion that continuation, of their union was harmful, making them unable to perform their mutual obligations amicably enough to live within the bounds prescribed by Almighty Allah.

(e) Constitution of Pakistan---

----Art. 203-D---Federal Shariat Court---Shariat petition--- Granting relief in personam to a petitioner---In view of the jurisdiction in connection with shariat petition, conferred upon the Federal Shariat Court, the prayer for granting relief in personam could not be allowed---Illustration.

(f) Islamic jurisprudence---

----Marriage, termination of---"Khula" without recourse to court---Scope---Word "khula' literally meant "to put off"---Khula denoted laying down by the husband of rights and authority over his wife, at her instance, on acceptance of consideration---Khula signified a conditional situation on the part of wife, entered into for the purpose of dissolving the marital tie at her instance, in lieu of a compensation paid or agreed to be paid by her to the husband out of her property---In case of mutual agreement on such an arrangement, the wife did not need to go to court and ask for dissolution of her marriage as in such a situation the husband would release her from the marital bond and the wife would be free to marry any other person after the iddat period, as would be required in her case, if she was or was not pregnant.

A1-Qur'an Sura Al-Baqara Verse 229 ref.

(g) Constitution of Pakistan---

----Art. 203-D---West Pakistan Family Courts Act (XXXV of 1964), S.10(4)---Shariat petition---Dissolution of marriage--- "Khula "---Pre-trial proceedings---Judge/Qazi empowered to pass decree for khula at pre-trial stage without approval of husband and without recording evidence---Repugnancy to Injunctions of Islam---Plea of petitioners that a Qazi/Judge before whom prayer for dissolution of marriage on basis of khula was made was not authorized to pass such decree in favour of wife if the husband was unwilling; that S.10(4) of Family Courts Act, 1964 was against Injunctions of Islam as it bound the Family Court to pass a decree (for khula) in case reconciliation failed at pre-trial stage without recording of evidence in respect of liking and disliking on the basis of which compromise between husband and wife was refused---Validity---Where the husband did not agree to accept compensation by his wife for purposes of khula and refused to release her from his marital tie and also declined to divorce her, question was what should be the course of action for the wife; would it be justified to leave such a wife in darkness who could not live happily or perform her marital obligations; should she be pushed back to her husband to remain tongue tied, tight-lipped, depressed, dejected, having a miserable survival throughout her whole life; should she be kept, at the mercy of her in laws, vulnerable to indecent immoral life; was such a situation morally justified on any standard; would not such a situation assigned to her defeat the very object of marital peace and tranquility; who would be considered responsible if she could not bear the mental agony in such state of affairs and put an end to her life by setting herself on fire or adopted any other method for committing suicide; who would stop her or what would prevent her from administering poison to her husband if she found herself entangled in a "holy dead lock"---Islam did not intend to force a wife to live a miserable life, in a hateful unhappy union, forever---If wife was unhappy and reconciliation failed, she should be entitled to get relief as this is what justice demanded---Courts were there to resolve the disputes that arose between the parties, and they could decide all type of matters including, admittedly, dissolution of marriage on certain grounds---In such circumstances it was not understandable as to why the courts would not be authorized to decide a case of khula, if a husband did not at all agree to divorce his wife and all reconciliatory efforts failed--- No specific verse or authentic ahadith existed which provided a bar to the exercise of jurisdiction by a competent Qazi/judge to decree the case of khula agitated before him by a wife, after reconciliation failed (and husband refused to release her from marital tie by accepting compensation in lieu of khula)---Shariat petition was dismissed accordingly.

Al-Qur'an Verse 2:228; Huququz Zawjain by Syed Mawdudi, pp.58-80; Fiqhul Quran by Maulana Umar Ahmad Usmani Vol. III, pp.398-417 ref.

Al-Quran Verse 2:237; 2:228; 4:34 distinguished.

(h) Islamic jurisprudence---

----Marriage, termination of---"Khula" and "Mubarat"---Single irrevocable divorce---Re-marrying without any intermediary carriage/"halala"---"Khula" and "Mubarat" operated as a single, irrevocable divorce---Even thereafter both the spouses could contract fresh marriage with mutual consent, of course if they wanted to, without any intermediary marriage of the wife with another person, as was required in the case when a husband pronounced divorce for the third time; however, iddat shall to be incumbent on the wife if she wanted to contract marriage with someone else.

Riazuddin Siddiqui for Petitioner (in Shariat Petition No.3/L of 2005).

Ejaz Anwar Butt for Petitioner (in Shariat Petition No.2/L of 2006).

M. Shafi Muhammadi for Petitioner (in Shariat Petition No.1/K of 2007).

Abdul Nasir Sheikh for Petitioner (in Shariat Petition No.2/K of 2007).

M. Shaft Muhammadi for Petitioner (in Shariat Petition No.3/K of 2007).

Nemo for Petitioner (in Shariat Petition No.1/I of 2007)

Sardar Abdul Majeed, Standing Counsel for Federal Government; Shafqat Munir Malik, Addl. A.G., Punjab; M. Azam Khan Khattak, Addl.A.G. Balochistant; Fareed ul Hassan, Asstt. A.G., Sindh, Muhammad Sharif Janjua, for A.G., N.-W.F.P., Ali Nawaz Khokhar, and Nasruminallah, S.O.(L-A), Ministry of Human' Rights, Islamabad; Dr. Muhammad Farooqi, Dr. Muhammad Tahir Mansoori, Prof. Sajdur-Rehman Siddiqui, Dr. Hafiz Muhammad Tufail, Dr. M. Aslam Khaki, Amici Curiae (in Shariat Petition No.1/I of 2007)

Dates of hearing: 11th and 25th March, 2008.

Islamabad

PLD 2014 ISLAMABAD 1 #

P L D 2014 Islamabad 1

Before Riaz Ahmad Khan, J

COMMUNICATION HOUSE (PVT) LTD.---Appellant

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY and others---Respondents

F.A.O. No.90 of 2005, heard on 31st October, 2013.

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

----S. 23---Alleged contravention by licensee---Issuing of notice to licensee, requirement of---Scope---Appellant-company/ licensee was fined Rs.250,000 by Zonal Director Enforcement, Pakistan Telecommunication Authority when certain discrepancies were found in its Public Call Offices (PCOs)---Appeal filed by appellant-company before Chairman, Pakistan Telecommunication Authority was also dismissed---Plea of appellant-company was that under S.23 of Pakistan Telecommunication (Re-organization) Act, 1996 concerned authority was required to issue notice to the licensee, specifying the alleged contraventions and give time to rectify the same, and in case of failure to rectify the contraventions, order could be passed against licensee; that in the present case neither any notice was issued nor any time was given to appellant-company for rectification of alleged contraventions---Validity---Nobody could be condemned unheard---Under S.23 of Pakistan Telecommunication (Re-organization ) Act, 1996 notice was to be issued and time was to be given to the appellant-company for rectification of alleged contraventions---Admittedly neither any notice was given nor any time was afforded to appellant-company for rectification of alleged contraventions---Appeal was allowed in circumstances and impugned orders passed by concerned authorities were set aside.

(b) Administration of justice---

----If law required something to be done in a specific manner, then the same must be done in that particular manner and not otherwise.

Muhammad Umer Khan Vardag for Appellant.

Mian Shafaqat Jan for Respondents.

Date of hearing: 31st October, 2013.

PLD 2014 ISLAMABAD 3 #

P L D 2014 Islamabad 3

Before Shaukat Aziz Siddiqui, J

Mrs. SAMIA SAFDAR---Petitioner

Versus

NATIONAL UNIVERSITY OF MODERN LANGUAGES through Rector and another---Respondents

Writ Petition No.3951 of 2010, decided on 14th May, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Educational institution---Fine of Rs.1,67,000 imposed on student by University for late submission of thesis---Propriety---Petitioner-student submitted her thesis in July 2006, much before the deadline for submission, i.e. December 2006---University returned thesis to student for making certain amendments therein---Petitioner got married in August 2006 and claimed that due to domestic responsibilities she could not submit the corrected thesis before the deadline of December 2006---Student filed an application with Rector of the University in September 2007 seeking submission of her corrected thesis---Said application remained pending with the University, and in January 2010, student was informed that her application had been accepted but she would have to pay a fine of Rs.167,000, calculated on basis of charges/dues for semesters from January 2006 to January 2010---Pleas of student were that she submitted her (original) thesis well within time much before the deadline, but could not submit her corrected thesis within the stipulated deadline; that delay in taking decision on her application for late submission of corrected thesis was not her fault---Validity---Persons on helm of affairs of educational institutions were expected to extend parental dealings to students and must not show any sort of hostility and ill-will, which might ruin the educational career of any student---Reasonableness and rationale were condition precedents to any order passed by the (educational) authority---Fine of Rs.1,67,000 imposed on the student was too harsh and against ordinary prudence---Even if such fine was considered as dues/charges (for the semesters), even then there was no justification to demand such a huge amount, as admittedly University did not provide any assistance, render any service or part any education to the student against the said amount---Rules of the University were also silent regarding the present matter---Invoking of any penal provision by the University had to be symbolic and without any commercial approach---Constitutional petition was allowed and it was directed that University may demand any meagre amount from student for delayed submission of thesis, which under no circumstance should exceed Rs.10,000, and on receipt of the same, further process of award of degree to the student may be completed.

(b) Educational institution---

----Decisions taken by University authorities affecting students---Principles---Persons on helm of affairs of educational institutions were expected to extend parental dealings to students and must not show any sort of hostility and ill-will, which might ruin the educational career of any student---Reasonableness and rationale were condition precedents to any order passed by the (educational) authority.

----Fine imposed on student---Scope---Invoking of any penal provision by the University had to be symbolic and without any commercial approach---Illustration.

Barrister Afzal Hussain for Petitioner.

Ch. Imtiaz Ahmed, Legal Advisor for Respondents.

PLD 2014 ISLAMABAD 7 #

P L D 2014 Islamabad 7

Before Iqbal Hameedur Rahman, C J

INDEPENDENT NEWSPAPERS CORPORTION (PVT.) LTD through Authorised Attorney---Appellant

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman---Respondent

F.A.Os. Nos.47 and 51 of 2011, decided on 31st May, 2012.

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

----Ss. 30, 29(6) & 30A---Pakistan Electronic Media Regulatory Authority (TV/Radio Broadcast Operations) Regulations, 2002 Regln.27---Constitution of Pakistan, Art. 25---Power to vary conditions, suspend or revoke licence(s)---Revocation of satellite television licence---Scope---Appellant/Media Group impugned orders/notifications of Pakistan Electronic Media Regulatory Authority ("PEMRA") whereby its licence to operate a Satellite Television Channel was revoked, and request for a change in name and language of the same channel from English to Urdu was turned down---Contention of the appellant was inter alia, that no opportunity of personal hearing was provided, and that PEMRA could impose fine in terms of S.29(6) of the Ordinance but chose not do so and had cancelled the licence instead, and furthermore that PEMRA had granted change of name and language to another channel, while refusing to do the same for the appellant---Validity---While powers to annul the licence had been vested in PEMRA, but at the same time a condition precedent was the issuance of show-cause notice and personal hearing before cancelling the licence---In the present case, licence was cancelled after more than one year and five months after the date of alleged personal hearing and no reason had been advanced for such long delay; and it appeared that PEMRA kept the matter in hanging position with mala fide intention---After the alleged personal hearing it was the duty of PEMRA to revoke the licence forthwith or to issue fresh show-cause notice; and a show-cause notice issued one year and five months ago could not be considered a valid show-cause notice for cancelling the licence of the appellant---Under S.29(6) of the Pakistan Electronic Media Regulatory Authority Ordinance 2002, PEMRA may impose fine in case of breach of any provision of the Ordinance, and contention of PEMRA that said provision related to "inspections" only was not sustainable as the said section provided for "any provision of the Ordinance" and was therefore applicable to the entire Ordinance---Before cancelling the licence of the appellant S.29(6) of the Ordinance had not been kept in mind and a harsh order for cancellation of licence was passed instead---After refusing to change the name and language of the appellant's channel, PEMRA had subsequently allowed another channel to change its name and language, and circumstances that applied to that case were also available for the case of the appellant's channel, therefore, the impugned notification refusing the request of the appellant was not justifiable , and the conduct of the PEMRA was sheer discrimination which was unconstitutional---High Court set aside impugned notifications/orders of PEMRA, and directed PEMRA to change the name and language of the appellant's channel within one month, subject to appellant paying any fee required under law---Appeals were allowed, accordingly.

Airport Support Services v. Airport Manager 1998 SCMR 2268; Justice Iftikhar Muhammad Chaudhry v. the President of Pakistan PLD 2007 SC 578; Pakistan Synthetics Limited v. Waqar Ahmed 2011 SCMR 11; Nisar Ahmad v. Masood Akhtar 2011 SCMR 226; Zubaida Khatoon v. Tehmina Sajid Sheikh 2011 SCMR 265; Muhammad Zaheer Khan v. Government of Pakistan 2010 SCMR 1554; Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289; N.-W.F.P. Government v. Abdul Ghafoor Khan PLD 1993 SC 418; Maula Baksh v. Abdul Hamid PLD 1971 Lah. 512; Munira Rafique Anwar v. Khalid Javed Anwar PLD 2005 Lah. 662; Arifa Sana Bajwa v. Additional District Judge 2004 MLD 794; S.I.T.E v. Qamar Hilal 2002 MLD 1569; Gulf Pacific Fertilizer v. Ali Akbar Enterprises 2000 MLD 1537; Province of Punjab v. Abdul Majeed (1997 SCMR 1692; Salah-ud-Din Butt v. Punjab Service Tribunal PLD 1989 SC 597; Anwar Mai v.. Ghulam Qadir Shah 1986 CLC 1457; Messrs Thai International Airways (Pvt.) Ltd. v. Pakistan Electronic Media Regulatory Authority 2008 CLC 37 and Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44 ref.

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

----S. 29(6)---Interpretation of S.29(6), Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Imposition of fine by PEMRA---Applicability of S.29(6) to the entire Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Section 29(6) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 clearly provided that in case of breach of any provision of the Ordinance, the authority may impose a fine---Contention that the said provision only applied to "inspections" could not be believed as the words; any provisions of this Ordinance" used in S.29(6) of the Ordinance showed that it was applicable to the entire Ordinance.

----Preamble---Pakistan Electronic Media Regulatory Authority, ("PEMRA"); Objects and duties---Preamble to the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 did cover all organs of the society and it was the fundamental responsibility of PEMRA to achieve the goals enumerated in its preamble---PEMRA was duty bound to facilitate all its licensees and it should not create undue obstacles for the same.

Muhammad Akram Sheikh and Jam Asif Mehmood for Appellants.

Ali Raza along with Nasir Ayaz for Respondents.

Date of hearing: 21st May, 2012.

PLD 2014 ISLAMABAD 29 #

P L D 2014 Islamabad 29

Before Muhammad Anwar Khan Kasi, C J

RIAZ AHMED-Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.3085 of 2013, decided on 9th September, 2013.

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

----S. 2---Constitution of Pakistan, Art.199, 4, 9, 12(4) & 15---Constitutional petition---Violation of fundamental rights---Placing of name in Exit Control List (E.C.L.)---Petitioner had challenged the placement of his name on the Exit Control List (E.C.L.) as being mala fide and arbitrary act of the authorities---No specific reason for placing the name of the petitioner on E.C.L. was mentioned---Right to movement/travel, was fundamental right of every citizen guaranteed under Arts.4, 9, 15 of the Constitution---Such was universally recognized right---Citizen could not be deprived of his/her fundamental rights, save in accordance with due process of law---Where a citizen was in possession of legal documents to travel abroad, mere allegation that his visit abroad would endanger the security of State, could not be held to be a valid ground for curtailment of right for endless period---Record did not show any justifiable reason for placing the name of the petitioner on E.C.L.---Authorities were not supposed to sit over the issues for indefinite period without any decision---Act of authorities was sheer violation of fundamental rights as no trial was ever held against the petitioner in connection with his alleged involvement in "terrorist activities"---Authorities were directed by High Court to remove the name of the petitioner from Exit Control List and to hand over his Passport forthwith.

PLD 2010 SC 61; PLD 1987 SC 504 and PLD 1997 Lah. 617 rel.

Ch. Muhammad Zafar Iqbal Zafar for Petitioner.

Qazi Rafi-ud-Din Babar, D.A.-G. for Respondents.

PLD 2014 ISLAMABAD 31 #

P L D 2014 Islamabad 31

Before Noor-ul-Haq N. Qureshi, J

MUHAMMAD ZUBAIR---Petitioner

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Secretary, Interior, Islamabad---Respondent

Writ Petition No.4706 of 2013, heard on 30th January, 2013.

Extradition Act (XXI of 1972)---

----Ss.2(c), 4, 5, 11 & 12---Criminal Procedure Code (V of 1898), S.188---Penal Code XLV of 1860), S.4---Constitution of Pakistan, Art.199---Constitutional petition---Extradition of accused---Non-treaty State---Trial in Pakistan---Condition precedent---Petitioner committed murder of two persons in United Kingdom and escaped to Pakistan--Proceedings to extradite petitioner were initiated on the request of United Kingdom---Plea raised by petitioner was that United Kingdom was a non-treaty State and petitioner had a right to be tried in Pakistan---Validity---To apply provision of S.4, P.P.C., it was a pre-requisite condition that accused was not found at any place in Pakistan under any circumstances and certificate of political agent or sanction of Federal Government, as the case might have been, was obtained---If either of the conditions was not fulfilled, a criminal court in Pakistan could not have extra territorial jurisdiction to try a person alleged to have committed an offence outside Pakistan---Enquiry was going to be conducted against petitioner, which had been intervened by High Court vide interim order, therefore, such condition was not available to petitioner---In absence of any material, petitioner could not be tried outside the jurisdiction of that court, where trial was going on or investigation was being conducted within jurisdiction of a particular police station at United Kingdom---Neither any provision of law existed to extend such grace to petitioner nor any ground was available to grant him such extraordinary relief---High Court declined to interfere in extradition proceedings against petitioner---Petition was dismissed in circumstances.

Federation of Pakistan v. Gul Hassan Khan PLD 1989 SC 633 and PLD (sic) SC 274 ref.

Dr. Abdul Basit for Petitioner.

Malik Zahoor Akhtar Awan, Standing Counsel for Respondent.

Date of hearing: 30th January, 2014.

PLD 2014 ISLAMABAD 38 #

P L D 2014 Islamabad 38

Before Noor-ul-Haq N. Qureshi, J

MUHAMMAD TARIQ MALIK---Petitioner

Versus

PAKISTAN through Secretary Establishment Division and 2 others---Respondents

Writ Petition No.4451 of 2013, decided on 13th January, 2014.

(a) National Database and Registration Authority Ordinance (VIII of 2000)---

----Ss. 3(5), (7) & (12)---Constitution of Pakistan, Art. 199---Constitutional petition---Chairman, National Database and Registration Authority ("NADRA")---Removal from office---Legality---Mala fides of Government---Petitioner was appointed as Chairman, NADRA---Federal Government removed petitioner from his office on the basis that he had been appointed by the previous Government without following the proper procedure in law; that his appointment was based on his political affiliations; that he was involved in corrupt practices and committed pilferage of millions of rupees---After removal of petitioner from office Federal Government appointed respondent as Acting Chairman, NADRA---Legality---Notification of petitioner's appointment showed that he was appointed as Chairman, NADRA in accordance with S.3(5) of National Database and Registration Authority Ordinance, 2000, and said post was a tenure post---Petitioner could not have been removed from office of Chairman except by adopting the procedure for termination from such office provided under S.3(12) of National Database and Registration Authority Ordinance, 2000---Even if appointment of petitioner was illegal as argued by Federal Government, his removal from office should not have taken place by an illegal procedure, and he should have been provided an opportunity of hearing---Federal Government did not argue the reasons it had provided in its summary by which petitioner was removed from office---Instead of following the law Federal Government had adopted a threatening attitude, which indicated that the Government frightened the petitioner with regard to his future actions in case he decided contrary to the wishes of the Government--- Such conduct by Government showed its ill-attitude, bad governance and its ill-design plans for the future--- Federal Government avoided to refer the case of petitioner to the Federal Commission for Selection of Heads of Public Sector Organizations, which had been formed on the directions of the Supreme Court and had the jurisdiction to remove heads of statutory bodies in case of their wrongful appointmwents---Federal Government appointed respondent as Acting Chairman, NADRA by way of a special measure as his entire appointment process including summary of his appointment, finalization on the administrative side, notification of appointment, and issuance of salary cheque were completed on the same day---Neither Federal Government nor respondent could explain as to what was the urgency because of which the process of respondent's appointment was completed so hurriedly---Removal of petitioner appeared to be case of victimization---Federal Government woke up from a lengthy dream after election authorities referred cases to NADRA for certain verifications, and the petitioner refused to follow directives (of the Government)---Proceedings initiated for removal of petitioner as Chairman, NADRA was a colourful exercise tainted with mala fides, consequently High Court set aside notification whereby services of petitioner were terminated---High Court also set aside notification by which respondent had been assigned to look after the work of the office of Chairman, NADRA---Constitutional petition was allowed accordingly.

Khawaja Asif's case 2013 SCMR 1205 ref.

(b) National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 3(5)---Post of Chairman, National Database and Registration Authority ("NADRA")---Nature---Said post was a tenure post.

----Alteration in law---Agreement by itself could not override the law or its operation---No one could alter or amend the law or its effects by mutual agreement.

Abdul Rashid v. Saleh Muhammad 1980 SCMR 506; Mst. Ghulam Sakina v. Khaliq Bari 1984 CLC 71; United Bank Ltd. Karachi v. Messrs Gravure Packaging (Pvt.) Ltd 2001 YLR 1549; Abdul Razzak v. Karachi Development Authority 1991 CLC 1551; Muhammad Atif Hanif v. Government of the Punjab 2013 CLC 1612 and Sukhdev Singh, Oil and Natural Gas v. Ghagat Ram AIR 1975 SC 1331 rel.

(d) Public office---

----Public official---Termination simpliciter from office---Legality---Such termination was illegal, repugnant and ultra vires of the Constitution.

Agha Salim Khurshid v. Federation of Pakistan 1998 PLC (C.S.) 1345; Muhammad Aslam v. Vice Chairman 2010 PLC (C.S.) 266; Habib Bank Limited v. Ghulam Mustafa Khairati 2008 SCMR 1516; Faisal Sultan v. E.D.O. 2011 PLC (C.S.) 419 and Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159 rel.

(e) Public office---

----Public official appointed on "Acting charge basis"---Legality---Such appointment was devoid of legality unless provided for by law.

Hamid Mir v. Federation of Pakistan PLD 2013 SC 244; Bank of Punjab v. Harris Steel PLD 2010 SC 1109 and Barrister Sardar Muhammad Ali v. Federation of Pakistan PLD 2013 Lah. 343 rel.

(f) Employment---

----Contractual employment---Termination from service---Procedure---One could not be ousted (from employment) even if he was a contract employee unless the legal procedure was adopted.

(g) Public office---

----Public official---Removal from service on basis that appointment to office was illegal---"Audi alteram partem", principle of---Scope---Such official had to be provided an opportunity of hearing and defence.

Pakistan International Airlines Corporation through its Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934; Muhammad Shoaib and 2 others v. Government of N.-W.F.P. through the Collector D.I.Khan and others 2005 SCMR 85; Secretary to Government of N.-W.F.P. Zakat v. Sadaulla Khan 1996 SCMR 413 and Collector of Custom and Central Excise Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303 rel.

Babar Sattar along with Ms. Sarah Rehman for Petitioner.

Muhammad Akram Sheikh, along with Ch. Hassan Murtaza Mann, for Respondent No.1.

Muhammad Shoaib Shaheen for Respondent No.2.

Amjad Saeed Awan, S.O.Establishment Division.

Muhammad Imtiaz, Addl. Secretary, Ministry of Interior.

Tariq Aleem Gill, Section Officer, Ministry of Interior.

Date of hearing: 13th December, 2013.

PLD 2014 ISLAMABAD 71 #

P L D 2014 Islamabad 71

Before Noor-ul-Haq N. Qureshi, J

HAROON RASHID---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION ABPARA, ISLAMABAD and another---Respondents

Writ Petition No.1939 of 2013, heard on 12th July, 2013.

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

----Ss. 154 & 190---Police Rules, 1934, R. 24.1---F.I.R., registration of---Legitimate right of complainant---Obligation of police---Scope---Right of registration of F.I.R. was a legitimate right guaranteed by law, which could not be curtailed or denied to any person making complaint before a police officer---If a cognizable offence of like nature was reported at a police station, the police was under a statutory obligation as required under S.154, Cr.P.C and R.24.1 of Police Rules, 1934 to record version of complainant in verbatim and incorporate the same in the book of S.154, Cr.P.C--- From such verbatim, if non-cognizable offence was made out, the matter was to be reported to the concerned Magistrate for seeking further guidance and appropriate action.

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

----S. 154---F.I.R., registration of---Statutory duty of police---Scope---Word "shall" used in S.154, Cr.P.C---Interpretation---Word "shall" used in S.154, Cr.P.C manifested the intention of the legislature to make said provisions as mandatory in nature---Police had the statutory duty to record the information in the relevant book in a trice.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 and Tassaduq Hussain v. DPO and others 2007 PCr.LJ 145 rel.

----Ss. 22-A & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Registration of F.I.R.---Military Operation carried out at Lal Masjid and Jamia Hafsa in July 2007 on the alleged orders of the then President of Pakistan/accused---Complainant's father and grandmother were killed during the operation and he moved several applications before the concerned Station House Officer for registration of F.I.R. against accused, but same were refused---Complainant also filed a petition before the Justice of Peace under S.22-A, Cr.P.C seeking a direction for registration of F.I.R. against accused, which was also rejected---Plea of accused that numerous other F.I.Rs had already been registered against him, thus the complainant could put his viewpoint before the investigating officer or the concerned court, instead of registering a new F.I.R.---Validity---No F.I.R. with regard to allegations levelled by the complainant had been registered nor such type of version had ever been brought to light---Other F.I.Rs. had been registered against accused but they did not specify the incident alleged through the application under S.22-A, Cr.P.C or present constitutional petition--- Legitimate right of complainant had been declined by the Justice of Peace---Constitutional petition was allowed and concerned Station House Officer was directed by High Court to record version of complainant, and if cognizable offence was made out, then to register an F.I.R. without any delay.

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

----S. 154---F.I.R., registration of---Limitation---Delay in lodging F.I.R. was not material---No limitation had been provided in criminal law for lodging a complaint.

2011 SCMR 872 rel.

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

----Ss. 22-A, 154 & 200---Constitution of Pakistan, Art. 199---Constitutional petition---Registration of F.I.R. or private complaint---High profile case---Advantage of an F.I.R. over a private complaint---Military Operation carried out at Lal Masjid and Jamia Hafsa in July, 2007 on the alleged orders of the then President of Pakistan/accused---Complainant's father and grandmother were killed during the operation and he moved several applications before the concerned Station House Officer for registration of F.I.R. against accused, but same were refused---Complainant also filed a petition before the Justice of Peace under S.22-A, Cr.P.C seeking a direction for registration of F.I.R. against accused, which was also rejected---Objection raised was that instead of registration of F.I.R., a private complaint was a better remedy for the complainant---Validity---Present case was a high profile case and evidence by way of direct complaint could not achieve the (required) results with regard to collection of evidence, attendance of accused persons as well as prosecution witnesses---Private complaint under circumstances of present case could not be equated with a state case---Possibility of collecting impressive evidence in a state case would be more---Registration of F.I.R. was the best course in circumstances of present case to meet the principles of equity---Constitutional petition was allowed and concerned Station House Officer was directed to record version of complainant, and if cognizable offence was made out, then to register an F.I.R. without any delay.

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

----Ss. 22-A, 154 & 200---Registration of F.I.R. on direction of Justice of Peace---Alternate remedy of private complaint---Although an alternate remedy was provided to an aggrieved party under the law by way of a (private) complaint, but it could in no way deter the court from giving direction to the police to record F.I.R. in appropriate cases.

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

----Ss. 22-A, 154 & 200---Justice of Peace refusing to give directions for registration of F.I.R.---Grounds---Courts could refuse to issue directions for registration of F.I.R. in special circumstances, i.e. the matter was of civil nature; the complainant was trying to convert the civil dispute into a criminal one; the complaint was based on mala fide and ulterior motives, and that an alternate remedy in the shape of a private complaint was available.

Tariq Asad for Petitoiner.

Malik Zahoor Akhtar Awan, Standing Counsel.

Muhammad Ilyas Siddiqui for Respondent No.2.

Muhammad Yousaf, S.I. with record.

Date of hearing: 12th July, 2013.

PLD 2014 ISLAMABAD 79 #

P L D 2014 Islamabad 79

Before Riaz Ahmad Khan, J

PAKISTAN TELECOMMUNICATION COMPANY LIMITED---Appellant

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY---Respondent

F.A.O. No.72 of 2011, heard on 26th February, 2014.

(a) Appeal---

----Appeal against a consenting order was not competent.

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

----S. 4(m)---Competition Act (XIX of 2010), S. 28---Anti-competitive practices in providing broadband services---Concurrent jurisdiction of Pakistan Telecommunication Authority (PTA) and Competition Commission---Complainant-companies filed complaints before PTA alleging that Pakistan Telecommunication Company Limited (PTCL) provided broadband services to them for onward sale to the public, but at the same time provided same services to the general public as well; that PTCL provided broadband services to the public at a much lower rate and put the complainant-companies in a position where they could not provide the same services on the same rate---Maintainability---Concurrent jurisdiction was available to the Competition Commission as well as PTA to adjudicate upon the present complaints---Different companies were involved in the same business, so in order to maintain a healthy competition among companies, the jurisdiction of PTA could not be considered as ousted---Appeal was disposed of accordingly.

----Art. 18(b)---Freedom of trade, business or profession---Regulation of business in the interest of fair competition---Scope---Under Art. 18 of the Constitution, every citizen had a right to enter into any lawful business, however, the same could be regulated in the interest of fair competition, under Art. 18(b) of the Constitution---Object of free trade and business was also to maintain a healthy competition therein---Object of freedom of business was also to avoid monopoly of any person.

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

----S. 4(m)---Anti-competitive practices in providing broadband services---Complaint filed before Pakistan Telecommunication Authority (PTA) ---Complainant-companies filed complaints before PTA alleging that Pakistan Telecommunication Company Limited (PTCL) provided broadband services to them for onward sale to the public, but at the same time provided same services to the general public as well; that PTCL provided broadband services to the public at a much lower rate and put the complainant-companies in a position where they could not provide the same services on the same rate---PTCL agreed to provide its accounts to PTA to deduce as to whether it was actually providing broadband services to the public at reduced prices against prices of the complainant-companies--- PTA disposed of the complaints after consent of both parties and directed PTCL to submit its audited accounts---Subsequently PTCL filed present appeal against order of PTA----Competency---Present appeal was filed against a consenting order, thus the same was not competent---Additionally PTA had only called record of PTCL to determine as to whether fair competition existed in the market or not---No final order was passed by PTA, so the present appeal was incompetent on such score as well---Appeal was dismissed accordingly.

Azad Nafees for Appellants.

Babar Sattar for Respondent No.2.

Faraz Khan Jadoon, Law Officer PTA.

Date of hearing: 26th February, 2014.

PLD 2014 ISLAMABAD 83 #

P L D 2014 Islamabad 123

Before Shaukat Aziz Siddiqui, J

Qazi MUSTAFA KAMAL---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and others---Respondents

Writ Petition No.2152 of 2014, decided on 24th June, 2014.

(a) Constitution of Pakistan---

----Art. 199---Judicial review---Constitutional petition before the High Court---Maintainability---Alternate remedy---Scope---Judicial review could be exercised if the alternate remedy was not adequate or efficacious---Alternate remedy must be capable of achieving the same purpose as was sought to be achieved through the constitutional petition.

2012 SCMR 455 and PLD 2012 Sindh 425 rel.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199(1)(b)(ii)---Constitutional petition before the Supreme Court/High Court---Quo warranto, writ of---Maintainability---Contents of petition---Conduct of petitioner---In writ petitions in the nature of quo warranto, the message was more important than the messenger---Contents of such petitions generally override concerns arising on account of the conduct or antecedents of a petitioner.

2013 SCMR 1159 and PLD 2012 SC 132 rel.

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Laches---Laches did not apply to writ of quo warranto as the cause of action was a recurring one, so long as the public office was being held by the person in question---Unlawful holding of a public office was a continuing wrong, which may be called into question by anyone, at any time.

2010 PLC (C.S.) 731; PLD 2010 Lah. 625 and 2002 PLC (C.S.) 274 rel.

(d) Constitution of Pakistan---

----Art. 199(1)(b)(ii)---Quo warranto, writ of---Scope---Public office---Recruitment process---Subject to judicial review---Entire process of recruitment leading to appointment to a public office could be subjected to judicial review 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---Recruitment process must be above board and devoid of the slightest smear of nepotism---Court was under an obligation to judicially review the integrity of the entire selection process to a public office.

(e) Constitution of Pakistan---

---Art. 199(1)(b)(ii)---Government of Pakistan, Establishment Division Notification No. 6/4/1996.R-3 dated 22-07-2013---Quo warranto, writ of---Pakistan Television Corporation (PTVC)---Managing director, post of---Selection process---Eligibility criteria for candidates---Change in eligibility criteria to accommodate a specific candidate---Legality---"Person specific criteria"---Nepotism and favouritism---Arbitrary and colourable exercise of authority---Making of false statements, misrepresentation and cheating during interview for selection---Respondent was appointed to post of Managing Director, PTVC, which was challenged by the petitioner by way of present constitutional petition---Process of appointment of Managing Director, PTVC was initiated through advertisement---Various criteria for eligibility for said post were changed twice through further advertisements, without any plausible rationale or justification---Educational requirement for a candidate was initially advertised as a Master's degree but was subsequently lowered to a Bachelor's degree, without any apparent reason---Grade 15 or 16 employee of PTVC were required to have a Master's degree as a bare minimum, thus it was all the more surprising that educational requirement for head of PTVC was lowered to a Bachelor's degree---Furthermore in terms of the revised advertised criteria educational qualification of Bachelor's in Arts and Social Sciences was added, whereas requirement of providing "written evidence" of 15 years work experience was changed to "established track record" of 15 years work experience---Such changes in eligibility criteria was to accommodate the respondent who only had a Bachelor's in Arts and was not able to provide written evidence of work experience from some of his past employers---Eligibility criteria was changed/ manipulated and maneuvered to enable the respondent to apply for the post of Managing Director, PTVC---Furthermore a company owned by respondent was a long standing defaulter of PTVC---Established liability of respondent towards PTVC existed at the time when process of recruitment for the post in question had already commenced---Respondent did not pay PTVC the outstanding amount till notification of his appointment as Managing Director, PTVC---Subsequently PTVC did issue a clearance certificate to the said company owned by respondent but only after he had been appointed to the post of Managing Director---During his interview by Federal Commission for Selection of Heads of Public Sector Organisations (FCHPSO), the respondent made a false statement before the said Commission to the effect that companies owned by him or his spouse did not have any outstanding liabilities towards PTVC---Respondent misled and cheated the said Commission and committed criminal act of making false statement and misrepresentation---Commission (FCHPSO) recommended names of two candidates to the Prime Minister for the post of Managing Director, PTVC, which recommendation was binding---Name of respondent was placed at number 2 on the list on order of merit, but astonishingly the Prime Minister exercised his discretion by disregarding the name of candidate placed at number 1, and without any reason recommended appointment of respondent, who was placed at number 2 on the merit list---Such exercise of discretion was arbitrary and colourable exercise of authority---In the context of selection through open advertisement, merit and interview/short-listing process, it was all the more important that the person selected by the Commission (FCHPSO) as the most suitable candidate for the job, was appointed to such post, rather than giving the concerned authority the option or discretion of hand picking and choosing any person out of the list provided---Respondent also had his own private production company which sold its products to PTVC, thus he was disqualified to be even considered for the post of Managing Director, PTVC as his personal interest clashed with the interest of PTVC---Respondent was appointed as Managing Director, PTVC, with immediate effect, prior to settlement of the terms and conditions of his service, including salary, perks and other privileges, which fact spoke volumes of the pre-conceived intention of the concerned authority in constructing the appointment of respondent to the post in question---High Court declared appointment of respondent as Managing Director, PTVC as non-transparent, non-competitive and illegal---Constitutional petition was allowed and High court directed that respondent shall forthwith cease to be Managing Director, PTVC, and Chairman of the Commission (FCHPSO) should re-initiate the competitive process of appointment of Managing Director, PTVC, afresh strictly in line with the guidelines laid down by the Supreme Court in the case of Khawaja Muhammad Asif v. Federation of Pakistan and others [2013 SCMR 1205].

2013 PLC (C.S.) 1147; Khawaja Asif's case 2013 SCMR 1205 and PLD 2012 SC 132 ref.

(f) Civil service---

----Appointment---Government of Pakistan, Establishment Division Notification No.6/4/1996.R-3 dated 22-7-2013, Para.4(vi)---Appointment of head of a public sector organization---Federal Commission for Selection of Heads of Public Sector Organisations (FCHPSO), recommendation of---Recommendation of FCHPSO to the competent authority regarding selection/appointment of head of a public sector organization was binding.

(g) Constitution of Pakistan---

----Art. 199(1)(b)(ii)----Quo warranto, writ of---Public office, appointment to---Recruitment/selection process---Discretion of appointing authority---Subject to judicial review---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---Exercise of power by such appointing authorities was judicially reviewable.

(h) Discretion---

----Structured discretion, exercise of---Scope---Constitutional and jurisprudential importance of structured discretion was that it nursed the requirements of due process, transparency, fairness and safeguarded discretion against the vice of discrimination and arbitrariness.

2010 SCMR 1301 ref.

Barrister Faisal Khan Toru, Ms. Hadiya Aziz and Khubab Aziz for Petitioner.

Fazal-ur-Rehman Khan Niazi, D.A.-G. for Respondents.

Muhammad Nazir Jawad and Feisal Hussain Naqvi, Senior Advocate Supreme Court for Respondent No.2.

Muhammad Akram Sheikh, Senior Advocate Supreme Court, Ch. Hassan Murtaza Maan and Sultan Hayat Ranjha for Respondent No.3.

Date of hearing: 16th June, 2014.

PLD 2014 ISLAMABAD 113 #

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PLD 2014 ISLAMABAD 123 #

P L D 2014 Islamabad 123

Before Shaukat Aziz Siddiqui, J

QaziMUSTAFA KAMAL---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and others---Respondents

Writ Petition No.2152 of 2014, decided on 24th June, 2014.

(a) Constitution of Pakistan---

2012 SCMR 455 and PLD 2012 Sindh 425 rel.

(b) Constitution of Pakistan---

2013 SCMR 1159 and PLD 2012 SC 132 rel.

2010 PLC (C.S.) 731; PLD 2010 Lah. 625 and 2002 PLC (C.S.) 274 rel.

(d) Constitution of Pakistan---

(e) Constitution of Pakistan---

---Art. 199(1)(b)(ii)---Government of Pakistan, Establishment Division Notification No. 6/4/1996.R-3 dated 22-07-2013---Quo warranto, writ of---Pakistan Television Corporation (PTVC)---Managing director, post of---Selection process---Eligibility criteria for candidates---Change in eligibility criteria to accommodate a specific candidate---Legality---Person specific criteria---Nepotism and favouritism---Arbitrary and colourable exercise of authority---Making of false statements, misrepresentation and cheating during interview for selection---Respondent was appointed to post of Managing Director, PTVC, which was challenged by the petitioner by way of present constitutional petition---Process of appointment of Managing Director, PTVC was initiated through advertisement---Various criteria for eligibility for said post were changed twice through further advertisements, without any plausible rationale or justification---Educational requirement for a candidate was initially advertised as a Masters degree but was subsequently lowered to a Bachelors degree, without any apparent reason---Grade 15 or 16 employee of PTVC were required to have a Masters degree as a bare minimum, thus it was all the more surprising that educational requirement for head of PTVC was lowered to a Bachelors degree---Furthermore in terms of the revised advertised criteria educational qualification of Bachelors in Arts and Social Sciences was added, whereas requirement of providing written evidence of 15 years work experience was changed to established track record of 15 years work experience---Such changes in eligibility criteria was to accommodate the respondent who only had a Bachelors in Arts and was not able to provide written evidence of work experience from some of his past employers---Eligibility criteria was changed/ manipulated and maneuvered to enable the respondent to apply for the post of Managing Director, PTVC---Furthermore a company owned by respondent was a long standing defaulter of PTVC---Established liability of respondent towards PTVC existed at the time when process of recruitment for the post in question had already commenced---Respondent did not pay PTVC the outstanding amount till notification of his appointment as Managing Director, PTVC---Subsequently PTVC did issue a clearance certificate to the said company owned by respondent but only after he had been appointed to the post of Managing Director---During his interview by Federal Commission for Selection of Heads of Public Sector Organisations (FCHPSO), the respondent made a false statement before the said Commission to the effect that companies owned by him or his spouse did not have any outstanding liabilities towards PTVC---Respondent misled and cheated the said Commission and committed criminal act of making false statement and misrepresentation---Commission (FCHPSO) recommended names of two candidates to the Prime Minister for the post of Managing Director, PTVC, which recommendation was binding---Name of respondent was placed at number 2 on the list on order of merit, but astonishingly the Prime Minister exercised his discretion by disregarding the name of candidate placed at number 1, and without any reason recommended appointment of respondent, who was placed at number 2 on the merit list---Such exercise of discretion was arbitrary and colourable exercise of authority---In the context of selection through open advertisement, merit and interview/short-listing process, it was all the more important that the person selected by the Commission (FCHPSO) as the most suitable candidate for the job, was appointed to such post, rather than giving the concerned authority the option or discretion of hand picking and choosing any person out of the list provided---Respondent also had his own private production company which sold its products to PTVC, thus he was disqualified to be even considered for the post of Managing Director, PTVC as his personal interest clashed with the interest of PTVC---Respondent was appointed as Managing Director, PTVC, with immediate effect, prior to settlement of the terms and conditions of his service, including salary, perks and other privileges, which fact spoke volumes of the pre-conceived intention of the concerned authority in constructing the appointment of respondent to the post in question---High Court declared appointment of respondent as Managing Director, PTVC as non-transparent, non-competitive and illegal---Constitutional petition was allowed and High court directed that respondent shall forthwith cease to be Managing Director, PTVC, and Chairman of the Commission (FCHPSO) should re-initiate the competitive process of appointment of Managing Director, PTVC, afresh strictly in line with the guidelines laid down by the Supreme Court in the case of Khawaja Muhammad Asif v. Federation of Pakistan and others [2013 SCMR 1205].

2013 PLC (C.S.) 1147; Khawaja Asifs case 2013 SCMR 1205 and PLD 2012 SC 132 ref.

(f) Civil service---

(g) Constitution of Pakistan---

(h) Discretion---

2010 SCMR 1301 ref.

Barrister Faisal Khan Toru, Ms. Hadiya Aziz and Khubab Aziz for Petitioner.

Fazal-ur-Rehman Khan Niazi, D.A.-G. for Respondents.

Muhammad Nazir Jawad and Feisal Hussain Naqvi, Senior Advocate Supreme Court for Respondent No.2.

Muhammad Akram Sheikh, Senior Advocate Supreme Court, Ch. Hassan Murtaza Maan and Sultan Hayat Ranjha for Respondent No.3.

Date of hearing: 16th June, 2014.

JUDGMENT

SHAUKAT AZIZ SIDDIQUI; J.---Petitioner invoked the constitutional jurisdiction of this court by way of filing the instant writ petition with the following prayer:

"Under the circumstances expounded above, it is most respectfully prayed that while accepting the instant constitutional petition, the impugned Notification No.1/42/2004-E-6 dated 27-2-2014 issued by respondent No.1 and office order dated 28-2-2014 may kindly be declared null and void ab initio as respondent No.3 stands disqualified also in terms of section 97(c) of Memorandum of Articles of Association of PTVC Limited and in violation of directions of honourable Supreme Court, Islamabad High Court, Islamabad and laws. The post of MD PTVC be re-advertised and High Powered Selection Committee may also be strengthened to select the right candidate as per directions of the Supreme Court and Islamabad High Court. Moreover, the respondent No.3 may be stopped to perform the functions and act as MD PTVC being recruited through unlawful process of recruitment.

And presented the facts as under:---

That the petitioner is presently performing his duties as Director Special Assignments, Pakistan Television Corporation Ltd. ("PTVC"), Islamabad, having an experience of over 28 years in PTVC. That the respondent No.2 prepared the case for the appointment of Managing Director, PTVC and advertised the said post by inviting applications from suitable candidates as per the given qualification, experience and other terms and conditions published in the Daily Dawn dated 30-4-2013 ("the First Advertisement"). Later on, the Respondent No.2 re-advertised the said post vide advertisement published in the Daily Jang dated 9-10-2013 ("the Second Advertisement"), whereby, firstly, the required academic qualifications were lowered from a Masters Degree to a Bachelors Degree in Mass Communication or Journalism, secondly, the age limit was relaxed and, thirdly, the required work experience of twenty (20) years was reduced to fifteen (15) years. It was contended that this was done purely to make the said advertisement person-specific for the benefit of respondent No.3. Subsequently, a Corrigendum was also published in the Daily Nation dated 16-10-2013 ("Corrigendum") which amended the Second Advertisement further as follows: (a) the contractual term was revised from two (2) years to three (3) years; (b) the degrees of Bachelors in Arts and Social Sciences were added in the list of academic qualifications required for this position; (c) "written evidence" of fifteen (15) years work experience was changed to "established track record" of fifteen (15) years experience; and (d) the remuneration for this position was changed from that of an MP-1 scale to such package as may be negotiated by the parties, keeping in view the last pay drawn by the successful candidate from the private sector, without fixing any upper limit of remuneration. Thereafter, the respondent No.3 applied for the said post of MD PTVC when the stage was all set for him, in a pre-planned manner and was, subsequently, appointed as MD PTVC vide Notification dated 27-2-2014.
It was averred by the learned counsel for the petitioner, Barrister Faisal Khan Toru, that such appointment was in clear violation and against the directions of the Hon'ble Supreme Court of Pakistan given in its judgment titled "Khawaja Muhammad Asif v. Federation of Pakistan and others", reported as 2013 SCMR 1205, as well as the Islamabad High Court's judgment dated 8-5-2013 passed in W.P. No.1874 of 2013, against the provisions of the Companies Ordinance, 1984, rules of natural justice and all other applicable laws. It was contended that the respondent No.3 has been appointed as MD, PTVC despite the fact that he was an established defaulter of PTVC to the extent of Rs.14.139 million, as evidenced by the minutes of meeting dated 17-6-2013 of the Dispute Resolution Committee of PTVC, as well as the reconciliation statement dated 7-11-2013 issued by Mr. Matloob Ahmad Khan, Director Finance, PTVC. That, as such, even the respondent No.5 (Chairman, High Powered Selection Committee) failed to exercise his role and responsibilities with regard to the selection of respondent No.3 by inter alia ignoring the defaulter status of the respondent No.3 for the last ten (10) years and also ignoring the order of merit and short-listing conducted by Messrs A.F. Ferguson & Co.
Learned counsel further argued that the Prime Minister of Pakistan exercised his discretion in an unstructured and illegal manner by discarding the recommendation of the Federal Commission for Selection of Heads of Public Sector Organizations (FCHPSO) whereby one Mr.Jamal Shah was proposed as the most suitable candidate for the post of MD PTVC, whereas the respondent No.3 was placed as second on the merit list. Learned counsel added that law does not provide the competent authority with unbridled, unfettered and unstructured powers while exercising its discretion for appointment of the Managing Director, PTVC. He stated that appointing authorities could not be allowed to exercise their discretion at their own whims, or in an arbitrary manner, rather, they are pound to act fairly, evenly and justly, and any violation of such principles is judicially reviewable. Furthermore, in order to exercise fair and transparent discretion, their actions must be based on an objective, open and impartial consideration to decide such matters and the objective of good governance can only be achieved by exercising discretionary powers reasonably. Learned Counsel went on to add that 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 issues after application of mind, with reasons.
The learned counsel contended that the respondent No.3 has a clear conflict of interest in, on the one hand, being appointed as MD PTVC, and, on the other hand, owning production houses namely, Media Magic. (Pvt.) Ltd., a private limited company, of which he is an 80% shareholder and Messrs Pink Productions, a proprietorship that is proxy managed/run, by his wife, Aneela Malick. It was averred that conflict of interest arises when public officials have to make decisions at work that may affect their private interests and governments are expected to ensure that public officials do not allow their private interests and affiliations to compromise official decision-making and public management. He further contended that it is well-settled law that the entire process of recruitment leading to the appointment to a public office can be judicially reviewed under Article 199(1)(b)(iii) of the Constitution. The recruitment process must be above-board and the Courts are under an obligation to judicially review the integrity of the selection process of a public office. Finally, learned counsel concluded that the appointment of the respondent No.3 as MD PTVC was also a violation of sections 199 and 203 of the Companies Ordinance, 1984 in so far as (a) the competent authority for the appointment of the Chief Executive/MD of PTVC was the Board of Directors of PTVC, whereas the said appointment was, in fact, been made by the Establishment Division, Cabinet Secretariat; and (b) the respondent No.3, as MD PTVC, was precluded from engaging in businesses that were of the same nature and directly competed with PTVC. Learned counsel for the petitioner placed reliance on case-law reported as PLD 2013 SC 195, Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others, PLD 2013 Lahore 386, Tanvir Ahmed Khan v. Registrar Lahore High Court, Lahore, PLD 1990 SC 1092, Amanullah Khan v. Federal Government of Pakistan, 2010 SCMR 1301, Tariq Aziz-ud-Dins case, 2012 PTD 1522, PLD 2013 Lahore 343, Barrister Sardar v. FOP, PLD 2012 SC 132, Muhammad Yasin v. FOP, 2010 PLC (C.S.) 967, Sheikh Zaid Hospital through Chairman and Dean and another v. Dr. Muhammad Saeed and others, PLD 2012 SC 132, Muhammad Yasin v. FOP (Tauqeer Sadiq case) and 2013 SCMR 1159 and Ashraf Tiwana v. FOP (Chairman SECP case).
On the other hand, the respondents Nos.1 to 4 filed their reply and para-wise comments and raised certain preliminary objections to the maintainability of this Writ Petition i.e. (i) firstly, that the Writ Petition is not maintainable as the petitioner has an alternate efficacious remedy available to him i.e. in the form of filing a complaint before the FCHPSO, constituted in compliance of the orders of the Honble Supreme Court of Pakistan in the Khawaja Asifs case reported as 2013 SCMR 1205; (ii) secondly, that since the petitioner himself chose to participate in the pre-qualification process supervised by Messrs A.F. Ferguson, therefore, he is stopped by his conduct to challenge the validity of that selection process; (iii) thirdly, that the petitioner has approached this Court with unclean hands and mala fide intentions, hence, is not entitled to discretionary relief; and (iv) finally, that the Writ Petition has been belatedly filed with a delay of ten (10) weeks and, therefore, suffers from laches.
On merits, the learned counsel for the respondent No.3, Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court, contended that so far as the lowering of educational qualification, and changing of other terms and conditions through the Corrigendum are concerned, the same was done with a view to allowing a larger number of candidates to apply for the said post and to recruit the best talent. Therefore, it is wrong to say that same was done to accommodate a single individual and/or was person-specific. Learned counsel argued that the entire process of selection of MD, PTVC was totally transparent and competitive and the respondent No.3 was appointed through a open-merit selection process, which involved a pre-screening stage by a renowned HR Consultancy Firm, namely, Messrs A.F. Ferguson, followed by short-listing of five (5) names, out of which two short-listed names were forwarded by the FCHPSO to the Prime Minister, who then made his final choice. It was also averred that the respondent No.3 was never a defaulter of PTVC, instead, the correct position is that the two entities associated with the respondent No.3 (Media Magic (Pvt.) Ltd., and Messrs Pink Productions) had long-standing disputes with PTVC who approached the PTVC independently for the resolution of their disputes. The sums payable were reconciled by mutual agreement on 8-10-2013 and the undisputed liability of Rs.7.236 million was communicated vide letter dated 21-10-2013 and accepted in full by Messrs Pink Productions, prior to any consideration of the respondent No.3 for the post of MD, PTVC. This liability was paid off in full prior to the appointment of respondent No.3 as MD, PTVC. Furthermore, the audit certificate from a statutory auditor (i.e. Auditor-General of Pakistan) is not a mandatory requirement, instead, a clearance certificate was issued by PTVC itself.
The learned counsel for the respondent No.3 further contended that, pursuant to the order dated 8-5-2013 of this Court in W.P.1872 of 2013, a five-member Selection Board was constituted to consider the working directors of PTVC for the post of MD, PTVC. The said Selection Board was chaired by the Federal Minister for Information, Broadcasting and National Heritage and the other members thereof were the Secretary and Additional Secretary of the Ministry for Information, Broadcasting and National Heritage, along with Additional Secretary II, Establishment Division and the Director-General - IP of Ministry of Information, Broadcasting and National Heritage. The Selection Board interviewed all those working directors of PTVC who wanted to be considered for the post of MD, PTVC. The petitioner also applied to the Selection Board and was interviewed along with the other working directors. That the unanimous conclusion of the Selection Board was that none of the working directors were found suitable for promotion/ appointment to the post of MD, PTVC. Hence, after exhausting this step, the next step was initiated i.e. a fresh advertisement for the post of MD, PTVC, was published on 9th October 2013, inviting all qualified members from the general public to apply for the said post. The petitioner also applied for the same, pursuant to the said advertisement, however, he was not considered suitable by Messrs A.F. Ferguson and, therefore, not short-listed. It was, further vehemently asserted that the petitioner has approached this Court with unclean hands as he was given acting charge as MD, PTVC through judgment dated 12-4-2013 passed by this Court in Writ Petition No.2503 of 2009 on the basis that he was the senior most of the working directors of PTVC, but in fact he was not the senior-most director at that time. Rather, he was the third senior most director of PTVC, but he did not bring this fact to the notice of this Court, despite knowing well his actual position and seniority. As a result, he illegally occupied the post of acting MD, PTVC, till his relinquishment of charge on 13-1-2014. That the petitioner's aim in initiating these proceedings was to, once again, illegally occupy the post of MD, PTVC.
The next contention of the learned counsel for the respondent No.3 was that Mr. Muhammad Malick was appointed MD, PTVC, on 27-2-2014, whereas the present writ petition was filed on 5-5-2014 i.e. after ten (10) weeks of the appointment of respondent No.3, which seems to be an afterthought and a counterblast to blackmail the respondent No.3 and to stop him from taking action against the petitioner for his acts of corruption committed during his tenure as acting MD, PTVC. He informed this Court that the petitioner's case has been recommended to the National Accountability Bureau (NAB) for investigation on account of his alleged corruption during service. Lastly, he argued that when there is material on record to show that a writ petition, styled as a public interest litigation, is nothing but a camouflage to foster personal disputes or vendetta to bring to terms a person, not of one's liking, or gain publicity or a facade for blackmail, such petition is liable to be thrown out for lack of bona fides. At the end of arguments learned counsel submitted that, disqualification, if any attached to respondent No.3 was shedded away before entering to the officer, therefore, this aspect has to be kept out of consideration at the time of issuance of writ. Reliance was placed on case-law reported as: AIR 1976 SC 2428 titled Dr. G. Seirana,. v. University of Lucknow and others, 2001 MLD 431, Mirza Nasir and others v. Mirza Hakim ud Din, 2007 SCMR 569, Overseas Pakistani Foundation and others v. Sq. Ldr. (Retd.) Syed Mukhtar Ali Shah and others, PLD 1966 Karachi 31, Ch. Rehmat Ali and others v. Custodian, Evacuee Property Lahore and others, PLD 2013 SC 413, Dr.Muhammad Tahir-ul-Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others, PLD 1969 SC 42, Dr. Kamal Hussain and others v. Muhammad Sirajul Islam and others, PLD 1965 SC 236, Aziz-ur-Rehman Choudhary v. M. Nasir-ud-Din etc. 2004 SCMR 1299, Dr. Azim-ur-Rehman Khan MEO v. Government of Sindh and another, 2012 SCMR 455, Dr. Akhtar Hassan and others v. Federation of Pakistan, (2005) 5 SCC 136, Gurpal Singh v. State of Punjab and others (2004) 3 SCC 363, Dr. B. Singh v. Union of India and others, (2005) 1 SCC 590, Dattaraj Nathuji Thaware v. State of Maharashtra and others.
The Secretary Information (respondent No.2) appointed his private counsel, namely Mr. Feisal Hussain Naqvi, Advocate Supreme Court, which is against the settled norms and practice, as in the presence of the learned Additional Attorney-General, Deputy Attorney-General and Standing Counsel, the Secretary Information (respondent No.2) was not obliged to engage the services of some private counsel and this fact was pointed out during the case proceedings. Learned counsel so engaged submitted that since his power of attorney is on the file, therefore, he may be allowed to argue. He, subsequently, adopted the arguments advanced by Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court and further asserted that Messrs A.F. Ferguson was an internationally recognized HR Consultancy Firm, which carried out the functions mandated to it by PCHPSO with transparency and short listed five (5) candidates for MD, PTVC purely on merit and in a fully transparent manner. The learned Deputy Attorney General, while appearing on behalf of respondent No.1, also defended the process of appointment of the respondent No.3 by adopting the arguments already advanced.
I have heard the learned counsel for the parties at considerable length and have gone through the entire record.
Before adverting to the issue of the validity or otherwise of the appointment of respondent No.3 as MD, PTVC, I find it appropriate to provide certain facts which led to the initiation of the process pursuant to which respondent No.3 was appointed as MD, PTVC. The operative part of this Court's judgment dated 12-4-2013 passed in Writ Petition No.2503 of 2009, titled as "M. Ashraf Azeem v. Federal Government of Pakistan, etc." whereby the appointment of Mr. Yousaf Baig Mirza, as MD, PTVC was declared illegal, is reproduced as under:---

"It is amazing to note that, respondent No.4 was appointed for the 3rd time in October, 2010 but terms and conditions of his service were fixed on 15-1-2011 which itself is not only dubious but un-precedented as well. It is beyond the comprehension that any head of Organization would be allowed to take profits from the income/ reverence received. I totally failed to understand that why M. Yousaf Baig Mirza, declared entitled to get 3% of Monthly Advertisement Revenue beside his salary. As head of PTVC, he was supposed to work for generating/increasing income of PTVC but not to get share out of it. Although, his entire package looked unreasonable; but this part is offensive to the rights of regular employees and those who retired by giving their youth to PTVC but neither being paid reasonable salaries nor their due pension. I have no hesitation in holding that Mr. Yousaf Baig Mirza, was not entitled to receive any amount against advertisement revenue, therefore, he is under obligation to return whole amount received by him as 3% of Monthly Advertisement Revenue. The august Supreme Court through different authoritative pronouncements, more particularly Tariq Aziz-ud-Din case reported as 2010 SCMR, 1301, Muhammad Yasin's case, reported as PLD 2012 SC 132, Sh. Riaz-ul-Haqs, case in Constitutional Petition No.53 of 2007 and Hajj Corruption reported as PLD 2011 SC 963, held categorically that for appointments in the state owned Companies, Corporations, Establishments, Organizations, etc. process of appointment need to be competitive, credible, fair, transparent and on merits, instead of political affiliation, specific background and favouritism.

If any director of the PTVC is to be promoted then principle of seniority-cum-fitness has to be followed and if circumstances compel, then any person may be appointed from the open market but through competitive, transparent and objective process.

In this view of the matter, I am totally convinced that appointment of respondent No.4 is result of colourable exercise of authority, without due process, non-transparent approach, against the principles of healthy competition, fairness, openness, merit, offensive to the constitutional provisions and besides the dictums laid down by the Hon'ble Supreme Court of Pakistan. As such notifications of his appointment No.1/12/98-E-6, dated 9th April, 2007, No.1/42/2004-E-6, dated 8th October, 2010 followed by Office Order dated 15-1-2011 are set aside. He shall cease to be M.D; PTVC, forthwith, and all the appointments made during his tenure, without competitive process are also declared as illegal and void. The Secretary Ministry of Information is directed to commence competitive process with proper advertisement if appointment of M.D PTVC is to be made from open market, may be completed within 3 weeks but not later than 1Oth of May, 2013. The office of Managing Director, PTVC is very important, sensitive, and strategic post, as organizational behavior of this State Owned Corporation has strong impact on the society and culture of the country.

According to the information, submitted before court, Mr. Mustafa Kamal Qazi, Director Engineering, is the senior most Working Director in PTVC therefore, he is to act as Managing Director, PTVC till the appointment of regular Managing Director through competitive process or through internal appointment of any Director as M.D PTVC.

Acting Managing Director, PTVC shall look after day to day affairs, necessary to run the establishment of the PTVC. He is also directed to proceed in accordance with law against all employees brought to the establishment without competitive process, during last two tenures of Mr. Yousaf Baig Mirza. However, low paid employees like sweepers, maid, qasids, office attendants etc. may not be removed. He is further directed to get calculated from financial expert of PTVC, the total amount received by Mr. Yousaf Baig Mirza as 3% of Monthly Advertisement Revenue arid immediately recover that amount from him.

The report of steps taken shall be submitted to the Registrar of this court for perusal of court.

The writ petition is disposed of with above directions.

In compliance with the above judgment and following the guidelines provided by the august Supreme Court of Pakistan, an advertisement for the appointment of Managing Director, PTVC, on a two (2) year contract, was published by the Ministry of information, Broadcasting and National Heritage in the daily "Dawn" dated 30-4-2014, which reproduced hereunder:---

GOVERNMENT OF PAKISTAN

MINISTRY OF INFORMATION AND BROADCASTING VACANCY ANNOUNCEMENT

MANAGING DIRECTOR

Applications are invited for a 2 years contractual appointment against the senior position of Managing Director in Pakistan Television Corporation, Islamabad under the administrative control of Ministry of Information and Broadcasting. The position is placed in MP-I Grade in terms of Finance Division's O.M. No.F.3(2)R-4/2011 dated 24-12-2012 (Annex-B) vis-a-vis salary package, perks and privileges. The said OM is accessible on Finance Divisions' website.

Eligibility

The prospective candidate is supposed to possess the following qualification and experience:

(a) MBA, MPA, MSc Mass Communication or Journalism/MSc Engineering from HEC recognized University in Pakistan OR abroad. A degree in law shall be considered an additional asset. Degrees shall be verified from H.E.C.

(b) Age between 45 to 57 years.

(c) Complete understanding of GOP Governance Framework in terms of Rules of Business 1973, Media Laws, Financial Rules and regulations framed there under.

(d) Written evidence of 20 years service experience in a combination of public and private sector organizations in governance, management, financial management, and marketing.

(e) PTV's internal Directors may also apply.

(f) Government Servants meeting the eligibility criteria may also apply.

Responsibilities

The prospective selectee will have to operate in news media and programmes production and related competitive environment, interact with GOP Organizations and must have a fair understanding to deliver in PPRA-regulated and Planning Commission's guidelines regulating \ public sector development schemes in GOP Corporations.

Selection Procedure

GOP's selection criteria/procedures outlines in Civil Establishment Code-2007 (Vol-I: Chapter-2 SI.Nos.140-141) read with sections 198 and 199 of Companies Ordinance, 1984 shall apply when shortlisted and called for interview by a Federal Governments Selection Board.

How to apply

Interested candidates may apply under a covering application, attaching 3 passport size, photographs, Degrees, Testimonials, proof of experience, Metric Certificate as proof of DOB, NIC, complete residential address and Landline Numbers plus Mobile. Applications complete in all respect (in sealed envelope) should reach the undersigned by 7th May, 2013 at the following address.

(Adman Akram Bajwa)

Assistant Director (TV)

4th Floor, Cabinet Block, Pakistan Secretariat Islamabad

However, having some reservations to the above advertisement, Mr. Qazi Mustafa Kamal (present petitioner) the then acting MD, PTVC, filed Writ Petition No.1874 of 2013, contending therein that the respondents had amalgamated the two separate recourses for appointment as MD, PTVC and the working directors of PTVC were ignored. The said writ petition was disposed off vide order dated 8-5-2013 of this Court, pursuant to an undertaking given by Mr. Zahoor Ahmad Barlas, Joint Secretary, M/o Information. The said order is reproduced hereunder:---

"In response to order dated .3-5-2013, Mr. Zahoor Ahmad Barlas, Joint Secretary, M/o Information has put appearance and submitted that due to some inadvertence the ratio of judgment passed by this court was not properly understood and followed, therefore, impugned advertisement was published on 30-4-2013 and some process started, however, after going through the judgment passed by this court he undertakes that firstly working Directors of PTVC shall be considered for promotion in accordance with the rules/regulations of PTVC and on the basis of principle of seniority cum fitness and if any suitable person is not found then Federal Government may consider to appoint any of the Civil Servants as M.D PTVC, from the panel of three nominees and if no civil servant is appointed as M.D PTVC then competitive process through advertisement shall be initiated for taking any person from the open market, entirely on the basis of criteria fixed by the Board of Directors in the light of judgments passed by superior courts.

Mr. Barlas requests that last date fixed by this court for completing the process was 10-5-2013, which may be extended as now entire process has to re-commence. Request is reasonable, therefore, time is extended till 30-5-2013 for completing the process for the appointment of M.D PTVC.

Disposed of"

The above order was assailed through I.C.A. No.732 of 2013 by the Ministry of Information, Broadcasting and National Heritage, however, vide order dated 20-12-2013, the learned Division Bench (DB) of this Court observed that in pursuance of the direction issued by the Hon'ble Supreme Court of Pakistan in Khawaja Asif case reported as 2013 SCMR 1205, the Federal Commission for Selection of Heads of Public Sector Organizations (FCHPSO) has been constituted, which is now working, therefore, any such issue could be raised before that Commission. As a result, the order impugned became redundant and the ICA was rendered infructuous and disposed, off accordingly.
Thereafter, another advertisement dated 9th October, 2013 was published in the daily Jang" for appointment of MD, PTVC, on a two (2) year contract basis, by the M/o Information, Broadcasting and National Heritage, by inter alia changing the age limit as "40-58 years", instead of "45-47 years", as advertised earlier, which is reproduced as under:---

MINISTRY OF INFORMATION, BROADCASTING

AND NATIONAL HERITAGE

VACANCY ANNOUNCEMENT

MANAGING DIRECTOR

Applications are invited for a 2 years contractual appointment against the senior position of Managing Director in Pakistan Television Corporation, Islamabad under the administrative control of Ministry of Information, Broadcasting and National Heritage. The Position is placed in MP-I Grade in terms of Finance Division's O.M. No.F3(2)R-4/2011, dated 24-12-2012 (Annex-B) vis-a-vis salary package, perks and privileges. The said OM is accessible on Finance Division's website.

Eligibility

The prospective candidate is supposed to possess the following qualification and experience:

(a) A degree in Mass Communication or Journalism/MSc Engineering/ MBA/ MPA from HEC recognized University in Pakistan OR abroad. A degree in law shall be considered an additional asset. Degrees shall be verified from HEC.

(b) Age between 40-58 years.

(c) Written evidence of 15 years experience in organizations in Governance, management, financial management and marketing.

(d) PTVs internal Directors/employees may also apply.

e. Government Servants meeting the eligibility criteria may also apply.

Responsibilities

The prospective selectee will have to operate in news media and programmes production and related competitive environment, interact with GOP Organizations and must have a fair understanding to deliver in PPRA-regulated and Planning Commission's guidelines regulating public sector development schemes in GOP Corporations.

Selection Procedure

Supreme Court's guidelines for selection of CEOs of State Owned Enterprise's will be followed.

How to apply.

Interested candidates may apply under a covering application, attaching 3 passport size, photographs, Degrees, Testimonials, proof of experience, Metric Certificate as proof of DOB, NIC, complete residential address and landline Numbers plus Mobile. Applications complete in all respects (in sealed envelope) should reach the undersigned by 29th October 2013, at the following address. Those who have already applied for the said post, they need not to apply again.

(Adnan Akram Bajwa)

Assistant Director (TV) 4th Floor, Cabinet

Block, Pakistan Secretariat Islamabad

The above advertisement was followed by a "Corrigendum" published in the daily "Nation" dated 16-10-2013, which, inter alia, enhanced the contract period from two (2) years to three (3) years. The same is reproduced hereunder:---

GOVERNMENT OF PAKISTAN

MINISTRY OF INFORMATION, BROADCASTING

AND NATIONAL HERITAGE CORRIGENDUM VACANCY ANNOUNCEMENT MANAGING DIRECTOR

(Pakistan Television Corporation)

This is with reference to an advertisement titled vacancy announcement appearing in various newspapers of 9th and 10th October, 2013. Following changed/ amendments must be noted in the earlier advertisements of 9th and 10th October, 2013:---

(1) Applications are invited for a 3-year contractual appointment, instead of 2 years.

(2) Paras A, B and C of the eligibility are amended as follows:---

a. A degree in Mass Communication, Journalism of Arts and Social Sciences/MSc Engineering/MBA/MPA or equivalent qualification from HEC recognized University in Pakistan OR abroad. A degree in law shall be considered an additional qualification. Degrees shall be verified from HEC.

(b) Age between 40-59 years.

(c) Established track record of a minimum 15 years experience in organizations in governance, management, financial management and marketing. Demonstrable ability to provide leadership in positioning the company at the forefront of the media industry. Develop a comprehensive strategic plan to advance PTV's mission and objectives, promote revenue, profitability and growth.

(3) In the event of the successful candidate being taken from the private sector, salary package, perks and privileges may be negotiated in view of his/her last drawn salary package, perks and privileges.

Last date of receiving applications is also extended to November 4, 2013.

(Adnan Akram Bajwa)

Assistant Director (TV) 4th Floor, Cabinet, Block, Pakistan Secretariat Islamabad

In order to ascertain whether the appointment of respondent No.3 has been made by the FCHPSO under the guidelines provided by the Hon'ble Supreme Court of Pakistan in the case of Khawaja Muhammad Asif v. Federation of Pakistan and others (reported as 2013 SCMR 1205), the Notification dated 22nd July, 2013, issued by the Establishment Division is also reproduced as under:---

GOVERNMENT OF PAKISTAN

CABINET SECRETARIAT ESTABLISHMENT DIVISION

No.6/4/1996.R-3 Islamabad, the 22nd July, 2013

NOTIFICATION

WHEREAS the Supreme Court of Pakistan, in the case of Khawaja Muhammad Asif v. Federation of Pakistan and other, (Petition No.30 of 2013) has directed the Federal Government to constitute a Commission to ensure transparency in the appointment of heads of statutory bodies, autonomous or semi-autonomous bodies, regulatory authorities and organizations established by or under the control of the Federal Government, hereinafter referred to as the "Public Sector Organizations", so as to ensure that the appointments in such like organizations are made on merit, fairness, openness and in a transparent manner, to improve professional quality and political neutraility of such appointments;

NOW, THEREFORE, the Federal Government, in compliance of the direction of the Supreme Court of Pakistan in the said judgment, hereby constitutes a Commission to be known as the Federal Commission for Selection of Heads of Public Sector Organizations (FCHPSO), hereinafter to as the Commission.

(1) Composition of the Commission.---(1) The Commission shall comprise the following:---

(i) Federal Tax Ombudsman Chairman

(ii) Mr. Shams Kassim Lakha Member

(iii) Dr. Ijaz Nabi Member

(2) Secretary, Establishment Division and Secretary of the Ministry/ Division concerned under the Rules of Business, 1973 shall be ex-officio members of the Commission.

(3) Additional Secretary, Establishment Division, shall function as Secretary of the Commission.

(4) The Establishment Division shall be the Secretariat of the Commission, (5) The Chairman, ex-officio Members and Secretary of the Commission shall function in honorary capacity and shall not be entitled to any additional perks and privileges. Terms and conditions of appointment of non-official members would be determined separately.

(6) The decisions of the Commission shall be expressed in terms of the majority, and in case of equality of votes; the Chairman shall have a casting vote.

(7) No proceedings or act of the Commission shall be invalid merely on the ground of the existence of a vacancy, or defect, in the constitution of the Commission.

Status of the Commission.---The Commission shall be completely independent in its functioning.
Advertisement of the post.---(1) The Ministry/Division concerned shall advertise the post to be filled and the applications received shall be short listed by a national or international human resource consulting firm.

(2) The human resource consulting firm shall be the one selected by a committee headed by Secretary, Cabinet and consisting of Secretaries Establishment, Finance and Law, on merit through open advertisement.

Functions of the Commission.---The Commission shall:--

(i) implement a Code of Practice that sets out the principles and core processes for fair and transparent merit-based selections;

(ii) report publicly on an organization's compliance with the Code of Practice;

(iii) investigate complaints about unfair appointment process;

(iv) issue an annual report giving detailed information about appointments processes, complaints handled, and highlights of the main issues which have arisen during the previous year;

(v) take any other measure deemed necessary for ensuring that processes for selections that fall in its purview are conducted honestly, justly, fairly and in accordance with law;

(vi) Recommend to the concerned authority for appointment of person (s) selected by it which recommendation of the Commission shall be binding.

Code of Practice.---The following Code of Practice shall be observed by all concerned:---

PART-I

(i) The appointments shall be made in a transparent manner and shall be merit-based.

(ii) All appointments falling in the purview of the Commission shall be governed by the overriding principle of selection based on merit from amongst individuals whose abilities, experience and qualities have a proven record and best match the need of the concerned organization.

(iii) No appointment, falling in the purview of Commission, shall take place without first being recommended by the Commission.

(iv) The appointments procedures shall be subjected to the principle of proportionality, that is, what is appropriate for the nature of the post and the size and weight of its responsibilities.

(v) Those, selected must be committed to the principles and values of public service and perform their duties with highest level of integrity.

(vi) The Commission may, from time to time, conduct an inquiry into the policies and procedures followed by an appointing authority in relation to any appointment.

(vii) The appointment of the successful candidate shall be publicized.

PART-II

(viii) Holders of public office shall not place themselves under any financial or other obligation to outside individuals or organizations that might seek lo influence them in the performance of their official duties.

(ix) In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office shall make choice solely on merit.

(x) Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

(xi) Holders of public office shall be as open as possible about all the decisions and actions that they take. They shall give reasons for their decisions land restrict information only when the wider public interest clearly demands.

(xii) Holder of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protests the public interest.

(xiii) Holders of public office shall promote and support these principles by leadership and example.

6. Selection Committees.--- The Commission may constitute Selection Committees from amongst its Members. The Selection. Committees shall function in accordance with the procedure laid down by the Commission.

7. Procedures.--- The Commission may, in consultation with the Federal Government, lay down procedures for carrying out the aforesaid purposes.

8. Schedule.--- The Schedule containing names of the concerned Public Sector Organizations is added hereto. The Federal Government may amend the Schedule as and when required.

For the sake of clarity, I also feel it appropriate to reproduce (i) the Agenda Item No.4 of the Minutes of the 6th meeting of the Federal Commission for Selection of Heads of Public Sector Organizations, held on 6th February, 2014 in Establishment Division and (ii) the Summary submitted to the Prime Minister by FCHPSO for selection of MD, PTVC.

Agenda Item. No.4.-- Interviews of shortlisted candidates for the post of Managing Director, PTVC.

7. According to short listing report furnished by Messrs A.F. Ferguson and Co. five (5) candidates were shortlisted for the post of Managing Director, PTVC. However, two candidates viz; M. Arshad Khan and Mr. Qaisar Ullah Khan conveyed their regret to appear for the interview. Remaining three (3) candidates were appeared and interviewed by the Commission in the following order:---

(i). Syed Jamal Shah

(ii) Mr. Mohammad Malick

(iii) Mr. Rizwan Mumtaz Ali

8. Syed Jamal Shah was recommended as number one given his superior academic qualification and richer work experience. The Commission also gave weightage to the fact that Mr. Jamal Shah hails from Balochistan as the province is generally less represented in the higher echelons of the Federal Government. He holds Masters Degree in English from the University of Balochistan and a Diploma from the National College of Arts. Lahore, which is 4 years Bachelor Degree Program. He also has a Postgraduate Diploma from Slade School of Fine Arts, University College London, United Kingdom. Syed Jamal Shah has an outstanding career as an Artist, Producer, Director and an entrepreneur. His diverse work experience covers all aspects of the PTVC. The Commission was of the opinion that while he has an independent mind yet he was mindful of the issues that can crop-up running a State owned media house with footprints on 95% of the country. He also had clear roadmap of turning around the institution.

9. Mr. Mohammad Malick was considered as second best. He has rich work experience of journalism and knew the issues in PTVC. He has not only worked with print media but has also been associated with the electronic media since its inception in the Pakistan. His work experience while rich covered one aspect of PTVC various feets. He holds Bachelor Degree, which, makes; fourteen (14) years of education and hence less than the educational requirement laid down in the advertisement, which provides for a degree in Mass Communication, Journalism or Arts and Social Sciences/MSc Engineering/MBA/MPA or equivalent qualification from HEC recognized University in Pakistan OR abroad. A degree in Law shall be considered an additional qualification. Degrees shall be verified from HEC.

The Commission also felt that his personality while charming may not be the best fit as compared to Syed Jamal Shah while dealing with varied stake holders in this capacity. On a query by the Commission Members, Mr. Mohammad Malick confirmed that Companies owned by him/her spouse i.e. Messrs Media Magic and Pink productions do not have any outstanding liabilities form or towards PTVC. (underlining is mine)

10. Mr. Rizwan Mumtaz Ali was not recommended as he neither have the conceptual clarity nor the personality to turn around as important institution, which is being facing multifarious challenges.

Recommendations:

The Commission recommended the following candidates for appointment to the post of Managing Director, PTVC in order of merit:---

(1) Syed Jamal Shah

(2) Mr. Mohammad Malick

The Commission, however observed that recommendation in respect of Mr. Mohammad Melick as 2nd nominee for the post of Managing Director PTVC shall be subject to submission of an undertaking by him to the effect that neither his/her spouse's companies have outstanding liabilities towards PTVC nor the PTVC have any liability towards them and relaxation of the competent authority regarding his educational qualification. (Underlining is mine)

GOVERNMENT OF PAKISTAN.

CABINET SECR ETARIAT ESTABLISHMENT DIVISION

SECRETARIAT OF FEDERAL COMMISSION FOR

SELECTION OF HEADS OF PUBLIC SECTOR ORGANIZATIONS

SUMMARY FOR THE PRIME MINISTER

Subject:--APPOINTMENT TO THE POST OF MANAGING DIRECTOR, PAKISTAN TELEVISION CORPORATION LIMITED.

Pursuant to Supreme Court of Pakistan's order dated 12th June, 2013 in Constitution Petition No.30 of 2013 titled Khawaja Muhammad Asif v. Federation of Pakistan, Federal Commission for Selection of Heads of Public Sector Organizations (FCHPSO) was constituted vide Establishment Division's notification No.6/4/1996-R.3 dated 22nd July, 2013 (Annex-A).
The post of Managing Director, Pakistan Television (PTVC) was advertised by the Ministry of Information, Broadcasting and National Heritage in the print media on 16th October, 2013 (Annex-B). Applications received in response to the aforesaid advertisement were forwarded to Messrs A.F. Ferguson & Co, (HR Consultants) Karachi for short listing of the candidates. According to short listing report furnished by the HR Consultants, five (5) candidates were shortlisted for the post of Managing Director, PTVC. Short listing report furnished by the HR Consultant is placed at Annex-C.
PTVC, being Public Sector Company registered under the Companies Ordinance, 1984, was taken out of the purview of the Commission; but on request of the Ministry of Information, Broadcasting and National Heritage, purview of the Commission to the extent of selection process of the post of Managing Director, PTVC was restored with the approval of the Prime Minister as conveyed vide Prime Minister Office's U.O. No.319/SPM/2014 dated 3rd February, 2014 (Annex-D).
6th meeting of the FCHPSO was held on 6th February, 2014 at 1100 hours in the Establishment Division to hold interviews of the shortlisted candidates against the post of Managing Director, PTVC. Copy of the minutes of the aforesaid meeting is at (Annex-E).
FCHPSO, inter alia, recommended the following candidates for appointment to the post of Managing Director, PTVC in order of merit:---

(1) Syed Jamal Shah

(2) Mr. Mohammad Malick

The Commission, however, noted that in case Mr. Mohammad Malick is selected as Managing Director, PTVC then he should give an undertaking that his/her spouse's companies have no outstanding liabilities towards PTVC. It is further noted that Ministry of Information Broadcasting and National Heritage have confirmed that while Media Magic (a company owned by Mr. Malick) has no liability towards PTVC; however, Pink Productions (owned by spouse of Mr. Malick) has a liability of Rs.4.824 million towards PTVC (Annex-F). Moreover, relaxation of academic qualification would be required in respect of Mr.Mohammad Malick who only has a bachelor's degree in Arts (B.A.) and does not meet the advertised criteria (Annex-G) for selection as Managing Director, PTVC which provides for a degree in Mass Communication, Journalism or Arts and Social Sciences/M.Sc Engineering/MBA/MPA or equivalent qualification form HEC recognized University in Pakistan OR abroad. A degree in Law shall be considered an additional qualification.
Subsequent to 6th meeting of the FCHPSO held on 6th February, 2014, intelligence Bureau was requested for background check/necessary clearance in respect of Messrs Syed Jamal Shah and Mohammad Malick. In response, Intelligence Bureau vide their Memo No.ECR.170/5-SVA-Vol.(1598)7473-/S-II dated 17th February, 2014 (Annex-H) have observed that none of the aforesaid persons seem suitable for the important assignment of Managing Director, PTVC.
Orders of the Prime Minister are solicited to recommendations of the FCHPSO mentioned at paras 5 and 6 above keeping in view the input given by the Intelligence Bureau as at para-7 above.

Encl. As above (Abdul Rauf Chaudhary)

Federal Tax Ombudsman/

Chairman, FCHPSO

Prime Minister's Office (Mr. Javaid Aslam, Secretary to Prime Minister), Islamabad.

Establishment Division's U.O. No.F.1-23/2014-Com-I

dated 19th February, 2014:

PRELIMINARY OBJECTIONS:

Before proceeding to a discussion on the merits of this case, would first like to address the Preliminary Objections raised by the learned counsel for the respondents. The first objection was with regard to the maintainability of the Writ Petition on the ground that an alternate efficacious remedy was available to the petitioner in the shape of filing of a complaint before the FCHPSO under Article 4(iii) of the Notification dated 22nd July, 2013. Under the said provision, the FCHPSO has been empowered to investigated complaints about unfair appointment process. The learned counsel for the petitioner, in his rebuttal, stated that such remedy was neither efficacious, nor adequate, since the process of selection adopted by FCHPSO was itself under challenge in this writ petition and that FCHPSO could not fairly and impartially investigate its own appointment process. I am inclined to agree with the learned counsel for the petitioner in that judicial review car" be exercised if the alternate remedy is not adequate or efficacious. Furthermore, the alternate remedy available must be capable of achieving the same purpose as is sought to be achieved through constitutional petition. I am fortified in my view by the case-law reported as 2012 SCMR 455 and PLD 2012 Sindh 425. Hence, the alternate remedy available to the petitioner could not be termed as efficacious or adequate and, therefore, did not debar him from filing the instant Writ Petition, which is in the nature of public interest litigation (Quo Warranto). Moreover, in my estimation remedy under the provision referred above s not available to any aggrieved person, when very appointment is made on the recommendation of FCHPSO itself.

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The second preliminary objection was with regard to the conduct of the petitioner. It was contended that the petitioner was stopped from questioning the validity of the qualification process conducted by Messrs A.F. Ferguson, in which he had himself participated. This submission on the part of the learned counsel for the respondents is misconceived since the contents of the writ petition clearly show that it is in the nature of a Quo Warranto petition and the petitioner has neither prayed for his appointment as MD, PTVC, in place of the respondent No.3, nor otherwise sought any relief for his own personal benefit. The fact that he may have participated in the pre-qualification process is immaterial in the instant case, as he is to be regarded as a mere `whistle-blower' or an 'informer' laying information before this Court that the respondent No.3 was illegally appointed as MD, PTVC and the purpose of this Writ Petition was, therefore, to inquire under what authority the respondent No.3 was holding the post of MD, PTVC and whether the entire process of his appointment was carried out within the parameters and criterion laid down by the Hon'ble Supreme Court in the Khawaja Asifs case (2013 SCMR 1205).
The third preliminary objection raised by the learned counsel for the respondents was that the petitioner has approached this Court with unclean hands and mala fide intentions, hence, is not entitled to discretionary relief. In support of this contention, reliance was placed inter alia on the case reported as PLD 2013 SC 413 (Dr. Muhammad Tahirul Qadri v. Federation of Pakistan). The question of whether any mala fides exist can only be judged on the basis of the facts of each case. In the present case, nothing has been placed on record which would indicate any mala fides on the part of the petitioner, or which would suggest that the petitioner is seeking to exploit the process of this Court purely for personal gain. I have; therefore, found no lawful basis for this objection. The petitioner was appointed as acting MD, PTVC, vide judgment dated 12-4-2013 passed in W.P. 2503 of 2009, on the basis that he was the senior-most working director of PTVC. This fact was confirmed and brought to the knowledge of this Court through an independent inquiry conducted by the M/o Information, Broadcasting and National Heritage (comprising of three members, namely, Mr. Raja Muhammad Farooq, Director General, Cyber Wing, M/o I&B, Mr. Asad Ullah Khan, Director Administration, PTVC and Qazi Muhammad Farooq, Section Officer (General), M/o I&B), pursuant to this Court's order dated 6th June 2013 passed in Cri.Org 264-W of 2013. The said inquiry committee concluded in its Report that Engr. Qazi Mustafa Kamal (Petitioner) was the senior-most regular director of PTVC. Therefore, the contention of the respondents that he was not the senior most working director of PTVC and had, allegedly, intentionally concealed this fact from this Court in W.P. 2503 of 2009, is incorrect. It has been held by the Hon'ble Supreme Court in a recent case reported as 2013 SCMR 1159 that the contents of a petition under Article 184(3) will override concerns arising on account of the conduct or antecedents of a petitioner. The relevant portion of the said judgment is reproduced herein below:---

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"16. That the petitioner has been an employee of the respondent is not sufficient to establish his males fides, as we clarified in Muhammad Yasin's case supra. In fact, it is only understandable that if employees and other insiders, who naturally have the most understanding of the functioning of concerned institutions, are the ones who most frequently bring the issues of public importance arising in those institutions to the notice of the constitutional Courts. Furthermore, in Muhammad Yasin's case supra, while relying on Maulvi lqbal Haider v. CDA (PLD 2006 SC 394), we clarified that "the contents of a petition under Article 184(3) ibid will override concerns arising on account of the conduct or antecedents of a petitioner."

Similarly, in another case reported as PLD 2012 SC 132, the Hon'ble Supreme Court held as follows:---

24. Before concluding our discussion on the issue of maintainability of this petition we need to address the respondent's submission that the petition has been filed mala fide. We have found no lawful basis for this submission. Simply because the petitioner may have been a contender for the office of Chairman, OGRA, does not per se translate into mala fides. The petitioner can genuinely consider himself to be a suitable candidate for the position while simultaneously holding the view that the respondent does not meet the eligibility criteria set out in section 3(4) of the Ordinance. Furthermore, we have already held in the case titled Moulvi Iqbal Haider v. Capital Development Authority and others (2006 SC 394 at 413) that the contents of a petition under Article 184(3) ibid will override concerns arising on account of the conduct or antecedents of a petitioner. This approach is reflective of the sagacity of wise men such as Maulana Jalaluddin Rumi who have emphasized the importance of the message rather than the messenger."

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As may be observed from the above-referred judgments, in writ petitions in the nature of Quo Warranto, the message is more important than the messenger and the contents of such petitions generally override the conduct or antecedents of the petitioner. Furthermore, the allegation that the petitioner filed the instant writ petition as an afterthought and a counterblast to blackmail the respondent No.3 and to stop him from taking action against the petitioner for his acts of corruption committed during his tenure as acting MD, PTVC, also seems fanciful and, incorrect. I have observed from the record that the complaints filed against the petitioner before NAB are dated 2nd and 6th June, 2014, whereas the instant writ petition was filed on 6th May, 2014. Clearly, the petitioner approached this Court much before the complaints were lodged against him in NAB. Hence, it is incorrect to suggest that this writ petition was an afterthought or a counterblast by the petitioner to any actions taken by the respondent No.3 against him.

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Lastly, I now turn to the final preliminary objection raised by the learned counsel for the respondents i.e. whether the writ petition, filed after ten (10) weeks of the appointment of the respondent No.3, suffers from laches? It is a well recognized principle of law that laches does not apply to writs of quo warranto, as the cause of action is a recurring one, so long as the public office is being held by the person in question. The unlawful holding of a public office is a continuing wrong, which may be called into question by anyone, at any time. I am fortified in my view by case-law reported as 2010 PLC (C.S.) 731, PLD 2010 Lahore 625 and 2002 PLC (C.S.) 274. Even otherwise, filing of the instant writ petition ten (10) weeks after the notification of appointment of respondent No.3 as MD, PTVC, is not a delay and can be regarded as having been filed within a reasonable time. Reasonable time has been interpreted as 120 days in the case reported as 2013 YLR 2132, and as 90 days in the case reported as 2012 CLC 1729.

ON MERITS:

The brief facts of this case are discerned from the different documents placed on record, including, in particular, the First and Second Advertisements (along with Corrigendum), the report of Messrs A.F. Ferguson, the Minutes of the 6th Meeting of the FCHPSO, the summary for the Prime Minister prepared and submitted by FCHPSO, the approval of the Prime Minister and the subsequent notification of appointment of the respondent No.3 as MD, PTVC. The learned D.A.-G. and/or the learned counsel for the respondents have not disputed any of these documents.

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It is well settled law that the entire process of recruitment leading to appointment to a "public office" can be subject to judicial review under Article 199(1)(b)(ii) of the Constitution. The process has to pass the test of law, which includes the settled principles of due process, openness, fairness, participation and transparency. Appointment to a "public office" is a public trust reposed by the people of Pakistan in the competent authority. It is a key institutional decision and marks the future progress, growth and development of the public institution, which is to be manned by the prospective incumbent to the said public office. This trusteeship in the hands of the competent authority cannot be discharged in a fanciful, erratic, partial and preferential manner. The recruitment process must be above board and devoid of even the slightest smear of nepotism. The Court is under an obligation to judicially review the integrity of the entire selection process to a public office.

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In the instant case, the process of appointment of MD, PTVC, was initiated through the First Advertisement dated 30th April, 2013, followed by the Second Advertisement dated 9th October, 2013 and, finally, the Corrigendum to the Second Advertisement dated 16th October, 2013. The said advertisements and corrigendum clearly show that the various criteria for eligibility for the post of MD, PTVC, were changed twice, without any plausible rationale or justification. As held by this Court in the case reported as 2013 PLC (C.S.) 1147, "the office of MD, PTVC is a very important, sensitive and strategic post, as organizational behavior of this state owned corporation has a strong impact on the society and culture of the country." As a matter of practice, heads of large public sector organizations, by virtue of the importance of their position as heads of such organizations, are required to have at least a Master's degree, if not a PHD or MBA. In the instant case, the educational requirement for MD, PTVC, was lowered, without any apparent reason, from that of a Masters degree to a Bachelors degree, which is all the more surprising considering the fact that a Group-5 category employee of PTVC (Grade 15 or 16) is required to have a Masters degree as a bare minimum. Is it conceivable that the MD of such an organization would be less qualified than a Grade 15/16 officer? Furthermore, the revised terms of the advertisement show that the educational qualification of B.A. in Arts and Social Sciences was added vide the Corrigendum, whereas the requirement of providing "written evidence" of 15 years work experience was changed to "established track record" of 15 years work experience. These changes, by themselves, appear inconspicuous, but become relevant when read in conjunction with the Report dated 31st January, 2014 submitted by Messrs A.F. Ferguson in which the respondent No.3 has, admittedly, been shown to have only a B.A. in Arts and was not able to provide experience letters (i.e. written evidence of work experience) from some of his past employers.

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29. It, therefore, appears that the Second Advertisement, read with the Corrigendum, were manipulated and maneuvered to enable the respondent No.3 to apply for the said post of MD, PTVC. This fact has also been confirmed by the FCHPSO in its 6th meeting held on 6th February, 2014, wherein it was stated that the respondent No.3 held only fourteen (14) years of education, which was less than the educational requirement laid down in the advertisement and their recommendation for appointment of the respondent No.3 as MD, PTVC, would be subject to relaxation of the competent authority regarding his educational qualification. This fact was also communicated to the Prime Minister in the Summary prepared by the FCHPSO wherein it was stated as under:---

Moreover, relaxation of academic qualification would be required in respect of Mr. Muhammad Malick, who only has a bachelors degree in Arts (B.A.) and does not meet the advertised criteria (Annex-G) for selection as Managing Director, PTVC, which provides for a degree in Mass Communication, Journalism or Arts and Social Sciences/MSc Engineering/MBA/MPA or equivalent qualification from HEC recognized University in Pakistan OR abroad

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It is, therefore, amply clear that the respondent No.3 did not meet the requisite educational qualification/criteria advertised for this position and the said criteria was designed and engineered to accommodate him in particular.

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31. It was also urged by the learned counsel for the petitioner that the respondent No.3 was a long-standing defaulter of PTVC and cleared his liabilities only when he was appointed as MD, PTVC. A perusal of the record reveals that the clearance certificate issued by PTVC to one, of the companies owned by the respondent No.3 (Messrs Pink Productions), being managed by his wife, Aneela Malick, was issued on 5th March 2014, whereby a sum of Rs.7.236 million was stated to have been received by PTVC from Messrs Pink Productions. It may be noted that the respondent No.3 was, in fact, appointed as MD, PTVC, on 27th February, 2014 i.e. prior to the issuance of the aforesaid Clearance Certificate. In other words, at the time of his appointment, an established liability of payable amount of PTVC existed against him. It is also important to note that the respondent No.3 had earlier, at the time of his interview by FCHPSO, stated before the Commission that the companies owned by him/his spouse did not have any outstanding liabilities from or towards PTVC. The pertinent portion of the minutes of meeting of the 6th meeting of FCHPSO dated 6th February, 2014 are reproduced herein below:---

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"9. .. On a query by the Commission Members, Mr. Mohammad Malick confirmed that the Companies owned by him/her spouse i.e. Messrs Media Magic and Pink Productions do not have any outstanding liabilities from or towards PTVC..." (emphasis provided)

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32. This statement of the respondent No.3 before the Commission visibly belies the record, since (a) the letter dated 27th February, 2014 from Messrs Pink Productions and Marketing to the Assistant Director-TV, M/o Information, Broadcasting and National Heritage; and (b) the Clearance Certificate dated 5th March, 2014 issued by Director Finance, PTVC, clearly go to show that the respondent No.3 was a defaulter of PTVC at the time of interview by FCHPSO and the dues were, subsequently, cleared by him on 27th February and 5th March, 2014. Therefore, it is amply clear that the respondent No.3 intentionally made a false statement before the Commission, in an apparent attempt to persuade the members to recommend him for appointment to the post of MD PTVC. It is crystal clear that respondent No.3 mislead the Commission in order to enter PTVC as its head. Another important fact to be taken note of is that, even negotiations to settle the outstanding issue of liabilities against respondent No.3 started when process of recruitment had already commenced and respondent No.3 did not pay the amount to clear outstanding liability till notification of his appointment dated 27-2-2014 is issued. Mr. Muhammad Akram Sheikh, learned counsel for respondent No.3 very ably tried to defend respondent No.3 regarding outstanding liability by placing reliance on the concept of "Shedding away" the disqualification at the time of issuance of Writ. This argument of the learned counsel would have worth consideration, had there been question of outstanding amount only, but most painful and alarming aspect is that respondent No.3 tried to "CHEAT" the Commission by making denial that any outstanding liability existed against him or his spouse. To my mind this is a criminal act by which respondent No.3 did not shed away his disqualification rather his credibility as an "intellectual". No compromise can be made on this aspect but unfortunately authority concerned ignored this aspect that respondent No.3 in order to land in PTVC as MD committed a criminal act of making false statement, misrepresentation and cheating. Moreover, there is no claim that respondent No.3 has become postgraduate at the time of hearing instant petition, therefore, shield of "shedding away" disqualification is not available to respondent No.3.

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33. Pursuant to the aforesaid meeting, the FCHPSO recommended two names to the Prime Minister for appointment to the post of MD, PTVC, who, in order of merit, were as under:--

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Syed Jamal Shah
Mr. Mohammad Malick

34 Astonishingly, the Hon'ble Prime Minister exercised his discretionary power by disregarding Syed Jamal Shah, who was placed at number 1 on the order of merit, without reasons, and, instead, recommended .the appointment of the person placed at number 2 on the order of merit i.e. Mr. Mohammad Malick (respondent No.3), to the post of MD, PTVC. The learned counsel for the respondent No.3, Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court vehemently argued that, under the Rules of Business, the Prime Minister has absolute discretion in the matter of appointment of heads of public sector organizations and may select any person from the list of recommendations forwarded to him by the FCHPSO. To examine this point, I would like to refer to the functions of the FCHPSO, as given in the Notification dated 22nd July, 2013. The relevant portion is reproduced hereinbelow:---

"4. Functions of the Commission.--- The Commission shall:---

(vi) Recommend to the concerned authority for appointment of person(s) selected by it which recommendation of the Commission shall be binding. "

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The question of whether or not the Prime Minister, has a discretion in selection/appointment of heads of public sector organizations is addressed in para 4(vi) of the Notification dated 22nd July, 2014, reproduced hereinabove, which clearly states, that "the recommendation of the Commission shall be binding". Furthermore, it is also stated therein that the FCHPSO shall "recommend to the concerned authority for appointment of "person(s)" selected by it". The word "person(s)", as used therein, is to be distinguished from the word "persons", as both have different connotations. "Person(s)" usually denotes the singular, as well as the plural forms, whereas "Persons" would denote only the plural. It could, therefore, be argued that the word "person(s)", as used in the above-referred Notification, implies that the FCHPSO can recommend either one person for one particular post or more than one person, to the concerned authority for the posts of two or more Organizations. However, when read with the latter part of this para i.e. "the recommendation of the Commission shall be binding", it becomes amply clear that the intention was to recommend the name of only one person to the concerned authority, which recommendation would then become binding. Had it been the case that two, three or four names were to be recommended by the Commission, then it would make the latter part of this para redundant i.e. would all such recommendations be considered binding? It would be ludicrous to imply that all the names recommended to the concerned authority for a single post would be binding!

36. Hence, in my view, the word "person(s)" used in this context may be explained as meaning that:---

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(a) The FCHPSO can recommend various persons for the positions of heads of various public sector organizations; and

(b) For each such position, FCHPSO can recommend only one person, which recommendation would then be binding.

| | | | --- | --- | | | | | --- | | P | |

37. It may be added that, in the context of selection through open advertisement, merit and a painstaking interview/short listing process, it is all the more important that the person selected by the FCHPSO as being the most suitable candidate for the job in question, is appointed to such post, rather than giving the concerned authority the option or discretion of hand picking and choosing any person out of the list provided. This would tantamount to making the entire selection process meaningless and thwart the principle of recruitment on merit. As per the Hon'ble Supreme Court of Pakistan in the Khawaja Asifs case (2013 SCMR 1205), the FCHPSO was to be mandated to ensure that all public appointments are made solely on merits. It was also held that the FCHPSO should comprise of independent and competent members and, as a part of their functions, they should (a) chair the selection panels for appointing heads of public/statutory bodies; and/or (b) appoint Public Appointments Assessors to chair the selection panels for appointing heads of public/statutory bodies, where appropriate. Hence, the matter of selection of the heads of public/statutory bodies has been fully entrusted to the FCHPSO, who may even avail the services of a Public Appointment Assessor to assist the FCHPSO in carrying out the shortlisting of candidates on merit. In the instant case, this process was initially carried out by Messrs A.F. Ferguson & Co, an HR resource consulting firm, .and, subsequently, further short-listing was done by the Commission itself out of the five (5) names sent by Messrs A.F. Ferguson & Co.

| | | | --- | --- | | | | | --- | | Q | |

38. Once it was concluded that Syed Jamal Shah topped the order of merit and was considered the most suitable candidate for the post of MD, PTVC by both Messrs A.F. Ferguson and the FCHPSO, the FCHPSO should have only sent his name to the Prime Minister for appointment, which recommendation would then have been binding. Unfortunately, it appears now that the entire process of multiple advertisements, short-listing, selection and final appointment was maneuvered, manipulated, tailored and pre-engineered to secure the appointment of Mr. Muhammad Malick as MD, PTVC. There can be no other explanation for his appointment as such. There is no reasoning or plausible explanation of discarding recommendation of person, on top of the merit list, which itself is sufficient to show arbitrary and colourable exercise of authority. The Rules of Business have to be read in the light of Khawaja Asif's case and mandate of FCHPSO. The recommendations of FCHPSO are binding unlike panel of nominees submitted by Establishment Division from which Prime Minister may exercise his discretion to pick any of the nominees. The Executive Authority must realize that appointments made like in the instant matter bring bad name to it and stigmise the credibility of persons on the helm of affairs. From the peculiar circumstances and the mannerism in which respondent No.3 has been appointed, lead to the conclusion that, as if respondent No.3 appointment as MD PTVC was COMPULSION for the authority.

| | | | --- | --- | | | | | --- | | R | |

39. Finally, I tend to agree with the learned counsel for the petitioner, that, even if it is presumed that the Prime Minister had the discretion to pick and choose any name from out of the two proposed names for the post of MD, PTVC (which is denied), such discretion was not employed in a structured, transparent and reasonable manner and in the public interest. Appointing authorities cannot 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.

| | | | --- | --- | | | | | --- | | S | |

Constitutional and jurisprudential importance of structured discretion was that it nursed the requirements of due process, transparency, fairness and safeguarded discretion against the vice of discrimination and arbitrariness. It has been held in the case reported as 2010 SCMR 1301 that even the Chief Executive of the country is bound to act in accordance with law and decide issues after application of mind, with reasons. The relevant portion of the said judgment is reproduced herein below:---

"Object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind---Such objective can be achieved by following rules of justness, fairness and openness in consonance with command of Constitution enshrined in different articles including Arts. 4 and 25 of the Constitution---Once it is accepted that the Constitution is supreme law of country, no room is left to allow any authority to make departure from any of the provisions of law and rules made thereunder---By virtue of Arts.4 and 5(2) of the Constitution, even Chief Executive of the country is bound to obey command of the Constitution and to act in accordance with law and decide issues after application of mind with reasons.

| | | | --- | --- | | | | | --- | | T | |

40. It is also astonishing to note that the respondent No.3 was appointed as MD, PTVC vide Notification dated 27th February, 2014, with immediate effect, whereas the same notification states that "the terms and conditions of his appointment will be settled separately", In other words, he was appointed as MD, PTVC, prior to settlement of the terms and conditions of his service, including salary, perks and other privileges. This speaks volumes of the pre-conceived intention of the respondents in constructing the appointment of Mr. Muhammad Malick as MD, PTVC.

From the above discussion, it may be concluded that the process of appointment of the respondent No.3 as MD, PTVC, failed to pass the test of law, including the settled principles of openness, fairness, merit and transparency. Furthermore, it violated the principles and guidelines laid down by the Honble Supreme Court of Pakistan in the Khawaja Asif case reported as 2013 SCMR 1205. I may also add that, it is indeed unfortunate that judicial attempts to eliminate the pernicious culture of arbitrariness, favouritism and nepotism by inter alia providing for the establishment of the FCHPSO and laying down various guidelines and principles, are being circumvented by the Executive in one way or another. Instead of appreciating and acknowledging the fact that appointment to a public office is a sacred public trust reposed by the people of Pakistan in the competent authority, it is bent upon discharging such trusteeship in a whimsical, temperamental, partial and preferential manner. Another important fact which surfaced during the course of arguments of learned counsel for the parties was that Intelligence Bureaus (IB) through it's confidential report gave negative remarks about both the individuals, but with the indulgence of executive authorities another report favouring to the concerned was obtained, which by itself shows that authority was bent upon to appoint, respondent No.3, despite the fact that nothing leaning in his favour was available on the simple criteria.

| | | | --- | --- | | | | | --- | | U | |

42. Since, the entire process carried out by the respondents is not only dubious but besides the norms of transparency, credence, fair play and integrity, therefore, this Court would refrain from issuing direction to appoint Syed Jamal Shah as M.D. It is an admitted fact that both the candidates shortlisted for appointment have their own set up for "private production" and they had been selling the product of their companies to PTVC. In such circumstances both the candidates were disqualified even to be considered, what to talk of appointment as their personal interest clash with the interests of PTVC.

In the attending, circumstances, interest of State owned Organization can only be safeguarded if its head is appointed through transparent mode, credible procedure, real competitive process, settled norms and as per spirit of the dictum laid down by the apex Court in Khawaja Asifs case.

Before parting with this judgment, I would like to borrow and reproduce an excerpt of the Hon'ble Supreme Court from the case reported as PLD 2012 SC 132, which beautifully encapsulates the importance of public offices and is most relevant to the instant matter:--

31. Much before these declarations by legislatures and courts, we find exhortations to this effect in the common sense insights to be found in diverse systems and eras in history. We thus have in the classical texts of the Greek ancients, and the writings of those such as Sheikh Saadi, wherein the deleterious consequences of nepotism and cronyism in administrative appointments have been highlighted. Amongst other sources, one finds reference to this in the "Qaboos Namah", a book that Ameer Unsur Malki Kaikaus wrote in the 11th century A.D. for the instruction of princes, including his son Gilan Shah, in the art of good governance. The Ameer cautioned that when "appointing officers to responsible positions, act carefully and grant positions only to those who are qualified for the duties entailed in that job; and also, beware that when an ignoramus who is not up to the assigned task 'gets appointed, he will never frankly concede his lack of ability to you; instead, to hide his lack of worth he will boldly embark upon task after task, and make a mess of it all". [Kaikaus, The Book of Qaboos, page 206-7; Tehran (1963)]. And in a similar vein, warning against the hazards of turning public offices into sinecures, he advises that "if at all you wish to bestow favours upon someone, give him valuable gift; do not, however, confer on him a high office for which he does not possess the requisite competence". [Kaikaus, The Book of Qaboos, page 207; Tehran (1963)]. We also find mention of some very pertinent principles in this regard in Nizamul Mulk Toosis "Siyasat Namah, also written in the 11th century, which displays an uncanny cognizance of the evils of nepotism, which seem eternally to haunt the corridors of high power even in this day and age. He emphasizes that "the ruler should make sure that he does not award public office to his cronies (merely on the basis of their friendship with him) ... for such arrangements can give rise to many an evil". (Toosi, The Book of Government, p.120; Tehran (1994)] The modern day discourse on good governance, whether in the law or in Courts, is only an expression of these universal principles."

| | | | --- | --- | | | | | --- | | V | |

44. For the above reasons, this Writ Petition is allowed and the process of appointment of the respondent No.3 (Mr. Muhammad Malick) as MD, PTVC, is declared to be non-transparent, non-competitive, result of questionable procedure, polluted process, un-precedented and illegal. Accordingly, the Notification No.1/42/2004-E-6 dated 27th February, 2014, along with Office Order No.HP/130/2085 dated 28th February, 2014, are hereby set aside and Mr. Muhammad Malick shall forth with cease to be MD, PTVC.

The Respondent No.5, Chairman, FCHPSO, is directed to re-initiate the competitive process of appointment of MD, PTVC, afresh, strictly in line with the guidelines laid down by the Supreme Court of Pakistan in the Khawaja Asifs case (2013 SCMR 1205) and the observations recorded herein.

The writ petition is allowed in above terms.

MWA/40/Isl. Petition allowed.

Karachi High Court Sindh

PLD 2014 KARACHI HIGH COURT SINDH 1 #

P L D 2014 Sindh 1

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

RISHAD CHOUDRI and another---Petitioners

Versus

CANTONMENT BOARD, KARACHI through Chief Executive and another---Respondents

Constitutional Petition No.D-2083 of 2006, decided on 9th September, 2013.

(a) Cantonments Act (II of 1924)---

----S. 99(2)(b)---Property tax in case of building--Exemption---Scope.

According to section 99 of the Cantonments Act, 1924, no building other than that used for educational purpose or the public libraries which are open to public, and no income is derived there from or hospitals and dispensaries maintained wholly by charitable contributions shall be exempted from payment of property tax.

(b) Cantonments Act (II of 1924)---

----Ss. 77, 99(2)(b) & 259---Constitution of Pakistan, Art.199---Constitution petition---Trust property being used for charitable activities---Remission of property tax and conservancy tax on such property granted by Cantonment Board front 1-7-1987 to 30-6-2004---Withdrawal of such remission on 23-11-2003 by Cantonment Board and demand of such remitted tax from petitioner-trust on basis of audit objection raised by Departmental Accounts Committee---Validity---Trust property was being used for sponsoring FDMR and other charitable activities, whereas rent of its Hall was charged from parties for arranging program therein---Nothing on record was available to show that petitioner-trust was deriving reasonable income from its property, thus, was not entitled for exemption under S.99(2)(b) of Cantonments Act, 1924---Exemption once granted would be given a wider and liberal construction---Impugned refusal of exempted tax had been raised after 14 years finding the petitioner to be a charitable trust and exempt from levy of tax-Exemption granted for years could be regarded as a right---Petitioner-trust had acquired vested right in such exemption and they remained entitled even if same was withdrawn---Tax exempted earlier by Cantonment Board could not be claimed retrospectively, otherwise same would amount to re-opening of past, closed and completed transactions affecting vested right---Legislature had not given retrospective effect to Cantonments Act, 1924---High Court declared impugned demand as illegal and of no legal effect in circumstances.

Shah Nawaz v. Government of Pakistan 2011 PTD 1558; State Bank of Pakistan v. The Director, Military Lands and Cantonments. Rawalpindi and others PLD 1990 SC 827; Chief Administrator of Auqaf, Government of Punjab, Auqaf Department and another v. Cantonment Board, Bahawalpur through Officer Commanding and 2 others 2001 MLD 1660 and Shagufta Begum v. The Income Tax Officer, Circle-XI, Zone-B, Lahore PLD 1989 SC 360 ref.

Black's Law Dictionary 6th Edn; Corpus Juris Secundum 1954 Edn. Vol. 84, Para 215, p.411; Al-Samrez Enterprize v. Federation of Pakistan 1986 SCMR 1917; Collector of Central Excise and Land Customs and others v. Azizuddin Industries Chittagong PLD 1970 SC 439 and Molasses Trading and Export v. Federation of Pakistan 1993 SCMR 1905 rel.

----Exemption---Retrospective demand of such exempted tax---Scope.

Once exception or exemption becomes applicable, no rule or principle requires it to be construed strictly and against the subject and once exemption is granted, then it should be given a wider and liberal construction.

Retrospective demand of exempted tax amounts to reopening of past, closed and completed transactions, effecting accrued vested rights and remedies, unless there is something specifically provided in the enactment. Annulment of exemption certainly shall affect existing rights and liabilities or vested rights, or obligations already acquired under the provisions of law, it does affect the existing right as well. If an enactment expressly provides that it should be deemed to have come into effect on a past date, it is retrospective in nature, it then operates to effect existing rights and obligations, and is construed to take away a vested right which had been acquired under some existing law.

(d) Constitution of Pakistan-

----Art. 199---Constitutional petition based on important question of law of public importance---Maintainability---Such question could be raised directly before High Court and constitutional petition was maintainable in circumstances.

Abdul Rehman for Petitioners.

Sohail H.K. Rana for Respondents.

Date of hearing: 16th August, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 10 #

P L D 2014 Sindh 10

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

Syed MOHSIN ALI---Petitioner

Versus

Mst. HAJRA and others---Respondents

S.M.A. No.160 of 2002 and C.M.A. No.14 of 2013, decided on 6th August, 2013.

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

----Ss. 263 & 278---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.16(A)---Petition for grant of letters of Administration in respect of four plots left by deceased---Grant of such Letters by Court directing its Nazir to approach the Board of Revenue and effect mutation in name of persons specified therein---Application for revocation of such Letters filed by Evacuee Trust Property Board on ground that suit plots were leased out to deceased for 99 years under Scheme prepared under S.16(A) of Displaced Persons (Compensation and Rehabilitation) Act, 1958, but Supreme Court through its judgment reported as 1978 SCMR 315 had declared that Evacuee Trust Property Board was not competent to lease out properties for 99 years under such Scheme, resultantly all leases for 99 years including leases of suit plots were cancelled---Validity---Neither deceased nor petitioners had paid lease money of suit plots nor they came into possession thereof nor challenged order of Evacuee Trust Property Board cancelling leases of suit plots---Such order of Evacuee Trust Property Board had not only attained finality 28 years before filing of such petition, but would be deemed to have been accepted by deceased---Supreme Court had declared suit plots as Evacuee Trust Properties, thus, deceased ceased to have any right, title or interest therein long ago---Suit plots were not available as estate of deceased for distribution amongst his legal heirs, thus, petitioners had no locus standi to seek such Letters in respect thereof---Petitioners' claim was based on misrepresentation of facts and they deliberately committed fraud upon court by pleading such facts which were not correct even to their own knowledge and also by concealing facts which were true, but were not disclosed by them before court---Court in such a case could suo motu initiate proceedings for revocation of such Letters, which could not be allowed to remain in field in view of such declaration of Supreme Court---High Court revoked such Letters and directed petitioners to surrender to Nazir within specified time original' and certified copies of revoked Letters of Administration and all original and true copies of title documents of suit plots.

Shri Tikamdas Hiranand and 3 others v. Divisional Evacuee Trust Committee, Karachi Zone, Karachi and 4 others 1973 SCMR 315 and The Evacuee Trust Property Board and others v. Haji Ghulam Rasool Khokhar and others 1990 SCMR 725 rel.

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

----Ss. 263 & 278---Letters of Administration---Application for revocation of---Limitation---Mere delay in making such application would not be bar to revocation in absence of any finding of acquiescence or waiver.

Mt. Sheopati Kuer v Ramakant Dikshit and others AIR (34) 1947 Patna 434 rel.

Ms. Khadija Kulsoom and Arif Khan for Petitioner.

Ashiq Ali Anwar Rana for Applicant.

Pervez Khan Tanoli for Applicant.

Kashif Paracha for Applicants.

Raja Aftab Ahmed Khan for Objectors.

Date of hearing: 23rd April, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 20 #

P L D 2014 Sindh 20

Before Nadeem Akhtar and Aftab Ahmed Gorar, JJ

HABIB METROPOLITAN BANK LTD.---Petitioner

Versus

ADMINISTRATOR, KARACHI MUNICIPAL CORPORATION, KARACHI and 3 others---Respondents

Constitutional Petition No. D-3596 of 2012, decided on 2nd October, 2013.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Alternate remedy---Scope---Such remedy must not be less convenient, beneficial and effective than the one sought to be enforced under Art.199 of the Constitution---Alternate remedy, at the same time, should be efficacious and speedy---In appropriate/exceptional cases despite availability of alternate remedy, High Court can exercise its extraordinary constitutional jurisdiction conferred upon it under Art.199 of the Constitution.

(b) Constitution of Pakistan--

----Art.199---Constitutional petition---Private right---Scope---Sign boards and bill-boards, affixing of---Petitioner bank was aggrieved of fixing of sign boards in front of its building as the same were illegal and infringing upon its rights---Validity---Municipal authorities failed to place any material on record to show that any objections were invited from general public through newspapers or for that matter at least from persons residing and/or commercial establishments carrying on business in close vicinity---Petitioner bank had been functioning for the last over 20 years at that place and in case of conflict between the two private rights, the right which had emerged and existed first was to be respected and preferred---Right of petitioner would prevail over the right, if any, of the respondents---High Court directed the authorities to remove all disputed signboards and bill-boards installed in front of main entrance, blocking front view of petitioner's Head office/principal branch---Petition was allowed accordingly.

Clifton Centre Association v. City District Government and 3 others PLD 2003 Kar. 477 and Clifton and Defence Traders Welfare Association v. President, Clifton Cantonment Board Karachi and 4 others. PLD 2003 Kar. 495 ref.

Khalid Mahmood Siddiqui for Petitioner.

Khursheed Javed for Respondent No.1/KMC.

Nemo for Respondents Nos. 2 to 4.

Miran Muhammad Shah, A.A.G. Sindh for the State (On court notice).

Date of hearing: 11th September, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 28 #

P L D 2014 Sindh 28

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

WASATULLAH JAFFERY---Petitioner

Versus

MINISTRY OF INTERIOR through Secretary, Federal Government of Pakistan

and 4 others---Respondents

Constitutional Petition No. D-3608 of 2011, decided on 7th May, 2013.

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

----S. 2---Constitution of Pakistan, Arts.4, 9, 15 & 199---Constitutional petition---Exit Control List---Instruction of NAB---Fundamental rights, violation of---Imposition of compensatory costs---Grievance of petitioner was that his name had been placed on Exit Control List without any justification and he had been offloaded at the time when he was going to perform Hajj---Validity---Name of petitioner was placed on Exit Control List by Ministry of Interior in arbitrary and mechanical manner only on the instruction of NAB, without applying its own mind, without passing any speaking order and without disclosing basis of its intention of exercising powers under S.2(3) of Exit from Pakistan (Control) Ordinance, 1981---Such act on the part of government, which was not done fairly, reasonably or in good faith had violated not only valuable fundamental rights of petitioner guaranteed under Arts. 4, 9 & 15 of the Constitution but also prohibited petitioner from performing Hajj, which was one of the five fundamental religious obligations in Islam---High Court declared actions on the part of authorities in placing name of petitioner on Exit Control List, prohibiting him from travelling abroad and offloading him from Hajj flight, as arbitrary, void ab initio and without jurisdiction---High Court imposed cost of Rs.100,000/- on government which was to be recovered from delinquent officer(s) out of his/their personal account and not from national exchequer and to be paid to petitioner as compensatory cost within 30 days---High Court directed the authorities to remove name of petitioner from Exit Control List---Petition was allowed accordingly.

Government of Pakistan v. Dada Amir Haider Khan PLD 1987 SC 504; Habibullah Niazi v. Federation of Pakistan through Federal Secretary, Ministry of Interior and 2 others PLD 2009 Kar. 243; Mir Khalid Langov v. Secretary, Ministry of Interior, Government of Pakistan, Islamabad PLD 2007 Quetta 41; Wajid Shamas-ul-Hassan v. Federation of Pakistan PLD 1997 Lah. 617; Mian Ayaz Anwar v. Federation of Pakistan PLD 2010 Lah. 230 and Rafi Ahmed and another v. Special Judge, Central, Lahore and another PLD 2010 Lah. 693 ref.

Ejaz Ali Mangi for Petitioner.

Muhammad Ashraf Khan Mughal, DAG for Respondents Nos.1, 3 and 4.

Noor Muhammad Dayo, Addl. Prosecutor General, NAB along with Nadeem Shaikh, Dy. Director IW-II for Respondent No.2.

Nemo for Respondent No.5.

Date of hearing:7th May, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 34 #

P L D 2014 Sindh 34

Before Muhammad Ali Mazhar, J

Messrs BUILDING STORE and others---Decree Holders

Versus

MUHAMMAD HANIF and others---Judgment debtors

Execution No.Nil of 2011, decided on 29th November, 2013.

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

----S. 47. & O. XXI, R. 11---Limitation Act (IX of 1908), Art. 181---Application for execution of compromise decree dated 22-6-2001 regarding construction of suit property and delivery of shops reserved for decree-holder after its completion---Execution application filed on 7-10-2010 objected to by office of High Court for being time-barred---Plea of decree-holder was that decree was contingent upon completion of building and delivery of shops reserved for decree-holder, thus, limitation would start running only after construction of entire building, but not prior thereto; and that judgment debtor had submitted building plan for construction of Ground + 12 floors, out of which only Basement + Ground + 5 floors were partially constructed as per public notice dated 30-10-2009 issued by Building Authority and amenities had not been provided in terms of such decree, thus, execution application was within time---Validity---Filing of execution application would be governed by Art. 181 of Limitation Act, 1908, which provided period of three years from date of accrual of right to apply---According to such decree, judgment debtor had to complete entire building within 15 months from date of approval of its building plan and had to deliver possession of shops to decree holder after its completion in all respect along with electric connections and bathroom with running water and sewerage lines---Building was still in incomplete condition and judgment debtor had not yet obtained its completion certificate from Building Authority---Completion of building and occupancy certificate were essential for showing completion of building as well as handing over possession to purchaser and/or prospective occupant---Judgment debtor in absence of such certificates could not blame decree holder, who waited for completion of building and delivery of possession of shops in terms of decree---Point of limitation, in the present case was mixed question of law and facts, which would require adjudication in terms of such decree ---Other objections regarding execution application would be heard, if any, filed by judgment debtor under S. 47, C.P.C.---Judgment debtor had failed to fulfil its obligations in terms of such decree, for which decree holder could not be penalized/victimized---High Court overruled office objection and directed office to fix execution application for hearing in court.

Abdul Rashid v. Sri Sitaramji Maharaj AIR 1974 Allahabad 275; Equity Participation Fund v. Messrs Abbrasive Products Co. Limited and others 2012 CLD 971; Jamil Ahmed v. Karachi Building Control Authority and others 2001 MLD 1635; Din Muhammad Qureshi v. Government of Sindh 2003 CLC 245; Bank of America v. Messrs Mairaj Sons Ltd. 1988 CLC 2106; Udham Singh v. Atma Singh AIR 1941 Lah. 149; Ch. Muhammad Nawaz v. Ch. Rehmat Ali and another 1994 SCMR 349; Muhammad Ali and others v. Ghulam Sarwar and others 1989 SCMR 640; Meghraj v. Kesarimal AIR (35) 1948 Nag. 35 and Ramaswami v. Chidambaram AIR 1954 Madras 1040 ref.

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

----Preamble---Rules of interpretation of Limitation Act, 1908.

The rules of limitation are founded on consideration of public policy and the provisions of the Act dealing with the limitation are required to be interpreted with the approach which advances the cause of public policy and not otherwise. The intention of the provisions of the law of limitation is not to give a right where there is none, but to impose a bar after the specified period authorizing a litigant to enforce his existing right within the period of limitation. There can be no dispute that the law of limitation is a procedural or adjectival law and is not a part of substantive law. It is procedural or adjectival, because it regulates the manner in which substantive rights can be enforced by judicial action.

Tara Wanti v. State of Haryana AIR 1995 Punjab and Haryana 32 ref.

Makdoom Ali Khan, Najeeb Jamali and Ms. Sana Akram Minhas for Decree Holders.

Mansoor ul Arfin for Judgment Debtors.

Date of hearing: 13th August, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 48 #

P L D 2014 Sindh 48

Before Aqeel Ahmad Abbasi and Muhammad Junaid Ghaffar, JJ

IMRAN AHMED---Petitioner

Versus

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

Constitutional Petition No.D-2342 of 2013, decided on 25th October, 2013.

(a) Constitution of Pakistan---

----Arts.73, 184, 199 & Fourth Schedule, Entry No.47---Imposition of taxes---Judicial review---Principles---Legislature has vast powers to levy and impose tax on income of persons, pursuant to Entry No.47 of Federal Legislative List of Fourth Schedule to the Constitution and to prescribe tax rates thereon by introducing Bill in terms of Art.73 of the Constitution---Such legislation has to undergo test of Constitutional constraints---Legislative competence of imposing taxes is also subject to scrutiny by High Court under Art.199 of the Constitution and by Supreme Court under Art.184 of the Constitution, particularly if a levy or enactment has been challenged for being discriminatory, confiscatory or violative of fundamental rights as guaranteed under the Constitution---Concept of absolute authority to impose tax by Rulers on their subjects, without having any representation of people in such legislation, is no more available under the Modern Democratic System of Governments, which are run by elected representatives of people under their respective Constitutions---Unbridled powers and authority to impose tax arbitrarily, without having any rationale or reasonableness, is now being regulated under constitutional restraints, whereby taxes are to be imposed reasonably, without discrimination and in such manner that those may not encroach upon fundamental rights of a person as guaranteed under the Constitution.

The Wealth of Nations (1776) by Adam Smith rel.

(b) Income Tax Ordinance (XLIX of 2001)---

----Ss.4, 149 & First Schedule, Serial Nos.4, 5, 6 of Cl. (1-A), Division-1, Part-1 [as amended by Finance Act (XVII of 2012)]---Constitution of Pakistan, Art.199---Constitutional petition---Taxable salary---Rates of tax---Refund of tax---Petitioner was salaried person who was an income tax assessee and his grievance was that table "B" inserted through Finance Act, 2012, in Cl.(1A) of Division-1 of Part-1 of First Schedule to Income Tax Ordinance, 2001, was illegal and ultra vires of the Constitution---Validity---Amount of tax as calculated under slabs of taxable income at Serial Nos.4, 5 & 6 of Table "B" was without any conscious application of mind, which lacked certainty of charge and was devoid of any rational basis and had resulted in creation of additional burden of tax upon a particular group of salaried individuals without legal sanction---Such anomaly in tax calculation for salaried individuals neither existed for earlier tax years, whereas by Finance Act, 2013, it had been rectified for the tax year 2014 in similar set pattern of tax calculation on the basis of continued gradual increase of tax rate---Table inserted by Finance Act, 2012, for the tax year, 2013, in respect of rates of tax for salaried individuals with particular reference to amount of tax calculated under slabs of income at Serial Nos. 4, 5 & 6 of Table "B" was ultra vires of the Constitution, Income Tax Ordinance, 2001, and also inconsistent with slabs of taxable income of Table "B" itself, hence of no legal effect---High Court directed the authorities to issue refund of tax to all salaried individuals whose tax had been withheld and deposited in treasury pursuant to incorrect amount of tax as prescribed under Table "B", which was introduced by Finance Act, 2012---Petition was allowed accordingly.

Bindra's Interpretation of Statutes 2012, Edn. at p.1282 ref.

Naveed A. Andrabi, Anwar Kashif Mumtaz, Ammar Athar Saeed and M. Usman Alam for Petitioner.

Shaikh Liaquat Hussain for Respondents No.1 to 3 CFO(DHL) for Respondent No.4.

Amjad Javaid Hashmi for Respondent No.5.

Date of hearing: 10th October, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 60 #

P L D 2014 Sindh 60

Before Munib Akhtar and Mrs. Ashraf Jahan, JJ

ROYAL AIRPORT SERVICES (PVT.) LTD. Through Authorised Officer and another---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Defence and 2 others---Respondents

Constitutional Petitions Nos.D-641 and D-669 of 2012, decided on 20th November, 2013.

(a) Airport Security Force Act (LXXVII of 1975)---

----S. 3---Constitution of Pakistan, Arts. 25 & 199---Constitutional petition---Charging of annual fee of Rs.5,000/- by Airport Security Force for each Airport Entry Pass from entitled private applicants with effect from 1-1-2012---Validity---Airport Security Force Act, 1975 did not confer any power to levy any charge either in nature of fee or otherwise---Statutory function to be performed by such Force was ensuring of "security" of all airports, aerodromes, aircrafts and all structures, equipments, material and installations therein---Petitioners from such Force were getting service of their security as prior to 1-1-2012, which core duty was already imposed by S. 3 of the Act---No special service or benefit was being conferred on petitioners as could constitute quid pro quo for levy of fee---Record showed that defining elements of a fee in legal sense were totally absent in the present case, thus, its levy was not legally justified --- Noncharging of such fee from Pakistan International Airlines (PIA) was discriminatory as employees and staff members of PIA and other airlines were in same position to have access to different parts and areas of the Airport---High Court declared impugned levy of fee to be without lawful authority and of no legal effect and quashed same and restrained the Force to demand or charge such fee from petitioners, while directed refund of fee paid by them, if any, within specified time.

Shahbaz Garments (Pvt) Ltd. v. Pakistan and others PLD 2013 Sindh 449 = 2013 PTD 969; Tata Textile Mills Ltd. v. Pakistan and others 2013 PTD 1459 and 2013 PTD 995 ref.

I.A. Sharwani v. Government of Pakistan and others 1991 SCMR 1041 rel.

(b) Notification---

----Simply by recording an act done by an authority in official Gazette could not clothe same with a competence, which it otherwise lacked.

Qamar Abbas, Syed Iftikhar Hussain, Imdad Khan, Amel Kasi, Abdur Razzak, Asif Malik, Ali T. Ebrahim and Ms. Alia Khan for Petitioners.

Imdad Khan for Petitioner (in C.P. No.D-669 of 2012).

S. Mohsin Imam, DAG, Hasan K. Hashmi and Farooq Rashid for Airports Securty Force.

Date of hearing: 11th October, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 70 #

P L D 2014 Sindh 70

Before Syed Hasan Azhar Rizvi and Muhammad Junaid Ghaffar, JJ

MUHAMMAD FEROZE PUNJANI---Appellant

Versus

Syed BADSHAH HUSSAIN and others---Respondents

High Court Appeal No.229 of 2000, decided on 5th November, 2013.

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

----O. XLI, R.19---Limitation Act (IX of 1908), S.5 & Art.168---Appeal dismissed for non-prosecution---Delay of three (3) days in filing application for restoration of appeal supported by personal affidavit of appellant's counsel---Validity---Record showed that appellant's counsel had not taken due care and vigilantly pursued appeal after its admission---Appellant had failed to deposit decretal amount as per direction of court and his counsel had also declined to deposit same---Grant of restoration application being discretionary relief, which could be granted to a party having been vigilant and accorded respect to orders of court---Restoration application was time-barred, but appellant had not filed application under S. 5 of Limitation Act, 1908 for condonation of delay---High Court declined to grant restoration application in circumstances.

Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others PLD 1966 SC 461; Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan PLD 1966 SC 467; Wali and others v. Manak Ali and others PLD 1965 SC 651; Muhammad Haleem and others v. H. H. Muhammad Naim and others PLD 1969 SC 270; Mst. Fatima and another v. Mst. Rehmat Mai 1989 SCMR 1202; Mst.Zubaida Mumtaz Begum and others v. Mst. Ikram Jan and another 1990 SCMR 1025; Abdul Latif v. Muhammad Yousuf and 2 others PLD 1996 Kar. 365; Nowsheri Khan v. Said Ahmad Shah 1983 SCMR 1092; Muhammad Qasim and others v. Moujuddin and others 1995 SCMR 218; Haji Muhammad Ramzan Saifi v. Mian Abdul Majid and others PLD 1986 SC 129 and Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434 ref.

Lal Dino v. Deputy Collector and others 1982 SCMR 209 and Mst. Halima Tahir and 5 others v. Mst. Naheed Ejaz and 3 others 2010 MLD 554 rel.

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

----O. IX, Rr. 4, 8 & O.XLI, R.19---Restoration application supported by personal affidavit of an Advocate---Credence---Duty of court.

A restoration application supported by a personal affidavit of an Advocate has attached to it, its own credence, but again this is not and could not be the only reason to grant each and every application for restoration. It is to be seen as well as examined by the court as to whether the conduct of the counsel, who has submitted his personal affidavit has been fair, and/or whether the counsel has been vigilant enough to pursue its case in a manner, as is required before High Court.

----O. IX, Rr.4, 8 & O.XLI, R.19---Restoration application, grant of---Scope---Grant of restoration application being discretionary relief, which could be granted to a party having been vigilant and accorded respect to orders of Court.

S.M. Akhtar Rizvi for Appellant.

Syed Zaki Muhammad and Syed Wajahat Abbas for Respondents.

Date of hearing: 29th October, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 78 #

P L D 2014 Sindh 78

Before Sadiq Hussain Bhatti, J

LIAQUAT ALI and another---Plaintiff

Versus

Col. (Retd.) AKHTAR SULTAN---Defendants

Suits Nos.228 of 2002 and 679 of 2004, decided on 4th November, 2013.

(a) Administration of justice---

----Court duty bound to safeguard interest of a party in suit, if not present.

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

----Art.118---Specific Relief Act (I of 1877), Ss.42, 54 & 39---Suit for declaration, cancellation of documents, injunction and recovery of damages---Execution of suit agreement denied by defendant---Non-appearance of plaintiff in witness-box and non-production of evidence in support of his claim---Effect---Party making a claim would fail, if he failed to produce evidence in support thereof---Burden was on plaintiff to lead cogent evidence in order to prove genuineness of suit agreement on basis of which he claimed damages---Plaintiff had failed to produce any evidence---Plaintiff could not prove suit agreement as genuine, thus, he was not justified to claim damages on its basis---Suit was dismissed in circumstances.

----Art.118---Burden of proof---Scope---Claim of a party would fail in case of his failure to produce evidence in support thereof.

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

----S. 12---Limitation Act (IX of 1908), Art.113---Suit for specific performance of sale agreement---Limitation---Suit filed after 13/14 years of agreement by alleging that defendant after "sometime" adopted a hostile attitude towards him---Validity---No date for execution of suit agreement had been fixed therein---No date either exact or approximate had been given in plaint regarding alleged adoption of hostile attitude by defendant---Expression "some time" would not mean or could not be construed a period of more than 13/14 years, except some months or one year at the most---Suit was dismissed for being time-barred.

Nemo for Plaintiff.

Shahid Qadeer for Defendant No.1.

Ejaz Mubarak Khattak for Defendant No.2.

Date of hearing: 2nd October, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 90 #

P L D 2014 Sindh 90

Before Faisal Arab and Salahuddin Panhwar, JJ

AIJAZ HUSSAIN JAKHRANI---Petitioner

Versus

ILLAHI BUX SOOMRO and 16 others---Respondents

Constitutional Petitions Nos.D-3689 and 3690 of 2013, decided on 21st October, 2013.

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

----Ss. 52, 55 & 63---Constitution of Pakistan, Art.199---Constitutional petition---Verification of thumb-impressions---Petitioner, returned candidate was aggrieved of order passed by Election Tribunal directing to get verification of thumb-impression on counterfoils of votes from National Database and Registration Authority (NADRA) before recording of oral evidence---Validity---To honour mandate of law, it would be necessary that instead of recording oral account of an incident or an event first through witnesses and then decide whether to allow production of documentary evidence, which was undisputedly not only a public document but also required verification of signatures from NADRA---Such verification would provide more authentic and accurate account of what had transpired at polling and was more believable than oral account of rigging if at all that had taken place---Reliability of oral evidence on an issue was much lesser as compared to duly verified documentary evidence---Courts had always placed more reliance on documentary evidence as compared to oral evidence---High Court, in exercise of constitutional jurisdiction under Art.199 of the Constitution, did not find any justification in the order passed by Election Tribunal---Petition was dismissed in circumstances.

Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni 1999 SCMR 284 ref.

Abid S. Zuberi and Haseeb Jamali for Petitioner.

Muhammad Jamshid Malik for Respondent No.1.

Date of hearing; 11th October, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 95 #

P L D 2014 Sindh 95

Before Muhammad Ali Mazhar and Farooq Ali Channa, JJ

INAYATULLAH ANSARI and 2 others---Appellant

Versus

The STATE---Respondent

Criminal Accountability Appeal No.9 of 2013, decided on 10th October, 2013.

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

----S. 426---National Accountability Ordinance (XVIII of 1999), Ss.9(a)(xii) & 32---Corruption and corrupt practices by abettor---Suspension of sentence/bail, grant of---Accused were on bail during the trial and on conclusion of trial, they had been awarded 3 years' punishment/sentence on the charge that they had acted in conspiracy, collusion and in connivance with principal accused while the principal accused/convicts who had played major role in the offence and or found directly involved or guilty in the case were awarded 7 years' punishment---Validity---Two sets of accused persons, in the present case, were tried and punished differently on different charges---High Court suspended the sentence awarded to accused---Bail was allowed in circumstances.

Ghulam Mustafa v. State 2012 PCr.LJ 387; Criminal Accountability Appeal No.22 of 2012 and Criminal Accountability Appeal No.7 of 2012 ref.

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

----S. 9(b) [as amended by National Accountability (Amendment) Ordinance (XXXV of 2001)----Bail/suspension of sentence---High Court, jurisdiction of---Before the word "Court" the words "including the High Court" were inserted by National Accountability (Amendment) Ordinance, 2000 (dated 3-2-2000) and subsequently the same words "including the High Court" were omitted by National Accountability (Amendment) Ordinance, 2001 (10-8-2001)---Definition of "Court" provided under National Accountability Ordinance, 1999, means an "Accountability Court" and after omission of words "including the High Court" it makes obvious that purpose of mentioning S.426 or 561-A, Cr.P.C. had become redundant or superfluous as according to definition of "Court" provided under National Accountability Ordinance, 1999, it meant "Accountability Court", which was a Trial Court and Trial Court could not exercise powers under S.426, Cr.P.C., which powers were only vested in Appellant Court---Provision of S.561-A, Cr.P.C. were inherent powers of High Court which also could not be exercised by Accountability Court or any other Court except High Court---Grant of bail and or suspension of sentence, pending adjudication of appeal, was an ancillary or incidental power of Appellate Court and High Court being an Appellate Court while hearing appeal under National Accountability Ordinance, 1999 , could exercise powers under S.426, Cr.P.C. read with S.561-A, Cr.P.C. and suspend sentence and enlarge appellant on bail, keeping in view the facts and circumstances of the case.

Nisar Ahmed Abro for Appellants.

Noor Muhammad Dayo, D.P.G. (NAB).

Date of hearing: 10th October, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 100 #

P L D 2014 Sindh 100

Before Nadeem Akhtar, J

NAMA LIKA SILK INDUSTRIES---Plaintiff

Versus

Messrs ULTIMATE DRIVING MACHINE and 3 others---Defendants

Suit No.517 of 2001, decided on 7th November, 2013.

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

----Ss. 55 & 62---Suit for damages for non-performance of contract---Failure of defendant (car-dealer) to supply car to plaintiff by agreed date 21-5-1999 despite having received from him part payments on 29-5-1999 and 20-12-1999---Defendant's plea was that entire sale price of car payable by plaintiff in advance within four days of contract dated 17-5-1999 was not paid, thus, time being essence of the contract resulted in delaying delivery of car---Validity---Such part payments had not been denied by defendant---Had such plea of defendant been correct, then he would have refused to receive partial or full payment from plaintiff after 21-5-1999---Defendant's letters produced in evidence by plaintiff showed that defendant had kept assuring plaintiff about delivery of car and kept on demanding balance price from him---Had time been essence of the contract, then defendant would have returned part payments to plaintiff for having breached contract or would have given him notice to revoke contract on such ground---Defendant by accepting part payment and demanding balance price after 21-5-1999 had not only waived his right to demand full payment in advance, but had extended time for payment of balance price by altering original contract---Plaintiff, in such circumstances, was not obliged to perform original contract as rights of parties thereunder stood extinguished giving way to different rights under subsequent contract---Defendant had failed to perform his part of contract---Plaintiff was entitled to refund of paid amount and damages---Suit was decreed in circumstances.

Banque Indosuez v. Banking Tribunal for Sindh and Balochistan and others 1994 CLC 2272 rel.

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

----Ss. 53 & 54---Reciprocal promise, non-performance of---Right of aggrieved party to claim compensation---Scope.

Section 53 of the said Act, 1872 provides that when the contract contains reciprocal promises and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented and, he is entitled to compensation from the other party for any loss which he may sustain in consequence of the non-performance of the contract. Section 54 of the said Act provides that when a contract consists of reciprocal promises, such as one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract.

----Quantum of damages, determination of---Scope---Nature of damage caused to aggrieved party must be kept in mined.

Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6 rel.

Khalid Daudpota for Plaintiff.

Abdul Haleem Siddiqui for Defendants Nos. 1 and 2.

Abdul Qayyum Abbasi for Defendant No.3.

Defendant No.4: Ex parte.

Dates of hearing: 30th November, 21st December, 2012 and 14th October, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 114 #

P L D 2014 Sindh 114

Before Sadiq Hussain Bhatti, J

MUHAMMAD AKBAR and 2 others---Plaintiffs

Versus

PAKISTAN through MILITARY ESTATE OFFICER and 2 others---Defendants

Suit No.54 of 1993 and C.M.As.Nos.1606 and 1607 of 2009, decided on 4th October, 2013.

(a) Counsel and client---

----Negligence of counsel---Effect---Duty of client would be to keep himself abreast of proceedings in his case and remain in touch with his counsel for such purpose, otherwise he would have to suffer for negligence of his counsel being his agent---Principles.

It is the duty of a party to litigation to keep himself abreast of the proceedings and progress of the matter and it is also his duty to remain in touch with his counsel. If his counsel, for any reason, is unable to contact him or inform him, about the progress of his case, then the party should personally keep track of the same as it is he who should suffer in case any adverse order is passed in the matter against him.

Negligence of counsel is the negligence of party because he acts merely as an agent.

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

----S. 5---Application for condonation of delay---Illness of counsel, ground of---Validity---Valuable rights accrued to opponent party on expiry of limitation could not be taken away without making out a case of sufficient cause explaining delay of each day---Mere illness of counsel would neither absolve party of his responsibility to prosecute his case properly nor constitute sufficient cause to condone delay---Principles.

In civil matters, on expiry of limitation, valuable rights accrue to the other side which cannot be taken away lightly except on making out a case of sufficient cause explaining the delay of each day.

Mere illness of counsel does not absolve the party from his responsibility to prosecute his case properly. His failure to pursue the case with due diligence will not entitle him to seek indulgence of the Court.

Negligence of counsel is the negligence of party because he acts merely as an agent.

A party wishing to take advantage of section 5 of the Limitation Act, 1908 must satisfy the Court that it has not been negligent rather pursuing his case with due diligence and care. Negligence on the part of the counsel does not constitute sufficient cause to condone the delay where valuable rights have accrued in favour of the other party.

While seeking condonation of delay the applicant has to explain each day's delay.

----O. IX, R.8---Limitation Act (IX of 1908), S.5---Application for restoration of suit dismissed for non-prosecution---Delay, condonation of---Plaintiff's plea was that court should have issued him notice in case of non-appearance of his counsel due to illness---Validity---Plaintiff was duty bound to follow his case with due diligence, and he could not shift such burden to any one else including court---Plaintiff had not shown any reasonable cause or explained delay of each day---Plaintiff's application was dismissed in circumstances.

Haider Imam Rizvi and Kashif Paracha for Plaintiffs.

Nazar Hussain Dhoon for Defendants.

PLD 2014 KARACHI HIGH COURT SINDH 120 #

P L D 2014 Sindh 120

Before Syed Muhammad Farooq Shah, J

JAMSHED---Applicant

Versus

SALEEMUDDIN and 4 others---Respondents

Civil Revision Application No.85 of 2013, decided on 4th October, 2012.

Islamic law---

----Adoption---Adopted child, non mehram to members of the adoptive family. however, adopted child would become mehram to the family, if he or she was breast fed by adoptive mother before the age of two years---Principles---Suit was filed by plaintiff for correction of his father's name on the ground that he was adopted by his sister as son and the name of his brother-in-law was entered in record in the column of father's name---Trial Court decreed the suit in favour of plaintiff but on appeal filed by Board of Secondary Education the judgment was reversed by Lower Appellate Court and suit was dismissed---Validity---Adoption was not recognized by Islamic law---Trial Court had rightly observed that father's name of plaintiff was to be on the record and defendants had not categorically denied the assertions made by plaintiff---No illegality, gross irregularity or error in judgment and decree rendered by Trial Court decreeing suit of plaintiff existed and there was no justification to interfere with the same by Lower Appellate Court---High Court, in exercise of revisional jurisdiction, set aside the judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

Board of Intermediate and Secondary Education v. Muhammad Zaheer Ahmed 1994 MLD 2208; Administrative Committee of High Court of Sindh and another v. Arjun Ram K. Talreja and another 2008 SCMR 255=2008 PLC (C.S.) 376. The Board of Intermediate and Secondary Education, Sargodha v. Mst. Surriya Andleeb 2009 MLD 1252, Zainub Bibi v. Mst. Majidan Bibi 1988 MLD 837; Muhammad Hamdan Sheikh v. The Chairman, Board of Secondary Education, Karachi PLD 1998 Kar. 59 and Muhammad Arshad and another v. Mian Noor Ahmed and others 2008 SCMR 713 ref.

Bashir and others v. Ilam Din and others PLD 1988 SC 8; Manzoor Hussain v. Zahoor Ahmed and 4 others 1992 SCMR 1191; Nawab and 3 others v. Qaisar Abbas 2006 YLR 721; Board of Intermediate and Secondary Education v. Muhammad Ishaque 2006 CLC 1850 and NLR 2010 Civil 2005(sic) distinguished.

Muhammad Aziz Khan for Applicant.

Ms. Nazia Hanif for Respondent No.4.

Date of hearing: 26th September, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 126 #

P L D 2014 Sindh 126

Before Salahuddin Panhwar, J

GHULAM MURTAZA and another---Appellants

Versus

GHULAM SHABIR and another---Respondents

Criminal Appeal No.S-306 of 2012, decided on 1st July, 2013.

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

----Ss. 426, 345 & 497---Penal Code (XLV of 1860), Ss.302(b)/34---Qatl-e-amd, common intention---Trial Court awarded sentence of life imprisonment---Application for suspension of sentence pending disposal of appeal---Power of court to grant bail---Application for suspension of sentence had solely been filed on the ground of "no objection" extended by some of the legal heirs of the deceased---Validity---Provisions of S.426 & S.497, Cr.P.C. were analogous both relating to the powers of the court for releasing accused on bail---Criteria for exercising powers in both said provisions of law were different---Power of Appellate Court under S.426(1), Cr.P.C. was not limited, and the court could pending disposal of an appeal, suspend the sentence of accused in an appropriate case in its discretion for good and sufficient reasons, but that power of suspension of sentence and grant of bail was not wider than that of the one under S.497, Cr.P.C.; and unless it was shown that conviction was based on no evidence, or was based on an inadmissible evidence; was not ultimately sustainable---Appellate Court had been given power to suspend the sentence of accused, but same was to be exercised with due care and caution and satisfactorily---Cogent reasons were required to be advanced for suspending the sentence, especially, in respect of sentence of life imprisonment---Mere releasing of accused pending determination of his guilt, or suspension of sentence pending determination of legality of judgment, would not carry any effect upon the final fate of appeal or case---If during course of trial a witness would make an affidavit exonerating accused, he would cause a doubt towards his statement recorded during course of investigation, or would allow a presumption of supporting the prosecution---By making such affidavit, he would open a room toward prosecution case---Such witness could only make such an affidavit before recording of his evidence, because once his evidence was recorded, there would remain no room for such an affidavit---Any such attempt would be of no avail for accused, unless conflicting statement was brought on record through the course, provided by law itself regarding re-examination of witness---In matter of appeal, there was no room for filing of affidavit of the witnesses---Once the judgment was pronounced such affidavit it could be established to be result of misreading or non-reading of the evidence, or being in violation of law.

2009 PCr.LJ 260; 2005 YLR 1777 and 2003 MLD 1665 ref.

Muhammad Saleem v. State PLD 2006 SC 483 and Raja Shamshad Hussian v Gulzar Akhtar and others PLD 2007 SC 564 rel.

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

----Ss. 426 & 345---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Suspension of sentence, pending disposal of appeal---Compromise---Scope---If there was a genuine compromise, the proper course for the parties was to resort to the legal course, so provided by law for the purpose---Plea of compromise, could only sustain when there was a genuine compromise from the person, so authorized by law for the purpose---In the present case, only three out of nine legal heirs had come with a plea of compromise---Since the compromise could legally sustain only if same would come from all the legal heirs, who were so authorized by law under relevant column of S.345, Cr.P.C., said three legal heirs, could not be considered to be sufficient to hold it a compromise---If there was a genuine compromise/pardon, the course for compromise to be resorted for acquittal could be adopted, according to settled law---Application for suspension of sentence was declined, in circumstances.

Qamar Abbas v. The State 2000 SCMR 160 rel.

Ms.Razia Ali Zaman for Appellants.

Miss Nasira Sheikh for the Complainant.

Syed Meeral Shah, D.P.G.

PLD 2014 KARACHI HIGH COURT SINDH 132 #

P L D 2014 Sindh 132

Before Ghulam Sarwar Korai and Abdul Rasool Memon, JJ

M. AFZAL NADEEM---Petitioner

Versus

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

Constitutional Petition. No.D-2923 of 2012, decided on 20th November, 2013.

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

----S. 9(4)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Criminal Procedure Code (V of 1898), S. 382-B---Constitution of Pakistan, Art.199---Constitutional petition---Conviction by Foreign Court and compatibility with law of Pakistan---Petitioner was Pakistani national who was convicted and sentenced to imprisonment for life by a foreign court for possessing 884 grams of heroin powder---Petitioner was transferred to Pakistan under Transfer of Offenders Ordinance, 2002---Petitioner sought his release on the plea that maximum sentence for narcotics recovered from petitioner was imprisonment for seven years---Validity---Section 9(4) of Transfer of Offenders Ordinance, 2002, provided that sentence given to citizen of Pakistan in foreign jurisdiction should be compatible to the law of Pakistan and consequently a court of competent jurisdiction in Pakistan could adopt later sentence---Adopted sentence should correspond as far as practicable to the sentences imposed by foreign court---Gross quantity of heroin recovered from petitioner was 884 grams and in accordance with S.9(b) of Control of Narcotic Substances Act, 1997, where the quantity was up to 1000 grams then maximum sentence which could be imposed was seven years rigorous imprisonment along with fine---Petitioner had been in custody since 20-4-2004 and on giving him benefit of S.382-B, Cr.P.C., to which he was entitled, the petitioner had served more than nine years of imprisonment, which was sufficient in the facts and circumstances of the case---High Court directed the authorities to release the accused---Petition was allowed in circumstances.

Imran Ali v. Province of Sindh through Secretary 2007 PCr.LJ 1364; Muhammad Iqbal v. Province of Sindh PLD 2011 Kar. 32 and Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 rel.

Jawad Iqbal Barqi for Petitioner.

Ashraf Mughal, Deputy Attorney General.

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

Date of hearing: 12th November, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 135 #

P L D 2014 Sindh 135

Before Faisal Arab and Salahuddin Panhwar, JJ

RASHID LATIF---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Inter Provincial Coordination and 2 others---Respondents

Constitutional Petitions Nos.D-2865, 2020 of 2013 and 4026 of 2012, decided on 27th November, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---High Court has been vested with powers, jurisdiction and authority to examine any order/action complained to be unlawful because High Court is the ultimate guardian of the rights of people residing within its territorial jurisdiction---Functions or acts/proceedings of person on behalf of Federation are not exempted from judicial scrutiny and examination of High Court.

(b) Words and phrases---

----"Federation"---Connotation---Federation speaks about groups or people arranged with a strong central authority thereby meaning that all linked with such central authority be deemed to be one.

Black's Law Dictionary ref.

----Art. 199---Constitutional petition---Maintainability---Chairman Pakistan Cricket Board (PCB), appointment of---Decision of another High Court---Effect---Petitioner was running cricket academy at place "K", where he challenged Notification issued by Federal Government with regard to appointment of Chairman PCB---Validity---As many as 15 regions of PCB were running the affairs under the Board---Pakistan Cricket Board was not a body having its functions at one city only but it was functioning all over the country, wherever the regional body was established---Game of cricket could not be confined to any particular place only because object of establishment of PCB was to promote 'cricket' all over the country and to choose a team from all over the country---Notification assailed by petitioner and functions of Federal Government were having a general impact all over the regions of PCB---High Court at place "K" was competent to examine legality and validity of Notification issued by Federal Government---Caretaker Chairman was appointed by High Court at place "I" for a specific purpose and specific period---Once legality of appointment of caretaker chairman was adjudicated by a competent court, the propriety demanded that High Court at place "K" must not examine legality and validity thereof as decision might not come in conflict with order passed by High Court at place "I" and the same would cause confusion and complicity of the case and if came in affirmation it would result in prejudicing Intra Court Appeal filed by authorities---Issue decided by competent Court, if pending determination before appellate forum, the court of same status should refrain from deciding such issue as a demand of propriety, fairness, good conscious and equity---High Court at place "K" refrained to discuss vires of Notification in question and petitioner was at liberty to join proceedings of Intra Court Appeal---Petition was disposed of accordingly.

A.R. Khan and Sons (Pvt.) Ltd. through Authorized Officer v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad 2010 CLD 1648; Trading Corporation of Pakistan (Pvt.) Ltd. v. Pakistan Agro Forestry Corporation (Pvt.) Ltd. 2000 SCMR 1703; Al-Iblagh Ltd., Lahore v. Copyright Board, Karachi 1985 SCMR 758; Messrs FACTO Belarus Tractors Limited Karachi v. Federation of Pakistan through Secretary, Ministry of Industries, Production and Special Initiatives Islamabad PLD 2006 Kar. 479; Ardeshir Cowasjee v. Karachi Building Control Authority (KMC), Karachi 1999 SCMR 2883; Muhammad Naseem Hijazi v. Province of Punjab 2000 SCMR 1720; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Lt. Col. Khajoor Singh v. Union of India and another AIR 1961 Supreme Court 532; Shahida Maqsood v. President of Pakistan and others 2005 SCMR 1746; Izhar Alam Farooqi v. Sheikh Abdul Sattar Lasi and others 2008 SCMR 240; Danish Keneria v. Pakistan and another 2012 CLC 389; Messrs Sethi and Sons v. Federation of Pakistan and others 2012 PTD 1869; Gul Muhammad Hajano v. Province of Sindh and others 2010 PLC CS 137; Sabir Din v. Govt. of Pakistan and others 1979 SCMR 555; The Province of East Pakistan v. Dr. Aziz-ul-Islam PLD 1963 SC 296; L.P.G. Association of Pakistan through Chairman v. Federation of Pakistan and others 2009 CLD 1498; Messrs Al-lblagh Limited Lahore' case 1985 SCMR 758; Dr Zahoor Ahmed Shah's case 2005 MLD 718; Dr Qaiser Rasheed's case PLD 2006 Lah. 789; Messrs Ibrahim Fiber's case PLD 2009 Kar. 154; Abdul Ghafar Lakhani's case PLD 1986 Kar. 525; Amin Textile Mills's case 1998 SCMR 2389; Flying Craft Paper Mills's case 1997 SCMR 1874; Shah Abdul Sattar Lasi's case 2006 CLD 18; Superintendent of Police Headquarter Lahore and others v. Muhammad Latif PLD 1988 SC 387; Ghulam Haider Badini and others v. Government of Pakistan through Ministry of Information and Broadcasting and another 1995 CLC 1027; Sandalbar Enterprises (Pvt.) Ltd., v. CBR PLD 1997 SC 334; Muhammad Idrees v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 5 others 1998 PLC (C.S.) 239; Messrs Lucky Cement Ltd. v. The Central Board of Revenue and others PLD 2001 Pesh. 7; Muhammad Aslam Khan and 9 others v. Federal Land Commission through its Chairman, Central Secretariat Islamabad and 3 others PLD 1976 Pesh. 66; Trading Corporation of Pakistan (Private) Ltd. v. Pakistan Agro Forestry Corporation (Private) Ltd. and another 2000 SCMR 1703 and Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343 ref.

Umair A. Kazi and Abdul Sattar Pirzada for Petitioner.

Asif Hussain Mangi, Standing Counsel on behalf of Respondent No.1.

Taffazul H. Rizvi for Respondents Nos. 2 and 3.

Date of hearing: 24th November, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 150 #

P L D 2014 Sindh 150

Before Nadeem Akhtar, J

SOORTY ENTERPRISES (PVT.) LTD.---Plaintiff

Versus

KARACHI ELECTRIC SUPPLY COMPANY LTD. and another---Defendants

Suit No.485 of 2012, decided on 29th August, 2013.

Specific Relief Act (I of 1877)---

----Ss. 42 & 55---Civil Procedure Code (V of 1908), Ss. 151, 94 & O.XXXIX Rr.1 & 2---Suit for declaration, mandatory injunction and damages against Electricity Supply Company and plaintiff had inter alia sought restoration of electricity supply ---Plaintiff's application under O. XXXIX Rr. 1 & 2, C.P.C. for interim injunctive relief in the form of restoration of electricity supply was dismissed by Trial Court, however, said order of Trial Court was modified by Appellate Court inter alia, to the effect that the plaintiff had made out a case for interim relief---Defendant Electricity Supply Company, was set at liberty to make determination as to whether the plaintiff was using electricity greater than its sanctioned load and such determination had to be made in specific period of time---Contention of the plaintiff was that by virtue of said order, plaintiff's application for interim relief stood as allowed, hence the defendant Company was liable to restore electricity supply---Validity---Perusal of order of the Appellate Court showed that it had been concluded that the plaintiff had made out a case for interim injunctive relief, and equities lay in its favour---Appellate Court, in order to ensure that such relief should not stand in the way of the defendant Electricity Supply Company, set it at liberty to make proper determination of the facts in accordance with law and then to take appropriate action, if so warranted, by exercising powers vested in it under the Consumer Service Manual (CSM)---Such process was with a specific time frame for making proper determination by the Company ; and it was specifically mentioned in the order that if any party, either the defendant or the plaintiff, was of the view that such exercise was being unnecessarily or unreasonably delayed, obstructed or prolonged, it may apply for such directions as the court may deem appropriate---Case of the plaintiff in the present application was that proper exercise of determination in terms of the order of the Appellate Court had not been initiated by the defendant under the time frame stipulated in the order of the Appellate Court; therefore present application was maintainable---Held, defendant Electricity Supply Company had not initiated the exercise for determination within the time period stipulated by the Appellate Court and therefore it was bound to restore electricity connection of the plaintiff---Application for restoration of electricity supply was allowed, in circumstances.

Tariq Mohsin Siddiqui and 2 others v. The State through National Accountability Bureau 2005 MLD 1827; Al-Rehman Falahi Society through General Secretary v. Government of Sindh through Secretary, House and Town Planning, Karachi, and another PLD 2006 Kar. 14; Attaullah v. Abdur Razzaq; PLD 2002 SC 534; Amin-ud-Din Khan v. Water and Power Development Authority, through Chairman and 3 others 2003 YLR 991 and Sheikh Ahmad and 2 others v. Muhammad Sabir and another 2003 YLR 1689 distinguished.

Arshad Mohsin Tayebaly for Plaintiff.

Abid Shahid Zuberi for Defendant No.1.

Dates of hearing: 10th December, 2012, 10th January and 1st April, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 160 #

P L D 2014 Sindh 160

Before Ghulam Sarwar Korai and Naimatullah Phulpoto, JJ

NAZAKAT ALI---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.127 of 2013, decided on 9th September, 2013.

Penal Code (XLV of 1860)---

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(m)(n), 7, 13 & 23---Qatl-e-amd, common intention, act of terrorism---Dismissal of application for transfer of case from Anti-terrorism Court to regular court by accused---Validity---Sufficient material had been collected to create a nexus between the Scheduled offence allegedly committed by accused---Accused had launched an assault upon the member of Police Force (S.H.O.) as to deter him from performing his official duties; and had committed his murder---If such allegations were accepted as correct on the basis of material available on record, 'actus reus' attributed to accused would attract the provisions of S.6(2)(m)(n) of Anti-Terrorism Act, 1997---Accused being subordinate to deceased S.H.O., by such act of accused it had created sense of insecurity in Police Officials---Anti-Terrorism Court had exclusive jurisdiction to try the case and had rightly framed the charge against accused---No illegality or infirmity in the impugned order had been pointed out and it was based upon sound reasons---Impugned order was maintained---Petition being without any merit was dismissed, with direction to the Ante-Terrorism Court to proceed with the case expeditiously, as provided in the Anti-Terrorism Act, 1997.

Habib Ahmed for Applicant.

Muhammad Iqbal Awan, Asstt. Prosecutor General, Sindh for the State.

Muhammd Khan Burriro for the Complainant.

Date of hearing: 30th August, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 164 #

P L D 2014 Sindh 164

Before Faisal Arab and Salahuddin Panhwar, JJ

WAJID ALI---Petitioner

Versus

CIVIL JUDGE AND JUDICIAL MAGISTRATE NO.1 and 5 others---Respondents

Constitutional Petition No.1845 of 2013, decided on 20th October, 2013.

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

----S. 154---Constitution of Pakistan, Arts.10A & 199---Constitutional petition---Information in cognizable cases---Manner of reporting cognizable offence---Discretion of officer Incharge of Police Station---Scope---Administrative jurisdiction of the courts---Extent---No discretion had been left with the Officer Incharge of a Police Station to refuse or avoid exercise of mandatory jurisdiction under S.154, Cr.P.C.---Only condition was that information should spell out commission of a cognizable offence---Courts being the ultimate guardians of the rights of the individuals and in criminal justice system, courts enjoyed the status of the administrative authority, to have a check under constitutional jurisdiction---Such administrative jurisdiction, would not give a legal right and authority to curtail the powers of statutory functionary (Investigating Authorities); nor would mean to interfere in the independent functions of authorities provided by law; unless it surfaced that such exercise was patently contrary to the law, and was result of colourable exercise---Offence, would continue to be an offence even if not reported or no informant came forward---Incharge of Police Station was obliged to bring the law into motion, as soon as it came to his knowledge---Law nowhere demanded that before lodging F.I.R., there should be a prior permission---F.I.R. only would mean to bring the law into motion, so as to collect material, as to whether, in reality a cognizable offence was made out, which required its determination by a competent court of law---Administrative jurisdiction should only be exercised where subordinate functionary was found guilty of negligence in performing its functions, and not otherwise---F.I.R. could be lodged without hearing the proposed accused---Accused had been termed as "suspect", and such a suspect would have an undeniable right of a proper investigation---Domain and jurisdiction of the Police was to carry out the investigation and submit report under Chapter XIV of Cr.P.C.---High Court would not be legally justified in directing lodgement of the F.I.R. under particular provisions of law---Application of a particular provision or offence, could only be determined when raised and not otherwise.

Ghulam Sarwar's case 2010 SCMR 624 and Brig. (Rtd.) Imtiaz Ahmed v. Government of Pakistan through Secretary Interior Divisioin, Islamabad and 2 others 1994 SCMR 2142 ref.

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

----Ss. 6 & 7---Penal Code (XLV of 1860), Ss.503 & 506---Act of terrorism---Scope---Criminal intimidation---Ingredients---Appreciation of evidence---"Action" as defined in subsection (2) of S.6 of Anti-Terrorism Act, 1997, if qualified the condition of involvement of the use of fire-arms, explosive, or any other weapon, would fall within meanings of "terrorism"---In the present case, it was not alleged that any of the person, forming mob, was armed with any weapon; alleged resistance, offered by the mob, therefore, could not be an act of 'terrorism'---Simple threats, were not sufficient to constitute criminal intimidation, within the scope of S.503, P.P.C., unless it was caused to a person to do an act, who was not legally bound to do, or to omit to do any act, which that person was legally bound to do---Ingredients of criminal intimidation, being missing in the matter, Ss.6 & 7 of Anti-Terrorism Act, 1997, were not applicable in the matter.

Amir Khan v. State PLD 2005 Kar. 244 and Mohabbat Ali v. State 2007 SCMR 142 ref.

----S. 561-A---Quashing of F.I.R.---Scope---Quashing of F.I.R. could only be ordered, when the material available on record (collected by prosecution), if taken as gospel truth, would not provide a chance of accused being convicted for any offence.

Ghulamullah Chang for Petitioner.

Nemo for Respondents.

Date of hearing: 24th October, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 175 #

P L D 2014 Sindh 175

Before Muhammad Ali Mazhar, J

Messrs RAZIQ INTERNATIONAL (PVT) LTD. through Vice President---Plaintiff

Versus

PANALPINA MANAGEMENT LTD.---Defendant

Suit No.303 of 2012, decided on 29th November, 2013.

(a)"Forum non-conveniens", doctrine of---

----Connotation---Doctrine of forum non-conveniens meant that some other forum is more appropriate in the sense of more suitable for ends of justice.

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

----S. 20, O.VII, Rr.10 & 11---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration, injunction and damages---Return/rejection of plaint---Territorial jurisdiction---Doctrine of "forum non-conveniens"---Applicability---Plaintiff was a Pakistani company engaged in the business of freight forwarding, logistic import and export, while defendant was a Swiss company and both entered into an agreement of service---Agreement in question was allegedly terminated by defendant unilaterally---Defendant sought return/rejection of plaint on the plea that as per agreement Courts of Switzerland had the exclusive jurisdiction to adjudicate any dispute between the parties in accordance with the laws of Switzerland---Validity---Clause in the agreement with regard to exclusive or non-exclusive jurisdiction of Court of choice was not determinative but was the most crucial factor---When question arose as to the nature of jurisdiction agreed to between the parties, the Court had to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case---Court should also consider relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of view of premises and all other practical problems that could make trial easy, expeditious and inexpensive---Court at Switzerland had sufficient nexus and proximity to the dispute and defendant carried on business in Switzerland---Forum selection clause could not be held against public policy or arbitrary in nature as presumption of law was that parties were oblivious to their relative convenience or inconvenience at the time entering into a contract---High Court declined to exercise any discretion in favour of plaintiff, therefore, proceedings were stayed---Plaintiff was given an option to institute proper proceedings for adjudication of its claim before competent Court in Switzerland---Applications were disposed of accordingly.

Light Industries (Pvt) Ltd. v. Messrs ZSK, Strickmaschinen Gmbh 2007 CLD 1324; Light Industries (Pvt) Ltd. v. Messrs ZSK, Strickmaschinen Gmbh 2007 CLD 1340; State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; CGM (Compagnie General Maritime) v. Hussain Akbar 2002 CLD 1528; Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd 2012 SCC 9; Z.I. Pompey Industries v. ECU-Line N.V. (2003) 1 SCR 450, 2003 SCC 27; Messrs Bremem and Unterweser Reederei, GmBH, v. Zapata Off-Shore Company 407 U.A. 1 (92 S.Ct.1907, 32 L.Ed. 2d 513; British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries and others [1990] 3 SCC 481; Pantaloon Retail (India) Ltd. v. Amer Sports Malaysia SDN BHD & ANR I.As. Nos.820/2012 and 334/2012 in CS(OS) No.115/2012; Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd. AIR 2003 SC 1177; Sunshine Corporation (Pvt) Ltd. and others v. Messrs E.D.Du Pont De Nemours & Co. and others 1999 YLR 2162; Digital World Pakistan (Pvt) Ltd. v. Samsung Gulf Electronis FZE and another PLD 2010 Kar. 274; Socite Generale De Surveillance S.A. v. Pakistan through Secretary Ministry of Finance 2002 SCMR 1694; Aziz Bibi and others v. Aijaz Ali and others 2007 YLR 21; Muhammad Aslam Mnotiwala v. Messrs Quice Food Industries 2009 CLC 637; A.R. Khan and Sons v. Federation of Pakistan and others 2010 CLC 1810; Messrs Husain Brothers v. Punjab Vegetable and General Mills Co. PLD 1961 (W.P.) Kar. 14; Messrs Saif Nadeem Kawasaki Motors v. Faisalabad Development Authority 1989 CLC 1259; Riaz Ahmed v. Habib Bank Limited 2012 CLC 507; Ziauddin Siddiqui v. Mrs. Rana Sultana and another 1990 CLC 645; Abdul Syed and another v. Mian Muhammad Attique and another 2010 YLR 616; The Conflict of Laws (15th Edition) and Black's Law Dictionary (6th Edn.) ref.

Khawaja Shams-ul-Islam for Plaintiff.

Ali Zahid Rahim for Defendant.

Date of hearing: 5th August, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 194 #

P L D 2014 Sindh 194

Before Syed Muhammad Farooq Shah, J

MOINUDDIN GHORI and another---Petitioners

Versus

ADMINISTRATOR OF M/S SAINT FRANCIS CHURCH (TRUST) through Attorney and 2 others---Respondents

C.P. No.S-670 of 2011, decided on 29th November, 2013.

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

----S.15---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---High Court, in its constitutional jurisdiction may not act as court of appeal on the question of fact and the findings recorded by lower Appellate Court appearing to be in consonance with evidence available on the record did not call for interference---Jurisdiction under Art.199 of the Constitution, could not be invoked as substitute of another appeal against the order of the Appellate Court---Mere fact that upon perusal of evidence, High Court came to another conclusion would not furnish a valid ground for interference in the order of the Appellate Court, which was final authority in the hierarchy of law relating to rented premises---Constitutional petition was dismissed.

2010 CLC 925 and Shakeel Ahmed v. Muhammad Tariq Farogh 2010 SCMR 1925 rel.

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

----S. 15---Constitution of Pakistan, Art.199---Constitutional petition---Eviction of tenant---First ejectment application filed by landlord was dismissed---Second ejectment application filed by landlord against the same tenant was allowed---Contention of the petitioner/tenant was that second ejectment application was hit by principle of res judicata---Validity---Second ejectment application filed by landlord on changed circumstances was maintainable---Plea of subletting had not been taken by the landlord in the earlier ejectment application, therefore, that was a fresh ground which had been accepted by the Rent Controller and upheld in appeal---Order of eviction on the said ground notwithstanding the dismissal of landlord's earlier application was maintained---Constitutional petition was dismissed.

Dost Muhammad and another v. Muhammad Shabbir Hussain and another 1981 SCMR 528; Bashiruddin and others v. The Additional District Judge and others PLD 1985 SC 220 and Muhammad Ajmal Khan and others v. Rashid Shafique and others 2012 SCMR 854 rel.

----S. 15---Bona fide personal need of landlord and reconstruction of premises---Even in case of non-construction of building the same could have been got evicted on the ground of personal bona fide use by the landlord---Selection of area and nature of business was a choice of landlord and the same could not be interfered with.

Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197 rel.

2001 CLC 1778 and 2005 CLC 3 distinguished.

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

----S. 15---Bona fide personal need of landlord---Proof---Order of eviction would require satisfaction of Rent Controller that reasonable requirement of landlord would be met by occupation of premises---Eviction order could not be granted on vague allegations in eviction application---Plea of requirement would have to be supported by valid reason as to how such requirement was genuine.

Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197 rel.

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

----S. 15---Ejectment petition---Bona fide personal need of landlord---Proof---Principles---For seeking eviction of a tenant from the rented shop, the only requirement of law is the proof of bona fide need by the landlord, which stands discharged the moment he appears in the witness box and makes such statement on oath or in the form of an affidavit in evidence as prescribed by law, if it remains unshattered in the evidence adduced by the opposite party---Law does not require that the landlord, in order to prove bona fides of his personal need, shall keep himself away from all sorts of income generating ventures or to keep himself idle as long as the fate of his ejectment case, is finally decided by the Court.

Muhammad Ajmal Khan and others v. Rashid Shafique and others 2012 SCMR 854; Saira Bai v. Syed Anees-ur-Rehman 1989 SCMR 1366; 2004 MLD 587; Muhammad Anwar Azim and another v. R.I.G. Education Board PLD 2003 Kar. 34; PLD 1986 Kar. 84 and Shakeel Ahmed v. Muhammad Tariq Farogh 2010 SCMR 1925 rel.

HBL v. Zelins Limited and another 2000 SCMR 472; 2006 SCMR 437; PLD 1999 Lah. 450; 2009 CLC 291;1998 CLC 410; Naeem Ahmed v. Mrs. Marim 2000 MLD 442; 1993 MLD 219 and 1993 SCMR 1163 distinguished.

Bashir Ahmed for Petitioners.

Shehbaz Sahotra for Respondent No.1.

Date of hearing: 2nd October, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 203 #

P L D 2104 Sindh 203

Before Irfan Saadat Khan and Abdul Maalik Gaddi, JJ

UMAR FAROOQUE---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.D-24 and M.As. Nos.1323, 1324 of 2013, decided on 31st October, 2013.

Penal Code (XLV of 1860)---

----S. 302---Anti-Terrorism Act (XXVII of 1997), S. 6---Qatl-e-amd---Act of terrorism---Proof---Tripple murder---Complainant applied before Trial Court for transfer of the case to Anti-Terrorism Court which was dismissed---Plea raised by complainant was that murder of three persons caused terror amongst people of locality---Validity---F.I.R. showed that incident was result of previous enmity between parties over a murder---Killing of three persons did not bring case within the ambit of S.6 of Anti-Terrorism Act, 1997---While deciding question of jurisdiction, it was necessary to examine ingredients of alleged occurrence and that the same had any nexus with object of Anti-Terrorism Act, 1997---For determining whether a particular act was an act of terrorism or not, the motivation, object design or purpose behind the same had to be seen---If act of accused was simply result of previous enmity or personal vendetta, the same would not attract the provisions of Anti-Terrorism Act, 1997---Offence committed by accused was not covered by S.6 of Anti-Terrorism Act, 1997---High Court declined to interfere in order passed by Trial Court as the same did not suffer from any illegality---Petition was dismissed in circumstance.

Eidal Khan Metlo v. The State Criminal Revision Application No.D-04 of 2011 distinguished.

Nisar Ahmed G. Abro for Applicant/Complainant.

Khadim Hussain Khooharo, Deputy Prosecutory General for the State.

PLD 2014 KARACHI HIGH COURT SINDH 209 #

P L D 2014 Sindh 209

Before Aqeel Ahmad Abbasi and Muhammad Junaid Ghaffar, JJ

Syed JAFFER ABBAS---Appellant

Versus

HABIB BANK LIMITED---Respondent

H.C.A. No.17 of 2012, decided on 10th December, 2013.

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

----Ss. 13, 44-A, 151 & O.XI, R.2---Law Reforms Ordinance (XII of 1972), S.3---Intra court appeal---Foreign judgment---Execution---Interrogatories---Scope---Application filed by defendant under O.XI, R.2, C.P.C. read with S.151, C.P.C. for administering interrogatories on plaintiff for examination and reply thereof was dismissed by Single Judge of High Court---Validity---Matters already decided and adjudicated by foreign courts were conclusive, definitive and irrefutable in nature and could not be re-opened except as provided under the exceptions of S.13 C.P.C.---Interrogatories were meant to ascertain facts which were not so disclosed in plaint---Scrutiny of facts was out of the ambit of S.13 C.P.C., therefore, such interrogatories had no role in a suit filed on the basis of foreign judgment and decree under S.13, C.P.C.---Defendant had chosen to continue with its case only on the basis of foreign judgment and decided to forego its claim on original cause of action, then defendant was not to lead any evidence in the matter, as according to defendant foreign judgment was conclusive in its own nature---Only case remained was adjudication of it with respect to six exceptions available to defendant under S.13, C.P.C.---No evidence was available and consequently question of any interrogatories did not arise as facts were not to be ascertained anymore and the only legal issues (on the basis of six exceptions) were to be decided and no interrogatories could be administered on plaintiff---Division Bench of High Court declined to interfere in order passed by Single Judge of High Court---Intra Court Appeal was dismissed in circumstances.

Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD 1976 SC 785; Muhammad Khan v. Ghulam Abbas 2002 MLD 1372 and Abdul Ghani v. Saley Muhammad PLD 1960 Kar. 594 ref.

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

----Ss. 13 & 44-A---Foreign judgment---Execution, refusal of---Principle---Provisions of S.44-A, C.P.C. and S.13, CPC are not independent of each other and are in fact interlinked and dependent in as much as even a final judgment of a foreign court, after its approval from appellate court (of a country with whom there is an international treaty) cannot be executed directly without recourse to the provisions of exceptions as contained in S.13, CPC---Court in Pakistan can refuse execution of such final judgments of foreign courts, if they fall under any of the exceptions contained in S.13, CPC---No foreign judgment or decree can be executed on the basis of provisions of S.44-A, CPC independently, without recourse to and satisfaction of the provisions of S.13, CPC.

Akhtar Ali Mahmood for Appellant.

Hamza I, Ali for Respondent.

Date of hearing: 8th Octobe, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 218 #

P L D 2014 Sindh 218

Before Muhammad Ali Mazhar and Sadiq Hussain Bhatti, JJ

IMRAN AHMED---Petitioner

Versus

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

Constitutional Petition No.D-3190 of 2011, decided on 11th December, 2013.

(a) Pakistan Citizenship Act (II of 1951)---

----S. 15---Government Servants (Marriage with Foreign Nationals) Rules, 1962, R.3---Constitution of Pakistan, Art.199---Constitutional petition---Permanent Residence Certificate, issuance of---Failure to seek "No Objection Certificate"---Petitioner was civil servant who married foreign national lady, without seeking "No Objection Certificate" from competent authority---Grievance of petitioner was that despite lapse of so many years, authorities had not issued "No Objection Certificate" to enable him to get Permanent Residence Certificate for his wife---Validity---Non-applying of "No Objection Certificate" prior to marriage or entering into marriage without "No Objection Certificate" might be a misconduct on the part of a delinquent but it did not invalidate or declare the marriage void or voidable---Effect of visa refusal would amount to deporting wife of petitioner from Pakistan and if it was done, three minor children would be deprived from the love and affection of their real mother and petitioner would lose consortium which would lead to serious violation and contravention of fundamental rights of petitioner and his three by birth Pakistani citizen children and the entire family would also suffer---High Court directed the authorities that after completing all codal formalities and verification of antecedents and credentials, requisite permission should be granted to petitioner in accordance with law so that he could be able to apply for further proceedings under Pakistan Citizenship Act, 1951---Petition was allowed accordingly.

All Pakistan Newspaper Society v. Federation of Pakistan PLD 2012 SC 1 ref.

(b) Constitution of Pakistan---

----Art. 13---Maxim: Nemo debet bis vexari pro una et eadem causa---Protection against double punishment and self-incrimination has been provided under Art.13 of the Constitution, which embodies the provision of the maxim Nemo debet bis vexari pro una et eadem causa.

----Auture fois acquit and auturefois convict---Common law principle of Auture fois acquit (formerly acquitted) and auture fois convict (formerly convict) means that no one should be punished or put in peril twice for the same offence.

Qadir Hussain Khan for Petitioner.

Asif Mangi, Standing Counsel along with Syed Shahid Raza Fatmi, Assistant Director, Pakistan Post on behalf the Director General Pakistan Post, Muhammad Jalil, Superintendent, Pakistan Post and Abdus Salam, Section Officer, Ministry of Interior for Respondents.

Date of hearing: 11th December, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 224 #

P L D 2014 Sindh 224

Before Faisal Arab and Salahuddin Panhwar, JJ

MUHAMMAD MUSTAFA---Petitioner

Versus

Syed AZFAR ALI and 3 others---Respondents

Constitutional Petition No.3213 of 2012, decided on 17th September, 2013.

(a) Limitation---

----'Limitation' and 'laches'---Distinction---In former case delay of each day has to be explained by furnishing sufficient cause for enlargement of time and condonation of delay within the contemplation of section 5 of Limitation Act, 1908, whereas in the latter case lapse of time or question of laches has to be examined on equitable principles.

Jawad Mir Muhammadi v. Haroon Mirza PLD 2007 SC 472 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Limitation and laches---Scope---Such jurisdiction is discretionary and extraordinary which has not been restricted by time factor---Issue of limitation is not attracted in matters involved in constitutional jurisdiction, however question of laches has to be examined but it does not deny grant of right or remedy unless grant of relief in addition to being delayed must also perpetuate injustice to another party.

----Doing of a thing---Principle---Where things have not been done in the manner, as required by law and procedure, the same cannot be given legal sanctity particularly when the same are resulting in penal consequences or causing rights of individual.

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

----O. XII, R.6---Constitution of Pakistan, Art. 199---Constitutional petition---Judgment on admission---Principle---Entitlement of recovery---Proof---Plaintiff filed suit for recovery of damages and it was decreed in his favour on the basis of statement made by defendant---Validity---Even if there was admission, plaintiff was required to prove his entitlement for recovery of claimed amount as damages and the same was prima facie lacking---Trial Court recorded judgment which was a patent mistake on its part and none should suffer for an act or mistake of a court---High Court set aside judgments and decrees passed by Trial Court and Lower Appellate Court and remanded the case to Trial Court for decision afresh after recording of evidence---Petition was allowed accordingly.

Col. Javed Iqbal Lodhi v. Lt. Col. Nadeem Ahmar and others 2007 CLC 831 ref.

Yasin Ali for Petitioner.

Umer Hayat Sandhu for Respondent No.1.

Date of hearing: 17th September, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 230 #

P L D 2014 Sindh 230

Before Nisar Muhammad Shaikh and Shahnawaz Tariq, JJ

Dr. GHULAM ALI ABBASS @ PAPOO KHAN---Petitioner

Versus

PROVINCE OF SINDH through Secretary Local Government and 6 others---Respondents

Constitutional Petition No. D-3206 along with C.Ps. Nos. D-3207, D-3217, D-3291 and D-3321 of 2013, decided on 10th December, 2013.

(a) Interpretation of statutes---

----Amendments in a statutes---Scope---Legislature in its wisdom can bring certain amendments in statute---Such amendments are fully protected unless found to be offensive and inconsistent to Articles of the Constitution.

(b) Sindh Local Government Act ( XLII of 2013)---

----Ss. 11, 18, 138, 141 & 155---Delimitation of Constituencies Act (XXXIV of 1974), Ss. 5, 8 & 9---Sindh Government Notification RO(LG/ Misc/4(18)/2013, dated 26-9-2013---Constitution of Pakistan, Arts.32, 140-A, 142, 199, 218, 219 & 222---Constitutional petition---Delimitation of union councils---Election Commission, jurisdiction of---Petitioners were aggrieved of delimitation of union councils by Sindh Government, prior to Local government elections---Plea raised by petitioners was that Election Commission of Pakistan was the only competent authority to conduct process of delimitation of union councils---Validity---Provincial Government announced delimitation process under Sindh Local Government Act, 2013 and issued notification dated 26-9-2013---Provincial Government also issued Guidelines for Delimitation Authorities, which addressed different aspects of delimitation process and general public was also provided a mechanism to file their objections before Delimitation Officers and another appellate forums in shape of Election Tribunals had been provided for redressal of grievance---Provincial Government had lawful authority to deal with the subject of delimitation of Local Government constituencies particularly when opportunity of inviting objections as well as appellate forum had been provided to aggrieved persons, and the same was also in compliance of the principles of natural justice that no one should be condemned unheard---"To hold election by Election Commission" as envisaged in the Constitution covered process of issuance of notification of election, filing of nomination papers by candidates, examination of validity of candidates as per filed forms according to relevant laws, withdrawal of candidature of candidate, availability of election material and also to ensure all other necessary arrangements to complete entire process of election till announcement of its result---Assignment of delimitation of local government constituencies never fell within the ambit of Election Commission---High Court declined to interfere in the process of delimitation of union councils---Petition was dismissed in circumstances.

Balochistan High Court Bar Association v. Federation of Pakistan and others 2012 SCMR 754; Raja Rabnawaz v. Federation of Pakistan through Secretary Defence and others 2013 SCMR 1629; Ahmad Khan Niazi v. Town Municipal Administration, Lahore through Town Municipal Officer and 2 others PLD 2009 Lah. 657; Workers' Party Pakistan through Akhtar Hussain, Advocate General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681;Surendrasinhaji Jorawarasinji Jhala v. U.M. Bhatta, Chief Electoral Officer, Ahmedabad and others AIR 1969 Gujarat 292; Amirzada Khan, M.N.A. v. Chief Eelction Commissioner and 2 others PLD 1974 Lah. 178; Muhammad Nazir Hakim v. Bakhtiar Said Muhammad and another PLD 1962 (W.P.) Lah. 421; Pre Keval Ram Shahani v. Government of Pakistan through Secretary to Government, Ministry of Justice and Parliamentary Affairs, Islamabad and another PLD 1989 Kar. 129; Election Commission of Pakistan through its Secretary v. Javaid Hashimi and others PLD 1989 SC 396; Altaf Ahmed Asmat v. Sarfraz Hussain and 2 others 1984 CLC 1308; Nadeem Akhtar Khadan Niazi and another v. Zila Council Khanewal through Chairman and 2 others 1999 YLR 685; Salahuddin Dharaj v. Province of Sindh and 4 others PLD 2013 Sindh 236; M.D. Tahir, Advocate v. Chief Secretary, Government of the Punjab, Lahore and another 1995 CLC 1687; Mst. Bilquis Ismail v. Naeemuddin and 3 others PLD 1995 Kar. 552; Mian Mushtaq Hussain Dogar v. Province of Punjab through Chief Secretary, Lahore and 7 others PLD 2006 Lah. 627 and Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109 ref.

Ghulam Murtaza Korai for Petitioner (in C.P.No.D-3206 of 2013)

Ghulam Shabbeer Shar and Sohail Ahmed Khoso for Petitioner (in C.P.No.D-3207 of 2013)

Petitioner in Person (in C.P.No.3217 of 2013)

Ghulam Shabir Dayo and Nisar Ahmed Bhanbhro for Petitioner (in C.P.No.D-3291 of 2013).

Mukesh G. Karara for Respondents Nos. 1 to 4 (in C.P.No.D-3206 of 2013).

Abdul Sattar Bhutto, D.A.G.

Muhammad Iqbal Mahar Standing Counsel along with Muhammad Imran, Election Officer, Sukkur.

Liaquat Ali Shar, Addl. A.-G. assisted by Noor Hassan Malik, State Counsel.

Date of hearing: 12th November, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 248 #

P L D 2014 Sindh 248

Before Ghulam Sarwar Korai and Munib Akhtar, JJ

NIZAMUDDIN---Petitioner

Versus

The STATE---Respondent

Constitutional Petition No.D-514 of 2010 in Criminal Miscellaneous Application No.S-318 of 2009, decided on 19th March, 2010.

(a) Constitution of Pakistan---

----Art. 199(3)---Constitutional petition---Maintainability---No matter what the scope and extent of Art.199 (3) of the Constitution may be, it does not in any case extend to three types of orders, namely those made mala fide, those without jurisdiction and those which are coram non judice.

F.B. Ali v. State PLD 1975 SC 506; Anwar Aziz v. Federation of Pakistan and others PLD 2001 SC 549 and Shahid Zahir Abbasi and others v. President of Pakistan and others PLD 1996 SC 632 rel.

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

----S. 59---Constitution of Pakistan, Art. 8(3)(a)---Civil offences---Law relating to Armed Forces---Scope---Civil offence is not an offence that is peculiar to Armed Forces, it is an offence that can be committed by any person whether civilian or member of Armed Forces---Civil offence is part of ordinary law of land and is not specific to or specially enacted for Armed Forces---Provision of S.59(1) of Pakistan Army Act, 1952, is deeming clause, the object of which is to shift forum of trial of person accused of civil offence from Criminal Courts to a Court Martial---Substantive offence remains the same and it is only the forum (and as applicable, the manner and incidents) of trial that is changed---Civil offence under S.59 of Pakistan Army Act, 1952, does not come within the ambit of Art.8(3)(a) of the Constitution---Civil offences are almost inevitably offences under some statute other than a law relating to Armed Forces and can be committed by a civilian or a member of Armed Forces---Civil offence cannot be a offence that has been enacted for the purpose of either ensuring proper discharge by Armed Forces of their duties or for maintaining discipline among them, and the same are purposes peculiar to Armed Forces---Fundamental rights do not stand excluded in respect of a civil offence even if such offence has been committed by a member of Armed Forces and in particular, is an offence to which S.59 of Pakistan Army Act, 1952, applies.

----S. 59---Criminal Procedure Code (V of 1898), Ss.382-B---Constitution of Pakistan, Arts.9, 25 & 199---Constitutional petition---Civil offence---Pre-conviction period of custody---Scope---Accused was a member of Armed Forces and in Field General Court Martial, he was convicted for civil offence and sentenced to imprisonment, without extending him benefit of pre-conviction period of custody---Validity---Any post conviction imprisonment that did not take pre-conviction period of custody into account would result in an unlawful extension of convict's imprisonment beyond permissible period and would tantamount to deprivation of liberty under Art.9 of the Constitution---Any such detention would be beyond the power or jurisdiction of detaining authority---Matter of civil offences under S.59 of Pakistan Army Act, 1952, was within the scope of principles laid down and reaffirmed by Supreme Court---Pre-conviction period of custody must be taken into consideration while determining total period for which convict was to remain in prison post-conviction---Any failure to do so would be violative of fundamental rights enshrined in Arts.9 & 25 of the Constitution---Convict could be kept in prison only for the period computed in such terms and detaining authority had no jurisdiction or power to detain the convict beyond the period so computed---Application of S.382-B, Cr.P.C. was not excluded in case of civil offences for which accused was tried, had such offences been tried by Criminal Court---Pre-conviction period of custody should be taken into consideration while determining total period that accused was to remain in custody post-conviction---Detaining authority had no power or jurisdiction to continue to detain accused beyond the period so computed---High Court directed Jail authorities to prepare fresh jail roll for accused in which pre-conviction period of custody was to be taken into consideration---Petition was allowed accordingly.

Syed Hashim Ali Shah v. President, Summary Military Court, Karachi and others 1984 PCr.LJ 1379; Muhammad Sharif v. Home Secretary 1986 MLD 1767; Nabi Dad v. Registrar, Court of Appeals, Judge Advocate General's Department PLD 2009 Quetta 27; Haji Abdul Ali v. Haji Bismillah PLD 2005 SC 163; Human Rights Case No.4115 of 2007 PLD 2008 SC 71; Muhammad Rafiq v. State 1995 SCMR 1525, Mukhtar-ud-Din v. State 1997 SCMR 55 and Ghulam Murtaza v. State PLD 1998 SC 152 ref.

Shah Hussain v. The State PLD 2009 SC 260; Qadir v. State PLD 1991 SC 1065 and Javed Iqbal v. State 1998 SCMR 1539 rel.

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

----Ss. 59 & 94---Criminal Procedure Code (V of 1898), S.382-B---Civil offences---Method of adjudication---Pre-trial custody, benefit of---Scope---Provision of S.94, Pakistan Army Act, 1952, discriminatory---Two methods have been provided by S.94 of Pakistan Army Act, 1952, but leaves choice at unfettered discretion of concerned officer---One is by way of a Court Martial and the other by way of a trial before Criminal Court---Benefit of S.382-B, Cr.P.C. is not available in the former, while in the later, it is expressly available---If both routes lead to conviction, the person convicted by way of Court Martial would be at disadvantage as compared to the one convicted by way of an ordinary trial, as the first would not get benefit of any pre-conviction custody while the second one would, though the offence may be exactly the same (and conceivably, even if the two were co-accused in the same crime but tried by two different forums)---Provision of S.94 of Pakistan Army Act, 1952, is discriminatory in circumstances.

Waris Meah v. The State and another PLD 1957 SC 157 rel.

(e) Interpretation of statutes---

----Statute should be interpreted and applied conformably and consistently with fundamental rights and not in a manner that derogates from the same.

Nizamuddin Balouch for Applicant.

Shyam Lal A.P.-G. for the State.

Date of hearing: 25th February, 2010.

PLD 2014 KARACHI HIGH COURT SINDH 264 #

P L D 2014 Sindh 264

Before Nazar Akbar, J

KHURRAM NASEEMUDDIN---Plaintiff

Versus

FEDERATION OF PAKISTAN through Director General FIA Islamabad and 2 others---Defendants

Suit No.836 of 2012, decided on 21st November, 2013.

Specific Relief Act (I of 1877)---

----Ss.42, 54, 56 (d) & (e)---Federal Investigation Agency Act, 1974 (VIII of 1975), S.5---Suit for declaration and injunction---Criminal investigation---Refusal of injunction---Plaintiff assailed notices issued by Federal Investigation Agency (FIA) to Habib Bank Limited in furtherance of inquiry that certain immovable properties of someone had been fraudulently offered by two persons to various banks for obtaining loans against said properties in favour of plaintiff's company---Validity---Defendants were officers of FIA established under Federal Investigation Agency Act, 1974 and were fully competent to inquire into fraud committed by different persons in obtaining loans from banking institutions---One of the defendants was posted in commercial banks' circle and it was within the purview of his duty to inquire into and investigate complaint registered, numbered and marked to him in terms of S.5 of Federal Investigation Agency Act, 1974---Remedy was quashment, if made out and not simple declaration and decree prohibiting public functionaries from performing their duties within the four corners of law---Suit was dismissed in circumstances.

Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others 1999 PCr.LJ 1584; Messrs K.G. Traders and others v. Deputy Collector of Customs and 4 others PLD 1997 Kar. 541; Assistant Director Intelligence and Investigation, Karachi v. Messrs B.R. Herman and others PLD 1992 SC 485; Shahzad Ahmed Corporation v. Federation of Pakistan and others 2005 PTD 23 and 2005 PTD (Trib) 135 distinguished.

Abdul Ghaffar Khan for Plaintiff.

Abdul Sadiq, Standing Counsel along with Sub-Inspector/I.O. Ghazanfar Ali of FIA for Defendants Nos. 1 and 2.

Habib Bank Limited, Defendant No.3 called absent.

Mohamed Wawda for Intervener.

Date of hearing: 21st November, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 268 #

P L D 2014 Sindh 268

Before Muhammad Shafi Siddiqui, J

Dr. SAMRINA HASHMI---Plaintiff

Versus

PAKISTAN MEDICAL ASSOCIATION (CENTRE) through Secretary General and others---Defendants

Suit No.1706 of 2012, decided on 2nd December, 2013.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), 0.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Individual and collective rights---Scope---Plaintiff was member of Pakistan Medical Association, who assailed act of expelling her from membership of the Association---Validity---Right of individual was subservient to the mandate and command of Association and right of individual had to yield to the demands and dictates of an institution---Mechanism and functioning of a body corporate or an association could not be made subservient to alleged rights of individuals, which rights were yet to be determined---Grant of mandatory injunction at such early stage and allowing plaintiff to continue would not be in favour of the Association which aimed higher---Decision on the application for interim injunction would not determine fate of entire case as such findings and observations were only tentative---Application was dismissed in circumstances.

Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others PLD 2013 SC 1; Karachi City Cricket Association, Karachi v. Mujeebur Rahman, Chairman Ad hoc Committee, Pakistan Cricket Board, Lahore and others PLD 2003 Kar. 721; Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Dr. Hafeez Rehman and others v. Pakistan Medical Association Jehlum and others 2013 MLD 651; D.M. Malik v. Jockey Club of Pakistan and others PLD 1960 WP Kar. 325; Tabassum Shahzad v. I.S.I and others 2012 PLC (C.S.) 866; Moharram Ali Shah and another v. Secretary, Ministry of Food and another 1982 SCMR 1166; Muhammad Aslam Mianoor and another v. Messrs Pakistan Cables Ltd. and another 2008 YLR 1536; Muhammad Aslam Miannor and another v. Messrs Pakistan Cables Ltd. and another 2008 YLR 1536; Khawaja Muhammad Saeed's case 1965 W.P. Lah. 92; Abdul Ghaffar Jangda v. Haji Ali Haroon, Muslim Gymkhana and others 2011 YLR 2907; Muhammad Waris and others v. Province of Punjab and others PLD 2003 Lah. 242; Khadim Hussain v. Mst. Mansab Mai and others 2006 SCMR 1142; Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889; Dr. Akhtart Hassan Khan and others v. Federation of Pakistan and others 2012 SMCR 455 and Khursheeda and others v. Haji Qudrutullah and another 1988 CLC 1062 ref.

Akhtar Hussaian along with M. Masaud Ghani for Plaintiff.

Haider Waheed for Defendants Nos. 1, 3, 4 and 5.

Zeeshan Adhi for Defendant No.2.

Dates of hearing: 28th October, 18th and 21st November, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 282 #

P L D 2014 Sindh 282

Before Salahuddin Panhwar, J

AYAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-282 of 2013, decided on 2nd August, 2013.

(a) Sindh Arms Act ( V of 2013)---

---Ss. 2(b), (c), (d) & (h)---"Arms", "firearms" and "ammunition ", definitions of---Categorization of weapons---Separate definitions of "arms", "firearms" and "ammunition" provided in Sindh Arms Act, 2013 showed that they related to different category of weapons---Meaning of "arms" provided in the said Act specifically included rifles, pistols, revolvers, grenades, swords, bayonets and other lethal weapons, while no such weapons had been included in the meaning of "firearms"-Different definitions provided for the words "arms-", "firearms" and "ammunition" left no doubt that intention of legislature was to categorize weapons.

(b) Sindh Arms Act ( V of 2013)---

--S. 2(d)---"Firearms", meaning of---"Riot pistol"--Scope---Word "riot pistol" used in the meaning of "firearms" provided in Sindh Arms Act, 2013 was not be confused with a "pistol" because "riot pistol" (or less lethal launcher) was a type of firearm that was used to fire non-lethal ammunition for purposes of suppressing riots.

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

---S. 497(2)---Sindh Arms Act ( V of 2013 ), Ss.2 & 24---Possessing unlicensed arms-- Bail, grant of---Further inquiry---"Arms", definition of---Scope--"Pistol"---Police allegedly recovered an unlicensed pistol from possession of accused---Unlicensed pistol fell within the definition of "arms" provided in S.2(c) of Sindh Arms Act, 2013---Section 24 of Sindh Arms Act, 2013 provided maximum punishment up to 10 years imprisonment for possessing arms or ammunition, licensed or unlicensed, with the aim to use them for any unlawful purpose, therefore, alleged offence did not fall within the prohibitory clause of S.497(1), Cr. P.C---Trial Court had to decide whether accused, if found guilty, would be liable to the maximum punishment provided under S.24 of Sindh Arms Act, 2013, and such fact made the case one of further inquiry---Record was also silent as to whether accused was a habitual or previous convict---All witnesses were police officials---Accused was no more required for further investigation, and case was pending before Trial Court for adjudication of guilt, therefore, there was no likelihood of accused tampering with prosecution case---Accused was released on bail accordingly.

Muhammad Saleem GN Jessar for Applicant.

Naimatullah Bhurgri, State Counsel.

PLD 2014 KARACHI HIGH COURT SINDH 287 #

P L D 2014 Sindh 287

Before Nadeem Akhtar, J

ALTAF HUSSAIN---Applicant

Versus

The STATE and another---Opponents

Criminal Transfer Application No.S-67 of 2013, decided on 24th February, 2014.

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

----S. 526---Transfer of case---Grounds---Strong and cogent reasons---Case to be transferred only in exceptional circumstances---Mere unsubstantiated allegations against the court---Effect---Accused sought transfer of his criminal appeal to any other court on the grounds that Appellate Court asked him. in open court to oblige the complainant by paying him the amount of Daman, or else his appeal would , be dismissed; that Appellate Court was under the influence of the complainant, who was an advocate---Validity---Said grounds were without force---Accused had not placed any material on record that might indicate that the Appellate Court had acted in a partial or biased manner in proceeding with the appeal---No material, procedural or other irregularity had been pointed out by the accused to show that the case was not being proceeded with in accordance with law---Allegations made by accused against the Appellate Court were mere allegations without any basis or cogent reasons---High Court observed that in case a transfer application containing allegations against the Presiding Judge was allowed, it would impliedly mean that such allegations against the Judge had been deemed to be correct; that such a situation would certainly lower the image, dignity anal honour of judiciary in the eyes of public at large; that because of such reason withdrawal or transfer of a case from the court proceeding therewith was allowed only in exceptional circumstances where the grounds urged in support of withdrawal or transfer were supported by strong cogent reasons and evidence; that if such practice was not followed strictly, the parties were likely to take undue advantage by filing applications for transfer of their cases on flimsy, frivolous and baseless grounds--- Application for transfer of case was dismissed in circumstances.

Bakhtawar v. Muhammad Ali and 3 othei+s 1982 PCr.LJ 136 distinguished.

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

---S. 526---Transfer of case---Grounds---Strong and cogent reasons---Case should not be transferred from the court of competent jurisdiction unless allegations/grounds seeking transfer of the case were supported by strong cogent reasons or convincing evidence---While considering a transfer application, it must be kept in mind that the parties should not be allowed to pick and choose the court of their own choice or liking.

Rana Muhammad Siddique Khan for Applicant.

Shahid Ahmed Shaikh APG for the State.

PLD 2014 KARACHI HIGH COURT SINDH 290 #

P L D 2014 Sindh 290

Before Sadiq Hussain Bhatti, J

MUHAMMAD NASEEM AHMAD---Appellant

Versus

Mst. SHAMA KHATOON and another---Respondents

Miscellaneous Application No.23 of 2011, decided on 9th December, 2013.

(a) Succession---

---- "Tarka "---Meaning and scope of "Tarka "--- "Tarka" had beendefined as "maal" (property) which not only included "property" but also "right to property"---Right to property meant a property which was due to the deceased from any other person, _ and which though not received by the deceased during his life time, but the deceased was legally entitled to raise a claim in respect of the same in his lifetime---"Tarka", thus, included all movable and immovable properties owned and possessed by the deceased at the time of his death, as well as those sums which were due to the deceased from any other person.

PLD 1991 SC 731 rel.

(b) Succession Act (XXXIX of 1925)

----Ss. 192, 372 & 384---Central Employees Benevolent Fund and Group Insurance Act (II of 1969) S.2(5)---Properties forming part of deceased's "Tarka "--- "Family ", scope of---Recovery of final "service dues "---Benevolent fund and group insurance---Widow of deceased filed application for issuance of succession certificate in her favour, in respect of final "service dues" of the deceased---Contention of the appellant was that the applicant/widow had not disclosed all legal heirs of the deceased in her application, as the deceased was survived by a wife and daughters, therefore, his brothers and sisters were also legal heirs---Validity---Amounts claimed by the wife in the Succession Application were basically death benefits of the deceased, which he could not claim during his lifetime, and thus the same did not form part of his "Tarka ", and therefore, the same were not divisible among all legal heirs of the deceased-Amount in question, was therefore not inheritable by all his legal heirs, and was to be paid to the family of the deceased for their sustenance and maintenance---Case of the appellant was not that either he or any brothers/sisters of the deceased were residing with the deceased or were wholly dependent on him, therefore, they did not come within the ambit of definition of "family" given under S.2(5) of the Central Employees Benevolent Fund and Group Insurance Act, 1969---Appeal was dismissed, in circumstances.

PLD 1991 SC 731 rel.

Javed Iqbal Ghaznavi's case PLD 2010 Kar. 153 distinguished.

Shakir Hussain for Appellant.

Syed Amir Azam for Respondent No.1. Nemo for Respondent No.2.

Date of hearing: 18th November, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 295 #

P L D 2014 Sindh 295

Before Syed Muhammad Farooq Shah, J

Mrs. SHABANA ANJUM---Petitioner

Versus

MUHAMMAD GULZAR and 2 others---Respondents

Constitutional Petition No.S-378 of 2009, decided on 15th January, 2014.

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

----Ss. 2(g) & 13---Constitution of Pakistan, Art.199---Constitutional petition---Eviction of tenant (petitioner)---Personal bona fide need of the landlord (respondent)---Selection of tenement for personal need of landlord---Scope---Choice lies with the landlord to select any tenement - for his personal need and for this purpose the tenant or the court had no locus standi to give 'their advice for alternate accommodation--Suitability of business and selection of area was choice of landlord and the same could not be interfered with---Impugned order of eviction passed against the tenant was upheld and Constitutional petition was dismissed.

Pakistan Institute of International Affairs v. Naveed Merchant

2012 SCMR 1498; Saira Bibi v. Syed Anees ur Rehman 1989 SCMR 1366; Jehangir Rustum Kakalia v. Hashwani Sales Services 2002 SCMR 241; Iqbal Book Depot v. Khatib Ahmed 2001 SCMR 1197 and F.K. Irani v. Begum Feroz 1996 SCMR 1178 rel.

2011 SCMR 1306; 1992 SCMR 707; 2012 MLD 39; 2013 YLR 1584; 1985 CLC 256; 1985 SCMR 893; 1999 MLD 2132; 1996 MLD 821; NLR 1980 Civil Lah. 509; 2000 CLC 1997; 1976 SCMR 79; 2009 MLD 7; 2000 SCMR 1197; 2000 SCMR 953; PLD 2004 Kar. 203; PLD 2007 Kar. 50; 2007 CLC 535; Pakistan Institute of International Affairs v. Naveed Merchant 2012 SCMR 1498 and Saira Bibi v. Syed Anees ur Rehman 1989 SCMR 1366 ref.

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

----Ss. 13, 14, 15, 19 & 21---General Clauses Act (X of 1897), S.27---Constitution of Pakistan, Art.199---Constitutional petition---Eviction of tenant (petitioner's husband)---Service of notice on the demised premises-Non-filing of written statement---Ex parte order---Locus standi of petitioner (tenant's wife) to contest ejectment proceedings---Scope---On admission of rent/ejectment application, notices were issued to tenant, which was duly served on the demised premises, thereafter on failure to file written statement, ex parte ejectment order was passed---Contention of the petitioner/wife of tenant was that her husband/tenant was confined in jail abroad, therefore the service had not been effected properly---Validity---Landlord was not responsible to locate or to find out the address of the tenant, where he was serving or allegedly confined---Service of notice to the tenant on the address of demised premises through his family members was the sufficient proof of valid service---Petitioner being wife of the tenant was having no locus standi, authority or right to contest the proceedings on behalf of her husband/tenant---Constitutional petition was dismissed.

Shamshad Ali Qureshi for Petitioner.

Mirz,ad Sarfaraz Ahmed for Respondent No.1. Date of hearing 21st November, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 302 #

P L D 2014 Sindh 302

Before Munib Akhtar and Mrs. Ashraf Jahan, JJ

MUHAMMAD USMAN and another---Petitioners

Versus

MUHAMMAD NASEEM and 7 others---Respondents

C.Ps. Nos.D-103, D-224 and D-9 of 2011, decided on 25th November, 2013.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Factual controversy--Misappropriation of funds---Petitioners were members of respondent Cooperative Housing Society who had levelled serious allegations of misappropriation of funds against office bearers and sought initiation of action against such office bearers---Validity---High Court in exercise of its constitutional jurisdiction could not ordinarily embark upon an exercise to determine intricate, contested and complicated questions of fact---Resolution of such factual disputes had to take place through ordinary legal process---Such extraordinary jurisdiction was primarily meant for providing expeditious remedy in a case when illegality of action of an executive or other authority could be established without any elaborate inquiry into complicated or disputed facts---To probe into serious allegations of alleged misappropriation of millions of rupees and plots, detailed investigation/evidence was required, which could not be undertaken by High Court while sitting in exercise of constitutional jurisdiction---Proper remedy for petitioners was to pursue pending litigation or to approach appropriate courts for redressal of their grievances---Petition was dismissed in circumstances.

Petitioners in person.

Ansar Ahmed for Respondent.

Rizwan Nadeem for Respondents.

Saifullah A.A.G.

PLD 2014 KARACHI HIGH COURT SINDH 306 #

P L D 2014 Sindh 306

Before Zafar Ahmed Rajput, J

GHOUS BAKHSH---Applicant

Versus

Syed ALI NAWAZ SHAH and 8 others---Respondents

Civil Revision No.149 of 2011, decided on 9th December, 2013.

Civil Procedure Code (V of 1908)-

--O. XX, Rr. 4 & 5---Qanun-e-Shahadat (10 of 1984), Art.117---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Suit for recovery of possession, declaration and injunction---Judgment, necessary ingredients---Onus to prove---Issue-wise findings were not given by Trial Court and Lower Appellate Court in judgments passed in favour of plaintiffs---Validity---Judgment should contain (i) concise statement of case, (ii) point for determination i.e. issues, (iii) decision or finding of Court issue-wise, if issues were not inter-linked, and (iv) reasons for decision---Judgment should not only state findings of court but also evidence and how it supported the findings---Incumbent upon Trial Court, where issues had been framed and evidence was recorded, to give a reasoned judgment even though it might be an ex park judgment---Trial Court acted with material irregularity and illegality if it had given no reasons for its decision with regard to issue/point for determination---No provision of law had authorized Trial Court to decree a suit without scanning, analyzing, evaluating and recording in its judgment oral and documentary evidence adduced by parties---Suit of plaintiffs could not have been decreed merely assigning reason that defendant did not cross-examine plaintiff or his witnesses or he did not adduce evidence---Onus to prove a fact, under Art.117 of Qanun-e-Shahadat, 1984, was on the shoulders of a person who raised the same and not on the opposite party---Party approaching court for grant of relief was to discharge his own burden and was to stand on his own legs to succeed and party so approaching the court could not avail benefit of weakness in case of opposite party---Judgments of both the courts below were unjust and could not be called "decision upon the rights of parties" in the manners provided by law and were based on material irregularity in exercise of jurisdiction by courts below---High Court set aside judgments and decrees passed by two courts below and remanded the matter to Trial Court to pass de novo judgment and decree by stating findings with reasons upon issues framed by Trial Court---Revision was allowed accordingly.

Haji Abdul Jalil v. Anjuman Jama Masjid Haquani 1996 MLD

818; Masood-ul-Hasan Khan v. Iftikhar Ali and 3 others 2011 MLD 1792; Iftikhar-ud-Din Haider Gardezi and 9 others v. Central Bank of India and 2 others 1996 SCMR 669; Allahyar and others v. 'nand and others 2010 CLC 1931; Juma Khan v. Shamim 1992 CLC 1022 and Muhammad Tufail v. Fauji Fertilizer Co. Ltd. 2000 CLC 1838 ref.

Abdul Naeem for Applicant.

Abdul Sattar Soomro for Respondents.

Date of hearing: 9th December, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 312 #

P L D 2014 Sindh 312

Before Syed Hasan Azhar Rizvi and Muhammad Junaid Ghaffar, JJ

FEDERATION OF PAKISTAN through Secretary Revenue/Chairman and another---Appellants

Versus

Messrs NAYA DAUR MOTOR (PVT) LTD. and 3 others---Respondents

H.C.A. No.127 of 2009, decided on 23rd January, 2014.

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

----O, XXXIV, Rr.12 & 13---Sale of mortgage property---Government dues, payment of---Principle---When sale is being carried out by court in respect of a mortgaged property under O. XXXIV, C.P.C., there is no concept of any priority of government dues to be paid out of sale proceeds.

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

----S. 73, O.XXXIV, Rr.12 & 13---Customs Act (IV of 1969), Ss.201 & 202---Law Reforms Ordinance (XII of 1972), S. 3---Intra Court Appeal---Sale of mortgaged property---Government dues---Preferential right---Property in question was mortgaged property and was sold by Official Assignee under the direction of Executing Court to satisfy decree passed in favour of financial institutions---Plea raised by Customs Authorities was that in sale proceeds government dues had preferential right of clearance---Validity---Though amount was determined against judgment debtor company by way of Order in Original dated 15-2-2000 passed by Customs Authorities but even such determination had been done by the authorities after almost 8 years of issuance of show cause notice dated 14-9-1992; in between such period, Custom Authorities did not make any effort to approach High Court and not even after passing of Order-in-Original in the year, 2000---Customs Authorities approached High Court with application under S.73, C.P.C. only in 2005---Determination of any such amount by government department, which was not directly against or in respect of property being sold by court, the same could only be given a priority if such determination was made prior to mortgage or creation of charge in respect of such property of defaulter and not otherwise---Mortgage/charge was created in year, 1987, in favour of financial institutions, whereas even if Order-in-Original dated 15-2-2000, were to be taken as crucial date, the same had been passed much after the date of mortgage of the property---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court declining clearance of government dues from sale proceeds---Intra Court Appeal was dismissed in circumstances.

Industrial Development of Pakistan, Karachi v. Vinder Textile Mills Limited 2006 PTD 2132; State Life Insurance Corporation of Pakistan v. Hussain Mumtaz 2006 CLC 415; Industrial Development of Pakistan, Karachi v. Maida Limited v. Ali Gul Khan Packages Limited), 1989 CLC 1774; Builders Supply Corporation v. The Union of India and others) AIR 1965 SC 1061; Union of India v. Messrs Somasundaram Mills (P) Limited AIR 1985 SC 407; United Bank Limited v. Shaikh Rayon Mills Limited 2002 CLD 696; State Life Insurance Corporation of Pakistan v. Hussain Mumtaz 2006 CLC 415; Kushi Muhammad v. The Province of Punjab 1999 SCMR 1633; N.D.F.C. v. Anwar Zaib White Cement Limited 1999 MLD 1888; Mst. Khalida v. Muhammad Khurshid Khan 2008 CLC 1570; Zarai Taraqiati Bank Limited v. Mushtaq Ahmed Korai 2007 SCMR 1698; Muhammad Akbar v. Muhammad Anwar 2011 SCMR 753; Mohib Textile Mills Limited v. National Bank of Pakistan and others 2005 SCMR 1237; Anwar Ali and Others v. Manzoor Hussain and others 1996 SCMR 1770 and (Mushtaq Ahmed v. Muhammad Saeed) 2004 SCMR 530 ref.

Industrial Development of Pakistan, Karachi v. Maida Limited 1994 SCMR 2248; and Mst. Shanti v. Karachi Transport Corporation 2000 CLC 595 distinguished.

H.C.A. No.85 of 1997 and Habib Bank Ltd. v. Messrs Rudolf Donhill 1999 PTD 2940 rel.

Muhammad Sarfaraz Ali, Metlo for Appellants.

Nabeel Kolachi for Respondents Nos. 3 and 4

Qadir Bux Umrani Official Assignee.

Date of hearing: 5th November, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 327 #

P L D 2014 Sindh 327

Before Nazar Akbar, J

HUMAIR ASSOCIATES BUILDERS (PVT) LTD. through Authorized Attorney---Plaintiff

Versus

Messrs CHAPPAL BUILDERS and 9 others---Defendants

Civil Suit No.443 of 2007 and C.M.As. Nos. 11847, 9340, 11846 of 2011; 1235 of 2009, 793 and 9107 of 2008 and 2929 of 2007, decided on 6th November, 2013.

Sindh Chief Court Rules (O.S.)---

----R.14---Civil Procedure Code (V of 1908), S. 151---Inherent powers of High Court---Miscellaneous applications---Maintainability---High Court directed the office to be cautious while receiving applications under 5.151, C.P.C., in pending cases; it was also imperative for court to be vigilant and very careful in exercising inherent jurisdiction under S.151., lest it should not be "advancing" instead of "preventing" abuse of process of court---Office while referring miscellaneous applications to Judges in terms of second proviso to R.14 of Sindh Chief Court Rules (O.S.) was directed to ensure scrutiny of each and every application under S.151, C.P.C. filed in any civil suit before placing the same in court for order/hearing---High Court directed the office to examine/scrutinize such applications bearing in mind amongst. other at the queries to the effect that as to whether applicant who had involved provision of S.151, C. P. C. was already a party in proceedings or not; that whether prayer in application was relevant to issues between parties and was directed against adverse party in the lis or not and that whether inherent powers sought to be invoked were with respect to the procedural matters or it would affected substantive rights of either party.

Collector of Central Excise and Sales Tax v. Pakistan Fertilizer Company Limited 2007 SCMR 351 ref.

Abdul Jabbar holding brief for Syed Zaki Muhammad for Plaintiff.

Abdul Wajid Wyne and Syed Masroor Ahmed Alvi for Defendants Nos. 1 to 3.

Irfan Hassan for Defendant No.7.

Ms. Naheed Naz for Advocate-General Sindh for Defendants Nos. 8 to 10.

PLD 2014 KARACHI HIGH COURT SINDH 334 #

P L D 2014 Sindh 334

Before Sajjad Ali Shah and Salahuddin Panhwar, JJ

Syed ADNAN RASHEED and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Director-General, NAB, Sindh---Respondents

Constitutional Petitions Nos. 3161, 3162 and D-3177 of 2013, decided on 6th February, 2014.

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

----S. 18(a) & (g)---Cognizance of offence---Appraising of material by Chairman, NAB---Safeguards for accused---Scope---Responsibility has been placed on the highest office of National Accountability Bureau i.e. Chairman or his delegatee to scrutinize investigation before filing same in court---Law has further provided another measure in terms of S.18(a) of National Accountability Ordinance, 1999, by preventing Courts from taking cognizance of offence unless reference is made by ChairmanNationalAccountabilityBureauhimselforhis delegatee.

(b) Interpretation of statutes---

----Procedure laid down in a statute which provide for stringent punishments must be construed strictly.

Muhammad Imran v. The State 2011 SCMR 1954rel.

----S. 18(a) & (g)---Delegation of power---Absence of Chairman---Effect---Accused contended that due to non-availability of Chairman National Accountability Bureau, reference filed by his delegatee was illegal---Validity---Once Chairman National Accountability Bureau delegated specified authority in terms of S.18(a) or 18(g) of National Accountability Ordinance, 1999, upon his subordinate officers, then change of person holding position of Chairman National Accountability Bureau or the officer upon whom such authority was delegated (if by designation) did not matter---Authority so conferred under S.18(a) or 18(g) of National Accountability Ordinance, 1999, by Chairman National Accountability Bureau upon his subordinate would continue till such delegation was expressly revoked---As such delegated authority was exercised by delegatee/subordinate officer in the name of and on behalf of Chairman National Accountability Bureau, therefore, delegatee/subordinate officer could only exercise such authority during the period when Chairman National Accountability Bureau was in office though he might be absent or unable to perform function of his office due to any reason whatsoever---Once office of Chairman National Accountability Bureau fell vacant then delegation would remain in abeyance till new Chairman was appointed to the office in whose name such delegated authority was to be exercised unless expressly revoked---Such was because of the fact that delegatee exercised the power in the name of delegator and once the office of delegator fell vacant there was none in whose name the delegatee could exercise such powers---Defect in reference stood cured upon resumption of office by Chairman National Accountability Bureau---Accused did not challenge authority of the office filing reference before Accountability Court nor till date challenged the order whereby cognizance was taken---High Court declined to quash reference---Petition was dismissed accordingly.

Ch. Nisar Ali Khan v. Federation of Pakistan PLD 2013 SC 568; Bank of Punjab v. Haris Steel PLD 2010 SC 1109; Haji Kabir Khan v. The State 2003 YLR 1607; The State v. Fazal Ahmed and others 2014 PCr.LJ 758 and Ghulam Shabbir v. The State, Const. Petition No.D-2898 of 2001 ref.

Khawaja Shams-ul-Islam for Petitioners (in C.P.No.D-3161 of 2013).

Noor Muhammad Dayo, ADPG for Respondents (in C.P.No.D-3161 of 2013).

Dilawar Hussain, Standing Counsel for Federation of Pakistan (in C.P.No.D-3161 of 2013).

Khawaja Shams-ul-Islam for Petitioners (in C.P.No.D-3162 of 2013).

Noor Muhammad Dayo, ADPG for Respondents (in C.P.No.D-3162 of 2013).

Dilawar Hussain, Standing Counsel for Federation of Pakistan (in C.P.No.D-3162 of 2013).

Habibullah Khan and Khawaja Shams-ul-Islam for Petitioners (in C.P.No.D-3177 of 2013).

NoorMuhammadDayo, ADPG for Respondents (in C.P. No.D-3177 of 2013).

Dilawar Hussain, Standing Counsel for Federation of Pakistan (in C.P.No.D-3177 of 2013).

Date of hearing: 19th December, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 341 #

P L D 2014 Sindh 341

Before Nazar Akbar, J

Mst. SHABANA ANWAR---Petitioner

Versus

PROVINCE OF SINDH through Home Department Sindh and 3 others---Respondents

Constitutional Petition No.S-354 of 2014, decided on 24th March, 2014.

(a) Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), S. 302---Constitutional petition---Qatl-e-amd---Pre-arrest bail, grant of---Female accused with children---Accused-petitioner was alleged to have been involved in the murder of her husband---Accused was a woman with three children and she herself attended the funeral of her deceased-husband---Prosecution was hesitant in arresting the accused and till date police had made no serious efforts to arrest her--- Police had no explanation for its failure to arrest the accused, who was nominated in a murder case---Accused was admitted to pre-arrest bail in circumstances with the direction that she should cooperate with the police in investigation---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), S.302---Constitutional petition---Crime scene/place of murder---Accused was given access to crime scene to remove personal belongings---Accused-petitioner was alleged to have been involved in the murder of her husband---Murder allegedly took place at the house where accused and her husband resided---Accused was granted post-arrest bail and her plea was that house in question had been locked by her in-laws; that she needed access to the said house to get access to her and her children's belongings---Validity---High Court directed that investigating officer should give free access to the accused in his presence; that accused was allowed to visit the house in presence of investigating officer so that she may recover/remove her belongings and those of her children without disturbing the crime scene; that investigating officer should ensure that belongings of accused and her children, which were not needed for investigation should be allowed to be taken away by the accused; that investigating officer should make diary of the entry of accused into the premises and make inventory of anything she removed from the crime scene---Constitutional petition was disposed of accordingly.

Nasrullah Malik along with Petitioner.

Umar Awan along with Respondnet No.4.

Sharafuddin Mangi State Counsel along with S.I. Abdul Sattar Chohan, P.S. Nazimabad and S.I. Raja Gul Tabriaz, P.S. Pak Colony.

PLD 2014 KARACHI HIGH COURT SINDH 344 #

P L D 2014 Sindh 344

Before Nazar Akbar, J

Mst. HAMRA AHSAN---Plaintiff

Versus

Messrs KARACHI ELECTRIC SUPPLY CO. through C.E.O.---Defendant

Suit No.684 of 2013, C.M.As.No.2414 of 2014 and C.M.As. Nos.13731, 13654, 13653, 6479, 6480 and 6717 of 2013, decided on 7th March, 2014.

(a) Constitution of Pakistan---

----Art. 9---Security of person---Electric supply---Basic necessity of life---Denial of electricity connection---Scope---Policy Manual of electric supply company (KESC) for dealing with its customers provided only a broad outline to be followed by staff in day to day affairs, the same should be interpreted to facilitate customers and not to use as a tool for delaying in providing a necessity of life---Common citizens could not be deprived of basic necessity of life even for one day on the pretext of strict compliance of policy manual---Denial of electric power to the citizens might amount to infringement of right to life guaranteed under Art. 9 of the Constitution---Electric supply company (KESC) was directed to install electric meter at the suit premises during pendency of suit.

Erum Heights Welfare Association v. KESC and others 2001 CLC 321 rel.

Naveed Ahmed for Plaintiff.

Umer Lakhani for Defendant.

PLD 2014 KARACHI HIGH COURT SINDH 349 #

P L D 2014 Sindh 349

Before Munib Akhtar, J

ABDULLAH---Plaintiff

Versus

Messrs CNAN GROUP SPA through Chief Executive/Managing Director and another---Defendants

Suit No.561 of 2013, decided on 15th April, 2014.

(a) Interpretation of Treaties/Conventions---

----Principles---National Courts should strive for uniformity in the interpretation of treaties/Conventions; and therefore the case-law developed in other jurisdictions can and ought to be taken into consideration by courts of the States party to such treaties

Deep Vein Thrombosis and Air Travel Group Litigation (8 actions) (formerly 24 actions) [2005] UKHL 72, [2006] 1 All ER 786 at page 55 rel.

(b) Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 ("New York Convention")---

----Art. V--- Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII 2011) Ss. 6 & 8---Pro-enforcement bias of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 ("New York Convention")---Design of the Convention to facilitate speedy enforcement of awards made in Convention counties in other States party to it---Examination of jurisprudence and case-law.

Lombard-Knight and another v. Rainstorm Pictures Inc [2014] EWCA Civ 356; http://www.arbitration-icca.org/publications/NYC-Guide.html; IMC Aviation Solutions Pty Ltd. v. Altain Khuder LLC [2011] VSCA 248 and Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co. 284 F.3d 1114 (US Couirt of Appeals, 9th Cir, 2002) XXVII YCA 922 (2002) rel.

----Ss. 7 & 4---Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 ("New York Convention"), Art.V---Ability of award-debtor under the New York Convention to obtain a preventive declaratory judgment against the same in the National Court---Examination of case-law and jurisprudence from various foreign jurisdictions.

Acteurs Auteurs Auteurs Associes v. Hemdale Film Corporation XVI YCA 543 (1991); Mary D. Slaney v. International Amateur Athletic Federation 244 F.3d 580 (2001), XXVI YCA 1091 (2001); Lanificio Mario Zegna SpA v. Ermenegildo Zegna Corporation and another XXXI YCA 798 (2006); Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention by Herbert Kronke, et. Al. (2010) ("Kronke") and New York Convention: Commentary by Dr. Reinmar Wolff (ed), 2012 ("Wolff") rel.

(d) Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011)---

----Ss. 7 , 4 & 8---Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 ("New York Convention"), Art. V---Specific Relief Act (I of 1877) S.42---Interpretation of S.7 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act 2011 and Art. V of the New York Convention---Unenforceable foreign arbitral awards---Question before the High Court was whether a suit for declaration and injunctive relief could be brought against recognition and/or enforcement of an arbitral award made under the New York Convention---Held, that suit, if at all could be brought by an award-debtor for a preventive declaratory judgment, he must show that ground(s) taken by him came within the scope of Art.V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 ("New York Convention")---Although Art.V of the New York Convention dealt expressly only with the cases where arbitration agreement was not valid, the consistent international practice showed that there was no doubt that it also covered a case where a party claimed that the agreement was not binding on it because that part was never a party to the arbitration agreement---As a general principle a suit whereby plaintiff as award-debtor sought declaratory and injunctive relief against a Convention Award, ought to be regarded as maintainable but whether it could, in law, actually be instituted depended on the exact terms of the law in force for the time being in the lex fori, i.e Pakistan---Words used in the first paragraph of Art.V of the New York Convention, are that the "award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought" which words were not used the second paragraph of the said Art.V of the Convention; therefore for paragraph one to apply, two antecedent conditions must be met, that the award must have been invoked against the award-debtor, and that the relevant ground must be shown to exist to the competent authority (the High Court), where the recognition and enforcement was sought---Said conditions clearly contemplated the objection(s) being taken in an action brought by the award-creditor for the recognition and enforcement of the Award and not otherwise---Since S.7 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 provided that refusal must be "in accordance with" Art.V of the Convention, which indicated that any action in which the question of a refusal to recognize or enforce a Convention Award was raised must conform both substantively and procedurally with requirements of Art.V; which meant that a ground taken in paragraph one of the Art.V of the Convention could only be taken in enforcement proceedings brought by the award creditor and not otherwise---Actions initiated by the award-debtor was precluded in such a situation, on account of language used in S.7 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 read with paragraph one of the Art.V of the New York Convention---Insofar as paragraph one of the Art.V of the Convention was concerned, S. 7 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 operated only as a shield, and could not be used a sword.

Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46, [2011] 1 All ER 485, [2010] 3 WLR 1472 ("Dallah"); Acteurs Autenurs Associes v. Hemdale Film Corporation XVI YCA 543 (1991); Mary D. Slaney v. International Amateur Athletic Federation 244 F.3d 580 (2001), XXVI YCA 1091 (2001); Lanificio Mario Zegna SpA v. Ermenegildo Zegna Corporation and another XXXI YCA 798 (2006); Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention by Herbert Kronke, et. Al. (2010) ("Kronke") and New York Convention: Commentary by Dr. Reinmar Wolff (ed), 2012 ("Wolff") rel.

XXXVI YCA 590 (2011); First Options of Chicago Inc. v. Kaplan (1985) 514 US 938; Indowind Energy Ltd. v. Wescase (I) Ltd. and another AIR 2010 SC 1793; International Research Corp. PLC v. Lufthansa Systems Asia Pacific Pte. Ltd. [2013] SGCA 55; Sarhank Group v. Oracle Corporation Ltd. 404 F.3d 657 (US Court of Appeals, 2nd Cir, 2005 and Dardana Limited v. Yukos Oil Company [2002] 2 Lloyd's Rep. 326 distinguished.

Agha Zafar Ahmed for Plaintiff.

Mansoor A. Shaikh for Defendant No.2.

Date of hearing: 5th December, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 364 #

P L D 2014 Sindh 364

Before Sajjad Ali Shah and Naimatullah Phulpoto, JJ

IRFAN QADRI---Applicant

Versus

ANTI-TERRORISM COURT NO.II, KARACHI and another---Respondents

Criminal Revision Application No.D-177 of 2013, decided on 27th February, 2014.

Criminal Procedure Code (V of 1898)---

----S. 540---Recalling prosecution witnesses for further cross-examination---Re-examination of witness could be ordered to rectify an obvious mistake or omission for arriving at a just decision in the matter---Applicant/accused, had failed to satisfy the court about the existence of circumstances to justify further cross-examination of the witnesses---Witnesses could only be recalled for examination in exceptional and in rare cases, where interest of justice so demanded, but in the present case, prosecution witnesses had been cross-examined at length---Case was almost complete---Accused yet had an opportunity to produce the agreement in the statement of accused recorded under S.342, Cr.P.C., if desired so---Accused must have come up before the court with cogent reasons as to why defence counsel could not cross-examine said witnesses on any material point at the relevant time---Counsel for accused was obliged to make out a case that he could not cross-examine named witnesses for any reason beyond his control---No prosecution witness could be summoned for further cross-examination, merely to fill in the lacuna by any party---If request of the counsel was allowed as a routine matter, that would tantamount to opening of the flood gates, without any end---No sufficient ground had been shown to recall witnesses for further cross-examination---No illegality in the impugned order had been pointed out, revision application filed by accused being without merit, was dismissed, in circumstances.

Khadim Hussain, D.P.G.

PLD 2014 KARACHI HIGH COURT SINDH 367 #

P L D 2014 Sindh 367

Before Nisar Muhammad Shaikh and Salahuddin Panhwar, JJ

MUHAMMAD ISMAIL and others---Petitioners

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE) and others---Respondents

Constitutional Petition No.D-4 of 2011, decided on 17th November, 2013.

(a) Constitution of Pakistan---

----Art. 199(a)(i) & (ii)---Constitutional petition---Writ of prohibition and certiorari---Distinction---Object, purpose and scope---Constitution itself has vested the High Court with jurisdiction to declare legal status of act done or proceedings taken by such person---Subject to limitations explained by Constitution itself, act done or proceedings taken by such person can well be examined by High Court within the meaning of Art.199 of the Constitution---Writ of prohibition is an order directing an inferior tribunal or authority to refrain from continuing with a proceedings therein, on the ground that proceeding is without or is in excess of jurisdiction or contrary to the laws of land and proceedings may be without jurisdiction if they contravene some enactment or some principle of common law---Writ of prohibition lies on such ground during pending proceedings, while writ of certiorari comes into play when tribunal or authority has passed or done the act---Certiorari and prohibition are based on the same principle but the former can issue before the act is done while the latter is used to vacate the act after it is done.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Additional charge---Scope---Cancellation of grant---Petitioners sought cancellation of grant of land in question made in favour of respondent but District Officer (Revenue) having additional charge of Executive District Officer (Revenue) dismissed the application filed by petitioners---Validity---Mere holding of the office of Executive District Officer (Revenue) by District Officer (Revenue), in no way, could change the legal position that Executive District Officer (Revenue) was the appellate authority of District Officer (Revenue)---Order in question had been passed in the capacity of Executive District Officer (Revenue) though the matter was never pending adjudication before Executive District Officer (Revenue) but was pending before District Officer (Revenue)---Order passed against petitioners was nothing but coram non judice and of no legal consequences---One could competently hold two offices, if law had so permitted, yet the authority could not be used such dual capacity to frustrate the law or to take away the right of aggrieved party to approach higher forum which otherwise was a legally created course---High Court set aside the order in question and remanded the matter for decision afresh---Petition was allowed accordingly.

Mst. Ghulam Sakina v. Member (J) Board of Revenue Hyderabad and 4 others PLD 2004 Kar. 391; Bashir Ahmed and others v. M(colonies) B R and others 2008 SCMR 1208; Imam Baksh v. The Collector and others 1982 SCMR 149; Barkat Ali and others v. Bashir Ahmed and others PLD 1980 SC 189; Muhammad Yousif Khan Bugti and others v. Province of Sindh through Senior Member Board of Revenue and 5 others 2013 CLC 1155; Independent Music Group, SMC (Pvt.) v. Federation of Pakistan PLD 2011 Kar. 2494 and Corruption in Hajj Arrangements in 2010, PLD 2011 SC 963 ref.

Muhammad Hashim Bajeer for Petitioners.

Ayaz Hussain Tunio for Respondent No.6.

Allah Bachayo Soomro, Addl.A.G. along with Aijaz Ali Bozdar, Mukhtiarkar Taluka Jhando Mari.

Date of hearing: 6th August, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 374 #

P L D 2014 Sindh 374

Before Nadeem Akhtar and Shahnawaz Tariq, JJ

MUHAMMAD YOUSUF---Petitioner

Versus

Haji FAIZ MUHAMMAD and others---Respondents

Constitutional Petition No.D-1061 of 2010, decided on 13th March, 2014.

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

----S. 12(2)---Constitution of Pakistan, Art.199---Constitutional petition---Compromise decree, setting aside of---Ingredients---Fraud and misrepresentation---Scope---Contention of applicant was that respondents had not complied with the terms and conditions of compromise decree---Application filed under S.12(2), C.P.C. was dismissed concurrently---Validity---Parties had settled their dispute outside the court and entered into compromise and suit was decreed by way of compromise---Applicant had failed to establish any fraud or misrepresentation committed by the respondents upon the court---Section 12(2), C.P.C. had been introduced for adequate remedy to the aggrieved party if order or judgment was obtained by way of committing fraud or misrepresentation of facts---Applicant had not alleged any factum of fraud or misrepresentation while passing of impugned decree by the Trial Court---Applicant had adopted wrong path to achieve the task of implementation of compromise decree instead of filing of execution petition after refusal of respondents to act upon the terms and conditions of said decree---Ingredients of S.12(2), C.P.C. were missing in the present case---Applicant could not seek his remedy while invoking constitutional jurisdiction of High Court for implementation of terms and conditions of compromise decree by alleging that same was obtained by committing fraud and misrepresentation of facts---Constitutional petition was dismissed in circumstances.

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

----S. 12(2)---Bar to further suit---Scope---Party should seek his remedy of challenging the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction by filing an application to the court which had passed the final judgment, decree or order in earlier suit and not by filing a separate suit.

Petitioner in person.

Allah Bachayo Soomro, Addl.A.G. Sindh.

Date of hearing: 4th February, 2014.

PLD 2014 KARACHI HIGH COURT SINDH 378 #

P L D 2014 Sindh 378

Before Muhammad Ali Mazhar and Abdul Rasool Memon, JJ

Messrs SF ENGINEERING SERVICES through Proprieter---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Water and Power, Islamabad and 4 others---Respondents

Constitutional Petition No. D-3065 of 2012, decided on 7th March, 2014.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Mis-joinder and non-joinder of parties---Effect---Petitioner did not implead company as respondent but only impleaded its chief executive---Effect---Company was proper and necessary party and petition was hit by mis-joinder and non-joinder of necessary parties.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Disputed question of fact---Scope---Constitutional jurisdiction is not intended for deciding disputed facts and thwart procedural law---Controversy of disputed questions of facts, adjudication of which is possible only after obtaining all types of evidence having by parties, can be determined only by forums concerned and in such like cases, constitutional petition would not be competent---Such extraordinary jurisdiction is intended primarily for providing expeditious remedy in a case where legality of action assailed of executive or other authority can be established without any elaborate inquiry into complicated or disputed facts.

Mumtaz Ali Jahangir v. Province of Sindh 2012 YLR 453 rel.

----Art. 199---Constitutional petition---Contractual obligation, enforcement of---Alternate remedy---Petitioner company sought enforcement of contractual obligations against authorities---Validity---For implementation of contractual obligation, Civil Court was the most appropriate, adequate and efficacious remedy---In case of contractual obligation for resolution of disputed questions of facts, the proper way to decide the same was to record evidence so that rights and claims of parties could be determined---Petitioner had approached High Court for recovery of dues for which constitutional petition was not an adequate remedy under the law---Petition was dismissed in circumstances.

Anjuman-e-Ahmadiya, Sargodha v. Deputy Commissioner Sargodha and another PLD 1966 SC 639; Hydri Ship Breaking Industries Ltd. v. Sindh Government and others 2007 MLD 770; Muslimabad Cooperative Housing Society Ltd. V. Mrs. Siddiqa Faiz and others PLD 2008 SC 135; Haji Amin v. Pakistan Trading Corporation (Pvt.) Ltd., and another PLD 2009 Kar. 112; Messrs Ahmed Clinic v. Government of Sindh and another 2003 CLC 1196; Province of Sindh through Secretary, Ministry of Excise and Taxation and others v. Messrs Azad Wine Shop and others PLD 2006 SC 528 and Pakistan Defence Offiers Housing Authority, Karachi v. Shamim Khan and others PLD 2005 SC 792 rel.

Ali Asadullah Bullo for Petitioner.

Ansari Abdul Latif for Respondent No.4.

Asif Hussain Mangi, Standing Counsel.

Date of hearing: 18th February, 2014.

PLD 2014 KARACHI HIGH COURT SINDH 386 #

P L D 2014 Sindh 386

Before Nazar Akbar, J

Mst. GHULZADI---Petitioner

Versus

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

Constitutional Petition No.S-745 of 2013, decided on 27th May, 2014.

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

----S. 491---Constitution of Pakistan, Art.199---Illegal custody of minors---Constitutional petition filed before the High Court treated as a habeas corpus petition under S.491, Cr.P.C.---Scope---High Court had jurisdiction to entertain a constitutional petition as a petition under S.491, Cr.P.C.---However, in every case while exercising such powers the court was under judicial obligation to examine the facts of the case before issuing direction to police for production of minors.

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

----S. 491---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minors with father/husband---Whether illegal custody---Wife deserting her husband of her own choice---Effect---Contention of wife/petitioner that her husband tortured her because of which she left him and took the children along; that subsequently her husband forcibly took away the children to his village and kept them in his illegal custody---Validity---Petitioner was wedded wife of the respondent-husband and she had not even filed any case for dissolution of marriage---Husband allegedly took away 4 children, out of which two were aged 11 years and 9 years respectively, meaning they were not of tender age---Wife had not filed any birth certificate to give exact date of birth of her children---Wife was duty bound to live with her husband at least as long as the marriage survived---Wife admittedly lived with her husband for 12 years before moving out---Wife had left/deserted her husband of her own choice, and now she could not deprive her husband to have access and even live with the children---Husband i.e. father of the children was responsible for their upbringing---Custody of children with their father could not be treated as legal in such circumstances---Wife could initiate proceeding in the Guardian Court for redressal of her grievance---Wife failed to show any exceptional/extraordinary circumstances for the High Court to exercise jurisdiction under S.491, Cr.P.C.---Constitutional petition was dismissed accordingly.

Mst. Nadia Perveen v. Mst. Almas Noreen and others PLD 2012 SC 758 distinguished.

Suhbat Ali Lund for Petitioner.

Sabir Hussain, State Counsel.

Date of hearing: 21st May, 2014.

PLD 2014 KARACHI HIGH COURT SINDH 389 #

P L D 2014 Sindh 389

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

Gen. (Retd.) PERVEZ MUSHARRAF through Attorney---Petitioner

Versus

PAKISTAN through Secretary Interior and others---Respondents

Constitutional Petition No.D-2072 of 2014, decided on 12th June, 2014.

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

----S. 2---Constitution of Pakistan, Arts. 6 & 199---Constitutional petition---Court placing name of petitioner on Exit Control List ("ECL") by way of interim order---Final order passed by court not giving any findings with regard to Exit Control List---Effect---Interim order would merge in the final order and would not survive after final adjudication---Petitioner was accused of committing high treason and other various offences---During pendency of his trials, name of petitioner was placed on Exit Control List by the Federal Government on 5-4-2013---Supreme Court while hearing different petitions concerning the petitioner passed an interim order dated 8-4-2013 directing Federal Government to place name of petitioner on Exit Control List, after which the Supreme Court was informed that the same had already been done---Said petitions were finally disposed of by the Supreme Court on 3-7-2013 but without recording any findings with regard to the Exit Control List---Plea of petitioner that interim order of Supreme Court dated 8-4-2013 was an interim order and directions contained in it for placing name of petitioner on ECL were not retained in the final order dated 3-7-2013 passed by the same court---Validity---When the final order was passed by the Supreme Court on 3-7-2013 no directions were given therein to continue the name of petitioner on Exit Control List---When the interim order dated 8-4-2013 was passed by the Supreme Court it recorded contentions against the petitioner to the effect that he should be taken into custody and tried under Art. 6 of the Constitution but in the final order the Supreme Court did not touch the question of abrogation or subversion or holding in abeyance the Constitution or any conspiracy in such behalf or indeed the question of suspending or holding the Constitution in abeyance or the issue as to abetment or collaboration in the acts mentioned in Art. 6 of the Constitution---Findings recorded by the Supreme Court in both orders made it quite visible that as an interim measure the directions were issued for placing name of petitioner on Exit Control List but subsequently the Supreme Court did not give any findings on the issue---Interim order containing the direction for putting the name of petitioner on Exit Control List was of an interim nature which merged in the final order and did not survive after final adjudication---Memorandum whereby name of petitioner was placed on the Exist Control List was struck down in circumstances---Constitutional petition was disposed of accordingly.

2013 SCMR 1683 ref.

(b) Interim order---

----Proceedings---Interim/interlocutory order lapses after the final order and merges in the final order---Principles relating to interlocutory orders after passing of final order in the proceedings---"Final order"---Connotation.

Following are the principles in relation to interlocutory orders after passing of final order in the proceedings:

(i) that interim order exhausts or becomes merged in the final order made in a case.

(ii) that all interlocutory orders made in the course of a proceeding in the nature of a suit must necessarily lapse with the decision of the suit.

(iii) that no interlocutory order will survive after the original proceeding comes to an end.

(iv) that an interim order does not survive after the final disposal of the writ petition and only on the strength of the interim order, the Court cannot grant any order.

(v) that an interlocutory order merges into the final order and does not survive after the final adjudication.

(vi) that the interim order would merge in the final order and no right could be claimed by plaintiff on the basis of interim order.

(vii) that a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose. In general a judgment or order which determines the principal matter in question is termed final.

Corpus Juris Secondum and AIR 1978 SC 47 ref.

----Meaning---Scope---Proceeding in an action was said to be interlocutory when it was incidental to the principal object of the action.

(d) Words and phrases---

----" Interim"--- Meaning.

(e) Words and phrases---

----"Merger"---"To merge"---Definition.

Corpus Juris Secondum ref.

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

----S. 2---Constitution of Pakistan, Art. 15---Placing a person's name on the Exit Control List ("ECL")---Scope---Registration of criminal case---Pendency of civil/criminal proceedings---Registration of a criminal case or institution of criminal proceedings did not automatically imply that the accused should be disallowed to move outside Pakistan and or to put his name on the Exit Control List---Mere pendency of civil or criminal cases against a citizen was no ground to deny him fundamental right of travel within or outside Pakistan.

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

----S. 2 ---Exit from Pakistan (Control) Rules, 2010, R. 2---Constitution of Pakistan, Arts. 6, 15 & 199---Constitutional petition---Political case---Political crime---Placing of name on Exit Control List ("ECL")---Grounds for placing name on Exit Control List not mentioned--- Effect---Memorandum whereby name of petitioner was put on the Exit Control List did not mention any specific ground for deciding to put his name on such list---Although it was not necessary for the Federal Government to specify the grounds for putting name of petitioner on Exit Control List if it thought it was not in the public interest, but the Federal Government did not make any such contention, and instead it only contended that petitioner was accused of high treason, which was a political case and a political crime---Such contention of Federal Government meant that there was no bar to issue reasons for placing name of petitioner on Exit Control List, which was in fact in the larger public interest according to the Federal Government's own contention---In cases of high treason the public interest at large was involved to know the reasons for prosecuting the accused of high treason---Petitioner applied to the Federal Government for deletion of his name from the Exit Control List but the said request/review was also refused allegedly in view of pronouncements of superior courts and pending criminal cases in various courts---No right of hearing was afforded to the petitioner when he applied for deletion of his name but his request was rejected summarily---At the time of placing name of petitioner on Exit Control List and when refusing his request to delete his name from such list neither any reason was shown as provided under clauses (a) to (g) of R.2 of Exit from Pakistan (Control) Rules, 2010 nor any other reason was provided except the pendency of cases or pronouncements of superior courts--- Even no specific order of any court was mentioned--- Special Court which had been constituted for trying the petitioner for high treason case observed in one of its orders that merely on basis of pendency of high treason case against petitioner, his name could not be placed on Exit Control List; that petitioner could work for gain anywhere and get medical treatment at a medical facility of his own choice, however he was required to appear before the court as and when required and could seek exemption from appearance on justifiable grounds---Merely on apprehension that the petitioner would not return back to Pakistan was no ground for depriving him from exercising his Fundamental Right (of travelling abroad)--- Petitioner also filed his medical certificate in court, wherein the medical board had opined that petitioner should have his surgery performed abroad as the technology to perform such surgery was not available in Pakistan---Authenticity of the medical opinion of board or certificate was not challenged by the Federal Government---Memorandum whereby name of petitioner was placed on the Exit Control List was struck down in circumstances---Constitutional petition was disposed of accordingly.

Miss Naheed Khan v. Government of Pakistan PLD 1997 Kar. 513 distinguised.

United Bank Ltd. v. Federation of Pakistan 2014 SCMR 856 ref.

(h) Constitution of Pakistan---

----Arts. 2A, 4, 9, 15 & 25---Right of citizen to travel abroad--- Fundamental Right---Right of citizen to travel abroad was a fundamental right guaranteed under Arts. 2A, 4, 9, 15 & 25 of the Constitution, and abridgement thereto was to be tested on the touchstone of the constitutional provisions.

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

----S. 2---Constitution of Pakistan, Arts. 15 & 199---Constitutional petition---Removal of name from Exit Control List---Concurrent constitutional jurisdiction of Sindh High Court and Islamabad High Court to remove a name from the Exit Control List---Scope---Name of petitioner was placed on Exit Control List by Ministry of Interior at Islamabad--- Plea that only Islamabad High Court had jurisdiction to hear a constitutional petition against placing of petitioner's name on the Exit Control List---Validity---Although order for placing name of petitioner on Exit Control List was passed by Ministry of Interior at Islamabad, but since it was a matter of liberty of a person and infringement of his Fundamental Right, no austere or rigid view could be taken as to the territorial jurisdiction of the Sindh High Court---If a stringent or inflexible view was taken on the question of Exit Control List, then it would mean that no other High Court in the country except for Islamabad High Court could take up any issue against the Federation on the plea that Federation was located at Islamabad---Due to petitioner's (current) abode at Karachi, the partial cause of action was also accrued at Karachi where the concerned functionaries were performing their duties while Federation of Pakistan was performing its functions all over Pakistan, hence the High Courts at Karachi (Sindh) and Islamabad both had concurrent jurisdiction in the present matter---Constitutional petition was disposed of accordingly.

LPG Association of Pakistan v. Federation of Pakistan 2009 CLD 1498; Muhammad Aslam Khan and others v. Federal Land Commission PLD 1976 Pesh. 66; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; Ghulam Haider Badini and others v. Government of Pakistan through Ministry of Information and Broadcasting, Islamabad and another 1995 CLC 1027; Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation 2000 SCMR 1703 and Messrs Facto Belarus Tractors Limited Karachi and another v. Federation of Pakistan PLD 2006 Kar. 479 rel.

Sandalbar Enterprises v. CBR PLD 1997 SC 334 distinguished.

Dr. Muhammad Farogh Naseem, Ms. Pooja Kalpana, Munawar Hussain, Obaid-ur-Rehman Khan, Nasir Latif, Irfan Aziz and Arsalan Wahid for Petitioner.

Salman Butt, Attorney General for Pakistan, Khawaja Saeed-uz-Zaman, Addl. Attorney General and Ainuddin Khan, Deputy Attorney-General.

Moulvi Iqbal Haider, (Intervener).

S. Irfan Ali, Addl. Director FIA and Ch. Mubarak Ali, Joint Secretary Ministry of Interior.

Dates of hearing: 7th, 13th, 20th and 29th May, 2014.

PLD 2014 KARACHI HIGH COURT SINDH 427 #

P L D 2014 Sindh 427

Before Munib Akhtar, J

FAL OIL COMPANY LTD. Through Waqar Ahmed---Petitioner

Versus

PAKISTAN STATE OIL COMPANY LTD. Through Managing Director and another---Respondents

J.M. Application No.57 of 2013 and Suit No.1139 of 2011, decided on 4th June, 2014.

(a) Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Acts (XVII of 2011)---

----Ss.3 & 6---Civil Procedure Code (V of 1908), S.151, O.XX, Rr.6 & 10---Enforcement of foreign award---Interim relief, grant of---Encashing of Performance Bonds---Restraining order---Plaintiff company was to supply oil to defendant company and in respect of supply contracts submitted Performance Bonds issued by a scheduled bank operating in Pakistan---Certain disputes arose between parties with regard to supply of oil and defendant gave notice of termination of contracts to ensure timely supply---Plaintiff invoked also jurisdiction of London Court of International Arbitration, there defendant in turn filed counter claim---Arbitrator made his award and found plaintiff in breach of contracts and awarded certain amount in respect of defendant's other reasonable legal costs---Plaintiff sought restraining of encashing of Performance Bonds on the plea that amount awarded by Arbitrator in his award had been deposited by him in Court---Validity---Law provided two sets of arbitration proceedings before arbitrator, one was in relation to disputes on main contracts regarding supply of oil, which disputes came within the scope of arbitration agreements embedded in main contract---Second set of proceedings was in relation to whether arbitration agreements themselves had been breached and the same was referred to arbitration before the same arbitrator---In first set of proceedings, the arbitrator rejected claim of plaintiff and also counterclaim of defendant---As regards the second set of proceedings, arbitrator concluded that plaintiff was in breach of arbitration agreements in filing suit and awarded certain sum to defendant---Arbitrator left arbitration open for consideration of loss that defendant claimed to have suffered on account of breach of arbitration agreements, subject to proper quantification and the same was only in relation to second set of arbitration proceedings---Insofar as first set of proceedings was concerned the award had become final and there was no issue left outstanding and the same was made clear by arbitrator himself in award---Plaintiff has been able to show prima facie case for interim relief and balance of convenience was in its favour, especially since it had expressly stated that it would deposit the amount already awarded to defendant with Court---Plaintiff would suffer irreparable loss and injury because if interim injunction was not granted and Performance Bonds would be encashed on a basis and for a reason that was wholly extraneous to the obligation undertaken by the bank---High Court restrained defendant from encashing Performance Bonds submitted by plaintiff to defendant---Application was allowed in circumstances.

Mantovani v. Carapelli SpA [1980] 1 Lloyd's Rep. 375; Schiffahrtsgesellschaft Detlev Von Appen GmbH v Voest Alpine Intertrading GmbH [1997] 2 Lloyd's Rep. 279 (CA); Donohue v. Armco [2002] 1 Lloyd's Rep 425, [2001] UKHL 64 (HL); Union Discount Co. Ltd. v. Zoller [2002] 1 All ER 693 (CA); National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311; Shipyard K Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191; Toyo Menka Kaisha Ltd v. Ferro Alloys Pakistan Ltd. 1988 CLC 418 (LHC); Investors Compensation Scheme v. West Bromwich Building Society [1998] 1 All ER 98; Static Control Components (Europe) Ltd v. Egan [2004] 2 Lloyd's Rep 429; [2004] EWCA Civ 392; Lesotho Highlands Development Authority (Respondents) v. Impregilo SpA and others [2005] 3 All. ER 79 (HL), at [21]); Siporex Trade S.A. v. Banque Indostuez [1986] 2 Lloyd's Rep. 146; Law of Guarantees by Geraldine Andrews and Richard Millett (6th ed., 2011) and Chitty on Contracts 30th Edn. 2008, Vol. II, para 44-059): ref.

(b) Words and phrases---

----Performance Bond---Scope---Such bonds facilitate international trade by providing ready, prompt and assuredly realizable security that is detached from underlying transaction and operates independently of it---Dispute on underlying contract is of no concern to financial institutional that is the surety---For precise reason the obligation undertaken by financial institution is the one that constitutes trade or commerce that requires such protection.

Dr. Muhammad Farogh Naseem for Petitioner (in J.M. 57 of 2013) and for Plaintiff (in Suit No.1139 of 2011).

Mayhar Mustafa Kazi for Respondent No.1 (in J.M. 57 of 2013 and the Defendant No.1 (in Suit No.1139 of 2011)

Dates of hearing: 27th January and 28th February, 2014.

PLD 2014 KARACHI HIGH COURT SINDH 443 #

P L D 2014 Sindh 443

Before Nisar Muhammad Shaikh and Riazat Ali Sahar, JJ

Messrs FAROOQUI ICE FACTORY, GAMBAT through Proprietor and 24 others---Petitioners

Versus

REVENUE OFFICER SEPCO (WAPDA), RANIPUR, DISTRICT KHAIRPUR and 14 others---Respondents

Constitutional Petitions Nos.D-3184, D-3272 of 2011; D-782, D-818, D-1025, D-1500, D-1540, D-1519, D-2221 of 2012, D-1973, D-2332 of 2013 and D-1070, D-2202 and D-23 of 2012, decided on 6th March, 2014.

(a) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 39---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, Rr. 2(g), 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15 & 16---Constitution of Pakistan, Art. 199--- Constitutional petition---Maintainability---Alternate remedy available but not efficacious---Alternate remedy resting upon a lengthy procedure/mechanism---Effect---Electricity bills---Fuel Price Adjustment charges---Petitioners, who were running businesses of various kinds, were aggrieved of the Fuel Price Adjustment charge being charged from them in their electricity bills by the respondent-Electric Supply Company---Plea of Electric Supply Company that present constitutional petition was not maintainable in view of the alternate remedy available to petitioners before National Electric Power Regulatory Authority ("NEPRA") under S.39 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Validity---No remedy was available to the petitioners under S.39 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 with regard to their grievance, i.e. determination of tariff---Nevertheless a remedy was available to the petitioners under National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules 1998, however mechanism provided for such remedy was lengthy having various characteristics of a regular trial in a court of law---Alternate remedy thus rested upon a lengthy procedure---Constitutional petition was held to be maintainable in circumstances.

Messrs Farid Sons Limited Karachi and others v. Government of Pakistan through its Secretary, Ministry of Commerce, Karachi PLD 1961 SC 537; Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969; Ishrat and Company v. Controller of Insurance, Karachi 1984 CLC 216 and Shabir Ahmed Shaikh v. Government of Balochistan and others 1988 CLC 2267 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Alternate remedy available but not adequate/prompt---Effect---Alternate remedy ought to be adequate, that is to say, promptitude should be there, and if it was not so, High Court could issue appropriate writ.

----Pre-requisites---For application of principle of res subjudice, it was necessary that there should be same subject matter between the same parties or those claiming under the earlier proceedings pending in a court of competent jurisdiction for being determined.

(d) Notification---

----Statutory notification---Retrospective effect---Scope-Notification impairing existing or vested right could not be given retrospective effect, however if the same was beneficial, it may be given retrospective effect.

Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315; Government of Pakistan through Secretary, Ministry of Commerce, Pak. Secretariat, Islamabad v. Messrs Village Development Organization, VPO, Landrwan, District Laki Marwat, 2005 SCMR 492; Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others 1992 SCMR 1652 and Muhammad Ramzan Katiar through Legal Heirs v. Pakistan Refinery Limited and another PLD 2013 Sindh 1 rel.

(e) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 31(4)---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, Rr. 17(1) & (3)---Constitution of Pakistan, Art. 199---Constitutional petition---Electricity bills---Fuel Price Adjustment charges of previous months---Retrospective recovery of such charges in electricity bills---Legality---Statutory notification impairing existing or vested right---Whether such notification could be given retrospective effect---Petitioners, who were running businesses of various kinds, were aggrieved of the Fuel Price Adjustment charges being charged from them in their electricity bills by the respondent-Electric Supply Company---Plea of petitioners that Fuel Adjustment Charges were being levied retrospectively; that petitioners were required to pay Fuel Adjustment Charge from previous months in their current electricity bills by means of notifications issued by the Federal Government; that a notification could not be given retrospective effect; that a heavy burden was being put upon the petitioners, which amounted to depriving them of their fundamental right to carry out their businesses---Validity---Electric Supply Company had the statutory power to levy Fuel Price Adjustment charges in view of S.31 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 and Rr.17(1) & (3) of National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules 1998, however such power had to be exercised justly and fairly---Fuel Price Adjustment charges impugned in present constitutional petition related to past months---Proviso to S.31(4) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 provided that review in fuel charges in view of variation of fuel price and the approval of tariff had to be made on monthly basis and not later than a period of seven days, which meant that period in all should not exceed a month and seven days---Tariff, thus, was governed by the monthly decision of the National Electric Power Regulatory Authority (NEPRA), which it had to make within the said period---Fuel Price Adjustment charges in the present case had been made part of the electricity bill, many months after it became due as per determination---Electricity bills pertaining to current months included (Fuel Price Adjustment)charges of previous months, and such recovery was being made under notifications being duly issued by the Federal Government---Notification impairing existing or vested right could not be given retrospective effect---Notifications whereby Fuel Price Adjustment charges were being levied did impair existing rights of petitioners as they put an obligation upon them to pay the said charges, therefore such notifications could only be given prospective effect (and not retrospective effect)---Electricity bills, issued under notifications duly issued by the Federal Government, having Fuel Price Adjustment charges of previous months, amounted to retrospective recovery---High Court directed that NEPRA should adjust the retrospective charges, if the same had been paid by the petitioners through their electricity bills---Constitutional petition was disposed of accordingly.

Hashwani Hotels Limited v. Federation of Pakistan and others, PLD 1997 SC 315; Government of Pakistan through Secretary, Ministry of Commerce, Pak. Secretariat, Islamabad v. Messrs Village Development Organization, VPO, Landrwan, District Laki Marwat, 2005 SCMR 492; Messrs Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others 1992 SCMR 1652 and Muhammad Ramzan Katiar through Legal Heirs v. Pakistan Refinery Limited and another PLD 2013 Sind 1 rel.

Commissioner of Income Tax and others v. Messrs Media Network and others PLD 2006 SC 787; Quaid-e-Azam's Mazar Management Board, Karachi v. Province of Sindh through Secretary, Housing and Town Planning Karachi and others PLD 2006 Kar. 536 and ICC Textiles Limited through Authorized Representative and 31 others v. Water and Power Development Authority (WAPDA) WAPDA House, Lahore through Chairman and 15 others 2009 CLC 1343 distinguished.

Qurban Ali Malano for Petitioners (in C.Ps.Nos.D-3184/2011, D-1540/2012 and D-2221/2012).

Mukesh Kumar G. Karar for Petitioners (in C.Ps. Nos.D-818/ 2012, D-1519/2012, D-1973/2013 and D-2332/2013).

Shafqatullah Shaikh for Petitioners (in C.Ps. Nos.D-1070 of 2012, D-2202 of 2012, D-3272 of 2012, D-1500 of 2012 and D-23 of 2013).

Fayyaz Ahmed Soomoro for Petitioner (in C.P.No.D-1025 of 2012).

Sarfraz Ahmed Akhund for Petitioners (in C.P. No.D-782 of 2012).

David Lawrence, for Respondents (SEPCO).

Ameer Ahmed Shaikh for Respondents (in C.Ps.Nos.D-3184 of 2011 and D-1025 of 2012).

Ghulam Sahabir Shar for Respondent No.8 (in C.P.No.D-808 of 2012 and for PEPCO in C.P.No.D-1973 of 2013).

Mian Mumtaz Rabbani, D.A.G.

Sattar Bux Soomro M (Legal) SEPCO.

Date of hearing: 4th February, 2014.

PLD 2014 KARACHI HIGH COURT SINDH 465 #

P L D 2014 Sindh 465

Before Irfan Saadat Khan and Abdul Maalik Gaddi, JJ

OWAIS AHMED IDRIS---Appellant

Versus

Syed MUHAMMAD WAQAR UDDIN---Respondent

High Court Appeal No.46 of 2014, decided on 26th March, 2014.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Specific Relief Act (I of 1877), Ss. 8, 12, 42---Law Reforms Ordinance (XII of 1972), S.3---Suit for possession, specific performance of agreement and declaration---Intra Court Appeal---Rejection of plaint---Principle---Defendant sought rejecting of plaint but Trial Court dismissed the application---Validity---There was factual controversy between the parties, which could only be resolved by recording of evidence, which had yet not been led---In order to reject a plaint, it should have been shown that it was barred under some law on the basis of averments made in the plaint---Trial Court at preliminary stage could neither look into the pleas raised by defendant nor could examine merits of allegations raised in plaint---Every allegation made in plaint had to be accepted as correct while rejecting plaint under the provisions of O.VII, R. 11, C.P.C.---Plaint could not be rejected for the reason that plaintiff would not ultimately succeed in establishing the allegations raised in plaint---High Court neither found any paragraph of plaint which was barred by any law nor any illegality or infirmity in the order passed by Trial Court, which had been passed after proper appreciation of facts presented before it---Intra Court Appeal was dismissed in circumstances.

Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 and Asghar Ali v. Waqar-uz-Zaman and others 2004 CLC 1531 distinguished.

Mrs. Halima Tahir and 5 others v. Naheed and others 2004 MLD 227 rel.

Khurshid Ahmed Qureshi for Appellant.

PLD 2014 KARACHI HIGH COURT SINDH 468 #

P L D 2014 Sindh 468

Before Nadeem Akhtar and Shahnawaz Tariq, JJ

ZULIFQUAR AHMED and 14 others---Appellants

Versus

MAHMOOD ABBAS and 17 others---Respondents

High Court Appeal No.180 of 2011, decided on 10th April, 2014.

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

----O. I, R. 10---Suit regarding property---Impleadment of a party to such suit---Scope---No right or interest in subject property of the persons claiming impleadment---Effect---Plaintiffs had filed a suit in respect of subject property---Appellants claimed that their predecessor-in-interest had legal entitlement in the subject property, therefore they should be impleaded as defendants in the suit under O. I, R. 10, C.P.C---Validity---Record reflected that appellants had no right or interest in the subject property and were strangers to the same---Predecessor-in-interest of the appellants during his lifetime also attempted to set up some sort of delusive claim over subject property but same had been rejected by the Settlement Authorities--- Form from Settlement proceedings relied upon by appellants did not in any manner establish or suggest any claim, right, title or interest of their predecessor-in-interest in respect of subject property---Even an inquiry was conducted by the Board of Revenue in which one of the appellants also participated, but same remained fruitless---Rights of appellants had not been affected as there were no rights to begin with---Appeal was dismissed accordingly.

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

----S. 114---Review proceedings---Scope---Review proceedings could not partake re-hearing of a decided case---Review could not be allowed on the ground of discovery of some new material, if same was available at the time of hearing of trial, appeal or revision, as the case might be---Ground not taken or raised at such earlier stages could not be allowed to be raised in review proceedings.

Abdul Hakeem v. Khalid Wazir 2003 SCMR 1501 rel.

----S. 114---Review proceedings---Scope---Review had a very limited scope and it was only to rectify any mistake apparent on its face or of record, or if some material evidence had not been taken into consideration or had been totally ignored while passing the order/judgment---For the purpose of review jurisdiction, it was for the court to exercise it according to the peculiar facts and circumstances of each case, therefore, no party should be provided an easy way to cause unnecessary interference into the earlier conclusion of the court.

Appellants in persons.

Mehmood Abbas for Respondents

Date of hearing: 23th October, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 472 #

P L D 2014 Sindh 472

Before Ghulam Sarwar Koral and Salahuddin Panhwar, JJ

Syed MUJAHID and 2 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Home Department and 4 others---Respondents

Constitutional Petition No.D-291 of 2014, decided on 26th February, 2014.

Electricity Act (IX of 1910)---

----S. 39---Constitution of Pakistan, Art.199---Constitutional petition---Quashing of F.I.R.---Theft of electricity---Petitioners were electricity consumers against whom authorities had got registered F.I.R. for theft of electricity---Validity---Provision of S.39 of Electricity Act, 1910, was a live provision and resort to it was not an illegality which could warrant quashing of F.I.R.---Theft of energy was offence under Electricity Act, 1910 and was punishable, therefore, F.I.R. on allegation of 'theft of energy' could be legally entertained under law---Investigation was the pure domain of investigation agency and the same could not be interrupted unless extraordinary circumstances warranted the same---Petition was dismissed in circumstances.

2004 PLC (C.S.) 1579, Messrs Erum Heights Residents Welfare Association v. KESC Ltd. and others 2001 CLC 321; Muhammad Imtiaz v. Chief Executive MEPCO 2013 MLD 1862; Haji Muhammad Latif v. Chief Executive, GEPCO and others PLD 2012 Lah. 751; 1986 PCr.LJ 1684 and Ghulam Sarwar Zardari's case 2004 SCMR 624 ref.

Hussain Bakhsh Saryo for Petitioners.

Rafiq Ahmed, Addl. A.-G. and Malik Khushal Khan for Respondent Nos. 3 and 5.

Date of hearing: 18th February, 2014.

PLD 2014 KARACHI HIGH COURT SINDH 476 #

P L D 2014 Sindh 476

Before Aziz-ur-Rehman, J

ARBAB---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-675 of 2013, decided on 26th September, 2013.

(a) Sindh Arms Act (V of 2013)---

----S.2(c)---"Arms", meaning of---Scope---Under S.2(c) of Sindh Arms Act, 2013, "arms" meant articles designed as weapons of offence or defence and included rifles, pistols, revolvers, grenades, swords, bayonets, and other lethal weapons---Said meaning also included machinery and its parts for manufacturing arms---Articles designed solely for domestic or agricultural purposes and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons were excluded under S. 2(c) of Sindh Arms Act, 2013.

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

----S. 497(2)---Sindh Arms Act (V of 2013), Ss.2(c), 8(1)(i), 23(2) & 24---Possessing arms with intent to use for unlawful purposes-- Bail, grant of---Further inquiry---Hostile and interested police witnesses---Offence not falling within prohibitory clause of S.497(1), Cr.P.C---Effect---Police allegedly recovered an unlicensed repeater from possession of accused---All witnesses were police officials---Police arrested accused while searching for him in connection with another F.I.R., therefore, police officials besides being hostile might be interested witnesses---Accused was not required anymore for further investigation and there was no likelihood of him tampering with prosecution evidence---Accused seemingly was not a habitual offender and/or previous convict---Joint reading of Ss. 2(c), 8(1)(i), 23(2) & 24 of the Sindh Arms Act, 2013 put the alleged offence outside the prohibitory clause of S.497, Cr.P.C--- Accused was granted bail in circumstances.

----S. 497(1)---Bail---Offence not falling within prohibitory clause of S.497(1), Cr.P.C---Scope---Bail was a settled principle of law which could not be withheld as punishment, much less where offence did not fall within the prohibitory clause of S.497, Cr.P.C--- Grant of bail was a rule and refusal thereof an exception.

Tarique Bashir v. The State PLD 1995 SC 35 rel.

Ahsan Gul Dahri for Applicant.

Syed Meeral Shah, Deputy Prosecutor General, Sindh.

PLD 2014 KARACHI HIGH COURT SINDH 483 #

P L D 2014 Sindh 483

Before Aqeel Ahmed Abbasi and Aftab Ahmed Gorar, JJ

ALLAHANDO KALHORO---Appellant

Versus

The STATE---Respondent

Criminal Miscellaneous Applications No. 1084 of 2013 in Criminal Appeal No.D-56 of 2011, decided on 11th March, 2014.

Criminal Procedure Code (V of 1898)---

----S.426(1-A)(c)---Penal Code (XLV of 1860), S.302(b)---Qatl-e-amd---Suspending of sentence and grant of bail during pendency of appeal---Delay in hearing of appeal could not be attributed to accused persons as no adjournment was sought by them on any date of hearing---Accused were continuously making an effort for hearing of case earlier by filing urgent applications---Accused were not previous convicts/offenders for an offence punishable with death or imprisonment for life, nor they were declared to be hardened, desperate and dangerous criminals; or accused of an act of terrorism punishable with death or imprisonment for life---Accused who were sentenced to suffer life imprisonment, had already remained in jail for more than 14 years; while including remissions, they had already undergone almost the entire sentence of life imprisonment awarded by the Trial Court---Two accused persons, who were brothers and were of advanced age, were suffering from certain disease---Accused had made out a case for grant of bail by suspending their sentence during pendency of appeal, as there was no likelihood that appeal could be heard in near future, in view of pendency of large number of cases before the court---Contention that application under S.426, Cr.P.C. could not be heard as criminal revision for enhancement of sentence was also pending, was repelled, as no show-cause notice for enhancement of sentence from life to death, as required in terms of S.439(6), Cr.P.C. had been issued to accused persons---Mere pendency of the criminal revision application; in absence of issuance of said statutory notice to accused persons, would not render the statutory provision of S.426, Cr.P.C. as redundant---Accused had made out a case for grant of bail under S.426(1-A)(c), Cr.P.C. by suspending their sentence during pendency of appeal, which was granted to them.

Tariq Shah v. The State 2012 PCr.LJ 634; Jaffar and 3 others v. The State 2012 MLD 1532; Ghulam Mustafa and 2 others v. The State PLD 2011 Kar. 394; Muneer and another v. State PLJ 2014 Cr.C. (Lahore) 50; Muhammad Riaz and another v. State PLJ 2014 Cr.C (Lahore) 59; Shahid Nazir v. The State 2013 YLR 260; Muhammad Yousuf v. The State 2013 YLR 1589; Abdul Ghaffar v. The State 2012 PCr.LJ 21; Aftab Ahmed v. The State 2012 PCr.LJ 1760; Manzoor Ahmed v. The State 2012 PCr.LJ 1172; Zia Akbar v. The State 2012 YLR 957; Makhdoom Javed Hashmi v. The State 2008 SCMR 165; Allah Ditta Khan v. The State PLD 2002 SC 845 and Ghulam Muhammad and others v. The State 2014 YLR 303 ref.

Islam-ud-Din Shaikh v. The State PLD 2003 Kar. 266; Hafeez-ur-Rehman v. The State 1998 SCMR 423; Said Wali v. Haji Nazar Gul and others 2000 MLD 1356; Muhammad Hanif and others v. The State 2003 PCr.LJ 161; Ahmed Din and others v. Muhammad Tazeem 2004 PCr.LJ 956 and Ahmed Zia alias Bobo and others v. Malak Saifullah and others 2000 PCr.LJ 1378 distinguished.

Habibullah G. Ghouri and Muhammad Akbar Khan for Appellants.

Ahsan Ahmed Quraishi and Aziz ullah A. Shaikh for the Complainant.

Imtiaz Ali Jalbani, A.P.G.

Criminal Misc. Application No.1084 of 2013

PLD 2014 KARACHI HIGH COURT SINDH 490 #

P L D 2014 Sindh 490

Before Ghulam Sarwar Korai and Salahuddin Penhwar, JJ

SHAHID ANSARI and 4 others---Petitioners

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB), ISLAMABAD

and 2 others---Respondents

Constitutional Petition No.D-427 of 2013, decided on 6th March, 2014.

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

----S.19---Calling for information---Terms "useful or relevant"---Scope---Issuance of notice---Mandatory requirement---"Usefulness" or "relevancy" are terms which cannot be explained or understood without proper reference---Whenever a notice is required to be given under S.19 of National Accountability Ordinance, 1999, it would require authorized officer to mention documents or reference through which one can infer about documents to be produced as provided under S.19(c) of National Accountability Ordinance, 1999.

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

----Ss. 18(f)(g) & 19---Criminal Procedure Code (V of 1898), Chap.XIV---Constitution of Pakistan, Art. 199---Constitutional petition---Notice, quashing of---Scope---Petitioners were aggrieved of notices issued to them by NAB and had sought quashing of proceedings---Validity---Issuance of notice, even if found to be not within its purpose and object, yet a wrongly issued notice could not under any case, justify quashing the root (an investigation, initiated under S.18(c) of National Accountability Ordinance, 1999) or be taken as a sword to keep prosecution out of its right to dig out truth for simple reason that an authorized officer (Investigating officer) was negligent of not issuing notice properly---Mere irregularity or even illegality on the part of Investigating officer in following procedure within the meaning of Chap.XIV of Criminal Procedure Code, 1898, would not cost an offence to go un-attended because an irregularity or illegality in procedure might be cured but not impact and effect of offence, if the same was let un-touched despite its being coming to light---When the offence was committed, effects thereof had started but procedural error, irregular and even illegality by Investigating officer could well be judged by competent Court towards the effects and consequences thereof---Authorities could not be precluded to issue call up notice or conduct inquiry/investigation because an investigation/ inquiry under National Accountability Ordinance, 1999, would require to be disposed as provided under S.18(f) and (g) of the Ordinance, 1999---Petition was disposed of accordingly.

Dr. Arsalan Iftikhar v. Malik Riaz Hussain PLD 2012 SC 903 and Ghulam Hussain Baloch v. Chairman, National Accountability Bureau Islamabad PLD 2007 Kar. 469 ref.

Mehmood Alam Rizvi and Obed-ur-Rehman for Petitioners.

Noor Muhammad Dayo, A.D.P.G., NAB along with Mehdi Shah Asstt. I.W.II. for Respondents.

Date of hearing: 12-2-2014.

PLD 2014 KARACHI HIGH COURT SINDH 500 #

P L D 2014 Sindh 500

Before Aamir Raza Naqvi, J

KAMRAN MIRZA---Applicant

Versus

MOAZZAM MIRZA---Respondent

S.M.A. No.154 of 2013 and C.M.As. Nos. 754 and 755 of 2014, decided on 3rd July, 2014..

Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Sindh Chief Court Rules (O.S.), R.400---Succession certificate/Letter of Administration, issuance of---Non contentious matter---Exemption from furnishing surety---Grant of Succession certificate/Letter of Administration on personal bond---In non-contentious matters sureties need not be insisted by the court---Petition filed by applicant for issuance of Succession certificate/Letter of Administration had been granted and directions were given by the court to issue the same---During proceedings of the petition and even after publication (inviting objections) in a daily newspaper, no objection had ever been filed by anyone---High Court directed that in such circumstances Succession certificate/Letter of Administration should be issued to the applicant without insisting upon filing of sureties, however applicant should execute personal bond equal to the amount involved in the matter---Application was disposed of accordingly.

Mst. Razia Khatoon's case 1996 MLD 873 rel.

M. Arif Khan and Shahan Karimi for Applicant.

PLD 2014 KARACHI HIGH COURT SINDH 501 #

P L D 2014 Sindh 501

Before Aamir Raza Naqvi, J

ABDUL HAMEED---Petitioner

Versus

PROVINCE OF SINDH through Home Secretary, Government of Sindh and 7 others---Respondents

Constitutional Petition No.S-537 of 2014, decided on 30th June, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 54, 154 & 156---Constitution of Pakistan, Arts. 4 & 14---Cognizable offence---Registration of F.I.R.---Arrest of accused---Principles---Arrest to be made only if sufficient evidence available---Police, duty of---Accused to be treated in a civilized manner---Not necessary that a person was required to be arrested if an F.I.R. was lodged against him for a cognizable offence and investigation was being conducted---Lodging of F.I.R. did not necessarily mean that person nominated in the F.I.R. should be arrested---Before arresting a person police must investigate the matter in detail---Police official who intended to arrest any person must satisfy himself that arrest was necessary, and must first collect evidence against the accused which justified arrest---One could only be arrested if sufficient evidence existed against him justifying his arrest---When an F.I.R. or complaint was registered against anyone, he should be treated in a civilized manner as the Constitution provided; that dignity of a man was inviolable, and that every citizen of the country had a right to be dealt with in accordance with law---All government officials particularly police officers were required to conduct themselves in a manner that no innocent person should fear going to the police station and he should be confident that he would not be harassed at the police station.

Zakir Hussain Bughio, Advocate.

Mrs. Marzia Begum for A.G. Office.

Shahid Abbas, DSP, Mehmoodabad South.

Syed Khalid Ali, S.I. P.S. Mehmoodabad.

Muzafar Ahmed, S.I. P.S. Baloch Colony.

Arshad Baig, S.I. P.S. City Court.

PLD 2014 KARACHI HIGH COURT SINDH 504 #

P L D 2014 Sindh 504

Before Munib Akhtar, J

K - ELECTRIC LIMITED and another---Plaintiffs

Versus

FEDERATION OF PAKISTAN and others---Defendants

Suit No.205 of 2014 and C.M.A. No.2709 of 2014, decided on 21st May, 2014.

(a) Arbitration Act (X of 1940)

----S. 34---Arbitration agreement---Filing of suit by plaintiff---Whether suit should continue in presence of arbitration agreement---Whenever a dispute that came within the scope of an arbitration agreement was made out, then prima facie the matter must be so referred for arbitration, and the onus laid on the plaintiff, which was a heavy one to discharge, to show that sufficient reason, existed for the suit to continue.

(b) Arbitration Act (X of 1940)

----S. 34---Constitution of Pakistan, Arts. 153 & 154---Specific Relief Act (I of 1877), Ss.42 & 54---Arbitration agreement---Dispute between parties---Filing of suit by plaintiff despite arbitration agreement---Dispute directly and substantially raising a constitutional issue---Such dispute not suitable for arbitrators to decide---Suit should continue despite arbitration agreement---Power Purchase Agreement ("agreement") between Electric Supply Company ("company") and National Transmission and Despatch Co. Ltd ("NTDC")---In terms of the agreement, the company was entitled to draw up to 650 MW from the national grid---Subsequently in terms of a decision of the Council of Common Interest, 350 MW were withdrawn from the company and NTDC refused to supply power beyond 300 MW under the agreement---Company filed a suit for declaration and injunction to the effect that it was entitled to draw up to 650 MW from the national grid---NTDC filed present application under S.34 of Arbitration Act, 1940 contending that there was clearly a dispute between the parties and as per the agreement a dispute had to be referred for arbitration and the suit stayed---Validity---Prima facie, a dispute existed between the parties--- Company had directly challenged the decision of Council of Common Interest in its suit by mentioning in the plaint that decision of the Council was without jurisdiction and ultra vires the Constitution---If such matter went to arbitrators they would have to decide on the constitutional validity of what the Council of Common Interest had done---Such an issue could not be regarded as one that was suitable for arbitrators to decide and was to be regarded as beyond their jurisdiction---Present dispute could not be referred to arbitration as it was quite obvious that the company's claim would be resisted by NTDC on the basis of the decision of the Council of Common Interest, i.e., a constitutional issue-Company would challenge such defence with the result that the arbitrators would be required to rule upon the constitutional validity (or otherwise) of the decision of the Council of Common Interest, which was an issue not suitable for an arbitral tribunal, no matter how eminent might be its composition---Constitutional issues must be regarded as falling peculiarly within the jurisdiction of the courts (and especially a superior court such as the High Court) and hence beyond the ambit of arbitrators---Constitutional issue raised by the company was directly and substantially in issue in the suit, and it constituted the core of the company's grievance, therefore it could not be referred to arbitration---Sufficient reason had been shown by the company for not referring the present dispute to arbitration, therefore the suit filed by it must be allowed to proceed, and be heard and decided on its own merits--- Application filed by NTDC to have the suit stayed and matter referred to arbitration was dismissed in circumstances.

----S. 13---Arbitration agreement---Dispute between parties raising a constitutional issue---Filing of suit by plaintiff---Whether such dispute suitable for arbitrators to decide---Whether suit should continue in presence of arbitration agreement---Principles---Question was whether arbitrators, engaged upon a domestic arbitration and acting within the framework of the municipal law, could decide a constitutional issue of that jurisdiction, more so where the constitutional issue was said to be beyond the jurisdiction of even the courts---Such an issue could not be regarded as one that was suitable for arbitrators---Distinction existed between a legal issue and one that was of a constitutional nature---Former may well (subject to ultimate consideration by the court) be regarded as falling within the arbitrators remit, however, the latter was an issue that must be decided by the court itself, especially where that court was a superior court such as the High Court---Constitutional issue raised in the suit must be directly and substantially in issue---If it was only collaterally or incidentally in issue, then there would be no bar to referr the matter to arbitration---However, it does lie within the jurisdiction of the arbitrators to decide whether a party had properly and successfully invoked a force majeure clause in the contract in relation to or out of which the dispute arose, therefore in such limited sense, a constitutional point may go to the arbitrators.

Abid S. Zuberi along with Ayan Memon for Plaintiff.

Usman Akram Sahi, for Defendant No.3.

Arshad Tayebaly for Defendant No.5.

Abdul Qadir Laghari, Standing Counsel.

PLD 2014 KARACHI HIGH COURT SINDH 511 #

P L D 2014 Sindh 511

Before Munib Akhtar, J

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Environmental Protection and 6 others---Defendants

Suit No.538 of 2014, decided on 29th April, 2014.

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

----S.12(2)---"Initial Environmental Examination (IEE)" and "Environmental Impact Assessment (EIA)"---Distinction---Two separate streams have been envisaged under S.12(2) of Pakistan Environmental Protection Act, 1997, one relating to projects requiring an 1EE and the other to those in relation to which an EIA must be submitted.

(b) Constitution of Pakistan---

----Art. 201---Judgment of High Court---Scope---Subject only to a different view being expressed by Supreme Court, interpretation of statutory provisions by a High Court is of binding effect in the Province concerned.

--Purpose of rules of interpretation is, in the end, to discover and apply legislative intent.

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

----S. 12(2), Scheds. I & II---Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA)---Object, scope and purpose---Pakistan Environmental Protection Act, 1997, is beneficial legislation enacted for welfare of public at large---If in ensuring that its objectives are achieved, a particular person (i.e. proponent of a given project) is put to greater inconvenience or a more onerous burden is cast on him, then so be it---If a project can be regarded as falling within two different entries, one set out in Sched. I and the other in Sched. II, then it must be regarded as falling within the latter hence requiring an EIA.

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

----S. 42---"Declaratory suit" and "seeking of declaration"- Distinction-Every suit in which a declaration is sought is not and does not have to be a declaratory suit under S.42 of Specific Relief Act, 1877.

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

----O. XXXIX, R.2---Term 'injury'---Connotation---Term 'injury' as used in O. XXXIX, R. 2, C.P.C. has always been broadly construed and applied---All mariner of acts contrary to law, including breach of statutory duty, fall within the scope of an 'injury' to which O. XXXIX, R.2, C.P.C. can apply.

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

Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--- Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Interim injunction, grant of---Environmental Impact Assessment (EIA)---Defence Housing, Authority filed suit against defendant company seeking stay of construction of an underpass on the plea that no EIA had been sought for the construction---Validity---Defence Housing Authority had established a prima facie case as there was a serious breach of applicable statutory provisions---Project in question required EIA but Environment Agency had purported to accord approval of IEE---Mandatory requirements relating to public participation and hearing and solicitation of comments from concerned government agencies were not complied with--Project had a direct and close connection with Defence Housing Authority administered areas and the same would be affected by the Project---High Court restrained and stopped all construction in relation to or touching upon the Project---Karachi Metropolitan Corporation as proponent was not prevented from submitting an EIA for consideration by the Agency and if the same would be submitted it must be accorded on top priority---Application was allowed accordingly.

Salma Iqbal Chundrigar and others v. Federation of Pakistan and others 2009 CLD 682; Salim Godil and others v. Province of Sindh and others 2014 CLD 222; Standard Chartered Bank v. KMC C P.D-3851 of 2012; In the matter of cutting of Trees Canal Widering Project, Lahore 2011 SCMR 1743; Matloob Ali Khan v. Additional District Judge East, Karachi and another 1988 SCMR 747; Defence Flyover case, Shehri CBE. V. Government of Pakistan and others PLD 2007 Kar. 293; Sultan v. Province of Sindh 2004 CLC 392;Muhammad Umer Baig v. Sultan Mehmood Khan and another PLD 1970 SC 139; Ilyas Ahmed v. Muhammad Munir and others PLD 2012 Sindh 92 and Nestle Milkpak Ltd. v. Sindh Institute of Urology and others PLD 2007 Kar. 11 ref.

Malik Naeem Iqbal, Malik Altai Jawed and Ijaz Khattak for the Plaintiff.

Qazi Majid Ali, AAG Farooq H. Naek, Murtaza Wahab, Jaffer Raza nnd S. Ifthikhar ul Hassan for the Defendant No. 5.

Akhtar Hussain for Defendant No. 7

Ashiq Ali Langa, Director Technical, Habib ur Rehman Solangi, Asst. Director, and Imran Sabir, EIA, for EPA Sindh.

Dates of hearing 17th and 21st April, 2014.

PLD 2014 KARACHI HIGH COURT SINDH 538 #

P L D 2014 Sindh 538

Before Abdul Rasool Memon, J

QURBAN ALI and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-296 and M.A. No.1702 of 2013, decided on 17th September, 2013.

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

----S. 497---Qanun-e-Shahadat (10 of 1984), Art. 164---Bail--- Newspaper clippings-Admissibility in evidence---Newspaper clippings contradicting version contained in the F.LR. to the benefit of the accused---Such clippings could not be considered at bail stage and could only be proved in a way required by the law of evidence/Qanun-e-Shahadat, Illustration.

(b) Criminal trial---

----Evidence---Newspaper clippings---Admissibility in evidence--- Procedure---Newspaper clippings could not be used either in favour of the prosecution or defence unless author of the same was examined in court as a witness. Muhammad Ashraf Khan v. The State and another 1996 SCMR 1747 rel.

----Ss. 497 & 154---Bail---Grounds--Delay in lodging of F.I.R.---Such delay ipso facto was no ground for grant of bail.

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

------S. 497---Penal Code (XLV of 1860), Ss. 302,147 & 148---Qanun-e-Shahadat (10 of 1984), Art. 164---Qatl-e-amd, rioting, rioting armed with deadly weapons-Bail, refusal of---Newspaper clippings-- Admissibility in evidence at bail stage---Accused and co-accused allegedly strangulated deceased with a rope---Plea on their behalf was that deceased had committed suicide, which fact was also mentioned in a newspaper clipping, therefore, case was one of further inquiry--- Validity--- Newspaper clipping could not be considered at bail stage and could only be proved in a way required by the law of evidence/Qanun-e-Shahadat, 1984--- Names of accused and co-accused appeared in the ELR. with specific role---Prosecution witnesses supported the version of complainant-Medical evidence showed ligature marks on the neck of deceased, which was in conformity with allegations in the F.LR.--- Case of accused and co-accused was not at par with other accused persons who had already been granted bail---Reasonable grounds existed to believe that accused and co-accused had committed the alleged offence---Bail application was dismissed accordingly.

Shoukat Ali Phull for Applicants.

Riaz Hussain Khoso, State Counsel for the State.

Date of hearing: 17th September, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 541 #

P L D 2014 Sindh 541

Before Irfan Saadat Khan and

Zafar Ahmed Rajput, JJ

MUHAMMAD SHAF1Q: In the matter of High Court Appeal No. 9 of 2013, decided on 2nd May, 2014.

Succession Act (XXXIX of 1925)---

----Ss. 278 & 376---Civil Procedure Code (V of 1908), S.151---Sindh Chief Court Rules (O.S.), R.400---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Succession Certificate, amendment of---Rules of procedure---Liberal construction, principle of---Letter of Administration for estate of deceased father of applicant was granted but two legal heirs of deceased had died before the estate could have been distributed among them-Applicant sought amendment of Letter of Administration but the same was declined by Single Judge of High Court-Validity-Rules of procedure were mere tools designed to expedite decision or resolution of cases and other matters pending in court---Such rules should not be applied in a very rigid technical sense and were to be used only to help in securing substantial justice-Strict and rigid application of rules, resulting in technicalities that tend to frustrate rather than promote substantial justice, must be avoided-- Liberal construction of rules were to be invoked in situation where there was some excusable formal deficiency or error in pleading, provided that the same did not subvert essence of proceedings-- Provisions contained in S. 376 of Succession Act, 1925 and R. 400 of Sindh Chief Court Rules (O.S.) should have been liberally construed in order to promote their objective of ensuring just, speedy and inexpensive disposition of every action and proceedings in such cases--- Division Bench of High Court set aside order passed by Single Judge of High Court and remanded the matter to decide application under S.15i C.P.C. for seeking amendment of extended Letter of Administration under S.376 of Succession Act, 1925---Mtra Court Appeal was allowed accordingly.

Miss Soonabai Hormusji Patel v. Dhunjisaw Hormusji Patel PLD 1993 Kar. 619; Mst. Baigan v. Abdul Hakeem and another 1982 SCMR 673 and Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555 ref.

Jameel Ahmed v. Late Saifudin through Legal Representative 1997 SCMR 260 and Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 rel.

Syed Masroor Ahmed Alvi for Appellant.

Mushtaq A. Memon and Khawaja Shamsul Islam, Advocate/Amicus Curiae.

Date of hearing: 19th March, 2014.

PLD 2014 KARACHI HIGH COURT SINDH 547 #

P L D 2014 Sindh 547

Before Ghulam Sarwar Korai and Abdul Rasool Memon, JJ

AZHAR HUSSAIN RIZVI---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.142 of 2013, decided on 4th November, 2013.

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

----Ss. 6, 7 & 28---Penal Code (XLV of 1860), S.302---Act of "terrorism"---Qatl-e-amd---Proof---Indiscriminate firing---Grievance of accused was that Trial Court under Anti-Terrorism Act, 1997, declined to transfer the case to court of ordinary jurisdiction---Validity--Wherever any action was taken which created fear and insecurity in any section of people, such offence would fall within the ambit of case as contemplated under S.6 of Anti-Terrorism Act, 1997---Mob of 30 / 40 motorcyclists including accused, while carrying dead body from hospital to graveyard, were indiscriminately firing throughout the way-F.I.R. did not mention that firing was in retaliation of firing from any side---If there wax no firing on funeral procession then there was no reason of making firing on the way to graveyard---Such firing was only with the object of creating fear and insecurity in people, which would come within the definition of "terrorism"---Trial Court on the basis of material available it her was justified in coming to conclusion that case of accused was within the meaning of S. 6 of Anti-Terrorism Act, 1997---Trial Court rightly dismissed application of accused for sending his case to ordinary Court---High Court declined to set aside the order passed by Trial Court---Petition was dismissed in circumstances.

Amir Khan v. The State PLD 2005 Kar. 344; Jehangir Akhtar Awan v. The State PLD 2000 Kar. 89 and PLD 1967 SC 78 ref.

Javed Iqbal Barqi for Applicant.

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

Date of hearing; 28th October, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 553 #

P L D 2014 Sindh 553

Before Faisal Arab, Muhammad Ali Mazhar and Salahuddin Panhwar, JJ

KESC and others---Petitioner

Versus

N.I.R.C and others---Respondents

Constitutional Petitions Nos.D-3195 of 2010, D-2424 of 2009, D-1049, D-1287, D-1329, D-1410, D-1473, D-2645, D-3196 of 2010, D-1016, D-1056, D-1244 D-2188, D-248, D-2701, D-271, D-2759, D-2779, D-2849, D-2947, D-2948, D-3530 of 2011, D-1818, D-2603, D-3179, D-498, D-581, D-743, D-153, D-1762, D-2599, D-2600, D-2601, D-2602, D-283, D-304, D-4184, D-4447, D-643, D-658, D-684, D-1642, D-174, D-1058, D-1059, D-1060, D-1061, D-1062 of 2012, D-1063, D-1903, D-2269 of 2013, decided on 4th August 2014.

(a) Industrial Relations Act (X of 2012)---

----Ss. 3, 19 & Preamble---Constitution of Pakistan, Arts. 17, 141, 199 & Fourth Sched., Part I, Entry No.58---Constitutional petition---Industrial Relations Act, 2012---Constitutionality---Trans-provincial establishments---Rights of workmen---Provincial legislature not competent to legislate on rights of workmen of trans-provincial establishments---Effect---Necessary for Federal legislature i.e. Parliament to legislate---Industrial Relations Act, 2012 was enacted to deal with the subjects of formation of trade unions and settlement of industrial disputes relating to only such industrial and commercial establishments that operated either in the Islamabad Capital Territory or at trans-provincial level---Employers and the workmen of such establishments could get their industrial disputes settled from the forum of National Industrial Relations Commission (NIRC) that was established under Industrial Relations Act, 2012---Apart from the adjudication of the industrial disputes, the NIRC had also been empowered to register trade unions, industry-wise trade unions, federation of trade unions and determine the collective bargaining agent from amongst the trade unions and industry-wise trade unions of the trans-provincial establishments; thus it was evident that Industrial Relations Act, 2012 applied to a distinct category of establishments and not to the intra-provincial establishments that were regulated by the provincial law---Industrial Relations Act, 2012 recognized the freedom of association as a fundamental right of the citizens---With respect to establishments operating at trans-provincial level freedom of association guaranteed under Art. 17 of the Constitution could not be made available through a provincial legislation on account of the constitutional bar contained on provincial legislation under Art. 141 of the Constitution---Provincial legislature was not competent to regulate a right, exercise of which transcended provincial boundaries--- Right to form a trade union that could operate beyond the provincial boundaries could not be secured and regulated by a provincial law---Question whether the Fundamental Right of freedom of association could be curtailed in commercial and industrial establishments having branches in more than one province to an extent that such a right could not be exercised at trans-provincial level and was confined only within the territorial limits of a province, in other words, could the workmen be denied their right to form a nation-wise or inter-provincial trade union in an establishment that operated at national or trans-provincial level i.e. having branches in more than one province---Held, when provincial legislature was not competent to preserve and regulate the rights of the workmen of trans-provincial establishments to the fullest, no prejudice would be caused to the provincial autonomy if the Federal legislature gave a law of its own for such establishments---Industrial Relations Act, 2012 in its applications did not destroy or usurp the provincial autonomy or the principle on which the Federation was formed under the Constitution as it facilitated and regulated the right to form unions at trans-provincial level which right could not be attained through a provincial law---Absence of a law facilitating and regulating trade union activities at trans-provincial level by itself amounted to preventing the exercise of freedom of association created and preserved by Art. 17 of the Constitution---When legislation was required to legitimize and regulate the trade union activities in trans-provincial establishments, it could be said that such a matter related to the Federation, thus, the Federal legislature, on the strength of Entry No.58 of Part I of the Federal Legislative List, as of necessity, could step in to legislate in order to preserve and regulate a right that not only in its exercise transcended provincial boundaries but was of a nature which was also guaranteed under Art. 17 of the Constitution---If the Industrial Relations Act, 2012 was struck down on the ground that it overlapped with the provincial law, the workmen of trans-provincial establishments could not form unions and get them registered that could legitimately function at trans-provincial level---Such rights would remain unenforceable and unregulated by any law---Industrial Relations Act, 2012 was a valid piece of legislation and thus not ultra vires of the Constitution---Constitutional petition was disposed of accordingly.

Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642 ref.

Air League of PIAC Employees v. Federation of Pakistan 2011 SCMR 1254 distinguished.

(b) Constitution of Pakistan---

----Arts. 137 & 141---Extent of Federal and Provincial laws---Legislative competence of Provincial and Federal legislature---Scope---Provincial Assemblies were not empowered to make laws having operation beyond its territories---Provincial legislation in its application could not travel beyond the territorial boundaries of the province---Where a law in its application was required to travel beyond the territorial boundaries of a province, it went beyond the legislative competence of the provincial legislature---Any matter or activity of a trans-provincial nature which could not be regulated by a provincial law on account of the constitutional constraints, could not be allowed to remain unregulated by any law---Whenever such a peculiar situation arose, the Federal legislature as of necessity, must step in order to protect, preserve and regulate the right---Federal legislature was the only forum left to come up with a law to address such a situation---To come up with a Federal law to deal with a situation which could not be addressed through the provincial legislation could not be taken as usurpation of the provincial autonomy.

----Constitutionality of an enactment---Two alternative views---Where two views on the constitutionality of an enactment were possible, the one making the enactment constitutional was to be adopted.

(d) Constitution of Pakistan---

----Fourth Sched., Parts I & II---Federal Legislative List---Entries---Interpretation---While interpreting the scope of any Legislative Entry (in the Federal Legislative List) widest possible meaning was to be attributed to its provisions i.e. the rule of liberal construction was to be followed.

The Elel Hotels and Investment Ltd. and another v. Union of India AIR 1990 SC 1664 ref.

(e) Constitution of Pakistan---

----Fourth Sched., Part I, Entry No. 58---Federal Legislative List---Entry No. 58 of Part I of the Federal Legislative List provided that Federation i.e. Parliament may legislate on matters which under the Constitution were within the legislative competence of Majlis-e-Shoora (Parliament) or related to the Federation---Contents of Entry No. 58 could be divided into two parts: In the first part it was stated "Matters which under the Constitution are within the legislative competence of Majlis-e-Shoora (Parliament)" and in the second part it was stated "or relate to the Federation"---Words of the second part of Entry No.58 "or relate to the Federation" had their own independent significance---Import of the second part of Entry No.58 was that apart from any matter that fell within the legislative competence of the Parliament, there could also be a matter which may relate to the Federation and therefore the Parliament may decide to legislate on such matter as well; thus the second part of Entry No.58 empowered the Parliament to legislate on a matter, which though may not be specifically enumerated in any Entry of the Federal Legislative List but in some way, the matter may relate to the Federation.

(f) Vires of statute---

----Constitutionality---Court declaring a statute as unconstitutional---Question as to what was best for the people was to be left to the legislature as it was the members of the legislature that were entrusted with the function to understand the needs of the people who had chosen them---Unless there was brazen violation of any constitutional provision, a statute could not be declared unconstitutional.

(g) Vires of statute---

--- Doctrine of "pith and substance"---Object---Said doctrine was to enquire as to what was the pith and substance of the law, vires of which were being challenged---Said doctrine required that primacy should be given to the object which the law aimed to achieve rather than to the subjects it dealt with.

(h) Constitution of Pakistan---

----Art. 144(1) & Fourth Sched., Parts I & II---Power of Majlis-e-Shoora (Parliament) to legislate for one or more Provinces by consent---Scope---Such power was applicable or attracted only when at the instance of the Provincial Assembly or Assemblies, Federal legislation was required on any matter which was not covered by any Entry of the Federal Legislative List.

(i) Industrial Relations Act (X of 2012)---

----Ss. 53, 87 & Preamble--- Sindh Industrial Relations Act (XXIX of 2013), S. 45---Constitution of Pakistan, Art. 199---Constitutional petition---Legal forum available to the employees/labourers/workers employed in a trans-provincial or intra-provincial establishment/ company/corporation/institution---National Industrial Relations Commission (NIRC) or Labour Courts---Two laws existed side by side, one at Federal level i.e. Industrial Relations Act, 2012 and the other at provincial level i.e. Sindh Industrial Relations, 2013 both dealing with similar subjects---In order to avoid the confusion of overlapping of jurisdictions as to where the employers or workmen of trans-provincial establishments could seek legal remedy, S. 87 has been incorporated in Industrial Relations Act, 2012 which provided that its provisions shall have overriding effect, notwithstanding anything contained to the contrary in any other law for the time being in force---Effect of such non obstante clause contained in S. 87 of Industrial Relations Act, 2012 was only to the extent that for trans-provincial establishments, the forum to seek legal remedy in matters covered by Industrial Relations Act, 2012 was only and only the one provided thereunder i.e. National Industrial Relations Commission (NIRC) and not the Labour Courts established under the Sindh Industrial Relations Act, 2013---For establishments that were operating at provincial level only it was the provincial law i.e. the Sindh Industrial Relations Act, 2013 that was applicable---High Court directed that all cases pending adjudication in Labour Court pertaining to trans-provincial industrial and commercial establishments shall stand transferred to the NIRC of appropriate jurisdiction; that likewise, cases, if any, pending adjudication in NIRC pertaining to intra-provincial industrial and commercial establishments shall stand transferred to the Labour Courts of appropriate jurisdiction---Constitutional petition was disposed of accordingly.

Mehmood Abdul Ghani, Advocate.

Muhammad Sarwar Khan, Additional Advocate General.

Rashid Anwar along-with Mr. Mustafa Ali, Advocates.

Muhammad Humayoon, Advocate.

Ch. Muhammad Ashraf, Advocate.

Moin Azhar Siddiqi, Advocate.

Ashraf Hussain Rizvi, Advocate.

Muhammad Atiq Qureshi, Advocate.

Jhanzeb Inam, Advocate.

Makhdoom Ali Khan, Hyder Ali Khan, Najeeb Jamali and Sami-ur- Rehman, Advocates.

Rasheed Ahmed Razvi and Jamal Bukhari, Advocates.

Salahuddin Ahmed and Chaudhry Atif, Advocates.

Muhammad Aslam Butt, Deputy Attorney General.

Haleem Siddiqi, Advocate.

S.Shoa-un- Nabi, Advocate.

Muhammad Azam Khan Azmati, Advocate.

Latif Sagar, Advocate.

Malik Naeem Iqbal, Advocate and Malik Altaf Javaid, Advocates.

Shabbir Shah, Advocate.

Muhammad Rafique Malik, Advocate.

Zia-ul- Haq Makhdoom, Advocate along with Muhammad Azhar Mahmood and Faisal Aziz, Advocates.

Kashif Hanif, Advocate.

Abdul Ghaffar Khan, Advocate.

Sanaullah Noor Ghori, Advocate.

Azhar Elahi, Advocate.

Khalid Imran, Advocate.

Muhammad Rafi Kamboh, Advocate.

Faiz Muhammad Ghanghro, Advocate.

Nishat Warsi, Advocate.

Farhatullah, Advocate.

Dates of hearing: 2nd, 3rd, 4th, 9th, 11th, 12th, 16th and 18th September, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 574 #

P L D 2014 Sindh 574

Before Munib Akhtar, J

KARACHI ELECTRIC SUPPLY COMPANY LTD. through Authorized

Officer/Attorney---Plaintiff

Versus

LOTTE POWERGEN (PVT.) LIMITED through Company Secretary and 3 others---Defendants

Suit No.1638 of 2013, decided on 17th June, 2014.

(a) Administration of justice---

----Wrong provision of law---Effect---Reference to wrong provision does not invalidate exercise of statutory power, if locus for such power can be found to exist lawfully in some other provision.

(b) Interpretation of statutes---

----Proviso---Object and scope---Proviso operates by way of exception or qualification, carving out of that part of enactment to which it applies something that but for the proviso falls within that part.

----Unfettered---Scope---No such thing exist as "unfettered statutory discretion"---All discretion is structured whether that structuring is by rules and principles enunciated in case law or provided in statute itself or both.

(d) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 22, proviso---National Electric Power Regulatory Authority (Generation) Rules, 2000, R.7---Sale to bulk power consumers---Second-tier supply business---Scope---No permission can be granted to National Electric Power Regulatory Authority under R.7 of National Electric Power Regulatory Authority (Generation) Rules, 2000, to any generation company in any situation to which either proviso or S.22 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, would have applied---Where there is a bulk power consumer who does not come within service territory of any distribution company, in such cases provision of R.7 of National Electric Power Regulatory Authority (Generation) Rules, 2000, can apply.

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

----Ss. 42 & 54---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997), S.22, proviso---National Electric Power Regulatory Authority (Generation) Rules, 2000, R.7---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Sale to bulk power consumers---Second-tier supply business---Plaintiff was electricity distribution company and defendant was holding licence to generate electricity within the area of plaintiff---Defendant had permission to supply power generated by it to its own chemical manufacturing unit---Plaintiff was aggrieved of such permission and authorization granted to defendant---Plea raised by defendant was that power generation facility was established in part to take advantage of certain fiscal benefits---Validity---Plaintiff had made out a prima facie case that authorization granted to defendant to engage second-tier supply business and generation licence as issued were contrary to law and invalid---Balance of convenience was in favour of plaintiff and against defendant---If defendants wished to avail benefits that law conferred, then they must comply with terms thereof and if they failed to do so, they had acted in their own peril---Bulk power consumers were prized customers for any distribution licensee---To deny plaintiff benefit of a continued material relationship with chemical manufacturing unit would be more inconvenient to it than denying defendant opportunity to sell power to the latter would be to defendants---Plaintiff could well suffer irreparable loss and injury if interim relief was denied, as loss on account of bulk power consumer might well not merely be in terms of the lost income stream---Bulk power consumers consumed such large amounts of power that if any one of them would have gone off line, it might create systemic issues for distribution licensee and possibility of a domino effect was to also kept in mind---High Court restrained defendant from supplying, selling or disbursing electricity to chemical manufacturing unit either in reliance upon generation licence or authorization or permission granted for second-tier supply business, whether in terms of S.22 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 or R.7 of National Electric Power Regulatory Authority (Generation) Rules, 2000 or otherwise---Application was allowed in circumstances.

Abid S. Zuberi along with Ayan Memon for Plaintiff.

Mayhar Qazi for Defendants Nos. 1 and 2.

Najeeb Jamali for Defendant No.3.

Farmanullah Khan for Defendant No.4.

Dates of hearing: 25th March, 11th April and 20th May of 2014.

PLD 2014 KARACHI HIGH COURT SINDH 598 #

P L D 2014 Sindh 598

Before Abdul Rasool Memon, J

Mst. REEMA---Applicant

Versus

S.H.O. POLICE STATION DARRI, LARKANA and 4 others---Respondents

Criminal Miscellaneous Application No.183 of 2013, decided on 27th August, 2013.

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

----S. 491---Habeas corpus petition, proceedings of---Scope---Proceedings of a habeas corpus petition under S.491, Cr.P.C. by their very nature were summary in character and entire evidence was not required to decide the main controversy between the parties.

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

----S. 491---Habeas corpus petition-Remedy---Scope---Custody of minor---High Court had jurisdiction under S.491, Cr.P.C in matters relating to custody of minors of tender age---Such remedy under S.491, Cr.P.C was more efficacious, speedy and appropriate and was to be exercised without prejudice to the right of parties to have the matter finally adjudicated upon by the Guardian Judge.

----S. 491---Habeas corpus petition for recovery of minor---Minor son aged about 2½ months in custody of father---Propriety---Such custody was improper keeping in view welfare of the child and rights conferred upon him---High Court directed that father should hand over custody of minor son to his mother/petitioner; that mother should not remove the minor from territorial limits of the High Court, and that ultimate determination of entitlement of custody laid with the Guardian Judge.

Mst. Khalida Perveen v. Muhammad Sultan Mehmood PLD 2004 SC 1; Mst. Rubia Ayaz Khan v. The State PLD 2001 Kar. 197 and Mst. Tayyaba Khan v. Syeda Begum and another PLD 1994 Kar. 204 rel.

Ali Nawaz Ghanghro and Javed Ahmed Soomro for Applicant.

Imtiaz Ahmed Shahani, State Counsel along with SIP Nisar Ahmed Khokhar I/C SHO, Police Station Darri.

Nisar Ahmed G. Abro has filed Vakalatnama on behalf of Respondent No.3, who is also present.

Date of hearing: 28th August, 2013.

PLD 2014 KARACHI HIGH COURT SINDH 601 #

P L D 2014 Sindh 601

Before Munib Akhtar, J

REDTONE TELECOMMUNICATIONS PAKISTAN (PVT.) LTD and 3 others---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary and 11 others---Defendants

Suit No.118 of 2014, decided on 23rd May, 2014.

(a) Interpretation of contract---

----Jurisdiction clause---Object, scope and purpose---Jurisdiction clause does not offend against any substantive rule of law and purpose of such clause is strictly limited, it is only to select---Contracting parties are permitted to choose from amongst two or more courts that otherwise possess jurisdiction (and can never be divested of it by their agreement), the forum where any dispute is to be brought---What a court gives effect to is not some substantive rule of law, it simply honours sanctity of contract by enforcing a contractual term.

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

----S. 16---Specific performance of a part of contract---Jurisdiction clause, invoking of---Filing of suit in excluded court---Effect---Excluded court is not bound to recognize and give effect to jurisdiction clause until and unless objection is taken by defendant, this would be so even if the court is otherwise aware of the clause---Jurisdiction being exercised by excluded court vests in it as a matter of substantive law---Selection made through jurisdiction clause does not take away jurisdiction, because it cannot---Filing of suit in excluded court may be a breach of contract but unless breach is alleged and contractual right claimed, it is not for the Court itself to stay its hands which means that court can deal with suit and all matters arising from it or ancillary thereto, including applications of interlocutory nature, in the same manner as it would in ordinary exercise of jurisdiction---Once objection is taken, then it must be dealt with immediately and preferably to the exclusion of all other matters but till then court remains unaffected by jurisdiction clause---Institution of suit in excluded court is itself alleged breach of contract and objection must be taken by defendant at the earliest (though not necessarily the first) opportunity---If defendant delays taking objection that may, in law, amount to a waiver, especially if he has in the meantime taken other steps in proceedings---Once waiver has occurred, in law or in fact, it is absolute and irrevocable.

----Scope---Doctrine of forum non conveniens may not apply in a context where both the courts are in the same 'country'.

Global Seafood Inc. v. Bantry Bay Mussels Ltd. 659 F.3d, 221 2011) rel.

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

----Ss. 16, 22, 42 & 54---Suit for declaration and permanent injunction---Jurisdiction clause---Specific performance of part of contract---Defendant raised objection to jurisdiction of court on the plea that according to contract between the parties courts at place "I" had exclusive jurisdiction to try the matter---Validity---By filing suit in court at place "K", plaintiffs prima facie breached the agreement in respect of jurisdiction clause---In terms of S.16 of Specific Relief Act, 1877, such part of the court could and ought to be specifically enforced---Plaintiffs failed to establish that defendant was not entitled to such relief, whether in terms of S.22 of Specific Relief Act, 1877, or otherwise---Proper manner of granting remedy was not by way of directing that plaint be returned but by transmitting the suit to Court at place "I"---High Court directed that interim order passed in favour of plaintiff would continue to hold the field and application was deemed to be pending---High Court directed the office to immediately transmit the suit with entire record and proceedings to court at place "I"---Objection was allowed accordingly.

State Life Insurance Co. of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; Kadir Motors v. National Motors Ltd. and others 1992 SCMR 1174; Swastik Gases P. Ltd. v. Indian Oil Corp. Ltd. [2013] INSC 637, (2013) 9 SCC 32 ("Swastik Gases"); Lahore Stock Exchange Ltd. v. Frederick J. Whyte Greap (Pakistan) Ltd. PLD 1990 SC 48; M.A. Chowdhury v. Mitsui O.S.K. Lines Ltd. PLD 1970 SC 373; A.B.C. Laminart Pvt. Ltd. v. A.P. agencies, Salem AIR 1989 SC 1239; R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd. AIR 1993 SC 2094; William Graham v. Krishna Chander Dey AIR 1925 PC 45; Morris' The Conflict of Laws, 7th Edn. 2009; Hindustan Assurance and Mutual Benefit Society Ltd. v. Rail Mulraj and others AIR 1915 Mad. 608; Hyat Muhammad and others v. Shaikh Mannu and others AIR 1927 Clacutta 290; Durgesh Sharma v. Jayshree AIR 2009 SC 285; Mohtarma Benazir Bhutto v. The State 1999 SCMR 759; Muslim Commercial Bank Ltd. Employees' Union v. Muslim Commercial Bank Ltd. 1994 SCMR 1031 and Spiliada Maritime Corp v. Cansulex Ltd. [1986] 3 All ER 843 ref.

Arshad Tayebaly and Taimur Mirza for Plaintiff.

Ijaz Ahmed for Defendant No.3.

Salahuddin Ahmed and Ms. Ambar Lakhani for Defendants Nos.4 and 6 to 10.

Makhdoom Ali Khan, Samiur Rehman Khan and Sarmad Hani for Defendant No.12.

Dates of hearing: 13th-19th February and 12th, 17th, 24th March and 2nd, 22nd and 30th April of 2014.

PLD 2014 KARACHI HIGH COURT SINDH 624 #

P L D 2014 Sindh 624

Before Nadeem Akhtar, J

MARKET COMMITTEE through Administrator/Secretary---Applicant

Versus

Haji ABDUL KARIM and 3 others---Respondents

Civil Revision Application No.S-21 of 2010, decided on 30th January, 2014.

(a) Counsel and client---

----Omission of counsel---Effect---Parties are bound by acts and omissions of their counsel---In case of any negligence on the part of counsel, parties cannot claim that they are not held responsible, nor any negligence on the part of counsel absolve parties from prosecuting or defending the matter.

Zulfiqar Ali v. Lal Din and another 1974 SCMR 162 and Zahid Ahmed v. Deputy Director Adjudication and 2 others PLD 2006 Kar. 252 rel.

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

----S. 5---Condonation of delay---Scope---While seeking condonation of delay, explanation for delay of each and every day has to be explained.

----Rights of parties---Condonation of delay---Principle---Where appeal is not filed within time and valuable rights accrued in favour of opposite party such valuable rights cannot be taken away unless very strong and convincing ground is shown for condoning the delay.

Muhammad Sharif Khan and 4 others v. Board of Revenue, West Pakistan, Lahore 1970 SCMR 76 and Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462 rel.

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

----Ss.8, 42 & 54---Limitation Act (IX of 1908), S. 5---Suit for possession, declaration and permanent injunction---Delay, condonation of---Government property---Authorities were aggrieved of judgment and decree passed by Trial Court and filed appeal which was barred by limitation---Lower Appellate Court declined to condone the delay and appeal was dismissed---Plea raised by authorities was that valuable rights of government were involved in suit property---Validity---Delay in filing appeal by authorities could not be condoned merely on the ground that purported rights of government were involved in property in question---Government and its functionaries were not entitled to any preferential treatment in the matter of condoning delay and they were to be treated on equal footing with ordinary litigant---Valuable rights accrued in favour of other party with the passage of time could not be disturbed---Authorities did not explain delay of each and every day---Application filed by authorities for condoning delay as well as appeal, were rightly dismissed by Lower Appellate Court---High Court declined to interfere in judgment and decree passed by Lower Appellate Court---Revision was dismissed in circumstances.

Muhammad Bashir and another v. Province of Punjab 2003 SCMR 83; Pakistan Handicrafts, Sindh Small Industries Corporation, Government of Sindh v. Pakistan Industrial Development Corporation (Pvt.) Ltd. and 2 others 2010 CLC 323 and Lahore Development Authority v. Messrs Sea Hawk International (Pvt.) Ltd. Lahore 2003 CLC 269 rel.

Irfan Ahmed Qureshi for Applicant.

Ayaz Karim for Respondent No.1.

Chaudhry Bashir Ahmed, Assistant A.-G. Sindh for Respondents Nos. 2-4.

Date of hearing: 16th January, 2014.

PLD 2014 KARACHI HIGH COURT SINDH 630 #

P L D 2014 Sindh 630

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

PAKISTAN BROADCASTERS ASSOCIATION and 10 others---Petitioners

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman and another---Respondents

Constitutional Petition No.D-1872 of 2010, decided on 7th July, 2014.

(a) Pakistan Electronic Media Regulatory Authority Rules, 2009---

----R. 15(3)---Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002) Ss. 20(d) & 30---Constitution of Pakistan, Arts. 18 & 19---Satellite TV channels---Programmes and advertisement content---Excessive advertisement breaks during broadcast of programmes---Violation of R. 15(3) of Pakistan Electronic Media Regulatory Authority Rules, 2009 and Satellite TV licence agreement---Issuance of show cause notice and public notice by Pakistan Electronic Media Regulatory Authority (PEMRA)---Constitutionality and legality---In terms of the provisions of R.15(3) of the Pakistan Electronic Media Regulatory Authority Rules, 2009, and the licence agreement between PEMRA and private media companies (petitioners), a reasonable duration of three minutes had been prescribed for a continuous break for advertisements during regular programmes, whereas, further reasonable duration of fifteen minutes had also been prescribed between two such successive breaks---Similarly, in terms of the licence agreement the maximum period of an advertisement break during prime time i.e. between 1900 to 2200 hours had been prescribed not to be more than two minutes to a minimum of ten minutes of the programme---Merely, "duration of advertisements", during a regular programme and during prime time, had been prescribed in order to maintain uniformity and reasonable continuity in the programme to be telecast, keeping in view the purpose of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002---By no stretch of imagination it could be stated that, by prescribing "duration of advertisement" during a programme the Legislature or the Government, had in any manner infringed the right of private media companies guaranteed under Arts. 18 & 19 of the Constitution, because said rights were not absolute rights but were subject to reasonable restrictions in accordance with the provisions of the Constitution itself or any other law made in such regard---PEMRA was at liberty to regulate its affairs and unless such regulation was arbitrary, discriminatory or demonstrably irrelevant to the policy, it could not be interfered with on the grounds of mere commercial expediency---Satellite TV Channels were admittedly violating the express provisions of R.15(3) of the Pakistan Electronic Media Regulatory Authority Rules, 2009, as well as provisions of their licence agreement, which otherwise was binding upon them pursuant to their contractual obligation---Hence R.15(3) of Pakistan Electronic Media Regulatory Authority Rules, 2009; the clause of licence agreement restricting duration of advertisements, and the show cause notices issued by PEMRA were neither unconstitutional nor suffered from any jurisdictional error or illegality, hence, did not require any interference by the High Court under Art. 199 of the Constitution---Constitutional petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Scope---Not an absolute or unfettered right---Subject to law and reasonable restrictions/qualifications prescribed by law.

Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 rel.

----Art. 19---Freedom of speech---Scope---Not an absolute or unfettered right---Subject to law and reasonable restrictions/qualifications prescribed by law.

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

----S. 20---Private media groups/companies---Responsibility---Compliance with the Constitution, relevant law, rules and regulations--Free access to public at large provided by Government to the private media groups/companies cast a great responsibility upon them not only to abide by the Constitution, law, rules and regulations but also to ensure that a certain discipline and restraint was demonstrated by them which may not only serve the purpose of the Constitution and law but may also be helpful in creating a better civilized society which was well informed, more educated, tolerant and capable of forming correct opinions on religious, political, social, national or international issues and to take right decisions in their individual as well as collective lives.

M. Ali Almani for Petitioners.

Kashif Hanif for Respondent No.1.

Muhammad Zahid Khan, D.A.G. for Respondent No.2.

Dates of hearing: 3rd October, 2013 and 26th June, 2-14.

Lahore High Court Lahore

PLD 2014 LAHORE HIGH COURT LAHORE 1 #

P L D 2014 Lahore 1

Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ

MUHAMMAD BOOTA---Appellant

Versus

BASHARAT ALI---Respondent

Regular First Appeal No.505 of 2013, heard on 7th October, 2013.

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

Vol. V, Part-A, Chap I, Rr.9 & 9-A---Constitution of Pakistan, Art.202---Appeal---Rules of procedure---Objections by High' Court office, non-removal of within specified time---Consequences---Procedure to be followed by Deputy Registrar (Judicial) of High Court in such cases---Preliminary objection as to the expiry of limitation period for filing appeal---Failure of the appellant to remove the office objections within specified time---Respondent raised a preliminary objection that where the appeal was returned by the office of High Court for removing the objections within the specified time and meanwhile prescribed period for filing appeal lapsed then such delay would render the appeal time-barred unless delay was explained through an application for condonation of delay under S.5 of the Limitation Act, 1908 and the delay was condoned by the court---Contention of the appellant that the appeal was not barred by time as the same was originally filed within time and the date relevant for determining whether the appeal was within time or not would be the date when the appeal was originally filed and mere delay in removing the office objections would not render the appeal time-barred---Validity-Office report showed that although the appeal was originally filed within time, however, the office objections were not removed despite repeating objections by the office and re filings by the appellant, and when finally the objections were removed the time prescribed for filing the appeal had elapsed---Legal question for the High Court was as to which of the two dates would be treated as date of filing of the appeal for the purposes of limitation, the date on which the appeal was originally filed or the date when the office objections were finally removed---Held, that once appeal was originally filed within the prescribed limitation period but was returned within given time and when the office objections were finally removed the prescribed period of limitation for filing appeal elapsed, would not render the appeal barred by time---Present appeal being within the prescribed period of limitation and only because the office objection was removed subsequent to that period, will not make the appeal barred by time.

PLD 1996 Lah. 702 ref.

PLD 2013 SC 392 and 2000 SCMR 847 rel.

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

Vol. V, Part-A, Chap. I, Rr.9 & 9-A---Constitution of Pakistan, Art.202---Appeal---Deputy Registrar (Judicial) of High Court---Powers, duties and functions of ---Interpretation of Rr. 9 & 9-A of Vol. V, Part I, Chap.I of High Court (Lahore) Rules and Orders---Deputy Registrar (Judicial) under R.9 can raise objections against any suit, appeal, petition or application, etc., and once the objections are raised, the appeals, etc., are returned for making up the definciency with the time so specified---Deputy Registrar (Judicial) under R.9 is only authorized to return the appeal for making up any deficiency or filing requisite document within the time to be specified in the objection memorandum, however, this Rule does not empower the Deputy Registrar (Judicial) to entertain the petition or to dismiss the petition having not been validly instituted---In case, the deficiency is not corrected by the appellant within the time given by the Deputy Registrar (Judicial), the situation is fully covered under R.9-A which provides that if within time provided such petition is not refiled or returned a notice shall be affixed upon the notice Board meant for the purpose specified and if within 7 days the deficiency is still not made good, the matter shall be placed before a Judge of the High Court for an order on a date to be notified by fixing such a petition in motion cause list---Under the Rules, it is thus for the court to decide as so what should be done in the matter---High Court, in circumstances, held the once appeal was originally filed within the prescribed limitation period but was returned within given time and when the office objections were finally removed the prescribed period of limitation for filing appeal elapsed would not render the appeal barred by time.

PLD 1996 Lah. 702 ref.

PLD 2013 SC 392 and 2000 SCMR 847 rel.

----Art. 202---Rules of Procedure---High Court (Lahore) Rules and Orders, Vol. V, Part-A, Chap.l, Rr.9 & 9-A---Rules relating to office objections and refiling and filing of appeals in High Court.

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

----O. XXXVII, Rr. 2 & 3---Qanun-e-Shahadat (10 of 1984), Arts.78, 79 & 84---Negotiable Instruments Act (XXVI of 1881), 5.118---Suit for recovery of money on the basis of promissory note---Leave to appear and defend---Comparison of signatures and thumb impressions, powers of court---Presumptions as to negotiable instruments---New plea in appeal---Execution of promissory note and its Receipt, proof of---Trial Court allowed the application of the appellant to appear and defend however, decreed the suit of the respondent after framing of issues and recording of evidence---Appellant assailed the judgment and decree of the Trial Court in appeal---Contentions of the appellant that the entire case hinged upon the Promissory Note and the Receipt that were produced by the respondent in evidence---Appellant contended that he had denied his signatures on the Promissory Note and its Receipt, therefore, these documents, could not be treated as negotiable instruments, that the stamps on Promissory Note were not cancelled, and the thumb impressions were on the Receipt and not the Promissory Note, therefore, it could not be tendered in evidence; that once the signatures and thumb-impressions on documents were denied, lie Trial Court was bound to refer the matter to the Handwriting Expert under Art.78 of the Qanun-e-Shahadat, 1984 and could not have compared the signatures and thumb-impressions by itself and that once signatures of execution of the said documents were denied, no presumption was available to these documents under S.118 of the Negotiable Instruments Act, 1881 and the respondent was bound to prove the execution---Respondent on the other hand submitted that the Promissory Note and the Receipt were duly proved through oral as well as documentary evidence produced before the Trial Court; that the appellant had not raised any objection before the Trial Court regarding the non-cancellation of stamps, as well as the thumb impressions being not on the Promissory Note, therefore, new pleas could not be raised in appeal, which was not raised before the Trial Court and that under Art.84 of the Qanun-e-Shahadat, 1984 the Trial Court had ample power to compare the thumb-impressions and signatures of the appellant with the signatures and thumb-impressions on the admitted documents, which exercise was lawfully done by the Trial Court---Validity---Perusal of the oral and documentary evidence showed that the respondent while appearing as witness reiterated his stance raised to the plaint and also produced original Promissory Note and Receipt as exhibits in evidence---Marginal witnesses of these exhibits also appeared as witnesses and supported the stance of the respondent to the effect that the appellant in their presence had borrowed a sum of money from the respondent and had executed the Promissory Note and the Receipt and also had put his thumb impressions along with signatures on the said documents---Appellant though had denied the signatures on these documents but surprisingly no application was moved by the appellant before the Trial Court for referring the matter to the Handwriting Expert---Trial Court while exercising powers under Art.84 of the Qanun-e-Shahadat, 1984 itself compared the thumb-impressions of the appellant with the thumb-impressions on admitted documents in the shapes of grooves and arches, which were very much the same as on the admitted documents---Signatures of the appellant were also compared with the signatures on the admitted documents by the Trial Court and found to be the same that of the appellant---Under the provisions of Art.84 of the Qanun-e-Shahadat, 1984 in certain eventualities, the court enjoyed preliminary powers to compare the signatures itself along with the other relevant material to resolve the controversy---High Court noted that the Trial Court had carefully gone through the process and compared the exhibited documents to the documents admittedly executed by the appellant and found them to be in complete similarity and tallied with each other---Fact that the matter was not referred to the Handwriting Expert did not render the impugned judgment legally infirm= as to warrant interference by the High Court, especially where the appellant had not moved any application for referring the matter to the handwriting Expert---No objection was taken by the appellant at the time when the Promissory Note was being tendered in evidence before the Trial Court on the ground that the stamps on the Promissory note were not duly cancelled and it was not admissible in evidence, therefore, this plea could not be raised in appeal---Objection of the appellant that thumb-impressions and signatures were on the Receipt and not on the Promissory Note was contrary to the record, as there were two signatures and two thumb-impressions, available on the document and the perusal of it showed that one was regarding the Promissory Note and the other was on the Receipt, moreover, even the said objection was not raised in the trial Court---If a plea was not raised at the trial stage, same could not be raised for the first time in appeal---Findings of the Trial Court were based on correct appreciation of evidence on record, therefore, the same did not call for any interference---Impugned judgment and decree of the Trial Court were upheld and the appeal was dismissed by the High Court, in the circumstances.

2007 CLC 1160; 2005 CLD 941; PLD 2005 SC 658 and 2000 CLC 759 ref.

1999 SCMR 85; 1997 SCMR 976; 2007 MLD 1 and 2012 SCMR 254 rel.

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

----Arts. 61, 78 & 84---Handwriting Expert, opinion of---Signature and Handwriting of a person, proof of-Comparison of signatures and thumb-impressions, powers of court---Plea of the appellant that once the signatures and thumb-impression on Promissory Note and its Receipt were denied, the, Trial Court was bound to refer the matter to the Handwriting Expert under Art.78 of the Qanun-e-Shahadt, 1984 and could not have compared the signatures and thumb-impressions by itself--Validity---Trial Court while exercising powers under Art.84 of the Qanun-e-Shahadat, 1984 itself compared the thumb-impressions of the appellant with the thumb-impressions on admitted documents in the shapes of grooves and arches, which were very much the same as on the admitted documents---Signatures of the appellant were also compared with the signatures on the admitted documents by the Trial Court and found to be the same of the appellant---Under the provisions of Art.84 of the Qanun-e-Shahadat, 1984 in certain eventualities, the court enjoys preliminary powers to compare the signatures itself along with the other relevant material to resolve the controversy.

1999 SCMR 85 and 1997 SCMR 976 rel.

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

----O. XXXVII, Rr. 2 & 3---Suit for recovery on the basis of Promissory Note---Suit was decreed by Trial Court---Objection about non-cancellation of stamps on the Promissory Note having not been tendered in evidence, such plea could not be raised in appeal.

2007 MLD 1 rel.

(g) Administration of justice---

----New plea/ground---Scope---Plea not raised before the Trial Court cannot be agitated in appeal.

2012 SCMR 254 rel.

Hamid Iftikhar Pannu for Appellant (in C.Ms. Nos. 1 and 2 of 2013).

Majid Ali Wajid for Respondent.

Date of hearing: 7th October, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 14 #

P L D 2014 Lahore 14

Before Syed Iftikhar Hussain Shah and Shoaib Saeed, JJ

JAVAID IQBAL RANA---Appellant

Versus

SARFRAZ AHMAD and others---Respondents

Regular First Appeal No.16 of 2007, heard on 19th June, 2013.

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

----Ss. 5 & 13---Transfer of Property Act (IV of 1882), 52---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for possession through pre-emption---Application for rejection of plaint---Lis pendens, principle of---Applicability---Plaintiff filed pre-emption suit wherein defendants moved application for rejection of plaint which was accepted---Validity---Shop in question was further sold through registered sale deed and said subsequent sale was effected prior to sending of notice of Talb-i-Ishhad---Plaintiff was conversant at the time of institution of suit that disputed property had already been sold---Defendant was prohibited from entering into sale or re-sale of suit property after institution of suit as lis was pending for adjudication and provisions of S.52 of the Transfer of Property Act, 1882 were attracted only when lis was pending---Subsequent sale was prior to the institution of suit and same was not hit by the principle of lis pendens---Pre-emptor should have filed suit against the latest sale and not against the previous one---Right of pre-emption was not available to the plaintiff against the previous sale---Trial Court had rightly rejected the plaint---Impugned judgment and decree were in accordance with law---Appeal was dismissed in circumstances.

Muhammad Khan and another v. Sadiq and others PLD 1968 Lah. 929, Muhammad Hussain v. Muhammad through Legal Heirs and others PLD 2010 SC 803 and Muhammad Shafi and others v. Sultan Mehmood and others 2011 SCMR 1453 distinguished.

Abdul Yameen Khan v. Ashrat Ali Khan and others 2004 SCMR 1270 and Abdul Yameen Khan v. Ashrat Ali Khan and others 2004 SCMR 1270 ref.

Ch. Anwaar-ul-Haq for Appellant.

Ch. Shujat Ali for Respondents Nos. 1 and 2.

Ch. Ghulam Ahmad for Respondents Nos. 3 and 4

Date of hearing: 19th June, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 17 #

P L D 2014 Lahore 17

Before Kh. Imtiaz Ahmad and Amin-ud-Din Khan, JJ

Dr. KIRAN QADIR---Appellant

Versus

Maj. Dr. MUHAMMAD ALI YOUSAF KHAN and 2 others---Respondents

Intra Court Appeal No.79 of 2013 in Writ Petition No.1206 of 2013, decided on 27th August, 2013.

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

----Ss. 5, Sched., & 14(b)---Guardians and Wards Act (VIII of 1890), Ss. 12, 25 & 47(c)---Constitution of Pakistan, Art. 199---Law Reforms Ordinance (XII of 1972), S.3(2), proviso---Intra-court appeal---Maintainability---Father's application to Family Court under S.25 of Guardians and Wards Act, 1890 for custody of minor son---Order of Family Court refusing custody of minor to father while allowing him to meet the minor---Dismissal of mother's appeal and constitutional petition by District Judge and High Court respectively---Mother's plea was that intra-court-appeal was competent as no appeal against order of visitation passed by Guardian Judge was provided under S.47 of Guardians and Wards Act, 1890; and that appeal filed by her under S.14(b) of West Pakistan Family Courts Act, 1964 for being incompetent was liable to be ignored for purposes of maintainability of intra-court-appeal---Validity---Family Court and not the Guardian Judge had powers to grant visitation's rights---Order of visitation, in the present case passed by Family Court was appealable; and that mother's appeal filed there against under S.14(b) of West Pakistan Family Courts Act, 1964 had been dismissed by District Judge, where against constitutional petition filed by her had also been dismissed by High Court---Mother had right of appeal under S.47 of Guardians and Wards Act, 1890 as father's application was for custody of minor---Mother could not be allowed to blow hot and cold in same breath---High Court dismissed intra-court appeal for being not competent.

(1) Malik Khizar Hayat Khan Tiwana and (2) Malik Ghulam Muhammad Khan v. (1) Mst. Zainab Begum, (2) Ch. Aziz Ahmad Waraich, District Judges Lahore and (3) Qazi Muhammad Dastgir, Guardian Judge, Lahore PLD 1967 SC 402 and Ihsan-ur-Rehman v. Mst.Najma Parveen PLD 1986 SC 14 ref.

Muhammad Deen Malik and another v. IInd Additional District Judge, Karachi and 2 others 1982 SCMR 1223 distinguished.

Haseeb Shakoor Paracha for Appellant.

Sardar Muhammad Hafeez Khan for Respondent No.1.

Date of hearing: 27th August, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 22 #

P L D 2014 Lahore 22

Before Syed Iftikhar Hussain Shah, J

SAEED AHMAD and 2 others---Petitioners

Versus

MUHAMMAD SHOAIB KHAN---Plaintiff

Civil Revision No.363 of 2012, heard on 13th May, 2013.

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

----O. III, R.1---Appearance in court---Recognized agents or pleaders---Clerk of advocate/counsel---Scope---Trial Court marked the presence of the clerk of counsel in judicial proceedings---Validity---Civil Procedure Code, 1908 did not recognize the status of counsel's clerk---Clerk of counsel could not be marked present in place of his counsel in the judicial proceedings---Trial Court had committed material irregularity and illegality by marking the presence of the clerk of Counsel.

(b) Administration of justice---

----Law favours adjudication of dispute of the parties on merits and the technicalities of law should always be avoided to meet the ends of justice.

----O. XVII, R.13---Non-appearance of lawyer/counsel---Right of evidence of plaintiff/respondent was closed---Appeal filed by 'plaintiff/respondent was also dismissed by the appellate court---Neither the plaintiff/respondent nor his counsel was present in the court on the date when the evidence was closed---Plaintiff/respondent remained unrepresented on the day the impugned order was passed---Contention was that Trial Court should have granted another opportunity to the plaintiffs to produce their evidence---Trial Court had closed the evidence of the plaintiffs arbitrarily in spite of the fact that neither the respondent/plaintiff nor his counsel was present in the court---Orders of Trial Court and Appellate Court were set aside---Trial Court was directed to provide one opportunity to the plaintiffs to adduce their evidence---Revision petition was allowed.

Riaz Hussain v. Sardar Riaz Hussain and others 2003 MLD 1252; Mehfooz Ahmad v. Messrs Sharif Agri Industries through Managing Partner and 2 others 2009 CLC 343; Fayyaz Hussain and others v. Khitim Hussain 2010 MLD 163 and Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434 ref.

Syed Javed Hussain Jaafri for Petitioners. Muhammad Akram Gulyani for Respondent. Date of hearing: 13th May, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 26 #

P L D 2014 Lahore 26

Before Abdus Sattar Asghar, J

KHUSHI MUHAMMAD and others---Petitioners

Versus

MUHAMMAD ASHFAQ and others---Respondents

Civil Revisions Nos.367 and 368 of 2004, heard on 26th June, 2013.

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

----S. 58(c)--- "Mortgage by conditional sale "---History and legal status of such mortgage stated.

In legal history mortgage underwent a process of evolution. A "mortgage by conditional sale" was a very early form of mortgage amongst Hindus. Amongst Muslims the mortgage by conditional sale was a device to evade the Islamic prohibition of interest. This was ordinarily called as bye-bil-wafa i.e. a sale with promise so that the mortgagee enjoys the rent and profit in lieu of interest and became absolute owner of the property if the debt was not paid. The earliest form of Islamic security was the rahn or pledge or mortgage with possession corresponding to the Roman Pignus, which was a transfer not of ownership, but of possession without liability to forfeiture. In case mortgage deed is created under most pressing demand for money as the mortgagor parted with the possession and income of the shop. In such cases a moment of weakness of needy person is exploited by the mortgagee. He enjoys the usufruct of the mortgaged property in his possession with increased market value attracting all the ingredients of interest forbidden in Islam. In such circumstances, Courts of law and equity are expected to construe various transactions concerning mortgage in such a liberal way that the right of rightful owner survives and the one who has enjoyed the possession of usufructuary of the mortgaged property for a considerable time and thus has recovered the amount manifold, should not be allowed to get away with the mortgaged property as well.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 rel.

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

----Preamble---Provisions of Transfer of Property Act, 1882, are not binding on courts in Punjab Province.

Transfer of Property Act, 1882 being not enforced in the Province of the Punjab, therefore, its provisions are not binding on the Courts in this Province. However, in the areas in which the Act has not been extended, its general principles in accordance with rules of justice, equity and good conscience are followed. The technical provisions of the Act are not obligatory.

----Ss. 54 & 58(c)---"Absolute sale" and "mortgage by conditional sale"---Distinction stated.

The "absolute sale" and "mortgage with conditional sale" are two different types of transactions. In the first category, relationship of borrower and creditor do not exist between the parties and the title in the property is absolutely passed on to the vendee by virtue of the sale deed. The second category, however, manifests the arrangement for borrowing money much below the value of the property, which is tendered as security for payment of the loan and if it is not paid, the creditor' can fall back on the security. In this instance having been created relationship of the mortgagor and mortgagee, the ostensible owner of the property retains the interest in it.

(d) Interpretation of documents---

----Interpretation of document is question of law and not fact---Principles.

Interpretation of a document is strictly a question of law and not a fact, however, for finding out the real character of the transaction, the intention of the parties to the document furnishes a positive test. Such intention, however, must essentially be gathered from the language adopted in the document viewed in the light of the surrounding circumstances.

Muhammad Kazam through Legal Heirs v. Mst. Janat Bibi PLD 1985 Lah. 637 rel.

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

----S. 58(c)(d)---Qanun-e-Shahadat (10 of 1984), Art. 117---"Mortgage by conditional sale" and "usufractury mortgage"---Rahn-ba-gabza dukkan (mortgage with possession of shop) alleged by mortgagee to be "mortgage by conditional sale" and not a "usufructuary mortgage "---Proof---Mortgagee was liable to prove his alleged plea---Scribe of mortgage deed deposed that deed was not read over to mortgagor, whereas attesting witnesses deposed otherwise---First attesting witness deposed that in his presence no conversation between parties had taken place as regards bye-bil-wafa, whereas second attesting witness deposed that term "bye-bil-wafa" was written by scribe himself---Market value of shop at relevant time as stated by mortgagor to be Rs.50/60 thousand, which was much more than mortgage money of Rs.10,000-According to mortgage deed, income of mortgage property and interest on loan was to be treated equal---Transfer of shop for a loan of Rs.10,000, i.e. less than its such market value, was in fact a "usufructuary mortgage" and not "mortgage by conditional sale"---Mortgagee had failed to prove such transaction to be "mortgage by conditional sale" or bye-bil-wafa.

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

----Ss. 58(c) & 60---Mortgage deed containing a clause to the effect that mortgagee would become owner in possession of property due to non-payment of mortgage money on expiry of stipulated period of six months---Mortgagor's plea was that such transaction was to be treated as sale and he would become owner of suit property on account of non-payment of mortgage money by mortgagor---Validity---Right of redemption as envisaged in S. 60 of Transfer of Property Act, 1882 was a statutory right affirming the principle that "once a mortgage always a mortgage"---Such condition was a clog on mortgagor's right of redemption, thus, same was illegal and void---No decree of court extinguishing mortgagor's right of redemption existed---Impugned transaction would remain as mortgage as parties had not subsequently converted same front mortgage into a sale by executing a sale deed--Possession of mortgagee over property remained as mortgagee and would not stand converted into possession as owner thereof.

Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others PLD 1971 Lah. 77 and Vernon v. Bethell

(2 Eden.113) rel.

(g) Laches---

----Principle of lathes would not attract to matter referable to Law of Limitation---Illustration.

Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486 rel.

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

---Ss. 58 & 60---Limitation Act (IX of 1908), S. 20 & Art.158---Redemption of mortgage, suit for---Limitation---Mortgage-Deed containing clause to the effect that income of property and interest on loan would be treated equal---Validity---Receipt of income of property by mortgagee in possession as payment of interest on loan would amount to acknowledgment on his part---Such acknowledgement would give fresh start to period of limitation by virtue of S.20 of Limitation Act, 1908---No period of limitation would run against mortgagor, who could redeem property at any time without mischief of law of limitation barring redemption after expiry of sixty years in terms of Art.158 of Limination Act, 1908.

Abdul Haq v. Ali Akbar and 12 others 1998 CLC 129 rel. Altaf ur Rehman Khan for Petitioners.

Ch. Ghulam Ahmed and Khan Imtiaz Ali Khan for Respondents. Date of hearing: 26th June, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 38 #

P L D 2014 Lahore 38

Before Syed Mansoor Ali Shah, J

FATIMA SUGAR MILLS LTD. AND OTHERS: In the matter of

C.O. No.10 of 2012, heard on 23rd October, 2013.

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

---Ss. 284, 285, 286 & 287---Compromises, arrangements and reconstruction of companies---Power of court to enforce compromises and scheme of arrangements between companies under the Companies Ordinance, 1984---Provisions for facilitating reconstruction and amalgamation of companies---Sanction of the Court for such schemes of arrangements ---Jurisdiction of the Court under Ss.284, 285, 286 & 287 Companies Ordinance, 1984---Nature scope and limits, explained.

Under sections 284' and 287 of the Companies Ordinance, 1984 the Court has to only ensure that the Scheme is made in good faith, is fair and reasonable, has commercial viability and is not adverse to the interest of the creditors or members or in any manner against the public interest. The Court is not to substitute its judgment over the collective commercial wisdom of the members or the creditors but is to actually supervise the Scheme in general so that it doesn't offend the parameters prescribed. It is the commercial wisdom of the parties to the Scheme who have taken an informed decision about the usefulness and propriety of the Scheme by supporting it by the requisite majority vote that has to be kept in view by the Court. The Court certainly would not act as a Court of Appeal and sit in judgment over the informed view of the concerned parties to the compromise, as the same would be in the realm of corporate and commercial wisdom of the concerned parties. The Court has neither the expertise nor the jurisdiction to delve deep into the commercial wisdom exercised by the creditors and members of the company who have ratified the Scheme by the requisite majority. Consequently the Company Court's jurisdiction to that extent is peripheral and supervisory and not appellate. The Court acts like an umpire in a game of cricket who has to see that both the teams play their game according to the rules and do not overstep the limits; and subject to that how best the game is to be played is left to the players and not to the umpire. If the Scheme as a whole is fair and reasonable, it is the duty of the Court not to launch an investigation upon the commercial merits or demerits of the case, which is function of those who are interested in the arrangement/Scheme.

It is, however, emphasized that the supervising power of the Court is not cosmetic or mechanical and the Court is not bound to accept the Scheme as a fait accompli. In exercising its powers under sections 284 and 287 of the Ordinance, the Court does not function as a mere rubber stamp or post office and it is incumbent upon the Court to be satisfied prima facie that the scheme is genuine, bona fide and in. the interests of the creditors and the company, Its function is to see that a Scheme as a whole is a reasonable one and if the Court so finds, it is not for the Court to interfere with the collective wisdom of the shareholders of the Company. It is only when the Court on its own motion or on the application moved by an objector is of the view that Scheme is against any law or unfair or fraudulent or disadvantageous to the minority shareholders or to the other key stakeholders falling outside the Scheme e.g., the Government or any other public authority e.g., Tax Department or the Utility Authorities that the Court refuses sanction or directs amendments before the sanction of the Scheme.

Under its supervising eye, if the Court is satisfied that the Scheme is fair, viable and is not adverse to the interest of the key stakeholders, the Court need not scrutinize the Scheme "in the way a carping critic, a hair-splitting expert, a meticulous .accountant or a fastidious dounsel would do but, it must be tested from the point of view of an ordinary reasonable shareholder, acting in a businessman-like manner, taking within his comprehension and bearing in mind all the circumstances prevailing at the time when the meeting was called upon to consider the scheme in question. It is also pointed out that, before the scheme is sanctioned, it would be the duty of the Court to see that the proposed scheme is a fair and reasonable one, but the initial burden in this respect would. be on the petitioner to show that, prima facie, the scheme is fair and reasonable one, such as a prudent and reasonable shareholder would approve of and not object to. The Court is really not concerned with the finer details of the architecture of the Scheme as long as the Scheme passes the broad test of fairness under the law and has received the assent of the majority shareholders. A Scheme may be open to criticism, but unless it is affirmatively shown to be unfair, the Court will not interfere. The Court cannot, therefore, undertake the exercise of scrutinizing the Scheme placed for its sanction with a view to finding out whether a better Scheme in the realm of commercial democracy permeating the activities of the concerned creditors and members of the company who in their best commercial and economic interest by majority agree to give green signal to a compromise or arrangement.

The jurisdiction of the Company Court while considering the Scheme does not extend to, ascertaining with mathematical accuracy if the determination of valuation of shares of the transferor and transferee companies by the valuer satisfies the arithmetical test. When the statutory formalities have been complied with and the scheme is fair and reasonable and there is no fraud involved, the Court must proceed to give effect to the business of the shareholders of the company.

A Ramaiya, Company Law Digest, Fifth Edition 1995, page 1493; Miheer H. Mafatlal v. Mafatlal Industries Ltd. AIR 1997 SC 506; Gujarat Ambuja Exports Ltd. Re, (2004) 118 Com Cases 265; A Ramaiya, Guide to the Companies Act, 17th Edition, 2010" pages 4070-4071; X Alabama, New Orleans, Texas and Pacific Junction Railway Co., (1891) I Ch. 213; Gaya Sugar Mills Ltd. v. Nand Kishore Bajoria AIR 1955 SC 441; Sidhpur Mills Co. Ltd., In Re, AIR 1962 Guj 305; Navjivan Mills Ltd., Re, (1972) 42 Corn Cases 256; Hoare and Co. Ltd. (1933) 150 LT 374 and (1994) 4 Comp. L.J. 267 rel.

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

----Ss. 284, 285, 286 & 287---Power of company court to enforce/sanction compromises and scheme of arrangements between companies under the Companies Ordinance, 1984---Valuation of assets---Jurisdiction of the Court under Ss.284, 285, 286 & 287 Companies Ordinance, 1984---Scope---Petition under Ss.284 to 287 of the Companies Ordinance, 1984 seeking sanction for a scheme of arrangement which envisaged the transfer of the "sugar undertaking" of one company to the transferee company against issuance of shares by the transferee company in favour of the transferor company---Said scheme of -arrangement had been unanimously approved by the members of both petitioner companies in extraordinary general meetings---Objection of the Securities and Exchange Commission of Pakistan ("SECP") to said scheme of arrangement was inter cilia that valuation assets for the same was done on 26-4-2010 and while the effective date was 1-10-2011, hence, assets of the companies had to be revalued and that stocks had not been revalued, therefore the scheme of arrangement did not reflect the correct position of assets---Validity---Parallel had to be drawn between scheme of arrangement or compromise and an ordinary compromise entered between the parties to a suit---Contents of such compromise were not to be minutely examined by the Court as they reflected consent and mutual understanding of the parties and which ordinarily did not concern the Court---Court was to simply ensure that such compromise should not be against public interest or against law or against any third party and it was not the function of the Court "to dot the i's and cross the t's" of the compromise and same was the case with the scheme of arrangement in the present case---Technical details regarding quantification of valuation of assets should best be left to the discretion of the parties---Case, of course, would have been different had the minority shareholders raised an objection regarding valuation of assets, which did not exist in the present case---Even otherwise, at best, fresh valuation could only affect the amount of stamp duty (if any) to be paid on the transfer of assets and such financial liability, if any, had been secured by the undertaking given by the petitioner companies in the present case---Objection raised SECP vis-a-vis valuation of assets, therefore, did not fall within the broad ambit of supervisory jurisdiction of the Court exercised while sanctioning a scheme of arrangement and such matter of details should best be left to the commercial wisdom of the companies unless they adversely impinged on the interest of parties---Objection raised by the SECP was overruled, in circumstances.

----S. 3, Sched. 1---Companies Ordinance (XLVII of 1984), Ss. 284, 285, 286 & 287---Compromises, arrangements and reconstruction of companies---Petition under Ss. 284 to 287 of the Companies Ordinance, 1984 seeking sanction for a scheme of arrangement which envisaged the transfer of the "sugar undertaking" of one company to the transferee company against issuance of shares by the transferee company in favour of the transferor company---Objection was raised that such transfer would attract liability of stamp duty under the Stamp Act, 1899---Held, that prima facie, there appeared to be merit in the argument regarding imposition of stamp duty, however, said matter required further deliberation and should be taken up separately---Petitioner companies, however, undertook that in case the issue of stamp duty was decided against the petitioner companies, they would unconditionally pay stamp duty as assessed on the effective date of the transfer subject to the petitioners first exhausting their lawful remedies before higher forum against any such order passed by High Court---High Court, fixed the date for arguments on the issue of stamp duty.

Imtiaz Rashid Siddiqui, Ali Asim Sayed and Shehryar Kasuri, Advocates along with Asim Zulfiqar Ali, Chartered Accountant, A.F. Ferguson and Co., Lahore for Petitioner.

Umair Mansoor, Advocate/Assistant Director Law for SECP, Anwaar Hussain, Advocate for Soneri Bank Ltd. and Muhammad Naveed, Executive (Legal) SECP, Lahore for Respondents.

Date of hearing: 23rd October, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 50 #

P L D 2014 Lahore 50

Before Umar Ata Bandial, C J

DIL AWAIZ KHAN---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Colonies Department and another---Respondents

Writ Petitions Nos.4638, 4639 and 4643 of 2011, heard on 25th July, 2013.

(a) Vested Right---

----Vested right was created when it was mature in every respect and no contingency existed before its completion---When merely the passing of a formal order remained in order to finalize the status of claimant; then such entitlement qualified as a "vested right".

Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599 rel.

(b) Constitution of Pakistan---

----Art. I99---Constitutional petition---Lease of State land---Sale of State land to lessee---Vested right, creation of---Scope---Petitioner was granted lease of sale land for establishing e fish farm, and thereafter applied for option of sale of said land, made available through a notification issued by the Provincial Board of Revenue---Application of petitioner was not considered yet, and his eligibility to purchase said land was still to be determined; when a subsequent notification was issued which annulled the earlier notification, under which the petitioner had applied for sale of land---Contention of the petitioner was inter alia, that he had acquired a vested right upon filing of option/application under the earlier notification to purchase the said land; which could not be taken away after issuance of subsequent notification---Validity---Matter of petitioner's eligibility to purchase the land had yet to be determined expressly, and without determination of eligibility of the proprietary rights of the petitioner by competent authorities, it could not be said that the petitioner had a mature right for obtaining sale of State land in his favour---Essential conditions for entitlement , in the present case, remained yet to be established, which were eligibility of the petitioner and price determination of said land; therefore such case could not fall within the ambit of a "vested right"---Impugned notification had not defeated or curtailed any existing legal right of the petitioner; and could not be interfered with---Constitutional petition was dismissed, in circumstances.

Dr. Syed Sharaf Ali Shah and 2 others v. Province of Sindh and others 2009 SCMR 249; Member (Colonies) Board of Revenue, Punjab and another v. Nadeem Akhtar and others Civil Appeal No.304-L of 2009; Mr. Rafiuddin v. Chief Settlement and Rehabilitation Commissioner PLD 1971 SC 252; Province of East Pakistan v. Major Nawab Hasan Askari and others PLD 1971 SC 82: Sheikh Rehmat Ullah v. Deputy Settlement Commissioner PLD 1963 SC 633; Nabi Muhammad and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599 and Mst. Bibi Sayeeda and others v. State of Bihar and others AIR 1996 SC 1936 ref.

Member (Colonies) BOR and another v. Nadeem Akhtar Civil Appeal No.304-L of 2009 and Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599 rel.

M.A. Ghaffar-ul-Haq for Petitioner.

Ahmad Rauf Addl. A.G., along with Muhammad Ikram, Litigation Clerk, DCO Office T.T. Singh and Zafar Abbas Assistant Colonies-II, BOR Punjab Lahore for Respondents.

Date of hearing: 25th July, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 57 #

P L D 2014 Lahore 57

Before Syed Mansoor Ali Shah and Mamoon R ashid Sheikh, JJ

COMMISSIONER INLAND REVENUE (LEGAL DIVISION), MULTAN---Appellant

Versus

Messrs MULTAN EDUCATIONAL TRUST, MULTAN---Respondent

T.R. No. 1 of 2011, heard on 1st November, 2013.

(a) Income Tax Ordinance (XLIX of 2001)

----S. 80(2)(b)(v) & 113---Societies Registration Act (XXI of 1860) S.1---Categories of "persons" under the Income Tax Ordinance, 2001---"Company" definition of---Society registered under the Societies Registration Act, 1860 to mean to be a "company" for the purpose of the Income Tax Ordinance, 2001---Scope---Contention of the assessee Society was that it did not fall within the definition of "Company" under S.80(2)(b)(v) of the Income Tax Ordinance, 2001 as it was merely registered under the Societies Act, 1860 and was not "established or constituted under any law for the time being in force"---Validity---Under S.80(2)(b)(v) of the Income Tax Ordinance, 2001 a Society established or constituted by or under any law for the time being in force shall mean to be a "company" for the purposes of the Income Tax Ordinance, 2001----Society, in the present case, was registered under the Societies Act, 1860---Society formed by the Societies Act, 1860 meant that the entity was the creation of the statute itself, in other words, the primary legislation itself established the Society, and the source being the Legislature itself; and the phrase "under an Act" meant that an entity was formed by complying with the procedure set out in the Societies Act, 1860 and not directly by the Societies Act, 1860---Society was formed under the umbrella of the Societies Act, 1860 by complying with the procedure under S.1 of the Societies Act, 1860 and did not have legal existence prior to it---Assessee Society, therefore, squarely fell within the definition of "company" under S.80(2)(b)(v) of the Income Tax Ordinance, 2001---Society, registered under the Societies Registration Act, 1860 was a body corporate established and constituted "under the Societies Act, 1860" and therefore fell within the definition of "company" under the Income Tax Ordinance, 2001; hence the respondent Society was liable to pay minimum tax under S.113 of the Income Tax Ordinance, 2001---Reference was answered in negative, in circumstances.

Commissioner of Income Tax/Wealth Tax Companies Zone-II Lahore v. Messrs Lahore Cantt. Cooperative Housing Society, Lahore and 7 others 2009 SCMR 715=2009 PTD 799 distinguished.

(b) Words and Phrases---

----"Formed", meaning of---"Formed" meant to constitute or to come into existence and also meant the set up, establish, found or bring into being.

Chamber's 21st Century Dictionary and Concises Oxford Thesaurus rel.

----Words "established or constituted under" an Act or any other law being in force for the time being---Meaning and connotation---"By an Act" would mean by a provision directly enacted in the statute in question and which is gatherable from its express language or by necessary implication therefrom---Words "under an Act" would, in that context, signify what was not directly to be found in the statute itself but was conferred or imposed by virtue of powers enabling this to be done; in other words, by laws made by a subordinate law-making authority which was empowered to do so by the parent Act.

Dr. Indramani Pyarelal Gupta and others v. W.R. Natu and others AIR 1963 SC 271 rel.

Ch. Muhammad Asghar Saroha for Petitioner (in T.R.Nos. 1, 5, 6, 7 and 8 of 2011).

Agha Muhammad Akmal Khan and Tariq Manzoor Sial, for Petitioner (in T.R.Nos. 34, 35, 36, 37 and 38 of 2011).

Asif Rasool, Additional Commissioner and Dr. Athar Ishaq, Deputy Commissioner, Inland Revenue, Multan for Petitioner.

Muhammad Usman Hadi from M.A. Hadi and Company, Accountants and Auditors for Respondent.

Date of hearing: 1st November, 2013.

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P L D 2014 Lahore 62

Before Syed Muhammad Kazim Raza Shamsi and Ibad-ur-Rehman Lodhi, JJ

JAVED IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.1940 of 2006, 120 and 962 of 2007 and Murder Reference No.598 of 2007, heard on 21st October, 2013.

(a) Medical jurisprudence---

----Decomposition of human body after death---Stages enumerated.

Following death, the human body progresses through following five basic stages of decomposition:

(i) Fresh:

The fresh stage begins immediately after death when circulatory system (heart beating/pumping blood) stops functioning. It is during this stage that blood settles with gravity creating a condition known as lividity. After several hours muscles also begin to stiffen in a process known as rigor mortis. Body temperature also being to acclimate to environment. Cells begin to break down and release enzymes during a process called autolysis which can cause blisters on skin. Anaerobic organisms in digestive tract beings to multiply, producing acids and gases (the source of bad odours). This process is often referred to as putrefaction.

(ii) Bloat:

As the name implies, the gases being produced during putrefaction begin to build and give the body a distended appearance. Gases and fluid eventually escape through natural orifices as the pressure builds. As gastrointestinal bacteria multiply and can lead to conditions like marbling which is a discolouration pattern seen in skin.

(iii) Active decay:

During this phase body begins to lose much of its fluids and mass (tissues) through purge and insect and / or vertebrae scavenging (coyote, fox, lion, etc.). During this phase one may see very large maggot masses and notice considerable increase in foul odours.

(iv) Advanced decay:

This phase is end of active decay process. Temperatures can either speed up (heat) or slow down (cold) how quickly a body reaches this space. The body has very little body mass and soil staining of surrounding soils is still evident. This soil staining (from body fluids) may actually kill some of the surrounding vegetation temporarily. Maggots migrate away from the body to pupate and flies cease laying eggs.

(v) Dry/skeletal:

This phase is the last measurable stage of decomposition. The timing of this stage varies widely by environment. It may take months. If there is any skin left, it becomes leather like and very tough. Mostly the body is reduced to bones and connective tissue. There is no biomass available for diverse insect colonization. Some beetles and adventitious insects may colonize a body for shelter or feeding on other insects and connective tissue. Over time bones may "bleach" (turn white) with exposure to sunlight and eventually begin to exhibit cracks after several years. These weathering cracks are distinctive and would not be confused with a fresh break (injury).

Parikh's Textbook of Medical Jurisprudence and Taxicology (5th Edn.) ref.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Recovery of skeleton---Murder, proof of---Extra judicial confession---Son of complainant went missing and ten days after one skeleton was found from bamboo crop which was alleged to be that of missing son and accused persons were sent to face trial for committing his murder---Trial Court convicted both the accused and awarded death sentence to one accused while the other was awarded imprisonment for life---Validity---On tenth day of missing of complainant's son, when a skeleton was found, it was believed by prosecution witnesses and complainant to that of missing boy's---In absence of any evidence with regard to attack of animals on dead body of deceased, it was not believable that dead body of human was completely decomposed within a period of ten days and converted into a complete skeleton---To prove offence of murder, death should be homicidal of which onus in criminal trial was on prosecution---In absence of legal proof of death being homicidal, because of serious lacuna of not obtaining report of Anatomy Expert to prove homicidal death, the benefit must go to accused and not to prosecution as the same sealed the fate of prosecution---Prosecution failed to prove with convincing evidence that a skeleton found on tenth day of missing of boy in bamboo crop was that of complainant's son---Even if it was believed that the skeleton was that of complainant's son, even then prosecution failed to establish homicidal death and it was beyond understanding as to how accused persons opened their breast by confessing murder before a person who was not previously known to them---Evidence with regard to extra judicial confession on the part of prosecution was result of padding by prosecution in order to add some colour in faded picture of prosecution---High Court, in exercise of appellate jurisdiction, set aside conviction and sentence awarded to accused persons by Trial Court and acquitted them of the charge---Appeal was allowed in circumstances.

----S. 302(b)---Qatl-e-amd---Circumstantial evidence---Reliance---Principles---Where entire prosecution version rests on circumstantial evidence, all circumstances from which conclusion of guilt is to be drawn must be fully established---Prosecution has to travel all the way to establish full chain of evidence which should be consistent only with hypothesis of guilt of accused persons and such circumstance should be of conclusive nature and definite tendency---Circumstances must be satisfactorily established and proved circumstances must bring home offence to accused beyond all reasonable doubts---Each circumstance by itself need not necessarily be conclusive but cumulatively must form unbroken chain of events leading to the proof of guilt---If such circumstances or some of them can be explained by any of reasonable hypothesis, accused must have benefit of such hypothesis---In assessing evidence, imaginary possibilities have no role to play---When there is no direct evidence, chain of events furnished by circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with innocence of accused.

Aftab Hussain Bhatti and Ch. Zulfiqar Moazzam for Appellant.

Saeed Ahmed Sheikh, Addl. Prosecutor General for the State.

Zafar Iqbal Chohan for the Complainant.

Date of hearing: 21st October, 2013.

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P L D 2014 Lahore 72

Before Syed Mansoor Ali Shah and Mamoon Rashid Sheikh, JJ

COMMISSIONER INLAND REVENUE ZONE-II, REGINAL TAX OFFICE, MULTAN---Appellant

Versus

Mrs. AMBREEN FAWAD C/O PAK ARAB FERTILIZERS LIMITED, MULTAN---Respondent

T.R. No.51 of 2011, heard on 4th November, 2013.

(a) Interpretation of statutes--

----"Beneficial legislation"---Meaning and scope of---Principles of interpretation, explained.

N.S. Bindra, Interpretation of Statutes, Tenth Edition, pp.341-342 & 348 rel.

(b) Interpretation of statutes---

----"Remedial or curative statutes"---Meaning and scope of---Principles of interpretation, explained.

N. S. Bindra, Interpretation of Statutes, Tenth Edition, pp.341-342 & 348 and Antonin Scalia & Bryan A. Garner, Reading Law, The Interpretation of Legal Texts, 2012, p.365 rel.

----Retroative legislation---Retrospective effect of legislation---Principles of interpretation---Scope---Retroactive legislation was looked upon with disfavour, as a general rule, and properly so because of its tendency to be unjust and oppressive---In the absence of any indication in the statute that the Legislature intended for it to operate retroactively, it must not be given retrospective effect---Where a statute however, was procedural, declaratory or explanatory or where a statute was passed for the purpose of supplying an obvious omission in a former statute, it was to operate retrospectively obviously because it did not affect vested rights.

Earl T. Crawford, The Construction of Statutes, 1940 pp.562, 563 and Taxmann Interpretation of Taxing Statutes, p.475 and 1993 SCMR 73 at 78 rel.

(d) Interpretation of statutes---

----Retrospective effect of beneficial, remedial or curative legislation---Meaning, object, scope and principles of interpretation for such statutes explained.

N. S. Bindra, Interpretation of Statutes, Tenth Edition, pp.341-342 & 348; Antonin Scalia and Bryan A. Garner, Reading Law, The Interpretation of Legal Texts, 2012, p.365; Earl T. Crawford, The Construction of Statutes, 1940 pp.562, 563; Taxmann Interpretation of Taxing Statutes, p.475; Commissioner of Income Tax v. Shahnawaz Ltd. and others 1993 SCMR 73 and State Bank of Pakistan v. Messrs Faisal Spinning Mills Limited 1997 SCMR 1244 rel.

(e) Interpretation of statutes---

----Beneficial legislation---Retrospective effect of beneficial legislation---Liberal interpretation---Scope---Beneficial legislation, generally, was to be given a liberal interpretation, however for the said legislation to have a retrospective effect, beneficial legislation must carry curative or remedial content---Such legislation must, therefore, either clarify an ambiguity or an omission in the existing law and must be explanatory or clarificatory in nature---While beneficial legislation was to be liberally interpreted, in order to advance the beneficent object of the statute, it in no manner meant that "beneficial legislation" or "liberal interpretation" necessarily included or interchangeably meant retrospective application of the statute---Unless the legislation was remedial, curative, explanatory or clarificatory, it could not be interpreted retrospectively merely on the ground that the legislation is generically beneficial in nature.

Commissioner of Income Tax v. Shahnawaz Ltd. and others 1993 SCMR 73 and State Bank of Pakistan v Messrs Faisal Spinning Mills Limited 1997 SCMR 1244 rel.

(f) Income Tax Ordinance (XLIX of 2011)---

----Second Sched. Part I, Cl.(130B) & S.150---Deduction of tax at source---Dividends---Dividends in specie---Conditional exemption on payment of tax on dividends in specie by virtue of Cl.(103B) of the Second Schedule to the Income Tax Ordinance, 2001---Retrospective application of such exemption---Scope---Contention of the taxpayer was that Cl.(103B) of Part I of the Second Schedule to the Income Tax Ordinance, which was introduced in the year 2010, applied retrospectively to the tax year 2008; therefore, the taxpayer was not liable to tax on payments of dividends in specie, for the tax year, 2008---Validity---Section 5 of the Income Tax Ordinance, 2001 was the charging section for the imposition of tax on dividends, and Cl.(103B) of Part I of the Second schedule to the Ordinance simply introduced a conditional exemption in the year, 2010 which did not remedy or cure any ambiguity or omission in the law, and on the contrary, provided an exemption from tax for the first time which was not in existence in the year 2008---Labelling said Cl. (103B) Part I of the Second Schedule to the Income Tax Ordinance, 2001 as remedial or curative legislation, was therefore, misconceived and it did not have a retrospective effect and had therefore, had no application to the tax year 2008---Reference was answered, accordingly.

Commissioner of Income Tax v. Shahnawaz Ltd. and others 1993 SCMR 73 and Dawood Cotton Mills v. Commissioner of Income Tax 2000 PTD 285 distinguished.

(g) Words and phrases---

----"Deduct", meaning of---Word "deduct" meant to take away money, points, etc. from a total amount; or to take away, separate, or remove, in numbering or estimating, to subtract often with from or out of, and to take away an amount from a total or take away or subtract from a sum.

Oxford Advanced Learner's Dictionary, 8th Edition, p.395; Webster's New International Dictionary, Second Edition, p.684; Merriam-Webster's Collegiate Dictionary, Eleventh Edition, p.324 and The Major Law Lexicon, 4th Edition 2010, p.1841 rel.

(h) Income Tax Ordinance (XLIX of 2001)---

----Ss. 150, 156(2) & 233(2)---Deduction of tax at source---Dividends---Dividends in specie---Deduction of tax in terms of S.150, Income Tax Ordinance, 2001 on payment of dividend in specie---Question before the High Court was whether a company paying dividend in specie to its directors was entitled to deduct tax in terms of S.150 of the Income Tax Ordinance, 2001---Held, that S.150 of the Income Tax Ordinance, 2001 implied that dividend should in such a form that deduction of tax therefrom was possible from the person paying the dividend---In case of dividend in specie, such deduction was not practically possible---Reference was to be made to S.156(2) of the Ordinance which stated that in case prize was not in cash, the person while giving the prize shall collect tax on the fair market value of the prize; which was similar to the case of Brokerage and Commission under S.233(2) of the income Tax Ordinance, 2001---Therefore, unless S.150 of the Income Tax Ordinance, 2001 separately provided for collection to tax from assessee at the time of deduction of tax, the same section could not be applied to "dividend in specie"---Reference was answered, accordingly.

Agha Muhammad Akmal Khan and Tariq Manzoor Sial, along with Asif Rasool, Addl. Commissioner, Inland Revenue, Multan for Petitioner.

Rana Muhammad Afzal for Respondent-Assessee.

Date of hearing; 4th November, 2013.

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P L D 2014 Lahore 82

Before Sayyad Mazahar Ali Akbar Naqvi and Aalia Neelum, JJ

GHULAM MUSTAFA---Petitioner

Versus

DISTRICT POLICE OFFICER, KASUR and 3 others---Respondents

Writ Petition No.26732 of 2013, decided on 21st October, 2013.

(a) Constitution of Pakistan---

----Arts. 189, 190 & 199---Penal Code (XLV of 1860), Ss. 302 & 324---Constitutional petition---Absconder---Qatl-e-amd and attempt to Qatl-e-amd---Judgment passed by Supreme Court---Applicability---Petitioner was acquitted by Trial Court but High Court convicted him and sentenced him to imprisonment for life---Petitioner filed appeal before Supreme Court but did not surrender and absconded---Supreme Court acquitted co-accused of the petitioner but dismissed appeal of petitioner being not maintainable---Petitioner sought acquittal from High Court on the plea that his co-accused had been acquitted by Supreme Court---Validity---Fugitive from law had lost normal rights as by himself frustrating procedure of law in complete derogation of direction recorded in judgment passed by court of competent jurisdiction---Absconder could not seek justice from a court of law---Constitutional petition filed by petitioner was not entertainable, which should have not been entertained by the office---Until and unless petitioner surrendered himself, thereby joining process of law, he could not claim relief sought for through constitutional petition---Petition was dismissed in circumstances.

Nur Elahi's case PLD 1966 SC 708; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and Khawaja Abdul Hameed Nasir and others v. National Bank of Pakistan and others 2003 SCMR 1030 ref.

Hayat Bakhsh and others v. The State PLD 1981 SC 265 and Hayat Bakhsh and others v. The State 1982 SCMR 623 rel.

(b) Appeal---

----Judgment without jurisdiction---Principle---Even if any judgment / order is recorded by a court without jurisdiction, appeal against that order lies in the manner as having been passed with jurisdiction.

Muhammad Ashfaq v. The State PLD 1973 SC 368 rel.

Sardar Muhammad Lateef Khan Khosa for Petitioner.

PLD 2014 LAHORE HIGH COURT LAHORE 87 #

P L D 2014 Lahore 87

Before Syed Iftikhar Hussain Shah, J

BAKHT MUNIR---Petitioner

Versus

QADIR KHAN and another---Respondents

Writ Petition No.2338 of 2013, heard on 28th October, 2013.

Punjab Rented Premises Act (VII of 2009) ---

----Ss. 15, 21 & 22---Constitution of Pakistan, Art. 199---Constitutional petition---Application for eviction of tenant---Ex parte proceedings against tenant---Scope---Tenant filed applications for setting aside ex parte proceedings and sought leave to contest which were dismissed concurrently---Contention of tenant was that Rent Tribunal had not issued notice in the form prescribed in the Schedule---Rent Tribunal should have issued notice in the form prescribed in the Schedule for appearance of tenant on the date not later than ten days---Said notice was to be accompanied by the copies of eviction application and documents annexed with the same---Rent Tribunal might proceed ex parte and pass any order if tenant had failed to appear in spite of service---Tenant might apply for setting aside ex parte order along with application for leave to contest within ten days from the knowledge of the same---Tenant, in the present case, could not be served through ordinary mode of service and he had appeared in response to the proclamation which did not contain the condition that leave application was required to be filed within ten days---No notice as prescribed by law having been served upon the tenant, tenant could not be burdened with the consequences of mandatory provisions of subsections (2) and (6) of S.22 of Punjab Rented Premises Act, 2009 when no notice in the prescribed form accompanied by the copies of eviction petition and documents annexed with the same was served upon him or was handed over to him while appearing before the Rent Tribunal---When law required a thing to be done in a particular manner, the same must be done accordingly---If prescribed procedure was not followed, it would be presumed that same had not be done in accordance with law---Non- compliance of directory provisions of subsection (1) of S.21 of Punjab Rented Premises Act, 2009 amounted to denial of a statutory right of tenant---Penalty of provisions of subsection (6) of S.21 of Punjab Rented Premises Act, 2009 could not be invoked in the event of such non-compliance of said statutory provisions---Mandatory provisions of law had been violated in the present case---Prescribed procedure had not been followed by the Rent Tribunal nor same was noticed by the Appellate Court---Impugned orders of both the courts below were set aside---Rent Tribunal was directed by High Court to decide application for leave to contest afresh and then to proceed further in accordance with law---Constitutional petition was accepted accordingly.

Ghulam Murtaza v. Rana Muhammad Hafeez and another 2010 YLR 3189 and Tayyab Hussian v. Rent Controller Gujrat and others PLD 2012 Lah. 41 distinguished.

Munir Bashir Ansari for Petitioner.

Qazi Waqar Hussain for Respondents.

Date of hearing: 28th October, 2013.

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P L D 2014 Lahore 92

Before Sh. Najam-u-Hasan and Mehmood Maqbool Bajwa, JJ

BANK OF PUNJAB through Group Head of its Special Projects---Petitioner

Versus

ACCOUNTABILITY COURT NO.1, LAHORE and 2 others---Respondents

Writ Petition No.1709 of 2013, decided on 2nd October, 2013.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction, invoking of---Adequate and alternate remedy---Principle---In order to invoke constitutional jurisdiction under Art.199 of the Constitution, seeking relief by way of writ of 'mandamus' or 'certiorari', there must be an 'aggrieved party' calling in question 'Action' or 'Omission' of a person, functioning in connection with affairs of Federation, a Province, or a local authority, provided no other adequate remedy is available to such party---Constitution has put clog upon aggrieved to invoke constitutional jurisdiction of High Court if 'adequate remedy' is available to such party, as it does not speak of 'alternate remedy'---Every alternate remedy provided by law may not be considered as 'adequate remedy' in each and every case and question of efficacy has to be determined keeping in view facts and circumstances.

Mian Sultan Ali Anghiana v. Mian Nur Hussain PLD 1949 Lah. 301; Shaukat Khan v. Assistant Political Agent, Landi Kotal, Khyber Agency and others PLD 2002 SC 526; Wealth Tax Officer and another v. Shaukat Afzal and 4 others 1993 SCMR 1810; Inayat Bibi and others v. Ejaz Ahmad and others 1996 SCJ 408; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokhat Bhai and 10 others PLD 1975 SC 244; The Presiding Officer v. (1) Sadruddin Ansari and (2) Lal Muhammad Bin Yousuf PLD 1967 SC 569; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644; Muhammad Afzal and others v. Government of Pakistan and others 1987 SCMR 2078; Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 and Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat, Quetta and 2 others v. Murree Brewery Company Ltd. through Secretary PLD 2007 SC 386 rel.

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

----S. 25(b)---Plea bargain---Finality---Order made under S.25(b) of National Accountability Ordinance, 1999, is subject to approval of Trial Court or Appellate Court, as the case may be and is not subject to challenge because nothing has been provided in National Accountability Ordinance, 1999, in such regard.

----"Aggrieved party"---Defined.

Black's Law Dictionary 6th Edn. (Centennial Edn. (1891-1991) ref.

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

----S. 25(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Aggrieved party---Scope---Plea bargain, assailing of---Complainant bank was aggrieved of plea bargain order passed by NAB and approved by Trial Court---Objection raised by accused was that complainant had no locus standi to assail the order---Validity---Not only a colossal amount of money / property belonging to at least one million depositors i.e. a large section of public, was at stake but existence of complainant bank was also at stake---Objection raised by accused was based on surmises and conjectures---Material available on record proved that complainant bank was 'aggrieved party' within the meaning of Art.199 of the Constitution---Petition was maintainable in circumstances.

Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109 fol.

(e) Words and phrases---

----"Prerogative"---Defined.

Black's Law Dictionary 6th Edn (Centennial Edn. (1891-1991); Muhammad Afzal and others v. Government of Pakistan and others 1987 SCMR 2078; Asadullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445; Province of Balochistan through Secretary Excise and Taxation Department, Civil Secretariat, Quetta and 2 others v. Murree Brewery Company Ltd. through Secretary PLD 2007 SC 386 and Oxford Dictionary rel.

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

----S. 25(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Plea bargain---Prerogative of Chairman NAB---Scope---Order of plea bargain was passed by Chairman on application filed by accused and the same was approved by Trial Court---Complainant bank assailed order of plea bargain on the plea that Chairman NAB had wrongly exercised his discretion---Validity--- Prerogative was a discretionary power to be exercised for public good---Exercise of prerogative could be examined by court just as any other discretionary power which was vested in the executive---Claim of absolute immunity to the decision of Chairman NAB could not be endorsed---Power of judicial review as compared to jurisdiction was available to superior Courts enshrined by the Constitution which could neither be curtailed or abridged---Petition before High Court was not filed either by convict or by NAB but jurisdiction had been invoked by aggrieved party on the grounds of exercise of discretion on wrong premises and un-reasonableness etc.---Decision of Chairman NAB was outcome of "illegality" "irrationality" and "procedural impropriety" and was also against principle of "structuring of discretion"---Decision of Chairman NAB was also based on exercise of discretion not warranted by law and against public policy while accepting terms and conditions of plea bargain particularly with reference to determination of liability and mode of payment---High Court set aside decision of Chairman NAB and order passed by Trial Court and matter was remanded to the Chairman to re-examine and decide offer of plea bargain made by accused, after providing opportunity of hearing to complainant bank by adopting any mode in accordance with law---Petition was allowed accordingly.

Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109; "Suo-Motu case No.18 of 2010 In the matter of; PLD 2011 SC 927, Tariq Aziz-ud-Din and others, Human Rights Cases Nos.8340, 9504-G, 13936-G, 13635-P, 14306-G to 43309-G of 2009, 2010 SCMR 1301; The Montgomery Flour and General Mills Ltd. Montgomery v. The Director, Food Purchased West Pakistan and others PLD 1957 (W.P) Lah. 914; Abid Hussain and others v. P.I.A.C. and others 2005 SCMR 25; Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Sharp v. Watefied (1891) AC 173); Walayat Ali Mir v. Pakistan International Airlines Corporation through Chairman and another 1995 SCMR 650; Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others 2013 SCMR 817; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; State of NCT of Delhi and another v. Sanjeen Alias Bittoo (2005) 5 SCC 181; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others (1991) SUPP. (1) SCC 600; Ramana Dayaram Shetty v. International Airport Authority of India and others (1979) 3 SCC 489; Commissioner of Income Tax, Bombay and others v. Mahidra and Mahindra Ltd. and others AIR 1984 SC 1182; Mrs. Maneka Gandhi v. Union of India and another (1978) 1 SCC 248 and Tata Cellular v. Union of India (1994) 6 SCC 651 rel.

Dr. Muhammad Anwar Kurd and 2 others v. The State through Regional Accountability Bureau Quetta 2011 SCMR 1560; Ghulam Nabi v. Province of Sindh and others PLD 1999 Kar. 372; Federation of Pakistan through Secretary, Government of Pakistan, Establishment Division, Islamabad v. Mirza Muhammad Irfan Baig and 4 others 1992 SCMR 2430; Muhammad Zahir Shah and 49 others v. Provincial Police Officer, Khyber Pakhtunkhwa, Peshawar and 4 others 2012 PLC (C.S.) 905; Ghulam Nabi v. Province of Sindh and others PLD 1999 Kar. 372 and Mumtaz Ali Bohio and 24 others v. Federal Public Service Commisisn through Chairman at Islamabad and others 2002 SCMR 772 distinguished.

Mian Fazal Din v. Lahore Improvement Turst, Lahore and another PLD 1969 SC 223; Muhammad Afzal and others v. Government of Pakistan and others 1987 SCMR 2078; Controller of Patents and Designs, Karachi and others v. Muhammad Quadir Hussain 1995 SCMR 529; Abid Hussain and others v. P.I.A.C. and others 2005 PLC (C.S.) 1117; Federation of Pakistan and others v. Ch. Muhammad Aslam and others 1986 SCMR 916; Government of N.W.F.P. through Secretary Education and others v. Rukhsar Ali and 24 others 2005 SCMR 22; Khan Asfand Yar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607;Asian Food Industries Ltd. and others v. Pakistan and others 1985 SCMR 1733; Province of Punjab through Chief Secretary and 5 others v. Malik Ibrahim and sons and another 2000 SCMR 1172; Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 and Collector of Customs, Lahore and others v Universal Gateway Trading Corporation and another 2005 SCMR 37 ref.

(g) Constitution of Pakistan---

----Art.199---Judicial review---Pre-conditions---Three conditions to interfere in action falling within the executive domain detailed.

Following are the conditions to interfere in action falling within the executive domain:--

(1) "Illegality" which means that decision maker must understand correctly the law that regulates his decision making power and must give effect to it.

(2) "Irrationality" was referred to as "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance or logic or of accepted moral standards that no sensible person who had applied his mind to the question to be settled could have arrived at it.

(3) "Procedural Impropriety" is another ground which means and includes failure of authority to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.

Asia Foundation and Construction Ltd. v. Trafalgar House Construction Ltd. (1997) 1 SCC 738; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Council of Civil Service Unions and others v. Minister for the Civil Services (1985) 1 AC 374; Ch. Iftikhar Ahmed v. Chief Secretary Punjab and others 2012 PLC (C.S.) 1470; Inland Revenue Commissioners and National Federation of Self Employed and Small Business Ltd. (1982 Law Reports (Appeal Cases) 617 and Preston v. Inland Revenue Commissioners (1985) 2 All ELR 327 rel.

(h) Administration of justice---

----Dispensation---Scope---Dispensation of justice being sacred duty not only requires judicial or quasi-judicial authority but also cast equal responsibility upon public functionaries to act fairly, justly, without any discrimination and keeping in view the relevant law, rules etc.

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

----S. 25(b)---Plea bargain---Expression "in his discretion after taking into consideration the facts and circumstances of the case accept the offer on such terms and conditions, as he may consider necessary"---Chairman NAB, exercise of discretion---Scope---Assignment and duty cast upon Chairman NAB under S.25 (b) of National Accountability Ordinance, 1999, is not administrative in nature but is of quasi-judicial in nature---Chairman NAB has to protect and safeguard rights and interest of party as well who was victim of accused.

(j) Maxim---

----"Audi alteram partem"---Applicability---Such principle is applicable to judicial as well as non-judicial proceedings and executive acts and it has to be read into every statute subject to certain exceptions---If right of hearing has not been expressly provided in a statute, provisions of the Constitution can be put into service.

Mrs. Maneka Gandhi v. Union of India and another (1978) 1 SCC 248; Mrs. Anisa Rehman v. P.I.A.C. and another PLD 1994 SC 2232 and Justice Khurshid Anwar Bhinder and others. v. Federation of Pakistan and another PLD 2010 SC 483 rel.

(k) Constitution of Pakistan---

----Art.199---Constitutional petition---Substituting of findings---Scope---While setting aside order of authority in constitutional jurisdiction, High Court cannot substitute its own findings in place of findings of such authority.

Shah Jahan and others v. Syed Amjad Ali Hawaldar and others 2000 SCMR 88 and Tata Cellular v. Union of India (1994) 6 SC 651 rel.

Mustafa Ramday assisted by Jahanzeb Inam for Petitioner.

Haroon-ur-Rasheed Cheema, Addl. Deputy Prosecutor General and Syed Faisal Raza Bukhari, Addl. P.-G. for Respondents.

Asad Manzoor Butt for Respondent No.3.

Dates of hearing: 4th, 18th June, 24th, 25th and 26th September, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 131 #

P L D 2014 Lahore 131

Before Muhammad Farrukh Irfan Khan, J

AZHAR MEHMOOD---Petitioner

Versus

Ms. HAFEEZ-UN-NISA---Respondent

Writ Petition No.734 of 2010, decided on 9th September, 2013.

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

----Ss.5, Sched. & 10(4)---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on the basis of khula---Claim of dower amount and maintenance by wife---Scope---Suit for dissolution of marriage filed by wife was decreed in her favour on the basis of khula but the claim of recovery of dower amount and maintenance was dismissed---Appellate court partially allowed the appeal and granted maintenance allowance---Validity---Lady had demanded dissolution of marriage on the basis of khula, therefore she was not entitled to receive any kind of dower from the husband---Findings of lower appellate court were non-sustainable in the eyes of law and the same were set aside.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Suit for recovery of dowry articles i.e. clothes and gold ornaments mentioned in the list of dowry articles---Scope---Suit filed by lady was decreed as per list of dowry articles provided by her before Family Court---Appellate court modified the judgment of Family Court and excluded the clothes and gold ornaments from list of dowry articles---Contention of the lady was that she had proved the list of dowry articles through cogent and reliable evidence, therefore appellate court had unjustifiably modified the judgment of Trial Court---Validity---Parties had remained in nuptial tie for more than ten years---Clothes mentioned in list of dowry articles would have lost their utility by their use for such a long time during subsistence of marriage---Gold ornaments which were very dear to a lady and usually remain in her custody, lady claiming the same could not establish through cogent and reliable evidence that the articles/ gold ornaments were snatched by husband from her---Appellate court had rightly rectified the order of Family Court by excluding the articles in question from the list of dowry articles---Constitutional petition was dismissed.

Ch. Anjum Rafique for Petitioner.

Raja Farrukh Arif Bhatti for Respondent.

PLD 2014 LAHORE HIGH COURT LAHORE 135 #

P L D 2014 Lahore 135

Before Amin-ud-Din Khan and Abid Aziz Sheikh, JJ

FARAMETAL CRAFTS (PVT.) LTD---Appellant

Versus

NASIR MEHMOOD and others---Respondents

R.F.A. No.183 of 2007, heard on 22nd October, 2013.

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

----S. 13---Civil Procedure Code (V of 1908), O.VII, R.11 & O.VI, R.14---Pre-emption suit---Performance of talbs on behalf of company---Scope---Rejection of plaint---Scope---Contention of defendants was that suit was not filed by the authorized person---Application for rejection of plaint was accepted by the Trial Court---Validity---Specific pleading must be with regard to authorization for performing talbs and for filing pre-emption suit---Juristic person (company) had filed the present suit through its Chairman but there was no mention of any prior resolution authorizing him for performing talbs or filing the suit which was necessary---Difference of one hour in the time of knowledge of sale was on record as pleaded by the plaintiff which was not specific---No illegality or material irregularity was pointed out in the impugned order passed by the Trial Court---Appeal was dismissed in circumstances.

PLD 2004 Kar. 17; PLD 1997 Kar. 276 and 2009 CLD 194 rel.

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

----Ss. 13 & 6---Talbs, performance of---Procedure---Right of pre-emption---Person competent to file pre-emption suit---Scope---Suit for pre-emption was filed on the basis of right in the property sold on the basis of property already held by the pre-emptor---Right of pre-emption was not a personal right, it being in the nature of a limitation on the power of vendor, enforceable on sale which was a condition precedent not the existence of the right but to its enforceability ---Such was not a right of repurchase either from the vendor or from the vendee but it was simply a right of substitution---Juristic person (company) could file suit for pre-emption as same could hold and acquire property---Talbs could be performed by the juristic person (company)through authorized person who must have specific authorization for making each of the talbs---Person making talbs must have authorization on behalf of the juristic person (company)prior to performing Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khasumat---Prior authorization must be by the juristic person (company) before the knowledge of sale in favour of authorized person for performing talbs.

Malik Bashir Ahmad Khan and others v. Qasim Ali and others PLD 2009 SC 183; Secretary, B & R, Government of West Pakistan and 4 others v. Fazal Ali Khan PLD 1971 Kar. 625; Abdul Rahim Khan v. Asif Ali and others 2003 MLD 178; Dwarka Das v. Hussain (1878) ILR (Allahabad) 564 and Unair Ali Khan and others v. Faiz Rasool and others PLD 2013 SC 190 rel.

----Art. 260---"Person"---Meaning---Word "person" would include any body politic or corporate.

(d) Words and phrases---

----"Juristic person"---Meaning.

Black's Law Dictionary and Online Free Dictionary rel.

Muhammad Farooq Qureshi Chishti for Appellant.

Iqbal Ahmad Malik for Respondents.

Mian Hameed-ud-Din Kasuri and Sheikh Naveed Shehryar, Amicui Curiae.

Date of hearing: 22nd October, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 144 #

P L D 2014 Lahore 144

Before Ch. Muhammad Masood Jahangir, J

FALAK SHER---Petitioner

Versus

MUHAMMAD NAEEM and another---Respondents

Civil Revision No.2600 of 2013, decided on 18th November, 2013.

Civil Procedure Code (V of 1908)---

----S. 47 & O.XXI, R.99---Specific Relief Act (I of 1877), S.12---Suit for specific performance of contract---Disposal of objection petition without framing of issue---Scope---Execution petition was filed wherein objection petitions were submitted which were dismissed by the Executing Court---Validity---Executing Court dismissed objection petition and said order had not been challenged before any appellate forum and same had attained finality---Second objection petition on the same ground was not maintainable---Execution of decree could not be stopped by filing repeated objection petitions---Only objection petition filed in good faith could be considered---Objection petitions, in the present case, were based on oblique motive---Executing Court had rightly dismissed the same without framing of issues or recording of evidence---If Executing Court was allowed to disposed of objections in terms of issues framed in each and every case then entire jurisdiction of court could be subverted and fresh endless proceedings would start which was not the mandate of law---Petitioner had not approached the High Court with clean hands, revision was dismissed in circumstances.

Muhammad Ahmad Khan Kasuri for Petitioner.

PLD 2014 LAHORE HIGH COURT LAHORE 148 #

P L D 2014 Lahore 148

Before Iftikhar Hussain Shah and Muhammad Qasim Khan, JJ

MUHAMMAD ALI ABBAS---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.93 of 2013, decided on 2nd April, 2013, Per Iftikhar Hussain Shah and Muhammad Qasim Khan, JJ

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

----S. 403---Double jeopardy---Scope---Applicability---Pre-conditions for attracting the provisions of S.403, Cr. P. C., were that there must have been an earlier trial of the accused seeking protection against second trial for the offence charged; that the facts alleged in the earlier trial were the same sought to be proved in the second prosecution/trial; that the trial must have been conducted by a court of competent jurisdiction and that the trial must have ended in a judgment of conviction or acquittal.

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

----Ss. 403 & 265-K---Drugs Act (XXXI of 1976), Ss. 42, 11, 23, 27, 5, 7 & 41---Drugs (Licensing, Registering and Advertising) Rules, 1976, R.12--- Constitution of Pakistan, Art.13---Double jeopardy---Allegation against the accused was that he was possessing sub-standard medicines for the purpose of sale---Contention of the accused was that the Provincial Quality Control Board had penalized him and recommended for the suspension of the Registration Certificate of the drugs and he could not be vexed twice for the same offence---Accused moved application for his acquittal but the same was dismissed by the Trial Court---Validity---Accused had not been tried for the offence of keeping and selling sub-standard medicines by competent court of law and only charge had been framed in the complaint against him and evidence was yet to be recorded and the final order of acquittal or conviction was yet to be passed---Principle of double jeopardy, in circumstances, could not be said to be attracted in the case---Order passed under S.42 of the Drugs Act, 1976, regarding the cancellation or suspension of registration of registered drug was an administrative order and the penalty of suspension of registration did not amount to acquittal or conviction of the accused persons for the offence committed by them for manufacturing, keeping and selling the sub-standard drugs--- Principle of double jeopardy could not be made applicable while deciding the charge against an accused person by the Drug Court and penalizing him under S.27 of the Drugs Act, 1976---Suspension of licence of the accused under S.41 of the Drugs Act, 1976, was a penalty under administrative domain of the Central Licensing Board and said Board had the authority to proceed against him---Revision was dismissed.

Rana Muhammad Maqsood Afzal Khan for the Petitioner.

Munir Ahmad Sial, DPG as well as Zafarullah Khan, A.A.G. on Court's call.

Hassan Haider, Drug Inspector.

PLD 2014 LAHORE HIGH COURT LAHORE 154 #

P L D 2014 Lahore 154

Before Ali Baqar Najafi, J

MUHAMMAD SHIRAZ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJJAR KHAN and others---Respondents

Writ Petition No.4734 of 2010, decided on 24th May, 2013.

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

----S. 5, Sched---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance and jewellery---Conditions of Nikahnama---Scope---Husband filed suit for restitution of conjugal rights whereas wife filed suit for recovery of maintenance allowance and for implementation of conditions imposed in Nikahnama---Trial Court decreed suit of wife which was maintained by the Appellate Court with certain modifications---Validity---Plaintiff-wife could not prove that she had any other gold ornaments except 7-tolas gold bangles which allegedly were already taken by husband with the promise that he would purchase gold ornaments of equal weight for her---Plea of wife that 10-tolas gold ornaments were the same which were given to her on the eve of marriage vide clause 17 of Nikahnama and was to be retained by her but same were not purchased by him as promised---Maintenance fixed and conditions for payment of amount under clause 20 of Nikahnama were to be made applicable only on the desertion of plaintiff-wife---Condition for payment of amount on desertion did not become operative in presence for decree of restitution of conjugal rights---Clause 17 of Nikahnama imposing condition did not come within the ambit of actionable claim---Constitutional petition, in circumstances, was partly allowed to the extent of imposition of clause 17 and claim under clause 20 of Nikahnama and was dismissed to the extent of maintenance.

Sakina Bibi v. Muhammad Latif and others 2003 YLR 1006 rel.

Arshad Ali v. Additional District Judge Vehari and others 2002 CLC 1450 and Muhammad Akram v. Mst. Hajra Bibi and 2 others PLD 2007 Lah. 515 distinguished

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

----S. 5, Sched.---Transfer of Property Act (IV of 1882), 130---Transfer of actionable claim---Scope---Clause 17 of Nikahnama imposing condition did not come within the ambit of "actionable claim".

Sakina Bibi v. Muhammad Latif and others 2003 YLR 1006 rel.

Raja Saghir-ur-Rehman for Petitioner.

S. Mansoor Hussain Bukhari for Respondents Nos. 3 and 4.

Date of hearing: 24th May, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 158 #

P L D 2014 Lahore 158

Before Mehmood Maqbool Bajwa and Amin-ud-Din Khan, JJ

Mian ABDUL KARIM---Appellant

Versus

PROVINCE OF PUNJAB through District Officer (Revenue) Lodhran and 5 others---Respondents

R.F.A. No.108 of 2009, heard on 18th September, 2013

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

----O. XVII, Rr. 3 & 1 (3)---Land Acquisition Act (I of 1894), S. 18---Reference to court---Closure of evidence---"Sufficient cause"---Scope---Contention of plaintiff was that the date when his right to produce evidence was closed was not given at his request---Reference was dismissed by the Referee Court closing right of plaintiff to produce evidence---Validity---No condition that request for adjournment must be made on the part of defaulting party for attracting the provisions of O.XVII, R.3, C.P.C. was found mentioned in the said provision---Court should proceed with the suit forthwith where sufficient cause was not shown for grant of adjournment---Previous date of hearing when evidence of plaintiff was not present was not given at his exclusive request---Provision of O. XVII, R.3, C.P.C. was not applicable in the present case---Frequent and liberal adjournments were granted to the plaintiff for production of his evidence which he failed to produce---Neither any ground had been given for indulgence in favour of plaintiff in the memorandum of appeal nor for the non-production of evidence on the day when same was closed---Conduct of plaintiff was result of negligence---Law would help those who were vigilant and not indolent---Expression "sufficient cause" had to be interpreted liberally in order to advance cause of justice but element of vigilance was required to be kept in mind---Facts of the case were not sufficient to grant premium to the plaintiff---Trial Court should have closed evidence under O. XVII, R.1(3) instead of O.XVII, R.3, C.P.C.---Impugned judgment and decree did not call for any interference---Appeal was dismissed while rectifying the provisions under which evidence was closed.

Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434; Jind Wadda and others v Abdul Hamid and another PLD 1990 SC 1192; Qutab-ud-Din v. Gulzar and 2 others PLD 1991 SC 1109; Zahoor Ahmed v. Mehra through Legal Heirs and others 1999 SCMR 105; Pirzada Amir Hussain and others v. Mrs. Shamim Shah Nawaz and others 1987 SCMR 249 and Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others 2002 CLC 1111 ref.

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

----O. XVII, R. 1 (3)---"Sufficient cause"---Meaning---Expression "sufficient cause" meant a cause and reason beyond the control of the party ruling out the element of culpable slackness and negligence.

Muhammad Ramzan Khalid Joiya for Appellant.

Zafarullah Khan Khakwani, A.A.G. for Respondents.

Malik Muhammad Tariq Rajwana for contesting Respondents.

Date of hearing: 18th September, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 163 #

P L D 2014 Lahore 163

Before Ijaz Ahmad, and M. Sohail Iqbal Bhatti, JJ

Haji SIKANDAR---Appellant

Versus

HOME SECRETARY and others---Respondents

I.C.A. No.49 of 2012, decided on 28th November, 2012.

Constitution of Pakistan---

----Arts. 199, 45, 2A & 227---Criminal Procedure Code (V of 1898), S.402-C---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Remission of sentence---Power of President to grant remission with regard to sentence---Subordinate legislation---Scope---Petitioner filed constitutional petition against the remission granted to the accused but same was dismissed---Validity---Provision enshrined in the Constitution would prevail notwithstanding anything contrary contained in the subordinate legislation---President had unfettered powers to grant remissions with regard to offences and no clog stipulated in the subordinate legislation could abridge such power of the President---Provincial Government and other authorities competent under the law could grant remissions to the prisoners in accordance with law---Section 402-C, Cr.P.C. had been incorporated in the legislation in exercise of powers conferred by the Constitution--Intra court appeal was dismissed, in circumstances.

Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595; Nazar Hussain and another v. The State PLD 2010 SC 1021 and Abdul Malik and others v. The State and others PLD 2006 SC 365 rel.

Ch. Imran Hassan Ali for Appellant.

Sher Afzal Khan for Respondent No.8.

Khurshid Ahmad Satti, A.A.G. with Tahir Assistant Superintendent Jail for the State.

Date of hearing: 28th November, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 167 #

P L D 2014 Lahore 167

Before Muhammad Farrukh Irfan Khan, J

SNGPL---Petitioner

Versus

OGRA and others---Respondents

OGRA Petition No.660 of 2011, decided on 4th June, 2013.

(a) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)--

----Ss. 4(1), 4(4) & 12---Oil and Gas Regulatory Authority ("Authority")---Meetings of the Authority---Quorum---Decisions of the Authority---Invalidity of the decision of the Authority---Appeal to High Court---Review---Scope---Appellant impugned order of Authority passed in a review before it, on the ground that same was coram non judice as it had been passed by two members of the Authority excluding the Chairman, which was a violation of S.4(1) of the Oil and Gas Regulatory Authority Ordinance 2002---Contention of OGRA on the other hand was that impugned order was valid under protection available by virtue of S.4(4) of the Ordinance and that since the Chairman OGRA was on forced leave, therefore, two members of the Authority sat on the review---Held, that no vacancy was in existence at the relevant time when the impugned order was passed and the Chairman OGRA was on forced leave, therefore, OGRA could not take benefit of S.4(4) of the Oil and Gas Regulatory Authority Ordinance, 2002 in order to justify its decision---Record showed that three members of the Authority had rejected the appeal of the appellants, by a majority decision of two members, and in such a scenario, propriety demanded that review arising therefrom must also be heard and decided by three members of the Authority---Impugned order was therefore passed by an incompetent authority and was in violation of S.4(1) of the Oil and Gas Regulatory Authority Ordinance, 2002 and was set aside.

Nisar Ahmad and others v. Naveed-ud-Din and others 2004 SCMR 604 rel.

(b) Administration of justice ---

----If an incompetent authority passed a basic order, then the whole superstructure built thereupon was liable to fall automatically.

Syed Shujat Hussain v. Capital Development Authority through Chairman and another PLD 2001 Lah. 418 rel.

----Affording an opportunity of hearing to a party affected by an order was sine qua non for passing of any such order.

Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678 rel.

Umer Sharif for Petitioner/SNGPL (in OGRA Petition No.660 of 2011).

Sikander Hassan Khan for Petitioner (in W.P.No.19340 of 2011).

Shaukat Umar Pirzada for Respondent/OGRA.

PLD 2014 LAHORE HIGH COURT LAHORE 173 #

P L D 2014 Lahore 173

Before M. Sohail Iqbal Bhatti, J

RASHID ALI---Petitioner

Versus

SECRETARY INDUSTRIES and others---Respondents

Writ Petition No.2344 of 2013, decided on 28th November, 2013.

Constitution of Pakistan---

----Arts. 199 & 174---Civil Procedure Code (V of 1908), S.79---Constitutional petition---Maintainability---"Sasti roti scheme" introduced by the Government---Suspension of supply of flour at subsidized rate---Closure of mechanical roti plants---Policy matters of Government, interference by the High Court under Art.199 of the Constitution---Scope---Petitioner had failed to point out any documentary evidence suggesting that the mechanical tandoors had been closed---High Court should not interfere in the domain of policy matters of Government which would require consideration of various factual aspects and could not sit as a court of appeal over the policy decisions and substitute its own decision with the decision of the Government unless it proved that the decision by Government had been made in excess of jurisdiction or same was arbitrary and devoid of any justification---High Court might have interfered in the policy being violative of constitutional mandate if there was any embargo on the running of such tandoors---No such embargo having been placed, petitioner was allowed to operate mechanical tandoors on commercial basis---Act of Government with regard to suspension of flour at subsidized rate was not interfered by the High Court---Petitioner had not impleaded Government as respondents which was a mandatory---Constitutional petition was not maintainable in circumstances---Constitutional petition was dismissed.

Institute of Chartered Accountants of Pakistan, Karachi and others v. Federation of Pakistan and others 1998 SCMR 2679 and Dossani Travels Pvt. Ltd. and 4 others v. Messrs Travels Shop (Pvt.) and others 2013 SCMR 1749 rel.

Raja Muhammad Farooq for Petitioner.

Khurshid Ahmad Satti, A.A.G.

Kashif Mushtaq, Senior Law Officer for Respondents-Department.

PLD 2014 LAHORE HIGH COURT LAHORE 177 #

P L D 2014 Lahore 177

Before Abdus Sattar Asghar, J

FAQIR MUHAMMAD---Petitioner

Versus

MUHAMMAD SHAKIL---Respondent

Civil Revision No.3700 of 2011, decided on 14th May, 2013.

(a) Defamation Ordinance (LVI of 2002)---

----S. 3---Defamation---Scope---Libel or slander---Defamation was the publication of a statement which reflected on a person's reputation and tended to lower him/her in the estimation of right thinking members of society generally or tended to make them shun or avoid him/her---Defamation ordinarily took the form of two separate torts i.e. libel and slander---Libel was actionable per se and injury to reputation would be presumed---Three elements which must exist to prove element of libel or slander were that imputation must be defamatory; that it must identify or refer to the claimant and that it must be published/communicated to at least one person other than the claimant.

(b) Defamation Ordinance (LVI of 2002)---

----Ss. 3, 4 & 9---Defamation---Damages---Contention of the plaintiff was that defendant filed an application before District Police Officer attributing false implication of theft of his cattle against the plaintiff and imputing derogatory statements against him---Such was dismissed concurrently---Validity---Documentary evidence produced by the petitioner-plaintiff failed to contain any defamatory imputation and any allegation of theft of cattle against the petitioner-plaintiff---Contents of application did not fall within the ambit of libel---Witness of petitioner-plaintiff appearing in the witness box stated that the petitioner-plaintiff bore a good reputation and commanded the honour and respect in the area and he had not stated that the imputation of the respondent-defendant had lowered the respect or reputation of the petitioner-plaintiff in his estimation or in the estimation of right thinking members of the society in general or made him shun to avoid the petitioner-plaintiff---Petitioner-plaintiff had not been able to establish the allegation against the respondent-defendant for causing defamatory imputation amounting to libel or slander to claim damages---No misreading or non-reading of evidence, material illegality or irregularity in the impugned judgments and decrees was found---Revision was dismissed.

Rashid Gill for Petitioner.

PLD 2014 LAHORE HIGH COURT LAHORE 179 #

P L D 2014 Lahore 179

Before Shujaat Ali Khan, J

SITARA and others---Petitioners

Versus

SOHRAB and others---Respondents

Writ Petition No.10556 of 2006, decided on 19th April, 2013.

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

----S. 12(2)---Arbitration Act (X of 1940), Ss.14 & 17---Contract Act (IX of 1872), Ss.201, 187 & 209---Fraudulent act---Agency---Principal and agent---Death of one of the principals---Termination of agency---Petitioners moved an application for setting aside judgment and decree whereby the arbitration award announced by the arbitrator was made rule of the court on the ground that general attorney was not given any power to appoint an arbitrator and file consenting written statement before the court---Application was dismissed concurrently on the ground that the petitioners failed to establish any fraud on the part of the respondents---Validity---Power-of-attorney should be construed according to recitals of the documents on the basis whereof he was exercising his right and any act of the attorney done beyond the power vested with him could not be let go unnoticed and principal was not bound for said act---One of the principals died but the attorney knowing said fact that after his death he was no more his attorney, proceeded to collude with the respondents and filed consenting written statement on behalf of a dead person while showing himself as his attorney which was an example of fraud not only with the parties but also with the court---Respondents being beneficiaries were to prove that arbitrator was duly appointed with the consent of parties and the said fact could only be proved by producing the said arbitrator in the witness box but the respondent did not bother to produce the arbitrator as witness which inference went against the respondents---Non-registration of the award spoke about foul played by the respondents---Prime duty of the attorney was to safeguard interest of the principal and any act done by the attorney repugnant to the rights of the principal could not be given shelter rather the same stood open to attack by the principal---On the termination of agency due to death of one of the principals, it was duty of the attorney to take all reasonable steps for the protection and preservation of interests entrusted to him by the principal on behalf of the representatives of the principal but the act of the attorney was fraudulent---Both the courts below failed to appreciate that attorney had no authority to make statement on behalf of one of the principals.

Rashida Begum v. Ch. Muhammad Anwar and others PLD 2003 Lah. 522; Malik Yar Muhammad and others v. Muhammad Farooq Ahmed Khan and others 2003 SCMR 767; Unair Khan and others v. Faiz Rasool and others PLD 2013 SC 190 and Firdous Shah v. Mst. Memoona Bibi 2007 CLC 500 rel.

Messrs Islamabad Farming Cooperative Society and others v. Ghulam Abbas Khan and others 2011 SCMR 153; Maj.(R) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562; Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; Muhammad Sharif and others v. Inayatullah and 24 others 1996 SCMR 145; Meraj Din and 3 others v. Haji Muhammad Siddique Khan and 2 others 1990 SCMR 1038; Ch. Muhammad Saleem v. Muhammad Akram and others PLD 1971 SC 516; Pir Muhammad Azam v. Pir Azizullah and 2 others 2011 CLC 355; Mehfooz ur Rehman and 4 others v. Mst. Riffat Ahad and 2 others 2007 MLD 382 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Powers vested in the High Court under Art.199 of the Constitution, could not be taken away on the basis of technicalities especially when the order passed by the revisional court was illegal---Constitutional petition was allowed.

Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518 ref.

Faiz Muhammad Bilal and Najam Iqbal Bilal for Petitioners.

Allah Wasaya Malik for Respondents.

Date of hearing: 3rd April, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 189 #

P L D 2014 Lahore 189

Before Khawaja Imtiaz Ahmad, J

Mst. SHAMA TALIB and 2 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 4 others---Respondents

Writ Petition No.2534 of 2012, decided on 28th January, 2013.

Oaths Act (X of 1873)---

----Ss. 9, 10 & 12---Defendant's offer made in court to plaintiffs in their absence to take special oath on Holy Qur'an that defendant's father had not gifted suit land to him, then he would give his shares to plaintiffs---Plaintiff in absence of defendant on second date of hearing showed readiness to administer such special oath---Defendant's application for withdrawal of such offer filed in court in absence of plaintiffs on third date of hearing---Appearance of both parties on fourth date of hearing when court firstly recorded statement of defendant withdrawing his said offer without passing any order thereon and then administered oath to plaintiffs---Validity---Defendant had not been conveyed acceptance of his offer by plaintiffs---Defendant had resiled from his such offer prior to its acceptance and administration of oath by plaintiffs---Defendant was allowed to resile from his such offer in circumstances.

Mst. Asifa Sultana v. Honest Traders, Lahore and another PLD 1970 SC 331 and Inayat Ali and others v. Muhammad Sultan 1998 MLD 811 ref.

Saleem Ahmad v Khushi Muhammad 1974 SCMR 224; Attiqullah v. Kafayatullah 1981 SCMR 162; Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841; Muhammad Rafique and another v. Sakhi Muhammad and others PLD 1996 SC 237; Mahmood Ali Butt v. Inspector General of Police., Punjab, Lahore and 10 others PLD 1997 SC 823; Ahmad Khan and others v. Jewan PLD 2002 SC 655; Bashir Ahmad v. Plastic Bag Packaging Limited and others PLD 1991 Lah. 386; Shakirullah v. Haidyatullah and others 1999 MLD 389 and Civil Appeal No.2720 of 2001 dated 20-6-2006 distinguished.

Habib Ahmad Bhatti for Petitioners.

Mujeeb ur Rehman Kiani for Respondents.

PLD 2014 LAHORE HIGH COURT LAHORE 194 #

P L D 2014 Lahore 194

Before Syed Muhammad Kazim Raza Shamsi, J

MUHAMMAD AKRAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.2306-M of 2013, decided on 11th October, 2013.

Criminal Procedure Code (V of 1898)---

----S. 426(2-B)---Penal Code (XLV of 1860), Ss.302(b) & 337-F(v)---Qatl-e-amd, causing Hashimah---Suspension of sentence, pending disposal of appeal---Accused had prayed for suspension of sentence and his release on bail, on the ground that against judgment of High Court, Supreme Court had granted leave to appeal---Validity---Supreme Court had granted leave to appeal to the parties to reappraise the evidence and to determine the questions as set down in the leave granting order; it would be premature at that stage to contend that the judgment of the Trial Court had been restored and judgment of High Court had been set aside by Supreme Court---Accused being the age of more than 60 years seemed to be an infirm person who was behind the bars since 27-10-2011, the date of judgment of the Trial Court, was entitled to the relief prayed for---Sentence of accused was suspended pending disposal of appeal by Supreme Court and he was admitted to bail, in circumstances.

Muhammad Ashraf v. The State 2013 PCr.LJ 403 ref.

Ch. Lehrasib Khan Gondal for Petitioner.

Muhammad Ishaque, DPG for the State.

Muhammad Sohail Dar for Complainant.

PLD 2014 LAHORE HIGH COURT LAHORE 196 #

P L D 2014 Lahore 196

Before Amin-ud-Din Khan, J

COCA-COLA BEVERAGES PAKISTAN LIMITED---Appellant

Versus

ASHIQ ALI---Respondent

F.A.O. No. l461 of 2011, heard on 24th May, 2013.

Punjab Consumer Protection Act (II of 2005)---

----Ss. 4, 10, 25, 28(4), 30(1)(c), 31 & 33---Claim against company---Limitation---Damages, grant of---Principle---Consumer claimed that bottle of soft drink prepared by the Company contained dead worm in it but Company contested the same on the plea that it was counterfeited---Trial Court accepted the complaint of consumer and awarded damages against beverages company---Validity---Cause of action accrued to consumer on the same day when according to him he had knowledge that it was defective product i.e. on 25-10-2009 and complaint was filed on 21-12-2009---In accordance with S.28(4) of Punjab Consumer Protection Act, 2005, limitation for filing of claim was 30 days from the cause of action, therefore, complaint was filed after prescribed period of limitation---Application for condonation of delay was not filed, and delay was not condoned by Trial Court, therefore, when complaint had been filed after prescribed period of limitation without prayer of condonation of delay, Trial Court had no jurisdiction to entertain the complaint---If product contained mark of company but it was counterfeited one and not manufactured by the company, then Trial Court was bound to first procure expert evidence under S.30(1)(c) of Punjab Consumer Protection Act, 2005, to determine whether the same had been manufactured by the company or was counterfeited---When no damage was caused and product was not used, Trial Court was not justified to grant damages---High Court set aside judgment and decree passed by Trial Court and dismissed complaint filed by consumer---Appeal was allowed in circumstances.

Messrs Dawlance United Refrigeration Industries Pvt. Limited through Branch Coordinator v. Muhammad Jameel 2012 CLD 1461 ref.

Kh. Tahir Ahmad for Appellant.

Barrister Munawar Iqbal Duggal for Respondent.

Date of hearng: 24th May, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 200 #

P L D 2014 Lahore 200

Before Atir Mahmood, J

GENERAL MANAGER, NHA, MULTAN and 2 others---Appellants

Versus

MUHAMMAD AQEEL AHMEDANI and another---Respondents

F.A.O. No.50 of 2010, heard on 20th November, 2013.

Punjab Consumers Protection Act (II of 2005)---

----Ss. 27, 2(c) & 33---National Highways Authority Act (XI of 1991), S.10(2)---Jurisdiction of Consumer Court---"Consumer" definition and scope of---Toll plaza---Toll tax, collection of---Complainant had sought direction from Consumer Court that Toll Plaza established by the National Highways Authority ("NHA") be shifted to its original place and until such time, no toll be collected from the complainant---Complaint was partially decreed to the effect that Highway Authority would not collect toll plaza till providing him such facility at a new designated place---Contention of the Highway Authority was that Consumer Court had no jurisdiction in the matter---Validity---Under S.10(2) of the National Highways Authority Act, 1991, Authority may levy or collect or cause to be collected toll tax on national highways by establishing toll plazas, which was the prerogative and function of the Authority wherein the court should not have interfered in ordinary circumstances---Consumer Court had been established for protection of consumers of products and services and it had no jurisdiction to pass orders for shifting of tool plazas established in accordance with law or stopping the Authority from collection of toll tax on toll plazas constructed on highways---Consumer Court in the present case had therefore, travelled beyond its jurisdiction and the impugned order could not thus be sustained in the eye of the law and the complainant did not fall within the ambit of a "consumer" as the establishment of a toll plaza was for the purpose of collecting toll tax and no service of any kind was being provided to the complainant---Impugned order of Consumer Court was set aside, and complaint filed by the complainant was dismissed---Appeal was allowed in circumstances.

Malik Muhammad Tariq Rajwana for Appellants.

Respondent: Ex parte.

Date of hearing; 20th November, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 203 #

P L D 2014 Lahore 203

Before Ijaz Ahmad, J

ATHAR MEHMOOD KHAN---Petitioner

Versus

UNITED BANK LIMITED through Regional Manager and others---Respondents

Writ Petition No.3090 of 2011, decided on 27th May, 2013.

(a) Foreign Exchange (Temporary Restrictions) Act (IV of 1998)---

----S. 2---Constitution of Pakistan, Art.199---Constitutional petition---State Bank of Pakistan, F. E. Circular No.16, dated 24-6-1999---Seizing of foreign currency accounts during economic emergency of 1998---Petitioner was a foreign national who had held deposits of foreign currency in various banks at fixed interest rates during the economic emergency of 1998 and during the promulgation of the Foreign Exchange (Temporary Restrictions) Act, 1998---Contention of the petitioner was that he remained abroad and no notice was served upon him by the banks and when he approached the banks for return of his principal amount along with the interest agreed upon at the time of opening of accounts, the same was refused---Contention of the respondent banks on the other hand was, inter alia, that the petitioner was aware of the developments and never approached the banks, that petitioner had failed to approach the respondent banks in accordance with State Bank F.E. Circular No.16 dated 24-6-1999 for receipt or withdrawal of money and that the petitioner had given no specific instructions as to the future use of the money lying with the banks, however the banks were ready to pay the principal amount back with the usual nominal rate of 0.05 per cent. per annum---Validity---Contention that the petitioner failed to make a prompt demand and failed to renew the original agreement in relation to fixed deposits, thereby leaving the banks ignorant as to whether the petitioner intended to continue or discontinue the arrangement, was not an acceptable contention since the petitioner could not be attributed the delay in the making of the demand---Respondent Banks who were custodians of the petitioner's money and aware of the change in legislation, were duty bound to intimate the same to the petitioner and seek his option---High Court directed the respondent banks to return to the petitioner his money in Pakistani Rupees on the existing inter bank exchange rate along with the interest form the date of their initial deposit at the rate agreed with the petitioner in each case---High Court further directed that the return be made in an honourable way and within a certain period of time---Constitutional petition was allowed, in circumstances.

Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; PAKCOM Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Zonal Manager, UBL and another v. Mst. Perveen Akhtar, PLD 2007 SC 298; S.M. Ismail v. Capital Development Authority, Islamabad through Chairman and 5 others 2006 CLC 131; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 and State Bank of Pakistan through Governor and another v. Imtiaz Ali Kihan and others 2012 SCMR 280 ref.

(b) Laches--

----Laches are not determined with the length of a specific period of time only and were to be ascertained by a combination of time and behaviour of both parties; and varied from case to case---Laches may occur within a couple of days or the mischief may not come into play even by the passage of decades.

Zafar Mahmood Mughal for Petitioner.

Habib Ahmad Bhatti for Respondents Nos. 1 and 2.

Masood Raza for Respondents Nos. 3 and 4.

PLD 2014 LAHORE HIGH COURT LAHORE 210 #

P L D 2014 Lahore 210

Before Umar Ata Bandial, C J

Syed FEROZ SHAH GILLANI---Petitioner

Versus

F.O.P. and others---Respondents

Writ Petition No.840 of 2014, decided on 16th January, 2014.

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

----Ss. 20(n) & 30A---Criminal Law Amendment (Special Court) Act (XVII of 1976), S.6(2)---Constitution of Pakistan, Arts. 204(2)(c) & 199---Constitutional petition---Alternate remedy---Discussion on sub judice matters on electronic and print media---Contempt of court---Petitioner referred to various statement in the press and media in relation to treason trial conducted by Special Court constituted under Criminal Law Amendment (Special Court) Act, 1976---Contention of the petitioner was that such discussions and statements under Art.204(2) were punishable as contempt of court---Validity---Contentions of the petitioner had an element of force, however his propositions should be examined after the same had been confronted to the concerned regulatory authority, PEMRA---Petitioner's apprehensions need not constitute a crystallized case for contempt of court in order for remedy before the Special Court under S.6(2) of the Criminal Law Amendment (Special Court) Act, 1976 to be invoked---High Court directed that petitioner first ought to avail his remedy before the concerned regulatory authority, PEMRA, and thereafter could challenge any act of commission or omission by PEMRA within the parameters of Art.199 of the Constitution---Constitutional petition was disposed of, accordingly.

Ch. Zahur Ilahi, M.N.A. v. Zulfiqar Ali Bhutto and others PLD 1975 SC 383 rel.

A.K.Dogar along with Petitioner.

Mian Tariq Ahmad, Deputy Attorney-General for Pakistan.

PLD 2014 LAHORE HIGH COURT LAHORE 213 #

P L D 2014 Lahore 213

Before Umar Ata Bandial, C J

MANZOOR AHMAD---Applicant

Versus

The STATE---Respondent

Criminal Miscellaneous No.1585-M of 2013, decided on 15th July, 2013.

Lahore High Court (Establishment of Benches) Rules, 1981--

----Rr. 5 & 6---Anti-Terrorism Act (XXVII of 1997), S.25---Lahore High Court Notification dated 10-4-1982---Appeal---Murder Reference---Transfer of appeal from Bench of High Court to Principal Seat of High Court---Appellant sought transfer of his appeal under the Anti-Terrorism Act, 1997 along with connected Murder Reference to the principal seat of the High Court from the Bench of the High Court at place "M"---Held, that Lahore High Court Notification dated 10-4-1982 did provide option to the appellant to choose the forum where appellant would like his/her matter in appeal along with connected murder reference, to be heard---Complainant had also given her consent for such transfer---Application for transfer was allowed, in circumstances.

Muhammad Ameer Khan and others v. The State Criminal Miscellaneous No.2272-M of 2011 rel.

Muhammad Yar Khan Dah for Applicant.

Abdus Samad, A.P.G. for the State.

Zakir Hussain, S.I., P.S.Noor Shah, District Sahiwal.

Mst. Hameeda Bibi, Complainant/Respondent No.2 in person.

PLD 2014 LAHORE HIGH COURT LAHORE 214 #

P L D 2014 Lahore 214

Before Umar Ata Bandial, C J, Ijaz ul Ahsan and Muhammad Khalid Mehmood Khan, JJ

HAIDER MUKHTAR and others---Petiitoners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petitions Nos.3780 of 2011, 3553, 16238 of 2012 and Criminal Original No.144-W of 2012, decided on 20th July, 2012.

Constitution of Pakistan---

----Arts. 184(1) & 199---Constitutional petitions under Art.199 of the Constitution in respect of a dispute between Provincial Government, and Federal Government, pending before the Supreme Court in its original jurisdiction under Art.184(1) of the Constitution---Question before the High Court was whether third parties affected by such a dispute could maintain constitutional petitions under Art.199 of the Constitution for relief before the High Court---Held, that a private party could not invoke the constitutional jurisdiction of High Court for adjudication of a matter that involved a dispute under Art.184(1) of the Constitution---High Court declined to hear and adjudicate upon controversies raised by the petitioners on the ground that High Court lacked jurisdiction owing to the pendency of constitutional petitions filed by provincial Government under Art.184(1) before the Supreme Court---Constitutional petitions were dismissed, in circumstances.

Khalid Mahmood and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 74 others PLD 2003 Lah. 629 rel.

A.K. Dogar and Tabinda Islam for petitioners.

Mian Abdul Quddus and Abdul Sattar Junaid for Petitioners in connected petitions.

M. Jehanzeb Wahla, Standing Counsel for Pakistan.

Muhammad Hanif Khatana, Senior Addl. Advocate-General for Government of Punjab.

Mian M. Qamar uz Zaman for Respondent/ETPB

PLD 2014 LAHORE HIGH COURT LAHORE 216 #

P L D 2014 Lahore 216

Before Umar Ata Bandial, C J

MUHAMMAD IRFAN MUKHTAR---Petitioner

Versus

F.O.P. and others---Respondents

Writ Petition No.7770 of 2013, decided on 2nd April, 2013.

(a) Constitution of Pakistan---

----Arts. 224(1-A), 224-A, 41 & 199---Constitutional petition---Electoral laws and conduct of elections---Caretaker Prime Minister, appointment of---Role of the President---Failure of outgoing Prime Minister and Leader of Opposition to select a consensual candidate for caretaker Prime Minister---Resolution by Committee or Election Commission---Contention of the petitioner was that the President had not exhausted the method for appointment of caretaker Prime Minister as given under Art.224(1-A) of the Constitution and had he initiated meaningful consultation with the out going Prime Minister and Leader of Opposition, a person may have been selected in accordance with the mechanism provided in Art.224(1-A) of the Constitution without resort to alternate mechanism for Election by Election Commission of Pakistan under Art.224-A of the Constitution---Petitioner further contended that order and priority of Constitutional actions envisaged in Art.224 of the Constitution must be pursued earnestly---Validity---President had sought and awaited the Prime Minister and Leader of Opposition of the outgoing National Assembly to propose a consensual nominee for the office of the caretaker Prime Minister---Requisite consensus did not materialize to the satisfaction of the President, neither of the President's consultees claimed otherwise---Had the President proceeded to appoint a caretaker Prime Minister who did not enjoy the consensual support of the two political leaders of the National Assembly, then a serious controversy may have erupted to surround said action of the President---Crucial feature of the Presidential Office was that the President's actions taken as Head of State, must not attract criticism that was aimed at the President personally---Under Art.41(1) of the Constitution, President was the Head of the State and represented the unity of the Republic and the high office of the President was one which was to be discharged with neutrality, impartiality and prudence in order for that office to remain above any controversy whatsoever---President, in the present case, had acted in accordance with the letter and spirit of the Constitution by awaiting a consensus between two political leaders of the outgoing National Assembly, and failing that, for obtaining a transparent appointment to the office of caretaker Prime Minister, he allowed the resolutory mechanism envisaged in Art.224-A of the Constitution to come into effect; and no illegality was committed---Constitutional petition was dismissed, in circumstances.

Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84 and Pakistan Lawyers' Forum through General Secretary v. Federation of Pakistan PLD 2011 Lah. 382 rel.

(b) Constitution of Pakistan---

----Art. 41---President---Presidential Office---Crucial feature of the Presidential Office was that the President's actions taken as Head of State, must not attract criticism that was aimed at the President personally---Under Art.41(1) of the Constitution, President was the head of the State and represented the unity of the Republic and the high office of the President was one which was to be discharged with neutrality, impartiality and prudence in order for that office to remain above any controversy whatsoever.

Pakistan Lawyers' Forum through General Secretary v. Federation of Pakistan PLD 2011 Lah. 382 rel.

Muhammad Azhar Siddiqui for Petitioner.

PLD 2014 LAHORE HIGH COURT LAHORE 221 #

P L D 2014 Lahore 221

Before Syed Mansoor Ali Shah, Muhammad Farrukh Irfan Khan and Atir Mahmood, JJ

ARSHAD MEHMOOD---Petitioner

Versus

COMMISSIONER/DELIMITATION AUTHORITY, GUJRANAWALA and others---Respondents

Writ Petition No.31986 of 2013, decided on 31st December, 2013.

Per Syed Mansoor Ali Shah, J; Muhammad Farrukh Irfan Khan and Atir Mahmood, JJ. agreeing.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court, curtailment of---Legality---Sub-constitutional legislation cannot curtail or abridge the constitutional jurisdiction of the High Court.

(b) Constitution of Pakistan---

----Arts. 199 & 184---Constitutional jurisdiction of High Court and Supreme Court, curtailment of---"Ouster clause"---Words " no court" used in a legislation ousting jurisdiction of a Constitutional Court---Legality---Legislature, being the creature of the Constitution could not take away the jurisdiction of a Constitutional Court conferred by the Constitution---Ordinary statute or a sub-constitutional legislation was incapable of ousting, curtailing or limiting the constitutional jurisdiction of the Supreme Court or the High Courts and the words "no court' in an ouster clause in a statute did not, therefore, include the High Courts or the Supreme Court so far as their constitutional jurisdiction was concerned---Ouster clause, "howsoever" widely worded and whether it occurred in a Constitution or in an ordinary statute, did not save an act or order without jurisdiction (which expression compendiously describes and includes acts and orders coram non judice and mala fide) from scrutiny of the courts because the purported act or order was no act or order at all---Even in cases of constitutional ouster clauses, the superior courts did assume jurisdiction if the order impugned was without jurisdiction, coram non judice or mala fide.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Mrs.Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Malik Muhammad Mukhtar, through Legal Heirs v. Province of Punjab through Deputy Commissioner (Collector) Bahawalpur and others PLD 2005 Lah. 251; Miss Asma Jilani v. The Government of the Punjab and another PLD 1972 SC 139, Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Anisminic, Ltd. v. The Foreign Compensation Commission and another [1969] 1 All E.R. 208 at 212, 213; Attorney General, v. Thomas D'aarcy Ryan [1980] A.C.718 at 730; R. v. Secretary of State for the Home Department ex parte Fayed and another [1997] All ER 228; The State v. Zia-ur-Rehman and others PLD 1973 SC 49; Mr. Fazlul-Quader Chowdhry and others v. Mr. Muhammad Abdul Haque PLD 1963 SC 486; The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 SC 151; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Sardar Farooq Ahmed Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57; Intesar Hussian Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others PLD 2008 SC 313; Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1229 and Rao Naeem Sarfraz v. Election Commission of Pakistan and others PLD 2013 Lah. 675 rel.

Judicial review of Public Actions, Justice (R) Fazal Karim, Vol.2, p.946 quoted.

----Ss. 10A, 8 & 9---Punjab Local Governments (Delimitation) Rules, 2013, Rr. 3, 4, 5,6, 7 & 8---Constitution of Pakistan, Arts. 140A(2), 199, 218(3) & 219(d)---Constitutional petition---Local Government Elections---Delimitation of constituencies---Section 10A of Punjab Local Government Act, 2013["Ouster clause"] ousting jurisdiction of any court, officer or authority to review or correct any delimitation of a Union Council or ward after the notification of the election schedule---Constitutionality and legality---Constitutional jurisdiction of High Court and Election Commission of Pakistan---Scope---"Reading down" a provision of a statute---Scope---Section 10A of the Punjab Local Government Act, 2013 ["Ouster clause"] not only attempted to completely curtail judicial power of the Constitutional Court, it also put fetters on the exercise of the constitutional authority of the Election Commission of Pakistan---Section 10A of said Act could not abridge or curtail the constitutional jurisdiction of the High Court to judicially review the orders, notifications and the acts of the executive i.e., the Delimitation Authority and Delimitation Officer---Section 10A purportedly ousted the constitutional jurisdiction of the Election Commission of Pakistan from performing its constitutional role under Arts. 140A(2), 218(3) & 219(d) of the Constitution, which was neither conceivable nor permissible---High Court read down S.10A of the Punjab Local Government Act, 2013 and declared that the ouster clause did not in any manner curtail or abridge the jurisdiction of the Constitutional Court or the Election Commission of Pakistan--- Constitutional petition was allowed accordingly.

(d) Administration of justice---

----Administrative urgency of the Executive, relevance of--- Courts usually gave due weightage to any administrative urgency of the Executive but this did not mean that the doors leading to courts could be shut down as this would result in curtailing and abridging the judicial power and would be opposed to independence of judiciary and the constitutional framework of separation of powers.

(e) Interpretation of statutes---

----"Reading down" a provision of a statute---Meaning and principles.

The theory of reading down was a rule of interpretation resorted to by the courts where a provision, read literally, seemed to offend a fundamental right, or fell outside the competence of the particular legislature. In interpreting the provision of a statute the courts will presume that the legislation was intended to be inter vires and also reasonable. The rule followed is that the enactment is interpreted consistent with the presumption which imputes to the legislature an intention of limiting the direct operation of its enactment to the extent that is permissible. Legislature was presumed to be aware of its limitations and was also attributed an intention not to over-step its limits. To keep the act within the limit of its scope and not to disturb the existing law beyond what the object required, it was construed as operative between certain persons, or in certain circumstances, or for certain purposes only, even though the language expressed no such circumstances of the field of operation. To sustain law by interpretation was the rule. Reading down of a provision of a statute put into operation the principle that so far is reasonably possible to do so, the legislation should be construed as being within its power. It had the principal effect that where an Act was expressed in language of a generality which made it capable, if read literally, of applying to matters beyond the relevant legislative power, the court would construe it in a more limited sense so as to keep it within power.

Messrs Chenone Stores Ltd. through Executive Director (Finance Accounts) v. Federal Board of Revenue through Chairman and 2 others 2012 PTD 1815 and Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others PLD 1997 SC 582 rel.

(f) Interpretation of statutes---

----If certain provisions of law construed in one way would make them consistent with the constitution and another interpretation would render them unconstitutional the court would lean in favour of the former construction.

Mittal - Interpretation of Taxing Statutes ref.

(g) Punjab Local Government Act (XVIII of 2013)---

----S. 10A---Constitution of Pakistan, Arts. 4, 9, 10A & 199---Constitutional petition---Right to access to courts/justice---Scope---Local Government Elections---Delimitation of constituencies---Section 10A of Punjab Local Government Act, 2013 ["Ouster clause"] ousting jurisdiction of any court, officer or authority to review or correct any delimitation of a Union Council or ward after the notification of the election schedule---Single Judge of High Court held that in view of the said ouster clause the High Court in its constitutional jurisdiction, would not be in a position to direct any Authority or officer to review or correct any delimitation process which had already attained finality on issuance of election schedule, and directed that the office should not entertain or fix constitutional petitions which fell within the ambit of the ouster clause---Legality---Ouster clause in a sub-constitutional legislation did not abridge or curtail the jurisdiction of a Constitutional Court---Any direction to the administrative office of the Court not to entertain a case and to shut the doors of justice without granting the petitioner an opportunity to place his grievance before a judicial forum, offended the well-enshrined principle of access to justice and was a harsh denial of the constitutional and fundamental rights of due process and fair trial (Arts.4, 9 & 10A of the Constitution)---Right to access to the courts meant that no one must be hindered either by law, administrative procedures or material resources from addressing himself or herself to a Court or Tribunal for the purpose of vindicating his or her rights---Judiciary could not efface itself by divesting its judicial power to an administrative branch or entity as it was constitutionally grotesque and struck at the constitutional structure of the State---Lis no matter how weak or frivolous, could not be denied access to courts---Everyone had a right to have one's day in court---Unimpaired access to justice formed the foundational pillar of rule of law---Single Judge of High Court, it appeared was not properly assisted in such regard---High Court Full Bench held that orders of Single Judge of Lahore High Court (Order dated 13-12-2013 passed in W.P. No.15033-2013) and those of Division Benches of Lahore High Court in Intra Court Appeals Nos. 346/2103 and 1029/2103 on the ouster clause under S. 10A of Punjab Local Government Act, 2013 were against Arts.4, 9 & 10A of the Constitution and should not be treated as precedents---Constitutional petition was allowed accordingly.

Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 rel.

Clause 3.21 - Chapter 7 Human Rights in the Administration of Justice - A Manual of Human Rights for Judges, Prosecutors and Lawyers. United Nations, 2003, p.258 quoted.

(h) Constitution of Pakistan---

----Art. 2A---"Democracy"---"Formal aspect" and "substantive aspect" of a democracy---Definition---Political justice---Scope.

Democracy was a rich and complex normative concept. It rested on two bases. The first was the sovereignty of the people. This sovereignty was exercised in free elections, held on a regular basis, in which the people choose their representatives, who in turn represented their views. This aspect of democracy was manifested in majority rule and in the centrality of the legislative body through which the people's representatives acted. This was a formal aspect of democracy. It was of central importance, since without it the regime was not democratic.... The second aspect of democracy was reflected in the rule of values (other than the value of majority rule) that characterized democracy. The most important of these values were separation of powers, the rule of law, judicial independence, human rights, and basic principles that reflected yet other values (such as morality and justice), social objectives (such as the public peace and security), and appropriate ways of behavior (reasonableness, good faith). This aspect of democracy was the rule of democratic values. This was a substantive aspect of democracy. It too was of central importance. Without it, a regime was not democratic.

Aharon Barak - The Judge in a Democracy, Princeton, p.23 quoted

Substantive and formal aspects of democracy were interdependent. [p. 251] O

Donald P. Kommers, et al - American Constitutional Law - 3rd Ed. P.385 quoted.

Constitutional fabric of political rights under the Constitution was a fine intermix of formal and substantive democracy and found its fulcrum in the constitutional principle of 'political justice.' This undoubtedly rested on the fundamental assumption that there was no safe depository of ultimate power than the people themselves. Constitutional vision of "political justice", under the Objectives Resolution was now a substantial part of the Constitution. [p. 252] P

Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 rel.

(i) Constitution of Pakistan---

----Arts. 3, 4 & 9---Right to life---Right to liberty---Right to due process---Scope---Electoral exploitation---Scope---Right to be governed by representatives chosen by the free will of the people was an ineffaceable constitutional reality---All forms of exploitation under Art.3 of the Constitution including electoral exploitation resulting in diluting or impairing the right to representation of a citizen in elections was abhorred by the Constitution---Right to due process under Art. 4 of the Constitution fully covered the electoral process---Right to life and liberty under Art. 9 of the Constitution in the political context had a range of meanings---Life of a citizen in a representative democracy could not be envisaged without its political dimension; the ability to participate in the political life of the nation, the freedom to exercise political choice, the right to choose a political leader and elect the government of his or her choice---Right to liberty under the Constitution included political liberty which carried political rights like right to participation in political life of a nation, right to self-determination, autonomy, civil rights, sovereignty and self-government.

Stephen Breyer - Active Liberty - Interpreting Our Democratic Constitution, p.3; Benjamin Constant - The Liberty of the Ancients compared with that of the Moderns (1819) (also see in Stephen Brayer - Active Liberty p.4 and Stephen Breyer - Active Liberty - p.15 ref.

(j) Constitution of Pakistan---

----Art. 14---Right to dignity---Scope---Human dignity included the right to demand a political democratic structure of governance where rule of law was supreme and no one was above the law---Political system, which was not chosen by the people was repressive, autocratic and tyrannical besides being antithetical to self-respect, freedom and human dignity.

Lourens W.H.Ackermann-Equality and Non Discrimination -Some Analytical Thoughts - The Dignity Jurisprudence of the Constitutional Court of South Africa (Volume-1) p.24. and The Dignity Jurisprudence of the Constitutional Court of South Africa-Vol.1, p.79 ref.

(k) Constitution of Pakistan---

----Art. 17(2)---Right to form and be a member of a political party---Scope---Article 17(2) of the Constitution included a broad sweep of political rights like the right to participate in the political life of the nation, right to contest elections, right to vote, right to 'one man one vote', right to have a vote that was equal in weight as that of another citizen, right to fair representation, right to electoral equality, right to freely elect a leader, right to go to polls, etc.

(l) Constitution of Pakistan---

----Art. 19---Freedom of expression---Scope---Freedom of expression under Art. 19 of the Constitution included the freedom to express a political choice through a vote and through a free, neutral and transparent electoral system---Going to the ballot was the collective expression of freedom of a nation.

(m) Constitution of Pakistan---

----Art. 25---Right to electoral equality---Scope---Right to equality under Art. 25 of the Constitution guarded against electoral discrimination and ensured electoral equality---Principle of 'one man one vote' got its security and strength from the constitutional right to equality.

A.K. Brohi-Fundamental Law of Pakistan, p.938 ref.

(n) Constitution of Pakistan---

----Arts. 17(2), 19 & 25---Right to vote---Importance and scope---Vote was a symbol of political dignity and freedom of a citizen in a constitutional democracy---Vote embodied freedom of choice, expression, equality and the license to participate in the political life of a nation and the right to establish self-government---Life of a citizen in a representative democracy demanded a life of equal participation in the establishment of a democratic State---Freedom of expression and participation was actualized through a vote---Sanctity, weight and status of a vote, therefore, became central to any electoral process.

Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Sachs J in August v. Electroral Commission [1999 (3) SA 1 (CC) (also in the Strange Alchemy of Life and Law by Albie Sachs p.122; Law and the Electroral Process by H.F.Rawlings page 73; National Unity Election Case (Germany 1990, 82 BverfGE 322 (ref: American Constitutional Law, Donald P. Kommers et al, (third Edition , p.420); Ronald Dworkin, A. Bill of Rights for Britain 35, 36 (1990)) (see Barak - Judge in a Democracy p.25; American Constitutional Law, Second Edition, Laurernce H. Tribe, p.1062; James P. Wesberry, Jr., et. Al. v. Carl E. Sanders, etc., at al. [376 US 1, 17 (1964)] (see American Constitutional Law, second Edition, Laurence H. Tribe p.1062); American Constitution Law: 2nd Edition; p. 1064; James H. Gray et al., v. James O'Hear Sanders [372 US 376 (1963)] (see Tribe American Constitution Law. (second Edition p.1064); B.A. Reynolds, etc., et al., v. M. O. Sims et al. [377 US 533 (1964)]; 106 S.Ct. 2797 (1986) as per Justice White [See Tribe-American Constitutional Law, p.1081); Imran Khan and others v. Election Commission of Pakistan and others PLD 2013 SC 120; Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and others v. Federation of Pakistan and 2 others PLD 2012 SC 681; M.D. Tahir, Advocate v. Federal Government through Cabinet Division, Islamabad and another 2003 CLC 389 and Ghulam Abbas v. The Additional Commissioner and Election Tribunal Khairpur Mirs and 3 others PLD 1965 (W.P.) Kar. 625 ref.

(o) Constitution of Pakistan---

----Arts.222(b) & 25---Electoral process---Right to equal voting power---Scope---Fair and transparent delimitation of constituencies---Importance and scope---Right to vote actually translated into a more potent and substantial right to equal voting power---Electoral process other than ensuring fair and free polls, had to ensure that the weight of the vote of a citizen was not diluted or discriminated prior to the polls during delimitation of constituencies---Delimitation was a vital and indispensable milestone in the electoral process as it defined and fashioned the strength and weight of a vote---Fair and transparent delimitation of constituencies was pivotal for holding honest, fair and just elections---Central focus of any fair and just electoral system was to ensure that the right to vote was properly guarded against the scourge of vote dilution or discrimination during the process of delimitation---Any electoral system must, therefore, be designed to protect the right to vote.

James P. Wesberry, Jr. et. Al. v. Carl E. Sanders etc. at al. [376 US 1, 17 (1964) (see American Constitutional Second Edition, Laurence H. Tribe p.1062; AIR 1986 SC 434 and AIR 2009 SC 3278 ref.

(p) Election---

----Electoral process---Scope---Any step or stage in the (electoral) process which had a bearing on the right to vote was an indispensable part of 'election' or electoral process.

(q) Constitution of Pakistan---

----Art. 222(b)---"Delimitation" of constituencies---Meaning, object, importance and principles relating to delimitation of constituencies.

Delimitation meant the demarcation of the boundaries of an electoral constituency in order to ensure fair, just and proportional representation of the people in the elections. Basic object of delimitation was to secure, so far as practicable, equal representation for equal segments of the population in legislative bodies. "Apportionment" or delimitation or "redistricting" had the aim of equalizing the population (or electorate) per seat, in accordance with the principle of 'one person, one vote, one value.' This was usually done with regard to stated constraints of administrative convenience, contiguity, geographical and communication factors, and unstated influences of party-political advantage. Delimitation aimed at ensuring the observance of the basic tenet of democracy; 'one man, one vote'.

Oxford - Concise Dictionary of Politics, p.23 ref.

Delimitation was not a mere drawing of boundaries with a stroke of pen. It was a judicious exercise of delineating electoral areas, vigilantly guarding against any possible fear of vote dilution, disenfranchisement or corrupt practices. Unfair or partisan delineation could lead to skewed results, tarnishing electoral integrity, making a mockery of the election and turning the constitutional principle of "political justice" on its head. The foundations or the rules of the game for a fair and just election were laid down at the time of delimitation of the constituencies. It was here that the weight and value of the vote was recognized and firmly established. Principle of 'one man one vote' was firmly established during the process of delimitation of the constituencies.

Process of delimitation had to ensure that the voting equality was not disturbed and the vote of one citizen must in no manner be less than the vote of another citizen. Other than population parity, geographical compactness, the homogeneity of interest of the community also had to be factored in (during the process of delimitation of constituencies).

Donald P. Kommers et al. American Constitutional Law - p.390 ref.

Other equally important aim of delimitation was to divide the geographic areas into territorial constituencies so fairly that no party or candidate may legitimately have a grievance that there had been 'gerrymandering' of constituencies in favour of or against the interests of any particular party or candidate.

Delimitation must be a neutral exercise, conducted by a neutral body. Any partisan political intervention and drawing up of political constituencies under the dictates of the political party in power was bound to lead to gerrymandering and unjust political windfall, tarnishing the sanctity of elections and crippling the faith of an ordinary man in the system of democracy.

(r) Words and phrases---

----"Gerrymandering"---Definition and types stated.

"Gerrymandering" was drawing of district boundaries so as to favour one's own chances in future elections. Strategies for gerrymandering were characterized as 'stacking', packing', and cracking', each of which sought to minimize the influence of those likely to vote for opponents. 'Stacking' occurred when boundaries were drawn so opponents were grouped in constituencies where they were a minority; 'packing' when opponents were concentrated in a small number of constituencies; and 'cracking' when opponents were divided between a large number of constituencies.

Oxford - Concise Dictionary of Polities p.221. ref.

(s) Constitution of Pakistan---

----Art. 218(3) & 140A---Local Government elections---Delimitation of constituencies---Preparation of electoral roles---Election Commission of Pakistan, duty of---Scope---Parts/components of process of elections---"Substantive organizational part" and "managerial/supervisory part"---Scope---Preparation of electoral rolls and delimitation of constituencies fell within the organizing stage of the election---Process of elections had two fundamental parts or components; substantive organizational part including the preparation of the electoral list and the process of delimitation of constituencies, and the managerial or supervisory part of conducting the elections, where candidates come out to contest and the electorate went to polls---When both said parts were executed in tandem it was said that the elections were held in a country---Holding elections subsumed all the components of the electoral process especially the acts of organizing and conducting elections---Constitutional role and obligation of the Election Commission of Pakistan clearly defined the scope and meaning of the word 'election'---which was an amalgam of all the steps starting from preparation of the electoral rolls, leading to delimitation followed by the filing of the nomination papers, electoral public participation, polling of votes and finally concluded with the announcement of the results---Like a continuous assembly line, one component followed the other providing a complete electoral system---To organize, conduct and make arrangements for holding elections covered the entire electoral process and was synonymously referred to as "election" for the purposes of Election Commission of Pakistan and the Constitution.

State of Gujarat v. Jamnadas G. Pabri and others AIR 1974 SC 2233 and Law and the Electoral Process by H. F. Rawlings page 2 ref.

(t) Constitution of Pakistan---

----Art. 218(3) & 140A & Part VIII---Local Government elections---Election Commission of Pakistan, role of---Scope---Provincial Government, obligation of---Scope---Central to the Local Government System and intrinsic to any political devolution was the process of free and fair elections---Article 140A(2) of the Constitution provided that elections to the local governments shall be held by the Election Commission of Pakistan ("Election Commission")---Said Article imposed a constitutional obligation on the Provincial Legislature to carve out a role for Election Commission in the matter of election to the local governments---Article 140A of the Constitution, when read compositely, provided that provincial legislature while providing for Local Government System shall entrust the local governments elections in the hands of the Election Commission i.e., leaving Election Commission to organize, conduct and make necessary arrangements to hold honest, just and fair elections in accordance with law and to guard against corrupt practices---Such obligation had been imposed on the Provincial Legislature by the Constitution and the Province could not shy away from such constitutional fiat while making the law for the Local Government System---Constitutional role and obligation of Election Commission, as provided under Part VIII of the Constitution, had to be fully respected by the Provincial Legislature under Art.140A---Role and obligations of Election Commission under the electoral laws could not be altered, abridged or taken away by the Provincial Legislature.

(u) Constitution of Pakistan---

----Art. 140A & 32---"Local Government system"---Meaning and importance stated.

"Local Government system" was a crucial aspect of the process of democratization and intensification of mass participation in the decision-making process. No political system was considered complete and democratic if it did not have a system of local government. Local government served a two-fold purpose. The first purpose was the administrative purpose of supplying goods and services; the other purpose was to represent and involve citizens in determining specific local public needs and how such local needs could be met. Local representative government was a process that spanned and connected representation and administration at local levels within local government structures.

Belinda Havenga - The Restructuring of Local Government with Special Reference of Tshwane (Role and Purpose of Local Government Chapter - 3) University of Pretoria, October, 2002 quoted.

Local government was that part of the whole government of a nation or State which was administered by authorities subordinate to the State authority, but elected independently of control by the State authority, by qualified persons resident, or having property in certain localities, which localities had been formed by communities having common interests and common history.

Belinda Havenga - The Restructuring of Local Government with Special Reference of Tshwane (Role and Purpose of Local Government Chapter - 3) University of Pretoria, October, 2002 quoted.

Local government was the third level of government deliberately created to bring government to the grass-roots population and give the grass-roots population a sense of involvement in the political processes that controlled their daily lives.

Belinda Havenga - The Restructuring of Local Government with Special Reference of Tshwane (Role and Purpose of Local Government Chapter - 3) University of Pretoria, October, 2002 quoted.

System of local government was essential because it was a training ground for mass political education and political leadership, and it also facilitated government accountability.

Belinda Havenga - The Restructuring of Local Government with Special Reference of Tshwane (Role and Purpose of Local Government Chapter - 3) University of Pretoria, October, 2002 quoted.

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

----S. 52---Election petition before the Election Tribunal---Scope---Grievance related to preparation of electoral rolls or delimitation of constituencies---Said grievances could not be remedied through an election petition before the Election Tribunal.

(w) Punjab Local Government Act (XVIII of 2013)---

----Ss. 8, 9 & 10---Punjab Local Governments (Delimitation) Rules, 2013, Rr. 3, 4, 5, 6, 7 & 8---Constitution of Pakistan, Arts.3, 4, 9, 14, 17, 19, 25, 140A(2), 199, 218(3) & 222(b) & Part VIII---Constitutional petition---Punjab Local Government Elections, 2014---Delimitation of constituencies---Gerrymandering---Process of delimitation of Union Councils and Municipal Committees into wards was carried out by the Provincial Government under the Punjab Local Government Act, 2013, at the exclusion of the Election Commission of Pakistan ("Election Commission)---Legality---Plea of petitioners that Government in power had carried out delimitation process in a partisan manner; that Government in power tried to exploit the electoral independence and the right to vote of the people by gerrymandering and re-mapping Union Councils and Municipal Committees into wards, in a manner that best suited their political interests---Validity---By virtue of Ss.8, 9 & 10 of Punjab Local Government Act, 2013 delimitation of constituencies, which was also a part of the electoral process, had been entrusted in the partisan hands of the ruling government, which was unconstitutional---Under Ss.8, 9 & 10 of the said Act, Election Commission played no role in delimiting the Union Councils or the Municipal Committees into wards---Role of the Election Commission had been restricted to the conduct of elections, abridging the overarching and all-embracing role of Election Commission to organize, conduct and make arrangements for holding elections in violation of Art.218(3) of the Constitution---Overview of the Punjab Local Government Act, 2013 showed that the constitutional role of Election Commission had been weaved into all the main electoral stages of the elections to the Local Government except "delimitation"---Disconnection existed between the Constitution and the provisions of the Punjab Local Government Act, 2013 resulting in curtailing the constitutional role and obligations of Election Commission, which was not permissible---Sections 8, 9 & 10 of the Punjab Local Government Act, 2013 and Rules 3 to 8 of the Punjab Local Governments (Delimitation) Rules, 2013 were inconsistent with Art.218(3) read with Art.222(b) of the Constitution as they abridged and took away the constitutional role and obligation of Election Commission besides offending Arts.3, 4, 9, 14, 17, 19 & 25 of the Constitution and as a consequence were declared to be unconstitutional and, were struck down---High Court set-aside impugned orders of Delimitation Authority and the impugned final notifications issued by the Delimitation Officers and directed that the Election Commission should perform its constitutional role without further ado and hold elections to the local governments in Punjab province forthwith; that Election Commission need not wait for the legislative amendments to the Punjab Local Government Act, 2013 in the light of present judgment; that Provincial Government under Art.140A of the Constitution should take necessary steps for carrying out amendments in the Punjab Local Government Act, 2013 in the light of the constitutional role and obligations of Election Commission provided under Part VIII of the Constitution, as laid down in the present judgment, as soon as possible, so that democracy in the country was further strengthened---Constitutional petition was allowed accordingly.

(x) Constitution of Pakistan---

----Art. 218(3)---Election Commission of Pakistan, powers of---Scope---Holding of fair elections---Election Commission of Pakistan being a constitutional body had powers under the Constitution to issue directions in order to hold fair elections---Such power was not dependent on a sub-constitutional legislation.

Sheikh Rashid Ahmed v. Government of Punjab and others PLD 2010 SC 573 ref.

Per Muhammad Farrukh Irfan Khan, J; agreeing with Syed Mansoor Ali Shah, J.

(y) Administration of justice---

----Judge was bound to protect and preserve the Constitution and to endeavour to decide the lis before him justly, fairly and impartially--- Illustration.

(z) Administration of justice---

----View expressed by the Larger Bench (of a court) must be yielded to in the larger interest of the community and for upholding the mandate of the Constitution---Illustration.

Abid Saqi for Petitioner.

Mohammad Azhar Siddique, Shahanshah Shamil Paracha, Mohammad Irfan, Munir Ahmad, Muhammad Safdar Abbas Khan, Mian Muzaffar Hussain, Amjad Ali, Mian Sohail Anwar, Waqas Bin Zaffar Sraw, Shaikh Taimour Ali Mustafa, Asghar Ali Gill, Lala Shakeel-ur-Rehman, Abdul Wahid Ayyoub Mayo, Rana Muhammad Aslam Nadeem, Abdul Hafeez Ansari, Rai Sarfraz Ali Khan, Muhammad Mehmood Ch., Amjad Iqbal Khan, Ch. Rizwan Hayat, Mian Javed Iqbal Arain, Sheikh Muhammad Siddique, Aftab Rahim, Mirza Mukhtar Baig, M. Mushtaq Ahmad Dhoon, Naila Riaz Chaudhry, Tahir Shehzad, Muhammad Tanveer Ahmad, Malik Muhammad Akbar Awan, Ch. Zulfiqar Ali, Ch. Aftab Rashid, Sardar Muhammad Nawaz Dogar, Hafiz Muhammad Farooq Khan, Muhammad Maqsood Buttar, Ch. Haider Bakhsh, Muhammad Ashraf Sagoo, Malik Ghulam Abbas Nissoana, Hafiz Ansar Shuaib Hunjra, Shafiq Ahmed Malik, Shahid Mahmood Ch., Muhammad Sajjad Naeem Mohal, Ch. Anwaar-ul-Haq Pannun, Abdul Wajid Khan, Ch. Ijaz Akbar, Aziz-ur-Rehman Sheikh, Ch. Muhammad Naeem, Rana Iqbal Ahmad Khan, Ch. Mehboob-ul-Hassan Bhullah, Muhammad Ramzan Chaudhry, Malik Mushtaq Ahmad Nonari, Haseeb Raza Ch., Ahmad Awais, Muhammad Hammad Munir, M. Baleegh-uz-Zaman Chaudhree, Muhammad Azhar Solehria, Inzar Rasool, Faisal Maqsood Ahmed Khan, Safdar Ali Thakar, Sardar Kalim Ilyas, Fazal Abbas Kamyana, Muhammad Mozzam Sher Kallue, Rana Ijaz Ahmad Khan, Malik Saleem Iqbal Awan, Mureed Ali S. M. Bhutta, Mian Muhammad Ismail Thaheem, Ch. Muhammad Siddique Virk, Nasrullah Sattar Pasha, Muhammad Ishaq, Farrukh Gulzar Awan, Zubair Afzal Rana, Mudassar Abbass Maghiana, Ch. Tariq Mahmood Raan, Khalid Ishaq, Abdul Karim Khan, Khalid Ishaq, Ch. Tariq Mahmood Rawn, Hafiz Khalil Ahmad, Sardar Muhammad Ramzan, Syed Shahab Qutab, Irfan Mahmood Ranjha, Raja Zulqarnain, Mujahid Din Malik, Dost Muhammad Kahoot, Rao Muhammad Mudassar Azam, Shahid Rafique Meo, Mian Muhammad Saeed, Waqar Saeed Khan, Ch.Latif Khan Saraa, Muhammad Bashir Malik, Rana M. Arshad Khan, Pir Muhammad Asad Shah, Faisal Iqbal Awan, Iqbal Dhengal, Malik Amjad Pervaiz, Ch. Muhammad Saleem, Zahid Farani Sheikh, Khalid Nawaz Ghumman, Nasrullah Khan Baber, Ch. Iqbal Ahmad Khan, Ch. Arshad Hussain, Malik Muhammad Imtiaz Mahil, Iftikhar Ahmad Mian, Azhar Iqbal, Mian Arshad Ali Mahar, Mubeen-ud-Din Qazi, Azhar Siddique Cheema, Waqar Mushtaq, Zulfiqar Ali Qureshi, Mirza M. Aziz-ur-Rehman, Amjad Ali, Tahir Ahmad Sandhu, Zubda-tul-Hussain, Muhammad Mumtaz Faridi, Mian Abdul Aziz, Abdul Wahid, Zubair Bulqan Rana, Muhammad Farooq Qureshi Chishti, Nazir Ahmad Ghazi, Abdul Khaliq Safrani, Dr. A. Basit, Shahid Naseem Tahir Gondal, Mushtaq Ahmad Mohal, Abdul Latif Tariq, Maqbool Ahmad Naz, Ahsan Naveed Farooqi, Imdad Ali Nekokara, Ch. Abdul Ghaffar, Zahid Aslam Malaik, Sami-ul-Hassan Rana, Ch. Muhammad Idrees, Muhammad Akhtar, Umair Khan Niazi, Major (Retd.) Aftab Ahmad, Ch. Tanveer Ahmad Hanjra, Rana Muhammad Arif, Waseem Mumtaz Malik, Malik Ejaz Hussain Gorchha, Sh. Irfan Akram, Ch. Muhammad Tariq-ur-Rehman, Muhammad Rizwan Ullah Gondal, Bakhtiyar Kasuri, Ch. Muhammad Naseer, Ch. Muhammad Arshad Bajwa, Ch.Muhammad Rafique Jathool, Asif Bashir Mirza and Rabeel Raza Bhatti for the petitioners in connected writ petitions. Syeda Faiza Shah, Advocate/petitioner in person (in W.P. 33577 of 2013), Imran Javed Qureshi, Advocate/petitioner in person (in W.P. 33738 of 2013).

Naseer Ahmad Bhutta, Additional Attorney General for Pakistan, Mohammad Mahmood Khan, Deputy Attorney General for Pakistan, Mustafa Ramday, Acting Advocate General Punjab, Muhammad Hanif Khatana, Additional Advocate General, Punjab, M/s Khawaja Salman Mahmood, Shan Gull and Waqas Qadeer Dar, Assistant Advocates General, Punjab, Saqib Akram Gondal and Rana Iftikhar Ahmad for respondent No.3, M/s Ch. Mohammad Anwar Bhindar, Mian Subah Sadiq Kalasson, Muhammad Anwar Ghumman, Moeez Tariq, Ch.Akbar Ali Shad, Muhammad Azam Warraich, Malik Rab Nawaz, Ch. Abdul Rashid, Ch. Muhammad Hussain, Mirza Shahid Baig, Khawar Mehmood Khatana, Ch. Abdul Malik, Tariq Manzoor Chaudhry, Muhammad Anwar Chaudhry, Naveed Ahmad Khawaja, Ch. M. Lehrasib Khan Gondal, Muhammad Harooq Javed, Shahid Maqsood Khan, Ibadat Ali, Asad Jamal Akbar, Ch. Anwaar-ul-Haq Pannun, Abdul Wajid Khan, M. Asad Manzoor Butt, Asif Afzal Bhatti, Barrister Syed Nauman Shah and Abdul Waheed Khan Baluch for the private respondents in connected writ petitions.

Rana Muhammad Aslam, Deputy Director, Local Government Elections Punjab, Election Commission of Pakistan, Lahore, Ali Akhtar Khan, Law Officer, Election Commission of Pakistan, Lahore, Anwar Aziz, Joint Census Commissioner, Pakistan Bureau of Statistics, Ch.Abrar Ahmad, Director Legal, Local Government and M. Naeem Akhtar, Assistant Director Legal, Local Government

Muhammad Shahzad Shaukat, Salman Akram Raja, Nasar Ahmed, Babar Sattar and Saroop Ijaz: Amici Curiae

Assisted by: Sohail Shafiq (AD&SJ/Senior Research Officer), Muhammad Amir Munir, Rai Muhammad Khan and Sher Hassan Parvez (Civil Judges/Research Officers) at the Lahore High Court Research Centre (LHCRC)

Dates of hearing: 26th, 27th, 30th and 31st December, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 317 #

P L D 2014 Lahore 317

Before Umar Ata Bandial, C J

SHAHIDA PARVEEN---Applicant

Versus

ZAFAR IQBAL---Respondent

T.A. No.282-C of 2013, decided on 19th February, 2014.

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

----Ss. 7 & 5---West Pakistan Family Courts Rules, 1965, R. 6---Institution of suit---Determination of place of jurisdiction---Wife/applicant filed suit for dissolution of marriage, recovery maintenance allowance and dowry at place "L", whereas husband had filed suit for restitution of conjugal rights and for obtaining guardianship of minor before Family Court at place "P"---Contention of the wife was that convenience of wife took precedence in the choice of the forum, therefore, all proceedings be transferred to place "L"---Validity---According to R.6(a) of the West Pakistan Family Courts Rules, 1965 the first ground for determination of territorial jurisdiction was the place where the cause of action wholly or in part arose, and in custody or guardianship matter, if the minor was with the mother and had been illegally removed from her custody, at the place of her residence, cause of action shall be said to have arisen at such a place; otherwise the cause shall be deemed to have arisen where the minor was residing---Suit for restoration of conjugal rights, in the present case, must stand transferred to place "L" under principle laid down in S.7(2) of the West Pakistan Family Courts Act, 1964 read with R.6 of the West Pakistan Family Courts Rules, 1965---As far as the guardianship matter was concerned, there was not enough evidence to show that father had snatched minor from mother's custody therefore, the guardianship matter in respect of minor who was residing with father at place "P" was liable to be heard by the Courts of District of place "P"; however, such finding was subject to any evidence brought by wife before competent court on record to demonstrate that child was snatched from her custody by the father---Application was disposed of, accordingly.

Muhammad Iqbal v. Parveen Iqbal PLD 2005 SC 22 rel.

Nazir Ahmad Javaid for Applicant.

Sultan Anjum for Respondent.

PLD 2014 LAHORE HIGH COURT LAHORE 320 #

P L D 2014 Lahore 320

Before Mrs. Ayesha A. Malik, J

COLONY SUGAR MILLS LTD.---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.10702 of 2013, decided on 29th May, 2013.

Civil Procedure Code (V of 1908)---

----O. I, R.10(2)---Constitution of Pakistan, Art. 199---Import Policy Order, 2009, R. 20---Constitutional petition---Public interest litigation---Necessary and proper party---Scope---Impleadment of a party to such litigation---Principles---Petitioner filed a constitutional petition impugning the import of Carbon Dioxide (CO2) from India through Wahga Border under R.20 of Import Policy Order, 2009 and contended that there were concerns with respect to storage facilities, testing laboratory and transportation facilities at Wahga Border; that Carbon Dioxide being imported from India was of substandard quality and would affect the public health and lives of citizens---Applicants contended that they should be impleaded as respondents to the constitutional petition on account of being necessary and proper party since all of them were users of Carbon Dioxide either as direct importers or purchasers or as consumers; that since their right with respect to permits given for import would be adjudicated upon in the constitutional petition, and that their rights could be seriously prejudiced---Validity---Constitutional petition in question was on a matter of public importance---For cases involving issues of public interest litigation, more liberal stance was needed to be taken by the courts for impleadment of parties to such litigation, to enable it to hear all the parties concerned, who were likely to be affected by any judgment in such proceedings---When matters were of public importance then it was not only proper but necessary to make a person a party, whose interest was at stake in the constitutional petition and who could render proper assistance to the court about technical aspects of the issue involved---Application was accepted and applicants were allowed to join proceeding in the constitutional petition.

2014 SCMR 531 rel.

Shahid Ikram Siddiqui for Petitioner.

Usman Akram Sahi vice Munawar us Salarn for Applicant (in C.M. No.3 of 2013).

Waseem Abbas for Applicant (in C.M. No.5 of 2013).

Syed Moazzam Ali Shah for Applicant (in C.M.No.1182 of 2013).

Salman Akram Raja for Applicant (in C.M.Nos.1225 and 1231 of 2013).

Ms. Ayesha Hamid for Applicant (in C.M.No.1241 of 2013).

Ch. Muhammad Zafar Iqbal for Respondent Department.

PLD 2014 LAHORE HIGH COURT LAHORE 324 #

P L D 2014 Lahore 324

Before Ibad-ur-Rehman Lodhi, J

Syed FARRUKH WASEEM and another---Petitioners

Versus

PAKISTAN BAR COUNCIL and another---Respondents

Writ Petition No.11940 8of 2013, decided on 4th October, 2013.

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

----Ss. 55 & 13(d)---Pakistan Legal Practitioners and Bar Councils Rules, 1976, R.175-H---Constitution of Pakistan Arts. 25 & 199---Constitutional petition---Code of Conduct for contesting Election of Bar Association---Petitioners impugned amendment to the Pakistan Legal Practitioners and Bar Councils Rules, 1976 whereby R.175-H, was inserted; vide which minimum length of practice was made mandatory for eligibility to contest elections of Bar Associations---Contention of the petitioner was that Pakistan Bar Council was not competent to insert such a Rule in Pakistan Legal Practitioners and Bar Councils Rules, 1976 and that the same was also discriminatory in terms of Art.25 of the Constitution---Validity---Pakistan Bar Council was a body competent to make Rules in view of S.55 read with S.13(d) of the Legal Practitioners and Bar Councils Act 1973 whereby the Pakistan Bar Council was competent to make Rules regulating the functioning of a Bar Association, and it could not be therefore contended that the Pakistan Bar Council lacked jurisdiction to make Rules or amendments therein---Impugned R.175(H) Pakistan Legal Practitioners and Bar Councils Rules, 1976, inter alia, provided a different minimum length/tenure of practice to be eligible to contest elections for different offices of the Bar Association, and intention behind insertion of the same was to enhance the professional status of the legal fraternity and its elected bodies---Said R.175(H) was not discriminatory in nature for the reason that equal protection of law was available to similarly placed persons, and petitioners had failed to point out as to whether any person or class of persons on basis of discriminatory attitude were being deprived from contesting election of any Bar Association or that a similarly placed person or class of persons at the same time was being permitted to participate in the elections---Fundamental Rights provided in the Constitution were always enforceable subject to reasonable restrictions of law and when a competent body had introduced certain conditions for persons aspiring for different offices of the Bar Association, it could not be said that same were voilative of any fundamental right---High Court observed that the Bar Council had taken a positive and healthy step in order to maintain discipline and dignity in Bar Association, and the same should not be discouraged---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan--

----Art. 25 & 8---Enforcement of Fundamental Rights---Equality of citizens---Scope---Fundamental Rights provided in the Constitution were always enforceable subject to reasonable restrictions of law and when a competent body had introduced certain conditions for persons aspiring for different offices of the Bar Association, it could not be said that same were voilative of any Fundamental Right.

M. Wasif Mehmood for Petitioners.

PLD 2014 LAHORE HIGH COURT LAHORE 328 #

P L D 2014 Lahore 328

Before Umar Ata Bandial, C J

MUHAMMAD BILAL SALEEM---Petitioner

Versus

DEPUTY DIRECTOR DISTRICT HOUSING---Respondent

Writ Petition No.17551 of 2008, decided on 8th April, 2012.

Constitution of Pakistan--

----Art. 199---Allotment Policy of Provincial (Punjab) Government dated 23-12-1986---Allotment of plots to destitute families---Family of deceased government servant---Petitioner was son of deceased government servant, and along with his mother (the widow) was successful drawee in the balloting for allotment of plots---Petitioner impugned decision of Provincial Government, whereby it was held that only one member of the deceased's family could be allotted the plot, which was his mother (widow)---Contention of the petitioner was that he being orphan of deceased government servant, was also eligible for allotment---Validity---Family of the deceased government servant was duly accommodated with the allotment of plot in favour of his widow, and by such fact, the petitioner, son of the same deceased government servant, became disentitled to second allotment of plot from the quota---Destitute quota contained a certain percentage of plots reserved for widows and orphans of government servants and if condition of single allotment to one family was not applied, then the quota may be exhausted by multiple allotments to a few families---Tenor of the scheme was not to confer windfall benefit on members of any destitute family but to provide them security of one home in their time of hardship---Constitutional petition was dismissed, in circumstances.

Muhammad Asim Mumtaz for Petitioner.

Ahmad Rauf, Addl. A.-G. along with Muhammad Saeed Akhtar, Deputy Director Housing Jhang for Respondent.

PLD 2014 LAHORE HIGH COURT LAHORE 330 #

P L D 2014 Lahore 330

Before Umar Ata Bandial C.J. and Muhammad Farrukh Irfan Khan, J

PAKISTAN PEOPLES PARTY---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petitions Nos.23040, 25848, 26380, 27900, 24243, 20787, 23527 and 25028 of 2013, decided on 18th February, 2014.

Per Umar Ata Bandial, C.J.; Muhammad Farrukh Irfan Khan, J disagreeing with the finding that "delimitation process was within the domain and authority of the Provincial Government".

(a) Punjab Local Government Act (XVIII of 2013)---

----Ss. 7, 8, 9, 10---Constitution of Pakistan, Arts. 140A, 142(c), 199, 219(d) & 222(b)---Constitutional petition---Local Government Elections to be held in Punjab province---Delimitation of constituencies, process of---Power of delimitation of constituencies conferred on the Provincial Government at the exclusion of the Election Commission of Pakistan by virtue of Ss. 7, 8, 9 & 10 of Punjab Local Government Act, 2013---Constitutionality---Plea of petitioners that Art.222(b) of the Constitution visualized delimitation of constituencies for Local Government elections to be carried out by the Election Commission, therefore the process of delimitation was a necessary arrangement to be made by the Election Commission to ensure honest, just, fair and lawful elections---Validity---Articles 140A(2) & 219(d) of the Constitution contemplated the election to the Local Governments "to be held" by Election Commission of Pakistan---Delimitation of constituencies and preparation of electoral rolls were inceptional steps meant to enable elections---Such steps were anterior to the holding/conduct of elections---Starting point of the election process was understood to be notification of the election schedule or program that followed after the said inceptional steps had been taken---Article 222(b) of the Constitution visualized the Election Commission to carry out delimitation of constituencies under an enabling law to be framed by Parliament---No such law had been framed by the Parliament on the subject of delimitation of constituencies of Local Governments---Only law on the said subject was the Punjab Local Government Act, 2013---Power to frame laws in relation to Local Government elections was vested in the Provincial Assembly pursuant to Art.142(c) of the Constitution---Punjab Local Government Act, 2013 was promulgated in exercise of said legislative power competently as valid law---Article 140A of the Constitution gave Provinces the power and authority to choose the appropriate mode in which the Local Government election process, including the pre-election stage of preparation of electoral rolls and the delimitation of constituencies of Local Governments, should take place---Statutory provision(s) made in the Punjab Local Government Act, 2013, supported by the subordinate statutory instruments, contained a detailed mechanism for the delimitation process to be conducted by the Provincial authorities---No violation of any constitutional mandate or reservation was committed by the said arrangement---Constitutional petition was disposed of accordingly.

Muhammad Nazir Hakim v. Bukhtiar Said Muhammad and the Controlling Authority Montgomery PLD 1962 Lah. 421; Amirzada Khan MNA v. The Chief Election Commissioner and 2 others PLD 1974 Lah. 178; Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396; Khursheed Ahmed Junejo and others v. Government of Sindh and others 2005 MLD 1724; Surendrasinhaji Jorawarasinhji Jhala v. U.M.Bhatta, Chief Electoral Officer, Ahmedabad and others AIR 1969 Gujarat 292 and Haji Muhammad Afzal and others v. Mian Miraj Din and others PLD 1967 Lah. 689 rel.

(b) Constitution of Pakistan---

----Arts. 140A(2) & 218(3)---Local Government elections--- Election Commission of Pakistan, duty of---Scope---Delimitation of constituencies---Duty of the Election Commission to "hold" elections to Local Governments did not include the process of delimitation of constituencies.

----Arts. 140A & 222---Local Government elections---Provincial subject---Election Commission of Pakistan, role of---Scope---Local Government was an exclusively Provincial subject, therefore Local Government election was also a matter to be dealt with and decided solely by the Provinces---Scope of Election Commission's powers and duties during Local Government elections had been left to the decision of the Provinces to be taken in the light of their respective conditions.

(d) Constitution of Pakistan---

----Arts. 219(d) & 140A(2)---Election process---Scope---Delimitation of constituencies---Stage of delimitation of constituencies occurred prior to and was altogether distinct from the election process that was announced in an election programme---Delimitation of Local Government constituencies could not be deemed to fall within the election process conducted by the Election Commission.

Amirzada Khan v. Chief Election Commissioner PLD 1974 Lah. 178; Haji Muhammad Afzal and others v. Miraj Din and others PLD 1967 Lah. 689 and Worker's Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681 rel.

(e) Constitution of Pakistan---

----Arts. 140A(2) & 225---Elections---Dispute relating to delimitation of constituencies ---Election Tribunal, jurisdiction of---Dispute relating to delimitation of constituencies was not amenable to the jurisdiction of an Election Tribunal.

Election Commission of Pakistan through Secretary v. Javaid Hashmi and others PLD 1989 SC 396 rel.

(f) Punjab Local Government Act (XVIII of 2013)---

----S. 18---Constitution of Pakistan, Arts. 17(2), 140A & 199---Constitutional petition--- Local Government Elections to be held in Punjab province---Non-party based Local Government Elections--- Constitutionality---Section 18 of Punjab Local Government Act, 2013 required election of members of Local Government to be held on non-party basis---Fundamental right of political parties to contest election extended equally to all tiers of government, including Local Governments---Political parties could not be excluded from putting up their candidates in Local Government elections---No person who was a candidate of political party could be excluded from contesting election to all offices in Local Governments---Existence of Local Government had political, legal and sociological dimensions that operated to strengthen democracy and also good governance---For effective democracy and good governance, it was necessary that the elected representatives must be allowed to nurture, express and apply their political consciousness and principles in their decision making---Without a political identity the capacity of an elected representative to assess and express political preferences for policy making and executive action was greatly impaired---Article 140A of the Constitution devolved political, administrative and financial responsibility and authority to the elected representatives of the Local Governments---Devolution of political responsibility and authority to the elected representatives necessarily involved the application of their political principles and values---Such principles and values defined the political identity of the elected representatives---For elected representatives of Local Government to exercise political authority and to assume political responsibility as directed by Art. 140A(1) of the Constitution, it was necessary for them to nurture political values and principles that guided their executive decision making---In making a choice of beneficiaries of their executive action and for fixing priorities in the enforcement of executive policy, elected representatives of the Local Governments exercised judgments that drew on their political vision, values and principles---Without involving violation of any law or showing a leaning towards any party or its program, such evaluation drew upon the political mooring and roots of the elected representatives---Political party background of elected representatives provided and nourished such roots---Under the scheme of Punjab Local Government Act, 2013 elected officials of the Local Government elections were to vote for posts of Chairman, Vice-Chairman, Mayor and Deputy Mayor---If an electoral college lacked political foundation and roots, then the members of such electoral college could be easily swayed by personal or extraneous considerations to vote for a candidate for the office of Mayor or Chairman who lacked merit---Political choice exercised by each member of the electoral college in choosing the right candidate for the office of Chairman or Mayor, as the case might be, it was necessary that the members of the electoral college were imbued with political vision, principles and values---To bring integrity in and to prevent the vice of horse-trading from entering the decisions of the electoral college it was necessary that the political profile and identity of members of the electoral college was discernable from the outset by the badge of their political parties---Denial of political identity of a candidate for a Local Government office by S.18 Punjab Local Government Act, 2013 negated the obligation of the Province under Art. 140A of the Constitution to devolve political authority and responsibility to elected representatives of Local Governments---Consequently, the non-party based, non-political election to Local Governments depriving candidates of their political identity was inconsistent with the mandate of Art. 140A (1) of the Constitution---Section 18 of the Punjab Local Government Act, 2013 was also inconsistent with the Fundamental Right under Art.17(2) of the Constitution of citizens and political parties to contest elections to the public posts in the Local Governments---High Court declared that S.18 of Punjab Local Government Act, 2013 was void under Art. 8 of the Constitution---Constitutional petition was disposed of accordingly.

Wattan Party through its President v. F.O.P. and others PLD 2006 SC 697; Baz Muhammad Kakar and others v. F.O.P. and others PLD 2012 SC 870 and Raja Rab Nawaz v. Federation of Pakistan through Secretary, Defence and others 2013 SCMR 1629 rel.

(g) Constitution of Pakistan---

----Art. 17---Citizen's right to form or be a member of a political party---Scope---Such right extended to the (political) party's right to contest and participate in elections.

Mrs. Benazir Bhutto and another v. Federation of Pakistan and others PLD 1989 SC 66 rel.

(h) Constitution of Pakistan---

----Art. 17(2)---Political party---Right to form government---Scope---Where a political party contested the election successfully, it had a fundamental right to form government provided it enjoyed the requisite majority.

Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 rel.

(i) Constitution of Pakistan---

----Art. 140A(1)---Local Government---Important features of Art. 140A(1) of the Constitution stated.

Following are the important features of Art. 140A(1) of the Constitution:

(i) It visualizes provincial law to establish a local government system;

(ii) Such provincial law must devolve "political, administrative and financial responsibility and authority" to the local governments;

(iii) These local governments must be run by elected representatives.

(j) Words and phrases---

----"Devolve"---Meaning.

Black's Law Dictionary, Seventh Edition and Concise Oxford English Dictionary Eleventh Edition ref.

(k) Constitution of Pakistan---

----Art. 8---Sub-constitutional provision in conflict with a constitutional provision---Effect---Such sub-constitutional provision would be void.

Wattan Party through Presidnet v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 and Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and others PLD 2012 SC 870 rel.

(l) Constitution of Pakistan---

----Arts. 17(2), 140A & 199---Grievance of a political party relating to Local Government elections---Constitutional petition filed by political party before the High Court---Maintainability---Locus standi of political party---Fundamental Right under Art.17(2) of the Constitution---Scope---Although Fundamental Right under Art.17 of the Constitution was assured to citizens and not expressly to political parties, however, Art.17(2) of the Constitution was unique in specifically granting to the citizen the right to form or be a member of a political party as against merely the right to be member of an association---Fundamental Right under Art.17(2) of the Constitution was extended to political parties of which a citizen was a member---Political parties clearly had locus standi to claim right to form Local Governments under Art.17(2) of the Constitution--- Constitutional petition was held to be maintainable accordingly.

Ms. Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 rel.

(m) Constitution of Pakistan---

----Arts. 17(2), 140A & 260---Punjab Local Government Act (XVIII of 2013), S. 64---Person in "services of Pakistan"---Scope---Persons elected to the Local Government offices---Bar of Fundamental Right under Art.17(2) of the Constitution---Scope---Plea that persons elected to the Local Government offices discharged executive functions, therefore they fell into the definition of "services of Pakistan" under Art.260 of the Constitution and were disentitled to the benefit of Art.17(2) of the Constitution---Validity---Section 64(2) of the Punjab Local Government Act, 2013 clarified that executive authority of a Local Government vested in and was to be exercised by its Mayor or Chairman---Remaining office-bearers and members of local government did not by law exercise executive authority within the meaning of said provisions of the Punjab Local Government Act, 2013, therefore their office or post was not held in connection with the affairs of the Province and was outside the terms of Art.260 of the Constitution.

(n) Constitution of Pakistan---

----Arts. 17(2), 140A & 260---Punjab Local Government Act (XVIII of 2013), S.64---Person in "services of Pakistan"---Scope---Local Government election---Offices of Chairman and Mayor---Bar of Fundamental Right under Art.17(2) of the Constitution---Scope---Persons in the office of Chairman and Mayor of Local Government, prima facie, fell within the definition of "services of Pakistan", and therefore bar to right under Art.17(2) of the Constitution was attracted in their case---However, bar under Art.17(2) of the Constitution applied to holders of offices of Chairman and Mayor and not to candidates who were contesting for the said offices---Bar under Art.17(2) of the Constitution did not operate upon candidates sponsored by political parties (for said offices).

Per Muhammad Farrukh Irfan Khan, J; disagreeing with Umar Ata Bandial, CJ, on the finding that "delimitation process was within the domain and authority of the Provincial Government."

(o) Punjab Local Government Act (XVIII of 2013)---

----Ss. 7, 8, 9 &10--- Constitution of Pakistan, Arts. 140A, 199, 219(d) & 222(b)---Constitutional petition---Local Government Elections to be held in Punjab province---Delimitation of constituencies, process of---Power of delimitation of constituencies conferred on the Provincial Government at the exclusion of the Election Commission of Pakistan by virtue of Ss. 7, 8, 9 & 10 of Punjab Local Government Act, 2013---Constitutionality--- Provisions of Art.140A(1) of the Constitution did empower each province to legislate to establish a Local Government system and devolve political, administrative and financial responsibility and authority to the representatives of the Local Government, yet Art.140A(2) of the Constitution enjoined upon the Election Commission of Pakistan to hold the elections which aspect was further enforced in Art.219(d) of the Constitution---Legislature in its wisdom has segregated the duties of both the said organs of the State conscientiously and purposefully---Election Commission was empowered to "hold" election of the Local Governments---Provincial Government may legislate on the issue of Local Government elections but it could not empower itself to undertake any aspect of the "holding of elections of Local Government" which was mandated to Election Commission---Provincial Government could not usurp the mandate given to the Election Commission by the Constitution to the extent of "delimitation" of the local bodies constituencies and it was observed that proper assistance had not been provided to the present Bench regarding the "role of Election Commission in undertaking the exercise of "holding" elections to the Local Governments" under Arts.140A(2) & 219(d) of the Constitution--- Constitutional petition was disposed of accordingly.

(p) Constitution of Pakistan---

----Arts. 219(a) & (c)---Duty of Election Commission to "hold" elections---Scope---Electoral rolls, preparation of---Preparation of electoral rolls was a part of "holding" of elections.

Petitioners by:

Sardar Latif Khan Khosa assisted by M. Aslam Mumtaz, (in W.P. No.23040-2013) for Pakistan People's Party.

Bakhtiyar Mehmood Kasuri assisted by Syed Tayyab Hussain Rizvi, (in W.P.No.22040-2013) for Pakistan Tehrik-e-Insaf.

A.K. Dogar assisted by Miss Tabinda Islam (in W.P. No.26380-2013) for Lawyers Foundation for Justice.

Ishtiaq Ahmad Samsial, Advocate/petitioner in person (in W.P. No.20787-2013).

Mian Junaid Razaq along with Syed Mehran Shah, (in W.P. No.24243-2013).

M/s. Fida Hussain Rana and Sagheer Hussain Rana (in W.P. No.23587-2013) for Majlis-e-Wahdat-e-Muslimeen Pakistan.

Ch. Ishtiaq Ahmed Minhas (in W.P. No.25028-2013) for Muhammad Shakeel Butt, Petitioner.

Syed Hassan Mehdi Rizvi (in W.P. No.27900-2013) for Awaam Dost Party Pakistan.

Alamgir, (in W.P.No.25848-2013) for Pakistan Muslim League(Q).

Ch.Waseem Ahmed Chaichee (in C.M. No.3320-2013) on behalf of Malik Munsaf Awan, Chairman Pakistan Justice Party.

Respondents by:

Ch.Naseer Ahmad Bhutta, Additional Attorney General for Pakistan.

M. Javaid Kasuri, Deputy Attorney General for Pakistan.

Miss Shaista Qaiser, Standing Counsel for Pakistan.

Mustafa Ramday, Advocate-General, Punjab.

M.Shan Gull, Addl. Advocate-General assisted by Yousaf Naeem and Razi Rehman, Advocates/apprentices for Respondents Nos.1 and 2.

Salman Aslam Butt, Advocate Supreme Court assisted by M. Haroon Mumtaz, M.Waqar Rana , Waleed Khalid, M.Shoaib Rashid, Ahmed Abbas, Taimur Khan, Ghulam Mujtaba and M.Mussadiq for Respondent No.3 (Secretary Local Government Department, Government of Punjab.) M. Azhar Siddique (in C.M.No.2900-2013 and C.M.No.2899 in W.P.No.22040-2013) for Shabbir Asmaeel, Advocate.

Rana Asad Ullah Khan (in C.M No.3026-2013 and C.M.No.3027-2013 in W.P.No.22040-2013) for Mian Muhammad Sharif Zafar Advocate/President PML(N) Lawyers Forum Punjab.

Ali Akhtar, Law Officer, ECP/Respondent No.4.

Dr.Rasul Baksh Raees, Social Scientist/Chairman Institute of Strategic Studies, Islamabad.

PLD 2014 LAHORE HIGH COURT LAHORE 369 #

P L D 2014 Lahore 369

Before Mamoon Rashid Sheikh, J

HIGH COURT BAR ASSOCIATION, RAWALPINDI through Taufiq Asif, President and Members Executive Committee---Petitioner

Versus

PUNJAB BAR COUNCIL through Vice Chairman and others---Respondents

Writ Petition No.452 of 2014, decided on 24th February, 2014.

Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Rr. 175-G & 175-H [inserted by Pakistan Legal Practitioners and Bar Councils (Second Amendment) Rules, 2013]---Constitution of High Court Bar Association of Rawalpindi (1981), Art. 10---Constitution of Pakistan. Art.199---Constitutional petition---Term of office---Outgoing office bearers of Rawalpindi High Court Bar Association contend that even after completion of their tenure, they were competent to decide appeals of candidates who had been disqualified at the time of filing of their nomination papers---Validity---Tenure of outgoing office-bearers could not be extended in any circumstances in view of the provision of Art.10 of Constitution of High Court Bar Association of Rawalpindi, 1981---Outgoing office-bearers were unable to establish that they had vested right to continue in office to hear appeals of disqualified candidates---Petitioner did not have any locus standi to bring petition before High Court---High Court refrained to dilate upon vires or legality of order passed by Punjab Bar Council whereby caretaker President of Bar Association had been appointed---Petition was dismissed in circumstances.

Julius Salik v. Returning Officer and 27 others 1989 CLC 2499; Anjum and 2 others v. Mst. Sufaidan and 3 others PLD 1989 Lah. 103; Shah Muhammad v. Shafey Ali Khan and others 1988 MLD 956; Abdul Wahid and another v. Din Muhammad and others PLD 1982 Lah. 168; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Sajjad Ahmad Bhatti v. Federation of Pakistan through Secretary Establishment Division, Islamabad and others 2009 SCMR 1448 and Federation of Pakistan through Secretary Establishment Division v. Shahid Hayat and another 2010 SCMR 169 ref.

Taufiq Asif and Faisal Khan Niazi for Petitioner.

PLD 2014 LAHORE HIGH COURT LAHORE 375 #

P L D 2014 Lahore 375

Before Umar Ata Bandial, C J

Engr. GHAZANFAR ALI KHAN and others---Petitioners

Versus

F.O.P. and others---Respondents

Writ Petition No.1627 of 2012, heard on 26th September, 2013.

(a) Public Sector Companies (Corporate Governance) Rules 2013---

----Rr. 1, 3, 2(d), 2(g) & Annexure---Companies Ordinance (XLVII of 1984) S. 183---Constitution of Pakistan, Arts. 199 & 189---Constitutional petition----Public Sector Company---Appointment of Chief Executive Officers (CEOs) of Power Distribution and Supply Companies (DISCOs)----Authority of Federal Government to make such appointments---Independence of Board of Directors of such companies---Criteria for determining a 'Fit And Proper Person"----Scope---Petitioners impugned advertisement issued by Federal Government for recruitment of CEOs for LESCO and FESCO---Question raised by the petitioners was, inter alia, whether the Federal Government had any authority to initiate and finalize appointment process for said posts---Validity---Under the Companies Ordinance, 1984, the Federal Government, could as the principal shareholder of public sector companies, exert influence on their management, through its appointed Directors---Rather than acting through Boards, the Federal Government had exaggerated its role in the affairs of DISCOs and adverse consequences thereof had followed with the Federal Government's direct interference in the management of power sector companies through ad hoc measures---Compliance with duties imposed by the Companies Ordinance, 1984 would foster management independence and accountability and therefore bring efficiency and transparency in affairs of DISCOs and the Public Sector Companies (Corporate Governance) Rules, 2013 were tailored for regulating governance of such companies, and, DISCOs fell squarely within the ambit of said Rules---In the context of appointments to senior posts in public sector entities, the law had moved ahead by requiring a transparent, meritorious and competitive process of selection for senior management posts of, inter alia, public sector companies----Impugned advertisement assuming exclusive power of appointment by the Federal Government, was issued in excess of lawful authority and under Public Sector Companies (Corporate Governance) Rules, 2013, successful candidate for CEO must fulfil the standards of "fit and proper person" given in the annexure of the said Rules; and it was equally important that members of the Board of Directors also meet the said standards and only then the selection process may achieve the fairness and transparency mandated by the Supreme Court in Khawaja Muhammad Asif v. Federation of Pakistan and others [2013 SCMR 1205]---Desired autonomy of LESCO and FESCO (the DISCOs) could not be achieved unless their Board of Directors and CEOs were appointed by the Federal Government under the recognized criteria laid down in the Public Sector Companies (Corporate Governance) Rules, 2013, which would bring merit and dynamism to senior management positions in such companies----Impugned process of selection of CEO of DISCOs by Federal Government directly without recommendation by their Boards was improper and said selection process was unlawful---High Court directed that selection process be restarted in accordance with parameters laid down in Public Sector Companies (Corporate Governance) Rules, 2013 as interpreted herein for purposes and Board of Directors of the companies be reconstituted according to law---Guidelines and directions for reconstitution of Board of Directors and appointment of CEOs were provided by the High Court.

Muhammad Ilyas Sheikh v. PEPCO and others (Writ Petition No.12272 of 2011); Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Corruption in Hajj Arrangement's case PLD 2011 SC 963 and Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205 ref.

(b) Public Sector Companies (Corporate Governance) Rules, 2013---

----R. 3 & Annex.---Public Sector Power Companies (DISCOs)---Management---Efficiency of management of a service industry was directly linked with competence and independence of management---Power utility company was not merely an ordinary business for profit but was provider of an essential service to different strata of society in accordance with governmental policy objectives----As a company incorporated under law, a DISCO must be organized and run in accordance with the provisions of the Companies Ordinance, 1984 and subordinate legislation framed thereunder.

----Appointments on senior posts in public sector enterprise---Law had moved ahead by requiring a transparent, meritorious and competitive process of selection for senior management posts of, inter alia, public sector companies.

Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 and Corruption in Hajj Arrangement's case PLD 2011 SC 963 rel.

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

----S. 183---Certain provisions not to apply to directors representing special interests---Interpretation of S.183, Companies Ordinance, 1984---"At pleasure" discretion of the Government---Scope---"At pleasure" discretion of the government conferred by S.183 of the Companies Ordinance, 1984 was merely regulated under the principles established by the Supreme Court in Muhammad Yasin v. Federation of Pakistan through Secretary Establishment Division, Islamabad and others [PLD 2012 SC 132]----Doctrine of pleasure could not now be interpreted to confer a power of appointment that was exercisable by government arbitrarily or whimsically.

Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 and Corruption in Hajj Arrangement's case PLD 2011 SC 963 rel.

(e) Public Sector Companies (Corporate Governance) Rules, 2013---

----Appointment of persons to senior management of public sector enterprises---Responsibility for evaluating and recommending candidates for appointment to senior public posts, inter alia, in government control corporations must vest in an independent authority constituted by the Federal Government, that is, a Commission---Relevant appointments ought to be made by the Federal Government from amongst the recommendees of the Commission.

Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205 ref..

(f) Public Sector Companies (Corporate Governance) Rules 2013---

----Rr. 3, 5 & Annex.---Appointment of Directors and CEOs of Public Sector Companies---Conformity of Public Sector Companies (Corporate Governance) Rules, 2013 with principles laid down by the Supreme Court in Khawaja Muhammad Asif v. Federation of Pakistan and others [2013 SCMR 1205]; examined.

Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205 ref.

(g) Public Sector Companies (Corporate Governance) Rules, 2013---

----Appointment of independent persons to manage public sector enterprises---Universality of principles embedding transparency and merit in the appointment of top management of public utilities---Examination of comparative legislation from foreign jurisdictions.

(h) Public Sector Companies (Corporate Governance) Rules, 2013------

----Management of public sector enterprises---Autonomy---Public Sector enterprises must be managed and run by professional, competent and meritorious chief executives who were guided by and accountable to an independent Board of Directors, whose members possess similar or better credentials---Autonomy in managing the operations of public sector power companies was safeguarded by the law and such independence was also necessary for productivity and profitability of operations.

Kh. Haris Ahmad assisted by Syeda Maqsooma Zahra Bukhari and Ghulam Subhani, along with Iftikhar Ahmad Mian for Petitioners.

Syed Naeem Bukhari, assisted by Afzal Bhatti and M. Yousaf Anjum for Respondents Nos. 1 and 2.

Shaukat Umar Pirzada, assisted by Muhammad Imran Nasir for Respondent No.4/PEPCO.

Munawar-us-Salam, assisted by Usman Sahi for LESCO/Respondent No.5.

Waqar A. Sheikh, assisted by Ahmad Ali Ranjha for PESCO/Respondent No.6.

Muhammad Yasin Badar, Legal Consultant, LESCO.

Umair Mansoor, Assistant Director (Legal) SECP.

Date of hearing: 26th September, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 394 #

P L D 2014 Lahore 394

Before Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ

BASHIR AHMAD BUTT and others---Appellants.

Versus

THE STATE and others---Respondents

Criminal Appeal No.340-J and Murder Reference No.542 of 2010, heard on 21st February, 2014.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---Motive suggesting no deep rooted enmity between parties---Single entry wound on deceased---Effect---Accused allegedly fired at and murdered the deceased---Motive for the occurrence was that deceased hired accused for painting his house and a dispute arose between them over payment of labour---Accused was convicted under S.302(b), P.P.C by Trial Court and was sentenced to death---Validity---Matter was promptly reported to the police, 35 minutes after the occurrence, which ruled out chances of deliberations/consultations---Ocular account was furnished by father and paternal uncle of the deceased, and their testimonies could not be discarded merely because of their relationship inter se and with the deceased as they had no serious enmity or ill will towards the accused for his false implication in the case---Place of occurrence was a shop, wherein father and paternal uncle of deceased worked as partners, therefore, their presence at the spot was quite natural and probable---Present case was a case of single accused as far as firing at the deceased was concerned and substitution in such like cases was a rare phenomenon as kith and kin of deceased would not implicate an innocent person by letting of the real culprit---Motive for the murder was not disputed by the defence, and the accused himself in his statement under Ss.340(2) & 342 Cr.P.C. admitted that deceased had to pay some amount to him regarding services rendered by him for painting his house---Report of Forensic Science Laboratory revealed that empties collected from the spot were fired from the pistol recovered at the instance of the accused---Contradiction between ocular and medical evidence was regarding point of entry and exit of bullet fired by accused, but not regarding the general location of the fire shot, which in the present case was the head of deceased---Eye-witnesses who were themselves in firing range were expected to run for cover in the heat of the moment, therefore, being panic-stricken and shocked their narration of events based on a sudden glance could not be expected to be punctiliously accurate and precise---Possibility of instantaneous turning of head by the deceased in response to a close range fire in the face could not be ruled out, hence variation between ocular and medical evidence regarding point of entry of bullet in the circumstances of the case, did not appear to be a major variation---Evidence against accused was sufficient to maintain his conviction under S.302(b), P.P.C., however present case was not a case for capital punishment because motive set up by the prosecution suggested that there was no deep rooted enmity between the parties and possibility of something else happening at the spot prior to the occurrence could not be ruled out, and because only a single entry wound was observed on the body of deceased during his post mortem examination---Death sentence awarded to accused was altered to imprisonment for life---Appeal was dismissed accordingly.

Jumma v. The State 2011 SCMR 1428 and Amin Ali and another v. The State 2011 SCMR 323 distinguished.

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

---S. 302(b)---Qatl-e-amd---Appreciation of evidence---Testimony of eye-witnesses---Eye-witnesses of the occurrence inter-se related with each other and also with the deceased---Testimony of such eye-witnesses could not be discarded merely because of their relationship inter se as well as with the deceased, especially when they had no deep rooted enmity or ill will towards the accused for his false implication.

Haji v. The State 2010 SCMR 650 rel.

---S. 302(b)---Qatl-e-amd---Appreciation of evidence---Contradiction between statements of witnesses (ocular account) and post mortem report (medical evidence) regarding point of entry and exit of bullet---Relevance---Despite such contradiction, general location of fire shot had been identified by witnesses and post mortem report as head of deceased---Eye-witnesses who were themselves in firing range were expected to run for cover in the heat of the moment, therefore, being panic-stricken and shocked their narration of events based on a sudden glance could not be expected to be punctiliously accurate and precise---Variation between ocular and medical evidence to the extent of point of entry of bullet in such circumstances, would not be a major variation to discredit the case set up by the prosecution---Illustration.

Muhammad Afzal and 3 others v. The State 1999 SCMR 1991 rel.

State of Uttar Pradesh v. Naresh and others (2011) 4 SCC 324 ref.

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

---S. 302(b)---Qatl-e-amd---Quantum of sentence---Benefit of doubt---Accused was entitled to benefit of doubt as an extenuating circumstance, while deciding question of (quantum of) sentence.

Mir Muhammad alias Miro v The State 2009 SCMR 1188 rel.

Rai Shafqat Ali Kharal for Appellant.

Mirza Abid Majeed, Deputy Prosecutor General for the State.

Malik Falak Sher for the Complainant.

Dates of hearing: 14th and 21st February, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 408 #

P L D 2014 Lahore 408

Before Abid Aziz Sheikh, J

SIDRA YASIN---Petitioner

Versus

Mrs. ISHRAT ISHAQ and others---Respondents

Writ Petition No.23186 of 2013, heard on 4th November, 2013.

(a) Constitution of Pakistan---

----Arts.4, 18, 25-A & 199---Constitutional petition---Right of education, profession, lawful trade or business---Fundamental rights---Conditions, bonds and undertakings, restricting fundamental rights---Scope---Candidate at the time of admission to the Course of Lady Health Visitor (LHV), was asked to submit a bond that after successful completion of Course, she was bound to serve the government health department for two years---Candidate after successful completion of Course and despite the lapse of seven months, was not offered any job due to non-availability of vacancy---Candidate in order to get admission for further studies, requested the department to issue "no objection certificate" for taking admission in General Nursing Course---Candidate was refused to issue no objection certificate for further studies on the ground that she was required to serve the health department---Validity---Right of profession, lawful trade or business is a fundamental right of every citizen, similarly, right of education being part of livelihood is also a fundamental right---Bond obtained from candidate, and the conditions prescribed in the prospectus amounted to restricting the fundamental rights of the candidate regarding freedom of profession and education---Such conditions prescribed in prospectus restricting the fundamental rights of the petitioner had to be construed very strictly and if at all two interpretations were possible, the one in favour of the successful candidate whose fundamental rights were being restricted had to be adopted---Competent authority despite the lapse of six months from the date of successful completion of course had not offered any job to the candidate, therefore she became entitled to serve anywhere as per condition prescribed in prospectus---Candidate applied for "no objection certificate" to take admission for further studies and not for the job anywhere in the government department, therefore the impugned condition was not applicable---Order rejecting grant of "no objection certificate" to the candidate was set aside---Department was directed to issue "no objection certificate" to the candidate for getting admission in nursing school for further studies.

(b) Interpretation of statutes---

----Every statute is to be interpreted in organic manner and further if any word is not defined in the statute, then ordinary meaning of the word to be followed.

----"Offered"---Definition.

Black's Law Dictionry Eighth Edn. rel.

(d) Interpretation of statutes---

----Amendment---Generally, the amendment is made to bring out change in the state of law unless the same is clarificatory or declaratory in nature.

Mirza Muhammad Aziz ur Rehman for Petitioner.

Kashif Javed Chaudhry with Muhammad Iqbal Mehmood, Litigation Officer for EDO Health Okara and Muhammad Idrees, T.O.R.F./W. Rana Shamshad Khan, A.A.G. for Respondents.

Date of hearing: 4th November, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 414 #

P L D 2014 Lahore 414

Before Ali Baqar Najafi, J

MUHAMMAD MEHBOOB and another---Petitioners

Versus

NOOR ELLAHI through Legal Heirs and others---Respondents

Civil Revision No.297 of 2013, decided on 21st May, 2013.

Civil Procedure Code (V of 1908)---

---O. XLI, R. 27---Specific Relief Act (I of 1877), Ss. 42, 39, 54 & 55---Suit for declaration, cancellation, mandatory and permanent injunction---Recording of additional evidence by the Appellate Court---Pronouncement of judgment---Substantial cause---Plaintiffs-petitioners filed suit for declaration, cancellation, mandatory and permanent injunction which was dismissed by the Trial Court and appeal was filed wherein an application for production of additional evidence was moved but the same was dismissed by the Appellate Court---Contention of the plaintiffs-petitioners was that the documents were relevant and important for the just decision of the case---Validity---Appellate Court might require any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause by way of additional evidence---Production of additional evidence was not normally encouraged but when some document had direct bearing on the lis, the court could not close its eyes---Application for additional evidence was permissible at any stage of the proceedings---Documents sought to be produced through additional evidence comprised of revenue record whereby the parentage appeared and basis of the claim of the plaintiffs-petitioners was the parentage---Documents were relevant in order to establish parentage and that would not fill up the lacuna in the plaintiffs-petitioner's evidence and would not set up a new point---High Court observed that such documents need to be appreciated---Revision was accepted and case was remanded to the Appellate Court.

Bashir Ahmad v. Ahmad-ul-Haq Siddiqui 1985 SCMR 1232 ref.

Muhammad Abdul Hayee Alvi for Petitioner.

Ch. Nisar Ahmad Gujjar for Respondents.

PLD 2014 LAHORE HIGH COURT LAHORE 417 #

P L D 2014 Lahore 417

Before Muhammad Farrukh Irfan Khan, J

NISAR AKBAR KHAN and others---Petitioners

Versus

JAMIL NASIR and others---Respondents

Civil Revision No.2989 of 2004, decided on 31st May, 2013.

(a) Partition---

----Suit for partition of joint-property---Limitation---Scope---Right to enforce partition of joint property, for being a continuing right, would not be bound by any period of limitation---Mere holding of possession of joint property by one co-sharer/owner would not disentitle order co-sharers/owners from claiming partition thereof---Limitation would be irrelevant in case of suit for partition, which could be filed at any time.

Sarakhi Abdul Rahiman Trangan and another v. Muhaidin Pathaummal Bivi and another AIR 1917 Madras 244; Habib-ur-Rehman v. Abdul Rahman and 3 others 1987 CLC 195; Hamayun Kabeer v. Oaiser Nazir 2006 MLD 1496; Moinuddin Paracha v. Sirajuddin Paracha 1994 CLC 247; Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others PLD 1994 SC 462 and Jan Muhammad and another v. Abdur Rashid and 5 others 1993 SCMR 1463 rel.

(b) Co-sharer---

----Co-sharer in possession of joint property could alienate or transfer (i.e. by gift) his share in Khata and deliver possession of property in his control---Such share purchased by vendee would be subject to partition, and he could not claim exclusive possession till partition of joint Khata.

Jan Muhammad and another v. Abdur Rashid and 5 others 1993 SCMR 1463 rel.

----S.214---Principal's property without his approval gifted by attorney in favour of his son---Validity---Attorney could not make such gift.

Fida Muhammad v. Muhammad Khan PLD 1985 SC 341; Faqir Muhammad v. Pir Muhammad 1997 SCMR 1811; Muhammad Yasin v. Dost Muhammad PLD 2002 SC 71; Jamil Akhtar v. Las Baba PLD 2003 SC 494; Muhammad Ashraf v. Muhammad Malik PLD 2008 SC 389; Muhammad Yousuf v. Iqbal Bibi 2005 CLC 1839 and Maqsood Ahmad v. Salman Ali PLD 2003 SC 31 rel.

(d) Partition---

----Suit for partition of property in joint-khata---Scope---Co-sharer/owner could not seek partition of a portion of joint property without consent of other co-sharers, otherwise his suit would not be maintainable.

Noor Muhammad v. Allah Ditta PLD 2009 SC 198 and Samar Gul v. Central Government PLD 1986 SC 35 rel.

(e) Administration of justice---

----Court can grant such relief as justice of case may demand.

(f) Partition---

----Joint agricultural land---Conversion of such land into a Housing Scheme by one co-sharer in possession and alienating same to extent of his own share while utilizing land of remaining co-sharers for roads and other amenities---No law existed to protect right of remaining co-sharers while seeking partition of such land over which a Housing Scheme or constructed property existed---High Court emphasized Legislative Authorities to frame suitable law(s) on such subject.

Uzair Karamat Bhandari for Petitioner.

Kh. Saeed uz Zafar for Respondent

Dates pf hearing: 26th September, 2012 and 31st May, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 424 #

P L D 2014 Lahore 424

Before Ijaz Ahmad and Ali Baqar Najafi, JJ

FAUJI FOUNDATION through General Manager (Engineering)---Appellant

Versus

Messrs CHANAN DIN AND SONS through Attorney and others---Respondents

Regular First Appeal No.226 of 2011, decided on 3rd July, 2013.

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

----Ss. 14, 20 & 30---Non-completion of work by respondent within agreed time---Award of fresh contract by applicant to a third party for completing remaining work---Respondent's notice to appellant claiming Rs.1,13,78,207---Reference of dispute between parties to Arbitrator in terms of arbitration clause in contract---Submission of claim by respondent for Rs.2,24,18,619 instead of Rs.1,13,78,207---Award by Arbitrator for differential amount of Rs.4.9 million made rule of court by Trial Court---Validity---According to terms of contract, respondent's claim had to be confined to amount for which he had issued notice to applicant---Neither court nor Arbitrator was competent to enlarge scope of contract or application made under S.20 of Arbitration Act, 1940---Award for differential amount between respondent's contract and such third party's contract was beyond jurisdiction of Arbitraor---Arbitrator's function was not to be influenced by his imagination and opinion, rather he was obliged to apply agreed clauses of contract between parties---High Court set aside impugned judgment and remanded case to Trial Court for its decision afresh in terms of reference.

Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 and Shamim-ur-Rehman v. Fauji Foundation Rawalpindi and another 1992 SCMR 1496 ref.

House Building Finance Corporation v. Shahinshan Humayun Corporative Housing Building Society and others 1992 SCMR 19 and Shamim-ur-Rehman v. Fauji Foundation, Rawalpindi and another 1992 SCMR 1496 rel.

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

----Ss. 17 & 30---Making award rule of court---Powers of court---Scope---Court while examining correctness and legality of award could neither act as a court of appeal nor undertake reappraisal of evidence recorded by Arbitrator in order to discern error or infirmity therein.

----S. 30---Award, setting aside of---"Misconduct of Arbitrator"---Meanings.

In the judicial sense, the misconduct of an Arbitrator means his failure to perform his essential duty resulting in substantial miscarriage of justice between the parties.

Mian Corporation through Managing Partner v. Messrs Lever Brothers of Pakistan Ltd. through General Sales Manager, Karachi PLD 2006 SC 169 and Brooke Bond (Pakistan) Ltd. v. Conciliator Appointed by the Government of Sindh and 6 others PLD 1977 SC 237 rel.)

Muhammad Azam Chattha for Appellant.

Waqar-ul-Haq Sheikh for Respondents.

Date of hearing: 6th June, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 429 #

P L D 2014 Lahore 429

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD BASHIR through Legal Heir---Petitioner

Versus

ZARINA BIBI and others---Respondents

Writ Petition No.18133 of 2012, decided on 20th June, 2013.

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

----Ss. 13 & 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance---Execution petition---Submission of surety bond---Attachment of property of surety---Scope---Decree holder filed execution petition wherein judgment-debtor was arrested and petitioner, his father submitted surety bond of Rs.1,00,000---Judgment-debtor committed default in payment of decretal amount and Executing Court attached property of surety and ordered the auction of the same---Judgment-debtor appeared in custody and offered to deposit the decretal amount in installments and Executing Court accepted the offer---Judgment-debtor deposited one installment with the court auctioneer---Surety/petitioner prayed for abandonment of the court auction but same was refused---Validity---Judgment-debtor had arranged the surety and Executing Court had accepted the surety bond---Surety was not party to the suit who deposited Rs.1,05,000 with the court auctioneer and fulfilled his obligation, his property could not be auctioned---Contract of surety had provided that in case the judgment-debtor failed to appear before the court the surety would deposit Rs.1,00,000 who had never undertaken or assured that he would pay the decretal amount in case of failure of the judgment-debtor to pay the same---Contract of surety had provided that maximum surety under the contract was Rs.1,00,000---Executing Court had erroneously observed that surety had to pay the entire decretal amount---Order of Trial Court did not find mention that the judgment-debtor would arrange a surety for the payment of the entire decretal amount---Judgment-debtor was to provide a surety amounting to Rs.1,00,000 for balance decretal amount---Impugned order was set aside and order for auctioning the immovable property of surety/petitioner was declared without lawful authority---Constitutional petition was allowed in circumstances.

Amanullah Khan v. District Judge and 3 others 2012 CLC 679 and Saleem-ullah v. Abadat Ali Malik and others 2000 CLC 1648 distinguished.

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

----S. 128---Surety's liability---Scope---Liability of surety was co-extensive with principal debtor unless otherwise provided by the contract.

Azhar Iqbal for Petitioner.

Shabbir Hussain for Respondents.

PLD 2014 LAHORE HIGH COURT LAHORE 433 #

P L D 2014 Lahore 433

Before Umar Ata Bandial, C J

BAR ASSOCIATION, DEPALPUR---Petitioner

Versus

CHIEF SECRETARY and others---Respondents

Writ Petition No.14011 of 2013, decided on 15th April, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public project---Exchange of State land with private land for a public project--- Establishment of a new Judicial Complex ---Total land required for the new Judicial Complex in question was 120 kanals---Provincial Government had already acquired 40 kanals of private land for the new Complex in exchange with State land---Remaining 80 kanals of land was not being acquired by the Provincial Government for the reason that it did not have a policy of exchanging State land for private land for public purposes---Validity---Provincial Government had from time to time until the year 2012 exchanged private land with State land for public purposes, therefore reason put forward by the Provincial Government for not acquiring the remaining 80 kanlas was inconsistent with its own record---Requirement of a new Judicial Complex in the district was crucial for the provision and dispensation of justice to the public---Providing such a Complex was the constitutional obligation of the State---Present Judicial Complex in the district was over-crowded and lacked facilities commensurate with the decorum and dignity of an institution providing justice to the people, therefore, it was incumbent on the Provincial Government to take steps for completing the new Judicial Complex at the earliest---High Court directed that compulsory acquisition of remaining 80 kanals of land for the new Judicial Complex should be concluded by the Provincial Government within six months, where after construction of the new Complex should be commenced in all earnest and with due expedition---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Direction by High Court to the Executive/Government---Scope---High Court was duty bound to direct only such action by the Provincial Government that was strictly in accordance with the law---Court should refrain from directing executive action that was devoid of legal cover---Court should exercise judicial restraint from forcing the Provincial Government to commit an act which was neither authorized by specific law nor contemplated by a specific executive policy.

----Arts. 184(3) & 199-Direction by the court to the Executive/ Government---Scope---Executive policy, interference in---Courts of law could not issue directions in matters falling within the domain of executive policy.

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd and others PLD 2014 SC 1 rel.

M. Akram Qureshi and Mian M. Sharif Zafar Joiya for Petitioner.

Shahid Mubeen, Addl. A.-G. along with Mushhad Raza Kasmi, Deputy Secretary (Colonies-I) and Sultan Ahmad, Assistant Colony Sales Branch, BOR and Sardar Riaz Ahmad Riaz, General Assistant Revenue, Okara.

PLD 2014 LAHORE HIGH COURT LAHORE 436 #

P L D 2014 Lahore 436

Before Syed Mansoor Ali Shah and Shujaat Ali Khan, JJ

Rana NAVEED AHMAD KHAN---Appellant

Versus

PROVINCE OF PUNJAB through Secretary LG and CD---Respondent

Objection Case Dairy No.8546 of 2014, decided on 12th February 2014.

Law Reforms Ordinance (XII of 1972)

---S. 3-Constitution of Pakistan, Art.199---High Court Rules and Orders (Lahore) Vol. V (Revised Edition, 2010); Chap. I, Part 9-A---1ntra-court appeal---Scope---Intra-court appeal against order of single judge in an office objection case relating the maintainability of a constitutional petition---Maintainability---In order to maintain an intracourt appeal in terms of S.3 of the Law Reforms Ordinance, 1972; order under challenge subject to proviso of S.3 of the Ordinance must have been passed while exercising "original civil jurisdiction" or "constitutional jurisdiction" of the High Court under Art. 199 of the Constitution---Single Judge while hearing an objection case was performing an administrative function and only after an office objection was overruled; that the case matured on the judicial side and formally entered the area of "original civil jurisdiction" or "constitutional jurisdiction" as the case may be---At the objection stage, the case was still premature, and fell within the domain of administrative jurisdiction of he single Judge---Intra-court appeal was, therefore, not maintainable against such an order; and was dismissed, in circumstances

Employees Management Group, Pak-Saudi Fertilizers Limited through Authorised Representative v. Department of Pakistan in the Ministry of Privatization (Privatization Commission), Pak Secretariat, Islamabad through Secretary and 8 others 2002 YLR 1487; Objection Case Diary No.19895 of 2004; Lahore Race Club through Secretary and others v. Raja Khushbakht-ur-Rehman PLD 2008 SC 707; Brothers Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1996 SC 543 and Pakistan Fisheries Ltd., Karachi and others v. Unite Bank Ltd. PLD 1993 SC 109 rel.

Rana Adeel Sajjad for Appellant.

Khawaja Salman Mahmood, Asstt. A.-G. Punjab.

OFFICE OBJECTION

Through this ICA, the appellant has impugned order dated 20-1-2014 passed by the learned Judge in Chamber whereby the office objection raised on the writ petition filed by the appellant (Diary No.4524 of 2014) was sustained in the following manner:---

"Office has raised an objection that the writ is not competent in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

Learned counsel admits that though a remedy before the Service Tribunal is available but the same is not efficacious and therefore the instant petition has been filed.
The argument of the learned counsel is without substance. As such the office objection is sustained."
Office has now raised an objection regarding the maintainability of the instant ICA as the order under challenge in this appeal has been passed on the administrative side by the learned Single Judge.
Learned counsel for the appellant submits that the ICA is competent in terms of section 3 of the Law Reforms Ordinance, 1972 against the order passed by the learned Judge in Chamber as the office objection was sustained while exercising constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
In order to address the office objection raised by the office, what needs to be seen is the nature of jurisdiction exercised by the learned Single Judge while deciding an objection case. In order to maintain an ICA in terms of section 3 of the Law Reforms Ordinance, 1972, the A order under challenge subject to the proviso of section 3 must have been passed while exercising "original civil jurisdiction" or constitutional jurisdiction" under Article 199 of the Constitution.
Reference is made to erstwhile Rule 9(ii) of Part A of Chapter I of the Rules and Orders of the Lahore High Court, Lahore Volume V which provided as follows:

"The order of the Deputy Registrar (Judicial) returning the memorandum of any suit, appeal, petition or application may be challenged before the Chief Justice or Judge nominated by the Chief Justice on administrative side whose decision shall be final and shall not be assailed in ay other proceeding before the High Court." (emphasis supplied).

PLD 2014 LAHORE HIGH COURT LAHORE 439 #

P L D 2014 Lahore 439

Before Syed Mansoor Ali Shah, J

Miss Syeda ANAM ILYAS---Petitioner

Versus

Dr. HAROON RASHID, DIRECTOR and others---Respondents

Writ Petition No.28028 of 2011, heard on 23rd January, 2014.

Higher Education Commission Ordinance (LIII of 2002)

----S. 10(1)(n)---Constitution of Pakistan, Art. 199---Constitutional petition---Legal status and authority of the National Testing Service ("NTS")---Scope---Question before High Court was inter alia with regard to the nature of legal status and authority of the National Testing Service in terms of S.10(1)(n) of the Higher Education Commission Ordinance, 2002, and whether Universities could be obligated to conduct tests organized by the NTS and be bound by the results of the same---High Court disposed of the matter, by consensus between the NTS and HEC in the terms to the effect that HEC would not sponsor or extend any patronage to NTS, as NTS was not an officially approved national testing service under the Higher Education Commission Ordinance 2002; that Universities and .other academic institutions recognized by HEC were not under any lawful obligation to conduct tests organized by NTS or be bound by the results of NTS in the matter of admissions or grant of scholarships; that HEC through proper channel, would propose an amendment in the Higher Education Commission Ordinance, 2002 and Rules in order to provide a proper regulatory statutory framework for establishing, monitoring and supervising a "national testing service" and till such time that proper legislation was put in place, HEC would not initiate the process of selecting and appointing a national testing body under the Ordinance; that NTS shall not hold itself out as an HEC approved "national testing service" however, it may continue operating as a private entity under the law, but shall not in any manner be taken to be an HEC approved entity; that HEC will not enter into any fresh contract with NTS or any other entity unless and until NTS or any such entity had been duly approved by HEC under the Ordinance and in the manner described above; that the existing contract/arrangement entered between NTS and the Universities/academic institutions may continue or may be reviewed by the respective Universities/academic institutions, as the case may be, in the light of present order; and that the existing arrangement between HEC and NTS shall only continue till a cut off date and HEC shall not enter into any arrangement/contract with NTS after the said cut off date---Constitutional petition was disposed of, accordingly.

Talaat Farooq Shaikh for the Petitioner.

Anwar Kamal for Respondents Nos.l, 2 and 5.

Sajid Ijaz Hotiana for the Higher Education Commission, Islamabad.

Dr. Osama Siddique, Ms. Misha Rehman and Salman Akram Raja, Amicus Curiae;

Syed Sajjad Hussain Shah Legal Advisor, UET, Lahore.

Muhammad Qamar-uz-Zaman, Legal Advisor, NEST.

Imran Alvi for Preston University.

Ijaz Farrukh, Senior Law Officer, King Edward Medical University.

Riffat Hussain Malik for Shifa Tameer-e-Millat University, Islamabad.

M. Asad Manzoor Butt for Registrar of Lahore Leads University, Lahore.

M. Shafiq-ur-Rehman Dab Legal Advisor, Bahria University, Islamabad.

Barrister Shahzad Shabbir for the Registrar, University of Gujrat.

Rana Muhammad Asif for Kinnaird College for Women, Lahore.

Barrister Ali Parvez Malik for Institute of Management Science.

Zia Ullah Niazi for Minhaj University, Lahore.

Ch. Sultan Mahmood for Iqra University, Peshawar.

Ali Masood Hayat for Lahore College University.

Mian Shahid Nazeer Legal Advisor, University of Sargodha.

Muhammad Hussain, Acting Registrar, Pakistan Institute of Development Economics.

Dr. Shaukat Ali, Director Academics, University of Sargodha.

Professor Dr. Habib-ur-Rehman, Chairman, Department of Physiology, University of Veterinary and Animal Sciences, Lahore.

Dr. Tahira Aziz Mughal, Lahore College for Women University Lahore.

Dr. Haq Nawaz, Director Graduate Studies, University of Agricultural, Faisalabad.

Dr. Asad Zaheer, Acting Registrar, University of Health Sciences, Lahore.

Dr. Hamid Saeed, Registrar, F.C. College, Lahore.

Air Cdre (Ret) Ghulam Mujaddid, Registrar, Air University, Islamabad.

Dr. Tariq Jadooni, LUMS, Lahore.

Muhammad Asif Lateef, Additional Registrar, Government College University, Faisalabad and Govt. College for Women University, Faisalabad.

Rana Hamayun Ihsan, Deputy Registrar, Pakistan Institute of Development Economics, Islamabad.

Syed Hassan Aftab, Additional Director (Academics), International Islamic University, Islamabad.

Tauqir Ahmed, Controller of Exams National Defence University, E-9, Islamabad.

Mohsin Ijaz Malik, Senior Deputy Registrar, Lahore School of Economics.

Saboor Ahmed Khan, Additional Registrar, G.C. University, Lahore.

Muhammad Farhan Sadiq, Assistant Professor, Virtual University of Pakistan, Lahore.

Engr. Nasrullah Khan Babar, Registrar, NFC Institute of Engineering and Technology, Multan.

Zahid Mahmood, Planning Officer, P&D, Department University of Health Sciences, Lahore.

Nadeem Hassan, Registrar NUST.

Muhammad Aslam Malik, Controller of Exams, The University of Lahore.

Ahmed Murad, Deputy Registrar (R), University of Engineering and Technology, Peshawar.

Syed Shujaat Hussain Shah, Registrar, Ahasyn University, Peshawar.

Dr. Ashiq Hussain Doger, Controller of Examinations, University of Education, Lahore.

Syed Mabood Kakakhail, Institute of Management Science Peshawar.

Muhammad Zabih Ullah Khan, Director, Admission, National Textile University, Faisalabad.

Syed Iftikhar Hussain, Manager Karahoran Institute University of Islamabad.

Shakeel Ahmad, Academic Coordinator, Mohi-ud-Din Islamic University Nerian Sharif, AJ&K.

M. Awais Yaqoob, Mgr. Academics, Piphah International University, Islamabad.

Iqbal Muhammad, Registrar, Qarshi University.

Fayyaz Hussain, Additional Registrar, COMSATS Institute of Information Technology, Islamabad.

Professor Dr. Shaukat Ali, University of Sargodha.

Dr. Abdullah, Registrar, Kohat University.

Ch. Bashir Ahmad, Registrar, University of Central Punjab, Lahore.

Ahmed Jawed Turk, Controller of Examinations on behalf of Vice Chancellor University of Gujrat.

Prof. Dr. M. Ibrahim Khalid. Dean, Ali Institute of Engineering, Lahore.

Eng. Imran Rahman, Vice Chancellor, Institute of Space Technology, Islamabad.

Waqar Sami Khan, Secretary, NTS.

Col. Maqsood Ali Khan for NTS.

Fahad Ahmed Ali, Regional Marketing Officer, NTS. Awais Ahmed, Director General, Nazeer Hussain, RD, HEC, Date of hearing: 23rd January, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 451 #

P L D 2014 Lahore 451

Before Umar Ata Bandial, C J

Dr. SALMAN KAZMI---Petitioner

Versus

SECRETARY CABINET DIVISION and others---Respondents

Writ Petitions Nos.3685 of 2012, 7441 and 17121 of 2013, heard on 7th October, 2013.

(a) Constitution of Pakistan---

-- Arts.25 & 199---Government of Pakistan Resolution dated 29-5-1986 (published in Gazette of Pakistan extraordinary, dated 29-5-1986), pp.7, 12(3) & 13---Constitutional petition---Educational institution---Annual fee structure and admission fee in Sheikh Zayed Medical College ("College "), enhancement in---Legality---During the financial years 2009-2010, 2010-2011 and 2011-2012 the College charged tuition fee from students at the rate of Rs.4, 00, 000/- per annum apart from Rs. 75,000/- collected initially as admission fee and other charges---Petitioners challenged the enhanced fees for the said financial years with the contentions that the College could at most charge fees authorized by the Federal Government according to the financial feasibility of the College prepared in the year 2001-2002; that said feasibility projected an annual tuition fee of Rs. 2, 00, 000/- per student plus Rs.10, 000/- as annual admission fee; and that the College, being a public sector entity, should develop its fee structure at a par rate with other public sector medical and dental colleges in the province---Validity---College was a component of the Shaikh Zayed Postgraduate Medical Institute ("Institute")---Institute and its components were not owned by the Federal Government---College as a self-finance institution met its financial commitments and obligations from its own revenue generation primarily through collection of tuition fee and other charges---Self-finance status and financial autonomy of the College was a condition of its establishment, therefore, without government funding, the College could not be equated with public sector medical colleges---Petitioners' plea for equal fee structure with public medical colleges therefore lacked force---Board of Governors of the College ("Board") in its 33rd meeting held on 16-5-2009 approved a revised figures of Rs. 3,50,000/- as annual tuition fee for the first two years of medical education and Rs. 4, 00, 000/- per annum for the remaining three years, and Rs.15, 000/- as admission fee and other charges--- Said figures were calculated on the basis that Federal Government would provide financial support of Rs.300 million to the College---Federal Government refused to provide said financial support---Subsequently Academic Council of the College held a meeting on 5-9-2009 and approved an enhanced fee structure of Rs. 4, 00, 000/- as annual tuition fee and Rs.75, 000/- as annual admission fee per student---Academic Council did not possess any legal authority to determine tuition and other fees to be .charged and collected by the College from its students---Increase in admission fee beyond the amount of Rs.15, 000/-approved by the Board lacked sanction of the competent authority--Institute was devolved from the Federal Government to the Provincial Government pursuant to the Constitution (Eighteenth Amendment) Act, 2010 which came into effect on 24-4-2010---Since then the affairs of the Institute remained in flux until notification dated 14-2-2012 by the Federal Government transferring the Institute, its component entities, their assets, liabilities and staff, from the superintendence of the Federal Government to that by the Provincial Government---Board enhanced the tuition fee in its 33rd meeting dated 16-5-2009 to the amount of Rs.3, 50, 000/- per annum for the first two years of medical education and Rs.4, 00, 000/- per annum for the remaining three years---Admission fee was visualized by the Board at Rs.15, 000/- per student rather than Rs. 75,000/- collected by the College---Consequently, for lack of a concrete Board decision which specifically approved the higher rate of fee charged by the College for the 1st and 2nd year of medical education and the additional amount of Rs.60, 000/- charged as admission fee by the College, there was a void in the authority sanctioning such charges---Since there was no allegation nor any evidence of wrongdoing, non-transparency or abuse of authority, the deficiency in the requisite consent and approval from the Board and the competent government might be cured by the College by way of ratification from its Board after its re-constitution and endorsement by the Provincial Government---High Court directed that Provincial Government had three months' time to re-constitute a Board of Governors of the Institute and thereafter to cause the matter of impugned fee structure at the College to be considered for ratification by the same; that until the lapse of three months from the date of receipt of a certified copy of present judgment, the College need not adjust any amounts to students that had been paid in excess of the amount of tuition fee and admission fee duly authorized by Board; that unless the excess amounts charged by College were ratified by Board of the Institute, such amounts shall be adjusted to the respective students after the lapse of the said period of three months; that presently the Institute was empowered to charge tuition fee and admission fee from its students in accordance with the rates sanctioned by Board in its 33rd meeting held on 16-5-2009 and approved by the Federal Government---Constitutional petition wad disposed of accordingly.

(b) Constitution of Pakistan---

----Fourth Schett. Item No.38---Constitution (Eighteenth Amendment) Act (X of 2010), S.101(1)(iii)---Government of Pakistan Resolution dated 29-5-1986 (published in Gazette of Pakistan extraordinary, dated 29-5-1986)---Educational institution---Shaikh Zayed Postgraduate Medical Institute ("Institute")---Provincial Government, role of---Scope---Institute devolved from the Federal Government to the Provincial Government pursuant to the Constitution (Eighteenth Amendment) Act, 2010---As the consequence of the said constitutional amendment, the role of the Federal Government had been substituted by the Provincial Government---Such substitution could not alter the trust character of the Institute or its assets nor diminish the trustee obligation imposed on the executive government that discharged functions in relation to the Institute in terms of the "Resolution "[Government of Pakistan Resolution dated 29-5-1986 (published in Gazette of Pakistan extraordinary, dated 29-5-1986)]---Federal Government stood substituted by the Provincial Government in the provisions of the "Resolution" dated 29-5-1986 and in the performance of all functions, obligations and duties previously discharged by Federal Government in relation to the Institute and its components.

----Art. 199--- Constitutional petition---Locus standi to file---Scope---Educational institution---Enhancement of fees by medical college---Locus standi of Pakistan Medical Association to file a constitutional petition against such enhancement---Scope---Sheikh Zayed Medical College ("College") enhanced its annual fee and admission fee--Pakistan Medical Association/petitioner challenged such enhancement by way of present constitutional petition---Petitioner association was a registered body which represented interests of the medical community and the public and was devoted to the promotion of medical education---Constitutional petition that questioned the transparency, fairness and probity in the conduct of affairs of the Shaikh Zayed Postgraduate Medical Institute, of which the College was a component, should be entertained provided the challenge was based on authentic material and was advanced by a serious party---Petitioner association relied on materials including the Federal Government's. decision about the approved fee structure at the College and its trust character--- Such pleas were substantiated and met the standard of relevance and seriousness of a petition filed in public interest---Petitioner association did have a locus standi to file present constitutional petition.

(d) Constitution of Pakistan---

----Arts. 199---Constitutional petition---Laches---Delay in seeking relief---Acquiescence---Educational institution---Enhancement of fees by medical college---Locus standi of a student of the college to file a constitutional petition against such enhancement---Student challenging fee structure after a lapse of more than two years of commencing education on the college--- Effect--- Such student would have no locus standi to file a constitutional petition challenging the fee structure due to his acquiescence and also due to laches.

Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687 rel.

(e) Constitution of Pakistan---

----Art. 25---Educational institution---Medical Colleges--- "Open-merit" and "self-finance students "---Different fee structures for different categories of students---Legality---College authorities had the power to classify students differently according to the level of their accomplishment---Students who secured admission in the medical colleges on open merit had a justifiable claim to a charge of standard fee applied by public sector medical colleges---For candidates obtaining lesser marks, medical education need not be subsidized in the same way as was done for open merit students.

Noshab A. Khan for Petitioner.

Shahid Mubeen, Addl.A.G., Imran Aziz Khan along with Prof., Zafar Iqbal, Chairman/Dean and Dr. Mustafa Raza Kazmi, Registrar, Medical College, SZMC. Sarfraz Ahmad Khatana and Ijaz Farrukh, Senior Law Officers, Health Department, Govt. of Punjab for Respondnets.

Date of hearing: 7th October, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 482 #

P L D 2014 Lahore 482

Before Mrs. Ayesha A. Malik, J

TANVEER SHAKOOR---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary and another---Respondents

Writ Petitions Nos.22349 and 22356 of 2013, heard on 6th March, 2014.

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

----Ss. 2 & 3(2)---Exit From Pakistan (Control) Rules, 2010--. Constitution of Pakistan, Arts 10A & 199 --- Constitutional petition---Placement of name on Exit Control List on request by Financial Institution---"Default"---Scope---Petitioners impugned placement of their names on Exit Control List on account of outstanding liability to pay amounts to a Financial Institution (Bank)---Contention of the petitioners was that placement of their names on the Exit Control List on request of the Financial Institution and the State Bank of Pakistan was illegal---Held, that where a Financial Institution was seeking to recover amounts due from a customer, the Banking Court, after due process of law, adjudicates upon the matter and decides the question of default and without clear determination from a court of competent jurisdiction on the question of default, the State Bank could not use State machinery for recovery purposes---Key word used in Rule 2(e) of the Exit From Pakistan (Control) Rules, 2010 was "default" of loans or liabilities, and admittedly, there was no decree against the petitioners with respect to amounts stated to be due to the Financial Institution---State machinery could not be used for purposes of exerting pressure or in a private dispute unless government interest was at stake, and the same was clearly provided in R.2(2)(a) of the Exit From Pakistan (Control) Rules, 2010---Petitioners' names therefore had been placed on ECL without application of mind, in a mechanical manner and without considering the element of public interest by the respondents; and they had been denied their fundamental rights without due process of law---High Court directed that the names of the petitioners be removed from ECL---Constitutional petition was allowed, accordingly.

Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230 and Dossani Travels Pvt. Ltd. and 4 others v. Messrs Travels Shop (Pvt) Ltd. and others 2013 SCMR 1749 ref.

Miss Naheed Khan v. Government of Pakistan and others PLD 1997 Kai. 513 and Munir Ahmad Bhatti v. Govrnment of Pakistan Ministry of Interior through Secretary and others PLD 2010 Lah. 697 rel.

Muhammad Shoaib Rashid for Petitioners.

Muhammad Zikria Sheikh, D.A.G. along with Mubashir Ahmad Tirmazi, AD/FIA for Respondents.

Date of hearing: 6th March, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 486 #

P L D 2014 Lahore 486

Before Mrs. Ayesha A. Malik, J

TIPU SALMAN MAKHDOOM---Petitioner

Versus

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

Writ Petition No.83 of 2014, decided on 14th March, 2014.

Public Procurement Rules, 2004---

----Rr. 5 & 3---Constitution of Pakistan Art. 199---Constitutional petition---Public procurement---International and inter-governmental commitments of the Federal Government---Scope---Procurement of vaccines---Contention of the petitioner was that respondent Ministry of Health had in the past procured vaccine through open tenders, however, in the present financial year, no bids were advertised, and contract for procurement was awarded to UNICEF, contrary to Public Procurement Rules, 2004---Contention of the respondent Ministry of Health was inter alia, that Pakistan was working with GAVI Alliance, and upon default of its co ;financing obligations to GAVI Alliance, Government of Pakistan was compelled to procure vaccine from UNICEF-Held, that no justification for not following Public Procurement Rules, 2004 was available to the department and R. 5 of the Public Procurement Rules, 2004 was not applicable for the purposes of co financing obligation with GAVI Alliance---Commitment with GAVI Alliance was not an international treaty nor was an agreement with the State or an agreement with an international financial institution, therefore it could not prevail over the Public Procurement Rules, 2004---Government could not bypass the procurement process as provided under the PPRA Rules and any commitment with GAVI Alliance fell outside the scope of R. 5 of the Public Procurement Rules, 2004-High Court directed that procurement of vaccines be carried out through open tenders in accordance with Public Procurement Rules, 2004 and observed that the commitment of Government with UNICEF for procurement of vaccine was illegal being contrary to Public Procurement Rules, 2004--Constitutional petition was allowed, in circumstances.

Human Rights Cases Nos. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759 and Atta Ullali Khan Malik v. Federation of Government of Pakistan through President of Pakistan and 3 others PLD 2010 Lah. 605 ref.

Ahmad Awais and Muhammad Hammad Munir for Petitioner.

Mian Tariq Ahmad, Dy. Attorney-General along with Dr. Ejaz Ahmad Khan NPM EPI, Umar Hayat, Project Officer EPI, Munawar DID EPI and Rana Muhammad Safdar, National Programme Manager, EPI for Respondents.

Date of hearing: 20th February, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 494 #

P L D 2014 Lahore 494

Before Atir Mahmood, J

ALMAS MUBASHAR---Petitioner

Versus

MUBASHAR HANIF---Respondent

Writ Petition No.15303 of 2010, heard on 16th April, 2013.

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

----Ss. 3(1) & 7---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Constitution of Pakistan. Art.199---Constitutional petition---Notice of divorce---Issuance of certificate of effectiveness of divorce---Contention of petitioner-wife was that she contracted marriage with the respondent-husband, however, rukhsati did not take place and notice of divorce issued by the respondent-husband from abroad was not as per law and thereafter, arbitration proceedings were not conducted properly by the Administrator Union Council as neither the respondent-husband himself appeared nor any arbitrator appeared on his behalf for reconciliation proceedings---Validity---Respondent-husband had not denied the execution of the divorce deed/notice of talaq, therefore, the provisions of Art.79 of the Qanun-e-Shahadat, 1984 were not attracted, particularly when the petitioner-wife herself admitted the receipt of divorce deed---Issuance of certificate of talaq was a technicality which did not find mention in the provisions of Muslim Family Laws Ordinance, 1961 and talaq became effective automatically after 90 days from receipt of notice of talaq by the Nazim/Administrator of the Union Council---As per Injunctions of Islam, the right of divorce had been conferred upon man who could give divorce to his wife at any time and no encumbrance was put upon the man to give divorce to his wife though the same was one of the things most disliked by God---Constitutional petition was dismissed.

Romana Zahid v. Chairman Arbitration Council/Nazim Union Council and another PLD 2010 Lah. 681 and Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901 ref.

Ch. Muhammad Arshad Bajwa for Petitioner.

Muhammad Muzaffar Samore for Respondent No.1.

Date of hearing: 16th April, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 498 #

P L D 2014 Lahore 498

Before Shezada Mazhar, J

AYESHA BIBI---Petitioiner

Versus

MUHAMMAD FAISAL and 2 others---Respondents

Writ Petition No.3173 of 2011, decided on 19th November, 2013.

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

----Ss. 2(1)(d) & 5, Sched---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for dissolution of marriage, recovery of maintenance allowance, dowry articles and personal belongings---Impleadment of father of husband as party by wife---Scope---Plaintiff-wife filed suit against her husband and his father wherein father of husband moved an application for deletion of his name on the ground that no relief had been sought against him---Application for deletion of name of father of husband was accepted by the Family Court---Validity---Plaintiff-wife had specifically alleged that dowry articles and personal belongings were in the custody of husband and his father---Prayer of plaint was with regard to both the defendants---Case made out by the wife in her plaint required evidence to determine whether father of her husband was necessary party or not---Section 2(1)(d) of West Pakistan Family Courts Act, 1964 did not limit a family suit only between the spouses---Any third party whose presence was necessary for adjudication of the matter was also included in the said section---Family Court could not pass order of deletion without recording of evidence---Persons jointly entitled or liable must be made parties to the suit otherwise same might not result into an effective, enforceable or binding decree---Father of defendant-husband was necessary and proper party for adjudication of the matter---Impugned order passed by the Family Court was set aside---Constitutional petition was accepted in circumstances.

Muhammad Arif and others v. District and Sessions Judge, Sialkot and others 2011 SCMR 1591 rel.

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

----S. 2(1)(d)---"Party"---Definition---Scope---Word "party" would include any person whose presence was necessary for proper decision of dispute.

Sh. Azfar Amin for Petitioner.

Aamir Shehzad Raja and Osama Mehboob for Respondents.

PLD 2014 LAHORE HIGH COURT LAHORE 503 #

P L D 2014 Lahore 503

Before Mazhar Iqbal Sidhu, J

MUHAMMAD BASHIR---Petitioner

Versus

GHULAM MURTAZA and another---Respondents

Criminal Miscellaneous No.11009-BC of 2012, decided on 17th May, 2013.

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

----S. 497(5)---Penal Code (XLV of 1860), S.302---Juvenile Justice System Ordinance (XXII of 2000), S. 10, last proviso---Qatl-e-amd---Bail, cancellation of---Juvenile accused---Misuse of concession of bail---Juvenile accused offending again after getting bail---Effect---Accused, who was purportedly a juvenile, committed carnal intercourse with the victim---Before accused could be arrested for the said offence he committed murder of the victim---Trial Court granted bail to accused on the grounds that he was a juvenile and that there was a delay in conclusion of his trial---Validity---Accused was wanted by the police for allegedly committing carnal intercourse with the victim, and instead of surrendering he allegedly opted to murder the deceased---After getting bail from Trial Court, accused was found involved in two other cases---Accused had not only misused concession of bail but even otherwise, he was not entitled for grant of bail on the ground of delay in final disposal of case---Bail granted to accused was cancelled in circumstances.

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

----S. 497---Juvenile Justice System Ordinance (XXII of 2000), S.10, last proviso---Bail---Matters to be considered by court---Juvenile accused---In present times a male/female child gained sense of understanding things early and speedily as compared to older times on account of modernization in devices and technologies in all walks of life.

Tauseef alias Captain v. The State and another 2009 PCr.LJ 978 ref.

M. Irshad Chaudhry for Petitioner.

Muhammad Akhlaq, D.P.G. with Ali Ahmad S.I.

Mian Ahmad Mehmood for Respondent No.1.

PLD 2014 LAHORE HIGH COURT LAHORE 506 #

P L D 2014 Lahore 506

Before Umar Ata Bandial, C J

Justice (R) KARAMAT NAZIR BHANDARI---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.13537 of 2013, heard on 25th March, 2014.

(a) Constitution of Pakistan---

----Art.182---Ad hoc judge of Supreme Court---Powers---With respect to performance of functions and exercise of authority, no distinction can be drawn between an ad hoc judge and a permanent judge of the Supreme Court.

Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others PLD 2013 SC 1 rel.

(b) High Court Judges (Leave, Pension and Privileges) Order (III of 1997)---

----Para. 15---Constitution of Pakistan, Arts.182 & 199---Constitutional petition---Pension benefits---Petitioner claimed that his service as ad hoc judge of Supreme Court was not included in total service for computing his pensionary benefits---Validity---Petitioner who rendered service as ad hoc judge of Supreme Court had been discharging functions and duties in service of Pakistan---Such service qualified under the terms of paragraph 15 of High Court Judges (Leave, Pension and Privileges) Order, 1997, for accretion of petitioner's pensionary benefits---One year's service, under paragraph 15 of High Court Judges (Leave, Pension and Privileges) Order, 1997, could be translated to an accretion in pension of petitioner to the extent of 2% of his salary as determined by the President---Eligibility to claim accretion occurred upon completion of such period of service in Pakistan by petitioner on the date till when he served as ad hoc judge of Supreme Court and pension amount payable to petitioner must have included such accretion---High Court declared order passed by authorities, refusing to include period of service in Supreme Court, as illegal---High Court directed Federal Government to pay petitioner pension including therein accretion of 2% of his determined salary---Petition was allowed in circumstances.

Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff and others PLD 2013 SC 1 and Syeda Abida Hussain v. Tribunal for N.A.69, Jhang-IV and 2 others PLD 1994 SC 60 ref.

Syed Feisal Hussain Naqvi for Petitioner.

Khawar Farooq, D.A.G. for Respondents.

Date of hearing: 25th March, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 516 #

P L D 2014 Lahore 516

Before Kh. Imtiaz Ahmad, J

Dr. NIAZ AHMAD---Petitioner

Versus

D.C.O. and others---Respondents

Writ Petition No.1846 of 2010, decided on 27th May, 2010.

(a) Constitution of Pakistan--

----Art.199---Constitutional petition---Amended petition, non-filing of---Effect---When authorities were aware of the fact that they had been made party in petition, order was placed on record and comments had been summoned, then merely on technical ground that amended petition was not filed, petitioners could not be deprived of their legal rights.

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

----Ss. 11-EE & 11-EEE---Constitution of Pakistan, Arts. 10(5) & 199---Constitutional petition---Preventive detention---Pre-conditions---Non-filing of representation---After the petitioners were acquitted of the charge against which they had been in custody for the last more than two years, authorities issued detention orders and their release was denied---Validity---No evidence was available that names of petitioners were ever notified in the list entered in the Fourth Schedule to Anti-Terrorism Act, 1997---Neither such fact was mentioned in preventive detention order nor even in the comments filed by authorities nor such list had been produced before High Court---Names of petitioners should be mentioned in the list but S.11-EE of Anti-Terrorism Act, 1997, further provided that person whose name was notified would be required to execute a bond but there was no proof that petitioners were ever required to do so---Preventive detention order passed under S.11-EEE of Anti-Terrorism Act, 1997, was without jurisdiction and without complying with mandatory provisions of law---High Court did not find it necessary to again ask the petitioners to file representation as provided in Art.10(5) of the Constitution---High Court directed the authorities to release petitioners forthwith from jail and set aside detention orders passed by authorities against petitioners---Petition was allowed accordingly.

PLD 1967 SC 373; PLD 1968 SC 313; PLD 1972 SC 210; PLD 2003 SC 422, 1994 PCr.LJ 2173, 1990 PCr.LJ 1534; PLD 2004 Lah. 1221; 2010 SCMR 676; PLD 2006 Lah. 272; PLD 1992 Lah. 140; PLD 1973 Kar. 344; 2001 PCr.LJ 1727; PLD 1965 Lah. 135; 1983 SCMR 1810; 1980 SCMR 280 and Federation of Pakistan through Secretary Ministry of Interior, Islamabad v. Umat-ul-Jalil Khawaja and others PLD 2003 SC 442 ref.

Muhammad Ilyas Siddiqui for Petitioner.

Razzaq A. Mirza, Addl. Advocate-General, Punjab for Respondents.

Date of hearing: 26th May, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 531 #

P L D 2014 Lahore 531

Before Umar Ata Bandial, C J

Sardar AYAZ SADIQ---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Writ Petition No.20918 of 2013, heard on 12th May, 2014.

(a) Constitution of Pakistan---

----Art. 218(3)---Election Commission---Election process---Credibility---For the discharge of its duties, the Election Commission must possess autonomy, authority, independence and sanctity to ensure that the election process conducted by the Election Commission enjoyed respect and credibility.

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

----Ss. 7, 44 & 45---National Judicial Policy, 2009, Cl. A-7---Constitution of Pakistan, Arts. 218(3) & 199---Constitutional petition---Judiciary---Involvement in conduct of elections--- Not contemplated in the Constitution or the law---Returning officer, mandate of-Public inspection of election record---Election Commission vide impugned order allowed runner up for a National Assembly seat to apply to the Returning Officer of the constituency to seek public inspection of the election record under S.44 of the Representation of the People Act, 1976---Legality---Returning Officer in question who conducted the election was the Presiding Officer in the court of Additional Sessions Judge---Participation of district judiciary in the conduct of the General Election, 2013 in the province was an exceptional step taken in the public interest on the request of the Chief Election Commissioner---Such participation was not contemplated in the Constitution and the law; it was rendered in pursuance of a one-time relaxation of the National Judicial Policy, 2009---Notification by the Election Commission dated 26-12-2013 under S.7 of Representation of the People Act, 1976 directed successors-in-office of the Returning Officers to perform all post-election activities under the law---High Court observed that whether the Election Commission considered that a judicial officer should perform the duty of conducting public inspection of election record under S. 44 of Representation of the People Act, 1976, as was the meaning attributed by the runner up candidate to the impugned order, such view should, consistently with Election Commission's stand taken before the court, first be shared with the Court for comment and, if so, acceptance; that on the other hand, if the Election Commission was inclined in terms of S.7(1) of Representation of the People Act, 1976 to designate, inter alia, an officer of the Federal Government or Provincial Government for conducting the inspection under S.44 of Representation of the People Act, 1976, then, the prayer by runner up candidate for inspection of election record, may be implemented by such designated authority; that runner up candidate also had a lawful and express remedy under S.45 of Representation of the People Act, 1976, which empowered an Election Tribunal to direct inspection of the election record---High court returned the impugned order to the Election Commission for elaboration as to its meaning and effect in light of the applicable law---Constitutional petition was disposed of accordingly.

----Art. 218---Election Commission---Autonomy in decision making---In exercise of its powers and authority, the Election Commission possessed autonomy in decision making and independence in the formation of its judgment about suitable redress, solutions and remedies.

(d) Constitution of Pakistan---

----Arts. 218, 199 & 184(3)---Election Commission---Courts, duty of---Courts were there to enforce the constitutional safeguards and preserve and protect the institutional imperatives of the Election Commission unless there was a case involving illegality or injury to public interest.

Sayeda Maqsooma Zahra Bokhari assisted by Ghulam Subhani and Rubeel Raza Bhatti for Petitioner.

Ahmad Awais, Anees Ali Hashmi assisted by Tipu Salman Makhdoom and Saeed Ahmad Cheema for contesting Respondent No.3.

Ch. Naseer Ahmad Bhutta, Additional Attorney General for Pakistan.

Ch. Aamir Rehman and M. Javaid Kasuri, DAGs.

Ms. Shaista Qaiser, Standing Counsel for Pakistan.

Ali Akhtar, Law Officer, ECP, Lahore.

Date of hearing: 12th May, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 541 #

P L D 2014 Lahore 541

Before Muhammad Anwaarul Haq, J

ALI IMRAN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.7014-B of 2014, decided on 12th June, 2014.

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

----Ss. 345(2A) & 497---Penal Code (XLV of 1860), Ss.302, 338-E(2), Second Proviso, 148 & 149---Qatl-e-amd, roting armed with deadly weapons, unlawful assembly---Bail, refusal of---Murder committed in the name of honour---Compounding of offence---Scope---Consent of legal heirs not sufficient---Compounding of offence only with permission of Trial Court---Sister of accused ran away and contracted marriage---Accused along with his co-accused allegedly killed his sister, brother-in-law and other family members---Plea of accused that injury attributed to him was on the person of his sister, and her legal heirs i.e. their father and mother had pardoned him; that in such circumstances he should be released on bail---Validity---Present case was a triple murder case, with a strong motive---Mere consent of legal heirs of deceased was not sufficient by itself for compromise in cases of honour crimes and compounding of such an offence could take place only with the permission of Trial Court---Even otherwise F.I.R. was promptly lodged and accused was assigned a specific role of causing firearm injury on the head of his sister---Prima facie, accused was vicariously liable for the acts of his co-accused, who had allegedly killed two people---Legal heirs of both said deceased were contesting the present case---Evidence of prosecution witnesses had already been recorded and trial of accused was at the verge of his conclusion---Accused was denied bail in circumstances.

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

----Ss. 345(2A) & 497---Penal Code (XLV of 1860), Ss.302 & 338-E(2), Second Proviso---Murder committed in the name of honour---Compounding of offence---Requirement---Mere consent of legal heirs not sufficient---Compounding of such offence could take place only with permission of Trial Court.

Muhammad Arshad Bhatti for Petitioner.

Mirza Abid Majeed, Dy. Prosecutor-General for the State with Muhammad Saleem A.S.I. with record.

Iftikhar Ahmad Ranjha for the Complainant.

PLD 2014 LAHORE HIGH COURT LAHORE 543 #

P L D 2014 Lahore 543

Before Umar Ata Bandial, C J

MUHAMMAD ASIF---Applicant

Versus

The STATE and others---Respondents

T.A. No.140-T of 2013, decided on 3rd November, 2013.

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

----Ss. 526 & 497---Anti-Terrorism Act (XXVII of 1997), S.21-J---Penal Code (XLV of 1860), S.201---Transfer of case---Grounds---Bias in a Judge---Opinion/observation expressed by Trial Judge at bail stage with respect to police case in interim challan---Whether reflecting partiality/bias of the Trial Judge---Accused police official was arrested for suppressing evidence against a suspect---Interim challan was submitted against accused before the Judge, Anti-Terrorism Court, mentioning commission of offence under S.201, P.P.C.---Judge, Anti-Terrorism Court while deciding bail application filed by accused observed that material on record actually disclosed an offence of harbouring the suspect under S.21-J of the Anti-Terrorism Act, 1997, and interim challan was accordingly amended---Plea of accused that case should be transferred to some other judge, as the present Judge had a bias against him because of the opinion expressed by him at bail stage with regard to interim challan; that because accused had in the past (some 13 years ago) allegedly escaped from the court of the Judge in question, and that because a co-accused in the present case was granted bail by the Judge by observing that co-accused was entitled to bail as accused, who had a more serious role under S.21-J of Anti-Terrorism Act, 1997 was already granted bail---Validity---Judicial observations made by a Judge at bail stage with respect to commission of alleged offence in interim challan were a lawful act, not suffering from any illegality or excess of jurisdiction---Allegations of bias made by accused in the present case thus had no nexus with bias---Alertness demonstrated by the Judge in the present case at pre-trial stage in order to focus the controversy on the relevant facts and allegation was not an indication of pre-disposition or bias---Nothing on record suggested that incident of accused's escape from court some 13 years ago played any role in the bail order---Reference made by Judge to role of accused while granting bail to co-accused was meant for comparative purposes to grant bail and not a reflection of any pre-disposition towards the accused---Application for transfer of case to another court was dismissed in circumstances.

Amir Altas Khan and another v. The State and 2 others 2002 SCMR 709 and Alam Khan and 4 others v. The State 2005 YLR 1848 distinguished.

Muhammad Waqas v. The State 2002 SCMR 1370 and Gen. (R) Pervez Musharraf v. The State and another PLD 2013 Isl. 66 ref.

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

----Ss. 487 & 173---Bail---Bias in a judge---Scope---Judicial observations made by judge at bail stage with respect to commission of alleged offence in interim challan---Such observations were a lawful act, not suffering from any illegality or excess of jurisdiction.

Muhammad Waqas v. The State 2002 SCMR 1370 and Gen. (R) Pervez Musharraf v. The State and another PLD 2013 Isl. 66 rel.

M. Baleegh-uz-Zaman Ch. for Applicant.

Abdus Samad, A.P.G.

PLD 2014 LAHORE HIGH COURT LAHORE 548 #

P L D 2014 Lahore 548

Before Shams Mehmood Mirza, J

MASUD PERVAIZ BUTT and another---Petitioners

Versus

SUB-REGISTRAR, GULBERG TOWN and another---Respondents

Writ Petition No.6859 of 2014, decided on 3rd June, 2014.

Stamp Act (II of 1899)---

----Art. 35(b) & (c) (First Sched.)---Transfer of Property Act (IV of 1882), S.105---Constitution of Pakistan, Art.199---Constitutional petition---Landlord and tenant---"Rent" and "premium"---Distinction--Refundable security deposit---Expression "for money advanced"---Dispute, in the present case, awas with regard to imposing of stamp duty on refundable security deposit paid by tenant to landlord---Validity---Rent was a liability payable in future, periodically or on occasions specified in the instrument executed between parties---When "rent" was determined in lease instrument together with a covenant to pay the same at a specified time and if such liability was met by making advance payment of entire rent, such payment of rent would be treated as rent and not otherwise for the reason that legal character of such payment was rent and simply because it had been paid in advance would not change its character---"Premium", on the other hand was a price which might be paid prior to lease or it could be price paid after the lease in consideration for grant of lease but its promise had to be made prior to lease---Expression "for money advanced" as used in Art.35(b) and (c) of First Schedule to Stamp Act, 1899, also meant onetime payment from lessee to landlord for grant of benefit of lease, which money was not to revert back to the lessee---Rent deed executed between landlord and tenant and amount of security deposit mentioned therein did not come within the mischief of Art.35(c)(i) of First Sched. to Stamp Act, 1899---High Court set aside the order passed by authorities as the same were without lawful authority and of no legal effect---Petition was allowed in circumstances.

Chief Controlling Revenue Authority v. Marshall Produce Brokers Co. Pvt. Limited AIR 1980 Delhi 249; Commissioner of Income Tax v. The Panbari Tea Co. Limited AIR 1965 SC 1871; In re Chief Controlling Revenue Authority AIR 1952 Bom. 285; Board of Revenue, Madras, Referring Authority v. M/s. Simpson and Mc Conechy Limited, Madras AIR 1961 Mad. 210; Citibank v District Registrar/District Collector/Deputy Commissioner, Lahore and another 1999 MLD 1101; Union of India through Chief Controlling Revenue Authority, Delhi and others v. M/s. Caltex (India) Limited New Delhi AIR 1966 Pun. 488 and Attock Cement Pakistan Limited v. Collector of Customs, Collectorate of Customs and Central Excise, Quetta and others 1999 PTD 1892 ref.

Ammin ur Rehman Khan for Petitioners.

Iftikhar Ahmad, Asstt. A.-G. for Respondents.

Date of hearing: 9th May, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 555 #

P L D 2014 Lahore 555

Before Muhammad Anwaarul Haq, J

MUHAMMAD QASIM and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.7107-B of 2014, decided on 16th June, 2014.

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

----Ss. 337-A(i) & 337-A(ii)---"Shajjah-i-Khafifah"---"Shajjah-i-mudihah"---Distinction---"Shajjah-i-Khafifah" was an injury caused to the victim without exposing his bone whereas "Shajjah-i-Mudihah" was an injury where bone of victim was exposed without causing fracture---Injuries not resulting into exposure of bone, could not be considered "shajjah-i-mudihah" falling under S.337-A(ii), P.P.C.---All injuries described as bone deep, prima facie, fell within the purview of "shajjah-i-khafifah" under S.337-A(i), P.P.C.

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

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i), 337-A(ii), 337-F(i), 148, 149 & 354---Shajjah-i-Khafifah, shajjah-i-mudihah ghayr-jaifah (damiyah), rioting armed with deadly weapons, unlawful assembly, assault or criminal force to woman with intent to outrage her modesty---Ad interim pre-arrest bail, confirmation of---"Bone deep injury", fell within purview of S.337-A(i)---Accused persons allegedly hit the complainant causing her a bone deep lacerated wound at the back of her head---Such bone deep injury could not be said to fall under S.337-A(ii), P.P.C. and clearly fell within the purview of S.337-A(i), P.P.C. which was a bailable and non-cogniszable offence---Ad interm pre arrest bail already granted to accused persons was confirmed in circumstances.

Malik Azhar Abbas Waseer along with Petitioners.

Mirza Abid Majeed, Dy. Prosecutor-General for the State with Muhammad Nawaz A.S.I. with record.

Malik Khalid Akmal for the Complainant.

PLD 2014 LAHORE HIGH COURT LAHORE 561 #

P L D 2014 Lahore 561

Before Shujaat Ali Khan, J

SHIFA COLLEGE OF MEDICINE---Appellant

Versus

Malik TAHIR MAHMOOD---Respondent

First Appeal Against Order No.32 of 2011/BWP, decided on 29th November, 2013.

(a) Punjab Consumer Protection Act (II of 2005)---

----Ss. 1, 2(c), 25, 27, 28(4) & 33---Islamabad Consumer Protection Act (III of 1995), S.1---Claim against medical college---Jurisdiction of consumer court---Medical college situated in Islamabad refused to refund the portion of admission fee deposited by student who got admission to another university---District Consumer Court Bahawalpur held that the student/complainant was entitled to refund of fee---Validity---Territorial limits of the Punjab Consumer Protection Act, 2005 were confined to the province of Punjab---While enacting law, legislature was presumed to be well aware of the existing enactments on the subject at relevant time---Islamabad Consumer Protection Act, 1995 was applicable to matters where cause of action had arisen within territorial limits of Islamabad Capital Territory---Scope of a statute could not be stretched to areas falling within the domain of other enactments as such exercise would amount overlapping of territorial limits---Respondent medical college only office and complex were situated in Islamabad---Dues were also deposited in college's bank account in Islamabad---Under S.27 of the Punjab Consumer Protection Act, 2005, complaint could be filed in the consumer court in whose jurisdiction the defendant or any of them voluntarily resided or carried on business or personally worked for gain or where the cause of action wholly or in part arose---Place of business of defendant was in Islamabad so District Consumer Court, Bahawalpur had no jurisdiction---Under S.26(1) of the Punjab Consumer Protection Act, 2005 government was empowered to establish one or more consumer courts and determine areas of jurisdiction of such courts---District Consumer Court Bahawalpur had jurisdiction on matters arising within territorial limits of Bahawalpur, Bahawalnagar and Rahim Yar Khan districts---District Consumer Court, Bahawalpur had no jurisdiction to entertain the present complaint---Complaint was filed by the person who was not aggrieved by any act of respondent college---Appeal was accepted in circumstances.

Hammad Arshad v. NFD Institute of Engineering and Technological Training Khanewal Road, Multan 2006 MLD 967 ref.

Sabz Ali Khan v. Bismillah Khan and another 1997 SCMR 1781; The Murree Brewery Co. Ltd. v. PAKISTAN through the Secretary to Government of Pakistan Works Division and 2 others PLD 1972 SC 279 and Hashim Ali v. The State PLD 1963 (W.P.) Lah. 82 rel.

Muhammad Usman Syed v. COMSATS Institute of Information Technology and others Writ Petition No.415 of 2011 distinguished.

(b) Islamabad Consumer Protection Act (III of 1995)---

----Preamble---Islamabad Consumer Protection Act, 1995 was applicable to matters where cause of action had arisen within territorial limits of Islamabad.

----While enacting laws, legislature was presumed to be well aware of the existing enactments on the subject at relevant time.

Mian Ahmad Nadeem Arshad for Petitioner.

A.R. Aurangzeb for Respondent.

Date of hearing: 19th November, 2013.

PLD 2014 LAHORE HIGH COURT LAHORE 567 #

P L D 2014 Lahore 567

Before Muhammad Anwaarul Haq, J

BASHIR AHMAD---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.8761-B of 2014, decided on 3rd July, 2014.

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

----S. 497(2)---Penal Code (XLV of 1860), S.295-A---West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16---Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs, dissemination of rumours, etc.---Bail, grant of---Further inquiry---Pamphlets containing opinion on religious beliefs--- Whether such opinion was derogatory required academic consideration and recording of evidence---Pamphlets allegedly containing derogatory remarks regarding religious beliefs of Muslims were recovered from a car being driven by the accused---Said pamphlets, written by someone else, reflected expression of an opinion---Question as to whether such opinion was derogatory or otherwise required very serious consideration by the Trial Court, and that was only possible after recording of evidence from both the sides, who claimed themselves to be Muslims---Alleged recovery of pamphlets from the car of the accused or his involvement in distribution thereof with intent to outrage religious feeling of another group were acts that required further inquiry into the guilt of the accused---Accused was a previous non-convict---Offences alleged did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was granted bail in circumstances.

Nasir Ahmed v. The State 1993 SCMR 153 rel.

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

----S. 497(1)---Prohibitory clause of S.497(1), Cr.P.C.---Scope--Offence providing alternative sentence of fine---Effect---Where alternate sentence of fine was provided, the offence would not fall within the prohibitory clause of S.497(1), Cr.P.C. stricto sensu.

Ch. Mushtaq Ahmad Khan for Petitioner.

Mirza Abid Majeed, Deputy Prosecutor-General for the State with Sher Ali, S.I., with record.

PLD 2014 LAHORE HIGH COURT LAHORE 570 #

P L D 2014 Lahore 570

Before Mamoon Rashid Sheikh and

Shahid Jamil Khan, JJ

Messrs GLOBAL CNG CHAKWAL---Applicant

Versus

SUI NORTHERN GAS PIPELINES and another---Respondents

Review Application No.2-C of 2014 and Civil Revision No.84 of 2013, decided on 3rd June, 2014.

Civil Procedure Code (V of 1908)---

----0 XXX, R. 10---Proprietary firm/concern---Legal character/status--Scope---May sue in its name but cannot bring legal action in its name---"Proprietor" and "proprietary firm" one and the same person---Under provisions of 0.XXX, R.10, C.P.C. a person carrying on business in a name and style other than his own may be sued in such manner or style as if it were a firm nzme, however, the person could not sue in such name because a proprietary firm/concern did not have any legal status separate and distinct from its proprietor---For all intents and purposes it is the proprietor who is the legal person entitled to all the benefits and liable to answer for all liabilities that accrued in respect of the proprietary concern---Proprietor and proprietary firm/concern were one and the same person---Proprietary concern may be sued in its name but the proprietary concern could not bring a legal action as it did not have any legal character/status separate and distinct from its proprietor--- Where a person mistakenly sued in his trade name, then exceptionally necessary corrections/amendments were allowed subject to the law of limitation.

Girdhari Lal v. Kangra Motor Agency and others AIR 1934 Lah. 147; Ismail Haji Sulaiman v. Messrs Hansa Line and another PLD 1961 Dacca 693; Habib Bank Ltd. v. Iqbal I. Chundigar and another 1983 CLO 1464; Messrs Ahan Saz Contractors v. Pak Chromical Limited, 1999 MLD 1781; The Collector of Customs (Appraisement) Collectorate of Customs, Government of Pakistan, Customs House, Karachi and others v. Messrs Imran Enterprises through Proprietor and others 2001 CLC 419 and Messrs M.A. Majeed Khan v. Karachi Water and Sewerage Board and others (PLD 2002 Kar. 315 rel.

Syed Qalb-i-Hassan for Applicant.

Jamal Mahmood Butt for Respondents.

Date of hearing: 3rd June, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 574 #

P L D 2014 Lahore 574

Before Muhammad Qasim Khan and Muhammad Tariq Abbasi, JJ

TALIB HUSSAIN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous Nos.84-M, 625-M, 450-M, 937-M of 2013 and 40-M, 81-M and 127-M of 2014, decided on 24th June, 2014.

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

----S. 426(2B)---Suspension of sentence---History of insertion of S.426(2B), Cr.P.C. and amendments therein traced.

Lala Jairam Das and others v. Emperor AIR (32) 1945 PC 94 ref.

(b) Constitution of Pakistan---

----Art. 185(3)---Supreme Court Rules, 1980, O.XIII & XXIII---Leave to appeal, grant of---Grant of leave to appeal was only the prerogative of the Supreme Court---No law in the country provided any authority to any High Court to issue leave to appeal, in any manner.

----S. 426(2B)---Constitution of Pakistan, Art.185(3)---Supreme Court Rules, 1980, O.XXIII---Suspension of sentence---Grant of leave to appeal by the Supreme Court---When against any sentence, imposed or maintained by a High Court, a convicted person was granted special leave to appeal by the Supreme Court then under S.426(2B), Cr.P.C. a High Court, pending the appeal before the Supreme Court, may suspend the sentence or order appealed against, and release the convict on bail.

Syed Badar Raza Gillani and Muhammad Waseem Sarwar for Petitioners (in Crl.Misc.No.84-M of 2013).

Muhammad Aqeel for the Complainant (in Crl.Misc.No.84-M of 2013).

Prince Rehan Iftikhar Sheikh for Petitioners (in Crl. Misc.No.625-M of 2013).

Ch. Faqir Muhammad for the Complainant (in Crl. Misc.No.625-M of 2013).

Prince Rehan Iftikhar Sheikh for Petitioners (in Crl. Misc.No.450-M of 2013).

Muhammad Naeem Iqbal for the Complainant (in Crl. Misc.No.450-M of 2013).

Ch. Imran Khalid Amartasri for Petitioner (in Crl. Misc.No.127-M of 2014).

Muhammad Bilal Butt for the Complainant (in Crl. Misc.No.127-M of 2014).

Sardar Muhammad Sarfraz Dogar for Petitioner (in Crl. Misc.No.937-M of 2013).

Ch. Shakir Ali for the Complainant (in Crl. Misc.No.937-M of 2013).

Miss Fozia Kausar (in Crl. Misc.No.40-M of 2014).

Miss Fozia Kausar (in Crl. Misc.No.81-M of 2014).

Muhammad Ali Shahab, Deputy Prosecutor-General and Malik Muhammad Jaffar, Deputy Prosecutor-General for Respondents.

Date of hearing: 12th March, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 583 #

P L D 2014 Lahore 583

Before Syed Mansoor Ali Shah, J

M.I. SANITARY STORE through Proprietor and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Commerce and 2 others---Respondents

Writ Petitions Nos.12225, 12663, 12665, 13123, 13552, 13124 and 13138 of 2014, heard on 19th May, 2014.

(a) Interpretation of statutes---

----Purposive interpretation---Interpretation of a statute must be fashioned in a manner that advanced the purpose of the statute.

Aharon Barak - The Judge in a Democracy - Princeton University Press, 2006 (pp.124, 136, 137, 138 and 142 ref.

(b) National Tariff Commission Act (VI of 1990)---

----S. 6---Member of the National Tariff Commission---Tenure of office---Three years "unless otherwise directed by the Federal Government" --- Purposive interpretation--- Phrase "Unless otherwise directed by the Federal Government" appearing at the start of S. 6 of National Tariff Commission Act, 1990 meant that at best the Federal Government was empowered to appoint a person for less than three years, if circumstances so required.

----S. 37---National Tariff Commission Act (VI of 1990), S. 6---Constitution of Pakistan, Art. 199---Constitutional petition---Provisional Anti-Dumping Duty, imposition of---Coram non judice---Constitution of National Tariff Commission defective and irregular---At the time of the Preliminary Determination made by the National Tariff Commission, term of office of one of its Members had lapsed therefore, the constitution of the Commission was defective and irregular---Legality of the Commission's constitution was pivotal to the exercise of its jurisdiction---No provision in the National Tariff Commission Act, 1990 existed that protected the decisions or determinations of the Commission in case the constitution of the Commission was irregular or defective---Preliminary determination made by the Commission in the present case had not been issued by the Commission as mandated under S.37 of the Anti-Dumping Duties Ordinance, 2000, therefore the same was set aside being coram non judice---Constitutional petition was allowed accordingly.

(d) National Tariff Commission Act (VI of 1990)---

----S. 4---National Tariff Commission---Function---Nature---National Tariff Commission exercised a quasi-judicial function in deciding the rights of the parties.

Messrs Khawar Paper Mart through Proprietor v. National Tariff Commission through Chairman and another 2011 PTD 2243 and Waheed Sons Lahore and others v. National Tariff Commission Islamabad C.P.No.1608 of 2009 rel.

(e) National Tariff Commission Act (VI of 1990)---

----S.6---Chairman and Members of the National Tariff Commission---Appointment procedure---Open and competitive process---Procedure of initial appointment of Chairman and Members of the National Tariff Commission was not a mechanical act of simple transfer of a civil servant to the Commission---Concerned Ministry of the Federal Government must structure its discretion by identifying key strengths that a Chairman or Member of the Commission must possess to effectively run the Commission and then go about selecting a person through an open and competitive process---Appointment to the Commission was, therefore, a deliberative act based on selection of the right person for the slot, rather than appointing favourites to the post.

Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343 rel.

Petitioners by

Shafqat Mehmood Chohan, Abdul Quddus Mughal, Mian Muhammad Athar and Malik Hafiz Muhammad Arshad (in W.Ps. Nos.12255/2014, 12665/2014 and 12663/2014).

Waheed Riaz (in W.Ps. Nos.13552/2014 and 13123/2014).

Waqar Hussain (in W.P. No.13124/2014).

Monim Sultan and Usman Malik (in W.P. No.13138/2014).

Respondents by

Mian Muhammad Irfan Akram, Deputy Attorney General for Pakistan.

Ahmed Sheraz for Respondent (NTC).

Muhammad Raheel Kamran Sheikh for Respondent No.3 (in W.Ps. Nos.12255/2014, 13124/2014, 13138/2014, 13123/2014, 12663/2014 and 12665/2014).

Muhammad Saad Khan and Rahman Aziz for Respondent No.3 (in W.P. No.12255/2014).

Date of hearing: 19th May, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 591 #

P L D 2014 Lahore 591

Before Syed Mansoor Ali Shah, Amin-ud-Din Khan and Mrs. Ayesha A. Malik, JJ

RAB NAWAZ DHADWANA, ADVOCATE and others---Petitioners

Versus

Rana MUHAMMD AKRAM, ADVOCATE and others---Respondents

Writ Petition No.16793 of 2014, decided on 2nd July, 2014.

(a) Words and phrases--

---"Absence"--- Meaning.

Black's Law Dictionary 9th Edn. P.7 ref.

(b) Words and phrases-

----"Vacancy"---Meaning.

Black's Law Dictionary 9th Edn. P.7 and Concise Oxford English Dictionary 12th Edn. P.1596 ref.

----Ss. 6(2) & 16(b)---Pakistan Legal Practitioners and Bar Councils Rules, 1976, R.28A---Constitution of Pakistan, Arts. 140 & 199---Constitutional petition---Chairman of the Provincial Bar Council---Advocate General---Additional Advocate General given "look after charge" of the office of Advocate General---Constitutionality--Advocate General was the Chairman of the Provincial Bar Council---Appointment of Advocate General was thus a sine qua non for the functioning of the Provincial Bar Council---Post of Chairman of the Provincial Bar Council was office-centric---Role of the Chairman could never be handed over to any officer other than the Advocate General, even under the garb of a 'look after charge'---Removal and appointment notifications of Members of the Provincial Bar Council passed by the Additional Advocate General holding a "look after charge" of the office of the Advocate General would be unconstitutional, illegal and ultra vires the Legal Practitioners and Bar Councils Act, 1973, and the Pakistan Legal Practitioners and Bar Councils Rules, 1976---Constitutional petition was disposed of accordingly.

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

----Ss. 6 & 19---Constitution of Pakistan, Art. 140---Advocate General as Chairman of the Provincial Bar Council---Post of Advocate General vacant---Effect---Additional Advocate General acting as Chairman of the Bar Council---Legality---Unless an Advocate General for the Province was appointed, meeting of the Bar Council could not be convened and elections of the Bar Council or of the Vice Chairman could not be held---Section 19 of the Legal Practitioners and Bar Councils Act, 1973, which provided that vacancies in Bar Councils etc. would not invalidate actions taken, had no application to a case decided by the Additional Advocate General acting as Chairman of the Bar Council---Even otherwise, the vacancy and defect in the constitution of the Bar Council mentioned in S.19 was limited to the vacancy of the Members of the Bar Council and did not include the vacancy of the office of the Advocate General, which was a constitutional post and could not be filled by the Bar Council---Hence any decision of the Bar Council during the vacancy of the office of the Advocate General could not be validated under the said provision.

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

----Ss. 5A & 5B---Qualifications and disqualifications for Membership of a Provincial Bar Council---Simultaneity---Member of a Provincial Bar Council was elected after passing a two tier test; (i) meeting the qualifications and then (ii) surpassing the disqualifications-Both the qualifications and disqualifications to membership of the Provincial Bar Council, in spite of their distinctive features, were to be considered simultaneously at the time of election of the Member.

Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others 2013 SCMR 1246 and Umar Ahmad Ghumman v. Government of Pakistan and others PLD 2002 Lah.521 rel.

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

----Ss. 5C(a) & 16(b)---Pakistan Legal Practitioners and Bar Councils Rules, 1976, R. 28-A---Constitution of Pakistan, Arts. 4 & 10A---Cessation of membership of Provincial Bar Council due to appointment to an office of profit in the service of Pakistan---Procedure---Power vested with the Bar Council---Chairman alone not authorized to issue de-notification or notification of Member---Process of cessation of membership not valid if office of the Advocate General i.e. Chairman vacant---Under S.SC(a) of the Legal Practitioners and Bar Councils Act, 1973, a Member ceased to be a Member of the Bar Council, once he was appointed to an office of profit in the service of Pakistan---Constitutional standards of due process and fair trial under Arts. 4 & 10A of the Constitution required that before cessation of membership of an elected Member took effect, the factum of his appointment to the office of profit was verified and confirmed and the fact whether appointment was actually to an office of profit in the service of Pakistan was duly determined-Such verification, confirmation and determination required an exercise of discretion after granting a hearing to the Member-No procedure was provided under the Legal Practitioners and Bar Councils Act, 1973 or the Pakistan Legal Practitioners and Bar Councils Rules, 1976, for the removal of a Member in case of his appointment to an office of profit in the service of Pakistan---Procedure for cessation of membership due to appointment to an office of profit in the service of Pakistan, thus, had to be aligned with the purpose and intent of the Legal Practitioners and Bar Councils Act, 1973---Vesting the power to remove a Member under S.5C(a) of the Legal Practitioners and Bar Councils Act, 1973, in the Bar Council was in line with the design, structure and purpose of the said Act, as it would not only advance and actualize the purpose of the said Act but would also honour the constitutional requirements of due process and fair trial---Bar Council after granting a hearing to the Member could decide the question of his removal under S.5C(a) of the Legal Practitioners and Bar Councils Act, 1973---Decision of the Bar Council was thereafter to be notified by the Chairman (i.e. Advocate General of the Province)---Chairman alone was not authorized to issue de-notification or notification---In case the office of the Advocate General was vacant, process of cessation of membership under S.5C(a) of the Legal Practitioners and Bar Councils Act, 1973 could not be put into motion, as the meeting of the Bar Council could not be convened.

(g) Words and phrases---

----"Co-option"---Meaning.

Black's Law Dictionary, p.384 ref.

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

----Ss. 6(2) & 9---Chairman of the Provincial Bar Council---Function and role---Functions of the Bar Council were performed by the Council itself, while the Chairman maintained the role of a neutral umpire, who was to monitor and supervise, to ensure neutrality, transparency

(i) Interpretation of statutes---

----Purposive interpretation---Importance.

Aharon Barak - The Judge in a Democracy (Pages 124, 136, 137, 138, 142), Princeton University Press, 2006 and [1950] 2 All ER 1226 at p.1236 quoted.

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

----S. 5C(a)---Cessation of membership of Provincial Bar Council due to appointment to an office of profit in the service of Pakistan--Scope---Person subsequently resigning from such office of profit-- Effect---S.5C(a) of the Legal Practitioners and Bar Councils Act, 1973 took effect on the appointment of the Member to an office of profit in the service of Pakistan---Not necessary that Member must continue to hold the office of profit at the time of the proceedings---Appointment to an office of profit was the triggering event for the cessation of his membership under S.5C(a) of the said Act and it mattered less if the Member resigned later on.

Sardar Asseff Ahmad Ali v. Muhammad Khan Junejo and others PLD 1986 Lah. 310; Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98 and Ch. Riyasat Ali Advocate v. Returning Officer and 2 others 2003 CLC 1730 distinguished.

(k) Constitution of Pakistan---

----Arts. 3, 5, 25, 27 & 140---Constitution of Pakistan, Art. 199---Constitutional petition---Advocate General---Additional Advocate General given "look after" charge of office of Advocate General--Ad-hoc constitutional appointment---Not constitutionally recognized-- Inordinate delay in appointing Advocate General---Effect---Provincial Government had failed for almost a year to select and appoint an Advocate General---Additional Advocate General was appointed to "look after the work of the Advocate General"---Governor and the Chief Minister of the Province had sworn oath to preserve, protect and defend the Constitution, yet the constitutional obligation to appoint an Advocate General under Art.140 of the Constitution had gone unnoticed without demur---While the Government in power enjoyed the comfort to appoint an Advocate General of its choice, but the same did not in any manner give license to the Government to delay the appointment indefinitely---Any inordinate delay in filling a constitutional post offended Arts.3, 25 & 27 of the Constitution---Provincial Government had not only ignored the constitutional mandate but had circumvented the Constitution to appoint a person to 'look after the work of Advocate General"---Article 140 of the Constitution did not permit to appoint a surrogate Advocate General who would "look after the work of the office of the Advocate General"- no such post existed under the Constitution---Such an appointment amounted to playing a fraud on the Constitution and on the people of the Province---In the present case, the Provincial Government seemed to have encouraged a culture of adhocism in making constitutional appointments, which had no constitutional recognition---Considering that the appointment of Advocate General was a sine qua non for the functioning of the Provincial Bar Council considering that it had been almost one year that the seat of the Advocate General was lying vacant; considering that no effort, whatsoever, had been made to even initiate the appointment of the Advocate General; considering that obedience to the Constitution (under Art.5) was a fundamental constitutional value; considering that the inordinate delay in appointment of the Advocate General was offensive to the letter and spirit of the Constitution, the High Court directed the Provincial Government to appoint Advocate General for the Province in terms of Art.140 of the Constitution within a fortnight---Constitutional petition was disposed of accordingly.

(l) Public office---

----Public official---Role---Serve the public---Public official was the trustee of the public---Public official did not act for his 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.

(m) Adhocisim---

--Meaning and scope---Adhocism was an organizational philosophy or style characterized by (i) aversion to planning, (ii) tendency to respond only to the urgent, as opposed to the important, (iii) focus on fire fighting,' than on establishing systems and procedures through goal setting and long term planning---Adhocism was a mindset or a tendency to establish temporary, chiefly improvisational policies and procedures to deal with specific problems and tasks---Adhocism was a malaise, which exploited the system and weakened institutions and was, therefore, abhorred.

Petitioners by:

Ahmad Awais, Zulqarnain Raja, Muhammad Amin Javed, Ghulam Fareed Sanotra, Ch. Zulifiqar Ahmad, Ch. Ishtiaq Ahmad and Mushtaq Ahmad Mohal, Advocates.

Respondents by:

Mustafa Ramday, Additional Advocate General (on court's call).

Muhammad Hanif Khatana and Shan Gul, Additional Advocates General, Punjab.

Anwaar Hussain, Assistant Advocate General, Punjab.

Ali Zafar Syed, Zahid Nawaz Cheema and Salman Ahmad, Advocates for Pakistan Bar Council.

Ch. Muhammad Hanif Tahir, Iftikhar Ahmed Mian and Rai Bashir Ahmed, Advocates.

Khalid Umar, Assistant Secretary/Law Officer, Punjab Bar Council.

Jabran Khalil, S.O. Executive Committee, Punjab Bar Council. Respondents Nos.2, 3 and 5 in person.

Ch. Muhammad Ilyas, Additional Secretary, Law and Parliamentary Affairs Department.

Muhammad Rehman, Section Officer (Admn-III) Law and Parliamentary Affairs Department.

Research by:

Qaisar Abbas and Mohsin Mumtaz, Research Associates and Civil Judges, Lahore High Court Research Centre (LHCRC).

Dates of hearing: 19th, 27th, 28th, 30th June, 1st and 2nd July, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 623 #

P L D 2014 Lahore 623

Before Umar Ata Bandial, C J

JUDICIAL ACTIVISM PANEL---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.11063 of 2011, decided on 6h June, 2014.

(a) Constitution of Pakistan---

----Arts. 9 & 199---Constitutional petition---Load shedding---Power outages---Effect---Infringement of right to life and livelihood---Redressal/solutions---Meritorious appointments in power companies---Short term solutions---Rationing of power supply---Starting point for redressing the problem of rampant load shedding was to ensure meritorious appointments in accordance with law to posts of Member Board of Directors and Chief Executives of power sector companies---Merit would bring competence, capacity and vision in management policy---Problem of load shedding required present, current and short term solutions---Reliance on long term relief like increase in power generation capacity in the grid system was not sufficient---Short term measures laid on the consumption side of the power supply matrix, which may offer present and appropriate remedies---Power supply rationing system must be devised that classified its consumers to attend the needy and shun the wasteful---Such rationing should encourage best practices, conducive life styles and role modelling for suitable consumption patterns---High Court observed that with the present problem of load shedding reasonable right to life and to livelihood of power consumers was being restricted especially at the lower end of the scale because of their inability to access alternate sources of power supply---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Electricity---Load shedding---Rampant load shedding affected right to life and quality of life of a citizen.

----Arts. 9 & 199---Constitutional petition---Load shedding---Redressal/solutions---Rationing of power supply---Amenable to judicial scrutiny---Criteria for devising and implementing suitable modes to ration power supply to consumers in prevailing situation of power shortage were objective conditions that were amenable to judicial scrutiny---Constitutional petition was disposed of accordingly.

Muhammad Azhar Siddique assisted by Shahanshah Shamial Paracha for Petitioner.

Mateen ul Haq Chaudhry for Petitioner in connected petition.

Ch. Amir Rehman, Deputy Attorney General for Pakistan.

Sayed Nayyar Abbas Rizvi, Addl: Advocate General, Punjab.

Kh. Ahmad Tariq Raheem, assisted by Muhammad Ashraf Khan and Sh. Muhammad Ali for Federal Government along with Zargham Eshaque Khan, Joint Secretary Ministry of Water and Power/MD. PEPCO.

Muhammad Ilyas Khan for GEPCO.

Sardar Tariq Mehmood on behalf of Muhammad Shahzad Shaukat for LESCO.

Munawar-us-Salam assisted by Shoaib Rashid and Usman Sahi for NTDC.

Ch. Fayyaz Ahmad Sangherra for PEPCO.

`Mian Muhammad Javaid for FESCO.

Muhammad Siddique Malik, Addl: D.G GEPCO.

Shaukat Ali Gill, Chief Engineer GEPCO, Ch. Manzoor Hussain, Addl: ESD, GEPCO.

Ghulam Murtaza Langah, SE, LESCO and Yousaf Raza, Director (Legal) LESCO.

PLD 2014 LAHORE HIGH COURT LAHORE 627 #

P L D 2014 Lahore 627

Before Ijaz Ahmad, J

SAJJAD AKBER ABBASI---Petitioner

Versus

ADVOCATE-GENERAL PUNJAB and 3 others---Respondents

Writ Petition No.3062 of 2012, decided on 4th November, 2013.

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

----Ss. 16(b) & 5C(a)---Constitution of Pakistan, Art.199---Constitutional petition--- Cessation of membership of Provincial Bar Council---Member Punjab Bar Council appointed as Deputy Attorney General (an office of profit in the service of Pakistan)---Effect---Respondent had won the election for a seat for Punjab Bar Council---Petitioner was the runner up candidate---Subsequently respondent was appointed as Deputy Attorney General---Petitioner made an application to Punjab Bar Council claiming the right to occupy the vacant seat in question under provisions of S.16(b) of Legal Practitioners and Bar Councils Act, 1973---Said application was rejected---Validity---Under S.16(b) of Legal Practitioners and Bar Councils Act, 1973, the vacancy had to be filled by the person who received the highest number of votes next after the member whose vacancy was to be filled--- Respondent after being appointed as Deputy Attorney General received retainership, conveyance allowance and house rent, etc. and was thus holding an office of profit---Under S.5C(a) of Legal Practitioners and Bar Councils Act, 1973, respondent ceased to be a Member of Punjab Bar Council after being appointed as Deputy Attorney General---Constitutional petition was allowed and High Court directed that under S.16(b) of Legal Practitioners and Bar Councils Act, 1973, petitioner having polled the highest number of votes after the respondent should be declared as elected and be notified accordingly by the Punjab Bar Council.

Syeda Abida Hussain v. Tribunal for N.A.69, Jhang-IV and 2 others PLD 1994 SC 60; Muhammad Khursheed Khan v. Returning Officer and 4 others 1998 SCMR 425 and Ch. Riyasat Ali, Advocate v. Returning Officer and 2 others 2003 CLC 1730 rel.

Tariq Mehmood A. Khan and others v. Sindh Bar Council and another 2012 SCMR 702 distinguished.

(b) Central Law Officers Ordinance (VII of 1970)---

----S. 2---Deputy Attorney General, office of---Nature---Said office was an "office of profit".

Muhammad Khursheed Khan v. Returning Officer and 4 others 1998 SCMR 425 and Ch. Riyasat Ali, Advocate v. Returning Officer and 2 others 2003 CLC 1730 rel.

----Art. 199---Constitutional petition---Maintainability---Alternative remedy available but not efficacious---Effect---Constitutional petition was maintainable in such circumstances---Illustration.

Siddique Akbar Abbasi, Muhammad Umar Khan Vardag and Sardar Atif Nazir for Petiitoner.

Shahid Mehmood Abbasi, AAG for Respondent No.1

Muhammad Younis Bhatti for Respondent No.4.

PLD 2014 LAHORE HIGH COURT LAHORE 632 #

P L D 2014 Lahore 632

Before Abid Aziz Sheikh, J

Mst. SANA SHEHZAD---Petitioner

Versus

SECRETARY UNION COUNCIL NO.81 and 2 others---Respondents

Writ Petition No.22788 of 2013, decided on 20th November, 2013.

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

----S. 7---Constitution of Pakistan, Art.199--- Constitutional petition---Divorce with mutual consent of parties and on the basis of Muba'arat---Withdrawl of divorce by the husband---Non-issuance of certificate of effectiveness of divorce by the Chairman Union Council---Scope---Contention of Chairman Union Council was that husband had withdrawn divorce---Validity---Divorce deed was an agreement based upon the consent of the parties and same was signed in presence of witnesses---Husband had also informed Chairman Union Council with regard to divorce---Husband could not retract or withdraw divorce which was with mutual consent and on the basis of Muba'arat nor Chairman Union Council had authority to adjudicate upon the validity of the same---Chairman Union Council was bound to issue certificate of effectiveness of divorce and he had no power to entertain notice of withdrawal of divorce and to start proceedings on the basis thereof---Husband had no authority to revoke divorce in case of Talaq-i-Muba'arat and Chairman Union Council had no authority except to issue certificate of effectiveness of divorce---Constitutional petition was accepted and Chairman Union Council was directed to issue certificate of effectiveness of divorce forthwith.

Mst. Shamshad Mai v. Chairman Arbitration Council Ahmedpur East, District Bahawalpur and 2 others 2000 MLD 173; Princess Aiysha Yasmien Abbasi v. Maqbool Hussain Qureshi and 2 others PLD 1979 Lah. 241; Muhammad Shahbaz Ahmad v. Sher Muhammad and another 1987 CLC 1496; Mst. Ambreen Shah v. Chairman, Union (Arbitration) Council/Administrator, Union Committee and others 2002 MLD 778 and Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901 rel.

Asif Nazir Awan for Petitioner.

Rana Shamshad Khan, AAG, on Court's Call along with Kashif Ikram, Secretary U.C. No.81.

Respondent No.2 proceeded against ex parte.

PLD 2014 LAHORE HIGH COURT LAHORE 635 #

P L D 2014 Lahore 635

Before Shujaat Ali Khan and Mahmood Ahmad Bhatti, JJ

AL-GHAZI TRACTOR LTD. Through Chief Executive and another---Appellants

Versus

MUHAMMAD HANIF IQBAL and 2 others---Respondents

I.C.A. No.129 of 2011 in Writ Petition No.984 of 2008, decided on 1st April, 2014.

(a) Constitution of Pakistan---

----Art. 199--- Constitutional jurisdiction of the High Court--- Scope--- Constitutional jurisdiction of the High Court was confined to persons who were performing functions in connection with the affairs of the Federation or a Province.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Constitutional petition against a private limited company---Maintainability---Jurisdiction of the High Court would not be attracted against a private limited company, thus a constitutional petition filed against such company would not be maintainable.

Salah ud Din and 2 others v. Frontier Sugar, Mills Distillery Ltd. Tokht Bhai and 10 others PLD 197!5 SC 244; Syed Khalid Ali Bukhari and another v. Govt. of Pakistan and others 2012 PLC (C.S) 818; Muhammad Masood Butt and 3 others v. S.M. Corporation (Pvt.) Ltd. and 6 others 2011 CLD 496 and Muhammad Saleem v. Chief Controller of Boiling KESC Karachi and others 2010 YLR 2946 rel.

----Art. 199---Constitutional petition against a private limited company---Maintainability---Respondent booked five tractors from the appellant-company (a private limited company) and deposited the requisite amount---Respondent filed a constitutional petition against the appellant-company alleging that it did not hand over the tractors within due date and instead claimed price of the tractors according to revised rates---Single Judge of High Court disposed of the constitutional petition with a direction to appellant-company to handover the tractors to the respondent---Legality---Constitutional jurisdiction of the High Court was confined to persons who were performing functions in connection with the affairs of the Federation or a Province---Appellant-company was a private limited company, thus jurisdiction of the High Court was not attracted--- After depositing the price of the tractors, respondent might have been entitled to their delivery but the issue still remained that the High Court in its constitutional jurisdiction could not direct the appellant-company to handover the tractors to the respondent---Constitutional petition filed by respondent was not maintainable, and consequently order of Single Judge of High Court was set aside---Intra-Court appeal was allowed accordingly.

Salah ud Din and 2 others v. Frontier Sugar, Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 244; Syed Khalid Ali Bukhari and another v. Govt. of Pakistan and others 2012 PLC (C.S) 818; Muhammad Masood Butt and 3 others v. S.M. Corporation (Pvt.) Ltd. and 6 others 2011 CLD 496 and Muhammad Saleem v. Chief Controller of Boiling KESC Karachi and others 2010 YLR 2946 rel.

(d) Jurisdiction---

----Question of jurisdiction determined before taking cognizance---Scope---Prior to taking cognizance of a matter, it was of paramount importance that a court determined the question of its jurisdiction---Any order passed without jurisdiction could not be allowed to hold the field for a moment.

Malik Muhammad Tariq Rajwana for Appellants.

Mirza Aziz Akbar Baig for Respondent No.1.

PLD 2014 LAHORE HIGH COURT LAHORE 639 #

P L D 2014 Lahore 639

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

KHURRAM WAHEED---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No.31650 of 2013, heard on 21st January, 2014.

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

----Ss. 6(1), Cls. (b) & (k), 7 & 23---Penal Code (XLV of 1860), Ss.384, 506 & 337-H(2)---Extortion, criminal intimidation, rash and negligent act endangering human life---Constitution of Pakistan, Art.199---Constitutional petition---Transfer of case from Anti-Terrorism Court to regular court---Community---Connotations---Act of accused persons though was (directed) against an individual yet its impact had to be considered with surrounding circumstances---Complainant was member of business community running business in a busy area---Ransom was demanded in such a way by accused persons and the manner in which complainant was directed to proceed to a Chowk coupled with firing shots at a public place and eight days time (dead line) for arrangement of ransom, might have spread sense of terror, fear and insecurity in the vicinity complainant was running business---Complainant being member of a particular community (business community), prosecution case fell within ambit of Cls.(b) and (k) of S.6 of the Anti-Terrorism Act, 1997 and the alleged offence was liable to be punished under S.7 of the Anti-Terrorism Act, 1997---In view of surge in heinous crimes, outlaws perpetrating such crimes had to be dealt with drastically---Constitutional petition was dismissed.

2012 SCMR 517; 2013 YLR 92; Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik PLD 2007 SC 571; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 and The State v. Waqar and others 2013 MLD 1072 ref.

(b) Words and phrases---

----"Community"---Connotation---Community was a society or group of people with similar rights or interests---Community indicated a group of people with common identity other than location.

Black's Law Dictionary rel.

Ch. Asif Sharif for Petitioiner.

Ch. Babar Waheed for Respondent.

Sittar Sahil, A.A.G. with Tariq Awan Inspector/SHO for the State.

Date of hearing: 21st January, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 644 #

P L D 2014 Lahore 644

Before Muhammad Tariq Abbasi and Muhammad Qasim Khan, JJ

MUHAMMAD YOUSAF---Petitioner

Versus

THE STATE and another---Respondents

Writ Petitions Nos.8568 and 9029 of 2013, 1614 and 2158 of 2014, decided on 10th April, 2014.

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

----Preamble, Third Sched., Ss.1, 6, 7, 23 & 34---Constitution of Pakistan, Art.199---Constitutional petition---Transfer of case from Anti-Terrorism Court to regular court---Scope of S.23 of the Anti-Terrorism Act, 1997---Anti-Terrorism Court dismissed applications of accused involved in different offences namely murder by firing, acid throwing and injury caused by firing in mosque, for transfer of their cases to regular courts---Validity---Purpose of Anti-Terrorism Act, 1997 was to prevent terrorism, sectarian violence and conducting speedy trial of heinous offences---In order to decide whether an offence was triable under the Anti-Terrorism Act, 1997 or not, the courts had to see whether the act had tendency to create sense of fear and insecurity in the mind of people or a section of society---Such act might not necessarily have taken place within the view of general public---Schedule annexed to a statute was as important as the statute itself---Schedule could be used to construe the provisions of the body of the Act---Third Schedule to the Anti-Terrorism Act, 1997 had to be given its due importance and, first three paragraphs of the same were general in nature while the fourth paragraph specifically described offences---In order to bring an offence within ambit of Anti-Terrorism Act, 1997 and the jurisdiction of the Anti-Terrorism Court, nexus of such offence with S.6 of the Anti-Terrorism Act, 1997 was a pre-requisite---Paragraph 4 of the Schedule to the Anti-Terrorism Act, 1997 categorically mentioned the offences which would be tried only by the Anti-Terrorism Court---Offences in question were within the purview/ambit of the paragraph 4 of the Third Schedule to the Anti-Terrorism Act, 1997 and were triable by the Anti-Terrorism Court---Petitions were dismissed.

State through Advocate-General, N.-W.F.P., Peshawar v. Muhammad Shafiq PLD 2003 SC 224; Rana Abdul Ghaffar v. Abdul Shakoor and 3 others PLD 2006 Lah. 64 and Saif Ullah Saleem and others v. The State and others 2013 PCr.LJ 1880 rel.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Ch. Bashir Ahmad v. Naveed lqbal and 7 others PLD 2001 SC 521; Mohabbat Ali and another v. The State and another 2007 SCMR 142; Bashir Ahmad v. Muhammad Sadique and others PLD 2009 SC 11 and Ahmed Jan v. Nasrullah and others 2012 SCMR 59 ref.

Ch. Sagheer Ahmad and M.A. Hayat Haraj for Petitioner (in Writ Petition No. 8568 of 2013).

Syed Badar Raza Gillani for Respondent No.2.

Malik Muhammad Bashir Lakhesir, A.A.G. and Muhammad Ali Shahab, D.P.G.

Date of hearing: 12th March, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 651 #

P L D 2014 Lahore 651

Before Ijaz-ul-Ahsan, J

MUHAMMAD IJAZ AHMED CHAUDHRY---Petitioner

Versus

MUMTAZ AHMED TARAR and 16 others---Respondents

Writ Petition No. 33457 of 2013, decided on 10th February, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Clear hands---Withholding of information---Effect---Intentional failure on the part of petitioner to disclose requisite information is not approaching High Court with clear hands.

Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others 2006 SCMR 219 rel.

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

----S.52---Constitution of Pakistan, Art.199---Constitutional petition---Interim order---Framing of additional issue---Petitioner was returned candidate and during pendency of election petition his application to frame additional issue was dismissed by Election Tribunal---Validity---Additional issue sought to be framed was covered by issues already framed by Election Tribunal---Judgment relating to previous election dispute between returned candidate and some other political rival could be produced in evidence in respect of issues already framed---Rights of petitioner were adequately secured by Election Tribunal by allowing him to place on record judgment of Election Tribunal as well as Supreme Court, in his defence---Framing additional issue was neither necessary nor required to fully and conclusively decide controversy between parties---High Court declined to interfere in order passed by Election Tribunal---Petition was dismissed in circumstances.

Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others 2006 SCMR 219; Principal, King Edward Medical College, Lahore v. Ghulam Mustafa and others 1983 SCMR 196; Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396; Sh. Rashid Ahmad v. The Election Tribunal Comprising Justice Mian Nazir Akhtar of Lahore High Court, Lahore and another PLD 1993 Lah. 791; Muhammad Iftikhar Muhammad v. Javed Muhammad and 3 others 1998 SCMR 328; Dr.Sheela B. Charles v. Election Tribunal and another 1995 CLC 344; Allahdino and another v. Ghulam Mustafa and 6 others 2010 YLR 346 and Muhammad Naseer Ahmad v. Additional District Judge and others 1999 CLC 1925 ref.

C.P. No.3248 of 2013 fol.

----Delay in proceedings---Remedy---One of the parties is invariably interested in delaying and frustrating proceedings in order to obstruct and hamper finalization of matter---Policy of law which has gradually developed over a considerable period of time is that interim orders should not be interfered with.

Ahmad Awaiz and Tipu Sultan Makhdoom for Petitioner.

Muhammad Shahzad Shaukat, Asif Afzal Bhatti and Rustam Nawab Lak for Respondent No.1.

Date of hearing: 23rd January, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 660 #

P L D 2014 Lahore 660

Before Amin-ud-Din Khan and Faisal Zaman Khan, JJ

Dr. NAZEER SAEED---Appellant

Versus

MUHAMMAD JAVED and 16 others---Respondents

Intra-Court Appeal No.279 of 2012, heard on 10th June, 2014.

Contempt of Court Ordinance (IV of 2003)---

----S. 3---Constitution of Pakistan¸ Arts. 199 & 204---Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeal---Contempt of Court---Direction to contemnor---Implementation of High Court order---Single judge of High Court disposed of contempt application with a direction to contemnor to implement order passed by High Court in an earlier constitutional petition---Validity---While exercising jurisdiction under provisions of Art. 204 of the Constitution and Contempt of Court Ordinance, 2003, the Court could only punish the contemnor and no more---Court could look into the vires of order passed in pursuance to its direction, it could only do the same with the perspective of punishing the contemnor---Order passed by Single Judge of High Court was not sustainable in law as he could only proceed against contemnor under contempt laws for non-compliance of the order passed by High Court and punish him for the same---By way of passing earlier order, neither any proceedings in contempt could have been initiated against him nor he could have been given a direction for implementation of an order---Division Bench of High Court set aside the order passed by Single Judge of High Court---Intra-court appeal was allowed accordingly.

Mehdi Hassan, Additional Secretary, Food and Forests Department, Government of West Pakistan and another v. Zulfiqar Ali, Conservator of Forest, Development Circle, Lahore PLD 1960 (W.P.) Lah. 751 and Mrs. Razia Yaqub v. Malik Muhammad Ashiq and 2 others PLD 2003 Lah. 486 rel

Syed Hassan Mehdi and others v. Province of Punjab and others PLD 2011 SC 916; Board of Intermediate and Secondary Education, Lahore through Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263; Imtiaz Ahmad and others v. Administrator (Residual Properties)/Settlement Commission, Rawalpindi and others PLD 2011 SC 342; Nazar and others v. Member (Judicial-II) BOR 2010 SCMR 1429; Din Muhammad and 4 others v. Member, Board of Revenue Punjab, Lahore and others 2004 YLR 681; Chief Executive, Multan Electric Powers Company (MEPCO), Multan and others v. Messrs Colony Textile Mills Limited and others 2012 SCMR 906 and Chand and others v. Abdul Ghaffar and others PLD 1965 (WP) Lah. 596 distinguished.

Mahmood A. Sheikh for Appellant.

Shahid Iqbal Mian and Ustad M. Iqbal, for Respondents Nos. 1 to 14.

Mrs. Salma Malik, A.A.G. for respondents Nos. 15 to 17.

Date of hearing: 10th June, 2014.

PLD 2014 LAHORE HIGH COURT LAHORE 670 #

P L D 2014 Lahore 670

Before Ijaz-ul-Ahsan and Faisal Zaman Khan, JJ

GOHAR NAWAZ SINDHU---Appellant

Versus

Mian MUHAMMAD NAWAZ SHARIF and others---Respondents

I.-C.A. No.865 of 2014, decided on 8th September, 2014.

(a) Constitution of Pakistan---

----Arts. 62(1)(f), 63(1)(g), 66, 69 & 199---Law Reforms Ordinance (XII of 1972), S.3(1)---Intra-court Appeal---Constitutional petition filed before the High Court seeking disqualification of Prime Minister for 'lying" in Parliament---Political question---Factual inquiry---Not justiciable by the High Court in its constitutional jurisdiction---Contentions were that a statement made by the Prime Minister on the floor of the National Assembly was contradicted by the Inter-Services Public Relations (ISPR) department of the Armed Forces; that as such the Prime Minister had made a false statement, and did not fulfil the qualifications for membership of Parliament as he was not "honest" and "ameen"; and that the Prime Minister had defamed the Armed Forces of Pakistan and was liable to be disqualified under Art. 63(1)(g) of the Constitution---Validity---Present issue raised a political question, which was not justiciable in constitutional jurisdiction of the High Court---For addressing a political question adequate and sufficient mechanisms were available in the Constitution as well as in the Rules of Procedure and Conduct of Business in National Assembly, 2007---Allegation of "lying" against the Prime Minister had to be established before a competent forum, but since the same had not been done in the present case, therefore Art. 62(1)(f) of the Constitution was not attracted---Question whether or not certain statements were made, who made such statements and in what background and context necessitated a factual inquiry---Such factual inquiry could not ordinarily be undertaken by the High Court in its constitutional jurisdiction---Prime Minister could not be disqualified under Art.63(1)(g) of the Constitution for allegedly defaming the Armed Forces of Pakistan as there was no conviction against him by a court of competent jurisdiction---Articles 66 & 69 of the Constitution provided certain privileges and immunities to members and proceedings of the Parliament, which could not be inquired into by the courts---Although said privileges and immunities had certain exceptions, but it was not established that the case of Prime Minister fell within any of the exceptions---Constitutional petition seeking disqualification of Prime Minister had been rightly dismissed by the High Court---Intra-court appeal was dismissed accordingly

Syed Mansoor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Political question---Political question was not justiciable in constitutional jurisdiction of High Court.

----Art. 62(1)(f)---Qualification for membership of Majlis-e-Shoora (Parliament)---"Honest" and "Ameen"---Allegation of "lying" needed to be established before a competent forum for disqualifying a person from Parliament in terms of Art.62(1)(f) of the Constitution.

(d) Constitution of Pakistan---

----Art. 63(1)(g)---Disqualification for membership of Majlis-e-Shoora (Parliament)---Propagating any opinion or acting in any manner, which defamed or brought into ridicule the Armed Forces of Pakistan---Pre-condition for disqualification on such ground---Conviction by a court of competent jurisdiction.

Gohar Nawaz Sindhu (in person) and Shadab Hussain Jaffery for Appellant.

Waqas Qadir Dar, Dy. Attorney-General and Tahir Gondal, Standing Counsel for Pakistan.

Peshawar High Court

PLD 2014 PESHAWAR HIGH COURT 1 #

P L D 2014 Peshawar 1

Before Mrs. Irshad Qaiser and Ikramullah Khan, JJ

LATIF-UR-REHMAN---Appellant

Versus

Haji FARMANULLAH---Respondent

F.A.O. No.28-P of 2013, decided on 4th July, 2013.

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

----S. 12(2)---Application under S. 12(2), C.P.C., acceptance of---Effect---Such application would be treated as suit and impugned decree would lose its existence---Principles.

An application under Section 12(2), C.P.C., 1908 may be treated as a suit once such application is admitted for full hearing and when not dismissed summarily in accordance with the prevailing facts and circumstances of the case, then the impugned decree loses its effectiveness or status.

The Civil Court seized of the matter thereafter has to decide each and every intermediary or interlocutory matter arising out of or ancillary thereto the main subject matter under litigation according to the established principle of justice keeping in view all the grounds raised in the application filed under section 12(2), C.P.C. and the version of the decree holder raised in his pleadings.

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

----O. XL, R. 1---Receiver, appointment of---Guidelines for court.

In the matter of appointment of Receiver, a heavy responsibility thereof cast upon the Court, not to treat such matter in a cursory and simple manner, but to apply its responsible judicial mind to the facts and circumstances of the case, as any irresponsible or slight omission in this regard would cause a great irreparable loss to a party before him in hope of justice.

The appointment of Receiver has been recognized as one of the harshest remedy allowable under the Civil Procedure Code and it is allowed only in a very exceptional cases. The main object is to safeguard the interest of all parties and property under litigation. The party interested and desirous in the appointment of Receiver has to make out a prima facie case.

Exercise of jurisdiction under Order XL of C.P.C. in appointment of Receiver would be sparingly used and it would be exercised for the safeguard of the interest of all the parties thereto before the Court and the property involved therein.

The bona fide possession over the property of a party to the lis would not be disturbed, unless there are allegations of wastage or dissipation of property or apprehension of irrep.1rable loss or injury either to a party or the property in question.

Receiver may be appointed for immovable property being in danger of alienation, damaged or wastage, but in matter of a company, appointment of an Inspector is requirement of law under the provisions of the Companies Ordinance, 1984, in case of gross allegation of mismanagement, fraud, wastage or loss to the company's property.

----O. XL, R. 1---Companies Ordinance (XL VII of 1984), Ss.137 & 263---Appointment of Receiver or Inspector in matter of a company---Scope.

Shumail Ahmad Butt for Appellant.

Syed Arshad Ali for Respondent.

Date of hearing; 4th July, 2013.

PLD 2014 PESHAWAR HIGH COURT 10 #

P L D 2014 Peshawar 10

Before Yahya Afridi and Syed Afsar Shah, JJ

AHTABAR GUL and another---Petitioners

Versus

The STATE and another---Respondents

Writ Petition No.909-A of 2012, decided on 22nd May, 2013.

(a) Extradition Act (XXI of 1972)---

----Ss. 2, 3, 4, 7 & 8---Constitution of Pakistan, Art.199---Constitutional petition---Extradition proceedings---Non-treaty State, request of---Petitioners were arrested by authorities on request of Afghanistan for their extradition---Validity---Afghanistan was neither Treaty State nor Federal Government had issued requisite notification in favour of proceedings against petitioners under S.4 of Extradition Act, 1972---Applicability of provisions of Extradition Act, 1972, to petitioners was beyond the mandate of law---Arrest of petitioners and their detention was illegal and without lawful authority---High Court directed the authorities to release petitioners forthwith---Petition was allowed in circumstances.

Jawar Arjan v. State of Gujarat AIR 1979 SC 1500; Muhammad Akbar Cheema, Advocate v. Superintendent Jail, Kot Lakhpat 1994 PCr.LJ 2362; Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Muhammad Azimm Malik v. A.C. & D.C. Preedy (South) Karachi and others PLD 1989 SC 266 ref.

(b) International Law---

----Extradition---Sovereignty of States---Scope---There is no international obligation upon sovereign State to accept request for extradition of a person within its territorial jurisdiction---Sovereignty of a State has legal authority over people within its territorial borders---Host State has to enter into arrangements with other sovereign States, whereby it may divest some of its sovereign powers including power to try a person for offence or to allow that person to remain within its territorial jurisdiction and to allow his extradition to other State to face trial.

Nasrullah Khan Henjra's case PLD 1994 SC 23; Corpus Juris Secundum (Vol. 35) and Encyclopedia Britannica rel.

----Municipal laws---When international obligations and bilateral commitments come in conflict with municipal laws, the latter are to prevail.

A.M. Qureshis's case PLD 1981 SC 377; Indus Auto Mobile Pvt. Ltd.'s case PLD 1988 Kar. 1999 and Messrs Najeeb Zarab Ltd.'s case PLD 1993 Kar. 1993 rel.

(d) Extradition Act (XXI of 1972)-

---Preamble-Aim of enacting Extradition Act, 1972, is to recognize international obligations of civilized nation in respect to requisition made by requesting State and to regulate extradition of persons, "citizen" or "non-citizen" within territorial limits of Pakistan---Legislature has provided protection to valuable rights of persons, who are subjected to legal regime.

Shad Muhammad Khan for Petitioner.

Medhi Zaman Khan, Dy. Attorney-General, Yasir Huda Swati and Ashfaq Haider for Respondents.

Date of hearing: 22nd May, 2013.

PLD 2014 PESHAWAR HIGH COURT 21 #

P L D 2014 Peshawar 21

Before Muhammad Daud Khan, J

RIAZ MUHAMMAD and another---Petitioners

Versus

KHADIM MUHAMMAD and 2 others---Respondents

Civil Revision No.486-M of 2013, decided on 20th August, 2013.

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

----Ss. 8 & 55---Suit by parents against sons for possession of house, permanent injunction and claim for maintenance---Contention of plaintiffs was that they were parents of defendants who were disobedient and had made their lives miserable---Defendants contended that they had unregistered transfer deed of house in question---Suit was decreed concurrently---Validity---Plaintiffs were original owners of house in question---Defendants could not prove alleged deed in accordance with law---Plaintiffs had proved their claim by producing reliable, cogent and convincing evidence which could not be brushed aside---Plaintiffs being parents had taken pains in looking after the defendants and now they could not earn their livelihood---Adult offspring were bound to maintain their parents---Trial Court had rightly decreed the suit which was upheld by the Appellate Court---Concurrent findings of facts of courts below were well-reasoned and well-founded---No misreading, non-reading or unlawful exercise of jurisdiction could be pointed out by the defendants---Revision was dismissed.

Arabi Reference 1 to 3

Ref.

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

---S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction was meant for correction of jurisdictional errors and material illegalities or irregularities and in absence thereof, the concurrent findings could not be interfered with.

Fayyaz Muhammad Qazi for Petitioners.

Nemo for Respondents.

Date of hearing: 20th August, 2013.

PLD 2014 PESHAWAR HIGH COURT 25 #

P L D 2014 Peshawar 25

Before Syed Afsar Shah, J

MIR QADIR KHAN---Petitioner

Versus

AYUB KHAN through Legal Heirs---Respondents

Civil Revision No.10-B of 2008, decided on 29th August, 2013.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987) ---

----S. 13---Transfer of Property Act (IV of 1882), S. 52---Talbs, performance of---Subsequent sale of a portion of suit property by vendee---Effect---Lis pendens, principle of---Applicability---Pre-emption suit was dismissed by the Trial Court but Appellate Court remanded the case to the said court with the direction to take amended plaint from the pre-emptor by impleading the subsequent transferee---Validity---Defendant purchased land measuring 23 kanals 16 marlas through sale mutation dated 21-6-2006---Plaintiff made jumping demand on 2-7-2006 followed by sending notice on 5-7-2006 and pre-empted the transaction by filing suit on 6-9-2006---Defendant transferred a portion of land measuring 10 kanals 8 marlas on 24-8-2006 through subsequent sale---Vendee was barred from entering into sale or resale of the land in dispute after institution of pre-emption suit---Provision of S.52 of the Transfer of Property Act, 1882 would be attracted only when lis was pending---Subsequent transfer of a portion of suit property had been made earlier than filing of suit in the present case, hence principle of lis pendens was not applicable---Pre-emptor had neither performed Talb-i-Muwathibat nor Talb-i-Ishhad with regard to subsequent sale and plaint was also silent with such respect---Subsequent transfer of a portion of land in question by the defendant in favour of subsequent transferee was an independent transaction and was required to be pre-empted in accordance with law of pre-emption---Appellate Court by remitting the case for impleadment of subsequent transferee as party to the suit had committed illegality---Revision was accepted and impugned judgment passed by the Appellate Court was set aside and case was sent back to the said court for decision on merit.

Abdul Yamin Khan v. Ashrat Ali Khan and others 2004 SCMR 1270 and Mst. Heemat Jehan and another v. Attaullah Shah 2012 CLC 686 rel.

Gul Diaz Khan Wazir for Petitioner.

Anwarul Haq for Respondents.

Date of hearing: 29th August, 2013.

PLD 2014 PESHAWAR HIGH COURT 29 #

P L D 2014 Peshawar 29

Before Rooh-ul-Amin Khan, J

MIR SAHIB KHAN and others---Petitioners

Versus

GHAZI MUHAMMAD and others---Respondents

Civil Revision Petition No.36-B of 2004, decided on 16th September, 2013.

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

----Art. 117---Defendant's denial to have received money from plaintiff---Effect---Plaintiff would have to prove payment---Illustration.

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

----Art. 129(g)---Best evidence in support of claim available, but not produced in court---Effect---Withholding of such evidence of vital importance would reflect on claimant's case.

----Art. 119---Party alleging existence of a particular fact would have to prove the same.

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

----Art. 163---Oath taken by plaintiff during arguments in support of his claim without an offer to defendant to deny same---Effect---Provision of Art.163 would not apply, if both parties had led evidence---Such unilateral oath could not be termed as an oath under Art.163 of Qanun-e-Shahadat, 1984---Principles.

In the present case, the oath allegedly taken by plaintiff before the trial court was during the course of arguments without any proposal on the part of the defendants, as such cannot be termed an oath under Article 163 of the Qanun-e-Shahadat, 1984. Article 163 provides a proper procedure and mechanism for taking and administering oath to plaintiff and defendant. No doubt, oath envisaged by Article 163 is entailed by the initiative taken by the plaintiff, who takes an oath in support of his claim, but thereafter he is required to submit an application and on his application, the court may call upon the defendant to deny the claim on oath, and even then the court is not precluded to decide the case on merits.

When both the parties have led evidence, then provision of this Article shall not be applied. Any initiative taken by the plaintiff contrary to the provision of Article 163 of the Qanun-e-Shahadat, 1984 shall not burden the defendant and no adverse inference could be drawn against him when the necessary conditions of the oath as enumerated in Article 163 are missing.

The plaintiff has only taken oath during the course of arguments without any offer to defendant to deny it. The unilateral oath taken by the plaintiff in his favour would not be treated as a conclusive piece of evidence as to be given preference over evidence produced by the parties.

A deposition of party on oath in his favour nevertheless remains evidence.

Bashir Ahmad v. Muhammad Luqman 1999 SCMR 378; Muhammad Sharif v. Bashir Ahmad 1987 CLC 2006; Qazi Muhammad Saqib Khan v.Ghulam Abbas and 2 others 2003 MLD 131 and Mirza Khan and others v. Muhammad Ilyas PLD 1991 SC 383 rel.

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

----Art. 2(c)---Deposition of a party on oath in his favour---Validity---Such deposition would never remain evidence.

Bashir Ahmad v. Muhammad Luqman 1999 SCMR 378 rel.

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

----Ss. 115 & 96---Revision before High Court---Judgments of courts below being at variance---Effect---Findings of Appellate Court would be preferred and respected---Exceptions stated.

Where there are conflicting judgments of the two courts below, then the findings of the Appellate Court are to be preferred and respected, unless it is shown to be against the record or it suffers from any misreading or non-reading of evidence or reasons for acceptance of appeal are arbitrary, fanciful or perverse.

Aslam Khan Khattak for Petitioners.

Asghar Ali Khan for Respondents.

Date of hearing: 16th September, 2013.

PLD 2014 PESHAWAR HIGH COURT 35 #

P L D 2014 Peshawar 35

Before Mrs. Irshad Qaiser, J

MUHAMMAD NAZIR---Petitioner

Versus

MUHAMMAD IQBAL and 2 others---Respondents

Writ Petitions Nos.316, 317 of 2008 and 1030 of 2009, decided on 19th September, 2013.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Constitution of Pakistan, Art.199---Constitutional petition---Bona fide personal need of landlord---Agreement of tenancy for specific period---Eviction of tenant on the ground of personal need by landlord---Scope---Ejectment application filed by landlord was disposed of by Trial Court with a direction to tenant to vacate the suit shop within five years---Appellate Court maintained the judgment passed by Trial Court---Contention of the petitioner/tenant was that suit shop was given to him for specific period, therefore landlord could not claim vacation of the shop on the ground of personal need before completion of specified period---Validity---Tenancy was for a particular period, therefore the landlord could not evict the tenant before the expiry of specified period, except on the ground of damage to property, subletting, nuisance but certainly not on the ground of personal need---Findings of courts below in respect of handing over the suit shop within five years was not correct---Constitutional petition was allowed.

2001 YLR 1979; 1984 CLC 3011; PLD 1961 SC 28; PLD 1982 SC 201; 1980 SCMR 41; PLD 1981 SC 246; PLD 1983 SC 342 and PLD 1985 Kar. 624 rel.

Tahir Hussain Laghmani for Petitioner.

Naeed Anwar Khan for Respondents.

Date of hearing: 19th September, 2013.

PLD 2014 PESHAWAR HIGH COURT 41 #

P L D 2014 Peshawar 41

Before Abdul Latif Khan, J

PAINDA KHAN---Appellant

Versus

MUHAMMAD BASHIR---Respondent

Regular First Appeals Nos.84, 110 of 2012 and C.R. No. 423 of 2010, decided on 22nd August, 2013.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3 & S. 35-A---Criminal Procedure Code (V of 1898), S. 476---Institution of summary suit on negotiable instrument---Special cost---Proceedings for making false claim---Double jeopardy---Scope---Contention of defendant was that both the pro-notes were taken as security by the arbitrators from the parties and no cash transaction took place between them---Both plaintiff and defendant filed suits for recovery of money on the basis of pro-notes which were dismissed, however, Trial Court imposed special cost and directed for initiation of proceedings under S.476, Cr.P.C. against the plaintiff---Validity---Both the parties executed pro-notes to each other as a security for arbitration purposes---No cash payment was proved by producing oral or documentary evidence by either party---Pro-notes were not proved as required under the law---Though presumption was attached to negotiable instruments and rebuttal had to be produced but initial burden would lie upon the plaintiff which was lacking in both the present cases---Findings of Trial Court to such effect were not open to exception which were maintained---Ordering proceedings against the person under S.476, Cr.P.C. was discretion of the court who had made wrong claim in the contents of plaint---Circumstances of the case were to be seen---Court had to take extra care and caution to initiate said proceedings---Conduct of both the parties was not up to the mark and they had taken different stances at different occasions---Such conduct of parties would not mean to impose huge special costs and to initiate proceedings under S.476, Cr.P.C. against one of the party---No plausible reasons were given to initiate proceedings against the plaintiff---Importance was to be given to the fact as to whether probability of conviction could be expected and there were reasonable grounds for conviction---No action could be initiated under the law in case of refusal of the plaintiff---Cogent and strong evidence/proof was required to initiate proceedings which was lacking in the present case---Trial Court had ordered the initiation of proceedings on presumptions and conjectures---Imposition of special cost on plaintiff had no support from the available record and same could not be imposed without any rhyme or reason and same amounted to double jeopardy---Plaintiff had been burdened with special cost as well as initiation of proceedings under S.476, Cr.P.C. on account of same allegations---Appeal of plaintiff was partially accepted and findings of Trial Court to the extent of imposition of special cost and initiation of proceedings under S.476, Cr.P.C. were modified.

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

----S. 476---Proceedings for making false claim---Scope---Provision of S.476, Cr.P.C. was directory but not mandatory in nature.

Muhammad Waheed Anjum for Appellant.

Muhammd Iqbal Khan Kundi and Sh. Iftikharul Haq for Respondent.

Date of hearing: 22nd August, 2013.

PLD 2014 PESHAWAR HIGH COURT 45 #

P L D 2014 Peshawar 45

Before Ikramullah Khan, J

Dr. RIAZ KHAN---Appellant

Versus

ABDUR RASHEED and 9 others---Respondents

Regular First Appeal No.249 of 2013, decided on 3rd October, 2013.

Limitation Act (IX of 1908) ---

----Ss. 14 & 5---Suit for compensation---Exclusion of time of proceedings in court without jurisdiction---Scope---"Due delegence" and "good faith"---Period provided for appeal was 90 days---Present appeal had been filed beyond the period of limitation after more than six months and twenty day which was prima facie time barred---Defendant had not disclosed in his application for condonation of delay nor relied on any ground that the delay caused in proceedings before wrong forum was with due diligence and with good faith---Expression "due diligence" and "good faith" did not figure in S.5 of Limitation Act, 1908---Condition prescribed in S.5 of the Act for its applicability was "sufficient cause"---Negligence of defendant was apparent and law did not favour those who went in slumber---Vested rights had accrued to the adverse party in circumstances and which could not be taken away on simple pretext---Defendant had failed to establish that time spent in proceedings before wrong forum was result of misconception of law or facts but he proceeded thereunder due diligence and with good faith---Appeal was dismissed in limine.

Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145 and Khan Shahzada v. Allied Bank Ltd. 2013 PLJ 222(sic) rel.

Mian Shujaat Shah for Appellant.

Nemo for Respondents.

Date of hearing: 3rd October, 2013.

PLD 2014 PESHAWAR HIGH COURT 49 #

P L D 2014 Peshawar 49

Before Rooh-ul-Amin Khan, J

MUHAMMAD AMIN---Petitioner

Versus

MOMIN KHAN and 2 others---Respondents

Criminal Revision Petition No.16-B of 2013, decided on 23rd May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 344---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, common object---Power of Trial Court to postpone or adjourn proceedings---Prosecution, in the present case, had examined seven witnesses, while the complainant, an injured witness, and a witness to the recovery memo, had been abandoned, because of their absconsion, and the case was adjouned for an indefinite period---Validity---Section 344, Cr.P.C., had nowhere provided that case be kept pending and waited for evidence of a fugitive from law, and that too for an indefinite period---Policy of criminal law was to bring accused to justice as speedily as possible, so that, if they were found guilty, they could be punished, and if, they were found innocent, they could be acquitted and discharged---Significant clause of S.344, Cr.P.C., had curtailed the powers of the Trial Court to keep the case pending without passing order of adjournment, or to adjourn the case sine die for an indefinite period---Trial Court could adjourn the trial for good reason, but up to reasonable time---No bar existed against the adjournment from time to time, but same could not be granted at a stretch---Indefinite postponement of a criminal case, was undesirable and was also against the spirit and mechanism provided by S.344, Cr.P.C.---If such practice was encouraged, no session case would see the ray of decision---Any order of the impugned kind, was impossible to be upheld on the ground that witnesses, who had direct relevance with the prosecution case, were not coming forward, because they were absconding from justice in a murder case---Impugned order passed by the Trial Court was set aside---Trial Court was directed to proceed with the case, in strict compliance of S.344, Cr.P.C., in circumstances.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 rel.

Imran Ali Shah for Petitioner.

Ahmad Farooq Khattak, A.A.G. for Respondents.

Date of hearing: 23rd May, 2013.

PLD 2014 PESHAWAR HIGH COURT 53 #

P L D 2014 Peshawar 53

Before Muhammad Daud Khan, J

MUSAFAR---Petitioner

Versus

Mst. LAZ MAHAL BIBI and others---Respondents

Civil Revision Petition No.1291 of 2004, decided on 7th May, 2013.

(a) Islamic Law---

----Gift---Burden of proof---Scope---Party claiming disputed property to have been gifted to him by deceased in his lifetime would be bound to prove the same---Illustration.

2005 SCMR 135; 2000 SCMR 346 and 2011 YLR 2726 rel.

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

----S. 42---Entries in revenue record---Evidentiary value---Revenue record by itself would not be proof of title---Such entries, if challenged at earliest time, would have no authenticity.

----S.42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Dispute between parties over legacy of deceased as his legal heirs---Effect---Limitation would not run against plaintiff for being co-sharer and heir of common predecessor.

Mst. Suban v. Allah Ditta and others 2007 SCMR 635 rel.

Sher Muhammad Khan for Petitioners.

M. Arshad Yousafzai and Shamsher Ali Khan for Respondents.

Date of hearing: 7th May, 2013.

PLD 2014 PESHAWAR HIGH COURT 58 #

P L D 2014 Peshawar 58

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

MUHAMMAD NAWAZ---Appellant

Versus

LAND ACQUISITION COLLECTOR NHA and 7 others---Respondents

Regular First Appeal No.77-B of 2012, decided on 10th June, 2013.

Land Acquisition Act (I of 1894)---

----S. 18---Reference to court---Limitation---Reference application was dismissed by the Referee Court on the ground of limitation---Validity---Referee Court could not go behind the reference and its only job was to resolve the question referred to it by the Collector---Such court was not competent to reject reference on the point of limitation---Appeal was accepted and impugned judgment and decree were set aside and case was remitted back to the Referee Court for decision on merit.

Fazal Karim and 3 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary Muzaffarabad and others PLD 1998 SC(AJ&K) 26; Muhammd Yousaf v. Collector Land Acquisition, District Skardu and 6 others 2007 CLC 1288 and Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and others v. Muhammad Ishaq and others PLD 2004 Azad (J&K) 22 ref.

Shah Nawaz Khan Sikandri for Appellant.

Muhammad Ibrahim for Respondents.

Date of hearing: 10th June, 2013.

PLD 2014 PESHAWAR HIGH COURT 60 #

P L D 2014 Peshawar 60

Before Mian Fasihul Mulk and Yahya Afridi, JJ

Mst. SALMA BIBI and another---Petitioners

Versus

MUHAMMAD IQBAL and 2 others---Respondents

Writ Petition No.3474-P of 2012, decided on 18th September, 2013.

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

----Ss. 5, Sched. & 17---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dower, dowry articles and maintenance allowance---Kabin Nama, proof of---Rigours of proving documents were not applicable to the proceedings before the Family Court---Nikahnama produced by the plaintiff remained un-rebutted by the defendant which could not be ignored by the Appellate Court---Findings of Appellate Court with regard to refusal of maintenance were incorrect---Dower was fifteen tolas of gold out of which four tolas was prompt while remaining was deferred---Plaintiff had acknowledged receipt of three tolas of gold but she was entitled for twelve tolas of gold as dower---Constitutional petition was partially accepted.

Writ Petition No.767 of 2013 rel.

(b) Islamic law---

----Dower---"Prompt" and "Deferred",---Distinction---Amount of dower was usually split into two parts, one was "prompt" which was payable on demand and other was "deferred" which was payable on dissolution of marriage by death or divorce---Where it was not settled at the time of marriage whether dower was prompt or deferred, then according to Shia law the whole dower was prompt but according to Sunni law part was prompt and part was deferred and same would be regulated by custom and in absence of the same, by the status of the parties and the amount of dower settled---Distinction between prompt and deferred dower would disappear and wife would be entitled to the remaining dower whether prompt or deferred in case of dissolution of marriage---Muajjal dower was prompt, immediately and exigible whereas muwajjal was deferred---Wife was entitled to demand so much of her dower as was exigible but she was not entitled during the continuance of marriage to demand the deferred portion of the dower.

Principles of Muhammadan Law by Mulla, S.290(1) and Principles of Muhammadan Jurisprudence by Sir Abdul Rahim quoted.

----Dower---Rights and obligations of parties in case of divorce---Rights and obligations on completion of divorce were; right to contract another marriage, if marriage was consummated, the wife might marry another husband after the completion of her iddat; if the marriage was not consummated, she was free to marry immediately, if marriage was consummated, the husband had four wives at the date of divorce including the divorced wife, he might marry another wife after completion of iddat of the divorced wife; dower would immediately become payable, if marriage was consummated , the wife was entitled to immediate payment of the whole of unpaid dower both prompt and deferred, if marriage was not consummated and amount of dower was specified in the contract, she was entitled to half of such amount, if no amount was specified , she was entitled to a present of three articles of dress.

Principles of Muhammadan Law by Mulla S.336 quoted.

Ijaz Ahmad Malik for Petitioners.

Syed Mushtaq Ali Shah for Respondents.

Date of hearing: 18th September, 2013.

PLD 2014 PESHAWAR HIGH COURT 69 #

P L D 2014 Peshawar 69

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

NASEEBULLAH ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.137-B of 2011, decided on 24th June, 2013.

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

----S. 9(c)---Possessing and trafficking of narcotics---Appreciation of evidence---Both Station House Officer of Police Station, the seizing officer and prosecution witness, who were marginal witness of the recovery memo being star witnesses of the prosecution, had furnished the ocular account of the occurrence---Both had corroborated each other on all material particulars of the incident; such as the mode and manner of reaching of accused at the spot in the motorcar; its chase by the Police party; and recovery of narcotics from the same and had established their presence at the spot at the time of arrest of accused; and recovery from the vehicle driver---Said witnesses were subjected to lengthy and searching cross-examination, but their testimony could not be shattered on material aspects of the case---Chemical Analysis Report with regard to contraband, was positive---Burden of proving that accused were not in possession or knowledge of the contraband in the motor car, was upon accused persons, but they failed to appear and explain the same---Accused persons had furnished different versions regarding their travelling at the odd hours of night, which did not appeal to a prudent mind---Recovery of arms and ammunition from accused had further supplemented the story of prosecution---Plea of substitution and false implication, raised by accused was nothing, but merely an attempt to hide their own guilt---False, fabricated and afterthought defence version, had rightly been rejected by the Trial Court---Accused had failed to attract any circumstance to create doubt in the prosecution case qua his innocence---In view of huge quantity of 3 maunds of backed charas and its price which was in million, question of foisting the same against accused, did not appeal to a prudent mind---No evidence was available to show previous ill-will, grudge, enmity or rancour of accused persons with prosecution witnesses---Mere fact that witnesses were Police Officials, would not discard their testimony because Police Officials, were as good witnesses like others, and their testimony could be relied upon unless and until any enmity or ill-will was proved---No hard and fast rule existed that only private witness would speak the truth---Prosecution had fully proved its case against accused through cogent and confidence inspiring evidence---Trial Court which had properly appreciated the evidence on record, had rightly convicted and sentenced accused---Counsel for accused having failed to point out any illegality or infirmity in the impugned judgment, which could warrant interference, appeal against impugned judgment, was dismissed, in circumstances.

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

----S. 29---Possession of illicit articles---Presumption---Duty had been cast upon the court under S.29 of Control of Narcotic Substances Act, 1997 to presume in a trial that accused had committed the offence, unless contrary was proved.

----Technicalities and minor contradictions with the passage of time---Effect---When conscience of the court was satisfied regarding commission of offence, then the technicalities and minor contradictions, which crept in with the passage of time, could easily be ignored.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Possessing and trafficking of narcotics---Delay in sending samples for analysis---Effect---Investigating Officer was not barred to send the sample beyond 72 hours of the seizure---Control of Narcotic Substances (Government Analysts) Rules, 2001, could not control substantive provisions of Control of Narcotic Substances Act, and Rules were to be applied in such a manner that its operation would not frustrate the purpose of the Act under which said Rules were framed---Failure to follow said Rules, would not render the search, seizure and arrest under Control of Narcotic Substances Act, 1997, an absolute nullity and make entire prosecution case doubtful, except for the consequence, provided in said Rules---Said Rules were directory and not mandatory---Belated dispatch of sample for analysis, would not be fatal to the prosecution case, in absence of any objection regarding the same, having been tampered or manipulated.

Gul Alam v. The State 2011 SCMR 624 rel.

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

----S. 9(c)---Juvenile Justice System Ordinance (XXII of 2000), S.11---Juvenile Justice Rules, 2001, R.6---Possessing and trafficking of narcotics---Minority of accused---Effect---Release of minor accused on probation---Contention of counsel for accused was that accused who at the time of incident was below the age of 18 years, being a juvenile, was entitled to be dealt with under S.11 of the Juvenile Justice System Ordinance, 2000---Validity---Accused though at the time of commission of offence was a juvenile, but at the time of arrest and conclusion of his trial, and passing the impugned judgment of conviction, he had attained the age of 19/20 years---Mere minority or juvenile-ship of accused was not the criteria for grant of relief under S.11 of Juvenile Justice System Ordinance, 2000, in matter of conviction---There could be some minor offences, in which sentence could be normally short, and if the court passed an order of conviction, the beneficial provisions could be exercised in his favour---If, however, accused was charged for a heinous offence and sentenced to life imprisonment, his case could not be treated at par with minor offences---Age, seriousness of the offence, and past record of criminal activities of accused, at the time of conviction, would also be a relevant factor; which would also be adhered to---Juvenile Justice System, which was meant to treat a child accused with care and sensitivity, offering him a chance to reform and settle into the mainstream of society, same could not be allowed to be used as a ploy to dupe the course of justice, while conducting trial; and treatment of heinous offences---Court must be sensitive in dealing with the juveniles, who were involved in cases of serious natures like druglord, murder, gang rape, terrorism, sexual molestation, and host of other offences---Minor/Juvenile accused could never be allowed to abuse the statutory protection and concession/rather involvement in a flagitious crime, must be meted out stringent punishment to discourage the involvement of minors by the people for settling their score through them (Juveniles).

Shahid Nasim Khan Chamkani for Appellant.

Faridullah Khan, D.A.G. for the State.

Date of hearing; 24th June, 2013.

PLD 2014 PESHAWAR HIGH COURT 79 #

P L D 2014 Peshawar 79

Before Mrs. Irshad Qaiser and Waqar Ahmad Seth, JJ

NIGAH HUSSAIN---Petitioner

Versus

CIRCLE OFFICER, ACE, MANSEHRA and others---Respondents

Writ Petitions Nos.942-A of 2012 and 59-A, 109-A, 373-A of 2013 decided on 10th October, 2013.

(a) Constitution of Pakistan---

----Art. 199---Penal Code (XLV of 1860), Ss.217, 218 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Disobeying direction of law by public servant and framing incorrect record by him, abetment---Constitutional petition---Quashing of F.I.R.---Registration of case against the petitioners, appeared to be based on mala fide and result of illegal exercise of jurisdiction and without lawful authority---One of accused persons and respondent were at daggers drawn due to previous criminal litigation between them---When element of 'mala fide', could not be ruled out in F.I.R., High Court was competent to exercise constitutional jurisdiction under Art.199 of the Constitution---Allowing constitutional petitions, F.I.R. against petitioners, was quashed, in circumstances.

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

----S. 173---Submission of challan before the Trial Court---Effect---Once 'challan' within the meaning of S.173, Cr.P.C. was submitted before the Trial Court, it was the Trial Court alone to finally determine the authenticity and validity of any document placed on file after recording evidence of the witnesses; with respect to a particular fact or document; and no parallel investigation, or inquiry was permissible under law.

----Ss. 193, 195 & 476---Giving false evidence by the witness in respect of a particular document and producing forged or fake document---If the Trial Court considered that the evidence given by a witness in respect of a particular document was false; or the document so produced was forged or fake, the Trial Court could proceed against the said witness under S.193, Cr.P.C. by adopting procedure provided in Ss.195 & 476, Cr.P.C.

Muhammad Arshad Awan for Petitioner.

Sardar Nasir Aslam Khan, Aurangzeb Asad and Muhammad Naeem Abbasi, A.A.G. for Respondents.

Date of hearing: 10th October, 2013.

PLD 2014 PESHAWAR HIGH COURT 84 #

P L D 2014 Peshawar 84

Before Ikramullah Khan, J

BAKHT JAMAL and others---Petitioners

Versus

HAKEEM KHAN and others---Respondents

Criminal Revision No.75 of 2000, decided on 20th December, 2013.

(a) Canal and Drainage Act (VIII of 1873)---

----Ss. 70 & 75---Canal and Drainage Rules, Rr.81 & 103---Penal Code (XLV of 1860), S.40---Criminal Procedure Code (V of 1898), Ss.407 & 561-A---Water course, damaging of---Apealable offence---Scope---Trial Court convicted accused persons for damaging water course and sentenced them to pay fine and also to restore water course---Lower Appellate Court allowed the appeal and acquitted all accused persons---Plea raised by petitioners was that no right of appeal was available to accused persons under Canal and Drainage Act, 1873---Validity---No right of appeal had been provided there either by against an order passed by Court under S.70 of Canal and Drainage Act, 1873, or by Rules framed under S.75 of Canal and Drainage Act, 1873---No action or omission mentioned in S.70 of Canal and Drainage Act, 1873, was an offence within the definition of S.40, P.P.C. and on conviction by Magistrate, no right of appeal within the contemplation of S.407, Cr.P.C. was available---High Court in exercise of inherent jurisdiction under S.561-A, Cr.P.C. quashed the order passed by Lower Appellate Court being without jurisdiction and coram non judice---Petition was allowed in circumstances.

The State v. Abdul Qayyum 2011 PCr.LJ 252; Arz Muhammad Umrani v. Atta Muhammad and others 1998 SCMR 633 and Muhammad Abbas v. Mst. Naila Taranum Jamshed 2001 Pcr.LJ 628 ref.

(b) Appeal---

---Right of appeal is purely a creature of statute and unless a right of appeal is clearly and expressly provided by statute, it does not exist nor is there any scope for interfering such right by implication.

----Special law always suppressed the general law---Special law does not expressly apply the provisions of Criminal Procedure Code, 1898, to the proceedings by special forum specially established for particular class or classes of cases or offences.

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

----S. 439---Revisional jurisdiction---Scope---When right of revision is not conferred expressly upon any aggrieved person, it cannot be availed under the concept of general law, through implication.

Muhammad Ajmal Khan for Petitioners

Saeedullah Khan Khalil and Mian Arshad Jan, A.A.G. for Respondents.

Date of hearing: 20th December, 2013.

PLD 2014 PESHAWAR HIGH COURT 92 #

P L D 2014 Peshawar 92

Before Dost Muhammad Khan, C.J. and Assadullah Khan Chamkani, J

Mst. PERVEEN---Petitioner

Versus

CHIEF SECRETARY KHYBER PAKHTUNKHWA, PESHAWAR and 2 others---Respondents

Writ Petition No.2950 of 2011, decided on 22nd October, 2013.

Constitution of Pakistan---

----Arts. 5(2) & 199---Constitutional petition---Compensation for victims of terrorist attacks---Bureaucrats and Government secretaries, duty of---Scope---Militant attack on police station---During such attack one of petitioner's son was killed while another one was injured---Deceased-victim and injured-victim were under the protection of local police, which was their custodian, but failed to protect their lives---State functionaries failed to protect the victims, therefore, Government was bound to compensate petitioner in a reasonable manner---Despite seven hearings of present petition, respondent authorities and officials neither filed a reply nor paid compensation to the petitioner, which was a classic example of detestable lethargic attitude---Provincial bureaucracy was indulging in delaying tactics for no reason, and in majority cases they neither submitted comments/replies within given time nor put in appearance because they never thought of themselves as public servants who were under a constitutional obligation to show obedience to the Constitution within the meaning of Art. 5(2) of the Constitution---Bureaucrats and administrative secretaries, who were public servants, were supposed to jealously safeguard the public interest/public exchequer, but they preferred to enjoy more perks and privileges---Bureaucrats and Secretaries were required to protect interest of Government and public exchequer by submitting replies well within time but they displayed contemptuous attitude towards the court besides taking little care of the public interest---High Court directed that petitioner should be paid more compensation than the one fixed for families of bomb blast victims; that such compensation should be paid to petitioner within one month; that Provincial Chief Secretary should initiate enquiry into the present matter and set at right bureaucrats who were indulging in such practice since long, otherwise they should be sacked or sent out of the Province immediately---Constitutional petition was allowed accordingly.

Nasruminallah for Petitioner.

Naveed Akhtar, A.A.-G. for Provincial Government.

PLD 2014 PESHAWAR HIGH COURT 95 #

P L D 2014 Peshawar 95

Before Mrs. Irshad Qaiser, J

RAHEEL SABIR JADOON---Petitioner

Versus

CHAIRMAN, NAB and others---Respondents

Writ Petition No.347-A of 2013, decided on 19th December, 2013.

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

----Ss. 4 & 9 (a)---Word "person"---Scope---Holder of public office has been intentionally separated from any other person---Not only a holder of public office is amenable to jurisdiction of National Accountability Ordinance, 1999, but any other person who may not be a holder of public office is amenable to jurisdiction of Accountability Court.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Voluntary return of illegal pecuniary advantage---Persuasion by investigating officer---Non-deposit of agreed amount---Petitioner was accused and his grievance was that investigating officer persuaded him to enter into voluntary return of illegal pecuniary advantage and then investigation was authorized against him---Validity---Though accused could be persuaded without pressure or threat to agree on a settlement but subject to provisions of National Accountability Ordinance, 1999; it was neither liability nor duty of investigating officer and NAB authorities to compel accused to enter into voluntary return---Such option was left with sweet discretion of accused, if prior to authorization of investigation against accused had voluntarily come forward and offered to return assets or gains illegally acquired or made by him---In order to facilitate accused, investigating officer took the initiative and he was provided opportunity to settle the matter through voluntary return---As accused did not fulfil requirement of voluntary return and failed to deposit down payment as agreed upon, therefore, NAB rightly passed an order for authorization of investigation---Accused failed to point out any illegality committed by NAB---Petition was dismissed in circumstances.

PLD 2001 SC 607 and PLD 2000 SC 61 ref.

----S. 25---Voluntary return and plea bargaining---Option of accused---Scope---Such is not the option of accused to settle amount, rather it is discretion of Chairman NAB to accept the offer on such terms and conditions as he may consider necessary.

Sardar Asif and Yasir Zahoor Abbasi for Petitioner.

Lal Jan Khattak, DAG and Aslam Khan Standing Counsel for Respondents.

Date of hearing: 19th December, 2013.

PLD 2014 PESHAWAR HIGH COURT 101 #

P L D 2014 Peshawar 101

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

GUL NAIB KHAN---Petitioner

Versus

NAEEM KHAN and 6 others---Respondents

Writ Petition No.32-B of 2011, decided on 18th February, 2014.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987) ---

----S. 24---Constitution of Pakistan, Art. 199---Constitutional petition---Deposit of Zar-e-Soam by the plaintiff as fixed by the Trial Court---Re-fixation of Zar-e-Soam on the application of defendant---Scope---Pre-emptor in compliance of order of Trial Court had made deposit of Zar-e-Soam within time---Entry of mutation was not sufficient to close the proceedings of sale which would require the attestation by the Revenue Officer---Court should provide adequate time (within 30 days) to the plaintiff to make the deposit of Zar-e-Soam but had no discretion to allow or require/direct him to make such deposit beyond the period of 30 days from filing of suit---Thirty days time was the upper and the maximum limit---Court had no power and discretion to enlarge/extend such time when same had been fixed by the statute unless otherwise provided---No bar existed in appropriate cases to extend such time which had been fixed by the court in its discretionary power i.e. within 30 days---Deposit of Zar-e-Soam within 30 days was command of the law---Where court had failed to specify time then it should be deemed that full 30 days period had been allowed to the plaintiff to make the payment---Plaintiff was bound to make the deposit within a period of 30 days from the institution of suit---Suit was filed on 25-4-2009 and on the same date direction was given to the pre-emptor to deposit one-third of the consideration which he had mentioned in the plaint---Defendant had filed written statement on 16-5-2009 but he did not raise objection with regard to amount/consideration for which he had purchase suit property and amount of Zar-e-Soam deposited by the pre-emptor on the direction of court---Defendant should raise objection with regard to Zar-e-Soam on his first appearance---Trial Court was not bound to hold a detail trial and hear the vendee for determination of probable value of suit land and to direct the pre-emptor to make deposit of one-third as additional price amount, however in appropriate case the court could re-fix the probable value and could extend the time/period---Court should require to deposit one-third of the probable value of the property if no sale price was mentioned in the sale deed or in the mutation---Fixation of one-third amount of the sale price was tentative in nature and purpose of the same was to keep a check on frivolous litigation---Actual sale consideration of the suit property was yet to be determined after recording of evidence which would be payable by the pre-emptor in case he had succeeded---Probable value and market price/value had different meanings---Impugned order did not suffer from arbitrariness, mis-exercise, or excess exercise of jurisdiction or material irregularity---Constitutional petition was dismissed in circumstances.

Hasnain Nawaz Khan v. Ghulam Akbar and another PLD 2013 SC 489; Haji Bahadar Hilal v. Engineer Muhammad Ayub 2004 CLC 1259 and Mst. Parveen Akhtar and another v. Muhammad Sattar PLD 2006 Lah. 410 ref.

Haji Zafar Iqbal for Petitioner.

Umar Qayum Khan for Respondents.

Date of hearing: 18th February, 2014.

PLD 2014 PESHAWAR HIGH COURT 108 #

P L D 2014 Peshawar 108

Before Yahya Afridi, J

USMAN---Applicant

Versus

MUSHTAQ AHMAD and another---Respondents

Criminal Misc. Bail Application No.54-P of 2014, decided on 14th March, 2014.

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

----S. 497--- Bail, grant of---Scope---Cross-version F.I.Rs.--- Principles governing grant of bail in cases where parties have lodged cross-F.I.Rs. against each other---Exception to the rule of grant of bail---Applicability.

Principles governing grant of bail in 'cross cases' are as follows:--

(i) To constitute a cross case, mere assertion of a counter case is not enough. Courts are to tentatively assess that the parties, venue and the transaction, prima facie, lead to the result of a single incident narrated differently by the opposing party. The rationale being that frivolous and false counter cases, which can exaggeratedly be set up by the opposite party, do not gain an advantage of the general rule and benefits arising out of a counter case.

Arif Din's case 2005 SCMR 1402; Mushtaq's case 2013 YLR 2046 and Liaqat Ali's case 2013 SCMR 1527 rel

(ii) In cases of counter versions arising from the same incident, one given by the complainant in the F.I.R. and the other given by the opposite party, bail is granted as a rule on the ground of further inquiry for the reason that the question as to which version is correct is to be decided after recording of pro and contra evidence during the trial and also to ascertain as to which party was the aggressor or was aggressed upon and refusal of bail in such cases is an exception.

Fazal Muhammad's case 1976 SCMR 391; Shafiqan's case 1972 SCMR 682 and Khalid Mahmood's case 2013 SCMR 1415 rel.

(iii) Exception to the rule of grant of bail in cases of counter versions or cross cases applied where specific and effective role is attributed to the accused, whereby, prima facie, material on the record clearly suggests the connection of the accused with the commission of the offence.

Nisar Muhammad Wassan's case 1992 SCMR 501 rel.

(iv) In counter versions of opposing parties, not specifying the effective role in causing the fatal injury, leaves room for consideration to render a case within the purview of further inquiry, as provided under section 497 of Cr.P.C.

Jaffar's case 1980 SCMR 784 and Muhammad Aslam's case 1997 SCMR 251 rel.

(v) In cross cases, wherein one party is granted concession of bail, then similar treatment is also rendered to the other side.

Hamza Ali's case 2010 SCMR 1219 and Muhammad Ishaq's case 2013 YLR 1133 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention--- Bail, grant of---Further inquiry---Cross-version cases/F.I.Rs.---Parties involved in the incident, and time and place of occurrence were prima facie the same, which brought the case within the purview of "cross cases"---Fire-arm injuries were sustained by both sides, hence, tentatively assessed the counter version narrated by accused could not be considered a mere fabrication to seek any advantage---Accused had crossed the initial threshold of bringing the case within the purview of a "cross case" and thereby was entitled to be considered for grant of concession of bail, as of right--- Main accused in the cross-F.I.R. who was charged for fire-arm injury had been released on bail, thus denying bail to accused of the present case would not be legally appropriate--- Accused was admitted to bail accordingly.

----S. 497--- Bail application decided by High Court--- Observations rendered by High Court while disposing of bail application--- Relevance--- Such observations were not to be considered during trial of the accused.

Shuaib Mehmood Butt v. Iftekharul Haq 1996 SCMR 1854 rel.

Abdul Latif Afridi and Sajeed Khan Afridi for Applicant.

Ijaz Muhammad and Noman-ul-Haq Kakakhel for the Complainant.

Syed Qaiser Ali Shah, A.A.G. for the State.

Date of hearing: 14th March, 2014.

PLD 2014 PESHAWAR HIGH COURT 113 #

P L D 2014 Peshawar113

Before Waqar Ahmad Seth, J

Syed MUBASHIR HUSSAIN SHAH---Petitioner

Versus

Syeda SALMA BATOOL KAZMI and others---Respondents

Writ Petition No.40-A of 2012, decided on 25th February, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of properties mentioned in Col. No.17 of Nikahnama---Jurisdiction of Family Court---Scope---Properties were given to the wife at the time of marriage of parties but suit for recovery of same was not maintainable before the Family Court---Wife was required to file ordinary civil suit for recovery of such properties---Judgments and decrees of both the courts below were set aside to the extent of recovery of properties mentioned in Col. No.17 of Nikahnama whereas remaining judgments and decree were maintained---Wife would be at liberty to seek recovery of properties mentioned in Col. No.17 of Nikahnama by filing ordinary civil suit---Constitutional petition was accepted in circumstances.

Muhammad Akram v. Mst. Hajra Bibi and 2 others PLD 2007 Lah. 515 and Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 rel.

Tasleem Abbasi for Petitioner.

Qazi Zahir for Respondents.

Date of hearing: 25th February, 2014.

PLD 2014 PESHAWAR HIGH COURT 116 #

P L D 2014 Peshawar 116

Before Rooh-ul-Amin Khan, J

ATTIQ ALI---Petitioner

Versus

STATE and others---Respondents

Criminal Miscellaneous (QP) No.38-B of 2011, decided on 11th July, 2013.

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

----Ss. 561-A, 169 & 173---Penal Code (XLV of 1860), Ss.337-F(iv), 452, 148 & 149---Causing Mudihah, house trespass after preparation for hurt, assault or wrongful restraint---Quashing of action of Police, petition for---Powers of Investigating Officer---Petitioner/complainant had sought quashing of action of Police, whereby respondent/accused was straightaway released/discharged; and name of accused was deleted/omitted from the challan---Validity---Accused was directly charged in the F.I.R. for thrashing the complainant and his wife---Trial Court was to determine the role of accused and his criminal liability, after recording evidence---Investigating Officer or Incharge of Police Station, had been empowered under S.169, Cr.P.C., only to release an accused on bail by obtaining his personal bond, if it was found that the evidence against accused was deficient, or there were no reasonable grounds to justify the connection of accused with offence---Theme of S.169, Cr.P.C., did not permit Investigating Officer to evaluate defence evidence of an accused; and prefer it over the direct evidence collected by prosecution, for declaring innocence of accused---In the present case, the only evidence i.e. plea of alibi had been considered by the Investigating Officer; and on the strength of certain affidavits accused was exonerated and acquitted instead of release on bail---Act of Police, was highly deplorable, which could not be countenanced on any ground---Station House Officer of Police Station concerned without caring about the limits of his powers and the nature of accusation in the case, released/discharged accused; and that too without his arrest; S.H.O., in circumstances, had flagrantly misused legal provisions of S.169, Cr.P.C. on his own whims and wishes in a haphazard manner, abusing his power---Action of S.H.O., was set aside, in circumstances.

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

----Ss. 169 & 173---Release of accused when evidence deficient---Power of Investigating Officer---Law had not given unfettered powers to the Investigating Officer to even release an accused on bail without assigning any reason---If that tendency was encouraged, then almost all accused in the criminal cases would come with a defence plea; and the Station House Officer or Investigating Officer, would acquit and exonerate them without sending their cases to competent court of law---Weighment and evaluation of the evidence, was the sole job of the court and not of the Police---Section 169, Cr.P.C., though had empowered the Officer Incharge of the Police Station; or the Investigating Officer to release accused on executing his bond with or without sureties, when there was no sufficient evidence, or reasonable ground or suspicion to justify the forwarding of accused to the Magistrate but S.H.O. had not been empowered to acquit/exonerate accused from the charges---Release of an accused under S.169, Cr.P.C., was after confirmation of the action of the Investigating Officer; and uptill discharge or order of Magistrate as provided in S.173, Cr.P.C.---When a person was arrested and detained by the Police, he could be released on execution of a bond, with or without sureties by the Investigating Officer, when he would find no sufficient evidence, no reasonable ground or no suspicion to justify for his forwarding to Magistrate; and it would be the duty of concerned officer to report all these facts, by placing his name in column No.2 of the report under S.173, Cr.P.C. which powers would also remain open to judicial scrutiny.

----S. 169---Words 'custody' and 'release' used in S.169, Cr.P.C.---Meaning and scope---Word "custody" generally would mean a state of being confined, detainment, detention or holding by the Police---Word 'release', would mean to free or liberate, to let go, to discharge, unfasten, unfetter etc.---Release, in criminal legal terminology, would mean to set free from restraint, confinement, prison, Jail, custody of Police---For release, a person must be in custody of the Police and without arrest or custody, there would be no order of release or discharge.

Muhammad Rashid Khan (Dirma Khel) for Petitioner.

Younas Ali Shah for the State.

Faridullh Khan, DAG for Official Respondents.

Date of hearing: 11th July, 2013.

PLD 2014 PESHAWAR HIGH COURT 122 #

P L D 2014 Peshawar 122

Before Asadullah Khan Chamkani and Muhammad Daud Khan, JJ

HAZRAT ALI SHAH---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.213 of 2012 with Murder Reference No.10 of 2012, decided on 7th November, 2013.

(a) Administration of justice--

----Mandatory provision of law---Effect---If such provision for exercise of jurisdiction is not fulfilled then entire proceeding becomes coram non judice, illegal and without jurisdiction.

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

----S.295-C---Use of derogatory remarks in respect of the Holy Prophet (p.b.u.h.)---Appreciation of evidence---Derogatory remarks---Proof---Accused was convicted by Trial Court and was sentenced to death---Validity---No Muslim could be convicted on the charge under section 295-C, P.P.C. and sentenced to death when he had clearly denied the charge and claimed that he was true Muslim and could not even think of such an act---Accused, in the present case, could not be convicted as majority of prosecution witnesses denied presence of one another on the spot at the time of occurrence---No mention of ages of prosecution witnesses were recorded to ascertain their veracity---Evidence produced by prosecution was incredible and not worthy of reliance for conviction on a capital charge---High Court set aside conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed in circumstances.

Abdul Razzaq v. The State PLD 2005 Lah. 631; Mst. Sardaran Bibi v. The State 2007 PCr.LJ 342 and Dilshad Hussain v. the State 2003 PCr.LJ 206 ref.

Gauhar Ali Khan for Appellant.

Muhammad Javid, Deputy Advocate-General for the State.

Date of hearing: 7th November, 2013.

PLD 2014 PESHAWAR HIGH COURT 127 #

P L D 2014 Peshawar 127

Before Nisar Hussain Khan and Musarrat Hilali, JJ

MIAN KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.507-P of 2012, decided on 1st October, 2013.

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

----S. 11---Release on probation---Discretion of Juvenile Court---Scope---Discretion had been vested in the Juvenile Court to release a juvenile on probation, or to send him to borstal institution---Juvenile Court could reduce the period of probation or imprisonment in case the court was satisfied that further imprisonment or probation was necessary---No absolute duty was cast on the Juvenile Court to release the convict in all circumstances on probation---Discretion, vested in the court, was to be exercised justly, fairly, honestly and with all reasonableness and sound application of judicial mind---Court was required to consider all attending circumstances of the case including the behaviour, conduct, aptitude and antecedents of the juvenile convict---Vesting of discretion did not mean release of a juvenile convict in all circumstances, regardless of pre-conditions---Had it been the intention of the Legislature to exercise said discretion in such an arbitrary manner, it could have easily inserted the word "shall" in S.11 of Juvenile Justice System Ordinance, 2000 leaving no room of assessment with the court.

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

----S. 11---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking narcotics---Releasing accused on probation---Discretion of Juvenile Court---Juvenile Court in its judgment found the convict of 20 years of age at the time of his arrest---Convict was also found in possession of his computerized National Identity Card which could only be issued on attaining the age of 18 years---On the basis of report of Standing Medical Board, convict was around 18 years, and he was referred to the Juvenile Court for trial---Case was registered against convict in 2010 when he was found at the border line of juvenility, whereas at the moment he was no more juvenile---Section 11(b) of the Juvenile Justice Ordinance, 2000, squarely copes with such a situation, stipulating that a child offender could be sent to borstal institution, until he attained the age of 18 years, or for the period of his imprisonment, whichever was earlier---Said statutory provision was clear manifestation of the intention of the Legislature that on attaining the age of 18 years, convict/juvenile, was no more entitled to any such leniency, as he lost his status of juvenile accused in such eventuality---Firstly, release of juvenile convict on probation was a discretionary matter only to be decided by the Juvenile Court, and secondly, the Juvenile Court could not exercise such discretion on extinguishment of the status of the convict as juvenile---Trial Court had turned down the plea of convict on the same ground which was in accordance with law and within the parameters of S.11 of Juvenile Justice System Ordinance, 2000.

----S. 11---Release on probation---Jurisdiction of Juvenile Court---Scope---Court, while exercising its discretion, would take into account, as to whether crime so committed by the juvenile was accidental, or culmination of compulsion of circumstances faced by him, or was a planned and intentional act and that whether his crime was against a particular person, his enemy or the whole society---When Juvenile Justice System Ordinance, 2000, was visualized in its entirety, it reflected that it had classified the juveniles into two categories: the one below 15 years of age and other above than that---Said two groups had been differently treated by the Ordinance itself---Clause (b) of S.11 of Juvenile Justice System Ordinance, 2000 took away the vested discretion of court when juvenile would reach the age of 18 years---Proviso to subsection (7) of S.11 of Juvenile Justice System Ordinance, 2000, had put fetters on grant of bail to child of the age of 15 years or above, even on statutory ground, if there were reasonable grounds to believe that such child was involved in an offen ce which was serious, heinous, gruesome, brutal, sensational in character, or shocking to public.

(d) Interpretation of statutes---

----Criminal Law---While interpreting statute on criminal law, every endeavour was to be made to resolve discretionary powers in favour of accused, but it was important that; such interpretation should not be blown out of proportion, culminating into startling consequences of anarchy and chaos; confronting, the country due to lawlessness---Such exercise could not be undertaken, in disregard of very object of putting in place the penal laws, lest it could defeat their purpose.

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

----Preamble, S.9(c)---Possessing and trafficking narcotics---Object of Control of Narcotic Substances Act, 1997---Discretion of court---Scope---Control of Narcotic Substances Act, 1997 had been enacted to curb the menace of trafficking of narcotics---Involvement of ladies and juvenile, in the said business had become order of the day, as they could easily earn benefit of their gender and tender age---Mandatory remedies and concessions accorded by the law could not be withheld---While exercising discretionary power, regard must be had to the consequences, ensuing therefrom---Courts were required to strike the balance, as future of the whole generation could not be sacrified at the altar of unwarranted concession to a drug trafficker---Impugned judgment of the Trial Court, whereby accused was convicted and sentenced, could not be interfered with, in circumstances.

Noor Alam Khan for Appellant.

Said Rehman for the State.

Date of hearing: 1st October, 2013.

PLD 2014 PESHAWAR HIGH COURT 132 #

P L D 2014 Peshawar 132

Before Mian Fasih-ul-Mulk, C.J.; Mazhar Alam Khan

Miankhel, Yahya Afridi, Qaiser Rashid Khan and Malik Manzoor Hussain, JJ

ABDUL BARI and 2 others---Petitioners

Versus

DIRECTOR, LIVESTOCK, DAIRY DEVELOPMENT, FATA and 2 others---Respondents

Writ Petition No.1741-P of 2012, decided on 7th April, 2014.

Per Mian Fasih-ul-Mulk, C.J.; Mazhar Alam Khan Miankhel, Qaiser Rashid Khan and Malik Manzoor Hussain, JJ agreeing.

(a) Constitution of Pakistan---

----Art. 246---Federally Administered Tribal Areas (FATA)---Governance system and legal history of FATA stated.

(b) Constitution of Pakistan---

----Arts. 212 & 247(7)---Civil service---Employees of Federally Administered Tribal Areas (FATA) Secretariat, its Line Departments and subordinate offices---Status of---Bar contained under Art. 247(7) of the Constitution---Scope---All the employees of FATA Secretariat, its line departments and subordinate offices were civil servants, whether on deputation from Provincial Government to the Federal Government or appointed by the Federal Government, either on temporary or permanent or contract basis---Bar contained in Art. 247(7) of the Constitution would not apply to such Government servants because of their mere posting in the tribal areas, as a special forum for the redressal of their grievances was provided under Art. 212 the Constitution.

Civil Petition No.31-P of 2006 and I.C.A. No.191 of 2012 ref.

----S. 86-A---Constitution of Pakistan, Arts. 247(7) & 199---Person illegally removed from settled area to the tribal area by political authorities---Jurisdiction of High Court---Scope---If a person was illegally removed from the settled area to the tribal territory by the political authorities, the High Court could entertain the matter, if the procedure as laid down in S. 86-A, Cr.P.C had not been fulfilled.

(d) Constitution of Pakistan---

----Arts. 247(7) & 199---Frontier Crimes Regulation (III of 1901), Regln.55A---Criminal Procedure Code (V of 1898), S.86-A---Jurisdiction of High Court in relation to Federally Administered Tribal Areas (FATA)---Scope---FATA Tribunal had powers similar to those of the High Courts---In case, the dispute amongst tribal persons arose within the tribal territory and the same was decided under the provisions of Frontier Crimes Regulation, 1901 up to the level of Tribunal, in that case jurisdiction of High Court would not extend---If the cause of action had arisen/accrued in the settled area but the proceedings had been carried out by the political authority within FATA, then the High Court had the jurisdiction to entertain the matter---If the cause of action had arisen in FATA between a person belonging to the settled area and the person was arrested within the territorial limits of the High Court and removed to tribal area without fulfilment of the requirements of S.86-A, Cr.P.C, then the High Court could exercise constitutional jurisdiction in the matter.

(e) Constitution of Pakistan---

----Arts. 247(7) & 199---Contract between Government and private party for carrying out work in Federally Administered Tribal Areas (FATA)---Dispute---Jurisdiction of High Court in relation to such contract---Scope---With respect to work/arising contractual obligations in FATA between Government functionaries and private persons, the case could be entertained by the ordinary courts of Khyber Pakhtunkhwa Province, if the tenders were opened in the settled area; the contract was signed in the settled area and money was also paid from the Government exchequer in the settled area---In such a case part of action would accrue in the settled area and part of action in the tribal area---Conversely, if the whole process was completed within the tribal area, then the ouster clause in the Constitution [Art. 247(7)] would come into play.

(f) Constitution of Pakistan---

----Arts. 247(7) & 199---Frontier Crimes Regulation (III of 1901), Preamble---Constitutional petition---Federally Administered Tribal Areas (FATA)---Ouster of jurisdiction of Supreme Court and the High Court in relation to FATA---Denial of fundamental rights to people belonging to FATA---Problems arising because of Frontier Crimes Regulation, 1901 identified---High Court advised the Parliament through Federation for making suitable amendments to Art.247(7) of the Constitution.

High Court observed that people of FATA were being denied their Fundamental Rights and identified the following problems in the Frontier Crimes Regulation, 1901 and advised the Parliament to make suitable amendments to Art.247(7) of the Constitution:

Though the Constitution guaranteed fundamental human rights to all its citizens, the people of tribal agencies were at the mercy of one person, the Political Agent. He was (not only) the administrative head, (but) in charge of the development work, and could (also) prosecute anyone and pass judgments as he deemed fit.

The colonial system was characterized by minimum state penetration and aimed only at ensuring security for roads and government posts. The Jirga, which is the traditional Pashtoon Council of Elders, was adapted to work as an intermediary between the State and the predominantly Pashtun tribal population because the Frontier Crimes Regulations only dealt in crimes against the State for which the Political Agent possessed absolute power. Although such administrative system still existed today, (but) most of the socio-economic realities, along with the geo-strategic environment, had fundamentally changed, thus severely limiting the effectiveness of such system.

Under the Frontier Crimes Regulation, 1901, citizens (of tribal areas) were deprived of the right to appeal, right to legal representation and the right to present reasoned evidence. Collective punishment was provided in Frontier Crimes Regulation, 1901, which was imposed on anyone in the tribal areas for a crime committed by him or her relative, spouse, or even any other person from the same tribe and area. The Political agent or his Deputy, the Assistant Political Agent, enjoyed unbridled powers, both executive and judicial. There was no regulatory mechanism to check misuse of power by the political agent which often resulted in serious human rights violations. The suspects were tried by a tribal jirga or Council which submitted its recommendations regarding conviction or acquittal to the Political Agent. The Political Agent made a decision regarding conviction or acquittal and was not bound by the jirga's recommendations. The orders of the Political Agent could not be challenged before the higher courts. In effect, there was virtually no separation of the judiciary from the executive in FATA.

Summunder v. State PLD 1954 SC 228 ref.

High Court observed that it was necessary to make an advice to the Parliament through Federation for making suitable amendments in Art.247(7) of the Constitution so that the people of FATA could invoke the jurisdiction of the High Court or of the Supreme Court in case of infringement of their fundamental rights, which although were available to them under the Constitution as citizens of Pakistan but could not be availed because of the bar contained in Art.247(7) of the Constitution.

Constitutional petition was disposed of accordingly.

(g) Constitution of Pakistan---

----Art. 8---Inconsistency between two provisions of the Constitution---Such inconsistency could only be resolved by the Majlis-e-Shoora (Parliament).

Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595; Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379 ref.

Per Yahya Afridi, J; agreeing with Mian Fasih-ul-Mulk, C.J. but outlining various legal and constitutional options available with the President and the Parliament to ensure that Fundamental Rights of the people of FATA were made meaningful by enforcement of the same in a competent judicial forum.

(h) Constitution of Pakistan---

----Art. 246 & 247---Frontier Crimes Regulation (III of 1901), Preamble---Federally Administered Tribal Areas (FATA)---Historical, social and customary features of FATA--- History of legal systems and reforms in FATA traced.

(i) Frontier Crimes Regulation (III of 1901)---

----Regln. 55A---Federally Administered Tribal Areas (FATA)---FATA Tribunal---Scope---Not a judicial Forum---Composition of FATA Tribunal formed under the Frontier Crimes Regulation, 1901 did not fulfil the minimum constitutional requirement of a judicial forum.

Mehram Ali's case PLD 1998 SC 1445 and Chahal v. The United Kingdom (1996) 23EHRR 413 ref.

(j) Constitution of Pakistan---

----Preamble & Art. 2A---Organs of the State---Executive, Legislature and Judiciary---Trichotomy of power, principle of---Scope---Under the Constitution, each organ of the State; Executive, Legislative and the Judiciary had been created and provided their specific sphere of functions, duties and obligations---Principle of Trichotomy of Power, was engrained in the Constitution to ensure that there was a balance between the three organs of the State---Maintaining balance of Trichotomy of Power, was in fact, the "basic structure" of the Constitution---Judiciary had to ensure that the two other organs did not exceed their respective defined roles assigned under the Constitution, in order to maintain constitutional harmony.

Syed Masroor Ahsan's case PLD 1998 SC 823; Fauji Foundation's case PLD 1983 SC 457; Mrs. Benazir Bhutto's case PLD 1989 SC 66; Dr. Mobashir Hassan's case PLD 2010 SC 265; Tariq Aziz-ud-Din's case 2011 PLC (C.S.) 1130; Watan Party's case PLD 2011 SC 997; Dossani Travels'cases 2013 SCMR 1749; PLD 2014 SC 1 and Wukala Mahaz's case 2014 SCMR 111 ref.

(k) Constitution of Pakistan---

----Arts. 192(5), 199, 246 & 247---Frontier Crimes Regulation (III of 1901), Regln. 55A---Constitutional petition---Federally Administered Tribal Areas (FATA)---Fundamental Rights of people of FATA---Various legal and constitutional options outlined by the High Court, which were available with the President and the Parliament, to ensure that fundamental rights of the people of FATA were made meaningful by enforcement of the same in a competent judicial forum.

High Court outlined the following legal and constitutional options, which were available with the President and Parliament, to ensure that Fundamental Rights of the people of FATA were made meaningful by enforcement of the same in a competent judicial forum:

(i) Amend Sub-Article (7) of Article-247 of the Constitution.

Appropriate amendments be introduced in Art.247(7) of the Constitution.

(ii) Cessation of whole or part of Tribal Area.

The President may, while exercising his authority provided under Art.247(6) of the Constitution, order to cease whole or part of FATA to be Tribal Area, with such incidental and consequential provisions as appear to the 'President to be necessary and proper. This option would require the approval of the Tribal Jirga. In case this option was successfully carried out, the whole or part of Tribal Area would either have to merge in another Province or lead to the creation of a separate province.

(iii) Extension of Jurisdiction to High Court.

The Parliament may extend the jurisdiction of any High Court to matters relating to FATA under Art. 192(5) of the Constitution.

(iv) Amendment in subsection (2) of section 55A of FCR.

The present composition of FATA Tribunal comprised of "Three Wise Men", headed by a civil servant, with two members; one being conversant with Rewaj and the other having the qualification of being a Judge of the High Court. In contrast, FCR Reforms Committee (2005-2009) headed by Justice (R) Ajmal Mian had recommended, inter alia, that the Tribunal be headed by a Judge of the High Court. The recommendation of said Committee could be adopted and appropriate amendment be made in S.55A of Frontier Crimes Regulation, 1901.

Constitutional petition was disposed of accordingly

(l) Constitution of Pakistan---

----Arts. 246, 247 & 199---Frontier Crimes Regulation (III of 1901), Preamble---Constitutional petition---Judiciary advising the Parliament through the Executive in matters of "policy"---Constitutionality---Federally Administered Tribal Areas (FATA)---Denial of Fundamental Rights to people belonging to FATA---Remedial steps/changes/ amendments to be made by the Executive and Parliament in regard to FATA---"Matter of policy"---Scope---Question as to what steps were to be taken by the Executive and the Parliament to ensure that people of FATA had a legal and judicial forum to enforce and execute their Fundamental Rights in a meaningful manner, was a "matter of policy" and thus should best be left to the wisdom and decision of the other two organs (i.e. the Executive and Legislature)---Any 'advice' by the judiciary in such regard with specific steps entailed therein would render the same to loose its significance and transform into a 'direction', which if made to the Parliament through the Executive would be contrary to the spirit of the Constitution---Constitutional petition was disposed of accordingly.

Sadullah Khan Marwat for Petitioners.

Abdul Latif Yousafzai, A.G., Manzoor Khan Khalil, D.A.G., Syed Attique Shah, Addl. Attorney General of Pakistan for the Government.

M. Zahoorul Haq, Qazi Muhammad Anwar, Abdul Latif Afridi, Tariq Khan Afridi, Wali Khan Afridi and Imtiaz Ali as Amici Curiae.

Dates of hearing: 11th, 17th, 19th, March, 4th April, 2014.

PLD 2014 PESHAWAR HIGH COURT 170 #

P L D 2014 Peshawar 170

Before Yahya Afridi, J

MUHAMMAD SHERAZ---Petitioner

Versus

CHIEF SECRETARY, GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Respondents

Writ Petition No.648-A of 2012, decided on 17th January, 2013.

(a) West Pakistan General Clauses Act (VI of 1956)---

----S. 7---Revival of an enactment---Purpose to be stated expressly---Scope---One Ordinance was repealed by Act which was in turn repealed by another Ordinance---Effect---Said Ordinance would not be revived by repeal of the Act as the other/second Ordinance which had repealed the Act, did not expressly revive the provisions of first Ordinance.

Amir-un-Nisa Begum v. Mehboob Begum AIR 1955 SC 352 and India Tobacco Company Limited v. Commercial Tax Officer AIR 1975 SC 155 rel.

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

----S. 6---Constitution of Pakistan, Art.264---Implied repeal, principle of---Applicability---Implied repeal can only be inferred, when latter law overrides earlier law and is totally inconsistent with earlier law and the two cannot stand and co-exist together.

Share Gold v. Tanner 2002 76 ALRJ 808; Saraswati v. The Queen 1991 172 CLR 1; Interpretation of Statutes, 10th Edn. By N.S. Bindra and Hallsbury's Law of England rel.

----Ss. 3 & 53---Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Service Ordinance (XLVII of 2002), Ss.2(k), 3 & 34---Khyber Pakhtunkhwa Medical and Health Institutions Reforms Act (XII of 1999), Ss.2(f), 3 & 19---Ayub Medical College (Board of Governors) Ordinance (XIX of 1978), S. 1----West Pakistan General Clauses Act (VI of 1956), S. 7---Constitution of Pakistan, Arts.199 & 264---Constitutional petition---Implied repeal---Past and closed transaction---Contention of petitioner was that after revival of Ayub Medical College (Board of Governors) Ordinance, 1978, any action taken by Management Council established under Khyber Pakhtunkhwa Medical and Health Institution and Regulations of Health Care Service Ordinance, 2002 was illegal---Validity---Provisions of Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Service Ordinance, 2002, were not restricted to 'medical institutions', such as, Ayub Medical College but also extended to other institutions, such as private hospitals, nursing homes, maternity home clinics, laboratories and blood banks---Provisions of Khyber Medical University Act, 2006, were restricted to 'Medical Institutions' such as Ayub Medical College and did not provide any provision for dealing with private hospitals, nursing homes and others, which remained within the domain of Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Service Ordinance, 2002---Provisions of Khyber Medical University Act, 2006, did not 'take away' entire subject matter of Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Service Ordinance, 2002---Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Service Ordinance, 2002, was not impliedly repealed by Khyber Medical University Act, 2006---High Court declared that S.53 of Khyber Medical University Act, 2006, could not repeal Ayub Medical College (Board of Governors) Ordinance, 1978, when the same had already stood repealed by Khyber Pakhtunkhwa Medical and Health Institutions Reforms Act, 1999---Ayub Medical College (Board of Governors) Ordinance, 1978, was not non-existent---Notifications dated 3-7-2009 had no legal application to Ayub Medical College---Actions taken and orders passed in regulating and carrying on affairs and management of Ayub Medical College under Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Service Ordinance, 2002, stood protected under principle of 'past and closed transactions' unless the same were varied, set aside or altered in accordance with law---High Court directed the authorities to take all steps to ensure constitution and functioning of Board of Governors of Ayub Medical College, as provided under Ayub Medical College (Board of Governors) Ordinance, 1978 and Regulations of 1980---Petition was allowed accordingly.

Farzana Rasool and 3 others v. Dr. Muhammad Bashir and 3 others 2011 SCMR 1361; Muhammad Afzal v. Government of Balochistan 1995 PLC (C.S.) 567; Moin Nawaz Jang; v. Riaz Ahmad PLD 1985 Kar. 530 and Muhammad Jamil v. Provincial Government 2007 PLC (C.S.) 145 ref.

Khudai Dad's case PLD 1997 Quetta 69; Tika Iqbal Muhammad Khan's case PLD 2008 SC 615; Zafar Ali Shah's case PLD 2000 SC 869; Col. (R) Syed Mukhtar Hussain v. Chairman, Federal Land Commission, Islamabad and 3 others 2004 CLC 1019; Naheed Fatima v. Syed Amir Azam Rizvi and others PLD 1987 Kar. 670 and Muhammad Afzal v. Province of Sindh and others 2000 YLR 1395 rel.

(d) Interpretation of statutes---

----Legislature is presumed to know law, judicial decisions and general principles of law.

Sutherland, in "Statutory Constructions" and Mollwo, March and Co. v. Court of Wards LR IA Supplement 86 ref.

(e) Interpretation of statutes---

----Court, duty of---Scope---Court cannot add or delete words to a statute or give it an effect, so as to expand or restrict its meaning---Courts first give ordinary meaning to words used in statute and if such meaning results in an absurdity or irrationality or leads to a view completely contrary to the object of statute then Courts are to apply various principles of interpretation of statutes developed and recognized in law.

Interpretation of Statutes 10th End. By N.S. Bindra rel.

(f) Words and phrases---

----"Never"---Defined.

Oxford Dictionary and Merriam Webster Dictionary ref.

Fawad Saleh for Petitioner.

Muhammad Nawaz Khan Swati, A.A.G. and Faheem Khan for Respondents.

Date of hearing: 17th January, 2013.

PLD 2014 PESHAWAR HIGH COURT 186 #

P L D 2014 Peshawar 186

Before Nisar Hussain Khan and Waqar Ahmad Seth, JJ

FAZAL KARIM---Petitioner

Versus

POLITICAL AGENT KHYBER AGENCY and 4 others---Respondents

Writ Petition No.633-P of 2012, decided on 18th May, 2014.

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

----S. 9(c)---Constitution of Pakistan, Arts. 199 & 247---Constitutional jurisdiction---Federally Administered Tribal Areas---Bar on trial---Scope---Possession of narcotics---Trial of offence under Control of Narcotic Substances Act, 1997 by Political Agent---Scope---Offence under the Control of Narcotic Substances Act, 1997 was triable by the authority who was competent to try offence under the Frontier Crimes Regulation---Offence under the Control of Narcotic Substances Act, 1997 could competently be tried by Political Agent and appeal/revision lay to the same hierarchy---Jurisdiction of High Court had been ousted in the matters of Federally Administered Tribal Areas---Neither the High Court nor the Supreme Court might entertain any matter pertaining to the tribal areas---Constitutional petition was dismissed, in circumstances.

Additional Chief Secretary (FATA) and others v. Piayo Noor 2014 SCMR 17 ref.

Additional Chief Secretary (FATA) and others v. Piayo Noor 2014 SCMR 17; Qaum Bangash and others v. Qaum Turi and others 1991 SCMR 2400 and Shaukat Khan v. Assistant Political Agent, Landi Kotal, Khyber Agency and others PLD 2002 SC 526 rel.

Haji Sanaullah Khan for Petitioner.

Qaiser Ali Shah, A.A.G., S. Attiq Shah, DAG and Iqbal Ahmad Durrani for Respondents.

Date of hearing: 8th May, 2014.

PLD 2014 PESHAWAR HIGH COURT 189 #

P L D 2014 Peshawar 189

Before Shah Jehan Khan Akhundzada, J

SOHAIL---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.89-P of 2013, decided on 4th October, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 512 & 265-K---Qanun-e-Shahadat (10 of 1984), Art.47---Penal Code (XLV of 1860), Ss.302, 324 & 34---Qatl-e-amd, attempt to commit qatl-e-amd, common intention---Trial Court releasing accused on bail and adjourning the case sine die due to abscondence/non-appearance of complainant for recording his statement-Legality---Statement of complainant/material witness recorded in proceedings under S.512, Cr.P.C. transferred to judicial file of the case---Scope---Accused absconded after commission of offence and in his absence proceedings against him were initiated and he was also challaned under S.512, Cr.P.C---During proceedings under S.512, Cr.P.C statements of prosecution witnesses including complainant and his brother were recorded and accused was declared as a proclaimed offender---During trial of accused, complainant allegedly killed minor children of accused and then absconded---Accused there after surrendered before court and material statements of almost all prosecution witnesses were recorded, and only statements of the complainant and his brother, were left since they had absconded---Accused filed an application under S.265-K, Cr.P.C before Trial Court seeking his acquittal, however Trial Court released him on bail and adjourned the case sine die till complainant and his brother (prosecution witnesses) appeared before the court to record their statements---Validity---Without recording the statements of complainant and his brother, who were material witnesses in the case, Trial Court could not pass any justifiable order in the case---Complainant and his brother, did appear in the proceedings against accused under S.512, Cr.P.C., who at that time had gone into hiding---Statements of the complainant and his brother recorded during the proceedings under S.512, Cr.P.C. could be transferred to High Court suo motu, and even otherwise Public Prosecutor was bound to apply and request for transfer of such statements on the judicial file before the Trial Court under Art.47 of Qanun-e-Shahadat, 1984 read with S.512, Cr.P.C.---Such proceedings were not carried out either by the Trial Court or by the Public Prosecutor---Release of accused on bail and adjourning the case sine die was totally illegal, as no provision existed in the Criminal Procedure Code, 1898 to adjourn the criminal case sine die---Trial Court had to observe and follow provisions of S.265-K, Cr.P.C.---Public Prosecutor, was directed to make request to the Trial Court to transfer the statements of complainant and his brother/material witnesses recorded in the proceedings under S.512, Cr.P.C. to the judicial file of the case, and then close the case of prosecution---Case was remanded to the Trial Court to decide the same on merits---Bail granted to accused, was also cancelled and he was ordered to be taken into custody, in circumstances.

Altaf Khan for Petitioner.

Arshad Ahmad Khan, Dy. A.-G. for the State.

Date of hearing: 4th October, 2012.

PLD 2014 PESHAWAR HIGH COURT 194 #

P L D 2014 Peshawar 194

Before Mrs. Irshad Qaiser and Waqar Ahmad Seth, JJ

Mst. SHAZIA HAIDER---Petitioner

Versus

GUL ISLAM---Respondent

Writ Petition No.340 of 2010, decided on 28th November, 213.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Dissolution of marriage on the basis of Khula'---Scope---Contention of wife was that she had not claimed dissolution of marriage on the basis of Khula'---Validity---Wife had sought dissolution of marriage on the ground of cruelty and torturous behavior of husband but same had not been pointed out by her---Cruelty had not been proved through oral or documentary evidence---Wife had developed severe hatred and she was not in a position to live with the husband---Trial Court had rightly found that there was no possibility for the parties to live together within the limits ordained by God and wife was entitled to the dissolution of marriage through Khula'---When cruelty was not proved and wife was not ready to live with the husband, there was no other option for the Family Court but to dissolve marriage on the basis of Khula'---Wife had not used word "Khula" but in her plaint she had narrated the facts which were the cause for filing of suit---No illegality, irregularity or jurisdictional defect had been pointed out in the impugned judgment---Constitutional petition was dismissed in circumstances.

Mst. Saffiya Bibi v. Fazal Din and others 2000 YLR 2678; 2013 MLD 760; 2006 YLR 2204; 2004 CLC 17; PLD 1995 Lah. 287; 1993 MLD 1587; 1994 CLC 230; 1995 CLC 957; 1998 CLC 1929 and 2012 YLR 1488 rel.

Sher Ali Khan Jadoon for Petitioner.

Zahoor Zebi for Respondent.

Date of hearing: 28th November, 2013.

PLD 2014 PESHAWAR HIGH COURT 199 #

P L D 2014 Peshawar 199

Before Yahya Afridi and Malik Manzoor Hussain, JJ

Haji LAL MUHAMMAD---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior Division, Islamabad through Deputy Attorney General at Peshawar and 4 others---Respondents

Writ Petition No.3248-P of 2013, decided on 25th February, 2014.

(a) Afghanistan Transit Trade Agreement, 1965---

----Art. X & Protocol, Art. 8---Customs Act (IV of 1969), S. 129---Constitution of Pakistan, Arts. 4, 9, 16, 17, 18, 19, 23, 24, 25 & 199---Constitutional petition---Transporter carrying goods to Afghanistan for North Atlantic Treaty Organization (NATO) forces---Blockage of national highway and checking of trucks by members and supporters of a political party in protest---Legality---Obstruction/blockade of a highway---"Unreasonable user" of highway---Scope---Court had to balance between the transporter's/petitioner's fundamental rights of trade and business, life, protection of property and protestors' fundamental rights of freedom of assembly, freedom of speech and freedom to form an association and become members of a political party---Apart from fundamental rights under the Constitution, petitioner/transporter also had rights under the Afghanistan Transit Trade Agreement, 1965, which provided that Pakistan and Afghanistan should adopt all necessary measures to facilitate the flow of traffic between the two countries and also seek all possible means, within their power to remove any factor, which might hinder the transit facility provided under the Agreement---Apart from the obligations of the Government of Pakistan under International law for ensuring compliance to the terms of the Afghanistan Transit Trade Agreement, 1965, the legislature had expressly provided protection to transit trade under S.129 of Customs Act, 1969, which stated that goods imported into Pakistan for Afghanistan or any other country were to be provided transit facilities for their safe transportation to their final border destination---Protestors, who were seeking to express their anguish, might do so but in a lawful manner, without infringing upon the rights of others and violating the law---By blocking the highway, such protestors were obstructing the passage of others including that of transporter in question, and thereby they could be termed as "unreasonable users" of the highway---Hindering or obstructing transporter's lawful business of transportation of goods in transit to Afghanistan was violation of his fundamental rights under Arts. 9, 18, 23, 24 & 25 of the Constitution, and thus illegal and without lawful authority---High Court directed concerned officials to protect the rights of the transporter to carry on his lawful business of transportation and to ensure that no one obstructed the safe use of highways in an illegal and unlawful manner---Constitutional petition was allowed accordingly.

Messrs Najib Zarab Ltd's case PLD 1993 Kar. 93; Harrison v. Duke of Rutland (1893) QB 142 at 154, CA; Lowden's v. Keaveney ((1903) 2 IR 82); Hubbard v. Pitt's case ([1976] QB 142) and Nagy v. Weston (I All ER 78, (1965) I WR 280 ref.

(b) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Right to use highway for purposes of a business---Scope---Right of a person to use a public road was a fundamental right---Using a highway for the purpose of running a business of transport was a fundamental right.

Arshad Mehmood's case PLD 2005 SC 193 rel.

Saghir Ahmad's case AIR 1954 SC 728; Sodan Singh's case AIR 1989 SC 1988; Nawab Khan's case AIR 1997 SC 152; Jagdeesam's case AIR 1997 SC 1197; Sheikh Dastagari's case AIR 2002 AP 383; Shehla Zia's case PLD 1994 SC 693; Messrs Najib Zarab Ltd.'s case PLD 1993 Kar. 93 and Harrison v. Duke of Rutland (1893) QB 142 at 154, CA) ref.

----Art. 18---Right to life---Scope---Right to life included all such amenities and facilities, which a person born in a free country was legally and constitutionally entitled to enjoy with dignity---Wide meaning should be given to the term life, so as to enable a man not only to sustain life but also to enjoy it.

Arshad Mehmood's case PLD 2005 SC 193; Saghir Ahmad's case AIR 1954 SC 728; Sodan Singh's case AIR 1989 SC 1988; Nawab Khan's case AIR 1997 SC 152; Jagdeesam's case AIR 1997 SC 1197; Sheikh Dastagari's case AIR 2002 AP 383 and Shehla Zia's case PLD 1994 SC 693 rel.

(d) International law---

----Conflict with municipal law---Effect---International law unless in direct conflict with municipal law, ought to be applied and respected by municipal courts in deciding matters arising therefrom.

(e) Constitution of Pakistan---

----Arts. 16, 17 & 19---Universal Declaration of Human Rights, 1984, Arts. 20 & 29(2)---Right of members/supporters of a political party to protest---Scope---Right of a citizen to join a political party and to express his views was a fundamental right under the Constitution, however all those who were seeking to express their anguish, might do so but in a lawful manner, without infringing upon the rights of others and violating the law.

De jonge v. Oregon (1937) 299 US 353 and Yates v. US (1956) 354 US 298 ref.

(f) Constitution of Pakistan---

----Pt. II, Chap. 1 [Arts. 8 to 28]---Fundamental rights---Nature and restrictions---Exercising one's right in a manner so as to transgress upon rights of another---Legality---Under no circumstance any right, be it fundamental and expressed in the Constitution, ever be declared as absolute---No one could be allowed to exercise one's right so as to infringe upon the rights of another---Each was to enjoy his rights within the confines of the law, morality and social justice---Transgression by any, whether powerful or weak, could not be allowed so as to disturb the social harmony of society.

Shah Nawaz Khan for Petitioner.

Muhammad Safdar Khan, Standing Counsel and Mian Arshad Jan, A.A.G. for Respondents.

Date of hearing: 25th February, 2014.

PLD 2014 PESHAWAR HIGH COURT 210 #

P L D 2014 Peshawar 210

Before Mazhar Alam Khan Miankhel, C J and Ikramullah Khan, J

BADSHAH GUL WAZIR---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Respondents

Writ Petition No.2547-P of 2013, decided on 9th June, 2014.

(a) Khyber Pakhtunkhwa Provincial Ombudsman Act (XIV of 2010)---

----S. 4 & Preamble---Khyber Pakhtunkhwa Provincial Ombudsman (Amendment) Act (XXVI of 2013), S. 5 & Preamble---Constitution of Pakistan, Art. 199---Constitutional petition---Khyber Pakhtunkhwa Provincial Ombudsman (Amendment) Act, 2013 ("Amending Act")---Validly enacted legislation---Fair and reasonable---Amending Act prescribing an age limit of sixty two years for the office of Provincial Ombudsman---Amending Act was a validly enacted piece of legislation because it was quite within competence of the Provincial Assembly to pass such an Act, which could not be assailed for want of legislative competence---Provisions of the Amending Act were only intended to prescribe an age limit for the Provincial Ombudsman, for which a proper course was adopted by presenting a Bill in the Provincial Assembly, which was duly passed and assented to by the Governor, thus the circumstances in which the amending Act was enacted was neither unfair nor unreasonable---Constitutional petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Arts. 69 & 199---Constitutional jurisdiction of the High Court---Scope---Legislation---Striking down of legislation/enactment by the court---Grounds and principles---Court could not sit in judgment over the wisdom of the legislature and strike it down except on two grounds, namely, lack of legislative competence and violation of any of the fundamental rights guaranteed in the Constitution or of any other constitutional provision---Presumption was always in favour of the constitutionality (of an enactment) and a law would not be declared unconstitutional, unless the case was so clear as to be free from doubt and that too on the basis of the said two grounds---No enactment could be struck down just by saying that it was arbitrary and illegal or that the Court thought that it was unjustified---Motive of the Legislature in passing a statute was beyond the scrutiny of Courts coupled with any irregularity of procedure under Art.69 of the Constitution---Nor could the courts examine whether the Legislature had applied its mind to the provisions of a statute before passing it---Propriety, expediency and necessity of a legislative act was to be determined by the legislative authority and not the courts---Where the validity of the statute was questioned and there were two interpretations, the one which would make the law valid had to be preferred over the other which would render it void.

Gulzar Khan's case (Writ Petition No.1394 of 2011) and Province of West Pakistan through Advocate General v. Manzoor Qadir and another PLD 1969 SC 625 ref.

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Legislative action and administrative action---Judicial review---Distinct parameters---Scope of interference as regards legislative action and an administrative action was quite different and the parameters to deal with them were distinct---Administrative action could be interfered with while exercising judicial review on the ground of it being unreasonable or irrational or there being an illegality or procedural impropriety but the same could not be utilized and applied to strike down an enactment on any such grounds.

(d) Khyber Pakhtunkhwa Provincial Ombudsman Act (XIV of 2010)---

----S. 4---Khyber Pakhtunkhwa Provincial Ombudsman (Amendment) Act (XXVI of 2013), S. 5 & Preamble---Constitution of Pakistan, Art.199---Constitutional petition---Provincial Ombudsman, office of---Tenure---Period of four years---Khyber Pakhtunkhwa Provincial Ombudsman (Amendment) Act (XXVI of 2013) making amendment in the tenure of office of Provincial Ombudsman by adding that Provincial Ombudsman would hold office for four years or till the age of sixty-two years, whichever was earlier---Constitutionality---Whether amendment introduced through Amending Act in respect of age limit would have retrospective effect---When the competent legislature had enacted a statute, prescribing a particular age (limit), the same could not be struck down on the grounds of mala fides of Provincial Government---Provincial Legislature was competent to prescribe the age limit for tenure of the office of Ombudsman, which would be having retrospective effect as and when an incumbent of the office attained the age of sixty-two years, whether before completion of the period of four years or thereafter---Constitutional petition was dismissed accordingly.

Gulzar Khan's case (Writ Petition No.1394 of 2011) ref.

Barrister Syed Mudasser Ameer for Petitioner

Waqar Ahmad Khan, A.A.G. and Afnan Karim Kundi for Respondents.

Date of hearing: 7th May, 2014.

PLD 2014 PESHAWAR HIGH COURT 218 #

P L D 2014 Peshawar 218

Before Rooh-ul-Amin Khan and Abdul Latif Khan, JJ

MANAGING DIRECTOR SNGPL and 4 others---Appellants

Versus

Messrs NEELAB CNG FILLING STATION through Managing Director---Respondent

F.A.O. No.40-P of 2013, decided on 16th January, 2014.

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

----O. XXXIX, Rr. 1 & 2---Temporary Injunction, grant of---Principles---Three essential ingredients for grant of temporary injunction must co-exist in favour of the applicant i.e. prima facie case, balance of convenience and irreparable loss---Applicant was to prove the prima facie existence of the right claimed in the suit and also its infringement---Court would require to see as to whether the applicant would suffer more inconvenience by withholding of the injunction than that which the respondent would by the granting of same---Court was required to weigh the mischief to either party and would grant the injunction only if the balance lie in favour of the applicant---Applicant was bound to prove that in case of refusal of injunction, he/she will suffer irreparable damage or injury.

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

----O.XXXIX, Rr. 1 & 2---Temporary Injunction---"Irreparable loss"---Scope---Term "Irreparable loss" does not refer to damage which cannot be physically repaired but to such material injury as cannot adequately compensated---Where the loss was ascertainable in terms of money, case could not be that of irreparable loss---Where pecuniary compensation was an adequate relief, injunction would not be granted---Damages as an alternate relief were relevant only where the granting of injunction would be oppressive to the other side.

----O. XXXIX, Rr.1 & 2---Temporary injunction---Scope---Disconnection of gas meter---Detection bill---Trial Court allowed application of the plaintiff for grant of temporary relief---Appellant Gas Company was directed to restore the gas supply of plaintiff and issue regular monthly bill without surcharge---Validity---Plaintiff had failed to show any irreparable loss in case of refusal of injunction rather there seemed strong apprehension of damage/injury to the defendants in case of non-deposit of the outstanding amount, therefore balance of convenience tilted in favour of the defendant---Interim relief of temporary injunction could not be granted which amount to grant of final relief, prayed in the suit.

Raza Khan Safi for Appellants.

Fida Gul for Respondent.

Date of hearing: 16th January, 2014.

PLD 2014 PESHAWAR HIGH COURT 222 #

P L D 2014 Peshawar 222

Before Waqar Ahmad Seth, J.

GHULAM MUSTAFA and others---Petitioners

Versus

MUNAWAR HUSSAIN---Respondent

Review Petition No.3-A of 2013, decided on 28th March, 2014.

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

----O. XLVII, R. 1---Review of judgment---Grounds.

Following are the grounds on which review of a judgment can be sought under O. XLVII, R. 1, C.P.C:

(i) Discovery of new and important matter of evidence, which after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed or order was made.

(ii) Mistake or error apparent on the face of the record

(iii) For any other sufficient reason.

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

----O. XLVII, R. 1---Review of judgment---Grounds---Scope---Error apparent on the face of record---Scope---Error which was not self-evident and had to be detected by a process of reasoning, could hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under O. XLVII, R. 1, C.P.C---In exercise of jurisdiction under O.XLVII, R.1, C.P.C, it was not permissible for an erroneous decision to be re-heard and corrected---Review petition had a limited purpose and could not be allowed to be an appeal in disguise.

Malik Waseem Fazal for Petitioners.

Qazi Ghulam Rauf for Respondent.

Date of hearing: 28th March, 2014.

PLD 2014 PESHAWAR HIGH COURT 226 #

P L D 2014 Peshawar 226

Before Nisar Hussain Khan and Waqar Ahmad Seth, JJ

Syed RASHID ALI SHAH---Petitioner

Versus

Mst. HALEEMA BIBI and 2 others---Respondents

Writ Petition No.447-P of 2013, decided on 18th June, 2014.

Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(ii-A)---West Pakistan Family Courts Act (XXXV of 1964), S.10(4)---Muslim Family Laws Ordinance (VIII of 1961), S.13---Federal Laws (Revision and Declaration) Ordinance (XXVII of 1981), Second Schedule, Item No.18---Constitution of Pakistan, Arts.199 & 270-A---Constitutional petition---Suit for dissolution of marriage, dower and maintenance---Second marriage of husband without permission of first wife---Effect---Second marriage of husband as ground of cruelty---Validity---Clause 2(ii-A) of S.2 of the Dissolution of Muslim Marriages Act, 1939 which entitled Muslim woman to obtain decree for dissolution of marriage if her husband had taken additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961 had been omitted vide item No.18 of Second Schedule of Federal Laws (Revision and Declaration) Ordinance, 1981 which was validated by Art.270A of the Constitution---Clause 2(ii-A) of S.2 of the Dissolution of Muslim Marriages Act, 1939 was no longer part of the statute---Taking of second wife in marriage, in presence of first-wife, even without permission or consent of the first wife was no more valid ground for dissolution of marriage---Under S.10(4) of the West Pakistan Family Courts Act, 1964 court would not only pass a decree for dissolution of marriage forthwith but also restore to husband Haq Mahr received by wife in consideration of marriage---Where rukhsati had not taken place and wife was not willing to live with husband to fulfil marital obligation, while dissolving marriage at pre-trial reconciliation stage, court was obliged to restore Mahr/dower to husband rather than proceeding with the trial to determine cruelty of husband---Marriage having been dissolved on the basis of Khula' wife was not entitled to the decree for recovery of dower and maintenance---Wife had to return the articles and property received in lieu of dower---Where marriage had not been consummated, wife was not obliged to observe iddat---Husband was under no obligation to maintain wife even for iddat period---Judgments and decrees of courts below were set aside---Constitutional petition was accepted.

Para/section 257 of Muhammadan Law by Sir Dinshah Fardunji Mulla ref.

Muzamil Khan for Petitioner.

Mian Abdul Aziz Qureshi for Respondents.

Date of hearing: 18th June, 2014.

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P L D 2014 Peshawar 231

Before Nisar Hussain Khan and Mrs.Irshad Qaiser, JJ

MUHAMMAD HAFEEZ---Petitioner

Versus

Ms. SALMA BIBI and 3 others---Respondents

Writ Petition No.2732-P of 2012, decided on 10th April, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 156, 249-A & 265-K---Constitution of Pakistan, Art. 199---Quashing of F.I.R. by High Court in its constitutional jurisdiction--- Scope---When F.I.R./case was still in the phase of investigation, it could not be quashed by the High Court at such stage in exercise of constitutional jurisdiction (under Art. 199 of the Constitution)--- High Court should not encourage bypassing of forums below, when accused was yet to join investigation and prove his innocence by producing sufficient material---Accused could move the court of competent jurisdiction under S.249-A or 265-K, Cr.P.C, which besides being alternate, were by all means adequate remedies---Illustration.

Shehnaz Begum v. The honourable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677, Brig: Imiaz Ahmad v. Government of Pakistan through Secretary Interior Division and 2 others 1994 SCMR 2142, Muhammad Latif ASI Police Station Sadar, Sheikhpupura v. Sharifan Bibi and another 1998 SCMR 666 and Anwar Ahmad Khan v. The State 1996 SCMR 24 rel.

Salamat Shah Masood for Petitioner.

Mehboob Ali Khalil for Respondent.

Zahid Yousaf Qureshi for the State.

Date of hearing: 10th April, 2013.

Quetta High Court Balochistan

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 1 #

P L D 2014 Balochistan 1

Before Qazi Faez Isa, C.J. and Muhammad Noor Meskanzai, J

MUHAMMAD ALAM and others---Petitioners

Versus

PLANNING AND DEVELOPMENT DEPARTMENT, GOVERNMENT OF BALOCHISTAN through Additional Chief Secretary and others---Respondents

Constitutional Petitions Nos.321, 358, 406 of 2009, decided on 30h August, 2010.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public interest litigation---Public resources, utilization of---Petitioners assailed allocation of millions of rupees by Balochistan Government for construction of Mosque, Madrassa and residential complex---Respondents contended that petition was not maintainable as petitioners were not aggrieved persons---Validity---Matter of utilization of public resources was a matter which was even closer to public interest---Funds for public exchequer were generated by different types of taxes paid by people, who were taxed and the taxes were to be paid towards providing the people with schools, colleges, hospitals, dams, roads, airports etc. and provide them with various services---Such were great demands on public exchequer and must be ensured at all times that monies from it were spent for public purposes---People had right to know where, how and for what purpose money was being spent and if anyone considered that the money spent was not being spent for public purpose, that person could invoke Art.199 of the Constitution---Allocation of public funds for construction of such project was without lawful authority, contrary to the Constitution, in derogation of Islamic principles and morally indefensible---High Court directed the respondent to return all monies received by it from Chief Minister's Special Priority Program, Public Representative Program and from any other public source or that had been spent on construction of the project from such public sources---High Court directed the authorities to seek recovery of funds in accordance with law including recovery of the same as arrears of land revenue, in case respondent failed to return the same---High Court commended the petitioners for invoking its jurisdiction and for investing their time, money and effort in public cause undertaken to protect public funds from misuse---Petition was allowed accordingly.

Sheela Barse v. Union of India AIR 1988 SC 2218 and Holy Quran Verses Surah 2 A-Baqarah: 188; Surah 4 An-Nisa 58, Surah 3 Al-Imran 161 ref.

Associated Cement cos. Ltd. v. Pakistan PLD 1978 SC 151; Asadullah Mangi v Pakistan International Airlines, 2005 SCMR 445; Shah Muqeem Press Cub v. Chief Minister PLD 2004 Lah. 38; Water and Power Development Authority/Lahore Electricity Supply Co. Ltd. v. Bhatti Ice and Rice Mills, 2004 YLR 1263 and M.Ramizul Haq v. Secretary to the Government of Pakistan, PLD 1992 SC 221 distinguished.

S.P. Gupta v. Union of India 1981 (Supp) SCC 87; Fertilizer Corpn. Kamagar Union v. Union of India AIR 1981 SC p.354; K. Ramakrishnan v. State of Kerala AIR 1999 Karala. 385; M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu AIR 1999 SC 2468; Human Rights Commission of Pakistan v. Government of Pakistan PLD 2009 SC 507 and Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 rel.

(b) Constitution of Pakistan--.

----Arts. 199 & 248 (1)---Constitutional petition---Chief Minister, necessary party---Scope---Respondents raised objection to petition that Chief Minister was not made party to petition who was a necessary party---Validity---Chief Minister and Provincial ministers, under Art.248(1) of the Constitution were not answerable to any court for exercise of powers and performance of functions of their respective offices--Objection was overruled in circumstances.

Petitioners in person.

Nasrullah Achakzai, A.A.G. and Kamran Murtaza for Respondents.

Dates of hearing: 15th, June; 9th, 12th and 18th August, 2010.

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P L D 2014 Balochistan 28

Before Muhammad Hasham Khan Kakar, J

ABDUL QADIR SHAH---Petitioner

Versus

MUHAMMAD QASIM and 2 others---Respondents

Criminal Miscellaneous Quashment No.546 of 2012, decided on 24th August, 2013.

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

----S.188---Penal Code (XLV of 1860), Ss.3 & 4---Extra-territorial offences---Investigation and trial in Pakistan-Scope-Extra-territorial jurisdiction has been conferred by S.188, Cr.P.C. and Ss.3 & 4, P.P.C. upon Criminal Courts in Pakistan over Pakistani citizens in respect of acts committed by them outside Pakistan---Application of Penal Code, 1860, has been extended to offences provided therein when .committed by a citizen of Pakistan even in any country other than Pakistan itself by the provision made under S.4, P.P.C.---Penal provisions of Penal Code, 1860, are attracted to any citizen of Pakistan, who commits such offences even beyond the territories of country.

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

----Ss. 22-A, 154, 188 & 561-A---Penal Code (XLV of 1860), Ss.3, 4 & 302---Qatl-e-amd---Quashing of proceedings---Extra-territorial offences---Authorization certificate---Scope---Grievance of accused was that Ex-Officio Justice of Peace had allowed application under S.22-A, Cr.P.C. and directed police to conduct investigation for offence committed outside the territory of Pakistan, whereas no certificate of authorization of investigation was issued by Federal Government---Validity---Accusation could not be inquired into without required certificate but bar did not extend to mere registration of F.I.R. under 5.154, Cr.P.C. and nowhere a condition was laid down to obtain such certificate before registration of F.I.R.---Sanction under 5.188, Cr.P.C. was a procedural requirement and could be produced even after submission of challan in a court of competent jurisdiction---Required sanction could be secured even after submission of challan in order to inquire into the charge---Incident was a blind murder and all queries would be answered after having full-fledged investigation made by police---Documents issued by foreign State, where alleged offence was committed, had no weight or relevancy as both the parties were reportedly Pakistani national and residents of district Quetta---Trial Court and police authorities in Pakistan had authority to inquire into the matter---High Court declined to interfere in the order passed by Ex-Officio Justice of Peace---Petition was dismissed in circumstances.

Abdul Khair Achakzai for Peititioner.

Miss Sarwat Hina, Addl. P.-G. for the State.

Date of hearing: 19th August, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 33 #

P L D 2014 Balochistan 33

Before Ghulam Mustafa Mengal and Naeem Akhtar Afghan, JJ

Gen. (R) Syed PERVEZ MUSHARRAF---Applicant

Versus

THE STATE and another---Respondents

Criminal Bail Application (After Arrest) No.40 of 2013, decided on 30th July, 2013.

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

----S. 173---Police report---Necessary ingredients---Three essentials of challan/report submitted by police under S.173 Cr.P.C. before Trial Court, which includes description of offence, production of accused and evidence to prove offence---Trial Court can start trial only when all three facts are produced before it.

Arshad Husain v. State PLD 2001 Kar. 211 rel.

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

----Ss. 167, 173 & 497---Bail, grant of---More than one case---Investigation---Procedure---Different criminal cases were registered against accused in different provinces and after his arrest in one case, he applied for bail in other case registered in other province---Validity---Accused, under S.167, Cr.P.C., required in more than one criminal cases, when arrested was deemed to have been arrested in all cases registered against him---No legal bar existed for interrogating accused with regard to allegations against him in another case; it was rather desirable that when a person required or accused in more than one cases or when more than one F. I. Rs. were registered against him, was arrested and remanded to physical custody, then he should be interrogated about allegations against him in all cases---Different cases against accused could be investigated under S.167, Cr.P.C. by keeping him at one place---Once investigation was completed and challan/police report submitted under 5.173, Cr.P.C., physical custody of accused had to be forwarded to the jurisdiction of concerned court---Once such custody was acquired by court concerned, it could proceed with the trial and pass all ancillary orders including grant of bail---Concept of considering grant of bail to accused after his arrest by a court which did not have his physical custody was alien to law---Accused, though arrested in case in question, was not produced in custody/brought before Trial Court or within the territorial jurisdiction of Trial Court, therefore, Trial Court had rightly rejected application as being premature---Accused being not in custody within the jurisdiction of High Court, therefore, bail application was not maintainable---Bail was refused in circumstances.

Razia Pervaiz v. Senior Superintendent of Police 1992 PCr.LJ 131 rel.

Muhammad Ilyas Siddiqui and Zeeshan Riaz Cheema for Applicant.

H. Shakeel Ahmed, Sohail Ahmed Rajput and Wajahat Khan Ghaznavi for the Complainant.

Shai Haq Baloch, A.A.G., Malik Sultan Mehmood, Special Prosecutor, A.T.A. along with Muhammad Hassan Kakar, DSP Sikandar Tareem, DSP, and Sardar Khan, Investigating Officer/Inspector, Crimes Brach, Balochistan Quetta for Respondents.

Date of hearing: 22nd July, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 39 #

P LD 2014 Balochistan 39

Before Mrs. Syeda Tahira Safdar and Abdul Qadir Mengal, JJ

ABDUL HAMEED---Petitioner

Versus

Mst. SHABNAM alias SHABANA and 2 others---Respondents

Constitutional Petition No.9 of 2013, decided on 23rd July, 2013.

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

----Ss. 47, 4(5) & 25---West Pakistan Family Courts Act (XXXV of 1964), Ss. 14 & 5, Sched---Application for custody of minor---Forum of appeal---Application filed under S.25 of Guardians and Wards Act, 1890 was accepted by Family Court---Appeal preferred before Additional District Judge was dismissed for want of jurisdiction---Validity---While entertaining petition for custody of minor and other related matters under Guardians and Wards Act, 1890, same was not to be dealt with in isolation rather the provisions of West Pakistan Family Courts Act, 1964 were to be read co-jointly---Family Court constituted under the provisions of West Pakistan Family Courts Act, 1964 had exclusive jurisdiction in the matters enumerated in the Schedule attached to the said Act---Section 5 of West Pakistan Family Courts Act, 1964 with the Schedule attached therein described the limits of jurisdiction vested with Family Court---Matters pertaining to custody of children and visitation rights of parents and guardianship would come in the exclusive jurisdiction of Family Court---Section 4(5) of Guardians and Wards Act, 1890 was not to be read in isolation rather to be read with S.25 of West Pakistan Family Courts Act, 1964---While dealing with the matters contained in Guardians and Wards Act, 1890, Family Court had to follow the procedure prescribed in the Guardians and Wards Act, 1890---Section 47 of Guardians and Wards Act, 1890 described the forum of appeal in the matters decided under the provisions of said Act as High Court---Any order passed by Family Court while entertaining an application for custody of minor would not amount to an order of District Court nor right of appeal would become available before High Court rather appeal had to be preferred under S.14 of West Pakistan Family Courts Act, 1964---Appeal against order pertaining to matters covered by Guardians and Wards Act, 1890 should lie before District Court except where Family Court being presided over by District Judge or Additional District Judge or a person notified by the Government to be of such rank and status, and in such case appeal should lie to the High Court---If application for custody of minor was heard and decided by Family Judge not having status of District Judge, the appeal should lie to District Judge---Appellate Court was under misconception and had committed an error---Constitutional petition was accepted and order of Additional District Judge was set aside and Appellate Court was directed to decide the appeal on merit.

Attaullah Langove for Petitioner.

Kamran Murtaza and Adnan Ejaz for Respondents.

Date of hearing: 20th June, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 44 #

P L D 2014 Balochistan 44

Before Qazi Faez Isa, C J

General (R) Syed PERVAIZ MUSHARRAF---Petitioner

Versus

The STATE and another---Respondent

Criminal Transfer Application No. 41 of 2013, decided on 24th August, 2013.

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

----Ss. 2(k) & 28---Inter provincial transfer of case---Principle---Accused was involved in more than one cases and was in custody of Islamabad police---Accused sought transfer of his case form Balochistan province to Islamabad on the plea of personal security---Validity---Territorial jurisdiction under S.2(k) of Anti-Terrorism Act, 1997, was in respect of area for which Anti-Terrorism Court was established---Area of Islamabad did not fall within the territorial jurisdiction of High Court of Balochistan nor was an area in respect whereof Chief Justice of Balochistan could exercise his authority---Word "area" could not be construed to mean are beyond territory of High Court---Chief Justice of High Court could not transfer a case beyond jurisdiction of High Court---All attacks on accused took place within the area of Rawalpindi city, therefore, Quetta city was not any more dangerous for accused; it was the responsibility and duty of government to ensure safety and security of an under-trial prisoner who was in custody---Petition was dismissed in circumstances.

Smt. Razia v. The State AIR 1957 Allahabad 340; Jayendra Saraswathy Swamigal v. State of Tamil Nadu 2005 Crl.LJ 4626; Ali Dur v. Qalandar Bux 2012 YLR 309 and Ahmad Omar Saeed Shaikh v. State 2002 SCMR 1562 ref.

Muhammad Ilyas Siddiqui and Zeeshan Riaz Cheema for Petitioner.

Shai Haq, Asstt. A.G. and Malik Sultan Mehmood, Special Prosecutor, ATA for Respondents.

Date of hearing: 24th August, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 50 #

P L D 2014 Balochistan 50

Before Muhammad Hashim Khan Kakar, J

Haji ABDUL HAMEED---Petitioner

Versus

RAZ MUHAMMAD and another---Respondents

Criminal Revision No.38 of 2013, decided on 20th August, 2013.

Criminal Procedure Code (V of 1898)---

----Ss. 174 & 176---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Inquiry into cause of death---Disinterment of dead body---Medical report revealed that brother of petitioner died due to injuries caused by sharp edged weapon, hypovolemic shock and excessive bleeding---Trial Court allowed application of accused for disinterment of corpus to obtain a part of deceased's body for DNA test---Validity---Purpose of investigation under S.174, Cr.P.C. or inquiry under S.176, Cr.P.C. was only to ensure that no offence had been committed in connection with death of a person---Such investigation or inquiry could not be carried out for the purpose to determine crime weapon used in commission of offence or seat of injuries on the person of deceased---Medical expert could safely opine that specific injury was inflicted by which kind of weapon---Investigation or inquiry under Ss.174 & 176, Cr.P.C. and exhumation of dead body could only be allowed if real cause of death was shrouded in mystery---Provision of S.176, Cr.P.C. related to death of a person while in custody of police but not in case of death out of custody of police---Magistrate could only cause any dead body disinterred, whenever he considered it expedient for discovering cause of death and was not obliged to do the same, as request of accused for academic purposes, that too, after a delay of about 18 months---Disinterment of dead body was not inevitable and application was filed by accused only for determination of academic questions and trial Court had fallen in error while allowing the same---High Court in exercise of revisional jurisdiction set aside the order passed by trial Court---Revision was allowed in circumstances.

Mrs.Alia Tareen, Managing Director, Pakistan General Hospital, Quetta v. Amanullah Khan, Advocate PLD 2005 SC 99 rel.

Muhammad Dawood Kasi for Petitioner.

Muhammad Asghar Panezai and Muhammad Ashraf Bazai for Respondents.

Mrs. Tayyaba Altaf, Special Prosecutor for the State.

Date of hearing: 6th August, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 55 #

P L D 2014 Balochistan 55

Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J

Messrs PAKISTAN MINERAL DEVELOPMENT CORPORATION (PVT), LIMITED through Attorney----Petitioner

Versus

DIRECTOR-GENERAL, DIRECTORATE OF MINES AND MINERALS BALOCHISTAN and 140 others---Respondents

Constitutional Petition No. 865 of 2011, decided on 25th July, 2013.

(a) Balochistan Minerals Rules, 2002---

----Rr. 47, 57, 64(6) & Seventh Sched.---Constitution of Pakistan Arts.10-A & 199---Constitutional petition---Coal-Mining-Leases---Order of Licensing Authority cancelling leases of Pakistan Mineral Development Corporation on ground of subletting their mining areas to Raising Contractors/Private Parties and assigning same areas to same Raising Contractors---Validity---Authority had not provided an opportunity of hearing to petitioners having held such leases for decades and cancelled same with one stroke of pen and assigned same to Raising Contractors arbitrarily without submission of applications by them in prescribed Form "K" and without ensuring that they had knowledge about applicable mining safety laws and rules about mine-workers' safety---Authority while passing impugned order had acted in a mala fide, unjust and oppressive manner, thus, petitioner was not required to have first filed appeal under R.70 of Balochistan Minerals Rules. 2002---Authority after issuance of show cause notice was bound to provide opportunity of hearing to petitioner and proceed in accordance with law---Authority had assigned petitioner's mining areas to Raising Contractors without demarcation, thus, responsibility of an unfortunate accident, if took place, could not be affixed to anyone---High Court accepted constitutional petition with costs.

Murree Brewery Co. Ltd. v. Pakistan, PLD 1972 SC 279 ref.

Collector of Customs v. S.M. Ahmad & Co., 1999 SCMR 138; Liaqat Ali Khan v. District Returning Officer, 2002 SCMR 1632; Hydri Ship Breaking Industries Ltd. v. Sindh Government 2007 MLD 770; Muslimabad Cooperative Housing Society Ltd. v. Siddiqa Faiz, PLD 2008 SC 135; Muhammad Abbasi v. S.H.O. PLD 2010 SC 969 and Lt. Col. Nawabzada Muhammad Amir Khan v. Controller of State Duty PLD 1961 SC 119 rel.

(b) Balochistan Minerals Rules, 2002---

----Preamble---Avoidance of accidents in Mining industry---High Court for purposes of avoiding such accidents emphasized on Provincial Government and its concerned officials to keep safety of miners foremost and ensure compliance with applicable laws and rules regarding safe-mining practices.

The mining industry is probably the largest industry in Balochistan and employs many people. The fact that the mining industry is one of the few industries in the province, it was expected that the Government of Balochistan would support it, rather than subject to whimsical and draconian action. If the Director General, Directorate of Mines and Minerals Balochistan himself fails to act in compliance with Rules, it shatters the confidence of the owners and also of the miners. Director General also overlooked a very important and crucial factor, which is the safety of workers. The coal mining industry is, quite literally, built upon the sweat and toil of mine workers, who, in the case of coal-mining, go deep into the earth to extract coal. Recently many accidents and deaths have occurred in the coal-mining industry of Balochistan. Most accidents can be avoided if applicable laws are enforced and miners are provided even rudimentary training. The mine-workers, the most vulnerable sector of the industry, are left at the mercy of an apathetic monitoring regime and unscrupulous employers. Safe mining practices are sacrificed for deriving additional profits. The concerned officers and Government of Balochistan must keep the safety of miners foremost and ensure that the applicable law and rules are followed with regard to safe-mining practices.

High Court directed the Government of Balochistan to give due consideration to the safety of miners and to ensure that the applicable law and rules are followed with regard to safe mining practices.

Muhammad Kamran Mulakhail for Petitioner.

Shai Haq Baloch, Asstt. A.-G. for Official Respondent.

Baz Muhammad Kakar, Hadi Shakil Ahmed, Ms. Tehmina Samad, Shah Rasool, Abdul Sattar Kakar and Naseebullah Tareen for Private Respondents.

Sultan Muhammad Khan, General Secretary for Pakistan Central Mines Labour Federation (Respondent No.139).

Bakht Nawab, President for Balochistan National Mines Workers Union (Respondent No141).

Muhammad Afzal Jami, Deputy Prosecutor General, NAB, for NAB on Court Notice.

Muhammad Riaz Ahmed for Muhammad Umar Gorgaij on Court Notice.

Dates of hearing: 12th November, 2012 and 18th June, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 71 #

P L D 2014 Balochistan 71

Before Jamal Khan Mandokhail, J

MIR BAZ MUHAMMAD KHAN---Petitioner

Versus

NAZ BIBI and 9 others---Respondents

Civil Revision No.38 of 2008, decided on 20th September, 2013.

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

----Ss. 47 & 35---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Execution petition---Cost of litigation---Scope---Execution petition was filed wherein objection petitions were submitted which were dismissed concurrently---Validity---Judgment and decree passed in favour of plaintiffs had attained finality---Execution petition moved by the plaintiffs was accepted and defendant did not challenge the said order passed by the Executing Court---No provision was available in Civil Procedure Code to file objections to challenge the judgment and decree which had been acted upon through execution petition---No proceeding was pending before the Executing Court when second objection petition was submitted by the defendant---Objections filed for second time were dismissed by the Executing Court but such order was not assailed and same had attained finality---Objections filed for third time were submitted after lapse of more than five months---Executing Court had rightly declined to entertain the objections filed by the defendant---Defendant had failed to point out any illegality, irregularity or jurisdictional defect in the impugned order passed by the courts below---Defendant had fraudulently mutated the property of plaintiffs in his favour---Such act of defendant compelled the plaintiffs to approach the court in the year 1991 and since then they had been dragged in litigation by the defendant which cost them a huge amount---Court had discretion to grant the actual cost of litigation to the successful party by the unsuccessful party---Plaintiffs were in litigation in the present case for a long time in different courts---Conduct of defendant compelled the plaintiffs to start second round of litigation by filing execution petition---Plaintiffs had spent a huge amount upon the litigation including travelling and lodging expenses who were entitled for actual cost of litigation but same had not been granted by the courts below---Plaintiffs had not only suffered mental and physical agony due to litigation but had also suffered huge financial loss/expenses not only during the trial of suit but also after obtaining a decree---Defendant was wilfully avoiding implementation of decree and had not only caused the actual cost of litigation but was also responsible for the damages accrued to the plaintiffs---Court had power to determine as to by whom or out of which property and to what extent such costs were to be paid and to give necessary directions for the said purpose---Court could pass an order as to costs even it might not have jurisdiction to entertain the suit---Defendant should pay an amount of Rs.175,000/- to the plaintiffs as actual cost of litigation and an amount of Rs.25,000/- as a compensation for frivolous and false litigation---Revision was dismissed in circumstances.

Kesavalu v. Venkatarama ((29) AIR 1942 Mad. 35 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Jurisdiction under S.115, C.P.C. was discretionary in nature---High Court could exercise such power in aid of justice and not to affect its ends---Revisional court would interfere where grave injustice or hardship would result on account of non-exercise of jurisdiction vested in the courts below---Section 115, C.P.C. had conferred superintending and visitorial power of correction upon the High Court---High Court might call for the record of the courts subordinate to it by exercising power under S.115, C.P.C. and might exercise power of suo motu where it appeared that subordinate court had exercised jurisdiction not vested in it or had failed to exercise jurisdiction so vested or had acted in exercise of its jurisdiction illegally or with material illegality.

----"Jurisdiction"---Meaning---"Jurisdiction" is the power of administering justice according to the means which law had provided.

(d) Constitution of Pakistan---

----Art. 203---Supervisory power of High Court over subordinate courts---Scope---High Court has general power to supervise and control subordinate courts in the interest of administration of justice and not to benefit any party---High Court has been made the custodian of justice within the territorial limits of its jurisdiction to see that the justice is being fairly and properly done by the courts subordinate to it.

Mujeeb Ahmed Hashmi and Khushal Khan Kasi for Petitioner.

Muhammad Saleem Lashari, Munir Ahmed Langove and M.A. Rauf for Respondents Nos. 1 to 7.

Tariq Ali Tahir, Addl.A.G.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 76 #

P L D 2014 Balochistan 76

Before Qazi Faez Isa, C.J. and Muhammad Kamran Mulakhail, J

HIGH COURT BAR ASSOCIATION---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN and others---Respondents

Constitutional Petition No.542 of 2013, decided on 23rd October, 2013.

(a) Constitution of Pakistan---

----Art. 199--- Exercise of suo motu jurisdiction by the High Court under Art. 199 of the Constitution---Scope---High Court could take suo motu notice (under Art. 199 of the Constitution) in appropriate cases.

High Court Bar Association v. Government of Balochistan PLD 2013 Bal. 75 ref.

(b) Provincial Balochistan Assembly Privileges Act (VI of 1975)---

----S. 11(1)---Constitution of Pakistan, Arts. 199 & 25---Exercise of suo motu jurisdiction by the High Court under Art. 199 of the Constitution regarding suspension of Superintendent of Police by Provincial Chief Minister for not letting armed guards of a Provincial Minister within precincts of Balochistan Assembly---Equality of all persons before law---Scope---Provincial Balochistan Assembly Privileges Act, 1975, prohibited the carrying of firearms of any description, knives, lathies and sticks within the precincts of the Assembly and also criminalized such acts---Police personnel who tried to stop the armed guards of a Minister from gaining entry into the Provincial Assembly acted in accordance with the law, and in fact, if they had not done so, disciplinary action would have been initiated against them for not upholding the law---Policemen in the present incident, rather than being appreciated for their action, were abused, roughed-up and assaulted---Suspending or taking action against the policemen on duty for upholding the law was in itself a violation of the law---Permitting guards of a Minister to act in the manner in which they did, and that too in front of the portals of law-making, had serious repercussions, as it would demoralize the police force, and dedicated police officers would become dejected and frustrated; it would also encourage policemen to become pliable in the hands of Ministers and other influential and powerful segments of society---Law was equally applicable to the rich and powerful---High Court declared that any action taken against police personnel, as in the present case, was illegal, ultra vires and of no legal effect; that law enforcement personnel must be obeyed whilst carrying out their duties and must not be prevented from discharging their duties, and that whenever law enforcement personnel were carrying weapons openly, it was incumbent upon them to be identifiable and in complete uniform---Suo motu case was disposed of accordingly.

----S. 111-A---Constitution of Pakistan, Art. 199---Exercise of suo motu jurisdiction by the High Court under Art. 199 of the Constitution---Ministers and Members of the Provincial Assembly installing police lights and police wireless sets in their private vehicles---Legality---Ministers and Members of the Provincial Assembly, like every other person in the country, were bound to abide by the applicable laws and the Provincial Motor Vehicles Ordinance, 1965 and rules made thereunder---Provincial Motor Vehicles Ordinance, 1965 did not permit fixing of police lights on or installation of police wireless sets in private vehicles, and, if this was done, it was illegal and persons responsible were liable to prosecution in accordance with the applicable law---Suo motu case was disposed of accordingly.

(d) Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 23---Constitution of Pakistan, Art. 199--- Exercise of suo motu jurisdiction by the High Court under Art. 199 of the Constitution---Use of smuggled/non-custom paid vehicles by Ministers and Members of the Provincial Assembly---Effect---Plying of smuggled vehicles whether by an ordinary citizen, a parliamentarian or a Minister, was completely illegal---Parliamentarians were not exempt from prosecution in such regard---High Court directed that smuggled vehicles, on which customs duty and other applicable taxes had not been paid, were liable to be impounded in accordance with the applicable laws--- Suo motu case was disposed of accordingly.

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

----S. 83(A)(1), proviso--- Constitution of Pakistan, Art. 199 & Third Sched.---Exercise of suo motu jurisdiction by the High Court under Art. 199 of the Constitution ---Public property used by political party for political purposes---Legality---National flag of Pakistan, significance of---Provincial Ministers hoisted their respective political party flags on their official offices, vehicles and residences---Political party's name plates and insignia were fixed on public property---National flag of Pakistan was representative of people of Pakistan and the State; it was a symbol of unity transcending partisan politics---Flag of Pakistan represented freedom, inclusiveness and the genesis of an independent State, and in contrast, political party flags represented a particular political party and allegiance to it---Political party flag could not be raised to the level of the flag of Pakistan---Proviso to S.83A(1) of Representation of the People Act, 1976 provided that party flags shall not be hoisted "on any public property or at any public place, except with the permission in writing from, and on payment of such fee or charges as may be chargeable by, the local government or authorities"---Since official offices, vehicles and residences were not within the domain of local authorities, the said exception, i.e. permission after payment of applicable fee, was not attracted in the present case---Political party flags, therefore, could not be hoisted on official offices, official vehicles or official residences as all of them were public properties---Third Schedule of the Constitution set out the 'Oaths of Office' to be taken by different holders of public office, including, the President, Prime Minister, Federal Ministers, Ministers of State, Speaker and Deputy Speaker of the National Assembly, Chairman and Deputy Chairman of the Senate, Governors, Chief Ministers, Provincial Ministers, Speakers and Deputy Speakers of Provincial Assemblies ("said public offices")---Holders of each of the said public offices when taking their oath had to swear that they would not allow their personal interest to influence their official conduct or official decisions and, that in all circumstances they would do right to all manner of people, according to law, without fear or favour, affection or ill-will, thus, they were disassociated from partisan party politics--- Holders of said public offices after taking their oath of office represented all citizens, both those who voted for them and also those who might have opposed them---By taking oath of office said public office holders swore to do right to all manner of people, and not just the members of their own parties---Holders of said public offices by flying flags of political parties on their official offices, official vehicles or official residences demonstrated allegiance, affection and/or sympathy with a particular party; which was contravention of their oath of office sworn by them---Official offices, residences and vehicles were paid for by the taxpayer, i.e. the citizens of Pakistan, and not by those belonging to a particular party, and public property could not be put to private or partisan political use---High Court directed that the President, Prime Minister, Federal Ministers, Ministers of State, Speaker and Deputy Speaker of the National Assembly, Chairman and Deputy Chairman of the Senate, Advisers, Governors, Chief Ministers, Provincial Ministers, Speakers and Deputy Speakers of the Provincial Assemblies could not hoist or fly political party flags on their official offices, official vehicles and official residences, and if the flag of any political party was found to be hoisted or flying on such public property in Balochistan the same should be removed forthwith; that in case of violation of S.83A of the Representation of the People Act, 1976 the local authority within whose jurisdiction the same had taken place should remove the said flags and report the matter to the concerned police station or levies thana and prosecution against transgressors should be carried out in accordance with the law---Suo motu was disposed of accordingly.

Hadi Shakil Ahmed, Zahoor Ahmed Shahwani, Syed Ayaz Zahoor, Syed Nazeer Agha and Sajid Tareen for Petitioner No.1.

Rehmatullah Barech for PetitionerNo.2.

Sher Shah Kasi, Deputy Attorney General and Shai Haq Baloch, Asstt. A.-G. for Respondents.

Date of hearing 1st October, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 86 #

P L D 2014 Balochistan 86

Before Qazi Faez Isa, C.J. and Muhammad Kamran Mulakhail, J

Syed NAZEER AGHA and another---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 4 others---Respondents

Constitutional Petitions Nos.194 and 216 of 2013, decided on 23rd October, 2013.

Constitution of Pakistan---

----Arts.25-A & 199---Constitutional petition---Right to education---Grievance of petitioner was that Provincial Government was not providing books to students of government schools---Validity---State to ensure that all children go to school and remain in school---Duty cast upon the State was not even close to fulfilment and amongst children the girls were being neglected the most---Merely constructing a school and providing free textbooks was not enough to get children to school---Environment was needed to be created whereby there was desire on the part of parents to send their children to school and the school environment was such that it beckoned children who would be unhappy to miss school---High Court directed that Provincial Government to carry out a physical audit of schools situated in each district of province and to maintain a hardcopy as well as a computerized/photographic record with names of teachers employed/posted at each school and periodically to update the same; that Provincial Government should measure lands on which schools were situated and relevant entries be made in revenue records to secure the same and to prevent encroachment and illegal transfer of school properties; that Provincial Government to ensure that school buildings display in conspicuous place the fact that it was a school and within the school building there should be disclosure of teachers employed at each school; that Provincial Government should inform the Board about number of subjects and books that were required for next academic year well in advance and Finance Department should make necessary allocation in budget; that Board should print and distribute school books in timely manner to ensure that the same were available when academic year would start; that Principal or teachers of each school should maintain a record of children attending school and mark their daily attendance; that Education department, Provincial Government should devise a comprehensive format for inspection of schools and District Education Officer should ensure that such inspection was carried out periodically in his/her district and that Provincial Government should take tangible measures to ensure that all children, boys and girls, from the age of five through sixteen attend school---High Court further observed that for the consideration of Provincial Government that School buildings should he designed and constructed in accordance with the prevailing physical environment, ensuring that the school looks welcoming, is environmentally friendly and does not require frequent maintenance. In this regard the Government may consider not to have the facade of the school building and walls plastered or painted and instead retain the brick-look, which will result in considerable saving of cost and also ensure the same continues to look presentable; that those who were killing/attacking teachers or destroying schools should not be given coverage on the media to propagate their views or advocate their cause or justify such acts---Such organizations may also be proscribed under the Anti-Terrorism Act, 1997, if they were not already proscribed and that to spread the message of Islam, through the media and other sources, advocating reading, writing and acquiring knowledge as a religious duty of all Muslims, as well as being a requirement of the Constitution, and the propagate that all children from the ages of five through to sixteen, both boys and girls, are required to attend school.

Kamran Murtaza for Petitioner.

Shai Haq Asstt. A.-G. for Respondents Nos 1 and 2.

Naseebullah Tareen for Respondent No.3.

Date of hearing: 12th September, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 96 #

P L D 2014 Balochistan 96

Before Jamal Khan Mandokhail, J

Syed TAJ-UD-DIN---Appellant

Versus

AKHTAR MUHAMMAD and another---Respondents

F.A.O. No.6 of 2012, decided on 6th September, 2013.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(4)---Application for restoration of possession of tenant---Contention of tenant was that landlord had re-let shop in question---Application for restoration of possession was accepted by the Rent Controller---Validity---Application of tenant did not disclose the date of occupation of disputed shop by the new tenant---Tenant had failed to prove that new tenant had occupied the premises within two months after getting its possession by the landlord---Neither rent deed nor register of Notary Public had been produced before the Rent Controller by the tenant to prove his contention---No evidence was available on record to prove any rent transaction between the landlord and new tenant---Reliable and cogent evidence were required in that regard but the witnesses produced by the tenant had not confirmed the contents of application of tenant nor they had supported his statement---Tenant had failed to prove relationship of landlord and tenant between the landlord and alleged new tenant---Landlord had produced partnership deed proving a business of partnership between him and his partner---Possession of respondent over the premises was proved as a partner of the landlord---Tenant had filed application after a considerable long period without any explanation for delay---No time for filing such application had been provided in the Ordinance but claim must be "within a reasonable time"---Tenant was either not serious about his claim or he was not sure about the nature of possession of partner of landlord---Impugned order passed by the Rent Controller was not sustainable---Appeal was accepted and judgment and decree passed by the rent Controller were set aside.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(4)---Restoration of possession of tenant---Conditions---Pre-conditions for getting relief under S.13(4) of West Pakistan Urban Rent Restriction Ordinance was to prove that landlord himself or a child for whose personal need the premises was required had not occupied the premises within one month from the date of an eviction order or premises had been re-let to a person other that the previous tenant within two months after getting its possession.

Syed Mumtaz Hussian Baqri and Sabra Islam for Appellant.

SAM Qadri for Respondents.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 100 #

P L D 2014 Balochistan 100

Before Qazi Faez Isa, C J

GHULAM DASTAGIR and 3 others---Petitioners

Versus

The STATE---Respondent

Criminal Revision No.114 of 2009, decided on 29th November, 2013.

(a) Probation of Offenders Ordinance (XLV of 1960)---

----S. 5---Sentence of community service---Object and scope---Community service order is intended to be constructive and positive and benefits both the offender and the community---State saves expenses of keeping the offender incarcerated and also helps in preventing overcrowding of prisons---Offender's family unit is not disrupted, he may retain his employment and if he is studying he may continue to do so---Sentence of community service is less damaging to self-esteem and the offender does not risk exposure to undesirable elements in jail---Offender makes a contribution to the community and is likely to derive an increased sense of personal achievement and pays back to society for his wrongdoing and works towards developing a sense of social responsibility.

(b) Balochistan Wildlife Protection Act ( of 1974)---

----Ss. 8, 11, 13 & 19---Probation of Offenders Ordinance (XLV of 1960), S.5---Illegal hunting of protected animal---Appreciation of evidence---Community service, sentence of---Concept---Accused were convicted for hunting two female Markhors and were sentenced to imprisonment for six months and fine but Lower Appellate Court reduced the sentence to imprisonment for ten days---Validity---High Court in exercise of revisional jurisdiction maintained sentence of imprisonment for six months imposed by Trial Court and set aside the order of Lower Appellate Court to such extent that accused were admitted to probation upon executing requisite bonds---Probation would be for the minimum prescribed period of one year---Condition of probation and of the bond would be for accused to render community service by planting twenty five trees each and to take care of them for the period of their probation---In case any tree did not survive, it would be replaced by another---High Court estimated that time spent on planting and nurturing one tree for a year would be four hours, therefore, duration of community service to be rendered by each accused in respect of 25 trees would come to 100 hours of community service---Revision was disposed of accordingly.

Waseem Khan Jadoon for Petitioner.

Tariq Ali Tahir, Addl. A.-G., Ms. Sarwar Hina, Addl. Prosecutor-General and Ameer Hamza Mangal, Deputy Prosecutor General for Respondent.

Date of hearing: 8th November, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 109 #

P L D 2014 Balochistan 109

Before Jamal Khan Mandokhail and Shakeel Ahmed Baloch, JJ

ASHFAQUE AHMED and 4 others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 3 others---Respondents

Constitutional Petition No.258 of 2013, decided on 13th November, 2013.

(a) Words and phrases---

---"Complaint"---Definition.

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

----S. 18(a)---Constitution of Pakistan, Art.199---Constitutional petition---Reference to Accountability Court---Initiation of proceedings on the directions of Service Tribunal---Scope---Petitioner/civil servant challenged penalty order passed by the departmental authority before the Service Tribunal---Petitioner was found involved in embezzlement, therefore the Service Tribunal referred the matter to National Accountability Bureau for initiation of proceedings---National Accountability Bureau, in pursuance of the directions of Service Tribunal, sanctioned investigation into the matter and finally submitted a reference against the petitioner before Accountability Court---Contention of the petitioner was that cognizance of any offence could only be taken on a reference made by the Chairman National Accountability Bureau and as such proceedings initiated on the directions of Service Tribunal were coram non judice---Validity---Anybody or any authority could inform the National Accountability Bureau that a person holding a public office was involved in an offence punishable, such information could be termed as complaint---National Accountability Bureau authorities could initiate proceedings against a person on its own accord, only on coming to know about an offence from any source, including a reference received from government or upon receipt of a complaint---Such information could also be gathered from a judgment or order of Tribunal or Court, forming basis to initiate proceedings by the Chairman NAB on its own accord---Reference submitted on the directions of a Tribunal, did not vitiate the investigation or proceedings before the Trial Court---Constitutional petition was dismissed.

Muhammad Aslam Chishti and Abdul Rasheed Khokhar for Petitioner.

Muhammad Afzal Jami, Deputy Prosecutor-General ("DPG") along with Ameer Zaman Joqezai, Special Prosecutor, NAB.

Date of hearing: 10th September, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 113 #

P L D 2014 Balochistan 113

Before Muhammad Hashim Khan Kakar, J

MIR SANAD KHAN and 6 others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision Petition No.148 of 2012, decided on 13th September, 2013.

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

----S. 4(k), (l), (m)---Inquiry, investigation, judicial proceedings---Scope---Expressions 'judicial proceedings" and "inquiry" used in provisions of S.4(k)(l)(m), Cr.P.C., were not synonymous and the difference was apparent from the definitions---Expressions "inquiry" and "judicial proceedings" also could not be termed as synonymous and interchangeable; both terms were quite distinct from each other having altogether different characteristics and nothing was common between the adjudicative forums, by whom separate prescribed procedure and mechanism were followed for adjudication; and both the forums had their own domain of jurisdiction---"Inquiry" was to be made by Magistrate, whereas the "investigation" was to be undertaken by Police or any person other than a Magistrate or court---Object of "investigation" was collection of evidence, but that of an inquiry was determination of truth or falsehood of certain allegations in order to take further action---"Inquiry" was something different from trial; when inquiry would stop the trial would begin---Proceedings before a Magistrate, prior to the framing of a charge for the statement of particulars of the offence charged, which did not result in conviction or acquittal, could be termed as "inquiry"---Judicial proceedings would include any proceedings in the course of which evidence was or could be taken on oath---Not necessary that every proceedings in which evidence had taken on oath, could be termed as judicial proceedings---"Criminal trial" and "inquiry" proceedings were independent of each other, and different standard of evidence was required in both such proceedings---Result of one could not influence the other.

(b) Words and phrases---

----'Fact',---Defined and explained.

----Arts. 59 to 65---Opinion of witness, admissibility---Opinion of a witness was irrelevant and inadmissible in evidence, except the exceptions as envisaged under Arts.59 to 65 of Qanun-e-Shahadat, 1984, which allowed admission of opinion in evidence.

(d) Criminal trial---

----Conviction, basis of---Conviction of an accused could only be based on the basis of evidence properly recorded by competent court of law, having jurisdiction to try accused; to hold otherwise, would lead to the absurd result that Trial Court would be competent to act on evidence recorded by anybody, irrespective of the consideration, whether it was recorded by a court or a Magistrate or by any other individual; or whether it was recorded in an informal manner without any jurisdiction to record the same.

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

----S. 540---Summoning material witness or examining persons present---Power of court---Object of S.540, Cr.P.C., as a whole was to do justice not only from the point of view of accused and the prosecution, but also that of orderly society---Section 540, conferred a wide discretion on the court to act as the exigencies of justice---Discretion was to be exercised judiciously, only for the ends of justice and it did not confer on any party the right to examine, cross-examine or re-examine any witness which was entirely the discretion of the court---Witness could not be examined under S.540, Cr.P.C., as court-witness just to fill up the gap of the prosecution's case, or to prolong the proceedings---Paramount consideration was doing justice between the parties---Proposed statement of Magistrate, was not a statement about fact, but was only his opinion drawn from the material collected by him; which was neither admissible in evidence, nor binding upon the Trial Court, while deciding the fate of the case---Calling of the proposed witness in the present case, was nothing, but a futile activity just to prolong the proceedings, because Court had formed its opinion on the basis of evidence furnished in the case---Witnesses sought to be summoned and examined, were already produced and examined by the prosecution witnesses---Trial Court was not to summon said witness i.e. Magistrate as his evidence was absolutely not essential for the just decision of the case---Evidence of proposed witness was neither admissible, nor could the same be used as incriminating piece of evidence against accused persons---Proposed witness/Magistrate, had only conducted an inquiry, entrusted to him by the Trial Court to determine the truth or falsehood of the occurrence in question on administrative side; and his opinion was not binding upon the Trial Court---Impugned order passed by the Trial Court was set aside and application filed under S.540, Cr.P.C., was dismissed, in circumstances.

Syed Ayaz Zahoor for Petitiners.

Mujeeb Ahmed Hashmi for the Complainant.

Abdul Sattar Durrani, Addl. Prosecutor General for the State.

Date of hearing: 6th August, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 120 #

P L D 2014 Balochistan 120

Before Muhammad Kamran Khan Mulakhail, J

ABDUL LATEEF and 13 others---Petitioners/Convicts

Versus

THE STATE---Respondent

Criminal Revision No.46 of 2013, decided on 7th March, 2014.

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

----Ss. 537(b) & 225---Failure to mention particulars required to be stated in the charge---Effect---Such was an error, curable subject to the condition that accused was not misled, or it had no occasion of failure of justice---Provisions of S.537(b), Cr.P.C., provided that every conceivable type of error, and irregularity referable to the charge, was curable; and it was not to be regarded as fatal, unless case of either party was prejudiced.

(b) Criminal trial---

----Motive---Scope---Motive was not always necessary to be brought, and in presence of unimpeachable ocular evidence, absence of motive was not helpful to the defence---Motive once alleged, if not proved, would lead to the failure of prosecution.

----Ss. 337-A(i), 337-E(e), 337-F(v), 337-N(2) & 149---Causing Shajjah-i-Khafifah, Hashimah, awarding Tazir, common object---Appreciation of evidence---Benefit of doubt---Motive alleged by the prosecution, not only was admitted by defence, but same was sufficiently proved by the statement of the witnesses; and the suggestions made by the defence---Motive was not shrouded in mystery---Complainant reiterated the facts as contained in the F.I.R.---Injured prosecution witnesses had assigned specific roles to accused persons---Injuries on the person of the prosecution witnesses were further corroborated by the medical evidence---No plausible defence could be brought by any one of the accused persons, as none entered in his defence, nor produced any defence witness; and the question of mala fide was left unattended---Number of persons belonging to one family, were nominated in the case---Nomination of as many as elderly members of the opponent family was motivated by the object of humiliation; except the accused person, no overt act was assigned to the rest of the persons---Injured witness not always speak the whole truth---Out of 14 accused persons, case of eight accused persons was not free from doubt; benefit whereof would be extended in their favour, not as a grace, but as a right---Only five, out of total fourteen accused persons, had been assigned a specific role---Injuries caused to the injured prosecution witnesses were corroborated by means of unimpeachable evidence---Prosecution, in circumstances, had successfully proved its case against five accused persons, they were rightly held responsible for commission of offence, while rest of them could not be held responsible for any criminal wrong; their offence was covered by S.337-N(2), P.P.C., as nothing was on record to establish that they had any credentials or antecedents of being previous convict, hardened or habitual, desperate or dangerous criminals---Occurrence, had taken place about two and half years ago and accused had been facing the agony and anguish of a trial---Eight accused persons, were acquitted of the charge by extending them benefit of doubt in their favour, while five accused persons were convicted under S.337-A(i) and S.149, P.P.C. and sentenced to pay Daman---One of accused persons in addition to said sentence was also convicted under S.337-F(v), P.P.C. and sentenced to pay Daman.

Samano v. The State 1973 SCMR 162; Riaz Hussain v. The State 2001 SCMR 177 and Haji Maa Din v. The State 1998 SCMR 1528 ref.

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

----S. 149---Common object---Scope of S.149, P.P.C.---While awarding the sentence, a distinction had to be made in respect of accused, who were armed with deadly weapons or otherwise.

Babar Ali and others v. The State PLD 1968 SC 372; Mir Dad alias Amir Dad v. The Crown 1969 SCMR 419; Amir Hussain and others v. The State PLD 1971 Kar. 68 and Amir Hussain and 6 others v. The State 1971 PCr.LJ 297 ref.

Muhammad Qahir Shah for Petitioners.

Abdul Karim Malghani for the State.

Date of hearing: 13th December, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 128 #

P L D 2014 Balochistan 128

Before Qazi Faez Isa, C.J. and Muhammad Kamran Khan Mulakhail, J

MUHAMMAD KHAN---Petitioner

Versus

AMANULLAH and 2 others---Respondents

C.P. No.(s) 108 of 2013, decided on 19th December, 2013.

(a) Balochistan Zakat and Ushr Act (I of 2012)---

----S. 14---Word "political activity" mentioned in S.14, Balochistan Zakat and Ushr Act, 2012---Scope---Word politics denotes science of government or art of practice of administering public affairs---Participation in local council elections is "political activity".

(b) Balochistan Local Government Act (V of 2010)---

----S. 24---Balochistan Zakat and Ushr Act (I of 2012), Ss.14 (4) & 23---Constitution of Pakistan, Art.199---Constitutional petition---Local bodies elections---Nomination papers, rejection of---Chairman District Zakat Committee---Public servant---Petitioner was Chairman District Zakat and Ushr Committee, who resigned from the office few days before filing nomination papers for local bodies elections---Nomination papers were rejected by Appellate Authority on the ground that six months had not elapsed since his resignation from the office of Chairman District Zakat and Ushr Committee---Validity---Legislature in its wisdom had introduced a period of six months so that any influence Chairman District Zakat and Ushr Committee had, would not impact the result of elections---Any person engaged in administration of Zakat was also termed as "public servant" and all public servants were disqualified to be elected or to hold an elective office of local council unless a period of six months had elapsed, since his/her retirement or resignation from the office---Petitioner was conscious of the fact that being Chairman District Zakat and Ushr Committee he could not take part in political activity, therefore, he resigned from the office, otherwise there was no need for him to resign---Petitioner being public servant and engaged in administration of Zakat, incurred a disqualification for a period of six months in view of S.24(1)(f) of Balochistan Local Government Act, 2010---High Court declined to interfere in order passed by Appellate Authority, as the order was in accordance with law---Petition dismissed in circumstances.

Tahir Ali Baloch for Petitioner.

Nadir Ali Chalgari and Asif Baloch for Respondent No.1.

Shai Haq Baloch, Assistant A.-G. for Official Respondents.

Date of hearing: 21st November, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 132 #

P L D 2014 Balochistan 132

Before Qazi Faez Isa, C.J. and Muhammad Kamran Khan Mulahkhail, J

NOOR UDDIN KHAN TAREEN---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 3 others---Respondents

Constitutional Petition No.586 of 2011, decided on 9th April, 2014.

(a) Quetta Development Authority Ordinance (IV of 1978)---

----Preamble---Constitution of Pakistan, Arts. 24 & 199---Constitutional petition---Mosque, illegal construction of---Illegal encroachment upon and occupation of Government land for construction of a mosque---Building plan and approval for construction of mosque not obtained---Effect---Demolition of illegally constructed mosque---Mosque in question was being constructed in the vehicle parking area of a public park belonging to Quetta Development Authority ("Authority")---Building plan of the public park did not show any area that had been earmarked for construction of a mosque---Construction of mosque in question was being raised without requisite approval of a building plan---Land grabbing and illegal encroachment, even for the purpose of construction of a mosque was not permitted by the Quetta Development Authority Ordinance, 1978 and the Constitution---Islam forbade the seizure of another's property, even if it was used for a noble purpose---Islam encouraged Muslims to vie with each other in good deeds, to donate their own lands or buy lands for construction of mosques and charitable purposes, but Islam forbade seizing someone else's land for such purpose---Forcefully building a mosque on another's land, including land held by Government or a statutory authority, was tantamount to devouring someone else's property and also a sin---Act of raising any construction in vehicle parking area of the (public) park was contrary to Quranic Injunctions and the examples and sayings of the Holy Prophet (p.b.u.h)---High Court directed the Authority to take back possession of the area, situated in the vehicle parking of the park, where partial construction of the mosque had been raised and to demolish same, and to ensure that entire land of the park was preserved and no encroachments were made thereon---High Court observed that unfortunately public lands, including designated amenity plots, were illegally trespassed and encroached upon and used to build 'mosques', and public functionaries whose duty was to preserve such properties either looked the other way or got intimidated---Constitutional petition was disposed of accordingly.

Verses 107 through to 110 of Surah Al-Taubah (9); Ma'ariful Quran published by Maktaba-e-Darul-Uloom, Karachi, Edn. 2010; Surah An-Nisa (4) Al-Sunan-ulkubra lil behaqi, 316/8; Muslim Vol 1, p.200; Sahih Bukhari Vol. 1, p.283; Fath Al-Qadeer, Vol.2 at p.875; Fatawa Alamgiri, Vol. 3 , p.235; Fatawa Alamgiri, Vol 6, p.214; Fath Al-Qadeer, Vol 2, p.777; Rad Al-Mohtar al-Mashoor bil Shami, Vol. 3, p.513; Fatawa Biynaat Vol. 3, p.630; Al-Bahralraeq Kitab ul Waqf, Vol. 5, p.197; Fath Al-Qadeer, Vol. 1, p.377; Mashkawat-ul-Masabeh, Vol. 1, p.255; Al-Dar ul Mukhtar Ala Hamish Rad ul Muhtarij, Vol. 1, p.280; (4:29); Ghamidi, Mizan, p.503; Muslim No.1218; Kitabul Waqf, Vol. 5., p.328; Kitabul Waqf, Vol. 2, Chap.1, p.353; Kitabul Waqf Matlab: Manazira Ibn Shana, Vol. 4, p.390 and Kitabul Waqf, Vol. 2, Chap.1, p.353 ref.

(b) Quetta Development Authority Ordinance (IV of 1978)---

----Ss. 3 & 4---Quetta Development Authority ("Authority")---Governing Body---Power to allot/grant land belonging to the Authority---Scope---Governing Body of Quetta Development Authority comprised of a Chairman, Director-General and ten other Members---Law did not grant an individual member of the Governing Body, nor even its Chairman the power to grant, divest or give away land belonging to the Authority.

----Mosque---Mosques are for Allah and not for a particular group, party, sect (mazhab) or sub-sect (maslaq).

Surah Al-Jinn (72) ref.

(d) Islamic Jurisprudence---

----Mosque---Principles of Shariah governing mosques.

Following are the principles of Shariah governing mosques:---

(i) To constitute a sharee masjid the following conditions must be fulfilled: firstly, the land must be given with consent, without fear, threat or coercion, secondly, the land must be given by the legal owner of the land who is capable to grant it, thirdly, it must be legally accepted, and, fourthly, the land must be separated from the land in which another has an interest therein, including one's own;

(ii) To forcefully build a mosque on another's land, including land held by a government or a statutory authority, is tantamount to devouring someone else's property and is a sin;

(iii) There is a distinction between a "sharre masjid (a mosque built in accordance with shariah)" and "jai musalla" (a place where people may simply pray), and a jai musalla does not constitute a mosque, and therefore can be demolished;

(iv) If the law requires the submission and seeking approval of building plans before building a mosque the same must be complied with;

(v) A 'mosque' that is built to cause dirar (dissension) amongst Muslims is haram and cannot be categorized as a mosque and Muslims must not offer prayers therein;

(vi) If a mosque is built out of obstinacy or enmity or some other ulterior motive, it will not earn reward for the builder, and may also constitute a sin;

(vii) If a mosque is sincerely built for the sake of Almighty Allah and without a motive to earn name, fame and/or recognition one earns sawab (reward); and

(viii) In building mosques the best example is that of Prophet Muhammad, peace and blessing be upon him, who, despite being offered free land, purchased the land on which he built a mosque, which was open to all Muslims, men and women, old, young, every race and colour.

Muhammad Riaz Akhtar Tareen for Petitioner.

Shai Haq, Assistant A,-G. for Respondents Nos. 1 and 4.

Baz Muhamamd Kakar and Jamal Abdul Nasir for Respondents Nos. 2 and 3.

Rauf Atta and Abdullah Khan Kakar for Abdul Baqi.

Hadi Shakeel Ahmed and Muhammad Qahir Shah for Metropolitan Corporation, Quetta.

Dates of hearing: 12th, 26th September, 27th November and 16th December, 2013.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 152 #

P L D 2014 Balochistan 152

Before Qazi Faez Isa, C.J. Jamal Khan Mandokhail and Naeem Akhtar Afghan, JJ

DUR MUHAMMAD KHAN NASAR and others---Petitioners

Versus

MUHAMMAD SHAFIQ TAREEN and others---Respondents

Constitutional Petitions Nos. 774, 775, 937, 943 of 2013 and 84, 207 of 2014, decided on 6th May, 2014.

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

----S. 67---Constitution of Pakistan, Arts. 225 & 199---Interlocutory order passed by Election Tribunal--- Whether a constitutional petition under Art.199 of the Constitution could be filed to assail such an interlocutory order---Constitutional petition under Art.199 of the Constitution could not be filed against an interlocutory order of an Election Tribunal if in respect of the final order of such Tribunal an appeal laid to the Supreme Court under the Representation of the People Act, 1976---Such constitutional petitions were to be dismissed on the ground of non-maintainability with no order as to costs, without touching upon the merits of any case. Zahid Sarfaraz v. Nadir Pervaiz Khan 1987 SCMR 1107; Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396; Muhammad Asim Kurd alias Gailoo v. Lashkari Khan Raisani 1999 SCMR 689; Muhammad Hussain Babar v. Election Commission of Pakistan PLD 2008 SC 495 and Federation of Pakistan v. Muhammad Nawaz Sharif PLD 2009 SC 531 rel.

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

----S. 14(S)---Constitution of Pakistan, Arts. 225 & 199---Appeal against rejection/acceptance of nomination papers filed before the Election Tribunal---Judgment/order of Election Tribunal assailed by way of judicial review under Art. 199 of the Constitution---Scope--Power of judicial review under Art. 199 of the Constitution was available with the High Court against the orders/judgments of Election Tribunal constituted to hear appeals against acceptance/rejection of nomination papers of candidates, as the same were not proscribed by Art.225 of the Constitution. Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Muhammad Arif Hussain v. Sikandar Iqbal PLD 2008 SC 429 and Federation of Pakistan v. Muhammad Nawaz Sharif PLD 2009 SC 531 rel.

----Ss. 67(3) & 103AA---Constitution of Pakistan, Arts. 225 & 199---Order of Election Commission declaring a poll as void---Judicial review---Scope---Power of judicial review under Art. 199 of the Constitution, in certain circumstances, was available in respect of orders passed by the Election Commission under S.I03 AA of the Representation of the People Act, 1976 as the Explanation to S.67(3) of the Act (which provided for filing of appeals to the Supreme Court) specifically excluded such orders, and as the same were not proscribed by Art. 225 of the Constitution. Nayyar Hussain Bukhari v. District Returning Officer, NA-49 PLD -2008 SC 487 and Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 rel. Aftab Shahban Mirani and others v. Muhammad Ibrahim and others (PLD 2008 SC 779) rel.

(d) Constitution of Pakistan--

----Art. 199---Election Tribunal constituted under the Local Government laws---Constitutional petition filed against an order/judgment of such Election Tribunal---Maintainability--Constitutional petitions under Art.199 of the Constitution could also be filed against the order or judgment of an Election Tribunal constituted under the local government laws, if no appeal was provided under such laws. Muhammad Naeem Kasi v. Abdul Latif 2005 SCMR 1699 rel.

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

----Ss. 63, 67(1) & (3) & 76---Appeal against decision of Election Tribunal---Forum---Appeal against a decision of an Election Tribunal under Ss. 67(1), 63 & 76 of the Representation of the People Act, 1976 laid to the Supreme Court. Zahid Sarfaraz v. Nadir Pervaiz Khan 1987 SCMR 1107 rel.

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

----S. 67---Constitution of Pakistan, Art. 185---Interlocutory order passed by an Election Tribunal---Appeal---Forum---Against an interlocutory order of the Election Tribunal no appeal laid to the Supreme Court, however, the appellant would be entitled, to raise all pleas available to him, including any preliminary objection regarding maintainability of the petition which had been overruled by the Election Tribunal. Zahid Sarfaraz v. Nadir Pervaiz Khan 1987 SCMR 1107; Muhammad Iftikhar Mohmand v. Javed Muhammad 1998 SCMR 328 and Muhammad Asim Kurd Alias Gailoo v. Lashkari Khan Raisani 1999 SCMR 689 rel.

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

----Ss. 52 & 67(1A)---Election petition---Expeditious disposal---Time frame---Election petitions must be expeditiously decided and those filed under S.52 of the Representation of the People Act, 1976 were required to be decided within four months as provided in S.67(1A) of the Act. Muhammad Asim Kurd Alias Gailoo v. Lashkari Khan Raisani 1999 SCMR 689 and Muhammad Usman Achakzai v. Election Tribunal Balochistan PLD 2010 SC 943 rel.

Muhammad Riaz Ahmed for Petitioners (in C.Ps.Nos.774 and 775 of 2013).

Tariq Ali Tahir, Addl.A.G. for Official Respondent (in C.Ps.Nos.774, 775, 937 and 943 of 2013).

Amanullah Achakzai for Petitioner (in C.P.No.937 of 2013).

Muhammad Qahir Shah and Nadir Khan Yousafzai for Respondent No.1 (in C.Ps.Nos.937, 943 of 2013 and 84 of 2014).

Syed Ayaz Zahoor for Respondent No.1 (in C.P.No.943 of

2013)

Tariq Ali Tahir, Addl.A.G. for Official Respondent (in C.Ps.Nos.84 and 207 of 2014).

Malik Sikandar Khan, Abdullah Baloch and Adnan Ejaz for Petitioners (in C.P.No.207 of 2014).

Date of hearing: 17th April, 2014.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 173 #

P L D 2014 Balochistan 173

Before Qazi Faez Isa, C.J. and Muhammad Ejaz Swati, J

Messrs BOLAN STEEL INDUSTRIES (PVT) LTD. through Managing Director and others---Petitioners

Versus

WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) through Chairman and others---Respondents

Constitutional Petitions Nos.904, 861, 890, 891, 892, 906 to 926 of 2011; 120 and 123 of 2012, decided on 8th July, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---"Subsidy"---Not a right .that could be enforced under Art. 199 of the Constitution---Subsidy was not a right, but a benefit, which could not be claimed as of right or as a Fundamental Right that could be agitated under Art.199 of the Constitution.

(b) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 31(4), second proviso---Constitution of Pakistan, Art. 199-- Constitutional petition---Electricity tariff---"Fuel price adjustment"---Legality and constitutionality-Petitioners had challenged the imposition of fuel price adjustment in their electricity bills---Held, that fuel price adjustment was not a tax, but was a price adjustment that took into account the variation in the price of the fuel, and in respect Whereof, from time to time, National Electric Power Regulatory Authority ("NEPRA") issued fuel price adjustment notifications---By imposition of fuel price adjustment, Electric Supply Company did not seek to recover anything beyond the cost of electricity consumed by the Petitioners/consumers---Fuel price adjustment was neither illegal nor unconstitutional---High Court directed that Electric Supply Company may recover the "fuel price adjustment" charges from consumers in twelve equal monthly installments-Constitutional petition was dismissed accordingly. S.S. Polypropylene (Pvt.) Ltd. v. PESCO (W.P.No.456-P of 2012; Pakistan Flour Mills Association v. WAPDA PLD 2013 Lah. 182 and Karachi Steel Mills v. WAPDA 2013 CLC 141 distinguished.

----S. 31---S.R.O. 233(1)/2011 dated 15-3-2011 issued by Government of Pakistan---S.R.O. 360(1)/2011 dated 6-5-2011 issued by Government of Pakistan---S.R.O. 698(1)/2013 dated 5-8-2013 issued by Government of Pakistan---S.R.O. 911(1)/2013 dated 11-10-2013 issued by Government of Pakistan---Constitution of Pakistan, Art. 199---Constitutional petition---Electricity tariff---"Equalization surcharge"---Legality and constitutionality---Petitioners had challenged the imposition of "equalization surcharge" in their electricity bills by the Federal Government---Held, "equalization surcharge" attempted to reduce the effect of the financial impact of the subsidy granted (on electricity) by the Federal Government---Federal Government first granted subsidy and then 'sought to reduce the financial impact thereof by imposing the "equalization surcharge", therefore, it would not be correct to categorize the equalization surcharge as an additional imposition (in the electricity bills)---By imposition of "equalization surcharge", Electric Supply Company did not seek to recover anything beyond the cost of electricity consumed by the petitioners/consumers--Equalization surcharge was neither illegal nor unconstitutional---High Court directed that Electric Supply Company may recover the "equalization surcharge" from consumers in twelve equal monthly installments-Constitutional petition was dismissed accordingly.

(d) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 31(4), second proviso---Electricity tariff---"Fuel price

adjustment", calculation of---Required to be made by National Electric Power Regulatory Authority ("NEPRA") by "not later than a period of seven days"---No consequences for not complying with the seven day pro vision---Section 31(4), second proviso of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 provided that NEPRA may, on a monthly basis and not later than a period of seven days, make adjustments in the approved tariff on account of any variation in the fuel charges, and policy guidelines as the Federal Government may issue, and notify the tariff, so adjusted in the official Gazette---Said second proviso did not contain any consequences. for non-compliance with the seven days provision---Moreover, if the price adjustment was not done within the seven days the consumer did not suffer in any manner---Consumer would have to pay the same amount of the "fuel price adjustment" later rather than earlier. (in case it had been increased)--- Any delay caused by fixing a date for hearing and providing an opportunity to consumers to submit their objections to the proposed price variation was to the consumer's advantage. Niaz Muhammad Khan v. Fazal Raqib PLD 1974 SC 134 and Noor-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305 ref.

(e) Constitution of Pakistan--

--Fourth Sched., Part II, item No.4---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997), S.31(4), second proviso---Electricity tariff---"Fuel price adjustment"- "Equalization surcharge"---Federal Government or Federal Authority like National Electric Power Regulatory Authority ("NEPRA") could fix electricity tariffs, issue "Fuel Price Adjustment" notifications and determine "Equalization surcharge".

Muhammad Aamir Rana and Noor Ahmad for Petitioners.

Sher Shah Kasi, Deputy Attorney-General and Syed Ikhlaq Shah Standing Counsel for Federation.

Tariq Ali Tahir, Addl. A.G. Government of Balochistan.

Muhammad Shafiq for NEPRA.

Ghulam Mustafa Buzdar and Chaudhry Mumtaz Yousaf for

QESCO.

Talat Waheed Khan for WAPDA.

Dates of hearing 28th May, 4th June and 2nd July, 2014.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 186 #

P L D 2014 Balochistan 186

Before Qazi Faez Isa, CJ.

Dr. ABDUL RASHEED and another---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN, HEALTH DEPARTMENT through Secretary and 51 others---Respondents

Constitutional Petition No.252 of 2012, decided on 1st April, 2014.

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

----S. 98---Difference of opinion arising between members of Division Bench, as a result of which the matter was referred to the Referee Judge, without formulating the points for difference of opinion by dissenting Judges---Principles and method of resolution of such difference by Referee Judge elaborated. Muhammad Akram v. Muhammad Salim PLD 1964 (WP) Lah. 490 and Muhammad Niazi v. State PLD 2003 Kar. 536 ref.

(b) Constitution of Pakistan--

--Arts. 8, 22(3), 25 (1), 37(c) & 199---Constitutional petition---Educational institution---Allocation of seats-Technical, professional and higher education---Accessibility on merit---Petitioners assailed letter No. S. O-I(I-1)1/15/2011/4219-26, dated 25-2-12, issued by Balochistan government, whereby procedure was laid down to distribute seats for minor diplomas and major diplomas in Postgraduate Medical Institute at Quetta--- Validity---Reserving seats in the Institute for petitioners belonging to specific Divisions contravened Arts. 22(3)(b), 25(1) & 37(c) of the Constitution---Provisions of Art.8 of the Constitution stipulated that State would not make any law which could take away or abridged 41,ie rights so conferred (Fundamental Rights) and any law made in contravention of said clause (8(2)) to the extent of such contravention was void---Letter assailed by petitioners did not have even the status of law, violated Constitution of Pakistan and therefore, was ultra vires the Constitution---Petition was maintainable and High Court whilst exercising jurisdiction under Art.199 of the Constitution could refrain official respondents from granting admission to the Institute on the basis of letter in question that had allocated seats to different Divisions of Quetta city, which was neither Charter of the Institute, Pakistan Medical and Dental Council Regulations or the Constitution permitted---High Court declared that Letter in question and basis of granting admission on Divisional quota basis prescribed therein was ab initio void, illegal and ultra vires the Charter of the Institute, Pakistan Medical and Dental Council Regulations and the Constitution, therefore, was set aside---High Court directed the authorities to admit petitioners to the Institute strictly on the basis of merit---Petition was allowed accordingly. Muhammad Akram v. Muhammad Salim PLD 1964 (WP) Lah. 490; Muhammad Niazi v. State PLD 2003 Kar. 536; Fiaqat Hussain v. Federation of Pakistan PLD 2012 SC 224; Pakcom Limited v. Federation of Pakistan PLD 2011 SC 44; Attiyya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161; Muhammad Ikram v. Principal and Chairman Admission Committee 2014 MLD 1; Muhammad Ilyas v. Bahauddin Zakaria University 2005 SCMR 961; Muhammad Majeed v. Government of Pakistan PLD 2002 Lah. 290; Tufail Muhammad v. Muhammad Ziaullah Khan PLD 1965 SC 269; Abdul Baqi v Muhammad Akram PLD 2003 SC 163; Muhammad Afaq v. Federal Public Service Commission 2001 CLC 2001 and 2003 CLC 18 ref.

----R. 45(2)---Difference of opinion---Principle---In case of disagreement of Minister with his Secretary, which do not derogate from any sanctioned Government policy, the views of Minister prevail as per R.45(2) of Balochistan Rules of Business, 1976.

(d) Good governance---

----Working of government cannot be on the basis of conjunctures and surmises.

Muhammad Qahir Shah for Petitioners.

S.A.M. Qadri for Respondents Nos. 3 to 40.

Naseebullah Tareen for Respondents Nos. 41 to 52.

Dates of hearing: 21st, 28th February and 14th March, 2014.

PLD 2014 QUETTA HIGH COURT BALOCHISTAN 206 #

P L D 2014 Balochistan 206

Before Qazi Faez Isa and Muhammad Ejaz Swati, JJ

ATTAULLAH and another---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN, LOCAL GOVERNMENT RURAL DEVELOPMEN AND AGROVILLES DEPARTMENT through Secretary and another---Respondents

Constitutional Petition No.86 of 2014, decided on 23rd May, 2014.

(a) Balochistan Local Government Act (V of 2010)---

----S.12 [as amended by Balochistan Local Government (Amendment) Act (II of 2014)]---Balochistan Local Government (Election) Rules, 2013, R. 63(5), Forms XX, XXI, XXII & XXIV---Notification No.5-1/2010-13 (BLCEC)/1640-1704, dated 4-2-2014---Constitution of Pakistan, Arts.25, 32, 140-A, 199 & 226---Constitutional petition---Election---Special or reserved seats---Professionals and social workers---Entitlement---Open balloting---Petitioner assailed amendments made in S.12 of Balochistan Local Government Act, 2013, whereby category of professionals and social workers was included and R.63(5) of Balochistan Local Government (Election) Rules, 2013, to elect Chairman and Vice Chairman of local council with show of hands---Validity---Special or reserved seats could only be maintained in respect of a class, segment of society or a minority community that was considered to be downtrodden, impoverished, alienated or discriminated against and who had been specifically mentioned in the Constitution, like non-Muslims, women, peasants and workers---Social workers and professionals could not be categorized as tangible class and one that required either encouragement or protection as they were not downtrodden, impoverished, alienated or discriminated---By taking away reserved seats of workers and peasants and giving them to social workers and professionals was discriminatory, illegal and violated Art.25 read with Art.32 of the Constitution and protection and special status accorded to peasants and workers---Amendment in Balochistan Local Government (Election) Rules, 2013, whereby manner of voting for Chairman and Vice-Chairman of local council, from secret ballot to show of hands, could not be enacted as government had not been granted express authority by Balochistan Local Government Act, 2013, in such regard---Supreme Court and Federal Shariat Court had endorsed secrecy of ballots and Art.140-A, read with Art.226 of the Constitution mandated elections by secret ballot---Provisions of Balochistan Local Government (Amendment) Act, 2014, was repugnant to the Constitution and was void---Notification No.5-1/2010-13 (BLCEC)/1640-1704, dated 4-2-2014, was made in excess of jurisdiction, was ultra vires Balochistan Local Government Act, 2013, and the Constitution, the same was declared to be void and of no legal effect---Petition was dismissed in circumstances.

Chamber of Commerce and Industry v. Director-General, QDA PLD 2012 Balochistan 31; Muhammad Kamran Mullahkhail v. Government of Balochistan PLD 2012 Balochistan 57; Nasreen Khetran v. Government of Balochistan PLD 2012 Balochistan 214; President Balochistan High Court Bar Association v. Federation of Pakistan 2014 SCMR 1; Nazar Muhammad Barrich v. Election Commission of Pakistan PLD 2002 Quetta 1; Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166 and Abdul Majeed Khan v. District Returning Officer 2006 SCMR 1713 ref.

(b) Interpretation of statutes---

----Subordinate legislation cannot be made to operate retrospectively.

H. Shakil Ahmed for Petitioners.

Muhammad Qahir Shah and Tariq Ali Tahir, Addl. Adocate-General for Respondent No.1.

Haroon Kasi, Law Officer, Election Commission of Pakistan for Respondent No.2.

Dates of hearing: 19th and 20th May, 2014.

Supreme Court

PLD 2014 SUPREME COURT 1 #

P L D 2014 Supreme Court 1

Present: Tassaduq Hussain Jallani and Amir Hani Muslim, JJ

DOSSANI TRAVELS PVT. LTD and others---Appellants/Petitioners

Versus

Messrs TRAVELS SHOP (PVT) LTD. and others---Respondents

Civil Appeals Nos.800-L, 801-L, 802-L of 2013; Civil Petitions Nos.1148, 1348 of 2013 and C.M.As. Nos. 278-L, 279-L, 285-L, 287-L, 288-L, 289-L, 5328 to 5332, 5378, 5463, 5464, 5492, 5493, 5515 to 5522 and 5524 of 2013, decided on 27th August, 2013.

(On appeal from the orders dated 24-6-2013 and 9-7-2013 passed by Lahore High Court, Lahore in Writ Petition No.7253 of 2013 and judgment dated 15-7-2013 passed by Islamabad High Court, Islamabad in W.P. No.2939 of 2013)

(a) Constitution of Pakistan---

----Arts. 199, 175(2) & 187---Constitutional jurisdiction of High Court---Parameters of jurisdiction under Art.199 of the Constitution, enumerated.

While exercising powers under Article 199(1) of the Constitution, Courts should always keep in view the following three parameters of their jurisdiction;

(i) A High Court is the apex court in the province or in the case of Islamabad, of the capital territory, but they are the creatures of the Constitution and they have only that jurisdiction which has been conferred by the Constitution or under any law for the time being in force. Article 175(2) specifically mandates "no court shall have `any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."

(ii) The power of the High Court under Article 199 is "subject to the Constitution" and it can make any of the, following orders, "if it is satisfied that no other adequate remedy is available,"

(i) "directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or

(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or

(b) on the application of any person, make on order-.

(i) directing that person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without' lawful authority or in an unlawful manner; or

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office, or

(c) on the application of any aggrieved person, make an order giving such directions to any person or authority; including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the "enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II" (Fundamental Rights as interpreted by the Supreme Court of Pakistan).

(iii) The ambit and scope of the power of High Court under Article 199 of the Constitution is not as wide, as of the Supreme Court under Article 187 of the Constitution to pass any order or issue any direction or decrees for doing "complete justice".

(b) Administration of justice---

----Concept of justice---Judiciary, functions and role of---Judges were mere mortals but the functions they performed had divine attributes---By the nature of their calling, they dispense justice under the law and provide relief; however, `justice" in its generic sense was a relative concept and unless regulated by law, the dispensation, notwithstanding the noble intent would be rather subjective.

----Arts. 199 & 175(2)---Constitutional jurisdiction of High Court---Scope---High Court was the apex court in a Province or in the case of Islamabad, of the capital territory, but they were creatures of the Constitution and they had only that jurisdiction which has been conferred by the Constitution or under any law for the time being in force---Article 175(2) specifically mandated, "no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."

(d) Constitution of Pakistan---

----Art. 199 & 187---Constitutional jurisdiction of the High Court---Scope---Ambit and scope of the power of High Court under Art.199 of the Constitution was not as wide as of the Supreme Court, which under Art.187 of the Constitution could pass any order or issue any direction or decrees for doing "complete justice ".

(e) Constitution of Pakistan---

----Art. 18---Fundamental Rights---Freedom of trade, business or profession---Object and scope---Freedom of trade, business or profession was not an absolute right rather it was qualified by the expression, "subject to such qualifications, if any, as may be prescribed by law" and there were three exceptions which stipulated: (a) the regulation of any trade or profession by a licensing system; (b) the regulation of trade, commerce or industry in the interest of free competition therein; and (c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons "---By qualifying the right to business and trade, the Constitution makers wanted to create a balance between societal needs and the rights of an individual.

Messrs Raham Travels and Tours (Pvt) Ltd. v. Ministry of Religious Affairs, Hajj, Zakat and Ushr 2011 SCMR 1621; AIR 1963 SC 385; Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57; Pakistan Muslim League (N) through Khawaja Muhammad Asif M.N.A. and others v.Federation of Pakistan through Ministry of Interior and others PLD 2007 SC 642 and Information Systems Associates Limited through (CEO) v. Federation of Pakistan through Secretary Information Technology and Telecommunication Division Ministry of Information Technology and another 2012 CLC 958 rel.

Arshad Mehmood v. Government of Punjab PLD 2005 SC 193 distinguished.

(f) Interpretation of Constitution---

----Constitution of a country was an organic whole and the import of a certain provision had to be construed in the context of the overall scheme of the Constitution.

(g) Mala fide---

----Mala fide was a question of fact and had to be specific and not vague, in absence of which, an order passed or policy framed by the competent authority could not be annulled on such ground alone.

Dr. Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455 rel.

(h) Constitution of Pakistan---

----Arts 199, 187, 184 & 175---Trichotomy of powers between the Legislature,. Executive and the Judiciary---Principles---Exercise of judicial review over administrative actions---Judicial activism' and judicial restraint---Constitutional role of the Judiciary in a democracy---Scope.

One of the seminal principles of the Constitution of Islamic Republic of Pakistan is the concept of trichotomy of powers between the Legislature, Executive and the Judiciary. This principle underpins the rationale that framing of a government policy is to be undertaken by the Executive which is in a better position to decide on account of its mandate, experience, wisdom and sagacity which are acquired through diverse skills. The Legislature, which represents the people, enacts the law and the law so enacted acquires legitimacy. The judiciary on the other hand, is entrusted with the task of interpreting the law and to play the role of an arbiter in cases of disputes between the individuals inter se and between individual and the State. Judiciary neither has sword nor purse. The legitimacy and respect of its judgments is dependent on peoples' confidence in its strict adherence to the Constitution, its integrity, impartiality and independence. In changing times and judicialization of political issues, a certain degree of judicial activism by fearless and impartial judiciary is also essential for maintaining its integrity and people's trust. In most of the modern democracies, judiciaries have been called upon to provide wider meanings to various provisions of the Constitution so as to meet the challenges of modern times and to fill the gap between the law and the requirements of substantive justice. Every institution has to play its role in enforcing the Constitution and the. law. It is a multidisciplinary exercise. However, implementation of rule of law is the primary function of judiciary. This role is multi-dimensional and the most challenging facet of this role is to keep various institutions and the judiciary itself within the limits of their respective powers laid down in the Constitution and the law. The legitimacy of its judgments does not arise from the beauty of the language or the use of populist rhetoric. Rather it radiates from the dynamism reflected in interpreting the Constitution and in particular its Fundamental Rights provisions, in judicial restraint displayed in deference to the principle of trichotomy of powers, and in an impersonal and impartial application of law.

(i) Constitution of Pakistan---

----Arts 184 & 199---Constitutional jurisdiction under Art.184 and that of High Court under Art.199 of the Constitution---Judicial Review of administrative actions---Judicial vigilance and judicial restraint---Scope.

In contemporary age, there has been a significant growth in the judicial review of administrative actions and the grounds on which the Courts interfere have been expanded. This expansion, however, "has taken place in the shadow of competing concerns of `vigilance' and 'restraint' and it is faithfulness to these dual concerns of vigilance and restraint which produces the unique supervisory jurisdiction which is the hallmark of judicial review." If the Courts fail to maintain this delicate balance, none else but people's confidence in the judiciary would be the worst victim.

As Radford has commented in "Mitigating the democratic deficit? Judicial review and ministerial accountability' in Leyland and Woods (eds.) Administrative Law Facing the Future (1997) at p.57 it is altogether appropriate that the judiciary should be alert to the dangers of straying into areas of policy, but their caution also serves, despite its farreacing impact, to highlight significant limitations on the legitimate scope of judicial review'; [1993] 1 IR 39, 71-72. See Also O'Sullivan High Court (Laffoy J.) 25 July 1996; Ni Eili v. Environmental Protection Agency High Court (Lavan, J.) 2 February, 1998; Watan Party v Federation of Pakistan PLD 2013 SC 167; [1995] 3 IR 406, 431. See also the dicta of O'Flaherty J. in Faulkner v. Minister for Industry and Commerce [1997] ELR 107 that[w]e do not service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis'; Dr. Akhtar Hassan Khan v. 'Federation of Pakistan 2012 SCMR 455; Imtiaz Rasheed Qureshi v. Federation of Pakistan through Secretary, Ministry of Power, Islamabad and 4'others 2009 CLC 1391; M.P. Oil Extraction and another v. State of M.P. and others 1997 7 SCC 592; Premium Granites and another v. State of Tamil Nadu and others (1994 1 SCR 579) and Narmada Bachao Andolan v. Union of India and others AIR 2000 SC 3751 ref.

(j) Constitution of Pakistan---

---Arts 187, 184, 199 & 175---Interpretation of Arts. 187, 184, 199 & 175 of the Constitution---Judicial review of administrative actions---Jurisdiction of the Supreme Court to have power to issue such directions, orders or decrees as may be necessary for doing "complete justice"---Scope and object---Examination of comparative constitutional provisions---Limits of jurisdiction of High Court in comparison to Constitutional jurisdiction of Supreme Court elaborated.

Jurisdictional limits of the powers of the High Court under Article 199 of the Constitution do not apply to the Supreme Court in terms of Article 187 of the Constitution. Supreme Court on account of general institutional dysfunction and to render "complete justice" has expanded the scope of judicial review in exercise of its powers under Articles 184(3) and 187 of the Constitution. But while doing so, it has also been conscious of the principle of separation of powers in terms of which the functions of various organs of the State have been delineated in the Constitution. It intervenes to ensure enforcement of Fundamental Rights, to address the menace of corruption when laws are blatantly violated and to fill the gap in law with a view to render "complete justice". The object has also been to ensure that State institutions perform their functions with integrity in f accord with law and the oath of their calling.

While seized of petitions under Article 199 of the Constitution, the High Courts at times are faced with prayers to pass order and provide relief for "doing complete justice". But such powers in constitutional, jurisdiction are vested in the Supreme Court under Article 187 of the Constitution. These powers are distinct both in scope and the manner of their exercise. The apex Courts in most of the democratic countries enjoy such powers. The powers of-the Supreme Court to pass any order or give any direction "for doing complete justice" are similar to those, which the Supreme Court of India enjoys under Article 142 of the Constitution of India and such powers cannot be exercised by the High Courts in India in exercise of their constitutional jurisdiction.

Under Articles 187 of the Constitution of Pakistan and Article 142 of the Constitution of India; the paramount consideration and the constitutional intent is common i.e. "for doing complete justice". These powers being inherent are complementary to those, which are specifically conferred on the Court by the Constitutions of these two countries. These powers remain undefined so that the Court can cater to any situation and could even mould the relief. However, this power should not be misconstrued to mean to pass any order, which is against the letter of law or against specific constitutional provisions. The rationale appears to be that in situations which cannot be resolved by existing provisions of law and warrant an intervention by the Court, it may pass an order to ensure "complete justice". This can also be used where the Court finds a gap in legislation and a solution is required till the Legislature acts and ' covers the field.

The very fact that this power is conferred on the apex Court alone has to be used sparingly and with an element of judicial restraint so as not to contravene any other constitutional provision or statute.

The Constitution makers conferred powers "to issue such directions, orders, or decrees as may be necessary for doing complete justice" (Article 187) only to the Supreme Court and not to the High Courts. This constitutional intent is significant and has to be kept in view by the High Courts. Power to render "complete justice" vests with the Supreme Court alone, whereas the High Court is a creature of the Constitution and can only exercise that power which is vested in it under the law.

For passing an order under Article 187 of the Constitution, no independent proceeding before the Court is required and once the Court is seized of a lis competently, it can pass orders, decrees for doing "complete justice".

Analysis of the comparative constitutional law from Pakistan and India would show that while the Supreme Courts in India and Pakistan have the power to issue any direction o1 pass a decree "for doing complete justice", the High Courts cannot pass any order in derogation to Article 199 of the Constitution or any law for the time being in force because "the principles of common law or equity and good conscience cannot confer jurisdiction on the Courts in Pakistan which has not been vested in them by law."

Watan Party v. Federation of Pakistan PLD 2011 SC 997; Sindh High Court Bar Association through Secretary and another v. Federation of Paksitan through Secretary Ministry of Law and Justice PLD 2009 SC 879; Corruption in Hajj Arrangements in 2010 (PLD 2011 SC 963); D.D.A. v. Skipper Construction AIR 1996 SC 2005; [(1996) 4 SCC 622; Vineet Narain v. Union of India (1998) 1 SCC 226; Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201; R.C.Patuck v. Fatima (1997) 5 SCC 334; AIR 1997 SC 2320; Case Book on Indian Constitutional Law by Durga Das Basu; Chandra Kant Patil v. State (1998) 3 SCC 38; S.A.M. Wahidi v. Federation of Pakistan through Secretary Finance and another 1999 SCMR 1904; Hitachi Limited and another .v Rupali Polyester and others 1998 SCMR 1618; Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others PLD 1997 SC 11; Pir Sabir Shah v. Shah Muhammad Khan, Member Provincial Assembly, N. W. F. P. and another PLD 1995 SG 66; Sheikh Rashid Ahmad v. The State PLD 1996 SC 168; Sandeep Subhash Parate v. State of Maharashtra and others AIR 2006 SC 3102 and Maharashtra v. Milind 2000 AIR SCW 4303 ref.

(k) Constitution of Pakistan---

---Arts. 199, 175(2) & 187---Constitutional jurisdiction of High Court---Scope---Constitutional limits on the jurisdiction of the High Court---Distinction between jurisdiction of High Court under Art.199 of the Constitution and jurisdiction of the Supreme Court by virtue of Art.187 of the Constitution---While seized of petitions under Art.199 of the Constitution, the High Courts at times were faced with prayers to pass order and provide relief for "doing complete justice"; however such powers in constitutional jurisdiction were vested only in the Supreme Court under Art.187 of the Constitution---Such powers were distinct both in scope and the manner of their exercise---Constitution makers conferred powers "to issue such directions, orders, or decrees as may be necessary for doing complete justice" (Art.187) only to the Supreme Court and not to the High Courts and such Constitutional intent was significant and had to be kept in view by the High Courts---Power to render "complete justice" vested with the Supreme Court alone, whereas the High Court was a creature of the Constitution and could only exercise that power which is vested in it under the law---High Courts could not pass any order in derogation to Art.199 of the Constitution or any law for the time being in force because the principles of common law or equity and good conscience could not confer jurisdiction on the Courts in Pakistan which had not been vested in them by law.

Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1618 rel.

(l) Constitution of Pakistan---

----Arts 199, 185, & 18---Constitutional jurisdiction of High Court---Judicial review regarding government policy---Scope---Framing of Hajj Policy, principles for---Allocation of Hujjaj quotas to Hajj Group Operators---Appeal to the Supreme Court impugning interim order passed by High Court in a Constitutional petition---Maintainability---

High Court, vide the impugned interim order, inter alia, directed that the Ministry of Religious Affairs to invite top 60 HGOs, who were given quotas in the previous years and 4 others to participate in the bidding process for obtaining of Hajj quotas, and that such candidates who offered lowest bids and satisfied other requirements be given license for 50 Hujjaj each---Contention of the appellants was, inter alia, that they being HGOs, and on account of their performance in the preceding year, had already been allocated the quota by the Ministry under the Hajj Policy 2013, and the impugned order being arbitrary and against law, be set aside; especially when the appellants had already made arrangements and booked pilgrims; and had been given a "Hajj Recognition Letter, 2013 "---Held, qualifications under Art.18 of the Constitution empowered the government to lay down a policy and the Hajj Policy had been framed in terms of the power of the government stipulated in the exceptions under Art.18 of the Constitution---Hajj Policy, was framed by the Ministry of Religious Affairs ("MORA") and was duly approved by the Cabinet; and the appellants were duly registered HGOs who had also been given a quota for the preceding year (2012) and had carried out the task without any complaint---Appellants had also started booking pilgrims who intended to proceed for Hajj in the current year and had made arrangements for the same and it was at such point of time that the Constitutional petitions were filed by the respondents ---No specific incidence of mala fide on account of appellants was pointed out and there was no allegation that the appellants had obtained the quota on account of any connection with some individual or due to political influence or that any individual in the Ministry had allotted the quota to the appellants for personal gain---Impugned order was an interim order, and while ordinarily the Supreme Court did not interfere with such an order, leave to appeal was granted in the present case as the High Court, through the impugned order, not only modified/substituted the Cabinet's decision with its own, but also practically decided the Constitutional petitions---High Court, through impugned order, had directed that quota retrieved from such Hajj Operators who had not performed well in terms of the scrutiny carried out by the Ministry, be allocated quota through the bidding process and such order was passed even without hearing the appellants who had already been allotted the said Hujjaj quota and had made arrangements for the same, including arranging of accommodation---Impugned order therefore, partly disturbed Hajj arrangements and arrangements made by private HGOs and the Ministry were adversely affected---Since the Hajj was a time-bound operation; it required a prompt intervention and adjudication at the Supreme Court level; in order to ensure that divergent opinions of various High Courts may not further disturb Hajj arrangements---Task of allocating quotas and making arrangements for Hajj fell within the policy making domain of MORA and in absence of any illegality, arbitrariness or established mala fides, it was not open for the High Court to annul the policy framed by the competent authority---Supreme Court observed that since Hajj operation was time-bound exercise, arrangements had to be made within that limited time, and it was therefore imperative that the Hajj Policy be framed well in time in such a manner which was fair, just, inspired confidence and evoked minimum criticism and that it was imperative that the Hajj Policy for the next year should be announced at the earliest after conclusion of the current Hajj---Supreme Court directed that the Hajj Policy be framed and placed on website of MORA preferably within six weeks of the arrival of last flight of Hajis, to Pakistan, subject to any policy decision of the Saudi Government regarding allocation of Hajj quota for Pakistan, and that the said Hajj Policy should be framed by a Committee headed by the Secretary, Ministry of Religious Affairs; a nominee of the Competition Commission of Pakistan; a nominee of the Secretary, Ministry of Foreign Affairs, Government of Pakistan; a nominee of the Secretary Ministry of Law and Justice Division and Parliamentary Affairs; and a nominee of the Attorney General for Pakistan; and that credentials of each applicant/HGO should be examined and decision taken on merit---While framing the Hajj Policy, MORA should be guided, inter alia, by the recommendations made by the Competition Commission of Pakistan and MORA should constantly monitor the working and performance of each HGO during Hajj and this assessment should form basis for further improvements in Hajj Policy for next year's Hajj---Impugned order of High Court, being inter alia, violative of the principle of trichotomy of powers, was set aside and appeals were allowed, accordingly.

Al-Raham Travels and Tours (Pvt) Ld. v. Ministry of Religius Affairs, Hajj, Zakat and Ushr PLD 2001 SC 1621 and 1641; Arshad Mehmood v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore PLD 2005 SC 193 at 231; Shaukat Ali v. Government of Pakistan PLD 1997 SC 342; The State v. Zulfiqar Ali Bhutto PLD 1978 Lah. 523, 663 and Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963 ref.

Dr. Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455 rel.

(m) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Policy framed by competent authority---In absence of any illegality, arbitrariness or established mala fides, it was not open for the High Court to annul the policy framed by the competent authority.

(n) Constitution of Pakistan---

----Arts. 185(3) & 199---Appeal to Supreme Court against an interim order passed by High Court under its constitutional jurisdiction---High Court, through the impugned interim order had not only modified/substituted cabinet's decision with its own but also practically decided the constitutional petition---Supreme Court ordinarily did not interfere with such an order but in circumstances, granted leave to appeal and decided the matter accordingly.

Afzal A. Haider, Advocate Supreme Court for Appellants (In C.As. 800-L to 802-L of 2013).

Muhammad Ikram Ch. Senior Advocate Supreme Court for Petitioners (in C.Ps. 1148 and 1348 of 2013).

Waseem Majid Malik, Advocate Supreme Court for Applicants (in C.M.A. 278-L, 5492 and 5524 of 2013).

A.K.Dogar, Senior Advocate Supreme Court for Applicants (in C.M.A. 279-L of 2013).

Saeed Ullah Khan, Advocate Supreme Court for Applicant (in C.M.A. 285-L of 2013).

Azhar Siddique, Advocate Supreme Court for Applicant (in C.M.As. 287-L, 288-L, 5328 to 5331, 5463, 5464, 5493, 5521 and 5522 of 2013).

Muhammad Ikram Ch. Senior Advocate Supreme Court for Applicant (C.M.As. No.289-L and 5477 of 2013).

Afzal A. Haider, Advocate Supreme_ Court for Applicant (in C.M.A. 5332 of 2013).

Mir Adam Khan, Advocate-on-Record and Nek Nawaz Khan Awan, Advocate Supreme Cuort for Applicant (in C.M.A. 5378 of 2013).

Qari Abdur Rasheed, Advocate Supreme Court for Applicant (in C.M.As. 5515 to 5520 of 2013).

Syed Arshad Hussain Shah, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for FBR.

Naveed Ihsan, Departmental Representative for SECP.

Muhammad Bilal, Senior Advocate Supreme Court and Babar Bilal, Advocate Supreme Court for CCP.

Saqib Jamal, .Manager Legal for NADRA.

Abdul Hayee Gillani, Additional Attorney General; Dil Muhammad Alizai, DAG, Jahanzeb Wahla, Standing Counsel, Shahid Khan, Secretary, Ministry of Religious Affairs, Shahzad Ahmad, Joint Secrtary, Ministry of Religius Affairs, Farid Khattak, Deputy Secretary, Ministry of Religious Affairs and Malik Saeed, Director Hajj, Lahore (One Court Call).

A.K.Dogar, Senior Advocate Supreme Court for Respondent No.1.

Azhar Siddique, Advocate Supreme Court for Respondents Nos. 4, 6, 10, 12, 14, 16, 18, 20-22, 29, 30, 32-34, 58-60, 64, 66, 68, 78, 79, 85, 87, 89, 92 and 94.

Qari Abdur Rasheed, Advocate Supreme Court for Respondent No.65.

Dates of hearing: 12th, 19th, 26th and 27th of August, 2013.

PLD 2014 SUPREME COURT 47 #

P L D 2014 Supreme Court 47

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Sh. Azmat Saeed, JJ

HABIBULLAH ENERGY LIMITED and another---Appellants

Versus

WAPDA through Chairman and others---Respondents

Civil Appeals Nos. 149 and 150 of 2010, decided on 21st August, 2013.

(On appeal from the judgments of the High Court of Sindh Karachi, dated 7-5-2008 and 28-2-2008, passed in C.Ps. Nos.D-442 and D-441 of 2007, respectively).

Per Sh. Azmat Saeed, J. Iftikhar Muhammad Chaudhry, CJ and Jawwad S. Khawaja, J. agreeing

(a) Constitution of Pakistan--

----Arts. 184 & I99---Judicial Review---Jurisdiction of superior Courts---Scope---Administrative actions---Award of contracts by the State or its functionaries---Public interest litigation---Jurisdiction of Superior Courts of Judicial Review for the enforcement of Fundamental Rights was not a "closed shop", particularly in the context of Public Interest Litigation (PIL)---Nature, scope and extent of the power of judicial review by the superior courts of administrative actions and the grounds on basis whereof such actions could be set aside had evolved with the passage of time and its contours stood clearly defined especially in the context of the award of contracts by the State or its instrumentalities

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Messrs Ramna Pipe and General Mills (Pvt.) Limited v. Messrs Sui Northern Gas Pipe Line (Pvt.) and others 2004 SCMR 1274; Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651; Sup Motu Case No.13 of 2009 PLD 2011 SC 619; Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary, Industries and Mineral Development and others PLD 2013 SC 641; Corruption in Hajj Arrangements PLD 2011 SC 963 and Stretching Computers Ltd. v. Messrs M. and N. Publications Ltd. AIR 1996 SC 51 rel.

(b) Constitution of Pakistan--

----Arts. 184 & 199--Judicial Review by Superior Courts--Scope---Administrative actions---Public functionaries, duties of---All public functionaries must exercise public authority, especially while dealing with public property, public funds, and assets; in a fair, just, transparent, and reasonable manner, untainted by mala fide without discrimination and in accordance with law, keeping in view the constitutional Rights of the citizens; and the same would hold true even in absence of any specific statutory provisions setting forth the process in such behalf-While exercising its jurisdiction, Superior Courts neither sit in appeal over administrative actions nor interfere on account of inconsequential deviations; however, where Administrative Authority acted in a discriminatory manner, and action failed the test of reasonableness, transparency and/or was otherwise unjust and unfair or suffered from mala fide, the Courts not only were vested with the jurisdiction to set aside such actions but any failure in such an eventuality to exercise power of Judicial Review, when invoked, would make the court a party to such unreasonable, unfair, mala fide and illegal action.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 rel.

----Art. 199---Constitutional jurisdiction of High Court---Scope---Locus standi-- Sale of public assets---Public Interest Litigation---Locus standi of employees of such public entity to invoke constitutional jurisdiction of High Court---Scope---Held, that constitutional jurisdiction of High Court could be invoked by workers employed in a public asset to question the propriety and integrity of the process of the transfer of rights in such an asset.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition before High Court---Lease of Power Plant (public asset)---Public Procurement---Transparency---Award of contract for lease of a public asset---Procedure---Appellants impugned order of High Court whereby their constitutional petitions challenging the legality of the transaction vide which a 20-year lease of a Power Generation Company was granted by WAPDA to the respondent; were dismissed---Contention of the appellants was, inter alia, that no specific advertisement was issued inviting bids for the lease of the said Power Plant, and in absence of such an advertisement, the entire process was liable to be set aside---Appellants further contended that respondent had easy and exclusive access to persons involved in the decision-making process; and that respondent's offer to obtain lease of the Power Plant was unsolicited; and it had obtained the lease through unfair means---Validity---Examination of the transaction in question revealed that the original process initiated through an advertisement was for appointment of an "Operator" of the plant; and such process was subsequently formally terminated, and thereafter the disputed contract for lease was initiated as a result of an independent process undertaken by WAPDA, unrelated to the procedure for the appointment of the "Operator"---No fresh public advertisement was issued and issuing of such an advertisement was universally accepted as a condition precedent for ensuring a free, fair, open, competitive, and transparent process for the transfer of public assets or rights therein---No compelling reasons had been pleaded by WAPDA for not issuing such an advertisement, and absence of the same, alone, was fatal for the transaction in question---Respondent was unilaterally given prior access to the Power Plant evidencing the availability of an unfair advantage and was also given access to the decision-making authorities at the highest level not only in WAPDA but also in the Presidency---Decision, in principle, to award the contract for lease to the respondent was taken at the highest level by the President, Prime Minister and Chairman WAPDA, and thereafter without issuing of any advertisement for the information of the public-at-large, only some such firms which had originally showed their Expression-of-Interest for being appointment as a "operator" of the Plant, were contacted---Such procedure was not only illegal but in fact was a farcical and mala fide attempt to clothe the transaction with some semblance of legality and the process appeared to be a infertile attempt to paper over illegalities---Such omissions and commissions made it clear that by no stretch of the imagination the impugned transaction was legal, transparent, fair, open or the result of a competitive and fair process---Power Plant was a public asset and those entrusted therewith were sadly found wanting, in the present case---Impugned transaction had not only been disowned by the Federal Government of which WAPDA was an instrumentality but also a categorical stand was taken by the Federal Government to the effect that the transaction was beset with irregularities and serious lapses---Supreme Court set aside impugned order of High Court and the transaction for grant of lease to the respondent was declared as not sustainable and direction was issued to Federal Government to fix civil and criminal liabilities in such regard---Appeals were allowed by Supreme Court, accordingly.

Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Petrosin Corporation (Pvt.) Limited and others v. MOL

Pakistan Oil and Gas Co. and others PLD 2008 SC 472; Messrs Subhan Deepwell Corporation Bahawalpur v. Project Diretor, Punjab Rural Water Supply and Sanitation Project HUD and PHE Department, Lahore and another 2001 CLC 1762 and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 ref.

Per Jawwad S. Khawaja, J agreeing with Sh. Azmat Saeed, J

(e)Constitution of Pakistan--

----Arts. 184 & 199---Judicial Review of administrative actions---Ownership of public sector enterprise---Nature, scope and concept---Public sector enterprises are public assets which belong beneficially to the people of Pakistan---While the State is entrusted with the management of such enterprises, the State agencies responsible for management do not thereby become owners of the enterprise and its assets and while public sector enterprises do not have shareholders like private corporations, that does not mean that the agency responsible for the management of the enterprise can exercise unbridled discretion in managing the enterprise.

(f) Constitution of Pakistan-

--Arts. 184, 199 & Preamble---Judicial Review of administrative actions---Control of public sector enterprises---Management of publically owned companies by State agencies---Nature of fiduciary duty of Public Functionaries in relation to public assets---Exclusive benefit principle---Fiduciary obligations.

Constitutional democracy is premised on a contractual theory of government, whereby power is delegated by the people to the government in accordance with the terms of the Constitution. The Preamble to the Constitution stipulates, inter alia, "that it is the will of the people of Pakistan to establish an order. State agencies responsible for the management of publicly owned companies are part of the "order" established by the will of the people, and thereby possess merely delegated authority.

Rather than being owners of public sector enterprises, State agencies stand in a fiduciary relationship to the people who are the beneficial owners of the publicly owned assets. The idea that rulers owe a fiduciary obligation to the ruled is at least two millennia old. The Roman philosopher and politician Cicero defined the nature of government as follows in De Officiis, "The guardianship of the State is a kind of trusteeship which should always be managed to the advantage of the person [or body which has] entrusted rather than of those to whom it is entrusted." The basis of fiduciary relations is the exclusive benefitprinciple, according to which the fiduciary has a duty to act solely in the interests of the beneficiary. Fiduciary obligations depend on the complete commitment of the fiduciary to act in the best interest of the principal.

Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 rel.

(g) Constitution of Pakistan--

----Arts. 184 & 199---Judicial review---Administrative actions---Fiduciary obligations of State agencies-Judicial mechanism to enforce fiduciary obligations of the State---Concept detailed.

A fiduciary obligation is not merely an ethical precept. As a legal imperative, fiduciaries must act in the best interests of the principal performing their functions with care and complete fidelity. In the private law context, where fiduciary duties are routinely enforced by the courts, elections alone are not considered sufficient to hold company directors responsible to shareholders and align their interests. Instead, in the area of corporate law, there is a recognition that the interests of elected directors and shareholders may diverge. Given that shareholders are numerous and diffuse, it may be difficult for them to effectively monitor the decisions taken by the Board. Further, because of collective action problems, the shareholders may find it difficult to coordinate and respond to abuse of discretionary authority by the Directors. Hence, corporate law employs a judicial mechanism, the enforcement of fiduciary duties, to align the interests of the shareholders and their agent, the Board of Directors. The structure of the principal-agent problem is the same in the case of State agencies, such that public officials may have an incentive to advance their own interests at the expense of the citizens' interests. In fact, the need for a judicial mechanism is even more acute in the case of State agencies, since the principal, the people, is even more numerous and diffuse than the shareholders of a company.

(h) Constitution of Pakistan--

----Arts. 184 & 199---Judicial Review---Judicial oversight of administrative actions---Scope.

Not all decisions by State functionaries are to be subjected to an exacting judicial oversight. This is because the principal, (the people), has in fact vested State agencies with discretionary power of an administrative nature. Such delegation of authority by the principal is essential to the efficient functioning of the government. However, given the possibility of the agent's deliberate or negligent deviation from the best interests of the beneficiary, the court will enforce fiduciary obligations under certain circumstances. A breach of the duty of loyalty, such as in the case of a self-dealing transaction or one involving conflict of interest, will trigger heightened scrutiny by the court. Further, if public officials fail to exercise the duty of care that is expected of a prudent manager, the court will assess the underlying action or transaction to ascertain whether the state functionaries have breached their fiduciary obligations to the people of Pakistan.

(i) Constitution of Pakistan--

----Arts. 184 & 199---Judicial Review of administrative actions--Illegalities and irregularities in the bidding process for grant of lease of public power plant---Condoning illegalities in the public interest---Public Interest---Doctrine of necessity---Plea taken before the Supreme Court was that the court should, despite irregularities and defects in the bidding process; condone the tainted transaction in the public interest as it was contended by the respondent that there was no unfairness, inequity, and impropriety in the final stage of the bidding process and Its evaluation---Validity---Court was urged to accomplish the impossible: to condone a breach of the rule of law in public interests---If the court takes upon itself to selectively condone infractions of obligations owed by the State to the people, any semblance of the rule of law in the country will evaporate---Assertion that the final stage of the bidding process was free from procedural defects was at best, a questionable assertion and at worst, was deeply inimical to the idea of Rule of Law---Protracted series of defective decisions followed by a final procedurally adequate decision will not lead to a lawful outcome---If the courts focus only on the final stage of the process, it will give carte blanche to the State agencies to abuse the discretion that has been delegated to them by the principals i.e. the honourable people of Pakistan---In asking the court to condone' a violation of the fiduciary duties owed by the State agency to the people, resort is being made to the now defunct "doctrine of necessity "---Path of expediency and subjective notions ofState necessity' are dead and buried---Idea that the court ought to base its decisions on the consequences of government action alone without consideration of the decision-making process is a frontal assault on the very concept of the rule of law---Idea of a "beneficial" deviation from core fiduciary duties of undivided loyalty, prudence, and reasonableness, which the State functionaries owe to the people of Pakistan must be rejected in the strongest terms.

Mobashir Hassan v Federation of Pakistan PLD 2010 SC 265 rel.

(j) Constitution of Pakistan--

----Arts. 184 & 199---Judicial Review---Administrative action--- Judicial activism and judicial restraint'---Nature, scope and connotation.

Judicial restraint and activism are value-laden concepts often employed in the media and in public discourse, to understand the impact of Court decisions. The Court itself, however, does not operate in the framework of these concepts. For the court, as guardian and interpreter of the Constitution, the only concept that matters is that of the rule of law. The court will not condone an illegal action by the State just because it will be perceived as an activist institution. The Constitution defines the role of the judiciary, as upholding the rule of law, and that is the only consideration the court will have while adjudicating the matters before it.

(k) Constitution of Pakistan---

----Arts. 184 & 199---Judicial review---Public functionary---Exercise of discretionary powers by State functionaries---Basis of discretionary power of State functionaries is the delegation of authority by the principal, the people of the country---State's legal authority is derived from such fiduciary relationship and if the State or its instrumentalities deviate from their fiduciary obligations, the underlying authority of the State to administer and enforce the law is thereby eroded and if this happens, the citizens, as legal subjects of the State, can no longer be expected to obey the law since the State itself has reneged on its public fiduciary duties---Violations of public fiduciary duties, cannot be condoned because doing so will lead to an erosion of the basis of the State's legal authority and the rule of law.

(1) Words and Phrases

---- "Public sector enterprise "---Nature, scope and concept.

(m) Words and Phrases

----"Fiduciary duty"---Fiduciary obligations in general and in relation to obligation of State agencies and public functionaries---Connotation and concept.

(n) Words and Phrases

---"Judicial activism" and "Judicial restraint"---Nature, scope and connotation stated.

(o) Public Functionaries--

----Exercise of discretionary powers by State (Public) functionaries---Fiduciary duties of Public functionaries---"Principal-agent" relationship---Delegation of power to public functionaries---Nature, scope and context stated.

Mian Gul Hassan Auranhgzeb, Advocate Supreme Court and Arshad Ali Ch. Advocate on Record for Appellants (in C.A.No.149 of 2010)..

Tariq Mehmood, Senior Advocate Supreme Court for Appellants (in C.A. No.150 of 2010)

Shah Khawar, Addl. A.G.P. on Court's Notice.

Shahid Hamid, Senior Advocate Supreme Court for Chairman, WAPDA and Lakhra Power Generation.

Raja Abdul Ghafoor, ASC/AOR, Saifullah Chatha, Secretary W&P, Zargham Ishaq, MD, PEPCO, Barrister Asghar Ali, Sr. Legal Consultant for M/o W&P.

Abdul Haseeb Khan, Sr. Legal Consultant for the Privatization Commission.

Kh. Muhammad Naeem, Chairman for NEPRA.

Wasim Sajjad , Sr. Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Associated Lakhra Energy.

Dates of hearing: 19th and 21st August, 2013.

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P L D 2014 Supreme Court 72

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Ch. NASIR IQBAL and others---Petitioners

Versus

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

Constitutional Petitions Nos. 39 and 90 of 2011, heard on 26th and 29th April, 2013.

(a) Constitution of Pakistan---

----Art.17 (2)---Right to vote---Scope---Every citizen has right under Art.17 of the Constitution to vote to participate in governance of country through their chosen representatives---Law provides people of country, irrespective of their social ethnical status and religious affiliation, to choose their representative in whom they repose confidence---Every eligible individual should be allowed to utilize the right to vote, irrespective of his caste or creed or any other consideration.

(b) Constitution of Pakistan-.

----Arts.17, 89 & 184(3)---Representation of the People Act (LXXXV of 1976), S. 103-A [as amended by Election Laws> (Amendment) Ordinance (IV of 2013)J---Electoral Rolls Act (XXI of 1974), Ss.47-A,47-B, 47-C, 47-D, 47-E, 47-F, 47-G, 47-H, 47-I, 47-J & 47-K [as amended by Electoral Laws (Amendment) Ordinance (IV of 2013)]---Fundamental rights---Voting rights of overseas citizens---Logistic arrangements, deficiency of---Scope---Overseas Pakistanis enjoyed the right to participate in election process in terms of Art.17 of the Constitution being dignified citizens of country---Though residing outside the territory of .Pakistan, such citizens could not be denied rights to vote on technical grounds i.e. logistic arrangements made outside the country for casting their votes---Once on having recognized that the facility could be extended to expatriates to exercise right of franchise, further efforts/input of Election Commission of Pakistan was required to achieve the object in forthcoming General Elections conveniently---Supreme Court directed Election Commission of Pakistan to make all possible efforts to achieve the object, so the expatriates could also participate in forthcoming General Elections in exercise of their fundamental rights conferred under Art.17(2) of the Constitution---Petition was disposed of accordingly.

Mian Najeeb-ud-Din Owaisi v. Amir Yar C.M.A. 1535 of 2013 etc.; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473 and Miss Yasmin Khan and another v. Election Commission of Pakistan, Islamabad through Secretary and another 1994 SCMR 113 ref.

Mian Abdul Rauf, Advocate Supreme Court for Petitioners (in C.P.No.39 of 2011).

Nemo for Petitioners (in C.P.No.90 of 2011).

Ifran Qadir, Attorney General for Pakistan and Dil Muhammad Khan, Alizai, D.A.G. On Court's Notice.

Muhammad Munir Paracha, Advocate Supreme Court and Syed Sher Afghan, D.T. (Elections) for the ECP.

Rana Muhammad Farooq, Advocate Supreme Court, Dr. M. Sarwar Zahid, Chief, Fayyaz Ahmed Malik, Deputy Chief and Khurram Shiraz, L.O. OPF for M/o Overseas and OPF.

Afnan Karim Kundi, Advocate Supreme Court, Tariq Malik, Chairman and Saqib Jamal, Sr. LO for NADRA.

Iftikhar Anjum, D.G. Overseas Pakistanis for M/o Foreign Affairs.

Sadaqat Ahmed, SO (L) for M/o Finance.

Dates of hearing: 26th and 29th April, 2013.

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P L D 2014 Supreme Court 89

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

MUHAMMAD ASGHAR---Petitioner

Versus

HUSSAIN AHMAD and others---Respondents

Civil Petition No.654-L of 2013, decided on 22nd July, 2013.

(Against the judgment dated 13-2-2013 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in W.P. No.1881 of 2004).

(a) Administration of justice---

----Procedural law, adherence to---Scope---In the process of administration of justice, the litigants should not be knocked out on technical grounds, however certain provisions of law were of vital procedural significance and if they were not followed in letter and spirit, there would be wee (little) possibility of a conclusive trial of a civil case and the process might suffer on account of unbridled exercise of discretionary empowerment of the courts---Such circumstances could stall the fair trial of the matter, which was against the very purpose and object of law (especially procedural law)-Adherence to such provisions in letter and spirit and the mandate of law to be followed could hardly be termed as mere ' technicalities' on account of which it might ultimately be held that no one should be knocked out for such technical reasons.

Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 and Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 ref.

(b) Jurisprudence---

----Law---Procedural law, adherence to---Purpose and significance---Procedural law had immense significance and the true purpose and object of such law, was not merely a technical aspect of the law which should be reckoned as a mere formality, rather procedural law was meant to cause uniformity, discipline, parity and systemization in conducting the trial of the case, in the absence whereof, it shall not be possible for the courts of law to adjudicate the matter in accordance with law and to do justice according to law--- Following the procedure prescribed by law in letter and spirit was bounden duty of the courts and also the litigants, as failure to do the same shall result in indiscipline and disarray in proceedings of the trial of a case.

----Preamble---Procedural and substantive parts (provisions) of the Civil Procedure Code, 1908---Scope---Procedural part of C.P.C. was that portion (provisions) which were meant for the process of litigation i.e. the mechanism as to how to proceed with the trial of the case; a series of actions or steps to be taken by the courts and the litigant in order to achieve the conclusion of the matter; or in other words the various steps which were expedient for the purpose of proceeding with the trial of a case at its different stages so as to reach a just outcome (conclusion of the trial)---Excluding the portion of C.P.C. which purely dealt with process of litigation, the remaining part of C.P.C. fell within the category of substantive law.

Salmond's Jurisprudence 12th Edn. P.128 and Aftabuddin Qureshi and another v. Mst. Rachel Joseph and another PlD 2001 SC 482 ref.

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

----O. XVIII---Qanun-e-Shahadat (10 of 1984), Art. 133---Substantive law---Scope---Right to give evidence and the right to cross-examine witness strictly in terms of C.P.C. read with relevant provisions of Qanun-e-Shahadat Order, 1984 was part of substantive law.

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

----O. XVIII, R. 17---Recalling of a witness by court for re-examination---Procedural law---Scope---Order XVIII, Rule 17, C.P.C. was one of the most important stipulation in the Civil Procedure Code, 1908 and could not be termed as simply procedural in nature and thus a mere technicality.

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

----O. XVIII, R. 17---Right to recall a witness for re-examination---Scope---Litigant had no such absolute right at all---Witness should not be summoned by court while excercising its discretion as a matter of routine, rather it all depended upon the facts of each case, as to when and why the court should exercise its discretion in such behalf for which the court had to provide judicial reasons---Exercise of discretion by the court in terms of O. XVIII, R. 17, C.P.C was circumvented with due care and caution, and it should be exercised in exceptional circumstances---Party requiring the summoning of witnesses should not be allowed to fill up the lacuna of its case , which had been left due to negligence and lapse of such party---No new case should be allowed to be set up by the delinquent party, especially when such evidence was available at the time when the party had the opportunity to lead evidence, and it was not a case of discovery of evidence coming into being or discovered subsequently---Delinquent party had to set out reasonable and convincing grounds for recalling the witness while conducting the examination-in-chief or cross-examination as the case might be.

Messrs Ilyas Marine and Associates Ltd. v. Muhammad Amin Lasania and another 1997 CLC 763; Madhubhai Amthalal v. Amthalal Nanalal and others AIR 1947 Bom. 156; Vadiraj Naggappa Vernekar through LRs v. Sharadchandra Prabhakar Gogate (2009) 4 SCC 410 and K.K. Velusamy v. N. Palanisamy ((2011) 11 SCC 275) ref.

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

----O. XVIII, R. 17---Constitution of Pakistan, Art. 185(3)---Recalling of a witness by court for re-examination---Object and scope---Plaintiff sought re-summoning of one of his witnesses to prove an agreement to sell---Plea of plaintiff was that complete statement of said witness could not be recorded before Trial Court, because plaintiff's counsel was busy and due to rush of work, omitted to get the agreement to sell proved through said witness---Validity---True object of re-examination of a witness as matter of fact and law was to clear any obscurity and/or ambiguity which might have arisen during the course of his examination/statement, which had to be clarified as otherwise obscurity etc. might lead to injustice and the court shall find it difficult to adjudicate the matter to do justice---Order XVIII, R.17, C.P.C was not meant and designed for the purpose of enabling a party to fill up the omissions in the evidence of a witness who had already been examined rather the purpose, the nature and scope of the power available to the court under the said rule was to enable the court to seek clarification on any issue or to have a doubt cleared in the statement of witness, which if left outstanding, would make it difficult for the court to take a right decision---Case set out by the plaintiff in the present case for re-summoning the witness under O. XVIII, R. 17, C.P.C. did not qualify the aforesaid test---Petition for leave to appeal was dismissed in circumstances.

Muhammad Saeed Ansari, Advocate Supreme Court for Petitioner.

Respondent No. 1 in person.

Date of hearing: 22nd July, 2013.

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P L D 2014 Supreme Court 100

Present: Iftikhar Muhammad Chaudhry, C J, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

SUO MOTU ACTION REGARDING ILLEGAL SELLING OUT THE AUQAF PROPERTIES BY THE CHAIRMAN EVACUEE TRUST PROPERTY BOARD: In the matter of

Suo Motu Case No.9 of 2011, Constitutional Petition No.93 of 2012 and Criminal Original Petition No.71 of 2013, decided on 2nd October, 2013.

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 4(2) & 3 ---- Constitution of Pakistan, Art. 184(3)---Exercise of suo motu jurisdiction the Supreme Court and petition under Art.184(3) of the Constitution regarding alleged irregularities in the sale of evacuee property by the Evacuee Trust Property Board ("ETP Board") to Defence Housing Authority ("DHA")---Corruption and corrupt practices ---Charitable Institutions---Evacuee Trust Property Board, functions of----Scope---Request of DHA to acquire Evacuee Trust land was considered by the ETP Board; and approval was given to the proposal that ETP Board's lands be given to DHA in exchange for developed residential and commercial plots; where 33% ownership of the land transferred was to be given to ETP Board in the shape of residential plots in addition to a certain number of commercial plots---Subsequently the ETP Board was twice reconstituted and a new Chairman was appointed on a honourary basis; and the matter was reconsidered and it was agreed by the Board that only 25% of developed residential plots would be given to the ETP Board instead of the 33% per cent as agreed earlier for the reason, inter alia, that due to escalation of charges, DHA had revised its offer---Said proposal was given approval by the ETP Board as well as the Federal Government through the Ministry of Minorities Affairs and an agreement between ETP Board and DHA was concluded, and land was mutated in favour of DHA---Validity---From the material available on record, it could be, prima facie, concluded that without considering earlier recommendations of the Board, that was, exemption of 33% of plots as per offer of DHA (dated 20-7-2007); and without determining the terms and conditions by the Federal Government through the Ministry of Minorities Affairs, the ETP Board had agreed to accept 25% of exempted residential plots instead of 33%; for which reason colossal loss had been suffered by the Evacuee Trust Property Board---Perusal of comparative analysis report of the FIA, indicated that the deal suffered from corruption, and corrupt practices, and was in violation of rules and regulations applicable thereto and that excess land was being occupied by DHA---After the ETP Board was reconstituted; instead of accepting the earlier better terms and conditions; surprisingly, a fresh proposal was introduced after the new Chairman was appointed and the DHA revised its offer---Federal Government without negotiation or determining viable terms and conditions gave approval to the same---Such approval reflected the mala fide in the reconstitution of the Board and the Board therefore should not have approved the 25% formula as it was against the interest of a charitable institution---ETP Board, no doubt, had powers to dispose of the properties, but the same must be done in accordance with the law namely, S.4(2) of the Evacuee Trust Properties (Management and Disposal) Act, 1975---Supreme Court observed that decision taken by the ETP Board regarding acquisition of land and accepting revised option of 25% plots was unlawful being contrary to S.4(2) of the Act, whereas earlier decision of the ETP Board whereby exemption of 33% was agreed upon, was lawful and prima facie, subject to determination by investigation agencies, ETP Board had to suffer a loss of Rupee 1934 million due to the subsequent decision of the ETP Board---Such subsequent decision of the ETP Board was void and of no legal consequence---Supreme Court gave an option to DHA to accept the earlier decision of the ETP Board and handover developed residential and commercial plots according to the 33% formula as agreed upon in the Board meeting (dated 23-7-2007); within 30 days, failing which it would be bound to return the entire land mutated in its favour---Supreme Court directed the Senior Member Board of Revenue, Government of Punjab to make arrangements for demarcation of properties and ensure the restoration of excess land occupied by DHA and in case of failure of DHA to accept the said option; make arrangements to deliver the total land back to the ETP Board by reversing mutation entries and cancelling sale deeds---Supreme Court further directed that DHA shall not be entitled to recover any compensation if it had made payments to obtain possession from a lessee or for development of land as no evidence for such expenditures was brought on record---Supreme Court also directed the Ministry of Minorities Affairs to arrange forensic audit of the ETP Board for previous five years' period and on receipt of such audit report, both criminal and civil proceedings be initiated against the delinquents and that FIA should expedite its inquiry and civil and criminal proceedings be initiated against the former Chairman of ETP Board---Petition was disposed of, accordingly.

Pervaiz Oliver v. St. Gabrial School PLD 1999 SC 26; Action regarding joint venture agreement between CDA and Multi-Professional Cooperative Housing Society PLD 2011 SC 619 rel.

(b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 4---Constitution of Pakistan, Art.184(3)---Memorandum dated 2-7-2003 issued by Finance Division, Government of Pakistan titled "Deposit of Working Balances and Investment of Surplus Funds Belonging to Public Sector Enterprises and Local Autonomous Bodies under Federal Government"---Evacuee Trust Property Board, functions of---Power of the Evacuee Trust Property Board to make investments---Scope---Exercise of suo motu jurisdiction by the Supreme Court under Art.184(3) of the Constitution regarding alleged irregularities in the investment made by the Evacuee Trust Property Board ("ETP Board") in Elysium Ranches Project Islamabad as an institutional investor---Evacuee Trust Property Board gave approval for an investment of Rupees 986 million in a joint venture of the Defence Housing Authority ("DHA") and Elysium Holdings Pakistan Ltd. ("EHPL") and said investment was made vide a tripartite agreement---Perusal of record revealed that the EHPL had approached DHA Islamabad representing to have rights in the lands to be developed, however it could not fulfil its commitment to provide even the initial land within the specified time period---Finance Division, Government of Pakistan vide office memorandum dated 2-7-2003 titled "Deposit of Working Balances and Investment of Surplus Funds Belonging to Public Sector Enterprises and Local Autonomous Bodies under Federal Government", had issued consolidated instructions to the effect, inter alia, that it would be necessary for public sector entities to set up in-house professional treasury management functions and that they would need to have an investment committee with defined investment approval authority and transactions above the approval of the authority would also be subject to approval of the Board of Directors or an equivalent forum---No permission, in the present case, was obtained for investment in DHA Project in Islamabad which was also contrary to the functions of the ETP Board given under Ss.4(2)(c) and 4(2)(m) of the Evacuee Trust Properties' (Management and Disposal) Act, 1975---Law was therefore violated by the ETP Board by making payments to the EPHL---Transaction of ETP Board for making investment was contrary to the interest of the ETP Board and was also against instructions of the Federal Government in addition to being against S.4(2) of the Evacuee Trust Properties (Management and Disposal) Act, 1975---Evacuee Trust Property Board had entered into a transaction in respect of a joint venture which absolutely had no existence as despite receiving of amount, the Ranches were not handed over as no land was acquired---Elysium Holdings Pakistan Ltd., however, got unlawful benefit of an amount of Rupees 986 million owned by the ETP Board, therefore, they were under a legal obligation to return the same and compensate the ETP Board by paying markup on the said amount, which was subject to determination by a court of law---Supreme Court directed that files of Islamabad Ranches, if handed over to the ETP Board, be returned to the persons /agencies from which the same were received---Supreme Court further directed the Ministry of Minorities Affairs to arrange a forensic audit of the ETP Board for the previous five years and on receipt of such audit report, both criminal and civil proceedings be initiated against the delinquents and that FIA should expedite its inquiry and civil and criminal proceedings be initiated against the former Chairman of ETP Board---Petition was disposed of, accordingly.

Pervaiz Oliver v. St. Gabrial School PLD 1999 SC 26 rel.

----S. 3 & Preamble---Constitution of Evacuee Trust Property Board---Fixation of tenure of Members and Chairman of the Board---Scope and purpose---Under S.3(5) of the Evacuee Trust Properties (Management and Disposal) Act 1975; a three years tenure for the Members of the Board had been prescribed and before expiry of the same, a Member would not be changed unless he resigns earlier from his office under S.3(6) of the Act, or was removed under S.3(7) of the Act---Purpose of fixation of the tenure was to ensure consistency in the policies of the Evacuee Trust Property Board for the purpose of achieving the objects for which the Evacuee Trust Properties (Management and Disposal) Act, 1975 had been promulgated---Supreme Court observed that Chairman of the Evacuee Trust Property Board, on the contrary, was required to hold the office during the pleasure of the Federal Government.

Shehram Sarwar, Advocate Supreme Court and Zulfiqar Khalid Maluka, Advocate Supreme Court for the Applicants.

Nemo for Asif Akhtar Hashmi, ex Chairman ETPB.

Hafiz S.A. Rehman, Senior Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Junaid Iqbal, Secretary for the ETPB.

Muhammad Azam Khan, Addl. D.G., Qudratullah Khan, Director (Pb) and Naveed Tareen, Dy.Director, Crime Circle for the FIA.

Asim Hafeez, Advocate Supreme Court for DHA, Lahore.

Col (R) Ejaz Hussain, Secretary for DHA Rwp/Islamabad.

Kh. Muhammad Farooq, Senior Advocate Supreme Court with Sharjeel Shah Muhammad, CE (in Crl.O.P No.71/2013) for M/s. Highland Living Concept.

Tariq Hassan, Advocate Supreme Court, Atif Amin, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record with Hammad Arshad, CE for M/s Elysium Holdings Pakistan.

Date of hearing: 25th July, 2013.

PLD 2014 SUPREME COURT 131 #

P L D 2014 Supreme Court 131

Present: Iftikhar Muhammad Chaudhry, C J, Jawwad S. Khawaja and Sh. Azmat Saeed, JJ

ACTION AGAINST DISTRIBUTION OF DEVELOPMENT FUNDS BY EX-PRIME MINISTER RAJA PARVAIZ ASHRAF: In the matter of

Constitutional Petition No.20 of 2013, Human Rights Case No.11504-G of 2013 and Civil Miscellaneous Applications Nos. 2960, 3566, 3579, 3649, 3865, 4022, 4135, 4208 and 4498 of 2013, decided on 5th December, 2013.

(a) Constitution of Pakistan---

----Arts. 82(2) & (3), 80, 81, 83, 84, 122(2) & 184(3)--- Rules of Procedure and Conduct of Business in the National Assembly, 2007, Rr.183, 186 & 194---Public Procurement Rules, 2004, R.4---Constitutional petition under Art. 184(3) of the Constitution against the distribution of development funds by Ex-Prime Minister amongst Members of National/Provincial Assemblies and "Notables" for development programmes/schemes---Allocation/use of funds at the sole discretion of Prime Minister/Chief Minister of Province and person-specific grant/allocation of funds, constitutionality of---Demand for grants---Procedure---Neither the Constitution nor the Rules of Procedure and Conduct of Business in the National Assembly, 2007 contained any provision whatsoever that permitted the use/allocation of discretionary funds at the (sole) discretion of the Prime Minister and Chief Minister of a province---Constitution also did not contain any provision which mandated use/allocation of funds to Members of National/Provincial Assemblies or "Notables"---Allocation of funds for development schemes had to be made after following the procedure provided in Arts.80 to 84 of the Constitution and the relevant rules/instructions---Constitution envisaged provisions of funds for expenditure to be specified in the Annual Budget Statement vis-à-vis "Schemes for Development" and not for placing such funds in the hands of any person (be he the Prime Minister or Member of National/Provincial Assembly, Notable or any other) for purpose of expending as per his whims and wishes---Funds could not be placed at the sole discretion of Prime Minister/Chief Minister as the expenditure envisaged to be incurred under the Constitution was grant specific and not person specific---National Assembly, while giving assent to a grant which was to be utilized by the Executive at its discretion, had to follow the procedure provided in Arts. 80 to 84 of the Constitution as well as the Rules of Procedure and Conduct of Business in the National Assembly, 2007---However, such discretionary grant could not be spent at the absolute discretion of the Executive and the discretion had to be exercised in a structured manner---Article 82(2) of the Constitution stipulated that so much of the Annual Budget Statement as related to "other expenditure" shall be submitted to the National Assembly in the form of demands for grants---No provision in the Constitution or Rules of Procedure and Conduct of Business in the National Assembly, 2007 permitted demand for block allocation of funds to a specific person(s)---Under the said rules each demand for funds should provide item-wise details---Demand for grant for use/allocation of funds to Members of National/Provincial Assemblies or Notables, in the Annual Budget Statement would necessarily be a demand for block allocation, as it would involve request for placing at the disposal of such persons a certain sum of money as grant to be utilized by or at their request as and when they might identify the schemes of development required for their constituency---Such a demand, if included in the budget, would be contrary to the constitutional provisions, which required that each expenditure was to be specified with sufficient particularity, in the Annual Budget Statement, so that it could be considered and voted upon by the National Assembly---Demand for block allocation would also be in derogation of Rules of Procedure and Conduct of Business in the National Assembly, 2007, which required demand for each grant to be specified along with detailed estimates item-wise---Ex-Prime Minster, periodically sanctioned amounts for different schemes in his own constituency---Numerous Members of National/Provincial Assemblies, Senators and other notables were obliged by granting them funds---Some criterion should have been laid down for allocation of funds for schemes, and Members of National/Provincial Assemblies, functionaries/officers/officials, notables and other persons who received such amounts in the name of development schemes were not required to enrich themselves from such funds---According to order passed by the Ex-Prime Minister for release of funds under the development programme during financial year, 2012-13 it had been left at the discretion of executing agency to use funds in accordance with their departmental procedure/rules by fulfilling the codal/legal formalities, and nothing had been done to follow the Public Procurement Rules, 2004 ("PEPRA Rules")---Special Audit Report of funds released in the year 2012-13 for development programmes showed that without prior feasibility study/report or following PEPRA Rules, amount allocated by executive agencies had been used, essentially in a non-transparent manner---Public Procurement Rules, 2004 were not followed in all the development schemes---Supreme Court observed that different annual development programmes under which funds were allocated to Parliamentarians were continuously followed from the year 1985 onwards, but up to the year 2013, their impact had not been evaluated, which was necessary in the interest of general public for the reasons that, if on the one hand tax payers' money was being spent through development programmes for the welfare of the society, the executive government must know about its impact as without it there was not any justification/necessity to spend large amounts of money annually in the name of development programmes---Supreme Court declared that the Constitution did not permit the use/allocation of funds to Members of National/Provincial Assemblies or Notables at the sole discretion of the Prime Minister or the Chief Minister, and if there was any practice of allocation of funds in such a manner, then the same was illegal and unconstitutional; that no bulk grant could be made in the budget without giving detailed estimates under each grant divided into items and that every item had to be specified---Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Arts. 84, 81, 82 & 83---Supplementary Budget Statement--- Procedure and scrutiny--- Federal Government was under an obligation to lay the Supplementary Budget Statement before the National Assembly so that it was subjected to the same scrutiny and procedure as was applicable to the Annual Budget Statement in terms of Arts. 80 to 83 of the Constitution--- Supplementary Budget Statement, in the normal course, was to be placed before the National Assembly during the currency of the same financial year, if the Federal Government had decided to authorize such expenditure.

----Arts. 84, 80, 81, 82 & 83---General Financial Rules of the Federal Government, Rr.102, 103 & 104---Prime Minister, discretion of--- Supplementary and excess grants, etc. for development schemes--- Scope---No provision existed in the Constitution which conferred any discretionary power on the Prime Minister to make supplementary and excess grants, etc. (at his sole discretion)---Funds could be provided for development schemes by way of supplementary grant but for such purpose procedure provided in Arts. 80 to 84 of the Constitution and the relevant rules/instructions had to be followed strictly.

(d) Constitution of Pakistan---

----Arts. 78 & 164---Grants out of Consolidated Fund---Prime Minister and Provincial Chief Minister, discretion of---Scope---Prime Minister and Provincial Chief Minister (on their own) were not authorized to make grants out of Consolidated Fund as provided under Art. 164 of the Constitution, instead it was the Federation or Province respectively which were authorized to make such grants.

(e) Constitution of Pakistan---

----Arts. 82(2) & (3)---Rules of Procedure and Conduct of Business in the National Assembly, 2007, Rr. 183, 186 & 194---Annual Budget Statement---"Other expenditure"---Demand for grants, procedure for---Article 82(2) of the Constitution stipulated that so much of the Annual Budget Statement as related to ''other expenditure" shall be submitted to the National Assembly in the form of demands for grants, and the Assembly shall have power to assent to, or to refuse to assent to, any demand, or to assent to any demand subject to a reduction of the amount specified therein---Article 82(3) of the Constitution specifically mandated that "no demand for a grant shall be made except on the recommendation of the Federal Government"---Rule 183 of the Rules of Procedure and Conduct of Business in National Assembly, 2007, provided as to how a demand for the grant was to be made, and stated that each demand for a grant should contain "details of estimate" and, furthermore, the demand should also show "the various items comprising the subject of the grant"---Item-wise estimate of the grant was required to be placed before the National Assembly for discussion in terms of R.186 of the Rules of Procedure and Conduct of Business in National Assembly, 2007---Discussion and voting on the demands for grants in the Budget cannot take place unless the details of each grant in terms of its item-wise estimate was included in the demand.

(f) Constitution of Pakistan---

----Art. 67---Rules of Procedure and Conduct of Business in the National Assembly, 2007, status of---Said Rules were made under Art.67 of the Constitution and, as such, had the status of law deriving direct mandate from the Constitution.

(g) Constitution of Pakistan---

----Arts. 80, 81, 82, 83 & 84---Annual Budget Statement---Prime Minister, discretion of---Person-specific allocation of funds---Constitutionality---Discretionary funds placed at disposal of Prime Minister by the National Assembly in the Annual Budget Statement--- Constitutionality--- Such discretionary funds would be ultra vires of the Constitution--- Policy or practice adopted by Parliamentarians to place funds in the hands of the Prime Minister to be used/allocated by him at his discretion to Members of National/Provincial Assemblies or Notables, was repugnant to the Constitution---Language employed in Arts.80 to 84 of the Constitution implicitly excluded person-specific allocations of funds---No constitutional provision permitted inclusion of any scheme or expenditure at the behest of any Member of National/Provincial Assembly or Notable or any other person during the currency of a financial year, unless it was necessitated by a totally unforeseen contingency arising out of extraordinary circumstances which needed to be met on an urgent basis----However, it would be a different matter if prior to the preparation of the Annual Budget Statement a Member of National/Provincial Assembly, Non-Government Organization and/or any other person from a constituency was called upon to identify schemes or expenditure that might be required for effecting necessary development in their area of concern---Such an exercise, however, would have to be across the board, irrespective of the political party or parties that might be in power, and it should be carried out much before the preparation of the Annual Budget Statement so that if the relevant scheme or expenditure was to be included in the Annual Budget Statement, it would have passed through the process of due consideration by the Planning Commission for purposes of ascertaining its necessity and efficacy and conducting its appraisal, technical analysis, feasibility and economic cost before it was included as a demand for grant in the Annual Budget Statement.

(h) Constitution of Pakistan---

----Arts. 80, 82, 120 & 122---Annual Budget Statement, purpose of---Discretionary funds placed at disposal of Prime Minister/Provincial Chief Minister in the Annual Budget Statement---Constitutionality---Propose of preparing the Annual Budget Statement was to know and apprise the National Assembly before hand as to what expenditure was to be incurred during the ensuing financial year and the precise purpose/schemes insofar as development fund was concerned to which such expenditure related---Leaving or earmarking any amount of money to be used/allocated at some subsequent stage during the financial year at the discretion of the Prime Minister/Chief Minister was repugnant to the very concept and connotation of the Annual Budget Statement.

(i) Constitution of Pakistan---

--- Arts.80, 81, 82, 83 & 84---General Financial Rules of the Federal Government, Rr.99, 100 & 101---Re-appropriation of funds allocated in the budget---Procedure and permissibility---Funds could be allocated by way of re-appropriation but the procedure provided in the Constitution and the relevant rules had to be followed in its true perspective---Amounts as approved in the budget passed by the National Assembly had to be utilized for the purpose specified in the budget statement--- Any re-appropriation of funds or their utilization for some other purpose, though within the permissible limits of the budget, was not justified, and in such circumstances, the supplementary budget statement had to be placed before the Parliament following the procedure provided in Arts. 80 to 84 of the Constitution and the relevant rules/instructions.

Tariq Mehmood, Senior Advocate Supreme Court (in C.M.A. No.2960 and 3566 of 2013).

M. Munir Peracha, Senior Advocate Supreme Court (Absent) for Applicants (in C.M.A. No.3579/13).

Syed Tayyab Jaffri, Advocate Supreme Court (Absent) for Applicants (in C.M.A.-3649/13)

Syed Zafar Abbas Naqvi, Advocate-on-Record with Irfanullah, Adv./SVP, DBA Lucky Marwat for Applicants (in C.M.A.3865/13)

Asif Fasihuddin Virdag, Advocate Supreme Court for Applicants (in C.M.A.4022/13)

M. Siddique Khan Baloch, Advocate Supreme Court (Absent) for Applicants (in C.M.A.4135/13)

Shahid Mahmood Khokhar, Advocate Supreme Court for Applicants (in C.M.A. No.4208/13)

Muneer A. Malik, Attorney General for Pakistan, assisted by Faisal Siddiqui, Advocate On Court's Notice:

Tahir Mehmood, AGPR.

Malik Manzoor Akhtar, D.G. Audit, Rana Shakeel Asghar, Director Audit and M. Munawwar Rana, A.O. for Auditor General of Pakistan.

Sajid Ilyas Bhatti, DAG, M. S. Khattak, Advocate-on-Record with Aurangzeb Marral, Deputy Secretary for M/o H & W.

Sardar Asmatullah Khan Niazi, Advocate Supreme Court, Sarwar Awan, D.G. and Ata ul Haq, CE for Pak PWD.

Sajid Mehmood Butt, Advocate Supreme Court, Arshad Ahmed, F.A. (Cabinet), Dr. G. M. Mahmoodi, S.O. and Seerat Asghar, former SSPM/Secy NFS&R for M/o Finance.

Ch. Zafar Amin JS(PWP), Masood Ahmed , JS (NPS), Muhammad Asif Khan and Chief Finance and Accounts Officer for Cabinet Div.

Asim Iqbal, Advocate Supreme Court, Asif Fateh Sheikh, GM (Legal) and Shahir Aleem, GM (Sales) for SSGCL.

Uzair Karamat Bhandari, Advocate Supreme Court and Arif Hameed, MD, SNGPL for SNGPL.

Zargham Ishaq, MD, PEPCO and Amjad Manan, Chief Engr. (RE) for PEPCO.

For Parliamentarians:

Wasim Sajjad, Senior Advocate Supreme Court (On behalf of Raja Parvaiz Ashraf, Ex-PM)

Mian Abdul Rauf, Advocate Supreme Court (On behalf of M/s Ghias Mela, Anwar Ali Cheema, Ex-MNAs and Amir Sultan Cheema, Ex-MPA)

Moula Bakhsh Chandio Ex-Law Minister (in person)

Liaqat Ali Shabab, Muhammad Hamayat Khan and Syed Muhammad Ali Shah Bacha, Ex-MPAs, KPK (all in person)

Date of hearing: 16th-18th and 22nd July, 2013.

PLD 2014 SUPREME COURT 167 #

P L D 2014 Supreme Court 167

Present: Nasir-ul-Mulk and Sarmad Jalal Osmany, JJ

Mst. GRANA through Legal Heirs and others---Appellants

Versus

SAHIB KAMALA BIBI and others---Respondents

Civil Appeal No.195-P of 2010, decided on 18th June, 2013.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 8-4-2008 passed in C.R.No.541 of 2004).

(a) Islamic law---

----Inheritance---Limitation---Scope---Property claimed on basis of inheritance---Acquiescence of claimant heir---Effect---Law of limitation was not to be ignored entirely or brushed aside whenever property was claimed on the basis of inheritance---Conduct of claimant-heir might become relevant and material when the bar of time limitation was pleaded by the defendant-heir---Defendant-heir might show that claimant-heir by his/her acts, overt or implicit, demonstrated acquiescence in the defendant's title to the suit property thereby allowing him to deal with it was exclusive owner, for instance by regularly and openly disposing of parts of the property or developing it at his own expense over a period of time within the knowledge of the claimed-heir---When in such circumstances the defendant-heir transferred suit property for valuable consideration, the transferee was entitled to believe that defendant-heir had a valid title to transfer.

Ghulam Ali v. Mst. Resham Jan PLD 1990 SC 1 distinguished.

Mst. Phaphan v. Muhammad Bakhsh 2005 SCMR 1278; Lal Khan v. Muhammad Yousaf PLD 2011 SC 657 and Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 ref.

(b) Islamic law---

----Inheritance---Limitation---Scope---Property claimed on basis of inheritance---Acquiescence of claimant-heir---Effect---Waiver of inheritance right in property---Scope---Plaintiff-heir filed suit in the year 1991 assailing registered sale deed dated 8-6-1916 and sale mutation dated 23-12-1917---Plaintiff had also challenged inheritance and gift mutations dated 5-12-1930, 1-9-1949 and 11-11-1959 respectively along with further mutations attested from time to time up to the year 1987---Plaintiff-heir was more than 80 years old at the time of filing the suit in the year 1991, and according to evidence she was 6/7 years old, when entire suit property was inherited by her as a limited owner---Plaintiff-heir married in the year 1930 and as a result had to give up her property in favour of her step-sister, and since then plaintiff remained out of possession of suit property---Plaintiff-heir was aware as to how property was handled thereafter and of her rights therein---Plaintiff-heir was well aware of the transfer of suit property made by her step-sister and the subsequent gift transfer, but never questioned the sale deed of the year 1916 till filing of suit in the year, 1991---Suit property was further sold and re-sold, constructed and re-constructed upon, but the plaintiff took no action to annul or prevent the transfers of suit property---When plaintiff filed suit in the year 1991, there were as many as 251 transferees of suit property-Conduct of plaintiff clearly demonstrated acquiescence in all the impugned transfers of property which amounted to waiver of her right---Transferees of suit property, on account of plaintiff-heir's in action, led to believe that defendant-heir-transferor had a valid title in the suit property---Suit of plaintiff-heir had been rightly dismissed---Appeal was dismissed accordingly.

Mst. Phaphan v. Muhammad Bakhsh 2005 SCMR 1278; Lal Khan v. Muhammad Yousaf PLD 2011 SC 657 and Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 ref.

Abdul Sattar Khan, Advocate Supreme Court for Appellants.

Jan Muhammad Khan, Advocate Supreme Court for Respondents Nos.1 and 3-25.

Other Respondents: Ex-parte.

Date of hearing: 18th June, 2013.

PLD 2014 SUPREME COURT 174 #

P L D 2014 Supreme Court 174

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

Mst. ROHAIFA through her sons and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence and 2 others---Respondents

Constitution Petition No.1 of 2012 and Criminal Original Petitions Nos.8 and 12 of 2012 in Constitution Petition No.1 of 2012, decided on 3rd December, 2013.

(a) Constitution of Pakistan----

----Part II, Chap. 1 [Arts. 8-28]--- Fundamental Rights, enforcement of---Duty of the State--- State being guardian of its citizens was bound to implement the Constitutional provisions in letter and spirit particularly the Fundamental Rights, which were guaranteed by the Constitution.

(b) Constitution of Pakistan----

----Arts. 247(7), 184 & 199--- Tribal areas--- Jurisdiction of Supreme Court and High Courts in relation to Tribal areas--- Scope--- Circumstances under which jurisdiction of the Supreme Court and High Courts would not be barred under Art.247(7) of the Constitution stated.

Following are the circumstances under which jurisdiction of the Supreme Court and that of the High Courts would not be barred under Article 247(7) of the Constitution, rather the same would be available to be exercised under Article 184 and Article 199 of the Constitution respectively:--

(i) Where location of the corpus in dispute was situated in the territory outside the Tribal areas;

(ii) Where parties to the dispute had their residence outside the Tribal areas;

(iii) Where cause of action had arisen outside the Tribal areas;

(iv) Where the offence had taken place outside the Tribal areas;

(v) Where the arrest was made or sought to be made (at a place) which was outside the Tribal areas; and

(vi) Where effective action or step was taken or performed outside the Tribal areas.

Qaum Bangash and others v. Qaum Turi and others 1991 SCMR 2400; Shaukat Khan v. Assistant Political Agent, Landi Kotal, Khyber Agency and others PLD 2002 SC 526; Abdul Rahim and others v. Home Secretary, Government of West Pakistan and another PLD 1974 SC 109; Malik Taj Muhammad and another v. Bibi Jano and 25 others 1992 SCMR 1431; Muhammad Siddiq and others v. Government of Pakistan and others 1981 SCMR 1022 and Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66 ref.

----Arts. 247(7) & 184--- Tribal areas--- Bar of jurisdiction of Supreme Court in relation to Tribal areas--- Scope---Bar of jurisdiction of Supreme Court in terms of Art.247(7) of the Constitution would be applicable where cause of action and subject matter of dispute was in the Tribal areas and parties to the dispute were also resident of Tribal areas--- Person who voluntary went to a Tribal area and committed an offence there, he on general principles of law was liable to be tried and punished according to law, custom and usage which prevailed there.

(d) Constitution of Pakistan----

----Arts. 247(7) & 184---Tribal areas---Conviction and sentence awarded by Assistant Political Agent of a Tribal area---Bar of jurisdiction of Supreme Court in relation to such conviction---Scope---Crime committed and arrest made in Tribal area---When convicts were arrested from Tribal areas for crimes they had committed there, and were tried by the Assistant Political Agent of Tribal area, then to the extent of decision made by Assistant Political Agent, the Supreme Court could not take cognizance of the same and sit in appeal to decide as to whether the jurisdiction assumed by the Assistant Political Agent was rightly and competently assumed and as to whether the conviction order was justified--- Such exercise by the Supreme Court was not permissible in view of the bar contained in Art.247(7) of the Constitution.

(e) Contempt of Court Ordinance (V of 2003)---

----S. 3---Constitution of Pakistan, Art. 204(2)---Contempt of Court proceedings---Scope---Court very sparingly and in extreme cases invoked its powers to proceed for Contempt of Court. [p. 205] L

(f) Actions (in Aid of Civil Power) Regulation, 2011---

----Regln. 9--- Constitution of Pakistan, Arts. 247(7), 4, 9, 10 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution concerning detainees allegedly kept in confinement by Army and intelligence agencies at internment centers---Bar of jurisdiction of Supreme Court in relation to Tribal areas---Scope---Detainees were alleged to have been involved in terrorist activities---Anti-terrorism Court acquitted the detainees of terrorism charges, but before their release, the District Coordination Officer issued their detention order under the Maintenance of Public Order Ordinance, 1960---Said detention order of detainees was set aside by the High Court and direction was given to release them from jail forthwith, however concerned jail superintendent allegedly handed over the detainees to Inter-Services Intelligence (ISI) and Military Intelligence (MI) personnel, who interned the detainees at an internment center in the Tribal areas---Some of the detainees died during their confinement in internment centers---Internment orders in respect of the surviving detainees were withdrawn and their custody was handed over to concerned Political Administration of Tribal area for dealing with their cases of terrorist activities committed by them in Tribal areas--- Assistant Political Agent, convicted and sentenced the detainees for various offences, whereafter he issued warrants of commitment, and handed over custody of detainees to prison authorities in a settled area for undergoing sentences---Plea on behalf of detainees was that they were in illegal confinement and subjected to torture and poisoning--- Plea of Army and intelligence agencies that detainees were not handed over by jail superintendent before being interned at internment center, but were arrested from Tribal areas, where they were present for committing terrorist activities; that no detainee was tortured or poisoned; that some of the detainees died in view of their earlier poor health condition, despite being provided best medical treatment and regular care in a hospital; that relatives of the deceased detainees were duly informed and choice was given to them to have the post-mortem reports to determine the cause of death, but such offer was declined---Validity---Question as to whether detainees were taken away from jail or were arrested from Tribal areas could not be determined in the absence of positive evidence on record nor could the court pass/decide on the basis of mere word against word---Nothing on record substantiated the plea that deceased detainees were tortured or poisoned, more particularly when their post-mortem reports were not available on record---Post-mortem reports of deceased detainees would have been very relevant to determine their real cause of death---Medical reports of surviving detainees did not show that they were being treated for torture or administering of poison, therefore in the absence of any report to such effect, the court could not come to a justifiable conclusion that any of the detainees were tortured or poisoned---Assistant Political Agent of Tribal area tried the detainees and awarded them sentences for crimes they were said to have committed in the Tribal areas---Detainees were also allegedly arrested from Tribal areas---Regarding decision made by the Assistant Political Agent, the Supreme Court could not take cognizance of the same and sit in appeal to decide as to whether the jurisdiction assumed by the Assistant Political Agent, was rightly and competently assumed and as to whether the conviction order was justified---Such exercise by the Supreme Court was not apparently permissible in view of the bar contained in Art.247(7) of the Constitution, however, as the detainees were detained in a prison, situated in a settled area, the Supreme Court could pass an order and give directions to the jail administration to deal with the detainees/convicts as per the applicable law to prisoners and provide them safe and proper lodging and medical treatment in jail--- Supreme Court directed that in case detainees/convicts required medical treatment, which was not possible in jail hospital or jail premises, they should be taken to proper hospitals; that administration of the hospital where detainees were already being treated should ensure that detainees were given proper care and treatment for their ailments and all efforts should be made to secure their health and life which was their guaranteed right under the Constitution; that proper food and clothing should also be provided to detainees; that relatives and counsel of detainees should be allowed to meet them without any let or hindrance, but subject to law---Constitutional petition was disposed of accordingly.

Tariq Asad, Advocate Supreme Court for Petitioners (in Const.P.No.1 of 2012 and Crl.O.Ps.Nos.8 and 12 of 2012)

Nemo. for Respondent No.1 (in Const.P.No.1 of 2012).

Raja Muhammad Irshad, Senior Advocate Supreme Court for Respondents Nos. 2 to 4 (in Const.P.No.1 of 2012 and Crl.O.Ps. Nos.8 and 12 of 2012).

Muneer A. Malik, Attorney-General for Pakistan on Court's Notice.

Zahid Yousaf Qureshi, Addl. A.-G. Shafirullah, Acting Secretary Law and Order, FATA, Muhammad Aslam, Political Agent, Orakzai Agency, Nawaz Khan, Assistant PIA., Orakzai Agency, Iqbal Durrani, Legal Advisor, Abdul Qayyum, S.O., (Litigation), FATA Secretariat, Khanzad Gul, S.O. (Courts), Home Department, KPK for Government of Khyber Pakhtunkhwa.

Date of hearing: 3rd December, 2013.

PLD 2014 SUPREME COURT 206 #

P L D 2014 Supreme Court 206

Present: Iftikhar Muhammad Chaudhry, C.J. Jawwad S. Khawaja and Gulzar Ahmed, JJ

Khawaja MUHAMMAD ASIF---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petition No.5 of 2011 and Human Rights Case No.15744-P of 2009, decided on 4th December, 2013.

(Application by Mr. Imran Mughal for taking action on high prices of LPG)

(a) Constitution of Pakistan---

----Arts. 172(2) & (3)--- Natural resources, ownership of--- Mineral oil and natural gas--- People of Pakistan were the ultimate owners of such natural resources through their Governments and State enterprises.

(b) Constitution of Pakistan---

---Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution relating to award of a project by Sui Southern Gas Company Limited (SSGCL), a State enterprise, to Jamshoro Joint Venture Limited (JJVL) for extraction of Liquified Petroleum Gas (LPG)---Maintainability---Matter involving contractual rights---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---Plea of respondents was that present matter involved contractual rights that were not capable of adjudication without the formal recording of evidence; and evidence was generally not recorded in proceedings under Art.184(3) of the Constitution--- Validity--- Authenticity of the documents and record, on which opinion of the Supreme Court in the present case was based, was not disputed--- Only the legal effect of such documents and record had been examined by the court in the present case---No evidence was required to be recorded in the present proceedings---Constitutional petition was held to be maintainable in circumstances.

(d) Constitution of Pakistan---

----Arts. 172(2) & (3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution relating to award of a project by Sui Southern Gas Company Limited (SSGCL), a State enterprise, to Jamshoro Joint Venture Limited (JJVL) for extraction of Liquified Petroleum Gas (LPG)--- Maintainability---Issue involving use and management of natural resources by a State enterprise---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---Use and management of valuable natural resources by the State and its instrumentalities such as SSGCL, was involved in the present petition---Natural gas and LPG extracted therefrom were precious mineral resources vesting in the State and ultimately in the people---Sui Southern Gas Company Limited (SSGCL) was a State enterprise in which the majority shareholding was held by the Government, therefore, it was not free to deal with such assets whimsically or in utter disregard of the fiduciary duty owed to the nation--- Sui Southern Gas Company Limited (SSGCL) did not have unfettered discretion to deal with national assets in a manner that did not protect and advance the best interests of SSGCL as a fiduciary and repository of the interest of the people of Pakistan who were, through the Government, beneficial owners, not only of the mineral resources of the country but also of a majority interest in SSGCL---Constitutional petition was held to be maintainable in circumstances.

Habibullah Energy v. WAPDA (Civil Appeals 149 and 150 of 2010); Khawaja Muhammad Asif v. Federation of Pakistan 2013 SCMR 1205) Raja Mujahid Muzaffar v. Federation of Pakistan 2012 SCMR 1651 and Suo Motu Case No. 13 of 2009 PLD 2011 SC 619 ref.

(e) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Scope---Award of public contracts by State enterprise/ public entity-Competence---Scope---Corruption, corrupt practices and non-transparency in the award of public contracts---Waste, plunder or wanton and heedless use of public resources and funds must be prevented and public wealth wherever squandered must be recovered---Fair, even handed and open competitive bidding was very important (for award of public contracts)---Government and its instrumentalities were expected to act fairly, justly and in a transparent manner---Transparency lay at the heart of every transaction entered into by or on behalf of a public entity---Jurisdiction of Supreme Court under Art.184(3) of the Constitution was meant precisely for the purpose of ensuring that the assets belonging to the people were managed and exploited for the benefit of the people of Pakistan and also for ensuring that waste or abuse of such assets was not allowed to take place or continue.

Raja Mujahid Muzaffar v. Federation of Pakistan 2012 SCMR 1651; National Insurance Co. Ltd. (S.M.C. No. 18 of 2010); Asif Fasihuddin Khan Vardag v. Government of Pakistan (C.P. 33 of 2013); Habibullah Energy Ltd. v. WAPDA and others (Civil Appeals Nos. 149 and 150 of 2010); Multi-Professional Cooperative Housing Society (MPCHS) for development of land in Sector E-11 Islamabad (PLD 2011 Supreme Court 619) and Ms. Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

(f) Constitution of Pakistan---

----Arts. 9, 172(2) & (3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution relating to award of a project by Sui Southern Gas Company Limited (SSGCL), a State enterprise to Jamshoro Joint Venture Limited (JJVL) for extraction of Liquified Petroleum Gas (LPG)---Maintainability---Use and management of mineral resources by State enterprises---Matter of public importance---Scope---Right to life, infringement of---Supply of LPG to a very large number of users, including those living in far-flung areas of Pakistan was a matter of public importance impacting their 'life'---Jurisdiction of Supreme Court under Art.184(3) of the Constitution was meant precisely for the purpose of ensuring that the assets belonging to the people (such as mineral resources) were managed and exploited for the benefit of the people of Pakistan and also for ensuring that waste or abuse of such assets was not allowed to take place or continue--- Constitutional petition was held to be maintainable in circumstances.

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

(g) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution relating to award of a project by Sui Southern Gas Company Limited (SSGCL), a State enterprise to Jamshoro Joint Venture Limited (JJVL) for extraction of Liquified Petroleum Gas (LPG)---Bid process, legality of---Gross criminal negligence in bidding process---Corruption and corrupt practices---Bid bond submitted by JJVL was accepted by SSGCL by the State enterprise without submission of mandatory bid bond---Plea on behalf of JJVL was that lack of a bid bond was a mere technical irregularity which could not be a ground for striking down the whole transaction---Validity---As per Instructions to bidders the bid submitted by JJVL could not have been treated as valid because it was not accompanied by a Bid Bond---One of the clauses of Instructions to Bidders expressly stipulated that the "bidder at its cost shall submit a Bid Bond as part of its Bid"---Bid Bond was to be submitted as part of the Technical Proposal---Absence of a bid bond constituted a major defect in JJVL's bid because the Bid Bond constituted an integral aspect of the bid---One of the clauses of the Instructions to Bidders, provided that, "Any Bid not accompanied with Bid Bond of required amount will be considered as non-responsive, rejected by SSGC and returned to the Bidder.", thus it was obligatory upon SSGCL to reject the bid made by JJVL---Unjustified acceptance of such bid also constituted unfairness and illegality in the bidding process inasmuch as other potential pre-qualified bidders were never informed that they could submit bids without Bid Bonds---Record showed that a Bid Bond was subsequently furnished when JJVL became sure that the other prequalified bidders had not submitted bids---Neither SSGCL nor JJVL were able to proffer any explanation to justify such a material departure from the requirements of a valid bid---Bidding process leading to the award of the LPG extraction project to JJVL was tainted from its very inception and was geared towards advancing benefits and unfair advantage to JJVL by eliminating potential pre-qualified bidders who were not afforded the same favourable treatment as had been given to JJVL---Decision of the Board of Directors of SSGCL in proceeding with JJVL's bid was based on a note prepared by the management of SSGCL---Said note did not inform the Directors that the bid submitted by JJVL could not have been treated as valid because it was not accompanied by the mandatory Bid Bond---Such material defect was deliberately concealed from the Board of Directors of SSGCL with the object of eliminating competition and giving undue benefit to JJVL---Such concealment could not have occurred in a transparent and fair transaction--- Record showed gross criminal negligence on the part of functionaries of SSGCL, JJVL and possibly others, or the existence of corruption and/or corrupt practices in the bidding process---Supreme Court declared that project in question could not be allowed to continue being based on illegalities from its very inception and was accordingly set aside; that all losses caused to and incurred by the State, State enterprise SSGCL and the people arising out of and as a result of the bidding process and during the tenure of Implementation Agreement were to be made good and recovered from JJVL and all persons who had actively participated and had made substantial decisions in the bidding process and making of the Implementation Agreement---Supreme Court directed Federal Investigation Agency to inquire into the present matter and submit a report before the court identifying all those who were responsible for the failings, including acts of criminal negligence, corruption, corrupt practices or other offences.

(h) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art.184(3) of the Constitution relating to award of a project by Sui Southern Gas Company Limited (SSGCL), a State Enterprise to Jamshoro Joint Venture Limited (JJVL) for extraction of Liquified Petroleum Gas (LPG)---Royalty payments, calculation of---Corruption and corrupt practices---Gross criminal negligence---Undue benefit/wrongful gain given to a company at the expense of losses to a state enterprise---Calculation of royalty payments by JJVL was at rates different from those agreed by it previously, which caused a very substantial loss to SSGCL---Sui Southern Gas Company Limited (SSGCL) and Jamshoro Joint Venture Limited (JJVL) executed an Implementation Agreement, under which JJVL was to establish a plant for extraction of LPG from natural gas supplied to it by SSGCL, and JJVL was, inter alia, to pay royalty payments on the LPG extracted by it---Sui Southern Gas Company Limited (SSGCL) issued a Letter of Intent (LOI) to JJVL, being the successful bidder---Letter of Intent was duly accepted by JJVL and as per accepted and agreed terms, the royalty payments were to be made on the basis of Saudi Aramco reference price plus freight, if such price was higher than the price of locally produced LPG---Jamshoro Joint Venture Limited (JJVL) thus agreed not only to pay the Saudi Aramco price, but also the freight cost, if the same was higher than the local price, however, this entire scheme of royalty payments suddenly and inexplicably was altered in favour of JJVL in the final Implementation Agreement without any justification---No correspondence existed on record nor was any explanation offered on behalf of JJVL as to why such change in scheme of royalty payment occurred in the final Implementation Agreement despite the fact that JJVL had clearly agreed on multiple occasions to reference the royalty payments to the Saudi Aramco price with freight cost or local price, whichever was higher---Implementation Agreement was thus entered into in a non-transparent and highly questionable manner resulting in undue benefit to JJVL and very heavy losses to the State enterprise SSGCL and consequently to the people of Pakistan---Jamshoro Joint Venture Limited (JJVL) was granted an unearned and wrongful gain---Since the date of the Implementation Agreement, JJVL was paying royalty at a rate which was well below the reference price based on the Saudi Aramco price plus freight cost as had been specifically agreed, which had caused billions of rupees worth of loss to SSGCL and this, in turn, had adversely impacted, inter alia, its ability to invest in the improvement of its facilities and services to its consumers---Record showed gross criminal negligence on the part of functionaries of SSGCL, JJVL and possibly others, or the existence of corruption and/or corrupt practices in the award of LPG extraction project, overruns and delays in implementation of the project etc.---Supreme Court declared that project in question could not be allowed to continue being based on illegalities from its very inception and was accordingly set aside; that all losses caused to and incurred by the State, State enterprise SSGCL and the people were to be made good and recovered from JJVL and all persons who had actively participated and had made substantial decisions---Supreme Court directed Federal Investigation Agency to inquire into the present matter and submit a report before the court identifying all those who were responsible for the failings, including acts of criminal negligence, corruption, corrupt practices or other offences.

(i) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution relating to award of a project by Sui Southern Gas Company Limited (SSGCL), a state enterprise to Jamshoro Joint Venture Limited (JJVL) for extraction of Liquified Petroleum Gas (LPG)---Undue and illegal favours given to JJVL by SSGCL---Corruption and corrupt practices---Gross criminal negligence---Material changes were made to the Implementation Agreement executed between SSGCL and JJVL to benefit the latter---Legality--- Draft format of the Implementation Agreement was the main instrument setting out the respective rights and obligations of SSGCL and the successful bidder, and if material changes were brought about in the Implementation Agreement subsequent to the bidding, it would negate the notion of a fair and open competitive bidding process---Implementation Agreement which was executed by SSGCL in favour of JJVL was substantially and materially different from the draft Implementation Agreement---Changes made in the draft Implementation Agreement, were material in nature and had been made to benefit JJVL---Such changes were never available to other pre-qualified parties---Definition of "Gas Sales Agreement" provided in the form of the Implementation Agreement was altered in the final Implementation Agreement executed between SSGCL and JJVL---Record showed that JJVL considered such changes in the Implementation Agreement to be material and favourable to it, and till date JJVL was receiving undue benefit which would not have been available to it but for the unwarranted and unlawful additions made in the Implementation Agreement---Correspondence between JJVL and SSGCL clearly showed that the changes made in the Implementation Agreement were actively sought by JJVL, and it insisted and expressed its avid desire for making such changes---Concessions were sought by JJVL after the conclusion of the bidding process for the purpose of accommodating its lenders financiers---Even 21 months after the bid, JJVL was still unable to raise or firm up its financing and sought changes in the Implementation Agreement for the comfort of its lenders---Almost 8 months after the Letter of Intent (LOI), JJVL proposed (contrary to the LOI) that clause of the Implementation Agreement regarding acquiring of plant by SSGCL in the event of JJVL's default be substituted---Said suggested clause was a major deviation from the draft Implementation Agreement as it sought deletion of the original clause in its entirety---Consequently original clause of the Implementation Agreement regarding acquiring of plant by SSGCL in the event of JJVL's default was removed invalidly to prevent SSGCL from acquiring the plant in the event of JJVL's default---Record showed gross criminal negligence on the part of functionaries of SSGCL, JJVL and possibly others, or the existence of corruption and or corrupt practices in the award of LPG extraction project, and overruns and delays in implementation of the project etc.---Supreme Court declared that Implementation Agreement as executed between SSGCL and JJVL could not be allowed to continue being based on illegalities from its very inception and was accordingly set-aside with all consequential liabilities as were provided in the "corrected draft" Implementation Agreement dated 19-5-2003; that all losses caused to and incurred by the State, State enterprise SSGCL and the people during the tenure of Implementation Agreement were to be made good and recovered from JJVL and all persons who had actively participated and had made substantial decisions in making of the Implementation Agreement---Supreme Court directed Federal Investigation Agency to inquire into the present matter and submit a report before the court identifying all those who were responsible for the failings, including acts of criminal negligence, corruption, corrupt practices or other offences.

(j) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution relating to award of a project by Sui Southern Gas Company Limited (SSGCL), to State enterprise to Jamshoro Joint Venture Limited (JJVL) for extraction of Liquified Petroleum Gas (LPG)---Gross criminal negligence, lack of transparency, corruption and corrupt practices committed in the bidding process and award of project---Undue and illegal favours extended to JJVL by SSGCL causing losses worth billions of rupees---Effect---Supreme Court set aside the project in question and constituted a two person Committee to determine certain issues in relation to the project and give its suggestions thereupon---Terms of reference of said Committee provided.

Rashdeen Nawaz Kasuri, Advocate Supreme Court with Khawaja Muhammad Asif for Petitioners.

Shah Khawar, Addl. AGP and M. Nazir Malik, Director (Law) for Respondent No.1.

Abid Hassan Minto, Senior Advocate Supreme Court, Asim Hafeez, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.2.

Khawaja Ahmed Tariq Rahim, Senior Advocate Supreme Court, Uzair Karamat Bhindari, Advocate Supreme Court and M.S. Khattak, Advocate on Record for Respondent No.3.

Nemo for Respondent No.4.

Shahid Hamid, Senior Advocate Supreme Court for Respondent No.5.

Muhammd Munir Paracha, Advocate Supreme Court and Mehmood A. Sheikh, Advocate on Record for Respondent No.6.

M. Farooq, Dy. Director for Respondent No.7.

Irfan Qadir, Advocate Supreme Court (in C.M.As.622023), Salman Akram Raja, Advocate Supreme Court (in C.M.A.6235/13) and Azhar Siddique, Advocate Supreme Court (in C.M.As. 6247/13), Nemo (in C.M.A.-6327 of 2013) for Applicants.

Dates of hearing: 8th, 10th, 21st and 22nd of October, 2013.

JUDGEMENT

JAWWAD S. KHAWAJA, J.---Although the record of this case is voluminous, the relevant facts necessary for its disposal are fairly simple. Pakistan has been blessed with a vast array of natural resources including mineral oil and natural gas. The people of Pakistan are the ultimate owners of such resources through their Governments and State enterprises such as Sui Southern Gas Co. Ltd. This petition filed under Article 184(3) of the Constitution raises issues of public importance relating to such natural resources with reference to the enforcement of the fundamental rights guaranteed by the Constitution.

Parties and Background.

The matter relates to the award of a project through competitive bidding, by respondent No. 2 namely, Sui Southern Gas Company Limited (SSGCL) to the respondent No. 3 namely, Jamshoro Joint Venture Limited (JJVL). SSGCL is a State enterprise incorporated under the Companies Ordinance, 1984. SSGCL has an authorized capital of Rs.10 billion of which Rs.6.7 billion is issued and fully paid up. The Government along with State owned entities owns more than 67% of the shares of SSGCL. In 2003 when the aforesaid contract was awarded all 14 Directors on the Board of SSGCL were Government appointees. Today, 11 out of the 14 Directors are nominees of the Government. SSGCL is a Public Limited Company listed on the Karachi Stock Exchange.
JJVL is an unlisted limited Company incorporated under the Companies Ordinance, 1984. It was incorporated for the purpose of making a bid for the aforesaid project which was aimed at extraction of Liquified Petroleum Gas (LPG) from natural gas mined in Badin and supplied to SSGCL under a Gas Sales Agreement (GSA) dated 12-8-2003. The contract was awarded to JJVL in circumstances which are considered below and provide the subject-matter of the petition.
To facilitate understanding of the issues arising in this petition it is appropriate to summarize briefly and in simple terms, some technical aspects of LPG. The natural gas which is received by SSGCL under the GSA is made up of a mix of gases. These include propane, butane and methane. Butane and propane, when extracted from the mix, are liquefied and sold as LPG. As a result of extraction of LPG from natural gas, there is a reduction in the remaining volume and calorific value of natural gas which reduction is known in technical terms, as "gas shrinkage". The volume of gas shrinkage is a factor to be considered in deciding the terms for awarding the project for extraction of LPG. LPG is presently being used in Pakistan amongst others, by persons who for various reasons are not receiving or using natural gas.
We can now state some relevant facts which, in the main, are not disputed. SSGCL invited Expressions of Interest (EoI) through public advertisements inter alia, in the Daily "Dawn" dated 13-3-2000. Bids for pre-qualification of prospective bidders were invited through public advertisements through the press, including the Daily "Express" dated 11-11-2000. The invitation to bid was for an LPG extraction Plant on a "Build Operate Own" (BOO) basis. Although bidding documents were obtained by nine parties only six of these were pre-qualified and from these only JJVL submitted a bid. It may be noted that this bid was made without a bid bond although this was an essential prerequisite for a valid bid as per requirements of clause 5.0 of the Instructions to Bidders.
Notwithstanding the aforesaid defect in the bid made by JJVL, SSGCL decided to accept the defective bid and to enter into negotiations with JJVL whereafter the two parties executed an Implementation Agreement (IA) on 12-8-2003. Under the IA, JJVL was to establish a Plant for extraction of LPG from natural gas supplied to it by SSGCL. JJVL was, inter alia, to pay a compensation price to SSGCL for gas shrinkage and also royalty payments on the LPG extracted by it. The rate of royalty and the differences between SSGCL and JJVL in respect of the same is an important aspect of this case as will be examined shortly.
The petitioner before us is Khawaja Muhammad Asif, who was a member of the opposition in the National Assembly in 2011 when this petition was filed. Currently he is a part of the Government being the Minister for Water and Power in the Federal Cabinet. Learned counsel for some of the respondents contended that the proceedings could not continue subsequent to the petitioner being appointed a Federal Minister. We, however, are of the opinion, for reasons appearing below, that this petition raises issues of vital public importance impacting the fundamental rights of the people, and therefore, must be heard. It is by now well-settled that the Court's jurisdiction under Article 184(3) can be exercised even without a petitioner when information is laid before the Court which justifies the exercise of such jurisdiction. Therefore, the proceedings can continue in the same manner as before.
The petitioner has approached this Court under Article 184(3) of the Constitution. It is his case that the extraction agreement awarded to JJVL was neither lawful or fair nor was it transparent. According to him, it was meant to extend illegal and undue favours to JJVL at the cost of the State and the People of Pakistan. He referred firstly; to the acceptance of the bid submitted without a bid bond; secondly, to the calculation of royalty payments by JJVL at rates different from those agreed, thus causing a very substantial loss to SSGCL and; thirdly, to the changes made in the draft Implementation Agreement (forming part of the bid documents) to extend undue benefits to JJVL.
We can now consider these aspects and the respective contentions of learned counsel representing the parties.

Lack of Bid Bond.

At the outset it may be stated that as per Instructions to Bidders the bid submitted by JJVL on 12-9-2001 could not have been treated as valid because it was not accompanied by a bid bond. Part C Clause 5.0 of the Instructions to Bidders expressly stipulated that the "bidder at its cost shall submit a Bid Bond as part of its Bid for an amount of US$ 100,000 (United States one hundred thousand) or in equivalent Pakistani Rupees based on prevailing inter bank exchange rate". The bid bond was to be submitted as part of the Technical Proposal. The absence of a Bid Bond constituted a major defect in JJVL's bid because the Bid Bond constituted an integral aspect of the Bid. The envelope containing the Financial Proposal could not have even been opened when the Technical Proposal was not accompanied by the mandatory Bid Bond. This is apparent from Part C, Clause 5.4 of the Instructions to Bidders, which reads, "Any Bid not accompanied with Bid Bond of required amount will be considered as non-responsive, rejected by SSGC and returned to the Bidder." It will thus be seen that rejection of the bid made by JJVL was obligatory. The unjustified acceptance of such bid also constituted unfairness and illegality in the bidding process inasmuch as other potential pre-qualified bidders were never informed that they could submit bids without bid bonds. It appears from the record that a bid bond was subsequently furnished when JJVL became sure that the other pre-qualified bidders had not submitted bids. Neither SSGCL nor JJVL were able to proffer any explanation to justify such a material departure from the requirements of a valid bid. Learned counsel on behalf of JJVL argued that the lack of a bid bond was a mere technical irregularity which could not be a ground for striking down the whole transaction. This contention cannot be accepted. As stated above, furnishing the Bid Bond was clearly an essential condition of the bid and therefore, could not be deviated from. It is apparent from this circumstance that the bidding process leading to the award of the LPG extraction project to JJVL was tainted from its very inception and was geared towards advancing benefits and unfair advantage to JJVL by eliminating potential pre-qualified bidders who were not afforded the same favourable treatment as had been given to JJVL.
There is another significant aspect of the case, arising from the failure of JJVL to submit a bid bond as required by clause 5.0 (Bid Bond) of the Instructions to Bidders. We have noted that in the 311th meeting of the Board of Directors of SSGCL held on 15-11-2001, one of the Directors had suggested re-bidding for the extraction project. This suggestion was not accepted and it was decided "to let the management proceed with evaluation and take the decision when the matter would [come to the Board] with management's recommendations". It is important to note that the decision of the Board of Directors of SSGCL was based on a note prepared by the management of SSGCL. This note dated 13-11-2001, quite strangely, did not inform the Directors that the bid submitted by JJVL could not have been treated as valid because it was not accompanied by the mandatory bid bond. It does appear that the aforesaid material defect was deliberately concealed from the Board of Directors with the object of eliminating competition and giving undue benefit to JJVL. The Board itself was kept in the dark and if informed, would surely have taken note of the defective bid submitted by JJVL. There was no explanation forthcoming during the arguments advanced on behalf of JJVL as to why an essential condition of the bid had not been met by JJVL. Nor is there any justification given by SSGCL as to why such bid had not been rejected for this reason. It is pertinent to observe that the Note to the Board of Directors dated 13-11-2001 detailing the acceptance of JJVL's bid does not mention the fact that JJVL did not submit a bid bond. Thus, it appears that an attempt was made from the start, to conceal the fact that JJVL did not submit a valid bid. It is quite clear that such concealment could not have occurred in a transparent and fair transaction.

Royalty Payments.

We can now take up the matter of royalty payments. According to the petitioner the royalty payments under the IA were to be calculated with reference to the Saudi Aramco reference price. The essential feature of the tender documents, inter alia, was that the bidder offering the highest amount of royalty and compensation for gas shrinkage etc., for the gas processed would be the successful bidder. Our attention was drawn to a letter dated 28-4-2003 written to SSGCL by Iqbal Z. Ahmad, Chairman/CEO of JJVL. In this letter it had been agreed that the Saudi Aramco ex-refinery price would be used as the basis for calculating royalties payable to SSGCL. It was also specifically stated in the said letter that "[f]or an apple-to-apple comparison, it is required that the Local Ex-Plant prices be compared with Saudi Aramco's Ex-Plant prices and not with C&F Karachi price that includes various third party costs and government fees and levies etc."
It is relevant in this context to note the letter from JJVL to SSGCL dated 5-9-2002, wherein JJVL had expressly agreed to the following: "Reference price of LPG should be Saudi Aramco's prices of Propane and Butane in the ratio of 60:40 published in international Butane-Propane Newsletter plus LPG freight cost or local refineries cost other than PARCO, whichever is higher shall be taken for calculation of royalty." (emphasis added). Most importantly, as per Instructions to Bidders in relation to royalty payments, it was stipulated that "the bidders will be required to propose the maximum amount of such royalty on a per-MCF basis". A Letter of Intent (LOI) was to be issued to the successful bidder. As noted elsewhere in this opinion, the LOI in terms of the Instructions to Bidders was issued to JJVL by SSGCL on 28-6-2002. The LOI was duly accepted by JJVL and as per accepted and agreed terms, the royalty payments were to be made on the basis of Saudi Aramco reference price plus freight if such price was higher than the price of locally produced LPG. It is thus abundantly clear that JJVL had been willing and had agreed not only to pay the Saudi Aramco price, but also to pay the freight cost if the same was higher than the local price. However, this entire scheme of royalty payments suddenly and inexplicably was altered in favour of JJVL in the final Implementation Agreement, clause 9.2 of which reads: "9.2. Royalty shall be calculated with reference to a "Reference Price". The highest ex-plant/ex-refinery price in Pakistan for LPG during a Month of one of the producers identified in Schedule 9 hereto will be used as the reference price for calculation of Royalty for such Month subject to a minimum price of US $250 per metric tonne." (emphasis added). There is no correspondence on record nor was any explanation offered on behalf of JJVL as to why this change occurred in the final Implementation Agreement despite the fact that JJVL had clearly agreed on multiple occasions to reference the royalty payments to the Saudi Aramco price with freight cost or local price, whichever is higher. This material change has, according to SSGCL, caused loss to it, of an amount in excess of Rs. 22 billion to date. Thus, it is clear that the Implementation Agreement was entered into in a non-transparent and highly questionable manner resulting in undue benefit to JJVL and very heavy losses to the State enterprise SSGCL and consequently to the People of Pakistan.
It is not disputed that since the date of the Implementation Agreement, JJVL is paying royalty at a rate which is well below the reference price based on the Saudi Aramco price plus freight cost as had been specifically agreed. This has caused billions of rupees worth of loss to the State enterprise SSGCL and this, in turn, has adversely impacted, inter alia, its ability to invest in the improvement of its facilities and services to its consumers. Instead of the pricing formula agreed as above, the ex-refinery price of LPG produced in Pakistan has been used even though it is substantially lower than the Saudi Aramco price plus LPG freight cost. When confronted with this material deviation from the agreed basis for royalty payments, learned counsel for JJVL could not dispute the deviation but stated that even in respect of the Saudi Aramco reference price, the same had to be on FOB basis and according to him, if so calculated, no loss had been caused to SSGCL. This submission is wholly contrary to the agreed basis which provided for royalties to be calculated on higher of the two i.e. FOB Saudi Aramco plus freight and the ex-refinery price of LPG produced in Pakistan.
SSGCL has calculated the difference in royalty payments on the agreed basis and those made so far. If this figure is taken as an approximation, JJVL owes more than Rs. 22 billion by way of royalty payments if freight is calculated at US $50 or over Rs. 23 billion if freight is calculated at US $60. For reasons appearing in the concluding paragraphs of this opinion, it is not necessary for us to determine in this opinion, the exact amount of short payment. We do, however, note that the royalty payments have not been made by JJVL to SSGCL in accordance with the agreed basis referencing such payments to Saudi Aramco prices FOB plus freight. Clause 9.2 of the Implementation Agreement constitutes a gratuitous and unlawful favour bestowed on JJVL. Furthermore, it must be noted that the first draft of the Implementation Agreement dated 6-11-2002 contained the wording of the letters dated 28-4-2003 and 5-9-2002 mentioned above; i.e. that JJVL would use the Saudi Aramco rate as reference price and also pay freight cost. However, with no justification or explanation, the "corrected draft" of the Implementation Agreement dated 19-5-2003 (less than a month subsequent to the letter dated 28-4-2003) removed this stipulation of royalty that JJVL had expressly agreed to. There is no correspondence or minutes on record to indicate why this material change occurred which allowed JJVL to pay a much lower amount of royalty. The Implementation Agreement executed between SSGCL and JJVL thus represents a significant loss to the State owned utility and thus ultimately to the People of Pakistan.

Material Changes to the Implementation Agreement.

The next issue arising in the case relates to changes which were made in the Form of the Implementation Agreement. Such Form had been made part of the bid documents provided to the pre-qualified bidders. According to the petitioner, these changes were of a material nature and were meant to alter the terms of the Implementation Agreement to the advantage of JJVL. Learned counsel for JJVL did not dispute the fact that these changes constituted deviations from the Form of the Implementation Agreement which had been given to interested bidders. He, however, contended that such deviations were not of a material nature and further that the changes did not bestow any advantage on JJVL. For reasons considered below, we have found these submissions to be untenable being without merit.
In order to examine the importance of the Implementation Agreement and the relevance of the changes made therein after the conclusion of the bidding process, it is necessary to set out the significant aspects of the bid documents, the bidding process and the form of the Implementation Agreement which was the most important element in the bidding documents. In the case of a fair and transparent process of competitive bidding, the bid documents constitute the basis on which assessments, calculations and the bid itself are prepared by the bidders. This is meant to ensure that the bidding is even-handed and provides for a fair, transparent and objective evaluation of bids received.
As noted above, the bid documents in the present case included a draft format of the Implementation Agreement which was to be the main instrument setting out the respective rights and obligations of SSGCL and the successful bidder. It is understandable that some parts of the Implementation Agreement have to be filled in on the basis of bids received, for example the royalty payment formula, compensation for gas shrinkage, compensation for acquisition of the plant etc. or to accommodate language etc. which does not materially alter the terms of the Implementation Agreement. If material changes are brought about in the Implementation Agreement subsequent to the bidding, this will in fact negate the notion of a fair and open competitive bidding process. In the present case, it has all along been urged by JJVL that the bidding for the LPG extraction plant was competitive i.e. that bids were to be submitted on the basis of the bidding documents (including the draft Implementation Agreement) which were given to all pre-qualified bidders. The fact, however, is that the Implementation Agreement which was executed by SSGCL in favour of JJVL was very substantially and materially different from the draft Implementation Agreement. As will be apparent from the changes made in the draft Implementation Agreement, all such changes as have been discussed below were material in nature and had been made to benefit JJVL. These changes were never available to other pre-qualified parties.
It is necessary to examine what these changes were to appreciate the submissions of the petitioner and JJVL. The Form of the Implementation Agreement which was part of the bidding documents defined GSA to mean "the Gas Sales Agreement between BP Pakistan Exploration and Production Inc., Oil and Gas Development Company Limited, Occidental Petroleum (Pakistan) Inc. and Government Holdings (GOP) dated 28-11-1988, as amended from time to time." This clause was altered in the Implementation Agreement which was executed between SSGCL and JJVL so that the last few words of the definition of GSA would read "as amended and extended from time to time"(emphasis added). The record before us, which is considered below, provides the context within which the significance and materiality of this change can be very easily seen. Likewise, Article 2 of the draft Implementation Agreement was changed. In the Form issued with the bidding documents given to all bidders, Article 2 stipulated that the Implementation Agreement "shall commence and be effective on the date hereof, and shall, unless terminated earlier in accordance with its terms, continue in full force and effect until the validity of the GSA, which is currently valid up to the 3rd of February, 2011" (emphasis added). To this stipulation of the Implementation Agreement, the words "It is agreed that the Agreement shall continue on the same terms and conditions for any extension of the GSA beyond 3rd February, 2011" were added.
According to the petitioner, the above noted two changes made in the Implementation Agreement were meant to bestow undue favour and advantage to JJVL because these modified terms were materially in favour of JJVL but the same advantageous terms had not been provided to other potential bidders. It is thus clear that the Implementation Agreement which was finally executed between SSGCL and JJVL was significantly different from the Form of the Implementation Agreement which was handed out to at least six pre-qualified bidders who had received the bidding documents.
We can now examine the submissions made on behalf of the parties in the context of circumstances which emerge from the record. No reason whatsoever has been given as to why SSGCL would give up its potential and possibilities beyond 3rd February, 2011 on which date the Implementation Agreement was to expire. It was not argued on behalf of JJVL that it was at a disadvantage by continuing with the Implementation Agreement on the same terms and conditions, after 3rd February, 2011. In fact, to the contrary, JJVL filed a suit in the Sindh High Court (Suit No. 151 of 2011) seeking inter alia, an injunction to restrain SSGCL from terminating the Implementation Agreement. The plaint in the suit as well as the order dated 1-2-2011 passed by the Sindh High Court granting a temporary injunction make it abundantly clear that JJVL placed reliance on the wording which had been added to Article 2 whereby it had been agreed that the Implementation Agreement "shall continue on the same terms and conditions for any extension of the GSA beyond 3rd February, 2011". In this regard, it is useful to reproduce an extract from paragraph 14 of JJVL's plaint which avers "that by virtue of Article 2 thereof, the term of the Implementation Agreement is linked to the validity of the GSA. In plain words, Article 2 states that the Implementation Agreement will continue beyond 3 February, 2011 on the same terms and conditions if the GSA is extended beyond the said date... "(emphasis added). There can be no clearer proof of the fact firstly; that JJVL considered the aforesaid changes in the Implementation Agreement to be material and secondly; that these changes were favourable to JJVL and thirdly; that even today JJVL is receiving undue benefit (i.e. extension of the Implementation Agreement) after 3-2-2011 which would not be available to it but for the unwarranted and unlawful additions made in the Implementation Agreement noted above.
The learned Bench of the Sindh High Court, in its order dated 1-2-2011, has granted the interim injunction sought by JJVL, as a result of the changes introduced in the Form of the Implementation Agreement. This is evident from the fact that the said Order has prominently reproduced and relied on the aforesaid changes in the Implementation Agreement. JJVL is still continuing to operate the LPG extraction plant because of the changes made, inter alia, in Article 2 of the Implementation Agreement after the competitive bidding process had been concluded and even though the other pre qualified bidders had been given no opportunity of basing their bid on the Implementation Agreement as modified for JJVL. These circumstances substantiate the point that JJVL itself considers the aforesaid deviations to be material and also to its advantage. We, therefore, are unable to accept the contention of learned counsel for JJVL that the deviations were insignificant or that the same did not make any material change in the Implementation Agreement to favour JJVL. Considering that these changes were made gratuitously, and in a non-transparent manner, the same were not lawfully made and cannot be allowed to stand.
In addition to the above, we may also refer to the correspondence between JJVL and SSGCL which shows clearly that the changes, referred to above, made in the Implementation Agreement were actively sought by JJVL. This is evident inter alia, from the minutes of the meeting between JJVL and SSGCL dated 24-1-2003. JJVL reiterated its desire for the said changes vide letter dated 19-2-2003; and SSGCL finally acquiesced to the same vide fax dated 4-3-2003. If indeed, the changes sought by JJVL had no advantage for it or had no material bearing on the Implementation Agreement (as claimed by JJVL), there would have been no reason for JJVL's insistence and avid desire for the above referred changes.
The most significant deviation from the Implementation Agreement, however, was in relation to clause 18 and the accompanying schedule (Schedule 5) to the Implementation Agreement. Clause 18 of the draft Implementation Agreement provided SSGCL the option of acquiring the extraction plant in the event of JJVL's default as defined in Article 17 of the Implementation Agreement. This stipulation ties in directly with the short payments of royalty as discussed above. Schedule 5 set out the agreed basis on which such acquisition could be affected. The relevant fact is that clause 18 was a significant part of the Implementation Agreement and ensured that on the termination of the Implementation Agreement on account of JJVL's default, including its failure to make the agreed royalty payments, the extraction plant could be acquired by it on the basis of an agreed formula for working out the acquisition price. It is also important to bear in mind that the basis of the bid made by JJVL was the bid documents and the most significant bid document undoubtedly was the Form of the Implementation Agreement. It is in this context important to note that the changes made therein by redefining the GSA and the significant change made in Article 2 ibid as to the term of the Implementation Agreement, had a direct nexus with the deletion of clause 18 of the Implementation Agreement as these changes were meant to skew the said agreement in favour of JJVL. Correspondence between SSGCL and JJVL (discussed below) also shows that the financial bid submitted by JJVL was conditional inasmuch as the lenders of JJVL had strong reservations in respect of clause 18 of the Implementation Agreement and were not prepared to finance the Project because of clause 18 ibid.
We have gone through the documents and correspondence placed on record by SSGCL and JJVL. On 21-6-2002, a meeting between JJVL and SSGCL was held in Karachi. Consistent with the terms of the draft Implementation Agreement, SSGCL pointed out "that in the light of clauses 17 and 18 of the draft Implementation Agreement, SSGC would need extensive details and verification of the proposed plant ..." The details required were to be furnished by JJVL and the verification thereof was to be made by SSGCL. The scheme of the bidding process as incorporated in the Instructions to Bidders followed the accepted best practices for award of such contracts and the same were meant for the purpose of ensuring fairness. From the Instructions to Bidders it is evident that the Implementation Agreement was the most crucial element of the tender documents because it was this agreement which was to govern the contractual relationship between SSGCL and JJVL. The Instructions to Bidders also specifically stated that "failure to furnish all information required or submission of a bid not substantially responsive to the tender documents shall be at the bidder's risk and may result in the rejection of such bid". To ensure openness and equal treatment for all bidders they were instructed to seek any clarifications or to seek a pre-bid meeting with SSGCL for additional information for the preparation of their bids.

26 Bidders were required to prepare their bids "under two separate covers, Technical Proposal and Financial Proposal". The outlines of the requirements of the Technical and Financial Proposals were included in the Instructions to Bidders. The financial proposal was specifically required to include the proposed financing plan. Such financing plan, in order to be responsive to the invitation to bid, was to be put in place by the bidders on the basis of the tender documents at their own responsibility. There was no question of any concessions being sought by a bidder after the conclusion of the bidding process for the purpose of accommodating its lenders/financiers. It was a clear violation of the Instructions to Bidders that the financing plan submitted by JJVL was not in place on the basis of the tender documents and it is for this reason that correspondence (considered below) relating to clause 18 of the Implementation Agreement was initiated by JJVL to accommodate the requirement and security for financing, sought by JJVL's lenders. The Bid (even though invalid) had been made on 12-9-2001 evidently without a firmed up financing plan or commitment from lenders. As late as 10-6-2003 JJVL wrote to SSGCL that it "is undertaking [the] Project being fully aware of the risks but is only requesting SSGC to provide the minimum level of comfort which will make the Project financeable". (emphasis added). We find it quite inexplicable that even 21 months after the Bid, JJVL was still unable to raise or firm up its financing and was seeking further indulgence from SSGCL for the comfort of JJVL's lenders.

In this context, we now consider the Letter of Intent (LOI) dated 28-6-2002 issued by SSGCL in favour of JJVL. The two important aspects of this letter which relate directly to clause 18 of the Implementation Agreement need to be spelled out. In para 7 of the LOI, it has been stipulated that "the total cost of the Project shall not exceed US $ 32 million (the 'Ceiling') and a term will be included in the Implementation Agreement to reflect the fact that notwithstanding the actual Project cost, for the purpose of Schedule 5 of the Implementation Agreement the maximum liability of SSGC will be restricted to the Ceiling". Clause 9 of the LOI requires JJVL to provide half yearly and annual audited accounts to SSGCL. It was also submitted therein that "to the extent that the auditor determines that any expense of the Project Company is excessive or has not been incurred on the basis of an arms length transaction or is an expense which is unrelated to or not entirely related to the execution and implementation of the Project, the said expense will be deducted from any calculation of the Acquisition Cost payable by SSGC as set forth in Schedule 5 of the Implementation Agreement". Another important stipulation in the LOI is that "in the event of any conflict between the Bid and the terms of the Tender Documents or the terms of [the] LOI, the terms of the Tender Document and the LOI will prevail. Any conflicting terms contained in the Bid are deemed to have been withdrawn and cancelled".
We, therefore, find it surprising and quite extraordinary that almost 8 months after the LOI, vide letter dated 24-2-2003, JJVL proposed (contrary to the LOI) that a new clause 18 be substituted for the one included in the original form of the Implementation Agreement. The suggested clause was a major deviation from the draft Implementation Agreement as it sought deletion of clause 18 in its entirety. A wholly different clause 18 was proposed by JJVL as under:

A separate Agreement between the lenders, SSGC and the Company [JJVL] will be signed simultaneously with the signing of the Implementation Agreement to reach a correct understanding between the lenders, SSGC and the Company [JJVL] on all aspects related to the Implementation Agreement."

This major change in the Implementation Agreement was sought for the purpose of accommodating JJVL's lenders who, as noted above, had reservations about clause 18 ibid. After going through the correspondence placed on record by the parties including the letter dated 24-2-2003, it is not possible to accept the submissions made by learned counsel for JJVL that the deletion was sought by SSGCL. It is also clear from the record that as late as February 2003, JJVL had not been able to arrange financing for the Project and was desperately trying to secure favourable terms from SSGCL which would be acceptable to JJVL's lenders. Thus, on 24-2-2003, JJVL wrote to SSGCL that "we have had the benefit of discussing the issues with the lenders ... [and] in view of the discussions held with them and their guidance, we would like to submit ... important issues for your urgent consideration and review." (emphasis added). That the financing for the Project had not been arranged by JJVL is also apparent from JJVL's aforesaid letter whereby a meeting was sought for agreeing on the text of a proposed tripartite agreement involving the lenders of JJVL. Importantly, however, from the same letter it is clear that there was no question of deleting clause 18 of the Implementation Agreement because the said clause and Schedule 5 were unquestionably and undisputedly part of the agreed terms.
The mysterious and baffling way in which Clause 18 and Schedule 5 suddenly disappeared from the Implementation Agreement is evident from the drafts of the Implementation Agreement that were exchanged between JJVL and SSGCL prior to its final signing. Clause 18 and Schedule 5 were present in the same language as the form of the Implementation Agreement in the first draft of the Implementation Agreement dated 6-11-2002 as well as the "corrected draft" dated 19-5-2003. It is particularly pertinent to note that in both these drafts, Schedule 5 contained the ceiling of US $32 million for acquisition of the plant that was stipulated in the LOI. It must also be borne in mind that there was a six-month gap between the first draft of 6-11-2002 and the "corrected draft" of 19-5-2003; a gap wherein Clause 18 and Schedule 5 remained unchanged. Inexplicably, after a gap of only 4 days, there appeared a "final Implementation Agreement" dated 23-5-2003 which has been placed on record by JJVL. This contains the meaningless and ineffective substitution to Clause 18 that JJVL had proposed, as detailed above. There is no indication at all of what transpired in these four days to suddenly make Clause 18 and Schedule 5 disappear into thin air. Despite opportunity given by the Court, no documentation has been placed on record by JJVL to throw light on this murky issue. In the circumstances, it is clear that Clause 18 and Schedule 5 have been invalidly removed from the Implementation Agreement to prevent SSGCL from acquiring the plant in the event of JJVL's default at the option of SSGCL. From the foregoing discussion on royalty, it is already established that JJVL has defaulted in payment of the mandated and agreed basis for calculating royalty.
In addition to the changes in the draft Implementation Agreement, noted above, other substantial changes were also made to accommodate JJVL and its lenders. It is not necessary to advert to all such changes because the specific deviations from the draft Implementation Agreement and Instructions to Bidders, noted above, are sufficient for the purpose of demonstrating that the award of the LPG extraction Project to JJVL and the execution of the Implementation Agreement executed on 12-8-2003 were not lawful and were based on considerations meant to benefit JJVL at the expense of the State enterprise SSGCL. We also are left in no doubt inter alia, that:

(a) JJVL's bid was invalid having been submitted without the mandatory Bid Bond and, therefore, could not lawfully have been accepted and was in fact liable to rejection in terms of the Instructions to Bidders;

(b) The royalty payments which were pegged to the higher of Saudi Aramco or domestic price of LPG and such basis had been expressly agreed between SSGCL and JJVL was unlawfully and without justification, altered to favour JJVL and as a result JJVL was granted an unearned and wrongful gain;

(c) The terms of the draft Implementation Agreement which were the basis for making bids and for evaluating the same were materially and substantially modified after the bidding process to give undue and illegal favours to JJVL.

The foregoing discussion and the circumstances brought on record show gross criminal negligence on the part of functionaries of SSGCL, JJVL and possibly others, or the existence of corruption and/or corrupt practices in the bidding process, award of the LPG extraction project, overruns and delays in implementation of the Project etc.
Before parting with this section of our opinion, it may be noted that the petitioner also made reference to the order of the Competition Commission of Pakistan (respondent No. 6) dated 15-12-2009 wherein it was held inter alia, that JJVL had abused its dominant position in the market and thus violated section 10 of the Competition Act, 2010. We, however, refrain from dilating on this point as the said order has been challenged by JJVL and the matter is sub-judice before the Lahore High Court.

Maintainability.

Learned counsel on behalf of JJVL urged and supported his contentions against the maintainability of the Petition by referring to a number of precedents from this Court. He contended inter alia, that since Suit No. 151 of 2011 and C.P. No. 270 of 2007 are pending before the Sindh High Court and C.C.A. No. 2/2010 is pending before the Lahore High Court, the Supreme Court should not entertain a petition under Article 184(3) of the Constitution. According to him, the matters arising in this Constitution Petition are the same as are being agitated in the said pending litigation. This submission is not correct because, firstly; Suit No. 151/2011 has been filed by JJVL itself and no questions of public importance in respect of enforcement of fundamental rights arise therein. Moreover, the issues which have been raised by the petitioner and are discussed above are incapable of being made subject matter of the aforesaid civil suit. Secondly, C.P. 270/2007 has been filed by two shareholders of SSGCL who have an alleged grievance against SSGCL and its management. The present status of C.P. 270/2007 is that though it has been pending since 2007 no progress has been made therein. Furthermore, important questions which have been raised by the petitioner relating to the enforcement of the fundamental rights of the People and issues involving the illegalities in the bidding process are not the subject matter of C.P. 270/2007, and, thirdly; the pending C.C.A. 2/2010 impugns an Order of the Competition Commission of Pakistan imposing a fine on JJVL. It has no nexus with the issues arising before us in this case.
It was also urged on behalf of JJVL that the matter involves contractual rights that are not capable of adjudication without the formal recording of evidence; and evidence is generally not recorded in proceedings under Article 184(3). This submission is quite easily addressed by noting that the authenticity of the documents and record on which our opinion is based is not disputed; only the legal effect of the same has been examined by us. Thus no evidence is required to be recorded in these proceedings. Here we may also refer to the order dated 1-6-2009 passed in C.P. 270/2007 by a learned Division Bench of the Sindh High Court. It has been noted therein that the Supreme Court had asked the Sindh High Court to decide C.P. 270/2007 and connected cases preferably within a period of one month. Although more than four years have passed since the order of this Court, C.P. 270/2007 and connected matters, including Suit No. 151 of 2011 have still not been decided. It would be quite pointless and a waste of time not to exercise jurisdiction under Article 184(3) which otherwise is clearly attracted. We have discussed below a number of recent judgments wherein the scope of the jurisdiction under Article 184(3) of the Constitution has been elaborately spelt out. The facts and circumstances of the present case clearly fall within such jurisdiction considering that the use and management of valuable natural resources by the State and its instrumentalities such as SSGCL, is involved.
Natural gas and LPG extracted therefrom are precious mineral resources vesting in the State and ultimately in the People. SSGCL is a State enterprise in which the majority shareholding is held by the Government. SSGCL is therefore, not free to deal with such assets whimsically or in utter disregard of the fiduciary duty owed to the nation. Nor, we may add, does SSGCL have unfettered discretion to deal with national assets in a manner that does not protect and advance the best interests of SSGCL as a fiduciary and repository of the interest of the people of Pakistan who are, through the Government, beneficial owners, not only of the mineral resources of the country but also of a majority interest in SSGCL. It is also particularly important to note that LPG is being used in Pakistan by people who, for a variety of reasons either do not have access to, or are unable to obtain natural gas. In our recent judgment in Habibullah Energy v. WAPDA (Civil Appeals 149 and 150 of 2010), it has been explained that "public sector enterprises... are public assets which belong beneficially to the people of Pakistan. While the State is entrusted with the management of such enterprises, the State agencies responsible for management do not thereby become owners of the enterprise and its assets". We had also emphasised that "[r]ather than being owners of public sector enterprises, State agencies stand in a fiduciary relationship to the people" and also that the "basis of fiduciary relations is the exclusive benefit principle, according to which the fiduciary has a duty to act solely in the interests of the beneficiary". In another recent judgment in the case titled Khawaja Muhammad Asif v. Federation of Pakistan (2013 SCMR 1205) we held that "it is a fundamental right of the citizens of Pakistan under Article 9 of the Constitution that the national wealth/resources must remain fully protected whether they are under the control of the banks or the autonomous or semi-autonomous bodies." We may also have recourse to the decision in Raja Mujahid Muzaffar v. Federation of Pakistan (2012 SCMR 1651); and the judgment reported as Suo Motu Case No. 13 of 2009 (PLD 2011 Supreme Court 619) wherein it was held that "in matters in which the Government bodies exercise their contractual powers, the principle of judicial review cannot be denied... In such matters, judicial review is intended to prevent arbitrariness or favouritism and it must be exercised in [the] larger public interest". These precedents leave us in no manner of doubt that in the present case we must exercise our jurisdiction under Article 184(3) of the Constitution.
Recently we have also dealt with cases and adjudicated issues of corruption, corrupt practices and non-transparency in the award of public contracts. In this regard reference may be made to Raja Muhajid Muzaffar v. Federation of Pakistan (2012 SCMR 1651), Suo motu action regarding violation of Public Procurement Rules, 2004 in procurement of billions of rupees of exchequer case by National Insurance Co. Ltd. (S.M.C. No. 18 of 2010), Asif Fasihuddin Khan Vardag v. Government of Pakistan (C.P. 33 of 2013) and Habibullah Energy Ltd. v. WAPDA and others (Civil Appeals Nos. 149 and 150 of 2010). The cardinal principle which has been kept in mind by this Court is that waste, plunder or wanton and heedless use of public resources and funds must be prevented and public wealth wherever squandered must be recovered. The importance of fair, even handed and open competitive bidding has also been repeatedly emphasized by us while exercising our jurisdiction under Article 184(3) of the Constitution. In the matter of Suo Motu Case No.13 of 2009: Joint Venture Agreement between CDA and Multi-Professional Cooperative Housing Society (MPCHS) for development of land in Sector E-11 Islamabad (PLD 2011 Supreme Court 619), we have emphasized that the Government and its instrumentalities are expected to act fairly, justly and in a transparent manner. Transparency lies at the heart of every transaction entered into by or on behalf of a public entity such as SSGCL. It was also observed by us that "any transaction which is not transparent and goes against the interests of the general public constitutes violation of Article 9 of the Constitution". This Article guarantees the right to life as defined by this Court starting from the case of Ms. Shehla Zia v. WAPDA (PLD 1994 SC 693). The jurisdiction under Article 184(3) ibid is meant precisely for the purpose of ensuring that the assets belonging to the People (such as mineral resources) are managed and exploited for the benefit of the People of Pakistan and also for ensuring that waste or abuse of such assets is not allowed to take place or to continue.
As noted above, people all over the country who cannot obtain natural gas rely on supply of LPG for many of their needs. The supply of LPG to a very large number of users, including those living in far-flung areas is a matter of public importance impacting their 'life' as defined by this Court. Such supply, therefore, needs to continue unabated. This much has been accepted by the parties before us. In fact it was the contention of counsel on behalf of JJVL that the Implementation Agreement should not be terminated because LPG is so important to the people of Pakistan; and that termination of the said agreement would result in a highly detrimental disruption in the supply of LPG to a large body of consumers. Six LPG marketing companies who receive LPG from JJVL were also heard. Their counsel also emphatically stressed the importance of the continued supply of LPG to such consumers. These marketing companies do not have any privity of contract with SSGCL nor can they lawfully insist on supply of LPG to them in the event the Implementation Agreement comes to an end, but their submissions as to continued delivery of LPG to the end consumer have been taken into account by us.
It was also emphasized before us that if LPG extraction is discontinued, the components of LPG i.e. butane and propane will be wasted as these will have to be flared and will no longer remain available for supply to consumers. Although this does not explain the loss (through flaring) on account of the inordinate delays in implementing the Project in 2001-2003 by SSGCL and JJVL, avoidance of wastage through flaring is an important consideration for the purposes of passing an order to ensure that precious and scarce mineral resources of the nation are not frittered away and nor is the majority interest of the Government in SSGCL used for mismanaging and wasting national assets or for exploitatively bestowing undue favours on some at the expense of the People. In this respect, we are guided by the exhortation that "the State shall ensure the elimination of all forms of exploitation ... " (Article 3 of the Constitution) and Article 38 of the Constitution which commands that "the State shall ... secure the well being of the people ... by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest ... ".
We, therefore, for the reasons recorded above hold, declare and direct as under:--

(1) The Implementation Agreement dated 12-8-2003 was awarded to JJVL in gross violation of the bidding process as advertised and as set out in the tender documents, including Instructions to Bidders.

(2) The project was awarded by SSGCL in a highly non-transparent manner with the object of giving undue benefit to JJVL.

(3) The changes made in the Implementation Agreement which have been noted in paras 16 to 32 above, were made with the object of giving unfair and unlawful benefit to JJVL at the cost of the State, State enterprise SSGCL and ultimately, the People of Pakistan.

(4) The deletion of clause 18 of the Implementation Agreement and its substitution by a vague and meaningless clause was at the behest of JJVL and for the benefit of JJVL and its lenders at the expense of the general public interest.

(5) The basis for calculating royalty payments which had specifically been agreed was unlawfully altered to provide benefit to JJVL and heavy loss to SSGCL, the State and ultimately to the People of Pakistan.

(6) For the aforesaid reasons, the Implementation Agreement as executed between SSGCL and JJVL cannot be allowed to continue being based on illegalities from its very inception and is accordingly set aside with all consequential liabilities as are provided in the "corrected draft" Implementation Agreement dated 19-5-2003. All losses caused to and incurred by the State, State enterprise SSGCL and the People arising out of and as a result of the bidding process and during the tenure of Implementation Agreement are to be made good and recovered from JJVL and all persons who had actively participated and had made substantial decisions in the bidding process and making of the Implementation Agreement.

(7) A Committee comprising of (i) Mr. M. H. Asif, former Member, OGRA and, (ii) Mr. Shabbar Raza Zaidi, Partner of Messrs A.F. Ferguson and Co., Chartered Accountants, is constituted for the following purposes:--

(a) to calculate royalty payments (on the LPG extracted to date) on the basis of the Saudi Aramco reference price plus freight, for the full period during which the Implementation Agreement has been operational; this shall be done within 15 days from the date of this Order; an opportunity of hearing shall be afforded to SSGCL and JJVL while making the calculation;

(b) to determine an acquisition price for the LPG extraction Plant, as nearly as possible in accordance with the LOI dated 28-6-2002 and clause 18 read with Schedule 5 of the draft Implementation Agreement dated 19-5-2003 relating to a JJVL Event of Default; this shall be done within 15 days from the date of this Order;

(c) to suggest a management mechanism to the Court for appropriate orders including, if necessary, for the appointment of an independent manager/receiver; this may be done within 15 days of this Order and until then the Plant shall be managed by two senior persons, one each to be nominated by SSGCL and JJVL respectively; any deadlock between them shall be resolved by a decision of the Committee;

(d) to obtain from SSGCL and JJVL such information and data as may be necessary for the Committee to fulfil its responsibilities;

(e) to suggest ways in which the supply of LPG to end consumers continues unabated and without disruption;

(f) to seek such clarifications or further orders from the Court as may be considered necessary by the Committee.

(8) The Office shall make available copies of the record to the Committee.

(9) The fee of the Committee shall be determined on the basis of the extent and nature of the work.

PLD 2014 SUPREME COURT 232 #

P L D 2014 Supreme Court 232

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Iqbal Hameedur Rahman, JJ

Civil Petition No.2052 of 2013

SARFRAZ SALEEM---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

(On appeal from judgment of Lahore High Court, Lahore dated 11-11-2013, passed in ICA No.98 of 2013).

Civil Petition No.2081 of 2013

ZAFAR ABBAS---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

(On appeal from judgment of Islamabad High Court, Islamabad dated 11-12-2013, passed in Writ Petition No.4513 of 2013).

Civil Petitions Nos.2052 and 2081 of 2013, decided on 16th January, 2014.

(a) Constitution of Pakistan---

----Arts. 212(2), 199, 4 & 10A---Service Tribunals Act (LXX of 1973), S.3---Civil service---Bar of jurisdiction under Art. 212(2) of the Constitution---Scope---Non-appointment of Chairman, Federal Service Tribunal---Effect---Constitutional petition relating to a service matter was filed before the High Court due to non-functioning of Federal Service Tribunal on account of non-appointment of its Chairman---Maintainability---Bar under Art. 212(2) of the Constitution could only come into operation when the Administrative Court or Tribunal in terms of S.3(1) of Service Tribunals Act, 1973 was "established"---Interpretation of the word "establishment" of an Administrative Court or Tribunal could not be narrowed down to mere completion of paper by way of some appropriate legislation, unless it was established in a manner that it was functional and exercising jurisdiction in accordance with law---Physical existence and functioning of an Administrative Court or Tribunal was sine qua non for attracting bar of jurisdiction under Art. 212(2) of the Constitution---Litigant having a remedy before such an Administrative Court or Tribunal, could not be left in a vacuum for an indefinite period due to non-establishment of such court or tribunal---High Court's dismissal of constitutional petition in such circumstances on basis of bar of jurisdiction under Art. 212(2) of the Constitution would be contrary to the principle "ubi jus ibi remedium" (where there is a right there is a remedy) and the spirit of Arts. 4 & 10A of the Constitution---Constitutional petition should be entertained and proceeded before the High Court in accordance with law, until establishment and functioning of the Federal Service Tribunal, as bar of Art. 212(2) of the Constitution would not apply to such proceedings---Appeal was allowed accordingly with the direction to Federal Government to expedite appointment of Chairman, Federal Service Tribunal in terms of S.3 of Service Tribunals Act, 1973 and complete such process within 30 days.

(b) Constitution of Pakistan---

----Arts. 212(2) & 199--- Service Tribunals Act (LXX of 1973), S. 3---Civil service---Constitutional petition before High Court under Art.199 of the Constitution---Maintainability---Bar of jurisdiction under Art.212(2) of the Constitution---Scope---Non-appointment of Chairman, Federal Service Tribunal---Effect---For establishment of Service Tribunal, appointment of its Chairman by the President, with prescribed qualification was a sine qua non and unless such appointment in terms of S.3(3)(a) of Service Tribunals Act, 1973 was made, there was no Tribunal in existence, so as to attract the bar of jurisdiction contained in Art.212(2) of the Constitution---Bar on jurisdiction of High Court under Art. 212(2) of the Constitution would not come into play till the Federal Service Tribunal was established in terms of S.3(3)(a) of Service Tribunals Act, 1973, and it was actually functional so as to attend the grievance of a civil servant under its jurisdiction.

----Arts. 4 & 10A---Equal protection of law---Scope---Articles 4 & 10A of the Constitution ensured that all individuals should enjoy equal protection of law and should be treated in accordance with law, which was their inalienable right---Every person for determination of his civil rights and obligations or in any criminal charge against him should be entitled to fair trial and due process.

Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292 and Contempt Proceedings against Syed Yousuf Raza Gillani PLD 2012 SC 533 rel.

Qazi Ahmed Naeem Qureshi, Advocate Supreme Court (in C.P. 2052/13), Kh. Azhar Rasheed, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record (in C.P. 2081/13) for Petitioners.

Shah Khawar, Addl. Attorney-General for the Federation.

Muhammad Naeem, Superintendent (PASB) for Respondent No.2 (in C.P. No.2052 of 2013).

Date of hearing: 16th January, 2014.

PLD 2014 SUPREME COURT 241 #

P L D 2014 Supreme Court 241

Present: Asif Saeed Khan Khosa, Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

NAZIR AHMED and another---Petitioners

Versus

THE STATE and others---Respondents

Criminal Review Petitions Nos. 8-L and 10-L of 2013 in Criminal Petition No.896-L of 2012.

(Against the judgment dated 30-1-2-13 passed by this Court in Criminal Petition No.896-L of 2012).

(a) Constitution of Pakistan---

----Art. 189---Jurisdiction of Supreme Court under provisions of Art.189 of the Constitution---Scope---Such jurisdiction was not just to decide questions of law but it also extended to enunciating principles of law which decisions and principles were binding on all other courts in the country.

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

----S. 426---Penal Code (XLV of 1860), Ss. 302(b) & 34---Constitution of Pakistan, Art. 188---Qatl-e-amd, common intention---Review of Supreme Court judgment---Suspension of sentence---Scope---Trial Court convicted accused and co-accused under Ss. 302(b) & 34, P.P.C and sentenced them to imprisonment for life---High Court suspended sentence of co-accused and released him on bail---Accused also filed an application for suspension of his sentence before the High Court on the ground that role ascribed to him was similar to that of co-accused whose sentence had already been suspended---High Court suspended sentence of accused on the grounds that in the challan case the police had found the accused innocent; that the complainant had filed his private complaint after a delay of six months; that there was previous enmity between the parties, and that the sentence of co-accused, attributed a role identical to that of accused, had already been suspended and he had been admitted to bail---Supreme Court set-aside order of High Court and cancelled bail granted to accused---Validity---None of the grounds provided by High Court for suspending sentence of accused and releasing him on bail were valid---Any declaration of innocence of accused recorded by the police in the challan case was irrelevant as trial of accused had been conducted in the complainant's private complaint and not in the challan case---Opinion of police regarding innocence of accused was irrelevant and it paled into further irrelevance in view of the judicial verdict recorded by the Trial Court in respect of the accused's guilt---Complainant had filed his private complaint when the investigating agency had disappointed and frustrated him on account of its alleged collusion with the accused party and the reasons for the delay in filing of the private complaint had been explained by the complainant before the Trial Court which reasons had been accepted by it as justified---Mere existence of enmity between the parties was hardly a valid ground for suspending the accused's sentence because the Trial Court had already adjudged the accused guilty of the alleged murder and the existing enmity between the parties had been found by it to be supporting the motive set up by the prosecution---High Court was also unjustified in holding that the case of co-accused was "identical" to that of accused because most of the firearm injuries to the deceased attributed by the complainant in the F.I.R. to co-accused were non-existent in the post-mortem, therefore, in his private complaint the complainant had changed the locale of the injuries allegedly caused by co-accused, whereas the complainant had throughout been quite consistent in his F.I.R. as well as in his private complaint regarding the firearm injuries caused by accused, which injuries stood duly reflected in the post-mortem report---High Court was not justified in suspending the sentence of accused and in admitting him to bail on the merits of the case---Cancellation of his bail by the Supreme Court could not be taken any legitimate exception to---Review petition was dismissed accordingly.

----S. 173---Police opinion regarding innocence of accused, relevance of---Opinion of the police regarding the innocence of accused was inadmissible in evidence being irrelevant.

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

----S. 426---Suspension of sentence---Grounds---Enmity between parties---Probability of false implication---Existence of enmity between the parties and a possibility of false implication of the accused on the basis of such enmity was a factor which could only be attended to and appreciated by the Appellate Court after a detailed assessment of the evidence at the time of hearing of the main appeal and certainly not at the time of deciding an application seeking suspension of sentence and release on bail during the pendency of the appeal---Illustration.

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

----Ss. 426 & 497---Suspension of sentence---Bail---Principles, similarity in---Principles for exercise of jurisdiction under Ss.497 & 426, Cr.P.C., one pertaining to grant of bail after arrest at the stage of trial and the other relating to suspension of sentence and release on bail at the stage of appeal against conviction, were essentially the same as the two provisions were analogous, they dealt with a similar relief and they were parts of the same statute.

Maqsood v. Ali Muhammad and another 1971 SCMR 657; Bashir Ahmad v. Zulfiqar and another PLD 1992 SC 463; Muhammad Nabi and 4 others v. The State 2006 SCMR 1225 and Raja Shamshad Hussain v. Gulraiz Akhtar and others PLD 2007 SC 564 ref.

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

----S. 426---Second/subsequent application for suspension of sentence, filing of---Fresh grounds---Scope---First application for suspension of sentence dismissed for non-prosecution---Second application dismissed as withdrawn after arguments by accused's counsel at some length---Third application for suspension of sentence, containing same grounds as previous two applications, allowed and sentence of accused suspended---Legality---All grounds raised by accused in his third application for suspension of his sentence were already available to him at the time of filing of his first and second applications for suspension of sentence---Said grounds had in fact been mentioned by him in his first and second applications and, thus, were not fresh grounds, and could not be taken or urged by him or on his behalf for the purposes of his third application seeking the same relief, particularly when the second application filed by him had been dismissed as having been withdrawn after his counsel had argued the matter "at some length" but had remained unable to convince the Judge---Illustration.

Farid v. Ghulam Hassan and others 1968 SCMR 924; Gul Nawaz alias Gul Mowaz and 2 others v. The State 1970 SCMR 667; Chaudhry Muhammad Khan v. Sanaullah and another PLD 1971 SC 324; Muhammad Khan v. Muhammad Aslam and 3 others 1971 SCMR 789; Saleh Muhammad v. The State and another 1983 SCMR 341; Khan Beg v. Sajawal and others PLD 1984 SC 341; The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173; Amir Masih v. The State and another 2013 SCMR 1059; Muhammad Naveed v. The State and another(Criminal Petition No.324-L of 2013; Rizwan Ali v. The State and others Criminal Petition No.658-L of 2013 and Umar Hayat v. The State and others Criminal Petition No.786-L of 2013 ref.

Muhammad Riaz v. The State 2002 SCMR 184 and Ali Hassan v. The State 2001 SCMR 1047 distinguished.

(g) Constitution of Pakistan---

----Art. 188---Criminal Procedure Code (V of 1898), S. 426---Review petition for expunction of adverse remarks against a Judge of the High Court contained in a judgment of the Supreme Court, dismissal of---Inconsistency, extraneous considerations and colourable exercise of discretion by a Judge---Scope---Second/subsequent application for suspension of sentence, filing of---Fresh grounds---Scope---Trial Court sentenced accused to imprisonment for life---Accused filed his first application for suspension of sentence before the High Court but same was dismissed for non-prosecution---Accused filed his second application for suspension of his sentence before the petitioner---Judge of the High Court, which after arguments at some length was dismissed as withdrawn---Accused filed his third application for suspension of sentence before the same petitioner-Judge containing same grounds as in the previous two applications, but it was not filed through the original counsel who had filed and represented accused in the earlier two applications but was filed through a different counsel and this time the attempt was successful and petitioner-Judge, who had dismissed the second application of the accused for the same relief, suspended sentence of accused and released him on bail---Supreme Court set aside order passed by petitioner-Judge and cancelled bail allowed to accused by observing that discretion exercised by the petitioner-Judge while passing the impugned order appeared to be somewhat colourable because after dismissal of second application for suspension of sentence bearing the same ground, the only difference in the accused's third application for the same relief was a different counsel for the accused---Petitioner-Judge filed present review petition seeking expunction of said observations---Held, petitioner-Judge had dismissed accused's second application for suspension of sentence as having been withdrawn after the counsel for accused had addressed arguments on the merits but had failed to convince the petitioner-Judge for grant of the desired relief, but through his third application filed through a different counsel for the same relief and based upon the same facts and grounds the desired relief had been extended to accused by the same petitioner-Judge---Such inconsistency of approach adopted by petitioner-Judge prompted and compelled, the Supreme Court to record observations against him---Observations made by the Supreme Court regarding the petitioner-Judge had not been made with reference to his wrong decision on the law and facts of the case but they were based squarely upon his inconsistency in the matter which inconsistency, created an impression regarding an extraneous consideration coming into play---Principles of consistency and propriety demanded that if the facts and the grounds were the same and they were valid and sufficient for granting the desired relief then petitioner-Judge ought to have allowed accused's second application and if the said relief was not due on the same facts and grounds then petitioner-Judge ought to have been consistent and he should have dismissed the third application as well---Supreme Court in such peculiar circumstances of the case could reasonably entertain an impression that the exercise of discretion in the matter by petitioner-Judge was "somewhat colourable"---Engaging the services of a different counsel by accused for his third attempt for the same relief on the same facts and grounds and being successful in such attempt was a matter which ostensibly provided fodder to an impression about an extraneous consideration coming into play and the same seemingly reflected adversely upon the petitioner-Judge's conduct---Petitioner-Judge brought on record copies of seven bail applications decided by him in the past wherein after hearing the arguments of the accused persons' counsel at some length on merits of the case, he had dismissed the bail applications as withdrawn, but allowed bail to the same accused persons through their subsequent applications for the same relief filed on the basis of the same facts and grounds within a few weeks or months of dismissal of the earlier applications--- Such conscious pattern being followed by the petitioner-Judge could not be approved and it showed that in the first round he refused the desired relief to an accused person but in the second round the same facts and grounds were found to be valid and sufficient for the same relief--- Such pattern was not understandable and question was as to what could be the factual or legal justification for adopting such a pattern--- Review petition for expunction of adverse remarks against petitioner-Judge contained in judgment of the Supreme Court was dismissed in circumstances.

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

----Ss. 497, 497(5) & 426---Bail---Cancellation of bail---Suspension of sentence and release on bail during pendency of appeal---Principles of propriety and practice regarding filing, entertaining and deciding applications for bail, cancellation of bail or suspension of sentence and release on bail during the pendency of an appeal enunciated.

Supreme Court enunciated the following principles of propriety and practice regarding filing, entertaining and deciding applications for bail, cancellation of bail or suspension of sentence and release on bail during the pendency of an appeal in criminal cases:

(i) At the bottom of every application for bail it was obligatory to attach a certificate regarding non-filing of any such application before the same court previously and, in case of a repeated or successive application, a certificate disclosing filing of any such application previously by the same accused person, any other accused person, the State or the complainant party before the same court in the same criminal case or its cross-case and such certificate must also disclose the number of the previous application, the date of its decision and the name of the Judge dealing with and deciding the same. No subsequent bail application was to be entertained unless the same was accompanied by copies of the earlier bail applications and copies of the orders passed thereon.

(ii) All repeated or successive applications for bail must be fixed for hearing before and heard and decided by the same Judge(s) who had dealt with and decided any earlier application for bail unless the Judge or one or some of the Judges dealing with and deciding the earlier application(s) was/were not available at the relevant station of posting/Principal Seat/Bench.

(iii) Dismissal of an application for bail after attending to the merits of the case amounted to rejection of all the grounds available or in existence till the time of such dismissal whether such grounds were actually taken or urged or not and whether such grounds were expressly dealt with in the order of dismissal or not.

(iv) In case of dismissal of an earlier application for bail on the merits of the case a subsequent application for the same relief could be filed and entertained only if it was based upon a fresh ground, i.e. a ground which was not available or in existence at the time of decision of the earlier application.

(v) Withdrawal simpliciter of an earlier application for bail before addressing or hearing of any argument on the merits of the case does not preclude filing of a subsequent application for the same relief before the same court and its decision by such court on the merits of the case. In all cases of withdrawal of such an application the court must faithfully record in its order as to whether withdrawal of the application had been requested and allowed after addressing and hearing of some or all the arguments on the merits of the case or withdrawal of the application had been requested and allowed before addressing and hearing of any argument on the merits of the case.

(vi) In a case of withdrawal of an earlier application for bail after addressing and hearing of some or all the arguments on the merits of the case no subsequent application for the same relief could be filed before or entertained by the same court unless such subsequent application was based upon a fresh ground, i.e. a ground which was not available or in existence at the time of disposition of the earlier application.

Supreme Court directed that copy of present judgment should be sent to the Registrars of all the High Courts in the country who were directed to ensure that every Judge and Magistrate dealing with criminal cases within the jurisdiction of each High Court received a copy of present judgment and complied with the principles of practice and propriety enunciated or recapitulated in the present judgment. [p.281] N

Farid v. Ghulam Hassan and others 1968 SCMR 924; Gul Nawaz alias Gul Mowaz and 2 others v. The State 1970 SCMR 667; Chaudhry Muhammad Khan v. Sanaullah and another PLD 1971 SC 324; Muhammad Khan v. Muhammad Aslam and 3 others 1971 SCMR 789; Saleh Muhammad v. The State and another 1983 SCMR 341; Khan Beg v. Sajawal and others PLD 1984 SC 341; The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173; PLD 2002 SC 1; Ali Sheharyar v. The State 2008 SCMR 1448; Shahzad Hasan Khan v. Ishatiaq Hasan Khan another AIR 1987 SC 1613; State of Maharashtra v. Captain Buddhikota Subha Rao 1990 MLD 520; Amir Masih v. The State and another 2013 SCMR 1059; Muhammad Naveed v. The State another Criminal Petition No.324-L of 2013; Rizwan Ali v. The State and others Criminal Petition No.658-L of 2013 and Umar Hayat v. The State and others Criminal Petition No.786-L of 2013 ref.

Muhammad Riaz v. The State 2002 SCMR 184 and Ali Hassan v. The State 2001 SCMR 1047 distinguised.

Muhammad Ahsan Bhoom, Advocate Supreme Court (in Crl.R.P. No.8-L of 2013).

Khawaja Haris Ahmed, Senior Advocate Supreme Court (in Cr.R.P.No.10-L of 2-13).

Ahmad Raza Gillani, Addl. Prosecutor-General, Punjab for the State (in both cases).

Ch. Muammad Riaz Ahmad, Advocate Supreme Court for the Complainant (in both cases).

Date of hearing: 15th January, 2014.

PLD 2014 SUPREME COURT 283 #

P L D 2014 Supreme Court 283

Present: Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

NATIONAL BANK OF PAKISTAN and 117 others---Appellants

Versus

SAF TEXTILE MILLS LTD. and another---Respondents

Civil Appeals Nos.146, 204 to 254, 289 to 303, 505 to 534, 1147 and 1148 of 2009, 690 of 2010 and 391-L to 408-L of 2009, decided on 10th December, 2013.

(On appeal from the judgment/orders dated 23-12-2008, 15-1-2009, 19-1-2009 and 26-5-2010, passed by the Lahore High Court, Lahore in Writ Petitions Nos. 5076/2007, 16617 and 2324/2008, 2542, 3039, 3110, 3113, 3343, 3347, 3349, 4487 and 7743/2007, 112, 267, 309, 311, 499, 2230, 5932, 6124, 10048, 148, 186, 535, 536, 1500, 16904, 17134 and 4874/2008, 2668, 2706, 3319, 3469 and 7744/2007, 140, 149, 150, 184, 199, 310 and 14423/2008, 7772, 3234, and 7773/2007, 2185, 5123 and 11465/2008, 4815, 7742 and 3105/2007, 822/2008, 18196/2002, 419/2007, 1483/2008, 1961/2007, 2248/2008, 3244 and 9649/2007, 12759/2008, 4111/2007, 2187 & 1765/2008, 303, 8831, 11521 and 3106/2007, 271/2004, 6126, 14729 and 12264/2008, 8868 and 18196/2002, 988, 1644, 2545, 3751, 6744, 8216, 10258 and 10453/2007, 6766, 6810, 10937, 16370, 17148 and 18160, 2547 and 3418/2007, 8855/2008, 11577/2007, 12047, 14506, 17958, 18568, 18641, 18745, 18746, 12864 and 822/2008 and ICA No.795/2009, and Writ Petitions Nos. 3222, 3221 and 5521/2007, 13644, 13645, 13648, 14876, 14877, 16158, 17710, 831, 1275, 5186 and 10344/2008, 11750 and 12234/2007, 13111/2008 and 7224/2007, respectively).

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

----O. XXI, Rr. 66 & 90---Execution of decree---Sale of debtor's/mortgagee's immovable property by auction---Procedure---Right of debtor/mortgagee---Free, fair and transparent sale---"Best possible price"---Even if a liability had been determined by a decree of the court, the mortgagee/debtor was not deluded of all his civil rights including with regard to the modes and methods of recovery through the sale of mortgaged property---Right of such debtor to ensure that the mortgaged property was sold in a free, fair and transparent manner so as to fetch the best possible price was a well-recognized principle of law.

Mir Wali Khan v. Agricultural Development Bank of Pakistan, Muzaffargarh and another PLD 2003 SC 500 ref.

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

----S. 15---Constitution of Pakistan, Arts.3, 10A & 24---Civil Procedure Code (V of 1908), O.XXI, Rr.66, 72(1) & 90---Vires of S.15 of the Financial Institutions (Recovery of Finances Ordinance, 2001---Sale of mortgaged property by Financial Institution under S.15 of Financial Institutions (Recovery of Finances) Ordinance, 2001 without intervention of the court---Constitutionality---Mortgagor having no remedy to object to or to ensure a fair and transparent sale by the Financial Institution---Sale by auction without a "reserve price"---Effect---By virtue of S.15(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, a Financial Institution had been authorized to sell a particular mortgaged property without intervention of the court---After the sale had taken place (real or fictitious), a sale deed in respect of the property was to be executed by a Financial Institution, which was authorized in such behalf by virtue of S.15(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Upon the registration of sale deed, all rights, title and interest of the mortgagor/debtor in the mortgaged property stood extinguished and such property vested in the purchaser free from all encumbrances, as provided by S.15(8) of Financial Institutions (Recovery of Finances) Ordinance, 2001, where after the Financial Institution, which had sold the mortgaged property, was required to submit a proper account to the Banking Court in terms of S.15(10) of the same Ordinance---Financial Institutions (Recovery of Finances) Ordinance, 2001 contained no provision which permitted a mortgagor/debtor to object to the conduct of sale in such manner after fall of the hammer---Mortgagor/debtor was in fact deprived of the right to even agitate that alleged proceedings for sale were sham and fictitious or carried out malafidely behind closed doors---Although S.15(11) of Financial Institutions (Recovery of Finances) Ordinance, 2001 did refer to the resolution of disputes relating to sale of mortgaged property by the Banking Court, but even an objection raised under the said section was of no practical legal significance, as the property sold already vested in the purchaser free from all encumbrances by virtue of by S.15(8) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Real intent and purpose of various provisions of the said Ordinance was to deprive the mortgagor/debtor of his right to object to the mode, the conduct and method of sale by barring all remedies thereagainst--- Such extinguishment of rights occurred without any process let alone after due process and fair trial, as envisaged by Art.10A of the Constitution---Right in property in terms of Art.24 of the Constitution also stood violated---Where the mortgagor/debtor was aggrieved of the terms and conditions settled by the Financial Institution for sale of mortgaged property, he could invoke jurisdiction of the Banking Court or the High Court, but by virtue of S.15(12) of Financial Institutions (Recovery of Finances) Ordinance, 2001, said courts were debarred from granting any injunction restraining the sale of mortgaged property, except upon fulfilment of certain conditions mentioned in Ss.15(12)(a), (b) & (c) of the said Ordinance---Said conditions did not envisage grounds of fair and well recognized terms and the mode of sale of mortgaged property recognized by law to obtain an injunction against the sale before it took place---Legally an objection could be raised against sale of mortgaged property, but the sale would go through, whereafter the same would achieve finality by virtue of Ss.15(7) & (8) of Financial Institutions (Recovery of Finances) Ordinance, 2001, and such objections would automatically become infructuous as no power to set aside the sale had been conferred upon the Banking Court or High Court--- Again the mortgagor/debtor was deprived of his right to object that the auction in question was not concluded in accordance with the well-recognized terms and conditions to ensure a fair and transparent sale so as to fetch the highest possible price---Deprivation of the rights of the mortgagor/debtor qua terms and conditions of sale was without any fair trial or due process as envisaged by Art.10A of the Constitution---Although procedure for conducting sale of mortgaged property was provided under S.15(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, but the principle of fixation of "reserve price" was not provided therein---Necessity to fix a "reserve price" was significant, as Financial Institution itself had the right to purchase mortgaged property put by it to public auction at the highest bid---No permission, in such behalf, was required from any court, which was contrary to the normal course provided under [O.XXI, R.72(1)] C.P.C; thus in fact Financial Institution could become the seller, auctioneer, buyer and the beneficiary, taking full advantage of the misfortune of the mortgagor/debtor thereby facilitating predatory and exploitative behaviour, which was against Art.3 of the Constitution--- Supreme Court declared that material provisions of S.15 of Financial Institutions (Recovery of Finances) Ordinance, 2001 were ultra vires the Constitution and since remaining provisions of the same section were incapable of being severed and their presence in the statute would be ineffective and create further mischief, therefore, entire S.15 of the said Ordinance was held to be ultra vires the Constitution--- Appeal was dismissed accordingly.

----Denial of a remedy was in fact destruction of a right.

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

----O. XXI, R. 66---Execution of decree---Auction of judgment debtor's property by court---"Reserve price"---Scope---Where sale was conducted by a court, a "reserve price" was essential and absence thereof might be fatal.

Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi and others 2013 SCMR 1419 ref.

(e) Vires of statute---

----Principle---Doctrine of severance---Scope---Where material provisions of a section contained in a statute were ultra vires the Constitution, and remaining provisions of the same section were incapable of being severed and their presence in the statute would be ineffective and cause further mischief, then entire section could be held to be ultra vires the Constitution---Illustration.

Baz Muhammad Kakar and others v Federation of Pakistan through Ministry of Law and Justice, Islamabad and others PLD 2012 SC 870 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court, Naseer-ud-Din Nayyer, Advocate Supreme Court assisted by Barrister Sajeel Shehryar, Hassan Murtaza Mann, Syed Riaz Hussain and Syed Faraz Raza, Advocates for Appellants (in C.As. 146, 204-254, 289-302, 1147 of 2009).

Salaman Akram Raja, Advocate Supreme Court assisted by Malik Ghulam Sabir, Advocate and Syed Zulfiqar Shah, V.P. UBL for Appellants (in C.As. 505-534 and 391-L to 408-L/2009).

Barrister Imran Aziz Khan, Advocate Supreme Court for Appellants (in C.A. 690 of 2010).

Ejaz Baig Mirza, Advocate Supreme Court for Appellants (in C.A. 303 of 2009).

Zafar Mehmood Mughal, DAG with Khattak, Advocate-on-Record for Appellants (in C.A. 254 of 2009 and also for the Respondents/Federation in remaining cases).

Nazir Ahmed Bhutta, Advocate Supreme Court for Respondents (in C.As. 224, 238 and 239 of 2009).

Muhammad Rashid Qamar, Advocate Supreme Court for Respondents (in C.A.296 of 2009).

Sajid Mehmood Sheikh, Advocate Supreme Court for Respondents (in C.A. No.690 of 2010).

Nemo for the Remaining (in other cases).

Date of hearing: 23rd, 25th April, 2013.

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P L D 2014 Supreme Court 305

Present: Iftikhar Muhammad Chaudhry, C.J., Jawwad S. Khawaja and Amir Hani Muslim, JJ

HUMAN RIGHTS CASE NO.29388-K OF 2013: In the matter of

Human Rights Case No.29388-K of 2013, decided on 10th December, 2013.

(Application by Muhabat Shah for recovery of Yaseen Shah, missing persons.)

(a) Actions (in Aid of Civil Power) Regulation, 2011---

----Regln. 9---Constitution of Pakistan, Arts. 9, 10 & 184(3)---United Nations General Assembly Declaration on the Protection of All Persons from Enforced Disappearances, 1992, Art. 1---International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED), 2006, Art.5---Human rights case---Exercise of jurisdiction by the Supreme Court under Art. 184(3) of the Constitution in regard to persons confined at internment centers who were allegedly taken away by Army authorities---Enforced disappearance of persons---Crime against humanity---Scope---Illegal detention of persons---Letter issued by superintendent of concerned internment center prima facie showed that 35 persons were taken away from the internment center by Army authorities, therefore such persons were in the custody of Army---Army authorities had no authority to retain custody of such persons---Missing persons in question were confined in internment center under Actions (in Aid of Civil Power) Regulation, 2011, which was applicable to Provincially Administered Tribal Areas---Under the said Regulation an internee/detainee came under the control of civil administration, but the regulation was silent as to how Army authorities were authorized to remove internees without seeking permission of competent authority---Except Actions (in Aid of Civil Power) Regulation, 2011, applicable to Provincially and Federally Administered Tribal Areas, there was no law or authority available to any of the agencies including Inter-Services Intelligence (ISI), Military Intelligence (MI), Intelligence Bureau (IB), Frontier Constabulary (FC), Rangers or police to detain persons in question unauthorizedly---No law enforcing agency could forcibly detain a person without showing his whereabouts to his relatives for a long period, as had happened in the present case---Article 10 of the Constitution provided direct protection to people from enforced disappearance---Enforced disappearance of persons was considered to be a crime against humanity all over the world in view of Art. 1 of United Nations General Assembly Declaration on the Protection of All Persons from Enforced Disappearances, 1992, and Art. 5 of International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED), 2006---Supreme Court declared that missing persons in question had been removed by Army authorities from internment centers in Provincially Administered Tribal Area, and whereabouts of such persons would only be known to Army authorities; that Army had no authority to detain missing persons in question illegally, and that there must be some legislation in the country to control unauthorized detention of persons--- Supreme Court directed that Chief Executive of Federal Government and concerned Provincial Chief Executive and Governor should ensure recovery of missing persons within seven days, and persons responsible for their disappearance should be dealt with strictly in accordance with law; that the Federal Government through the Chief Executive must ensure that in future no enforced disappearances took place--- Human rights case was disposed of accordingly.

(b) Constitution of Pakistan---

----Arts. 4, 10, 10A & 184(3)---Territorial jurisdiction of Supreme Court in cases relating to enforced disappearance of persons---Scope---Such cases would involve enforcement of fundamental rights---Notwithstanding whether the enforced disappearance of any person was in an area where jurisdiction of Supreme Court existed, enforcement of Arts.4, 10 & 10A of the Constitution could not be denied to anyone, therefore the Supreme Court was empowered to assume jurisdiction in (any) such area.

Al-Jehad Trust v. Federation of Pakistan 1999 SCMR 1379 ref.

----Art. 10---International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED), 2006, Preamble---Enforced disappearance of persons---Crime against humanity---Although Pakistan had not ratified ICCPED, 2006, but the Supreme Court could apply the said Convention in order to achieve the ends of justice---Enforced disappearance of persons was a crime against humanity and clearly violative of Art. 10 of the Constitution, which provided direct protection from such disappearances.

Forced Disappearance' case dated 1st June, 2007 ref.

Applicant (In person).

On Court's Notice:

Muneer A. Malik, Attorney General for Pakistan, Tariq Mehmood Khokhar, Addl. AGP, Khawaja Muhammad Asif, Defence Minister (Not present)., Maj. Gen. (Retd.) Arif Nazir, Acting Secretary Defence and Ataullah, Superintendent Internment Centre, Malakand.

Dates of hearing: 9th and 10th December, 2013.

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P L D 2014 Supreme Court 322

Present: Iftikhar Muhammad Chaudhary, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmed, JJ

HAJI MUHAMMAD alias JHOORA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.632 of 2009, decided on 13th August, 2013.

(On appeal from the judgment dated 27-1-2009 in Crl.A.No.112 of 2002, Crl.A. No.262 of 2002, M.R.No.87 of 2002 passed by the Lahore High Court, Multan Bench, Multan.)

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Expectancy of life, principle of---Conversion of death sentence into imprisonment for life---Scope---Accused was convicted by Trial Court and sentence to death which was confirmed by High Court---Accused sought conversion of death sentence into imprisonment for life on the principle that he had already served out twelve years in prison---Validity---Accused caused death of an innocent person in a reckless manner while firing at vital parts of his body leaving no chance for his survival, whose fault was only that he had contracted marriage with ex-wife of accused---After having taken away life of husband of his ex-wife, accused also abducted her---Accused committed heinous offence after making preparation and there were no mitigating circumstances for reduction of his sentence from death to imprisonment for life---Supreme Court declined to convert sentence of death awarded to accused into imprisonment for life---Appeal was dismissed.

Dilawar Hussain v. The State (Criminal Review Petition No.72 of 2007) and Hassan and others v. The State Criminal Appeals Nos. 13, 14, 15 and 16 of 2004 and 53 of 2011 distinguished.

Javed Aziz Sindhu, Advocate Supreme Court for Appellant.

Asjad Javed Ghurral, Addl. P.G. for the State.

Date of hearing: 11th June, 2013.

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P L D 2014 Supreme Court 331

Present: Nasir ul Mulk Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

ABRAR AHMED and another---Appellants

Versus

IRSHAD AHMED---Respondent

Civil Appeal No.2393 of 2006, decided on 18th December, 2013.

(Against the judgment dated 20-10-20905 of the High Court of Sindh, Circuit Court Hyderabad passed in R.A.No.58 of 2005.)

(a) Islamic law---

----Gift---Pre-requisites---"Possession"---Donor giving constructive possession of entire property to donee (one of his sons) as opposed to physical possession---Scope---Licensees (other sons of donor) in possession of gifted property challenging validity of gift---Locus standi of such licensees---Scope---Donor-father gifted suit property to one of his sons, i.e. donee and for such purpose executed a declaration of gift followed by a registered declaration of gift---Other sons of donor (i.e. appellants) were also residing in part of gifted property and challenged the gift as collusive and based on mala fide---Donee-son instituted suit for recovery of possession of entire gifted property which was dismissed by Trial Court on the ground that gift was not valid as physical possession of entire gifted property was not delivered to donee-son at the time of gift---Appellant Court set-aside verdict of Trial Court and decreed suit of donee-son---Validity---Written statements filed by appellants i.e. other sons of donor before Trial Court showed that they never challenged validity of gift on the ground of lack of delivery of possession of the property to the donee, thus, they were precluded under law from assailing validity of gift on such ground---Donor vide two declarations of gift in unequivocal terms admitted the gift, which was also affirmed by him while appearing as a witness in a suit filed by appellants against him---Appellants' possession of gifted property during life of donor at best was in the nature of licnesees---Evidence on record showed that donor had cancelled license of appellants, who were living in part of gifted property---Such cancellation of licence was with the legal effect that donor would be considered to have attained possession, which could validly be taken to have been constructively delivered to donee-son---Appellants (Licensees) could not claim any right of any sort or nature in the property during life time of their father i.e., donor, who admittedly was the owner---Appellants also had no right or locus standi to challenged the gift as being invalid on the plea that they might have inherited the property as legal heirs in the eventuality of death of donor, i.e. their father---Appellants at the time of gift were strangers to the gift, either being the licensees of donor or being his prospective legal heirs---Donor out of his free will made the gift in question, affirmed and owned it throughout his life as having been made, and never questioned the same till his last breath---Appellants (licencees) would lose the locus standi to challenge validity of gift on this score too---Appeal was dismissed accordingly.

Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938 distinguished.

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

----O. VI, R.7---Pleadings, departure from---No one could be allowed to set out a new case beyond the scope of his pleadings.

----Gift, validity of---"Licensee" in possession of gifted property---Licensee could not question the validity of a gift on the basis that possession was with him, especially when at the time of making gift he had no enforceable right or interest in the property---Illustration.

(d) Islamic law---

----Spes successionis, recognition of---Presumptive heir challenging a property transaction effected by his predecessor during his life---Legality---Islamic law did not recognize spes successionis, i.e. expectation or hope of succeeding to the property of another by survival---Till death of a person occurred, a presumptive heir had no right at all in the property of his ancestor, and thus could not challenge the validity of any transaction effected by such ancestor/person from whom he might or ought to inherit.

Pervaiz Rauf, Advocate Supreme Court for Appellants.

Respondents: Ex-parte.

Date of hearing: 18th December, 2013.

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P L D 2014 Supreme Court 335

Present: Mian Saqib Nisar and Iqbal Hameedur Rahman, JJ

Mst. SHAZIA BEGUM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ISLAMABAD and others---Respondents

Civil Petition No.922 of 2013, decided on 19th December, 2013.

(On appeal from the judgment of the Islamabad High Court, Islamabad dated 27-2-2013 passed in W.P.No.3031 of 2012.)

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

----S. 5, Sched.---Constitution of Pakistan, Art. 185(3)---Recovery of dowry articles, dower and maintenance allowance---Wife filed suit before Family Court for dissolution of marriage on basis of cruelty; for recovery of dowry articles; for recovery of gold ornaments, which were allegedly given to her as dower but were snatched by the husband subsequently; for ownership of a house which was allegedly given in lieu of dower, and for maintenance amount of Rs.6000/month---Family Court decreed the suit of wife as prayed for, except that maintenance allowance was reduced to Rs.3000/month till iddat period---Appellate Court and then High Court denied relief of recovery of dowry articles to the wife and only maintained verdict of Family Court qua dissolution of marriage---Validity---Examination of Nikahnama showed that house or any part thereof was never gifted to the wife or given to her in lieu of dower, rather it was clearly and unequivocally mentioned therein that she had been allowed to reside in the house---Regarding claim of gold ornaments, evidence on record did not spell out that ornaments received by wife at time of Nikah were forcibly snatched from her by the husband at any subsequent point of time---With respect to dowry articles, husband himself filed a list of dowry articles with the Family Court conceding such articles as part of wife's dowry---Regarding maintenance claim of wife, judgments of Appellate Court and High Court did not assign any valid reasons while discussing the evidence in such respect, therefore said judgments could not be sustained in law---Supreme Court directed that wife was entitled to lump sum amount of Rs.75,000 as maintenance as against her claim of Rs.102,000, which amount shall be paid by the husband within a period of one month; that suit of wife with regard to dowry articles shall stand decreed as per list provided by husband before Family Court, and in case husband was not in a position to return any article/item from the said list, he shall be liable to pay value/price of such article mentioned in the list of dowry articles brought on record by the wife---Appeal was allowed accordingly.

(b) Administration of justice---

----Judgment of court below---Legality---Judgment of court below not assigning valid reasons while discussing evidence on record in respect of a particular issue---Effect---Such judgment could not be sustained in law---Illustration.

Syed Asghar Hussain Subzwari, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents Nos. 1 and 2.

Ghulam Murtaza Shah, Advocate Supreme Court for Respondent No.3.

Date of hearing: 18th December, 2013.

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P L D 2014 Supreme Court 338

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Gulzar Ahmed, JJ

SAROSH HAIDER---Appellant

Versus

MUHAMMAD JAVED CHUNDRIGAR and others---Respondents

Civil Appeal No.187-K of 2010, decided on 20th December, 2013.

(a) Civil service---

----Promotion---Inter se seniority---Considerable delay in challenging seniority list---Acquiescence---Effect---Vested right, creation of---Estoppel---Locus poenitentiae, principle of---Appellant and respondent (both civil servants) were appointed on the same date i.e. 16-6-1986---Appellant was senior in age to the respondent and also submitted his joining report on 30-6-1986, whereas respondent submitted his joining report on 1-7-1986---Appellant was shown as senior to respondent in different seniority lists and a notification issued between the years 1991 and 2001---Respondent never challenged such lists and notification and was satisfied being junior to the appellant---Seniority of appellant was challenged for the first time on 30-3-2002 by filing an appeal before the competent authority, which was rejected as being time barred---Responded filed another appeal before the Chief Secretary on 20-11-2002, which was allowed and after an intervening period of almost 14 years seniority of appellant was all of a sudden reversed in favour of respondent--- Appellant enjoyed position of seniority above that of respondent for such a long period of time, which created a vested right in the appellant of being senior to respondent---Such right of appellant could not have been upset as principle of locus poenitentiae would come into application and competent authority would have no power to recede, more so, when appellant was not provided any right of hearing whatsoever by the Chief Secretary, which was violation of the mandatory provision of audi alteram partem---Respondent had more than one occasion to agitate about his seniority but he himself chose not to challenge the same and allowed it to attain finality---Respondent could have challenged the seniority lists and notification within the limitation period prescribed by law to have them corrected or set aside, but he chose not do so---Respondent himself acquiesced and abandoned his right to claim seniority over that of appellant through his own act and conduct, thus principle of estoppel would debar respondent from asserting right of seniority---Order passed by Chief Secretary was not in accordance with law, thus not sustainable---Appeal was allowed accordingly.

Abdul Ghani v. Mst. Shaheen and others 2007 SCMR 834 distinguished.

Wazir Khan v. Government of N.-W.F.P. through Secretary Irrigation, Peshawar and 4 others 2002 SCMR 889 and Faris Rahman Khan v. Federation of Pakistan through Secretary, Establishment Division Islamabad and others 1995 SCMR 579 ref.

(b) Civil service---

----Competent authority passing a voidable order---Setting aside of such order---Limitation---Where competent authority did any act or passed any order, which was adverse to any person, who had full knowledge of the same, then such order would remain in the field and operate fully until it was challenged through proceedings within the prescribed limitation period---Such an order would not be void ab initio but merely a voidable order, which could be corrected if proceedings against it were brought within prescribed period of limitation.

Chairman District Screening Committee, Lahore and another v. Sharif Ahmed Hashmi PLD 1976 SC 258 ref.

M. M. Aqil Awan, Senior Advocate Supreme Court for Appellant.

Noor Muhammad Memon, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondent No.1.

Adnan Karim Addl. A.G. Sindh for Respondents Nos. 2 and 3.

Date of hearing: 20th December, 2013.

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P L D 2014 Supreme Court 347

Present: Anwar Zaheer Jamali and Sarmad Jalal Osmany, JJ

MUHAMMAD NISAR---Appellant

Versus

IZHAR AHMED SHAIKH and others---Respondents

Civil Appeal No.62-K of 2013, decided on 23rd October, 2013.

(Against the Judgment dated 20-3-2013 passed by High Court of Sindh, Sukkur Bench in C.P. No.S-2406 of 2010.)

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

----S. 2(j)---Devolution of tenancy onto legal heirs of tenant---Scope---Under S.2(j) of Sindh Rented Premises Ordinance, 1979 each legal heir of the tenant after his demise became a tenant.

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

----S. 2(j)---Devolution of tenancy onto legal heirs of tenant---Scope---Landlord filed rent application against son of deceased-tenant/appellant on the ground of default of payment of rent---Son of deceased tenant claimed that he had purchased the rented premises from the landlord through an agreement to sell after the death of his tenant-father; that after demise of his tenant-father, he was not in possession of the premises but his family members were---Validity---Such contention could not displace the law under S.2(j) of Sindh Rented Premises Ordinance, 1979, which stated that each legal heir of the tenant after his demise became a tenant, therefore relationship of landlord and tenant did exist between the parties---When son of deceased-tenant put up a plea in the rent application that he had purchased the property then he had to file a suit for his remedies and vacate the premises and thereafter if he succeeded, he would be entitled to take possession of the premises again---Appeal was dismissed accordingly.

----S. 15---Application for eviction of tenant---Tenant taking the plea that he had purchased the rented property from the landlord through an agreement to sell---Procedure to be followed by the tenant to take possession of such property---When the tenant put up a plea in an ejectment application that he had purchased the property then he had to file a suit for his remedies and vacate the premises and thereafter if he succeeded, he would be entitled to take possession of the premises again.

Shameem Akhtar v. Muhammad Rashid PLD 1989 SC 575; Mst.Azeeman Nisar Begum v. Mst. Rabia Bibi PLD 1991 SC 242; Muhammad Rafiq v. Messrs Habib Bank Ltd. 1994 SCMR 1012 and Mst. Bore Bibi v. Abdul Qadir 1996 SCMR 877 ref.

Ch. A. Rasheed, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Appellant.

Khaleeq Ahmed, Advocate Supreme Court for Respondent No.1.

Respondents Nos. 2 and 3: Pro forma.

Date of hearing: 23rd October, 2013.

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P L D 2014 Supreme Court 350

Present: Jawwad S. Khawaja, Khilji Arif Hussain and Gulzar Ahmed, JJ

APPLICATION BY ABDUL HAKEEM KHOSO, ADVOCATE---In the matter of

Constitutional Petitions Nos. 46, 278-Q and Human Rights Case No.36052-S of 2013, decided on 27th December, 2013.

(a) Constitution of Pakistan---

----Art. 172(2) & (3)---Natural resources, ownership of---Mineral oil and natural gas---People of Pakistan were the ultimate owners of natural resources including mineral oil and natural gas through their Governments and State controlled entities.

(b) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution regarding contractual and legal obligations of oil Exploration and Production (E&P) companies operating in Pakistan towards the environment and welfare and uplift of areas of their operation---Enforcement of fundamental rights of citizens---Suo motu notice by the Supreme Court under Art. 184(3) of the Constitution, significance of---Chief Justice of Pakistan took note of a speech delivered by an office bearer of a District Bar Association wherein certain violations of law and the terms and conditions of [petroleum concession] agreements by oil Exploration and Production (E&P) companies operating in the concerned district were highlighted---Copy of the speech was marked by the Chief Justice to the Human Rights Cell (HRC) of the Supreme Court---Report/comments received from concerned personnel and functionaries were found unsatisfactory and it was, therefore, directed that the matter be put up in the Supreme Court as a petition under Art.184(3) of the Constitution---Supreme Court observed that significance of Art.184(3) of the Constitution in enforcing the fundamental rights of the people all over the country without the necessity of having a petitioner from each district was evident from the present case; that in the ordinary course it would have been extremely difficult logistically and financially for a resident of concerned district to file and pursue legal recourse in the civil courts or in the constitutional courts, and even if such recourse had been taken it would have remained confined to issues relating to the concerned district; that it was only on account of Art. 184(3) of the Constitution and the willingness and ability of the (Supreme) Court to take notice suo motu that the entire country spread over more than 105 Districts had been brought within the compass of one initiative taken by the concerned District Bar Association and then proactively dealt with by the Human Rights Cell of the (Supreme) Court and then in court hearings; that it should be obvious from the facts of the present case that conventional methods of seeking legal redress could be grossly inadequate for people without sufficient means, particularly when they might be pitted against more resourceful individuals and corporate entities; that present case summedup the rationale behind Art.184(3) of the Constitution, and the wisdom and foresight of the framers who sought an egalitarian polity by equalising the ordinary citizen with those of greater resources and means, in matters of "public importance with reference to the enforcement of the Fundamental Rights" guaranteed by the Constitution.

----Arts. 9, 14 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution regarding contractual and legal obligations of oil Exploration and Production (E&P) companies operating in Pakistan towards the environment and welfare and uplift of areas of their operation---Maintainability---Plea of applicants that oil exploring companies were acting in violation of law and the terms and conditions of the [petroleum concession] agreements which they executed with the Government whereby they were bound to control environmental pollution, provide jobs and gas facility to the local people and spend specified amount[s] on the local infrastructure such as roads, schools, hospitals and the betterment of local people---Such plea of applicants was not without substance and Federal, Provincial and Local Governments had failed to ensure performance of the obligations of Exploration and Production (E&P) companies, which were actively exploring nearly one-third of the land area of the country---Vast numbers of people were affected by the issues arising in the present case, therefore it raised matters of public importance relating directly to their fundamental rights; especially those guaranteed in Arts.9 & 14 of the Constitution---Constitutional petition was held to be maintainable accordingly.

(d) Constitution of Pakistan---

----Arts. 9, 14 & 184(3)---Petroleum Exploration and Production Policy, 2012, pp. 4.1(6), 4.1.2(3), 5.9, 5.10, 6.3 & Annex.3---Constitutional petition under Art. 184(3) of the Constitution regarding contractual and legal obligations of oil Exploration and Production (E&P) companies operating in Pakistan towards the environment and welfare and uplift of areas of their operation---Financial and social welfare obligations of oil Exploration and Production (E&P) companies---Scope---Utilization of social welfare funds provided by Exploration and Production (E&P) companies in lieu of exploration rights and privileges---Procedure---Exploration and Production (E&P) companies were engaged in exploration and mining of oil and gas in various districts covering in excess of 30% of the land area of Pakistan---Activities of such companies inevitably had a disruptive effect on the population residing in the areas where they operated---Welfare of the people residing in areas where E&P Companies operated, should not be adversely impacted and it was also necessary the inhabitants benefited from the economic activity resulting from such operations and from the natural/mineral resources extracted from their local areas---Exploration and Production (E&P) companies operating in Pakistan were contractually obliged to make specified payments in lieu of exploration rights and privileges, and such payments over the years amounted to millions of US dollars---Such payments/sums were vested beneficially in the people of the country, and those responsible for ensuring fulfilment of said payment obligations including the Director General Petroleum Concessions (DG PC), the Provincial and Local Governments were fiduciaries of the people in such respect and it was their duty to recover the agreed social welfare obligations and to ensure spending of the same in the most efficient and optimal manner for the benefit of the people---Certain processes had been outlined in the relevant Social Welfare Guidelines issued by the Director General Petroleum Concessions (DG PC) for preparation of social welfare schemes, however such processes were either non-existent on ground or were undertaken without due care and diligence---Said Social Welfare Guidelines were more in the nature of a suggested arrangement and did not create any institution or body within which the concerned functionaries were formally supposed to perform their responsibilities---Nor did said Social Welfare Guidelines set out procedures for ensuring financial and implementation discipline---Relevant guidelines for utilization of marine research fee and those for utilization of production bonuses were in certain respects inadequate for the purpose of ensuring optimum utilization of available funds for the maximum public good---District was the basic administrative unit used for determining the entitlement to and the disbursement of social welfare obligations, but there seemed to be a proliferation of committees (for each district) with varying memberships under different guidelines---Local inhabitants of relevant districts had been allowed no direct participation in proposing new schemes or to object to ongoing or completed schemes, and in such circumstances it seemed all the more unreasonable that completion certificates of welfare spending should be issued without inviting their comments---Public participation was necessary to receive and address the views of intended beneficiaries of each ongoing and completed welfare scheme---Funds generated on account of social welfare obligations of E&P Companies had either remained unutilized or had been under-utilized or the use of such funds had not been adequately monitored to ensure evaluation of spending---Presently there was no central database or map showing which exploration blocks fell within which revenue district and tehsil/taluka and to what extent---Efficient and smooth allocation and utilization of social welfare funds required that amounts due to different districts should be pre-determined and independently verified and they should be centrally available---Supreme Court directed that Director General Petroleum Concessions (DG PC) and the relevant Provincial Government should ensure diligent collection and monitoring of social welfare obligations of E&P Companies, and ensure optimum utilization of social welfare funds, production bonuses and other sums generated on account of the contractual obligations of E&P Companies; that such exercise should be done in an open and transparent manner by ensuring that all relevant information relating to such funds was available to the local population; that the Provincial and Local Governments should review the existing policy guidelines and, where necessary, make suitable amendments to ensure that as far as might be, one Committee be constituted for each district or tehsil/taluka to ensure coordinated and effective use of the funds; that the Local Governments established in each tehsil/taluka should be given due representation or a voice on such Committee; that once every sixth months, the District Coordination Officer should effect the publication of a notice online and in the most widely-read newspaper in the district, announcing a public hearing to solicit any comments or reservations that the inhabitants of the district in general, and the purported direct beneficiaries of the scheme in particular, might have with regard to the schemes completed, initiated, or ongoing during the preceding six months; that a list of all such schemes should be included in the public notice along with their location, budget and current status; that such notices for public hearings should be sent to all district level trade organisations, chambers of commerce, provincial ombudsmen, Bar Associations and other prominent organisations and social welfare organisations; that a report in respect of completed schemes should be sent to the Federal and Provincial Ombudsmen and to the Human Rights Cell of the Supreme Court; that the DG PC should prepare a comprehensive account of the amounts due to each district from the various E&P Companies operating therein, and the estimated figures for royalties due to each district; that DG PC should solicit half-yearly reports from all licence/lease holders in respect of their social welfare obligations towards the local community, including among other things, the locations, budgets and status of schemes completed, ongoing, or initiated during those six months; that the DG PC should use his enforcement powers under the Petroleum Concession Agreements actively and diligently to seek compliance with the terms of such agreements; that the Ministry of Petroleum and Natural Resources should, ensure implementation of the Prime Minister's directive of 15-9-2003 and provide gas to "all the surrounding localities/villages falling within the radius of 5km of all Gas Fields, on priority basis" as directed, in accordance with law.

Mian Abdul Rauf, Advocate Supreme Court (Not present) for the Petitioners.

Anwar Mehmood Nizamani, Advocate (Not Present) and Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court (Not Present) for the Applicants.

Shah Khawar, Addl.AGP (Not Present) for the Federation.

Adnan Karim Memon, Addl.A.-G. for the Government of Sindh.

Naseer Ahmed Bangalzai, A.A.G. (Not Present) for the Government of Balochistan.

Hanif Khatana, Addl. A.-G. (Not Present) for the Government of Punjab.

Abdul Latif Yousafzai, A.G. (Not Present) for the Government of Khyber Pakhtunkhwa.

Khalid Javed Khan, A.G. Sindh: Amicus Curiae.

Nazir Ahmad Malik Dir (L) for M/o P & NR.

Muhammad Furqan Khan, Dy. Secretary Finance for M/o Finance.

Asim Iqbal, Advocate Supreme Court for SSGC.

Khaleeq Ahmed, Advocate Supreme Court for Mari Petroleum Co.

Irfan Babar Khan, GM (CSR) for OGDCL.

Nemo for UEPL.

Date of hearing: 28th (December, 2013.

PLD 2014 SUPREME COURT 367 #

P L D 2014 Supreme Court 367

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Ijaz Ahmed Chaudhry, JJ

CONTEMPT PROCEEDINGS AGAINST IMRAN KHAN, CHAIRMAN, PAKISTAN TEHREEK-I-INSAF: in the matter of

Criminal Original Petition No.92 of 2013, decided on 28th August, 2013.

(a) Constitution of Pakistan--

----Art. 204---Contempt of Court Ordinance (IV of 2003), S.3---Contempt of Court---contempt arising out of scandalous remarks regarding Judiciary---Judicial restraint---Islamic principles of forgiveness and pardon---Principle of showing judicial restraint, particularly in the cases relating to the purported scandalization of the judiciary through oral remarks, was a well-recognized principle in judicial history of Pakistan which had been time and again reiterated by the Court---Golden principles of ( ) forgiveness/remission and ( ) pardon, as enshrined in Islam, were one of the hallmarks of the Islamic system of dispensation of justice---Prudent Qazi/Judge entrusted with the onerous task of dispensation of justice was supposed to be more composed and cool minded so as to tactfully deal with such pity notions and remarks, which might have been made in good faith or due to a slip of the tongue---Just and fair remarks, made unconsciously or under the tide of momentary emotions, in somewhat harsh language, were not to be readily taken in the negative sense, but as means for soul-searching and improvement in the system and in such circumstances, depending upon the peculiar facts and circumstances of each case, for shown magnanimity, restraint and grace in his conduct, a Qazi/Judge was not required to wait for an unconditional apology from the person charged with the allegations of using indecent language against him or for scandalizing the judiciary as an institution.

Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823; Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923 and Dr.Muhammad Taahir-ul-Qadri v. Federation of Pakistan PLD 2013 SC 413 rel.

(b) Constitution of Pakistan---

----Art. 204---Contempt of Court Ordinance (IV of 2003), S.3---Contempt of Court---Submission of unconditional apology by alleged contemnor---Effect---Submission of an unconditional apology by the alleged contemnor in every case was neither a condition precedent, nor a point of ego or prestige for the courts, which practice was to be adhered to in each case as a rule of thumb before discharging the show-causes notice---Mere submission of unconditional apology, similarly, was also no ground for further inaction in the proceedings or for discharge of such notice without looking into the intent behind such notice; and rather, it would entirely depend upon the facts and circumstances of each case, particularly the stance taken by the alleged contemnor qua his overall conduct during such proceedings before the Court which would enable the Court seized of the matter to form an opinion about strict adherence to such a practice or otherwise.

----Art. 204---Contempt of Court Ordinance (IV of 2003), S.3---Contempt of Court---Scandalization of judiciary by public figures---Politicians and other public figures having their say and a following amongst the public are expected to use more decent and guarded language and have to be more careful in the selection of words in public gatherings or press conferences so as to show their intellect, maturity of mind and wisdom qua respect to various national institutions, and to present themselves, as role model for the society at large.

(d) Constitution of Pakistan---

----Arts. 204, 19 & 66---Contempt of Court Ordinance (IV of 2003), S.3---Contempt of Court---Scandalous remarks about judiciary---Freedom of speech---Privileges of members of Parliament---Scope---Contempt of court proceedings were initiated against the alleged contemnor for bringing judges into hatred, ridicule and for contempt for using the scandalous word "shameful" ( ) to describe the judiciary; which prima facie, tantamount to ridiculing and abusing the judiciary---Contention of the alleged contemnor was, inter alia, that the scandalous word attributed to him was a result of a misunderstanding; and that his grievance was regarding the administrative conduct of Returning Officers nominated from the subordinate judiciary responsible for holding free and fair elections in the country---Held, that the word ( ) used by the alleged contemnor was prima facie, uttered by him in a different sense and context, which was viewed as a derogatory and insulting remark for the judiciary as an institution---Stance of the alleged contemnor that his grievance was regarding malpractices in the General Elections and purported remarks were in the context of poor administrative performance shown by the judicial officers who were entrusted with the task of holding/ supervising the elections; seemed to be a plausible explanation from his side---When contempt proceeding were in the nature of quasi-criminal proceedings , the benefit of any doubt in favour of the alleged contemnor was to be extended to him---Conduct of the alleged contemnor throughout the proceedings made it evident that he held full respect and regard for the Court---Alleged contemnor was a public figure and duly elected member of the National Assembly, who had been actively involved in politics for a long time and was also the Chairman of a political party and in such circumstances, while considering his conduct, the Court could not lose sight of provisions of Arts.19 & 66 of the Constitution relating to freedom of speech and privileges of the Members of the Parliament---Supreme Court observed that politicians and other public figures having their say and a following amongst the public were expected to use more decent and guarded language and had to be more careful in the selection of words in public gatherings or press conferences so as to show their intellect, maturity of mind and wisdom qua respect to various national institutions, and to present themselves, as role models for the society at large---Supreme Court held that no reason existed to doubt the bona fide of the alleged contemnor or to disbelieve his statement---Show cause notice issued to the alleged contemnor was discharged, in circumstances.

(e) Constitution of Pakistan---

----Arts. 204---Contempt of Court Ordinance (IV of 2003), S.3---Contempt of Court---Benefit of doubt---When contempt proceedings were in the nature of quasi-criminal proceedings, the benefit of any doubt in favour of the alleged contemnor was to be extended to him.

Muneer A. Malik attorney Generl for Pakistan for Federation (on Court's Notice).

Hamid Khan, Qazi M. Anwar, Senior Advocates Supreme Court, Ahmed Awais, Waqar Rana, Mrs. Shamsha Ali, Advocates Supreme Court along with Imran Khan for alleged contemnor.

Date of hearing: 28th August, 2013.

PLD 2014 SUPREME COURT 380 #

P L D 2014 Supreme Court 380

Present: Nasir-ul-Mulk, Mian Saqib Nisar and Amir Hani Muslim, JJ

HAZRATULLAH and others---Appellants

Versus

RAHIM GUL and others---Respondents

Civil Appeal No.172 of 2005, decided on 7th January, 2014.

(Against the judgment dated 28-4-2003 of the Peshawar High Court, Peshawar passed in Civil Revision No.669 of 1994)

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

----S. 2(2) & O.IX, R.6(1)(a)---Ex parte decree was valid, having some legal effects and as good as a contested decree, with the exception that the modes and mechanism for setting aside such decree might be more---Illustration.

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

----O. IX, R.13---Setting aside of ex parte decree---Scope---Defendant having knowledge of ex parte decree against him failing to assail the same under O. IX, R.13, C.P.C or any other remedy available under law---Effect---Such ex parte decree would attain finality and would become binding upon the defendant---Illustration.

----S. 8---Suit for recovery of possession of immoveable property---Relief claimed---Declaration of entitlement---Implied---For a suit filed under S.8 of Specific Relief Act, 1877, the declaration of entitlement was an inbuilt relief claimed by the plaintiff of such a suit--- Once the plaintiff was found to be entitled to the possession, it meant that he/she had been declared to be entitled, which included the declaration of title of the plaintiff qua the property, and this was integrated into the decree for possession---Illustration.

Shakil Ahmed, Advocate Supreme Court for Appellants.

M. Ismail Fehmi, Advocate Supreme Court for Respondent No.1.

Bakhtiar son of Respondent No.7 for Respondent Nos. 6, 7 and 8.

Date of hearing: 7th January, 2014.

PLD 2014 SUPREME COURT 383 #

P L D 2014 Supreme Court 383

Present: Iftikhar Muhammad Chaudhry, C.J. Gulzar Ahmed and Sh. Azmat Saeed, JJ

MUHAMMAD NAWAZ---Petitioner

Versus

The STATE---Respondent

Criminal Review Petition No.34-L of 2009 in Criminal Petition No.651-L of 2009, decided on 28th February, 2013.

(For review of the judgment of this Court dated 24-8-2009 passed in Criminal Petition No.651-L of 2009)

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

----S. 345--- Penal Code (XLV of 1860),Ss. 302(b), 324, 353, 148, 149 & 337-F(iii)---Anti-Terrorism Act (XXVII of 1997), Ss.6(m) & (n), 7(a), (c) & (h)---Constitution of Pakistan, Art.188---Review of Supreme Court judgment---Murder of police official while on duty---Act of terrorism---Compounding of offence under S. 7 of Anti-Terrorism Act, 1997---Scope---Compromise between convict and legal heirs of deceased---Effect---Accused allegedly fired at and killed a police official during a police raid---Anti-Terrorism Court sentenced accused to death on two counts, one under S. 302(b), P.P.C and second under S.7 of Anti-Terrorism Act, 1997---Death sentence awarded to accused was confirmed by the High Court---Petition for leave to appeal filed by accused before Supreme Court was dismissed, against which accused had filed a review petition---During pendency of review petition, accused entered into a compromise with legal heirs of deceased-police official and requested the Supreme Court to accept the said compromise and acquit him---Validity---Merits of the present case pertaining to offence under S.302(b), P.P.C were no more required to be dilated upon because of the compromise---Statements of eye-witnesses (police officials) and recoveries made during investigation established that deceased-police official was murdered when he was on official duty, and such findings were upheld by the High Court and Supreme Court---Offence under S.353, P.P.C stood proved against accused as he fired at and killed a police official, who was performing his official duty, therefore, offence under S.7 of Anti-Terrorism Act, 1997 was also established because murder of a police official without personal enmity amounted to create terror and insecurity in the vicinity---Offence under S.6(2)(n) of Anti-Terrorism Act, 1997 also stood established as act of accused involved serious violence against a member of police force---Regarding first count of death sentence under S.302(b), P.P.C, accused entered into a compromise with legal heirs of deceased and compensation had also been paid, but second count of death under S.7 of Anti-Terrorism Act, 1997 had its own implications and was not compoundable under Ss.354(5) & (7), Cr.P.C---Compromise between parties was accepted (only) to the extent of conviction under S.302(b), P.P.C and accused was acquitted of said charge---Regarding death sentence under S.7 of Anti-Terrorism Act, 1997, quantum of said sentence could be examined in the present case due to its peculiar facts---Sentence of death awarded to accused under S.7 of Anti-Terrorism Act, 1997 was converted into life imprisonment without extending benefit of S.382-B, P.P.C, as the same was not allowed by Trial Court, High Court and the Supreme Court---Review petition was disposed of accordingly.

Muhammad Rawab v. State 2005 SCMR 1170 and M. Ashraf Bhatti v. M. Aasam Butt PLD 2006 SC 182 rel.

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

-----S. 345---Anti-Terrorism Act (XXVII of 1997), S.7---Acts of terrorism---Death sentence, award of---Compounding of offence under S.7 of Anti-Terrorism Act, 1997---Scope---Compromise between convict and legal heirs of deceased---Effect---Death sentence under S.7 of Anti-Terrorism Act, 1997 had its own implications and was not compoundable under Ss.354(5) & (7), Cr.P.C---Illustration.

Muhammad Rawab v. State 2005 SCMR 1170 rel.

----S. 7---Acts of terrorism---Scope---Murder of police official while on duty without personal enmity---Such murder amounted to create terror and insecurity in the vicinity and would fall under S.7 of Anti-Terrorism Act, 1997---Illustration.

M. Amir Khan Niazi, Advocate Supreme Court for Petitioners (in Crl.R.P. 34-L/09).

Asjad Javaid Ghurral, Addl. P.G. for the State.

Date of hearing: 28th January, 2013.

PLD 2014 SUPREME COURT 389 #

P L D 2014 Supreme Court 389

Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry and Gulzar Ahmad, JJ

SUO MOTU CASE NO.11 OF 2011: In the matter of

(Action taken on the news clippings regarding scandal of billions of rupees of National Police Foundation Land)

(a) Constitution of Pakistan---

----Art. 184(3)---Exercise of suo motu jurisdiction under Art.184(3) of the Constitution---Judicial review---Scope---Article 184(3) of the Constitution conferred jurisdiction upon the Supreme Court to examine matters, under the principle of judicial review, where the Government bodies exercised their powers in an arbitrary and partisan manner--- Cases wherein Government bodies exercised their contractual powers in an arbitrary manner or showed favouritism, the exercise of power of judicial review in the larger public interest could not be denied.

Suo Motu case No.13 of 2009 PLD 2011 SC 619 ref.

(b) Charitable Endowments Act (VI of 1890)---

----Ss.5 & 2---SRO 334(1)/75---National Police Foundation, object of---Charitable organization---Scope---National Police Foundation was a charitable organization established under S.5 of the Charitable Endowments Act, 1890---National Police Foundation was established for the welfare of employees of Federal and Provincial police organizations and serving and retired employees of the said police organizations, thus it was a charitable organization within the meaning of S.2 of the Charitable Endowments Act, 1890---Constitution of National Police Foundation made it apparent that the Foundation was established as a trust for the benefit of all police forces in the country, the main object of which was to provide help in the shape of medical, education, one time grants, artificial limbs, scholarships, dowry, vocational training centres etc.--- Said Foundation was a self-financing agency and generated funds from its own projects such as industrial units, housing schemes, security services etc---Purpose of establishment of the Foundation was to help poor objects of the police organizations.

--- "Beneficiary"--- Definition stated.

The Essential Law Dictionary by Amy Hackney Blackwell and Black's Law Dictionary ref.

(d) Rules/Regulations---

---Rules/Regulations inconsistent with or made in derogation of substantive provisions of the law or statute--- Legality---Rulemaking body cannot frame rules in conflict with or in derogation of the substantive provisions of the law or statute, under which the rules are framed--- Rules cannot go beyond the scope of the Act--- No rule can be made which is inconsistent with the parent statute, whereas, no regulation can be framed which is inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of such inconsistency with the parent statute or rules shall be void and inoperative.

Suo Motu Case No.13 of 2009 PLD 2011 SC 619 ref.

(e) Charitable Endowments Act (VI of 1890)---

----S. 5---National Police Foundation, object of---Launch of private housing scheme by National Police Foundation for the general public---Legality---Object of National Police Foundation was to help beneficiaries of the Foundation, therefore, as per its aims and objects, the Foundation, in order to provide any facility or help, which the committee of administration might decide from time to time, came under the broad term of "Welfare" of the beneficiaries---National Police Foundation came into being under S.5(1) of the Charitable Endowments Act, 1890, thus, it was a charitable institution formed for the help of poor and needy officials of the police departments all over the country and one of the projects of the said Foundation was establishment of Housing Schemes for those who really needed shelter of house---National Police Foundation, in such circumstances, was authorized to launch housing schemes for the help of beneficiaries but not for private persons or officers/officials of other departments---National Police Foundation, keeping in view its objects and for providing maximum benefits to the beneficiaries for whom said charitable organization was established, was authorized to launch a private housing scheme for the help and welfare of the beneficiaries.

(f) Constitution of Pakistan---

----Art. 184(3)---Charitable Endowments Act (VI of 1890), S.5---Suo motu action taken by the Supreme Court under Art.184(3) of the Constitution with regard to a scandal of billions of rupees in National Police Foundation Land---Illegalities, irregularities, maladministration and corruption committed by the Administration Committee and Board of Directors of National Police Foundation ("the Foundation") during procurement of land and allotment of plots in National Police Foundation Housing Society---Fraud committed by an accused property developer, while acting as a broker, during procurement of land for said Housing Scheme---Undue favours extended to accused-property developer in the process of procurement of land---Charitable purpose, deviation from---Scope---Administration Committee of the Foundation had framed rules according to their own choice irrespective of the scope of the Charitable Endowments Act, 1890 under which the charitable institution was formed---Plots were not only allotted to those persons who were not at all entitled for such allotment but also to family members of those police officers who were at the helm of affairs in the said Foundation--- Administration Committee had violated the purpose of the Foundation's establishment in order to favour higher police officers, their families and private persons---Administration of the Foundation gave away plots for a consideration which was not in consonance with the market price prevailing at that time---Board of Directors of the Foundation while establishing housing schemes did not at all fix the criterion by making bye-laws / terms and conditions for allotment of plots and divided plots to their nears and dears---Officials of the Foundation had made decisions detrimental to the interest of the Foundation and its beneficiaries and also failed to utilize its funds according to the true spirit of its constitution---Illegalities and irregularities in the procurement of land committed by the Board of Directors in connivance with accused-property developer were worst examples of corruption and corrupt practices---Supreme Court declared that all the plots which had been illegally and un-authorizedly allotted without entitlement, to any person, were illegally allotted and were thus liable to be cancelled forthwith, and that it was necessary to initiate proceedings against accused-property developer and other responsible persons---Suo motu case was disposed of accordingly.

While framing aims and objects of the National Police Foundation ("the Foundation"), its Administration Committee inserted provisions therein which could benefit them and other such like officers of the police organization and did not benefit the actual beneficiaries. Administration Committee of the Foundation had framed rules according to their own choice irrespective of the scope of the Charitable Endowments Act, 1890 under which the charitable institution was formed aiming at welfare and benefit of poor and needy officials of the police departments all over the country.

Allotment of plots in the housing schemes was made in violation of the bye-laws / terms and conditions of the said schemes. Benefit of the said schemes could have been granted only to the poor, martyred and needy, serving or retired, and dependents of such servants of the said Foundation or those who had sacrificed their lives for the country. National Police Foundation was established only for the benefit of the poor and needy persons but the persons at the helm of affairs in the Foundation allotted plots not only to those persons who were not at all entitled for allotment thereof but also allotted plots to every member of the family of those police officers who were at the helm of affairs in the said Foundation. Administration Committee of the Foundation had violated the purpose of its establishment under the garb of generation of funds and had committed gross illegalities, in order to favour higher police officers, their families and private persons instead of selling the plots in open market for the purpose of generating funds for the Foundation to achieve the object of its establishment.

Allotment of plots was not made by the Foundation in a transparent manner. Various police and government officials had been allotted more than one plot. Numerous police officials and even others got two or more than two plots (allotted) in the name of their family members.Successive Managing Directors of the Foundation had allotted plots to police officials not only over and above their entitlement but also to certain civilians of their choices as well as military officials, who, did not even fall within the definition of beneficiaries. Managing Directors of the Foundation were only competent to allot one plot to each police official but they illegally allotted plots to civilians, other bureaucrats and military personnel. Allotment of plots in the Foundation could be termed a bad example of mal-administration as every officer of the Foundation at the helm of affairs tried to loot the Foundation by allotting plots to their nears and dears without observing any codal formalities required for such purpose. Highups of the police hierarchy had purchased a good number of plots in violation of the purpose for which the Foundation was established and after having acquired such plots started a business.

Accused-property developer who had entered into agreements with the Foundation to arrange land for establishment of residential colony also got developed plots allotted against affiliation of land to various persons without paying the development charges and accounting for the land as per formula of the concerned development authority.

Under the garb of the Foundation's objectives, its administration decided to enrich their own pockets and to dole away the plots to higher police officials and other higher government officials for a consideration which was not in consonance with the market price prevailing at that time. Some of the allottees had been allotted plots only for a sum of Rs.100/. Officers at the helm of affairs in the Foundation allotted land worth billions of rupees at throwaway prices i.e. for Rs.100/- only to the ruling elite, including generals, bureaucrats, ambassadors, close relatives of top police officials and well-connected civilians.

Board of Directors of the Foundation while establishing housing schemes did not at all fix the criterion by making bye-laws/terms and conditions for allotment of plots and gave away plots to their nears and dears without there being any logic for such allotments. Board of Directors did not frame any rules/bye-laws for allotment of plots to the general public and allotted plots to the persons of their choice without having published in the newspapers the policy or criteria regarding such allotment. Plots in the said scheme were also not put to auction in accordance with law by the Board of Directors, as such, the Board of Directors had been utilizing the Foundation for their personal gains for the benefit of their nears and dears. Board of Directors without observing any legal or codal formalities such like advertisement in the press and without framing any bye-laws for the allotment of plots doled them out, whereas poor policemen were still facing hardships to acquire a roof to live under. Even the land earmarked for lawns/parks was also converted into plots for allotment to higher police officers.

Ex-officials of the Foundation who were in power at the relevant time had made decisions detrimental to the interest of the Foundation and its beneficiaries. They did not at all make efforts for the betterment and interest of the Foundation rather allotted plots to their nears and dears who were not at all entitled for such allotment. They also failed to utilize the funds of the Foundation according to the true spirit of its constitution, as such, they were fully responsible for the acts and omission as highlighted by the inquiry officer in his report. Board of Directors of the Foundation in connivance with accused-property developer with mala fide intention caused a huge and colossal loss to the Foundation which had surfaced in the enquiry report. Board of Directors, instead of generating funds for the poor and needy persons who were still facing hardships to acquire a roof to live under had allotted the plots to their near and dears under the garb to generate the funds.

Illegalities and irregularities in the procurement of land committed by the Board of Directors in connivance with accused-property developer were worst examples of corruption and corrupt practices and all those who were responsible were liable to be penalized in accordance with the law of the land and also to make good the loss by recovering said loss through coercive measures.

Settlement agreements between accused-property developer and the Foundation appeared to be another example of fraud with the Foundation as there was no date for finalization/completion of the said agreements, as such, said agreements could not be termed as good in the eyes of law. Said agreements also appeared to be tricky to the effect that the same might have been executed in order to avoid consequences of criminal proceedings initiated by the Foundation against accused-property developer.

Supreme Court declared that all the plots which had been illegally and un-authorizedly allotted without entitlement, to any person, whether police officials, employees of the Foundation, other government officials or civilians, businessmen, etc. or their dependents were illegally allotted and were thus cancelled forthwith, however, if such allottees were interested to retain the plots in their names they should pay price thereof according to the present market value within a period of two months; that settlement agreements between accused-property developer and the Foundation were of no legal effect; that accused-property developer or his nominee shall be entitled to retain only those plots in lieu whereof he had given land for being affiliated and not otherwise, that too subject to payment of development charges according to the nature of the plots within two months; that in case accused-property developer or his nominee failed to pay the development charges within a period of two months, he shall not be entitled to retain such plots; that accused-property developer should fulfil his outstanding liability of 126 kanals of land as undertaken by him through settlement agreement dated 27-5-2011 and if he was not in a position to provide 126 kanals of land to the Foundation then he would pay present market price of 88 developed plots in accordance with 54:46 ratio formula of concerned development authority and adopted by the Foundation within the period of two months, otherwise law would take its own course by initiating penal action as well as attachment of all his property, moveable or immoveable and that of his dependents; that accused-property developer should make up any other shortfall of land; that it was necessary to initiate proceedings against accused-property developer and other responsible persons, therefore Chairman, National Accountability (Board) should initiate proceedings under the National Accountability Ordinance, 1999, promptly, so that it might serve the deterrence of like-minded people. Suo motu case was disposed of accordingly.

(g) Civil service---

----Government servant----Entitlement to allotment of plots in a Housing Scheme----Scope----Under the Constitution no one could be permitted, even though he might be the head of a department, to purchase all the plots for himself, or to give out the same as per his own choice.

Rauf Kalasra, Editor (Inv.), Daily Dunya Voluntarily appeared.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and M. Munir Peracha, Senior Advocate Supreme Court for Applicants (aggrieved by NPF) (in C.M.A. 2895 of 2013).

Sh. M. Suleman, Advocate Supreme Court for Applicants (in C.M.A. 3274/13)

Ms. Shahida Kausar, SP for Applicants (in C.M.A. 3273/13)

Liaqat Ali for Applicants (in H.R.C. No.18269-P/2011)

Mst. Zahida Bibi for Applicants (in C.M.A. 2755/2011)

Dr. Aslam Khaki, Advocate Supreme Court for Applicants (in C.M.A. 4038/13)

Ishtiaq Ahmad Raja, Advocate Supreme Court for Applicants (in C.M.A. 3030/13)

Ch. Khalid Rasheed, SP Traffic for Applicants (in C.M.A. 2913/13)

On Court Notice:

Hamid Khan, Senior Advocate Supreme Court, Waqar Rana, Advocate Supreme Court, M. S. Khattak, Advocate-on-Record with Iftikhar Ahmad Khan, Ex. MD,Laeeq Ahmad Khan, Ex. Director and Khuda Bakhsh, Ex. Dy. Director for Ex. Officials of NPF.

Syed Asghar Hussain Sabzwari, Senior Advocate Supreme Court, Muhammad Ilyas Siddiqui, Advocate Supreme Court, Syed Safdar Hussain, Advocate-on-Record, Tariq Hanif Joiya, Secretary/Dir. (Housing) and Zahid Mehmood, Ex.M.D for NPF

Kh. Siddique Akbar, Ex-Secy. Interior, Bani Amin Khan, IGP, Islamabad and Zafar Ahmad Qureshi, Former MD NPF for NPF.

Muhammad Azam Khan, Additional D.G. (Law) for FIA.

Makhdoom Ali Khan, Senior Advocate Supreme Court, Faisal Naqvi, Advocate Supreme Court, with Anjum Aqeel Khan, Ex-MNA for M/s. Land Linkers.

On behalf of Allottees of more than one plot

Syed Ali Zafar, Advocate Supreme Court, Zahir Nawaz Cheema, Advocate Supreme Court (in C.M.A.Nos. 3686, 3689-3692 and 3706-3716 of 2013).

Sana Ullah Zahid, Advocate Supreme Court, Syed Rafaqat Hussain Shah, Advocate on Record (in C.M.A. Nos. 3741/2013.

M. Ashraf Shah, DSP (in C.M.A. No. 3328/2013)

Syed Rafaqat Mustafa, (in C.M.A. No. 3684/2013)

Syed Pervaiz Kandhari (in C.M.A. No. 3740/2013).

Muhammad Zaman, Ex. Site Engr (in C.M.A. 4030/2013)

Afzal Shigri, Sultan Azam Temori, Sikandar Hayat and Abdul Hannan (in person)

Dates of hearing: 22nd, 30th May; 11th, 12th, 13rd, 14th, 25th June and 2nd July, 2013.

PLD 2014 SUPREME COURT 458 #

P L D 2014 Supreme Court 458

Present: Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

MUHAMMAD SHAKEEL---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.203-L of 2014, decided on 20th March, 2014.

(Against the order dated 4-2-2014 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.158-B of 2014)

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

----Ss. 497 & 498---Bail application-Format---Shorter format for deciding a bail application that was to be adopted by all courts below provided by the Supreme Court.

Supreme Court observed that in future, unless the necessities of the case warranted otherwise, the following shorter format for deciding an application for bail may be adopted by all the courts below:

(i) Without reproducing the particulars and contents of the F.I.R. in detail an order should state directly and briefly the allegation levelled by the prosecution against the accused-petitioner. The details and particulars of the F.I.R. would already be available in the application for bail itself or the same could be gathered from a copy of the F.I.R. attached with such application.

(ii) The details of the arguments addressed by the learned counsel for the parties may not be recorded in the order. It is to be presumed that the court concerned must have heard and attended to all the arguments addressed and the submissions made before it and if one was to look for such arguments the same may be found mentioned in the application for bail. It may be well to remember that an order granting or refusing bail was merely an interim order and the same was not to be equated with a judgment.

(iii) The order should state the reasons for granting or refusing bail to the accused-petitioner as briefly and clearly as possible in the following format:

(a)

(b)

(c)

(d)

(iv) The order should record the terms of bail, if applicable.

Supreme Court emphasized that brevity was the soul of wit. In the present case, Judge had indulged in the luxury of writing as many as twelve pages for dismissing the petitioner's application for bail which matter was merely an interim matter pertaining only to regulating custody of the petitioner during his trial. The matter could have been decided by the Judge through a much shorter order saving the Court's precious time for attending to other similar matter of urgency.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Non-attribution of specific injury---Generalized and collective allegation---Non-recovery of incriminating article---Investigating officer opining accused to be innocent---Effect---Allegation against the accused was that he and his co-accused had resorted to firing at the deceased---Accused had not been attributed any specific injury and the allegation levelled against him in the F.I.R. was couched in generalized and collective terms---Nothing had been recovered from the custody of accused during the investigation so as to confirm the allegation of firing levelled against him---Investigating officer had opined that accused was innocent as the allegation levelled by the complainant party against him was not established---Site-plan of the place of occurrence showed that the complainant and eye-witnesses could not have seen the incident, particularly when it had never been claimed by them in the F.I.R. and in their statements before the police that they had followed the deceased and the accused party to the place of occurrence---Investigation of the case had already been finalized and a challan had been submitted, thus, physical custody of the accused was not required for the purposes of investigation---Case against accused called for further inquiry into his guilt---Petition was converted into appeal and same was allowed, consequently petitioner-accused was admitted to bail---Supreme Court observed that, in the present case, Judge of High Court had indulged in the luxury of writing as many as twelve (12) pages for dismissing the accused's application for bail which matter was merely an interim matter pertaining only to regulating custody of the accused during his trial; that the matter could have been decided by the Judge through a much shorter order saving the Court's precious time for attending to other similar matters of urgency.

Rana Shakeel Ahmad Khan, Advocate Supreme Court for Petitioner.

Ch. Zubair Ahmad Farooq, Addl. Prosecutor-General, Punjab for the State.

Adnan Shuja Butt, Advocate Supreme Court for Respondent No.2.

Date of hearing: 20th March, 2014.

PLD 2014 SUPREME COURT 463 #

P L D 2014 Supreme Court 463

Present: Tassaduq Hussain Jillani, C.J., Khilji Arif Hussain and Sh. Azmat Saeed, JJ

ELECTION COMMISSION OF PAKISTAN through Secretary---Appellant

Versus

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

Civil Appeal No.297 of 2014, decided on 19th March, 2014.

(On appeal from the judgments dated 3-2-2014 passed by the Lahore High Court, Lahore in W.P.No.31986 of 2013 etc.)

Punjab Local Government Act (XVIII of 2013)---

----Ss. 8, 9 & 10---Constitution of Pakistan, Arts. 140A, 219(d) & 222(b)---Local Government Elections---Delimitation of constituencies, process of---Scope---Power of delimitation of constituencies conferred on the Provincial Government at the exclusion of the Election Commission of Pakistan by virtue of Ss. 8, 9 & 10 of Punjab Local Government Act, 2013---Constitutionality---Power to hold elections of the Local Government stood vested in the Election Commission in terms of Art. 140A of the Constitution---Delimitation of constituencies of the Local Government was part of the process of organizing and holding elections honestly, justly and fairly which was the constitutional mandate of the Election Commission---Power to carry out such delimitation vested with the Election Commission---Sections 8 to 10 of the Punjab Local Government Act, 2013 and the relevant Rules framed there-under were ultra vires of the Constitution in so far as they empowered the Provincial Government to carry out the delimitation of the constituencies for the Local Government---Supreme Court directed that Governments, Federal and Provincial (of Punjab) should carry out appropriate amendments/legislation to empower the Election Commission to initiate and carry out the process of delimitation of constituencies for the Local Government Elections, and such exercise should be completed within a period of five months; that the Election Commission should thereafter take requisite measures to carry out the process of delimitation of constituencies for the Local Government expeditiously so as to complete the same within a period of 45 days of the enactment/amendments in laws in terms of present order; that the Election Commission should further ensure that the announcement of election schedule and the process of holding it was complete by or before 15th of November, 2014---Appeal was disposed of accordingly.

Muhammad Akram Sh. Senior Advocate Supreme Court assisted by Moazzam Habib, Advocate, Faraz Raza, Advocate and Mehmood A. Sheikh, Advocate-on-Record, Sher Afghan, D.G. ECP and Abdur Rehman, Law Officer for Appellant.

Mustafa Ramday, Advocate-General, Barrister Waseem Qureshi, Addl. A.G., Muhammad Azhar Siddique, Advocate Supreme Court, Muhammad Saleem, Asstt. Director Local Government Bhakkar, Haq Nawaz, (in person), Muhammad Khan Narowal (in person), Muhammad Fakhar-uz-Zaman (in person) and Muhammad Sarwar (in person) for Respondents.

Salman Aslam Butt, Attorney-General and S.M. Attique Shah, Addl. Attorney General On Court Call.

Dates of hearing: 17th to 21st February, 2014 and 3, 4, 12, 13 and 19th March, 2014.

PLD 2014 SUPREME COURT 466 #

P L D 2014 Supreme Court 466

Present: Mian Saqib Nisar and Ejaz Afzal Khan, JJ

RAJA---Appellant

Versus

TANVEER RIAZ and others---Respondents

Civil Appeal No.1385 of 2006, decided on 6th March, 2014.

(On appeal from the judgment dated 28-4-2066 of the Lahore High Court, Lahore passed in W.P.No.10146 of 2004)

Punjab Pre-emption Act (IX of 1991)-

----Ss.24(1) & (2)---West Pakistan General Clauses Act (VI of 1956), S.8---Suit for pre-emption---Direction of court to deposit zar-e-soem within thirty (30) days---Commencement of time period of thirty (30) days---Scope---Day on which court directs the pre-emptor to make the deposit of zar-e-some had to be excluded from the time period of thirty (30) days; however by exclusion of such day the period of 30 days, as mandated by S.24 of Punjab Pre-emption Act, 1991 should not exceed.

Muhammad Aziz v. Akhtarain Begum 2004 SCMR 1709 distinguished.

Fazal Elahi v. Noor Ahmed and 2 others PLD 2006 Lah. 318 affirmed.

Hasnain Nawaz Khan v. Ghulam Akbar and another PLD 2013 SC 489 ref.

Noman Hakam Qureshi Advocate for Appellant.

Aslam Ghuman, Advocate Supreme Court for Respondents.

Date of hearing: 6th March, 2014.

PLD 2014 SUPREME COURT 471 #

P L D 2014 Supreme Court 471

Present: Nasir-ul-Mulk, Mian Saqib Nisar and Amir Hani Muslim, JJ

PUNJAB COOPERATIVE BOARD OF LIQUIDATION through Chairman---Appellant

Versus

MUHAMMAD ILYAS---Respondent

Civil Appeal No.257-L of 2013, decided on 21st January, 2014.

(Against the judgment dated 23-10-2012 of the Lahore High Court, Lahore passed in Writ Petition No.14024 of 2010)

(a) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Application to the Cooperatives Judge---"Aggrieved person"---Scope---Power of Cooperatives Judge could only be invoked by an "aggrieved person" against an act or decision of the Cooperatives Board---Cooperatives Board itself had not been reckoned as an "aggrieved person" so as to avail any right or conferred with a locus standi to approach the Cooperatives Judge under S.11 of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993.

(b) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Application to the Cooperatives Judge---Power of Cooperatives Judge to "confirm, reverse, or modify the act or decision of the Cooperatives Board---Interpretation---Cooperatives Judge on an application under S.11 of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 could either confirm the act/decision assailed therein, meaning thereby that, the application would be dismissed; or Judge could reverse the order i.e. accept the application of the aggrieved person whereby the act/decision of the Board would be set aside; or Judge could modify the assailed order of the Board i.e. alter and change the act/decision assailed, in the manner that part of relief was allowed to the aggrieved person whereas part of it might be refused.

----Ejusdem generis, rule of---Meaning---When general word or phrase (in a statute) followed a list of specifics, the general word or phrase shall be interpreted to include only the words/items of the same class as those specified.

Blacks Law Dictionary, 9th Edn. ref.

(d) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Application to the Cooperatives Judge---Power of Cooperatives Judge to "make such order as he may think just in the circumstances of the case"---Interpretation---Words "make such order as he may think just in the circumstances of the case" appearing at the end of S.11 of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 did not confer upon the Cooperatives Judge an open ended power and jurisdiction to pass any order, as it might fall within the realm and mischief of arbitrariness, whim and caprice in the exercise of his jurisdiction---Cooperatives Judge was not permitted to pass any order in the garb of his power to confirm, reverse or modify the act/decision of the Cooperatives Board/Liquidation Board---Cooperatives Judge while exercising his jurisdiction under S.11 of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 had no empowerment to totally annihilate and set aside that part of the order passed by the Liquidation Board by virtue of which an aggrieved person had earned a right in his favour---However Cooperatives Judge while upholding order of the Board was authorized to impose a reasonable condition as it would be within his jurisdiction in terms of the authority to modify the act/decision, which the aggrieved person shall be obliged to comply with in order to attain the fruits of the Board's order, act or decision.

(e) Administration of justice---

----Where an aggrieved person approached a higher forum complaining against a decision of the lower forum and sought redressal of his grievance and his opposing side had no grouse against such order/decision of lower forum, it would be inconceivable for the aggrieved person to be left bereft of the right which he had acquired.

(f) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 11---Application to the Cooperatives Judge---Power of Cooperatives Judge to "confirm, reverse, or modify the act or decision" of the Cooperatives Board---Interpretation---Suit property was put to auction by the Liquidation Board---Respondent's bid of Rs. 5 million for the property was the highest bid and was accordingly accepted by the Board---Respondent deposited 25% of the bid amount in terms of the terms and conditions, whereas balance payment was paid subsequently---Balance payment was returned to respondent as a tenant of suit property procured an injunctive order from the Cooperatives Judge---Cooperatives Judge ultimately decided the matter against the tenant, whereupon respondent applied to the Board for transfer of suit property unto him on the payment of the balance amount (75% of the bid amount)---Board decided that since prices of properties had increased manifold during pending litigation with tenant and respondent had wilfully accepted return of the balance amount by the Board, therefore it would be fair that interest/mark up should be charged on the balance amount---Respondent challenged said decision of the Board by filing an application before the Cooperatives Judge under S.11 of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993---Cooperatives Judge dismissed said application and set aside the auction altogether and directed that suit property should be put to re-auction, meaning that the very auction in favour of respondent, which was affirmed by the Board was annulled and set at naught---Validity---Board had not cancelled the auction in favour of respondent, rather it simply imposed a condition to pay mark up on the remaining balance amount payable by the respondent---Cooperatives Judge, in law, could not have set aside the order of Board, which in clear and unequivocal terms had accepted the auction as being valid and lawful and was ready to abide by it---Section 11 of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 could not be interpreted to confer an open ended jurisdiction to the Cooperatives Judge---Cooperatives Judge while exercising his jurisdiction under S.11 of Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 had no empowerment to totally annihilate and set aside that part of the order passed by the Liquidation Board by virtue of which an aggrieved person had earned a right in his favour---Supreme Court directed the respondent to pay the remaining 75% balance bid amount with markup to the Board, where after suit property was to be transferred in favour of respondent---Appeal was dismissed accordingly.

M. Ilyas Khan, Senior Advocate Supreme Court for Appellant.

Mahmood A. Sheikh, Senior Advocate Supreme Court for Respondent.

Date of hearing: 21st January, 2014.

PLD 2014 SUPREME COURT 478 #

P L D 2014 Supreme Court 478

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

PAK TELECOM MOBILE LTD.---Petitioner

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY, ISLAMABAD---Respondent

Civil Petition No.1545 of 2009, decided on 6th February, 2014.

(Against the judgment dated 20-7-2009 passed by the Islamabad High Court in FAO 7 of 2009).

(a) Pakistan Telecommunication (Reorganization) Act (XVII of 1996)---

----Ss. 22 & 8---Mobile Cellular Policy (of the Federal Government), 2004, paras. 4.4 & 5.4---Annual Spectrum Administrative Fee (ASAF), demand of---Legality---Change in terms of an existing licence---Scope---Policy directives issued by Federal Government under S.8 of the Pakistan Telecommunication (Re-organization) Act, 1996, status of---Appellant-company, which provided mobile cellular services, was granted a license by PTA in August, 1998---Amongst its various terms and conditions, the license also specified the charges, fees etc. which the appellant-company was obliged to pay to PTA---On 27-10-2008 PTA sent a show cause notice to appellant-company demanding payment of an Annual Spectrum Administrative Fee (ASAF)---PTA claimed that said fee was imposed on appellant-company by virtue of paras 4.4 & 5.4 of the Mobile Cellular Policy of the Federal Government, 2004 read with clause 2.4 of the license issued to the appellant-company---Appellant-company contended that it was not obliged to pay the ASAF during the existence of its license---Validity---Paragraph 4.4 of the Mobile Cellular Policy of the Federal Government, 2004 provided a new charge by way of ASAF which was in addition to the charges which were payable by (mobile) service providers under their existing licenses---ASAF envisioned in para 4.4 of the said Policy was the reasonable operational cost for "managing licensing and policing" and NOT for the "use" of the frequency spectrum---Licensee had been 'using' the spectrum since 1998, which was wholly distinct and different from the responsibility of PTA for 'managing', 'licensing' and 'policing' of the spectrum---Use of the frequency spectrum on the one hand and managing, licensing and policing of such spectrum on the other had to be distinguished---Charges for use of the spectrum were or could be market driven---Licenses for use of frequency spectrum could be auctioned where prospective bidders could place a market value on the permission for use of the frequency spectrum---ASAF under para.4.4 of the Mobile Cellular Policy of the Federal Government, 2004, however, was not market driven but was meant to recover only the "reasonable operational costs" for managing etc.---Existing license of the appellant-company specified each and every amount due from it and thus included the charges for the use of frequency spectrum in terms of clause 2.4 of the license---If at all there arose any issue as to charges for use of the frequency spectrum, it firstly required the approval of Frequency Allocation Board which would, in turn, be subject to challenge by a licensee or even by PTA under S.22 of the Pakistan Telecommunication (Reorganization) Act, 1966---Even after the Frequency Allocation Board was established the terms of the license could not have been varied without a statutory provision empowering PTA to impose an additional levy by way of ASAF---Paragraph 5.4 of the Mobile Cellular Policy of the Federal Government, 2004 clearly specified that mobile cellular licenses under the policy "will replace the existing licenses as soon as possible or at least upon expiry of the current licenses", and that "existing operators will be encouraged to come under the purview of Mobile Cellular policy even before the expiry of their existing license"---Said paragraph made it clear that the policy was not meant to impact existing licensees who were merely to be encouraged but would not be obliged to come under the purview of the policy---Such a stipulation ensured that the rules of the game were not changed once the game had begun i.e. the license has become operational---Licensees entering the cellular market on commercial considerations were entitled to the certainty that financial assumptions on the basis of which they got their license remained unaltered during the currency of their licenses---Since the ASAF was distinct from a charge for the use of the frequency spectrum and because the ASAF had for the first time been specified by the Mobile Cellular Policy of the Federal Government, 2004, the same could not be forced onto an existing licensee/appellant-company which choose to continue operating under an existing license---Appeal was allowed accordingly.

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

----Ss. 3, 4, 5 & 22---Pakistan Telecommunication Authority (PTA) as an independent regulator---Scope---Grant, administration and modification of licenses---Scope---PTA was an independent regulator as envisaged by Ss. 3, 4 & 5 of the Pakistan Telecommunication (Re-organization) Act, 1996---Section 5(1)(d) of the said Act read with S. 22 thereof, made it evident that the Federal Government had no role in modifying a license issued by PTA or varying any condition thereof---Such power was vested in PTA and was subject to the constraints of S.22 of the Pakistan Telecommunication (Re-organization) Act, 1996---Rationale for creating PTA as a regulator independent of the Federal Government by means of an Act of Parliament was to ensure that the Government had no power to interfere in the working of PTA in matters of grant and administration of licenses.

----Ss. 22 & 8---Modification of licence conditions---Scope---Policy directives issued by the (Federal) Government under S.8 of the Pakistan Telecommunication (Re-organization) Act, 1996---Such directives did not have binding effect to compel Pakistan Telecommunication Authority (PTA) to modify the terms of an existing license.

Hamid Khan, Senior Advocate Supreme Court, Waqar Rana, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

M. Akram Sheikh, Senior Advocate Supreme Court, Khurram Siddiqui, Director (Law), Faraz Khan Jadoon, Law Offifer and Khalid Wazir, Asstt. Director, PTA for Respondent.

Date of hearing: 6th February, 2014.

PLD 2014 SUPREME COURT 488 #

P L D 2014 Supreme Court 488

Present: Ejaz Afzal Khan and Muhammad Ather Saeed, JJ

MUHAMMAD ZAHID---Appellant

Versus

Dr. MUHAMMAD ALI---Respondent

Civil Appeal No.414 of 2010, decided on 10th February, 2014.

(On appeal against the judgment dated 27-4-2010 passed by the Lahore High Court, Lahore in C.R.No.421 of 2010)

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

----Ss. 13 & 30---Suit for pre-emption---Limitation---Sale made through mutation---Limitation for filing suit for such sale would be reckoned from the date of attestation of mutation---Illustration.

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

----S. 13---Suit for pre-emption---Talb-i-Ishhad, notice of---Scope---Mere signing and sending of notice to vendee without confirming intention to exercise right of pre-emption---Effect---Such notice was not substantive compliance with S.13 of Punjab Pre-emption Act, 1991 and could not be held to be Talb-i-Ishhad---Talb-i-Ishhad which, in fact, was confirmation of intention to exercise a right of pre-emption cannot be held to have been established by mere signing and sending of notice---Illustration.

----Arts. 185(3) & 187(1)---Leave to appeal was granted by Supreme Court for a particular issue---Power of Supreme Court to consider any other issue for which leave was not granted by it---Scope---Contention that when leave was granted by Supreme Court to consider a particular issue, then no other argument could either be addressed by the appellant nor considered by the Supreme Court during the appeal---Validity---Once leave was granted to examine a particular point, the entire case might be re-opened, if the circumstances of the case so required for doing complete justice-Normally the Supreme Court did not permit an appellant to urge a ground on which leave had not been granted, but at the same time, in a fit case if the dictates of justice so demanded, the Supreme Court (could) permit an appellant to urge any other ground particularly when the same was an issue before the courts below and was directly linked with the ground on which leave had been granted---Party could not be denied a relief on a technical ground if he was otherwise entitled to such relief---Article 187(1) of the Constitution empowered the Supreme Court to issue directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it.

Mst. Bibi Jan v. Habib Khan and another PLD 1975 SC 295; Khushdil and 3 others v. The State PLD 1981 SC 582; Mst. Safyya and another v. Muhammad Rafique and 6 others PLD 1993 SC 62 and Mst. Shamim Akhtar v. Syed Alam Hussain and others 1975 SCMR 16 ref.

Tariq Mehmood, Senior Advocate Supreme Court for Appellant.

Gulzarin Kiyani, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 10th February, 2014.

PLD 2014 SUPREME COURT 494 #

P L D 2014 Supreme Court 494

Present: Nasir-ul-Mulk, Amir Hani Muslim and Muhammad Ather Saeed, JJ

LAHORE DEVELOPMENT AUTHORITY and another---Appellants

Versus

Messrs ALICON LIMITED, LAHORE---Respondent

Civil Appeal No.1708 of 2002 out of Civil Petition No.774 of 2001, decided on 27th January, 2014.

(Against the judgment dated 11-1-2001 of the Lahore High Court, Lahore passed in F.A.O. No.63 of 1998)

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

----S. 10---Chairman of Arbitration Committee appointed by arbitrators---Status of---Arbitration Committee comprised of two arbitrators, one appointed by appellant-authority and the other by respondent-company---Two arbitrators in turn selected another person as a Chairman of Arbitration Committee---During arbitration proceedings arbitrators disagreed with each other and published their own different awards---Chairman, Arbitration Committee agreed with the award and reasons enumerated by the arbitrator appointed by respondent-company---Trial Court made said award rule of court and decreed the same---Contention of appellant-authority that Chairman of Arbitration Committee was appointed as an umpire in terms of S.10(1) of Arbitration Act, 1940, and thus should not have joined the arbitration proceedings; that in case of a conflict between arbitrators, Chairman should have reheard the case and given his independent award instead of simply agreeing with the award made by arbitrator appointed by respondent-company---Validity---Chairman was appointed by arbitrators as a chairman/surpanch and not as an umpire and thus he would be deemed to be an arbitrator---Chairman participated in the proceedings and did not interfere or try to interfere in the working of the two arbitrators and did not influence them, thus he was not required to conduct independent and separate proceedings---Award by the majority of the arbitrators being in accordance with law could not be set aside merely on the ground that the appointment of arbitrators was not in accordance with law---Chairman/surpanch was not required to record independent reasons of his own and could agree with the reasons highlighted by any one of the arbitrators as he sat in all the proceedings of the arbitration and was aware of the arguments and facts of the case--- Arbitration Committee was properly constituted and procedure adopted by it was also unexceptionable---Appeal was dismissed accordingly.

Abdul Hamid v. H.M. Qureshi PLD 1957 SC 145 and Chief Engineer, Building Department v. Messrs Pakistan National Construction 1988 SCMR 723 ref.

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

---S. 22---Appointment of arbitrators, defect in---Effect---Defective appointment of arbitrators cannot necessarily lead to an invalid and no-binding award.

----S. 20---Arbitration award---Wrongful rescission of contract---Claim for escalation---Claim for loss of profit---Contract was wrongfully rescinded by the appellant---Award by arbitrator stated that contractor was deprived of the profits which could have been earned by it due to execution of balance or remaining work; that contractor was entitled to 6% profit for the balance work as compensation (contractor had claimed 15% profit); that contractor was also entitled to escalation due to increase in prices of materials---Contention of appellant that contractor had only completed 33% of the contract, therefore, he was not entitled to escalation; that no basis had been given in the award for loss of profit and contractor had only given an estimate which was wrongly allowed in the award---Validity---Arbitrator in his award pointed out that only condition was that in case of increase in prices of material the contractor could get escalation, and such finding of the arbitrator had not been rebutted before the court nor any evidence had been shown to the effect that escalation was only allowable if the whole contract had been executed---Arbitrator was justified in awarding 6% of the claim of the profit against 15% and had rightly awarded compensation for escalation---Appeal was dismissed accordingly.

Sh. Muhammad Ismail, Advocate Supreme Court for Appellants.

Syed Najm-ul-Hassan Kazmi, Advocate Supreme Court for Respondent.

Date of hearing: 27th January, 2014.

PLD 2014 SUPREME COURT 506 #

P L D 2014 Supreme Court 506

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Iqbal Hameedur Rahman, JJ

LIAQAT ALI KHAN and others---Appellants

Versus

FALAK SHER and others---Respondents

Civil Appeal No.835 of 1999, decided on 28th January, 2014.

(On appeal from judgment of Lahore High Court, Multan Bench dated 10-6-1999 passed in R.F.A. No.25 of 1988)

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

----Ss. 22 & 24(b)---Suit for specific performance of agreement in respect of immoveable property---Discretion of court to decree such a suit---Principles and scope---Time agreed between parties for payment of balance consideration as essence of the contract--- Failure to pay balance consideration within the time stipulated in the contract---Effect---Conduct of parties, relevance of---Sellers/defendants entered into an agreement to sell immovable property with the buyers/ plaintiffs---Buyers paid earnest money at the time of execution of agreement---Said agreement specifically stipulated that balance consideration had to be made by a specific date and if same was not done then earnest money would be forfeited and agreement would stand rescinded; that in case sellers resiled from the agreement then the buyers would have a right to seek specific performance of the agreement through a court of law; that in case there existed any legal hurdle/defect in performance of the agreement, then it would automatically stand cancelled---Buyers failed to pay balance consideration within the stipulated time, whereafter sellers sent them a notice wherein it was stated that agreement stood cancelled relying on the time stipulation clause---Buyers filed a suit for specific performance of contract against the sellers contending that deal could not be finalized and balance consideration could not be paid within time as another party had initiated litigation against sellers in respect of suit land and an interim injunction was granted to them---Suit was dismissed by civil court on the ground that time stipulated for paying balance consideration was essence of the agreement---High Court set aside judgment of civil court and decreed the suit subject to deposit of remaining balance by the buyers before the civil court---Validity---Contents of the agreement revealed that it was specifically agreed and mentioned that the parties had entered into the agreement in proper health and full application of mind and had understood and accepted its terms---Stipulation regarding payment of balance sale consideration and consequences of its default were categorically incorporated in the agreement and accepted by both the parties with their free will---Strict terms for payment of consideration were incorporated in the agreement by the parties to make their intention clear that time was the essence of the agreement---Agreement between the parties was entered into at a time when two civil suits, challenging/ disputing the title of the sellers, were already pending before the civil court---Prima facie, it was for this reason that in the agreement specific stipulation of timeframe was agreed to between the parties for the payment of balance sale consideration with consequential penalty clause of forfeiture of earnest money qua vitiation of agreement in favour of sellers or filing a suit for specific performance in the other situation, which was by itself sufficient to show clear intention of the parties that time was the essence of the agreement---Timeframe for payment of balance consideration was also conceded to by one of buyers' own witnesses in his deposition---Three days after expiry of stipulated date for payment of balance consideration sellers issued notices to the buyers stating that agreement stood cancelled---Receipt of said notices was not denied by the buyers, but they did not bother to give its reply---Buyers did not bother to make any correspondence with the sellers showing their intention to keep the agreement alive for specific performance or to offer any explanation for non-payment of balance sale consideration within the agreed time---Buyers instituted suit for specific performance of agreement after more than one year and four months of the agreed date for payment of balance consideration, but even at that stage, they did not make any offer before the civil court to deposit the remaining sale consideration amount in order to show their bona fide and good faith---Conversely bona fides of sellers was evident from the fact that they submitted an application in civil court requesting to deposit in court the earnest money paid by buyers so that it might be paid back to them---Buyers themselves were instrumental in not making payment of the balance sale consideration amount within the stipulated period or seeking specific performance in accordance with law---Case record also showed that the party which had been granted an interim injunction against sellers instituted litigation at the behest and in collusion with the buyers---Collusion between said party and the buyers and their mala fide conduct showed that they tried to squeeze the sellers from all four corners instead of honouring the terms of the agreement in its letter and spirit in a fair and equitable manner---Buyers were not entitled for the specific performance of agreement in question due to their conduct and default, however, keeping in view the offer made by the sellers, buyers were awarded compensation of Rs.5 million in addition to the earnest money paid by them in terms of the agreement---Appeal was allowed accordingly.

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

----S. 22---Discretion of court as to decreeing a suit for specific performance---Principles---Relief of specific performance of agreement was purely discretionary in nature and the court was not bound to grant such relief merely on the basis that it was lawful to do so---At the same time, the discretion to be exercised by the court should not be arbitrary, but it should be based on sound and reasonable analysis of the relevant facts of each case, guided by judicial principles and capable of correction by a court of appeal---Peculiar facts and circumstances of each case, particularly, the terms of the agreement between the parties, its language, their subsequent conduct and other surrounding circumstances, would enable the Court to decide whether the discretion in terms of S.22 of Specific Relief Act, 1877 ought to be exercised in favour of specific performance or not.

----Ss. 19 & 22---Suit for specific performance of contract---Power of court to award compensation in certain cases---Scope---Court while excercising its discretion to decree a suit for specific performance could award reasonable compensation to the parties, keeping in view the other surrounding circumstances, such as rate of inflation having direct bearing on the value of suit property, inordinate delay/passage of time, and change in the circumstances or status of the subject property etc.

(d) Agreement---

----Instrument, interpretation of---Principles---For proper comprehension and insight into an instrument it was to be read as a whole and where its language was simple, clearly understandable and capable of no ambiguity, then the intention of the parties to such instrument was to be gathered from its contents alone without adverting to any other extraneous consideration and in normal course it should have precedence over any other option.

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

----S. 22---Limitation Act (IX of 1908), First Sched. Art. 133---Suit for specific performance of agreement in respect of immoveable property---Discretion of court to decree such a suit---Scope---Conduct of parties subsequent to execution of agreement, relevance of---Agreement to sell immovable property was executed on 2-4-1979 after payment of earnest money--- Deadline for payment of balance sale consideration was agreed as 10-5-1979 between the parties with the stipulations that in case of failure to pay balance consideration by the said date agreement would stand cancelled, and that in case seller resiled from the agreement then the buyer would have a right to seek specific performance of the agreement through a court of law---Buyer failed to pay balance consideration by the said deadline---Vendor sent notice to buyer cancelling the agreement---Buyer instead of replying to the notice instituted a suit for specific performance of agreement on 7-10-1980---Held, mere willingness of a party (buyer) to seek specific performance of the agreement after a lapse of more than one year and six months from the execution of agreement in question and more than one year and three months from the date of expiry of the stipulated time for payment of balance consideration would not entitle it for the relief of specific performance, for the lone reason that suit so instituted was within the period of limitation--- Illustration.

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

----S. 22---Suit for specific performance of agreement in respect of immoveable property---Agreement stipulating a specific time for its performance---Question as to whether such stipulation of time was essence of the contract---Such question entirely depended upon the specific terms/language of the agreement and the relevant facts and circumstances of each case at the time of entering into the agreement and thereafter, which would enable the court to decide whether the stipulation of specific time for performance of an agreement (was or) was not the essence of the contract or (whether) the court while exercising its discretion in such regard could brush aside such agreed stipulation of timeframe merely for the reason that the agreement related to a transaction involving sale of immovable property.

Gulzarin Kiani, Senior Advocate Supreme Court for Appellants.

Ex-Parte: Respondents Nos. (i), (ii) & (iii).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. 2 to 4.

Date of hearing: 26th September, 2013.

PLD 2014 SUPREME COURT 531 #

P L D 2014 Supreme Court 531

Present: Tassaduq Hussain Jillani, C.J., Khilji Arif Hussain and Sh. Azmat Saeed, JJ

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

Versus

M.Q.M. through Deputy Convener and others---Respondents

Civil Appeals Nos. 38 to 45 of 2014 and Civil Petitions Nos. 26-K to 34-K, 163 and 164-K of 2014.

(On appeal from the judgment of the High Court of Sindh, Karachi dated 26-12-2013 passed in Constitutional Petitions Nos.D-5098, 4559, 4463, 4521, 4803, 5023, 5080, 5091, 5104, 5172, 5294, 5329, 5369, 4724, 4763, 5325 and 5404 of 2013)

(a) Sindh Local Government Act (XLII of 2013)---

----S. 13(1), proviso---Sindh Local Government (Third Amendment) Ordinance (XV of 2013), S. 3---Local Government elections---Declaration of urban and rural areas---Power of Delimitation Officer to declare a rural area as an urban area without prior notice---Constitutionality---Proviso to S.13(1) of Sindh Local Government Act, 2013 provided that Delimitation Officer/Deputy Commissioner during the process of delimitation could declare any area to be rural or otherwise without even a prior notice---Such powers had been delegated without any guideline---Such excessive and arbitrary delegation of power was not only vulnerable to misuse but had been so used---Discretion conferred on the Delimitation Officer in the proviso under challenge was unlimited and rather subjective---Proviso to S.13(1) of Sindh Local Government Act, 2013 was discriminatory and had been added not only to nullify the original context (of S.13 of Sindh Local Government Act, 2013) but also to protect with retrospective effect the orders and acts of the Delimitation Officers---Proviso in question eroded the transparency and fairness of the election process---Supreme Court held that proviso to S.13(1) of Sindh Local Government Act, 2013 was ultra vires of the said Act and the Constitution--- Appeal was dismissed accordingly.

Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 and Corpus Juris Secundum Vol. 82. p.661 ref.

(b) Interpretation of statutes---

----"Reading in" or "reading down" of a statute---Object and principles---At the time of "reading down" of a statute two principles had to be kept in view; first that the object of 'reading down' was primarily to save the statute and in doing so the paramount question would be whether in the event of reading down, could the statute remain functional; second, would the legislature have enacted the law, if that issue had been brought to its notice which was being agitated before the court.

----"Proviso"---Proviso could not be construed to nullify the enacted clause.

Dr. Muhammad Anwar Kurd v. The State through Regional Accountability Bureau, Quetta 2001 SCMR 1560 ref.

(d) Sindh Local Government Act (XLII of 2013)---

----Ss. 18(12) & (14)---Sindh Local Government (Third Amendment) Ordinance (XV of 2013), S. 4(c)---Constitution of Pakistan, Art. 25---Local Government elections---Contesting candidates---Mandatory requirement for contesting candidates to form a panel---Constitutionality---In terms of S. 18(12) of Sindh Local Government Act, 2013, a panel system had been introduced in the Union Council or a Union Committee and in S.18(14) it had been provided that if a political party or independent candidates failed to form a panel for contesting the elections, the nomination papers of all such candidates or nominees of a political party shall be deemed to have been rejected---Such requirement of forming a panel and in the event of failure to do so, the penalty of rejection of nomination papers on the face of it appeared to be a clog on the fundamental right provisions of the Constitution (Article 25)---Supreme Court declared that Ss.18(12) & (14) of Sindh Local Government Act, 2013 [added by S.4(c) of Sindh Local Government (Third Amendment) Ordinance, 2013] were violative of the said Act and the Constitution---Appeal was dismissed accordingly.

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

(e) Fundamental Rights---

----'Positive' and 'negative' rights---Distinction---Human rights law made a distinction between positive and negative rights, wherein positive rights usually obliged action and negative rights usually obliged inaction---Positive rights placed a positive duty on the State and included social and economic rights---Negative rights placed a duty on the State not to interfere in certain areas where individuals had rights---Holder of a negative right was entitled to non-interference, while the holder of a positive right was entitled to provision of some good or service---Right holder could thereby exercise his right to act a certain way or not to act a certain way and could exercise his or her freedom of choice within the existing right---Many of the fundamental rights granted by the Constitution pertained to both positive and negative rights.

(f) Constitution of Pakistan---

----Art. 20---Freedom to profess religion and to manage religious institutions---Scope---Freedom to profess religion and to manage religious institutions (Art. 20 of the Constitution) encased the right to both profess a certain religion and not to do so---Said right also placed a duty on the State not to interfere with the religious beliefs and ideologies of individuals.

(g) Constitution of Pakistan---

----Art. 19---Freedom of speech and expression--- Right to remain silent---Scope---Freedom of speech and expression (Art. 19 of the Constitution) encased the right of an individual to express his views and opinions and engage in dialogue without fear of misplaced sanctions and State intervention, but simultaneously (included) the right to remain silent.

(h) Constitution of Pakistan---

----Art. 218---Election Commission, neutrality of---Election Commission was a Federal Institution which did not represent any of the Governments.

(i) Words and phrases---

----"Conduct"---Meaning.

Black's Law Dictionary, Sixth Edition ref.

(j) Words and phrases---

----"Organize"---Meaning.

Black's Law Dictionary, Sixth Edition ref.

(k) Sindh Local Government Act (XLII of 2013)---

----Ss. 10 & 11---Constitution of Pakistan, Arts. 25, 140A(2), 218(3) & 222(b)---Election Commission, powers of---Local Government elections---Delimitation of constituencies/electoral units, process of---Part of holding and organizing elections---Sindh Local Government Act, 2013 empowering the Provincial Government to delimit constituencies for Local Government elections---Constitutionality---Process of delimitation of constituencies for an election was one of the important steps to organize and conduct elections because it was only with reference to a constituency that a candidate would exercise his right/option to contest and a voter would exercise his right to vote---Fair elections would mean fair representation and delimitation of constituencies was a foundational step towards such end---Being one of the fundamental steps to hold fair elections, process of delimitation of constituencies had to be carried out by a body which was neutral and credible---Need for a neutral body to carry out the delimitation exercise was imperative because there were instances when in the said process the voting strength of a community, a minority or an ethnic group was diluted, which would be violative of the equality clause enshrined in the Constitution---Delimitation of constituencies of the Local Government was part of the process of organizing and holding elections honestly, justly and fairly which was the constitutional mandate of the Election Commission---Power to carry out such delimitation should vest with the Election Commission--- Supreme Court directed that the Federal Government should make necessary enactments to empower the Election Commission to carry out the delimitation of constituencies of Local Governments; that the Provincial Government should also make necessary corresponding amendments in the Sindh Local Government Act, 2013; that such exercise should be completed within a period of five months and the Election Commission shall thereafter take requisite measures to carry out the process of delimitation of constituencies for the Local Government expeditiously so as to complete the same within a period of 45 days of the enactment/amendments in laws in terms of the present order; that the Election Commission shall further ensure that the announcement of election schedule and the process of holding it was complete by or before 15th of November, 2014---Appeal was dismissed accordingly with the observation that the elections to Local Governments in province of Balochistan had already been held on the basis of delimitation of constituencies carried out by the Provincial Government, and since present judgment was prospective, it shall not, in any manner, affect the validity of the said election.

Worker Party Pakistan through Akhtar Hussain Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2012 SC 681 and State of Madhya Pradesh and others v. Devilal AIR 1986 SC 434 ref.

(l) Interpretation of Constitution---

----Principle---Constitution of a country was a living organism and a particular provision, a term or word had to be interpreted dynamically and purposively with a view to achieve the constitutional intent.

Hanrietta Muir Edwards and others v. Attorney General for Canada and others JC 1929, 1930 AC) ref.

(m) Constitution of Pakistan---

----Art. 222(b)---Local Government elections---Delimitation of constituencies---Power of Majlis-e-Shoora (Parliament) to provide law for "the delimitation of constituencies by the Election Commission"---Scope---Such power would include the delimitation of constituencies of Local Government.

(n) Sindh Local Government Act (XLII of 2013)---

----Sched. 1, Pt. C---Sindh Local Government (Third Amendment) Ordinance (XV of 2013), S. 8 ---"One man one vote", principle of---Scope---Equality of representation, principle of---Scope---Population limit/figure of Union Council in the Metropolitan Corporation---Said limit/figure was amended by way of S.8 of Sindh Local Government (Third Amendment) Ordinance, 2013 and limit of 40,000 to 50,000, was substituted with 10,000 to 50,000---Legality---Such variation in (population limit of) constituency was violative of the principle of 'one man one vote' and equality of representation---Such amendment in population figures made in Sched. I, Part C of Sindh Local Government Act, 2013 was violative of the Constitution---Appeal was dismissed accordingly.

Nawaz Sharif's case PLD 1993 SC 373; Wesbery v. Sanders [376 US 1 (1964); Kirkpatrick v. Preisler [394 US 526 (1969)]; Mobile v. Bolden [446 US 55 (1980)] and Davis v. Bandermer [(478 US 109 (1986) ref.

(o) Constitution of Pakistan---

----Arts. 17, 18, 19, 25 & 51(2)---Right to vote---Fundamental right---Right to vote was a fundamental right and not a statutory right.

James P. Wesberry v. Carl E. Sanders 1964 376 US 1 ref.

(p) Vires of a statute---

----Law or provision of law not in conformity with the constitutional provisions---Court could declare such law or provision of law as ultra vires of the Constitution, and could issue appropriate directions to the Government to bring the law in conformity with constitutional provisions.

Government of Balochistan through Additional Chief Secretary v. Azizullah Memon PLD 1993 SC 341; Al-Jehad Trust through Habibul Wahab Al-Khairi Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad 1999 SCMR 1379 and Khan Asfandyar Wali and others Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 ref.

Farook H. Naik, Advocate Supreme Court, assisted by Barrister Shiraz Shaukat Rajpar, Abdul Fateh Malik, A.G., Sindh and Adnan Karim, Addl. A.-G. Sindh for Appellants (in C.As.38-45/14) and C.Ps. 26-K to 34-K of 2014).

Barrister Farogh Naseem, Advocate Supreme Court for Respondent (in C.A.38 of 2014).

Syed Mureed Ali Shah, in person (In C.A.39 of 2014 and Petition in C.P. No.163 of 2014).

Syed Zafar Ali Shah, in person (in C.A. 42/14 and Petitioner in C.P. 164/14).

FOR E.C.P:

Munawar Baig, in person (in C.A. 45/2014).

N.C.Motiani, Advocate Supreme Court,/Advocate-on-Record (for Resps.Nos.1 and 2 in C.A. 43/14), for Resp.No.1 in CA 44/14) (for Resp.No.1 in C.P. 27-K/14) (for the Applicant in C.M.A. 241/14).

Akhtar Hussain, Advocate Supreme Court (for Resps.Nos.1 and 2 in C.A. 43/14) (for Resp.No.1 in C.A. 44/14).`

Ishtiaq Ahmed Khan, Secretary and Sher Afghan, Addl. Secretary, E.C.P.

Salman Aslam Butt, AG Pakistan (on Court Call).

Kh. Haris Ahmed Senior Advocate Supreme Court, Makhdoom Ali Khan, Senior Advocate Supreme Court,Assisted by Khurram Hashmi, Advocate Supreme Court: Amici Curiae.

Dates of hearing: 11th, 12th, 13th, 17th, 18th, 19th, 20th and 21st of February, 2014.

CIVIL PETITIONS NOS. 163 AND 164 OF 2014

Syed Mureed Ali Shah and Syed Zafar Ali Shah, both in person (Petitioners).

Ishtiaq Ahmed Khan, Secretary and Sher Afgan, Addl. Secretary, E.C.P.

Farook H. Naik, Advocate Supreme Court assisted by Barrister Shiraz Shaukat Rajpar, Abdul Fateh Malik, A.G. Sindh and Adnan Karim, Addl. A.-G. Sindh for Government of Sindh.

For Respondent

N.C. Motiani, ASC/AOR (for Resps. Nos.1 and 2 in CA 43 of 2014), for Resp. No.1 in C.A. 44 of 2014), for Resp. No.1 in C.P. 27-K of 2014), (for the Applicant in C.M.A. 241 of 2014 in C.A. 38/2014).

Akhtar Hussain, Advocate Supreme Court (for Resps.Nos.1 and 2 in C.A. 43 of 2014), (For Resp.No.1 in C.A. 44 of 2014).

Salman Aslam Butt, Attorney General on Court Notice.

Kh. Haris Ahmed, Senior Advocate Supreme Court, Makhdoom Ali Khan, Senior Advocate Supreme Court assisted by Khurram Mumtaz Hashmi, Advocate Supreme Court, Saeed Mumtaz Hashmi, Advocate Supreme Court and Barrister Zarnab: Amici Curiae:

Dates of hearing: 18th, 19th, 20th and 21st February, 2014.

PLD 2014 SUPREME COURT 585 #

P L D 2014 Supreme Court 585

Present: Tassaduq Hussain Jillani, C.J., Nasir-ul-Mulk, Jawwad S. Khawaja, Anwar Zaheer Jamali, Khilji Arif Hussain, Mian Saqib Nisar, Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Amir Hani Muslim, Ijaz Ahmed Chaudhry, Gulzar Ahmed. Sh. Azmat Saeed, Iqbal Hameedur Rahman and Mushir Alam, JJ

Gen. (R.) PARVEZ MUSHARRAF---Petitioner

Versus

NADEEM AHMED (ADVOCATE) and another---Respondents

Civil Review Petitions Nos. 328 and 329 of 2013 in Constitutional Petitions Nos. 8 and 9 of 2009.

Per Tassaduq Hussain Jillani, CJ.

(a) Proclamation of Emergency dated 3-11-2007-

----Provisional Constitution Order [1 of 2007], Preamble---Oath of Office (Judges) Order, 2007, Preamble---Constitution of Pakistan, Art.188---Limitation Act (IX of 1908), Ss. 3 & 5---Review of Supreme Court judgment---Limitation---Review petition barred by time--- Contumacious conduct of petitioner---Effect---Petitioner filed present review petition seeking review of judgment of the Supreme Court titled Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 789)--- Review petition was barred by 1576 days---Petitioner sought condonation of delay in filing present review petition on the grounds that after resigning from office of President he left for abroad as he was having security threats to his life and he was not in a position to come to Pakistan and file the review petition; that the Chief Justice of the Supreme Court at that time, who presided over the Bench (which delivered the judgment under review) had personal enmity, bias and grudge against him, thus he did not expect any justice as long as the said former Chief Justice was in office; that after superannuation of said former Chief Justice of the Supreme Court present review petition had been filed without any delay, and as such the delay caused in filing of the review petition was beyond the control of the petitioner---Validity---Grounds pressed by petitioner for condonation of delay were not sufficient because, first he could have appeared during hearing of the case under review and asked that Chief Justice of the Supreme Court at that time, against whom bias was alleged, should not hear the case; second even after the pronouncement of the judgment under review he could file review petition and could have requested the Court that the then Chief Justice who presided over the Bench should not hear the review petition and may recuse himself; and third in the judgment under consideration despite the finding that the imposition of State of Emergency by the petitioner (Chief of Army Staff) was unconstitutional and void, the Court did not direct the trial of the petitioner under Art. 6 of the Constitution; if there was bias there could have been directions to such effect; and fourth the Bench which disposed of the petition(C.P. No. 2255 of 2010 reported at 2013 SCMR 1683) in view of the undertaking given by the Federal Government that it shall proceed against the petitioner under Art. 6 of the Constitution was not presided over by the then Chief Justice against whom bias was alleged---For two to three years, the question of petitioner's trial in the light of the judgment under review remained pending either before the High Court or before the Supreme Court but petitioner never filed any application for review of the judgment--- Such conduct was reflective of an element of contumacy which did not warrant indulgence in review jurisdiction--- Petitioner had failed to show a cause or reason sufficient in law to condone such an inordinate delay--- Present review petition merited dismissal for being barred by time--- Review petition was dismissed accordingly.

Federation of Pakistan v. Mian Muhammad Nawaz Sharif PLD 2009 SC 644 and Muhammad Nawaz Sharif v. The State PLD 2009 SC 814 distinguished.

(b) Limitation---

----Void order---Limitation would run even against a void order and would be computed from the date of knowledge.

Muhammad Raz Khan v. Government of N.-W.F.P. PLD 1997 SC 397; Qaiser Mushtaq Ahmad v. Controller of Examination PLD 2011 SC 174 and Messrs Blue Star Spinning Mills v. Collector of Sales Tax 2013 SCMR 387 ref.

----Condonation of delay---Scope---"Audi alteram partem", principle of---Scope and applicability---Principle of audi alteram partem or that nobody should be condemned unheard was a principle of natural justice, however facts of each case had to be considered before delay could be condoned and such principle could not be made an inflexible rule to give license to someone who knowing fully well that a lis was pending against him or that a judgment had been passed against him refused to appear and when the judgment was passed failed to challenge the same in time.

(d) Proclamation of Emergency dated 3-11-2007-

----Provisional Constitution Order [1 of 2007], Preamble---Oath of Office (Judges) Order, 2007, Preamble---Constitution of Pakistan, Art.188---Review of Supreme Court judgment---Review petition seeking review of judgment of the Supreme Court titled Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 789)---Serving of notice, requirement of---Defendant residing outside Pakistan---Notice sent to defendant's address in Pakistan---Notice widely published and televised---Effect---Plea of petitioner that a notice was sent to him at his residence in Pakistan, whereas it was known to everybody that he was abroad and was being subjected to life threats and could not come to Pakistan; that no step had been taken for proper service of notice to him---Validity---Court had issued a notice to petitioner on his available address in Pakistan and when from there it transpired that he was abroad, the notice was widely published and televised--- Judgment under review specifically mentioned that a notice was issued to the petitioner on his available address intimating him about the proceedings; that the Process Serving Officer had gone to the residential place of petitioner in Pakistan, where a person was present but he refused to receive the notice; that the factum of issuance of the said notice was widely televised through national and international television channels, and, it was also widely published in national and international print media--- Even otherwise, it had never been the case of the petitioner, not even in the body of present review petition that he was not aware of the pendency of proceedings which culminated in the judgment under review--- Plea of petitioner regarding non-serving of proper notice to him was misplaced--- Review petition was dismissed accordingly.

(e) Proclamation of Emergency dated 3-11-2007-

Federation of Pakistan v. Muhammad Akram Shaikh PLD 1989 SC 689; Gullapalli Negeswararao etc. v. The State of Andhra Pradesh and others AIR 1959 SC 1376 and Ranjit Thakur v. Union of India and others AIR 1987 SC 2386 ref.

Asif Ali Zardari v. The State PLD 2001 SC 568 distinguished.

(f) Proclamation of Emergency dated 3-11-2007-

----Provisional Constitution Order [1 of 2007], Preamble---Oath of Office (Judges) Order, 2007, Preamble---Constitution of Pakistan, Arts.48 & 188---Supreme Court Rules, 1980, O. XXVI, R. 1---Review of Supreme Court judgment---Review petition seeking review of judgment of the Supreme Court titled Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 789)---Grounds---Order XLVII of C.P.C. stipulated that a party may apply for review if it was aggrieved by the orders or decrees, or decisions mentioned in sub clauses (a), (b), (c) of R.1 on three grounds namely, discovery of new and important matter or evidence which, after the exercise of due diligence was not within its knowledge or could not be produced by it at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason--- View taken by the court in the judgment under review was that petitioner (in his capacity as Chief of Army Staff) could not have imposed emergency as he had no power under the Constitution to do so; that the former Prime Minister had addressed a letter to the President and not to the Chief of Army Staff about the deteriorating law and order situation and orders of some of the Judges of the Supreme Court which according to him were not appropriate in the given circumstances in the country---Full Bench of the Supreme Court had unanimously declared the actions taken by the petitioner to be void ab initio and non est---Findings of the Supreme Court in the judgment under review could not have been subject matter of review as neither there was any discovery of new or important matter or evidence which after the "exercise of due diligence" was not within the knowledge of the petitioner or could not be produced by him at the time when the judgment under review was passed---Petitioner's counsel admitted, first, that the then Prime Minister had written a letter to the President and not to the Chief of Army Staff; second that the Prime Minister had not advised him (the petitioner) to impose the State of Emergency rather "the petitioner acted in his own discretion"---Question was as to how could petitioner in his capacity as Chief of Army Staff or even as President act on his own discretion---Petitioner had no power under the law to impose State of Emergency and make Judges of the Supreme Court and High Courts dysfunctional notwithstanding the mandate of Art. 48 of the Constitution--- Review petition was dismissed accordingly.

Lt. Gol. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and others PLD 1962 SC 335; Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363; Justice Sajjad Ali Shah v. Malik Asad Ali 1999 SCMR 640 and Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 ref.

(g) Constitution of Pakistan---

----Art. 6---High treason, offence of---Aspects---Violation of Art. 6 of the Constitution had two aspects/consequences i.e. constitutional and criminal.

(h) Constitution of Pakistan---

----Art. 6---Criminal Law Amendment (Special Courts) Act (XVII 1976), Preamble--- High treason, offence of--- Discretion to direct trial for High treason--- Such discretion laid with the Executive.

(i) Proclamation of Emergency dated 3-11-2007-

----Provisional Constitution Order [1 of 2007], Preamble---Oath of Office (Judges) Order, 2007, Preamble---Constitution of Pakistan, Arts.12 & 188---Supreme Court Rules,1980, O. XXVI, R. 1---Review of Supreme Court judgment---Review petition seeking review of judgment of the Supreme Court titled Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 789)---Grounds---Judgment under review was delivered by the Supreme Court on 31-7-2009 wherein the court declared that acts taken by petitioner in imposing emergency in the country on 3-11-2007 were void ab initio and non est---Plea of petitioner that judgment under review had the effect of giving retrospective effect to Art. 6 of the Constitution---Validity---Neither the question of petitioner's trial or the retrospective or prospective effect of Art.6 of the Constitution were moot points in the judgment under review, thus the plea of petitioner regarding the same was misplaced--- Review petition was dismissed accordingly.

Per Jawwad S. Khawaja, J; agreeing with Tassaduq Hussain Jillani, C.J.

(j) Proclamation of Emergency dated 3-11-2007-

----Provisional Constitution Order [1 of 2007], Preamble---Oath of Office (Judges) Order, 2007, Preamble---Constitution of Pakistan, Art.188---Review of Supreme Court Judgment---Review petition seeking review of judgment of the Supreme Court titled Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 789)--- Bias in a judge---Scope---Plea of petitioner that Bench of Supreme Court which delivered the judgment under review was presided over by the then Chief Justice, who had a bias against the petitioner; that petitioner had filed a reference against the then Chief Justice and removed him from office and put him under house arrest, as such the bias and enmity between the then Chief Justice and petitioner was obvious and therefore, the former was disqualified to hear and decide the matter concerning him; that the then then Chief Justice acted as a "judge in his own cause", as such the judgment under review was a nullity---Validity---Counsel for petitioner failed to provide evidence of any act of the former Chief Justice which established his bias against the petitioner---In the absence of any factual assertion of actual bias, it could only be said that there was in fact no basis for such allegation---Petitioner's acts of filing reference against the then Chief Justice, removing him from office unlawfully and putting him under house arrest, showed a bias harboured by the petitioner against the then Chief Justice but not the other way round---If a subjective perception of bias could be made a basis for recusal of a Judge merely because the petitioner had done things or had taken unconstitutional steps against the former Chief Justice, it would be very simple for any litigant not wanting his case to be heard by a particular Judge to start hurling abuses at such Judge and thereafter to claim that the Judge was biased against him---Inference (of bias), if any, was to be drawn not in relation to the Court or the alleged bias of the then Chief Justice, but it was to be drawn in relation to the petitioner himself--- Petitioner, perhaps on account of his long service in the armed forces, may not have encountered dissent, disagreement or resistance to orders issued in a chain of command, necessary for a cohesive fighting force--- Petitioner may, therefore, in his own mind, have considered the resistance to his unconstitutional Proclamation of Emergency, by the Judiciary of the country including the former Chief Justice, as a manifestation of disobedience or insubordination and thus ill will or animus against him--- Actions and conduct of the then Chief Justice on the contrary, demonstrated a dignified restraint such that even after being twice unlawfully prevented from performing his constitutional duties, orders (including the judgment under review) were not passed by him or by the Supreme Court which could be considered as having been made in respect of the petitioner in a personal capacity---Judgment under review was rendered by 14 Judges of the Supreme Court who held acts of the petitioner to be unconstitutional---Supreme Court was called upon to decide constitutional questions concerning the affairs of the State---Such questions were much bigger than the person of the petitioner and the same were decided in accordance with the Constitution---Accepting petitioner's plea of bias would be akin to saying that a judge who decided against the constitutionality of actions taken by a State functionary, thereby demonstrated impermissible bias against such functionary rendering the Judge incapable of hearing cases involving such functionary---Proclamation of Emergency by the petitioner did not target the former Chief Justice alone, it targeted the Judiciary of the country, and 14 Judges of the Supreme Court Bench which heard the judgment under review were direct 'affectees' of the unconstitutional Proclamation of Emergency---Plea of petitioner that the then Chief Justice acted as a "judge in his own cause" was thus fallacious; if the then Chief Justice acted in his own cause by hearing the judgment under review, then so did other Judges on the Bench---Review petition was dismissed accordingly.

Ghulam Rasool v. Crown PLD 1953 FC 62; Anwar v. Crown PLD 1955 FC 185 and Asif Ali Zardari v. State PLD 2001 SC 568 distinguished.

(k) Bias in a judge---

----"Actual bias" and "reasonable perception of bias"---Distinction and scope---Assertion of bias against a Judge could take two forms recognized by law viz. 'actual' bias and 'reasonable perception' of bias even though there may be no actual bias---Actual bias was alleged on the basis of one or more specific incidents showing partiality or animosity amounting to bias---To demonstrate such bias, a factual averment had to be made in the pleadings of the party alleging it---Question as to whether the factual allegation was true or not, would not arise if the relevant fact had not been pleaded---Perception of bias, without there being actual bias ("reasonable perception of bias") was also recognized by law but again it had to be founded on a more solid footing than allegations which were imaginary or which were based on a subjective opinion divorced from objective reality.

Metropolitan Properties, Ltd. v. Lannon [(1968) 3 All E.R.304 ref.

(l) Administration of justice---

----Allegation of bias made by litigant---Judge recusing himself from the case--- Scope--- Courts were required to proceed on the basis of objective/rational standards and not on the basis of unfounded subjective opinions or on the basis of assumed perceptions of bias (alleged by a litigant) which may border on paranoia---Judges did encounter allegations of bias and also received criticism some of which may be expressed in civil language while others may be through hate speech or outright vilification based on malice---In either event, the Judge by training did not allow such vilification to cloud his judgment in a judicial matter---Even extremely derogatory language used against Judges does not, by itself create bias---Courts, therefore, could not decide questions of perceived bias by accepting the individual and personal views of an aggrieved petitioner and thus recuse from a case.

(m) Constitution of Pakistan---

----Arts. 184, 185 & 188---Supreme Court, jurisdiction of---Case involving important constitutional questions of national importance---Allegation of bias and partiality against the judiciary---Necessity to hear the case---Even if there were no Judges who could satisfy the impartiality litmus test, the Court could not justifiably stand back and ignore the crucially important constitutional questions of national importance raised in a judgment---Court, therefore, had to assume jurisdiction since no one else could---Illustration.

Federation of Pakistan v. Muhammad Akram Shaikh PLD 1989 SC 689 ref.

For Petitioner

Syed Sharif ud Din Pirzada, Senior Advocate Supreme Court, assisted by Ch Faisal Hussain, Advocate, Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court, assisted by Shazia Yasin, Advocate and Osman Ibrahim, Advocate, Dr. Khalid Ranjha, Senior Advocate Supreme Court, Ahmed Raza Kasuri, Senior Advocate Supreme Court,, Barrister Muhammad Ali Saif, Advocate Supreme Court and Syed Zafar Abbas Naqvi, Advocate-on-Record.

For Respondents

Rasheed A. Rizvi, Advocate Supreme Court/Caveator, Asim Iqbal, President Sindh High Court Bar Association.

Dates of hearing: 28th, 29th and 30th January, 2014.

PLD 2014 SUPREME COURT 650 #

P L D 2014 Supreme Court 650

Present: Jawwad S. Khawaja, Gulzar Ahmed and Mushir Alam, JJ

INDEPENDENT MEDIA CORPORATION---Applicants

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.M.A. No.2774 of 2014 in Constitutional Petition No.51 of 2010, decided on 22nd May, 2014.

(Application for revival of Constitutional Petition)

(a) Constitution of Pakistan---

----Arts. 178, 209(8) & Third Sched.---Code of Conduct for Judges of the Supreme Court and High Courts, Art.4---Impartiality of a Bench---"Near relative" of a Judge---Judge related to one of the litigants---Recusal of a judge from hearing such a case---Scope---Judge himself had to make a determination as to whether or not his relationship with any other person was such that he should not hear a particular case in which such person was a party---Only such persons could trigger recusal of a Judge who were considered to be close by a Judge---Holy Qur'an directed Judges to act fairly, justly and impartially even if they were hearing cases involving their own relatives---Article 4 of the Code of Conduct for Judges of the Supreme Court and High Courts or Oath of Office of Judges of the Supreme Court (Art.178 of the Constitution) or the verses from the Holy Qur'an did not impose a bar on a Judge from hearing cases unless there was cause under Art.4 of the said Code of Conduct--- Conscience of the Judge himself must determine his decision whether to sit on a Bench or not.

CRPs. 328 and 329 of 2013 ref.

(b) Constitution of Pakistan---

----Arts. 178, 209(8) & Third Sched.---Code of Conduct for Judges of the Supreme Court and High Courts, Art.4---Impartiality of a Bench---"Near relative" of a Judge---Scope---Judge related to one of the litigants---Judge refusing to recuse himself from hearing such a case---Scope---Sister of litigant in question was married to the Judge's brother---Concerned Judge stated that he could not recall the last time he met said litigant, it may have been 20 years ago or 16 years ago or perhaps at some occasion, which he could not recall, and that he had no basis for regarding or treating said litigant as a "near relative"---Judge himself had to make a determination as to whether or not his relationship with any other person was such that he should not hear a particular case in which such person was a party---Concerned Judge did not find any reasons whatsoever not to sit on the Bench of the present case--- Objection regarding constitution/impartiality of the present Bench was repelled accordingly.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Applicants.

Salman Aslam Butt, Attorney General for Pakistan and Khawaja Ahmed Hosain, D.A.G. on Court's Call.

Sabir Shakir, Bureau Chief, ARY News Islamabad appeared Voluntarily.

Zahid Malik, Legal Head for PEMRA

Date of hearing: 22nd May, 2014.

PLD 2014 SUPREME COURT 657 #

P L D 2014 Supreme Court 657

Present: Jawwad S. Khawaja and Gulzar Ahmed, JJ

INDEPENDENT MEDIA CORPORATION and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Miscellaneous Application No.2774 of 2014 in Constitutional Petition No.51 of 2010, decided on 20th May, 2014.

(For revival of Constitution Petition)

(a) Constitution of Pakistan---

----Arts. 28 & 251---

Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407 and Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 ref.

(b) Constitution of Pakistan---

----Arts. 178, 209(8) & Third Sched.---Code of Conduct for Judges of the Supreme Court and High Court, Art.4.

Al-Quran Sura Al-Nisa Ayat No.138 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court assisted by Faraz Raza, Advocate for Applicant/Petitioners.

Mubashar Luqman, Anchor ARY Voluntary appeared.

Salam Aslam Butt, A.G.P., Kh. Ahmed Hosain, D.A.G., Hafiz S.A. Rehman, Senior Advocate Supreme Court, Aftab Sultan, D.G.,L.B. and Shahid Khan, Secretary, Ministry of Interior On Court's Call.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Zahid Malik, Legal Head for PEMRA.

Nemo for other Respondents.

Date of hearing: 26th May, 2014.

Date of hearing: 26th May, 2011.

PLD 2014 SUPREME COURT 666 #

P L D 2014 Supreme Court 666

Present: Jawwad S. Khawaja and Mushir Alam, JJ

INDEPENDENT MEDIA CORPORATION---Petitioners

Versus

FEDERATION OF PAKISTAN---Respondents

Civil Miscellaneous Application No.2774 of 2014 in Constitutional Petition No.51 of 2010, decided on 28th May, 2014.

Constitution of Pakistan---

----Art. 19---

Sulman Aslam Butt, Attorney General for Pakistan On Court's Notice.

Khuda Yar Mohla, Saddar Press Association, Supreme Court, Matiullah Jan, Member, Press Association Supreme Court Self Attendances.

Date of hearing: 28th May, 2014.

PLD 2014 SUPREME COURT 668 #

P L D 2014 Supreme Court 668

Present: Tassaduq Hussain Jillani, C.J., Khilji Arif Hussain and Sh. Azmat Saeed, JJ

ELECTION COMMISSION OF PAKISTAN through Secretary---Appellant

Versus

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

Civil Appeal No.297 of 2014, decided on 19th March, 2014.

(On appeal from the judgments dated 3-2-2014 passed by the Lahore High Court, Lahore in W.P. No.31986 of 2013 etc.)

(a) Constitution of Pakistan---

----Arts. 140A(2), 218(3) & 222(b)---Local Government Elections---Delimitation of constituencies---Election Commission of Pakistan, powers of---Scope---Election process---Scope---Delimitation of constituencies was part of the election process and it should be done by the Election Commission---Delimitation of constituencies of the Local Government was part of the process of organizing and holding elections honestly, justly and fairly which was the constitutional mandate of the Election Commission---Power to carry out such delimitation should vest with the Election Commission.

Province of Sindh through Chief Secretary and others v. M.Q.M. through its Deputy Convener (Civil Appeals Nos.38 to 45 of 2014 and Civil Petitions Nos. 26-K to 34-K, 163 and 164 of 2014) (PLD 2014 SC 531) ref.

(b) Punjab Local Government Act (XVIII of 2013)---

----Ss. 8, 9 & 10---Punjab Local Governments (Delimitation) Rules, 2013, Rr. 3, 4, 5, 6, 7 & 8---Constitution of Pakistan, Arts. 140A, 218(3), 219(d) & 222(b)---Local Government Elections---Delimitation of constituencies---Power to delimit constituencies conferred on the Provincial Government at the exclusion of the Election Commission of Pakistan by virtue of Ss. 8, 9 & 10 of Punjab Local Government Act, 2013---Constitutionality---Power to hold elections of the Local Government stood vested in the Election Commission in terms of Art.140A of the Constitution--- Delimitation of constituencies of the Local Government was part of the process of organizing and holding elections honestly, justly and fairly which was the constitutional mandate of the Election Commission---Power to carry out such delimitation vested with the Election Commission---Process of delimitation of constituencies for an election was one of the important steps to organize and conduct elections because it was only with reference to a constituency that a candidate would exercise his right/option to contest and a voter would exercise his right to vote---Sections 8 to 10 of the Punjab Local Government Act, 2013 and the relevant Rules framed thereunder were ultra vires of the Constitution in so far as they empowered the Provincial Government to carry out the delimitation of the constituencies for the Local Government---Supreme Court directed that Governments, Federal and Provincial (of Punjab) should carry out appropriate amendments/legislation to empower the Election Commission to initiate and carry out the process of delimitation of constituencies for the Local Government elections, and such exercise should be completed within a period of five months; that the Election Commission should thereafter take requisite measures to carry out the process of delimitation of constituencies for the Local Government expeditiously so as to complete the same within a period of 45 days of the enactment/ amendments in laws in terms of present order; that the Election Commission should further ensure that the announcement of election schedule and the process of holding the same was complete by or before 15th of November, 2014---Appeal was disposed of accordingly.

----Art. 222(b)---Local Government elections---Delimitation of constituencies---Power of Majlis-e-Shoora (Parliament) to provide law for "the delimitation of constituencies by the Election Commission"---Scope--- Such power would include the delimitation of constituencies of Local Government.

Muhammad Akram Sh. Senior Advocate Supreme Court assisted by Moazzam Habib, Advocate Faraz Raza, Advocate, Mehmood A. Sheikh, Advocate-on-Record, Sher Afghan, D.G. ECP and Abdur Rehman, Law Officer for Appellant.

Mustafa Ramday, A.G., Ch. Muhammad Hanif Khattana, Addl. A.G., Punjab, Razzaq A. Mirza, Addl. A.G., Punjab, Barrister Waseem Qureshi, Addl. A.G., Muhammad Azhar Siddiqui, Advocate Supreme Court for Respondents, Muhammad Saleem, Asstt. Director, Local Government Bhakkar, Haq Nawaz, Muhammad Khan, Muhammad Fakhar-uz-Zaman and Muhammad Sarwar Respondents in person.

Salman Aslam Butt, Attorney General, S.M. Attique Shah, Addl. Attorney General and Sajid Ilyas Bhatti, Dy. Attorney General (On Court Call;)

Dates of hearing: 17th to 21st February, 2014 and 3rd, 4th, 12th, 13th and 19th March, 2014.

PLD 2014 SUPREME COURT 680 #

P L D 2014 Supreme Court 680

Present: Mian Saqib Nisar and Ejaz Afzal Khan, JJ

REHMAT ALI through Legal Representatives---Appelant

Versus

MUHAMMAD YOUNIS and others---Respondents

Civil Appeal No.1291 of 2008, decided on 9th April, 2014.

(On Appeal from the judgment dated 13-12-2002 of the Lahore High Court, Lahore passed in C.R.No.625 of 1994)

(a) Interpretation of Statutes---

----"Saving clause" in a statute---Scope and principles.

Saving clause was usually inserted where one law was replaced or repealed by another law/enactment on the same subject while the scope and the purport of both the laws remained the same, therefore the effect of such saving clause was that the rights earned under the erstwhile law were secured, and those were retained and kept intact as if the second statute had not been passed.

Saving clause as its name implied was a clause which was enforced in a statute, in order to protect or save the rights of a person which he may have acquired under the then existing law. However, to use a saving clause for construing the Act, or for extending it so as to give a wider scope to the Act, amounted to ignoring the very purpose for which it was inserted.

Ordinarily, the saving clause found in the enactments on the same subject, repealed earlier enactment/law; saved the pending lis along with the rights of the persons accrued to them under the repealed laws; and/or simply mandated that all suits pending under the erstwhile law shall be decided as per that law.

Arnold v. Mayor of Gravsand Corporation (1856) 69 ER 911, Thompson Bedford v. Teal (1890) 45 Ch.D 161: Halsbury's Laws of England 4th Edn. Vol.44, p.539 and Gulab Chand v. Kudi Lal, AIR 1951 MB 1 ref.

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

----Ss. 35(1)& (2)---Suits for pre-emption, instituted or pending between 1-8-1986 and 28-3-1990---Suits filed during the interregnum (i.e. between 1-8-1986 and 28-3-1990) were only saved and revived under S.35(1) of Punjab Pre-emption Act, 1991 and if said provision was not enforced, the continuation, the saving and the revival of such suits was legally not possible---Interpretation, meaning and application of S.35(1) of Punjab Pre-emption Act, 1991.

(i) Section 35(1) of Punjab Pre-emption Act, 1991 had dispensed with any other law for the time being in force including the common/classic Islamic law

(ii) Suits filed during the interregnum (i.e. between 1-8-1986 and 28-3-1990) were only saved and revived under S.35(1) of Punjab Pre-emption Act, 1991 and if said provision was not enforced, the continuation, the saving and the revival of such suits was legally not possible

(iii) Saving and revival of such suits was not unconditional rather it was circumscribed by the main condition that the right of pre-emption claimed in the earlier suit should be the right available to the pre-emptor under the Punjab Pre-emption Act, 1991 i.e. the statutory right which was conferred by S.6 of the said Act.

(iv) Application for the revival (of suit) should be made within sixty days of the commencement of the Punjab Pre-emption Act, 1991 by the aggrieved person, and such saved and revived suit shall be decided afresh according to the provisions of the said Act. Decision afresh, shall be subject to S.35(2) of Punjab Pre-emption Act, 1991.

----S. 35(1)---Suits for pre-emption, instituted or pending between 1-8-1986 and 28-03-1990---Principles of S.35(1)of Punjab Pre-emption Act, 1991 in letter and spirit shall duly apply to the pending pre-emption suits as well those which were filed under the Islamic common/classical law, and were pending when Ordinances on pre-emption (XVIII of 1990, XXI of 1990, XXVII of 1990, IX of 1991) came into force and finally the Punjab Pre-emption Act, 1991--- All the conditions of S.35(1) of Punjab Pre-emption Act shall be duly attracted to pending suits as well.

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

----S. 6(2) [since declared as repugnant to Injunctions of Islam]---Suits of pre-emption, instituted or pending between 1-8-1986 and 28-3-1990---"Zaroorat' or to avoid 'Zarar", requirement of---No exemption was granted to pre-emption suits filed during the interregnum (period between 1-8-1986 and 28-3-1990) vis-a-vis 'Zarar' and 'Zaroorat'.

(e) Words and phrases---

----"Ipso jure"---Provision of law applicable on the rule of "ipso jure"---Scope---Such provision had to be given immediate effect without recourse to any further action or step.

(f) Constitution of Pakistan---

----Art. 203-D(2), proviso---Judgment of the Federal Shariat Court examining any law under Art.203-D(1)---Such judgment would not be given effect before the disposal of the appeal (against it) by the Supreme Court Shariat Appellate Bench.

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

----S. 6(2) [since declared as repugnant to Injunctions of Islam]---Constitution of Pakistan, Art.203-D(1)---'Zaroorat' or to avoid 'Zarar", requirement of---Date of invalidity---Target date declaring S.6(2) of Punjab Pre-emption Act, 1991 as invalid was 31-12-1993---Section 6(2) of the said Act was valid till 31-12-1993 (after which it effectively became repugnant to Injunctions of Islam).

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 ref.

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

----S. 5---Right of pre-emption---Scope---Pre-emptor was obliged to have a right of pre-emption on the date of sale; the right (of pre-emption) on the date of institution of the suit; hold the said right during the pendency of the suit and must possess it till the passing of the decree i.e. date of the decree.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Appellant.

Ch. Javed Ahmed Sindhu, Advocate Supreme Court for Respondents.

Date of hearing: 6th February, 2014.

PLD 2014 SUPREME COURT 693 #

P L D 2014 Supreme Court 693

Present: Anwar Zaheer Jamali and Ejaz Afzal Khan, JJ

MUHAMMAD AKBAR---Appellant

Versus

SHAZIA BIBI and others---Respondents

Civil Appeals Nos. 34 and 35 of 2014, decided on 4th April, 2014.

(On Appeal from judgment of Lahore High Court, Multan Bench, Multan dated 26-11-2013 passed in Civil Revision No.686-D and W.P. No.12396 of 2011).

Islamic Law---

----Marriage---Dower, quantum of---Non-consummation of marriage between spouses---Effect---Where marriage had not been consummated, the wife was entitled to only half of the fixed dower and the remaining half was to be returned/restored to the husband, unless such right was waived by him voluntarily.

Al-Quran Verse No.237 of Sura Al-Baqra and Ali Ahmad v. Mst. Gulshan and another 1998 SCMR 2347 ref.

Syed Rifaqat Hussain Shah, Advocate Supreme Court for Appellant (in both appeals).

Ch. Pervaiz Akhtar Gujjar, Advocate Supreme Court for Respondents Nos.1 and 2 (in C.A.No.34 of 2014).

Ch. Pervaiz Akhtar Gujjar, Advocate Supreme Court for Respondents No. 3 (in C.A.No.35 of 2014).

Date of hearing: 4th April, 2014.

PLD 2014 SUPREME COURT 696 #

P L D 2014 Supreme Court 696

Present: Jawwad S. Khawaja, Iqbal Hameedur Rahman and Mushir Alam, JJ

LAND ACQUISITION COLLECTOR, SARGODHA and another---Appellants

Versus

MUHAMMAD SULTAN and another---Respondents

Civil Appeal No.2277 of 2006, decided on 8th April, 2014.

(On appeal from the judgment dated 5-10-2006 passed by the Lahore High Court, Lahore in RFA No.146 of 2005)

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

----S. 18(1)---Acquisition of land---Compensation---Enhancement in compensation by Referee Court---Acquiring authority proceeded ex parte by Referee Court---Incumbent for landowner to prove his assertion despite ex parte proceedings against acquiring authority---Referee Court enhanced compensation for acquired land after proceedings ex parte against acquiring authority---Legality---Acquiring authority was proceeded against ex parte and had not led evidence in rebuttal to the testimony of landowners and their witness---Landowners could not be awarded an enhanced sum on such basis, as it was incumbent upon the landowners to prove their assertions---Illustration.

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

----S. 18(1)---Qanun-e-Shahadat (10 of 1984), Art. 59---Acquisition of land---Compensation---Enhancement of compensation by Referee Court by relying on opinion of a non-expert witness---Legality---Independent witness appearing on behalf of landowners merely expressed an opinion as to the value of land acquired---Said witness was neither an expert nor he had established any basis for the opinion expressed by him---Order whereby Referee Court enhanced compensation was thus not based on admissible evidence---Case was remanded to Referee Court for decision afresh---Appeal was allowed accordingly.

----Art. 59---Expert opinion---Evidentiary value---Under Art. 59 of Qanun-e-Shahadat, 1984, opinion of a witness was only relevant and carried some probative value if he was an expert in the fields specified in the said Article---For the purpose of giving an opinion, the witness first had to establish the expertise vested in him whether on account of academic qualification or experience or otherwise---Without such foundation, an opinion could not by itself be taken as having evidentiary value for proving a fact in issue.

Razzaq A. Mirza, Addl. A.-G., Rai Muhammad Nawaz Kharal, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Appellants.

Malik Muhammad Akram Khan Awan, Advocate Supreme Court for Respondents.

Date of hearing: 8th April, 2014.

PLD 2014 SUPREME COURT 699 #

P L D 2014 Supreme Court 699

Present: Tassaduq Hussain Jillani, C.J. Sh. Azmat Saeed and Mushir Alam, JJ

S.M.C. NO.1 OF 2014 AND C.M.A. NO.217-K/2014, IN S.M.C. NO.1 OF 2014, H.R.C.No.29960-P/2012, C.M.A.

NO.110-K/2014 IN C.M.A. NO.737/2014, C.M.A.

NO.120-K/2014 IN C.M.A.NO.737/2014, C.M.A.

NO.1388/2014 IN C.M.A.NO.737/2014, C.M.A.

NO.139-K/2014 IN C.M.A.NO.737/2014, C.M.A.

NO.142-K/2014 IN C.M.A.NO.737/2014, CRIMINAL M.A.NO.322/2014 IN CRIMINAL

ORIGINAL PETITION NO.17-L/2013 AND CONSTITUTION PETITION NO.98 OF 2011

(Suo Motu actions regarding suicide bomb attack of 22-9-2013 on the Church in Peshawar and regarding threats being given to Kalash tribe and Ismailies in Chitral)

(a) Constitution of Pakistan---

----Arts. 20, 33, 36 & 184(3) & Preamble---Suo motu action by the Supreme Court under Art. 184(3) of the Constitution---Rights of minorities---Religious rights---Lack of awareness---Desecration of places of worship belonging to minorities---Forced conversion of non-Muslims to Islam---Supreme Court observed that under the Constitution minorities had a special status; that the very genesis of Pakistan was grounded in the protection of the religious rights of all, especially those of minorities; that the incidents of desecration of places of worship of minorities could be warded off if the authorities concerned had taken preventive measures at the appropriate time; that the inaction on the part of law enforcement agencies was on account of the lack of proper understanding of the relevant law; that there was a general lack of awareness about minority rights among the people and those entrusted with enforcement of law were also not fully sensitized to such issue; that desecration of places of worship of even a non-Muslim was an offence under the Pakistan Penal Code, 1860; that it would be counter intuitive if the right to freedom of religion enshrined in Art.20 of the Constitution was interpreted in a manner which had the effect of encroaching upon religious freedoms of minority religions in the country---Suo motu case was disposed of accordingly.

Freedom of Religion and Religious Minorities in Pakistan, A. Study of Judicial Practice, Tayyab Mahmud, Fordham Internatinal Law Journal, 19:1 (1995), p.51 and Surah Al-Ma'idah (5:32), Translation of Moulana Shabbir Ahmed ref.

(b) Constitution of Pakistan---

----Arts. 20 &184(3)---Suo motu action by the Supreme Court under Art.184(3) of the Constitution---Rights of minorities, protection of---Religious rights---Promotion of religious tolerance---Protection of places of worship belonging to minorities---Discouraging of hate speech---Reservation of quota for minorities in all services--- Steps/measures outlined by the Supreme Court which were to be taken by the Federal and Provincial Governments for effective enforcement of Fundamental Rights guaranteed to minorities.

Following are the steps/measures outlined by the Supreme Court which were to be taken by the Federal and Provincial Governments for effective enforcement of Fundamental Rights guaranteed to minorities.

(i) that Federal Government should constitute a taskforce tasked with developing a strategy of religious tolerance.

(ii) that appropriate curricula should be developed at school and college levels to promote a culture of religious and social tolerance.

(iii) that Federal Government should take appropriate steps to ensure that hate speeches in social media were discouraged and the delinquents were brought to justice under the law.

(iv) that National Council for minorities' rights should be constituted. The function of the said Council should inter alia be to monitor the practical realization of the rights and safeguards provided to the minorities under the Constitution and law. The Council should also be mandated to frame policy recommendations for safeguarding and protecting minorities' rights by the Provincial and Federal Government.

(v) that Special Police Force should be established with professional training to protect the places of worship of minorities.

(vi) that Federal Government and all Provincial Governments should ensure the enforcement of the relevant policy directives regarding reservation of quota for minorities in all services, and

(vii) that in all cases of violation of any of the rights guaranteed under the law or desecration of the places of worship of minorities, the concerned law enforcing agencies should promptly take action including the registration of criminal cases against the delinquents.

----Art. 20---Freedom to profess religion---Scope---Freedom of conscience---Scope---Individual and community based freedom---Freedom of religion must be construed liberally to include freedom of conscience, thought, expression, belief and faith---Freedom, individual autonomy and rationality characterized liberal democracies and the individual freedoms thus flowing from the freedom of religion must not be curtailed by attributing an interpretation of the right to religious belief and practice exclusively as a community-based freedom---Freedom of conscience could not be separated from the freedom of religion---While the freedom of conscience was an individual right, the right to religion had both individual and community based connotations.

European Convention on Human Rights and Fundamental Freedoms (Article 9), the American Convention on Human Rights (Article 12), the African Charter on Human and Peoples' Rights (Article 8) ref.

(d) Constitution of Pakistan---

----Art. 20---Freedom to profess and practice religious views--- Right to religious conscience---Right to propagate one's religion to others---Scope---Sects within religious denominations, protection of---Principles regarding interpretation of Art. 20 of the Constitution.

Following are the principles in relation to interpretation of Art.20 of the Constitution:

(i) that Article 20 of the Constitution must be interpreted to guarantee the rights of the community as well as the right of the individual against those from his own or other religious communities - the ultimate goal being the eradication of religious intolerance in the society.

(ii) that the right to religious conscience conferred under Art. 20 of the Constitution did not make any distinction between majority and minority or Muslim and non-Muslim. It was in the nature of an Equal Religious Protection Clause conferred on every citizen, every religious denomination and every sect thereof. Such equal religious protection clause was in the same nature as the equal justice under the law and equal protection under the law clauses. There was no distinction among citizens, religious denominations and sects thereof, as far as the right to religious conscience, was concerned.

(iii) that the right to religious conscience was a fundamental right. It had not been subjected or subordinated to any other provision of the Constitution because it was only subject to law, public order and morality and not to any religious clauses of the Constitution. The very term law, public order and morality had been used in non-religious terms as the notion of law or public order or morality was not reducible to the Islamic meanings of said terms. Therefore, Art.20 of the Constitution had a certain pre-eminence in the Constitution being only subject to the general restrictions of law, public order and morality, which three terms could not be interpreted or used in such a restrictive way as to curtail the basic essence and meaning of the pre-eminent right to religious conscience.

(iv) that the right to profess and practice was conferred not only on religious communities but also on every citizen. Every citizen could exercise such right to profess, practice and propagate his religious views even against the prevailing or dominant views of its own religious denomination or sect. In other words, neither the majority religious denominations or sect nor the minority religious denomination or sect could impose its religious will on the citizen. Therefore, not only did it protect religious denominations and sects against each other but protected every citizen against the imposition of religious views by its own fellow co-believers. Every citizen would necessarily include both males and females which point needed emphasis considering the exclusion or subordination of women in relation to numerous forms of religious practices.

(v) that as far as every religious denomination was concerned, even sects within such religious denominations had been conferred the additional right to establish, maintain and manage its religious institutions. Therefore, even sects within religious denominations had been protected against their own co-religious denominations.

(vi) that the right of religious conscience conferred on every citizen was a right conferring three distinct rights i.e. Right to Profess, Right to Practice and Right to Propagate. Article 20 of the Constitution did not merely confer a private right to profess but conferred a right to practice both privately and publicly his or her religion. Moreover, it conferred the additional right not only to profess and practice his own religion but to have the right to propagate his or her religion to others. Such propagation of religion had not been limited to Muslims having the right to propagate their religion but such right was equally conferred on non-Muslims to propagate their religion to their own community and to other communities.

(e) Constitution of Pakistan---

----Art. 20---Freedom of religion, interpretation of---Underlying objective---Promotion of religious tolerance---Promoting religious tolerance should be the underlying objective in interpreting the right to freedom of religion.

(f) Constitution of Pakistan---

----Art. 20---Freedom of religion---Scope---Individual and communal right---Right to freedom of religion should be restored to as an individual and indefeasible right, while concurrently preserving and protecting such right at a communal level, where the latter did not infringe on the former.

(g) Constitution of Pakistan---

----Art.2A---Democracy---Democratic governance---Defining features---Defining feature of a democratic governance was complete dedication and adherence in everyday life to the seminal principles of equity, justice and inclusion of all irrespective of their colour, creed, caste, sex or faith---Sustainability of democracy depended on how best said challenges were met.

(h) Islamic jurisprudence---

----Non-Muslims---Forced conversion to Islam---Islam did not compel people of other faiths to convert---Islam gave them complete freedom to retain their own faith and not to be forced to embrace Islam---Such freedom was documented in both the Holy Quran and the Prophetic teachings known as Sunnah.

Holy Quran (10:99) ref.

(i) Islamic jurisprudence---

----Non-Muslims---Places of worship, preservation of---Not only did Islam give religious freedom to non-Muslims, its tolerant laws also extends to the preservation of their places of worship.

Holy Quran (2:256); Aayed, Saleh Hussain, 'Huquq Ghayr al-Muslimeen fi Bilad il-Islam, p.23.24; Holy Quran (22.40); Tabari, Tarirk al-Tabari, vol.3, p.210 and Tabari, Tarirk al-Tabari, vol. 3, p.159 ref.

In Attendance:

Salman Aslam Butt, Attorney General, Kh. Saeed uz Zafar, Addl. Attorney General.

Sajid Ilyas Bhatti, D.A.G.

Sohail Mehmood, D.A.G.

Razzaq A.Mirza, Addl. Advocate General, Punjab.

Zahid Yousaf, Addl. A.G. KPK.

Ayaz Swati, Addl. A.G.Balochistan.

Muhamamd Farid Dogar, A.A.G. Balochistan.

Muhammad Kassim Mirjat, Addl. Advocate General, Sindh.

Ali Sher Jakhrani, AIG Legal, Sindh.

Rev. Shahid P.Mehraj, Dean of Lahore Cathedral.

Zulfiqar Ahmed Bhutta, Advocat Supreme Court (for J.Salik, ex-MNA).

Dr. Ramesh Kumar Vankwani, Chairman, Pakistan Hindu Council.

Saleem Micheal, Justice Helpline.

Nadeem A. Sheikh, Advocate, Justice Helpline.

Gabrial Francis Khan, Advocate Supreme Court.

Date of hearing: 19th June, 2014.

PLD 2014 SUPREME COURT 753 #

P L D 2014 Supreme Court 753

Present: Mian Saqib Nisar, sif Saeed Khan Khosa and Sh. Azmat Saeed, JJ

MUHAMMAD ALI---Petitioner

Versus

ADDITIONAL I.G., FAISALABAD nd others---Respondents

Criminal Petition No.478-L of 2014, decided on 16th July, 2014.

(Against the order dated 27-3-2014 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.2404-M of 21009)

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

----Ss. 22-A(6) & 561-A---Order passed by Justice of Peace under S.22-A(6), Cr.P.C. impugned before the High Court by way of a petition under S.561-A, Cr.P.C.---Competency /Maintainability---Order passed by the ex officio Justice of the Peace under S.22-A(6), Cr.P.C. was an executive/administrative order---Petition filed before the High Court under S.561-A, Cr.P.C. impugning such order of Justice of Peace was not competent or maintainable---Provisions of S.561-A, Cr.P.C. had relevance only to judicial proceedings and actions and not to any executive or administrative action or function---Jurisdiction of High Court under S. 561-A, Cr.P.C. could be exercised only in respect of orders or proceedings of a court---Phrovisions of S.561-A, Cr.P.C. had no application vis-à-vis executive or administrative orders or proceedings of any non-judicial forum or authority.

Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Emperor v. Khwaja Nazir Ahmed AIR (32) 1945 PC 18; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 and Nazir Ahmed and others v. Muhammad Shafi and another PLD 1980 SC 6 ref.

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

----Ss. 156 & 561-A---Investigation of a criminal case---Interference by the High Court---High Court while seized of a petition filed under S.561-A, Cr.P.C. had no jurisdiction to interfere in the investigation of criminal case.

----S. 561-A---Inherent power of High Court under S.561-A, Cr.P.C.---Scope---Provisions of S.561-A, Cr.P.C. had relevance only to judicial proceedings and actions and not to any executive or administrative action or function---Jurisdiction of High Court under S.561-A, Cr.P.C. could be exercised only in respect of orders or proceedings of a court---Provisions of S.561-A, Cr.P.C. had no application vis-a-vis executive or administrative orders or proceedings of any non-judicial forum or authority.

Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 ref.

Ch. Sultan Ahmed Irshad, Advocate Supreme Court for Petitioner.

Mazhar Sher Awan, Addl. Prosecutor-General, Punjab for the State.

Nemo for the Remaining Respondents.

Date of hearing: 16th July, 2014.

PLD 2014 SUPREME COURT 760 #

P L D 2014 Supreme Court 760

Present: Asif Saeed Khan Khosa and Iqbal Hameedur Rahman, JJ

ALAM ZEB and another---Petitioners

Versus

The STATE and others---Respondents

Criminal Petitions Nos. 336 and 342 of 2014, decided on 11th July, 2014.

(Against the orders dated 6-6-2014 and 16-6-2014 passed by the Islamabad High Court, Islamabad in Criminal Miscellaneous Nos. 282-B and 311-B of 2014).

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

----S. 497(1)---Bail, refusal of---"Reasonable grounds" for believing that accused had been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years---"Reasonable grounds"---Scope---Reasonable grounds had to be grounds which were legally tenable, admissible in evidence and appealing to a reasonable judicial mind as opposed to being whimsical, arbitrary or presumptuous.

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

----S. 497(2)---Drugs Act (XXXI of 1976), Ss.23 & 27---Penal Code (XLV of 1860), Ss.420, 468 & 471---Supplying spurious drugs, cheating, forgery for the purpose of cheating, using as genuine a forged document which is known to be forged---Bail, grant of---Further inquiry---Accused not nominated in the F.I.R.---Implication on basis of statement of co-accused made before the police---Accused persons had not been nominated in the F.I.R. in any capacity whatsoever and their names had not even figured in the complete challan submitted before the Court---Names of accused persons had been introduced in the case for the first time on the basis of a statement subsequently made by a co-accused before the police---Statement made by the co-accused before the police was inadmissible in evidence as far as admission of his own involvement in the alleged offences was concerned and, thus, his statement vis-a-vis involvement of the present accused persons in the alleged offences was ordinarily twice removed from admissibility or reliability, particularly when nothing had been recovered from the custody of the accused persons in connection with the present case---Case against accused persons was one of further inquiry into their guilt---Accused persons were admitted to bail accordingly with the observation that since the Judge of High Court had himself ordered and caused the arrest of the accused persons then the minimum standards of justice required that said Judge ought not to have taken upon himself to sit in judgment over the matter so as to exercise his discretion for the purposes of refusing bail to the accused persons.

----S. 497---Drugs Act (XXXI of 1976), Ss.23 & 27---Penal Code (XLV of 1860), Ss.420, 468 & 471---Supplying spurious drugs, cheating, forgery for the purpose of cheating, using as genuine a forged document which is known to be forged---Bail, refusal of---Grounds---Bail refused on the ground that some co-accused of the accused were gangsters involved in similar cases of supplying spurious drugs---Propriety---Although in the social context a man was known by the company he kept but such social consideration had never been recognized as a legal consideration for denying a legal relief to a person if it was otherwise due---Keeping bad company may be socially reprehensible but that could hardly be treated as a legal disqualification---Accused could not be visited with the sins of others and antecedents of some of the co-accused could not be laid at the door of the accused persons for refusing to exercise discretion in their favour---Accused persons were allowed bail accordingly.

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

----S. 497---Bail---Bailable offence---In a case involving a bailable offence bail was to be granted to an accused person as of right.

Qazi Babar Irshad, Advocate Supreme Court for Petitioner (in Cr.P.No.336 of 2014).

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court for Petitioner (in Cr.P.No.342 of 2014).

Imran-ul-Haq, Deputy Attorney General for Pakistan, M.Yousaf, S.H.O. P.S., Tarnol and Rab Nawaz, I.O. for the State.

Date of hearing: 11th July, 2014.

PLD 2014 SUPREME COURT 766 #

P L D 2014 Supreme Court 766

Present: Tassaduq Hussain Jillani, Anwar Zaheer Jamali, Asif Saeed Khan Khosa, Amir Hani Muslim and Muhammad Ather Saeed, JJ CENTRAL BOARD OF REVENUE, ISLAMABAD and another---Appellants

Versus

WAPDA and another---Respondents

Civil Appeals Nos. 1033 to 1037 of 2004, decided on 30th May, 2014.

(On appeal against the judgment dated 22-1-2004 of the Lahore High Court, Lahore passed in Writ Petitions Nos. 166, 19483, 19895, 3501 and 3522 of 1996).

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

----Ss. 3 & 8---Pakistan Water and Power Development Authority (WAPDA)---Independent entity---Although WAPDA's affairs to some extent were controlled by the Government but for all practical purposes it was an independent entity authorized to carry out the business of utilization of water and power resources of the country and to generate electricity.

(b) Interpretation of statutes---

----Exemption clause---Interpretation and scope---Exemption clause had to be strictly construed---Person claiming an exemption had to bring his case within the four corners of the exemption and unless he did so he could not be granted exemption.

----S. 12A & First Sched., Item No.14.14---S.R.O. No.519(I)/1992, dated 25-5-1992---Pakistan Water and Power Development Authority Act (XXXI of 1958), S.3---Constitution of Pakistan, Art.165 & 165-A---Pakistan Water and Power Development Authority (WAPDA)---Not exempted from levy of excise duty---Whether WAPDA was exempted from excise duty on loans and advances---WAPDA could not claim exemption (from levy of excise duty) on loans and advances made by Banking Companies, Financial Institutions, Insurance Companies, Cooperative Financing Securities and other lending banks or Institutions under item (g) of S.R.O. No.519(I)/1992 dated 25-5-1992 issued under S.12A of Central Excise Act, 1944.

Central Board of Revenue v. SITE PLD 1985 SC 97; Chairman District Council Rahim Yar Khan v. United Bank Limited, Rahim Yar Khan 1989 CLC 1397; Messrs Rice Export Corporation of Pakistan v. Karachi Metropolitan Corporation PLD 1990 Kar. 186 and Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 distinguished.

Union Council, Ali Wahan Sukkur v. Associated Cement (Pvt.) Limited 1993 SCMR 468; KDA's case 2005 PTD 2131 and Commissioner Sales Tax and Central Excise v. WAPDA 2007 SCMR 1736 ref.

Sh. Izhar ul Haq, Senior Advocate Supreme Court for Appellants.

Mian Ashiq Hussain, Advocate Supreme Court for Respondent No.1.

Raja M. Aleem Khan Abbasi,D.A.G. On Court notice.

Date of hearing: 30th May, 2013.

PLD 2014 SUPREME COURT 779 #

P L D 2014 Supreme Court 779

Present: Anwar Zaheer Jamali and Mian Saqib Nisar, JJ

WARIS ALI and others---Appellants

Versus

RASOOLAN BIBI---Respondent

Civil Appeal No.2263 of 2006, decided on 26th June, 2014.

(Against the judgment dated 14-9-2006 of the Lahore High Court, Lahore passed in C.R.No.500 of 2006).

(a) Islamic law---

----Inheritance---Sunni fiqha---Fundamental principles---First principle was that the Qur'anic sharers were to be given their prescribed shares unless a Qur'anic sharer was excluded by another heir according to the rules of Exclusion prescribed in the Qur'an and Sunnah and elaborated upon by Islamic Jurisprudence (Sharia); second principle was that after the Qur'anic sharers had been given their shares the rest of the estate was divided amongst the nearest male agnates of the deceased as residuries---Agnates were the persons related to the deceased through a male link.

(b) Islamic law---

----Inheritance---Sunni fiqha---Principles---Female deceased---Survived by two sisters and a nephew (son of pre-deceased brother)---Distribution of estate---Entitlement of the sisters was subject to exclusion by a son of the deceased---In absence of a son in case of one sister she was entitled to half of the estate and two sisters (as in the present case) were together entitled to 2/3rd share of the estate of the deceased---In the presence of a brother of the deceased, however, the sisters inherited not as Qur'anic sharers but as residuries, which was known as the 'agnatization' of the sisters---In such a situation the brother and the sisters took whatever was left of the estate after the other Qur'anic Sharers had been given their prescribed shares, with each sister taking half the share of the brother---Deceased brother's son (nephew) neither excluded the sisters of the deceased (whereas a son would have done so) nor did he agnatize the sisters of the deceased (as a brother of the deceased would have done)---Consequently, where a female deceased was survived by two sisters and a son of pre-deceased brother (nephew), the sisters would take their Quranic share of 2/3rd of the estate, and deceased brother's son (nephew) would inherit the rest (the remaining 1/3rd) as a residuary in his capacity as the nearest male agnate of the deceased.

Al-Quran Surah Al-Nisa, Verse 176 and Succession in the Muslim Family by Professor N.J. Coulson ref.

Mushtaq Ahmed Qureshi, Advocate Supreme Court for Appellants.

Muhammad Munir Peracha, Advocate Supreme Court for Respondent.

Salman Akram Raja, Advocate Supreme Court: Amicus Curiae.

Date of hearing: 26th June, 2014.

PLD 2014 SUPREME COURT 783 #

P L D 2014 Supreme Court 783

Present: Anwar Zaheer Jamali and Mian Saqib Nisar, JJ

PROVINCE OF PUNJAB through Collector and others---Appellants

Versus

MUHAMMAD SALEEM and others---Respondents

Civil Appeal No.1430 of 2007, decided on 26th June, 2014.

(Against the judgment dated 27-3-2002 of the Lahore High Court Lahore passed in Civil Revision No.1948 of 2000).

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

----S. 4---Suit/appeal/application, filing of---Period of limitation---Court closed for summer vacations for purposes of institution of ordinary cases and routine work---Where the period prescribed for a suit, an appeal or an application expired on a day/date which fell during the period or the day when the court was closed for summer vacations, the said case/matter may be instituted/preferred by the concerned litigant on the day when the court re-opened---Such right was a vested right conferred by S.4 of the Limitation Act, 1908, thus the litigant would be well within his right and shall be absolutely safe to wait till the re-opening of the court, even though limitation of case/cause might have expired during the period when the court was closed.

Fazal Karim and another v. Ghulam Jillani and others 1975 SCMR 452 ref.

Ch. Fayyaz Ahmed v. Mst. Hidayat Begum and 21 others 1997 SCMR 1393 and Fateh Ali Khan v. Subedar Muhammad Khan 1970 SCMR 238 distinguished.

(b) Vested right---

----Enforcement---Vested right should in letter and spirit be enforced at all costs, except where it was unenforceable on account of any specific legal bar or it stood obliterated or taken away by or under the law.

----Arts. 185(3) & 212(3)---Order refusing leave to appeal---Precedential value---Scope---Order refusing leave was not an enunciation of law.

Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 ref.

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

----S. 4---Suit---Interim/urgent relief---Period of limitation for filing suit/appeal expiring during closure of court due to summer vacations---Section 4 of Limitation Act, 1908 giving litigant right to institute such suit/appeal on the day when the court re-opens, despite period of limitation having expired during the closure of court---Litigant compelled to file suit/appeal during summer vacations for enabling him to seek some interim relief, which was imperative and of utmost expediency to prevent irreparable and irreversible loss and injury---Section 4 of Limitation Act, 1908 gave such a litigant a vested right to file the suit/appeal on the day of the re-opening of the court, but if the litigant sought some urgent relief during the closure of court, he could not be expected to sit idle (till the re-opening of the court) and watch irreparable, colossal and irretrievable loss being caused to him, and refrain from exercising his right of filing suit/appeal for the purpose of obtaining interim relief---Benefit of S.4 of the Limitation Act, 1908 would also automatically extend to such a litigant, and the suit/appeal filed during the closure of courts to obtain urgent interim relief, would be deemed to have been filed on the date of re-opening of the court.

Razzaq A. Mirza, Addl. A.-G. for Appellants.

Ansar Nawaz Mirza, Advocate Supreme Court for Respondents.

Date of hearing: 26th June, 2014.

PLD 2014 SUPREME COURT 791 #

P L D 2014 Supreme Court 791

Present: Asif Saeed Khan Khosa, Sarmad Jalal Osmany and Umar Ata Bandial, JJ

SHER BAHADUR---Petitioner

Versus

FAYYAZ and others---Respondents

Criminal Petition No.368 of 2014, decided on 22nd August, 2014.

(Against the judgment dated 27-5-2014 passed by the Peshawar High Court, Peshawar in Criminal Revision No.89 of 2011).

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

----S. 7---Constitution of Pakistan, Art.185(3)---Claim of juvenility---Determination of age of accused---Procedure---Court relying upon copies of Secondary School Certificate and National Identity Card of accused without verifying their authority---Legality---Doubt regarding claim of juvenility---Whether benefit of such doubt was to be extended to accused---Plea of petitioner that at the time of determining age of accused High Court relied upon copies of his Secondary School Certificate and National Identity Card without verifying as to whether said documents were genuine or not, that the accused had never claimed before the Trial Court at any stage that he was a juvenile, even during the time of recording of his statement under S.342, Cr.P.C. and memorandum of appeal filed before the High Court, that High Court erred in law by holding that in case of doubt regarding age of an accused, the benefit of such doubt was to be extended to the accused person, whereas the law as declared by Supreme Court in various judgments was that in case of doubt regarding age the onus of proof was on the accused to establish his claim of juvenility through positive evidence, and if there was any doubt left in the matter then the accused could not take advantage of such doubt---Validity---Pleas raised by petitioner required consideration, therefore, Supreme Court allowed petition for leave to appeal and granted leave for the purpose.

Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758; Sarfraz alias Shaffa v. The State and 3 others 2007 SCMR 758; Muhammad Aslam and others v. The State and another PLD 2009 SC 777; Masood Sarwar v. Sadaqat Hussain and others 2007 SCMR 936; Tauqeer Ahmed Khan v. Zaheer Ahmed and others 2009 SCMR 420; Muhammad Akram v. The State 2003 SCMR 855; Muhammad Ajmal v. The State through Advocate-General, Punjab PLD 2003 SC 1; Ziaullah v. Najeebullah and others PLD 2003 SC 656; Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111; Babar Ali v. The State and 2 others PLD 2007 Lah. 650 and Om Parkash v. State of Rajasthan and another 2012 SCMR 1400 ref.

Noor Alam Khan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd August, 2014.

PLD 2014 SUPREME COURT 794 #

P L D 2014 Supreme Court 794

Present Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ

Mst. HAJYANI BAR BIBI through L.R.---Petitioner

Versus

Mrs. REHANA AFZAL ALI KHAN and others---Respondents

Civil Petition for Leave to Appeal No.303-K of 2013, decided on 18th September, 2014.

(On appeal against the judgment dated 8-4-2013 of the High Court of Sindh, Karachi passed in IInd Appeal No.52 of 2009).

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

----S. 201---Constitution of Pakistan, Art. 185(3)---Sub-power of attorney---Issued by attorney after death of principal---Effect---Claim of petitioner/purported purchaser over suit property was based on a conveyance deed executed by the sub-attorney of the respondent/purported seller---Validity---Alleged power of attorney issued by respondent in favour of attorney was terminated on the death of respondent (principal), therefore, the attorney was not authorized to execute a sub-power of attorney after death of respondent; in such circumstances the sub-power of attorney was invalid and of no legal effect and sub-attorney was not authorized to sell the property to the petitioner vide conveyance deed---Further the petitioner/purported purchaser was the real mother of sub-attorney, and at the time of alleged sale of property to her vide conveyance deed, sub-attorney made no efforts to obtain consent of attorney or principal/purported seller, who had died by that time---Petition for leave to appeal was dismissed accordingly and leave was refused.

Faqir Muhammad v. Peer Muhammad 1997 SCMR 1181 ref.

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

----S. 42---Constitution of Pakistan, Art.185(3)---Suit for declaration---Agreement to sell---Validity---Payment of balance sale consideration not established---Possession since date of agreement to sell not proved---Effect---No evidence was produced to establish that remaining sale consideration was paid to the purported seller/respondent---Purported purchaser/petitioner also failed to establish that she was in possession of the suit property since the date of agreement to sell---Suit for declaration filed by petitioner had been rightly dismissed in such circumstances---Petition for leave to appeal was dismissed accordingly and leave was refused.

----Art. 100---Unregistered agreement to sell---Notarized document---More than thirty years old---Presumption as to validity and execution of such agreement to sell---Neither the notary nor the marginal witnesses of such agreement to sell produced---Effect---Presumption under Art.100 of Qanun-e-Shahadat, 1984 as to validity and execution of such agreement to sell would not apply.

Jang Bahadar and others v. Toti Khan and another 2007 SCMR 497 ref.

Dr. Mrs. Rana Khan, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Petitioner.

Adnan Iqbal Chaudhry, Advocate Supreme Court for Respondents Nos.1 to 10.

Syed Jamil Ahmed, Legal Advisor KMC for Respondents Nos.11 and 12.

Date of hearing: 6th August, 2014.

PLD 2014 SUPREME COURT 809 #

P L D 2014 Supreme Court 809

Present: Sarmad Jalal Osmany, Gulzar Ahmed and Muhammad Ather Saeed, JJ

SHAHID ZAFAR and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.8-K to 11-K of 2014, decided on 29th August, 2014.

(Against the judgment dated 21-1-2014 passed by High Court of Sindh, Karachi in S.Crl.A.T.As. Nos. 6 to 9 of 2011)

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

--- Ss. 302(b) & 34--- Anti-Terrorism Act (XXVII of 1997), Ss. 6(1)(b) & 7(a)---Criminal Procedure Code (V of 1898), S. 345---Qatl-e-amd, common intention, act of terrorism---Compromise---Reappraisal of evidence---Murder of unarmed person by members of law enforcement agency---Grievous and heinous crime---Sense of fear or insecurity in the public---Accused and co-accused persons were members of a law enforcement agency, and they had a quarrel with the deceased at a park---Deceased was surrounded by accused and co-accused, whereafter one of the co-accused shouted "maromaro", as a result of which the accused fired at the deceased---Deceased pleaded to be taken to hospital, but accused and co-accused did not do the same, despite presence of an official vehicle at the spot---Deceased consequently bled to death---Accused deliberately and wilfully shot the deceased at the instigation of the co-accused persons and they let him bleed to death without offering him any assistance---Such sequence of events abundantly displayed the common intention and object of the accused and co-accused persons---Gruesome murder of deceased at the hands of members of law enforcement agency certainly created a sense of terror, insecurity and panic in the minds and hearts of those who witnessed the scene and the entire public which saw the video of the incident---Accused had compromised with legal heirs of deceased but offence committed by him and co-accused persons under S.7(a) of the Anti-Terrorism Act, 1997 was not compoundable---Supreme Court however observed that following the ratio in the case of Muhammad Nawaz v. The State (PLD 2014 SC 383), wherein sentence of death imposed upon convict under S.7 of the Anti-Terrorism Act, 1997 was reduced to imprisonment for life in the presence of a compromise, the death sentence awarded to present accused should also be reduced to imprisonment for life---Sentence of imprisonment for life awarded to co-accused persons was maintained---Appeal was disposed of accordingly.

Muhammad Nawaz v. The State PLD 2014 SC 383 ref.

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

----S. 7(a)---Criminal Procedure Code (V of 1898), S. 345---Act of terrorism causing death---Compounding of offence---Compromise by legal heirs of deceased---Section 7(a) of the Anti-Terrorism Act, 1997 was not compoundable.

----S. 345---Penal Code (XLV of 1860), S. 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss.6(1)(b) & 7(a)---Compounding of offence---Fasad-fil-Arz---Murder of unarmed person by members of law enforcement agency---Victim begging for life and bleeding to death---Cruel and gruesome murder---Such murder would amount to Fasad-fil-Arz within the meaning of S.311, P.P.C. hence there could be no question of acceptance of any compromise between the parties---Appeal was disposed of accordingly.

Khawaja Naveed Ahmed, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Appellants.

Amir Nawaz Waraich, Advocate High Court (In Crl.A.No.11-K of 2014).

Complainant in person.

Saleem Akhtar Addl. P.C. Sindh for the State.

Date of hearing: 29th August, 2014.

Supreme Court Azad Kashmir

PLD 2014 SUPREME COURT AZAD KASHMIR 1 #

P L D 2014 Supreme Court (AJ&K) 1

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

Civil Appeal No.160 of 2012

BASIT MUKHTAR and others---Appellants

Versus

TALHA SARFARAZ and others---Respondents

(On Appeal from the judgment of the High Court dated 29-11-2012 in Writ Petition No.530 of 2012).

Civil Appeal No.7 of 2013

FARHANA TAHIR and others---Appellants

Versus

TALHA SARFARAZ and 12 others---Respondents

(On appeal from the judgment of the High Court dated 29-11-2012 in Writ Petition No.530 of 2012)

Civil Appeal No.8 of 2013

TALHA SARFARAZ---Appellant

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 16 others---Respondents

(On appeal from the judgment of the High Court dated 29-11-2012 in Writ Petition No.530 of 2012)

Civil Appeal No.9 of 2013

SEHAR MAQBOOL KIYANI---Appellant

Versus

TALHA SARFARAZ and 16 others ---Respondents

(On appeal from the judgment of the High Court dated 29-11-2012 in Writ Petition No.530 of 2012)

(a) Conditions for Admission in MBBS and BDS Course and House Job Regulations, 2010---

----Reglns. 4(2) & 9--- Medical Colleges in Azad Jammu and Kashmir---Seats reserved for "Overseas Kashmiris"---Admission criteria---Word "Overseas Kashmiris", meaning of---Person residing abroad--- Admission Committee in the light of Pakistan Medical and Dental Council (PMDC) Regulations reserved seats for overseas students in medical colleges established by Azad Jammu and Kashmir in the public sector---Any applicant/candidate applying for a seat reserved for "Overseas Kashmiris" was required to submit Overseas Pakistani Card; a bank draft of US$ 4000; copy of passport of parents with resident visa/work permit/ proof of second nationality; proof of tangible fund remittance by the parents from abroad and proof of Azad Jammu and Kashmir nationality (State Subject Certificate)---Said requirements made it crystal clear that reserved seats in question had been reserved for overseas Kashmiri students, and no other student was entitled to apply against the said reserved seats; that "Overseas Kashmir student' was a person who was residing abroad---Words used in the admission policy were "nomination against overseas seats"---Student residing abroad (outside the country) was an overseas student who was eligible to apply against a seat reserved for "overseas students" (State Subjects), whether he had passed the examination from any educational institution outside the country or from Azad Jammu and Kashmir or from Pakistan---Any candidate who was not himself residing abroad could not be termed as an overseas Kashmiri---Appellant-candidate, in order to prove that he fell in the definition of "overseas Kashmiri" brought on record copy of his valid overseas Pakistani card; his valid visa of a foreign country; copies of passport of his mother and father who worked in a foreign country, and also proof of remittance from said foreign country to Pakistan--- Appellant-candidate in view of such documents was fully qualified to be nominated against the seats reserved for "overseas Kashmiri" in Medical Colleges of Azad Jammu and Kashmir; conversely applicants/candidates who were students from Kashmir but were not in possession of overseas Pakistani card or dual nationality, were not entitled for admission against reserved seats---Similarly applicants/candidates whose parents had served abroad and now occasionally/casually visited abroad for short period of work were not entitled to apply against the reserved seats of "overseas Kashmiris"---Supreme Court (AJ & K) declared that appellant-candidate was entitled to be nominated against a seat reserved for overseas Kashmiris in the medical colleges, and directed that since two years had elapsed, he could not be granted admission in the classes which started in 20-11-2012, therefore the "admission committee" should arrange for his admission in the coming academic session provided he fulfilled merit.

Rahat Saeed Bukhari v. Ayesha Hameed Qadri and another 1997 MLD 218 ref.

(b) Words and phrases---

----"Overseas"---Definition and meaning.

Chambers Dictionary 10th Edn. P.1076; Chambers 21st Century Dictionary (Revised Edn.) at p.983; New International Webster's Comprehensive Dictionary of English Language (Encyclopedic Edn. p.901); Chambers Dictionary at p.942; Law Dictionary (English-Urdu) Part II, at p.1416; Reader's Digest Great Encyclopedic Dictionary and Concise Oxford Dictionary, p.851 ref.

----"Overseas student", meaning of--- Word "overseas student" meant person residing abroad in a foreign country or out of country.

(d) Interpretation of statutes---

----Words in a statute---Ordinary dictionary meaning--- Golden principle of interpretation of statutes was that words had to be assigned their ordinary dictionary meaning.

Dr. Muhammad Akram v. Allotment Committee, Mirpur Development Authority PLD 1985 SC(AJ&K) 113; Azad Government and 3 others v. Genuine Rights Commission AJ&K and 7 others 1999 MLD 268 and Ch. Muhammad Yousaf v. The State and 4 others 2002 CLC 1130 ref.

Kh. Attaullah Chak, Advocate for Appellants (in Civil Appeal No.160 of 2012 and Civil Appeal No.7 of 2013 and for Respondents Nos.11 to 13 in Civil Appeal No.8 and Respondents Nos. 15 to 17 in Civil Appeal No.9 of 2013).

Sadaqat Hussain Raja for Respondents No.1 (in Civil Appeal No.160 of 2012, Civil Appeal No.7 and 9 of 2013 and for Appellant in Civil Appeal No.8 of 2013).

Raja Ghazanfar Ali Khan, Advocate-General and Sardar Shahid Hameed Khan, Advocate for Respondents Nos.2 to 8 (in Civil Appeal No.160 of 2012 and Civil Appeals Nos.7 for Respondents Nos. 1 to 7 (in Civil Appeal No.8 of 2013) and for Respondent Nos. 2 to 7 (in Civil Appeal No.9 of 2013).

Sajid Hussain Abbasi for Respondent No.15 (in Civil Appeal No.160 of 2012 and for Respondent No.13 (in Civil Appeals Nos.7 and for Respondent No.17 in C.A. No.8 of 2013 and for Appellant in C.A. No.9 of 2013.).

Date of hearing: 2nd July, 2013