PLD 2015 Judgments

P L D 2015 High Court (AJ&K) 1

Before M. Tabassum Aftab Alvi, Sardar Abdul Hameed Khan, Chaudhry Jahandad Khan and Azhar Saleem Babar, JJ

ROBKAR-E-ADALAT---Petitioner

versus

MUHAMMAD YOUNAS ARVI---Respondent

Criminal Miscellaneous Nos.81 and 81-A of 2013, decided on 4th September, 2014.

(a) Legal Practitioner---

----Conduct and standards---Service to the society---Respect for courts---Legal profession was know as a noble profession having high traditions and had been catering to the needs of the society for a very long time---Members of legal fraternity were expected to uphold those traditions and serve the society sincerely and honestly with utmost respect for the courts---If such were the expectations from a noble profession, its members must conduct themselves in a way which may be worthy of emulation---By doing any act which was contrary to the accepted norms and standards of the legal profession, a member of the legal fraternity not only discredited himself but also brought disrepute to the profession to which he belonged---By such acts the credibility and reputation of the profession as a whole came under cloud---If any member of the profession fell from such standards, he deserved punishment which commensurate with the gravity of the misconduct.

(b) Azad Jammu and Kashmir Legal Practitioners and Bar Council Act (XXX of 1995)---

----S. 51---Azad Jammu and Kashmir Contempt of Court Act (XXVII of 1993), Ss.3 & 7---Advocate---Suspension of license---Contempt of court proceedings---Scandalizing the superior judiciary---Bringing authority of courts and administration of law into disrepute---Application for unconditional apology at the earliest opportunity---Expressing regret---Effect---Revival of license and discharge of contempt proceedings---Applicant, who was an advocate, wrote a letter to the Chief Justice of the High Court, wherein he made certain allegations against Judges of the High Court and Shariat Court---After issuance of show cause notice applicant-advocate was found guilty of scandalizing the superior judiciary and bringing authority of courts and administration of law into disrepute---Applicant's license of advocacy was suspended and separate contempt proceedings were also initiated against him---Subsequently applicant moved an application to withdraw the letter he had written and tendered unconditional apology and expressed regret for his act---Held, that applicant had tendered unqualified and unconditional apology and had thrown himself at the mercy of the court---Applicant did not try to justify the contents of the letter---Unqualified apology tendered by applicant was endorsed by the President, Senior Vice President and General Secretary of District Bar Association, to which the applicant belonged---Conduct of applicant was seriously condemned by the said representatives of the District Bar Association and they also guaranteed that applicant would not repeat the alleged offence in future---Unqualified apology tendered by applicant was accepted and order of suspension of his license along with contempt notice were discharged---However, High Court observed that applicant should be careful about dignity of courts, that he should act prudently in future and should not indulge in acts which were unbecoming of an officer or of the court, otherwise law would take its own course---Application was allowed accordingly.

Federation of Pakistan v. Yusuf Ali Khan PLD 1977 SC 276 rel.

(1998) 8 SCC 660 and AIR 1963 Pat. 233 ref.

(c) Contempt of Court---

----Contemnor---Unconditional apology tendered by contemnor at the earliest opportunity---Effect---Leniency by court---Where apology had been tendered by the contemnor at the earliest opportunity before framing of charge, the Court showed leniency and grace in accepting such apology---Although submission of apology could not wipe off the gravity of contempt, however, the act of tendering unconditional apology was always important and considered sympathetically.

Federation of Pakistan v. Yusuf Ali Khan PLD 1977 SC 276 rel.

(1998) 8 SCC 660 and AIR 1963 Pat. 233 ref.

Khalid Rasheed Chaudhry, Muhammad Ahsan Baig and Muhammd Shabir Sharif for Respondent.

P L D 2015 High Court (AJ&K) 7

Before Ghulam Mustafa Mughal, C J

PARVEEN AKHTAR and 3 others---Petitioners

versus

ADDITIONAL DISTRICT AND SESSION JUDGE, MUZAFFARABAD and others---Respondents

Writ Petition No.312 of 2013, decided on 30th October, 2014.

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

----Ss. 12(2) & 11, O.VII, R.11 & O.II, R.2---Limitation Act (IX of 1908), Ss.5, 14 & Art.181---Specific Relief Act (I of 1877), S.42---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Suit for declaration---Compromise decree, setting aside of---Limitation---Condonation of delay---Wrong forum, choice of---Effect---Negligence of litigant---Good faith---Due care and caution---Scope---Application for setting aside compromise decree was rejected by the Trial Court but case was remanded by the Appellant Court---Validity---Applicants had not been impleaded as party in the suit in which compromise decree was passed---Applicants being stranger could avail the remedy provided by law under S.12(2), C.P.C.---Applicants preferred to file a suit which was not competent in view of S.12(2),. C.P.C.---Applicant again filed an appeal after rejection of their plaint and they did not choose the right forum forthwith---When a party had chosen a wrong forum then he could not say that prosecution on his behalf was in good faith and he was entitled to the condonation of delay under Ss.5 & 14 of Limitation Act, 1908---Appellate Court was not competent to extend the benefit of choosing the wrong forum to the applicants and had travelled beyond the statutory law---Though no limitation was prescribed for moving the court under S.12(2), C.P.C. for setting aside a decree obtained through fraud and deception however, it had been ruled that Art.181 of Limitation Act, 1908 would be applicable which had provided 3 years limitation to an aggrieved person from the date when he got knowledge about such a decree or judgment---Applicants gained knowledge of compromise decree on 9-6-2004 and they filed application under S. 12)(2), C.P.C. on 24-2-2010 which was time-barred---Section 12(2), C.P.C. had barred independent suit for challenging a decree or judgment on the basis of fraud and had provided a speedy remedy for cancellation of such a decree---Trial Court and Appellant Court had rightly rejected the plaint filed by the applicants in the earlier round of litigation---Negligence of litigant could be condoned when his conduct was above board and he had not wasted any time when it was brought to his knowledge that he had chosen a wrong forum---Applicants went in appeal after rejection of plaint and remained prosecuting the same and it could not be said that prosecution of the case was in good faith and with due care and caution---Time so consumed could be extended under S.14 of Limitation Act, 1908 if forum was chosen with care and caution but in case of gross negligence no such condonation could be ordered---Impugned judgment passed by Appellant Court was illegal and arbitrary---Plaint was rejected under O.VII, R.11, C.P.C. and judgment was not passed on merits, therefore, neither the provisions contained in S.11 nor O.II, R.2, C.P.C. were attracted in the present case---Impugned judgment and order passed by the Appellate Court were declared to have been passed without lawful authority having no legal effect---Order passed on the application under S.12(2), C.P.C. filed on behalf of applicants by the Trial Court was restored---Writ petition was accepted in circumstances.

Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65; Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518; Mrs. Razia Begum v. Cantonment Board and another 2000 YLR 2114; Mst. Naseeban Bibi v. Muhammad Yahya Khan and another 1986 SCMR 1964; Khushi Muhammad and 2 others v. The Province of Punjab and 2 others 1999 SCMR 1633; Azad Government and another v. Kashmir Timber, Corporation PLD 1979 SC(AJ&K) 139; Messrs Abdul Hamid v. Board of Intermediate 1991 MLD 672; Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050; Mst. Hasina Kahtoon and others v. United Bank Limited and others 1993 MLD 1088; Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305; Sh. Manzoor-ul-Haq v. Begum Tasleem Riaz Hamdani and others 1983 SCMR 1022; Abdul Jabbar v. Muhammad Latif and others 1986 CLC 603; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; Saee and others v. The State 1984 SCMR 1068; Manzoor Hussain and 2 others v. Muhammad Ali and another, 1989 SCMR 1498; Islam Din v. Allah Nawaz and others 1988 SCMR 2; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Mian Azad Bakhsh v. Sheikh Muhammad Afzal 1985 SCMR 1003; Muhammad Bashir Khan v. Muhammad Sharif and 2 others 2011 SCR 214; Abdul Samad v. Muhammad Ali and another PLD 1977 Lah. 687; Mst. Aziza Begum and 5 others v. Muhammad Hussain Khan and 4 others 1995 CLC 1578; Messrs Service Industries Limited v. Mst. Kalsoom Bai 1992 CLC 2165; Zeegum Saleem Khan and another v. Mir Alam and 6 others 2006 CLC 1228; Mst. Wazir Begum v. Additional District Judge and others 1997 CLC 1654; Habib-ullah v. Mehmood 1984 CLC 309; Mst. Rafiya Latif v. Secretary Education and another 2003 PLC (C.S.) 1530 and Sakhiullah v. Habib ullah and others 2011 SCR 133 ref.

Mrs. Razia Begum v. Cantonment Board and another 2000 YLR 2114; Saee and others v. The State 1984 SCMR 1068; Islam Din v. Allah Nawaz and others 1988 SCMR 2; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Sardar Muhammad Azeem Khan and 5 others v. Muhammad Farooq Khan and 3 others PLD 2001 (AJ&K) 1; Monazah Parveen v. Bashir Ahmed and 6 others 2003 SCMR 1300; Tanveer Jamshad's case 1992 SCMR 917 and Government of Sindh and another v. Ch. Fazal Mehmood and another PLD 1991 SC 197 rel.

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

----S. 12(2)---Bar to file independent suit---Scope---Section 12(2), C.P.C. had barred independent suit for challenging a decree or judgment on the basis of fraud and it had provided a speedy remedy for cancellation of such a decree.

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

----S. 12(2)---Limitation Act (IX of 1908), Art.181---Decree obtained through fraud and deception, setting aside of---Limitation---No limitation provided for moving the court under S.12(2), C.P.C. for setting aside a decree obtained through fraud and deception however, it had been ruled that Art.181 of Limitation Act, 1908 would be applicable which had provided 3 years limitation to an aggrieved person from the date when he got knowledge about such a decree or judgment.

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

----S. 11 & O.VII, R.11 & O.II, R.2---Res judicata, principle of---Applicability---When plaint was rejected under O.VII, R.11, C.P.C. and judgment was not passed on merits then neither provisions contained in S.11, nor O.II, R.2, C.P.C. were attracted.

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

----O. VII, R.11---Suit/application, dismissal of---Scope---Under O.VII, R.11, C.P.C. suit or application could be dismissed when same was barred by law.

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

----S. 44---Writ jurisdiction of High Court---Scope---Such jurisdiction had been conferred on the High Court for correction of errors and procedural illegalities committed by the Special Tribunals or Courts in exercise of their jurisdiction---No embargo could be placed on the writ jurisdiction of High Court merely on the ground that like powers had been exercised by the court below.

Bashir Ahmed Mughal for Petitioners.

Manzoor Hussain Raja for Respondents.

P L D 2015 Islamabad 1

Before Athar Minallah, J

ANSAR MAHMOOD---Petitioner

Versus

JAMSHED AHMED MUSTAFA ZUBERI and 6 others---Respondents

Civil Revision No.198 of 2014, heard on 25th August, 2014.

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

----S. 152 & O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss.12 & 39---Suit for specific performance of contract and cancellation of agreement---Restraining order, clarification of---Scope---Application and scope of S.152, C.P.C.---Trial Court passed a restraining order against which an application for seeking clarification was moved and another restraining order was passed-Validity-Where order or judgment had been passed after application of mind then same would be outside the scope of S.I52, C.P.C. as error or omission in such order would not be construed as an accidental slip or omission---Every mistake by a court could not be termed as an error resulting from an `accidental slip' or 'omission'---Questions involving contentious issues could not be considered or corrected under S.152, C.P.C.---Court could not rectify a decree, judgment or order on the grounds that same was wrong or unfair---Section 152, C. P. C. did not authorize the court to supplement its judgment passed after application of mind and having effect of taking away rights accrued to other party---Errors should be such which might have crept into the order or decree inadvertently or unintentionally---Mistakes which did not go to the merits of the case and did not substantially affect rights of the parties could be corrected by exercising jurisdiction under S.152, C.P.C.---Trial Court had no jurisdiction to rectify the impugned order as same was not an error or mistake and questions raised in the application were of a contentious nature and same was intended to take away the rights already accrued in favour of other party through impugned order---Trial Court after taking into consideration the balance of convenience and irreparable loss granted relief which was neither an error nor an accidental slip---Impugned order was positive application of mind and was deliberate which had not been challenged by the other party---Rights accrued in favour of oilier party could not be taken away through impugned order---Impugned order passed by the Trial Court was set aside---Revision was accepted in circumstances.

Bank of Credit and Commerce International v. Messrs Ali Asbestos' Industries Ltd. and 5 others 1990 MLD 130; Mst. Rabia Bibi and others v. Ghulam Ahmed and others 1979 CLC 715; Pakistan Day Memorial Committee and others v. Mian Abdul Khaliq and Co. 1987 CLC 1169; Shaukat Ismail Charania v. Mrs. Shakeela Hayat Khan and others 2006 CLC 1126 and Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472 ref.

Bank of Credit and Commerce International v. Messrs Ali Asbestos' Industries Ltd and 5 others 1990 MLD 130; Mst. Rabia Bibi and others v. Ghulam Ahmed and others 1979 CLC 715; Pakistan Day Memorial Committee and others v. Mian Abdul Khaliq and Co 1987 CLC 1169 and Shaukat Ismail Charania v. Mrs. Shakeela Hayat Khan and others 2006 CLC 1126 distinguished.

Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472; Baqar v. Muhammad Rafique and others 2003 SCMR 1401; Muhammad Shahzad v. Khairati Khan and others, 1989 SCMR 189; Haji Ishtiaq Ahmed and 2 others v. Bakhshaya and 7 others 1976 SCMR 420; Koka Adinarayana Rao Naidu v. Koka Kothandaramayya Naidu and others AIR 1940 Madras 538 and Muhammad Aslam Lone v. Additional District Judge PLD 2008 Lah. 373 rel.

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

----S. 152---"Error", correction of---Scope---Section 152, C.P.C. had provided a speedy and inexpensive relief without resorting to other remedies available under the law---Scope for correction of error or mistake in the order was limited to 'clerical', 'arithmetical' mistake or `error' arising from any "accidental slip" or "omission"---Where order or judgment had been passed after application of mind then same would be outside the scope of S.152, C.P.C. as error or omission in such order would not be construed as an accidental slip or omission---Every mistake by a court could not be termed as an error resulting from an 'accidental slip' or 'omission'---Questions involving contentious issues could not be considered or corrected under S.152, C.P.C.--- Court could not rectify a decree, judgment or order on the grounds that same was wrong or unfair---Section 152, C.P.C. did not authorize the court to supplement its judgment passed after application of mind and having effect of taking away rights accrued to other party---Errors should be such which might have crept into the order or decree inadvertently or unintentionally---Mistakes which did not go to the merits of the case and did not substantially affect rights of the parties could be corrected by exercising jurisdiction under S.152, C.P.C.

Baqar v. Muhammad Rafique and others 2003 SCMR 1401; Muhammad Shahzad v. Khairati Khan and others 1989 SCMR 189; Haji Ishtiaq Ahmed and 2 others v. Bakhshaya and 7 others 1976 SCMR 420; Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472; Koka Adinarayana Rao Naidu v. Koka Kothandaramayya Naidu and others AIR 1940 Madras 538 and "Muhammad Aslam Lone v. Additional District Judge PLD 2008 Lah. 373 rel.

Malik Asif Tauffique Awan for Petitioner.

Riaz Ahmed Mohal for Respondent No.l.

Date of hearing: 25th August, 2014.

P L D 2015 Islamabad 7

Before Athar Minallah, J

RIAZ HANIF RAHI-Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Law and Justice, Islamabad and 9 others---Respondents

Diary No.10047 of 2014, decided on 5th September, 2014.

(a) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---Political question---Purely political questions are not justiciable---As a rule, political questions, as far as possible, should not be decided by courts and ought to be left for consideration to wisdom of Parliament---Such rule is not absolute and court does not refuse to exercise its jurisdiction of judicial review, if aggrieved person can demonstrate that question raised, though having a political content or complexity, involves a legal or constitutional issue.

Messrs Hudabiya Paper Mills Ltd. v. National Accountability Bureau PLD 2012 Lah. 515 rel.

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

---Preamble---Constitution of Pakistan, Arts.69 & 199---Constitutional petition---Vires of legislation---Direction to Legislators---Principle--­Petitioner assailed vires of Representation of the People Act, 1976 and sought direction to Electoral Reform Committee constituted by Parliament for electoral reforms-Validity-While examining views of legislation enacted through legislative process provided under the Constitution, powers of court was limited to examining whether primary legislation was repugnant, inconsistent or in conflict with provisions of the Constitution, whether legislature had legislative competence as envisaged in the Constitution, and whether the legislation violated or abridged fundamental rights guaranteed under the Constitution---Petitioner, in the present case, failed to raise any ground which could persuade High Court to exercise its jurisdiction, so as to go into the question of vires of Representation of the People Act, 1976---Narrative of petitioner raised questions which essentially related to wisdom of Parliament in enacting the Act---Wisdom of Parliament in enacting a law was outside the scope of judicial review---As long as legislature had competence to legislate, grounds or wisdom of legislation remained its exclusive prerogative---Proceedings of sub-committee constituted by Parliament fell within its "internal proceedings" and, therefore, same was outside the jurisdiction of High Court in terms of Art.69 of the Constitution-Constitution mandated that neither direction be given to legislature nor could legislature be dictated to regarding the manner in which it could legislate---Petition was dismissed in circumstances.

Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Mehmood Khan Achakzai and others v. Federation of Pakistan and others PLD 1997 SC 426; Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary Cabinet Division Government of Pakistan and 18 others PLD 1988 SC 725; S.A. Rafi and another v. Government of West Pakistan through Secretary to the Government of West Pakistan, Lahore and 4 others PLD 1973 Lah. 539; United Etates v. Munoz-Flores (United States Supreme Court) 1997 SCMR 119; Middleton v. Texas Power and High Co. (249 U.S. 152); Radice v. People of the State of New York 264 US 292; The State v. Zia ur Rehman PLD 1973 SC 49; Sh. Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P and another PLD 1995 SC 66; A. K. Fazalul Qader Chaudhty v. Syed Shah Nawaz and others PLD 1966 SC 105; Al-Jehad Trust through Habibul Wahab Al-Khairi; Advocate and 9 others v. Federation of Pakistan through Secretary Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379 and Asif Ali Zardari v. Federation of Pakistan and others PLD 1999 Kar. 54 ref.

Petitioner in Person.

P L D 2015 Islamabad 13

Before Athar Minallah, J

MONTAGE DESIGN BUILD through Partner---Appellant

versus

The REPUBLIC OF TAJIKISTAN through the Embassy of Tajikistan and 2 others---Respondents

F.A.O. No. 77 of 2014, decided on 10th December, 2014.

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

----Ss. 126 & 128---Contract of guarantee---Bank/insurance/ performance guarantee---Encashment of such guarantee---Distinction between "conditional" and "unconditional" guarantees---Independence and autonomy of contracts of guarantee---Nature and scope---In cases of construction or service contracts, advance paid to the contractor was known as the "mobilization advance"; and normally as a pre-condition for release of the advance to the contractor, the latter was required to furnish a guarantee, either from a bank or an insurance company---Two separate and distinct agreements/contracts existed in such cases, which were firstly, the underlying agreement and secondly, the bank or insurance guarantee---On completion of the agreed work, the guarantee was to be released, or it may be enforced/encashed if a default was committed---Depending upon the intention of the parties, a bank or insurance guarantee may be either conditional or unconditional---Conditional guarantee could only be invoked on fulfilment of the condition(s) stipulated therein; for example proof of breach or default---In case of unconditional guarantee, the guarantor, that was either the bank or an insurance company, was under an obligation to honour its commitment by making payment on demand; regardless of any dispute between the parties arising out of or connected with underlying agreement/contract---"Mobilization guarantee" was an independent contact, and terms and conditions stipulated therein determined its nature and consequent effect---Like any other contract, a guarantee came into existence as a legally binding agreement between two or more willing parties, and therefore, the same had to be read and interpreted independent of any other agreement or the underlying agreement pursuant to which it had been furnished.

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

----Ss. 126 & 128---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Contract of performance guarantee, in the form of a bank or insurance company issued guarantee---Grant of injunction/restraining order under O. XXXIX, Rr. 1 & 2, C.P.C. against encashment of an unconditional bank guarantee/insurance guarantee in suit filed by contractor who furnished such guarantee---Independence and autonomy of the contract of guarantee---Non-interference by courts in relation to the contracts of unconditional guarantee except in rare and exceptional circumstances---Concept of "fraud" and "irretrievable harm and injustice"---Comparative and illustrative jurisprudence and case-law, examined.

Standard Construction Company (Pvt.) Limited v. Pakistan through Secretary M/o Communication and others 2010 SCMR 524; Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191; Pak Consulting and Engineering (Pvt.) Ltd. v. Pakistan Steel Mills and another 2002 SCMR 1781; U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. (JT 1987 (4) SC 406); U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. (1988) 1 Supreme Court Cases 174; U.P. State Sugar Corporation v. Sumac International Ltd. (1997) 1 SCC 568; Itek Corporation v. First National Bank of Boston 566 Fed Supp 1210 (1983); Svenska Handelsbanken v. Messrs Indian Charge Chrome and others AIR 1994 SC 626; Messrs Tarapore and Co., Madras, v. Messrs V/o Tractoroexport Moscow and another AIR 1970 SC 891; United Commercial Bank v. Bank of India and others AIR 1981 SC 1426; Messrs BSES Ltd. (now Reliance Energy Ltd.) v. Messrs Fenner India Ltd. and another AIR 2006 SC 1148; Messrs Alcove Industries Ltd. v. Messrs Oriental Structural Engineers Limited AIR 2005 Delhi 173; Hindustan Construction Co. Ltd. v. State of Bihar and others (1999) 8 SCC 436; Vinitec Electronics Private Ltd. v. HCL Infosystems Ltd. (2008) 1 SCC 544; Hindustan Steel Works Construction Ltd. v. Tarapore and Co. and another (1996) 5 SCC 34 and Bolivinter Oil SA v. Chase Manhattan Bank and anothers (1984) 1 All ER 351 rel.

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

----Ss. 126 & 128---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Contract of performance guarantee, in the form of a guarantee issued by bank or insurance company---Grant of injunction/restraining order under O. XXXIX, Rr. 1 & 2, C.P.C. against encashment of an unconditional bank guarantee/insurance guarantee in suit filed by contractor who furnished such guarantee---Independence and autonomy of the contract of guarantee---Non-interference by courts in relation to the contracts of unconditional guarantee except in rare and exceptional circumstances---Grant of injunction against encashment of unconditional guarantee in cases of "fraud" and "irretrievable injustice and injury"---Scope---Bank or insurance guarantee was an independent contract, and its autonomy was to be protected; and the courts, as a rule, did not interfere with the autonomy of an unconditional and irrevocable guarantee except in certain exceptional circumstances, which were fraud and/or irretrievable injustice or injury; and it was not sufficient to raise or allege the plea of fraud, rather a prima facie case had to be made out to demonstrate an established fraud, both to the fact of fraud and the knowledge of the bank or the insurance company---Scope of irretrievable injury or injustice" was narrow and limited and the basic test was that the court had to be satisfied that plaintiff would have no adequate remedy if injunction was refused---In money matters there would be no "irreparable loss or injury", because a decree was executable and in order to satisfy the test for granting an injunction which restrained the encashment of an irrevocable and unconditional guarantee, the question ought to be whether a money decree passed by a competent court would be executable, and if the answer was in the affirmative, a case for granting an injunction would not be made out as it would not amount to an irretrievable injury or injustice---Plea of irretrievable injury or injustice therefore must be genuine and immediate and not speculative and a mere apprehension that the other party would not be able to pay, was not enough---Certainty and the impossibility to recover must be "decisively established"---Relying on the principle that a guarantee was independent and its autonomy was to be protected, a court should not be influenced by either the dispute arising out of the primary or underlying agreement, or whether or not in a suit, a prima facie case was made out---Said rule had been laid down to ensure certainty of binding contractual commitments, keeping the sanctity and autonomy of a guarantee a paramount consideration so as to ensure confidence in commercial and mercantile spheres; therefore the courts were slow and showed restraint in interfering in encashment of an unconditional guarantee, except in very exceptional cases.

Anwarul Haq v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and 13 others 1995 SCMR 1505; Messrs Continental Cable (Pvt.) Ltd. v. Messrs China Harbor Engineering Co. Ltd. and another 2011 CLD 1625; Sandoz Limited and another v. Federation of Pakistan and others 1995 SCMR 1431; Province of West Pakistan v. Messrs Mistri Patel and Co. and another PLD 1969 SC 80; Messrs Jamia Industries Ltd. v. Messrs Pakistan Refinery Ltd. PLD 1976 Kar. 644; Saudi-Pak Industrial and Agricultural Investment Company (Pvt.) Ltd. Islamabad v. Messrs Allied Bank of Pakistan and another 2003 CLD 596; Messrs Strong Built Enterprises (Pvt.) Ltd., Lahore v. Fauji Fertilizer Company Ltd. through Resident Manager, Sadiqabad 1998 MLD 1628; Hyundai-Hidco-Hakas Joint Venture v. Water and Power Development Authority PLD 2003 Lah. 714 and Messrs Syed Bhais (Pvt.) Ltd. through Director v. Government of Punjab through Secretary Local Government and 3 others 2012 CLD 298 ref.

Kirloskar Pneumatice Company Ltd. v. National Thermal Power Corporation Ltd. and another AIR 1987 Bombay 308 rel.

(d) Interpretation of Documents---

----Contents of a document had to be read as a whole.

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

----Ss. 126 & 128---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Contract of guarantee, nature of---Unconditional guarantees issued by banks and insurance companies---Obligation of banks and insurance companies to encash unconditional guarantees immediately---Non-interference by courts in such unconditional and irrevocable guarantees---Irrevocable and unconditional guarantee like any other contract stood on the foundation of entering into binding contractual obligations voluntarily and the principle of freedom to contract---Once parties had executed binding commitments, they were expected to observe certain standards of behaviour---Insurance Companies and Banks promptly issued unconditional guarantees and when demand for encashment of the same was made, many avoided fulfilling such commitments and undertakings---Delay in payment of guaranteed amount is usually made for allowing parties an opportunity to seek intervention of the courts in the hope that an injunction may be obtained---Similarly, contractors in their exuberance for release of advance payments under a contract, cause unconditional guarantees to be furnished as security, but when a demand on the same was raised for encashment, they expected that the courts would come to their rescue despite unambiguous language of the guarantee---Courts had no powers to interfere with, alter, vary, or in any other manner change the intention of the parties who voluntarily entered into binding contractual commitments; nor could the courts rewrite or defeat terms agreed and explicitly stipulated in a contract---Granting an injunction and restraining encashment of an irrevocable and unconditional guarantee would amount to changing nature of the agreed terms and conditions of the contract, and frustrating intention of the parties---High Court observed that the parties, particularly the banks and insurance companies, should exercise care and caution while issuing unconditional and irrevocable guarantees and it was expected of them to take sufficient care instead of avoiding their absolute obligations by delaying payments.

Barrister Suleman Khan for Appellant.

Barrister Afzal Hussain for Respondent No.1.

Altaf Ellahi Sheikh for Respondent No.2.

Muhammad Anwar Darr for Respondent No.3.

Date of hearing: 12th November, 2014.

P L D 2015 Islamabad 30

Before Athar Minallah, J

Malik MUHAMMAD RAFIQUE---Petitioner

versus

Mst. TANVEER JAHAN and another---Respondents

Civil Revision No.6 of 2011, heard on 26th December, 2014.

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

----S. 372---Succession certificate, grant of---DNA test, conduct of--Scope---Trial Court granted succession certificate---Applicant had challenged grant of succession certificate on the ground that respondent was an adopted child of the deceased and was not entitled to the grant of succession certificate---Application was dismissed concurrently---Validity---Paternity of respondent was not challenged during the life time of deceased---Dispute for the first time was raised by the applicant after the succession certificate was granted in favour of respondent---Applicant was the real brother of the deceased and after the succession certificate was granted he had challenged the paternity of respondent---Nothing was on record which would prima facie make out a case in favour of applicant---Applicant and respondent had filed respective suits seeking declaration with regard to status of respondents as a legal heirs of the deceased---Proceedings under Succession Act, 1925 were of summary nature and such intricate questions could not be resolved in such proceedings---Court was bound to safeguard and protect the personal liberty of every person---DNA test could be ordered to be conducted under exceptional circumstances when there was a prima facie strong case---Neither blood samples could be taken nor a DNA test could be conducted in routine unless the person whose paternity had been challenged expressly had given his/her consent---Sufficient material had to be placed on record to make out a 'strong' prima facie case for conducting a DNA test---Applicant had not been able to make out a strong prima facie case nor was consent given by the respondent at any stage---No material irregularity or illegality had been pointed out in the impugned orders passed by the courts below---Revision was dismissed in circumstances---Applicant was imposed a cost of Rs.25,000/- for dragging the respondent into such frivolous litigation.

Anwar Khan v. Fazal Manan 2010 SCMR 973; Sikandar Ali v. Robina Kousar 2006 CLC 1475; Mst, Akhtar Begum v. Muslim Commercial Bank Ltd. 2009 SCMR 264; Shamsher Ali Khan v. Major-General Sher Ali Khan and 14 others PLD 1988 Lah. 588; Mst. Shamshad Bibi v. Bushra Bibi and 3 others PLD 2009 Isl. 11; Tariq Masih v. Station House Officer, Police Station Nishtar Colony, Lahore and 2 others 2006 PCr.LJ 13; Mst, Suri v. Home Secretary District Gilgit 2011 PCr.LJ 1287; Bashir Ahmed Khan v. Qaiser Ali Khan and 2 others PLD 1973 SC 507; Messrs National Security Insurance Company Limited and others v. Messrs Hoechst Pakistan Limited and others 1992 SCMR 718; Allah Bakhsh and 3 others v. Muhammad Abdullah and 10 others 1995 CLC 331; Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511. Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 and Salman Akram Raja and another v. Government of Punjab through Chief Secretary, Civil Secretariat, Lahore and others 2013 SCMR 203 ref.

Salman Akram Raja and another v. Government of Punjab through Chief Secretary, Civil Secretariat, Lahore and others 2013 SCMR 203 and Goutam Kundu v. State of West Bengal and another AIR 1993 SC 2295 rel.

(b) Administration of justice---

----Court was bound to safeguard and protect the personal liberty of every person.

Muhammad Siddique Awan for Petitioner.

Yasir Hanif Satti for Respondents.

Date of hearing: 26th December, 2014.

P L D 2015 Islamabad 36

Before Muhammad Anwar Khan Kasi, C.J.

SHELL PAKISTAN LIMITED, KARACHI through Attorney---Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and 2 others---Respondents

Writ Petitions Nos.1741 of 2014, 3404 of 2013, 903 of 2014, 979 of 2014, 980 of 2014, 981 of 2014, 982 of 2014, 985 of 2014, 994 of 2014, 995 of 2014, 996 of 2014, 997 of 2014, 1001 of 2014, 1002 of 2014, 1168 of 2014, 1222 of 2014, 1325 of 2014, 1429 of 2014, 1892 of 2014, 2633 of 2014, 3326 of 2014, 3423 of 2014, 3667 of 2014, 3669 of 2014, 4074 of 2014 and 4343 of 2014, decided on 11th March, 2015.

(a) Islamabad (Control of Advertisement) Regulations, 1977---

----Regln. 5---Municipal Administration Ordinance (X of 1960), S. 33 & Third Sched., Entry No. 22---Capital Development Authority Ordinance (XXIII of 1960), S.51---West Pakistan General Clauses Act (VI of 1956), S.20---Constitution of Pakistan, Arts. 4, 18, 25, 70, 77, 141, 142 & 143, 199 & Fourth Sched., Part I, Entry No. 48---Constitutional petition---Islamabad (Control of Advertisement) Regulations, 1977, vires of---Commercial entities having operational outlets within Islamabad Capital Territory---Sign boards on business premises---Notice for payment of advertisement fee---Contention of petitioners/commercial entities that impugned levy/advertisement fee was against the freedom of trade and was a trespass in the authority of Parliament for the reasons that only Parliament could impose tax concerning the purposes of Federation and tax on corporations which was mentioned at entry No. 48 of Federal Legislative List contained in Fourth Schedule of the Constitution; that the provisions of subordinate legislation in the shape of Islamabad (Control of Advertisement) Regulations, 1977, could not prevail due to being inconsistent with Federal Legislation i.e. Municipal Administration Ordinance, 1960, and that the rate of advertisement fee had been changed without approval of the Government---Validity---Said contentions did not inspire confidence because freedom of trade guaranteed under Art. 18 of the Constitution was qualified and remained subject to law and where a condition had been imposed under the authority of law, it could not be presumed to be in contravention of the freedom of trade---Regarding the subject of Federal Legislative List, joint reading of Arts.70 & 77 of the Constitution showed that the expression "by or under the authority" used in Art.77 empowered the Parliament/legislature to delegate the mentioned powers to another institution---Islamabad (Control of Advertisement) Regulations, 1977 was issued in exercise of power under S.51 of the Capital Development Authority Ordinance, 1960, which was a federal legislation by all means and a levy imposed thereby could not be called contravention of the Federal Legislative List or the Constitution---Contention that the Islamabad (Control of Advertisement) Regulations, 1977, was in conflict with S.33 of the Municipal Administration Ordinance, 1960 whereby the levy could not be imposed without sanction of the Government, was misconceived because levy had been allowed pursuant to the entry No.22 of Third Schedule to the Municipal Administration Ordinance, 1960---Islamabad (Control of Advertisement) Regulations, 1977 was notified in Part II of the Gazette of Pakistan on 23-6-2008 and petitioners/ commercial entitles in the present case kept paying the impugned advertisement fee without any objection and at a belated stage challenged the same without an explanation for such delay---Contention that rate of fee had been changed without approval of the government was not tenable because under S.20 of West Pakistan General Clauses Act, 1956, a 'power to makes rules' included the 'powers to add and amend the same'---Islamabad (Control of Advertisement) Regulation, 1977 as well as notifications amending the fee rate published in the Gazette of Pakistan could not be held to be ultra vires to the law or Constitution---Constitutional petition was disposed of accordingly.

Messrs Coca-Cola Beverages v. Cantonment Board Chaklala and others 2011 MLD 1937 distinguished.

All Pakistan Textile Mills Association v. Province of Sindh through Secretary and others 2004 YLR 192 and Bilquis Anwar Khan v. Pakistan 2001 SCMR 809 ref.

(b) Islamabad (Control of Advertisement) Regulations, 1977---

----Reglns. 12 & 13---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Alternate remedy of appeal---Adequacy and efficacy of alternate remedy---Commercial entities having operational outlets within Islamabad Capital Territory---Notice for payment of advertisement fee---Commercial entities assailed the demand of advertisement fee---Contention of respondent/Capital Development Authority was that constitutional petition was not maintainable due to availability of alternate remedy within the departmental hierarchy under Regln. 13 of the Islamabad (Control of Advertisement) Regulations, 1977---Validity---Mere right of appeal against the impugned order was not sufficient to exclude constitutional jurisdiction and the court was required to ascertain whether such right of appeal constituted 'alternate' remedy besides being adequate and efficacious---Commercial entities/petitioners, in the present case had challenged the very authority of Capital Development Authority to raise the demand of (advertisement) fee, therefore, appeal before the same forum whose jurisdiction had been challenged could neither be called adequate nor an alternate remedy---Constitutional petition filed before the High Court was held to be maintainable accordingly.

Muhammad Aslam v. Senior Member Colonies Board of Revenue Punjab and others 2004 SCMR 1587 and Town Committee Gakhar Mandi v. Authority Under the Payment of Wages Act, Gujranwala and 57 others PLD 2002 SC 452 ref.

(c) Islamabad (Control of Advertisement) Regulations, 1977---

----Regln. 2(1)---Advertisement, definition of---Scope---Facia boards and identification boards---Definition of the word "advertisement" provided under Regln.2(1) of the Islamabad (Control of Advertisement) Regulations, 1977, was exhaustive enough to include all kinds of facia boards and identification boards.

(d) Islamabad (Control of Advertisement) Regulations, 1977---

----Regln. 2(10)---Advertisement on property---Private and public owned properties---Islamabad (Control of Advertisement) Regulations, 1977, drew no distinction between public or private owned properties and the only restriction upon area of its application had been made under Regln.2(10) of the said Regulations, whereby the advertisement falling within the regime of the said Regulations was restricted to that which was 'on' the building or land instead of inside of buildings, meaning thereby that the outer structures of private or public owned building remained subject to the Islamabad (Control of Advertisement) Regulations, 1977.

(e) Islamabad (Control of Advertisement) Regulations, 1977---

----Reglns. 3(b) & 4---Advertisements required to be displayed by statute---Excluded from requirement of permission by Authority---Advertisement fee, payment of---Scope---Where permission was not mandatory for displaying an advertisement, fee was not applicable, however, where the advertisement did not conform to the restriction or the standard size given in Regln. 4 of the Islamabad (Control of Advertisement) Regulations, 1977, it would automatically lose cover under Regln. 3 of the said Regulations and requirement of permission and the fee would become applicable.

(f) Islamabad (Control of Advertisement) Regulations, 1977---

----Regln. 3(b)---Capital Territory Local Government Ordinance (XXXIX of 1979), Ss. 64 & 65 & Sched. II, Item No. 22--- Capital Development Authority Ordinance (XXIII of 1960), Ss. 1(2), 2(p), 51 & Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Advertisement fee, payment of---Rural areas---Applicability of Islamabad (Control of Advertisement) Regulations, 1977 in rural areas---Scope---Question as to whether Capital Development Authority could demand levy of (advertisement) fee in rural areas---Sections 64 & 65 and Item 22 of Sched. II to the Local Government Ordinance, 1979 authorized administrator of the Union Council to levy fee---Islamabad (Control of Advertisement) Regulations, 1977 had been issued under the Capital Development Authority Ordinance, 1960, therefore, the same had applicability within the area of the operation given under Ss.1(2) & 2(p) read with Schedule to the said Ordinance, which drew no distinction between the rural or the urban areas---Capital Development Authority could levy fee, irrespective of urban or rural territory, in accordance with the Islamabad (Control of Advertisement) Regulations, 1977 [except the statutory advertisement subject to size requirement]---Constitutional petition was disposed of accordingly.

(g) Tax---

----"Tax" and "fee"---Distinction---Levy, nature of---Mere nomen-clature given to a levy was not determinative but was assessed on the basis of established characteristic distinction between a 'tax' and 'fee'---Tax was imposed to share the common burden while fee was levied as a charge against a benefit or privilege.

PakCom Limited v. FOP PLD 2011 SC 44 and Collector of Customs v. Sheikh Spinning Mills 1999 SCMR 1402 ref.

(h) Islamabad (Control of Advertisement) Regulations, 1977---

----Regln. 5---Constitution of Pakistan, Art. 199---Constitutional petition---Advertisement fee, imposition of---Question was as to whether advertisement fee was a "tax" or a "fee"---Tax was imposed to share the common burden while fee was levied as a charge against a benefit or privilege---Islamabad (Control of Advertisement) Regulations, 1977, itself used the name 'advertisement fee' because it was not a common burden which was being shared rather it was being imposed as a fee---Constitutional petition was disposed of accordingly.

PakCom Limited v. FOP PLD 2011 SC 44 and Collector of Customs v. Sheikh Spinning Mills 1999 SCMR 1402 ref.

(i) Islamabad (Control of Advertisement) Regulations, 1977---

----Regln. 5---Constitution of Pakistan, Art. 199---Constitutional petition---Advertisement fee---Quid pro quo, principle of---Scope---Contention of petitioners that imposition of advertisement fee in relation to the signboards displayed on private properties, ran counter to the principle of quid pro quo because no corresponding service was being provided by the concerned Authority---Validity---Uniformity of sign boards sought to be achieved through Islamabad (Control of Advertisement) Regulations, 1977, required management which was the service provided by the concerned authority satisfying the requirement of quid pro quo---Petitioners had admittedly been paying the fee previously---Certain kinds of 'fee' were such that the corresponding consideration was not clearly perceivable and pertained to privilege or benefit, such as in case of 'regulatory fees' where the authority exacted the fee against the service of regulating an obligatory duty from the public---'Arms License Fee' or other 'professional fees' were examples of such regulatory fee where the corresponding service was not that conspicuous as it was in the case of water supply fee received by the municipality, but either way it could not be called exaction of money to share common burden, therefore, it was not termed as tax and was called "fee"---Constitutional petition was disposed of accordingly.

PakCom Limited v. FOP PLD 2011 SC 44 and Secunderabad Hyderabad Hotel Owners Association and others v. Hyderabad Municipal Corporation and others AIR 1999 SC 635 ref.

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

----Ss. 15(2) & 51---Islamabad (Control of Advertisement) Regulations, 1977, Regln. 5---Capital Territory Local Government Ordinance (XXXIX of 1979), S. 102---Capital Territory Union Councils (Contract) Rules, 1981---Constitution of Pakistan, Art. 199---Constitutional petition---Maxim: Delegatus non potest delegari, principle of---Advertisement fee, collection of---Capital Development Authority entering into a contract with a contractor/private party assigning it powers of collecting advertisement fee---Legality---Question was as to whether Capital Development Authority was competent to enter into such a contract, and whether statutory function of collecting advertisement fee could be sub-delegated to such a contractor---Validity of a contract entered into by a public functionary was evaluated inter alia on the basis of three questions; firstly, whether the award of contract had been done in a transparent manner by observing rules on the subject; secondly, whether under the law, 'Authority' had the jurisdiction to enter into a contract, and, thirdly, whether the statutory Authority could not delegate fee collection function under any circumstances---No allegation had been made against the process of awarding the contract in the present case---Section 15(2)(v) of the Capital Development Authority Ordinance, 1960 [as well as the Capital Territory Union Councils (Contract) Rules, 1981 read with S.102 of the Capital Territory Local Government Ordinance, 1970 in rural areas] clearly empowered the Capital Development Authority to enter into the contract for purposes of the Capital Development Authority Ordinance, 1960---Islamabad (Control of Advertisement) Regulations, 1977, had been issued under the authority of S.51 of the Capital Development Authority Ordinance, 1960, therefore, implementation of the same constituted purposes of the said Ordinance---Regarding sub-delegation of its statutory function by the Capital Development Authority, the contractor had been merely assigned the role of collecting the fees on behalf of authority without any discretionary powers---Further the contractor, in terms of the contract, had not been allowed to take coercive measures on his own against the defaulting licensees---Such assignment did not run counter to the principle of delegatus non potest delegare [one to whom power is delegated cannot himself further delegate that power]---Constitutional petition was disposed of accordingly.

(k) Maxim---

----Qui facit per alium facit per se, principle of---Where a ministerial function was assigned to a private person, on the basis of common law principle of qui facit per alium facit per se [He who acts through another does the act himself], status of such repository was equivalent of the functionary who was originally delegated the function by the statute.

(l) National Highway Authority Act (XI of 1991)

----Ss. 2(j) & 4---National Highways and Strategic Roads (Control) Rules,1998 [as amended in 2002], R. 2(xx)---National Highway Authority Roads Maintenance Accounts Rules, 1998, R.2(c)---Constitution of Pakistan, Art. 199--- Constitutional petition---National Highway Authority---Levy of advertisement fee/rent for sign boards displayed on private premises on the building line of the highway/motorway---Legality---"Right of Way"---Scope---Contention by National Highway Authority was that it could impose fee/rent upon private properties situated on the building line across the highways/motorways as it was empowered to generate income by subjecting its 'Right of Way' to commercial way, and that it could take appropriate measures for corridor management---Validity---Nothing had been brought on record by National Highway Authority in the present case to show that requirement of fee/rent or permission had been made mandatory for installing sign boards on private premises falling on the building line of highways and motorways---Definition and explanation of 'Right of Way' as provided under S.2(j) of the National Highway Authority Act, 1991, and R.2(c) of National Highway Authority Roads Maintenance Accounts Rules, 1998, respectively, did not include building line---Corridor management under no circumstances, included levy of fee/rent for the boards displayed on private premises on the building line of the highway---According to R.2(c) of National Highway Authority Roads Maintenance Accounts Rules, 1998, jurisdiction of National Highway Authority with respect to regulation of building line included its commercialization, however such commercialization could not be presumed to mean that National Highway Authority had authority to impose levies upon commercial activities, rather the same was meant to oversee the commercialization in the back drop of road safety---Provisions of S.4 of the National Highway Authority Act, 1991, clearly showed that prime function of the said Authority was not to generate revenue (raise funds) through commercial use---Demand of fee/rent for sign boards on private premises falling on the building line of highway was held to be illegal and ultra vires to the National Highway Authority Act, 1991, as well as the relevant rules, however High Court directed that National Highway Authority may regulate the size and other characteristics of sign boards in view of carriage way visual and road safety---Constitutional petition was disposed of accordingly.

(m) Tax---

----Tax/fee, levy of---Scope---No authority could be clothed with unbridled powers to levy fees/taxes upon a class of persons which had not been specifically mentioned in a statute or regulation.

Salim ur Rehman, Advocate Supreme Court and Raja Muqsit Nawaz Khan for Petitioner (in Writ Petitions Nos.1168 and 4074 of 2014).

Malik Muhammad Siddiqui Awan for Petitioner (in Writ Petitions Nos.1222, 1429, 3404, 979, 980, 981, 982, 985, 994, 995, 996 and 997 of 2014).

Malik Sardar Khan for Petitioner (in Writ Petition No.2633 of 2014).

A. Ammar Sehri for Petitioner (in Writ Petitions Nos. 1325 and 2423 of 2014).

Hafeez ur Rehman for Petitioner (in Writ Petition No.1892 of 2014).

Mansoor Usman Awan and Hussain Ibrahim Muhammad for Petitioner (in Writ Petitions Nos. 1001 and 1002 of 2014).

Muhammad Aurangzeb Khan and Muhammad Hamid Khan for Petitioner (in Writ Petition No. 903 of 2014).

Habib Ahmed Bhatti and Akhlaq Ahmed Bhatti for Petitioner (in Writ Petition No. 3326 of 2014).

Barrister Suleman Khan and Ms. Hadya Aziz for Petitioner (in Writ Petitions Nos.3667 and 3669 of 2014).

Ibrar Hussain for Petitioner (in Writ Petition No.4343 of 2014).

Ms. Muhammad Nazir Jawwad and Raja Adnan Aslam for Respondents Nos. 1 and 2.

Qamar Hussain Sabzwari, Syed Intekhab Hussain Shah, Mujeeb ur Rehman Kiani, Dr. Farhat Zafar and Sh. Anwar ul Haq, Advocates Supreme Court for Respondent No.3 (in Writ Petition No.1741 of 2014).

Khubaib Aziz for NHA (in Writ Petition No.4074 of 2014).

Ali Hussain Bhatti for Respondents Nos. 6 to 9 (in Writ Petition No. 3667 of 2014).

Rizwan Ejaz for Respondent No.3 (in Writ Petition No.3423 of 2014).

Date of hearing: 15th December, 2014.

P L D 2015 Islamabad 65

Before Athar Minallah, J

OMER ISMAIL KHALID and others---Petitioners

versus

PAKISTAN MEDICAL AND DENTAL COUNCIL and others---Respondents

Writ Petition No.3944 of 2013, decided on 9th December, 2014.

(a) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)--

----S. 15---Foreign qualified person, registration of---Pre-requisites---Holding a qualification from medical institution outside Pakistan, qualifying National Examination Board (NEB) examinations so that the Council is satisfied that the person possesses sufficient 'knowledge and skill' and issuance of notification by Federal Government are mandatory pre-requisites for registration under Pakistan Medical and Dental Council Ordinance, 1962.

(b) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)--

----S. 15 [as inserted by Medical and Dental Council (Amendment) Act (XIX of 2012)]---Constitution of Pakistan, Art. 199---Constitutional petition---National Examination Board (NEB) examination---Petitioners completed their studies in the field of medicine from China but Pakistan Medical and Dental Council (PMDC) refused to register them as medical practitioner unless they had passed NEB examination---Plea raised by petitioners was that condition to appear before NEB examination was introduced by amendment in law and the same could not have retrospective operation (in case of petitioners)---Validity---When amendment came into effect through Medical and Dental Council (Amendment) Act, 2012, petitioners had not acquired and did not hold or possess qualification granted by foreign university---Merely on the basis of enrolment or admission no right had accrued to petitioners---Petitioners graduated and were granted qualifications by foreign university after the Medical and Dental Council (Amendment) Act, 2012, had come into force, and S.5 of Pakistan Medical and Dental Council Ordinance, 1962, made it mandatory for every person holding qualification granted by a medical institution outside Pakistan to take examination by a Board constituted by the Council, so that the latter was satisfied that he or she possessed sufficient knowledge and skill to be registered as a practitioner for the purposes of Pakistan Medical and Dental Council Ordinance, 1962---Petitioner could not claim registration under Pakistan Medical and Dental Council Ordinance, 1962, as no right was created either prior or after promulgation of Medical and Dental Council (Amendment) Act, 2012---High Court declined to intefere in decision made by PMDC whereby petitioners were to take examination by NEB---Petition was dismissed in circumstances.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Mirza Mehmood Sharif Beg and 4 others v. Claims Commissioner, Pakistan, Lahore and another PLD 1973 Lah. 114; Ghulam Haider v. Mst. Raj Bhari and 4 others PLD 1973 Lah. 372; Pakistan Steel Mills Corporation v. Muhammad Azam Katper and others 2002 SCMR. 1023; Khalid Qureshi and 5 others v. United Bank Limited I. I. Chundrigar Road, Karachi 2001 SCMR 103; Water and Power Development Authority Lahore through Chairman and others v. Haji Abdul Aziz and others 2012 SCMR 965; Senior Member Bar and others v. Sardar Bakhsh Bhutta 2012 SCMR 864; Mst. Sarwar Jan and others v. Mukhtar Ahmed and others PLD 2012 SC 217; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; Muhammad Farooq through Legal Heirs and others v. Muhammad Hussain and others 2013 SCMR 225; Muhammad Ayyub v. The State 2014 PCr.LJ 178; Ch. Aamir Ali v. The State 2002 YLR 1902; Director General Ordnance Services, General Headquarters, Rawalpindi v. Muhammad Abdul Latif 2003 SCMR 410; Corporation through Chairman v. Inayat Rasool 2003 PLC (C.S.) 333; Muhammad Shahab v. Government of KPK through Secretary Health Peshawar and 2 others 2013 PLC (C.S.) 712; Witherell v. Weimer, 421 NE.2d. 869 and Ram Sukh and others v. State of Rajasthan and others AIR 1990 SC 592 ref.

(c) Estoppel---

----Promissory estoppel---Scope---Promissory estoppel is an equitable doctrine with the object of pre-empting the suffering of any loss arising out of a promise made and is invoked so as to prevent violation of and to safeguard rights accrued pursuant to such promise---Promise was essentially to be made by a person competent to represent the Authority on behalf of which a promise was being made and the person to whom representation had been made changed his position to his detriment took a decisive step and entered into a binding contract or incurred a liability.

Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687; Dr. Muhammad Munir-ul-Haq and others v. Dr. Muhammad Latif Chaudhty and others 1992 SCMR 2135; West Punjab Government v. Messers Pindi-Jhelum Valley Transport Ltd. Rawalpind and others PLD 1960 SC 88; Naseer Ahmed and another v. Asghar AIi 1992 SCMR 2300; Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Mst. Sharif Bibi and another v. Syed Muhammad Nawaz Shah and others 2008 SCMR 1702; Syed Muhammad Hussain Shah v. Abdul Qayyum and others 2011 SCMR 743; Mrs. Zohra Begum v. Pakistan Burmah Shell 1988 SCMR 756; Ikram Bus Service and others v. Board of Revenue, West Pakistan PLD 1963 SC 564; Islamic Republic of Pakistan v. Israrul Haq and 23 others PLD 1981 SC 531; Pir Sabir Shah v . Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66; Pakistan through Ministry of Finance, Economic Affairs and others v. Fecto Belarus Tractors Limited PLD. 2002 SC 208; Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Messrs MY Electronics Industries (Pvt.) Ltd through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others 1998 SCMR 1404 rel.

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

----Art. 114---Estoppel against statute---Scope---No estoppel against a statute.

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

----S. 21---Locus poentenitiae, principle of---Scope---Once an order has taken effect and in pursuance thereof certain rights have been created in favour of a person, then such order cannot be withdrawn or rescinded to the detriment of rights created---Locus poenitentiae is principle of law, according to which an order once passed becomes irrevocable and past and closed transaction---Illegal order does not create a right, nor can perpetual rights be gained or claimed on the basis of such an illegal order---Principle of locus poenitentiae can only be invoked in respect of order which is legal and not in any respect an order which is contrary to and in contravention of any provision of law or rules made thereunder---Principle of locus poenitentiae is applicable only in respect of order passed by Authority which was competent and in accordance with law.

(f) Order---

----Unlawful order---Effect---When basic order is without lawful authority then no superstructure can be built thereon, and if that is the case then such structure also falls on the ground automatically.

Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others 2011 SCMR 408; Executive District Officer (Edu). Rawalpindi v. Mst. Rizwana Kausar and 4 others 2011 SCMR 1581; Nazir Ahmed Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCMR 1814; Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835 and The Engineer-In-Chief Branch through Ministry of Defence, Rawalpindi and another v. .Jalaluddin PLD 1992 SC 207. rel.

Barrister Masroor Shah, Muhammad Munir Paracha and Nouman Munir Paracha for Petitioners.

Malik Qamar Afzal and Nabeel Rehman for Respondents.

Malik Faizal Rafiq, Deputy Attorney-General.

Date of hearing: 29th October, 2014.

P L D 2015 Islamabad 81

Before Aamer Farooq, J

MUHAMMAD FAROOQ KHAN---Appellant

versus

EXCEL-LABS, through Central Executive Officer and another---Respondents

Criminal Appeal No.114 of 2013, decided on 26th January, 2015.

(a) Islamabad Consumers Protection Act (III of 1995)---

----Preamble, Ss.2(1)(2)(3)(4)(5)(6), 6, 8 & 9---"Unfair trade practice"---Scope---Appellant in the present case approached Pathalogical Laboratory for tests---Report compiled by the Laboratory showed 'Celiac Disease'---Physician on the basis of the said report advised the appellant not to eat wheat or any of its by-products---After about more than a year, the tests were conducted again from another Laboratory---Report, provided the said other Laboratory indicated that appellant was not suffering from 'Celiac Disease'---Complaint of appellant was dismissed by the competent authority on the ground that act of Laboratory did not fall within the purview of "unfair trade practice"---Jurisdiction of Authority, constituted under Islamabad Consumers Protection Act, 1995 could be invoked under S.6(1) of the Act, and procedure for disposal of complaint was provided under S.8 of the Act---Complainant, could in respect of any service provided or supplied, file a complaint with the Authority---Islamabad Consumers Protection Act, 1995, was enacted to promote and protect the interests of the consumers and was passed to protect society and individuals from exploitation---Laboratory which undertook the first test provided =service of conducting Pathological test on the basis of which medical treatment ensued---Conduction of the tests, and compilation of report constituted "services" within the meaning of Islamabad Consumers Protection Act, 1995---Said Act was enacted to protect the society, and such like enactments, were to be given purposive interpretation, keeping in regard the basic intent of the statute and without transgressing its objects and scope---Appellant being a consumer and Laboratory rendered service to the consumer, complaint before the Authority could be instituted---Authority, misconstrued the provisions of Islamabad Consumers Protection Act, 1995 by holding that the complaint was not maintainable---Impugned order was set aside, and matter was remanded to the Authority for decision on merits, in circumstances.

(b) Interpretation of statutes---

----Law enacted to protect the Society was to be given purposive interpretation, keeping in regard the basic intent of the statute, without transgressing its objects and scope.

Malik Saqib Mehmood for Appellant.

Misbah ul Mustafa for Respondents.

Date of Decision: 26th January, 2015.

P L D 2015 Islamabad 85

Before Noor-ul-Haq N. Qureshi and Shaukat Aziz Siddiqui, JJ

Malik MUHAMMAD MUMTAZ QADRI---Appellant

versus

The STATE---Respondent

Criminal Appeal No.90 and capital sentence Reference No.1 of 2011, decided on 9th March, 2015.

(a) Constitution of Pakistan---

----Arts. 2A, 9, 10A & Preamble---Security of person---Scope---Implementation of laws and dispensation of justice---Duty of State and Judiciary---No individual to take law into his own hands---Subjects of the State of the Islamic Republic of Pakistan by virtue of the framing of the Constitution had executed a social contract and they agreed to surrender their individual authority in favour of the State to be exercised through the chosen representatives of the people---After framing of the Constitution no individual person/citizen of the State was left with any authority to take the law in his own hands and to pass the judgments for himself touching the rights of the others and it was only for the State and its various pillars/organs to resolve the controversies and disputes between the individuals, the citizens of the State and to ensure that the principles of the Islamic law were implemented in every sphere of life qua at an individual, social and international level---Furthermore, the Preamble to the Constitution and the Objectives Resolution itself provided that judiciary of the State would be fully independent so as to ensure the dispensation of justice to the entire satisfaction of the people who opted to exercise the powers and authority through their chosen representatives---Security of life and liberty could not be taken away by individuals or group of individuals, but only by the State and that too in accordance with the procedure prescribed therein--- When someone committed a crime, law was there to deal with him and no one was authorized to take law into his own hands.

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

----Ss. 302(b) & 295-C---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qanun-e-Shahadat (10 of 1984), Art. 121---Qatl-i-amd, act of terrorism---Death sentence, award of---Blasphemy law---Conviction and sentence of blasphemer---Duty of Court and not that of an individual---Grave and sudden provocation---Scope---Accused who was deputed as a security guard for the deceased fired at and killed the latter because of his views on blasphemy laws---Trial Court convicted the accused under S.302(b), P.P.C & S.7(a) of Anti-Terrorism Act, 1997, and sentenced him to death---Contention of accused that deceased had criticized blasphemy law and declared it as black law, and as such he committed an offence under S.295-C, P.P.C, and also committed contempt of the Holy Prophet Muhammad (P.B.U.H) and became a and " i.e. one who could legitimately be killed with impunity; that utterance of the deceased regarding blasphemy law caused grave and sudden provocation to the accused in particular and public at large in general; that the State and its functionaries failed to convict the deceased for his offence under S.295-C, P.P.C, and after such failure it had become responsibility of all Muslims of the State to enforce Hadd for the crime committed by the deceased; that it was bestowed on the accused from Allah Almighty to enforce Hadd by committing murder of the deceased who was "Mubah-ud-Dum", therefore, the accused only discharged his lawful obligations cast upon him by the Islamic law and judgments of the Holy Prophet Muhammad (P.B.U.H.), thus he was entitled to be acquitted---Validity---Accused admitted that he had committed the murder of deceased but with a very specific plea that such act of commission of murder was not contrary to the dictums of Holy Quran and Sunnah---Punishment of "Shatam-e-Rasool" was capital punishment, but it could not be awarded and executed without production of evidence---No material was produced on the basis of which it could be presumed that deceased in fact committed the offence under S.295-C, P.P.C and that he was "Mubah-ud-Dum" being apostate---Accused himself passed judgment and assumed the role of assassin and executed the sentence at the spot---Accused sought protections and rights guaranteed by the Constitution for his action but deprived deceased from all such constitutional guarantees---Holy Prophet Muhammad (P.B.U.H.) was not only a human being but also the Messenger of Allah---Holy Prophet Muhammad (P.B.U.H.) in the post migration era was head of the State, Commander in Chief of the army, the Chief Executive of the State and also the Chief Judge, and the ultimate legislative authority of his territory and therefore, if the Holy Prophet Muhammad (P.B.U.H.) ordered the killing of some contemnors or he ratified some individual acts of killing of the contemnors by the Muslims, he was exercising the power which accumulated in his personality with such status---After the time of Holy Prophet Muhammad (P.B.U.H.) all the Muslims chose the first rightly guided Caliph to succeed him to the office of Head of the State to manage the affairs, therefore, no single person could claim to have inherited the unique/multiple authorities as enjoyed by the Holy Prophet Muhammad (P.B.U.H.) in his own right without the assent of the people of the State---Accused, in the present case, was neither the Chief Executive, nor Head of the State and not even a Judge; he was (only) a soldier in the uniformed force, under the legal obligation to obey the orders of his superiors---Examples of killing of the contemnors on the orders/judgments of the Holy Prophet Muhammad (P.B.U.H.) and the ratification of individual acts of Muslims murdering contemnors were from the time period when the Islamic State (of that time) was in the state of war with the Jews who were expelled from Madina and they were not only guilty of the individual contempt of the Holy Prophet Muhammad (P.B.U.H.) but were also rebels of the State---Besides instances where the Holy Prophet (P.B.U.H.) forgave the contemnors were more in number than the instances where the contemnors were done to death---Act of accused in murdering the deceased, thus, could never be justified on the touchstone of the decisions of the Holy Prophet Muhammad (P.B.U.H.) and the settled principle of the Islamic law about the subject of blasphemy---Going into the depth of words and then declaring that such words amounted to commission of offence of blasphemy was the job of courts---Approval could not be accorded to any individual to take law in his own hands and use it as sword to eliminate those, whom he considered as contemnor or prostrate---Injunctions of Islam, laws of Pakistan and globally accepted principles of safe administration of criminal justice did not permit so---Searching for any justification for the act of the accused in the present case would defeat the purpose for which Islamic Republic of Pakistan was established and the social contract amongst its people in the shape of the Constitution, resulting in anarchy, lawlessness, and rule of might is right---Regarding the plea of accused that deceased had committed an offence under S.295-C, P.P.C., the accused never made any effort to report the commission of attributed-offence by the deceased to any law enforcing agency nor did he file any petition to obtain a direction for the registration of the criminal case against the deceased---Accused was allegedly dissatisfied with the role of State and law enforcing agencies in not convicting the deceased under S.295-C, P.P.C, but even then he continued to reap the fruits from the system of governance established through the Constitution, and kept on serving as a soldier in the police force---Accused kept on getting all the benefits from the State in the shape of the salary/protection of job and all other allied benefits in accordance with law but he opted to take the law in his own hands which was totally unjustified, uncalled for and unwarranted of any citizen of the State and especially from a member of the disciplined force---Regarding plea of accused of grave and sudden provocation, the prosecution witnesses had clearly stated that just before the incident there was no conversation/talk between the accused and the deceased---Even if it was presumed that the accused somehow went to the deceased and had the chance to be conversant with him then it is obvious from his statement that it was the accused who was searching for an excuse to do what he wanted to do---Presence of prosecution eye-witnesses at the place of occurrence being natural witnesses was not disputed---No ill will or animosity was suggested against said witnesses---Crime weapon was recovered from the accused at the place of occurrence where he was arrested---Twenty eight (28) crime empties were recovered from the place of occurrence and as per report of Forensic Science Laboratory, the empties matched with the recovered crime weapon---Medical evidence fully corroborated the prosecution case to the extent of numbers of injuries, time of injuries and time of occurrence---Murder of the deceased at the hands of the accused was pre-planned, cold-blooded and gruesome---Intent, preparation and act with mens rea were manifest from the prosecution evidence and stance of accused himself---Deceased had suffered 28 firearms wounds on his body---Principles of mitigating circumstances were not applicable to the facts of the present case, therefore, death sentence awarded by the Trial Court to the accused warranted no interference---Death sentence awarded by Trial Court was confirmed in circumstances--- Appeal was disposed of accordingly.

The Holy Quran, Surah Nisa: Verse 135; Surah Al-Najm": Verses 1 to 4; Surah Al-Inshirah : Verses 1 to 8; Surah Al-Ahzab : Verse 56 to 58; Surah Al-Hujrat: Verse 1 to 3; Surah-e-Anfal: verses 12 and 13; Sahih Al-Bukhari, Volume 1, Book No.2, Hadith No.13; Muhammad Ismail Qureshi v. Pakistan PLD 1991 Federal Shariat Court 10; Whitehouse v Lemon [1979] 2 WLR 281; Whitehouse v Gay News Ltd [1979] AC 617, HL; Yara v.The State 2005 SCMR 82 9; Mst. Dur Naz and another v. Yousaf and another 2005 SCMR 1906; Anwar Shamim v. The State 2010 SCMR 1791; Nasrullah Khan and 2 others v. The State 2011 SCMR 613; Ayub Masih v. The State PLD 2002 SC 1048 and Muhammad Mahboob alias Booba v. The State PLD 2002 Lah. 587 ref.

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

----Art. 164---Press clippings---Evidentiary value---Press clippings could be considered and looked into as corroborative material in the presence of some other direct unimpeachable and confidence inspiring evidence, but on their own strength, press clippings were not enough to prove the existence of certain facts.

Abdul Ghani v. The State 2007 YLR 969 and Mohtarma Benazir Bhutto v. President of Pakistan PLD 1998 SC 388 ref.

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

----S. 295-C---Criminal Procedure Code (V of 1898), S.345---Use of derogatory remarks, etc., in respect of the Holy Prophet---Non-compoundable offence---Conviction for an offence under S.295-C, P.P.C., could not be compounded or forgiven by any complainant as the State was custodian of protecting the honour and dignity of Prophet Muhammad (P.B.U.H.) and the complainant of such an offence reporting the matter to the law enforcing agency was a mere informer.

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

----S. 302(b)---Qatl-i-amd---Production of witnesses---Prosecution was not bound to produce all witnesses---Production of material and natural witnesses was sufficient.

Muhammad Mansha v. State 2001 SCMR 199 ref.

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

----Ss. 6 & 7(a)---Penal Code (XLV of 1860), S. 302(b)---Act of terrorism, qatl-i-amd---Accused who was deputed as security guard for the deceased fired at and killed the latter because of his views on blasphemy laws---Trial Court convicted the accused under S.7(a) of Anti-Terrorism Act, 1997 & S.302(b), P.P.C, and sentenced him to death---Contention of accused was that Anti-Terrorism Act, 1997, was not attracted in the present case as there was not an iota of evidence on record to show that any panic or sense of insecurity was created in the general public, and in-fact general public was relieved on the death of the deceased in view of the notoriety of his character and his utterance about the blasphemy laws---Validity---Only one of the prosecution witnesses stated that the incident created panic---No other prosecution witness stated that the act of the accused in committing the murder of the deceased created sense of fear and insecurity in the society or resulted in intimidating and terrorizing the public---Investigation Officer of the case did not utter any word in such regard---Moreover, if any incriminating material in such regard was present , the same was not put to the accused in his statement under S.342, Cr.P.C.---Prosecution evidence by itself revealed that accused was motivated against the deceased due to certain reasons and he had no other intention except to murder the deceased---Accused murdered the deceased and did not injure or assault any other person standing nearby the place of occurrence---Finding of Trial Court that the accused was also guilty of commission of the offence of terrorism was not sustainable in such circumstances---Sentence awarded to accused for his conviction under S.7 (a) of Anti-Terrorism Act, 1997, was set aside accordingly, while that awarded under S.302(b), P.P.C, was maintained---Appeal was disposed of accordingly.

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

----S. 302(b)---Qatl-i-amd---Motive---Motive or lack of motive became irrelevant when the case was otherwise proved beyond shadow of doubt by the prosecution.

Khawaja Muhammad Sharif, Mian Nazir Akhtar, Malik Muhammad Rafique Khan, Ghulam Mustafa Ch., Muhammad Bilal Mughal, Ch. Khalid Mahmood, Ch. Abdul Aziz, Haroon-ur-Rashid, Riaz Hanif Rahi, Malik Jawad Khalid, Ch. Naseer Ahmed, Hafiz Ahmad Rasheed, Rao Abdul Raheem, Muhammad Tariq Dhamial, Raja Shujar ur Rehman, Haji Muhammad Aadil Naveed, Syed Habib-ul-Haq Shah, Nazeer Ahmed Ghazi, Pirzada Mamoon-ur-Rasheed, Mian Khalid Habib Elahi, Muhammad Mubashir Khalid Hijveri, Mian Muhammad Saleem Aftab, Mehmood H. Mirza, Rao Abdul Jabbar Khan, Muhammad Hanif Khan, Shehbaz Ali, Muhammad Iqbal Zaki, M. Tahir Sultan Khokhar, Ch. Muhammad Qasim, Rao Nasim Hayder Khan, Muhammad Latif Khawaja, Muhammad Amir Latif, Ch. Asghar Ali, Raja Yasir Shakeel Janjua, Masnoor Khan Abbassi, Ms. Tahira Shaheen Mughal, Ch. Hafeez Ullah Yaqoob, Hafiz Khizar Hayat and Raja Naveed Arif for Appellant.

Mian Abdul Rauf, Advocate-General and Jehangir Khan Jadoon, Standing Counsel for the State.

Nemo for the Complainant.

Dates of hearing: 3rd, 4th, 6th, 10th and 11th February, 2015.

P L D 2015 Islamabad 140

Before Athar Minallah, J

AZHAR IQBAL and others---Petitioners

versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.3684 of 2013, decided on 12th March, 2013.

(a) Constitution of Pakistan--

----Art. 184 (3)---Invocation of Suo Motu jurisdiction of Supreme Court---Scope---In order to be entitled to invoke jurisdiction under Art.184(3) of the Constitution, Supreme Court must be satisfied that a question of public importance has been raised and that it has reference to enforcement of fundamental rights---Question of public importance is determined by Supreme Court with reference to facts and circumstances in each case---In exceptional cases, even individual grievance may be treated as raising a question of public importance---Test is whether the question is affecting 'legal rights and liberties of people at large, even though the individual who may have brought the matter before Court is of no significance.

Anzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Benazir Bhutto (Miss) v. Federation of Pakistan PLD 1988 SC 416; Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793; Sh. Riaz-ul-Haq v. Federation of Pakistan through Ministry of Law PLD 2013 SC 501; Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law PLD 2012 SC 1089 and Baz Muhammad Kakar v. Federation of Pakistan through Ministry of Law and Justice PLD 2012 SC 923 rel.

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

----Ss. 43, 64 & 64-A---Constitution of Pakistan, Arts. 184(4) & 199---Constitutional petition---Phrase 'in accordance with law'---Scope---Costs, imposition of---Petitioners were members of a cooperative society who filed application under Art.184(3) of the Constitution, for Supreme Court to initiate proceedings against persons who were held responsible in inquiry conducted under S.43 of Cooperative Societies Act, 1925---Supreme Court forwarded the matter to authorities directing them to dispose of application of petitioner according to law---Appellate authority set aside the order of inquiry officer and remanded the matter for de novo inquiry---Validity---Registrar Cooperatives was directed to dispose the application "in accordance with law"---As a consequence, Inquiry report did not attain finality by virtue of Human Rights Cell of Supreme Court, nor did it in any manner affect powers under S.64-A of Cooperative Societies Act, 1925, or modifying or annulling the same---Society being aggrieved, invoked jurisdiction under S.64-A of Cooperative Societies Act, 1925 and appellate authority remanded the case to Registrar Cooperatives for holding proceedings afresh---No jurisdictional error was pointed out in passing order in question, nor could it be demonstrated before High Court that appellate authority had acted in exercise of jurisdiction illegally or with material irregularity---Appellate authority was not required to give notice and opportunity of hearing to petitioners before passing an order, as the society was aggrieved and petitioners were its members---Order passed by appellate authority was just, fair and in accordance with law---High Court declined to interfere in the order passed by appellate authority---High Court imposed special costs upon petitioners, besides wasting precious time of other bona fide litigants---Petitioners abused the process of High Court, by using name of Chief Justice of Pakistan and Supreme Court for registering a criminal case without having any authority in such regard--- Petition was dismissed in circumstances.

Saddar Cooperative Market Ltd. through Honorary Secretary v. Province of Sindh, Department of Cooperation 2009 CLC 143; Shahbaz Qalandar Cooperative Housing Society Limited through Chairman v. Province of Sindh through Secretary Cooperative Department 2011 CLC 783; Maqsoodul Hussain v. Government of Pakistan 1968 SCMR 423; Rauf B. Kadri v. State Bank of Pakistan PLD 2002 SC 1111; Baz Muhammad Kakar v. Federation of Pakistan through Ministry of Law and Justice PLD 2012 SC 923 and Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1 ref.

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

----Ss. 43, 64 & 64-A---Constitution of Pakistan, Art.199---Constitutional petition---Quashing of F.I.R.---On the recommendations of authorities F.I.R. was registered against petitioners---Plea raised by petitioners was that they were not part of managing committee of society in question---Validity---Such was a disputed question of fact and it was a matter subject to investigation and subsequently of trial---Petitioners failed to avail remedies under Cooperative Societies Act, 1925, and directly invoked jurisdiction of High Court by assailing recommendation passed by authorities for including names of petitioners in F.I.R.---Petitioners failed to place the material on record which would require interference of High Court---Adequate alternate remedies were available to petitioners under Ss.249-A & 265-K, Cr.P.C.---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

(d) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S.35-A---Constitutional petition---Suppressing and concealing material facts--- Costs, imposition of---Principle---Duty of Court is to take effective measures against obstinate litigants who resort to frivolous or fraudulent litigation---Though Civil Procedure Code, 1908, is applicable to constitutional petition yet such jurisdiction being extraordinary constitutional jurisdiction, High Court has ample power to do justice and to prevent misuse or abuse of its process---Provisions of S.35-A, C.P.C. in no way limits constitutional jurisdiction of High Court and in appropriate cases can impose costs, while exercising jurisdiction under Art.199 of the Constitution, notwithstanding the parameters' of such provision---Costs in excess of amount prescribed under S.35-A, C.P.C. can be imposed--- Petitioners wasting public time and exchequer should be burdened with heavy costs---Courts can award heavy costs for harassing others or dragging them in frivolous litigation---High Court under its jurisdiction under Art.199 of the Constitution can award, in appropriate case, costs to compensate a party made to suffer unnecessarily through frivolous litigation---Imposition of suitable costs is one of the modes to deter or eliminate frivolous litigation---Proceedings under law of contempt in appropriate cases, can be initiated against litigant and the person who drafted the petition.

Inayatullah v. Sh. Muhammad Yousaf and 19 others 1997 SCMR 1020; S.M. Sohall v. Mst. Sitara Kabir-ud-Din and others PLD 2009 SC 397; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Shahid Orakzai and another v. Federation of Pakistan PLD 2008 SC 77; Mir Sahib Jan v. Janan 2011 SCMR 27; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Khurshid Ahmad Naz Faridi v. Bashir Ahmad and 3 others 1993 SCMR 639; The Postmaster-General, Northern Punjab and (AJ&K), Rawalpindi v. Muhammad Bashir and 2 others 1998 SCMR 2386; Muhammad Zia v. Ch. Nazir Muhammad, Advocate and 4 others 2002 CLC 59; Kawasb, AGA and another v. City District Government, Karachi (CDGK) through Nazim-e-Ala and others PLD 2010 Kar. 182; Smt Satya v. Teja Singh AIR 1975 SC 105; Hindustan Transport Co. and another v. State of UP and others AIR 1984 SC 953 and The Election Commission of India v. Shivaji and others AIR 1988 SC 61 rel.

Imran Shafiq for Petitioners.

Tariq Mehmood Khalid and Tariq Mirza for Respondents.

Malik Faisal Rafique, Deputy Attorney General. and Asjad Mehmood, Inspector.

Date of hearing: 22nd January, 2015.

P L D 2015 Islamabad 156

Before Athar Minallah and Aamer Farooq, JJ

Syed ZAFAR ALI SHAH---Petitioner

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 34 others---Respondents

Writ Petition No.1030 of 2015, decided on 13th April, 2015.

(a) Constitution of Pakistan---

----Arts. 64 & 199--- Constitutional petition---Members of Parliament---Vacation of seats---Resignation to Speaker---Effect---Political question---Scope---Petitioner contended that when Members of National Assembly from a particular party tendered their resignations, the Speaker of National Assembly was to accept the same---Validity---For a resignation to take effect under Art.64 of the Constitution, it was not enough that member had written it under his or her name addressed to speaker---Crucial test or mandatory prerequisite for the seat to become vacant on resignation, was fulfilment of constitutional duty of Speaker to be satisfied that three factors were established; firstly that it was tendered voluntarily; secondly it was genuine; and lastly that the member actually intended to relinquish, relieve or quit the post, position or seat and thereby vacate the seat---Was not enough that member who had tendered resignation made public announcements in such regard or presented him or herself in mass before the Speaker---Speaker was under constitutional duty to undertake an inquiry personally to satisfy himself regarding three factors or requirements in each case independently---Such three requirements were to be 'proved positively' to the satisfaction of the Speaker---If before inquiry was concluded or/and the Speaker had neither passed any order nor achieved level of satisfaction so required for giving effect to resignation, the member retracted by communicating in any manner, whether in writing or through conduct, such as by making a public announcement or attending the sittings of National Assembly, then resignation written and addressed to Speaker became ineffective as it was no more valid and no further order or action would be required---Resignations had become ineffective and ceased to be valid, as before the Speaker could complete his inquiry and satisfy himself regarding three essential requirements for giving effect, the Members publically announced retraction of resignations and had attended proceedings---Assuming that Speaker had passed an order expressing his satisfaction that resignations were not to take effect, even then the matter could not have been out of the pale of jurisdiction of High Court nor would the petition had been maintainable under Art.199 of the Constitution---Question raised by petitioner was hit by doctrine of political question---Prayers and petition had become infructuous, as before the Speaker could conclude the inquiry, the resignations had been retracted and thus become ineffective and no more valid---Neither the petition was maintainable nor any matter placed before High Court required intervention in exercise of powers and jurisdiction vested in High Court under Art.199 of the Constitution---Petition was dismissed in circumstances.

Mirza Tahir Beg v. Syed Kausar Ali Shah and others PLD 1976 SC 504; Abdul Razique Khan v. The Province of Sindh through the Chief Secretary Government of Sindh, Karachi and 3 others PLD 1994 SC 79; A.K. Fazalul Quader Chaudhry v. Syed Shah Nawaz and others PLD 1966 SC 105; Dr. Muhammad Munir-ul-Haq and others v. Dr. Muhammad Latif Chaudhry and others 1992 SCMR 2135; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; A. Sudarsana Rao v. J.A. Christian Pillai and others AIR 1924 Mad. 396; Muhammad Naeem Akhtar and 2 others v. The Speaker, Sindh Provincial Assembly 1992 CLC 2043; Suo Motu Case No.4 of 2010 (PLD 2012 SC 553); Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others PLD 2012 SC 774; Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan PLD 2005 SC 52 and Khawar Intezar Muhammad Khan v. Federation of Pakistan 1995 MLD 1903 ref.

(b) Constitution of Pakistan---

----Arts. 64 & 199---Constitutional jurisdiction of High Court---Members of Parliament---Vacation of seats---Resignations---Satisfaction of Speaker---Scope---Satisfaction of Speaker in refusing to give effect to a resignation can neither be made subject of judicial review by High Court in exercise of its jurisdiction under Art.199 of the Constitution, nor may be substituted by an opinion or satisfaction of its own.

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

----S. 52---Senate (Election) Act (LI of 1975), S. 34---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Corrupt or illegal practices---Onus to prove---Burden of proof in election matters for establishing corrupt or illegal practices, inter alia, rigging, under the two statutes has been placed at par with burden of proof in a criminal case---Not every person but only one of the candidates to the concerned seat may challenge election of returned candidate and election may be set aside or declared void if he is able to prove allegations beyond shadow of doubt and returned candidate is entitled to the benefit of doubt.

PLD 1957 SC 91; Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Ram Singh and others v. Col. Ram Singh AIR 1986 SC 3; Syed Qutab Ahmed v. Syed Faisal Ali Subzwari and others 2007 CLC 1682; Dr. Abdul Sattar Rajpar v. Syed Noor Muhammad Shah and 8 others 2005 YLR 937 and Capt. Syed Muhammad Ali v. Salim Zia 1999 CLC 1026 rel.

(d) Constitution of Pakistan---

----Art. 51---Member of National Assembly---Status---Member of National Assembly filling a seat is not just an individual nor actual stakeholder of such exalted and revered position---Such person acts on behalf or as an agent for hundreds and thousands of constituents who are the real occupants and claimants of the seat---Sanctity attached to elections, particularly the stringent requirements to be fulfilled before it would lead to vacation of a seat, is based on one solemn universal principle that the 'will of people is sacrosanct'.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Political question and judicial review---Scope---Political questions, as far as possible, should not be decided by courts and ought to be left for consideration to the authority vested with such power under the Constitution and particularly to the wisdom of the Parliament---Such rule is not absolute and the courts do not refuse to exercise its jurisdiction of judicial review if the aggrieved person demonstrates that the question raised, though having political content, involves a legal or constitutional issue---Doctrine of political question is based on foundation of theory of trichotomy of powers, also known as separation of powers between three distinct organs of the State---Framers of the Constitution have also clearly demarcated and distinguished respective functions, powers and jurisdiction of three organs, namely, the executive, the judiciary and the legislature---Doctrine of political question, therefore, guides a court in ensuring that the Constitution is enforced and implemented as intended by its framers---Court can neither encroach upon nor usurp powers clearly vested in other organs nor allow others to do so---Court itself is a creation of the Constitution and derives its powers thereunder and has been entrusted with function of jealously guarding scheme of separation of powers as envisaged by the framers---Judiciary, as an organ, has been empowered to interpret Constitution and laws and applying such interpretations to the matters brought before High Court---Constitutional duty of High Court to give effect to the intention of its framers by ensuring that if a matter has been in any measure committed by the Constitution to another branch, then High Court jealously guard power of that branch in its exercise and refuse to interfere unless it could explicitly be shown that respective organ has exceeded whatever authority has been committed to it.

PLD 2015 Isl. 7; PLD 2012 Lah. 515; The State v. Zia ur Rehman and others PLD 1973 SC 49; Pir Sabir Shah v. Shah Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66; A.K. Fazalul Quader Chaudhury v. Syed Shah Nawaz and others PLD 1966 SC 105; Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379; Asif Ali Zardari v. Federation of Pakistan and others PLD 1999 Kar. 54; Marbury v. Madison [5 US 137 (1803)]; Baker v. Carr [369 US 186 (1962)] and Zivotofsky v. Clinton [132 S. Ct 1421 (2012) rel.

Petitioner in person.

Date of hearing: 9th April, 2015.

P L D 2015 Islamabad 180

Before Muhammad Anwar Khan Kasi, C.J.

MUHAMMAD SHARIQ---Petitioner

versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.691 of 2015, decided on 8th May, 2015.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction under Art.199 of the Constitution is not fettered by provisions of subordinate legislation and it can be brought into operation in aid of citizen whose fundamental rights are put in jeopardy.

(b) Constitution of Pakistan---

----Arts. 10-A & 199---Constitutional jurisdiction of High Court---Scope---Due process of law---Any act purported to be in violation of due process or fair trial is amenable to constitutional jurisdiction of High Court.

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

----S. 38(1)---Pakistan Air Force Rules, 1957, R.99---Criminal Procedure Code (V of 1898), Ss.5(2) & 382-B---Constitution of Pakistan, Art.199---Constitutional petition---Remission of pre-sentence custody period---Scope---Petitioner was employee of Pakistan Air Force who was prosecuted under S.38(1) of Pakistan Air Force Act, 1953 and was convicted and sentenced by District Court Martial---Grievance of petitioner was that he was not given benefit of pre-sentence custody---Validity---Provisions of S.382-B, Cr.P.C. was inapplicable to a trial conducted under Pakistan Air Force Act, 1953, by virtue of non-obstante clause contained under S.5(2), Cr.P.C.---Provisions of R.99 of Pakistan Air Force Rules, 1957, carried the same spirit of counting pre-sentence period towards period of sentence but record was silent on such consideration which was mandatory upon District Court Martial---Authority in original, the confirmation authority, as well as Appellate Court failed to perform statutory requirement---High Court directed that pre-sentence period of confinement be remitted and Jail authorities would re-issue Jail roll accordingly---Petition was allowed accordingly.

Federation of Pakistan v. Abdul Basit 2012 SCMR 1229; Nizam-ud-Din v. the State PLD 2014 Sindh 248; Bakhat Jamal and others v. Hakeem Khan PLD 2014 Pesh. 84; Abdul Khaliq v. The State (W.P.No.23035 of 2013) and Shah Hussain v. The State PLD 2009 SC 460 ref.

(d) Administration of justice--

----Substantive rights of persons cannot be decided on the basis of presumptions.

(e) Interpretation of statutes---

----Liberty of person---Scope---Disadvantageous interpretation in matters relating to liberty of person is not permissible.

Ibrar Hussain for Petitioner.

Arshad Kiyani, Standing Counsel for Respondent No.1.

Flt. Lt. Asad Hussain, Assistant Director Legal Service, PAF AHQ Peshawar for Respondents Nos. 2 and 3.

Aamer, Asstt. Superintendent Sub Jail Chakwal for Respondent No.4.

Date of hearing: 5th May, 2015.

P L D 2015 Islamabad 184

Before Athar Minallah, J

PAKISTAN TELECOMMUNICATION COMPANY LTD.---Appellant

versus

PAKISTAN TELECOMMUNICATION AUTHORITY---Respondent

F.A.O. No.25 of 2012, decided on 5th May, 2015.

(a) Interpretation of statutes--

----Rules and regulations---Scope---Delegated legislation---Regulations or rules fall in the category known as delegated or subordinate legislation--- Authority empowered to make rules or regulations cannot go beyond the scope of the statute---No rule or regulation can be made inconsistent with parent statute and any such delegated legislation is void and inoperative to the extent of the inconsistency.

PLD 2014 SC 389 (Suo Motu Case No.11 of 2011); PLD 2011 SC 619 (Suo Motu Case No.13 of 2009); ZTBL v. Said Rehman 2013 SCMR 642; Ziauddin v. Punjab Local Government 1985 SCMR 365; Multiline Associates v. Ardeshire Cowasjee PLD 1995 SC 423; Khawaja Ahmad Hassan v. Government of Punjab 2005 SCMR 186; Tehsil Nazim TMA Okara v. Abbas Ali, 2010 SCMR 1437; Raja Hamayun Sarfraz Khan v. Noor Muhammad 2007 SCMR 307; Assistant Collector Customs v. Khyber Electric Lamps 2001 SCMR 838 and Khyber Tractors Pvt. Ltd. v. Pakistan through M/O Finance, Revenue and Economic Affairs, Islamabad PLD 2005 SC 842 rel.

(b) Interpretation of statutes---

----Intention of legislature---Principle---In order to discover intention of legislature the statute has to be read as a whole.

(c) Interpretation of statutes---

----Redundancy---Remedy---While interpreting a statute, redundancy is to be avoided and an effort has to be made to read provisions harmoniously.

(d) Words and phrases---

----"Penalty"--- Connotation--- Penalty is a punitive action in nature and, therefore, its imposition requires express authority under the statute.

(e) Pakistan Telecommunication Authority (Re-organization) Act (XVII of 1996)---

----S. 23---Pakistan Telecommunication Rules, 2000, R.9 (4)--- Number Allocation and Administration Regulations, 2011, Regln. 18 (2)---Numbers allocated---Annual charges, non-payment of---Show-cause notice---Penalty, vires of---Pakistan Telecommunication Authority issued show-cause notice to telecommunication company for failure to pay annual charges of numbers allocated in the year, 2010-2011---Authority imposed penalty on the company on account of alleged violation---Validity--- Pakistan Telecommunication Authority (Re-organization) Act, 1996, vested power in the Authority to levy fine under S.23 of Pakistan Telecommunication Authority (Re-organization) Act, 1996, if licensee had contravened any term or condition of licence---Such punitive power was explicitly provided by legislature---Show-cause notice had alleged that plaintiff had delayed payment pursuant to its obligations under the relevant clause of licence and, therefore, it could have considered provisions of S.23 of Pakistan Telecommunication Authority (Re-organization) Act, 1996---Incorporation of penalty clause under Regln.18(2) of Number Allocation and Administration Regulations, 2011, was inoperative, void and ultra vires of Pakistan Telecommunication Authority (Re-organization) Act, 1996---Imposition of penalty had no legs to stand on and purported liability imposed on telecommunication company was illegal, without lawful authority and jurisdiction---High Court, in exercise of appellate jurisdiction, set aside order passed by Pakistan Telecommunication Authority and remanded the matter to the Authority where show case notice was deemed to be pending and matter was to be decided afresh in accordance with law­-- Appeal was allowed accordingly.

AIR 1986 SC 1323 distinguished.

Azid Nafees and Ms.Saniya Cheema for Appellant.

Barrister Mian Sami ud Din for Respondent.

Date of hearing: 13th April, 2015.

P L D 2015 Islamabad 191

Before Aamer Farooq, J

ASIF ALI HASHMI through 4 Legal Heirs---Appellants

versus

MUHAMMAD ARIF MIAN and 4 others---Respondents

Regular Second Appeal No.6 of 2014, decided on 29th May, 2015.

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

----Ss. 12 & 22-----Specific performance of agreement---Essentials---Cases in which specific performance enforceable---Discretion as to decreeing specific performance---Time as essence of agreement-Rules---Appeal filed by legal heirs of Attorney after his demise---Locus standi maintainability---Plaintiff filed suit for specific performance of agreement which was decreed by Trial Court, and appeal filed against judgment and decree was dismissed--- Defendants contended that plaintiff was not entitled for specific performance of agreement as time was essence of the agreement and he had failed to perform his part of contract within stipulated time and that the agreement was not specifically enforceable in terms of Ss.12 & 22 of Specific Relief Act, 1877---Plea raised by plaintiff was that he could not perform his part of agreement within time due to defendant's failure to provide documents which were necessary for transfer of suit property---Validity---High Court observed that in relation to contracts of immovable property, time ordinarily was not of essence, but said rule was not absolute and it was always open to party, who claimed exception thereto, to establish otherwise from letter and spirit of agreement, from conduct of parties and attending circumstances---General rule with respect to immovable property was that time was not of the essence and it was only where there was intention to the contrary then the rule changes---No clause was found in the agreement according to which time was of the essence, but the agreement provided that if vendor/defendant failed to complete transaction and provide certain documents within prescribed time period then vendee/plaintiff would enforce the agreement through court of law---Agreement further provided that if vendee backed out then deal would stand cancelled and earnest money would be forfeited---Defendants could not raise the issue that time was essence of agreement as they had failed to provide the requisite documents for accomplishment of transaction---Court could refuse to pass order for specific performance of agreement and transfer of property where it was inequitable to do so---Discretion to refuse specific performance of agreement was provided in S.22 of Specific Relief Act, 1877---After demise of Attorney, his legal heirs had no right to file the present appeal as suit property was never transferred by vendor in favour of the Attorney---Nothing existed on record which could show that impugned judgment and decree was inequitable or by allowing specific performance, plaintiff would have advantage over defendants---No misreading and non-reading of evidence existed and no legal infirmity found in impugned judgment and decree---Appeal was dismissed in circumstances.

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

----Arts. 72, 75, 76 & 78---Proof of contents of document (letter)---Defendant deposed that he wrote letter to plaintiff for completion of transaction---Letter in question was not duly proved as copy of the same was tendered in evidence and was marked as exhibited---Marking of a document as exhibit no evidentiary value and could not be treated as part of evidence.

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

----Ss. 12 & 22--Specific performance of agreement---General rule with respect of immovable property is that time is not of essence and it is only where there is intention to contrary then the rule changes---Always open to party, who claims exception thereto, to establish otherwise from letter and spirit of agreement, from conduct of parties and attending circumstances.

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

----S. 100----Appeal against appellate decrees---Appeal filed by legal heirs of Attorney after his death---Locus standi/maintainability---After demise of Attorney, his legal heirs had no right to file the appeal as suit property was never transferred by vendor in favour of the Attorney.

Liaqat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506 and unreported judgment of the Hon'ble Supreme Court of Pakistan (C.P. No.1438/2009); Anwar Sajid v. Abdul Rashid Khan and another 2011 SCMR 958; Mst. Mubin Fatima v. Muhammad Yamin and 2 others PLD 2006 SC 214; City Education Board v. Mst. Maqbool Nasreen PLD 2008 Lah, 51; Mehmood Rangoonwala v. Government of Sindh and others 2006 CLC 611; M/s. U.K.International Proprietorship Concern v. Trading Corporation of Pakistan 2006 CLC 679; Muhammad Iqbal v. Muhammad Alam 2015 SCMR 21; Abdul Hamid v. Abbas Bhai PLD 1962 SC 1; Agha Ghazanfar Ali v. Shaukat Ali and others 1997 SCMR 1006; State Life Insurance of Pakistan v. Javaid Iqbal 2011 SCMR 1013 and Farzand Ali and another v. Khuda Baksh and others PLD 2015 SC 187 rel.

Sardar Liaqat Ali for Appellants.

Niaz Ullah Khan Niazi and Abdul Khaliq for Respondents.

Date of hearing: 26th March, 2015.

P L D 2015 Sindh 1

Before Ghulam Sarwar Korai and Salahuddin Panhwar, JJ

AQEEL KARIM DHEDHI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 3 others---Respondents

Civil Petition No.D-450 of 2014, decided on 14th February, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition--- Territorial jurisdiction---Scope--­Principle---Mere existence of an office of Federation outside jurisdiction of High Court is not enough to take the issue away from extraordinary jurisdiction of High Court to scrutinize matter relating to vires of law, statutes, rules and actions, if the same are going to cause an effect upon rights of people residing within such area because office, law, rule and legislation is always done/established to provide security and safety to rights, interests and claims of people for whom such office, law, rules and legislation is meant, so that at all material times, the law requires such actions, law, rules and legislation to be strictly in accordance with law keeping rights, interests and claims of masses at their proper place---Any aggrieved party is well within its rights to seek help and constitutional protection towards its rights---If a particular order or action of an authority is not having its impact upon people at large but is confined to a particular individual, then jurisdiction to challenge such order or action remains with the High Court wherefrom that order has been done or taken.

L.P.G. Association of Pakistan through Chairman v. Federation of Pakistan and others 2009 CLD 1498; Sandalbar Enterprises's case PLD 1997 SC 334; Messrs Al-lblagh Limited Lahore's case 1985 SCMR 758; Dr Zahoor Ahmed Shah's case 2005 MLD 718; Dr Qaiser Rasheed's case PLD 2006 Lah. 789; Messrs Ibrahim Fibers'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; PLD 1988 SC 387; 1995 CLC 1027, PLD 1987 SC 334, 1998 PLC(CS)239, PLD 2001 Pesh.(sic); PLD 1976 Pesh. 66 and 2000 SCMR 1703 rel.

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

----Ss.16-A, 18 & 32---Constitution of Pakistan, Art.199--- Constitutional petition---Territorial jurisdiction---Quashing of reference---National Accountability Bureau filed reference against petitioner at place "I" but constitutional petition was filed before the High Court at place "K" in another Province---Validity---Jurisdiction of High Court of a Province was confined to Accountability Courts established within its jurisdiction and not beyond that---Legal position regarding jurisdiction was also clear from S.32(a) of National Accountability Ordinance, 1999---High Court at place "K" declined to quash proceedings of reference pending at place "I" as it would mean to frustrate the very meaning, purpose and object of Ss.16-A & 32 of National Accountability Ordinance, 1999, which had limited the administrative or appellate jurisdiction of High Court of a Province for courts, established within its jurisdiction only---Petition was dismissed in circumstances.

Abdul Shakoor Kaloodi and another v. Federation of Pakistan and others PLD 2001 Kah. 311; Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others 1985 SCMR 758; Aijaz Mehmood v. Shaikh Muhammad Jamil and others 1996 CLC 1027; Ehsan-ul-Haq v. Muhammad Khan 2010 CLC 1648; Flying Kraft Paper Mills (Pvt) Ltd., Charsadda v. Central Board of Revenue, Islamabad 1997 SCMR 1874; Nawabzada Muhammad Shahabuddin v. The Chairman, Federal Land Commission 1996 CLC 539 and Collector Sahiwal and 2 others v. Muhammad Akhtar 1971 SCMR 681 distinguished

Muhammad Ashraf v. Chairman NAB and others Civil Petition No.1728 of 2013 fol.

Dr. Farogh Naseem and Murtaza Wahab for Petitioner.

Noor Muhammad Dayo, ADPG for Respondents.

Date of hearing: 10th February, 2014.

P L D 2015 Sindh 14

Before Nadeem Akhtar and Aftab Ahmad Gorar, JJ

MUHAMMAD SALEH and 2 others---Petitioners

Versus

PROVINCE OF SINDH through District Coordination Officer and 6 others-Respondents

Constitutional Petition No.D-2320 of 2011, decided on 8th April, 2014.

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

----S.11, O.VIII----Specific Relief Act (I of 1877), Ss. 9 & 42---Illegal Dispossession Act (XI of 2005), S.3---Constitution of Pakistan, Art. 199---Constitutional petition---Scope of Illegal Dispossession Act, 2005 was very limited and court exercising powers under S.3 of the Act was not competent to give any finding as to authenticity of document as such findings were to confine only to illegal dispossession; and no adjudication upon title of property was required---Earlier suit was not decided on merits but was disposed of as withdrawn while another (earlier) suit was filed under S.9 of the Specific Relief Act, 1877 for illegal dispossession and subsequent suit sought cancellation of entry in Revenue Record---Suit was held to be maintainable and not hit by provisions of O. VII, R.11, C.P.C.---Constitutional petition was allowed.

2007 CLC 163; 2004 SCMR 604 and 2004 SCMR 612 ref.

2007 MLD 884; 2003 SCMR 1284; PLD 2007 Kar. 347 and PLD 2004 Kar. 269 rel.

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

----S. 3---Scope of Illegal Dispossession Act, 2005---Scope of Illegal Dispossession Act, 2005 was very limited and court exercising powers under S.3 of the Act, was not competent as such findings were to confine only to illegal dispossession and court could not adjudicate upon title of property.

2007 PCr.LJ 1920 and PLD 2012 Sindh 390 rel.

Mirza Sarfaraz Ahmed for Petitioners.

Miran Muhammad Shah, A.A.G. for Respondent No. 1.

Ahmed Pirzada and Iqbal Khurram for Respondents Nos. 2, 3 and 4.

Abdul Sattar for Respondents Nos. 5 and 6.

Date of hearing: 23rd December, 2013.

P L D 2015 Sindh 20

Before Muhammad Ali Mazhar and Farooq Ali Channa, JJ

KHALID AHMED KHAN LUND---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.1111 of 2013, decided on 31st October, 2013.

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

----S. 498---Penal Code (XLV of 1860), Ss. 353, 452, 324, 427, 341, 109, 188, 148, 228, 395, 511, 342, 352 & 120-B---Anti-Terrorism Act (XXVII of 1997), S. 7---Assault or criminal force to deter public servant from discharge of his duty, house-trespass after preparation for hurt, assault or wrongful restraint, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, wrongful restraint, abetment, disobedience to order duly promulgated by public servant, rioting armed with deadly weapons, intentional insult or interruption to public servant sitting in judicial proceedings, dacoity, wrongful confinement, assault or criminal force otherwise than on grave provocation, criminal conspiracy, acts of terrorism---Interim pre-arrest bail, confirmation of---Case of mere abetment not backed by any strong evidence-Proving abetment, instigation or conspiracy--- Scope---Accused was a losing candidate in the general elections and allegation against him was that he sent protestors to attack Returning Officer, Assistant Returning Officer (judicial officers) and the court staff so as to get the election results changed in his favour---Contents of F.I.R. reflected that complainant/Assistant Returning Officer was not aware of any conspiracy regarding the protesters and he was informed of the same by an advocate, who did not disclose his source of information---Accused was also not shown to be present at the spot---Case against accused was that of abetment, punishable under S.109, P.P.C---To prove abetment or instigation or conspiracy against any person, it was obligatory upon the prosecution to collect and produce strong and inspiring evidence, but in the present case no detail of hatching conspiracy by accused was mentioned in the F.LR. nor names of persons before whom alleged conspiracy was hatched was discovered during investigation-Unless present matter was tried by the court to ascertain guilt of main accused persons, the charge of abetment could not be proved---Case was one of further inquiry--- Interim pre-arrest bail already granted to accused was confirmed in circumstances.

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

----S. 7---"Terrorism"---Scope---Attack upon judicial officers or public servants performing their official duties---Judicial officers and public servants saving their lives by scaling walls and taking shelter in nearby houses---Destruction of court building and its record---Such acts were extreme acts of terrorism punishable under S. 7 of Anti-Terrorism Act, 1997-Illustration.

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

----S. 498---Pre-arrest bail---Purpose---Extraordinary relief of pre-arrest bail was meant for innocent persons to save them from humiliation and disgrace at the hands of police---Purpose of pre-arrest bail was to protect liberty and reputation of citizens, particularly where circumstances of the case made it one of further inquiry.

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

----Ss. 498 & 497---Pre-arrest bail---Provisions of S.497, Cr.P.C, relevance of---Power to grant bail under S.498, Cr.P.0 was not additional to or independent of S.497, Cr.P.C, and even while granting pre-arrest bail, the provisions contained under S.497, Cr.P.0 were to be kept in mind. [p. 25] D

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

----S. 498---Pre-arrest bail-Presumptions-Concept of pre-arrest bail was based on three presumptions, firstly that the accused was presumed to be innocent until he was found guilty; secondly, that the accused should have a right to prepare his defence and prove his innocence before the Trial Court, and thirdly that accused should not be punished before the finding of conviction rendered by the court.

Zamir Ghumro and Malik Naeem Iqbal for Applicant.

Muhammad Iqbal Awan Asstt. Prosecutor-General for the State.

Date of hearing: 8th October, 2013.

P L D 2015 Sindh 26

Before lrfan Saadat Khan and Zafar Ahmad Rajput, JJ

CITY TRADING AND CONTRACTING PRIVATE LIMITED---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Constitutional Petition No.D-2821 of 2011, decided on 20th February, 2014.

(a) Contract---

----"Turn-key contract"---Connotation

Term turn-key includes:

1. A contract involving complete process of designing.

2. Specification.

3. Construction.

4. Commissioning.

Black's Law Dictionary 6th Edn.

(b) Colonization of Government Lands (Punjab) Act (IV of 1912)---

----S.10---Constitution of Pakistan, Arts.173 & 199---Constitutional petition---Government land---Turn-key contract---Petitioner company claimed to have a right to complete construction on land owned by provincial government on turn-key basis---Plea raised by petitioner company was that it had "No Objection Certificate" issued from Sports' Board and respondent whereas Sindh Building Control Authority denied issuance of any "No Objection Certificate"---Validity-Transfer of land by Federal Government or Provincial Government was to be regulated by law and land in question belonged to Board of Revenue/Land Utilization Department, Sports Board or respondent had no authority under law to enter into any agreement, hence desired "No Objection Certificate" could not be granted---Only Board of Revenue had the authority to grant land to any person on such condition as it thought fit---Plot of land had not been allotted to petitioner company by Board of Revenue, therefore, grant of land to petitioner by respondent was not in accordance with law---Petitioner company was not entitled for implementation of agreement of grant of No Objection Certificate from Sindh Building Control Authority---Petition was dismissed in circumstances.

Zohra v. The Government of Sindh PLD 1996 Kar. 1; Ramna Pipe v. Sui Northern 2004 SCMR 1274 and Pakistan v. Fecto Belarus Tractors Ltd. PLD 2002 SC 208 ref.

Rasheed A. Akhund for Petitioner.

Miran Muhammad Shah, Addl. A.G. Ahmed Pirzada, Ms. Afsheen Aman and Rao Sarfaraz for Respondents.

Dates of hearing: 28th January and 4th February, 2014.

P L D 2015 Sindh 39

Before Nadeem Akhtar and Shahnawaz Tariq, JJ

JAMIA MASJID HABIBIA through Namazis/Mohallah Residents and others---Appellant

Versus

DHORAJI COOPERATIVE HOUSING SOCIETY through General Secretary and 5 others---Respondents

High Court Appeal No.22 of 2012, decided on 10th April, 2014.

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

----S.11---Res judicata, principle of---Rationale and scope---Prime demand of the justice system was that every cause should be fairly tried only once and finally be concluded forever between the agitating parties---Final determination of the controversy between the individuals under the Constitution or the relevant statutes was one of the basic requirements for the stability of the society, which directly affected the life of any individual--- If there was no end of litigation regarding determination of the legal rights of an individual, it would shatter the basic norms of a judicial system, which would ultimately affect the whole society, causing anarchy and lawlessness.

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

----S. 11---Res judicata, principle of---Scope---While determining the basic issue of disputes under the principle of res judicata, the courts must deal with issues with an iron hand to curb false litigation as well as to discourage the court birds.

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

----S. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Res judicata, principle of---Scope---Person who allegedly had been deprived of rights over a property from any of the party impleaded in the previous proceedings/suit could neither seek his independent right over such property nor he could hunt for a declaration of his entitlement to defeat the earlier verdict of the court, which otherwise had attained finality.

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

---S. 11 & O.VII, R.11---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Res judicata, principle of---Scope---Closed and past transaction---Dispute between parties regarding size of area allotted in a plot ("subject property")---Plaintiff/appellant filed a declaratory suit against defendants in respect of subject property-Defendants had previously filed suits in respect of the same subject property which were decreed and issues pertaining to the entitlement of possession of the respective parties (including plaintiff) were determined---Such decree and verdicts had attained finality-Appellant by twisting the facts and circumstances in his present suit sought relief of declaration for its possession to the extent of subject property, which had already been decided by the competent civil court and same verdict had attained finality-Controversy over subject property was now a closed and past transaction---Plaint had been rightly rejected under S.11, C.P.O being barred by res judicata---Appeal was dismissed accordingly.

Chaudhry Abdul Rasheed for Appellant.

Syed Amir Ali for Respondents Nos.1 to 3.

Daniel Bakhsh for Respondent No.4.

Date of hearing: 24th October, 2013.

P L D 2015 Sindh 46

Before Nazar Akbar, J

FAISAL and others---Applicants

Versus

Mst. KHURSHEED AKHTAR and 2 others---Respondents

Civil Revision Application No.291 of .2012 and Second Appeal No.38 of 2012, decided on 29th August, 2014.

(a) Islamic Law---

----Guardianship of minors property---Sale of property of minor by the mother without permission of court---Effect---"De facto guardian"-- Scope---Mother of minor was not the natural guardian to deal with the property of her minor children---Mother could be de facto guardian of person and property of a minor but she had no power to transfer the property of minors---Alienation of immovable property of minor was possible only by the person entitled to be appointed as legal guardian of property after obtaining permission of the court---Duty of appointing a guardian for the protection and preservation of minor's property would fall on the Judge as representing the State---Person neither a legal guardian nor a guardian appointed by the court but had voluntarily placed himself incharge of the person and property of a minor, would be called "de facto guardian"---"De facto guardian" was merely a custodian of the person and property of the minor but he had no power to transfer any right or interest in the immovable property of minor-- Mother, in the present case, had alienated the property of her minors children and vendees were aware of the fact that they were purchasing the property of minors---Impugned agreement of sale between the mother of minors and vendees was void agreement which could not be enforced---Minors were entitled to their respective share in the suit property as legal heirs of the deceased---Impugned judgments and decrees passed by the Appellate Court were perverse and contrary to law and evidence available on record which were set aside and those of Trial Court were restored---Second appeal was accepted in circumstances.

Muhammadan Law, S.361 and Muhammad Hanif v. Abdul Samad and others PLD 2009 SC 751 rel.

(b) Words and phrases---

----"De facto guardian"---Meaning---Person who was neither a legal guardian nor a guardian appointed by the court but had voluntarily placed himself incharge of the person and property of a minor, would be called "de facto guardian".

Muhammad Suleman Unar for Applicants/Appellants

Waqar Ahmed for Appellant No.7.

Muhammad Asif Shaikh for Respondents.

Date of hearing: 6th August, 2014.

P L D 2015 Sindh 54

Before Ahmed Ali M. Shaikh, J

Syed MEHMOOD AKHTAR NAQVI---Applicant

Versus

MIAN MUHAMMAD NAWAZ SHARIF---Respondent

Criminal Original Miscellaneous Application No.2 of 2013 and M.As. Nos. 7113 and 7025 of 2013, decided on 27th June, 2014.

Contempt of Court Ordinance (IV of 2003)---

----S. 3---Constitution of Pakistan, Art. 204---Contempt of Court---Context of statement---Petitioner assailed statement made by Prime Minister wherein he stated "even Judges are afraid of giving judgment in Karachi"---Validity-Statement was given in context with bad law and order situation prevailing in country, more particularly in Karachi---Only such comments or remarks could be considered as contemptuous which really had a tendency to substantially prejudice hearing of a case or to interfere in administration of justice--- Words in question were not uttered to undermine any pending proceedings or ridicule judiciary, therefore, such statement did not fall within the definition of "contempt of Court"-:-Neither High Court had given any direction to Prime Minister, which he wilfully flouted, disregarded or disobeyed nor he performed any act detrimental to administration of justice or to ridicule High Court and judiciary--- No case for initiation of contempt proceedings or issuance of notice to Prime Minister under Contempt of Court Ordinance, 2003 or under Art.204 of the Constitution was made out by petitioner--- Application was dismissed in circumstances.

Zonal Manager, UBL v. Perveen Akhtar PLD 2007 SC 298 Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879. Suo Motu Case No.4 of 2010 PLD 2012 SC 553 and Dr.Mubashir Hassan v. Federation of Pakistan PLD 2010 SC 265 ref.

Applicant in person.

Zahid Khan, D.A.G.

Saifullah, A . A . G.

A.Q. Halepota: Amicus Curiae.

Abdul Hafeez Lakho, Amicus Curiae.

Salahuddin Ahmed, Amicus Curiae.

PLD 2015 Sindh 58

Before Nadeem Akhtar, J

G.N. CORPORATION (PRIVATE) LTD. through Chief Executive and others---Applicants

Versus

Mst. JANNAT KHATOON---Respondent

Civil Revision No.231 of 2006, decided on 29th August, 2014.

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

---O. XVII, R.3-Adjournment-previous default---Penal provision, applicability of---Previous default of a party, if any, is not to be taken note of while considering question under Order XVII, R.3, C.P.C., as the party is entitled to grant of further opportunity or not.

Messrs Raheem Steel Re-Rolling Mills and 4 others v. Messrs Karim Aziz Industries (Pvt.) Ltd. 1988 CLC 654; Seth Shivrattan G. Mohatta and another v. Messrs Mohammadi Steamship Co. Ltd. PLD 1965 SC 669 and Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others PLD 1966 SC 461 rel.

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

----Ss.8 & 54---Civil Procedure Code (V of 1908), S.115 & O.XVII, R.3---Suit for possession and injunction-Non-compliance of order--- Penal provision, invoking of---Pre-condition---Trial Court declined to adjourn the case on the ground that plaintiff failed to comply with order passed on previous date resultantly suit was dismissed---Lower Appellate Court set aside the order passed by Trial Court-Validity-In order to attract penal provisions of O. XVII, of R.3, C.P.C., time must have been granted by Court to party for doing any of the acts mentioned therein on the next date---Time must be granted by Court at the request of defaulting party---Party must be in default on the next date in complying with direction given to him by Court at his request-If time was not granted by Court on previous date at the instance of party, against whom order was required to be made, then punitive provisions of 0.XVII, R.3, C.P.C. would not be applied against such party though in default on next date-Revisional jurisdiction could be exercised only in case of non-assumption or illegal assumption of jurisdiction or where jurisdiction was exercised illegally or with material irregularity---High Court declined to interfere in judgment passed by Lower Appellate Court as the same was in accordance with law-Revision was dismissed in circumstances.

Shahid Hussain v. Muhammad Akram 2000 SCMR 1135; Kamran Co. and others v. Messrs Modern Motors and another PLD 1990 SC 715; Nawsheri Khan v. Said Ahmed Shah, 1983 SCMR 1092; Industrial Sales and Service, Karachi and another v. Archifar Opal Laboratories Ltd. Karachi PLD 1969 Kar. 418 and Mubashir Khan v. Javaid Kamran alias Javed lqbal and 8 others 2007 MLD 1072 distinguisyhed.

Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others, PLD 2003 SC 180; Abdul Jabbar v. Mst. Pathani and 9 others 2004 YLR 2185; Industrial Sales and Service, Karachi and another v. Archifar Opal Laboratories Ltd. Karachi PLD 1969 Kar. 418; Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and another 2012 SCMR 361; Sardar Muhammad Ibrahim Khan v. The Azad Jammu and Kashmir Government PLD 1987 SC (AJ&K) 127; Messrs Raheem Steel Re-Rolling Mills and 4 others v. Messrs Karim Aziz Industries (Pvt.) Ltd. 1988 CLC 654; Seth Shivrattan G. Mohatta and another v. Messrs Muhammadi Steamship Co. Ltd. PLD 1965 SC 669; Muhammad Aslam v. Nazir Ahmed 2008 SCMR 942; Muhammad Haleem and others v. H.H. Muhammad Naim and others PLD 1969 SC 270 and Government of N.-W.F.P. through Secretary C.& W and others v. Messrs Tahir Shoaib Rashid Shoaib 1998 CLC 1680 ref.

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

----S. 115---Revision---Scope---Revisional jurisdiction could be exercised only in case of non-assumption or illegal assumption of jurisdiction or where jurisdiction was exercised illegally or with material irregularity.

Jhamat Jethanand for Applicants.

Qammer Mehmood Baig for Respondent.

Date of hearing: 10th March, 2014.

P L D 2015 Sindh 72

Before Munib Akhtar, J

Messrs MASTER ENTERPRISES (PVT) LTD. through Executive Director of Administration---Plaintiff

Versus

SINDH INDUSTRIAL TRADING ESTATE LIMITED through Managing Director and 2 others---Defendants

Suit No.1592 of 2012, decided on 11th April, 2014.

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

---O. XXXIX, Rr.1, 2 & O.XL, R.1---Application for interim injunction on a quia timet action---Jurisdiction of court to grant injunctive relief on a quia timet basis when the same was necessary in order to prevent a threatened or apprehended act of nuisance---Scope and essential ingredients---Plaintiff inter alia sought interim injunction restraining the defendant from installing and operating a boiler on defendant's plot which was adjacent to the plaintiff's---Plaintiff further sought appointment of receiver over the boiler of the defendant---Held, that plaintiff's suit was in the nature of a quia timet action, inasmuch as the boiler was being installed and not operational and this damage and injury being alleged, at present , was only apprehended---Plaintiff was unable to show "imminent danger" to its operations if the boilder was allowed to become operational, especially when the meaning ascribed to the words "imminent" in the case reported as Hooper v. Rogers [19751 1 Ch.43; was kept in mind---Nothing on record existed to show that there was a strong probability that the apprehended mischief would in fact arise---Matter of doing justice between the parties with regard to the circumstances also existed and the defendant had a reasonable and plausible need for installing and operating a boiler--- Plaintiff was operating on probabilities and possibilities which could not be said to be immediate or imminent---Concreteness of the plaintiff's grievance was far from established---Defendant could not be enjoined in terms as prayed for by plaintiff nor a receiver could be appointed in respect of a boiler on a quia timet basis---Applications were dismissed, in circumstances.

Rylands v. Fletcher (1868) LR 3 HL 330, [1868] UKHL 1; London Borough of Islmington v. Margaret Elliott [2012] EWCA Civ 56; Fletcher v. Bealey (1884) 28 CH.D 688, 698; Attorney General v. Corporation of Manchester [1893] 2 Ch.87 and Graigola Merthyr Company Limited v. Mayor Aldermen and Burgesses of Swansea [1928] 1 Ch.235 rel.

Amanullah Khan and others v. Khurshid Ahmed PLD 1963 Lah. 566 distinguished.

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

----O. XXXIX, Rr. 1 & 2---Jurisdiction of court to grant interim injunctive relief on a quia timet basis when the same was necessary in order to prevent a threatened or apprehended act of nuisance---Scope and essential ingredients---Case-law examined.

London Borough of Islmington v. Margaret Elliott [2012] EWCA Civ 56; Fletcher v. Bealey (1884) 28 CH.D 688, 698; Attorney General v. Corporation of Manchester [1893] 2 Ch.87 and Graigola Merthyr Company Limited v. Mayor Aldermen and Burgesses of Swansea [1928] 1 Ch.235 rel.

M. Umer Lakhani for Plaintiff.

Abdul Majeed Khosa for Defendant No.2.

Date of hearing: 4th December, 2013.

P L D 2015 Sindh 83

Before Abdul Rasool Memon, J

JANO through Attorney---Petitioner

Versus

BHERJI---Respondent

Civil Revision Petition No.44 of 2012, decided on 20th December, 2013.

(a) Malicious prosecution--

---Suit for---Maintainability---Mere filing of application does not amount to malicious prosecution---Simple mention of words 'malicious prosecution' in title of plaint do not make the suit not maintainable, in as much as in the body of the suit plaintiff had claimed general damages for mental torture, fare of taxi spent by him for attending the enquiry and damages to reputation, which would be claimed under the law of damages.

(b) Defamation Ordinance (LVI of 2002)---

----S.3---Defamation-Scope---When no publication was made in any newspaper or at any open or public place, defamation was not alleged and case did not fall under Defamation Ordinance, 2002.

Muhammad Farooq Marfani v. Abdul Qadir Tawakal and others PLD 2004 Kar. 595 rel.

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

----Art.117---Burden of proof---Principle---Burden of proof lies upon the person who approaches the Court.

2010 SCMR 2030 rel.

(d) Suit for damages---

----Proof---Defendant filed an application against plaintiff and during investigation by police the same was found incorrect---Plaintiff sought recovery of damages for expenses made by him during inquiry proceedings and also for suffering mental torture---Trial Court dismissed the suit but Lower Appellate Court decreed the same partially---Validity---No justification existed for Trial Court to discard evidence produced by plaintiff and his witnesses, who had fully supported his version and their evidence was not shaken during cross examination---Plaintiff failed to examine taxi driver to whom he made payment towards fare charges at the most his claim to that extent was not proved but there was no reason to refuse rest of the claim of plaintiff---Lower Appellate Court rightly appreciated evidence of both parties and decreed the suit partially for damages regarding mental torture and reputation---Such type of damages fell within the category of general damages for which no standard or method was provided--- Lower Appellate Court rightly passed judgment and had exercised jurisdiction vested in it under the law and no illegality or irregularity was pointed out---Revision was dismissed in circumstances.

Malik Gul Muhammad Awan v. Federation of Pakistan 2013 SCMR 507; Federation of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476; Pakistan Herald Publications (Pvt.) Ltd. and 2 others v. Karachi Building Control Authority 2012 CLD 453; Muhammad Rafiq v. Pak-Gulf Leasing Company Limited 2007 CLC 239; Nazir Ahmad and another v. Haji Nazir Ali and 3 others 2006 MLD 907; Shafaqat-ur-Rehman v. Daud-ur-Rehman and 11 others PLD 2006 Pesh. 206; Dhunjishah B. Ghadialy and others v. Karachi Parsi Cooperative Housing Society Ltd. and others 2004 CLC 587; University of Karachi and another v. Muhammad Rafique and 4 others 1991 CLC 752; Mst. Amna v. Nizamuddin and 3 others 1985 MLD 271; Said Khan and 12 others v. Mst. Fozia Parveen and 3 others 1984 CLC 494 and Niaz and others v. The State PLD 2006 SC 432 ref.

Muhammad Farooq Marfani v. Abdul Qadir Tawakal and others PLD 2004 Kar. 595 and PLD 1996 SC 737 rel.

Mir Shahzad Ahmed Talpur for Applicant.

Syed Inayat Hussain Shah for Respondents.

P L D 2015 Sindh 89

Before Munib Akhtar, J

Messrs U.K. INTERNATIONAL, through Sole Proprietor---Plaintiff

Versus

TRADING CORPORATION OF PAKISTAN---Defendant

Civil Suit No.2 of 2006, decided on 17th April, 2014.

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

----S. 230---Civil Procedure Code (V of 1908) 0. VII, R. 11---Agent cannot personally enforce, nor be bound by, contracts on behalf of the principal---Presumption of contract to the contrary---Sale and purchase of goods for a merchant abroad---Suit for declaration and specific performance of the contract filed by agent of foreign principal---Application for rejection of plaint ---- Contention of defendants was that the plaintiff was merely an agent of the principal, and under S.230 of the Contract Act, 1872 such an agent could neither liable for nor could sue on any contract unless there was a contract to the contrary---Held, that original offer was made by the principal, but it never materialized in a contract, and a revised offer was verbally made by the agent/plaintiff (who had full authority to negotiate the contract), which offer was accepted by the defendants in writing---Revised offer, upon acceptance, materialized into a contract between the parties, therefore the contract was entered into by the parties by the agent acting on behalf of the foreign principal and not directly by the principal itself---Section 230 of the Contract Act, 1872, with the first exception stated therein, was therefore applicable to the case and the plaint could not therefore be rejected---Application was dismissed.

Angbats Aktiebolaget Bohuslanska Kusten and another v. Central Hardware Stores, Chittagong PLD 1969 SC 463; Pakistan Insurance Corporation v. Pakistan National Shipping Corporation and others 1994 MLD 667; Bombay Co. Ltd. v. Haji Adam Haji Peer Muhammad Issak PLD 1959 W.P. (Kar.) 411; Pakistan Insurance Corporation v. Pan Islamic Steamship Co. Ltd. 1988 CLC 1373; Capt. Dr. Abdul Wahab and others v. Province of Punjab and others 1986 MLD 2049 and Raj Bahadur Lal v. Silta Prasad and others AIR 1951 All 596 distinguished.

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

----O. XXX, R.10 , O. VII, R.11 & S.153---Suit by or against sole proprietorship---Plaint filed in the name of the sole proprietorship and not in the personal name of the proprietor---Rejection of such plaint--­Scope---Suit for declaration, and specific performance of contract-- Application for rejection of plaint on ground that the plaintiff, being a sole proprietorship, ought to have instituted proceedings in his personal name and not in the trading name of the proprietorship---Held, that description of a plaintiff given in the title of the plaint must be carefully examined, and if such examination revealed, or could reasonably be regarded as revealing the true identity of the party (that is the proprietor); then the suit must be held to have been brought in the name of the latter---However, if despite such examination, the true identity of plaintiff could not be determined, then it could be said that the suit had been brought by an entity that had no existence in the eye of the law (that is the proprietary concern) and it may be that such suit was to be dismissed or the plaint rejected---In the present case, it was evident from the title of the plaint that the person filing the suit was the sole proprietor whose identity was substantially disclosed and no vested right could be said to have been accrued to the defendant therefore the present case was one of bona fide mis-description to which no limitation could apply and the error could be corrected under S.153, C.P.C.---Plaint therefore, could not be rejected---Application was dismissed, in circumstances.

Trading Corporation of Pakistan (Pvt.) Ltd. v. M/s Syed Corporation PLD 2006 Kar. 258; Messrs M.A. Majeed Khan v. Karachi Water and Severage Board and others PLD 2002 Kar. 315 and Habib Bank Ltd. v. Iqbal I. Chundrigar and another 1983 CLC 1464 distinguished.

Angbats Aktiebolaget Bohuslanska Kusten and another v. Central Hardware Stores, Chittagong PLD 1969 SC 463; Bombay Co. Ltd. v. Haji Adam Haji Peer Muhammad Issak PLD 1959 WP (Kar.) 411; Capt. Dr. Abdul Wahab and others v. Province of Punjab and others 1986 MLD 2049 and Ismail Haji Sulaiman v. Hansa Line and another PLD 1961 Dacca 693 ref.

Collector of Customs v. Imran Enterprises 2001 CLC 419 and Aran Saz Contracts v. Pak Chromical Ltd. 1999 MLD 1781 dissented from.

Farhan Zia and Muhammad Rehan Quraishy for Plaintiff.

S. Mamoon Hasan for Defendant.

Date of hearing: 31st March, 2014.

P L D 2015 Sindh 101

Before Muhammad Ali Mazhar and Naimatullah Phulphoto, JJ

RAFIQ HAJI USMAN---Petitioner

Versus

CHAIRMAN, NAB through Office NAB and others---Respondnets

Constitutional Petition No.D-5226 of 2014, decided on 27th November, 2014.

(a) Bail---

--Grant or refusal of---Principles---While deciding plea of bail, deeper appreciation of evidence is not required and elaborate sifting of evidence cannot be made at the time of deciding bail application but only tentative assessment 'is to be made---High Court while dealing with question of bail in constitutional jurisdiction must consider it carefully and weigh in the scale of justice---Reasonableness of grounds for withholding bail must be shown through some material and merely a suspicion, however, sufficiently strong it may be is not enough to refused bail.

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

----S. 9(a)(ix)---Constitution of Pakistan, Art.199---Constitutional petition---Bail, grant of---Cheating members of public at large--- Incomplete investigation---Accused launched a housing project and received money from public at large, despite lapse of many years possession of houses were not given to investors-Validity---Bail could be granted to accused in case under National Accountability Ordinance, 1999 under Constitutional jurisdiction which could be judged on the ground of hardship and prima facie improbability of conviction of accused on the basis of material collected by prosecution---If Court had come to the conclusion that there was no reasonable ground that accused had committed any offence, bail might be granted---Court had also to see whether such powers should be exercised so liberally as to nullify and make provisions of National Accountability Ordinance, 1999, redundant---While collar crimes were mostly based on documentary evidence and to find out, in a nutshell, whether a case of bail was made out or not---Court had to preview and glance over incriminating material of tentative assessment--- Investigation was still incomplete and investigating officer stated before High Court that some more important documents were to be recovered and confronted to accused---Accused was still on remand so in all conscience neither any reasonable ground existed that petitioner was not connected with offence in question nor there was any probability of conviction on the basis of material collected by prosecution against accused---High Court declined to release accused on bail as prima facie, sufficient documentary evidence was collected to connect him with crime---Petition was dismissed in circumstances.

Begum Riffat Ahad v. NAB 2003 PCr.LJ 87; Zahoor Ahmed Shaikh v. NAB PLD 2007 Kar. 243; Muharnmad Hanif v NAB PLD 2007 Kar. 429; Abdul Qadir v. Federation of Pakistan 2002 SCMR 1478 and Government of Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14, distinguished.

Muhammad Zafar Iqbal v. State 2003 PCr.LJ 170; Ghulam Haider Jamro v. Chairman, NAB 2007 YLR 541; Asher Jan v. State 2002 MLD 603; Jamil A. Durrani v. State 2002 MLD 1344; PLD 2013 Sindh 357; Frida Rohail v. State 2007 MLD 347; Mrs. Riaz Qayyum v. State 2004 SCMR 1889 and Abdul Aziz Khan Niaziv. State PLD 2003 SC 668 ref.

Anwar Mansoor Khan and Muhammad Ishaq Khan for Petitioner.

Muhanunad Noman Jamali and Jamal S. Mufti for the Allottees.

Muhammad Riaz, ADPG, NAB along with Muhammad Hubaib Mali, I.O. NAB.

Dates of hearing; 10th, 13th and 19th November, 2014.

P L D 2015 Sindh 113

Before Salahuddin Panhwar, J

KARIM BUX---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No.130 of 2013, decided on 22nd July, 2014.

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

---S. 544-A---Word `compensation'---Connotation---Word 'compen­sation' is a kind of damages which court awards and it is entirely independent to that of offence or its punishment.

Black's Law Dictionary ref.

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

----Ss. 345 & 544-A---Penal Code (XLV of 1860), S.302 (b)---Qatl-i-­amd---Compounding of offence---Compensation, determination of--­Principle---Accused was convicted by Trial Court and sentenced to imprisonment for life as Tazir and also directed to pay a sum of Rs.200,000 as compensation under S.544-A, Cr.P.C., to legal heirs of deceased---Plea raised by accused was that he was a poor man and had no source of income to pay compensation---Validity---Competence of persons so specified in relevant column of S.345(2), Cr.P.C., though continued to compound the offence, even after conviction, but such competence was not available to them in matter of compensation awarded under S.544-A, Cr.P.C.---Compensation was to be determined having regard to circumstances of the case and since parties, including those entitled to such compensation, having patched up, therefore, it would meet the ends of justice to reduce compensation amount from Rs.200, 000 to Rs.100, 000---Compromise was allowed accordingly.

Muhammad Tufail v. Sessions Judge, Attock PLD 2004 SC 89 and Shahzad Ahmed alias Mitho and another v. The State 2005 PCr.LJ 1316 rel.

Syed Tarique Ahmed Shah for Appellant.

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

Mian Taj Muhammad Keerio for the Complainant.

Date of hearing: 14th July, 2014.

P L D 2015 Sindh 118

Before Faisal Arab and Shaukat Ali Memon, JJ

ZUBAIR AHMED KHASKHELI---Petitioner

Versus

FEDERATION OF PAKISTAN and 2 others---Respondents

Constitutional Petition No.3210 of 2011, heard on 12th November, 2013.

Constitution of Pakistan---

----Arts. 25-A, 37, 38 & 199--- Universal Declaration on Bioethics and Human Rights [19-10-2005]-Constitutional petition---Fundamental Rights---Awareness---School syllabus-Grievance of petitioner was that Fundamental Rights should be included in school syllabus so that children should have awareness about the same---Validity ­Constitutional provisions were to be read harmoniously with one another and therefore, if Art. 25-A was read with Arts. 37(a), (b)(c) & 38 of the Constitution for promotion of social and economic well being of the people, it was clear that contents of curriculum had to be such that they raise younger generation of country with awareness of their Fundamental Rights---If future generation was grown with knowledge of its Fundamental Rights, it would help to remove illiteracy, raise awareness and improve basic quality of life, such as food, clothing, housing, education and medical facilities, irrespective of sex, caste, creed or race as to live with dignity-Pakistan was signatory to Universal Declaration on Bioethics and Human Rights adopted by UNESCO on 19-10-2005, and the same had also made it obligatory upon ratifying States to ensure dissemination of information as to human rights to its citizens; it was obligation of the State to ensure enforcement of fundamental rights guaranteed under the Constitution and to apprise its citizens, in particular the students, of such rights and mythology for their enforcement-High Court directed the provincial government to introduce fundamental rights/human rights as compulsory subject in higher secondary education from academic year, 2015 and onwards-Petition was allowed in circumstance.

Rana Aamer Raza Ashfaq's case 2012 SCMR 6 rel.

Dr. Zahoor Ahmed Azar's case PLD 2013 FSC 1; Fiaqat Hussain's case PLD 2012 SC 224 and 2014 SCMR 396 ref.

Rafique Ahmed Kalwar for Petitioner.

Dilawar Hussain, Standing Counsel for Respondent No. 1.

Chief Secretary Sindh for Respondents Nos. 2 and 3.

Date of hearing 12th November, 2013.

P L D 2015 Sindh 123

Before Syed Hassan Azhar Rizvi and Muhammad Junaid Ghaffar, JJ

LIAQUAT NATIONAL HOSPITAL through Medical Director---Petitioner

Versus

PROVINCE OF SINDH through Secretary Excise and Taxation and 2 others---Respondents

Constitutional Petition No.D-1100 of 2012, decided on 15th July, 2014.

(a) Interpretation of statutes---

----Fiscal statute--- Exemption clause---Applicability---Principle--- Onus is on taxpayer or person who is claiming exemption from levy of such tax to show that he is entitled to benefit of such exemption--- If two reasonable interpretations of exemption clause are possible, then the one that favours revenue authorities, though it may go against taxpayer, has to be adopted--- If exemption is available to a person on complying with certain conditions, then conditions have to be strictly complied with.

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

----S. 4(f)---Constitution of Pakistan, Art. 199---Constitutional petition---Property tax---Exemption-7-Word 'exclusively'---Scope--­Petitioner Institute (Hospital) was aggrieved of decision taken by authorities whereby tax exemption was withdrawn--- Validity--­ Exemption under S.4(f) of West Pakistan Urban Immovable Property Tax Act, 1958, was provided to buildings and lands or portions thereof used 'exclusively for public worship or public charity'---Use of word `exclusively' restricted and or narrowed the scope of exemption available under S.4(f) of West Pakistan Urban Immovable Property Tax Act, l958---Only such buildings and lands or portions thereof were exempted under Cl. (f) of S.4 of West Pakistan Urban Immovable Property Tax Act, 1958, which were used 'exclusively' for public charity---Building and land of petitioner was not being used exclusively for public charity but in a limited manner---High Court declined to interfere in order passed by authorities---Petition was dismissed in circumstances.

Pakistan Cricket Board v. Director General Excise and Taxation and others 2011 CLC 1894; Pakistan through Secretary Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Resch's Will Trust by House or Lords 514 P.C. (PC) 1969; Karachi International Container Terminal Ltd. v. Government of Sindh through Secretary Excise and Taxation and others 2005 SCMR 1183; Shaikh Sultan Trust v. Excise and Taxation Officer and others 2006 YLR 573 and Pak Corn Ltd. and others v. Federation of Pakistan and others PLD 2011 SC 44 ref.

(c) Interpretation of statutes---

--Intention of legislature has to be kept in mind and each and every addition or deletion of a word in amending statute has to be assigned a reason.

Yousuf Ali Saeed for Petiitoner.

Saifullah Assistant A.G. Sindh for Respondents.

Date of hearing: 26th February, 2014.

P L D 2015 Sindh 134

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

TALAAT INAYATULLAH KHAN and another---Appellants

Versus

Dr. ANIS AHMAD SHEIKH---Respondent

High Court Appeals Nos. 46 and 47 of 2012, decided on 11th June, 2014.

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

----O. XXXVIII, Rr.1 & 2---Attachment before judgment---Principle--­Before exercising power conferred by O.XXXVIII, C.P.C. a court should be satisfied on two points---First that plaintiff's cause of action is prima facie an unimpeachable on subject to his/her proving allegations/claims made in plaint; second being that court should have reason to believe on the basis of materials that unless jurisdiction is exercised there is a real danger that defendant may remove himself from the ambit of powers of court.

(b) Contract---

--Privity of contract, doctrine of---Scope---Doctrine of privity of contract provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except parties to it---Only parties to contracts should be able to sue to enforce their rights or claim damages.

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

---O. XXIII R.1---Specific Relief Act (I of 1877), S. 12---High Court appeal---Suit for specific performance of agreement to sell---Withdrawal of suit---Return of money---Scope---Trial Court granted interim injunction to plaintiff subject to deposit of balance consideration amount in court---Subsequently plaintiff withdrew his suit and filed application for return of his balance consideration amount deposited by him---Validity---Plaintiff had a right to withdraw his suit unconditionally whenever he desired under O.XXIII, R.1, C.P.C.---Where suit was withdrawn unconditionally all interim order and consequential acts had become ineffective---After unconditional withdrawal of suit, plaintiff was entitled to receive his amount with profit deposited by him under Court's order---Single Judge of High Court rightly reviewed his order and allowed return of money---No irregularity or illegality was noticed in order passed by Single Judge of High Court requiring interference by Division Bench of High Court in High Court Appeal---Appeal was dismissed in circumstances.

Johra Saeed and another v. University of Health Sciences through Vice Chancellor sand 2 others 2007 MLD 447 rel.

Abdul Hameed Siddiqui for Appellants.

K.A. Wahab for Respondent.

Date of hearing: 13th February, 2014.

P L D 2015 Sindh 142

Before Muhammad Shaft Siddiqui, J

PAKARAB FERTILIZERS LIMITED.---Plaintiff

Versus

DAWOOD HERCULES CORPORATION LIMITED through Secretary and 8 others---Defendants

Suit No.359 of 2013, decided on 23rd October, 2014.

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

---O. XXXIX Rr. 1 & 2 ---Specific Relief Act (1 of 1877) S. 12---Suit for specific performance of agreement to sell---Sale-purchase contract-Memorandum of Understanding-Enforceability/specific performance of such Memorandum of Understanding when it fulfilled essential pre-requisites of a valid contract-Scope-Plaintiff/purchaser sought to purchase entire shareholding of defendant company; and executed a Memorandum of Understanding; and thereafter paid a specific amount to the defendants-Contention of plaintiff/purchaser was inter alia that in violation of binding obligations of the said MOU, the defendants refused to transfer shares to the plaintiff and returned the amount paid by the plaintiff---Plaintiff/purchaser through presented application under O.XXXIX, Rr.1 and 2, sought to restrain the defendants from alienating their shareholding in the Company during the pendency of the suit for specific performance-Contention of defendants was that said MOU was not a binding agreement but merely a precursor for which no specific performance could be sought---Held, that the MOU document, when seen on the touchstone of the definition of an "agreement" or contract, provided all material terms which were the pre-requisites in formulating a valid contract---For a valid contract, a consensus of the parties on material terms was a pre-requisite and "acceptance" only had to be unqualified and unconditional-Document in question may have been described as a "Memorandum of Understanding" ("MOU"), however a prescribed form was not a pre- requisite in reaching to a conclusion that a valid agreement had been formulated, therefore, argument to the effect that the MOU was merely an agreement to enter into an agreement, was far stretched-Insofar as arguments in relation to contingent terms of the MOU, such as obtaining permission for "Mushariq" financing and due diligence, were concerned, High Court observed that some of the terms of the MOU may not be independent, but such contingent terms or the contingent contract, could not rule out the application of specific performance---High Court further observed that it was not always the case that a MOU could be considered as a document on basis of which an agreement was to be reached, and the same depended upon its content and the desires of the parties executing such an understanding---Only intention of parties which was to be construed while considering the document relied upon for specific performance---Language of such a document established its status---Intention of drawing a formal agreement subsequent to the MOU which otherwise fulfilled all pre-requisites of an agreement , if existed, then the same did not override the binding nature of the earlier document which may be named as the MOU---High Court held that the plaintiff/ purchaser had a prima facie case, and balance of convenience lay in plaintiff/purchaser's favour, and that in case a temporary injunction was refused, the plaintiff/purchaser would suffer irreparable loss---Application for temporary injunction was allowed, in circumstances and the defendants were restrained front alienating/transferring their shareholding in the Company.

Dewan Development (Pvt.) Ltd. v. Messrs Mybank Ltd. 2011 MLD 1368; Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 W.F. Kar. 202 and Ahmad Khan Bhatti v. Masooda Fatimia PLD 1981 Kar. 398 rd.

Bashir Ahmad v Muhammad Yousaf 1993 SCMR 183; Mussarat Shaukat Ali v. Safia Khatoon 1994 SCMR 2189; Panna Lal v. Nihai Chand (AIR 1922 Privy Council 47: Ahmad Khan Bhatti v. Masooda Fatimia PLD 1981 Kar. 398; Fourth Edition 2010 of Aiyar's Major Law Lexicon; Dresser Rand S.A. v. Bindal Agro Chem Ltd. (2006) 1 SCC 751; Courtney and Fairbairn Ltd. v. Tolaini Brothers (Hotels) Ltd. [1975] 1 All ER 716 and Elahi Bakhsh v. Muhammad Iqbal 2014 SCMR 1217 ref.

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

----Ss.2(h) & 37---Specific Relief Act (I of 1877), S.12---Memorandum of Understanding-Enforceability/specific performance of such MOU when it fulfilled essentials pre-requisites of a valid contract---Scope--­For a valid contract, a consensus of the parties on material terms was a pre-requisite and "acceptance" only had to be unqualified and unconditional---Document in certain circumstances may be described as a "Memorandum of Understanding" ("MOU"), however a prescribed form was not a pre-requisite in reaching to a conclusion that a valid agreement had been formulated---Some of the terms of a MOU may not be independent, but such contingent terms or the contingent contract could not rule out the application of specific performance--- Was not always the case that a MOU could be considered as a document on basis of which an agreement was to be reached, and the same depended upon contents and the desires of the parties executing such an understanding---Only intention of parties was to be construed while considering the document relied upon for specific performance---Language of such a document established its status---Intention of drawing a formal agreement subsequent to the MOU which fulfilled all pre-requisites of an "agreement", if existed, then the same did not override the binding nature of the earlier document which may be named as the MOU.

Dewan Development (Pvt.) Ltd. v. Messrs Mybank Ltd. 2011 MLD 1368; Pakistan Industrial Development Corporation v. Aziz Qureshi PLD 1965 WP Kar. 202 and Ahmad Khan Bhatti v. Masooda Fatimia PLD 1981 Kar. 398 rel.

Khalid Anwar along with Mustafa Ali for Plaintiff. Kazim Hassan for Defendants Nos. 1 to 6.

Dates of hearing: 3rd and 9th October, 2014.

P L D 2015 Sindh 155

Before Nazar Akbar, J

SIKANDAR ALI---Appellant

Versus

ABDULLAH and 3 others---Respondents

IInd Appeal No.25 of 2012, decided on 9th September, 2014.

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

---O. XXIII, R. 1(3) & 0. II, R.2---Withdrawal of suit---Fresh suit, institution of---Scope---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court being barred under O.II, R.2, C.P.C.---Validity---Plaintiff was precluded from filing another suit after withdrawl of earlier suit on same "cause of action", on same "subject matter" and against the same defendant without permission to institute a fresh one-Provisions of O.XXIII, R.1(3) and O.II, R.2, C.P.C. were complementary to each other to control the litigation after litigation between the same parties on the same subject matter.

Ghulam Nabi and others v. Seth Muhammad Yakoob and others PLD 1983 SC 344; Muhammad Suleman v. Ehsan Ali PLD 1983 Kar. 537; State Life Insurance of Pakistan v. Mst. Zainab Khatoon and others PLD 1987 SC AJ&K 5; Manzoor Hussain v. Rasool Bukhsh 1991 CLC 640; Qazi Shamas-ur-Rehman and another v. Mst. Chaman Dasta and others 2004 SCMR 1798 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 ref.

Muhammad Suleman v. Ehsan Ali PLD 1983 Kar. 537; State Life Insurance of Pakistan v. Mst. Zainab Khatoon and others PLD 1987 SC AJ&K 5; Manzoor Hussain v. Rasool Bukhsh 1991 CLC 640; Qazi Shamas-ur-Rehman and another v. Mst. Chaman Dasta and others 2004 SCMR 1798 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 rel.

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

----S. 99---Appeal---Court fee, non-payment of---Effect---Ministerial staff of court was bound to point out non-payment of court fee and if such had been done then appellant could pay the same to avoid dismissal of appeal on account of non-payment of court fee---If such objection had been raised by the Appellate Court only then appellant could have been penalized---Jurisdiction of Appellate Court was not disputed to entertain the appeal, therefore order passed thereon was not affected adversely on account of non-payment of court fee---Impugned judgment and decree passed by the Appellate Court were protected by the provision of S.99, C.P.C. despite the fact that no court fee on the appeal was paid---Appellate Court had no power to set aside the judgment and decree on the ground of error or irregularity which had not affected the merits of the case or jurisdiction of the court---Non­payment of court fee was mere irregularity which could be corrected at any time and such irregularity had not rendered the impugned order void or without jurisdiction---Appellant (respondent) had not refused to pay the court fee and High Court could not non-suit him on the ground of filing first appeal without court fee---No punitive action could be taken against the appellant (respondent) without recourse to the provision of O. VII, R.11, C.P.C.---High Court could call upon the appellant (respondent) to pay the court fee---Appellant (respondent) was directed to deposit/pay the requisite court fee in the High Court within a specified period to rectify the irregularity occurred on account of non-payment of court fee before the first Appellate Court.

Ghulam &abi and others v. Seth Muhammad Yakoob and others PLD 1983 SC 344; Muhammad Suleman v. Ehsan Ali PLD 1983 Kar. 537; State Life Insurance of Pakistan v. Mst. Zainab Khatoon and others PLD 1987 SC AJ&K 5; Manzoor Hussain v. Rasool Bukhsh 1991 CLC 640; Qazi Shamas-ur-Rehman and another v. Mst. Chaman Dasta and others 2004 SCMR 1798 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 ref.

Muhammad Suleman v. Ehsan Ali PLD 1983 Kar. 537; State Life Insurance of Pakistan v. Mst. Zainab Khatoon and others PLD 1987 SC AJ&K 5; Manzoor Hussain v. Rasool Bukhsh 1991 CLC 640; Qazi Shamas-ur-Rehman and another v. Mst. Chaman Dasta and others 2004 SCMR 1798 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 rel.

Abdul Jabbar Qureshi for Appellant.

Aghis us Salam Tahirzada for Respondent No.1.

Anwar Ansari, State Counsel for Official Respondents.

P L D 2015 Sindh 165

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

ELAHI BUX---Petitioner

Versus

The STATE through Director-General, NAB---Respondent

Constitutional Petition No.3014 of 2014, decided on 26th July, 2014.

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

----S. 25(a)---Voluntary Return---Stage---Option of Voluntary Return can be availed prior to authorization of investigation which means the stage when matter is not sub judice in any Court of law.

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

----Ss.9(a)(iv), 25(a) & 33-E---Constitution of Pakistan, Art.199---Constitutional petition---Voluntary Return (VR) agreement---Remedy against violation---Habitual offender---Petitioner was arrested for causing loss to government in procurement of wheat---Before authorization of investigation against him, petitioner entered into VR agreement but he violated the same---Plea raised by accused was that recovery should be made under West Pakistan Land Revenue Act, 1967---Validity---Enough time was given to petitioner to deposit VR amount but he failed to do so, thereafter, notice was given to him and finally a reference was filed---After VR agreement was signed voluntarily and without any duress, petitioner had no right or justification to question validity of reference or investigation conducted by National Accountability Bureau---Option to avail VR was valid till such time the reference was not filed and when the matter had become sub judice in Accountability Court, petitioner could not take the plea that recovery should have been made under West Pakistan Land Revenue Act, 1967, instead of filing reference against petitioner---Petitioner concealed factum of existence of his VR agreement with National Accountability Bureau---Earlier also petitioner was dismissed from service on account of misappropriation of wheat amounting to Rs.23,95,575, then he was reinstated in service subject to payment of misappropriated amount in instalments---Petitioner was again suspended on account of shortage of 4661 wheat bags and he was issued show cause notice---Petitioner submitted his undertaking that he would credit Rs.30,00,000 and also signed VR with National Accountability Bureau for payment of missing wheat bags---Track record of petitioner was self-explanatory, therefore, High Court declined to grant bail to petitioner---Petition was dismissed in circumstances.

Muhammad Afaq Shamsi and others v. National Accountability Bureau and others PLD 2011 Kar. 24; Muhammad Ali Athar v. Director General NAB Punjab and others 2013 PCr.LJ 58 and Mahesh Kumar and another v. Chairman, NAB and others PLD 2008 Kar. 38 distinguished.

Muhammad Anwar Tariq and M. Rehman Ghous for Petitioner.

Noor Muhammad Dayo, ADPG, NAB. for the State.

P L D 2015 Sindh 173

Before Muhammad Junaid Ghaffar, J

MUHAMMAD AYOOB THEBO and another---Applicants

Versus

THE STATE---Respondent

Criminal Revision Applications Nos.146 and S-170 of 2013, decided on 30th May, 2014.

(a) Constitution of Pakistan---

----Arts. 203-DD & 203-G---Criminal Procedure Code (V of 1898), Ss.435, 439 & 561-A---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Manufacture, owning or possessing intoxicant---Revisional jurisdiction of High Court in Hadood matters---Scope---Conviction awarded to the applicants/accused persons by Judicial Magistrate, having been maintained and upheld by Additional Sessions Judge, applicants had filed revision application before High Court against judgments of courts below---Maintainability---Revision application under Ss.435 and 439, Cr.P.C., would be competent before High Court in respect of any proceedings before any criminal court---High Court, while exercising such powers, for the purpose of satisfying itself, as to the correctness, legality or propriety of any finding, sentence or order passed; and as to the regularity of any proceedings of such criminal court could call for record and examine the same---Such revisional power, however, did not lie with High Court in respect of the laws relating to the enforcement of Hudood---Under provisions of Arts.203-DD & 203-G of the Constitution, it was only the Federal Shariat Court which could call and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order passed by such court---Revisional power of High Court in respect of Hudood matters, was excluded---By virtue of overriding provisions of Arts.203-DD & 203-G of the Constitution, no other subordinate legislation could confer any such jurisdiction even to the Supreme Court or to High Court in respect of any matter of which the jurisdiction lay with the Federal Shariat Court---Present revision application, was not maintainable before High Court, as jurisdiction in such matters exclusively lay with Federal Shariat Court---Application was ordered to be returned to the applicants, who could submit the same before the Federal Shariat Court.

Saeed Ahmed v. The State 2003 PCr.LJ 546; Darya Khan v. The State PLD 1989 Kar. 115; Muhammad Ilyas v. The State 1986 PCr.LJ 344; Liaqat Ali and 2 others v. The State and another PLD 1989 Kar. 481; Qadeer Akhtar v. The State 1986 PCr.LJ 1334; Haji Sakhi Dost Jan v. Pakistan Narcotics Control Board and another 1998 SCMR 1798; Syed Maskin Shah and another v. The State and 2 others 1994 MLD 190; Muhammad Sharif v. The State PLD 1999 SC 1063; Jaffar Khan and another v. The State 1985 PCr.LJ 2611; Sardarullah v. The State 1998 PCr.LJ 2001 and Liaquat Ali and 2 others v. The State and another PLD 1989 Kar. 481 ref.

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

----S. 561-A---Constitution of Pakistan, Arts. 203-DD & 203-G---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Inherent jurisdiction of High Court in Hadd cases---Proceedings could not be entertained under S.561-A, Cr.P.C., once conviction had been awarded under the Hudood Laws; as the remedy of revision in such matters lay with Federal Shariat Court.

Faheem Hussain Panhwar and Amjad Ali Sahito for Applicants.

Zahoor A. Baloch, D.A.G.. Allah Bachayo Soomro, Addl. A.G. and Shahid Shaikh, A.P.G. for Respondents.

Syed Madad Ali Shah: Amicus Curiae

Date of hearing: 19th May, 2014.

P L D 2015 Sindh 183

Before Muhammad Ali Mazhar and Naimatullah Phulpoto, JJ

MUMTAZUDDIN---Applicant

Versus

THE STATE---Respondent

Special Criminal Bail Application No.40 of 2014, decided on 10th November, 2014.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Customs Act (IV of 1969), Ss.2(s), 156(1)(8) & 185-F---Prevention of Smuggling Act (XII of 1977), S.46---Import Policy, 2013, para.5(A)(i)---Smuggling of arms---Bail, grant of---Negative list---Case of further inquiry---Accused was arrested for smuggling parts of weapons which were included in negative list of Import Policy, 2013---Judge of High Court as Special Appellate Court constituted under S.185-F of Customs Act, 1969, dismissed bail application filed by accused---Office raised objection to maintainability of bail application before Division Bench of High Court---Validity---Bail application was maintainable before Division of High Court against rejection order of bail passed by Special Appellate Court---Offence provided under S.156(1)(8) of Customs Act, 1969, read with S.2(s) of the said Act, and banned items/negative list provided under Import Policy, 2013, had altogether different impact and premise---Items provided under negative list were banned for import while offence for smuggling was separate offence which had nothing to do with banned items or negative list---Offence was to be considered within the parameters of S.156(1)(8) of Customs Act, 1969, which was directly related to offence of smuggling---Accused was booked and charged under the provisions of Customs Act, 1969, for the offence of smuggling so reference to definition of "arms or ammunition" provided under Pakistan Arms Ordinance, 1965, as given by Special Appellate Court in its order was irrelevant---Accused was entitled to concession of bail even when offence fell within the prohibitory clause of Cr.P.C., provided his case was covered within the purview of further inquiry and benefit of doubt could be extended in favour of accused even at bail stage---Evidence at bail stage could not be appreciated deeply and for the purpose of bail, law was not to be stretched in favour of prosecution---Bail was allowed in circumstances.

Muhammad Tahir's case 1991 PCr.LJ 644; Tariq Bsashir's case PLD 1995 SC 34; Syed Amir Ahmed Hashmi's case PLD 2004 Kar. 617; Central Board of Revenue's case PLD 1986 SC 192; Davey v. Lee (1968) 1 QB 366; Stephen's 'Digest of the Criminal Law 5th Edn. (1894);Archbold Criminal Pleading, Evidence and Practice; Amanullah Shah's case 2013 YLR 110; Farooq Ahmed's case 2014 YLR 998; Ferozur Rahman Batla 1980 PCr.LJ 663; Asif Ayub's case 2010 SCMR 1735; Khalid Javed Gillani's case PLD 1978 SC 256 and Syed Lakhat-e-Hasnain's case 2010 SCMR 855 ref.

Asghar Ali and another's case 1999 SCMR 654 fol.

Khawaja Shams-ul-Islam and Shahzad Mehmood for Applicant.

Ashfaque Rafiq Janjua, Standing Counsel.

Siraj Panwhar, Corporate Crime Circle, FIA.

Date of hearing: 28th October, 2014.

P L D 2015 Sindh 193

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

ISRAR HUSSAIN ZAIDI through Legal Representatives---Appellants

Versus

Mst. DODA BEGUM and 2 others---Respondents

High Court Appeal No.255 of 2014, decided on 12th December, 2014.

Contempt of Court Act (V of 2003)---

----S. 3---Specific Relief Act (I of 1877), Ss.8. 39, 42 & 54---Law Reforms Ordinance (XII of 1972), S. 3---Suit for recovery of possession, cancellation of document, declaration, injunction and mesne profit---Intra-Court appeal---Contempt of Court---Compromise/settlement between parties---Non-compliance---Parties, during trial arrived at settlement and single Judge of High Court directed appellant to comply with the order passed in view of the settlement failing which contempt proceedings would be initiated---Validity---In such cases, if any contempt proceedings were required to be initiated against delinquent party, then there must be an undertaking and/or promise to court and not to other party in clear and specific terms, whereas court must also have passed some orders which must have been based on such offer/undertaking---Mere recording of undertaking or consent which otherwise was accepted by other party, wherein no order had been passed by court pursuant to such consent and when such consent was not to the court rather it was to the other party, then any breach of such consent would not amount to contempt of court---Mere non-compliance of order passed in view of settlement would not attract contempt proceedings---Division Bench of High Court set aside the order in question and directed to proceed in accordance with law---Intra-Court appeal was allowed accordingly. [pp. 199, 203] A & B

Naveed Nawazish Malik v. Ghulam Rasool Bhatti and another 1997 SCMR 193; Babu Ram Gupta v. Sudhir Bhasin and another AIR 1979 SC 1528 and Nisha Kanto v. Saroj Bashini AIR (35) 1948 Cal. 294 rel.

Moulvi Iqbal Haider for Appellant.

Gharib Nawaz Daccawala for Respondent.

Date of hearing: 28th November, 2014.

P L D 2015 Sindh 204

Before Amer Raza Naqvi, J

ARY COMMUNICATION LIMITED---Appellant

Versus

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

M.A. No.23 of 2014, decided on 24th November, 2014.

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

----S. 30-A---Constitution of Pakistan, Art.199---Appeal under S.30-A of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Nature---Appeal under S.30-A of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 was a statutory Appeal and had to be dealt with in accordance with the law and principles which governed hearing of such a statutory appeal---Suo motu proceedings and contempt of court proceedings were distinguishable from such proceedings and were not to be considered for purposes of decision of appeal under S.30-A Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Principles dealing with statutory appeals were altogether different from powers enjoyed by the High Court under Art.199 of the Constitution; as in those matters normally questions of fact were not decided and for question of facts leading of evidence was necessary and furthermore, an aggrieved party should be given a complete, effective and reasonable opportunity to confront that evidence and to lead its own evidence in support of its respective claim or defence.

PLD 2011 SC 44 distinguished.

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

----Ss. 30(1), 8(5), 30-A---Powers to vary conditions, suspend or revoke licence---Suspension of licence of Television Channel---Imposition of fine---Show-Cause notice---Fair opportunity of hearing---Natural justice, principles of---Appeal under S.30-A of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Appellant, Television Channel impugned show-cause notice and subsequent order for suspension of licence and imposition of fine by the Pakistan Electronic Media Regulatory Authority ("Authority")---Contention of appellant was inter alia that the impugned order was bad in law and no proper and fair opportunity of hearing was provided to the appellant for presenting its stance---Held, that before passing of impugned order, a fair opportunity of being heard had not been provided to the appellant---Consequences suggested in the show-cause notice were such which could ruin the business of the appellant and therefore, it was their right to be heard properly and they should have been given a reasonable chance to defend themselves and present their point of view before the Authority---Said right did not mean that the Authority could not impose the penalty referred to in the show-cause notice or in the impugned order, but such an order could only have been passed if merits so demanded after providing of a fair, reasonable and proper opportunity of hearing to the appellant---Justice should not only be done but it should be seen to have been done---High Court observed that the Authority may proceed with the show-cause notices issued to the appellant, but before taking any final decision, appellant should be given a fair opportunity of being heard---High Court directed that whenever dates of such a hearing were fixed, sufficient time should be given to the appellant to prepare and appellant would be at liberty to take all legal and factual pleas before the Authority if there was any controversy with regard to the factual aspects of the matter; and in such a situation the parties should also have a right to lead evidence---Appeal was allowed, accordingly.

PLD 2013 SC 244; PLD 2010 SC 1109; PLD 2011 SC 365; 1998 SCMR 2268; 2006 YLR 3132; PLD 1965 SC 605; PLD 1999 SC 1126 and Civil Petitions Nos.1327 and 1350 of 2014 ref.

PLD 2011 SC 44 distinguished.

(c) Administrative of justice---

----Justice should not only be done but it should be seen to have been done.

Abid S. Zuberi, Ayan, M. Memon and Abdul Mobeen Lakho for Appellant.

Muhammad Qasim, Standing Counsel for Respondent No.1.

Kashif Hanif along with Nasir Ayub, Secretary PEMRA and Ashfaq Jumani, R.G.M. for Respondents Nos. 2 and 3.

Dates of hearing: 20th and 21st November, 2014.

P L D 2015 Sindh 213

Before Ahmed Ali M. Shaikh and Syed Muhammad Farooq Shah, JJ

Rao MUHAMMAD SHAKIR through Attorney---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Government of Sindh and 6 others---Respondents

Constitutional Petitions Nos.622 and 691 of 2014, decided on 5th May, 2014.

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

----S. 156---Constitution of Pakistan, Art. 199---Constitutional petition---Re-investigation of case---Principle---Submission of challan---Petitioners were accused in different criminal cases and sought re-investigations of cases after submission of challans in Trial Court---Plea raised by petitioners was that Senior Superintendent of Police (SSP) had influenced Investigating officers against them---Validity---Police Investigating officer was not debarred from reinvestigating and submitting fresh report in supersession of his earlier one either on his own initiative or on direction of superior police officials---Challan had already been submitted and thereafter in supersession of charge sheet, successive investigation could not be carried out under the orders of High Court---Investigation had already been completed and it was not found unsatisfactory or it was not alleged that final report under S.173 Cr.P.C. was based on false evidence during investigation due to behaviour of officials concerned, who were allegedly under the influence of SSP---Petitioners did not show any instance of availability of better evidence, therefore, it could not be said that police officers being subordinate to SSP were in his influence, who had submitted charge sheet in arbitrary and capricious manner---Petitioners did not mention that additional facts and additional circumstances would improve investigation in a better manner and would culminate on innocence of accused persons---Petition was dismissed in circumstances.

Bahadur Khan's case 2006 SCMR 373; Muhammad Nasir Cheema v. Mazhar Javed PLD 2007 SC 31; Zeeshan alias Shani v. The State 2012 SCMR 428 and Muhammad Yousuf v. The State 2000 SCMR 453 ref.

PLD 2010 SC 1109; Ghulam Sarwar Zardari v. Piyar Ali alias Piyaro 2010 SCMR 624; Atta Muhammad v. Inspector General of Police PLD 1965 W.P.Lah. 735; Federation of Pakistan v. Saeed Ahmed Khan and others PLD 1974 SC 151; M.S. v. Saifullah Khan Niazi 1982 SCMR 17; Shehnaz Begum v. Hon'ble Judge of High Court Sindh and Balochistan PLD 1971 SC 677 and Wali Muhammad v.Haq Nawaz PLD 1971 SC 717 rel.

(b) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S.156---Constitutional petition---Investigation, change of---High Court in exercise of constitutional jurisdiction under Art.199 of the Constitution cannot direct police to change the course of investigation to discover truth or otherwise to transfer investigation.

Brig. (Ret.) Imtiaz Ahmed v. Government of Pakistan through Secretary Interior Division, Islamabad and 2 others 1994 SCMR 2142 ref.

Qurban Ali Malano and Abdul Qadir Helepota for Petitioiner.

Ghulam Murtaza Korai for Respondent No.6.

Rasheed A. Rizvi for Respondent No.10.

Iqbal Awan, D.P.D. for the State.

Date of hearing: 17th April, 2014.

P L D 2015 Sindh 221

Before Syed Saeeduddin Nasir, J

AHMED PAREKH and 5 others---Plaintiffs

Versus

PROVINCE OF SINDH through Chief Secretary and Secretary, Home Department

and 5 others---Defendants

Suit No.811 of 2007, decided on 27th October, 2014.

Civil Procedure Code (V of 1908) ---

----O. I, R. 10---Striking off as a party---Container imported from consignee was loaded for transportation to its destination---Said container toppled off the trailer which turned turtle resulting into the death of the occupants therein---Contention of defendant-carrier was that once container was delivered to the consignee or their clearing agents the responsibility of carrier or its local agents would cease to exist---Validity---No intervention of carrier-defendant was on record in the packing of cargo and entire cargo was loaded and packed by the consigner for which carrier-defendant could not be held liable for negligence occurred during handling of container after same was discharged from the vessel in safe and sound condition---Container toppled off the trailer which turned turtle due to rash and negligent driving of its driver---Once cargo was discharged from the ship and freed from the ship's tackle the liability of carrier would end immediately---Defendant-carrier had no connection with the incident which had taken place resulting in death of the deceased---Application for striking off carrier-defendant from the title of plaint was allowed.

PLD 1975 Kar. 647; AIR 2009 Bom. 185; 1986 MLD 1433; 2006 MLD 1194; 2004 SCMR 1627; 2005 YLR 200 and 2005 MLD 1409 ref.

Farrukh Usman for Plaintiffs.

R.F.Virji for Defendant No.4.

Irfan Hassan for Defendant No.2/KMC.

Ms. Naheed Naz, State Counsel.

Date of hearing: 23rd October, 2014.

P L D 2015 Sindh 226

Before Hasan Feroz, J

Master GUL HASSAN---Applicant

Versus

GOVERNMENT OF SINDH through Home Secretary and 15 others---Respondents

Criminal Miscellaneous Application No.292 of 2012 and M.A.No.3059 of 2014, decided on 30th May, 2014.

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

----Ss. 369 & 561-A---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd, acts done by several persons in furtherance of common intention---Application under S.561-A, Cr.P.C.---Inherent powers of High Court under S.561-A, Cr.P.C.---Scope and applicability---Review in criminal cases---Application of S.369, Cr.P.C.---Scope---Under S.369, Cr.P.C. no court could alter or review its judgment after the same had been signed except to correct clerical errors---Section 561-A, Cr.P.C. conferred inherent powers on High Court to give effect to any order under Cr.P.C. to prevent the abuse of process of court and to secure the ends of justice but S.561-A, Cr.P.C. did not empower High Court to make correction/clarification of an order passed by High Court---Any person either aggrieved or otherwise could furnish information of any cognizable offence to Police Officer or a Magistrate competent to take cognizance of the offence---Factual aspects of the present case could only be decided on the scale of evidence during trial---High Court could not review its own orders passed in criminal jurisdiction as the court would become functus officio after passing and signing the order---Order in question passed by High Court did not require interference by review which had been preferred in the shape of appeal---High Court could not sit in appeal against its own order---Court could review or recall its judgment or order which was found to have been passed without jurisdiction, without adjudication on merits, in violation of any law or same having been obtained by playing fraud upon court---Criminal Procedure Code did not contain any provision for review of any judgment or order---High Court's power to correct its own order or recall an erroneous order was not attracted to present case---Application was dismissed.

2001 PCr.LJ 895 and 2000 MLD 1932 ref.

1999 SCMR 2765; 2000 PCr.LJ 1516 and 2001 PCr.LJ 1634 rel.

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

----S. 369---Applicability of S.369, Cr.P.C.---Under S.369, Cr.P.C. no court could alter or review the judgment after the same had been signed except to correct clerical errors---Criminal Procedure Code, 1898 did not contain any provision for review of any judgment or order.

(c) Stare decisis---

----Principle of stare decisis---Application---Principle of stare decisis had to be determined in each case by discretion of court keeping in view peculiar circumstances of each case.

2013 PCr.LJ 1518 rel.

Muhammad Rafi for Applicant.

Hakim Ali Shaikh for Petitioner.

A.P.G. for the State.

Date of hearing: 23rd May, 2014.

P L D 2015 Sindh 231

Before Salahuddin Panhwar, J

Syed ALI ATHAR---Plaintiff

Versus

CITY DISTRICT GOVERNMENT through District Coordination Officer and 2 others---Defendants

Civil Suit No.183 of 2010, decided on 12th September, 2014.

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

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Grant of temporary injunction---One had to establish co-existence of three ingredients i.e. prima facie case, balance of convenience and irreparable loss/injury to succeed for grant of an injunction---Plaintiff, in the present case, had possession over the subject matter under a registered document and he had prima facie case in his favour---Balance of convenience was also in favour of plaintiff and his plea with regard to irreparable loss and injury carried weight---No prejudice or loss would be suffered by the authority in acting within four corners of procedure, law and instructions/directions of Mohtasib---Application for grant of temporary injunction was accepted in circumstances.

PLD 2011 SC 365 ref.

(b) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---

----Arts. 29, 9 & 11---Civil Procedure Code (V of 1908), S. 9 & O. VII, R.11---Powers of Mohtasib---Scope---Bar on jurisdiction of court---Rejection of plaint---Scope---Determination of legal status of a document by civil court---Scope---Jurisdiction of court to question the validity of any action taken or intended to be taken under an order of Mohtasib had though been barred but competent court had not been restricted to entertain a suit where one had approached the court for determination of legal rights or legal status of a document---Civil court had absolute and exclusive jurisdiction to try all suits of civil nature determining the legal character, rights, obligation and status of person, property and documents---Mohtasib had been authorized to investigate any allegation of maladministration on the part of any agency or any of its officers or employees---Trial was not complete unless a full-fledged proceedings had been done as per procedure so provided while investigation was conducted/carried out in a summary manner---Investigation could not be equated with trial when objective of both were different from each other---Misfeasance was to be examined in investigation while rights and status were to be determined in the trial---Civil court was competent to declare and enforce such declaration (decree) while Mohtasib was to make recommendation to the quarter concerned---Mohtasib had no authority to declare status of person or of a registered document or order for cancellation thereof---Bar of jurisdiction would come into play only to protect a legal order/act or proceedings---Plaintiff had approached for declaration of his title/status and jurisdiction of court was not barred when no relief against or in respect of order of Mohtasib had been sought---Application for rejection of plaint was dismissed in circumstances.

Amber Ahmed Khan v. Pakistan Internatinal Airlines Corporation Karachi Airport, Karachi PLD 2003 Kar. 405 rel.

Muhammad Omer Lakhani for Plaintiff.

Muhammad Idrees Alvi for Defendant No.1.

Usman Tufail Shaikh for Defendant No.2.

Wasiq Mirza and Nadeem Babar for Defendant No.3.

Date of hearing: 28th August, 2014.

P L D 2015 Sindh 239

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

PAKISTAN DEFENCE OFFICERS, HOUSING AUTHORITY through Secretary and others---Appellants

Versus

MUHAMMAD AFSAR and others---Respondents

High Court Appeals Nos.160, 161, 162, 163 of 2014, decided on 4th July, 2014.

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

----O.XXIII, R.1, S. 107, O.IX, R.8 & O.XVII, R.3---Withdrawal of suit---Principles---Power of appellate court regarding withdrawal of suit---Plaintiff had absolute right to withdraw the suit at any stage of proceedings; where plaintiff wanted to file fresh suit, permission of the court was required---Court could not proceed with the suit suo motu in the absence of plaintiff---Under O.IX, R.8, C.P.C. court could dismiss suit where plaintiff did not appear when the suit was called for hearing---No provision in C.P.C. required the court to refuse permission to withdraw suit or compel plaintiff to proceed with the suit---Under O.XXIII, R.1, C.P.C. withdrawal of suit was complete when the court was informed to that effect---Where withdrawal of suit was unconditional, prayer for withdrawal could not be rejected and in the absence of any adjudication of rights no question of a speaking order could arise---Court could not limit, circumvent, abridge or destroy right to withdraw the suit---Order XXIII, R.1, C.P.C. conferred right on plaintiff to withdraw suit at any time after the institution against all or any of the defendants---Plaintiff could withdraw or abandon the entire or part of the claim---Where preliminary decree had created interest of third party, right to withdraw suit could not be exercised without consent of the third party---In suits for administration, accounts or partition plaintiff could not be allowed to withdraw suit where defendant had acquired a right in the subject matter and such right was likely to be defeated by withdrawal of the suit---Where purpose of withdrawal of proceedings was only to prevent the court from passing an order undoing a wrong or injustice done to a party or to deprive the Government or public functionary of receiving or recovering the public dues or to defeat the ends of justice, the court could decline withdrawal of suit---Appeal was continuation of suit---Under S.107, subsection 2, C.P.C. appellate court was competent to grant permission to withdraw suit as appellate court had all the powers of court of original jurisdiction/Trial Court---Appeals were accepted.

Mrs. Afroz Shah and others v. Sabir Qureshi and others PLD 2010 SC 913; Sarguja Transport Service v. State Transport Appellate Tribunal and others AIR 1987 SC 1988; 1992 SCMR 485; Hulas Rai Baijnath v. K. Bass and Co. Limited AIR 1963 All. 368; 1996 SCMR 1433; PLD 1988 Kar. 560 and 2013 CLC 1691 rel.

(b) Maxim---

----Invito beneficium non datur---Law confers upon a man no rights or benefits which he does not desire---Whoever waived or disclaimed a right, would lose such right.

Rasheed A. Rizvi and Malik Naeem Iabal for Appellants.

Nazakat Ali Tanwari for Respondents.

Date of hearing: 4th July, 2014.

P L D 2015 Sindh 244

Before Salahuddin Panhwar and Muhammad Iqbal Kalhoro, JJ

MEHBOOB ALI JOYO and 2 others---Petitioners

Versus

MUZAFFAR ALI and 4 others---Respondents

Constitutional Petition No.D-731 of 2014, decided on 8th July, 2014.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Fundamental Rights---Private person---Petitioners sought issuance of writ of habeas corpus for recovery of their father, who was an adult sane person residing with private respondent---Validity---While forming Art.199(1)(b)(c) of the Constitution, legislature did not confine powers and jurisdiction of High Court but clothed the High Court with an authority to issue appropriate directions to any person or authority, if there was denial to any of the Fundamental Rights---Deliberate use of phrase 'any person' in addition to words 'authority, including any government' itself showed that exercise in such like matter could well be exercised regardless the character and status of one which could be 'private' or of 'an authority, including government'---Terms 'harassment' and 'inducement' could not be taken as synonym to 'mental disorder'---Any adult person with sound mind could not be compelled to reside with a particular relation particularly, when such was against wishes of that person; it was not the relation which earned company of an adult but wish and will of that adult only---Issue agitated by petitioners did not fall within the ambit of any writ, which could be exercised by High Court---Petition was dismissed in circumstances.

Human Rights Case No.8901-S of 2012 ref.

Abdul Mueed Shaikh for Petitioners.

Sajjad Ahmed Chandio for Respondent No.1.

Allah Bachayo Soomro, Addl. A.G. Sindh along with SIP Nazar Lashari, P.S. Baldia.

Date of hearing: 8th July, 2014

P L D 2015 Sindh 250

Before Ghulam Sarwar Korai and Salahuddin Panhwar, JJ

HASSAN and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision Application No.100 of 2013, decided on 17th January, 2014.

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

----S. 403---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Possessing, trafficking of narcotics, and owning or possessing intoxicant---Principle of double jeopardy, applicability of---Police lodged F.I.R. against the petitioners/accused persons under Ss.6, 9 of Control of Narcotic Substances Act, 1997---Police after completion of investigation, submitted three challans; one for offence pertaining to 8 Kgs Bhang under Ss.6, 9(a) of Control of Narcotic Substances Act, 1997 in the court of one Judicial Magistrate while second challan for offence pertaining to 900 bottles of Desi Liquor under Arts.3, 4 of Prohibition (Enforcement of Hadd) Order, 1979 was submitted before the court of a different Magistrate---Third challan pertaining to 53 Kgs charas, 20 Kgs heroin powder and 49 Kgs chemical powder was submitted before the Special Court, Control of Narcotic Substance---Accused who were acquitted by both the courts of Judicial Magistrates on merits, had claimed that their trial before the Special Court, was not competent---Contention of accused persons was, that since facts and witnesses were the same there could be no subsequent trial, particularly when they stood acquitted by two different courts on same set of facts and witnesses---Validity---Accused could not claim benefit of S.403, Cr.P.C. only by establishing or pleading that their subsequent trial was on same set of facts/acts, and same set of witnesses, but what mattered was trial for the same offence---Accused had never questioned/ challenged separate submissions of challans, rather effers were made to have the cases of lesser punishment concluded earlier---Accused continued with their trial for different offences, before Magisterial Courts; without any plea of prejudice, but ever since on acquittal from such offences, they dressed up with a plea that their trial for a heinous offence, on same facts, amounted to vexing them twice---Acquittal, or conviction, arising out of same facts, for an offence of lesser punishment, would not bring S.403, Cr.P.C. into operation, on two folds i.e.; punishment was one of the criteria, which would make difference in offences; and such difference would also decide competence of a court to try the offence---In the present case, pending trial was not only for the offence of different nature from that already faced by accused persons, but also the case property was different for which accused had never faced trial---Pending trial of accused persons for an offence under S.9(c) of Control of Narcotic Substances Act, 1997, was not illegal, despite their acquittal for offences under S.9(a) of said Act, and Art.4 of Prohibition (Enforcement of Hadd) Order, 1979, nor such acquittal would cause any influence upon the merits of trial of accused persons for such offence---Petition being devoid of merits, was dismissed, in circumstances.

The State v. Anwar Khatak and others PLD 1990 FSC 62 and Karmi Rahmatullah v. The State 1994 PCr.LJ 428 ref.

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

----S. 403---Interpretation of S.403, Cr.P.C.---Section 403, Cr.P.C. consisted of five subsections---Since the subsections, were always explanatory, hence a provision, was always to be read and taken as a whole; and not in isolation, as same was the demand of principles of interpretation. [p. 255] B

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

----S. 403---Double Jeopardy---Subsequent trial, prohibition of---Subsequent trial of accused was not prohibited under the law on same facts, and same set of witnesses, where he was being tried for different offence---Provision of S.403, Cr.P.C., nowhere prohibited subsequent trial of accused on same facts, and even on same set of evidence, but prohibition would come into play only where one was being vexed twice for same offence for which one had already been tried by a court of competent jurisdiction.

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

----Ss. 154 & 173---F.I.R., scope and object of---Challan, scope---Object of F.I.R., was always to bring the law into motion; and it was not the F.I.R. alone on the basis whereof one was arraigned, but it was the investigation material, which would determine the charge, or disposal of case F.I.R. lodged/recorded by the Incharge Police Station was a narration given by the informant while the charge sheet/challan was submitted with reference to outcome of the investigation---Not always necessary that if F.I.R. had been lodged/recorded for a particular offence, the challan/charge sheet should also be submitted for same offence---Investigating Officer, was competent to add or delete the section in the charge sheet/challan, which would be open to scrutiny by the court of law, taking cognizance---If in result of the investigation, a single F.I.R. would result in constituting two different offences; and each offence had been shown to be triable by a different court of law, as categorized by S.6, Cr.P.C., or any other law covering to such offence, then sending up one before different courts of law, could not be said to be illegal, only on the plea that roots of all were one and same i.e. an F.I.R. else the scheme and object of Schedule-II of Code, would stand frustrated---Essentials of a challan produced by the Police before the Trial Court, would include description of the offences committed; production of accused before the court and the evidence/witness to prove the offence---Trial Court could commence the trial only when all those three, were produced before it.

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

----S. 403---Control of Narcotic Substances Act (XXV of 1997), S.9---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Possessing trafficking of narcotics, and owning or possessing intoxicant---Principle of double jeopardy, application of---Control of Narcotic Substances Act, 1997, nowhere provided punishment for possessing desi liquor, but punishment thereof had been provided under Arts.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979---Offence under said Articles of the Order, was triable by the court of Magistrate, and was distinct offence from that mentioned/provided under the Control of Narcotic Substances Act, 1997 thus trial of accused for such offence and acquittal thereof, was not helpful for accused to press the provision of S.403, Cr.P.C. in a trial of different offence i.e. offence falling within meaning of S.9(c) of Control of Narcotic Substances Act, 1997 by Magistrate in a case of possession of 8 Kg Bhang---Section 403, Cr.P.C., could not legally come into play to quash the trial proceedings relating to offence, punishable under S.9(c) of Act, 1997 regarding different property; because the provision of said section would revolve around two material phrases i.e. same offence, and trial of offence by a court of competent jurisdiction.

Maroof Hussain Hashmi for Petitioners.

Ms. Rahat Ehsan, D.A.G. for the State.

Date of hearing: 17th January, 2014.

P L D 2015 Sindh 261

Before Muhammad Shafi Siddiqui, J

Messrs AL-AHRAM BUILDERS LIMITED---Plaintiffs

Versus

PAKISTAN DEFENCE OFFICERS' HOUSING AUTHORITY through

Secretary/Managing Director---Defendant

Suit No.1003 of 1979, decided on 2nd October, 2014.

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

----S.12---Specific performance of agreement---Indoor management, doctrine of---Applicability---In terms of doctrine of indoor management, plaintiff cannot be made to suffer for any deficiency on the part of defendant to follow informal procedure internally adopted by it.

Pechs v. Mst. Anwar Sultana PLD 1969 Kar. 474 and UBL v. Pak Wheat Products Limited PLD 1970 Lah. 235 rel.

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

----Art. 129---Two presumptions---Applicability---Where there are two presumptions and both are equally claimed to be balanced, court must yield for one which best accords with facts.

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

----Art. 129 (g)---Civil Procedure Code (V of 1908), Os.XI & XVI---Withholding of evidence---Presumption, raising of---Principle---In order to raise presumption under Art.129(g) of Qanun-e-Shahadat, 1984, it is not necessary to follow procedure of giving notice for production of documents under O.XI, C.P.C. or to summon documents under O. XVI, C.P.C.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Art.114---Suit for specific performance of agreement to sell---Agreement---Proof---Estoppel, principle of---Applicability---Claim of plaintiff was that earlier suit was withdrawn subject to conditions mentioned under letter dated 17-6-1974---Plea raised by defendant society was that the letter in question was result of fraud---Validity---Plaintiff, as per its plaint had unequivocally accepted offer contained in letter in question and further withdrew proceedings initiated by it---Although details of earlier suit filed by plaintiff did not come on record during evidence but such averment had been reaffirmed by plaintiff's witness in his deposition---Nothing was on record from the side of defendant to controvert such assertion of plaintiff and defendant was estopped in law from turning its back and resiling from commitment made through letter dated 17-6-1974---Defendant invited offers for transfer of plot in question in response thereto plaintiff submitted offers and the same were accepted by Managing Committee of defendant society and unconditional offer was communicated to plaintiff without any reservation---Such was an unqualified acceptance and constituted valid contract for transfer of subject property by defendant to plaintiff---Defendant failed to point out any illegality or irregularity in allotment made in favour of plaintiff, therefore, it could not cancel the same---Suit was decreed in circumstances.

PLD 2005 Kar. 188 distinguished.

Syed Hamid Rehmani and 7 others v. Hussain Bhai and 27 others Civil Appeal No.K-82 of 1972; Messrs M.A. Khan and Co. v. Pakistan Railway Employees Cooperative Housing Society Limited 2006 SCMR 721; Messrs Habib Bank Limited v. Abdul Wahid Khan 1996 CLC 698; Ziauddin v. DHA 1999 CLC 723; Rehan Hassan Naqvi v. DHA 2000 CLC 1535 and DHA v. Muneer Ahmed Ghulam Mustafa Akhtar 2006 SCMR 178 rel.

Mushtaq A. Memon along with Ishtiaq A. Memon for Plaintiff.

Amir Malik for Defendant.

Dates of hering: 17th, 28th April and 22nd May, 2014.

P L D 2015 Sindh 279

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

MISRI KHAN and 10 others---Petitioners

versus

MANAGER, DARGAH HAZRAT ABDULLAH SHAH GHAZI, KARACHI and 2 others---Respondents

Constitutional Petition No.4264 of 2012, decided on 4th March, 2014.

Constitution of Pakistan---

----Arts. 18 & 199---Constitution petition---Freedom of trade and business---Security of Mazar (shrine)---Closing of passage---Administration of Mazar closed many passages after terrorist attacks so as to implement security control---Grievance of petitioners was that they had right to get access to their shops through the passages closed by administration of Mazar---Validity---Adopting strict security measures on the Mazar were necessary at the prevailing situation---Gates were nor closed by administration of Mazar on their own will and wish rather the gates had been shut down on specific instructions of intelligence agencies and police officials---Administration of Mazar was neither against petitioners to deprive them of their business activities nor had done so on their own accord---Number of shop owners had sworn in affidavits, wherein they had admitted that they would abide by certain pre-conditions imposed by administration concerning security of the Mazar---Security of persons had to be given prime importance therefore, High Court declined to interfere in the decision taken by the administration---Petition was dismissed in circumstances.

Shehla Zia v. WAPDA PLD 1994 SC 693; Suo Motu Petition No.11 of 2005 PLD 2006 SC 1; Watan Party v. Federation of Pakistan PLD 2011 SC 997; Arshad Mehmood v. Government of Pakistan PLD 2005 SC 193; Imdad Hussain v. Province of Sindh PLD 2007 Kar. 116; Chief Justice of Pakistan v. The President of Pakistan PLD 2010 SC 61 and Muhammad Aslam (Amir Aslam) v. District Police Officer, Rawalpindi 2009 SCMR 141 ref.

Muslim Shamim for Petitioners.

Zahid Farooque Mazari for Respondents Nos. 1 and 2.

Meeran Muhammad Shah, A.A.-G. for Respondent No.3.

Dates of hearing: 6th and 25th February, 2014.

P L D 2015 Sindh 284

Before Ghulam Sarwar Korai and Salauddin Panhwar, JJ

MUHAMMAD HUSSAIN---Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.163 of 2013, decided on 18th February, 2014.

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

----S. 397---Phrase "when a person undergoing a sentence"---Scope---Use of the phrase in S.397, Cr.P.C. has left nothing ambiguous that provision of S.397 is speaking only about such matter where an accused though undergoing a sentence yet appearing before a court of law in other case or trial.

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

----S. 397---Sentence of offender already sentenced for another offence---Scope---One basic concept of punishment is reformation, therefore, court trying 'a person undergoing a sentence" has been vested with a discretion that such court can competently and legally change such order of running of sentences---Even a subsequently awarded sentence for imprisonment can be ordered to run concurrently with that sentence of imprisonment which a person is already undergoing.

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

----S. 397---Term "Court"---Scope---Use of word "Court" itself confines that it would be the "Court" trying convict of other crime as an accused for other trial/charge---In appeal whole case becomes open, therefore, the word "Court" also includes Appellate Court and even Revisional Court where subsequent sentence is challenged.

Bashir v. State PLD 1991 SC 1145 rel.

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

----Ss. 397 & 561-A---Penal Code (XLV of 1860), Ss.420, 468 & 471---Cheating, forgery and using forged documents---Concurrently running of sentences---Accused was convicted in four different cases and sentenced separately---Accused raised the plea that under S.397, Cr.P.C. sentences in four cases through different trials should have been directed to run concurrently---Validity---Accused failed to show that all four charges (offences) were akin to each other or were intimately connected with each other---On the other hand involvement of accused in similar nature of offence, committed at different times with different people, showed attitude of accused towards right of the individuals---Accused was found guilty of offences involving rights of individuals wherein they were deprived or attempted to be deprived of their properties---Accused failed to bring his case with the criteria sketched out where a deviation to normal course was resorted to---High Court declined to interfere in the judgments passed by Trial Court---Petition was dismissed in circumstances.

SBLR 2011 FSC 50; Taiyab A. Khambaty v. State 1987 PCr.LJ 755; Allah Bakhsh v. Muhammad Afzal Khan PLD 1982 Lah. 45; Shahbaz Hussain v. State 2007 PCr.LJ 1495; Salim Raza v. The State 1998 PCr.LJ 284; Gulzar Ahmad v. Superintendent District Jail, Faisalabad 2009 MLD 1068; Shah Hussain v. State PLD 2009 SC 460; Abdul Hamid v. The State 1990 PCr.LJ 568; Ali Akber Shah v. State PLD 2004 Kar. 589; Abdul Razzak v. State 2005 PCr.LJ 237; Nek Muhammad v. State PLD 2007 Kar. 62; Ali Khan Kakar v. Hammad Abbasi 2012 SCMR 334 and Ghulam Farid v. State 2013 SCMR 16 ref.

Rashid Mehmood and Muhammad Arif Shaikh for Applicant.

Waleed Ansari, D.A.G. for the State.

Date of hearing: 23rd January, 2014.

P L D 2015 Sindh 295

Before Ghulam Sarwar Korai and Salahuddin Panhwar, JJ

WAQAR AHMED and another---Petitioners

versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and another---Respondents

Constitutional Petitions Nos.3646 and 3779 of 2012, decided on 6th March, 2014.

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

----S. 497---Addition of word "offence" after word "bail" in S.497, Cr.P.C.---Effect---Deliberate use of word 'offence' in S.497, Cr.P.C. makes it clear that if after lodging of F.I.R. at any subsequent stage, any offence is added or court takes cognizance of another offence then release of accused or his admission to bail does not exempt such accused from seeking bail in such offence added subsequently.

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

----S. 498-A---Word 'case'---Scope---Order of release on bail or admission to bail is effective only in respect of case that so stands registered against him and is specified in the order or direction.

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

----Ss. 9(b) & 16-A---Criminal Procedure Code (V of 1898), S.497---Constitution of Pakistan, Art.199---Constitutional petition---Bail, grant of---Transfer of case to Accountability court---Petitioners were accused facing trial before ordinary Court and were released on bail---Subsequently the case was got transferred to Accountability Court---Plea raised by petitioners was that on transfer of case they could not be arrested by National Accountability Bureau---Validity---Petitioner were initially granted bail on merits, by ordinary court, thereafter on jurisdiction point matter was transferred to Accountability Court---No new development was there in facts and circumstances of the case and petitioners were not alleged to have committed further offence in addition to the earlier---On same facts, provisions of National Accountability Ordinance, 1999, provided greater sentence falling within prohibitory clause of S.497, Cr.P.C.---Quantum of sentence was still to be determined by Trial Court, therefore, on such account matter fell within the scope of further inquiry as contemplate in S.497(2), Cr.P.C.---After transfer of case before Accountability Court, petitioners approached High Court whereby they were granted interim pre-arrest bail and since then they were attending Trial Court regularly---Prosecution did not claim at any stage regarding misuse of concession of bail and such aspect along with merits could be taken as one of the circumstances favourable to petitioners---Bail was allowed in circumstances.

Hubdar Chandio v. The State 1997 PCr.LJ 1597; Abdul Qudoos v. State 1998 PCr.LJ 948; NAB v. Khalid Masood and another 2005 SCMR 1291; Haji Ghulam Ali v.The State 2003 SCMR 597 and Abdul Aziz Niazi v. The State PLD 2003 SC 668 ref.

Shaukat Hayat for Petitioners (in C.Ps.Nos.3646 and 3779 of 2012)

Noor Muhammad Dayo, ADPG, NAB along with Zamir Hussain, Senior Prosecutor, NAB for Respondents (in C.P.No.3646 of 2012).

Noor Muhammad Dayo, ADPG, NAB and Waleed Ansari, DAG for Respondent (in C.P.No.3779 of 2012).

Date of hearing: 6th March, 2014.

P L D 2015 Sindh 304

Before Zafar Ahmed Rajput, J

HAMID HUSSAIN PALIWALLA---Plaintiff

versus

FIRASAT HUSSAIN PALIWALLA and others---Defendants

Suit No.519 of 2005, decided on 24th September, 2014.

(a) Limitation---

----When no limitation is prescribed by any statute, statutory rule cannot prescribe any limitation.

(b) Sindh Civil Court Rules---

----R. 347---Administration or succession certificate---Limitation---Provision of R.347 of Sindh Civil Court Rules, prescribed no period of limitation and there is no limitation in suit for administration and application for succession.

Abdul Rauf Ghaziani v. Zaibunnissa and 2 others PLD 1975 Kar. 76 rel.

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

----O. I, R.9---Non-joinder of parties---Dismissal of suit---Scope---Dismissal of suit for non-joinder is to be based solely on inability of court to grant relief---Whenever court can help plaintiff, it should not dismiss the suit for non-joinder.

Gul Muhammad and another v. Mir Zaman and another PLD 1954 Lah. 406 and Mst. Jannat Bibi v. Paras Khan 2011 SCMR 1400 rel.

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

----O. XX, R.13---Defendants resisted suit for administration of properties left by deceased predecessor of parties on the plea that plaintiff had taken his share during lifetime of deceased---Validity---If deceased in his life time had given anything to son same was considered as 'gift' from a father to son---Such gift could not be taken as 'share in inheritance of his father'---Heir in possession was considered in constructive possession of property on behalf of all legal heirs---High Court passed preliminary decree under O.XX, R.13, C.P.C. and Official Assignee was appointed as Administrator to take further proceeding in the mater as per law of administration of properties left by deceased predecessor of parties---Suit was decreed accordingly.

Haji Ghlshan v. Abdul Qayoom and 4 others PLD 1991 Pesh. 85; Munawar Sultana through L.Rs. v. Siddique and others 1983 CLC 2791; Mst. Salma Abbasi and another v. Ahmed Suleman and 2 others 1981 CLC 492; Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447; Mst. Khursheed Bibi and others v. Ramzan and others 2006 CLC 1023; Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182; Muhammad Tufail v. Atta Shabir and 5 others PLD 1977 SC 220; Zardad v. Ali Akbar and others 1989 CLC 2028; Abdul Majeed Khan v. Mirtuza Khan and others AIR 1991 Pat. 154 and Khair Din v. Mst. Salaman and others PLD 2002 SC 667 ref.

(e) Islamic Law---

----Gift---If father in his life time had given anything to his son, same was considered as "gift" from father to son.

Sadiq Hidayatullah for Plaintiff.

Amir Malik for Defendants.

Date of hearing:19th August, 2014.

P L D 2015 Sindh 319

Before Muhammad Ali Mazhar, J

YUSUF MUHAMMAD SIDDIQ and 16 others---Plaintiffs

versus

MUHAMMAD RAFIQUE---Defendant

Civil Suit No.465 of 2012, decided on 27th January, 2015.

(a) Arbitration Act (X of 1940)

----S. 34---Stay of proceedings in a suit in presence of an arbitration clause in the partnership deed between the parties---Scope---Interpretation and object of S.34 of the Arbitration Act, 1940---Exercise of discretion by the court---Essential ingredients---Scope---Object of S.34 of the Arbitration Act, 1940 was to minimize the agony of the parties from facing protracted litigation by referring the matter to arbitrator and the Court had to see if there were reasons as to why the matter should not be referred to arbitration in accordance with the arbitration agreement---Section 34 of the Arbitration Act, 1940 aimed to make arbitration agreement effective and prevent a party from going to court contrary to the party's own agreement---In order to stay legal proceedings in presence of an arbitration agreement, it was necessary that proceedings must have commenced by a party prior to arbitration agreement against any other party to the said agreement; that the legal proceedings sought to be stayed must be in respect of matter agreed to be referred to arbitration; that the applicant for stay must be a party to the legal proceedings; that the applicant must have taken no step in the proceedings after appearance, the applicant had to satisfy that he was not only ready for arbitration at the time when the proceedings were commenced but still ready and willing to do everything necessary for the proper conduct of arbitration and the court must be satisfied that there was no sufficient reason as to why the matter should not be referred to arbitration---Mere existence of an arbitration agreement did not bar the jurisdiction of a civil court and S.34 of the Arbitration Act, 1940 did not make obligatory on a court to necessarily refer the dispute to arbitration and exercise discretion to stay proceedings unless it was satisfied that there was no sufficient reason as to why the matter should not be referred to in accordance with the arbitration agreement---Court under S.34 of the Arbitration Act, 1940 could refuse to stay proceedings if it was satisfied that there was no sufficient reason to refer the matter to arbitration and substantial miscarriage of justice would take place or inconvenience would be caused to the parties---No hard and fast rule could be laid down or line of demarcation could be drawn in relation to where a stay in proceedings could be made and each case had different facts and circumstances---Grant or refusal of stay was dependent upon peculiar facts and circumstances of each case and the Court could make an objective assessment and come to a conclusion.

Farid Virani v. Feroz Virani PLD 2013 Sindh 386 and Messrs Eckhardt & Co. v. Muhammad Hanif PLD 1993 SC 42 rel.

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

----S. 34---Suit for partition of partnership property---Application of defendant for stay of proceedings in the suit in presence of an arbitration clause in the partnership deed between the parties---Contention of defendant was, inter alia, that suit property was owned by the partnership firm, and in accordance with the arbitration clause of the said agreement, suit proceedings should be stayed---Held, that suit had been filed for partition and the parent document was the deed of partnership and the land in question was owned by the partnership firm---Various controversies had been raised by the defendant and he also claimed share in partnership business and the plaintiff had also pleaded that the defendant was in violation of the partnership deed---Controversy or dispute between the parties was not confined to subject property but there were various other issues raised by the defendant as one of the partners of the firm, which he sought to resolve through arbitration---Present suit was therefore not just for partition of the property and nature of dispute prima facie showed that there was an issue in relation to properties owned by the firm, including the devolution of shares of deceased partners amongst the heirs and for all intents and purposes, the same should be resolved through the agreed mode of arbitration---Contention that issue of partition of property should be considered separately or in isolation without recourse to arbitration was not tenable and the same amounted to exasperating and frustrating the arbitration clause of the partnership agreement---Proceedings before the court were stayed and parties were directed to resolve the dispute in accordance with the arbitration clause of the partnership agreement---Application was allowed, accordingly.

Amel Khan Kansi for Plaintiffs.

Muhammad Najeeb Jamali for Defendant.

Date of hearing: 18th September, 2014.

P L D 2015 Sindh 326

Before Nazar Akbar, J

ANWAR AHMED---Plaintiff

versus

WAQAR AHMED and 8 others---Defendants

Suit No.557 of 2013, decided on 15th December, 2014.

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

----Rr. 145, 146 & 147---Deficiency in service of summons---Effect---Proper service of summons and notices on the defendants was the foundation of proper exercise of jurisdiction of court---Improper service would result in either multiplicity of litigation or setting aside of ex parte order which would result in inordinate delay in the disposal of cases on merits---Failure of Additional Registrar High Court in discharging his duty would adversely affect not only valuable rights of the litigants but also render the court proceedings defective and meaningless---Final order on defective foundation were prone to be set aside either by the same court under S.12(2), C.P.C. or on appeal by the Appellate Court---Proceedings before the Additional Registrar High Court were judicial and order of the same were acts of court---Registrar High Court was directed to hold an audit of performance of Additional Registrar High Court and examine all the cases as well as disposal of ex parte judgment and decree on the basis of defective service of summons and submit report so that in future process could be properly issued and served---If ex parte decrees were passed on the basis of defective service then same would result in condemning many of the litigants---Court was bound to ensure justice to all and if any injustice was caused to anyone on account of negligence or incompetency of its officer in discharging his duties then same should not be allowed to be perpetuated---Registrar High Court was further directed to place report before the Chief Justice for his information and action if so desired---Role of counsel was to ensure proper application of "Rules for Service" on the defendants and assist the court even at the level of Additional Registrar of High Court to apply his judicial mind instead of capitalizing on such defects at initial stage of litigation for the benefits of their clients.

(b) Administration of justice---

----Court was bound to ensure justice to all and if any injustice was caused to anyone on account of negligence or incompetency of its officer in discharging his duties then same should not be allowed to be perpetuated.

(c) Administration of justice---

----Role of counsel in a case, was to ensure proper application of "Rules for Service" on the defendants and assist the court even at the level of Additional Registrar of High Court to apply his judicial mind instead of capitalizing on such defects at initial stage of litigation for the benefits of their clients.

Shamim Ahmed Riazi for Plaintiff.

Nemo for Defendants.

Ex Parte order against Defendants Nos.1 to 9.

Date of hearing: 15th December, 2014.

P L D 2015 Sindh 331

Before Ghulam Sarwar Korai and Abdul Rasool Memon, JJ

MUHAMMAD YOUNIS and others---Petitioners

versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and others---Respondents

Constitutional Petitions Nos.D-2252 of 2013, D-4891 of 2013, D-4106 of 2013, D-2675 of 2013, D-2597 of 2013, D-2543 of 2013, D-2537 of 2013, D-2074 of 2013, D-2476 of 2013, D-2792 of 2013, D-3368 of 2013, D-4612 of 2013, D-2258 of 2013, D-2257 of 2013, D-3651 of 2013, D-3650 of 2013, D-2348 of 2013, D-2356 of 2013, D-1654 of 2013, D-1746 of 2013, D-1733 of 2013, D-1597 of 2013, D-1655 of 2013, D-1621 of 2013, D-1602 of 2013, D-1734 of 2013, D-1596 of 2013, D-2714 of 2013, D-2231 of 2013, D-2287 of 2013, D-3364 of 2013, D-2288 of 2013, D-2305 of 2013, D-3220 of 2013, D-3216 of 2013, D-3769 of 2013, D-3422 of 2013, D-3421 of 2013, D-3305 of 2013, D-3304 of 2013, D-4661 of 2013, D-5031 of 2013, D-5219 of 2013, D-779 of 2013, D-4778 of 2013, D-2268, of 2013, D-4696 of 2013, D-3569 of 2013, D-3291 of 2013, D-4425 of 2013, D-4355 of 2013, D-4764 of 2013, D-3358 of 2013, D-1651 of 2013, D-870 of 2013, D-2775 of 2013, D-1639 of 2013, D-4386 of 2013, D-4467 of 2013, D-4439 of 2013, D-4534 of 2013, D-3413 of 2013, D-2226 of 2013, D-2227 of 2013, D-3892 of 2013, D-3893 of 2013, D-4385 of 2013, D-5209 of 2013, D-4426 of 2013, D-4613 of 2013, D-4614 of 2013, D-4653 of 2013, D-1631 of 2013, D-2253 of 2013, D-2255 of 2013, D-2254 of 2013, D-3354 of 2013, D-4725 of 2013, D-4941 of 2013, D-4997 of 2013, D-1983 of 2013, D-3800 of 2013, D-3806 of 2013, D-2624 of 2013, D-2646 of 2013, D-4715 of 2013, D-4714 of 2013, D-2350 of 2013, D-2351 of 2013, D-3340, of 2013, D-3339 of 2013, D-2645 of 2013, D-3876 of 2013, D-2051 of 2013, D-2060 of 2013, D-1697 of 2013, D-4980 of 2013, D-1561 of 2013 and D-4921 of 2013, decided on 12th December, 2013.

National Accountability Ordinance (XVIII of 1999)--

----S. 9(b)---Criminal Procedure Code (V of 1898), S.499---Constitution of Pakistan, Art.199---Constitutional petition---Pre-arrest bail---Cash amount as surety---National Accountability Bureau contended that accused persons be directed to deposit cash amount, instead of surety bond---Validity---Purpose of release of accused on surety was to ensure his attendance on each and every date of hearing before Trial Court, till conclusion of trial---Person who stood surety had executed surety bond in required sum or money with undertaking to produce accused on each and every date of hearing---Complete mechanism was provided under S.499, Cr.P.C. for securing presence of accused before court or before police officers including the consequences of non-appearance---Object of calling upon accused for furnishing surety was not to penalize them but to ensure their presence in court---Amount of surety must be fixed with regard to nature of offence so that object to granting bail was not defeated and accused might not suffer agony of jail unnecessarily for reasons beyond his control---High Court confirmed interim pre-arrest bails already granted to accused persons---Petition was allowed in circumstances.

Muhammad Ramzan v Zafar Ullah and others 1986 SCMR 1380 ref.

Amir Raza Naqvi, Shabih Ishrat, Sohail Muzaffar, Tahir Hassan Qureshi, Ghulam Mohiuddin, Asif Ali Pirzada, Ahmed Ali Deewan, Saeed Ahmed Khoso, Tasadduq Nadeem, AJK Marwat, Derwaish K. Mandhan, S. Baqar Ali Naqvi, Ammar Yasir, Mian Khan Malik, Muhammad Mushtaq, Iqbal Shah, Raja Babar Hameed, Mahmoodul Hassan, Aqeel Ahmed, Shaikh Jawed Mir, Zulfiqar Hyder Shah, Hassan Sabir, Ms.Dilharam Shaheen, Ziaul Hassan, M.A.Qazi, Naeem Iqbal and Ather Saleem for Petitioners.

Noor Muhammad Dayo, ADPG NAB, S. Amjad Ali Shah, DPG NAB, Ms. Masooda Siraj, Advocate, Hyder Shaikh for FBR and Waleed Ansari, DAG for Respondents.

P L D 2015 Sindh 336

Before Sajjad Ali Shah and Shaukat Ali Memon, JJ

ABDUL HAFEEZ through Attorney and another---Appellants

versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Secretary and another---Respondents

High Court Appeal No.31 of 2014, decided on 19th January, 2015.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.XXIII, R.3---Law Reforms Ordinance (XII of 1972), S.3---Suit for specific performance of agreement to sell---High Court appeal---Consent decree---Enforcement---Plaintiff filed suit for specific performance of agreement to sell and the same was decreed on the basis of compromise between the parties---Housing Authority declined to transfer plot in favour of plaintiff on the ground that no title existed in the name of defendant which could be transferred---Single Judge of High Court declined to direct Housing Authority to transfer suit plot in favour of plaintiff---Validity---Decree passed on the basis of compromise by and between the parties was essentially a contract between parties which derived sanctity by court by superadding its seal to a contract---Such compromise even after it was superadded with seal of court had almost all the ingredients of a contract, therefore, it could be set aside on any of the ground on which a contract could be attacked such as fraud, mistake or misrepresentation---Only the parties who were signatory to the contract were bound by terms and conditions so recorded and agreed upon between them---Court could not while enforcing terms and conditions so agreed between parties to the contract notwithstanding that such contract was superadded with seal of court and turned in a consent decree would compel a third party to obey unless a fiduciary relationship between judgment debtor and such third party was established---Division Bench of High Court declined to interfere in order passed by Single Judge of High Court---High Court appeal was dismissed in circumstances.

Capt. Muhammad Iqbal v. Federation of Pakistan 2009 MLD 810; Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi PLD 2005 Kar. 1881 and Syed Kamal Shah v. Sher Baz Khan 1994 MLD 2334 ref.

Ms. Rizwana Ismail for Appellant.

Nazar Hussain Dhoon for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 28th November, 2014.

P L D 2015 Sindh 341

Before Munib Akhtar, J

GENESIS AVIATION SERVICES (PVT.) LTD.---Plaintiff

versus

GULF AIR COMPANY G.S.C.---Defendant

Suit No.721 of 2014, decided on 29th January, 2015.

(a) Words and phrases---

----Distinct---Defined.

Shorter Oxford English Dictionary 6th Edn. 2007, p.719 rel.

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

----S. 20---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Arbitration agreement---Interim injunction, grant of--- Oral agreement amending written agreement---Scope---Plaintiff was a company appointed in Pakistan as General Sales Agent of defendant Airline---Plaintiff claimed that after expiry of term of agreement, it was extended orally---Validity---Agreement in question was governed by English law and it must be accepted as a matter of law that a written contract could be varied by a subsequent oral agreement even if it contained a provision specifically stating that only written amendments and modifications, signed by parties were permissible---Proof of any such subsequent oral agreement was a matter for the law of Pakistan being the lex fori, and law in Pakistan only allowed for a "distinct subsequent oral agreement" to be adduced in evidence---Material placed on record was insufficient to establish that such an agreement was entered into between the parties and amended agreement by, in effect, omitting or altering relevant clause of agreement in question---Plaintiff was unable to establish a prima facie case and even if such case was made out, plaintiff would still not be entitled to any interim injunctive relief---Agreement in question was one of agency and plaintiff's case did not come within the scope of law laid down in such regard for such relief by courts of Pakistan---High Court declined to grant interim relief to plaintiff---Application was dismissed in circumstances.

Dicey, Morris and Collins on the Conflict of Laws 15th Edn. 2012 ("Dicey"), Vol. II, p.1853; World Online Telecom Ltd. v. I-Way Ltd. [2002] EWCA Civ 413 ("World Online"); Virulite LLC v. Virulite Distribution Ltd. and another [2014] EWHC 366 (QB) ((Virulite" and Fospak (Pvt) Ltd. v. Fosroc International Ltd. and another PLD 2011 Kar. 362 ("Fospak") ref.

Ovais Ali Shah for Plaintiff.

Mahmood Alam for Defendant.

P L D 2015 Sindh 356

Before Abdul Rasool Memon, J

MUHAMMAD HANIF---Applicant

versus

HASHMAT BANO and others---Respondents

Civil Revision Application No.22 of 2012, decided on 8th December, 2014.

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

----S. 4---Court Fees Act (VII of 1870), Sched. II, Art.17---Civil Procedure Code (V of 1908), O.VII, Rr.10 & 11---Suit for partition---Court fee, affixation of---Scope---Plaint, rejection of---Defendants filed application for return of plaint to the plaintiff for presentation in the court having pecuniary jurisdiction but Trial Court rejected the same (suo motu) observing that the value of property was much more than the suit valued by the plaintiff---Validity---Plaintiff and defendants were legal heirs of the deceased and were co-sharers in his property---Every co-sharer would be deemed to be in possession of each and every inch of the property whether such possession was physical or constructive---Plaintiff would be deemed to be in possession of the property---Plaintiff had asked for separation of his share after demarcation from other co-sharers---Plaint as well as appeal arising out of partition suit was chargeable with fixed court fee of Rs.10/- only---Plaint did not require to be affixed with an ad valorem court fee according to value and share of the plaintiff---Trial Court had rejected the plaint straightaway without determining the proper value and without providing reasonable time and opportunity to make deficiency good within time which was contrary to the provisions of O.VII, R.11, C.P.C.---Impugned orders passed by the courts below were not sustainable in law which were set aside---Matter was remanded to the Trial Court for proceeding on merits in accordance with law.

Muhammad Shaukat and others v. Haji Ghulam Muhammad and others 2007 CLC 532; Sher Bahadur Khan and 3 others v. Anwar Khan and 4 others 1996 CLC 1624 and Iqbal Ahmed and 3 others v. Mst. Aziz Bano and 2 others 2010 MLD 784 ref.

Sher Bahadur Khan and 3 others v. Anwar Khan and 4 others 1996 CLC 1624 rel.

(b) Court Fees Act (VII of 1870)---

----Sched. II, Art. 17---Partition Act (IV of 1893), S. 4---Suit for partition---Court fee, affixation of---Scope---Plaint as well as appeal arising out of partition suit was chargeable with fixed court fee of Rs.10/- only.

(c) Co-sharer---

----Every co-sharer would be deemed to be in possession of each and every inch of the property.

Anand P.Kumar for Applicant.

Saadat Ali Khan for Respondents.

Date of hearing: 26th September, 2014.

P L D 2015 Sindh 360

Before Salahuddin Panhwar, J

ERUM---Appellant

versus

Mst. AMEENA and 5 others---Respondents

Miscellaneous Appeal No.9 of 2013, decided on 15th December, 2014.

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

----S. 372---Government of Sindh Notification No.FD (SRIII)10 (06)/2006, dated 20-5-2009---Succession certificate---Debts and securities/service benefits-Tarka-Compensation---Concession'-'Grant'-Group insurance---Benevolent fund---Distribution of service benefits of deceased civil servant---Scope---Legal heirs were entitled to inherit what deceased had left behind him whether movable or immovable including a right of claim which would be available for distribution among the legal heirs as per their legal entitlement---Only which the deceased was owning or possessing as owner and all other claims and rights which the deceased himself was entitled to make during his life time could be distributed among legal heirs---Assets left by the deceased could be distributed among legal heirs as per their entitlement---Tarka would be the absolute property of the deceased and same should be governed by law of inheritance of the deceased---"Concession" "grant" or "compensation" had to be dealt with as per wishes of the giver---Group insurance of the deceased employee did not fall within the definition of "Tarka" and same would not be available for its distribution among the legal heirs but would be dealt as per relevant rules and procedure framed by the employer (government) for such purpose---'Benevolent fund and group insurance' amount would not be part of "Tarka"---Court below had wrongly held thegroup insurance amount' to be part of "Tarka"---Compensation to Shaheed officers/officials of Sindh Police was payable to the family of deceased employee---Rights and claims of the deceased which he had during his life time but did not include "Tarka" should include any other amount which was given/paid by the employer---'Compensation' if being paid for Qatl-i-Amd or Qatl-i-Khata of the deceased by the accused would be heritable by all the legal heirs but if an amount was being given by the employer it should not be equated to that of "Diyat/compensation"---No restriction could be put on the right of the choice "giver" to choose best person out of the legal heirs of the deceased as "fit person"---Impugned order passed by the court below was not based on proper appraisal of law---Benevolent fund, amount of financial compensation with regard to Shahadat of deceased and group insurance should be dealt with in accordance with service rules---Widow was not liable to distribute the amount of group insurance which she had already received from the department---Widow was also entitled to receive the compensation payable under the scheme provided to Shaheed officials---Order of court below with regard to other service benefits due was in accordance with law---Accountant District Court should continue with authority to withdraw such amount and to ensure proper distribution of said amount among all legal heirs---Amount of share of minor legal heirs should be invested in some government profitable scheme---Widow would also be entitled towards pay and allowances and avail of other benefits as specified by the government from time to time till she did not marry---Appeal was disposed of in circumstances.

Federal Government of Pakistan v. Public-at-large PLD 1991 SC 731 and PLD 2013 Pesh. 1 ref.

PLD 2013 Pesh. 1 distinguished

2005 SCMR 512; Wafaqi Hakomat-e-Pakistan v. Awamunas PLD 1991 SC 731; In the matter of Succession of the Assets, Securities, Properties and Accounts of Late Javed Iqbal Ghaznavi PLD 2010 Kar. 512; Muhammad Naseem Ahmed's case PLD 2014 Sindh 290 and Miss Riffat Yaseen's case 2014 CLC 126 rel.

(b) Succession---

----"Group insurance and benevolent fund"---Scope---"Benevolent fund and group insurance" amount would not be part of "Tarka"

(c) Succession---

----"Tarka" and "concession" "grant" or "compensation"---Distinction---"Tarka" would be the absolute property of the deceased and same should be governed by law of inheritance of the deceased whereas "concession" was not the property of the deceased but was that of the employer after death of the person and if the employer (giver) wanted it to be given only to one out of hundred legal heirs of the deceased, others would not be legally justified to object the same.

(d) Succession--

----"Tarka"-Meaning---Assets left by the deceased would be termed as "Tarka" but same would not include those things which would fall within the meaning of "concession" "grant" or "compensation" particularly when such things would become due after death of the person.

Amjad Ali Sahito for Appellant.

Muhammad Asif Shaikh for Respondents Nos. 1 and 2.

Chaudhry Bashir Ahmed, Asstt. A.G. for Respondents Nos.3 to 6.

Date of hearing: 9th December, 2014.

P L D 2015 Sindh 369

Before Munib Akhtar, J

IJM CORPORATION---Plaintiff

versus

KARACHI METROPOLITAN CORPORATION---Defendant

Suit No.1362 of 2013, decided on 9th February, 2015.

Arbitration Act (X of 1940)---

---S. 17---Pakistan Engineering Council Act (V of 1976), S.27(5)---Making award rule of court---Bar to jurisdiction of court---Plaintiff was foreign company which was awarded engineering contract by City District Government---Dispute between the parties was referred to sole arbitrator who announced award against defendant---Plaintiff sought enforcement of award by making it rule of the court---Defendant resisted award on the plea that plaintiff was not registered in Pakistan therefore. it could not seek recovery before any court or authority in Pakistan---Validity---Legislative intent behind so narrowly crafting bar in S.27(5) of Pakistan Engineering Council Act, 1976, was only to ensure that claimant was registered and not to deny him totally and forever any sum to which he might otherwise found entitled--- Once state of delinquency would end the bar was removed and thereafter claimant could recover the money by taking recourse to execution or similar proceedings, if his claim/judgment-debtor did not otherwise satisfy claim/decree---Even if claimant was delinquent at the time of entering into the contract, or when bringing his suit (or initiating other proceedings for the purposes of his claim) he was not thereby and for that reason barred from recovering any sum of money to which he was eventually found entitled, if he subsequently had become registered under Pakistan Engineering Council Act, 1976---Ex-post facto rectification of the state of delinquency could be done---Recovery of money was prevented under S.27(5) of Pakistan Engineering Council Act, 1976, unless plaintiff was registered under Pakistan Engineering Council Act, 1976---Plaintiff, though entitled to decree, would not be entitled to launch any execution proceedings on the basis thereof, unless registered under Pakistan Engineering Council Act, 1976--- Award was made rule of the Court.

Mulamchand v. State of Madhya Pradesh AIR 1968 SC 1218; Pollock and Mulla on the Indian Contract Act 14th Edn. 2012, Vol I, p.112; Chitty on Contracts 13th Edn. 2008, "Chitty"; Sultan Textile Mills Karachi Ltd. v. Muhammad Yousuf Shamsi PLD 1972 Kar. 226; Dimond v. Lovell [200] UKHL 27, [2002] 2 All ER 897; McGuffick v. Royal Bank of Scotland plc [2010] 1 All Er 634, [2009] EWHC 2386 (Comm) ("McGuffick") and Grace and another v. Black Horse Ltd. [2014] EWCA Civ 1413 ref.

Muhammad Omer Soomro and Ms. Umaima Piracha for Plaintiff.

Kazim Hasan for Defendant.

Dates of hearing: 27th August, 25th September and 21st October, 2014.

P L D 2015 Sindh 382

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

Mst. MARIUM TARIQ and others---Petitioners

versus

SHO OF POLICE STATION DEFENCE and others---Respondents

Constitutional Petition No.D-3693 of 2013 and Constitutional Petition No.D-1105 of 2012, decided on 31st March, 2015.

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

----Ss. 12 & 25---Penal Code (XLV of 1860), Ss. 363 & 34---Criminal Procedure Code (V of 1898), S. 154---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minor girl---Kidnapping, offence of---Scope---Natural guardian of minor not liable for kidnapping---Quashing of FIR lodged against mother for kidnapping her minor child ---Father and mother of minor girl were divorced from each other---Father filed application before the Family Court for custody of the minor girl---During pendency of said application mother left the country to pursue further studies and took the minor girl along, who was 2-½ years old---Family Court decided in favour of the mother and allowed her to retain custody of the minor girl---Father lodged an FIR against the mother for abducting the minor girl---Plea of father was that the mother denied him access to his daughter when the Family Court had allowed him visitation rights; that he had also filed an application to restrain the mother from taking their daughter abroad and for deposit of their passports in the Family Court; that the mother kidnapped the minor girl and took her to a foreign country; that intervention of the International Criminal Police Organization (INTERPOL) was required both for producing the accused mother before the Trial Court and for retrieving the custody of the minor---Validity---Family Court did not disturb the custody with the mother which order was upheld by the Appellate Court as well as by the High Court---Mother contended that she got admission in a foreign university for post-graduation studies with financial assistance, so under the force of circumstances, she left for the foreign country along with her 2-1/2 years daughter who could not be looked after properly in Pakistan in the absence of her real mother---Element of mens rea for kidnapping was thus missing in the circumstances of the present case---When the Family Court decided the father's application it was aware that the mother had proceeded to a foreign country along with her daughter, even then the Family Judge was of the view that there was no cogent reason to disturb the current setup of the minor hence the restoration of custody to the father was declined,however the father was allowed visitation rights---Admittedly the minor girl was in the custody of her mother since birth and there was no allegation that the mother snatched the custody from father---When the FIR was lodged the age of minor girl was 2-1/2 years---Mother and father both were natural guardians and one natural guardian could not lodge an FIR of kidnapping against the other natural guardian---Mother who was enjoying custody of minor since birth and whose right of Hizanat or custody had been affirmed by the Family Court, First Appellate Court and the High Court could not be held accused of kidnapping her own daughter---Consent of 2-½ years old minor for leaving abroad with her real mother was immaterial in the present case for the reason that since birth, daughter was in custody of mother and the age of the minor ward showed that neither she could be asked to offer any consent nor she could show any disagreement or displeasure on moving with her real mother---Main allegation in the FIR against the mother was travelling abroad with the minor girl without permission of father which ultimately culminated into the charge of kidnapping---Circumstances of the present case showed that no offence of kidnapping was made out under S.363, P.P.C.---Letter of law articulated that provision of S.363, P.P.C. was meant to protect and espouse the rights of parents and not to exploit it against each other as a tool of victimization, persecution and oppression after their divorce---Being a natural guardian, father was also entitled for the access and visitation rights to his daughter which right had been affirmed by the Family Court, First Appellate Court and the High Court---Admittedly the order for visitation rights in favour of father was not implemented, thus, the appropriate remedy for the father was to approach the Family Court for the implementation of its orders, which had not been done in the present case---High Court, in the present case, had already directed the Immigration Authorities that as and when the minor reached Pakistan they may take her passport at the airport in their custody for safe deposit of the same with the Nazir of the High Court so that minor would not leave Pakistan in future---High Court accordingly quashed the FIR lodged against the mother under Ss.363 & 34, P.P.C. with all consequential proceedings, and directed that the intervention of INTERPOL could not be ordered for ensuring attendance in the quashed FIR, and that the father may first approach the Family Court for the implementation of visitations rights order and in the event of non-compliance, he may apply to the Family Court for directions to issue INTERPOL red and yellow notice forms for ensuring attendance of the mother in court---Constitutional petition was disposed of accordingly.

Muhammad Shafi alias Papan v. State 2011 PCr.LJ 1424 ref.

(b) Islamic law---

----"Hizanat"---Concept of---Hanafi sect---Status of mother in Islam---Mother was entitled to the custody of female child till the age of puberty while in the case of a son, the period of Hizanat was 7 years of age---Mother was entitled in preference to the father to the custody during Hizanat and she did not lose the guardianship because she was no longer wife of her former husband---All the juristic schools gave first preference to a mother's claim to physical custody of her young child provided that she satisfied all the requirements---Father should have access to his children and he remained financially responsible for their maintenance and education even though they may be under the care of their divorced mother---Prophet Muhammad (Peace Be Upon Him) continoually used to remind his followers of the status of the mother and the obligation of being good to one's parents---Honour which the religion of Islam had given to mothers was beyond that found in any other religion, ideology or culture---All the verses of Quran and hadiths on mothers amply demonstrated the importance of the figure of a mother in Islam.

Al-Adab al-Mufrad Bukhari 1/62 and Surah al-Ahqaf, (Al-Quran), Chapter 46, Verse 15 ref.

(c) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), Ss.154, 249-A, 265-K & 561-A---Constitutional jurisdiction of the High Court --- Quashing of FIR---High Court while exercising jurisdiction under Art.199 of the Constitution and S.561-A, Cr.P.C. could quash an FIR and proceedings in extenuating circumstances---Purpose of quashing an FIR under the constitutional jurisdiction was to save a person from the rigors of an unjustified investigation and proceedings and to prevent the abuse of process of law or court---No absolute bar existed on the powers of the High Court to quash an FIR and it was not always necessary to direct the petitioner-accused to first expend or exhaust the remedy available under Ss.249-A or 265-K, Cr.P.C.---Main considerations to be kept in mind by the court would be whether the continuance of proceedings would be a futile exercise and abuse of process of court---Where the admitted facts and patent on record showed that no offence was made out then it would amount to abuse of process of law to allow the prosecution to continue the trial---To find an "abuse", it would be necessary to see in the proceedings, a perversion of the purpose of law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice was engaged in an operation from which no result in furtherance of justice could accrue and similar perverse resulted.

M.S. Khowaja v. State PLD 1965 SC 287 ref.

(d) Guardians and Wards Act (VII of 1890)---

----Ss. 7 & 12---Minor of divorced parents---Custody of minor with mother---Guardianship of father---Scope---Even where the custody of the minor was with the mother, the guardianship of the father did not extinguish and he should have access to his children and he remained financially responsible for their maintenance and education even though they may be under the care of their (divorced) mother.

Khawaja Naveed Ahmed for Petitioners (in Constitutional Petition No.D-3693 of 2013).

Khawaja Naveed Ahmed for Respondent No.4 (in Constitutional Petition No.D-1105 of 2012).

Salahuddin Ahmed for Petitioners (in Constitutional Petition No. D-1105 of 2012).

Salahuddin Ahmed for Respondent No.3 (in Constitutional Petition No. D-3693 of 2013).

Ashfaq Rafiq Janjua, Standing Counsel.

Sharfuddin Mangi for the State.

Date of hearing: 27th October, 2014.

P L D 2015 Sindh 397

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

Messrs NATIONAL TRANSMISSION AND DESPATCH COMPANY LTD. through Chief Engineer---Appellant

versus

PUB CORPORATION through Sole Proprietor and 2 others---Respondents

High Court Appeals Nos. 152 and 153 of 2009, decided on 27th February, 2015.

Sindh Local Government Ordinance (XII of 1979)---

----S. 62---Law Reforms Ordinance (XII of 1972), S.30---Suit for recovery of Octroi---High Court appeal---Water and Power Development Authority equipment/material---Plaintiff was octroi contractor who filed suit for recovery of octroi tax from the Water and Power Development Authority---Plea raised by the Authority was that government had exempted it from payment of octroi tax---Single Judge of High Court decreed the suit in favour of plaintiff and against the Authority---Validity---Held, in terms of S.62 of Sindh Local Government Ordinance, 1979, Provincial Government was empowered to direct any Union Council to levy any tax, rate, toll or fee which the council was competent to levy under Sindh Local Government Ordinance, 1979, to increase or reduce any rate, tax, toll or fee to such extent as could be specified and to suspend or abolish levy of any tax, rate, toll or fee---Chief Executive of union council was bound to issue a notification to that effect and not late than the date specified by Government in such behalf---No provision was available in Sindh Local Government Ordinance, 1979, which gave powers to government to grant exemption from payment of any tax to a company/corporation on the pretext of it being run or managed by government---Such was not the case of Water and Power Development Authority, nor it stated that government had abolished or suspended levy of octroi tax as such imposed by plaintiff on import of electrical articles within the limits of union council in question---Division Bench of High Court declined to interfere in judgment and decree passed by Single Judge of High Court---High Court appeal was dismissed in circumstances.

PLD 1998 Kar. 209; 2005 SCMR 487; PLD 1993 SC 109; PLD 1998 SC 64; PLD 1992 Pesh. 146; PLD 1989 SC 749; 2009 MLD 1305; PLD 1991 Kar. 372; PLD 1988 Kar. 38; 1997 SCMR 1228; 1997 SCMR 642; PLD 1992 Pesh. 166; 1992 SCMR 1652; 1993 SCMR 468 and Zila Council, Jhang, District Jhang through Administrator and others v. Messrs Dalwoo Corporation Kot Ranjeet Sheikhpura through Director Contract and others 2001 SCMR 1012 ref.

Badar Alam for Appellant.

Abbas Ali for Respondents.

Dates of hearing: 10th and 19th December, 2014.

PLD 2015 Sindh 408

Before Muhammad Ali Mazhar and Shahab Sarki, JJ

Syed QAIM ALI SHAH through Attorney---Petitioner

versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 3 others---Respondents

Constitutional Petition No.D-6567 of 2014, decided on 20th February, 2015.

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

----S. 58---Constitution of Pakistan, Arts. 199 & 219---Constitutional petition---Election Commission---Duties and functions---Petitioner contested election for Provincial Assembly and was declared as returned candidate---Respondent assailed election result and on his application, election petition was transferred to Election Tribunal at place "S" for adjudication---Plea raised by petitioner was that election petition could be transferred by Election Commission and not by Chief Election Commissioner alone---Validity---Election Commission was charged under Art.219 of the Constitution, with duty to appoint Election Tribunals, so transfer application should have been placed before the Commission, as it was done at the time of passing of interim order by the Commission---In absence of other members of Election Commission, Chief Election Commissioner could not decide transfer application single handedly---Powers to transfer proceedings from one forum to another were somewhat administrative and supervisory in nature---Appointing authority of Election Tribunal was Election Commission and not the Commissioner alone, therefore, powers of transfer also vested in Election Commission which were akin and or ancillary and incidental to its main powers of appointing Election Tribunal bearing in mind Art.219 of the Constitution---Determination of jurisdiction was one of the important elements, if justice was based on coram non judice orders, it would have no legal sanction behind it---High Court set aside the order passed by Chief Election Commissioner and remanded the matter to Election Commission to decide transfer application afresh---Petition was allowed in circumstances.

All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600; Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369; Dr. Sohrab Ahmed Khan Sarki v. Mir Hassan Khoso and others 2011 SCMR 1084; Imran Khan and others v. Election Commission of Pakistan and others 2012 SCMR 448; Abdul Majeed Khan through L.Rs. v. Ms. Maheen Begum and others 2014 SCMR 1524; Syeda Waheeda Shah v. Election Commission of Pakistan PLD 2013 Sindh 117; Shahid Rashid v. Nasir Siddique Alvi and others PLD 1999 Lah. 181; Sindh High Court Bar Association's case PLD 2009 SC 879; Arshad Mehmood and others v. Government of Punjab through Seceretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621 ref.

(b) Interpretation of Constitution---

----Subordinate legislation---Effect---Provision enshrined in Constitution prevails notwithstanding anything contrary contained in any piece of subordinate legislation---In case of conflict between any provision of Constitution and subordinate piece of legislation on the subject, the constitutional provision prevails over the latter---Subordinate legislation cannot run contrary to constitutional provision---Effect should be given to every part and every word of the Constitution.

(c) Constitution of Pakistan---

----Art 199-Constitutional petition---Judicial review, powers of---Applicability---Where any order or judgment passed by any court or authority who has no jurisdiction or are barred to exercise such jurisdiction, such orders or judgments are deemed to have been passed illegally---High Court, in such circumstances, is justified in exercising its constitutional jurisdiction to rectify the same---Any error on the part of court or authority, in understanding law, in applying it or in laying down the law, can and must be corrected under constitutional jurisdiction and if it is left uncorrected, it may result in subverting the rule of law.

Farooq H. Naek, Asadullah Channa and Owais Abro for Petitioner.

Muhammad Aslam Bhutta for Respondent No.3.

Ainuddin, D.A.G. and Abdul Sadiq Tanoli, Standing Counsel.

Syed Rashid Hussain, Deputy Director and Abdullah Hanjrah, Law Officer, Election Commission of Pakistan.

Date of hearing: 23rd January, 2015.

P L D 2015 Sindh 420

Before Nazar Akbar, J

SALEEM A. SATTAR and another---Petitioners

versus

Messrs ALPHA INSURANCE COMPANY LIMITED and 2 others---Respondents

Judicial Miscellaneous Petition No.61 of 2013, decided on 3rd February, 2015.

Trusts Act (II of 1882)---

----S. 34---Civil Procedure Code (V of 1908), S.2(4)---General Clauses Act (X of 1897), S.3(15)---Right to apply to court for opinion in management of trust property---Principal Civil Court of original Jurisdiction---Status---Petition under S.34 of the Trust Act, 1882 for reconstruction of trust deed---Question before the High Court was whether the Sindh High Court was the Principal Civil Court of Original Jurisdiction for purposes of S.34 of the Trust Act, 1882---Held, that distinguishing feature to hold the Sindh High Court as Principal Civil Court of Original Jurisdiction in Karachi and not a District Court was that except various districts in Karachi, the pecuniary jurisdiction of all district courts in Sindh or for that matter all over Pakistan was unlimited pecuniary jurisdiction and since the pecuniary jurisdiction of various district courts in Karachi was limited, therefore statuts of Principal Civil Court of Original Jurisdiction could not be conferred on the District Court---High Court's jurisdiction in civil cases was therefore simply a District Court jurisdiction exercised by the High Court---Petition in terms of S.34 of the Trust Act, 1882 was, therefore, maintainable and was allowed, in circumstances.

Mst. Faizan v. Pakistan through the Director General Pakistan Telegraph Department, Karachi PLD 1970 Kar. 362 ref.

Rimpa Sunbeam Co-operative Housing Society Ltd. v. Karachi Metropolitan Corporation PLD 2006 Kar. 444 rel.

Muhammad Aslam Butt for Petitioners.

Nemo for Respondents Nos.1. and 3

Jawaid Farooqui for Respondent No.2.

Date of hearing: 15th January, 2015.

P L D 2015 Sindh 426

Before Sajjad Ali Shah and Salahuddin Panhwar, JJ

QADAN alias Qadir Bux and another---Appellants

versus

The STATE---Respondent

Criminal Jail Appeal No.401 and Reference No.5 of 2010, decided on 6th March, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Matter was reported with the Police within 3 and half hours of the incident---Such time could not be taken as a "delay", with a view to allow deliberation and consultation on the part of the complainant party, particularly when it was claimed by the complainant party that they first tried to carry the deceased to hospital---Witnesses, strongly remained sticking with the version/stand of the F.I.R., wherein only accused were named---Said witnesses strongly stuck regarding every-minute-details given in the F.I.R.---Reference to acquittal of co-accused alone could not be taken sufficient to disbelieve the evidence of witnesses, particularly, when the principle of 'safe criminal administration of justice', nowhere insisted that mere acquittal of one or more accused, should result in acquittal of all, simple reason being that principle of "falsus in uno falsus in omnibus" was not applicable---Out of two brothers, one brother was examined by the prosecution as prosecution witness, while the other brother was given up---No substance was found in the defence plea that by giving up other brother should result in drawing an adverse inference against the prosecution---Incident being a night time occurrence, torch light was claimed by prosecution as one of the source of light at the time of witnessing the incident---F.I.R. would show that the complainant had claimed therein that he saw the incident under moon light and torch light---Torch light was not claimed as sole source of light---Torch light, in itself was not a direct piece of evidence, but it could, at the best, provide a corroboration to claim of identification of accused, or could lead to an otherwise view---Mere non-production of the torch light, could not adversely affect the evidence of witnesses---Presence of witnesses was admitted by the defence---Said witnesses remained unwavering with each other in respect of all material aspects---Witnesses had also given conforming details of the weapons with which accused were armed and defence had not challenged any of the claim of said witnesses---Nothing was on record to show that said witnesses were having any enmity or consideration which had motivated them to depose falsely against accused on charge of murder of the deceased---Medical evidence, had fully supported the ocular account to the extent of weapon of offence---Medical evidence, had also spoken about time of occurrence/injuries, succumbing to injuries, and post-mortem---Medical evidence, also corroborated the ocular account in respect of all material things, which medical evidence could---Prosecution, had successfully established the guilt against accused, in circumstances.

Tayyab Hussain Shah v. The State 2000 SCMR 683; NLR 2001 Cr.198; Muhammad Afzal alias Abdullah and another v. The State 2009 SCMR 436; Ali Gohar and others v. the State 1986 SCMR 730; Habibullah and others v. The State PLD 1969 SC 127 and Ismail and others v. The State 1983 PCr.LJ 823 ref.

Iftikhar Hussain and another v. State 2004 SCMR 1185 and Niazuddin and another v. The State 2011 SCMR 725 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Prosecution did establish that it were the accused persons who caused injuries to deceased by following the deceased during night time having weapons in their hands, which were sufficient to establish the intent of both accused persons regarding using such weapons, so as to cause murder---Record showed that some of the injuries on person of the deceased were on non-vital part of the body---Medical evidence proved that it was injury on skull, which resulted into death of the deceased---As to which of the two accused caused such injuries was not established---Witnesses, also did not remain in same line regarding motive, which could be for reason of honour, that should have been taken as mitigating circumstance---No special quantum of mitigation for converting death sentence into imprisonment for life, was required, but even an iota of evidence toward mitigation, was sufficient to justify lesser sentence---Maintaining the conviction, death sentence awarded to accused which was harash in circumstances was converted into imprisonment for life, with benefit of S.382-B, Cr.P.C.

Dilawar Hussain v. The State 2013 SCMR 1582 ref.

(c) Criminal trial---

----Delay in lodging F.I.R.---Effect---Scope---Delay by itself in lodging F.I.R., was not material---Factors to be considered by the courts, were, firstly that such delay stood reasonably explained; and secondly, that the prosecution had not derived any undue advantage through the delay involved.

Muhammad Nadeem v. State 2011 SCMR 872 ref.

(d) Criminal trial---

----Witness---Contradiction in statements of witnesses---Effect---Contradiction was not material, unless it was grave in nature, and caused a serious dent in the prosecution claim---Statements of the witnesses had to be read as a whole; court should not pick up a sentence in isolation from the entire statement ignoring its proper reference and use the same against or in favour of a party.

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

----S, 302(b)---Qatl-i-amd---Appreciation of evidence---"Related" or "interested witnesses"---Distinction---Blood relation, was not supposed to substitute the real culprits with innocent, while reporting the matter of murder of his blood-relation---Not the relationship alone would make one a witness of truth or otherwise---Evidence of witness could not be disbelieved, merely on his relationship with parties---Term 'related' should not be confused with the term 'interested', because both were entirely independent to each other---Considerable distinction existed between the terms 'related' and 'interested', because interested witness, need not necessarily be a related, but it was the person, who had such a motive on account of enmity, or any other consideration; that due to such enmity or consideration he had prepared himself to depose falsely---Term 'related' was positive in its meaning, while the term 'interested', was negative in its meaning, because; in term "related" witness was not necessarily obtaining favour, but an 'interested', was always to gain favour for whom, or what he/she was interested with---Burden was always upon the prosecution to prove truthfulness of a related witness, but where the defence claimed the witness to be 'interested', burden would shift upon defence to which that person had such a motive on account of enmity, or any other consideration, which compelled him to depose falsely.

Zulfiqar Ahmed v. The State 2011 SCMR 492 and Khizar Hayat v. The State 2011 SCMR 429 ref.

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

----S. 265-F(7)---Evidence for prosecution---Non-examination of some eye-witnesses---Quantity or quality of witnesses---Prerogative of prosecution to produce evidence as could be necessary to prove the charge; and could give-up the witnesses after sufficient evidence was brought on record; because as a rule of criminal jurisprudence, prosecution evidence was not tested on the basis of the quantity, but quality of evidence was to be insisted---Either party could produce evidence of as many witnesses as were found necessary by it to prove a certain charge or fact---Exercise of such prerogative, should not always be taken as adverse, particularly where the rival party could, well within its substantial right, bring any such witness as their witness---Accused could competently ask for examination of any witness or production of any document.

Saeed Khan and 5 others v. The State 2008 SCMR 849 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence---Scope---Medical evidence was decisive and most reliable source in proving the nature of injuries, time of occurrence, death and the kind of weapons---Whenever prosecution, through direct evidence, would claim nature of injury or injuries, time of injuries, death and the kind of weapons to be in a particular manner; then safe criminal administration of justice would demand that such direct evidence, be examined with reference to medical evidence; because it could be the medical evidence alone which could corroborate such claim (direct evidence) of prosecution, or could result in causing a dent in such claim of the prosecution.

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

----Art. 40---Recovery of crime weapon, etc. at the pointation of, or disclosure of accused---Admissibility---Recovery at the pointation or disclosure of accused was admissible under Art.40 of the Qanun-e-Shahadat, 1984, which only required that there should be statement/information by accused which should lead to discovery/recovery---Mere failure of the recovery, was not fatal for prosecution, nor could be taken as to disbelieve the direct evidence, if same was corroborated by medical evidence; and also would come as natural and confidence inspiring.

Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604 ref.

A.Q. Halepota for Appellants.

Ali Haider Saleem, A.P.G. for the State.

Dates of hearing: 20th November, 20th and 23rd December, 2013.

P L D 2015 Sindh 441

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

Syed QASIM HASAN---Petitioner

versus

Syed MEHDI HASAN and 2 others---Respondents

Constitutional Petition No.D-230 of 2012, decided on 3rd February, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition against order of the High Court---Maintainability---Bench of High Court could not issue writ against another Bench of the same or another High Court ---No constitutional petition would lay against any High Court or the Supreme Court---Petitioner had the remedy against the impugned order of High Court to file a petition for leave to appeal before the Supreme Court which was not availed by him---Constitutional petition against High Court was not maintainable which was in fact an abuse of process of High Court---Constitutional petition should not have been entertained or registered by the office in first instance---Registrar of High Court was directed to place a copy of this order before Chief Justice for proper action against the negligent staff/employees of High Court---Constitutional petition was dismissed in circumstances.

Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67; Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518; Abdul Razzak v. Lal Bux and another 2012 CLC 4; Moulvi Shahzado Dreho v. Syed Khursheed Ahmed Shah and others PLD 2012 Sindh 158; Aamir Khalil v. Government of Pakistan through Director General A.N.F. Rawalpindi and 5 others PLD 2004 Pesh. 251; Muhammad Suleman v. Wilayatullah Khan and 2 others 1990 CLC 110; Mubarik Ali Shah and another v. Nazir Ahmed Shah and 10 others 2000 CLC 892; Hafiz Muhammad Qasim v. Mst Soorat Bibi and others 2000 YLR 2606; The Administrator General of Auqaf Government of Pakistan and another v. The District Judge, Sargodha 2001 CLC 218; Muhammad Afzal through legal heirs and others v. Riaz Mahmood, Additional District Judge, Lahore and 8 others PLD 2004 Lah.115 and Faiz Ahmed and 23 others v. Ahmed Khan and 7 others PLD 2013 Lah. 234 ref.

Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67; Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC 518; Abdul Razzak v. Lal Bux and another 2012 CLC 4; Moulvi Shahzado Dreho v. Syed Khursheed Ahmed Shah and others PLD 2012 Sindh 158; Aamir Khalil v. Government of Pakistan through Director General A.N.F. Rawalpindi and 5 others PLD 2004 Pesh. 251; Muhammad Suleman v. Wilayatullah Khan and 2 others 1990 CLC 110; Mubarik Ali Shah and another v. Nazir Ahmed Shah and 10 others 2000 CLC 892; Hafiz Muhammad Qasim v. Mst Soorat Bibi and others 2000 YLR 2606; The Administrator General of Auqaf Government of Pakistan and another v. The District Judge, Sargodha 2001 CLC 218; Muhammad Afzal through legal heirs and others v. Riaz Mahmood, Additional District Judge, Lahore and 8 others PLD 2004 Lah.115 and Faiz Ahmed and 23 others v. Ahmed Khan and 7 others PLD 2013 Lah. 234 distinguished.

Abrar Hassan v. Government of Pakistan and another PLD 1976 SC 315; Muhammad Imran v. Peshawar High Court. Peshawar through Registrar and 2 others 2011 PLC (C.S.) 1465 and Shahab Mazhar v. Pakistan Railways 2014 PLC (C.S.) 356 rel.

Syed Muhammad Akbar for Petitioner.

Syed Mehdi Hasan for Respondent (called absent).

Abdul Jalil Zubedi, A.A.G. for Respondents Nos. 2 and 3.

Date of hearing: 30th January, 2015.

P L D 2015 Sindh 445

Before Salahuddin Panhwar, J

Mst. SARWAR BANO through Attorney---Applicant

versus

PROVINCE OF SINDH through Member Board of Revenue, Hyderabad and 5 others---Respondents

Civil Revision Application No.206 of 2012, decided on 2nd December, 2014.

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

----O. XLI, R. 31---"Judgment" in appeal---Points for determination---Scope---Appeal was continuation of the lis where whole case would open---Provision of O. XLI, R. 31, C.P.C. was mandatory in nature---Appellate Court, while writing judgment was bound to follow the prescribed procedure within its letter and spirit---Framing of points for determination could not be denied---Appellate Court, in the present case, had not discussed a single piece of evidence brought on record, whereas it was a matter of record that Trial Court had given findings on many aspects while referring the documents produced by the parties---Judgment of Appellate Court would not qualify the meaning of "judgment" when it appeared to be lacking in reasoning to its conclusion---Scope of appeal was much broader than that of revision---Appellate Court had not applied its judicial mind---Revision was accepted and case was remanded to the Appellate Court for decision afresh in accordance with law within specified period.

2010 SCMR 1868 and 2006 SCMR 1185 ref.

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

----O. XLI, R. 31---Judgment---Points for determination---Scope---Purpose for framing points for determination in the judgment was to have all legal and factual controversies judicially determined which were agitated or had come out from the judgment of lower court.

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

----S. 115---Revisional jurisdiction---Scope---Revisional court should examine whether illegality or irregularity or excess/non-exercise of jurisdiction would cause prejudice to the applicant or otherwise.

Karamullah Memon for Applicant.

Anwar H. Ansari, State Counsel.

Jagdesh R. Mullani for Respondent No.6.

Date of hearing: 2nd December, 2014.

P L D 2015 Sindh 451

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

ALI NOOR (PVT.) LTD. through Authorized person---Appellant

versus

TRADING CORPORATION OF PAKISTAN (PVT.) LTD. through Chief Executive/Director---Respondent

High Court Appeals Nos. 108 and 109 of 2008, decided on 11th February, 2015.

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

----O. XX, Rr. 4 & 5---Judgment---Decision on each issue---Scope---Court was bound to record findings on each issue by discussing evidence---Court was required to discuss the relevant evidence having direct nexus with the specific point and record reasons to justify the findings---Matters which were irrelevant or extraneous and unnecessary should neither be introduced nor could be construed while replying a specific issue---Rights of parties with regard to controversy in the suit should be conclusively determined in the judgment---Court was bound to specify findings with reasons on each issue---In the present case, findings on each issue had not been given by the court below---Said judgments were against the mandate of law which could not be declared a legal and valid "judgments"---Judgments and decrees in question were set aside and cases were remanded to the Trial Court for decision afresh in accordance with law within a specified period---Appeal was disposed of, in circumstances.

Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736 rel.

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

----S. 2 (9)---"Judgment"---Meaning---Judgment was the statement given by the judge of the grounds of a decree or order---Such grounds should lead to a formal expression of adjudication (decree) conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit.

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

----S. 2 (9)---"Judgment"---Prerequisites---Prerequisites of judgment could be a precise and brief statement of the case; points for determination; findings of the court on each issue and reasons leading to such findings.

Agha Zafar Ahmed for Appellant.

Mazhar Jafri for Respondent.

Dates of hearing: 14th November, 2nd, 16th and 23rd December, 2014.

P L D 2015 Sindh 457

Before Nadeem Akhtar and Muhammad Iqbal Kalhoro, JJ

GOVERNMENT OF SINDH through Secretary Public Health Engineering Department, Karachi and another---Petitioners

versus

Messrs ENGINEERING ENTERPRISES through Proprietor and another---Respondents

Constitutional Petition No.D-1809 of 2006, decided on 10th November, 2014.

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

----S. 12(2)---Remedy under S.12(2), C.P.C.---Scope--- Provision of S.12(2) C.P.C. is neither in the nature of alternate remedy nor is substitute of appeal.

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

----S. 12(2) & O. VI, R.4---Fraud and misrepresentation---Onus to prove--- Plea of fraud and misrepresentation which are pre-conditions have to be specifically stated by party in detail in its application under S.12(2) C.P.C. so that other party opposing it can stand before it in its own way---Law requires that whenever practice of fraud and misrepresentation is alleged by a party, the particulars of fraud and misrepresentation with all necessary details have to be mentioned in pleadings---Burden to prove factum of fraud or misrepresentation is always upon the person who alleges the same unless it is so apparent that its ingredients can be discerned floating on the face of record---Active concealment and suppression of facts in words and deeds is in fact an elementary and fundamental ingredient of fraud which cannot be inferred or proved by mere making some assertions in such regard, rather it must be proved through strong, independent and convincing evidence that it has been practiced in respect of the order in question---If a party alleges fraud without bringing essential facts on record in proof of the same, then mere pleading ignorance or lack of knowledge simpliciter to make it a ground for moving court is not sufficient to dislodge sanctity which is otherwise attached to judicial proceedings---Besides, provision of O. VI, R.4, C.P.C. also requires that when fraud is the basis of any action, its particulars have to be furnished---General allegations in such regard are not sufficient and facts pertaining to fraud have to be spelt out in clear terms in pleadings.

Daewoo Pakistan Motorway Service Ltd. through Chief Executive v. Muhammad Akram 2009 MLD 750; Messrs Dadabhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi PLD 2002 SC 500; 2002 CLC 166 and Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 rel.

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

----S. 12(2)---Constitution of Pakistan, Art. 199--- Constitutional petition---Fraud and misrepresentation---Proof---Bald assertions---Petitioner sought setting aside of judgment and decree passed against him under S.12(2), C.P.C. on the plea of fraud and misrepresentation---Trial Court and Lower Appellate Court declined to set aside judgment and decree passed against petitioner---Validity---Mere bald assertions regarding fraud were made by petitioner in affidavit filed along with application under S.12(2), C.P.C. without furnishing necessary details in such regard as to how and when fraud was committed by respondent---Without providing such details, petitioners failed to discharge their initial burden of referring to basic ingredients of fraud so that cognizance could have been taken by court for the purpose of undertaking inquiry into it---High Court declined to interfere in orders passed by two courts below---Petition was dismissed in circumstances.

Meeran Muhammad Shah, Addl. A.-G. of Sindh for Petitioners.

Nemo for Respondents.

Date of hearing: 27th October, 2014.

P L D 2015 Sindh 464

Before Shahnawaz Tariq, J

ABDULLAH HAROON---Petitioner

versus

VTH ADDITIONAL DISTRICT JUDGE, KARACHI SOUTH and others---Respondents

Constitutional Petition No.S-249 of 2014, decided on 6th March, 2015.

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

----S. 15---Bona fide personal need of landlord---Proof---Statement of landlord on oath if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal is sufficient to prove that requirement of landlord is bona fide.

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

----S. 15---Bona fide personal need of landlord---Prerogative of landlord to establish his own business in any particular area as per his choice and convenience and such need of landlord could not be declined on whim and wish of tenant.

Messrs F.K. Irani and Co. v. Begum Feroz 1996 SCMR 1178 ref.

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

----S. 15---Bona fide personal need of landlord---Capacity of landlord to undertake business---Proof---No legal requirement existed to the effect that landlord must disclose nature of intended business or that he must possess experience in intended trade or business.

Juma Sher v.Sabz Ali 1997 SCMR 1062 and Mst. Sahira Bibi v. Syed Anees-ur-Rehman 1998 SCMR 71 rel.

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

----S. 15---Bona fide personal need of landlord---Petition by landlord being co-sharer---Status---Any of co-sharer can file ejectment proceedings against a tenant without impleading other co-sharers, wisdom behind such principle being that co-sharer acts on behalf of and represents interests of all co-sharers.

Muhammad Hanif and another v. Muhammad Jameel Turk and 5 others 2002 SCMR 429 rel.

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

----S. 15---Bona fide personal need of landlord---Period of tenancy---Effect---Landlord has to establish his personal need for requirement of suit property bona fide and long period of tenancy would not override such ground on plea that business of tenant has been flourishing.

Mustafa Lakhani for Petitioner.

Syed Fazal-ur-Rehman for Respondent No.3.

Date of hearing: 16th February, 2015.

P L D 2015 Sindh 470

Before Amer Raza Naqvi, J

AKRAM---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.230 of 2014, decided on 28th October, 2014.

Criminal Procedure Code (V of 1898)---

----S. 540---Constitution of Pakistan, Art.10-A---Calling witnesses for cross-examination, application for---Out of four witnesses examined by the prosecution, only one witness, who was complainant, was cross-examined by the defence---Applicant/accused alleged that fair opportunity was not extended to him by the Trial Court for cross-examination of remaining witnesses---Application for calling witnesses for cross-examination was dismissed instantly by only one word "rejected"---Trial Court proceeded with the case and convicted applicant through impugned judgment---Validity---Due process of law, and fair opportunity of being defended, was a right of every accused of any offence---Said right had been recognized under Art.10-A of the Constitution---Even if Trial Court thought that application moved by accused could not be granted for any reason, such reason should have been incorporated in the order---Dismissal of the application by single word 'rejected' could not be appreciated---Impugned judgment was set aside, and the case was remanded to the Trial Court, with direction to decide the application under S.540, Cr.P.C., for re-calling the prosecution witnesses for cross-examination strictly in accordance with law.

Muhammad Hanif Samma along with Fazal Haque Khan for Appellant.

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

P L D 2015 Sindh 472

Before Sajjad Ali Shah and Sadiq Hussain Bhatti, JJ

Syed WAQAR HAIDER ZAIDI---Appellant

versus

Mst. ALAM ARA BEGUM through Legal Heirs and others---Respondents

High Court Appeal No.37 of 2013, decided on 19th January, 2015.

Civil Procedure Code (V of 1908)---

----O. XII, R.6---Specific Relief Act (I of 1877), S. 12---Law Reforms (Amendment) Act, (VIII of 1972), S. 3---Suit for specific performance of agreement to sell---High Court appeal---Decree on admission---principle---Words 'or otherwise' appearing in O.XII, R.6, C.P.C.---Effect---Plaintiff filed application for passing of decree in his favour on the basis of admission made by defendant but Single judge of High Court dismissed the application---Validity---Admission on the basis whereof a decree was sought must be specific clear, unambiguous, categorical and definite---Admission made by original defendant did not meet criteria of an admission on the basis whereof a decree could be passed except that such admission was in connected suit---If provisions of O.XII, R.6, C.P.C. were read in a manner to restrict admission only to the extent of pleadings in suit wherein the court was asked to enter a decree in favour of plaintiff on the basis of admission, words 'or otherwise' would become redundant, therefore, there was no justification to confine admission to the extent of pleadings only---Division Bench of High Court declined to interfere in order passed Single Judge---High Court appeal was dismissed, in circumstances.

Amir Bibi v. Muhammad Khursheed 2003 SCMR 1261; G.R. Syed v. Muhammad Afzal 2007 SCMR 433; Messrs Gerry's International (Pvt.) Limited v. Messrs Qatar Airways PLD 2003 Kar. 253; Macdonald Layton and Company Pakistan Ltd. v. Uzin Export Import Foreign Trade Company 1996 SCMR 696; Sheikh Mahmood Ahmad v. Dr. Ghaith Pharaon and 3 others 1987 CLC 2131; Uttam Singh Dugal and Co. Ltd. v. Union Bank of India and others AIR 2000 SC 2740; Muhammad Zahoor and another v. Lal Muhammad and 2 others 1968 SCMR 322 and Federation of Pakistan v. Durrani Ceramics and others 2014 SCMR 1630 ref.

Naseer Ahmed and another v. Asghar Ali 1992 SCMR 2300 rel.

Khawaja Shamsul Islam for Appellant.

Arshad Khan Tanoli for Respondents Nos. 1 to 5.

Syed Sultan Ahmed for Respondent No.6.

Date of hearing: 24th September, 2014.

P L D 2015 Sindh 481

Before Salahuddin Panhwar, J

S.M. SHOAIB BAGHPATI---Plaintiff

versus

UMAR GUL AGA and 3 others---Defendants

Suit Nos.261 and 701 of 2007, decided on 1st December, 2014.

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

----S. 12---Contract Act (IX of 1872), S. 55---Suit for specific performance of agreement to sell---Decrease in market value of suit property---Damages, claim for---Advance amount, forfeiture of---Scope---Mesne profits---Scope---Vendee could seek relief of specific performance of contract and also for damages in addition, or as substitution---Vendor had himself confined his rights to the extent of forfeiture of advance amount and he was normally entitled for the same---Seller could also claim damages in addition, but such damages should be specifically pleaded and should be proved---Mere words of decreased in market value of property in question would not be sufficient to entitle seller for such damages---Burden was upon the defendants to prove their claim for damages---Nothing was on record except a reference to admission of the plaintiff that market value of suit property had reduced---Defendants could not be held entitled for damages in absence of any evidence with reference to reduction in market value---Delivery of possession and change of ownership through a registered document would complete the sale---One should possess a clear title in his favour to execute a registered sale deed and should be capable to put buyer into possession of property---Plaintiff had failed to establish that he was prepared for obtaining title on relevant date from the defendants who had marketable title---Defendants were competent to resort to penal clause of agreement i.e. forfeiting the advance money---Agreement had only permitted forfeiture of 'advance money' but not whole payment made towards sale consideration---Defendants were entitled to forfeit such amount only, not the other payment subsequently made by the plaintiff as part payment---Second agreement did not change the 'status and nature of the advance money'---Defendants were bound to return the amount so received by them after deducting 'advance money' and to establish that they were unauthorizedly kept out of possession of suit property---Failure of defendants to take possession or asked the plaintiff to deliver the same who, otherwise, was ready to deliver possession of suit property was sufficient to disentitle defendants for mesne profits.

Hakim Ghulam Rasool v. Sh. Imdad Hussain PLD 1968 Lah. 501; Mussarat Shaukat Ali v. Safia Khatoon 1994 SCMR 2189; Dada Steel Mills v. Metal Export 2009 CLD 1524; Sigallo Asia Limited v. Akbar Enterprises (Pvt.) Limited 2001 CLC 660; Mahmooda Khatoon v. Syed Zainul Hasnain Rizvi PLD 1958 (sic) 150; PLD 1968 SC 497, Iqbal Ahmed v. Col. Abdul Kabeer SBLR 2005 Sindh 625; Sunshine Enterprises (Pvt.) Ltd. v. West Pakistan Tank Terminal (Pvt.) Ltd. 2002 YLR 3815, Mubarik Ali v. Tula Khan 1985 SCMR 236, Muhammad Sharif v. Fajji 1998 SCMR 2485; Muhammad Sharif Sandhu v. District Accounts Officer 2011 SCMR 1287; Muhammad Yar v. Muhammad Tahir 2003 YLR 3066; Bashir Hussain Siddiqui v. Pan-Islamic Steamship Co. Ltd. PLD 1967 Kar. 222, PLD 1993 SC 311 and AIR 1935 Rajhistan 70 ref.

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

----S. 55---Breach of contract---Claim for damages---Scope---Party could maintain his right to claim damages with reference to a breach of contract but such right would not be available for the party with reference to natural, local or international changes causing effect upon value of the subject of contract particularly when this was not so mentioned in the agreement.

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

----S. 7---Person competent to transfer property---Conditions---Competence for transfer of property was subject to two conditions that either the person making it should have a clear title or was authorized by the person so competent.

Muhammad Saleem Thepdawala for Plaintiff (in Suit No.261) of 2007).

Muhammad Idrees Sukhera and Muhammad Shahid Qadeer for Defendants (in Suit No.261) of 2007).

Muhammad Idrees Sukhera and Muhammad Shahid Qadeer for Plaintiff (in Suit No.701) of 2007).

Muhammad Saleem Thepdawala for Defendants (in Suit No.701) of 2007).

Date of hearing: 11th September, 2014

P L D 2015 Lahore 1

Before Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD ASHRAF and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No. 290, Criminal Revision No. 173 of 2008; PSLA No.17 of 2008 and Murder Reference No.34 of 2008, heard on 18th June, 2013.

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

----Ss. 422 & 423---Notice of appeal---Notice of hearing had to be given to the appellant or his counsel--- Where the record had been sent for, after hearing the appellant or his counsel, if he appeared; the court could dismiss the appeal, or accept the same, or pass such order as might be necessary---Notice of hearing to the appellant or his counsel and to give him an opportunity of being heard was a legal obligation-- If the appellant or his counsel, did not appear before the Appellate Court, even then the appeal could competently be decided after service of notice for hearing to the appellant, or his counsel, though the Appellate Court would have been deprived of the assistance of the appellant or his counsel.

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

----S. 366---Pronouncement of judgment---Mode---Appellant absconding after filing of appeal---Personal attendance of accused was necessary for the pronouncement of the judgment in Criminal Trial, except where his personal attendance during the trial had been dispensed with or where the judgment was of acquittal, or was of fine only, but under subsection (3) of S.366, Cr.P.C., a judgment delivered by a court was not to be deemed to be invalid, merely because of the reason that any party, or his pleader was absent on the date of pronouncement of the judgment, or for any defect in the service of notice on the parties regarding the date and place of pronouncement of the judgment---Application of provisions under S.537, Cr.P.C. had been reaffirmed in S.366(4), Cr.P.C. with the result that the pronouncement of the judgment in a criminal trial in the absence of any party was not at all an illegality; nor same would render any such judgment as invalid---No such provision existed in the Code of Criminal Procedure, such as that contained in S.366, Cr.P.C. for the announcement of judgment in criminal appeal, meaning thereby that the intention of the Legislature was that the judgment in appeal could be pronounced in the absence of the appellant---Presence of party or its availability or its being within the reach of the court at the time of decision of his appeal was not a legal requirement---Court was supposed to do justice after appraisal of evidence; and appellant could not be punished simply for the reason that he had absconded after filing his appeal before the Appellate Court---Appeal filed by accused who had absconded after filing his appeal, could competently be decided on merits by Appellate Court, even in his absence.

Haq Nawaz and others v. The State and others 2000 SCMR 785; Muhammad Aslam and 5 others v. The State 1972 SCMR 194 and Mushtaq and 3 others v. The State 1989 PCr.LJ 2336 ref.

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

----S. 173---Opinion of Police---Admissibility in evidence---Opinion of the Police qua innocence or otherwise of accused, was inadmissible in evidence.

Muhammad Ahmad (Mahmood Ahmed) v. The State 2010 SCMR 660 ref.

(d) Criminal trial--

----Evidence---Inimical eye-witnesses-Reliability---Evidence of inimical eye-witnesses, could be relied upon, provided the same was confidence inspiring, and was corroborated by some independent evidence.

(e) Penal Code (XLV of 1860)-

----S.302(b)/34---Qatl-e-amd, common intention---Appreciation of evidence---Benefit of doubt---Post-mortem examination was conducted with the delay of eight hours and ten minutes from the occurrence---No plausible explanation had been brought on the record for the delay of more than eight hours in bringing the dead body to the hospital---Said delay was suggestive of the fact that the F.I.R. was not recorded at the time mentioned therein; and the time was consumed in procuring attendance of eye-witnesses and preparation of Police papers, necessary for post-mortem examination---Statement made by prosecution witness qua the role of accused was in conflict with the story narrated in the F.LR.---Mala fide of the complainant had also been established from the fact that co-accused were implicated in the case in place of unknown accused persons---Said co-accused were not named in the F.I.R.---Motive as alleged by the prosecution had not been proved---No weapon of offence was recovered from the possession of accused persons during the investigation---Prosecution could not prove its case against accused persons beyond the shadow of doubt---Case was replete with number of circumstances, which had created doubt about the prosecution story---Prosecution having failed to prove its case against accused persons, beyond the shadow of doubt, conviction and sentence recorded against accused persons by the Trial Court, were set aside; they were acquitted of the charges by extending them the benefit of doubt and were released, in circumstances.

Mushtaq and 3 others v. The State 1989 PCr.LJ 2336; Irshad Ahmad v. The State 2011 SCMR 1190; Muhammad Ashraf v. The State 2012 SCMR 419; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Akhtar Ali and others v. The State 2008 SCMR 6 and Muhammad Rafique and others v. The State and others 2010 SCMR 385 ref.

Haq Nawaz and others v. The State and others 2000 SCMR 785; Muharnmad Aslam and 5 others v. The State 1972 SCMR 194 and Mushtaq and 3 others v. The State 1989 PCr.LJ 2336 rel.

(f) Criminal trial--

--Benefit of doubt-If there was a single circumstance, which created doubt regarding the prosecution case, same was sufficient to give benefit of doubt to accused.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

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

417---Penal Code (XLV of 1860), S.302(b)/34---Qatl-i-amd, common intention---Special leave to appeal---Acquitted accused were not named in the F.I.R.---Complainant had admitted during cross-examination that both acquitted co-accused were residents of his village and known to him prior to the occurrence being his relatives---If said acquitted co-accused were known to the complainant being his relatives, why they were not named in the F.I.R.---Petition for special leave to appeal, was dismissed, in circumstances.

Syeda Feroza Rubab for Appellant No.1.

Shahzad Saleem Warraich for Appellant No.2.

Mirza Abid Majeed Deputy Prosecutor General for the State.

Muhammad Arif Gondal for the Complainant.

Date of hearing: 18th June, 2013.

P L D 2015 Lahore 20

Before lbad-ur-Rehman Lodhi and Abdul Sami Khan, JJ

Syed MUBBASHAR RAZA---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Home Department and 2 others-- Respondents

Writ Petition No.906 of 2014, decided on 9th April, 2014.

(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----Ss. 3(1), 6 & 26---Constitution of Pakistan, Arts. 199, 4, 9, 10, 13(a) & 15---Constitutional jurisdiction of High Court under Art.199 of the Constitution---Scope---Power to arrest and detain suspected persons---Scope---State had to jealously safeguard the liberty of every citizen---Government action in restricting the liberty of a citizen was not immune to the scrutiny of High Court under Art.199 of the Constitution---Detenus had been granted bail in the case registered against them---Criminal activity of the detenus was already subject-matter of criminal case, their detention on almost the same allegations amounted to vexing the detenus twice---Detention order under S.3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 against a person against whom criminal proceedings were already pending was violative of Art.13(a) of the Constitution---Authorities failed to establish that detenus were acting in a manner prejudicial to integrity of Pakistan or public order---Liberty of citizens could not be curtailed merely on presumptions; High Court was empowered to declare such (presumptive) orders to have been passed without lawful authority and of no legal effect---Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 required 'satisfaction' of the Authority issuing detention order as to some preceding events on the basis of which such order could be passed---Detention order did not demonstrate/indicate/reflect satisfaction of the Authority-Where the order passed against detenu was coram non judice and nullity in the eyes of law, detenu was not required to file representation before government---Remedy of representation had always been considered an illusion---Constitutional petition was allowed declaring detention orders illegal and without lawful authority.

Arbab Akbar Adil v. Government of Sindh through Home Secretary, Government of Sindh, Karachi PLD 2005 Kar. 538; Muhammad Nadeem v. Government of Punjab through Home Secretary and another PLD 2010 Lah. 371 and Haq Dad Khan v. District Magistrate, Mianwali 1997 PCr.LJ 1288 rel.

(b) Constitution of Pakistan---

----Arts. 199, 4, 9 & 10---Constitutional jurisdiction of High Court under Art.199 of the Constitution---Government action restricting the liberty of a citizen was not immune to the scrutiny of High Court under Art.199 of the Constitution---Liberty of citizens could not be curtailed merely on the basis of presumptions, High Court was empowered to declare such (presumptive) orders of detention to have been passed without lawful authority and of no legal effect.

Abdul Rasheed Bhatti v. Government of Punjab PLD 2010 Lah. 468 rel.

(c) Constitution of Pakistan---

----Art. 13(a)---West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.3(1)---Scope of Ordinance---Detention order under S.3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 against a person against whom criminal proceedings were already pending, was violative of Art.13(a) of the Constitution.

Raja Ikram Ameen Minhas for Petitioner.

Syed Zulfiqar Abbas Naqvi for Petitioner (in W.P.No.918 of 2014).

Wali Muhammad Khan, Asstt. A.-G. with Sajid Zafar Dall, District Coordination Officer, Rawalpindi (Respondent No.2).

P L D 2015 Lahore 26

Before Miss Aalia Neelum, J

MUHAMMAD ASIF MIRAJ---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petition No.4675 of 2014, decided on 21st February, 2014.

Criminal Procedure Code (V of 1898)---

----S.540---Constitution of Pakistan, Art. 199---Constitutional petition---Lacuna, filling in-Re-summoning of witness---Petitioner / accused was facing criminal trial and Trial Court disallowed to re-summon three prosecution witnesses--- Validity---Neither the defence nor the prosecution could be allowed to fill in the lacuna by re-summoning of witnesses under S.540, Cr.P.C.---High Court noted that if such practice was allowed then none of the trial would ever come to an end and the practice would amount to opening of floodgates---Petitioner accused had already been given full and fair opportunities to cross-examine upon prosecution witnesses concerned and if accused had failed to put some questions, the prosecution witnesses could not be punished for such inexperience or failure---High Court declined to interfere in the orders passed by two courts below, as there was no illegality or irregularity in the same---Petition was dismissed in circumstances.

Rasheed Ahmad v. Ibrahim and another 1996 PCr.LJ 143 rel.

Rana Muhammad Adeel for Petitioner.

P L D 2015 Lahore 28

Before Umar Ata Bandial, C J

RIZWAN ZAKA GILL---Petitioner

Versus

GOVERNMENT OF PUNJAB---Respondent

Writ Petition No.22327 of 2013, heard on 4th December, 2013.

(a) Punjab Local Government Act (XVIII of 2013)-------

-----S. 27---Constitution of Pakistan, Arts. 62(f), 140A & 199- Constitutional petition-Qualifications/disqualifications for a candidate to contest Local Government elections--- Qualifications/ disqualifications for a candidate to contest election as a member of Parliament or Provincial Assembly---Difference between such qualifications/ disqualifications---Difference in functions and responsibilities performed by Local Governments and Federal and Provincial Assemblies---Plea of petitioner that S.27 of Punjab Local Government Act, 2013 did not include all the disqualifications that were specified in Art. 62 of the Constitution for a candidate to contest election as a member of Parliament or Provincial Assembly-Validity--- Local Governments lacked legislative power in comparison to members of the Provincial and Federal legislatures---Local Governments discharged different functions and responsibilities compared to Provincial and Federal legislatures---Qualifications for election to legislative assemblies under the Constitution may have a wider scope on account of the higher responsibilities of such institutions, therefore, there was no legal necessity that Local Government elections should require all qualifications mandated for a candidate for the Provincial and Federal legislatures---Constitutional petition was dismissed accordingly

(b) Constitution of Pakistan---

---Art. 140A---Local Government---Lacking legislative power---Local Governments lacked legislative power in comparison to members of the Provincial and Federal legislatures.

(c) Public office---

----Public official---Good character---Fundamental norm---Good character qualities were a fundamental norm for any holder of public office.

(d) Punjab Local Government Act (XVIII of 2013)---

----S. 27(2)(i)---Constitution of Pakistan, Arts. 62(f) & 140A--- Disqualifications for a candidate to contest Local Government elections-Disqualifications for a candidate to contest election as a member of Parliament or Provincial Assembly---Moral turpitude and misuse of authority--- Integrity and good character---Similarity between---Disqualifying conditions under S.27(2)(i) of Punjab Local Government Act, 2013, namely, conviction of offences involving moral turpitude and misuse of authority had a wide import, and largely encompassed the conditions of integrity and good character that were present in Art. 62(f) of the Constitution---For an allegation of dishonesty or corruption a fair standard was laid down in S.27(2)(i) of Punjab Local Government Act, 2013, that there should be a determination by a competent court of law before actually disenfranchising or excluding a candidate from exercising his right to contest an election to a Local Government office-Same principle was also enshrined in Art. 62(f) of the Constitution, thus in such respect there was parity and harmony between the qualifications prescribed for eligibility to contest Local Government elections and Parliamentary elections.

Rizwan Zaka Gill for Petitioner.

Shahid Mubeen, Addl. A.G.

Muhammad Fahad, Advocate/Law Officer, LG&CD Department.

P L D 2015 Lahore 31

Before Shoaib Saeed, J

SUI NORTHERN GAS PIPELINES LTD. through General Manager---Appellant

Versus

CH. MUHAMMAD ZAHID---Respondent.

F.A.O. No.121 of 2012, decided on 21st February, 2014.

Punjab Consumer Protection Act (II of 2005)---

----Ss 4, 2(h) & 33---Oil and Gas Regulatory Authority Ordinance (XVII of 2002) S.11---Jurisdiction of Consumer Court-- "Manufacturer", definition and scope of---Complaint against Gas Supply Company for excessive billing---Defendant Gas Supply Company impugned order of Consumer Court whereby complaint filed by complainant in relation to excessive gas billing was allowed---Held, that defendant Gas Supply Company was not a "manufacturer" of a product as defined in Ss.2(h) & 4 of the Punjab Consumer Protection Act, 2005 and defendant was merely a gas supplier and / or its seller; therefore stretching liability for excessive billing would be putting an altogether meaning to S.4 of the Punjab Consumer Protection Act, 2005; than was intended by the Legislature---Consumer Court being a Special Court and not a court of general jurisdiction could not take up matters relating to excessive gas billing as the same did not fall within its purview and the spirit of the Punjab Consumer Protection Act, 2005 did not cater to such eventualities---Complainant also had an alternate remedy under the Oil and Gas Regulatory Authority Ordinance 2002 which he did not avail---Impugned order of Consumer Court was set aside and appeal was allowed accordingly.

M. Siddique Bhatti for Appellant.

Muhammad Abdullah Khan for Respondent

Date of hearing: 12th February, 2014.

P L D 2015 Lahore 34

Before Abid Aziz Sheikh, J

Messrs HABIB RAFIQ PVT. LTD. Through Authorized Representative---Petitioner

Versus

GOVERNMENT OF PUNJAB and another---Respondents

Writ Petition No.9910 of 2014, heard on 5th May, 2014.

(a) Punjab Procurement Rules, 2009---

----S. 19---Words "mechanism and manner"---Connotation ­Blacklisting of contractor-Method-Procuring agency is required to prescribe method and system for dealing with complaints against contractors and suppliers for their temporary and permanent blacklisting.

Oxford Dictionary New 8th Edn. rd.

(b) Interpretation of statutes---

----Redundancy, principle of---Scope---Redundancy cannot be attributed to legislature and every word used in statute and rules must have meaning.

Messrs V.N. Lakhani and Co. v. M.V. Lakhotoi Express and others PLD 1994 SC 894 and Muhammad Aslam v. Land Acqusition Collector 1994 MLD 1340 rel.

(c) Punjab Procurement Rules, 2009---

----R.19---Constitution of Pakistan, Arts. 4, 10-A, 13 & 199-- Constitutional petition---Blacklisting of contractor---Right to fair trial and due process of law---Double jeopardy, principle of---Petitioner company was aggrieved of decision made by authorities blacklisting it for a period of three years-Validity-Blacklisting of a contractor or supplier under R.19 of Punjab Procurement Rules, 2009, entailed serious consequences of forbidding contractor/supplier from participating in future tenders, which would not only result in deprivation from its business activities but amounted to commercial killing of the company---Blacklisting also tarnished its reputation, credibility and honour in business community, therefore, such disaster step of blacklisting of contractor/supplier could not be resorted to without observing fair trial and due process of law as envisaged in Arts.4 & 10-A of the Constitution---Words 'mechanism' and 'manner' used in R.19 of Punjab Procurement Rules, 2009, were not meaningless rather it denoted due process and fair procedure which included adjudication by impartial and independent authority, prescribing fair criteria, proportionate duration of punishment and structuring of discretion of authorities exercising power of blacklisting---Word 'shall' used in R.19 of Punjab Procurement Rules, 2009, also made it mandatory and obligatory for procuring agency to provide such fair and transparent mechanism and manner of blacklisting-petitioner was initially blacklisted for a period of three years on 31-10-2012 and remained blacklisted for almost 16 months till date when the' case was remanded with consent of parties on 11-2-2014---On remand while passing order dated 4-4-2014, the period during which petitioner already remained blacklisted was not excluded and petitioner was again blacklisted for another period of three years, which amounted to double jeopardy in clear violation of Art.13 of the Constitution---Contractor could be blacklisted who had consistently failed to provide satisfactory performance---Prior to contract in question, petitioner had not defaulted in any other previous contract relating to authorities-In absence of failure to provide satisfactory performance in any other contract, it could not be said that petitioner had consistently failed to provide satisfactory performance-Order of blacklisting was not within the parameters of R. 19 of Punjab Procurement Rules, 2009-High Court in exercise of Constitutional jurisdiction set aside the order passed by authorities blacklisting the petitioner---Petition was allowed accordingly.

Atlas Cables Pvt. Ltd. v. Quetta Electric Supply Company Ltd. PLD 2011 Quetta 67; Canara Bank v. Messrs Studywell and others AIR 1994 Delhi 308; Bhim Sain v. Union of India and another AIR 1981 Delhi 260 and Tristar Shipping Lines Limited v. Government of Pakistan and others 1997 CLC 1475 ref.

Hafiz Ikram Saeed v. State 2013 SCMR 1045; Government of Blochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2009 SCMR 115; Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar 1999 SCMR 16; Province of the Punjab through Meniber Board of Revenue Lahore and others v. Muhammad Hussain through Legal Heirs and others PLD 1993 SC 147 and Deputy Commissioner/Registrar, Sialkot and 2 others v. Hamid Khalidi and 4 others 1987 CLC 2360 distinguished.

Messrs Yousaf Sugar Mills v. Trust Leasing Corporation and others 2006 CLD 1191; New Jubilee insurance Corporation v. NBP Karachi PLD 1999 SC 1126; Messrs M.A. Aleem Khan through Chairman v. Province of the Punjab PLD 2006 Lah 84; Messrs Nizami Construction Company v. Chief Executive Officer, Gujranwala 2005 CLC 366; Messrs Al-Noor Construction Co. v. Cantonment Board Peshawar 2004 CLC 1647; The Crescent Star Insurance Co Limited v. National Bank of Pakistan 2002 CLD 433; Tristar Shipping Lines Limited v. Government of Pakistan 1997 CLC 1475; Messrs Rajput Builders and others v. National Security Insurance Co. 1992 CLC 818; Atlas Cables (Pvt„) Ltd. v. Quetta Electric Supply Company Ltd., PLD 2011 Quetta 67; Arian Equipment and Chemicals Ltd. v. State of West Bengal and others AIR 1975 SC 266; Messrs V.K Dewan and Co. v. Municipal Corporation of Dehli and others AIR 1994 Delhi 304; Pretam Pipes Syndicate v. Tamal Nado AIR 1986 Mad 310; M/s. Tank Steel and Re-Rolling Mills Pvt. Ltd. Dera Ismail Khan and others v. F.O.P and others PLD 1996 SC 77; Muhammad Yousaf Ali Shah v. Federal Land Commissioner Govt. of Pakistan Rawalpindi and 2 others 1995 CLC 369; Mst. Ayesha Bibi v. Nazir Ahmed and 10 others 1994 SCMR 1935; Salah ud Din and 2 others v. Frontier Sugar Mills and Distilliary Ltd. and 10 others PLD 1975 SC 244 and Muhammad Younas Sheikh v. Correx Enterprises and others 2007 MLD 508 rel.

(d) Administration of justice----

--Act should be done according to relevant rules or not at all.

Syed Abdul Aziz Nasir Haqani v. R.O. for Presidential Election (Chief Election Commissioner) Islamabad 1994 CLC 648; Muhammad Siddique Farooqi v. Azad Jammu Kashmir Government through its Chief Secretary Muzaffarabad and others PLD 1994 AJK 13 and Salahuddin and 7 others v. Bibi Zubaida and others 1994 MLD 2464 rel.

(e) Punjab Procurement Rules, 2009---

----R.19---Blacklisting of contractor---Discretion-Human subjectivity, removal of---Scope---Administrative compulsion and wisdom to structure discretion as in R.19 of Punjab Procurement Rules, 2009, is to remove human subjectivity from exercise of discretion-- Constitutional and jurisprudential importance of structured discretion is that it nursed requirement of due process, fairness and fair trial and safeguards unbridled discretion against voice of discrimination and arbitrariness.

Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; Tanveer Ahmad Khan v. Registrar Lahore High Court Lahore and 3 others PLD 2013 Lah 386; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited Rawalpindi PLD 1991 SC 14; Director Food, N-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd., and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 rel.

(f) Interpretation of statutes---

----Amendment in law---Scope---Where law is amended during pendency of an action, ase is required to be decided under old law unless specifically provided in the amended law.

Khudadai Dad alias Mama and others v. State and others PLD 1997 Quetta 69 and Muhammad Sarwar Khan v. Muhammad Azam Khan and others 1997 CLC 500 rel.

(g) Constitution of Pakistan---

----Arts.4, 9, 10-A, 18 & 199---Constitutional petition---Alternate remedy, availability of---Principle---If order passed by authority is without jurisdiction and question involved requires interpretation of rules and enforcement of provisions of Arts.4, 9, 10-A & 18 of the Constitution, despite departmental remedy, Constitutional petition is maintainable.

Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119; The Burmah Oil Company (Pakistan Trading) Ltd. Chittagong v. The Trustees of the Port of Chittagong PLD 1962 SC 113; Nagina Silk Mill, Lyallpur v. The I.T.O. A-Ward Lyallpur and the I.T.A. Tribunal Pakistan PLD 1963 SC 322; Messrs Usmania Glass sheet Factory Ltd, Chittagong v. Sales Tax Officer, Chittagong PLD 1971 SC 205; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Sindh Employees Social Security Institution v. Dr. Mumtaz Ali Taj PLD 1975 SC 450; Messrs Julian Hoshang Dinshaw Trust and others v. Income Tax Officer, Circle XVII South Zone, Karachi and others 1992 SCMR 250; Parvez Iqbal and 2 others v. Provincial Transport Authority, Sindh and another 1996 CLC 182; Republic Motors Ltd v. Income Tax Officer and others 1990 PTD 889; Pakistan Industries v. Assistant Collector Central Excise and Land Customs Karachi and another 1990 CLC 1002; The Fecto Cement Limited v. The Collector of Customs Appraisement and another 1994 MLD 1136; Messrs Kamran Industries v The Collector of Customs (Export) fifth Floor Customs House, Karachi and 4 others PLD 1996 Kar. 68; Hudaybia Textile Mills Limited and 3 others v. Banking Tribunal, Lahore and others PLD 1996 Lah 219; Adil Polypropylene Products Ltd v. The Federation of Pakistan and others 1997 MLD 2189; Muhammad Khan and 2 others v. Karim Bakhsh and 2 others PLD 1996 Kar. 451; Tawakal General Export Corporation and another v. The Collector of Customs (Export) Karachi and 2 others PLD 1992 Kar. 199; Messrs Haroon Brothers v. Drugs Registration Board and another 1992 CLC 1017 and Messrs Chenab Cement Product (Pvt.) Ltd., v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672 rel.

Shahzad Rabbani for Petitioner.

Syed Nayyer Abbas Rizvi, Addl. A.-G., Shah Gull, Addl. A.-G. and Miss Hina Hafeez Ullah Ishaq, Asstt. Advocate General for Respondents.

Date of hearing: 5th May, 2014.

P L D 2015 Lahore 50

Before Atir Mahmood, J

MUHAMMAD ZUBAIR RIAZ---Petitioner

Versus

KALSUM TUFAIL and others---Respondents

Writ Petition No.29324 of 2013, decided on 4th April, 2014.

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

----S. 7---Constitution of Pakistan, Art. 199---Constitutional petition---"Divorce certificate"---Respondent-wife had challenged genuineness of divorce certificate issued by Secretary, Union Council in an earlier constitutional petition which was disposed of by High Court holding that she had remedy to approach Inspecting Officer/Assistant Director Local Government and Rural Development Department-Respondent ­wife filed revision before the Assistant Director Local Government who set aside the divorce certificate---Petitioner had challenged the Assistant Director's said order through present constitutional petition-" Validity--- When High Court disposed of respondent wife's earlier petition in 2011-12, law applicable to the case was Punjab Load, Government Ordinance, 2001 and not the Punjab Local Government Ordinance, 1979---Punjab Local Government Ordinance, 2001 did 01 authorize Assistant Director, Local Government and Rural Development Department to look into genuineness of divorce certificate-Issuance of certificate of Talaq could not be challenged under Muslim Family Laws Ordinance, 1961 or Local Government Ordinance, 2001---Under Muslim Family Laws Ordinance, 1961 Chairman of the Arbitration Council was not empowered to issue divorce certificate---Petitioner having participated in proceedings before Assistant Director/Inspecting Officer, was estopped from challenging the order of that authority---Petitioner (husband) was found to have not sent the notice of Talaq/divorce to respondent in original nor copy thereof was sent to the Secretary, Union Council---Even if an order had been passed without jurisdiction yet if such order advanced the cause of justice, court should not interfere with such order as neither any fraud and forgery committed by anyone should come in the way of justice nor constitutional jurisdiction could be invoked in aid of injustice---Impugned order advanced the cause of justice by setting aside a document obtained by fraud and forgery--- Constitutional petition was dismissed.

Hussain Bakhsh Khan v. Deputy Commissioner D.G. Khan and others 1999 CLC 88 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Even if an order had been passed without jurisdiction yet if such order advanced the cause of justice, court should not interfere with such order as neither any fraud and forgery committed by anyone should come in the way of justice nor writ jurisdiction could be invoked in aid of injustice.

The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 3310 and Mst. Shahida and another v. Board of Intermediate and Secondary Education, Larkana through Chairman at Larkana and 5 others PLD 2001 SC 26). rel.

Nadeem ud Din Malik for Petitioner.

Ghulam Mustafa Chaudhry, Syed Anjum Shakeel, Asstt. Director, Local Government for Respondents.

P L D 2015 Lahore 57

Before Rauf Ahmad Sheikh, J

Malik TAHIR AYUB through Special Attorney---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and 2 others---Respondents

Writ Petition No.3226 of 2010, decided on 13th march, 2013.

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

----Ss. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Power-of-attorney given by the petitioner for pursuing the suit for dissolution of marriage---Attorney of the petitioner filed written statement and appeared as witness in the suit for recovery of dowry articles---Attorney could have not filed written statement or appeared as witness on behalf of the petitioner (principal) in the other suit of the petitioner---Person to whom the authority to act on behalf of executant was given had to perform only those functions in respect of which he was specifically empowered---Special power-of-attorney had to be construed very carefully and it extended to the affairs enumerated therein---Special power-of-attorney executed for case of divorce was to be extent of suit for dissolution of marriage and could have not been Used for other suits or proceedings which did not form part of the suit for dissolution of marriage---Attorney of the petitioner was neither empowered to file written statement in the suit for recovery of dower nor to appear on behalf of the petitioner---Statement of attorney could not be deemed to be the statement of the petitioner (principal) and would be treated as testimony of a witness produced by the concerned party.

PLD 2001 Lah. 495 and 2006 CLC 852 rel.

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

---Ss. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of dowry articles and dower amount---Dower was paid at the time of Nikah but was subsequently taken back by the husband (petitioner) on wedding night---Suit for recovery of dower amount filed by respondent wife was decreed in her favour---Petitioner challenged jurisdiction of Family Court to entertain the suit for recovery of dower amount in circumstances---Once the dower was paid, the matter came out of the ambit of family dispute therefore Family Court could not assume the jurisdiction---If the dower was not paid or was snatched on the wedding night or after the marriage, the dispute would fall within the exclusive jurisdiction of the Family Court---Family Court had rightly assumed the jurisdiction in circumstances---Constitutional petition was dismissed.

2012 MLD 553 ref.

Syed Zulfiqar Abbas Naqvi for Petitioner.

Moulvi Zeshan-ul-Haq for Respondent No.3.

P L D 2015 Lahore 61

Before Rauf Ahmad Sheikh and Ch. Muhammad Younis, JJ

Syed IMRAN HASSAN GILLANI---Appellant

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, RAWALPINDI /ISLAMABAD and another---Respondents

Criminal Appeal No.6-E of 2006, decided on 28th January, 2013.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(a) & 12---Freezing of property---Private person--- Abscondance---Appellant was aggrieved of order passed by Accountability Court freezing his property--- Validity---Order of Chairman NAB was subject to confirmation of court before which reference lay, while order passed by Trial Court did not require any confirmation-Accused allegedly received more than a sum of Rs.90 million, which was transferred from the account of company in question to his account---Accused as per definition given in S.5(a) of National Accountability Ordinance, 1999, included a person in respect of whom there were reasonable ground to believe that he was or had been involved in commission of any offence triable under National Accountability Ordinance, 1999, or was subject of investigation or inquiry by NAB---Appellant was facing inquiry at the relevant time and thereafter wilfully absconded---Freezing order did not suffer from any illegality or infirmity---Appeal was dismissed in circumstances.

Al-Jehad Trust and another v. Federation of Pakistan and others PLD 2011 SC 811 ref.

Dr. Babar Awan for Appellant.

Barrister Saeed-ur-Rehman, ADPG for NAB.

P L D 2015 Lahore 63

Before Sayyed Mazahar Ali Akbar Naqvi and Ali Baqar Najaf, JJ

KASHIF RIAZ, INSPECTOR POLICE, RAWALPINDI---Petitioner

Versus

THE STATE and 8 others---Respondents

Criminal Revision No.7 of 2013, heard on 13th February, 2013.

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

----S. 29---Intent behind enactment of S.29, Anti-Terrorism Act, l997---Under provisions of S.29 of Anti-Terrorism Act, 1997, not only the trial of case pending adjudication before the Anti-Terrorism Court would have precedence over all other trials pending adjudication in other Trial Courts, rather except original jurisdiction of the High Court, it would have precedence over other cases---Rationale of the legislature while inserting S.29 of the Act, reflected that the only intent behind it was to speed up the adjudication of such like cases---If the matters were not disposed of within shortest possible time, the wisdom behind the very establishment of such courts would dash to ground---Trial Court was directed by the High Court to conduct the trial on day to day basis and conclude the same preferably within a period of three months of the receipt of the present order.

Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others PLD 2001 SC 169; Akhtar Hussain v. Special Judge, Anti- Terrorism Court No.3, Lahore and others 2005 YLR 2363 and The State v. Abdul Malik alias Malkoo PLD 2000 Lah. 499 rel.

Ch. Zulfiqar Ali and Muhammad Azhar Chaudhry for Petitioner.

Malik Muhammad Rafique Khan for Respondents Nos. 7 and 8.

Malik Jawad Khalid and Naseer Ahmed Tanuwali for Respondents Nos. 2, 3 and 6.

Rao Abdul Raheem Advocate for Respondents Nos. 4 and 5.

Date of hearing: 13th February, 2013.

P L D 2015 Lahore 68

Before Amin-ud-Din Khan, J

MUHAMMAD AZAM WARRAICH---Appellant

Versus

Mst. NAJMA SULTANA and 2 others---Respondents

F.A.O. No.212 of 2011, heard on 23th May, 2013.

(a) Administration of justice--

--Citing wrong provision of law at caption of suit/petition filed before proper forum would neither make any difference nor bar the court from exercising jurisdiction having under right provision of lave---Illustration.

(b) Administration of justice--

----Law would be applied on basis of facts admitted or proved by parties.

Muhammad Rafiq Warraich for Appellant.

Pir S.R.Abidi for Respondent No.l.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 23rd May, 2013.

P L D 2015 Lahore 71

Before Nasir Saeed Sheikh and M. Sohail Iqbal Bhatti, JJ

SHAHID MAHMOOD---Appellant

Versus

MEHTAB KHAN---Respondent

R.F.A. No.77 of 2008, heard on 21st November, 2013.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Limitation Act (IX of 1908), S.14---Specific Relief Act (I of 1877, S.12---Suit for specific performance of contract---Proceedings before wrong forum---Application for condonation of delay---Rejection of plaint---Scope---Plaint was rejected being time-barred--- Validity---Plaintiff had instituted suit within time at place "X" which was returnd for presentation before proper forum---Such fact was overlooked by the Trial Court while passing the impugned order-- Application under S.14 of Limitation Act, 1908 for condonation of delay was filed but same was not decided---Suit could not be considered in piecemeal for deciding application under 0. VII, R.11, P.P.C.---No one should be prejudiced by the act of the court---Question of bar of limitation was mixed question of law and fact and same could only be decided after framing of issues and recording of evidence---Impugned order passed by the Trial Court was not sustainable and same was set aside---Trial Court was directed to frame issues and decide the case in accordance with law after recording of evidence of the parties---Appeal was accepted in circumstances.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 rel.

Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247 distinguished.

Qazi Waqar Hussain for Petitioner.

Zulfiqar Abbas for Respondent.

Date of hearing: 21st November, 2013.

P L D 2015 Lahore 75

Before Amin-ud-Din Khan, J

FARYAD ALI---Petitioner

Versus

REHMAT ALI---Respondent

Civil Revision No.454 of 2007, heard on 24th May, 2013.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S.55---Suit for specific performance of contract---Immovable property---Time essence of contract---Scope---Suit filed by plaintiff was decreed in his favour--- Appellant court accepted the appeal filed by defendant and set aside the decree of Trial Court---Plaintiff had given notice to defendant after expiry of the last date of performance-Last date of performance, so given, was not the essence of contract---Ordinarily in a suit for specific performance of immoveable property time was not essence of the contract except when specifically mentioned in the contract---Defendant himself had received the money and extended the period and had not given any notice for termination of the contract on the basis that the time was essence of the contract---Plaintiff, however, could not perform his part of the contract---Without notice by the defendant time could not be taken as essence of the contract---Appellant court fell in error while holding that the last date for extending the contract was essence of the contract---Revision petition was accepted.

Ch. Muhammad Abdullah for Petitioner.

Arshad Malik Awan for Respondent.

Date of hearing: 24th May, 2013.

P L D 2015 Lahore 78

Before Arshad Mahmood Tabassum, J

MUHAMMAD IRFAN---Petitioner

Versus

THE STATE and 3 others---Respondents

Writ Petition No.1277 of 2014, heard on 7th July, 2014.

Penal Code (XLV of 1860)---

---S. 489-F---Qanun-e-Shahadat (X of 1984), Arts.59 & 84--- Constitution of Pakistan, Arts.10-A & 199---Constitutional petition--- Dishonestly issuing a cheque---Expert opinion-Comparison of signatures-Right of fair trial---Petitioner was facing trial on allegation of dishonestly issuing bank cheque which was dis-honoured on presentation-Petitioner denied issuing of any cheque and his application for getting comparison of his signatures on cheque from Hand Writing Expert :vas dismissed by Trial Court as well as lower Appellate Court---Validity---Power of Trial Court to itself compare cheque in dispute with admitted signatures of complainant (petitioner), as envisaged under Art.84 of Qanun-e-Shahadat, 1984, did not debar Trial Court form sending the cheque for comparison to Finger Print Expert---Expert evidence was admissible in evidence under Art.59 of Qanun-e-Shahadat, 1984, and if such evidence was not available, only then Trial Court could itself compare the cheque with admitted signatures of petitioner-Petitioner was entitled to fair trial, in view of Art.10-A of the Constitution-Denial on the part of Trial Court to send cheque it: dispute to Finger Print Expert, was violative of the provisions of Qanun-e-Shahadat, 1984---Trial Court as well as lower Appellate Court failed to exercise their jurisdiction vested in them under law and had illegally dismissed application submitted by petitioner-Petition was allowed in circumstances.

Sohbat Ali v. Muhammad Alam PLD 2012 SC (AJ&K) 1 and Muhammad Kabeer ud Din v. Muhammad Munir ud Din 1993 CLC 747 rel.

Sh. Ahsan ud Din for Petitioner

Sh. Muhammad Yaqub for Respondents.

Shahid Mahmood Abbasi, A.A.G. with Majeed, S.I. for the State.

Date of hearing: 7th July, 2014.

P L D 2015 Lahore 84

Before Syed Shahbaz Ali Rizvi, J

MUHAMMAD SHARIF---Petitioner

Versus

DISTRICT POLICE OFFICER and 2 others---Respondents

Writ Petition No.9247 of 2014, decided on 7th April, 2014.

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

----Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199--- Constitutional jurisdiction of High Court---Scope---Orders passed by Justice of Peace---High Court to interfere, and come forward in case the orders passed by Justice of Peace were legally valid-lf said orders were otherwise, neither the government functionaries were bound to obey such orders, nor High Court to interfere in exercise of its constitutional jurisdiction---Constitutional jurisdiction of High Court being discretionary in character, needed to be exercised after proper application of mind, with cogent reasons and not arbitrarily-Directions issued by the Justice of Peace to the extent of direction for insertion of certain penal provisions, being not warranted by law, were set aside and constitutional petition being misconceived, was dismissed.

(b) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 9(7)---Constitution of Pakistan, Art.199---Criminal Procedure

Code (V of 1898), Ss.22-A & 22-B---Constitutional jurisdiction--- Scope---Powers of District Prosecutor---Deletion or insertion of any offence-District Prosecutor had the powers to scrutinize the available evidence and applicability of offences against all or any of accused as per facts and circumstances of the case-Deletion or insertion of any offence, fell within the exclusive domain of the Investigating Police Agency and District Prosecutor-Question whether the Police or District Prosecutor had rightly deleted or inserted the sections of law, was to be seen by the Trial Court at the time of framing of the charge---Such act by the Investigating Agency or the District Prosecutor, could not be challenged either under Ss.22-A & 22-B, Cr.P.C. or under constitutional jurisdiction of High Court, as that would amount to interference in the investigation.

Khizar Hayat v. Inspector General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 ref.

Ch. Muhammad Younis for Petitioner.

P L D 2015 Lahore 88

Before Muhammad Farrukh Irfan Khan, J

Mst. NABEELA SHAHEEN and others---Petitioners

Versus

ZIA WAZEER BHATTI and others---Respondents

Writ Petition No.3237 of 2011, heard on 9th September, 2013.

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

----S.5, Sched.---Muslim Family Laws Ordinance (VIII of 1961), S.5--- Constitution of Pakistan, Art.199-Constitutional petition-Suit for recovery of dower---Registration of marriage-Interpolation in entries of Nikah Register---Remedy---Presumption of truth attached to duly registered Nikahnama---Scope---Suit filed by petitioner/wife was dismissed by Trial Court and the same was upheld by appellate Court--- Contention of the wife was that both the courts below have misread the . contents of Nikahnama according to which an amount of Rupees Two Lac, Ten tolas gold and house was fixed as dower-- Respondent/husband took the plea that the entries mentioned in Nikahnama were forged, fabricated and manipulated with the connivance of Nikah Registrar---Validity---Nikahnama was a public document which was registered under the provisions of Muslim Family Laws Ordinance, 1961 and as such presumption of truth was attached to the same-According to law, four copies of the Nikahnama were prepared, out of which one was kept by Nikah Registrar, second was sent to the concerned Municipal Corporation or Union Council, third copy was supplied to the bride and the fourth one was given to the bridegroom---Very object behind providing copies to all concerned was that each party could verify the entries in Nikahnama according to the terms of marriage settled between them-If the respondent/husband was of the view that Nikah Registrar had interpolated in the entries of Nikah Register, he could approach the Deputy Commissioner who was the controlling authority and could get the same corrected but he did not bother to avail his remedy against the alleged interpolation in Nikahnama---Both the courts below had wrongly dismissed the suit of the petitioner/wife and she was entitled to recover the same dower amount, gold and a house from the respondent husband as settled between them at the time of Nikah-Constitutional petition was allowed.

Muhammad Aslam v. Mst. Suraya PLD 2000 Lah. 355 rel.

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

----Ss. 5 & 10---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.---Transaction of dower-Completion of---Suit for recovery of dower---Transaction of dower would become complete on the day of marriage and the endorsement of dower against column in Nikahnama was a verification of settlement and arrangement already reached between parties-If wife make a demand through filing a suit for recovery of dower, the person contending the entries in Nikahnama were not correct was bound to rebut said entries through a strong evidence otherwise the court was bound to give a solemn affirmation to the entries in Nikahnama.

Muhammad Aslam v. Mst. Suraya PLD 2000 Lah. 355 rel.

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

----S. 5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Recovery of dower---Immoveable property---Proof--- Description, non mention of---Description of immoveable property claimed by wife as dower, was not mentioned in Nikahnama---Effect-- Description of house/immoveable property was not mentioned in the Nikahnama, which fact was not fatal to the claim of the petitioner/wife-- Revenue Authorities were directed to inquire about the market value of the house owned by husband at the time of marriage and husband was directed to pay the amount evaluated by Revenue Authorities to wife---Constitutional petition was allowed.

Dr. Asma Ali v. Masood Sajjad and others PLD 2011 SC 221 rel.

Mrs. Sarkar Abbas for Petitioners.

Javed Akhtar Bhatti for Respondent No.l.

Date of hearing: 9th September, 2013.

JUGMENT

MUHAMMAD FARRUKH IRFAN KHAN, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners have sought for modification of the judgments and decrees dated 13-4-2011 and 20-9-2011, of the learned Judge Family Court, and Additional District Judge, Rawalpindi, respectively, to the extent of their maintenance allowance and its annual enhancement and further prayed for decree of the suit as per their claim by setting aside rest of the impugned judgments.

1. Brief facts of the case are that the petitioners filed a suit for recovery of maintenance, maternity expenses (on the birth of petitioner No.2), dower of Rs.200,000, a house, 13-1/2 tolas gold and dowry articles worth Rs.3,82,441. The suit was contested. Issues were framed whereupon evidence of the parties was recorded. The learned trial Court partially decreed the suit, vide judgment and decree dated 13-4-2011 in the following terms:---

"the maintenance allowance of minor plaintiff No.2 is fixed at the rate of Rs.5000 (rupees five thousand only) per month from the date of institution of this suit with 10% annual increase till further orders whereas the instant suit is hereby dismissed to the extent of recovery of maintenance allowance of plaintiff No.l. The instant suit to the extent of recovery of delivery expenses of Rs.50,000 (Rupees fifty thousand only), gold ornaments, deferred dower of Rs.2,00,000 (Rupees two lacs only) and a house is also dismissed. However, the plaintiff No.1 is held entitled to the recovery of dowry articles as per list Ex.D-11."

1. Feeling aggrieved, both the parties filed separate appeals. The learned lower Appellate Court dismissed both the appeals, with the modification in the judgment and decree of the trial Court to the effect that petitioner No.1/Mst. Nabeela Shaheen was also held entitled to the recovery of her maintenance allowance at the rate of Rs.5,000 per month. The petitioners being dissatisfied have now invoked the constitutional jurisdiction of this Court by filing the instant writ petition.

2. Learned counsel for the petitioners, Mrs. Sarkar Abbas, Advocate, at the very outset submitted that she does not press this petition to the extent of claim of maternity expenses incurred by petitioner No.2 on the birth of petitioner No.l. Regarding rest of the claim the learned counsel contended that the findings of both the courts below are against the law and facts on the record; that judgments and decrees of both the courts below are based on surmises and conjectures; that both the courts have misread the evidence available on the record; that petitioner No.1 had brought strong evidence on the record to prove the contents of the nikahnama according to which an amount of Rs.200,000, 10 tolas gold and a house was fixed as dower but the same was misinterpreted by both the courts below and illegally turned down her prayer; that the maintenance allowance at the rate of Rs.5000 per month granted to petitioners is insufficient in this age of inflation. Moreover, petitioner No.2 is school going and also suffers from disease of asthama ,as such, extra money is needed to cater for his requirements; that respondent is a UK national and earns a handsome amount and he is bound to maintain the petitioners according to his status and income;

3. Conversely, it has been argued on behalf of the respondent that that maintenance allowance fixed by the Courts below does not commensurate with his source of income as he is jobless; that the learned lower appellate Court has illegally granted to petitioner No.1 the maintenance allowance which was rightly declined by the learned trial Court; that at the time of nikah' only Rs.2000 was fixed as prompt dower and the entries mentioned in column No. 14 of thenikahnanna' are forged and fabricated and are result of manipulation with the connivance of the concerned Nikah Registrar; that petitioner No.1 was given 10 tolas gold ornaments by respondent at the time of nikah' which are still with her; that there is no description of the house given in thenikahnama'; that the dowry list appended with the plaint also contained such articles which were never given at the time of marriage and the receipts thereof produced by the petitioner were maneuvered later on.

4. Arguments heard, Record perused.

5. Admittedly, the respondent is a UK national ever since his marriage with petitioner No.1. He has taken inconsistent pleas with regard to his source of income in his written statement and during the arguments addressed by his counsel before this Court. In the written statement he stated that he has no permanent source of income while it is argued by his learned counsel that he is jobless. But he has not been able to deny that he is getting sufficient subsistence allowance being a UK national. In the circumstances, when there is no evidence that petitioner No.1 has been living apart from her husband without any lawful excuse, she is entitled to get maintenance allowance as prayed for in her suit till the subsistence of marriage. Similarly, petitioner No.2, who is minor son of the respondent is a school going child. He being a patient of asthma is also required to meet considerable expense on his medication. In these circumstances, his maintenance fixed at the rate of Rs.5000 per month seems' to be insufficient to meet his requirements. This Court is, therefore, inclined to enhance his rate of maintenance from Rs.5000 to Rs.10000 with 10% annual increase.

6. So far as the question of dower, a house and 10 tolas gold is concerned, the petitioner has produced evidence from which it can safely be inferred that at the time of marriage Rs.200,000 was fixed as dower, in addition to 10 tolas gold and a house. The respondent's own witness Zaheer Ahmed while appearing as D.W.2 admitted in his cross-examination that an amount of Rs.200,000 was fixed as dower. The respondent has failed to adduce any cogent evidence to rebut version of the petitioner. There is no weight in the arguments that the entries in the nikahnama' have been interpolated.Nikahnama' is a public document which is registered under the Muslim Family Laws Ordinance, 1961 and as such presumption of truth is attached to it. According to law, four copies of the nikahnama' are prepared, out of which one is kept by Nikah Registrar, second is sent to the concerned Municipal Corporation, Municipal Committee or Union Council, third copy is supplied to the bride and the fourth one is given to the bridegroom. The very object behind it is so that each party may verify the entries in the Nikahnama according to the terms of marriage settled between them. The'nikah', between the parties was solemnized on 19-8-2007, the suit was filed on 19-12-2009 and during the period .from 19-8-2007 to 19-12-2009 and even thereafter the respondent did-not bother to avail his remedy against the alleged interpolation in the nikahnama': During the course of evidence he has equally failed to bring op record any thing to prove that the entries in column No.14 were changed. In the case of Muhammad Aslam v. Mst. Suraya (PLD 2000 Lahore 355) it has been held that if any party was of the view that Nikah Registrar had interpolated in the entries, of Nikah Register, such party could approach the Deputy Commissioner who was the Controlling Authority and could get the same corrected. In the cited case it has also been held that transaction of dower would become complete on the day of marriage and that endorsement of dower against column innikahnama' was a verification of settlement and arrangement already reached between the parties. And that whenever a woman makes a demand through filing a suit for recovery of dower, the person who contends that the entries in Nikahnama are not correct is bound to rebut these entries through strong evidence otherwise the Courts are bound to give a solemn affirmation to the entries in Nikahnama. Keeping in view the evidence available on the record this Court is of the opinion that both the courts below have wrongly dismissed the suit of the petitioner qua the claim regarding dower amount of Rs.200,000, 10 tolas gold and a house. She was entitled to recover the same from the respondent as settled between the parties at the time of nikah'. No doubt description of the house is not mentioned in thenikahnama' but this fact is not fatal to the claim of the petitioner. In the case cited as Dr. Asma Ali v. Masood Sajad and others PLD 2011 SC 221 wherein no description of land was given in `nikahnama' in terms of agricultural land's khasra numbers or identifying data, Supreme Court directed the trial Court to appoint commission comprising of a member of Revenue hierarchy to determine the average price of per kanal of agricultural land and thereafter wife was held entitled to receive as dower market value of 100 kanals of agricultural land as determined. Seeking guidance from the cited judgment this Court is inclined to direct the District Officer (Revenue), Rawalpindi to inquire as to which one of the house at the time of marriage was owned by the respondent and what was its value. The market value so evaluated by the Revenue Authorities will be payable by the respondent to the petitioner No. l.

P L D 2015 Lahore 93

Before Sikandar Zulqarnain Saleem, J

FAQIR BAKHSH---Petitioner

Versus

THE STATE and others---Respondents

Writ Petition No.7632 of.2014, heard on 4th June, 2014.

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

---Chaps. XX & XXII-A & Ss.242 & 265D---Trial, commencement of-- Scope---Framing of charge---Taking of cognizance was not commencement of trial---Trial of a case commenced with the framing of the charge against the accused.

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

---Ss. 3 & 7---Criminal Procedure Code (V of 1898), Ss. 265C & 265-D---Constitution of Pakistan, Art.199---Constitutional petition---Complaint under S. 3 of Illegal Dispossession Act, 2005-Interim relief, grant of---Scope---Grant of interim relief "during trial"---Interim order for restoration of possession of disputed property was passed by Trial Court before commencement of trial---Legality--- Although copies were delivered to the accused under S. 265-C, Cr.P.C, but admittedly charge was not framed---As such question of commencement of trial did not arise---Grant of interim relief within the meaning of S. 7(1) of Illegal Dispossession Act, 2005, was subject to the condition "during the trial" which admittedly had not commenced in the present case---Interim order passed before commencement of trial was thus without lawful authority, and the same was set aside--- Constitutional petition was disposed of accordingly.

Mehroz Aziz Khan for Petitioner.

Date of hearing: 4th June, 2014.

P L D 2015 Lahore 97

Before ljaz ul Ahsan, J

SEEMAB FAR BUKHARI---Petitioner

Versus

UNIVERSITY OF PUNJAB through Vice-Chancellor and others---Respondents

Writ Petition No.21382 of 2002, heard on 26th June, 2014.

(a) Calendar of the University of the Punjab, 1998---

----Vol.-II, Part XIII, Chap.-V---Calendar of the University of Punjab, ,2002, Volume-I, part-X---Constitution of Pakistan, Art.199--- Constitutional petition---Passing of examinations in parts---Prizes, medals and scholarships-Principle-Grievance of petitioner was that she had secured more marks than respondent, therefore, she was entitled to prize, medal and scholarship instead of the respondent-Validity-Respondent sat for original examination while petitioner sat for special examination which was held 8 months later, on the basis of different question papers---Situation of petitioner and respondent could not be equated nor could they be treated a like on the same footing--- Petitioner had an undue advantage over respondent because she had eight additional months to prepare for paper in question and by sitting in examination eight months later, she could have mastered the subject more than the petitioner who sat for the examination eight months earlier, therefore, they could not be treated at par---Rules and regulations of the University were quite clear and do not support the case of petitioner-Result of respondent was declared earlier and by the time result of petitioner was declared, respondent had already been declared as top student, had received her medal/recognition and degree was already issued in her favour---No reason existed to take benefits away from respondent at belated stage on the grounds which were not legally sustainable---Petition was dismissed in circumstances.

(b) Calendar of the University of the Punjab, 2002---

----Vol.. I, Part-X---Prizes, medals and scholarships, awarding of---Principle---Candidates who sit for one examination and do so together are entitled to be treated alike and the one who secure the highest marks as compared to others similarly placed students is entitled to recognition of his/her merit by being given prize, honours or scholarships.

Mian Seed ud Din for Petitioner.

Aamir Mahmood for Respondents Nos.1 to 3.

Mobeen ud Din Qazi for Respondent No.4.

Date of hearing: 26th June, 2014.

P L D 2015 Lahore 103

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD YASIN---Petitioner

Versus

MUHAMMAD JAMIL and others---Respondents

Civil Revision No.2147 of 2004, heard on 2nd June, 2014.

(a) Islamic Law---

----Gift---Ingredients-Marz-al-Maut---Competency to make intelligent decision---Effect---Contention of plaintiff was that donor was suffering from Marz-al-Maut at the time of attestation of gift mutation which was result of fraud---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court to the extent of shares of disputed property---Validity---If a material fact had been deposed in the examination-in-chief but same was not questioned during cross-examination then it would be deemed to have been admitted---Donor who was at the age of 70 years was not in a position to make an intelligent decision with regard to his landed property---Donee had a motive to usurp the property of deceased donor to deprive other legal heirs who at the time of attestation of mutation was living with him and was totally dependent on him---Deceased donor was suffering from Marz-al-Maut at the time of entry of Rapt Roznamcha Waqiati and attestation of mutation, therefore impugned transaction was hit by the vice of mischief---Donee had failed to prove alleged Rapt Roznamcha Waqiati and mutation of gift which were result of fraud and connivance---Donee was bound to prove the transaction of gift independently as well as attestation of mutation and entry of Rapt Roznamcha Waqiati---Defendant had not pleaded any of the three ingredients of gift in his written staiement as to where and in whose presence oral transaction of gift was effected as he had failed to give any date, time, venue and even the name of witnesses---Donee had failed to prove the transaction of gift through his evidence---Offer on behalf of donor with regard to gift of suit property to the donee should be made which should be accepted b3i, him and possession of property should also be handed over by the donor to the donee which should be followed by entry in the Rapt Roznamcha Waqiati by the patwari and attestation of mutation---Donee was bound to prove the alleged transaction of gift as well as the following events by producing reliable and cogent evidence and in absence of the same the mutation of oral gift was liable to be cancelled---Findings recorded by the courts below were erroneous and were not supported by evidence on record--- Appellate Court had passed contradictory order which was to be declared null and void---Impugned judgments and decrees passed by the courts below were set aside and suit was decreed with costs throughout---Suit property would devolve upon all the legal heirs of deceased according to their legal shares---Revision was accepted in circumstances.

Khan Muhammad v. Muhammad Din through LRs. 2010 SCMR 1351; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Haji Ilahi Bakhsh v. Noor Muhanunad and others PLD 1985 SC 41; Zulfiqar and others v. Shandat Khan PLD 2007 SC 582; Allah Wasaya and another v. Falak Sher and another 2001 CLC 280; Muhammad Maqbool v. Muhammad Akbar and others 1999 MLD 2536; Waqqar Ambalvi v. Faqir Ali and others 1969 SCMR 189; Chief Engineer, Irrigation Department, N.-W.F.P. Peshawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682; Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296; Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others PLD 1977 SC 28; Noor Muhammad Khan and 3 others v. Habibullah Khan and 27 others PLD 1994 SC 650; Karam Begum and 3 others v. Allah Ditta and 3 Others PLD 1986 SC (AJ&K) 27; Muhammad Bakhsh v. Ellahi Bukhsh and others 2003 SCMR 286; Barkat Ali through Legal Heirs and others 2002 SCMR 1938; Mukhtar Ahmad v. Mst. Rasheeda Bibi and another 2003 SCMR 1664; Jewan Khan and others v. Feroze PLD 1951 Lah. 433; Mst. Jivanee v. Feroze Din and another PLD 1962 W.P..(Rev.54) and Mst. Chanan Bibi and 4 others v. Muhanunad Shafi and 3 others PLD 1977 SC 28 ref.

Jewan Khan and others v. Feroze PLD 1951 Lah. 433; Mst. Jivanee v. Feroze Dirr and another PLD 1962 VV.P..(Rev.54) and Mst.

Chanan Bibi and 4 others v. Muhammad Shafi and 3 others PLD 1977 SC 28 distinguished.

Khan Muhammad v. Muhammad Din through Lrs. 2010 SCMR 1351); Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Haji Ilahi Bakhsh v. Noor Muhammad and others PLD 1985 SC 41; Zulfiqar and others v. Shandat Khan PLD 2007 SC 582; Waqqar Ambalvi v. Faqir Ali and others 1969 SCMR 189; Chief Engineer, Irrigation Department, N.-W.F.P. Peshawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682; Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296; 2009 YLR 289; 2000 MLD 404; PLD 1967 Lah. 1138; 1999 SCMR 1049; 1992 SCMR 553 and Muhammad Siddique and 3 others v. Muhammad Boota and others 2009 MLD 917 rel.

(b) Words and phrases--

---"Marz-al-Maut"---Meaning---"Marz-al-Maut" was a disease where a person had apprehended that death was more probable than his chalice to live.

S. M. Tayyab for Petitioner.

Taffazul H.Rizvi for Respondents.

Date of hearing: 2nd June, 2014.

P L D 2015 Lahore 112

Before Abdus Sattar Asghar, J

YOUNG DOCTORS ASSOCIATION and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petitions Nos.2521, 2154 and 3731 of 2014, decided on 7th April, 2014.

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

----S.2 (xlii)----'sustainable development'---Connotation---Term 'sustainable development' for the first time was recognized in Stockholm Declaration of 1972, and it was defined in Brundtland Report "as development that meets the needs of the present without compromising the ability of the future generations to meet their own need"---In Pakistan the term has been defined in S. 2 (xlii) of Pakistan Environmental Protection Act, 1997---In meeting for URBAN 21 Conference (Berlin, July 2000) a more comprehensive definition of the term 'sustainable development' was adopted.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Public Trust, doctrine of--- Petitioners assailed project namely 'Construction of Signal Free Junction on the. plea that the project was to affect a portion of Hospital---Validity---When any action of a public authority was questioned before court of law arising an important issue of public interest, the court ordinarily had to examine as to whether the authority while taking such action was conscious of imperative considerations with appropriate deliberations thereupon after having expert opinion before taking decision in accordance with law---Project' in question was launched by competent authority after having consultations with all concerned departments and agencies and after having obtained necessary expert opinion to study its feasibility carried out by a renowned and well reputed firm like NESPAK---Authorities proposed and had undertaken rehabilitation and substitution of existing facilities of the hospital likely to be affected to the satisfaction of Medical Superintendent of the hospital with a clear undertaking to complete reconstruction of substitute facilities within a period of 45 days---Public trust was properly safeguarded and it did not call for issuance of any writ against authorities---Material apprehensions, objections and prayers of petitioners had been duly taken care of and fructified by authorities---Petition was dismissed accordingly.

Cutting of Trees for Canal Widening Project, Lahore in Suo Motu Case No.25 of 2009 (2011 SCMR 1743) and Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 rel.

Azhar Siddique for Petitioner (in W.P.No.2521 of 2014). Shahid Siddique for Petitioner (in W.P.No.2154 of 20-14). Ahmed Awais for Petitioner (in W.P.No.3731 of 2014)

Syed Nayyar Abbas Rizvi, Addl. A.G. and Ms. Samia Khalid Asstt. A.G. for Respondents.

Waqar A. Sheikh for Respondent No.6/LDA.

Dr. Zafar Yousaf, Medical Superintendent Lady Willingdon Hospital Lahore/Respondent No.9 and Israr Saeed, Project Director, in person.

Date of hearing: 20th March, 2014.

P L D 2015 Lahore 129

Before Sardar Muhammad Shamim Khan, J

Mst. SHAMIM AKHTAR and another---Petitioners

Versus

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

Writ Petition No.2619 of 2011, decided on 11th March, 2014.

(a) Words and phrases---

----"Quash"---Connotation-.--Word 'quashes' is the process of annulling or vacating proceedings by judicial decision.

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

----,Ss. 156 & 173---Reinvestigation after final report---Principle---After submission of report under S.173 (2) Cr.P.C., police has right to further investigation but not to fresh investigation or re-investigation--- Under special circumstances re-investigation can be permitted after submission of report under S.173 Cr.P.C., and during trial before Trial Court but findings of such investigation are just an opinion of police and court has to decide the case after recording evidence of parties.

K. Chandrasekhar v. State of Kerala and others (1998) 5 SCC 223); Waris Khan v. Deputy Superintendent Custom Mardan and another 2001 PCr.LJ 660 and Liaqat Ali Virk v. Inspector General of Punjab Police, Lahore and 8 others PLD 2010 Lah. 224 ref.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 rel.

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

----Ss.17 & 18 (g)---Criminal Procedure Code (V of 1898), S.173--- High Court (Lahore) Rules and Orders, Vol. V, Chapter-4, Part-H, Rule 5---Letters Patent (Lahore), c1.26---Re-investigation of case--- Reference---Difference of opinion-Division Bench of High Court quashed reference against accused but one Judge allowed re-investigation of matter while the other differed with such observation--- Validity---Authorities did not make any request for allowing them to re-investigate the matter, therefore, there was no reason for making such observation by one of the two Judges---Such permission amounted to give free hand to authorities and premium to prosecution of their own faults and provide them opportunity to fill up their lacunas and equip them with better tool of victimization of accused after lapse of thirteen years and it was not permissible in law---Both the Judges had rightly quashed the reference, however, observation in question was set aside---Referee Judge agreed with the Judge who dissented with permission to re-investigation-Reference petition was not referred again to Division Bench of High Court which originally heard the matter as the decision would not be that of majority, rather it was opinion of Referee Judge which had decisive effect and was of binding nature and judgment was to follow such opinion---Reference was disposed of accordingly.

Nadeem Sarwar v. Station House Officer, Saddar Hafizabad and others 2000 YLR 756; Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd., and others PLD 2010 SC 1109; Abdul Latif v. Inspector General of Police and others 1999 PCr.LJ 1357; Chandrasekhar v. State of Kerala and others (1998) 5 SCC 223; Waris Khan v. Deputy Superintendent Custom Mardan and another 2001 PCr.LJ 660 and Liaqat Ali Virk v. Inspector General of Punjab Police, Lahore and 8 others PLD 2010 Lah. 224 ref.

Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373; The State v. Salehoon PLD 1971 Lah. 292; Muhammad Sharif v. The State PLD 1971 Lah. 708 and The State of Orissa v. Minaketan Patnaik AIR 1953 Orissa 160 rel.

Salman Aslam Butt and Shoaib Rashid for Petitioners.

Ch. Riaz Ahmad, Addl. Prosecutor General for NAB., Naseer Ahmad Bhutta, Addl. Attorney General and Muhammad Mahmood Khan, Deputy Attorney General for Pakistan for Respondents.

Dates of hearing: 25th November, 11th and 19th December, 2013.

P L D 2015 Lahore 140

Before Ijaz ul Ahsan, J

Messrs ASKARI LEASING LTD. Through Chief Manager---Petitioner

Versus

PRESIDING OFFICER and another---Respondents

Writ Petition No.20346 of 2009, decided on 20th October, 2014.

(a) Punjab Consumer Protection Act (II of 2005)---

----Ss. 2(j)(k), 4 & 26---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.9 & 7(4)---Civil Procedure Code (V of 1908), O.V11, R.10-Constitution of Pakistan, Art.199-Constitutional petition-Consumer Court,. jurisdiction of---Lease finance facility--- Defective service/product-Return of plaint-Petitioner was a leasing company and respondent availed finance facility for purchase of a vehicle---Due to default in payment of instalments, petitioner repossessed the vehicle and during that period many parts of the vehicle were replaced-Respondent filed a suit before Consumer Court alleging that petitioner had provided defective product and defective service to him---Petitioner bank assailed jurisdiction of Consumer Court on the matter which application was dismissed---Validity---No claim for defective services could be raised by respondent for the reason that petitioner had not undertaken any obligation to provide services having direct nexus or connection with leased vehicle-Claim of respondent was that petitioner failed to fulfil its obligation towards him as a customer, when it failed to take proper care of the vehicle, which petitioner had lawfully repossessed insofar as certain parts were allegedly replaced or stolen-Claim of respondent was based on lease agreement between parties and his cause of action had arisen out of failure on the part of petitioner bank to fulfil an obligation towards him to keep vehicle safe after it was repossessed---Case of respondent was covered by S.9 of Financial Institutions (Recovery of Finances) Ordinance, 2001, on the basis of which he could file a claim against petitioner bank---Such claim in terms of S.7(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, could be filed only in Banking Court, for which said Court had exclusive jurisdiction---Relationship between petitioner bank and respondent was that of financial institution and customer---Alleged replacement/theft of certain parts of vehicle while in custody of petitioner bank, if proved could constitute default in fulfilment of obligation on the part of petitioner bank for determination of which dispute exclusive jurisdiction was with Banking Court established under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001---High Court set aside the order passed by Consumer Court and returned the plaint to respondent for filing the same in competent court-Petition was allowed accordingly.

(b) Interpretation of statutes---

----Special and general law-Scope-Where a specific remedy is available under a special law, general law cannot be resorted to.

Sardar Mashkoor Ahmad for Petitioner.

Muhammad Baleegh uz Zaman Ch. for Respondents.

Date of hearing: 20th October, 2014.

P L D 2015 Lahore 146

Before Shujaat Ali Khan, J

FLYING CEMENT CO. LTD. and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Water and Power and others---Respondents

Writ Petition No.24076 of 2013, decided on 5th November, 2014.

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

----Ss. 31(4) & (5)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Equalization surcharge on electricity, levy of---Federal Government imposed equalization surcharge on electricity vide a notification, but subsequently said notification was withdrawn---Contention of Government that after withdrawal of the notification present constitutional petition became infructuous---Validity---Petitioners had not only challenged the imposition of equalization surcharge in the present petition but also prayed for refund of the amount already deducted on that account---Constitutional petition was held to be maintainable accordingly.

(b) Constitution of Pakistan---

----Art. 199---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997), S. 31---Constitutional jurisdiction of the High Court---Scope---Electricity/energy---Production, supply and tariff of electricity---Interest of consumers, protection of---High Court, being custodian of the fundamental rights, could take judicial notice in order to have continuous supply of energy for present and future domestic and commercial needs in addition to maintaining the present sources of energy along with expansion of new sources of energy---Government and National Electric Power Regulatory Authority (NEPRA) while imposing levies and fixing rates of electricity, should strike a balance between the financial status of citizens of the country and the extent of national requirement for energy on the one hand and available resources for electricity on the other---Heavy duty laid upon the public functionaries, the executive as well as judiciary to see that a balance was struck in such a manner that the system flourished and continued progressing on the one hand and the interest of customers/citizens was ensured on the other.

(c) Words and phrases---

---"Tariff"---Meaning.

K.J. Aiyar Judicial Dictionary, 16h Edn. 2014; Wharton's Law Lexicon, 14th Edn.; Black's Law Dictionary, 8th Edn.; Advanced Law Lexicon by P Ramanatha Aiyar's 4th Edn., Vols. 1 & 4; The Chambers Dictionary 12th Edn.; Halsbury's Laws of India, Vol. 42 and Major Law Lexicon, Vol. VI ref.

(d) Words and phrases---

----"Rate"---Meaning.

K.J. Aiyar Judicial Dictionary, 16h Edn. 2014; Wharton's Law Lexicon, 14th Edn.; Black's Law Dictionary, 9th Edn.; Encyclopaedic Law Dictionary (Legal and Commercial) by Dr. A.R. Biswas and The Major Law Lexicon, by P Ramanatha Aiyar's 4th Edn. ref.

(e) Words and phrases---

----"Charge"---Meaning.

Wharton's Law Lexicon, 14th Edn. and Advanced Law Lexicon by P Ramanatha Aiyar's 4th Edn., Vols. 1 and 4 ref.

(f) Words and phrases---

----"Surcharge"---Meaning.

Black's Law Dictionary 9th Edn.; Aiyer's Judicial Dictionary, 10th Edn.; Ballantine's Law Dictionary, 3rd Edn. and Black's Law Dictionary, 4th Edn. ref.

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

----S.31---"Surcharge"---"Tariff", "rate" and "charge"---Distinction---"Surcharge" was entirely different from a "tariff", "rate" or "charge"---Surcharge meant something chargeable over and above the original levy in whatever shape it may be---Surcharge was neither an independent levy nor a tax.

Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 ref.

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

----S. 31(5)---Equalization surcharge on electricity, imposition of---Federal Government empowered to impose surcharge on electricity---Government enjoyed exclusive power to impose surcharge on electricity against a distribution company---In respect of 'tariff', 'charge' or 'rate' , the Government was bound to notify tariff as determined by the National Electric Power Regulatory Authority (NEPRA) but in case of imposition of surcharge in terms of S. 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, the Government enjoyed exclusive powers---Equalization Surcharge could not be considered as independent tax or levy and Government enjoyed power to impose the same.

Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 ref.

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

----Ss. 3, 7(3)(a) & 31(5)---National Power Tariff and Subsidy Policy Guidelines, 2014---Quantum of surcharge on electricity, determination of---Outside the domain of National Electric Power Regulatory Authority (NEPRA)---Under the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, NEPRA was not given the authority to determine the quantum of surcharge---Government was not bound to refer the matter of imposition of surcharge to NEPRA prior to its imposition; however, it was optional for the Government to refer the matter of surcharge to NEPRA prior to its imposition or to impose the same directly while exercising powers as contemplated under S.31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997.

(j) Interpretation of statutes---

----Provision of law---Ordinary meaning---While interpreting any provision of law, the ordinary meaning of a word used therein should be followed until and unless the context provided otherwise.

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

----Ss. 31(4) & (5)---Constitution of Pakistan, Art. 199---Constitutional petition---Surcharge on electricity---Surcharge imposed through a notification---Notification, error in ---Surcharge was issued through a notification wherein it was incorrectly mentioned that same was issued under S.31(4) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, whereas the correct provision for such purpose was S.31(5) of the said Act---Effect---Nomenclature of surcharge had least relevance rather the purpose and background of its imposition were pivotal---Omission to mention the relevant provision of law in a notification or wrong mentioning thereof did not make any difference especially when the context and language of the document vividly encompassed the purpose and legal backing thereof---Constitutional petition was dismissed accordingly.

Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others 2002 SCMR 312 and Qurban v. Senior Member, Board of Revenue Sindh 2000 CLC 1083 ref.

(l) Notification---

----Omission to mention the relevant provision of law in a notification or wrong mentioning thereof did not make any difference especially when the context and language of the document vividly encompassed the purpose and legal backing thereof.

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

----S. 31(5)---Constitution of Pakistan, Arts. 73 & 199---Constitutional petition---Equalization surcharge on electricity, levy of---Constitutionality---Contention of petitioners that equalization surcharge was imposed by the Federal Government without approval by the National Assembly and Senate, therefore the same was unconstitutional---Validity---Section 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, under which the equalization surcharge was imposed, was incorporated in the said Act through Finance Act, 2008---Said section still held the field and till the time the same was declared ultra vires by a competent forum, any action taken thereunder could not be dubbed as unconstitutional---Constitutional petition was dismissed accordingly.

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

----S. 31(5)---Constitution of Pakistan, Arts. 154(1) & 199 & Fourth Sched. Part II, Entry No.4---Constitutional petition---Equalization surcharge on electricity, levy of---Council of Common Interest---Scope---Federal Government did not consult Council of Common Interest before imposing surcharge on electricity---Legality---Council of Common Interest could form policies regarding electricity in respect of new projects or for resolution of a dispute arising between two federating units but its scope could not be lowered down to determine surcharge especially when matters regarding generation, transmission and distribution were being controlled by National Electric Power Regulatory Authority (NEPRA)---No illegality had been committed by the Government while imposing surcharge without intervention of Council of Common Interest---No enactment could be declared ultra vires just for the reason that the same was promulgated without intervention of the Council of Common Interest provided the same otherwise stood justified in the peculiar state of affairs---Constitutional petition was disposed of accordingly.

Shaikh Nadeem Younas, Chief Executive, Noble Textile Mills Pattoki District Kasur v. WAPDA and 4 others 1996 CLC 1090 ref.

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

----S. 31(5)---Constitution of Pakistan, Arts. 157 & 199 & Fourth Sched. Part II, Entry No.4---Constitutional petition---Equalization surcharge on electricity---Federal and Provincial Governments both empowered to levy equalization surcharge---Plea that only Provincial Government had exclusive power to levy any tax or surcharge on distribution of electricity ---Validity---Provincial Government had been empowered to levy tax on distribution of electricity in the province but the said fact did not take away the powers of the Federal Government to do the same mainly because exercise of such powers by the Provincial Government was not mandatory rather optional---When both Federal and Provincial Governments had simultaneous jurisdiction to legislate qua a particular subject, preference should be given to the Federal Government---Subject of electricity was simultaneously on the Federal as well as Provincial Legislative List, hence the Federal Government as well as the Provincial Government could legislate qua the subject without entering into arena of each other---Subject of electricity was available at Entry No.4 in the Federal Legislative List, thus the Federal Government was fully competent to impose the equalization surcharge in the present case---Powers of the Federal government to levy any surcharge on the electricity could not be declared illegal merely on the ground that Provincial Government enjoyed the power to impose such levy/tax---Constitutional petition was dismissed accordingly.

Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 ref.

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

----S. 31(5)---Constitution of Pakistan, Art.199---Constitutional petition---Equalization surcharge on electricity, levy of---Levy of surcharge for a limited period---Not exorbitant---Plea of petitioners that surcharge in question was excessive and unreasonable, thus not sustainable---Validity---Price of the material which formed components of fuel used for production of electricity had increased manifold---Price of furnace oil had increased---Average cost of a unit of electricity produced from all sources was more than the price at which it was being sold to the consumers---Levy of surcharge for a limited period could not be considered exorbitant or excessive especially in the wake of the subsidy being provided by the government to different categories of electricity consumers---Constitutional petition was dismissed accordingly.

(q) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court ---Scope---Executive orders, legality of---High Court could exercise its powers as contemplated under Art. 199 of the Constitution to determine the legality of an order passed by the executive provided it was established on record that the action impugned seemed to be arbitrary or mala fide on account of colourable exercise on the part of the competent authority or the same appeared to be violative of any law of the land.

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd and others PLD 2014 SC 1 and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 ref.

(r) Interpretation of statutes---

----Harmonious interpretation, principle of---Scope---While applying the principle of "harmonious interpretation of a statute" the courts may take note of matters of common knowledge, the history of the times and may assume every state of facts which could be conceived---Courts must always presume that the Legislature understood and correctly appreciated the need of its own people and that discrimination, if any, was based on adequate and intelligible grounds---Courts, thus in routine would accept an interpretation, which would be in favour of constitutionality rather than the one which would render the same unconstitutional.

(s) Interpretation of statutes---

----"Reading down" or "reading into" a statute, principle of---Scope---When the Court, during the course of hearing of a matter, came to the conclusion that any provision of a statute offended against the parent legislation or was violative of any provision of the Constitution or the same was enacted by an incompetent authority, it could declare it ultra vires following the principle of "reading down" or "reading into" the provision irrespective of the fact as to whether the vires of said provision had been assailed before the court or not---Foremost consideration before the courts should be to save the statute while following the rule of "reading down" or "reading into" a provision---Court was to see that while following the said principle, could the statute remain functional.

Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531; Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz PLD 2011 SC 260; Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranwala and others PLD 2014 Lah. 221; Lone Cold Storage Lahore v. Revenue Officer, Lahore Electric Power Co. 2010 PTD 2502 and Rub Nawaz Dhadwana Advocate and others v. Rana Muhammad Akram, Advocate and others W.P. No.16793 of 2014 ref.

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

----S. 31(5)---Constitution of Pakistan, Arts. 73 & 199 ---Constitutional petition---Vires of S.31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---"Reading down" of a provision in a statute, principle of---Scope---When any provision of a statute offended the parent legislation or was violative of any provision of the Constitution or was enacted by an incompetent authority, it could be declared as ultra vires following the principle of "reading down"---Section 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, neither offended against any clear cut provision of the parent statute or the Constitution nor did it run against the purposes for which the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, was promulgated inasmuch as the prime purpose for promulgation of the said Act was to streamline the affairs regarding generation, transmission and distribution, whereas S.31(5) had been added to the said Act just to enable the Government to recover any amount which was to be incurred by it for implementation of uniform tariff irrespective of the determinations of National Electric Power Regulatory Authority (NEPRA) in respect of 'rate', 'charge' or 'tariff'---Section 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, was added by virtue of Finance Act, 2008 and there was no denying the fact that National Assembly could amend any law or introduce any addition therein just to cope with the future situation through Finance Act while exercising powers vested under Art. 73 of the Constitution---Both vital conditions for declaring a provision as ultra vires following rule of "reading down" were missing in the present case---Section 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, could not be declared as ultra vires under the rule of "reading down"---Constitutional petition was dismissed accordingly.

(u) Constitution of Pakistan---

----Art. 25---Equality of citizens---Discrimination---Scope---Discrimination against a group or an individual implied making an adverse distinction with regard to some benefit, advantage or facility with an element of unfavourable biasness---Equality must be amongst the equals---Guarantee (of equality) enshrined under Art. 25 of the Constitution was only that no person or class of persons shall be denied the same protection of law which was enjoyed by other persons or other classes in the same set of circumstances---Although persons similarly situated or in similar circumstances were to be treated in the same manner but the equality clause particularly the provision about the equal protection of the law did not connote that all citizens shall be treated alike under all set of circumstances and conditions---Equality of citizens did not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities---Concept of equality before the law did not involve the idea of absolute equality among human beings which was a physical impossibility---Protection of equal laws did not mean that all laws must be uniform.

(v) Constitution of Pakistan---

----Arts. 25 & 199---Equality of citizens---Classification---Constitutional jurisdiction of the High Court---Scope ---Classification which was not arbitrary, capricious or violative of the doctrine of equality could not be questioned in constitutional jurisdiction of the High Court.

Shahid Ahmed v. OGDC and others 2014 SCMR 1008; Human Rights Case No.40927-S of 2012 PLD 2013 SC 829 and Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others 2013 SCMR 1687 ref.

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

----S. 31(5)---Constitution of Pakistan, Arts. 25 & 199---Constitutional petition---Equalization surcharge on electricity, imposition of---Discrimination---Scope---Plea of petitioners that surcharge in question had not been imposed against the consumers of one of the electric supply companies (K-Electric), thus other electric supply companies were being discriminated against ---Validity---Character of electric company in question i.e. K-Electric was entirely different from the other Distribution, Generation and Transmission companies, inasmuch as it was the sole electric company in the country which had multiple licenses of generation, transmission and distribution---Plea of discrimination could be agitated when similarly placed persons were treated differently but in the present case none of the other distribution companies had multiple licenses of generation, transmission and distribution, thus, precedent of K-Electric could not be quoted to press into service point of discrimination---Constitutional petition was dismissed accordingly.

N.-W.F.P. Public Service Commisision and others v. Muhammad Arif and others 2011 SCMR 848 ref.

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

----S. 31(5)---Constitution of Pakistan, Arts. 25 & 199---Constitutional petition---Equalization surcharge on electricity, imposition of---Discrimination---Scope---Industrial consumers---Plea of petitioners that surcharge in question was discriminatory as it was only imposed against industrial consumers---Validity---Different tariffs were determined for different consumers---While determining tariffs for different category of consumers, the authorities concerned had to consider the geographic position of area, and the nature and purpose of supply---Industrial consumers were comparatively financially sound as compared to other categories of consumers, thus they could not be yoked with domestic consumers etc. in respect of tariff of electricity--- Constitutional petition was dismissed accordingly.

Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan PLD 1997 SC 582 and Human Rights Case No.14392 of 2013 2014 SCMR 220 ref.

(y) Subsidy---

----Provision of subsidy was not a vested right and the government enjoyed power to withdraw the same if already provided to the citizens.

Human Rights Case No.14392 of 2013 2014 SCMR 220 ref.

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

----S. 31(5)---Constitution of Pakistan, Art.199---Constitutional petition---Equalization surcharge on electricity, imposition of---Legality---When the Government was bound to provide electricity to certain categories of consumers at subsidized rates while considering it as their fundamental right, it also reserved the right to recover the expenditures being incurred on its generation, transmission and distribution in addition to any other charges from the financially sound customers---Due to the economic condition of the government at the relevant time, the imposition of impugned surcharge to abridge the gap between the subsidy being given to different categories of consumers and funds available with the government, the surcharge was neither unconstitutional nor unjustified---Government was providing subsidy on electricity in order to share the financial burden with electricity consumers who were unable to bear the day to day increase in the price of the electricity---When the government was facilitating the consumers in the shape of subsidy etc., it was everyone's national as well as moral obligation, in particular the persons/customers who could afford, to assist the government to wriggle out from financial turmoil---High Court observed that the government shall have to take stern action against the persons who were involved in electricity theft and the officials/officers of the department who facilitated such theft; that, in respect of tariff, while making a uniform policy, the output of the distribution company should be viewed critically and the inefficient companies should be put at guard in the first instance and in case of no improvement they should be blacklisted forthwith; that, the competent authority should take steps to control all kinds of losses like line losses, theft, etc., by using modern devices; that the government should take steps to produce electricity by using less expensive sources; that a detailed study could be undertaken to consider the alternate sources of generation being used by other countries; that for generation through thermal sources, local sources of fuel like coal, natural gas etc. should be preferred, and that renewable sources for generating electricity including wind and solar power could also be utilized---Constitutional petition was dismissed accordingly.

Human Rights Case No.14392 of 2013 2014 SCMR 220; Engineer Zafar Iqbal Jhagra v. Federation of Pakistan and others 2013 PTD 1491; Alleged Corruption in Rental Power Plants etc. 2012 SCMR 773; Pearl Continental Hotel and another v. Government. of N.-W.F.P. and others 2010 PTD 2018; Pakistan Industrial Development Corporation v. Pakistan through Secretary Ministry of Finance 1992 SCMR 891; Dawood Hercules v. Collector of Sales Tax 2007 PTD 1161; Wattan Party through President v. Federation of Pakistan and others PLD 2006 SC 697; Caltex Oil (Pakistan) Ltd. v. Collector, Central Excise and Sales Tax and others 2005 PTD 480; The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another 2000 SCMR 567; Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402; M/s Shahbaz Garments (Pvt.) Ltd. and others v. Pakistan through Secretary Ministry of Finance and others PLD 2013 Sindh 449; M/s Azgard Nine Ltd. v. Pakistan through Secretary and others PLD 2013 Lah. 282; Abdul Majid and another v. Province of East Pakistan and others PLD 1960 Dacca 502; Gatron (Industries) Limited v. Govt. of Pakistan and others 1999 SCMR 1072; Government of Balochistan v. Azizullah Memon and 16 others PLD 1993 SC 341; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Pakistan through Secretary Cabinet Division and others v. Nawabzada Muhammad Umar Khan and others 1992 SCMR 2450; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Abdul Latif v. Government of West Pakistan and others PLD 1962 SC 384; Syed Feroze Shah Ghillani and others v. Federation of Pakistan and others PLD 2013 Lah. 659; Exide Pakistan Ltd. Cantonment Board Clifton and another 2012 CLC 1124; Sanofi Aventis Pakistan Ltd. and others v. Province of Sindh and 2 others PLD 2009 Kar. 69; Rashid ur Rehman v. Mian Iqbal Hassain PLD 2005 Lah. 416; Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd. PLD 2001 Kar. 344; National Industrial Cooperative Credit Corporation Ltd. and another v. Province of Punjab/Government of Punjab through Secretary, Cooperative Department and another PLD 1992 Lah. 462 and Naseem Mehmood v. Principal King Edward Medical College and others PLD 1965 (W.P.) Lahore 272 distinguished.

(aa) Interpretation of statutes---

----Retrospective effect---Scope---No legislation or policy could be given retrospective effect until and unless the legislature had decided so.

Petitioners by:

Azhar Siddique; Mian Mehmood Rashid, Babar Ilyas Chatha and Roohi Saleha for one Petitioner; Mian Mehmood Rashid and Ms. Roohi Saleha for 146 Petitioners; Hussain Ibrahim Muhammad for 6 Petitioners; Khurram Shahbaz Butt for 10 Petitioners; Hafeez ur Rehman Ch. for 4 Petitioners; Tahir Zia Mahar for one Petitioner; Moazzam Ali Shah for one Petitioner; Sohail Ibne Saraj for one Petitioner; Ch. Imtiaz Ahmad for 4 Petitioners; Zulqarnain Hamid for 15 Petitioners; Mustafa Kamal for 11 Petitioners; Azhar Siddique for 8 Petitioners; Wasif Majeed for one Petitioner; M.A. Hameed Awan for two Petitioners; Barrister Ahmed Parvez for two Petitioners; Fiaz Ahmad Khan Baloch for 5 Petitioners; Muhammad Anam Saleem and Ms. Mehnaz Sheraz for one Petitioner; Mian Mehmood Rashid, Ms. Roohi Saleha and Mustafa Kamal for one Petitioner; Zahid Aslam Malik for three Petitioners; Usman Akram Sahi, Muhammad Mujtaba and Furqan Naveed for one Petitioner; Shahzad Ahmad Durrani for two Petitioners; Sharjeel Ijaz and Adnan Ahmad for 5 Petitioners; Mian Muhammad Hussain Chotiya for 9 Petitioners; Khurram Shahbaz Butt and Mirza Bilal Zafar for two Petitioners; Abdul Waheed Habib for 7 Petitioners; Muhammad Nawaz for one Petitioner; Ch. Fareed Anwar for two Petitioners; Mirza Muhammad Abu Bakar Haider and Muhammad Mohsin Virk for one Petitioner; Mian Khalid Habib Elahi for one Petitioner; Rana Ali Akbar Khan for 6 Petitioners; Usman Nawab, H.M. Adil Sikandar and Faiz Rasool Khan Jalbani for two Petitioners; Sharjeel Ijaz, Adnan Ahmad and Abdul Waheed Habib for one Petitioner; Ch. Ishtiaq Anwar for one Petitioner; Khalil Ur Rehman for 5 Petitioners; Rana Sajid Rasool for one Petitioner; N.A. Butt for one Petitioner; Barrister Usman Rashid Cheema for two Petitioners; Ch. Muhammad Mohsin Virk for 4 Petitioners; Muhammad Mohsin Virk for two Petitioners; Nasir Ahmad Awan for one Petitioner; Ch. Khalil Ur Rehman for one Petitioner and Nemo for 321 Petitioners.

Respondents by:

Naseer Ahmad Bhutta, Addl. Attorney-General for Pakistan with Muhammad Zikria Sheikh, Nasar Ahmad and Mian Tariq Ahmad, Dy. Attorney-Generals, Rana Shamshad Khan, Asstt. Advocate-General.

Sheikh Muhammad Ali for Ministry of Water and Power, Government of Pakistan, assisted by Barrister Haris Ramzan, Ms. Mubashra Khalid, Waseem Mehmood Malik and Nusrat Hashmi.

Umer Sharif for NEPRA.

Dr. Muhammad Irtiza Awan, Tahir Zia Mahar and Yasin Badar Legal Consultant for LESCO.

. Saad Rasool for WAPDA.

Orangzeb Mirza for GEPCO.

Mian Muhammad Javed for LESCO, FESCO and GEPCO.

Ch. Fayyas Ahmad Sanghaira for FESCO, PEPCO and LESCO

Sarfraz Ahmad Cheema for FESCO.

Syed Murtaza Ali Zaidi for Respondnets (in W.P. Nos. 18532 of 2011, 16607 of 2012, 11033 of 2011, 11034 of 2011, 24574 of 2013, 24363 of 2013, 24050 of 2013, 17886 of 2011, 27308 of 2013 and 23729 of 2013.

Mian Zafar Iqbal Kalanori for Respondnet No.4 in W.P. No.9748 of 2013.

Date of hearing: 26th September, 2014.

P L D 2015 Lahore 204

Before Shezada Mazhar, J

PAKISTAN MOBILE COMMUNICATION LTD.---Petitioner

Versus

JUDGE DISTRICT CONSUMER COURT, GUJRANWALA and 3 others---Respondents

Writ Petition No.28834 and C.Ms. Nos. 2901 and 2902 of 2014, heard on 26th November, 2014.

(a) Telecom Consumers Protection Regulations, 2009---

----Reglns. 11 & 15---Punjab Consumer Protection Act (II of 2005), S.27---Pakistan Telecommunication (Re-Organization) Act (XVII of 1996), Ss.5 & 4---Civil Procedure Code (V of 1908), O. VII, R.11---Constitution of Pakistan, Art.199---Constitutional petition---Jurisdiction of Consumer Court---Complaints against telecommunication companies---Applicability of Telecom Consumers Protection Regulations, 2009---Petitioner Telecommunications Company, impugned order of Consumer Court, whereby application of petitioner under O.VII, R.11, C.P.C. for rejection of complaint of respondent, was dismissed---Contention of petitioner was that in presence of the Telecom Consumers Protection Regulations, 2009; the Consumer Court under the Punjab Consumer Protection Act, 2005 had no jurisdiction to adjudicate upon complaint of respondent/complainant---Held, that the complaint fell within the parameters mentioned in Regln. 11 of the Telecom Consumers protection Regulations, 2009; and Regln. 15 of the said Regulations contained the procedure by which such complaints were to be dealt with---Petitioner Telecommunication Company fell within the ambit of "Federal Laws" therefore, any legislation made by the Federal Government would prevail over the provincial Statute---Telecom Consumers Protection Regulations, 2009, made in pursuance of Ss.5 & 4 of the Pakistan Telecommunication (Re-Organization) Act, 1996; was a special law; and the Punjab Consumer Protection Act, 2005 was a general law; therefore the District Consumer Court had no jurisdiction to entertain the complaint---High Court observed that provision of a special law on a subject would exclude the applicability of a general law to the said subject---High Court set aside impugned order and rejected complaint of respondent under O.VII, R.11, C.P.C.---Constitutional petition was allowed accordingly.

Inspector-General of Police, Punjab v. Mushtaq Ahmed Warraich PLD 1985 SC 159 rel.

(b) Interpretation of statutes---

----Provision of a special law on a subject would exclude the applicability of a general law to the said subject.

Inspector-General of Police, Punjab v. Mushtaq Ahmed Warraich PLD 1985 SC 159 rel.

Ahmad Farooq Meer on behalf of Farooq Amjad Mir for Petitioner.

Amjad Sher for Respondent No.2.

Date of hearing: 26th November, 2014.

P L D 2015 Lahore 208

Before Mamoon Rashid Sheikh, J

TASAWAR HUSSAIN---Petitioner

Versus

Mst. FARZANA KAUSAR and others---Respondents

Writ Petition No.540 of 2014, decide don 3rd June, 2014.

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

----S. 6(5)---West Pakistan Family Courts Act (XXXV of 1964), S.5, Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Polygamy---Payment of dower in case husband contracted a second marriage without permission of Arbitration Council---Scope---Suit for recovery of maintenance allowance, and dower was decreed inter alia on the ground that the husband had taken a second wife without obtaining permission of the Arbitration Council in terms of S.6(5) of the Muslim Family Laws Ordinance, 1961---Contention of the husband/petitioner was that suit for recovery of downer could not be decreed as the dower was deferred and not prompt---Held, that language of S.6(5)(a) of the Muslim Family Laws Ordinance, 1961 was very clear that in case a man contracted a second marriage without the requisite permission from the Arbitration Council concerned, he shall be liable to immediately pay to the existing wife/wives, the entire amount of the dower due, whether the same was prompt or deferred---In the present case, nothing was on record which showed that the husband/petitioner obtained the necessary permission from the Arbitration Council concerned---No illegality, therefore, existed in the impugned order---Constitutional petition was dismissed, in circumstances.

Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260 and Saadia Usman and another v. Muhammad Usman Iqbal Jadoon 2009 SCMR 1458 distinguished.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Concurrent findings of fact by courts below---In absence of a jurisdictional defect, High Court in exercise of its constitutional jurisdiction, normally did not interfere in concurrent findings of fact arrived at by courts below, unless a case of grave miscarriage of justice was made out. [p. 213] B

Waqar Haider Butt v. Judge, Family Court and others 2009 SCMR 1243; Shamshad Begum v. Mst. Huma Begum and others 2008 SCMR 79; Arshad Mehmood v. Additional District Judge, Rawalpindi and 5 others 2001 SCMR 516; Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2001 SC 158 and Hanif and others v. Malik Ahmad Shah and another 2001 SCMR 577 rel.

Malik Altaf Hussain Kandwal for Petitioner.

P L D 2015 Lahore 213

Before Sikandar Zulqarnain Saleem, J

Mst. SHAHNAZ ELAHI and others---Petitioners

Versus

I.G. POLICE, PUNJAB and others---Respondents

Writ Petition No.10113 of 2014, decided on 21st July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 176---Constitution of Pakistan, Arts. 14, 10, 19 & 199---Constitutional petition---Dignity of man---Disinterment of grave---Privacy of home---Fundamental rights---Scope---Contention of petitioners was that they were not willing for disinterment of grave of their daughter but respondents police officials were causing undue harassment to sign and thumb mark the application for disinterment of the same---Validity---Respondents-police officials were after the dignity of petitioners and they were not safe from their invasion and illegal intrusion---Constitution was the custodian of the sanctity of a person's rights which had guaranteed to protect dignity of man and privacy of home---Such dignity had also been valued by Islam---Not only dignity of deceased female was intruded but peace and tranquility of her family had also been disturbed---Court had to safeguard the Fundamental Rights of citizens without being biased in performance of its duties/dispensation of justice---Law or religion did not enforce anyone to do anything which he/she did not want to do---Respondents police officials were directed to remain within the four corners of law and not to cause undue harassment to the petitioners by exerting pressure to sign and thumb mark the application for disinterment of the grave of deceased against their wishes---Constitutional petition was disposed of.

Ch. Muhammad Shafiq and Syed Athar Hassan Shah Bokhari for Petitioners.

P L D 2015 Lahore 216

Before Mamoon Rashid Sheikh and Shahid Jamil Khan, JJ

ZAHID RAHIM---Appellant

Versus

Mst. NIGHAT MUSHTAQ and others---Respondents

I.C.A. No.64 of 2014, heard on 29th May, 2014.

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

----Ss. 10(4) & 5, Sched---Constitution of Pakistan, Art.199---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Dissolution of marriage on the basis of khula pending final decision with regard to controversy of return of dower---Word "forthwith" mentioned in S.10(4) of West Pakistan Family Courts Act, 1964---Interpretation---Husband filed constitutional petition against preliminary decree for dissolution of marriage on the basis of khula which was dismissed holding that Family Court had rightly passed a decree for dissolution of marriage on the basis of khula pending final decision regarding controversy of return of dower---Validity---Return of dower had been asserted in the plaint by the wife but same had been denied by the husband in written statement which was fact in controversy---Wife had foregone her right to dower in her statement for khula but said statement was not found against assertion in her plaint---Dissolution of marriage "forthwith" on failure of reconciliation had been envisaged in the proviso of S.10(4) of West Pakistan Family Courts Act, 1964 but restoration of dower comes after the word "and" which had made the later part disjunctive---Restoration of dower was not a condition precedent under the proviso of S.10(4) of West Pakistan Family Courts Act, 1964---Purpose of West Pakistan Family Courts Act, 1964 was "expeditious settlement and disposal of disputes with regard to marriage and family affairs and matters connected therewith"---Returning or taking back of dower by the husband was the 'matter relating to family affairs' or at least same was 'connected therewith'---No illegality, irregularity or jurisdictional defect was pointed out in the decision made by the Family Court in framing the issue with regard to dower amount when return of the same had been asserted and denied by the parties---Intra court appeal was dismissed.

Doctor Akhlaq Ahmad v. Mst. Kishwar Sultana and another 1986 MLD 464 and Farzana Shaheen v. Malik Muhammad Iqbal 1989 MLD 3888 rel.

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

----Preamble---Object of West Pakistan Family Courts Act, 1964---Purpose of West Pakistan Family Courts Act, 1964 was "expeditious settlement and disposal of disputes with regard to marriage and family affairs and matters connected therewith".

Sardar Abdul Aziz Khan Chandio for Appellant.

Ghulam Asghar Khan for Respondent No.1.

Date of hearing: 29th May, 2014.

P L D 2015 Lahore 220

Before Amin-ud-Din Khan, J

PROVINCE OF PUNJAB and others---Petitioners

Versus

ZAFAR ULLAH and others---Respondents

Civil Revision No.2514 of 2005, decided on 28th February, 2014.

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

----S. 45---Mutation---Changes in revenue record---Principle---Long standing entries in revenue record cannot be changed except in accordance with law.

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

----S. 42---Suit for declaration---New right, creating of---Scope---Plaintiff in such suit is required to prove a case pleaded by him and he can get a decree with regard to a pre-existing right in his favour by proving his pleadings---Entitlement of plaintiff for decree, through declaratory decree for a new right cannot be created.

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

----S. 45---Specific Relief Act (I of 1877), S.42---Suit for declaration---New right, creating of---Entries in revenue record---Revenue record showed that suit property was in the name of Canal Department and plaintiffs claimed to be allottees of the same---Trial Court and Lower Appellate Court decreed the suit in favour of plaintiffs---Validity---When entries of allotment and possession were available in favour of Canal Department with regard to suit property from year, 1922 onwards and no valid entry substituting such entry had been produced or proved by plaintiffs, orders passed by revenue officials in favour of plaintiffs were against the record and were nullity in the eye of law---Board of Revenue had rightly set aside entries in favour of plaintiffs and Trial court had no evidence to set aside order passed by Board of Revenue---Findings recorded by both the courts below were against the record as the same had set aside order passed by Board of Revenue, which was based upon evidence and record---High Court in exercise of revisional jurisdiction, set aside judgments and decrees passed by two courts below and suit filed by plaintiffs was dismissed---Revision was allowed in circumstances.

Naseer Ahmad v. Member, Board of Revenue and others 1985 MLD 1277 ref.

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

----S. 12(2)---Computing period of limitation---Certified copies, preparation of---Principle---If certified copy is prepared after proposed date given to applicant, Copying Agency under S.12(2) of Limitation Act, 1908, is bound by law to issue notice to the party for collection of certified copy.

Muhammad Arif Raja, Addl. A.-G. with Hafiz Zahoor Ahmad Dy. Collector, Sargodha Canal Division, Sargodha for Petitioners.

Malik Noor Muhammad Awan for Respondents.

Date of hearing: 28th February, 2014.

P L D 2015 Lahore 226

Before Atir Mahmood, J

HASHMAT TAJ---Appellant

Versus

Mrs. SURAYYA TARIQ and others---Respondents

F.A.O. No.16 of 2016, decided on 13th November, 2013.

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

----Ss. 24 & 17---Ejectment petition---Appeal---Maintainability---"Aggrieved party"---Scope---Petitioner moved application for impleading him as a party but same was dismissed on the ground that he had no "locus standi"---Contention of petitioner was that he was sub-tenant and was occupying the demised premises under agreement executed by the original tenant---Validity---Cantonments Rent Restriction Act, 1963 was a special law which would prevail upon the general law---Petitioner did not fall within the interpretation of term "aggrieved party" as party could be a person aggrieved but a person who might be affected by a judgment or order of a lis could not be considered as an "aggrieved party"---Petitioner had entered into the property in dispute during the pendency of eviction petition and was not sub-tenant at the time of filing of the same---Petitioner had no rent agreement in his favour rather he had sale agreement in his favour executed by the original tenant who had no authority to enter into such agreement on behalf of landlord---Petitioner was approbating and reprobating at the same time---Rent agreement and agreement to sell were two different things---Petitioner could not claim ownership over the demised premises if he was sub-tenant and could approach the competent court for redressal of his grievance against the original tenant---Petitioner had no locus standi to file present appeal---Impugned order had attained finality---Appeal was not maintainable and same was dismissed accordingly.

Meraj Gul v. Rukhsana Ameen and others 2013 PLC (C.S.) 1089; Dr.Abdul Hafeez v. Province of Punjab through the Secretary Education, Lahore and others PLD 1991 SC 165; Begum Humayun Zulfiqar Ismail and another v. Begum Hamida Saadat Ali 1968 SCMR 828;, Siraj Din and others v. Additional District Judge, Okara 1986 CLC 975 and Ch. Nazir Ahmad v. Mrs. Mariam Salauddin Khawaja and others PLD 1994 Lah. 252 ref.

Meraj Gul v. Rukhsana Ameen and others 2013 PLC (C.S.) 1089; Dr.Abdul Hafeez v. Province of Punjab through the Secretary Education, Lahore and others PLD 1991 SC 165; Begum Humayun Zulfiqar Ismail and another v. Begum Hamida Saadat Ali 1968 SCMR 828; Siraj Din and others v. Additional District Judge, Okara 1986 CLC 975 and Ch. Nazir Ahmad v. Mrs. Mariam Salauddin Khawaja and others PLD 1994 Lah. 252 distinguished.

(b) Words and Phrases---

---"Aggrieved party"---Meaning---"Aggrieved party" was one whose legal right was invaded by an act complained of or whose pecuniary interest was directly affected by a decree or judgment.

Blacks Law Dictionary rel.

Waseem Shahab and Muhammad Ali Siddiqui for Appellant.

Mudassar Altaf Qureshi for Respondents Nos. 1 and 2.

Nemo for Respondents Nos.3 to 8.

Date of hearing: 4th November, 2013.

P L D 2015 Lahore 231

Before Ali Baqar Najafi, J

MUNAS PARVEEN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE, SHORKOT and others---Respondents

Writ Petition No.26632 of 2013, decided on 4th December, 2013.

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

---Ss. 22-A & 22-B---Penal Code (XLV of 1860), S. 494---Constitution of Pakistan, Art. 199---Constitutional petition---Marrying again during life time of husband---Divorce through telephone or SMS---Scope---Ex-husband of petitioner had allegedly divorced her orally through telephone and SMS---Petitioner contracted second marriage---Respondent/uncle of ex-husband moved application before Justice of Peace alleging that petitioner had married another man during subsistence of her marriage---Justice of Peace issued directions to Station House officer to register case against petitioner---Validity---Ex-husband of petitioner was neither impleaded as a party nor came forward before the court for his impleadment---Dowry articles of petitioner were returned to her on the order of the Family Court, which showed acceptance of separation---Procedure for pronouncing divorce had been prescribed by the legislature in its best wisdom in order to ensure the sanctity of institution of marriage recognizing divorce as a last option---Question was as to what would become of society if divorces were allowed to take effect merely on basis of SMS---Pre-requisite for pronouncing a divorce was peace of mind, and the purpose and objective of such act should be made known to the witnesses present at the spot by the husband---Wording of the SMS sent by the ex-husband, in the present case, did not categorically mention the said pre-requisites---Constitutional petition was disposed of with the observation that factum of divorce would be properly addressed and adjudicated upon by the Family Court in the suit for restoration of conjugal rights filed by ex-husband.

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

----Arts. 73 & 164---Preliminary evidence---Scope---Information conveyed over modern devices such as SMS--- Such information was means of communication validly accepted all over the world, however the witness in whose presence such information was conveyed or received was always important to prove a fact through its verification---Although under Art.73 of the Qanun-e-Shahadat, 1984 modern devices were legally acceptable yet in order to prove a fact, the required procedure had to be followed.

Arif Hashwani and 3 others v. Sadruddin Hashwani and 3 others PLD 2007 Kar. 448 and The State through Muhammad Arif Qureshi v. Kh. Abdul Rasheed Grista and another 2011 SLR 508 ref.

(c) Islamic law---

----Pronouncement of divorce---Prerequisites---Peace of mind, purpose and objective of act of divorce had to be made known to the witnesses present at the spot by the husband which were the prerequisites of pronouncing of divorce.

Ghulam Rasool Sial for Petitioner.

Khadim Hussain Qaiser, Addl. A.G. with Farooq ASI.

Syed Tanvir Bukhari and M. Maqbool Ahmad Naz for Respondent No.4.

P L D 2015 Lahore 235

Before Sadaqat Ali Khan, J

MUHAMMAD AMEER QAZI---Appellant

Versus

MUHAMMAD ASIF ALI and others---Respondents

F.A.O. No.17 of 2009, heard on 20th November, 2013.

(a) Punjab Consumer Protection Act (II of 2005)---

----Ss. 27, 2(c), 2(k) & 33---Jurisdiction of Consumer Court---Scope---"Consumer", definition and scope of---Sale and purchase of immovable property---Appellant/defendant impugned order of Consumer Court whereby complaint regarding purchase of property by complainants from the defendant was disposed of in terms of consent of parties and he was ordered to register sale deeds in favour of the complainants---Contention of defendant was that Consumer Court had no jurisdiction in the matter---Held, that in order to invoke jurisdiction of Consumer Court, the complainant must first qualify to be a consumer, and in order to be a consumer under the Punjab Consumer Protection Act, 2005; a person must hire "services" for a certain consideration from a "service provider"---Complainants in the present case, had alleged that there was an agreement regarding purchase of plots but the defendant failed to execute registered sale deeds in their favour; and as such matter related to breach of contract which fell within the jurisdiction of the Civil Court and the Consumer Court had no jurisdiction in the matter---Disputes regarding immovable property could not be converted into consumer disputes since there was no sale of goods or services for consideration---Contention of complainants that matter was decided by the Consumer Court with consent from all parties was not tenable as consent of parties could neither confer nor take away jurisdiction of a Court/Tribunal, unless so conferred or barred by law---High Court set aside impugned order of Consumer Court and dismissed complaint as not being maintainable---Appeal was allowed, accordingly.

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

(b) Jurisdiction ----

----Consent of parties could neither confer nor take away jurisdiction of a Court/Tribunal, unless so conferred or barred by law---Every court was duty bound to examine the issue of bar of its jurisdiction at the earliest opportunity and decide the same in accordance with law, rather than escaping to decide such an important aspect of the case on the mere concession of one or the other party.

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

Tariq Mehmood Chaudhry for Appellant.

Ghazanfar Ali Khan for Respondent.

Date of hearing: 20th November, 2013.

P L D 2015 Lahore 243

Before Mrs. Ayesha A. Malik, J

HASHIM ASLAM BUTT---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Finance and others---Respondents

Writ Petition No.16001 of 2013, decided on 16th January, 2014.

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

----Art.9---Sales Tax Act (VII of 1990), S.37---Constitution of Pakistan, Art.199---Constitutional petition---Privileged communication---Address of client---Petitioner was advocate who represented his client before Commissioner Inland Revenue---Investigating authorities summoned petitioner under S.37 of Sales Tax Act, 1990, to obtain information from him with regard to his client---Plea raised by petitioner was that communication between counsel and client was privileged and protected under Art.9(2) of Qanun-e-Shahadat, 1984---Validity---Petitioner was called upon to disclose identity of his client because petitioner was engaged by his client in a case and investigating authorities wanted to use that information which petitioner had about his client in furtherance of his investigation---Client did not reveal its identity to investigating authorities in its ongoing investigation, in such a situation identity of client had become privileged communication under Art.9 of Qanun-e-Shahadat, 1984---Investigating authorities could not use machinery available to them for the purposes of investigation to compel an advocate engaged by a client to disclose whereabouts of his client when the whereabouts and identity of client were under investigation---Investigating authorities could not compel petitioner to disclose identity of his client on the grounds that he was representing his client before some other forum or in some other case---Identity of client was privileged communication under Art.9 of Qanun-e-Shahadat, 1984---High Court declared the summons issued in the name of petitioner as illegal---Petition was allowed in circumstances.

Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others PLD 2009 SC 28 and Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51 ref.

Khurram Saeed for Petitioner.

Salman Faisal for Respondents.

Date of hearing: 4th December, 2013.

P L D 2015 Lahore 249

Before Shah Khawar, J

MUMTAZ AKHTAR RANA---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE and others---Respondents

Writ Petition No.11699 of 2013, decided on 3rd April, 2014.

Penal Code (XLV of 1860)---

----S. 489-F---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) S.2(a)---Constitution of Pakistan, Art. 199---Constitutional petition---"Financial institution"---Scope---Petitioner's NGO availed loan from Punjab Health Foundation, and subsequently, on dishonoring of cheque's issued by petitioner, order for registration of F.I.R. against petitioner under S.489-F was issued---Held, that although the Punjab Health Foundation did not come within the purview of the "financial institution" as provided in the Financial Institutions (Recovery of Finances) Ordinance 2001, but being an organization empowered to extend loans, it could be equated with the status of a "Financial Institution"---Provisions of S.489-F of the Penal Code, 1860 could not be attracted where loans were protected by mortgage, warranties, and covenants with regard to ownership, mortgage, pledge, hypothecation or in terms of other purchase on assets of property and financial institutions could only recover the amount by adopting a proper process under any such mode---Loan issued by the respondent in favour of the petitioner, in the present case, had been secured through a mortgage deed and in case of default by the petitioner, mode of recovery had been provided in the agreement between the parties, whereby respondent may issue show-cause notice to the borrower/petitioner to pay the loan along with penalty including sale of mortgaged property and recovery of arrears of land revenue ---In presence of said agreement, the respondent was not competent to resort to provisions of S.489-F of the Penal Code, 1860---Order for registration of F.I.R. against petitioner was set aside---Constitutional petition was allowed, accordingly.

Khalid Javed v. State and others PLJ 2014 Cr.C, (Lahore) 481; Muhammad Asif Nawaz v. Additional Sessions Judge/Justice of Peace Multan and 2 others 2014 CLD 45 and Tariq Mehmood v. Askari Leasing Ltd. PLD 2009 Lah. 629 rel.

Ch. Ishtiaq Anwar for Petitioner.

Kh. Salman Mahmood, Asstt. A.-G., Punjab.

Muhammad Itttefaq Accounts Officer, Punjab Health Foundation.

P L D 2015 Lahore 253

Before Muhammad Farrukh Irfan Khan, J

Mst. ZAREENA BIBI---Petitioner

Versus

MUHAMMAD ASHRAF and others---Respondents

Writ Petition No.21752 of 2010, decided on 18th February, 2014.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Application for custody of minor---Welfare of minor---Scope---Second marriage of mother of minor---Effect---Father filed application for custody of minor daughter on the ground that her mother had contracted second marriage and it was settled between the parties that in such situation the mother would hand over the custody of minor to him---Application for custody of minor was dismissed by the Guardian Court but same was accepted by the Appellate Court---Validity---Father neither made any effort for meeting with the minor daughter prior to filing of such for recovery of maintenance allowance by the mother nor he paid any maintenance to her--Father admitted at the time of evidence that it was settled between the parties at the time of divorce that he would not demand the custody of minor---Father had no interest with the welfare of minor and he filed application for her custody in order to avoid the payment of maintenance allowance to her---Father was accused of a criminal case of heinous nature and he remained behind the bars---Minor was growing up properly in the custody of her mother and she was getting education in a private school---Minor was living with her mother since her birth and in such part of her age she would require company of real mother for her certain personal needs and she could not be left at the mercy of a step mother---Nothing was on record to establish that education or health of minor was suffering due to financial inability of mother to maintain her---Father was legally and morally bound to maintain minor even if she resided with her mother---Mother could not be deprived of the custody of minor on the pretext of having limited source---Father had also contracted second marriage out of which he had two children---No evidence was on record that present husband of mother of minor was adverse in keeping her in his home---Second marriage of mother would not ipso facto disentitle her from retaining custody of minor children and handing them over to the father when it was not otherwise in the welfare of minor---Prime consideration for deciding application for custody of minor was the welfare of minor and nothing else---Minor had developed great love and affection with her mother and at such stage if her custody was disturbed then same would adversely affect her upbringing---Lap of mother was considered as cradle of God and no substitute existed of real mother---Welfare of minor, in circumstances, would lie in the custody of her mother---Custody of minor daughter should not be handed over to the father---Guardian Court had rightly dismissed the application of father for custody of minor after appreciation of material available on record---Impugned judgment of Appellate Court was set aside and that of Guardian Court was restored---Constitutional petition was accepted in circumstances.

Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821 and Firdaus Iqbal v. Shafaat Ali and others 2000 SCMR 838 rel.

Shahid Mehmood Khan Khilji for Petitioner.

Rai Muhammad Shehbaz Bhatti for Respondent No.1.

P L D 2015 Lahore 258

Before Abdus Sattar Asghar, J

ABDUL RAFAY BUTT---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.29823 of 2014, decided on 12th November, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Findings of fact, recorded by a competent court in exercise of lawful jurisdiction could not be agitated by invoking of constitutional jurisdiction under Art.199 of the Constitution, unless the same suffered from perversity, causing serious miscarriage of justice.

(b) Islamic Law---

----Maintenance---Divorced wife's right to maintenance during period of "iddat"---Concept of maintenance during "iddat" examined in light of Quranic verses---Obligation of husband to maintain wife during period of "Iddat"---Scope---Quranic meanings and concepts of "nafaqah", "mata", "wa matee o hanna" and "fa anfiqo"; examined.

English Translation of Surah Al-Tallaq; Versus No.236 of Surah Al-Baqrah; Verse No.241 of Surah Al-Baqrah; Verse No.49 of Surah Al-Ahsab; Qamus-al-Quran al Wajuh An-Nazir; Imam Raghib Asgahani; Tartibul Qamus; Al-Qamus-ul Asri (Modern Dictionary from Arabic to English); Tfsir Kabir by Imam Razi and Lisan ul Arab rel.

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

----Ss. 10(4) & 5 Sched.---Dissolution of marriage---Concept of maintenance during "iddat" examined in the light of Quranic verses---Divorced wife's right to maintenance during period of "iddat"---Jurisdiction of Family Court---Obligations of husband---Scope---Ordains of Almighty Allah as revealed in the Holy Quran and as practised by the Holy Prophet) (PBUH) manifested the complete code of life to enable order lives in the individual and collective sphere in accordance with the teachings of Islam---Words "fa mate o hunna" meaning "to provide" and "fa anfiqo", meaning "to spend" used in the verses of the Holy Quran revealed the commands of Allah to a Muslim husband rendering him under an obligation to maintain his divorced wife during period of "iddat" as per Injunctions of Islam; which may be a one time provision or in shape of affordable instalments during period of "iddat"---Intent and spirit of commands of Allah was to provide for maintenance to a divorced wife during period of "iddat" for the simple reasons that as per Injunctions of Islam; a divorced woman could not remarry during the period of "iddat"---Commands of Allah therefore, created a right of maintenance in favour of a divorced wife and an obligation upon a husband to maintain her during period of "iddat"---Such right, in Pakistan was enforceable by the Family Court which had exclusive jurisdiction under the West Pakistan Family Courts Act, 1964.

English Translation of Surah Al-Tallaq; Versus No.236 of Surah Al-Baqrah; Verse No.241 of Surah Al-Baqrah; Verse No.49 of Surah Al-Ahsab; Qamus-al-Quran al Wajuh An-Nazir; Imam Raghib Asgahani; Tartibul Qamus; Al-Qamus-ul Asri (Modern Dictionary from Arabic to English); Afsir Kabir by Imam Razi and Lisan ul Arab rel.

Muhammad Latif for Petitioner.

P L D 2015 Lahore 268

Before Abdus Sattar Asghar, J

Mst. SHAZIA NAHEED---Appellant

Versus

PUBLIC AT LARGE and others---Respondents

F.A.O. No.587 of 2014, decided on 27th October, 2014.

(a) Mental Health Ordinance (VIII of 2001)---

----S. 2(d) & Preamble---Court of Protection, duty of---Scope---Court performing its functions under the Mental Health Ordinance, 2001 was obliged to protect the rights of a mentally disordered person in accordance with the law.

(b) Mental Health Ordinance (VIII of 2001)---

----Ss. 32 & 33(1)---Mentally disabled person---Property and inheritance share---Guardian/manager of mentally disabled girl, appointment of---Subject to furnishing surety bond---Propriety and suitability of surety---Mother of mentally disabled girl was appointed as her guardian and manager of property subject to furnishing of surety bond---Guardian/mother submitted surety bond before the Court of Protection, but the same was declined on the basis that the person who intended to stand surety for the guardian/mother had all his properties located in a city which was different from the city wherein almost all the properties of mentally disabled girl were located, thus it was not safe and proper to allow the surety, and guardian/mother should submit fresh local surety---Validity---Guardian/mother was bound to furnish surety bond to the satisfaction of the Court of Protection--- Expression "satisfaction of the Court' clearly manifested that the surety should be adequate and acceptable to the Court--- Court of Protection being conscious of its duty to safeguard the rights of the mentally disabled girl and exercising its discretion in appropriate and judicious manner had clearly expressed its reservation with regard to propriety and suitability of the surety and thus declined to accept the same--- No exception could be taken to the findings of the Court of Protection--- Appeal was dismissed accordingly.

Muhammad Azam Chughtai for Appellant.

P L D 2015 Lahore 272

Before Muhammad Qasim Khan, Muhammad Ameer Bhatti and Shahid Waheed, JJ

BILAL AKBAR BHATTI---Petitioner

Versus

ELECTION TRIBUNAL, MULTAN and 15 others---Respondents

Writ Petition No.11155 of 2013, decided on 28th February, 2014.

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

----Ss. 55 & 63---Constitution of Pakistan, Art.199---Constitutional petition---Dismissal of election petition during trial---Scope and principles---Partial/complete-failure to comply with provisions of S.55 of Representation of the People Act, 1976---Effect---Section 63 of the Representation of the People Act, 1976 did not contain any direction that (election) petition shall be dismissed, even if there was a partial failure to comply with the provisions of S.55 of the said Act---Section 63 of the Representation of the People Act, 1976 was seemingly designed to cover a case where the (election) petition as a whole made allegations of vague and indefinite character without being supported by full particulars of the corrupt or illegal practices---If the election petition taken as a whole failed to comply with the provisions of S.55 of the Representation of the People Act, 1976, it shall be dismissed as revealing no cause of action for the reason that policy of said Act was to discourage an election petition, even during trial, if genuine grounds for challenging an election did not exist.

S.M. Ayub v. Syed Yusaf Shah and others PLD 1967 SC 486 rel.

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

----S. 55(3)---Constitution of Pakistan, Art.199---Constitutional petition---Election petition, contents of---"Schedule or annexure" attached to an election petition---Meaning---Words "schedule or annex" mentioned in S.55(3) of the Representation of the People Act, 1976, meant such a schedule or annexure which either made additional allegations of a substantive character against the opposite party, or at least furnished better particulars of the allegations made in the election petition, so as to give them the status of substantive grounds of the petition itself. [p. 280] C

S.M. Ayub v. Syed Yusaf Shah and others PLD 1967 SC 486 rel.

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

----S. 55(3)---Election petition, contents of--- Pleadings, verification of---Principles Following are the principles in relation to verification of pleadings contained in an election petition:--

Pleadings were to be verified on oath and the oath was to be administered by a person who was duly authorized in such behalf. Non-verification or non-attestation of oath by an authorized person was fatal.

Oath was to be practically administered.

There was no material difference between verification on oath and of verification through affidavit. An affidavit was sworn statement, while the verification was confirmation in law by oath in order to establish the truth, accuracy and reality of a statement of facts. Thus, there was practically no difference whatsoever between verifying a statement on oath and verifying the same statement on affidavit. Such difference also lost significance when such affidavit on oath was attested by the authority competent to administer oath.

Failure to give reference to the paragraphs of the pleadings as to what petitioner happened to verify according to his own knowledge and what he happened to believe upon information received and believed to be true, was immaterial.

Amendment to remove defects in verification of Election petition and its annexures on oath or solemn affirmation before a person authorized to administer oath could be allowed by the Election Tribunal during the period of limitation prescribed for filing of Election Petition.

Non-verification of pleadings on oath or solemn affirmation before a person not authorized to administer oath would be deemed not duly verified on oath.

Public documents did not require any verification.

Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250; Moulvi Abdul Qadir and others v. Moulvi Abdul Wassay and others 2010 SCMR 1877; Malik Umar Aslam v. Sumera Malik PLD 2007 SC 362; Saeed Ahmad Qureshi v. Haji Ehsan ud Din Qureshi C.A. No.963 of 2013; Malik Umar Aslam v. Sumera Malik PLD 2007 SC 362 and Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570 rel.

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

----S. 55(3)---Constitution of Pakistan, Arts.213 & 199---Constitutional petition---Election petition, contents of---Schedules, annexures and pleadings, verification of---Whether requirement of verification under S.55 of the Representation of the People Act, 1976 was complied with--- Such question would be gone into by the Election Tribunal itself and not by the Chief Election Commissioner---Objection regarding requirement of verification could validly be raised before the Election Tribunal alone.

Sardarzada Zafar Abbas and others v. Syed Hassan Murtza and others PLD 2005 SC 600 rel.

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

---- Ss. 62 & 63--- Sections 62 & 63 of the Representation of the People Act, 1976 were independent of each other.

Malik Umar Aslam v. Sumera Malik PLD 2007 SC 362 rel.

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

----Ss. 76A & 55(3)---Constitution of Pakistan, Art.199---Constitutional petition---Election petition, contents of---Allegations made against returned candidate within the ambit of S.76-A of Representation of the People Act, 1976---Whether such allegations had to be verified on oath---Held, where there were allegations that the returned candidate was a defaulter of loan, taxes, government dues or utility charges, or had submitted a false or incorrect declaration regarding payment of loans, taxes, government dues or utility charges, or had submitted a false or incorrect statement of assets and liabilities of his own, his spouse or his dependents, then such allegations were not required to be verified on oath.

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

----S. 52---Constitution of Pakistan, Arts. 225 & 199---Post-election disputes--- Exclusive jurisdiction of the Election Tribunal---High Court barred from exercising jurisdiction under Art.199 of the Constitution in relation to post-election disputes---Article 225 of the Constitution provided a special procedure for challenging the elections through an Election petition presented under the Representation of the People Act, 1976---Article 225 of the Constitution read with Representation of the People Act, 1976 in very clear and unambiguous language state that once the election process had been completed, then it was exclusive jurisdiction of the Election Tribunal to process Election petitions with regard to election disputes---In view of the bar contained in Art. 225 of the Constitution, the High Court could not exercise jurisdiction under Art.199 of the Constitution with regard to post-election disputes.

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

----S. 67(1A)---Constitution of Pakistan, Art. 199---Constitutional petition---Election petition---Proceedings---Day to day basis---Speedy trial---Under S.67(1A) of the Representation of the People Act, 1976, Election Tribunal shall proceed with the Election petitions on day to day basis and decision thereof shall be taken within four months from its receipt---Speedy trial of an Election petition with regard to election disputes, was essential.

(i) Interpretation of statutes---

----Purposive approach---Interpretation of statute required advancing the purpose of legislation and any interpretation which would defeat the object and purpose of the statute, had to be avoided so that smooth working of scheme of legislation provided by the statute could be facilitated.

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

----S. 67(3)--- Constitution of Pakistan, Art. 199---Constitutional petition---Election Tribunal---Interlocutory order---Appeal or revision against---No right of appeal or revision was provided against an interlocutory order passed by an Election Tribunal---Person aggrieved should wait for the final decision of Election Tribunal and such decision could then be assailed, if so required by any of the party, before the Supreme Court.

Badarul Haque Khan v. The Election Tribunal Dacca and others PLD 1963 SC 704; Mian Jamal Shah v. The Member Election Commission Government of Pakistan, Lahore and others PLD 1966 SC 1 and Muhammad Baran and others v. Member (Settlement and Rehabilitation) and others PLD 1991 SC 691 rel.

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

----S. 67(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Election Tribunal--- Interlocutory order--- Assailing of--- Forum--- Constitutional jurisdiction of the High Court--- Scope--- Even if the Election Tribunal made a wrong decision either of facts or law at an intermediate stage, it could not be corrected in constitutional jurisdiction of the High Court under Art. 199 of the Constitution by exercising the power of appellate authority--- High Court could not sit in appeal over the decision/order of the Election Tribunal or statutory authorities and substitute their decision with its own--- Where there was effective alternate remedy under the statute, High Court would not exercise its (Constitutional) jurisdiction and decline to interfere in elections matters, especially at the intermediate stage---If the High Court exercised jurisdiction under Art. 199 of the Constitution to interfere with the interlocutory order of the Election Tribunal, then it would be encroaching upon the rights of aggrieved person to approach the Supreme Court through a direct appeal---Representation of the People Act, 1976, which excluded a right of appeal from the interim orders of the Election Tribunal, could not be bypassed by bringing under attack such interim orders in Constitutional jurisdiction of the High Court---Party affected had to wait till a final decision of the Election Tribunal and then it could challenge the same in the proper exclusive forum, that is, the Supreme Court.

Badarul Haque Khan v. The Election Tribunal Dacca and others PLD 1963 SC 704; Mian Jamal Shah v. The Member Election Commission Government of Pakistan, Lahore and others PLD 1966 SC 1 and Muhammad Baran and others v. Member (Settlement and Rehabilitation) and others PLD 1991 SC 691 rel.

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

----S. 67(3)---Constitution of Pakistan, Art. 199---Constitutional petition---Election Tribunal---Decision---Assailing of---Decision of Election Tribunal to be assailed directly before the Supreme Court---General rule---Assailing decision of Election Tribunal before the High Court under Art. 199 of the Constitution---Only exceptional---Challenging decision of an Election Tribunal before the High Court under Art. 199 of the Constitution would make S.67(3) of the Representation of the People Act, 1976 redundant to some extent as the parties in such situation would have to file petition for leave to appeal instead of direct appeal before the Supreme Court, which was not the intention of the legislature---When a mechanism had been provided for the decision of disputes arising out of elections, it could not be permitted to be bypassed through constitutional jurisdiction of the High Court---High Court could only exercise jurisdiction under Art. 199 of the Constitution (exceptionally) when the order of Election Tribunal was illegal and aggrieved person became remediless and the candidate had been disqualified and disfranchised---Only in extraordinary circumstances would the High Court deviate from the general sanctified rule.

(m) Constitution of Pakistan---

----Art. 10A---Fair trial---Basic ingredients.

Following are the basic ingredients for a fair trial:--

(i) The Court/Tribunal shall be independent, impartial and established under the law;

(ii) All persons shall be equal before the Courts and Tribunal in the determination of their rights and obligations;

(iii) Every one shall be entitled to a fair hearing within reasonable time;

(iv) Every one shall have a right of counsel;

(v) One shall have a right of public hearing if not prohibited by law;

(vi) Procedure of trial as provided by the statute shall be followed; and

(vii) The statute must provide a remedy of appeal.

(n) Administration of justice---

----When a thing was required to be done in a particular manner, it should be done in that manner alone as doing otherwise would make the whole proceedings void.

Muhammad Khalid Ashraf Khan and Mehmood Ashraf Khan for Petitioners (in Writ Petition No.11155/2013).

Mian Abbas Ahmad, M. A. Hayat Haraj and Mian Muhammad Shahid Riaz for Petitioners in W.P.No.11666/2013 and W.P. No.1078/2014).

Sheikh Jamshaid Hayat for Petitioners (in W.P.No.12725/2013).

Syed Muzamil Hassan Bokhari for Petitioners (in W.P.No.11960/2013).

Rana Muhammad Asif Saeed for Petitioners (in Writ Petition No.13668/2013 in W.P.No.1594/2014).

Malik Mushtaq Ahmad Ghumb for Petitioners (in W.P.No.1430/2014).

Tipu Sultan Makhdoom and Saeed Ahmad Cheema for Petitioners (in W.P.No.1512/2014).

Syed Muhammad Ali Gillani for Respondents (in Writ Petition No.11155/2013).

Ch. Abdul Sattar Goraya, Muhammad Masud Bilal, Mehr Imtiaz Hussain Mirali and Rana Muhamamd Imran for Respondents (in W.P.No.11666/2013 and W.P.No.1078/2014).

Ch. Sagheer Ahmad for Respondents (in Writ Petition No. 12725/2013).

Syed Riaz ul Hassan Gillani for Respondents (in Writ Petition No. 11960/2013).

Mughees Aslam Malik for Respondents (in Writ Petition No.13668/2013 and W.P.No.1594/2014).

Mahr Irshad Ahmad Arain for Respondents (in W.P.No.1430/2014).

Irshad Arain for Respondents (in W.P.No.1512/2014).

Muhammad Naveed Rana, Standing Counsel for the Federation.

Zafarullah Khan Khakwani, Assistant Advocate General.

Sardar Riaz Karim and Sardar Sarfraz Dogar, Advocates as amicus curiae.

Dates of hearing: 10th, 11th, 12th, 13th, 14th, 17th, 18th and 19th February, 2014.

P L D 2015 Lahore 301

Before Ijaz-ul-Ahsan, J

JEHANGIR MEHMOOD CHEEMA---Petitioner

Versus

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

Writ Petition No.4594 of 2013, decided on 20th March, 2014.

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

----S. 2---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 9---Exit from Pakistan (Control) Rules 2010, R.2(1)(d)---Constitution of Pakistan, Art.199---Constitutional petition---Chairman and directors of a company ("petitioners")---Alleged default in repayment of loan---Pending recovery suit---Placing name of alleged defaulter on Exit Control List (ECL) during pendency of recovery suit---Legality---Right to travel abroad---Scope---Mere fact that there was a claim against a person by a commercial bank, which was yet to be adjudicated upon, was no ground for placing name of such person on the Exit Control List or to deprive him of his fundamental right to travel abroad or restrict his right of free movement---No one could be termed a "defaulter" unless so declared by a court of competent jurisdiction---Courts established under the Banking laws were the sole authority to adjudicate upon the default in cases involving commercial loans---Recovery suit filed by the bank was pending, and no determination had been made by the Banking Court relating to status of petitioners as defaulters---No power vested with the commercial bank, the State Bank of Pakistan or for that matter the Federal Government to declare a person to be in default---Such power solely vested with the courts of competent jurisdiction---Any action on part of either the commercial bank or the State Bank of Pakistan, to determine that a customer was in default of an amount calculated by the bank and thereafter recommending placement of his name on the Exit Control List, was not only violative of settled principles of law but amounted to making the entire system of banking law and banking courts redundant---Petitioners were not given an opportunity of being heard by giving them a notice---Besides petitioners had furnished adequate and sufficient securities to the lending bank to cover the entire alleged claim of the bank, if and when decreed---As such the lending bank was adequately covered in terms of its financial risk---Act of placing name of petitioners on the Exit Control List was without lawful authority and of no legal effect---High Court directed that the name of petitioners should immediately be removed from the Exit Control List---Constitutional petition was allowed accordingly.

Munir Ahmad Bhatti v. Government of Pakistan, Ministry of Interior PLD 2010 Lah. 697; Higher Education Commission through Project Manager v. Sajid Anwar and others 2012 SCMR 186; Hassan Raz through Lawfully Constituted Attorney v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 2 others 2012 CLD 92; Messrs Zurash Industries (Pvt.) Ltd. through Director and 4 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others 2011 CLD 511; Writ Petition No.20730 of 2010 and Writ Petition No.7713 of 2010 ref.

(b) Constitution of Pakistan---

----Arts. 2A, 4, 9, 15 & 25---Right to travel abroad---Scope---Right of a citizen to travel was a Fundamental Right guaranteed by Arts.2A, 4, 9, 15 & 25 of the Constitution

(c) Constitution of Pakistan---

----Part II, Chap.1 [Arts.8 to 28] & Art.199---Fundamental rights, abridgment of---Scope---Fundamental rights were sacred and could not be lightly allowed to be taken away or abridged on the whims of private parties or even the State except in accordance with the law.

Shahid Ikram Siddiqui for Petitioner.

Muhammad Akram Pasha for Respondent No.3.

Miss Shaishta Qaiser Dy. Attorney General for Pakistan.

P L D 2015 Lahore 313

Before Muhammad Qasim Khan, J

Mian MUHAMMAD ALI---Petitioner

versus

CCPO and others---Respondents

Writ Petition No.29840 of 2014, decided on 12th November, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan, Art.199---Constitutional petition---Order passed by Justice of Peace---Implementation of order passed by Ex-officio Justice of Peace---Directions/guidelines by High Court to the Police Department to implement order passed by the Ex-officio Justice of Peace.

Following directions were issued by High Court to all the CPOs/DPOs throughout the Province of Punjab, as guideline, with further direction to get the same implemented by their subordinates:--

(i) Any order passed by a Judicial Officer even in exercise of his jurisdiction on administrative side, must be followed by concerned authorities, if the same otherwise, holds the field;

(ii) When direction by Ex-officio Justice of Peace is passed in the above terms and the information received by the SHO discloses commission of a cognizable offence, he shall proceed under section 154, Cr.P.C. and if the information discloses commission of a non-cognizable offence then the SHO shall proceed under section 155, Cr.P.C;

(iii) If after registration of case in a cognizable offence, concerned police official has information or other intelligence relating to the alleged commission of cognizable offence, on the basis of which he has reason to suspect that alleged offence has not been committed, he shall enter information or other substance in the police station daily diary register and shall also record his reasons for suspecting that such offence has not been committed and shall also inform to the informant, if any, the fact that he will not investigate the case and shall also submit his report to the concerned Magistrate having the jurisdiction to take cognizance of such offence through senior official;

(iv) If the case is registered under section 295-C, P.P.C. then Incharge Police Station shall immediately forward the police file to the S.P. (Investigation), as required under section 156(A), Cr.P.C. and in case of offence of Zina under Offence of Zina (Enforcement of Hudood) Ordinance, he shall also forward the file to S.P concerned for investigation;

(v) Considering alarmingly high ratio of reports/complaints, in recent past, with regard to injuring or defiling place of worship, with intent to insult. the religion of any class (Section 295, P.P.C.), deliberate and malicious acts intended to outrage religions feelings of any class by insulting its religion or religious beliefs (Section 295-A, P.P.C.), as well allegations of, defiling, etc of copy of Holy Quran (Section 295-B, P.P.C.), keeping in mind social atmosphere and religious impact of such complaints in general public irrespective of truthfulness of such allegations, it is recommended that the accusations defined by Sections 295, 295-A and 295-B, P.P.C., must also be probed/inquired into by high rank police officers not below the rank of Superintendent of Police, so as to maintain public confidence on investigation system;

(vi) If after registration of cognizable offence under section 154, Cr.P.C. the concerned police official does not proceed under section 157(2), Cr.P.C. read with rule 24.4 of Police Rules, then he shall proceed for investigation of the case or refer the matter to any other official competent to investigate the same;

(vii) The Investigating Officer after collecting evidence if feels that sufficient material is not available to connect the accused person(s) with commission of crime, he will defer the arrest of nominated accused or release the accused on bond under section 169, Cr.P.C;

(viii) If the Investigating Officer finally concludes that although offence has been committed but there is no iota of evidence available to connect all or any of the accused with commission of crime, he shall submit discharge report before the learned Ilaqa Magistrate, accordingly, but shall proceed against the remaining accused against whom sufficient evidence is available, strictly in accordance with law;

(ix) The Investigating Officer if concludes that no such occurrence has taken place and a false case has been registered and sufficient evidence has been collected in this regard to negate the stance of the complainant, he shall submit cancellation report before the Ilaqa Magistrate for proceeding on the same in accordance with law;

(x) If the Ilaqa Magistrate agrees with cancellation report then the police authorities must proceed against the complainant or the informer under section 182, Cr.P.C.

Mian Muhammad Aslam for Petitioner.

Wali Muhammad Khan, Asstt. A.G. with Muhammad Ameen CCPO.

P L D 2015 Lahore 317

Before Syed Mansoor Ali Shah, J

HIGH COURT BAR ASSOCIATION, BAHAWALPUR---Petitioner

versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. 29415 of 2014, heard on 20th November, 2014.

(a) Constitution of Pakistan---

----Art. 175A(2), (5), (8) & (12)---Judicial Commission of Pakistan Rules, 2010, R. 5(2)---Appointment of judges to the Supreme Court, High Courts and the Federal Shariat Court---Appointment process---Judicial Commission and Parliamentary Committee---Function and powers---Independence of judiciary from the executive---Scope---Constitutional metamorphosis under Art. 175A of the Constitution had taken judicial appointments out of the yoke of individual discretion into a more open and transparent collegial debate and discussion---Both the Judicial Commission ("Commission") and the Parliamentary Committee ("Committee"), which were constitutional selection bodies, rested on such fundamental premise---Constitutionally it was imperative that the collegial constitutional ethos ran through the entire process of judicial appointment---Any part of the appointive process that was devoid of such collegial thought was constitutionally deficient---Architecture of judicial appointments under Art. 175A of the Constitution provided for a two-step appointive process for the judges of the superior judiciary---Name of the candidate required approval by both the constitutional bodies i.e., the Commission and the Committee---Where a name was approved by the Commission but not approved by the Committee, the appointive process came to an end and the candidate was not selected---Only exception to the two-step selection process was when the Committee failed to come up with an opinion within fourteen days from the receipt of the nomination from the Commission---Such two-step (appointment) process required independent assessment and evaluation of the candidate at two stages---Role of the constitutional bodies (i.e. Commission and Committee) was not to judge each other's assessment but was to carry out an independent scrutiny and analysis of the candidate followed by their opinion supported with reasons---Committee, in the present case, did not veto the decision of the Commission, but it simply rejected the candidate on the basis of its own independent assessment---Said two constitutional bodies (i.e. Commission and Committee) were not designed or structured to pry into each other's affairs, decisions or to re-examine the findings of the other---Both said bodies were insulated coaxial autonomous bodies with their own constitutional obligations to perform i.e., to give an independent opinion about the candidate on the basis of the evidence collected by them---Failure of the Committee to come up with an opinion on the candidate within fourteen days, resulted in the acceptance of the nomination of the Commission, showing that opinions of both the constitutional bodies had equal constitutional significance but unless both the opinions were in favour of the candidate, the judicial appointment could not be confirmed, unless of course the Committee failed to give an opinion within the time prescribed---Integral to the constitutional two-step appointment design was the distinct functional domain of the Commission and the Committee---Unless the said two bodies operated in their own spheres, covering their own respective fields, the two-step process lost its constitutional importance---Commission was a high powered collegium comprising 13 members, including eight judges and five other members connected with the judicial branch of the State--- By its very constitution, the Commission indubitably was the most qualified group to assess and evaluate the legal acumen, caliber, legal skills, professional commitment, devotion and professional integrity of the candidate---Committee, on the other hand, with members from the legislative and the executive branches of the State, was there to examine all the other personal antecedents of the candidate--- Said two constitutional bodies functioned in tandem with collaborative congruity, while maintaining their autonomy, and worked towards only one objective i.e., to select the best person for the job--- Autonomous exercise of power by the Commission and Committee which represented the judicial and legislative/executive branches of the State, was a prominent feature of the constitutional construct and was pillared on deeply revered constitutional values of separation of powers and independence of judiciary---While, all the three branches of the State, through the Commission and Committee actively participated in judicial appointments, they simultaneously guarded their boundaries to maintain separation of powers and independence of judiciary by forming independent opinions about the candidates---Such autonomy, openness and transparency in the method of appointing the judges was an essential requirement of sustaining public confidence in the judiciary---Constitutional autonomy and independence of the Commission and Committee required that they carry out their own investigation, inquiry and collect their own independent information and evidence before formulating their opinion---Rule 5(2) of the Judicial Commission of Pakistan Rules, 2010 empowered the Commission to collect any information or record required by it from any person or authority for the purposes of carrying out its functions---Similar power to frame Rules also vested in the Committee under Art.175A(17) of the Constitution---While the two bodies had similar investigative powers, their fields of inquiry were distinct and different---Commission limited itself to the legal antecedents of the candidate, while the Committee was free to examine all the other antecedents of the candidate to ensure a very high standard of propriety, integrity, assiduity and personal conduct---Once a candidate received a nod of approval by the Commission and his candidature was placed before the Committee, denial of approval by the Committee required compelling reasons based on irrefutable evidence against the nominated person, which should irresistibly justify that the nominated person was not fit to be appointed as an Additional Judge.

(b) Constitution of Pakistan---

----Art.2A & 175(3)---Judicial independence---Scope---Two foundations of judicial independence were that every judge was free to decide matters before him in accordance with his assessment of the facts and his understanding of the law, without any improper influences, inducements, or pressures, direct or indirect, from any quarter or for any reason, and that the judiciary was independent of the executive and legislature, and had jurisdiction, directly, or by way of review, over all issues of a judicial nature---Only together did the said two foundations guarantee the independence of the judiciary.

Aharon Barak - The Judge in a Democracy (pp.77-78), by Princeton University Press, 2006 ref.

(c) Constitution of Pakistan---

----Arts. 175A (12), 184(3) & 199---Judicial review---Scope---Appointment of judges to the Supreme Court, High Courts and the Federal Shariat Court---Appointment process---Parliamentary Committee, decision of---Decision of the Parliamentary Committee was subject to judicial review.

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

(d) Constitution of Pakistan ---

----Arts. 175A (8), (12) & 199---Constitutional petition---Additional Judge of the High Court, appointment of---Judicial Commission and Parliamentary Committee---Function and powers---Nomination by the Judicial Commission---Parliamentary Committee not confirming person nominated by Judicial Commission for appointment as Additional Judge of the High Court---Independence of judiciary---Scope---Judicial Commission, in the present case, after an in-depth discussion about the professional caliber, legal acumen, judicial skills, commitment/devotion to duty, and antecedents of the (seven) persons proposed by the Chief Justice of the relevant High Court, unanimously recommended all the seven persons for appointment as Additional Judges of High Court for a period of one year---Nominations of the Judicial Commission were placed before the Parliamentary Committee, which approved all nominations except that of the nominated person in question on the basis that said person did not have significant reported cases in law journals and his few reported cases did not include any important or known case involving question of law or Constitution; that in some of the judgments, cited to his credit, he had appeared as associate counsel while most others were not of significance; that his appearance in Supreme Court was only symbolic; that he did not have the requisite qualifications/experience and professional competence to become a Judge of High Court and that said observations of the Committee were supported by the reports of Intelligence Bureau---Constitutionality---Parliamentary Committee ("Committee") in the present case, instead of carrying out its constitutional obligation and relying on independent evidence to judge the personal antecedents of the nominated person, had instead, re-examined and reviewed the findings of the Judicial Commission ("Commission") by examining the same material and evidence already examined and analyzed by the Commission and by commenting on the legal antecedents of the candidate rather than the personal antecedents which fell within the jurisdictional purview of the Committee---Committee had, therefore, transgressed its constitutional limits and entered into the territory reserved for the Commission, thereby offending the principles of separation of powers and independence of judiciary---Committee did not enjoy the power to review, reverse or substitute the decision of the Commission---Impugned decision of the Committee was, therefore, unconstitutional---Said decision of the Committee, even on merits, showed that the Committee had entered the sphere of interest of the Commission and examined the legal antecedents of the nominated person---Impugned decision of the Committee examined the "competency, qualifications, standing and integrity" of the nominated person, and substantially rested on the intelligence reports and that too regarding professional competence of the nominated person---Intelligence reports received by the Committee appeared to have been preferred over the findings and nomination of the Commission, which was the apex constitutional body to assess the legal and professional competence of a candidate---Regarding merits of Committee's decision, perusal of the record revealed that the number of reported cases of the nominated person were almost the same as the other candidates; that pending cases of the nominated person were more than some of the other candidates; that in almost all the judgments the nominated person appeared as counsel for his clients, however, in three cases the presence of another colleague had also been marked; that none of the judgments showed that the nominated person in question appeared as an "associate counsel," a term coined by the Committee, perhaps to highlight, a baseless assumption, that the nominated person did not singularly conduct such cases---Reasons of the Committee were frail and cosmetic and could not be sustained---Besides, such aspects found little weight before the Commission, which unanimously approved the candidature of the nominated person---Decision of the Committee was not sustainable under the Constitution and the law and was, therefore, set aside to the extent of the nominated person with the direction to the Federal Government to issue notification for the appointment of nominated person, as Additional Judge (of the High Court) on the basis of the nomination of the Commission which stood in the field---Constitutional petition was allowed accordingly.

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

Federation of Pakistan through Secretary Ministry of Law v. Munir Hussain Bhatti and others PLD 2011 SC 752; Sindh High Court Bar Association, Sukkur through President v. Pakistan through Secretary Ministry of Law Parliamentary Affairs and Justice, Islamabad PLD 2012 Sindh 531; Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs and Justice, Islamabad v. Sindh High Court Bar Association through President and another PLD 2012 SC 1067; The Culture of Judicial Independence Conceptual Foundations and Practical Challenges, Edited by Shimon Shetreet and Christopher Forsyth, pp.482-483 ref.

(e) Constitution of Pakistan---

----Arts. 175A(2)(i), (ii), 175A(5)(i), (ii), 175A(6)(i), (ii), 175(7) & 199---Constitution petition--- Appointment of judges to the Supreme Court, High Courts and the Federal Shariat Court--- Appointment process---Chief Justice and senior judge(s) of the court, function of---Scope---Public trustees---Chief Justice of the relevant court was under a constitutional obligation to draw upon the collective wisdom of the senior Judges of the court before finalizing the list of proposed names---Chief Justice and the Senior Judges of the court acted as trustees of the public in discharging such onerous responsibility of proposing the best of the best to be elevated to the bench---Constitutional expectation was that the names put up before the Judicial Commission by the respective Chief Justice would carry the blessing of the collegium of senior Judges of the court (ordinarily the Administrative Committee of the Court)---Stewardship of the Chief Justice and the Senior Judges of the court, required that a more structured succession planning for selection of future judges be put in place, which required that the (High) Court with institutional alertness, regularity and transparency, identified and headhunted potential future judges, well in advance---Constitutional petition was allowed accordingly.

Muhammad Shahzad Shaukat, Ch. Riaz Ahmed, Ch. Ikram Mahmood, Bilal Ijaz, Bakhtawar A. Sufi, Tariq Mehmood Khan and Abdul Ghaffar Bhutto for Petitioner (Petitioner in person in connected Writ Petition No.29172 of 2014).

Aamir Rehman and Nasar Ahmad, Deputy Attorney-General for Pakistan.

Tahir Munir Malik for the Applicant (in C.M. No.2 of 2014).

Hyder Ali, Deputy Secretary, Senate for Respondents.

Mohsin Mumtaz, Research Associate and Civil Judge, Lahore High Court Research Centre (LHCRC).

Date of hearing: 20th November, 2014.

Judges: "must not be confused by complexities, or angered by litigants; they must be unflinching in the face of the truth, free from greed, dissatisfied with superficial solutions, consequential in argumentation, steadfast in the search for the truth of all matters. Immune to praise and temptations."1

P L D 2015 Lahore 336

Before Shezada Mazhar, J

MARIAM BIBI through Abida Parveen---Petitioner

versus

NASEER AHMAD and 2 others---Respondents

Writ Petition No.4291 of 2010, decided on 23rd October, 2014.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Laches---Question of laches could not be considered without considering the claim of each party in the Constitutional petition---Where a significant point of law was involved which attracted a question of public importance; dismissal on technical grounds became insignificant and immaterial---Constitutional petition could not be dismissed on ground of laches without examining the dictates of justice in the claim of each party apart from examination of law and jurisdictional points involved in the case.

Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 and Muhammad Ismail v. Deputy Settlement Commissioner and others NLR 1992 UC 725 rel.

(b) Islamic Law---

----Adoption in Islam---Concept---Concept of "mahrammiyyat"; "rizai" and inheritance in cases of adoption---Relationship of adopted minor with the adoptive parents---Scope---Adoption did not change the relationship of a person with his real parents and siblings, nor did it create a real relationship between him and his adoptive parents, and their children---Practical implications of such view were that all rules which applied between blood relatives were still valid; for example the child would still be a mahram; that an adopted child could not marry his or her real siblings, he or she was also eligible for inheritance from the real parents, and there was no need for hijab between the child and his or her real family---On the other hand, the rules that applied between non-related persons were still valid, for example adoption would not create the mahrammiyyat between the child and the new family---In Islam, the right of inheritance was based on uterine relationship---In cases of adoption, a sort of semi-familial relationship and mehrammiyyat was created between the adopted child and the adoptive family, when such adopted child was below two years of age, and was also breast-fed directly by the adoptive mother for at least a day and a night which created a foster "rizai" relationship and the child was thus mehram to the new family, and there was no need for hijab, nor could the child marry the real children of his adoptive parents---In case of inheritance, however, even a rizai child had no right to the estate of the adoptive parents, although, adoptive parents could write up to one-third of their estate for their adoptive child.

Al-Quran Verse 33:4 rel.

(c) Islamic Law ---

----Adoption in Islam---Concept outlined.

Adoption is allowed in Islam, however, changing the family name of the adopted child is not allowed. If the child was two years old or less and was also breast-fed directly by the adoptive mother for at least a day and a night (or fifteen times consequently), then the child will become mahram to the new family. If the child was not breast-fed as mentioned above then he or she will remain non-mahram to the new family. Adoption in rizai or non-rizai form does not give the adopted child a right to inherit the estate of the adoptive parents; nor does it deprive him or her from inheriting the estate of the real parents. However, the adoptive parents have the option of writing up to one- third of their estate for their adopted child.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for recovery of maintenance allowance for adopted minor---Concept of "constructive guardianship"---Fiduciary obligations and duties of adoptive parents towards minor---Question before the High Court was whether husband/adoptive father was compelled to pay maintenance allowance for minor who had been adopted by the parents during the time of their marriage---Held, that per concept of adoption in Islam, the wife could not claim maintenance from the husband for minor who had no rizai relationship with the adoptive mother; however from the angle of the concept of "constructive guardianship", the petitioner/adoptive mother was entitled to claim maintenance allowance for such adopted minor---High Court observed that if adoptive parents voluntarily undertake, before public at large, to perform the noble task of taking care of a minor, by doing as they not only create a relationship of trust with the minor but also assume the role and status of "constructive guardian" of minor---Trust and constructive guardianship also created a fiduciary obligation/relation between the adopted parents and the minor----Fiduciary was a person in a position of trust, or occupying a position of power and confidence with respect to another, such that he was obliged by various rules of law to act solely in the interest of the other, whose rights he had to protect---Doctrine of "constructive guardianship" has been a part of the law of Guardians and Wards for a long time and such a situation arose where one assumes to act as a guardian or enters upon an infant's estate, who has not been regularly appointed as guardian, which may result from a voluntary assumption of the duties, a void appointment by a court without jurisdiction, or acts performed by one who was by himself and other parties concerned, considered an "accommodation guardian"---Recognition of the need for protection of the infant / minor resulted in giving such a minor an election to treat such a person as a wrongdoer or as a guardian and in the later case a relation similar to that of trustee and cestui que trust was established and the guardian de son tort may be compelled to account as a guardian---In the present case, the minor was adopted by the parents and remained with the adoptive parents for a considerable period of time and the husband/respondent had admitted that the minor was adopted and presented as his daughter before the public-at-large; and therefore for all intents and purposes the acts of the husband/respondent had created relationship of trust and constructive guardianship between the husband and the minor which also implied fiduciary obligations and duties to be performed by the husband/respondent; which inevitably included the maintenance of the minor---High Court held that the respondent/husband was therefore obligated to pay maintenance allowance for his adopted daughter---Impugned orders were set aside, and constitutional petition was allowed, in circumstances.

Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 and Muhammad Ismail v. Deputy Settlement Commissioner and others NLR 1992 UC 725; Al-Quran Verse 33:4; Equity, Trusts and Specific relief, 5th Edn. by BM Gandhi and The Bell Group Ltd (in liq) v. Westpac Banking Corporation (No.9) 70 ACSRI rel.

(e) Fiduciary ----

----Concept---"Fiduciary obligation" and "fiduciary duty"---Scope---Fiduciary was a person in a position of trust, or occupying a position of power and confidence with respect to another; such that he was obliged by various rules of law to act solely in the interest of the other, whose rights he had to protect---Where a person had undertaken to act in the interests of another and where the nature of such relationship, its surrounding circumstances and the obligations attaching to it so required, it would be held to be fiduciary, however, the fact that it is categorized as fiduciary did not mean that all of the obligations arising from it are themselves fiduciary---Unless there were some special circumstances in the relationship, the duties that equity demanded from such fiduciary would be limited to what had been described as the core obligations: not to obtain any unauthorized benefit from the relationship and not to be in a position of conflict, which stem from the fundamental obligation of loyalty---Essence of "fiduciary obligation" is that the fiduciary is precluded from acting in any other way than in the interests of the person to whom the duty to so act is owed and fiduciary obligation was one of undivided loyalty.

Equity, Trusts and Specific Relief, 5th Edn. by BM Gandhi and The Bell Group Ltd (in liq) v. Westpac Banking Corporation (No.9) 70 ACSRI rel.

(f) Words and Phrases ----

----"Fiduciary"---Meaning---Fiduciary was a person in a position of trust, or occupying a position of power and confidence with respect to another; such that he was obliged by various rules of law to act solely in the interest of the other, whose rights he had to protect.

Equity, Trusts and Specific Relief, 5th Edn. by BM Gandhi rel.

Muhammad Idrees Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 1st October, 2014.

P L D 2015 Lahore 345

Before Mahmood Ahmad Bhatti, J

MUHAMMAD TAHIR---Petitioner

versus

PROVINCE OF PUNJAB through District Collector Sahiwal and 2 others---Respondents

Writ Petition No.1996 of 2013, decided on 10th November, 2014.

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

----S. 31---Registration Act (XVI of 1908), S. 6---Constitution of Pakistan, Art. 199---Constitutional petition---Stamp duty, payment of---Notice was issued to the petitioner by Sub-Registrar to pay deficient stamp duty on the instrument---Contention of petitioner was that impugned notice was illegal, without lawful authority and of no legal effect---Validity---Collector of District alone had power to issue notice to make up for the stamp duty after determining the shortfall---Collector might require any person to furnish information either by affidavits or otherwise in order to determine the exact stamp duty payable on an instrument---Collector might also hold an inquiry and record the evidence to arrive at the correct conclusion---Sub-Registrar was not authorized to issue any notice with regard to shortfall in stamp duty on an instrument---Sub-Registrar might lay information with regard to shortfall in stamp duty on an instrument before the Collector---Collector could not delegate his authority to Sub-Registrar---When law specified a thing to be done in a particular manner then it should be done in that manner or not at all---Notice issued by the Sub-Registrar was a nullity and liable to be struck down which was declared to have been passed without lawful authority---Impugned notice being without jurisdiction was set aside---Constitutional petition was accepted in circumstances.

(b) Administration of justice---

----When law specified a thing to be done in a particular manner, it should be done in that manner or not at all.

Abdul Rasheed Sheikh for Petitioner.

Muhammad Javed Saeed Pirzada, A.A.-G.

P L D 2015 Lahore 348

Before Abdus Sattar Asghar, J

ABDUL AZIZ---Petitioner

versus

MUHAMMAD YOUSAF---Respondent

Civil Revision No.224 of 2015, decided on 27th January, 2015.

Oaths Act (X of 1873)---

---S.10---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Administration of special oath---Procedure---Defendant, on the offer made by plaintiff, took oath on the Holy Qur'an, resultantly the suit was dismissed as withdrawn, by Trial Court---Lower Appellate Court set aside the order passed by Trial Court and remanded the matter for decision afresh---Validity---No separate statements regarding offer by plaintiff or acceptance by defendant were recorded by Trial Court rather their signatures were obtained on margins of interim orders sheets---Proceedings before Trial Court lacked due care, caution and solemnity---Trial Court failed to exercise its jurisdiction in accordance with law to ensure safe administration of justice---Lower Appellate Court carefully scrutinizing proceeding of Trial Court rightly set aside the proceedings and order of Trial Court---High Court in exercise of revisional jurisdiction declined to interfere in judgment passed by Lower Appellate Court as there was no legal infirmity or jurisdictional error---Revision was dismissed in circumstances.

Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841 fol.

Muhammad Zaman Mangat for Petitioner.

P L D 2015 Lahore 353

Before Ijaz ul Ahsan, J

TAYYAB HUSSAIN RIZVI and others---Petitioners

versus

FOP and others---Respondents

Writ Petition No. 19708 of 2014, decided on 27th January, 2015.

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

----S. 2---Constitution of Pakistan, Arts. 4, 9, 15 & 199---Constitutional petition---Placing of name on Exit Control List---Pre-requisites---Serving of notice---Opportunity of being heard--- Natural justice and due process, principles of---Evacuee Trust Property Board---Honourary members---Removal of name from Exit Control List---Chairman, Evacuee Trust Property Board allegedly committed irregularities regarding sale/transfer of properties belonging to the Board---Federal Investigation Agency initiated an inquiry into the case on the directions of the Supreme Court, and criminal and civil proceedings were initiated against all the accused---On the request of Federal Investigation Agency names of petitioners, who were honourary members of the Evacuee Trust Property Board, were put on the Exit Control List---Legality---Admittedly, no notice was served on any of the petitioners before placing their names on the Exit Control List---On receipt of request from the Federal Investigating Agency, Federal Government mechanically and without due application of mind placed the names of the petitioners on the Exit Control List---All actions were taken against the petitioners behind their back, without giving them any opportunity of being heard or adhering to the principles of natural justice and due process---Record indicated that presently there was no incriminating material available with the investigating agency---Official of Federal Investigation Agency/ investigation officer of present case, appeared before the High Court and categorically stated that challan against petitioners had been submitted before the Trial Court; that petitioners were appearing in the case before Trial Court and had also been admitted to pre-arrest bail, which had been confirmed; that the loss caused to Evacuee Trust Property Board stood recovered in its entirety; that so far, no incriminating material had been found against the petitioners that might show that they were beneficiaries of the alleged offence that may have been committed by other members of the Board and/or its Ex-Chairman, and that the petitioners were no longer required in any further inquiry or any investigation---Perusal of the challan submitted before Trial Court indicated that the investigating agency during the course of investigation obtained financial analysis report from technical/banking experts, which revealed that all transactions relating to the accounts of the petitioners were found in order and no abnormal transactions were found---Challan further categorically stated that receipt of kickbacks/commission could not be established through banking channels---Neither the Trial Court nor any other court of competent jurisdiction had so far passed any order directing the Federal Government to place the names of the petitioners on the Exit Control List---Specific facts and circumstances of the present case did not furnish sufficient basis to deny the petitioners the benefit of fundamental rights guaranteed to them under the Constitution---Constitutional petition was allowed accordingly and Federal Government was directed to remove names of petitioners from the Exit Control List.

Munir Ahmad Bhatti v. Government of Pakistan, Ministry of Interior PLD 2010 Lah. 697; Higher Education Commission through Project Manager v. Sajid Anwar and others 2012 SCMR 186; Messrs Zurash Industries (Pvt.) Ltd. through Director and 4 others v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others 2001 CLD 511; Lahore High Court W. P. No. 30730-2010 and Lahore High Court W.P. No.7713-2010 ref.

(b) Constitution of Pakistan---

----Chap. 1, Part II [Arts.8 to 28] & Art.199---Constitutional petition---Fundamental right taken away by the executive---Permissibility---Any action as drastic as taking away a fundamental right (by the executive) could not be allowed without adhering to the principles of law, natural justice and due process.

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

----Ss. 2 & 3---Exit from Pakistan (Control) Rules, 2010---Constitution of Pakistan, Arts. 9, 15 & 199---Constitutional petition---Maintainability---Non-adequacy of alternate remedy---Exit Control List---Alleged property scam---Honourary members of Evacuee Trust Property Board ("petitioners")---Names of such members/petitioners were placed on the Exit Control List by the Federal Government on the request of Federal Investigation Agency---Petitioners filed constitutional petition before the High Court for removal of their names from the Exit Control List by contending that the petition was maintainable as alternate remedy of review under S.3 of the Exit from Pakistan (Control) Ordinance, 1981 had become redundant---Validity---Remedy of review, in the facts and circumstances of the present case, had become illusory and redundant---Review application under S.3 of Exit from Pakistan (Control) Ordinance, 1981, would be an exercise in futility considering that the petitioners had been deprived of their fundamental rights guaranteed in Part II, Chap.1 of the Constitution---Any action without sufficient cause depriving or restricting liberty of a citizen could not be taken and the State must jealously safeguard the liberty of its individuals, therefore, the petitioners were not debarred from approaching the High Court in exercise of its constitutional jurisdiction for enforcement of their fundamental rights---Facts of the present case clearly indicated that there was no lawful reason, justification or ground available at present stage to retain the names of the petitioners on the Exit Control List or to deny them their fundamental right of freedom of movement---Even otherwise, the questions raised in the present constitutional petition involved interpretation of the Constitution and enforcement of fundamental rights of the petitioners in the context of S.2 of the Exit from Pakistan (Control) Ordinance, 1981 and the Exit from Pakistan (Control) Rules, 2010---Remedy of review, in such circumstances, did not constitute adequate remedy for the purpose of Art. 199 of the Constitution---Constitutional petition was held to be maintainable accordingly.

Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others PLD 2010 Lah. 230 and Wajid Shamasul Hasan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617 ref.

Syed Tayyab Hussain Rizvi for Petitioners.

Manzar Abbas Khokhar for the Applicant (in C.M. No.3 of 2014).

Syed Zafar Abbas Gillani, Deputy Attorney-General along with Jamil Ahmad Khan, Assistant Director FIA for Pakistan.

P L D 2015 Lahore 363

Before Ijaz-ul-Ahsan and Faisal Zaman Khan, JJ

ANWAR SAEED BUTT---Appellant

versus

PROVINCE OF PUNJAB and others---Respondents

Intra-Court-Appeal No.236 of 2015, decided on 9th February, 2015.

Drugs Act (XXXI of 1976)---

----S. 11---Law Reforms Ordinance (XII of 1972), S.3---Intra court appeal---Report of Provincial Quality Control Board (PQCB)---Registration of FIR---Appellant was aggrieved of proceedings taken by PQCB, on the basis of which FIR was registered and Single Judge of High Court declined to interfere in the matter---Validity---Proceedings taken by PQCB not only fulfilled requirements of law by issuing show cause notices, receiving replies of the same and granting accused persons personal hearing but had also examined and scrutinized documents, reports and statements made before it or produced before it to arrive at their conclusions which were based upon the scope of inquiry/scrutiny provided under S.11 of Drugs Act, 1976, and rules framed thereunder---Board directed that FIR be lodged and subsequently granted permission for prosecution to Drug Inspector in order to fix responsibility, which could involve a number of parties starting from manufacturer and encompassing entire supply chain---Such exercise needed to be undertaken by investigating agency, which had requisite powers, expertise and resources to undertake investigations, collect evidence and build case for prosecution in accordance with law by a court of competent jurisdiction, which would decide question of guilt or innocence of appellant and other accused persons on the basis of evidence produced before it, in accordance with law---Appellant would get ample opportunity to defend his case before Trial Court in accordance with law and all defences available to him, if taken before Trial Court would undergo the process of judicial scrutiny as the case set up by prosecution, once the trial commenced---Order passed by Single Judge of High Court was well reasoned, based upon correct interpretation of principles of law on the subject and did not require any interference---Intra court appeal was dismissed in circumstances.

Waheed Akbar and 2 others v. Government of Punjab, Health Department through Secretary Health, Civil Secretariat, Lahore and 3 others 2002 YLR 1612 rel.

Arshad Nazir Mirza for Appellant.

P L D 2015 Lahore 369

Before Shezada Mazhar, J

NEW CHAUDHRY FIBER through Sale Proprietor---Petitioner

versus

EXCISE AND TAXATION DEPARTMENT through Director and others---Respondents

Writ Petitions Nos.4835, 4193 of 2006, 1842 of 2007 and 5871 of 2005, decided on 28th May, 2014.

Constitution of Pakistan---

----Art. 199---Punjab Finance Act (IX of 1977), Preamble---Constitutional petition---Imposition of professional tax/licensing/ permit/trade fee by local council---Validity---Under the Constitution, imposition of the professional tax/licence fee, etc. vide notification was not permissible---Petitions were accepted.

ICI Pakistan Ltd. v. Tehsil Council, Pind Dadan Khan and others PLD 2007 SC 428; Messrs Pakistan Telecommunication Company Ltd. through General Manager (South) v. Government of the Punjab through Secretary, Excise and Taxation Lahore and another 2002 CLD 1010 and Olympia Textile Mills through Aurengzeb Mannoo Authorised Director v. Province of the Punjab through Secretay and others 2004 MLD 814 rel.

Malik Muhammad Tariq Rajwana for Petitioner.

Rana Muhammad Hussain, A.A.G. for Respondents.

Date of hearing: 28th May, 2014.

P L D 2015 Lahore 370

Before Ijaz-ul-Ahsan and Abid Aziz Sheikh, JJ

GULL-E-RAANA---Petitioner

versus

CHAIRMAN ADMISSION BOARD, UHS and 2 others---Respondents

Writ Petition No.5165 of 2014, decided on 21st May, 2014.

Constitution of Pakistan---

----Art.199---Constitutional petition---Educational institution---Admission to medical college---Merit list, revision of---Petitioner intended to get admission in medical college but on the basis of merit list prepared by authorities, petitioner was given admission to dental college---As a result of rechecking, 2 marks were added to total marks of petitioner, therefore, she claimed revision of merit list---Authorities asserted that there was no likelihood of petitioner's position improving so considerably that she could be entitled to admission in a medical college by addition of 2 marks to her score---Validity---Individual grievance must give way to public good---By creating exception and overriding settled policy, which was within the knowledge of petitioner, the entire process of admission would be disrupted and merit list which had since been finalized would be thrown into disarray for which there was no lawful justification at such stage---Actions of authorities were supported by its prospectus as well as judgments of superior courts---Petition was dismissed in circumstances.

Atiq Rasheed v. University of Helath Sciences and others W.P.No.2400 of 2010; Muhammad Areef Haider v.Chairman Admission Board and others W.P. No.247 of 2014 and Ahmad Abdullah and 62 others v. Government of the Punjab and 3 others PLD 2003 Lah. 752 rel.

Javaid Iqbal Raja for Petitioner.

Imran Muhammad Sarwar for Respondents

P L D 2015 Lahore 375

Before Abdus Sattar Asghar, J

Sh. KHALID MAHMOOD and others---Petitioners

versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No.3343 of 2014, decided on 30th October, 2014.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Striking off right to produce evidence---Wilful default in producing evidence---'Absolute last opportunity' to produce evidence---Non-production of evidence by plaintiff despite six adjournments sought by him for such purpose---Effect---Trial Court had granted plaintiff 'absolute last opportunity' to produce evidence, but when the same was not produced Trial Court by invoking provision of O.XVII, R. 3, C.P.C, struck of plaintiff's right of producing evidence stating that plaintiff had no interest to pursue the matter and any further adjournments without cause would defeat the very object of justice---Plaintiff's contention was that he had fallen seriously ill on the date of his absolute last opportunity to produce evidence, and that Trial Court was obliged to provide him an opportunity to at least record his own statement---Validity---Plaintiff failed to produce evidence despite availing six opportunities for such purpose---Plaintiff's plea of being ill was not supported by any medical evidence---Admittedly neither the plaintiff nor his witnesses were present before the Trial Court on the date of absolute last opportunity to produce evidence---Present case was a case of wilful default in producing evidence---Plaintiff neither made a request to Trial Court to record his own statement nor such request was made in his grounds of appeal before the Appellate Court---Revision was dismissed in circumstances.

Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others PLD 1971 SC 434; Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others PLD 2003 SC 180 and Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637 rel.

Iftikhar Ullah Malik for Petitioners.

P L D 2015 Lahore 380

Before Miss Aalia Neelum, J

SAEED AHMAD and others---Appellants

versus

CHIEF ADMINISTRATOR AUQAF---Respondent

F.A.O. No.375 of 2011, decided on 17th December, 2013.

Punjab Waqf Properties Ordinance (IV of 1979)---

----Ss. 11 & 12---Limitation Act (IX of 1908), S. 5--- Petition for declaration--- Appeal--- Limitation--- Condonation of delay---Applicability---"Sufficient cause"---Wrong advice by counsel---Effect---Contention of petitioners was that due to wrong advice of counsel they could not file appeal within time---Validity---Neither the name of counsel who advised the petitioners nor the date when such advice was tendered had been mentioned in the application for condonation of delay---No affidavit was submitted on behalf of counsel for the petitioners that he had given alleged advice to them---Wrong advice was not sufficient cause for condonation of delay as same was given due to counsel's negligence---Petitioners applied for certified copies of judgment and decree by lapse of 14 days and appeal was filed which was barred by 62 days---Provisions of S.5 of Limitation Act, 1908 had been excluded from the application to the cases covered by special law---Cases under Punjab Waqf Properties Ordinance, 1979 could not be governed by the proceedings or limitation period under S.5 of Limitation Act, 1908---Period of limitation for filing appeal under S.12 of Punjab Waqf Properties Ordinance, 1979 was sixty days---Section 5 of Limitation Act, 1908 was not applicable for condonation of delay when limitation was provided in the special enactment other than Limitation Act, 1908---No sufficient cause for condonation of delay was made out in the present case---Appeal was dismissed in circumstances.

Mst. Mahmood Bequm v. Major Malik Muhammad Ishaq 1985 SCMR 890; Muhammad Manzoor v. Ghulam Murtaza 1994 SCMR 987 and Abdul Ghani v. Ghualm Sarwar PLD 1977 SC 102 rel.

Rafiq Javed Butt for Appellants.

Sh. Anwar-ul-Haq for Respondent.

P L D 2015 Lahore 384

Before Mrs. Ayesha A. Malik, J

Mst. FEROZA BEGUM---Petitioner

versus

ADDITIONAL DISTRICT COLLECTOR and others---Respondents

Writ Petition No.14623 of 2012, decided on 9th December, 2013.

Registration Act (XVI of 1908)

----Ss. 34 & 35---Registration Rules, 1929, R.135---Constitution of Pakistan, Art. 199---Constitutional petition---Scope of enquiry before registration by Registering Officer---Procedure on admission and denial of execution---Scope of powers of Registering Officers in relation to determination of whether the documents sought to be registered had been executed by those purported to have executed them---Scope---Petitioner had executed a gift deed and presented the same before Registering Officer for registration; who refused to register the document on the ground that the document had been presented by the local commission for registration on basis of "Fard Jamabandi" issued by patwari instead of for sale of the property (Fard Bay) and did not contain a note in red ink with regards to the nature of the property---Contention of the petitioner was that under Rule 135 of the Registration Rules, 1929; the Registering Officer was bound to register the gift deed and could not demand the Fard Bay or the note in red ink---Validity---Registration Officer under Ss.34 & 35 of the Registration Act, 1908 could examine any person in his office to determine whether a document had been executed by the persons it was purported to have been executed by---In the present case, the Registering Officer in order to satisfy himself with respect to the identity of the executants required the local commission to produce the latest Fard Bay---Registering Officer objected to the Fard Jamabandi as it did not satisfy him with regards to whether the deed was executed by its purported executants as the Fard Jamabadni was issued for record purposes and not for transfer purposes---Requiring the local commission to produce Fard Bay to ensure that the executants of the gift deed had executed the said gift deed did not in any way amounted to questioning the validity of the document and R.135 of the Registration Rules, 1929 did not prevent the Registering Officer from fulfilling his statutory duty under Ss.34 & 35 of the Registration Act, 1908---Requirement of satisfaction of the Registering Officer may be more stringent in cases where the document was presented by the local commission to protect the interests of the public---Requiring the red note to be affixed on the Fard did not amount to questioning the validity of the title but was only related to the question of valuation of the property for the transfer by a document that had to be registered and hence the same did not fall within the ambit of R.135 of the Registration Rules, 1929---No illegality was therefore committed by the Registering Officer---Constitutional petition was dismissed, in circumstances.

Roshan Din v. Tehsildar and others 2010 YLR 5 distinguished.

Fida Hussain and others v. Abdul Aziz 2005 CLC 180 and Muhammad Hameed v. District Officer (Revenue), Lahore and another PLD 2007 Lah. 490 ref.

Nasir Nazir Butt and Nizam ud Din Khan for Petitioner.

Muhammad Siraj ul Islam Khan, Addl. A.G. along with Naveed ul Islam, Sub-Registrar Samanabad Town, Lahore and Tasawwar Hussain Patwari Halqa for Respondents.

Date of hearing: 19th November, 2013.

P L D 2015 Lahore 391

Before Abad-ur-Rehman Lodhi, J

JAMSHED NAWAZ---Petitioner

versus

SESSIONS JUDGE, RAWALPINDI and 2 others---Respondents

Writ Petition No.4579 of 2010, decided on 17th July, 2014.

(a) Constitution of Pakistan---

----Art. 45---President's power to grant pardon etc.---Words 'any', 'sentence' and 'court'---Omnibus order---Scope---Word used 'any' prior to 'sentence' and 'court' denotes to particular sentence awarded by particular Court or Tribunal---President is competent to grant any stated relief to a deserving person with reference to any particular sentence passed by any Court or Tribunal or other authority by exercising such constitutional domain---Omnibus order granting such relief to whole of the class of condemned prisoners without any specification is not intention of the Constitution.

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

----S. 381 & Sched. V, Form XXXV---Memorandum U.O. No.1(8)/DS(IA-I)1998, dated 17-8-2013, issued by Prime Minister's Office---Constitution of Pakistan, Arts.45 & 199---Constitutional petition---President's power to grant pardon etc.---Warrant of Execution on sentence of death---Delay in execution---Real brother of petitioner was murdered by respondent/convict who was awarded death sentence---Grievance of petitioner was that sentence awarded to respondent/convict had not been executed---Plea raised by authorities was that in view of Memorandum U.O. No.1(8)/DS(IA-I)1998, dated 17-8-2013, issued by Prime Minister's Office, death sentences had been held in abeyance---Validity---High Court declared it as highly non-serious attitude on the part of constitutional authorities to deal with such delicate and serious issue---Exercise of discretion by President under Art.45 of the Constitution was to meet at the highest level requirements of justice and clemency, to afford relief against undue harshness or serious mistake or miscarriage in judicial process---If such general amnesty was provided against judicial decisions, it would amount to attach clog of miscarriage in all judicial process adopted in cases, as a result whereof, accused of murder cases were awarded death sentences---Such was not intention of law and Constitution also---No Presidential Order was in field granting any pardon, reprieve and respite with regard to any death sentence passed by courts of law---High Court declared inaction on the part of authorities in executing death sentence upon respondent/convict, as act without lawful authority having no legal effect---Petition was allowed in circumstances.

Muhammad Ilyas Siddiqi for Petitioner.

Mirza Viqas Rauf, Dy. Attorney-General for Federation.

Khurshd Ahmad Satti, Asstt. Advocate-General Punjab with Tahir Saddique, Asstt. Superintendent Central Jail, Rawalpindi.

P L D 2015 Lahore 396

Before Ch. Muhammad Masood Jahangir, J

MUNIR AHMAD KHAN---Petitioner

versus

BURMA SHELL OIL COMPANY through General Manager and another---Respondents

Civil Revision No.730 of 2012, decided on 23rd December, 2013.

Civil Procedure Code (V of 1908) ---

----S. 12(2) & O. III, R. 2---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Compromise by counsel on behalf of client---Power-of-attorney---Scope---Application for setting aside of compromise decree---Allegation of fraud and defeating the rights of client by counsel---Contention of applicant-defendant was that his counsel was not authorized to enter into compromise with the respondent-plaintiff---Application for setting aside decree was accepted by the Trial Court---Validity---Trial Court did not decree the suit rather directed the parties to appear before the Sub-Registrar for registration of deed with regard to suit property---Impugned order was in no way helpful to the plaintiff as same was not executable in the eye of law---Plaintiff had not produced the counsel to prove the contents of power-of-attorney---Defendant had authorized his counsel only to receive amount on his behalf deposited in his account---Counsel had not been authorized to receive amount from the plaintiff unless same was deposited in the account of defendant---No authority had been conferred on the counsel to settle the dispute in the shape of compromise---Power of attorney should be construed strictly and power/authority which had not been specifically given to any attorney or omitted to flow from contents of document should not be deemed to have been conferred on the said attorney---General terms occurring in such document should be interpreted with reference to the object for which such power of attorney was executed---Statement made by the counsel for compromise was nothing but a deviation from the authority conferred upon him by the defendant---Attorney committed fraud with the court as well as with his client to defeat his rights---No misreading or non-reading had been pointed out by the plaintiff---Revision was dismissed in circumstances.

PLD 1987 Lah. 392; 1987 CLC 813; PLD 1969 Kar. 123; 1995 CLC 1572; 1992 SCMR 1488; PLD 1985 SC 341 and 1991 CLC 67 rel.

Ch. Imtiaz Ahmad Kamboh for Petitioner.

M. Tariq Malik, Advocate for Respondent No.1.

P L D 2015 Lahore 401

Before Shah Khawar, J

Miss FAUZIA IQBAL---Petitioner

versus

FARHAT JAHAN and others---Respondents

Writ Petition No.15 of 2014, decided on 12th August, 2014.

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

----S. 25---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minor---Welfare of minor---Adoption of minor by her paternal aunt---Preference of minor---High Court directed that minor be allowed to accompany her parents for a whole day and determine her preference---Mother filed an application for custody of minor daughter who was given in the care of her paternal aunt which was accepted concurrently---Validity---Preference of minor had not been considered by the courts below---Minor who was 12 years of age was intelligent and capable for performing preference---Minor had preferred to live with respondent-paternal aunt---Minor was in the custody of respondent-paternal aunt ever since she was 5 days old who was handed over to her by her parents with their own free will---Both the parties were not stranger to the minor---Present application for custody of minor had been filed at a belated stage and minor had accustomed to the atmosphere provided by the respondent-paternal aunt---Minor had developed love and affection for the respondent-paternal aunt---Custody of minor children should be claimed promptly which was missing in the present case---Welfare of minor was to be taken into account---Parties were directed to establish cordial relations with each other and to bring up the minor jointly and her parents would be at liberty to visit the minor at respondent's-paternal aunt's place---Constitutional petition was accepted in circumstances.

Arshad Ali Ch. for Petitioner.

Muhammad Ajmal for Respondents Nos. 1 and 2 with minor.

Muhammad Arif Awan, A.A.G.

Date of hearing: 12th August, 2014.

P L D 2015 Lahore 405

Before M. Sohail Iqbal Bhatti, J

MUHAMMAD SAJJAD---Petitioner

versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE and 2 others---Respondents

Writ Petition No.10265 of 2014, decided on 24th July, 2014.

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

----S. 5, Sched---Constitution of Pakistan, Art. 199---Constitutional petition---Dower, recovery of---Scope---Dower---Classification of---Concept---Husband had admitted that he had paid the settled Haq Mehr and no other Haq Mehr was settled at the time of Nikah---Husband had not taken the plea of Ghair Muajjal Haq Mehr in written statement rather he had denied the contents of Nikah Nama---Wife had successfully proved the Nikah Nama by adducing evidence---Dower mentioned in the Nikah Nama was fixed and payable at the time of marriage ceremony---Family Court was a court of ultimate jurisdiction which had power to record evidence and decide the factual controversy---Wife was entitled for the grant of dower in terms of Nikah Nama---Payment of dower was an essential obligation of husband and his failure to pay the same would tantamount to injustice and inequity---Dower should be considered as an effect of marriage contract imposed on the husband as a mark of respect for the subject of contract with wife---Dower could also be considered as an exchange for the usufruct of wife and its payment was necessary as a provision of support to the wife which would depend upon the permanency of matrimonial contract---Classification of dower as prompt and deferred had no sanction behind it except the general practice in muslim society for the convenience of the parties---Concept and wisdom in classification of dower would depend upon the relationship of party and protection of right of woman un-foreseen circumstances without taking away her right of demand of payment of dower till the marriage was not dissolved---Postponement of payment of dower for an indefinite period would not mean that same could not be claimed before the dissolution of marriage---Deferred dower was source of guarantee for a woman against ill-treatment, non-maintenance, desertion or any other abnormality in the family life---Dower whether prompt or deferred was an inalienable right of wife and after consummation same would become her vested right at any time---Pronouncement of Talaq was not a pre-condition for the maintainability of suit for recovery of dower---Constitutional petition was dismissed in limine.

Muhammad Azam v. Additional District Judge and others 2006 YLR 33 and Dr. Sabira Sultana v. Maqsood Sulqari, Additional District and Sessions Judge, Rawalpindi and 2 others 2000 CLC 1384 rel.

(b) Islamic Law---

----"Mehr Muajjal and Mehr Muwajjal"---Scope---Dower would be either "Mehr Muajjal" prompt dower (immediately payable on demand) and "Mehr Muwajjal" deferred dower (payable at a specified time and on consummation of marriage)---Prompt dower was payable at the time of marriage or when same was demanded by the wife---Deferred dower should be considered prompt and should be paid accordingly at any time upon demand if deferment or postponement was not specified---Difference between prompt and deferred dower was that deferred dower was not payable till the arrival of stipulated period whereas prompt dower was payable immediately on demand.

Kitab-al-Fiq Ala-Madhahib-Al-Arbaha by Abdul Rehman Al-Jazairi, Vol 4, p.153; Bidaie-As-Sahaie Fi Tarteeb Ash-Sharai by Allama 'Abu Bakar Ala-ud-Din Al-Qasmi Al-Hanfi, Vol 2, p.288; Holy Qur'an in Verse 124, Sura An-Nisa and Holy Qur'an Sura An-Nisa, V.R.4 rel.

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

----S. 17---Qanun-e-Shahadat (10 of 1984), Preamble---Civil Procedure Code (V of 1908), Preamble---Applicability of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908---Scope---Provisions of Civil Procedure Code, 1908 as well as Qanun-e-Shahadat, 1984 were not applicable in stricto sensu to the proceedings before the Family Court and said court had to regulate its own proceedings in accordance with West Pakistan Family Courts Act, 1964---Family Court could proceed on the premises that every procedure was permissible unless a clear prohibition was found in law---Evidence adduced before the Family Court could not be evaluated and appraised in a manner as it was appreciated in the cases presented under Civil Procedure Code, 1908.

Mst. Shakeela Bibi v. Muhammad Israr and others 2012 MLD 756 rel.

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

----Preamble---Object---Purpose for enacting the special law with regard to family disputes was to advance justice and to avoid technicalities which were hindrance in providing ultimate justice to the parties---West Pakistan Family Courts Act, 1964 had been promulgated for expeditious settlement and disposal of disputes with regard to marriage and other family affairs and special procedure had been provided to achieve such object---West Pakistan Family Courts Act, 1964 had changed the forum, altered the method of trial and empowered the court to grant better reliefs.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Concurrent findings recorded by the courts below could not be interfered in constitutional jurisdiction---Plea which was not raised before the courts below could not be raised for the first time before High Court in constitutional jurisdiction.

Imran Ahmed Jangla for Petitioner.

P L D 2015 Lahore 413

Before Muhammad Qasim Khan and Sikandar Zulqarnain Saleem, JJ

MUHAMMAD REHMAN---Petitioner

versus

DISTRICT POLICE OFFICER and others---Respondents

Writ Petition No.11546 of 2014, heard on 28th August, 2014.

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

----Ss. 561-A, 154 & 173---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Constitution of Pakistan, Art.199---Constitutional jurisdiction---Scope---Qatl-i-amd, rioting armed with deadly weapon, common object and act of terrorism---Quashing of FIR---Grounds---Double jeopardy---Double incrimination---Inherent jurisdiction of High Court---Scope---Contention of accused was that second FIR had been registered with regard to same occurrence---Validity---Versions contained in both the FIRs with regard to initiation of occurrence, motive of occurrence, participation of accused in the occurrence, roles played by the accused during the alleged occurrence were different---Version contained in the present FIR was not an elaboration, explanation or amplification of first FIR and there was no legal bar for registration of second FIR---Grounds for quashing FIR were jurisdictional defect patent on the record; patent violation of some provision of law and that allegations contained in the FIR did not constitute an offence---No ground for quashing of impugned FIR was on record---Accused could not be allowed to avoid ordinary course of trial before competent court of jurisdiction if prima facie offence was made out against him by resorting to constitutional jurisdiction---Quashing of FIR during investigation would amount to throttling the investigation process which was not permissible in law---Quashing the proceedings summarily would amount to interfere in sphere allotted to the executive organ; there might be likelihood of injustice in summary disposal and if case was quashed at initial stage then same would create law and order situation---If conduct and manner of investigation was scrutinized through constitutional jurisdiction then same might amount to interfere in police investigation---High Court could not interfere with the duties of the police by quashing FIR on the ground that such was with regard to same occurrence and case was false---Investigation Officer had to collect the evidence connected with the case and if he found that no offence was committed then he might submit report to the Illaqa Magistrate under S.173, Cr.P.C and if he found otherwise then he had to submit report accordingly---If police was restrained from investigating the matter then same would tantamount to act against the spirit of law---Investigating agency had not only to investigate the matter in a manner to connect the accused with the commission of offence but also to save the innocent persons from the agony of endless investigation and trial---High Court was bound to protect life, liberty, dignity and honour of every citizen---When the statute law was not sufficient to meet a situation then High Court must take extraordinary measures and provide protection to the citizen---Constitutional jurisdiction should be exercised as an aid or safeguard for citizen---Inherent jurisdiction of High Court under S.561-A. Cr.P.C. was neither alternative nor additional and same was to be invoked in the interest of justice when there was no other procedure---Inherent jurisdiction should not be used to circumvent the ordinary course of criminal procedure---Accused had no case to invoke the constitutional jurisdiction of High Court---No material or substance was available for quashment of impugned FIR---Present case was not a case of double jeopardy nor a case of double incrimination---No infirmity was found in the registration of FIR---Constitutional petition was dismissed in circumstances.

Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76 rel.

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

----S. 154---Registration of FIR---Scope---If oral information with regard to commission of a cognizable offence was communicated to an officer incharge of police station then same should be reduced into writing by him or under his direction and be read over to the informant---No line of distinction and demarcation had been made in S.154, Cr.P.C. putting embargo to lay information before police even after the registration of First Information Report with regard to same occurrence.

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

----Ss. 561-A & 154---FIR, quashing of---Grounds---Grounds for quashing FIR were jurisdictional defect patent on the record; patent violation of some provision of law and that allegations contained in the FIR did not constitute an offence.

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

----S. 154---FIR, registration of---False FIR---Remedies---Remedies against registration of false FIR for the accused were to prove innocence before investigating officer; he could approach the competent higher authorities of investigating officer having power vide S.551, Cr.P.C.; Magistrate had power to discharge the accused in case of his innocence and even cognizance of case could be refused by the said Magistrate and case could be cancelled.

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

---S. 4 (l)---Investigation---Object---Investigation of case was to be held with a view to ascertain whether or not an offence had been committed.

(f) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Scope---High Court had no jurisdiction to resolve the disputed question of fact under constitutional jurisdiction.

Malik Bakht Yar Mahdi for Petitioner.

Aurangzeb Khan, A.A.G. for Respondent.

Date of hearing: 28th August, 2014.

P L D 2015 Lahore 421

Before Shahid Bilal Hassan, J

Mst. BHARYAN and others---Appellant

versus

HASSAN MUHAMMAD and others---Respondents

F.A.O. No.234 of 2010, decided on 18th June, 2014.

(a) Suits Valuation Act (VII of 1887)---

----S. 3---Civil Procedure Code (V of 1908), S. 6 & O. VII, R. 10---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Subsequent change in valuation of suit---Effect---Jurisdiction---Civil Judge Class III decreed the suit against which an appeal was filed wherein valuation of the same for the purpose of court fee and jurisdiction was conceded as Rs.564,000---Appellate Court remanded the case to Senior Civil Judge for decision afresh---Validity---Valuation of the suit for the purpose of court fee and jurisdiction at the time of institution of the same was fixed at Rs. 400 and same continued till passing of judgment and decree by the Trial Court---Said valuation was within the pecuniary jurisdiction of Civil Judge Class III as same had been determined by the plaintiffs themselves---Valuation of original suit as determined under S.3 of Suits Valuation Act, 1887 for the purpose of jurisdiction would be the determining factor and not the market value or sale price of subject matter of suit---Where during pendency of suit the value of subject matter was found to be more than pecuniary jurisdiction of the court trying the same, such court would not be deprived from its pecuniary jurisdiction to try the said suit---No objection on pecuniary jurisdiction was raised during pendency of present suit and such objection was made for the first time at appellate stage which would not debar the proceedings conducted by the Civil Judge Class III as provisions of O. VII, R. 10, C.P.C. would apply only where court initially lacked jurisdiction to entertain and try the suit---No objection with regard to proceedings conducted by Civil Judge Class III had been raised at appellate stage and same could not be allowed to be taken at revisional stage---Impugned judgment remanding case to the court having pecuniary jurisdiction for deciding the same on merits did not suffer from any material irregularity and illegality---Judgment and decree passed by Civil Judge Class III would be void and nullity in the eye of law---Appellate Court had rightly remanded the case to the court having pecuniary jurisdiction for rehearing the parties and deciding the suit afresh---No illegality, irregularity or wrong exercise of jurisdiction by the Appellate Court was pointed out---Appeal was dismissed in circumstances.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Mahmood Khan and others v. Agricultural Development Bank of Pakistan and others 1998 CLC 790; Messrs Pakistan Telecommunication Corporation through its Director v. Abdus Sattar and 5 others 1995 MLD 1563; Muhammad v. Mt. Wahab Jan AIR 1935 Pesh. 174; Suba Khan v. Rehmat Din and 2 others 1980 CLC 589; Sankappa Rai and others v. Keraga Pujary and others AIR 1931 Madras 575; Muhammad Suleman v. Habib Bank Limited, Hyderabad 1988 CLC 969; Mahmood Akhtar and another v. Ch. Muhammad Hussain Naqshbandi, Addl. District Judge, Rawalpindi and another 1986 CLC 1451 and Muhammad Naseer and others v. Mustafa and others 2001 SCMR 1258 ref.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Mahmood Khan and others v. Agricultural Development Bank of Pakistan and others 1998 CLC 790; Messrs Pakistan Telecommunication Corporation through its Director v. Abdus Sattar and 5 others 1995 MLD 1563; Muhammad v. Mt. Wahab Jan AIR 1935 Pesh. 174; Suba Khan v. Rehmat Din and 2 others 1980 CLC 589 and Sankappa Rai and others v. Keraga Pujary and others AIR 1931 Mad. 575 distinguished.

Mahmood Akhtar and another v. Ch. Muhammad Hussain Naqshbandi, Addl. District Judge, Rawalpindi and another 1986 CLC 1451; Muhammad Naseer and others v. Mustafa and others 2001 SCMR 1258; Muhammad Ali v. Imdad Hussain 1997 CLC 768; Nasima Faiz's case 1994 MLD 810 and Zahida Parveen v. Muhammad Saleem 2003 CLC 1245 rel.

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

----S. 115---Revision---Scope---Revision had limited scope and only question of illegality, irregularity and wrong exercise of jurisdiction by the courts below had to be seen.

Muhammad Akhtar for Appellants.

Hafiz Rizwan Aziz for Respondents No.1.

P L D 2015 Lahore 426

Before Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ

MUBASHER and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.2377 of 2010 and Murder Referene No.516 of 2010, heard on 14th March, 2014.

(a) Criminal trial---

----Case of two versions---Where case was of two versions, court was required to first analyse the prosecution case in order to ascertain its truthfulness or otherwise.

Ashiq Hussain v. State PLD 1994 SC 879 and Amin Ali v. The State 2011 SCMR 323 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---FIR, showed that except his presence no overt act had been attributed to the accused---No evidence was against said accused, except of recovery of motorcycle, which could not be used against him, as registration number or any other description of said motorcycle, was not mentioned in the F.I.R., or disclosed before the Trial Court---Prosecution had also not specified as to who was driving the said motorcycle, when the assailants decamped from the place of occurrence---Recovery of said motorcycle, was not put to accused while recording his statement under S.342, Cr.P.C.---Prosecution having failed to connect said accused with the commission of crime, appeal to his extent was allowed and he was acquitted of the charge and was released, in circumstances.

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

----S. 342---Examination of accused---Piece of evidence, not put to accused during his examination under S.342, Cr.P.C., could not be used against him for recording his conviction.

Muhammad Shah v. The State 2010 SCMR 1009 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Complainant improved his statement while appearing before the court---Said improvement was made by the complainant to strengthen the prosecution case---Evidence of the complainant being not reliable, it was not safe to maintain the conviction of accused on a capital charge---Said evidence was excluded from consideration---Injured prosecution witness, was an independent witness having no relation with the complainant's side or enmity with accused---Presence of said injured witness, at the spot could not be doubted by any stretch of imagination, which had otherwise been accepted by the defence---Ocular account was substantially supported by the medical evidence---Prosecution failed to prove the motive behind the occurrence---Parties were residents of the same village, and circumstances suggested that something else had happened just prior to the occurrence, which had not been brought on the record---Alleged recovery of pistol 30 bore at the instance of accused, did not advance the case of prosecution, as no crime empty was available at the place of occurrence---Said pistol was not sent to the office of Forensic Science Laboratory, even to verify its working condition---No corroboration could be sought against accused from the alleged recovery of said pistol---Accused failed to substantiate the defence plea---If both the versions i.e. prosecution story and the defence plea were kept in juxtaposition, the prosecution story appeared to be more probable, and carried a ring of truth---Sufficient evidence was available against accused in the form of straightforward and confidence inspiring ocular account, supported by medical evidence---Present was not a case of capital punishment for the reasons; (a) that the motive had not been believed; (b) co-accused had been acquitted; that alleged recovery of 30 bore pistol at the instance of accused, was not helpful for the prosecution---While maintaining the conviction of accused under S.302(b), P.P.C. for murder of the deceased, punishment of death awarded to accused was altered to imprisonment for life---All sentences awarded to accused would run concurrently, with benefit of S.382-B, Cr.P.C.

(e) Criminal trial---

----Witness---Improvements in the statement of complainant---Effect---When a witness would improve his statement to strengthen the prosecution case, and the moment it was concluded that the improvement was made deliberately and with mala fide; the testimony of such witness would not remain reliable.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 rel.

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

----S.302---Murder---Quality of evidence---Quality and not the quantity of the evidence which would settle the guilt or innocence of accused; and conviction could be based on testimony of a single witness, even in a murder case.

Farooq Khan v. The State 2008 SCMR 917 rel.

(g) Criminal trial---

----Motive---Prosecution was bound to prove its case on its own and mere lapse on the part of accused, in not controverting the motive, would not advance the case of prosecution.

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

----Art. 121---Burden of proof---When an accused would take a specific plea, the burden to prove the same would lie on accused.

(i) Criminal trial---

----Sentence---Benefit of doubt---Extenuating circumstance---Accused was entitled for the benefit of any doubt as an extenuating circumstance, while deciding question of sentence.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 rel.

Malik Amjad Pervaiz for Appellants.

Mirza Abid Majeed, Deputy Prosecutor General for the State.

Ch. Amjad Saeed for the Complainant.

Date of hearing: 14th March, 2014.

P L D 2015 Lahore 445

Before Mehmood Maqbool Bajwa, J

MUHAMMAD BAKHSH (DECEASED) through Legal Heirs and others---Petitioners

versus

AMANULLAH (DECEASED) through Legal Heirs---Respondent

Civil Revision No.2719 of 2010, heard on 1st April, 2014.

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

---S. 42---Civil Procedure Code (V of 1908), S.11---Suit for declaration---Res judicata, principle of---Applicability---Judicial dignity, doctrine of---Scope---Suit was decreed by the Trial Court but same was dismissed by the Appellate Court while applying the principle of res judicata---Validity---Defendants remained associated with all the previous proceedings with the plaintiffs claiming interest in the suit property---Defendant was one of the plaintiffs in the earlier round of litigation---Principle of res judicata was applicable not only between the parties on opposite side but also between the parties on the same side i.e. co-plaintiffs and co-defendants---Ultimate decision of the matter had to be looked into to determine whether principle of res judicata was applicable---Conflict of interest was most important and vital ingredient to apply principle of res judicata---Matter directly and subsequently in both the suits was distinct---Entitlement of defendants was different but relief sought for was one and the same and there was no conflict of interest between the parties---Principle of res judicata was not attracted in the present case---Bald statement would not be sufficient to prove the stance taken by the party---Eligibility and entitlement of plaintiffs had already been decided finally---Doctrine of "judicial dignity" was another ground to non-suit the plaintiffs---Revision was dismissed in circumstances.

Robert Hercules Skinner v. R.M. Skinner and others AIR 1937 Lah. 537; Riaz Ahmad v.Dr. Amtul Hmeed Koser and 8 othrs 1996 CLC 678; Ahmad Nasrullah and others v. Shahadat Ali and others 2011 YLR 2302; A.R. Khan v. P.N. Borga through Legal Heir PLD 1987 SC 107; Mst. Nargis Khalida alias Khalida Nargis v. Bashir Ahmad and 6 others 2008 MLD 265 and Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 ref.

Mst. Nargis Khalida alias Khalida Nargis v. Bashir Ahmad and 6 others 2008 MLD 265; Abdul Majeed and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146; Asif Jah Siddiqui v. Government of Sindh and others PLD 1983 SC 46 and Muhammad Ajmal Khan v. Lt. Col. Muhammad Shafaat and 40 others PLD 1976 Lah. 396 rel.

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

----S. 11---Res judicata, pre-conditions of---Scope---Pre-conditions for res judicata were that there must be conflict of interest between such co-plaintiffs or defendants in the earlier suit; decision on conflict of interest was necessary in order to grant relief to the parties on the same side and conflict of interest must have been finally decided.

Munni Bibi and another v. Tirloki Nath and others AIR 1931 PC 114; Kishun Parsad Panday and others v. Durga Parsad Thakur and others AIR 1931 PC 231; Maung Sein Donq v. Ma pan Nyun and others AIR 1932 PC 161; Chandu Lal Agarwala and another v. Khalil-ur-Rehman and others AIR 1950 PC 17=PLD 1949 PC 239), Syed Muhammad Saadat Ali Khan v. Mirza Wiquar Ali Beg and others AIR 1943 PC 115; Allah Bakhs v. Taggia and another PLD 1953 Lah. 1991; Fazal Dad and others v. Ahmed Ali and others PLD 1960 Lah.106; Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344 and Habibullah Jan and 3 others v. Muhammad Hassan Khan and 6 others PLD 1991 SC 93 rel.

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

----Art. 114---Estoppel---Scope---Estoppel was a bar or impediment which would preclude denial of certain fact or state of facts because of that individual's previous conduct---Estoppel would prevent a suitor to raise inconsistent things in successive action---Party could not be permitted to contradict its earlier stand unless able to suggest that earlier version was result of misunderstanding or was due to actual or constructive fraudulent act of adversary.

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

----S. 23---Agreement to finance litigation---Scope---Section 23 of Contract Act, 1872 did not declare every agreement to finance litigation against public policy---Only such agreement should be declared against public policy which could be termed as "champertous"---Such agreements were required to be examined in order to determine legal status of the same and if found unconscionable, unjust or inequitable then same could be held to be illegal being against public policy.

Riaz Ahmad v. Dr. Amtul Hameed Koser and 8 othrs 1996 CLC 678 rel.

Mian Shah Abbas for Petitioners.

Allah Wassaya Malik for Respondent.

Date of hearing: 1st April,2014.

P L D 2015 Lahore 457

Before Ijaz Ul Ahsan, J

MUHAMMAD FAROOQ WAJID---Appellant

versus

FPSC and others---Respondents

Civil Appeal No.553 of 2010, decided on 2nd February, 2015.

Federal Public Service Commission Ordinance (XLV of 1977) ---

----S. 7(3)(d)---Competitive Examination (CSS) Rules, 2009, R. 7(iii)---Re-evaluation of answer books---Bar---Scope---Plea of appellant was that he had performed better than the marks which had been awarded to him---Appellant filed a representation as well as review which were rejected by the Public Service Commission on the ground that the Rules did not provide for re-evaluation of the answer sheets---Validity---Competitive examination was a time bound process and Public Service Commission was required to make its recommendations within a specified time---If permission to re-examine answer books was granted to candidates from different examiners, it would be an unending exercise and would make it impossible for the Public Service Commission to prepare a final list for making its recommendations---Appellant was granted a personal hearing and his grievances were heard by the Public Service Commission---Re-examination of answer books had been prohibited by Competitive Examination Rules, 2009 under any circumstances---Marking of papers was not an exact science and a paper sent to a different examiner might result more or less marks than those awarded by original examiner---Most papers were marked by one examiner or one set of examiners and it would neither be fair nor just to send one or more papers for re-evaluation to a different examiner or set of examiners---Such exercise would open up a pandora box and would be unfair to other candidates whose papers had been marked by the same examiner or set of examiners and had qualified to get to the next stage---No specific assertion or allegation with regard to mode and manner in which answer books were checked was on record---Permitting re-evaluation of answer sheets in absence of any material on record indicating error, incompetence of examiners or mala fide on their part could not only disruptive for the process but same would also hamper the ability of Public Service Commission to perform its functions---Answer sheets of appellant were examined on his request by the Commission and there was no error or discrepancy in counting or totalling the marks awarded by the examiner---Appeal was dismissed in circumstances.

Muhammad Usman Qayyum v. University of Engineering and Technology, Lahore and 5 others 2004 SCMR 606; Farmanullah Khan v. Controller of Examination, Karachi University 2010 MLD 85; Ms.Shakeela v. University of Peshawar through Vice-Chancellor and another PLD 2003 Pesh.69 and Ali Us-man Faiz and 8 others v. Chairman BISE and 5 others 2009 MLD 42 ref.

Muhammad Usman Qayyum v. University of Engineering and Technology, Lahore and 5 others 2004 SCMR 606; Farmanullah Khan v. Controller of Examination, Karachi University 2010 MLD 85; Ms.Shakeela v. University of Peshawar through Vice-Chancellor and another PLD 2003 Pesh.69 and Ali Usman Faiz and 8 others vs. Chairman BISE and 5 others 2009 MLD 42 distinguished

Abdul Hakeem Hashmi v. Federal Public Service Commission and others 2002 SCMR 504 and Farooq Ahmad v. Chairman, Federal Public Service Commission, Islamabad 1998 SCMR 336 rel.

Abdul Wajid Malik and A.D. Naseem for Appellant.

Imran Aziz, D.A.G.

P L D 2015 Lahore 463

Before Syed Mansoor Ali Shah, J

Syed RIAZ ALI ZAIDI---Petitioner

versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and 3 others---Respondents

Writ Petition No.5406 of 2011, decided on 10th February, 2015.

(a) Constitution of Pakistan---

----Preamble & Arts. 175, 2A & 208---Independence of judiciary---Separation of powers between organs of the State---Nature and scope of relation between organs of the State---Scope and nature of judicial self-governance---Constitutional protection of financial autonomy and budgetary independence of the Superior Judiciary---Purpose, and necessity of institutional independence of the judicial branch---Concept described.

Delhi Judicial Service Association (Regd.) v. Government of Nct of Delhi and another [2000(88)DLT 710]; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 PLC (C.S.) 137; Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375; Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government of the Punjab through Chief Secretary and another PLD 1992 Lah. 527; Messrs Nusrat Elahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others 1991 MLD 2546; The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges - Shimon Shetreet and Christopher Forsyth, P.480 (foot note #10); Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Amanullah Khan Yousufzai and others v. Federation of Pakistan through Law Secretary and others PLD 2011 Kar 451; Articles 121 and 122 of the Constitution. Also see Accounting Policies and Procedures Manual, Auditor General of Pakistan P.2.20; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Government of Sindh through Chief Secretary to Government of Sindh Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Accountant-General, Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522; Abdul Rasheed and others v. Province of Sindh and others 2011 PLC (C.S.) 926; The Mt. Scopus International Standards of Judicial Independence: The innovative concepts and the formulation of a consensus in a legal culture of diversity by Shimon Shetreet. The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges, P.475; Judicial Independence: The Contemporary Debate Shimon Shetreet and Jules Deschense eds. 1985. (P.76 Aharon Barak - The Judge in a Democracy); What is happening to Judicial Independence; Aharon Barak-The Judge in a Democracy) PP.77 and 80; New Law Journal 30-9-1994 at 1306 and 1308; The Business of Judging-Tom Bingham, P.57 and The Culture of Judicial Independence - conceptual foundations and practical approaches - Shimon Shetreet & Christopher Forsyth, PP.20-21 rel.

(b) Constitution of Pakistan---

----Preamble & Arts. 121, 175, 208, 122, 2A, & 199---High Court (Lahore) Rules and Orders, Vol. V, Chap. 10, Part C, R. 17---Constitutional protection of the financial and budgetary autonomy of High Court---Terms and conditions of service of officers and employees of the Superior Courts---Expenditure charged upon Provincial Consolidated Fund---Judicial independence and separation of powers---Scope---Federal Government vide an order of the Prime Minister had allowed an increase in the pay of staff of Superior Judiciary across the Country by granting an enhancement in the judicial and ad hoc allowance, and the same was duly approved and sanctioned by the Lahore High Court in terms of the High Court (Lahore) Rules and Orders, Volume-V---Provincial Government did not honour the said budgetary approval for enhancement of the said allowances---Question before High Court was whether administrative expenses of the High Court, which under the Constitution were an expenditure charged on the Provincial Consolidated Fund under Arts. 121 & 122 of the Constitution, once approved and claimed by the High Court, could be ignored or turned down by the Provincial Legislature or the Provincial Government---Held, that judicial independence was composed of at least five aspects: first non-political appointments to a court; second guaranteed tenure and salary; third executive and legislative interference with court proceedings or office holders; fourth budgetary autonomy; and fifth; administrative autonomy---Constitutionalism of financial autonomy of the judiciary found its roots in the preambular constitutional values which stated that "the principles of democracy...shall be fully observed" and that "independence of judiciary shall be fully secured."---Such values were echoed more substantively in the Objectives Resolution when read with Art.2A of the Constitution and Art.175 of the Constitution reaffirmed independence of judiciary on the basis of separation of powers---Article 208 of the Constitution provided administrative independence and insularity to the judicial branch by empowering the judiciary to appoint its officers and servants on their own terms and conditions of employment and this constituted a separate cadre of judicial administrative staff, distinct from the staff and officers of the Executive or the Legislative Branches of the State---Administrative expenses of High Court formed part of the charged expenditure, which for the purpose of the Province found explanation under Arts.121 & 122 of the Constitution---Provincial charged expenditure was an expenditure met from the Provincial Consolidated Fund, which may be discussed but not submitted to vote in the Provincial Assembly---Financial and budgetary management of the High Court in terms of administrative expenses if left to the Executive or the Legislature would generate a public perception of dependence of the judiciary on the other two branches of the State, which would weaken public confidence reposed in the judicial system and cripple the embodiment of democracy under the Constitution---While judicial independence meant that a judge must decide individual cases free from any extraneous influence, it also required that the judicial branch exercised control and influence over administrative penumbra immediately surrounding the judicial process---Pivotal to independence of the judicial branch was its financial autonomy, not in the sense of constitutionally protected salary structure but also the financial autonomy to budget for the administrative costs for effectively running and managing the judicial branch---Articles 121, 122, 175 & 208 of the Constitution provided construct for self-judicial governance, which rested on foundational pillars like separation of powers, administrative independence and autonomy---High Court (Lahore) Rules and Orders Volume-V regulated appointment and conditions of service of the High Court Establishment and in terms of Art.208 of the Constitution, the only constitutional requirement was that the Governor must approve the said Rules, which was a one-off act---Rule 17 of Chap.10, Part C of the High Court (Lahore) Rules and Orders Volume-V provided that the servants and officers of the High Court shall be entitled to pay and allowances as fixed by the Chief Justice from time to time; and said Rule did not mean that the decision of the Chief Justice fixing pay and allowances of the members of the High Court Establishment would be subjected to the approval of the Governor, which approval was only to the promulgation of the said Rules and not to the decisions of the Chief Justice issued from time to time under the said Rules---Any interpretation of Art.208 of the Constitution and R.17 of the High Court (Lahore) Rules and Orders Vol.-V subjecting decision of the Chief Justice to approval of the Governor would be constitutionally impermissible and would shake the foundational assumption of judicial independence---Art.121(b) of the Constitution extended budgetary and financial control to High Court so that the institution could draw up its own administrative expenses---Administrative expenses of the High Court did not require assent of the Provincial Assembly and expenditure proposed by the High Court therefore, could not be turned down, reduced, or altered by the Executive or the Legislature and no provision existed in the Constitution that authorized the Provincial Executive to delay, reconsider, negotiate, alter or reduce the administrative expenses of High Court which passed as charged expenditure---Once High Court budged its administrative expenses including remuneration (inclusive of any increase for a particular year) the same was to be simply provided in the Annual Budget Statement by the Provincial Government and placed before the Provincial Assembly for discussion and information only---Constitution proceeded on an assumption that the judiciary while determining its administrative expenses would act with the institutional maturity and sagacity it possesses---Financial independence of the judiciary must rest on a professionally structured budgetary system within the judiciary and required meticulous fiscal and budgetary controls with a consultative and deliberative methodology for budget preparation---Consultation with the key stakeholders before finalizing the administrative expenses of the High Court was an unwritten constitutional assumption---Articles 121 & 122 of the Constitution required that the High Court while exercising its budgetary discretion would proceed with fiscal prudence and circumspection---Financial autonomy and budgetary independence in the hands of the High Court had to be nurtured with highest sense of responsibility, level-headedness, judiciousness, transparency and financial foresight and the budgetary process of the High Court must be a collaborative exercise, where comments, suggestions and inputs are solicited from the provincial government, financial experts and other relevant institutions, in order to examine, appreciate and gauge the fiscal and economic conditions and realities of the Province before finalizing the charged expenditure---High Court directed the Provincial Government to release arrears of the enhancement of the judicial and ad hoc allowance to the officers and servants of the High Court after completion of constitutional requirements with effect from the date when such enhancement was made---Constitutional petition was allowed, in circumstances.

Delhi Judicial Service Association (Regd.) v. Government of Nct of Delhi and another [2000(88)DLT 710]; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad 1997 PLC (C.S.) 137; Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375; Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government of the Punjab through Chief Secretary and another PLD 1992 Lah. 527; Messrs Nusrat Elahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others 1991 MLD 2546; The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges - Shimon Shetreet and Christopher Forsyth, P.480 (foot note #10); Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Amanullah Khan Yousufzai and others v. Federation of Pakistan through Law Secretary and others PLD 2011 Kar 451; Articles 121 and 122 of the Constitution. Also see Accounting Policies and Procedures Manual, Auditor General of Pakistan P.2.20; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Government of Sindh through Chief Secretary to Government of Sindh Karachi and others v. Sharaf Faridi and others PLD 1994 SC 105; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Accountant-General, Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522; Abdul Rasheed and others v. Province of Sindh and others 2011 PLC (C.S.) 926; The Mt. Scopus International Standards of Judicial independence: The innovative concepts and the formulation of a consensus in a legal culture of diversity by Shimon Shetreet. The Culture of Judicial Independence-Conceptual Foundations and Practical Challenges, P.475; Judicial Independence: The Contemporary Debate Shimon Shetreet and Jules Deschense eds. 1985. (See P.76 Aharon Barak - The Judge in a Democracy); What is happening to Judicial Independence; Aharon Barak-The Judge in a Democracy) PP.77 and 80; New Law Journal 30-9-1994 at 1306 and 1308; The Business of Judging-Tom Bingham, P.57; The Culture of Judicial Independence - conceptual foundations and practical approaches - Shimon Shetreet & Christopher Forsyth, PP.20-21 rel.

(c) Constitution of Pakistan---

----Arts. 208 & 175---High Court (Lahore) Rules and Order Vol.-V Chap.10, Part C, Rr. 17 & 22---Officers and Servants of Courts---Rules providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employment---Interpretation of Art.208 of the Constitution---Approval of the Governor---Scope---Article 208 of the Constitution provided that the High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of the officers and servants of the Court and for their terms and conditions of employment---Rules that regulated the appointments and conditions of service of the establishment had been provided under Chap.10, Part "C" of the High Court (Lahore) Rules and Orders Vol.V and R.17 of the said chapter provided that members of the High Court Establishment that were its officers and servants, shall be entitled to pay (including special pay) and allowances as fixed by the Chief Justice, from time to time, provided the Rules are approved by the Governor as mandated by the Constitution under Art.208---Only constitutional requirement under the said Art.208 was that the Governor must approve the said rules, which was a one-off act and in line with such constitutional dictate, R.17 of the High Court (Lahore) Rules and Orders Vol.V also required that the Rules must be approved by the Governor---Said Rule does not mean that the decision of the Chief Justice fixing the pay and allowances of the members of the High Court Establishment would be subjected to the approval of the Governor---Approval of the Governor was to the promulgation of the Rules (which was a one-off act) and not to the decisions of the Chief Justice issued from time to time under the said Rules---Any interpretation subjecting the decision of the Chief Justice to the approval of the Governor would be constitutionally impermissible and would shake the foundational assumption of judicial independence, on which rested the democratic architecture of the Constitution---High Court observed that R.22, Chap. 10, Part C of the High Court (Lahore) Rules and Orders Vol.V was simply for the efficient administrative governance of the High Court and the said Rule adopted principles provided under the Civil Service Rules (Punjab) regarding salaries, allowances, leave and pension and in no manner converted or changed the status of the officers and servants of the High Court into that of civil servants or in any manner subordinated the authority of the High Court in such matters to that of the Executive Branch---Article 208 of the Constitution, therefore had no relevance in terms of grant of increase in judicial allowance in the context of the Governor---Governor was not the approving authority regarding the terms and conditions of service of officers and servants of the High Court and in fact the Governor was to simply grant approval to the promulgation of the Rules, which was once in the life time of the said Rules , unless the same were amended---Financial control regarding administrative expenses including remuneration of staff of the High Court vested with the High Court---Grant of an increase in the judicial allowance of officers of the High Court could only be acknowledged as a partial payment of allowances approved by the High Court under Art.208 of the Constitution read with R.17 of Chap.10, Part C of the High Court (Lahore) Rules and Orders Vol.V.

Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government of the Punjab through Chief Secretary and another PLD 1992 Lah. 527 rel.

FOR PETITIONER

Mian Bilal Bashir assisted by Raja Tasawer Iqbal.

FOR RESPONDENTS

Mian Tariq Ahmed, Deputy Attorney General for Pakistan.

Muhammad Hanif Khatana, Advocate-General, Punjab.

Anwaar Hussain, Asstt. Advocate-General, Punjab.

Tariq Mirza, Dy. Secretary, Finance Department, Government of the Punjab, Lahore.

Nadeem Riaz Malik, Section Officer, Finance Department, Government of the Punjab, Lahore.

AMICI CURIAE.

Tanvir Ali Agha, former Auditor General of Pakistan and Waqqar Ahmad Mir:

ASSISTED BY:

Qaisar Abbas and Mohsin Mumtaz, Civil Judges/Research Officers, Lahore High Court Research Centre.

Dates of hearing: 20th, 21st, January, 9th and 10th February, 2015.

P L D 2015 Lahore 500

Before Ali Baqar Najafi, J

Mst. SHAMIM AKHTAR---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, GUJRANWALA and another---Respondents

Writ Petition No.25711 of 2013, decided on 23rd February, 2015.

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

----S. 5---Constitution of Pakistan, Art.199---Constitutional petition---DNA test---Principle---Petitioner was wedded with respondent and out of the wedlock one son was born---Respondent entered into second marriage and relations between parties became strained---Petitioner filed suit for recovery of maintenance allowance for herself and for her son---Respondent resisted maintenance on the plea that son did not belong to him and asked for DNA test---Lower Appellate Court directed the parties to appear in hospital for DNA test---Validity---DNA profile test is always conducted with the consent of the person concerned and is normally applied in criminal cases---No such consent was available either by mother or by child himself---Where consent was not given, DNA test could not be conducted, though adverse inference might be drawn by Court of such refusal---High Court declared that there was no need for DNA test and set aside order passed by Lower Appellate Court---Petition was allowed in circumstances.

Aman Ullah v. The State PLD 2009 SC 542; Khizar Hayat v. Additional District Judge, Kabirwala and 2 others PLD 2010 Lah. 422; and Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others 2013 SCMR 203 rel.

Mr. Shahid Nawaz Langrial for the Petitioner.

Syed Imran Haider for respondent No.2.

P L D 2015 Lahore 504

Before Ali Baqar Najafi, J

Mst. SAMREEN BIBI---Petitioner

versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No.11470 of 2013, decided on 4th March, 2015.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Wear and tear of dowry articles, determination of---Mode---No general formula was available under which wear and tear of dowry articles could be exactly determined---Wear and tear of dowry articles would depend upon nature and quality of dowry articles, its use by the lady, relationship level between the spouses during the marriage, retaliatory attitude after separation, period during which dowry articles remained under use of the lady and period after which the claim of dowry articles was made etc.---Wear and tear for electronic items were different than furniture---Life span of kitchen utensils was greater than decoration pieces of dining room---Seasonal clothes of daily use had less value than those used on special occasions---Tentative assessment should not be presumptive but had to be based on subjective analysis of dowry articles on physical verification based on visuals which could be procured through different modes like on-line video calling, video footages, photographs, clippings, factual report by a local commission or employing modern information technology---Present market value of dowry articles could be ascertained through traders/shop keepers dealing with second hand articles---Local commission could be appointed at the time of filing suit for recovery of dowry articles to conduct a physical verification of dowry articles which might help the court to arrive at just conclusion---Family Court could employ any other mode for assessment but the same could not be based on its sole discretion unsupported by facts on grounds---None of the said modes was adopted by the Family Court---Impugned judgments and decrees passed by both the courts below were set aside--Family Court was directed to assess the tentative value of dowry articles by adopting any of the modes---Constitutional petition was accepted in circumstances.

Muhammad Qadeer Khan for Petitioner.

Rai Muhammad Tufail Khan Kharal for Respondent No.3.

P L D 2015 Lahore 507

Before Ijaz ul Ahsan and Faisal Zaman Khan, JJ

Messrs MILLAT TRACTORS LTD. through Deputy General Manager---Appellant

versus

MUHAMMAD MUNIR AHMAD and 3 others---Respondents

I.C.A. No.918 of 2010 in Writ Petition No.8786 of 2006, heard on 1st October, 2014.

Constitution of Pakistan---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Constitutional petition---Maintainability---Private company---Appellant was a private company and aggrieved of order passed by Single Judge of High Court whereby demand made by the company to respondent was declared illegal---Validity---Appellant was a private company and could not be regarded as a person performing functions in connection with affairs of Federation or Province---No writ in exercise of powers of Art.199 of the Constitution could be issued against the company---Division Bench of High Court set aside judgment passed by Single Judge---Intra-Court appeal was allowed in circumstances.

Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others PLD 1975 SC 1974 and Abdul Wahab and others v. Habib Bank Ltd. and others 2014 PLC (C.S.) 393 ref.

Hasham Ahmad Khan for Appellant.

Ch. Muhammad Khalid Dogar and Waqas Qadeer Dar, Dy. Attorney General for Respondents.

Date of hearing: 1st October, 2014.

P L D 2015 Lahore 512

Before Muhammad Anwaarul Haq, J

SAFDAR ALI alias SONI---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.2 of 2011, heard on 20th March, 2015.

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

----S. 376---Criminal Procedure Code (V of 1898), Ss.544-A & 545---Rape---Appreciation of evidence---Sentence, reduction in---Imposition of fine---Compensation, award of---Scope---Accused was convicted by Trial Court for committing rape with a minor girl of 5-6 years of age and sentenced to imprisonment for twenty five years---Accused opted not to challenge conviction and sought suitable reduction in sentence---Validity---High Court reduced sentence of imprisonment from twenty five years awarded to accused under S.376, P.P.C. to imprisonment for ten years, with benefit of S.382-B, Cr.P.C.---High Court maintained sentence of fine and further detention in default thereof, however in case payment of fine High Court directed that the amount would be paid to victim through her mother as compensation under S.545, Cr.P.C.---Amount of compensation (fine) in shape of Defence Saving Certificates was handed over to complainant (mother of victim)---Appeal was dismissed accordingly.

1995 SCMR 1679; Bahadar Ali v. The State 2002 SCMR 93 and Anwar Ali Shah v. The State 1992 SCMR 1224 fol.

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

----Ss. 376 & 377---Criminal Procedure Code (V of 1898), S.544-A---Victim of sexual offences---Compensation---Scope---Comparative study of foreign laws on the subject---In modern era, penal laws of various countries provide substantive punishments for offence of rape---Recently a tendency has developed to provide compensatory relief to victims of rape for their rehabilitation and revival in society---Under S.544-A, Cr.P.C. words 'hurt', 'injury', 'mental anguish' and 'psychological damage caused to victim' are key words qualifying victims of rape and sodomy entitled for compensation under S.544-A, Cr.P.C.

PLD 2004 SC 89; 1995 SCMR 1679; 1992 SCMR 549 and The State v. Rab Nawaz and another PLD 1974 SC 87 rel.

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

----Ss. 376 & 377---Criminal Procedure Code (V of 1898), Ss.544-A, 435, 439, 439-A & 561-A---Rape and un-natural sexual offence---Non-imposing of compensation---Validity---In case no order for payment of compensation to victim of crime has been passed by Trial Court, victim can invoke provisions under Ss.435, 439 & 439-A, Cr.P.C. before appellate forums as well as before High Court under S.561-A, Cr.P.C. for award of compensation under S.544-A, Cr.P.C. while examining correctness or propriety of sentence awarded by Trial Court.

Mokha v. Zulfiqar and 9 others PLD 1978 SC 10 fol.

(d) Criminal trial---

----Sentence, award of---Principles---While dealing with question of sentence approach of court should be dynamic and court has to find ways and means to guarantee complete dispensation of justice to all stakeholders of criminal case, as most of them are unaware of legal technicalities, flaws/lacunae left in investigation and defects in conduct of their trial---People only see result announced by court and form their opinion about prevailing system of administration of justice---Question of sentence after conviction of accused in a criminal trial essentially requires serious consideration of court to meet ends of justice and court should answer it keeping in view facts and circumstances of each case, subject of course, to penal provisions under relevant law and sentence provided thereunder without causing any prejudice to either side in any manner whatsoever---Benefiting and proper approach of Trial Court in such regard can substantially reduce volume of litigation as appropriate sentence can satisfy victims of offence and also the convicted accused who can be saved to knock the doors of appellate forums for redress of their grievance.

Abdul Khaliq Safrani and Muhammad Saad Bin Ghazi for Appellant.

Mirza Abid Majeed, Deputy Prosecutor General for the State.

Date of hearing: 20th March, 2015.

P L D 2015 Lahore 522

Before Syed Mansoor Ali Shah, Mrs. Ayesha A. Malik and Muhammad Yawar Ali, JJ

Ms. IMRANA TIWANA and others---Petitioners

versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No.7955 of 2015, decided on 17th April, 2015.

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

----Ss. 5 & 12---Constitution of Pakistan. Arts.140A & 199---Public interest litigation---Maintainability---Policy matter---Signal Free Corridor Project ("Project") proposed and initiated by Lahore Development Authority ("LDA")---Environmental Impact Assessment---Objection of Provincial Government that the project in question was a policy matter, which should be left to the Executive, and the High Court should not interfere in such matters---Validity---High Court, in the present case, was not examining the merits or demerits of the project in question or questioning the justification and rationality for having such a project---Instead, High Court was simply concerned with the constitutionality and legality of the environmental process adopted to review the Environmental Impact Assessment filed by Lahore Development Authority ("LDA")---High Court was also concerned with the legal character of the regulator (Provincial Environmental Protection Agency) and the constitutional role of LDA, the proponent of the project, in the light of Art. 140A of the Constitution---High Court was not examining the policy dimension of the project or its technical viability, therefore, the court was neither assuming the role of the Provincial Environmental Protection Agency or stepping into the shoes of the consultant who had prepared the Environmental Impact Assessment or the concerned members of the civil society who, inter alia, opposed the project on the ground of misplaced, inappropriate and irrational allocation of public funds---Objection of Provincial Government was rejected accordingly and present public interest litigation under Art. 199 of the Constitution was held to be maintainable.

(b) Constitution of Pakistan ---

----Art. 199---Public interest litigation---Scope---Nature of proceedings---Proceedings of public interest were inquisitorial, rather than adversarial---Public interest litigation, therefore, was not about personal interests and benefits but about public interest and welfare.

(c) Constitution of Pakistan---

----Arts. 9 & 14---Punjab Environmental Protection Act (XXXIV of 1997), S.5---Protection of environment, right of---Scope---Right of protection of environment emerged from the right to life, liberty and dignity under Arts. 9 & 14 of the Constitution---Environment (natural and built) was the overarching habitat and was intrinsic to survival and integral to quality of life---Protection of the environment was, therefore, an inalienable right and perhaps more fundamental than the other rights.

Principles of the Stockholm Declaration, 1972, (Principles 1, 2 & 8) ref.

(d) Constitution of Pakistan---

----Arts. 2A, 9 & 14---Punjab Environmental Protection Act (XXXIV of 1997), Ss.5 & 12---Environmental justice---Scope---Environment and its protection---Integral to the right to life and dignity---Environmental justice rested on right to life (Art. 9 of the Constitution), meaning a right to a healthier and cleaner environment---Environmental justice was an amalgam of the constitutional principles of democracy, equality, social, economic and political justice guaranteed under the Objectives Resolution, the fundamental right to life, liberty and human dignity (Art.14 of the Constitution) which included the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine---Environment and its protection were central in the scheme of constitutional rights---Right to environment that was not harmful to the health or well-being of the people and an environment that protected the present and future generations was an essential part of political and social justice and even more integral to the right to life and dignity under our Constitution.

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

(e) Punjab Environmental Protection Act (XXXIV of 1997)---

----Ss. 5 & 8 & Preamble---Constitution of Pakistan, Arts. 9 & 14---Provincial Environmental Protection Agency ("EPA")---Functions and autonomy---Environmental Protection Agency (EPA) was a body corporate and architecturally an independent provincial environmental regulator---Environmental Protection Agency (EPA) under the law acted as a trustee and a watchdog with the responsibility of protection, conservation, rehabilitation and improvement of the environment, for the prevention and control of pollution, and promotion of sustainable development on behalf of the people---Environmental Protection Agency (EPA) acted as a guardian of the people and the nature, in protecting the environment of the community---Environmental Protection Agency (EPA) had the onerous responsibility to safeguard the constitutional value of social justice which included environmental principles of sustainable development, precautionary principle, inter and intra-generational equity and public trust doctrine and the fundamental rights to life and dignity---To achieve such objective EPA needed to be fiercely independent and autonomous in reality---Environmental Protection Agency as an environmental regulator had to regulate public, as well as, the private sector---Neutrality, autonomy and independence were foundational to the existence of any robust, dynamic and proactive EPA and were mandatory to actualize its avowed objectives under the law.

(f) Civil service ---

----Public post, appointment to---Public advertisement---Necessity---Transparency and merit---Mode of appointment or qualification for appointment to a pubic post not provided under any Act or Regulations---Any such public post had to be filled through public advertisement to ensure transparency and merit.

Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Division Islamabad and others PLD 2015 SC 6; Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676; Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132 and Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 rel.

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

----S. 5 (2)---Constitution of Pakistan, Art. 199---Public interest litigation---Director General of Provincial Environmental Protection Agency ("EPA"), post of---Mode of appointment and qualification---Mode of appointment or the qualifications of the Director General, EPA were not provided under the Punjab Environmental Protection Act, 1997, or the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000---Post of the Director General had to be filled through initial recruitment as it was not a cadre post---Director General actually embodied EPA, hence, professional qualifications, relevant experience, open and transparent recruitment process, was necessary, in selecting and appointing the Director General---Facts of the present case showed that the current Director General was a serving civil servant appointed through promotion as a Director General, who had an LLB degree to his credit besides some unrelated experience in various departments of the Provincial Government---High Court declared that current Director General, EPA, did not have technical/professional environmental qualifications or requisite experience, and he had not been appointed through an open and transparent advertisement process---Constitutional petition was allowed accordingly.

(h) Theory---

----"Regulatory capture", theory of---Definition and meaning---Regulatory capture was defined as the capture of 'regulators' by the regulated---Regulatory capture was the process by which regulatory agencies eventually came to be dominated by the very industries they were charged with regulating---Term regulatory capture referred to the subversion of regulatory agencies by the firms they regulated---Regulatory capture happened when a regulatory agency, formed to act in the public's interest, eventually acted in ways that benefitted the industry it was supposed to be regulating, rather than the public---Public interest agencies that came to be controlled by the industry they were charged with regulating were known as captured agencies---Regulatory capture was an example of gamekeeper turned poacher; in other words, the interests the agency set out to protect were ignored in favour of the regulated industry's interests.

Richard Posner Preventing Regulatory Capture by Daniel Carpenter; http://www.investopedia.com/terms/r/regulatory-capture. asp#ixzz3ZzUspoha and Regulatory Capture:Causes and Effects", by G.MacMahon at www.iipe.org/conference 2002/papers/ MeMahon.pdf http://www.iipe.org/conference 2002/papers/ MeMahon.pdf ref.

(i) Punjab Environmental Protection Act (XXXIV of 1997)--

----Ss. 5, 8, 12 & Preamble---Constitution of Pakistan. Arts.9, 14 & 199---Public interest litigation---Environmental justice---Regulatory capture, theory of applicability---Signal Free Corridor Project ("Project") proposed and initiated by Lahore Development Authority ("LDA")---Constitutionality and legality---Environmental Impact Assessment---Provincial Environmental Protection Agency ("EPA") and its Director General working as delegates of the Provincial Government---Effect---Mockery of environmental justice and fraud on the rights of the people---Contention of petitioners that Provincial Environmental Protection Agency ("EPA"), in its current form was not operating as an autonomous agency but as an attached department of the Provincial Government; that Director General of "EPA" hurriedly granted the Environmental Impact Assessment ("EIA") approval for the project in question, where after the Lahore Development Authority ("LDA") mobilized the works and illegally commenced the construction of the project---Validity---Provincial Environmental Protection Agency ("EPA"), in its current form, was operating as a delegate of the Provincial Government, and functioning as a government agency rather than an independent environmental regulator---Any regulator, which was controlled and dictated by the parties it regulated (in the present case the Provincial Government), was in fact under regulatory capture and its decisions and approvals had no credence, legal value or moral authority and amounted to fraud on the rights of the people and a mockery of environmental justice---Section 5 of Punjab Environmental Protection Act, 1997, stated that EPA shall be headed by the Director General, implying that there were other members that constituted the said Agency, but in fact, presently EPA was one person i.e., the Director General (DG)---Current Director General, EPA, was a serving civil servant appointed through promotion to the post of Director General---Post of Director General, EPA, was not a cadre post and could not be filled through promotion, besides a person who was already an employee of the Provincial Government could not be appointed to head a statutory regulator, which under the law was to grant approval of projects proposed by the Provincial Government---Environmental Impact Assessment ("EIA") approval for the project in question proposed by LDA, an Authority headed by the Provincial Chief Minister and controlled by other members of the Provincial Government could not possibly be refused by the Director General, EPA, who was himself a grade 20 employee of the same government, which also controlled his appointment and transfer---Provincial Environmental Protection Agency ("EPA"), in such circumstances could not perform its assigned role under Punjab Environmental Protection Act, 1997, hence, the entire exercise of EIA approval was a sham unless and until, the post of Director General, EPA, was filled through an open and transparent recruitment process keeping in view the required qualifications for the post---Impugned approval of Director General, EPA for the project in question was a result of dictation and non-application of mind and hence bad in law---High Court set aside the Environmental Impact Assessment (EIA) approval for the project in question and struck down the initiation of the said project by LDA as being unconstitutional---Constitutional petition was allowed accordingly.

(j) Punjab Environmental Protection Act (XXXIV of 1997)--

----Ss. 5, 8, 12 & Preamble --- Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, Reglns. 10(5), 11---Constitution of Pakistan, Arts.9, 14 & 199---Public interest litigation---Environmental justice---Signal Free Corridor Project ("Project") proposed and initiated by Lahore Development Authority ("LDA")---Constitutionality and legality---Environmental Impact Assessment (EIA)---Even though the Lahore Development Authority ("LDA") had submitted an Environmental Impact Assessment (EIA) for approval with the Provincial Environmental Protection Agency (EPA), it did not think it important to wait for the approval before commencing the project in question---Environmental Impact Assessment (EIA) was prepared and submitted in the present case as a routine requirement and not for any meaningful feedback---Provincial Environmental Protection Agency (EPA) was under an obligation to either confirm that the EIA was complete for purposes of initiation of the review process, or require the proponent to submit additional information or return the EIA to the proponent for revision clearly listing the points requiring further study and discussion---Provincial Environmental Protection Agency (EPA) had to pass a speaking order explaining the option exercised by it---No such order has been passed in the present case---Environmental Impact Assessment (EIA) approval passed by the Provincial Environmental Protection Agency (EPA) in the present case did not refer to or address a single objection raised by the public during public participation---Cosmetic public participation exercise conducted by the EPA amounted to playing a fraud on the people---Under the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, the exercise of public participation required EPA to solicit the views of other concerned government agencies which included departments, attached departments, development authorities, local authority, company or a body corporate established or controlled by the Government---No such exercise was undertaken in the present case---Section 5(6) of the Punjab Environmental Protection Act, 1997, provided that for the assistance of the EPA in the discharge of its functions, the Government shall establish Advisory Committees for various sectors and appoint as members, eminent representatives of the relevant sector, educational institutions, research institutes and non-governmental organizations---No such Advisory Committee had so far been established by the Government with regard to the project in question---Regulation 11(2) of Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, mandated that the EPA was to consult a Committee of Experts constituted for the purpose and may also solicit the views of the sectoral Advisory Committees constituted by the Government---However in the present case no such Committee of Experts was constituted---Approval for the project in question was granted by the DG, EPA, in contravention of Regln.11(4) of the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, as he did not consider the comments of the public and the government agencies received during the public hearing, the report of the committee of experts, and the report of the sectoral advisory committee---High Court struck down the initiation of the Signal Free Corridor Project by LDA as being unconstitutional and set-aside the Environmental Impact Assessment (EIA) approval for the project by declaring that the same was granted by DG, EPA, in violation of the right to life, dignity of the citizenry besides being offensive to environmental justice and due process protected under Arts.4 & 10A of the Constitution---High Court directed the National Accountability Bureau (NAB) to initiate an inquiry against the Director General, Provincial Environmental Protection Agency (EPA) for failing to comply with the law and to account for the loss of public money---Constitutional petition was allowed accordingly.

(k) Punjab Environmental Protection Act (XXXIV of 1997)--

----S. 2(xi)---Environmental Impact Assessment---Scope and significance ---Environmental Impact Assessment was as essential a tool as the feasibility report at the planning stage; it was an information-gathering exercise carried out by the developer and other bodies, which enabled a local planning authority to understand the environmental effects of a development before deciding whether or not to grant planning permission for that proposal---Innovation behind the formal Environmental Impact Assessment process was the systematic use of the best objective sources of information and the emphasis on the use of the best techniques to gather such information---Ideal Environmental Impact Assessment would involve a totally bias free collection of information produced in a form, which would be coherent, sound and complete; it should then allow the local planning authority and members of the public to scrutinize the proposal, assess the weight of predicted effects and suggest modifications or mitigation (or refusal) where appropriate---With time Environmental Impact Assessment has emerged as an important international and domestic legal technique for integrating environmental considerations into socio-economic development and decision-making processes---Environmental Impact Assessment described a process, which produced a statement to be used in guiding decision-making, with several related functions; first, it should provide decision-makers with information on the environmental consequences of proposed activities and, in some cases, programmes and policies, and their alternatives; second, it required decisions to be influenced by such information, and third, it provided a mechanism for ensuring the participation of potentially affected persons in the decision-making process.

Environmental Law-Stuart Beel & McGillivary. 5th edition. p.347 and Principles of International "Environmental Law. Philippe Sands. Vol. 1, p.579 ref.

(l) Punjab Environmental Protection Act (XXXIV of 1997)--

----S. 2(xi)---Constitution of Pakistan, Arts. 9 & 14---Environmental Impact Assessment---Purpose---Purpose of Environmental Impact Assessment was to ensure that decisions were taken following timely and sound advice; to encourage and provide opportunities for public consultation in environmental aspects of proposals before decisions were made; to ensure that proponents of proposals took primary responsibility for protection of the environment relating to their proposals, and carried the costs necessary for environmental protection; to facilitate environmentally sound proposals by minimizing adverse impacts and maximizing benefits to the community, and to provide a basis for ongoing environmental management, including through the results of monitoring---Through the tool of an Environmental Impact Assessment, the Environmental Protection Agency regulated and protected the environment and as a result the life, health, dignity and well-being of the people who inhabited the environment---Environmental Assessment was, therefore, a substantive exercise as every step in such process cautiously guarded the fundamental rights of the people.

(m) Punjab Environmental Protection Act (XXXIV of 1997)--

----S. 2(xi)---Environmental Impact Assessment---Essential constituents to be present in an Environmental Impact Assessment listed.

Environmental Impact Assessment was not complete and could not be accepted for review by the Environmental Protection Agency unless it clearly provided for the following essential constituents:

i. collection of data, ii. prediction of qualitative and quantitative impacts.

iii. comparison of alternatives.

iv. evaluation of preventive, mitigatory and compensatory measures.

v. formulation of environmental management and training plans and monitoring arrangements.

(n) Punjab Environmental Protection Act (XXXIV of 1997)--

----S. 2 (xi) --- Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, Regln. 10(5)---Environmental Impact Assessment---Public consultation and participation---Objectives and significance of public consultation and participation at the time of Environmental Impact Assessment listed.

Objectives of public consultation and participation at the time of Environmental Impact Assessment included:

(i) informing the stakeholders about what was proposed;

(ii) providing an opportunity for those otherwise unrepresented to present their views and values, therefore allowing more sensitive consideration of mitigation measures and trade- offs;

(iii) providing those involved with planning the proposal with an opportunity to ensure that the benefits of the proposal were maximised and that no major impacts had been overlooked;

(iv) providing an opportunity for the public to influence project design in a positive manner;

(v) obtaining local and traditional knowledge (corrective and creative), before decision making;

(vi) increasing public confidence in the proponent, reviewers and decision-makers;

(vii) providing better transparency and accountability in decision making;

(viii) reducing conflict through the early identification of contentious issues, and working through them to find acceptable solutions;

(ix) creating a sense of ownership of the proposal in the minds of the stakeholders; and

(x) developing proposals which were truly sustainable.

More intangible benefits flowed from public involvement as participants saw that their ideas could help to improve projects. People gained confidence and self-esteem through taking part in the process, and perceptions were expanded by meeting and exchanging views with people who had different values and ideas.

Review of Environmental Impact Assessment was not inter parties or an adversarial exercise but were inquisitorial proceeding carried out under the public gaze and open to public scrutiny---Such review process was incomplete without effective public participation and technical advice of the experts.

Public participation also included solicitation of comments from concerned government agencies. Public participation, which was akin to environmental democracy, and was an integral part of Environmental Impact Assessment and affirmed that public was the direct beneficiary of the environment and must be heard. Objections to a project raised during the public hearing had to be addressed by the Environmental Protection Agency through a speaking order.

(o) Constitution of Pakistan ---

----Art. 140A---Local Government system---Meaning, significance and autonomy---Term "Local Government" literally meant management of the local affairs by the people of the locality---System of local government was based on the principle that the local problems and needs could best be addressed by the people of the locality rather than by central or State governments---Local government was a prime element of democracy and demonstrated the intrinsic values of democracy, irrespective of the services it provided---Government was truly representative when all types of people could take part---Local government level offered the closest thing to widespread consultation and participation---On a political dimension, the operational freedom to fulfil local needs and aspirations with necessary popular mandate was the hallmark of local government, it was thus a variant of democracy---Creation of the third tier of government (i.e. Local Government) based on constitutional directive to devolve political, administrative and financial responsibility and authority to the elected representatives of the local government promoted Pakistan's constitutional vision of a federalist State---Political significance of a local government was further underlined when under Art.140A(2) of the Constitution, which commanded that the elections to the local government, like the national and provincial assemblies, shall be held by the Election Commission of Pakistan---Electoral recognition added constitutional weightage to the political importance of the local government and firmly established local government as a third tier of government in Pakistan's political landscape---Without a clear vesting of certain core functions with the local government it would be unable to play its role for democracy to deepen, for diverse opinions and legitimate interests to be taken into account, for service delivery to be closer to and held accountable by the people, for institutions to build capacity and expertise etc.---Local government institutions had to be empowered and given definite functions; they were not envisioned by Art. 140A of the Constitution to be an agent or an underling of provincial governments but a distinct and empowered third tier of elected governance.

(p) Constitution of Pakistan ---

----Art. 140A---History of Local Governments in Pakistan traced.

Cheema, A., A. Q. Khan and R. Myerson (2015, forthcoming). "Breaking the Countercyclical Pattern of Local Democracy in Pakistan¨ in J. P. Faguet (eds) Is Decentralization Good for Development: Perspective from Academics and Policymakers, Oxford University Press; Cheema, A., A. I. Khwaja, and A. Qadir (2006) "Local Government Reform in Pakistan: Context, Content, and Causes," in Bardhan, P. and D. Mookherjee (eds.) Decentralization and Local Governance in Developing Countries: A Comparative Perspective, MIT Press; Cheema, A. (2012) "Devolution of Power Plan 2000¨ in A. Jalal (eds.) The Oxford Companion to Pakistani History, OUP; Pash, H. and A. G. Pasha (1990) Local Government Administration in Pakistan, AERC, Karachi; Manning, N., D. Porter, J. Charlton, M. Cyan and Z. Hasnain (2003) Devolution in Pakistan: Preparing for Service Delivery Improvements, World Bank, Pakistan; Rizvi, S. A. (1976) Changing Patterns of Local Government in Pakistan, Pakistan Historical Society, Karachi; Aziz, D. (2011) "Bureaucracy v. the People," The News December 13, 2011: Acemoglu, D. and J. A. Robinson (2012). Why Nations Fail: The Origins of Power, Prosperity and Poverty, Profile Books, Tocqueville, A. (1835) Democracy in America, 2003 edition, Penguin and Heller, P. (2001). "Moving the State: The Politics of Democratic Decentralization in Kerala, South Africa, and Porto Alegre,¨ Politics and Society, 29(1); Ghatak, M. and M. Ghatak (2002). "Recent Reforms in the Panchayat System in West Bengal: Toward Greater Participatory Governance?¨ Economic and Political Weekly, January, 5; Sambur, B (2009). "The Great Transformation of Political Islam in Turkey: The Case of Justice and Development Party and Erdogan,¨ European Journal of Economics and Political Studies, 2(2) ref.

(q) Constitution of Pakistan ---

----Art. 140A---Local Government system---History and features of Local Government systems in foreign jurisdictions (India and South Africa) traced.

Durga Das Basu, Commentary on the Constitution of India, Vol-8, p.8591. 8th Edn. (reprint 2012); De Visser, Jaap (2002) "Powers of Local Government" 17 SA Public Law 223 and De Visser, Jaap (2005) Developmental Local Government (Antwerpen, Oxford: Intersentia) 125ff. as quoted in, "DEFINING PROVINCIAL AND LOCAL GOVERNMENT POWERS AND FUNCTIONS: THE MANAGEMENT OF CONCURRENCY by Professor Nico Steytler Mr Yonatan Fessha available at http://p09.opennetworks. co.za/ldphs. org.za/publications/ publications-by-theme/local-government-in-south-africa/powers-of-local-government/ Defining%20 Provincial%20and %20Local%20 Govern-ment% 20Powers %20and%20Functions% 20The %20Management %20of%20Concurrency%20-2005.pdf ref.

(r) Words and phrases ---

----"Federalism"---Meaning.

The Free Dictionary by Farlex and Making Our Democracy Work-Stephen Breyer, pp.122-123 ref.

(s) Constitution of Pakistan ---

----Art.140A---Local Government system---Decentralization of powers---Administrative, fiscal and political decentralization---Meaning---Local Government system was established and empowered through the process of decentralization---Logic behind decentralization was not just about weakening the central authority, nor was it about preferring local elites to central authority, but it was fundamentally about making governance at the local level more responsive to the felt needs of the large majority of the population---Different dimensions of decentralization were; administrative decentralization- how responsibilities and authorities for policies and decisions were shared between levels of government and how these were tuned into allocative outcomes; fiscal decentralization - the assignment of expenditures, revenues and borrowing amongst different levels of governments; political decentralization - how the voice of citizens was integrated into policy decisions and how civil society could hold authorities and officials accountable at different levels of government.

Pranab Bardhan. Decentralization of Governance and Development. Journal of Economic Perspectives. Vol.16., Number 4, Fall 2002. pp.185-205 ref.

(t) Constitution of Pakistan ---

----Art.140A---Local Government system---Decentralization of powers---Modes of decentralization---Deconcentration, Delegation and Devolution---Meaning and distinction---Deconcentration was the shallowest form of decentralization and the least ambitious level of decentralization, where responsibilities were transferred to an administrative unit of the central government that was spatially closer to the population where service was to be provided, usually a field or regional office---Delegation was an intermediate level of decentralization, where some authority and responsibilities were transferred to a lower level of government, but there was a principal-agent relationship between the central and sub-national government in question, with the agent remaining accountable to the principal---Devolution was the deepest form and most ambitious form of decentralization, where the central government devolved responsibility, authority, and accountability to sub-national governments with some degree of political autonomy.

(u) Words and phrases---

----"Devolve"---Meaning.

Corpus Juris Secondum Volume 26A and Blacks Law Dictionary 9th Edn. ref.

(v) Constitution of Pakistan ---

----Arts. 140A, 2A, 9, 14 & 17(2)---Local Government system---Devolution of powers from Provincial to Local Government---Autonomy of Local Government---Scope---Dilution/restriction of powers of Local Government---Effect---Devolution signified transfer of power from the provincial government to the local government---Scope and nature of power, the "core functions," to be transferred could be by the Constitution itself or left to the discretion of the provincial legislature---Complying with the constitutional mandate under Art.140A of the Constitution, once the trinitarian devolution i.e., political, administrative and financial, took place, the elected local government enjoyed the autonomy and independence to exercise such powers to the exclusion of other executive functionaries---Any interference or dilution of such power by the provincial government or any other authority, without there being any change in the legislative design, which drew its power under Art.140A, would render a democratically elected local government totally otiose---Any interference in the political, administrative and financial space of the Local Government system, would be undemocratic and not in step with the constitutional vision---Any provincial law that thwarted or restricted the elected local government from performing its functions under the law offended Art.17(2) of the Constitution---When clearly delineated devolved powers of the local government were in any manner abridged, diluted or impeded by the provincial government or through its instrumentalities, it offended the fundamental rights to life, dignity and political participation besides offending constitutional principles of political, economic and social justice guaranteed to the citizens under the Objectives Resolution---Article 140A of the Constitution suggested that the assignment of functions to the local tier remained the prerogative of the provincial legislature subject to the limitation that local tier could not be stripped off a core bundle of functions over which it was empowered to exercise self-government---Diluting the core bundle beyond a minimum threshold through centralization was tantamount to stripping local governments of their basic functionality as a tier of government---While local government legislation came under the purview of the provincial legislature, but it did not make provincial governments the "controlling authority" of local governments---Although local governments would have to function within the substantive framework established by the provincial legislature, but any such framework established by the provincial legislature had to conform to Art. 140A of the Constitution, and, hence, devolve a meaningful set of core local functions to comply with Art. 140A of the Constitution---Provincial legislatures had to ensure that local governments had been provided a meaningful core bundle of functions on which provincial departments did not have overlapping jurisdictions---Failure to do so would limit the local governments' ability to act as institutions of self-government, which was not consistent with Art. 140A of the Constitution.

(w) Principles--

----Subsidiarity", principle of---Meaning, significance and scope.

Chantal Millon-Delsol, L'etat subsidiaire 13 (1992); The Free Dictionary by farlex; Mark Friesen. Subsidiarity and Federalism: Anold concept with contemporary relevance for political society. Federal Governance: A Graduate Journal of Theory and Politics (2003); Let Them Eat Beans, Austin AM-Stateman, 2002 at A15 and Subsidiarty as a principle of governance-beyond Devolution. Robert K. Vischer. INDIANA Law Review Vol.35:103 ref.

(x) Lahore Development Authority Act (XXX of 1975)---

----Ss.6, 13, 13A, 14, 15, 16, 18, 20, 23, 24, 28, 34A, 34B, 35, 38 & 46---Punjab Local Government Act (XVIII of 2013), S 87---Constitution of Pakistan. Arts.9, 14, 17, 25, 32, 37(i), 140A & 199---Public interest litigation---Signal Free Corridor Project ("Project") proposed and initiated by Lahore Development Authority ("LDA")---Constitutionality and legality---Lahore Development Authority ("LDA") usurping and encroaching upon the powers and authority devolved on to the elected representatives of the Local Government---Section 13(5) of Lahore Development Authority Act, 1975, specifically provided that a "Government Agency" (which includes a local government) shall not prepare a planning or development scheme within the Area except with the concurrence of LDA---Similarly, LDA had the power to prepare housing, building infrastructure services, commercial and semi-commercial projects (section 13A) or do land use classification (section 14), make master plan (section 14A ), or give direction to the local government to execute a scheme in consultation with LDA, or take over and maintain any of the works and services in that area, to provide amenity in relation to the land which in the opinion of the LDA ought to be provided and to enforce regulations on behalf of LDA (section 15)---Lahore Development Authority (LDA) also had the powers to execute schemes (section 16); to declare any locality within an area to be controlled area and issue such directions for the prevention of haphazard growth or encroachments and unauthorized construction in such area (section 18); to remove sources of pollution (section 20); to impose betterment fee (sections 23 & 24); to impose rates, fees, surcharges or other charges and fines (section 28); to extension time and cancel approved schemes (sections 34A and 34B); to punish offenders (section 35); to convert property for different use (section 38)---Lahore Development Authority Act, 1975, was to override other laws (section 46)---All such powers provided to LDA under the Lahore Development Authority Act, 1975, usurped the responsibilities and authorities devolved to the local government under Punjab Local Government Act , 2013, and offended the constitutional mandate of Art.140A of the Constitution---Lahore Development Authority (LDA) could not assume jurisdiction or interfere in the political, administrative and financial powers devolved on to the local government through Punjab Local Government Act, 2013, under Article 140A of the Constitution---High Court declared that the powers and functions of LDA under Ss.6, 13, 13A, 14, 15, 16, 18, 20, 23, 24, 28, 34A, 34B, 35, 38 & 46 of Lahore Development Authority Act, 1975, to the extent that they usurped, trumped, encroached, diluted and abridged the powers, responsibility and authority devolved on to the elected representatives of the Local Government System under Art.140A of the Constitution through Punjab Local Government Act, 2013, were ultra vires Arts.9, 14, 17 & 25 of the Constitution and offensive to Arts.32, 37(i) & 140A of the Constitution; that proceedings with the Signal Free Corridor Project by LDA would be in violation of Art. 140A of the Constitution, therefore, initiation of the said Project by LDA was struck down as being unconstitutional---High Court directed that till such time the local government system was functionalized by its elected representatives, LDA may continue with its day-to-day repair and maintenance work within its area of jurisdiction and complete all the pending projects; that LDA may propose the establishment of the project in question to the elected local government system and it was up to the elected Local Government to approve the same in accordance with law; that LDA proceeded with the project in question at the cost of causing loss to the public exchequer and inconvenience to the residents of Lahore, thus, National Accountability Bureau (NAB) should initiate an inquiry against the DG, LDA for failing to comply with the law and to account for the loss of public money---Constitutional petition was allowed accordingly.

(y) Constitution of Pakistan---

----Art. 140A---Local Government, powers of---Political, administrative and financial powers of Local Government, withdrawal of---Permissibility---Provincial Legislature had the power to alter or withdraw the devolved powers subject to the principles of subsidiarity and federalism but till then the said powers were protected under the vertical separation of powers introduced by Art. 140A of the Constitution and no provincial or federal legislation could impair or impede the political, administrative and financial responsibility and authority of the elected representatives of the Local Government.

(z) Constitution of Pakistan---

----Arts. 140A & 199---Punjab Local Government Act (XVIII of 2013), Preamble---Public interest litigation---Local Government elections---Provincial Government delaying holding of elections for Local Government---Effect---Such delay in holding elections was purely political and in violation of the law---Delay in holding the elections did not in any manner undo devolution or by any mechanism revert power from the local governments into the hands of the Provincial Government or its statutory authorities---Elections were a consequence and not the source of devolution---Article 140A of the Constitution was the source and design of devolution and the provincial legislation actualized such constitutional mandate---Delay in elections simply delayed the exercise of such devolved power but could not permit it to be exercised by another authority in the meanwhile---Failure to hold local government elections and the absence of municipal services for the benefit of the public was the sole responsibility of the executive---Constitutional petition was allowed accordingly.

Petitioners by

Salman Akram Raja assisted by Ms. Aneesa Agha, Ali Javaid, Hamaad Mustafa, Tariq Bashir and Ms. Atira Ikram, along with Ms. Imrana Tiwana, petitioner.

Saad Rasool, Saad Amir, Fahad Malik (petitioner in person) and Angbeen Atif Mirza in connected writ petitions.

Respondents by:

Naseer Ahmad Bhutta, Additional Attorney General for Pakistan.

Mian Irfan Akram and Nasar Ahmad, Deputy Attorneys General for Pakistan.

Syed Akmal Hussain Shah, Standing Counsel for Pakistan.

Ms. Hina Hafeezullah Ishaq, Standing Counsel for Pakistan.

Naveed Rasool Mirza, Advocate General, Punjab.

Shan Gul, Additional Advocate General, Punjab.

Anwaar Hussain and Ahmad Hasan Khan, Assistant Advocates General, Punjab.

Shahid Hamid and Ayesha Hamid for respondent No.9 (in W.P. No.5323/2015).

Khawaja Haris Ahmad, Mustafa Ramday, Waqar A. Sheikh, Salman Mansoor and Jahanzaib Inam for respondent LDA.

Barrister Muhammad Umar Riaz, Asjad Saeed and Parvez I. Mir and Mohammad Azhar Siddique for respondents.

Farooq Ahmed Sheikh, DG, EPA, Naseem ur Rehman, Director (EIA), Muhammad Rashid, Director (Law), Muhammad Nawaz Manik, Deputy Director (Legal), EPA, Punjab.

Ashfaq Ahmed Rana, Litigation Officer, TEPA.

Sharjeel Haider, Assistant Director (Legal), EPA, Punjab.

Asrar Saeed, Chief Engineer, LDA.

Khalid Mahmood Alvi, Project Director, LDA.

Amici Curiae:

Professor Roger Myerson, Glen A. Lloyd Distinguished Service Professor of Economics at the University of Chicago and the Recipient of the 2007 Nobel Memorial_Prize in Economics Sciences, Dr. Ali Cheema, Associate Professor of Economics Lahore University of Management Sciences (LUMS) and Senior Research Fellow in Political Economy Institute of Development and Economic Alternatives (IDEAS), Professor Osama Siddique, an international legal scholar and public policy expert. He is an Associate Fellow at the public policy research institute IDEAS and also on the senior faculty of the Harvard based research center IGLP.

Waqqas Ahmad Mir.

Assisted by:

Qaisar Abbas and Mohsin Mumtaz, Civil Judges/Research Officers, Lahore High Court Research Centre (LHCRC).

Dates of hearing: 6th, 7th, 8th, 9th, 10th, 13th, 14th, 15th, 16th and 17th April, 2015.

You can cut all the flowers but you cannot keep spring from coming.¨

Pablo Neruda

P L D 2015 Lahore 617

Before Mrs. Ayesha A. Malik, J

Qazi HUSSAIN SIRAJ---Petitioner

versus

Prof. SAJID MIR and others---Respondents

W.P. No.5783 of 2015, heard on 4th March, 2015.

Senate (Election) Act (LI of 1975)---

----S. 13(1) & (2)---Constitution of Pakistan, Arts. 199 & 218(2)---Constitutional petition---Locus standi---Petitioner as citizen of Pakistan assailed nomination papers of respondent submitted for senate election---Validity---Senate election could not be challenged at intermediate stage, except where there was no legal remedy available to aggrieved party and where orders of Returning Officer or Election Commission of Pakistan were patently illegal and without jurisdiction, the effect of which would be to disentitle a candidate to participate in elections---Candidate, in such cases could come to High Court in constitutional jurisdiction challenging order of Returning Officer and Election Commission of Pakistan for infringing upon his right to contest elections---Petitioner was not aggrieved person at such stage of election process because fate of respondent's participation in election was yet to be determined---In the event if respondent won the election, right of petitioner to challenge holding of office by respondent as member Senate would accure and petitioner could question the same---Petitioner had no right under Senate (Election) Act, 1975, to participate in election process and he had no direct nexus with senate election---Petitioner could not question qualifications of candidate at scrutiny stage, in constitutional jurisdiction---Petition was dismissed in circumstances.

Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396; Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others 2015 SCMR 233; Intesar Huassain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others PLD 2008 SC 313; Ch. Muhammad Arif Hussain v. Rao Sikandar Iqbal and 10 others PLD 2008 SC 429; Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others PLD 2008 SC 487; Lt.-Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 and Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52 ref.

Dr. Aon Muhammad Khan v. Lt.-Gen. (Retd.) Saeed Qadir and others PLD 1987 SC 490; Sh. Ihsanul Haq Piracha v. Wasim Sajjad and others PLD 1986 SC 200; Dr. Karim Ahmed Khawaja v. Returning Officer for Senate Elections, 2006 and another 2006 CLC 624; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501 and Malik Umar Aslam v. Mrs. Sumaira Malik and others 2014 SCMR 45 distinguished.

Mubeen-ud-Din Qazi, Muhammad Ahsan Bhoon and Muhammad Azhar Siddique for Petitioner.

Muhammad Zikria Sheikh, D.A.G., Mirza Nasar Ahmad, D.A.G. along with Ali Akhtar Khan, Law Officer for Election Commission of Pakistan.

Anwaar-ul-Haq Pannun, Ch. Muhammad Rafique Jathol, Irfan Nasir Cheema, Ch. Umer Awais, for Respondent No.1.

Ch. Muhammad Ramzan, Muhammad Ilyas Khan, Shakeel Pasha and Haider Zaman for Respondent No.6.

Date of hearing: 4th March, 2015.

P L D 2015 Lahore 630

Before Miss Aalia Neelum, J

SARDAR SHUJAT---Petitioner

versus

D.P.O. OKARA and others---Respondents

Writ Petition No.7899 of 2015, decided on 8th April, 2015.

Police Order (22 of 2002)---

----Art. 18(A), proviso [as inserted by Punjab Police Order (Amendment) Act, 2013]---Criminal Procedure Code (V of 1898), S.173---Constitution of Pakistan, Art.199---Constitutional petition---Investigation, change of---Final report not submitted---On the recommendation of District Standing Board, investigation was transferred by Head of District Police---Validity---Re-investigation or further investigation was permissible under law even after submission of Challan but before cognizance had taken place by Trial Court---Head of District Police was empowered under proviso to Art.18(A) of Police Order, 2002 to change investigation, if reasons given by District Standing Board were found to be reasonable and cogent---District Standing Board had made deliberations and order passed by District Police Officer showed that he had considered the same and was in agreement with the recommendations---District Police Officer, under Art.18(A) of Police Order, 2002, was competent to pass the order for transfer of investigation in view of the recommendations made by District Standing Board---Petitioner had joined proceedings before District Standing Board which got support from attendance sheet, therefor---Order passed for change of investigation did not suffer from any illegality or infirmity---Petition was dismissed in circumstances.

Azar Latif Khan for Petitioner.

Muhammad Nasir Chohan, Asstt. Advocate-General.

Muhammad Saim Chaudhry for Respondent No.4.

P L D 2015 Lahore 632

Before Shams Mehmood Mirza, J

FATIMA SUGAR MILLS LIMITED through Company Secretary and others: In the matter of

C.O. No.10 of 2012, decided on 16th March, 2015:

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

----S. 284---Amalgamation scheme of Companies---Consent of shareholders---Principle---There need not be 100% consent of shareholders or the creditors as what is required is super majority of three fourth in order to constitute consent for the purposes of sanctioning a scheme of arrangement/amalgamation---Scheme when approved by prescribed majority of members and creditors, also binds minority dissidents, if any.

J.K. (Bombay) Private Limited v. Messrs New Kaiser-I-Hind Spinning and Weaving Company Limited and others AIR 1970 SC 1041 and In re; Telesound India Limited (1983) 53 Company Cases 926 (Delhi) rel.

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

----Ss. 2(14), 3 & First Sched., Art.27-A [as inserted by Punjab Finance Act, 2008]---Companies Ordinance (XLVII of 1984), Ss. 284 & 287---Amalgamation of companies--- Transfer of property---Stamp duty, levy of---Words 'instrument' and 'document'---Scope---At the time of approval of scheme of amalgamation of petitioner companies, authorities raised an objection with regard to payment of stamp duty on the properties which were to be transferred as a result of such amalgamation---Validity---Decree of court which resulted in transfer of property or had created or transferred a right in property should be included in the definition of 'document'---In consequence of an order sanctioning scheme of arrangement/amalgamation, transfer of assets had taken place from transferor company to transferee company in terms of S.287 of Companies Ordinance, 1984---Such order was an instrument as it conveyed and had the effect of conveying title in property from transferor company to transferee company---Incident of transfer of assets from transferor company to transferee company in order sanctioning scheme of arrangement/amalgamation made it liable to stamp duty in terms of Art.27-A of First Schedule to Stamp Act, 1899---Such order was, without any question, an 'instrument' as defined in S.2(14) of Stamp Act, 1899---High Court directed parties to petition to supply to office of High Court, requisite stamp paper, before the order sanctioning a scheme under S.284 of Companies Ordinance, 1984, was passed, where after the order would be placed for final signatures---High Court restrained Registrar of Companies from receiving and taking on its record an order sanctioning a scheme of arrangement/amalgamation until the same was duly stamped in terms of applicable provisions of Stamp Act, 1899---Petition was allowed accordingly.

Hindustan Lever and another v. State of Maharashtra and another (2004) 9 Supreme Court 483; J.K. (Bombay) Private Limited v. Messrs New Kaiser-i-Hind Spinning and Weaving Company Limited and others AIR 1970 SC 1041; In re; Telesound India Limited (1983) 53 Company Cases 926 (Delhi); Sun Alliance Ltd. v. Inland Revenue Commissioners [1971] 1 All ER 135; Pakistan National Shipping Corporation v. Adamjee Insurance Company Limited 1987 CLC 1376; Delhi Towers 1 Limited v. G.N.C.T. of Delhi C.A. No.466 of 2008 in Company Petition No.50 of 2003 and State of Maharashtra and others v. M.S. Builders Pvt. Ltd. and another 1992 (1) Bom. Cr. 568 ref.

Ruby Sales and Services (P) Ltd. and another v. State of Maharashtra and others (1994) 1 SCC 531; Bayer Pakistan (Pvt.) Limited and others Board of Revenue and others 2002 CLD 823 and In Re: Harrison's Share under a settlement, Harrison v. Harrison [1995] 1 All ER 285 rel.

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

----S. 2(10)--- Word 'includes'---Effect---Word 'includes' as used in S.2(10) in Stamp Act, 1899, implies an extended meaning by including to generic meaning of 'conveyance'.

Dilworth v. Commissioner of Stamps 1899 AC 99 and Emperor v. Jianand AIR 1928 Sindh 149 rel.

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

----Ss. 2 (4), 2(7), 2(13) & 2(21)---Company, status of---Organs of company---Scope---Company thinks, forms intentions, makes decisions and acts through more than one means---Members (voting in general meeting) and directors (taking decisions in Board meetings) constitute two organs of the company---Such terms signify their constitutional authority to act as company rather than merely to represent as its agent---Each organ has specific and general powers to make decisions---Organ constituted by members is called "the general meeting" and by directors "the board of directors"---Board of directors, as a decision making organ of the company, has broad powers to manage business of company.

Meridian Global Funds Management Asia Limited v. Securities Commission [1995] 3 ALL ER 918 ref.

Imtiaz Rasheed Siddiqui, Barrister Shehryar Kasuri for Petitioner (in C.O.No.10 of 2012 and C.O No. 25 of 2013).

Barrister Ahmad Pervez for Petitioner Companies (in C.O No.18 of 2012).

Ms. Samia Khalid, Assistant Advocate General.

Umair Mansoor for SECP.

Date of hearing: 22nd December, 2014.

P L D 2015 Lahore 661

Before Syed Mansoor Ali Shah and Mrs. Ayesha A. Malik, JJ

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY---Appellant

versus

FAISALABAD ELECTRIC SUPPLY COMPANY LIMITED---Respondent

I.C.A. No.67 of 2015, decided on 28th May, 2015.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997) S.12A---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, R.16(6)---Constitution of Pakistan, Art. 199---Constitutional petition---Intra-court appeal---Maintainability---Appellant, National Electric Power Regulatory Authority ("Authority") impugned order passed in constitutional petition whereby, inter alia, the Authority's order on a motion for leave to review was set aside---Contention of respondent was that since remedy of appeal under S.12A of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 was available to the Authority, therefore intra-court appeal was not maintainable---Held, that the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 read with the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998 could not contemplate a remedial forum for the Authority, where it could challenge its own orders as the Authority itself was the Appellate and Reviewing Authority; therefore, S.12A of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 had no applicability to the appellant Authority---Provision of one appeal, review or revision against original order, under S.3 of the Law Reforms Ordinance, 1972 must be available to the parties to the dispute in order to question maintainability of the intra-court appeal and no such remedy was available to the appellant Authority in the present case---Appellant Authority, therefore, could not be deprived for its right of intra-court appeal---Intra-court appeal was therefore, maintainable.

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

----Ss. 7, 12 & Preamble---Constitution of Pakistan Art.10A, 9, 25, 2A & 154---Electricity tariff, determination of---Functions of the National Electric Power Regulatory Authority ("Authority")---Power to determine or modify tariffs---Adjudication of the Authority on a motion for leave to review---Full strength of the Authority mandatory for discharging essential and core functions/duties---Constitutional context of federalism and provincial autonomy and the consequent fundamental rights of the people (consumers) of various Provinces in determination of Electricity Tariff under the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Scope---Preamble of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 provided for regulation of generation, transmission and distribution of electric power and matters connected thereto and the Authority enjoyed the mandate under the law to determine tariff for all the generation, transmission and distribution companies in the country and it is for such reason that the constitution of the Authority had representation from the four Provinces by having four members, one from each province---"Electricity" fell within Part-II of the Federal Legislative List of the Constitution which was to be overseen by the Council of Common Interests under Art.154 of the Constitution and the purpose of the Council was to support and strengthen federalism and democracy as well as to ensure that the interests of all the Provinces were weighed and considered equitably---Electricity being a basic utility, every Province (and the consumers therein) had the right to have equal representation in the Authority and in the consequent decision making of the Authority regarding determination of tariff and such right flowed from the right to fair determination under Art.10A of the Constitution and as it dealt with electricity, which was a basic utility, it also bordered on the right to life under Art.9 of the Constitution---Determination of Tariff of electricity was not an insulated unitary act, but a result of deliberative participatory process involving all the stakeholders and the Authority entrusted with said task under the Act, was therefore, not a mere unstructured amalgam of people, but enjoyed a unique character of Provincial representation and in a way, microcosmically represented the Federation by allowing representation of all the four Provinces on the Authority---Presence of every Member was important, as each of them represented a Province and if the Authority was short of the total statutory strength, it was in fact dysfunctional, as far as, performance of its core and essential functions were concerned---Such essential functions were enumerated under S.12 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 and the Authority was not allowed to delegate such powers amongst the Chairman or the Members---Any proceedings for the determination of tariff without a Member would deprive the whole Province and its people from participating and deliberating in the determination of electric power for the said Province, which would be discriminatory under Art.25 of the Constitution and violate the right to fair determination under the Objectives Resolution---Establishment of the Authority, with proportional representation of the four Provinces, had a constitutional significance and its full strength could not be diluted or altered when performing its essential functions.

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

----Ss. 12, 7, 3 & 5---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, R.16(6)---Law Reforms Ordinance (XII of 1972), S. 3---Constitution of Pakistan, Art. 199---Intra-court appeal---Electricity tariff, determination of---Functions of the National Electric Power Regulatory Authority ("Authority")---Power to determine or modify tariffs---Adjudication of the Authority on a motion for leave to review---Full strength of the Authority mandatory for discharging essential and core functions/duties---Interpretation of Ss.5, 3(6) & 12 of the Regulation of Generation. Transmission and Distribution of Electric Power Act, 1997---Scope---Appellant, National Electric Power Regulatory Authority ("Authority") impugned order passed in constitutional petition whereby, inter alia, order of the Authority in leave to review motion was set aside and the term "full strength of the authority" under R.16(6) of the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998 was held to mean all five Members of the Authority (NEPRA), including the Chairman---Held, that the term "full strength" under R.16(6) of the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998 was not the available strength but the statutory strength as provided under S. 3 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 that was, five Members including a Chairman because under the said Rule, the Authority discharged one of its essential functions---Rule 16(6) of the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998 simply reiterated said principle that the Authority had to act with full strength in matters which fell within the core and essential functions of the Authority and where delegation was not permissible and it was not only at the time of hearing a motion for leave for review that the Authority must have full strength, but the full strength of the Authority must be there when the tariff was to be determined by the Authority or while performing the other functions issued under S.12 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Section 5 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 dealt with administrative character of the Authority and its secretarial provision, regulating the procedures for holding a meeting and such meetings and the decisions taken thereunder had no co-relation with one of the core and essential quasi-judicial powers and functions of the Authority; which was the determination of tariff or deciding the motion for leave to review---High Court observed that the contention that if the quorum was complete the Authority could call a meeting and determine tariff, was misconceived as it incorrectly mixed two different functions of the Authority and the said S.5 dealt with administrative meetings and was a secretarial provision with no nexus with the determination of tariff which was a quasi-judicial function of the Authority---Section 3(6) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 applied once the Authority had been duly constituted in terms of the said S.3 of the Act, and its composition was complete and reference to the terms "vacancy" and "defect" in the said section pertained to absence of the member or a procedural defect or irregularity in the membership and both such disqualifications assumed that the Authority had been fully constituted---Section 3(6) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 therefore, addressed a temporary problem and protected the acts or proceedings of the Authority to allow smooth operability of the Authority in a situation where a duly appointed member refused to attend the proceedings of the Authority for tariff determination or some irregularity in the appointment of any member who was part of the proceedings---Purpose of S.3(6) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 was to ensure that such hiccups did not derail the Authority or its decisions and in the case of determination of tariff, while full strength was mandatory, there could be a situation where the Member was genuinely not able to attend the meeting or his appointment suffered from any irregularity making it difficult for him to attend, and in such a situation, which should be duly recorded in the minutes of the proceedings, the Authority could proceed and determine the tariff or decide the motion for leave for review---Such exceptions were few and far between but in the present case, S.3(6) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 had no relevance as the Authority was not properly and lawfully constituted to begin with, as the Chairman and one other Member had not been appointed---Section 3(6) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 did not empower the Authority to proceed without proper constitution in terms of S.3 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 and any such interpretation can lead to absurd results, as the Chairman or a few Members, under the garb of S.3(6) of the Act could proceed on their own and continue to determine tariff for the longest time---Federal Government, in such an eventuality, would have no incentive or obligation to appoint Members under the Act or complete the constitution of the Authority and any such interpretation was also violative of the fundamental rights and the constitutional vision---Authority while determining the electricity tariff including on a motion for leave to review, must have full strength, i.e. five members including the Chairman, fully representing four Provinces subject to the exception as explained by the High Court---Appeal was dismissed, in circumstances.

Mansoor Usman Awan for Appellant.

Sh. Muhammad Ali for Respondent.

Date of hearing: 9th February, 2015.

P L D 2015 Lahore 671

Before Muhammad Farrukh Irfan Khan, Muhammad Qasim Khan, Mrs. Ayesha A. Malik, Faisal Zaman Khan and Mirza Viqas Rauf, JJ

Peer ALLY IMRAN and others---Petitioners

versus

Mian MUHAMMAD NAWAZ SHARIF and others---Respondents

Writ Petition No.805 of 1991, decided on 22nd May, 2015.

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

----S. 14---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Constitutional petition pending in the High Court for over 25 years---Cause of action, extinguishment of---Time bound petition becoming infructuous and losing its efficacy---Substantial role of petitioner and his counsel in causing delay in disposal of petition---Inequitable conduct of counsel of petitioner---Effect---Nomination papers, acceptance of---Returning officer had accepted nomination papers of the respondent, who was a candidate for a seat of the National Assembly, in general elections held in the year 1990---Objections filed by petitioners before the Returning Officer were rejected---Appeal filed by petitioners before the Election Tribunal against order of the Returning Officer was also dismissed---Present constitutional petition was filed against the order of Election Tribunal in the year 1990---Held, that present constitutional petition was pending since the year 1990, but a careful perusal of the order sheets showed that there had been a substantial role on part of the petitioners' counsel for causing delay in disposal of the matter---Order sheets showed that on certain dates petitioners' counsel had sought more time and adjournments from the court to recast the constitutional petition or because he was not prepared to argue the case---Counsel for petitioners took more than five months for recasting the constitutional petition, which rendered the same infructuous---Case record showed that the constitutional petition was neither fixed in routine nor did the petitioners make any effort to get the same fixed till 30-5-1996, while in the meantime the National Assembly of 1990, was dissolved in July, 1993---Present constitutional petition had arisen out of the general election held in the year 1990 and the National Assembly which came into existence as a consequence thereof had been dissolved on 18-7-1993, therefore, it would be a mere academic exercise to adjudicate upon present petition as the respondent, did not presently hold elected office of MNA for the National Assembly of 1990---Present constitutional petition was time bound which lost its efficacy the moment the National Assembly elected in the election of 1990 was dissolved and the respondent ceased to remain a member thereof---Cause of action to the petitioners stood extinguished with the dissolution of the National Assembly which came into existence as a consequence of general elections held in the year 1990, as such present constitutional petition had virtually become infructuous and was liable to be dismissed on such score alone---After the election held in the year 1990, four further general elections were held which were duly contested by respondent and the petitioners had every opportunity to raise as many objections as they could and also question his eligibility before the relevant forums, but there was nothing on record to show that the petitioners had undertaken any such exercise at the relevant time ---Conduct of counsel for petitioners may also be examined in the perspective that during the course of arguments he asserted that respondent had offered him appointment as the Ambassador of Pakistan to a foreign country and a two kanal residential plot, but, he instead desired for his posting as High Commissioner of Pakistan in another foreign country, in which case he would not prosecute the present matter---Such facts tended to show that for his personal interest the counsel for petitioners had been intentionally delaying the matter uptil now---Constitutional petition was dismissed accordingly as having been rendered infructuous as well as not maintainable.

(b) Administration of justice---

----Legal proceedings were not undertaken merely for academic purposes unless there were admitted or proven facts to resolve the controversy.

Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 ref.

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

----S. 52---Election petition, abatement of---Scope---Dissolution of National Assembly during pendency of election petition---Such election petition would abate by the fact that the National Assembly had dissolved, while the petition was pending.

Abdul Hamid v. Muhammad Shahidullah and 3 others PLD 1969 SC 535 ref.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Matter requiring inquiry---Where allegations levelled by petitioner in the constitutional petition required a considerable degree of inquiry by a Court or Tribunal of competent jurisdiction, in which the respondent may also propound his defence which was his legal right and produce evidence to disprove the allegations against him, such exercise could not be undertaken by the High Court in its constitutional jurisdiction.

(e) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Constitutional jurisdiction of the High Court could not be invoked as a matter of right, course or routine, rather it was subject to certain circumventions which the Court was required to keep in view while exercising extraordinary discretionary powers.

Rana Aftab Ahmad Khan v. Muhammad Ajmal and another PLD 2010 SC 1066 and Presiding Officer v. Sadruddin Ansari and another PLD 1967 SC 569 ref.

Syyed Muhammad Javaid Iqbal Jafree of Slarpore for Petitioners.

Nasar Ahmad Mirza,Deputy Attorney General on Court's Call.

Dates of hearing: 8th, 15th and 22nd May, 2015.

P L D 2015 Lahore 681

Before Ibad ur Rehman Lodhi, J

Rana SURBLAND KHAN---Appellant

versus

B.K. ENTERPRISES through Director---Respondent

Regular Second Appeal No.79 of 2006, decided on 17th February, 2015.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872, S. 2(b)(c)(e)---Suit for specific performance of agreement---"Valid agreement", defined---Unilateral offer---Scope---Oral agreement, enforceability of---Principles---Plaintiff filed suit for specific performance of agreement on basis of document that was admittedly not signed by one of the parties to the suit---Suit was dismissed and appeal against was also dismissed---Plaintiff averred in revision that oral agreement could be specifically enforced---Validity---If plaintiff sought specific performance of an oral agreement he had to prove promise made by one party and acceptance of such promise by other party---Unilateral offer not accepted by other side could not be made basis of suit for specific performance---For constitution of valid agreement there must be at least two persons i.e. promisee and promisor who had agreed with their free consent for a lawful object and legal consideration and in absence of offer and acceptance thereof, such document could not be defined as agreement---Offer and acceptance reduced into writing if had not been signed or thumb-marked by one of parties could not be termed as a valid contract enforceable under law---Revision was dismissed accordingly.

Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334; Syed Ahmed through Special Attorney v. Syed Muzaffar Hussain through L.Rs. 2008 CLC 175 and Faqeer Bakhsh v. Khan Muhammad 2013 MLD 955 rel.

Ch. Muhammad Anwar Bhinder for Appellant.

Mirza Shahid Baig for Respondent

P L D 2015 Lahore 683

Before Masud Abid Naqvi, J

MANZOOR HUSSAIN---Petitioner

versus

Mst. SAFIYA BIBI and 2 others---Respondents

W.P. No.1068 of 2014, decided on 24th March, 2015.

(a) Islamic law---

----Maintenance---Divorced daughter, maintenance of---Entitlement---Plaintiff, a divorcee, filed suit against her father claiming maintenance---Trial court, after hearing parties and record evidence, decreed the suit and fixed maintenance of plaintiff till her marriage---Father contended that plaintiff, being disobedient daughter who refused to reside with him, was not entitled for any maintenance---Daughter controverted said contention alleging that she had refused to reside with father due to maltreatment on the part of her step-mother/second wife of father---Validity---Father could not rebut said plea of mal-treatment and admitted to have unpleasant relations with daughter and that being father he was unable to show his love, affection or intimacy for his daughter and for that reason could not expect the same in return---Plea of father to disentitle daughter from maintenance on account of her alleged disobedience had no force---Father admitted to have served in Pakistan Rangers for thirty-five years and thereafter had been pensioner, had ancestral house with agricultural land and that plaintiff-daughter was in need of medical treatment---No illegality was committed by courts below in determining quantum of maintenance---Defendant being real father was legally and morally bound to maintain his divorced daughter---Daughter (as admitted by father) had no source of income and was being maintained by her paternal uncle---Plea of father that he was not bound to maintain daughter had no force---Constitutional petition was dismissed.

Mian Muhammad Sabir v. Mst. Uzma Parveen and 2 others PLD 2012 Lah. 154 and Mst. Farhat Jabeen v. Muhammad Safdar and others 2011 SCMR 1073 rel.

(b) Islamic law----

----Maintenance---Right of daughter---Scope---Daughter cannot be deprived of her right of maintenance by father during his life time when no instance is mentioned showing disobedience on her part---Father is obliged to maintain her daughter till her marriage---Liability of husband to maintain his wife continues till subsistence of marriage---After dissolution of marriage, female loses her marital status and liability again shifts towards her father.

Raja Abid Hussain for Petitioner.

Muhammad Altaf for Respondents.

P L D 2015 Lahore 687

Before Shujaat Ali Khan, J

Mian ABDUL QUDDOUS---Petitioner

versus

Mst. SURRYA MIR and 3 others---Respondents

Writ Petition No.4114 of 2006, decided on 13th May, 2015.

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

----S.53--- Constitution of Pakistan, Art. 199---Constitutional petition---Entry in revenue record---Decree of court---Scope---Mutation of sale in favour of petitioner was entered in revenue record on the basis of sale deed executed on the basis of decree passed by Civil Court---Mutation was cancelled later on by revenue authorities---Validity---When mutation was attested on the basis of court decree, jurisdiction of revenue authorities to adjudge veracity thereof was ousted--- Revenue authorities could not resort to variation/correction of old standing entries in revenue record except those which crept in due to some omission, inadvertence or clerical mistake---Revenue authorities, right up to Board of Revenue were not empowered to adjudge legality of mutation sanctioned in favour of petitioner on the basis of sale deed which was registered as a result of a decree of court---High Court set aside the orders passed by revenue authorities---Petition was allowed in circumstances.

Abdul Majeed Khan through L.Rs and others v. Mst. Maheen Begum and others 2014 SCMR 1524; Allah Ditta v. Ghulam Muhammad and 3 others 2008 SCMR 1021; Muhammad Nawaz and others v. Fateh Sher and others 2008 SCMR 1658; Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others 2004 SCMR 612; Muhammad Ali Sabtain and 4 others v. Mst. Shahjahan Bibi and 9 others 2004 YLR 1201; Mst. Ghulam Sakina v. Member (J) Board of Revenue Hyderabad and 4 others PLD 2004 Kar. 391; Nadir Hassan v. Sadaruddin and 3 others PLD 2004 Kar. 395; Barkat Ali and 8 others v. Member (Judicial), Board of Revenue, Punjab, Lahore and 3 others 2001 YLR 2531; Aurang Zaib v. M/s. Al- Haider Construction Co. through Managing Partner and 4 others PLD 1993 Kar. 397; Syed Mustafa Haider v. Provincial Government and others 1992 CLC 1329; Nasir Muhammad and another v. Haji and 7 others PLD 1988 Rev. 24; Muhammad Amin v. Allana and 3 others PLD 1988 Rev. 29; Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296; Nazir and another v. Member, Board of Revenue, Lahore, and another 1985 SCMR 356; Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Muhammad Hayat and 38 others v. Abdul Rahim and 24 others 2001 MLD 1524; Muhammad Sadiq v. Muhammad Ramzan and others 2002 SCMR 1821; Ataur Rehman Khan v. Dost Muhammad and others 1986 SCMR 598 and Suo Motu Case No.24 of 2010 PLD 2011 SC 963 ref.

Muhammad Aslam v. Collector and another 1992 CLC 851; Waris Khan and 18 others v. Col. Humayun Shah and 41 others PLD 1994 SC 336 and Muhammad Yousaf and 3 others v. Khan Bahadur through L.Rs. 1992 SCMR 2334 rel.

(b) Administration of justice---

----Choice of forum---Principle---When a party opts to choose a forum it cannot be allowed to switch over to another forum regarding the same grievance during pendency of proceedings before the former.

Shaukat Khan v. Assistant Political Agent, Landi Kotal, Khyber Agency and others PLD 2002 SC 526; Messrs Chakwal Textiles Mills Limited, Rawalpindi Road Chakwal and another v. Director Social Security, Rawalpindi and 2 others 2012 PLC 270 and World Trade Corporation v. C.B.R. and others 1999 PTD 2341 rel.

Mian Abdul Quddous (Petitioner in person).

Syed Iftikhar Hussain Shah for Respondent No.1

Rana Shamshad Khan, Asstt. A.-G. for Respondents Nos. 2 to 4, with Shuja ud Din Zafar Naib Tehsildar and Muhammad Akram Shah, Patwari for Respondent.

Date of hearing: 13th May, 2015.

P L D 2015 Peshawar 1

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

NOOR SHAH GUL---Appellant/Complainant

Versus

ASIM ULLAH and another---Accused/Respondents

Criminal Appeal No.1-B of 2006, decided on 2nd October, 2013.

(a) Criminal trial---

----Evidence---Circumstantial evidence---Nature and mode of appreciation---If the case was based on circumstantial evidence, the prosecution must ensure that the circumstances from which the inference of guilt was sought to be drawn, must be cogent and firmly established---Circumstances must be unerringly point towards the guilt of accused; and when taken cumulatively, should form a chain so complete that it must demonstrate in all probabilities that the crime was committed by the accused--- Where the evidence was of a circumstantial nature, circumstances from which the conclusion of guilt was to be drawn should be in the first instance fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of accused---Circumstances should be of conclusive nature, and tendency and should be such as to exclude every hypothesis, but the one proposed to be proved---Chain of evidence be so complete as not to leave any reasonable ground for conclusion consistent with the innocence of accused, and it must be such to show that within all human probability, the act must have been done by accused.

Sheikh Muhammad Amjad v. State PLD 2003 SC 704 rel.

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

----Ss.302 & 377---Criminal Procedure Code (V of 1898), S.417(2-A)--- Qatl-i-amd, sodomy---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Complainant/grandfather of deceased minor boy, who claimed to be witness of last seen, did not disclose about the factum of meeting of the deceased with accused in his presence---Complainant who had improved his statement, his version of last seen was an afterthought, cooked and fabricated story and punishment of capital charge could not be awarded on such evidence of last seen---Statement of complainant did not find any support from alleged confessional statement of accused, and story of last seen had been developed after the arrest of accused---Confessional statement of accused had been recorded after 4 days of physical remand of accused---Accused being a juvenile, element of torture and threat during his physical remand on the part of the Police, could not be excluded from consideration---Confessional statement of accused did not find support from the medical evidence; and story furnished by accused in his confessional statement, did not appeal to prudent mind---Retracted confession of accused, which was neither corroborated by any circumstantial evidence nor by the medical evidence, could not be called voluntary judicial confession and could not be relied upon---Accused had not stated a single word about shoes of the deceased allegedly recovered---Identification parade conducted in the case being not in accordance with law, alleged recovery of shoes/chappal could not be used as evidence against accused---Sodomy by accused was not alleged---No sign of violence on the body, and no other clue for cause of death, were detected from internal and external examination---Detection of semen on the swab, despite the factum of remaining the dead body in the water for two days, did not appeal to the prudent mind---Genesis and origin of the occurrence, appeared to be shrouded in deep mystery---In view of the inherent improbabilities, serious omissions, infirmities, as well other circumstances, prosecution had failed to prove the guilt of accused through cogent, coherent or confidence inspiring evidence of unimpeachable character--- Trial Court, in circumstances, had rightly acquitted accused, by extending him benefit of doubt after proper appraisal of evidence---No exception, could be taken to the acquittal in circumstances.

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

----S. 164---Confession---Retracted confession as ground for conviction---Scope---Retracted confession, could not be a ground for conviction of accused, unless same was corroborated by strong corroborative piece of evidence---For judging evidentiary value of a retracted confession, it had to be seen, whether same appeared to be true, voluntary, without any inducement, promise, duress or coercion---Where retracted judicial confession appeared to be voluntary and true, same would be supposed to be the best evidence against the maker (i.e. accused) and could be made sole basis for conviction, without looking for corroboration.

(d) Criminal trial--

----Recovery---Incriminating articles--- Where incriminating articles were recovered from the house, not in exclusive possession of accused, mere recovery of the same, was not conclusive proof of accused's participation in the crime.

(e) Criminal trial--

--Benefit of doubt---Prosecution was bound to prove its case beyond any shadow of doubt---If any reasonable doubt would arise in prosecution case, benefit of the same must be extended to accused, not as a grace or concession, but as a matter of right---Many doubts were not required in the prosecution case; any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind, was sufficient for acquittal of accused---Benefit of doubt, invariably was extended to accused for safe administrative of criminal justice---When there was no satisfactory proof of the guilt of accused, benefit of doubt would be given to accused.

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

----Ss. 417 & 265-K---Appeal against acquittal---After earning the acquittal from the Trial Court, double presumption of innocence was acquired by an accused---Court while sitting in appeal against acquittal, must be slow in reversing the judgment of acquittal; unless it was found to be arbitrary, fanciful and capricious on the face of it; or it was the result of bare misreading and non-reading of any material evidence.

Masood Iqbal and Altaf Khan for Appellant. Saifur Rehman, A.A.G. for the State

Pir Hamidullah for Respondents.

Date of hearing: 7th October, 2013.

P L D 2015 Peshawar 14

Before Muhammad Daud Khan and Ikramullah Khan, JJ

Mst. SAIMA GUL and 3 others---Petitioners

Versus

HAIDER ZAMAN and 2 others---Respondents

Writ Petition No.265-M of 2012, decided on 13th November, 2013.

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

----S. 5, Sched.---Constitution of Pakistan, Arts.199 & 247(3)---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(viii)(a)--- Muslim Family Laws Ordinance (VIII of 1961), Preamble---Shari Nizam-e-Adal Regulations, 2009, Para.9---Suit for dissolution of marriage, recovery of dower and maintenance---Ground of cruelty--- Trial Court partially decreed the suit qua recovery of dower and maintenance but refused to decree the suit for dissolution of marriage on ground of cruelty for plaintiff's failure to prove the same-- Appellate Court modified the quantum and amounts decreed in respect of dower and maintenance but upheld the Trial Court judgment vis-a-vis dissolution of marriage on ground of cruelty--- Validity---Plaintiff had claimed dissolution of marriage on ground of cruelty which was a recognised ground under Dissolution of Muslim Marriages Act, 1939 which had not been extended to the Provincially Administered Tribal Areas in terms of Art. 247(3) of the Constitution---Muslim Family Laws Ordinance, 1961, also was not applicable to the Provincially Administered Tribal Areas---Family cases, therefore would be dealt with under Islamic law---Family Courts under subsection 4 of S.10 of the Family Courts Act, 1964 were bound to order the return the Haq Mahr to husband but Provincially Administered Tribal Areas were governed by the Shari Nizam-e-Adal Regulations, 2009 which was a special law---Rule of restoration of property to husband in case of dissolution of marriage on Khula' was not absolute, and was applicable in case spouses amicably arrived at a settlement--- Where matter came before the court for settlement, court would determine the amount to be returned to the husband for Khula'---Disobedience of wife, her role in straining the relations, second marriage of husband and possible destitution of wife after divorce were determining factors for fixing amount for Khula'---Plaintiff's suit for dissolution of marriage could not be decreed on ground of second marriage of husband as Dissolution of Muslim Marriages Act, 1939 was not applicable to the Provincially Administered Tribal Areas---Husband and wife, in the present case, could not live within limits ordained by God; their marriage was dissolved by court on basis of Khula'---Plaintiff wife was held not entitled to unpaid (remaining) Haq Mahr while husband was held not entitled to get back plot given to plaintiff---Order accordingly.

(b) Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(viii)(a)---Constitution of Pakistan, Art.247(3)---Application of Dissolution of Muslim Marriages Act, 1939 to Provincially Administered Tribal Areas---Scope---Dissolution of Muslim Marriages Act, 1939 was not applicable to the Provincially Administered Tribal Areas under Art.247(3) of the Constitution.

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

--Application of Muslim Family Laws Ordinance, 1961, to Provincially Administered Tribal Areas---Scope---Muslim Family Laws Ordinance, 1961 was not applicable to the Provincially Administered Tribal Areas.

(d) Islamic law--

--Provincially Administered Tribal Areas---All the family cases would be dealt with under Islamic law.

(e) Shari Nizam-e-Adal Regulations, 2009--

--Application of Shari Nizam-e-Adal Regulations, 2009 to Provincially Administered Tribal Areas---Provincially Administered Tribal Areas are governed by the Shari Nizam e-Adal Regulations, 2009, which is a special law.

(f) Islamic law---

----Marriage---Khula'---Restoration of property to husband in case of Khula---Scope---Determining factors---Rule of restoration of property (given to wife) to husband in case of Khula' was not absolute--- Where matter (of restoration of property) came before the court for settlement, court would determine the amount to be returned to the husband and such amount would be accepted by the husband---Disobedience of wife, her role in straining the relations, second marriage of husband and possible destitution of wife after divorce were determining factors for fixing amount of Khula'.

'Tefheem-ul-Quran' complied by Abul Ala Mududi and Dr.Fakhr Ud Din v. Mst. Kausar Takreem PLD 2009 Pesh. 92 rel.

Syed Abdul Haq for Petitioners. Mian Hussain Ali for Respondents.

Date of hearing: 13th November, 2013.

P L D 2015 Peshawar 23

Before Mian Fasih-ul-Mulk and Yahya Afridi, JJ

GHULAM MUSTAFA---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.132, 131 and Criminal Revision No.49 of 2009, decided on 4th December, 2013.

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

----Art.46---Criminal Procedure Code (V of 1898), S. 161--- Statement rendered by injured person to a Police Officer---Admissibility and its consideration as dying declaration---Even a statement rendered by an injured person under S.161, Cr.P.C. to a Police Officer, could be considered as a dying declaration, in case the 'maker' thereof later died; and the said statement had a ring of truth emanating therefrom and was corroborated with other material evidence---No legal prescribed form, mode and manner was of recording a 'dying declaration'---When a person rendered any statement regarding the injuries caused to him, which later resulted in his death, was not only relevant, but admissible and crucial piece of evidence.

Mst. Shamim Akhtar's case PLD 1992 SC 211 and Farmanullah's case 2001 SCMR 1474 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Statement of deceased, when injured made before prosecution witness, duly recorded in the "Murasila", when confirmed by said prosecution witness, during his testimony, was not only relevant and admissible but a substantive piece of evidence---Presence of prosecution witnesses at the spot was natural, their narration of events, were consistent 'inter se' and on material particulars---Positive matching of empties recovered from the spot with the Kalashnikov recovered from accused; and recovery of empty gas cylinder with a bullet mark, burnt pieces of wood and the Doctor's testimony, had proved the prosecution case against accused beyond any shadow of doubt---Case against accused was that of qatl-i­amd, and not that of qatl-bis-sabab as claimed by accused---Accused used an automatic rifle and fired repeatedly at the deceased, which caused the explosion resulting in the death of young man---Brasin act on the part of accused, reflected his intention to commit qatl-e-amd--- Sentence of imprisonment for life awarded to accused, did not warrant, any interference, in circumstances.

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

----S. 321---Qatl-bis-sabab---Condition precedent---One of the conditions precedent for an offence to fall within the purview of "qatl-bis-sabab" was that accused should not have the intention to cause any death or harm to any other person.

Ishtiaq Ibrahim for Appellant.

Khawaja Muhammad Khan Gara for the Cmplainant.

Mian Arshd Jan, A.A.G., for the State.

Date of hearing: 4th December, 2013.

P L D 2015 Peshawar 30

Before Muhammad Daud Khan, J

Mst. BASWARA---Petitioner

Versus

HAFIZULLAH KHAN and others---Respondents

Civil Revision No.95-B of 2011, decided on 13th May, 2014.

(a) Islamic Law--

---Inheritance-Limitation-plaintiffs were legal heirs of the deceased and were entitled to the extent of their respective shares in the legacy--- Inheritance would open the moment propositus had breathed his last-Formal documentation for devolving of inheritance to legal heirs as their shares was not required as their shares had been ordained in the Holy Qur'an in specific terms---No law could over-run the commandments of Qura'nic text nor wrong entry of mutation in favour of some legal heirs could over-weigh the stipulation of such commandments---Entries of revenue record were made for fiscal purpose---No limitation would run in the matters of inheritance---Legal heirs on the death of propositus would become co-sharers in the property and possession of one co-heir/co-sharer would be deemed to be on behalf of all the co-sharers/co-heirs-Suit of plaintiffs was within time---Both the courts below had rightly appreciated the evidence in its true perspective and decreed the suit---No illegality or irregularity was pointed out in the impugned judgments passed by the courts below--- Revision was dismissed in circumstances.

Mst. Suban v. Allah' Ditta and others 2007 SCMR 635; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 and Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704 rel.

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

----S. 115---Revisional jurisdiction-Scope-Concurrent findings-Scope of revisional jurisdiction was very limited---Revisional Court could not set aside the concurrent findings of facts nor it could upset the same even if on appreciation of evidence a different view could be formed unless such findings were patently illegal, without jurisdiction or result of mis-reading and non-reading of material evidence or were based on conjectural presumptions or erroneous assumption.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 rel.

Haji Riaz Muhammad Khan and Faridullah Khan for Petitioner.

Sardar Ali Khan and Sardar Naeem for Respondents.

Date of hearing: 13th May, 2014.

P L D 2015 Peshawar 34

Before Mrs. Irshad Qaiser, J

SHOAIB---Petitioner

Versus

SADIA ALTAF and 3 others---Respondents

Writ Petition No.407-A of 2010, decided on 12th June, 2014.

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

---S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for jactitation of marriage and restitution of conjugal rights---Talaq and Ruju---Condition---Wife filed suit for jactitation of marriage whereas husband filed suit for restitution of conjugal rights--- Both the suits were consolidated and suit of wife was decreed whereas that of husband was disniissed---Validity---Associating of two righteous persons as witnesses to Talaq' andRuju' was a condition for the same---Husband had pronounced Talaq' to his wife but no witness of the same had been cited in the divorce deed---SaidTalaq' had been allegedly revoked by the husband and he had made return Rujii' but no witness of the same had been cited in the affidavit---Factum ofRuju' was not brought to the notice of wife---Wife after conzpletion of Iddat' had contracted second marriage---Present suit had been filed by the husband after the expiry of period of Iddat'---Ilusband had never made any contact with the wife during the period of Iddat'---Husband with mala fide intention and obvious object to harass and tease wife had filed the present suit---Conduct of husband was not only against the teachings of Islam but also embarrassing attitude towards the wife-Alleged effort of husband with regard toRuju' towards wife was not sufficient---No justification existed to break the tie between wife and her second husband or separate the children from their parents--- Both the courts below had rightly appreciated the evidence produced by the parties---No misreading or non-reading of evidence or any legal defect was pointed out in the impugned judgments-Constitutional petition was dismissed with costs of Rs.10,000/ to be paid to the wife.

Holy Quran and Sunnah and Fatawa-e-Alamgiry Jild No.2, Chap.6, pp.478 and 482 rel.

Gulam Younas Khan Tanoli for Petitioner.

Muhammad Shahbaz for Respondents.

Date of hearing: 12th June, 2014.

P L D 2015 Peshawar 39

Before Ikramullah Khan, J

MUNICIPAL CORPORATION, PESHAWAR through Administrator and another---Petitioners

Versus

TAIMUR-UL-HASSAN and another---Respondents

Civil Revision No.45-P of 2014, decided on 23rd January, 2014.

Civil Procedure Code (V of 1908---

----Ss. 12(2) & I15---Setting aside of judgment decree or order--- Forum---Pendency of proceedings---Judgment and decree passed by Trial Court was maintained by Lower appellate Court as well as High Court and matter was pending before Supreme Court---Petitioners filed application under S.12(2), C.P.C. before Lower Appellate Court for setting aside its judgment maintaining that of Trial Court---Lower Appellate Court dismissed the application on the ground that it has to be filed before the last court affirming judgments of courts below--- Validity---Application under section 12(2), C.P.C. was to be filed before the court, which was last in series except where an appeal revision or leave to appeal was dismissed on any ground except merit--- High Court did not find any patent infirmity, irregularity or legal flaw in the judgment passed by Lower Appellate Court as the same was based on correct appreciation of law---Revision was dismissed in circumstances.

Nsrullah Khan and others v. Mukhtiar ul Hassan and others PLD 2013 SC 478; Muhammad Aslam v. Molvi Muhammad Ishaq 2012 SCMR 147; Sarfaraz v. Muhammad Aslam Khan 2001 SCMR 1062; Muhammad Yousaf v. Federal Government 1999 SCMR 1516; Muhammad Yousaf v. Noor Din and others PLD 2002 SC 391; Abid Kamal v. Muddassar Mustafa 2000 SCMR 900; Maulvi Abdul Qayyum v. Syed Ali Ashgar Shah and 5 others 1992 SCMR 241; Mubarak Ali v. Fazal Muhammad and another PLD 1995 SC 564 and Allah Dad and others v. Abdul Ghani and others PLD 2010 SC 580 rel.

Ziauddin Siddique for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd January, 2014.

P L D 2015 Peshawar 44

Before Abdul Latif Khan, J

MUJEEB-UR-REHMAN BAIG---Petitioner

Versus

ASHRAF ALI and others---Respondents

Civil Revision No.117 and C.M. 66 of 2011, decided on 1st November, 2013.

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

----O. I, R.10 & O.XLI, R.20---Limitation Act (IX of 1908), Art.152---Specific Relief Act (I of 1877), S.12---Suit for specific performance---Failure to implead necessary party to the suit at appeal stage---Effect---Joint decree in favour of decree holders/respondents could not be split and the same had become final; vested right had accrued to them so revisional court could not allow impleadment which would amount to giving premium to one's own neglect to the detriment of another---Provisions of Limitation Act, 1908 and Civil Procedure Code, 1908, relating to filing of appeal, subject to certain limitations could not be ignored by the appellate court as vested rights had accrued to the other party due to omission on the part of plaintiff and such rights could not be taken away---Appellate court had no jurisdiction under O.XLI, R.20, C.P.C. to allow the impleadment of those respondents omitted by the plaintiff after period of limitation for filing of appeal---Order XLI, R.20, C.P.C. was applicable to pending appeal---Where appellants impleaded only few and omitted other respondents holding a joint decree, there would be no proper appeal pending before the court of appeal---Appeal would not fail to the extent of share of those not impleaded as joint decree holder had to stand or fall as a whole---Failure to implead amounted to gross negligence---Revision, being not maintainable, was dismissed.

Mst. Maqbool Begum's case PLD 1982 SC 46; Abdul Qadir's case PLD 1987 Lah. 232 and Sher Muhammad's case 2001 MLD 1964 rel.

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

----O. XLI, R.20---Application of O.XLI, R.20, C.P.C.---Scope---Appellate court had no jurisdiction under O.XLI, R.20, C.P.C. to allow the impleadment of those respondents omitted after period of limitation for filing of appeal---Order XLI, R.20, C.P.C. was applicable to a pending appeal.

Atta Muhammad Sawag for Petitioner.

Muhammad Younis Thaheem for Respondents.

Date of hearing: 1st November, 2013.

P L D 2015 Peshawar 51

Before Malik Manzoor Hussain, J

ZHUR BAS---Petitioner

Versus

GUL MURAD and others---Respondents

Civil Revision No.4 of 2013, decided on 18th November, 2013.

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

----O. XLI, R.11---Specific Relief Act (I of 1877), S.42---Suit for declaration---Dismissal of appeal without summoning record of Trial Court---Plaintiff contended that appellate court could not dismiss the appeal in limine without summoning of record from the Trial Court---Validity---Nothing was produced by plaintiff to rebut the distribution of property by predecessor of the parties in his life time---Plaintiff having not objected to transfer of land by predecessor of the parties to his brothers was estopped to agitate the same through suit---Concurrent findings could not be disturbed in revisional jurisdiction unless judgments were perverse or without jurisdiction---Order XLI, R.11, C.P.C. empowered the appellate court to dismiss the appeal without sending notice to the lower court for transmission of record and without notice to respondents---Where appeal could be decided on the basis of material available before the appellate court, summoning of record was not necessary---Judgments of lower courts did not call for any interference---Revision was dismissed.

Ashiq Ali and others v. Mst. Zamir Fatma and others PLD 2004 SC 10; Hameed Ahmad v. Gulab Khan 2006 SCMR 895; Muhammad Ibrahim v. Mst.Irshad Begum and others PLD 2002 SC 720 and Ali Muhammad v. Commissioner Afghan Refugees, N.-W.F.P. and others 1995 SCMR 1675 rel.

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

----O. XLI, R.11---Dismissal of appeal without summoning record of Trial Court---Powers of appellate court---Scope---Order O.XLI, R.11, C.P.C. empowered the appellate court to dismiss the appeal without sending notice to respondents---Where appeal could be decided on the basis of material available before the appellate court, summoning of record was not necessary.

Abdul Wali Khan for Petitioner.

Afzal Nageen for Respondents.

Date of hearing: 18th November, 2014.

P L D 2015 Peshawar 54

Before Muhammad Daud Khan and Syed Afsar Shah, JJ

ZIA UR REHMAN---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.47-B of 2010, decided on 10th September, 2014.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 148 & 149---Criminal Procedure Code (V of 1898), Ss.417(2-A) & 367---Qatl-i-amd, attempt to commit qatl-i-amd rioting, common intention---Appeal against acquittal---Trial Court, while recording the judgment, had made complete departure from the provisions of S.367, Cr.P.C., whereby it was necessary that "judgment" would contain the point or points for determination, the decision thereon and the reasons for the decision---Such judgment passed by the Trial Court, was set aside and case was remanded for re-writing of judgment in accordance with law, within specified period.

Abdur Rashid Munshi and 3 others v. The State PLD 1967 SC 498; Sahib Khan and 4 others v. The State and others 1997 SCMR 871; Ashiq Hussain and others v. The State and 2 others 2003 SCMR 698 and Khalid Mehmood v. The State 2004 PCr.LJ 984 ref.

Sanaullah Khan Gandapur for Appellant.

Saifur Rehman Khattak, Addl. A.-G. for the State.

Muhammad Rasheed Khan Dirmakhel for Respondent No.2.

Date of hearing: 10th September, 2014.

P L D 2015 Peshawar 59

Before Muhammad Daud Khan, J

KHAYAL BADSHAH---Petitioner

Versus

AFZAL KHAN and 4 others---Respondents

Civil Revision No.252-B of 2013, decided on 3rd June, 2014.

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

----O. IX, Rr.6, 7, 13 & S.96---Specific Relief Act (I of 1877), S.42---Limitation Act (IX of 1908), Arts.164 & 181---Suit for declaration---Ex parte proceeding---Limitation---Scope and application of O.IX, Rr.6 & 7, C.P.C.---Order IX, R.7, C.P.C. provided remedy against order passed under O.IX, R.6, C.P.C.---Limitation Act, 1908 did not provide (for) limitation for filing application under O.IX, R.7, C.P.C.---Order IX, R.7, C.P.C. itself governed period of limitation for filing application for setting aside ex parte proceeding---Application for setting aside ex parte proceeding could only be filed "at or before such hearing" (to which case was adjourned ex parte)---Where ex parte decree had been passed, defendant was precluded from questioning the order passed under O.IX, R.6, C.P.C. before the same court, therefore, defendant could not seek setting aside of ex parte proceeding by application under O.IX, R.13, C.P.C.---Defendant could seek setting aside of ex parte decree either through filing application under O.IX, R.13, C.P.C. or by preferring appeal under S.96, C.P.C.---Under Art.164 of the Limitation Act, 1908 limitation for filing application under O.IX, R.13, C.P.C. was 30 days---Article 164 of the Limitation Act, 1908 was divisible in two parts---First part postulated that the period of limitation was 30 days from the decree while the second part provided that if summons was not duly served then from the date of knowledge the period of thirty days shall be computed---Word "summons" in Art.164 of the Limitation Act, 1908 referred to the first summons issued to defendant after institution of suit---Defendant would be entitled to the benefit of reckoning the limitation of 30 days from his knowledge of decree where he established that summons was not duly served---Where summons was duly served, limitation would run from date of decree---Summon , in the present case, was duly served upon defendant---Defendant filed written statement but disappeared subsequently and filed application for setting aside ex parte decree after four months and twenty days without sufficient cause---Court could not grant free passage of time to the people who were not vigilant about their rights---Law of limitation had to be construed strictly---Delay of each day had to be explained by a party---Valuable rights accrued to the other party by lapse of time---Defendant was barred from challenging the merits of ex parte decree---Ex parte decree had the same effect as a contested decree with the exception that the modes and mechanism for the setting aside of such decree may be more---Revision was dismissed.

PLD 1981 SC 21 ref.

2005 YLR 1096; Muhammad Hussain and others v. Settlement and Rehabilitation Commisison and others 1975 SCMR 304 and Ministry of Defense v. Javed and Co. 2005 CLC 1004 rel.

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

----Art. 164---Word "summons"---Scope---Word 'summons' in Art.164 of the Limitation Act, 1908 referred to the first summons issued to defendant after institution of suit. [p. 63] D

Mian Kamal Din v. Malik Muhammad Bashir and others PLD 1962 Lah. 456 rel.

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

----Art. 164---Scope of Art.164, Limitation Act, 1908---Under Art.164 of the Limitation Act, 1908 defendant would be entitled to the benefit of reckoning the limitation of 30 days from his knowledge of decree where he established that summons was not duly served---Where summons was duly served, limitation would run from date of decree. [p. 63] E

Mian Kamal Din v. Malik Muhammad Bashir and others PLD 1962 Lah. 456 rel.

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

----O. IX, R.13---Ex parte decree---Setting aside of---Principles---Ex parte decree had the same effect as a contested decree with the exception that the modes and mechanism for the setting aside of such decree may be more.

Hazratullah and others v. Rahim Gul and others PLD 2014 SC 380 rel.

Shad Ali Khan Khattak for Petitioner

Muhammad Ibrahim Khan for Respondent.

Date of hearing: 3rd June, 2014.

P L D 2015 Peshawar 65

Before Rooh-ul-Amin Khan, J

MUHAMMAD SAEED---Appellant

Versus

THE STATE and another---Respondent

Criminal Appeal No.79-B of 2013, decided on 18th July, 2013.

(a) Criminal trial---

----Conviction, recording of---Conviction could not be recorded on the basis of mere presumptions, but strong evidence of unimpeachable character was the criteria for curtailing the liberty of accused---Prosecution was duty bound to prove its case through cogent, coherent, and evidence of unimpeachable character beyond a reasonable doubt; and it could not take benefit of the weaknesses of the defence.

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

----Ss. 496-A & 496-B---Enticing or taking away or detaining with criminal intent a woman---Commission of zina---Appreciation of evidence---Complainant had not charged any body by name and had not levelled any allegation of abduction/enticing or zina even against the unknown culprits---Complainant had charged accused and acquitted co-accused in supplementary statement---No ocular account was available to prove the enticing away of alleged abductee and thereafter committing zina with her by accused---Woman Medical Officer, who examined alleged victim, did not find any sign of violence on her body, and also no scratches, bruises or abrasions, were seen on body of the alleged victim---On pre-vaginal examination V/VOS, were found closed, and A/V was normal in size---Pregnancy test was done and found negative---No evidence, either ocular or circumstantial could be brought on record to prove the commission of zina by accused and there was no evidence to prove abduction/enticing away of the victim---Co-accused being father-in-law of accused, it was not appealable to reason that father-in-law would help to bring a married lady to the house of his son-in-law for marriage purpose, as co-wife of his daughter to devastate the life of his own daughter---Involvement of acquitted co-accused, prima facie was sufficient to falsify the prosecution story---Statement of lady accused about commission of illegal intercourse, had been contradicted and quashed by her medical report and statement of lady doctor which by no way would be helpful to prosecution, when otherwise, the prosecution had failed to prove the guilt of accused through cogent and trustworthy evidence---Findings rendered by the Trial Court, in circumstances were against the available evidence and law on the subject---Conviction and sentence recorded against accused were set aside, they were acquitted of the charges levelled against them, and were set at liberty.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

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

----S. 342---Examination of accused---Object of S.342, Cr.P.C.---Nature of statement of accused---Use of statement of accused against co-accused---Nothing was provided in S.342, Cr.P.C. that statement of accused could be used against co-accused or any other person---Statement of accused under S.342, Cr.P.C., was neither a confession or equated with the confession, but same was a plea which could be taken by accused in his defence to explain the evidence produced against him---Prime object of S.342, Cr.P.C., was to provide accused an opportunity to offer his explanation about the evidence produced against him and it was neither meant to collect evidence against him, or anybody else, nor any part of such statement could be used against any other person---Accused giving evidence against his co-accused would be liable to cross-examine by the said co-accused, and incriminating evidence given by him against his co-accused, would also be put before co-accused for explanation---If not done so, such evidence could not be used against accused to be made the basis of his conviction---Statement of an accused under S.342, Cr.P.C. could be used as admission against its maker, when prosecution had satisfactorily discharged its initial burden of bringing home guilt of accused, but such statement had absolutely no evidentiary value against co-accused---Section 342, Cr.P.C., also aimed at bringing to the notice of accused such point of evidence which was likely to influence the mind of the court to draw adverse inference against him.

Shabir Ahmad v. The State PLD 1995 SC 343 rel.

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

----Art.18---Criminal Procedure Code (V of 1898), Preamble---Legal worth and admissibility of any kind of evidence---Determination---Procedural and substantive law---Criminal Procedure Code, 1898, was not a substantive law, but it was procedural law---Qanun-e-Shahadat, 1984, was the relevant substantive law, which determined the legal worth and admissibility of any kind of evidence or statement.

(e) Criminal trial---

----Innocence of accused---Scope---Every accused in a criminal case would be deemed as innocent, unless proved guilty by the prosecution beyond any doubt.

(f) Criminal trial---

----Sole statement of accused for conviction or acquittal, or fixation of criminal liability on accused---Duty of court---Courts were not supposed to accept the sole statement of accused for conviction or acquittal, or to fix criminal liability on accused---Wrong answer, without any supporting piece of evidence, and inconsistence with the material collected by prosecution, could not be based for conviction, particularly when co-accused had ulterior motive or personal vendetta---Accused could not be convicted even if he had confessed his guilt, or pleaded guilty, if the facts on record ran contrary; and did not constitute an offence---For conviction of accused, the court was under legal obligation to consider the entire record; and available evidence.

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

----Ss. 496-A & 496-B---Criminal Procedure Code (V of 1898), S.417(2-A)--- Enticing or taking away or detaining with criminal intent a woman---Commission of zina---Appeal against acquittal---Appreciation of evidence---Co-accused who was acquitted, had been attributed the role of facilitating accused---Accused being son-in-law of said co-accused, no evidence was on record to prove the guilt of co-accused---Was not appealable to a prudent mind that real father would help his son-in-law, in abducting a lady for him to set in ablaze, the life of his own real daughter---Trial Court, in circumstances, was quite justified and right to acquit him of the charge---Appeal against acquittal, was dismissed.

Mir Zali Khan and Muhammad Haroon for Appellant.

Faridullah Khan, D.A.G. for the State.

Khush Amir Khattak for the Complainant.

Date of hearing: 18th July, 2013.

P L D 2015 Peshawar 76

Before Ikramullah Khan and Musarrat Hilali, JJ

SHAFIQ AHMAD, ASI---Petitioner

Versus

SHER ALAM and 6 others---Respondents

Writ Petition No.1821-P of 2014, decided on 7th August, 2014.

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

----Ss. 22-A, 154 & 173---Constitution of Pakistan, Art.199---Constitutional petition---Registration of criminal case---Powers of Justice of Peace---Quashing of judgment/order---Petitioner had sought quashing of impugned judgment/order passed by Justice of Peace, whereby Local Police was directed to register criminal case against him---Two versions with regard to the same incident, which could not be scrutinized and analyzed by High Court in exercise of its constitutional jurisdiction, without recording evidence---Under provisions of S.154, Cr.P.C., every Police Official, was legally bound to register a cognizable case, and after proper investigation, submit report under S.173, Cr.P.C., before the Trial Court; along with finding with regard to innocence or otherwise of accused---Police had no authority to hold the report to be false and conducted without proper investigation into the offence and holding preliminary inquiry---Justice of Peace, having been conferred with jurisdiction under S.22-A, Cr.P.C., could exercise the same on satisfaction that a cognizable offence had been committed and direct the police for registration of case---Justice of Peace, seized of a complaint, under S.22-A, Cr.P.C. was to follow, the principles and procedure as provided under S.154, Cr.P.C.---Justice of Peace, had to apply the test of applying prudent mind in ascertaining, as to whether the facts of the case constituted a cognizable offence---When Justice of Peace arrived to the conclusion that a cognizable offence had been committed, he was left with no choice, but to direct the local Police in whose jurisdiction the offence was committed to register the case through lodging of F.I.R. under the relevant provisions of law, attracted to the facts of the case---No infirmity, illegality, want of jurisdiction could be pointed out, in the impugned judgment to warrant interference in the judgment---Petition was dismissed.

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

----Ss. 154, 169 & 173---Registration of F.I.R.---Investigation of case---Submission of challan---Officer incharge of a Police Station under S.154, Cr.P.C., was legally bound to register the F.I.R. in the relevant book---Mere lodging of F.I.R., by no means, curtailed the power of the Investigating Officer concerned, to investigate the occurrence, or otherwise of the information conveyed---If the Investigating Officer arrived at the conclusion that the allegation, put forward against accused were false, concocted or fabricated; and no evidence could be collected to hold accused responsible for commission of the offence, he could legally recommend the accused under S.169, Cr.P.C.; and also place him in column 2 of the report under S.173, Cr.P.C., to be discharged from the charges levelled against accused---Officer incharge of Police Station, or any one else, had no power to refuse to reduce into writing the relevant information of a cognizable offence, in the relevant register under S.154, Cr.P.C.---Not mandatory, or incumbent upon the officer incharge of concerned Police Station to forthwith arrest nominated accused, after registration of the case, when there existed no likelihood of absconsion of accused, or apprehension of tampering and hampering with prosecution evidence---Where a public servant was charged with a criminal case Government need not suspend, in every cases, such public servant---If a public servant was arrested, he would proceed on leave, and when the Government come to the conclusion that he had prima facie committed an offence, might proceed further to suspend his services.

Naqeeb Ahmad Takker for Petitoner.

Majahid Ali Khan, Addl. A.G. and Muzamil Khan and Mian Abdul Aziz for Respondents

Date of hearing 7th August, 2014.

P L D 2015 Peshawar 80

Before Yahya Afridi, J

STATE FORCE COMMANDER ANTI-NARCOTICS FORCE, N.-W.F.P, through DAG------Appellant

Versus

Haji IQBAL SHAH and others---Respondents

Criminal Appeal No.211 of 2008, decided on 10th March, 2014.

(a) Constitution of Pakistan---

----Arts. 189 & 201---Decision of Superior Courts binding on other courts---Precedent---Scope---Court in order to maintain consistency in its judgment was to follow its own decisions and in case where it differed with the precedent cited before it, it had to give reasons for the same and proceed with its decision---In case a bench of the High Court or the apex court, differed with the view rendered by an earlier decision, it could render reason for the same and proceed to decide the case, where the decision cited and differed was of a bench comprising worthy judges, who were less in number---In case the judgment cited and differed was of a bench consisting of the same or more number of worthy judges, it was not to proceed and decide the case, but to refer the same for adjudication before a larger bench.

Haji Iqbal Shah's case 1999 PCr.LJ 1125; Obaid Khan's case 2012 PCr.LJ 1765; Motilal Padampat Sugar Mill's case AIR 1979 SC 621; Multiline Associates. v. Ardeshir Cowasjee PLD 1995 SC 423; Muhammad Saleem v. Fazal Ahmad 1997 SCMR 314; Babar Shehzad v. Said Akbar 1999 SCMR 2518; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 and All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600 ref.

(b) Constitution of Pakistan---

----Arts. 189 & 185(3)---Leave to appeal---Scope---Leave granting order passed by the Supreme Court, did not lay down a law to be followed, having a binding force, as was envisaged under Art.189 of Constitution.

Muhammad Iqbal Khan's case PLD 1963 (W.P.) Lah. 11; Muhammad Ismail v. The State PLD 1974 Kar. 29; Yousaf A. Mitha and 3 others v. Aboo Baker and 2 others PLD 1980 Kar. 942 and Shipyard K. Damen International v. Karachi Shipyard and Engineering Workers Ltd. PLD 2003 SC 191 ref.

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

----Ss. 32 & 43---Appellate jurisdiction, exercise of---High Court while exercising its appellate jurisdiction, could hear appeals filed by an aggrieved person, 'inter alia' against an order of forfeiture passed by the special court under S.32 of Prevention of Smuggling Act, 1977.

Said Rehman Khan for ANF/State.

Barrister Zahoorul Haq for Respondents.

Imtiaz Ali for Respondent in C.M. No.398 of 2012.

P L D 2015 Peshawar 90

Before Abdul Latif Khan, J

NIAZ MUHAMMAD---Appellant

Versus

ABDUL REHMAN---Respondents

Civil Revision No.13-M of 2014, decided on 15th August, 2014.

Civil Procedure Code (V of 1908) ---

----O. V, Rr. 15 & 20---Limitation Act (IX of 1908), Art. 164---Summons, service of---Procedure---Substituted service---Principles---Report of Process Server was not proper and service of defendant was not effected at any stage of the proceedings---Service effected through brother of defendant (living in separate house) could not be termed as legal/personal service of defendant---Defendant was to be served in person or through his agent empowered to receive/accept the service---Service might be made through male member of the defendant's family who was residing with him in the same house if he was not found on the given address nor there was any authorized agent---Service effected through servants/"Naukars" who were not family members would be of no value and only male member who was residing in one house would be considered as valid service---Court would get jurisdiction to dispose of the matter once service was effected upon the defendant---Object of service on defendant was to enable him to resist the claim if so desired---Private knowledge of defendant with regard to pendency of proceedings was immaterial---Only empowered agent could accept the summons---Process Server was supposed to gather the exact information so that proper and personal service of the parties could be obtained within time---Presiding Officer was to look into the service effected by the Process Server and inquire about the authenticity and correctness of the same---Electronic devices should be used in order to obtain effective service of the parties---Provisions of O.V, R.15, C.P.C. had been violated in the present case---Substituted service had not been done nor serving official had been examined with regard to refusal to sign the summons on defendant---Substituted service could be termed as due service---Process of service through newspaper had been made but same was in disregard of law as same was made after recording of evidence---Mischief of limitation of 30 days had to be attracted where summons was served personally or from the knowledge---No personal service was effected in the present case nor procedure provided for service under the law had been followed---Ex parte proceedings culminated into ex parte decree had not been passed in line with law---Impugned decree had been passed without discussing the evidence ex parte recorded nor any reason had been assigned in support of such ex parte decree---Lis was to be decided with a reasoned judgment/order instead of deciding the same in a slipshod manner---Judgment/order should be a speaking one and should not be the result of min-reading or non-reading of available record---Trial Court had not discussed in the judgment/order with regard to the documents relied by the plaintiff---Impugned judgment/order was result of non-reading and misreading of evidence rather same could not be termed as a judgment/order in the eye of law---Process Server had not been examined which was mandatory---Both the courts below had committed illegality which was fatal to the case---Conduct of defendant was also not above board throughout the proceedings---Application for setting aside ex parte decree was moved after considerable delay of more than a year without any explanation for delay---Defendant was burdened with a cost of Rs.50,000/- to be paid to the plaintiff before the Trial Court---Impugned judgments were set aside---Revision was accepted in circumstances---Trial Court was directed to decide the matter within a specified period.

Tariq Aziz for Petitioner.

Muhammad Iqbal for Respondent.

Date of hearing: 15th August, 2014.

P L D 2015 Peshawar 94

Before Ikramullah Khan, J

MUHAMMAD SAEED and 3 others---Petitioners

versus

ABDUR RAHIM---Respondent

Civil Revision No.824 of 2011, decided on 21st April, 2014.

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

----Ss. 8 & 9---Transfer of Property Act (IV of 1882), S. 111---Civil Procedure Code (V of 1908), S. 9, O. XX, R. 4 & O. VII, R. 10---Khyber Pakhtunkhwa Tenancy Act (XXV of 1950), Ss. 2 (i), 7 & 49---West Pakistan Land Revenue Act (XVII of 1967), S. 48---Suit for possession of immovable property---Property in question not situated in urban area---Jurisdiction of civil court---Forfeiture of lease---Conditions---Scope---Plaint, return of---Contention of plaintiff was that defendants were tenants who were residing in the disputed house but they had failed to pay rent in the shape of natural manure/debris/dung of animals---Suit was decreed concurrently---Validity---Owner or landlord of a premises/immovable property might invoke jurisdiction of civil court for dispossession or ejectment of or taking possession back over such property from a person entered upon the same as a tenants or otherwise subject to conditions enumerated under Ss. 8 & 9 of Specific Relief Act, 1877 or the provisions contained in Transfer of Property Act, 1882 in case property was not situated in an urban area otherwise same would be dealt under West Pakistan Urban Rent Restriction Ordinance, 1959---No controversy existed between the parties with regard to landlord and tenants over the suit house---Disputed house was not situated or occupied as site of a building in a village or town but same was used for agriculture purpose and subservient to agriculture---Plaintiff never alleged that defendants were either trespasser or they had forcibly occupied the suit house but his stance was that defendants had defaulted in providing natural manure to his land---Defendants were not defaulter in providing natural manure---Trial Court passed decree for possession on the ground that plaintiff was owner of disputed house which was illegal as present case would not fall under Ss.8 or 9 of Specific Relief Act, 1877---Both the courts below were not having jurisdiction in the present case---When defendants were tenants over the suit house which would fall within the definition of "land" then matter would be within the jurisdiction of Revenue Courts---Judgment rendered in a suit should be based on reasons---Grounds for forfeiture of lease did not attract in the present case as no findings against the defendants were given by both the courts below nor prior notice was given by the plaintiff to the defendants for determination of such lease---No estoppel was applicable against law---Interlocutory order could be assailed in appeal or revision against the final judgment passed by the Trial Court---Revision was accepted in circumstances and impugned judgments and decrees were set aside and plaint was directed to be returned in original to the plaintiff for presenting the same before competent court law.

Shamshad Khan and 2 others v. Arif Ashraf Khan and 2 others 2008 SCMR 269 rel.

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

----S. 8---Suit for recovery of immovable property---Scope---Section 8 of Specific Relief Act, 1877 had provided remedy for recovery of specific immovable property to a person entitled to the possession of such property against a person having no legal title to retain or occupy or possess such a land.

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

----S. 9---Suit by person dispossessed by immovable property---Scope---Section 9 of Specific Relief Act, 1877 had provided remedy to a person who had been dispossessed from immovable property without his consent otherwise than in due course of law to recover possession of the same by institution of a suit before the civil court.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not embark upon the factual controversy existed between the parties while exercising revisional jurisdiction---Court has to give reference to the facts alleged by one party and denied by other in the pleadings, evidence adduced by both the parties as well as concurrent findings on facts recorded by both the courts below, could not be oversighted at all in strive of just and fair dispensation of justice.

Gul Sadbar Khan for Petitioners.

Abid Ali Khan for Respondents.

Date of hearing: 21st April, 2014.

P L D 2015 Peshawar 104

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

Haji ZARO JAN---Appellant

versus

DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU, KHYBER PAKHTUNKHWA, through Deputy Prosecutor-General NAB, KPK and another---Respondents

Ehtesab Criminal Appeal No.121-P of 2013, decided on 29th January, 2014.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(da) & 9(a)(iv)---Acquiring assets disproportionate to known sources of income---Appreciation of evidence---Benamidar, rights of---Failure to give notice to Benamidaran---Audi alteram partem, principle of---Applicability---Accused was convicted for acquiring assets disproportionate to his known sources of income and he was sentenced to six years of imprisonment and forfeiture of assets---Assets forfeited were allegedly in the name of Benamidaran of accused---Validity---Entire scheme of National Accountability Ordinance, 1999, neither provided any remedy to Benamidar against order of Trial Court regarding confiscation of their property nor any opportunity to defend himself---Alleged Benamidaran had appeared before Trial Court and had recorded their statements in support of accused---After recording evidence of Benamidaran, Trial Court, if was not satisfied and was going to pass any adverse order against them, then under the principle of audi alteram partem, it was incumbent upon the court to summon Benamidaran and to give them opportunity to produce evidence in support of their claim as to ownership or to substantiate that they had sufficient sources of their own to acquire properties so confiscated by Trial Court---Alleged Benamidaran were condemned unheard, without providing them an opportunity of defence---High Court set aside conviction and sentence awarded to accused and the matter was remanded to Trial Court for decision afresh---Appeal was allowed accordingly.

Ehtesab Cr.A. No.3 of 2002; Muhammad Hussain v. The State Ehtesab Appeal No.9 of 2000; State through Prosecutor General v. Mehmood Hussain (Criminal Petition No.221 of 2001); Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408 and Syed Zahir Shah and others v. National Accountability Bureau and others 2010 SCMR 713 rel.

Abdul Sattar Khan for Appellant

Syed Azeem Dad for Respondents.

Date of hearing: 29th January, 2014.

P L D 2015 Peshawar 111

Before Abdul Latif Khan, J

Mst. NASEEB RANA---Petitioner

versus

Mst. HAZRAT HILAL and others---Respondents

Civil Revision No.537-M of 2012, decided on 13th May, 2014.

Islamic Law---

----Gift---Essentials principles and effect---Deed in question revealed that the husband had transferred his share of property to his wife (plaintiff) in lieu of dower---Transaction was gift from husband to wife and was not sale, therefore, examination of witnesses (stricto sensu) was not necessary as matter was between spouses---Scribing or registration of document was not required---Gift, according to Islamic Law could be effected even orally---Gift was transfer of property by one person to another without any exchange or consideration, accepted by or on behalf of the other (donee)---Intention of donor must be specified and clear---No specific form or writing was required for a valid gift---Though word 'gift' had not been used in the document in question yet use of specific language was not required, rather, intention of donor had to be seen---Defendant, in the present case, was brother of deceased husband of plaintiff and got inheritance mutation attested in his favour in order to deprive plaintiff of the property---Judgments and decrees of courts below were set aside---Revision was accepted.

Naeemuddin for Petitioner.

Adil Khan for Respondents.

Date of hearing: 13th May, 2014.

P L D 2015 Peshawar 115

Before Rooh-ul-Amin Khan, J

LIAQATULLAH KHAN---Petitioner

versus

THE STATE and 6 others---Respondents

Criminal Miscellaneous Quashment Petition No.11-D of 2014, decided on 21st March, 2014.

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

----S. 561-A---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Petition for quashing of FIR---Scope of S.561-A, Cr.P.C.---Complainant having come up with certain allegations, justice demanded that he could be given an opportunity to prove the same---Prima facie, case seemed to exist against petitioner/accused, quashing of FIR, at the very initial stage was not warranted by law---Ordinary course of trial was not to be deflected by resorting to quashing of the FIR, in circumstances---Inherent power under S.561-A, Cr.P.C., could only be invoked in extraordinary cases, wherein no offence was made out, even if the allegations made in the FIR were proved at the trial, or when there was a case of no evidence at all; or where there was a gross violation of any law; or where drastic illegality had been pointed out, causing grave miscarriage of justice---Section 561-A, Cr.P.C., did not authorize the court to assume any new jurisdiction, rather could be exercised only where there was any abuse of process of court---Petitioner during the trial, could invoke the provisions of S.249-A or S.265-K, Cr.P.C. before the Trial Court where trial in the case commenced---No justification being available to quash the F.I.R., petition was dismissed.

Rana Shahid Ahmad Khan's case 2011 SCMR 1957 and Sher Afgan Niazi's case 2011 SCMR 1813 ref.

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

----S. 561-A---Inherent jurisdiction of High Court---Under S.561-A, Cr.P.C.---Scope---Conditions for seeking interference under S.561-A, Cr.P.C.---For seeking interfere of High Court under S.561-A, Cr.P.C., three conditions were essential to be fulfilled; that the injustice which came to light, should not be of a trivial character; that the injustice which was noted was of a clear and palpable character, and not of a doubtful character; and that there existed no other provisions of law by which the party aggrieved could have sought relief---Power under S.561-A, Cr.P.C., was extraordinary in its nature, which could be exercised sparingly, carefully and with caution and only where such exercise was justified by the tests specially laid down by section itself, as its application in frequent and light manner, would tend to circumvent the due process of law---Jurisdiction under S.561-A, Cr.P.C., was neither alternative nor additional in its nature, and was to be rarely invoked only to secure the ends of justice, so as to seek redress of grievance for which no other procedure was available, but should not be used to obstruct or direct the ordinary course of criminal procedure---Such jurisdiction was designed to do substantial justice, and same was neither akin to appellate jurisdiction nor to the revisional jurisdiction---Such powers did not extend to uncalled for and unwarranted interference which the procedure prescribed by law, which must always be followed---If prima facie, an offence had been committed, the ordinary course of trial before the competent court, was not to be deflected by resorting to exercise of inherent jurisdiction---Jurisdiction under S.561-A, Cr.P.C., was only to fill in lacunae, existing in the Code of Criminal Procedure, in the matters, for which no specific provision or remedy had been provided---Section 561-A, Cr.P.C. would not be frequently applied for determining the guilt or innocence of accused at premature stage---Stifling and thwarting of criminal procedure, as it was against the scheme provided by Criminal Procedure was disapproved.

Bashir Ahmad v. Zafrul-Islam PLD 2004 SC 298 ref.

(c) Legal practitioner---

----Legal profession, functions, ethics and propriety---High Court observed that central function of the legal profession was to promote the administration of justice---If the practice of law was a public utility of great implication, and a monopoly was statutorily granted by the nation, it obliged the lawyer to observe scrupulously and with great conscientiousness those norms which made him worthy of the confidence of the community in him as a vehicle of justice social justice---Lawyers were officers of the court and they were responsible to the judiciary for the propriety of their professional activities---Legal profession had been granted powers of self-government---Self-regulation, would help to maintain the legal profession's independence from undue government domination---Lawyers could not behave with doubtful scruples, or strive to thrive on litigation---Canons of conduct could not be crystalised into rigid rules, but felt by the collective conscience of the practitioners as right---Courage, intellectual honesty and moral independence, ought to be chief ornaments of the advocate's personality---Law was no trade, briefs no merchandize---Leave of commercial competition procurement, should not vulgarize the legal profession---Lawyers, were not sold by executing power of attorney; they act under the authority to present the client's cause to the best of abilities, but one who intended to sell lawyer's office by executing power of attorney in negative way, it was professional misconduct, entailing punishment provided by Legal Practitioner and Bar Council Act, Pakistan Penal Code etc.

Akhtar Saeed Khan, Sh. Iftikharul Haq and Haji Muhammad Iqbal Kundi for Petitioner.

Sanaullah Shamim, AAG for the State.

Burhan Latif Kaisori for Respondent No.7.

Date of hearing: 21st March, 2014.

P L D 2015 Peshawar 121

Before Waqar Ahmad Seth, J

MUHAMMAD HAROON KHAN---Appellant

versus

M. ARIF KHAN---Respondent

R.F.A. No.7 of 2010, decided on 13th May, 2014.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 6 & 13---Suit for pre-emption---Shafi Sharik, Shafi Khalit and Shafi Jar---Talbs---Essentials---Proof---Appellate Court returned appeal filed by pre-emptor for want of pecuniary jurisdiction---Pre-emptor sought remand of appeal to District Judge---Validity---Appeal had been filed against judgment and decree and not against order whereby appeal was returned---Inherent power and doctrine of estoppel could not be applied to defeat the provisions of statute or enactments affecting jurisdiction of the court---Person invoking jurisdiction of any forum for any remedy, relief or redress could not turn around to question the validity of its verdict and such person could not be allowed to approbate and reprobate especially when such order had not been challenged---Remand of appeal to Appellate Court was held not to be appropriate when facts remained the same on merits---Witnesses of notice of Talb-e-Ishhad were not mentioned in the plaint---Defendants having denied the receipt of notice of Talb-e-Ishhad, pre-emptor had to produce postman in witness box---Talb-e-Muwathibat had not been proved, right of pre-emption being a feeble right even a single infirmity in its exercise would be fatal to suit for pre-emption---Pre-emptor having failed to substantiate the performance of talbs in accordance with law, ascertainment of market value of suit land was not necessary---Suit was rightly dismissed by Trial Court---Appeal was dismissed.

PLD 1993 SC 418; 2007 CLD 492 and PLD 1995 Kar. 66 ref.

Syed Munawar Hussain Shah and another v. Sahib Khan 2013 CLC 1488; Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 and 2011 SCMR 762 rel.

Ghulam Basit for Appellant.

Syed Mehbub Shah for Respondent.

Date of hearing: 13th May, 2014.

P L D 2015 Peshawar 125

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, JJ

MIR ALAM---Appellant

versus

AMROZ KHAN and another---Respondents

Criminal Appeal No.432 of 2011, decided on 11th September, 2014.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Substitution of accused---Case was of single accused, who was charged for murder of the deceased---Substitution of single accused in murder charge, though was a rare phenomenon, but for recording conviction of accused charged singularly for murder, there must be ocular account of unimpeachable character, trustworthy and confidence inspiring, corroborated by other material circumstantial evidence.

Dr. Israr ul Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 ref.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Related witness---Both complainant and prosecution witness were close relatives of the deceased---Testimony of both said witnesses, could not be discarded on their such relationship with the deceased, provided same was trustworthy, confidence inspiring and had corroboration from other strong circumstances of the incident.

(c) Criminal trial---

----Witness---Presence of eye-witness at the spot---Proof---Requirements---Eye-witness who claimed his presence at the spot, must satisfy the mind of court through some physical circumstances or through some corroborative evidence in support of his presence at the spot.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Both the alleged eye-witnesses had failed to establish their presence on the spot and to prove the occurrence in the mode and manner as alleged in the F.I.R.---None of said witnesses, having witnessed the occurrence, their testimony, which otherwise was suffering from material contradictions, and discrepancies, getting no corroboration from the site plan, medical evidence; and other circumstances of the incident, could not be believed and relied upon for recording conviction---Trial Court had given self-clashing findings; and had drawn unfair conclusion from the evidence on record---No weapon of offence, had been recovered from direct or indirect possession of accused; nor accused had confessed his guilt before the competent court of law---Mere recovery of crime empties, blood from the spot and the blood stained garments of the deceased; in absence of direct and substantive evidence, which had been disbelieved by the court; would not be sufficient to prove the guilt of accused---Such pieces of evidence were considered as corroborative evidence, which were taken along with direct and substantive evidence and not in isolation---Corroborative evidence, was meant to test the veracity of ocular evidence---Both corroborative and ocular testimony, were to be read together and not in isolation---Motive alleged, on the one hand remained unproved, while on the other hand, same did not appeal to the prudent mind---Prosecution evidence was pregnant with doubts; and was highly discrepant and full of infirmities---Prosecution had failed to bring home the guilt of accused through cogent and confidence inspiring evidence beyond shadow of doubt---Conviction and sentence of accused, recorded by the Trial Court vide impugned judgment, were set aside---Accused was acquitted of the charge and was set at liberty, in circumstances.

Riaz Ahmed's case 2010 SCMR 846 rel.

Ijaz Ahmed's case 1997 SCMR 1279; Asadullah's case PLD 1971 SC 541; Saifullah v. The State 1985 SCMR 410; Noor Muhammad's case 2010 SCMR 97 and Riaz Masih v. The State 1995 SCMR 1730 ref.

(e) Criminal trial---

----Motive---Scope---Prosecution, though was not called upon to establish motive in every case, but once it had set up a motive, and failed to establish, it would be the prosecution to suffer the consequence, and not the defence.

Hakim Ali and 4 others v. The State and another 1971 SCMR 432 and Noor Muhammad v. The State and others 2010 SCMR 97 ref.

(f) Criminal trial---

----Abscondence of accused---Effect---Abscondence alone, could not be a substitute of real evidence---Abscondence by itself, would be of no avail to prosecution in absence of any other evidence against absconding accused---Mere abscondence of accused, would not be enough to sustain his conviction.

Farman Ali and others' case PLD 1980 SC 201 ref.

Muhammad v. Pesham Khan 1986 SCMR 823 and Rohtas Khan v. The State 2010 SCMR 566 rel.

(g) Criminal trial---

----Benefit of doubt---Scope---One substantial doubt was enough for acquittal of accused---Better to acquit hundred culprits than convicting one innocent soul---Acquitting by error would be better than convicting by error.

Muhammad Zaman v. The State and others 2014 SCMR 749 rel.

Shabir Hussain Gigyani for Appellant.

Mujahid Ai Khan, A.A.G. for the State.

Saeedullah Khan for the Complainant.

Date of hearing: 11th September, 2014.

P L D 2015 Peshawar 134

Before Nisar Hussain Khan and Assadullah Khan Chamkani, JJ

MUHAMMAD ALI JAN---Appellant

versus

The STATE and another---Respondents

Criminal Appeal No.869-P of 2010, decided on 26th June, 2014.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 3---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Child witness---Trial Court, while recording statement of child witness, who was daughter of both, the deceased and accused, had not complied with the mandate of Art.3 of Qanun-e-Shahadat, 1984 to determine child's competency to testify by putting her questions---Said child witness, in her cross-examination, had categorically denied her presence with her father/accused at the time of making report in the hospital---Daily diary, had falsified said statement of said witness, wherein she had signed the report of accused as a verifier---Statement of said witness and peculiar facts and circumstances of the case showed that witness was a tutored witness, who resiled from her earlier version; due to influence of her maternal uncles, because her statement was recorded in presence of her maternal uncles; and that too in their house; which would mean that she was totally under the command of her maternal uncles---Story of administering poison to the deceased, seemed to be a cooked and fabricated story---No evidence had been brought on record to show previous strained relation or any oral altercation between the deceased and accused---Accused himself had requested for post-mortem examination of the deceased---Had there been anything black at the bottom, then accused would have never made such request---Version of child witness, also did not find support from medical evidence---Prosecution, could not seek support from factum of abscondence of accused when other material evidence of the prosecution had been disbelieved being pregnant of doubts; and suffering from material contradictions---Absconsion alone was not a conclusive proof of guilt of accused---Prosecution had failed to prove the guilt of accused through cogent and confidence inspiring evidence, its benefit was to be extended to accused---Conviction and sentence of accused recorded by the Trial Court, were set aside; accused was acquitted of the charge against him, and he was set at liberty, in circumstances.

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

----Art. 3---Child witness---Intelligence of child witness, determination of---What law required, was not the factor of age, but the intelligence of a child witness in the circumstances of the case---No hard and fast rule could be made to ascertain that child was a competent witness or not, but it depended on facts and circumstances of each case---Court had to accept such evidence with great care and caution, because a child of tender age was a dangerous witness; who could easily repeat glibly a story put into his/her mind; and would not possess discretion to distinguish between what he/she had seen and what he/she had heard---Court as a matter of prudence, was generally chary of putting absolute reliance on evidence of child witness; and look for corroboration of same from other circumstances in the case---Evidence of a child witness, before being acted upon, should be subjected to a close and careful scrutiny, and should not be relied upon, until and unless, it was corroborated by some strong circumstances in the case, because children, were most untrustworthy class of witnesses, because of their tender age, they often mistake dreams of reality, repeat glibly as of their own knowledge, what they heard from others; and was greatly influenced by fear of punishment, by hope of reward and desire of notoriety.

(c) Criminal trial---

----Abscondence---Scope---Abscondence, no doubt, was a relevant fact, but it could be used as a corroborative piece of evidence, which could not be read in isolation, but had to be read along with substantive piece of evidence.

Rohtas Khan v. the State 2010 SCMR 566 and Rahimullah Jan v. Kashif and another PLD 2008 SC 298 rel.

(d) Criminal trial---

----Benefit of doubt---Scope---Prosecution was bound to prove its case beyond any shadow of doubt, and if any reasonable doubt would arise in the prosecution case, benefit of the same must be extended to accused, not as a grace or concession, but as a matter of right.

Tariq Pervaz v. The State 1995 SCMR 1345 and Muhammad Akram's case 2009 SCMR 230 rel.

M. Zah-ul-Haq for Appellant.

Ishtiaq Ibrah for the Complainant.

Rab Nawaz, A.A.G. for the State.

Date of hearing: 26th June, 2014.

P L D 2015 Peshawar 143

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

SHER UMAR KHAN---Appellant

versus

KHAN PUR alias KHANEY and 2 others---Respondents

Criminal Appeal No.805-P of 2010, decided on 30th January, 2014.

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

----Art. 46---Dying declaration---Truth or falsity of dying declaration---Considerations---To find out truth or falsity of a dying declaration, a case was generally considered in all its physical environments and circumstances and it was necessary to find out as to how far the evidence or its different parts fit in with the circumstances; and possibility that could safely be deduced in a particular case---In order to pass the test of reliability, a dying declaration had to be subjected to very close scrutiny, keeping in view the fact that such statements were made in the absence of an accused; who had no opportunity of testing the veracity of the statement by cross-examination---In examining the intrinsic worth of dying declaration, the inherent consistency, genuineness and truth of the statement in the context of surrounding circumstances, the fact that the deceased was not tortured or motivated by hate or other mercenary motives to give an untrue account, or substitute, or falsely implicate persons in the crime, its credibility according to normal human standards; and the absence of any inherent infirmity or weakness therein, all had to be apprised---In examining its extrinsic value, on appraisal of surrounding circumstances i.e. that the deceased was in a fit condition to make the statement, would also had to be carefully examined.

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

----Art. 46---Dying declaration, recording of---Mechanism---Article 46 of Qanun-e-Shahadat, 1984, postulated a mechanism for recording the dying declaration---Dying declaration, whenever possible, preferably be recorded by a Magistrate; and if Magistrate was not possible, or there was no time to call the Magistrate due to deteriorating condition of the victim, it could be any body e.g., public servant like a Medical Officer, or any other person---In case of absence of the Magistrate and the Police Officer, such statement should be recorded in presence of two or more reliable disinterested witnesses in the case---If availability of two independent witnesses was not possible, then it should be recorded in presence of two or more Police Officials---Conviction could be based on dying declaration alone, provided it was true and free from prompting from outside---To accept such statement, without considering the surrounding circumstances of the case, would not be safe administration of justice to convict accused merely on the basis of so called dying declaration.

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

----Ss.302 & 34---Qanun-e-Shahadat (10 of 1984), Art.46---Criminal Procedure Code (V of 1898), S.417(2-A)---Qatl-i-amd, common intention---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Fact that the deceased, then injured, was fully conscious, well oriented in time and space, and capable to give statement was not believable---Possibility of prompting the deceased by his close relative in implication of accused, could not be ruled out---Report of the deceased, then injured, could not be termed as a "dying declaration", because neither same had been recorded by a Magistrate, nor by the Medical Officer, nor in presence of two or more reliable and independent witnesses; nor the Medical Officer had furnished any certificate regarding capability of the deceased to give statement---Both prosecution witnesses were closely related with the deceased---Said witnesses, were not only highly interested, but also inimical towards accused in view of the motive as alleged in the report---Statements of the witnesses had furnished contradictory stance about their visit to the spot---Investigating Officer did not support the versions of the prosecution witnesses, and stance of said witnesses was also belied by other circumstances of the case---Ocular evidence furnished by both the witnesses, was inconsistent and incompatible with medical as well as other circumstances of the incident creating serious doubts about the presence of said witnesses, and about mode and manner of the occurrence as alleged in F.I.R.---Charges imputed against accused having not been proved beyond reasonable doubt, accused would become entitled for his release on getting benefit of doubt in the prosecution case---No crime empty had been recovered from the spot despite alleged indiscriminate firing of accused---In absence of recovery of any crime empty, the recovery of .12 bore double barrel shotgun and 7 MM bore rifle from accused, and Forensic Science Laboratory's report regarding its working condition would be of no help to the prosecution---No independent and impartial witness had been associated with the recovery proceedings of the alleged crime weapon---Trial Court, in circumstances, had rightly acquitted accused by extending him benefit of doubt, after proper appraisal of evidence, to which no exception could be taken.

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

----Art. 46---Dying declaration, scrutiny of---Considerations---Fair hearing was the cardinal and fundamental principle in criminal administration of justice---Individual whose life, liberty or property, were in legal jeopardy, had a vested legal right to confront the evidence against him---Status of statement of the deceased then injured would not be more than a statement under S.161, Cr.P.C., and not a dying declaration---Dying declaration or a statement of a person without the test of cross-examination, was weak kind of evidence, and its credibility depended upon the authenticity of the record; and the circumstances under which it was recorded---Dying declaration like the statement of an interested witness, required close scrutiny; and was not to be believed merely for the reason that dying person was not expected to tell a lie.

Mst. Zahida Bibi v. The State PLD 2006 SC 255 rel.

(e) Criminal trial---

----Benefit of doubt---Prosecution was duty bound to prove its case beyond any reasonable doubt; and if any single and slightest doubt was created, benefit of the same must go to accused; and it would be sufficient to discredit the prosecution story, and entitled accused for acquittal---Accused was always considered as the most favourite child of law, and every benefit of doubt would go to him, regardless of fact, whether he had taken any such plea or not.

Faryad Ali v. State 2008 SCMR 1086 rel.

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

----S. 417(2-A)---Appeal against acquittal---Scope---Standards of assessing evidence in appeal against acquittal were quite different from those laid down for appeal against conviction---Marked difference existed between appraisal of evidence in appeal against conviction and in appeal against acquittal---Appraisal of evidence, in appeal against conviction was done strictly, and in appeal against acquittal such rigid method of appraisal was not to be applied, as there was already finding of acquittal given by the Trial Court after analysis of evidence on record---Scope of appeal against acquittal of accused was considerably narrow and limited---Unless the judgment of acquittal was perverse, completely illegal and on perusal of evidence, no other decision could be given, except that accused was guilty; or there had been complete misreading of evidence, leading to miscarriage of justice---High Court was slow in exercise of jurisdiction under S.417, Cr.P.C., unless it found that gross injustice had been done in administration of criminal justice---Appellate Court while dealing with acquittal order, had to exercise jurisdiction cautiously, because acquitted accused enjoyed double presumption of innocence, the one available to him before conclusion of the trial, and the second after the verdict of acquittal in his favour---Court while sitting in appeal against acquittal, must be slow in reversing the judgment of acquittal, unless it was found to be arbitrary, fanciful and capricious on the face of it, or was the result of bare misreading or non-reading of any material evidence.

Wali Khan Afridi for Appellant.

Muhammad Saleem Khan for Respondents.

Date of hearing: 30th January, 2014.

P L D 2015 Peshawar 154

Before Waqar Ahmad Seth and Muhammad Younis Thaheem, JJ

FAIT ULLAH alias Fatih ullah---Petitioner

versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Home Department, Khyber Pakhtunkhwa and another---Respondents

Writ Petition No.22-B of 2015, decided on 15th January, 2015.

(a) Administration of justice---

----Penal action---Principle---No order particularly, a penal action can be taken in vacuum without any proof and such orders are nullity in the eyes of law.

(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Aryt.199---Constitutional petition---Preventive detention---Statutory period---Preventive detention of petitioners was extended for more than 90 days without any reference to Board---Validity---Consecutive extension exceeding the period of three months was also against the law, as under S.3(5-a) of West Pakistan Maintenance of Public Order Ordinance, 1960, no person could be detained for a period exceeding three months unless the Board had reported before expiration of the period of three months, that there was in its opinion, sufficient cause for such detention---Petitioner had been detained for more than stipulated period by way of extending preventive detention, without constituting any Board and sufficient cause---High Court set aside order of detention of petitioner and set him at liberty---Petition was allowed in circumstances.

Hamayun v. DCO Kohat and 6 others 2014 PCr.LJ 173 rel.

Masood Adnan and Habibllah Khan for Petitioner.

Saifur Rehman Khattak, Addl. A.-G. for the State.

Date of hearing: 15th January, 2015.

P L D 2015 Peshawar 157

Before Nisar Hussain Khan and Ikramullah Khan, JJ

SAYYAR---Appellant

versus

The STATE---Respondent

Criminal Appeal No.187 of 2013 connected with Criminal Appeal No.183 of 2013, decided on 12th December, 2013.

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

----Ss. 340 (2) & 342---Defence plea---Scope---Accused during trial, can take as many grounds as he could, even though inconsistent---Disproof of such pleas cannot adversely affect case of accused---When accused desires Court to believe his plea to give favourable judgment based on the contention put forward by him in such situation, burden shifts to accused to prove plea raised by him through some conceivable evidence---Bald and uncorroborated statement recorded under S.342, Cr.P.C. cannot be a good ground for acquittal of accused involved in heinous kind of offences.

Sikandar Hayat v. The State 2003 PCr.LJ 97 and Kashif Siddique and 2 others v. The State 2008 PCr.LJ 1039 rel.

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

----Arts. 117 & 120---Fact---Onus to prove---Principle---If a person alleges a fact which is especially within his knowledge, the burden of proving that fact is upon that person.

Mian Muhammad Nawaz Sharif and others v. The State and others PLD 2002 Kar. 152 rel.

(c) Criminal trial---

----Defence plea, raising of---Stage---Any ground of innocence, available to accused should be taken at the earliest stage---Any such plea, not taken at the earliest available opportunity should not be accepted without great care and caution, when taken at the last stage of conclusion of trial---Such stance of accused should be scrutinized with utmost care in the light of all other available evidence on record.

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

----S.29---Presumption of possession of illicit articles---Shifting of onus, principle of---Applicability---Prosecution is not absolved from its primary duty to prove its case against accused beyond doubt---When prosecution is discharged of its such duty, then accused charged under Control of Narcotic Substances Act, 1997, should bring some susceptible evidence to substantiate his plea of innocence.

Sabir Khan v. The State 2007 YLR 904; Fida Muhammad v. State 2006 PCr.LJ 316 and Rahim Gul v. State 2011 PCr.LJ 1769 rel.

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

----Ss. 9(c) & 25---Recovery of narcotics---Appreciation of evidence---Conscious possession---Proof---Police witnesses---Chars weighing 15 kilograms was recovered from concealed cavity of vehicle driven by one of the accused---During investigation police arrested three accused two were travelling in the car while the third was alleged to be the person who had hired the vehicle---Trial Court convicted two accused and sentenced to imprisonment for life while the third who was travelling on passenger seat was acquitted as he was blind---Validity---Narcotics was recovered from conscious possession of accused driver of vehicle, which had been proved by prosecution beyond any reasonable doubt through cogent, reliable and convincing evidence---No mala fide or ill will of police officials existed against accused---Police witnesses in such like circumstances were as good witnesses as any other private person---Single dent in prosecution case was sufficient ground for acquittal of any accused---Standard of proof against accused facing charges under offence carrying capital punishment should have been above board, cogent and reliable---No person could be held responsible and convicted on uncorroborated circumstantial/shaky evidence---Prosecution did not succeed in bringing home the guilt of accused beyond reasonable doubt and benefit of the same was extended to accused who had hired the vehicle---High Court maintained conviction and sentence awarded to driver of the vehicle while accused who alleged to have hired the vehicle was acquitted of the charge---Appeal was allowed accordingly.

Zafar v. State 2008 SCMR 1254 and Muhammad Mushtaq v. The State 2008 SCMR 742 rel.

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

----S. 161---Statement of accused or witness---Admissibility---Statement recorded under S.161, Cr.P.C. by either accused or any other prosecution witness carries no evidentiary value and cannot be proved against co-accused being inadmissible in evidence.

Farhana Marwat for Appellant.

Mujahid Ali Khan, D.A.G. for the State.

Date of hearing: 12th December, 2013.

P L D 2015 Peshawar 169

Before Nasir Hussain Khan and Waqar Ahmad Seth, JJ

BAZAR GUL AFRIDI---Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Defence, Islamabad and 9 others---Respondents

Writ Petition No.360-P of 2013, decided on 8th May, 2014.

Constitution of Pakistan---

----Arts. 199, 245(3) & 247(7)---Constitutional petition---Armed Forces in aid of civil power---Federally Administered Tribal Areas---Petitioner sought lifting of curfew imposed by Armed Forces in the Federally Administered Tribal Area where military operation was going on---Petitioner also sought establishing of Judicial Commission and compensation to those civilians who had been killed or faced loss during war on terror---Validity---Held, there was double restriction imposed by the Constitution in exercise of constitutional jurisdiction of High Court, firstly in view of general bar contained in Art.247(7) of the Constitution regarding matters relating to Federally Administered Tribal Areas and secondly, special restriction was imposed by Art.245(3) of the Constitution relating to the areas where Armed Forces were acting in aid of civil power---Constituting Judicial Commission did not come within the jurisdictional domain of High Court nor High Court could direct Armed Forces to lift curfew from a particular area because it pertained to strategy of war in the field which was not controlled nor formulated by the courts; it was the job of field commanders who according to circumstances and situation prevailing in field could evolve and implement the strategy---High Court directed authorities of Federally Administered Tribal Areas to provide a forum for lodging complaints about civilian casualties and losses who should probe the matter about authenticity of complaint as well as quantum of loss sustained and remedy for the wrong caused to inhabitants---High Court further directed the authorities that after due verification of loss, the affectees be compensated according to policy of government by extending equal treatment to all and sundry---Petition was allowed accordingly.

Samiullah Afridi for Petitioner.

S. Attiq Shah, D.A.G., Qaiser Ali Shah, A,A.-G. and Iqbal Ahmed Durrani for Respondents.

Date of hearing: 8th May, 2014.

P L D 2015 Peshawar 175

Before Abdul Latif Khan, J

SAMI ULLAH KHAN and others---Petitioners.

versus

Sheikh TAJ MUHAMMAD through Legal Heirs and others---Respondents

C.R. No.266 of 2011 with C.M. No.66 of 2014, decided on 20th March, 2015.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2(2) & 4---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Past and closed transaction---Civil Court, jurisdiction of---Plaintiffs were owners in possession of suit land on the basis of mutation of sale attested on 26-6-1975---Grievance of plaintiffs was that in year, 1995, authorities cancelled original allotment of suit land--- Suit filed by plaintiffs. was decreed in their favour by Trial Court while appeal filed by defendants was dismissed by Lower Appellate Court---Validity---Settlement authorities seized to exist and powers bestowed upon Notified Officer were limited only to complete residual work in terms of Ss.2(2) & 4 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Notified Officer had no power to extend its jurisdiction to enter into question of legality or otherwise of any allotment made prior to Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, which had attained finality---Pending cases in terms of S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, did not mean to re-opening of closed and past transactions--- Even remand of cases by High Court did not empower Notified Officers to re-open closed transactions which had attained finality under the statute---Civil Court had jurisdiction to determine vires of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, where Tribunal/Notified Officer travelled beyond jurisdiction in case where no proceedings pending before him or remanded by High Court---Notified Officer could not deal with past and closed transaction and Deputy Commissioner acted in disregard of law and his act was coram non judice and nullity in the eye of law, therefore, jurisdiction was vested in Civil Court---Courts below decided the lis pending before them with conscious and application of independent mind which warranted no interference---No jurisdictional or legal error in judgments nor the courts below were misdirected or misled in arriving to the conclusion which was entirely in consonance with law and facts of the case---Revision was dismissed in circumstances.

2002 SCMR 1470; Government of Punjab Colonies Department Lahore v. Muhammad Yaqoob PLD 2002 SC 5 and Mst. Badshah Begum v. Additional Commissioner 2003 SCMR 629 rel.

Zainul Abideen Khan for Petitioners.

Ahmad Ali Khan, Amir Muhammad Baloch and Hashmatur Rehman for Respondents.

Date of hearing: 20th March, 2015.

P L D 2015 Peshawar 182

Before Yahya Afridi and Haider Ali Khan, JJ

Mst. SHUMAILA BIBI---Petitioner

versus

ZAHIR KHAN and 3 others---Respondents.

Writ Petition No.3634-P of 2012, decided on 18th November, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Recovery of dower---Terms and conditions of Nikah/marriage---Consent of father of husband to give his daughter-in-law a specific property in lieu of dower---Effect---Wife filed a suit for recovery of share of her husband in his father's house which was fixed as dower in the Nikah Nama---Suit was decreed by the Family Court but same was dismissed by the Appellate Court---Validity---Marriage between the parties was solemnized and Nikah Nama was scribed with regard to nature and quantum of dower---Terms and conditions for Nikah/marriage were settled by the elders of bride and bridegroom---Nikah Nama/agreement was duly registered---Share of husband, in the house of his father, had been given to the wife in the said Nikah Nama which bore his (father's) signature---Attesting witnesses of Nikah Nama had supported the same---Husband could not give any property in dower to his wife which did not belong to him but, in the present case, the father of bridegroom had consented and agreed to do so---Father of husband had no liability to give the debts of his son but when he had consented to give his daughter-in-law the specific property or portion of the same as her share in lieu of dower, father-in-law would assume the direct liability and stood surety---Father of husband was present at the time of Nikah having full knowledge of terms and conditions of Nikah Nama, and he agreed to give his house (to the extent of share of his son) to his daughter-in-law---No objection/legal action was initiated to exclude the said house from the Nikah Nama by the father of husband till filing of present suit by the wife---House in question (to the extent of share of husband) as mentioned in the Nikah Nama as dower albeit which did not belong to husband should be transferred to the wife---Impugned judgment and decree, passed by the Appellate Court, was modified and wife was declared to be entitled to the ownership of house in question (to the extent of share of husband) or in the alternative to its present market value determined by the Executing Court during execution proceedings---Constitutional petition was accepted, in circumstances.

Maj. Rifat Nawaz and 5 others v. Mst. Tahira and 2 others 2008 CLC 803; Mst. Shehnaz Akhtar v. Fida Hussain and 2 others 2007 CLC 1517 and Muhammad Anwar Khan v. Sabia Khanam PLD 2010 Lah. 119 rel.

Hassan U.K. Afridi for Petitioner.

Muhammad Iftikhar Khan for Respondents.

Date of hearing: 18th November, 2014.

P L D 2015 Peshawar 187

Before Malik Manzoor Hussain, J

ABDUL GHAFFAR and 5 others---Petitioners

versus

SULTANAT KHAN and 3 others---Respondents

Writ Petition No.223-M of 2011, decided on 12th March, 2015.

Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation (II of 1975)--

----Ss. 2 & 4---Constitution of Pakistan, Art.199---Constitutional petition---Jirga, decision of---No confidence on Jirga--- Effect--- Petitioners were aggrieved of decision made by authorities, whereby matter was remanded to Jirga for decision afresh---Plea raised by petitioners was that when they raised no confidence in Jirga, the matter could not be remanded to same Jirga for decision afresh---Validity---Authority concerned did not consider request of Chairman of "Jirga" for his replacement and forced him to give verdict, which spoke loudly about the conduct of the authority concerned---Possession of petitioners were admitted by witnesses examined by "Jirga" members and supported by strong corroborative evidence of settlement record---Court of law or Tribunals were vested with powers to decide matters rightly and not wrongly---In case a matter was not decided rightly then the same would come within definition of order passed without proper exercise of jurisdiction and could be struck down by High Court while exercising Constitutional jurisdiction---High Court set aside orders passed by authorities as the same were illegal, void ab initio and ineffective upon the rights of petitioners and suit filed by respondents stood dismissed---Petition was allowed in circumstances.

PLD 1987 SC 477 rel.

Muhammad Yar Malezai for Petitioners.

Abdul Halim Khan for Respondents.

Date of hearing: 12th March, 2015.

P L D 2015 Peshawar 192

Before Abdul Latif Khan, J

RASHEED and others---Petitioners

versus

SHER AMAN and another---Respondents

Civil Revision No.523 of 2009, decided on 26th February, 2015.

(a) Khyber Pakhtunkhwa Pre-emption Act (IV of 1987)---

----S. 13--Qanun-e-Shahadat (10 of 1984), Art.117---Talbs, performance of-Burden of proof-Plaintiff an illiterate villager---Effect---Plaintiff averred in pleadings time and place of Talb-e-Mawathibat but failed to mention date of making Talb-e-Muwathibat in his deposition---Plaintiff though had given all the details regarding place, time and date of Talb-e-lshhad and even minor details of the incident of Talb-e-Mawathibat except the date thereof-Pleadings of parties were of no avail if those had not been substantiated by producing cogent and confidence inspiring evidence-Plaintiff could not claim benefit of omission as 'illiterate villager' as there were no legal provisions to treat case of villager at variance from citizens hailing from urban area -Plaintiff was unable to discharge burden of proof regarding performance of Talb-e-Muwathibat in terms of Art.117 of Qanun-e-Shahadat, 1984 and decree of lower courts were set aside in circumstances.

(b) Pleadings--

----Pleadings of parties were of no avail if those had not been substantiated by producing cogent and confidence inspiring evidence.

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

----S. 115---Revision---Concurrent findings---When courts below had misread record of case and concluded perverse concurrent findings, High Court in its revisional jurisdiction was vested with powers to set aside orders of courts below---Order accordingly.

Abdul Sattar Khan for Petitioners.

Atizaz Mansoor for Respondents.

Date of hearing: 26th February, 2015.

P L D 2015 Peshawar 194

Before Yahya Afridi and Musarrat Hilali, JJ

MUHAMMAD RAFIQ BANGASH---Petitioner

versus

The STATE through Advocate-General and 4 others---Respondents

W.P. No.1563-P of 2014, decided on 17th July, 2014.

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

----S. 9(b)---Criminal Procedure Code (V of 1898), S.497---Constitution of Pakistan, Art.199---Constitutional petition---Power of High Court to grant bail---High Court had the power to grant bail under Art.199 of the Constitution, independent of any statutory source of jurisdiction as S.497, Cr.P.C.---High Court observed that S.9(b) of National Accountability Ordinance, 1999 to that extent was ultra vires of the Constitution, which could be amended suitably---Person accused of National Accountability Ordinance, 1999, could invoke constitutional jurisdiction of High Court as no law, how special it could be, could curtail or take away the powers given to it by the Constitution as the same was the primary law of the land---Every statute, would run subservient to the Constitution.

PLD 2002 SC 408; PLD 2005 SC 63; 2010 SCMR 1697; 2011 SCMR 136; PLD 2011 SC 1144; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Zafar Ali Shah and others v. General Pervez Musharraf Chief Executive PLD 2000 SC 869; Haji Ghulam Ali v. The State 2003 SCMR 597; The State v. Haji Kabeer Khan PLD 2005 SC 364; Chairman Accountability Bureau v. Asif Baig Muhammad 2004 SCMR 911 and Chaudhry Zulfiqar Ali v. The State PLD 2002 SC 546 ref.

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

----Ss. 426(2-b) & 497---National Accountability Ordinance (XVIII of 1999), S.9(b)---Suspension of sentence---Petition for suspension of sentence was filed by the petitioner on the ground that since he had been granted leave to appeal by Supreme Court, High Court under S.426, Cr.P.C., should suspend his sentence pending appeal---Validity---Plea of petitioner had no weight as under S.9(b) of National Accountability Ordinance, 1999, application of S.426(2-b), Cr.P.C. to the cases registered under said Ordinance, was expressly ousted---Suspension of sentence was declined---Prayer of petitioner for interim relief; however, was allowed, and he was granted ad interim bail.

(c) Interpretation of statutes---

----Words of a statute could be modified or varied where the import of words was doubtful or absurd, but where the words were plain and unambiguous, the courts were bound to give effect to.

Ghulam Mohyuddin Malik for Petitioners.

Muhammad Jamil Khan, D.P.G. for the State/NAB.

Date of hearing: 17th July, 2014.

P L D 2015 Peshawar 199

Before Muhammad Daud Khan, J

UBAID-UR-REHMAN and another---Petitioners

versus

Qazi SAEED UR RAHMAN and 8 others---Respondent

Civil Revision No.182-M of 2013, decided on 17th February, 2014.

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

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Temporary injunction, grant of---Requirements---Ingredients, determination of---Scope---Impugned "lease deed" was based on undated no-objection certificate issued by unlawful authority in lieu of a meagre amount---Serious allegations had been levelled against the defendants in the plaint with regard to impugned "lease deed" which required adjudication through proper proceedings---Impugned lease effected between the government and defendants seemed to be against "The State Land Policy" which required judicial decision after pro and contra evidence and needed status quo till the final result of the suit---Plaintiff was required to prove prima facie case; balance of convenience and irreparable loss which might accrue to him in case of refusal of injunction---Court was not required to examine closely the merits of the case to determine prima facie case nor plaintiff was required to establish his sureness of success---Plaintiff was required to prove that he/she had arguable case---Court had to make only a tentative assessment of the case to determine all the three ingredients enabling itself to see whether the requisite ingredients existed in favour of a party---Public property, in the present case, was going to be curbed by the defendants---Huge loss would occur not only to the plaintiff but to the public-at-large as well in case of refusal of interim injunction---Plaintiff had good prima facie case and balance of convenience also lay in granting of temporary injunction---Refusal of temporary injunction would cause irreparable loss to the plaintiff as well as to public exchequer---Appellate Court had rightly granted temporary injunction in favour of plaintiff---Appellate Court was directed to dispose of application of plaintiff for extension of temporary injunction on merits---Revision was accepted in circumstances.

Province of Punjab through Collector, Lahore and another v. Saeed Ahmad and 4 others PLD 1993 SC 455 and Ghulam Rasool and others v. Said Ahmad and others 2012 CLC 1655 ref.

Mian Muhammad Latif v. Province of West Pakistan through Deputy Commissioner Khairpur and another PLD 1970 SC 180 rel.

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

----O. XXXIX, Rr.1 & 2---Injunction---Ingredients---Ingredients of injunction were prima facie case; balance of convenience and irreparable loss.

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

----O. XXXIX, Rr.1 & 2---"Injunction"---Meaning---Injunction was a judicial order by which a party was required to do certain acts or was prohibited and restrained from doing illegal action and its main object was to maintain status quo till fixed time or till decision of the court.

(d) Words and phrases---

----"Prima facie case"---Meaning---Prima facie case meant "arguable case".

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

----O. XXXIX, Rr. 1 & 2---Interim injunction---"Balance of convenience"---Meaning---Balance of convenience meant inconvenience faced by the party in case of refusal of interim injunction.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction----"Irreparable loss"---Meaning---Irreparable loss meant the loss accrued to the party.

Abdul Halim Khan for Petitioners.

Sher Muhammad Khan for Respondents.

Date of hearting: 17th February, 2014.

P L D 2015 Peshawar 206

Before Mazhar Alam Khan Miankhel, C.J. and Mrs. Irshad Qaiser, J

Sardar HUSSAIN BABAK and another---Petitioners

versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 3 others---Respondents

Writ Petition No.100 of 2014, decided on 12th May, 2015.

(a) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----Ss. 27, 55, 56, 58, 59, 60 & 63---Constitution of Pakistan, Arts.17(2), 199 & 140-A---Constitutional petition---Fundamental rights---Judicial review under Art.199 of the Constitution---Scope---Constitutional petition under Art.199 of the Constitution challenging vires of provisions of Khyber Pakhtunkhwa Local Government Act, 2013---Maintainability---"Aggrieved person"---Scope---Petitioners filed the petitions challenging the vires of Khyber Pakhtunkhwa Local Government Act, 2013 on the ground that certain provisions of the Act were in conflict with provisions of Arts.8 to 28 and 140-A of the Constitution and sought striking down of the same under doctrine of judicial review---Petitioners contended that provisions of S.27(2) of Khyber Pakhtunkhwa Local Government Act, 2013 which provided election of Village Council and Neighbourhood Council on non-party basis were inconsistent with Arts.17(2) and 140-A of the Constitution---Authorities took plea that constitutional petition under Art.199 of the Constitution was not maintainable as petitioners first had to show that they were "aggrieved" within meaning of Art.199 and that persons having no affiliation with political party could also competently take part in election as independent candidates---Validity---Petitioners being voters of their respective Union Councils could competently file the present petitions in their independent capacity without having any authority from their political parties---In countries with written constitutions, fundamental rights had formed part of written constitution and any law or executive action which was inconsistent with fundamental rights, would come under judicial review---Petitioners feeling affected to cast their votes on non-party basis could be termed as "aggrieved persons" within meaning of Art.199, of the Constitution, having been denied the right granted by the Constitution---High Court could take cognizance of matters agitated 'pro bono publico' and test for invoking constitutional jurisdiction in such matters was that the matter was in public interest and petitioners aimed for public good---Present writ petitions were maintainable---Definitions of 'political' and 'political party' were quite different from each other---Devolution of political, administrative and financial responsibility and authority to the elected representatives of local government would not mean that such authority would be with the elected representatives of political parties---Provincial Government would devolve political, administrative and financial responsibility and authority to elected representatives of local governments but such elected representatives might not be necessary to be members of political party alone---Under S.27(1) of Khyber Pakhtunkhwa Local Government Act, 2013, composition of Village Council and Neighbourhood Council had been given---Petitioners were not aggrieved of composition of such councils rather they were aggrieved of election to such councils on non-party basis---Election of candidates on non-party basis was for purpose of not changing natural system of villages letting them free from any influence of political parties for resolving their problems, which was not against established norms of law and constitution---Under Art.17(2) of Constitution, it was fundamental right of every citizen to form or be a member of political party but such right was subject to reasonable restrictions imposed by law---Legislature was empowered to impose reasonable restrictions on such fundamental rights---Article 17(2) of the Constitution included a broad sweep of political rights like the right to participate in political life of nation, right to contest elections, right to vote, right to "one man one vote", right to have vote that was equal in weight as that of another citizen, right to fair representation, right to electoral equality, right to freely elect leader, right to go to polls, etc.---All said rights were available to candidates and people of Village Council and Neighbourhood Councils as they would cast their votes in favour of their political parties at Tehsil and district level, and the same could not be said to have been excluded from political array except at level of village, which provisions were not in conflict with Art.17(2) of the Constitution---Appointment of Local Government Commission under S.54 of Khyber Pakhtunkhwa Local Government Act, 2013 was for purpose to keep check on local governments, as huge amount of provincial budget would go to them---Provisions of Ss.27(2), 54, 56, 58, 60 & 62 were neither ultra vires of the Constitution nor were the same in conflict with Fundamental Rights---Mala fide could not be attributed to legislature---Khyber Pakhtunkhwa Local Government Act, 2013 had been enacted in bona fide manner and no provision thereof was either in conflict with provisions of Constitution or fundamental rights---Constitutional petitions were dismissed in circumstances.

(b) Constitution of Pakistan----

----Art. 17(2)---Scope---Article 17(2) of the Constitution includes a broad sweep of political rights like the right to participate in political life of nation, right to contest elections, right to vote, right to "one man one vote", right to have vote that was equal in weight as that of another citizen, right to fair representation, right to electoral equality, right to freely elect leader, right to go to polls, etc.

(c) Words and phrases---

---"Political"---"Political party"---Meaning.

Black's Law Dictionary ref.

(d) Interpretation of statutes---

----Vires of legislation---Mala fide could not be attributed to legislature.

Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Civil Aviation Authority v. Union of Civil Aviation Employees PLD 1997 SC 781; Arshad Mehmood v. Commissioner/Delimitation Authority Gujranwala and others PLD 2014 SC 221; Pakistan Peoples Party v. Government of Punjab PLD 2014 Lah. 330; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs PLD 1999 SC 504; Federation of Pakistan through Secretary, Ministry of Finance v. Haji Muhammad Sadiq and others PLD 2007 SC 133; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Ali Azhar Khan Baloch and others v. Province of Sindh and others 2015 SCMR 456; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Ardeshir Cowasjee v. Karachi Building Control Corporation 1999 SCMR 2883 and Federation of Pakistan v. Haji Muhammad Sadiq and othrs PLD 2007 SC 133 rel.

Abdul Latif Afridi and Khushdil Khan for Petitioners.

Abdul Latif Yousafzai, Advocate-General and Qazi Muhammad Anwar for the Government of Khyber Pakhtunkhwa.

Date of hearing: 5th May, 2015.

2015 P L D Peshawar 218

Before Nisar Hussain Khan and Qalandar Ali Khan, JJ

WAQAR AHMAD---Appellant

versus

THE STATE and another---Respondent

Cr. A. No.67-P of 2013, decided on 24th December, 2014.

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

----Ss. 25 & 27---Police Rules, 1934, R.25.2(3)---Defective and improper investigation---Awarding of symbolic punishment---Appeal before High Court against order of Anti-Terrorism Court---Scope---Symbolic punishment of the fine of Rupees four thousand, having been awarded to appellant/DSP for improper and defective investigation in a criminal case, appellant had filed appeal under S.25 of Anti-Terrorism Act, 1997 before High Court---Appellant, had contended that alleged abductee in the case in question, having exonerated the accused of the charges, there was no likelihood of conviction of accused in that case, and not a single contradiction was found in the evidence of the prosecution---Contention was repelled as appellant (DSP) having been held responsible for defective/improper investigation under S.27 of Anti-Terrorism Act, 1997, he could not take shelter under statement in the court wherein the alleged abductee had exonerated accused facing trial---Issues raised by counsel for the appellant, had no nexus with defective investigation, on the basis of record of the case and particular record of investigation conducted by appellant---Appellant, failed to take honest steps for investigation to dig out the truth, which was his primary duty under the law---Response of the appellant to the charges and observation of the court, were far from satisfactory as he could not point out a single instance in his defence controverting said charges/observations of the court---Conclusion could be that it was a case of defective investigation on the part of the appellant---Several other factors contributing to defective/improper investigation could be there, but such factors would not absolve an Investigating Officer to conduct a proper investigation, which was his primary duty and under no circumstances should advance lame excuses for his failure to perform duty---Such conduct had eroded confidence of the general public in the Police in general, and Investigating Agency in particular, which was touching the lowest ebb of its credibility---High Court observed that investigation by the Police, formed backbone of criminal justice system and Investigating Officer, enjoyed authority in the matter of investigation, and such authority, would unquestionably, demanded accountability, which had been envisaged in S.27 of Anti-Terrorism Act, 1997---Award of symbolic punishment of fine of rupees four thousand on the appellant, did not call for interference by High Court.

Muhammad Anwar for Appellant.

Mujahid Ali Khan, A.A.G. for the State.

Date of hearing: 24th December, 2014.

P L D 2015 Peshawar 223

Before Abdul Latif Khan and Lal Jan Khattak, JJ

IJAZ and another---Petitioners

versus

Mst. MANADIA and another---Respondents

Criminal Revision No.56-M of 2014, decided on 12th December, 2014.

Penal Code (XLV of 1860)---

----Ss. 427 & 436---Criminal Procedure Code (V of 1898), S.345---Mischief causing damage, mischief by fire or explosive substance with intent to destroy house---Compromise having been arrived at between the parties, complainant moved application before the Trial Court for acquittal of petitioners/accused persons on the basis of compromise---Said application was dismissed by the Trial Court---Validity---Offence under S.436, P.P.C., though was not compoundable, and application under S.345, Cr.P.C. was in-applicable to compound the same, but both the parties had amicably settled down all their differences and had resolved to lead rest of their lives in peace and tranquillity---Earlier, husband of the complainant was charged for murder by the petitioners' side, which case was also compromised---As a quid pro quo of compromise in the said murder case, complainant and her family entered into compromise with the petitioners in the present case---Section 436, P.P.C., was not compoundable, but non-compoundability of a section of law, should not be read in isolation, but it should be read in the background of each case and beneficial interpretation should be given---When the parties in the case had earnestly decided to live in peace by forgetting all their differences then it would be a need of the hour to acquit the petitioners in the present case on the basis of compromise, despite the non-compoundability---Application for acquittal of the petitioners, which was moved by the respondent/complainant herself, had shown that she herself was eager in acquittal of petitioners/accused persons---Impugned judgment was set aside, and the petitioners, were acquitted in the case against them---Accused were set free.

Sayyed Badshah for Petitioners.

Nemo for Respondent No.1..

Sabir Shah A.A.-G. for the State.

Date of hearing: 12th December, 2014.

P L D 2015 Balochistan 1

Before Qazi Faez Isa, C.J. and Muhammad Ejaz Swati, J

MIR MUHAMMAD AFZAL and 7 others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN, LOCAL GOVERNMENT and 12 others-- Respondents

Constitutional Petition No.332 of 2012, decided on 20th August, 2014.

Quetta Development Authority Ordinance (IV of 1978)----

---S. 113---Balochistan Land Lease Policy, 2000, Cls. 3, 4, 5 & 10---Constitution of Pakistan, Arts. 24 & 199---Constitutional petition---Land acquisition---Sale of land acquired for public purpose to a private person---Effect---Contention of petitioners was that land acquired from them for public purpose had been sold to private person which should be returned to them-Validity-Development Authority, if decided to sell or lease land which had been acquired from any person, should give notice through advertisement in newspaper and offer to the person or persons from whom land had been acquired or their heirs, executors or administrators had a prior right to lease or purchase such land at a rate to be fixed by the Authority---Such lease or sale should be in the public interest---No publication was made in any newspaper nor an offer was made to the petitioners and no determination was made whether sale of said land was in public interest---Development Authority could not hand over public land to an individual without publishing advertisement in newspapers inviting public offers---Director Development Authority had no powers to negotiate a private sale of Government land---Chief Minister was bound to abide by law and he could not give away public land to a private party---Acquisition of property for public purpose upon payment of compensation had been permitted under the Constitution---Land for the purpose of construction of bridge over the railway track was acquired for public purpose and said land or any part thereof could not be sold, allotted, leased or transferred to any private person---Mayor of Municipal Corporation had leased out the unutilized portion of acquired land for a period of thirty years having ,no such authority and same was done without inviting bids---Lease of said land and thereafter sale of the same were illegal---State land falling within 5 miles of the limits of Municipal Committee/Municipal Corporation and within 3 miles of Town Committee should be reserved for future utilization-Land in question was situated within such limits which had to be kept in reserve for the City's use and could not be allotted/leased/sold-Public land could only be leased if same was not required for public building and other public sector projects---Said land should be transferred to the Local Authority which would utilize the same after preparing a proper scheme and by­laws prescribed for the same---Maximum duration of lease was for a period of thirty years and rate of lease money per year had to be determined by the Committee according to market value/performance--­Transparency should be ensured with regard to market value through process of auction---Collector had the power to divest the public land and not the Development Authority---No sale deed could be executed in respect of public land and same could not be transferred by the lessee---Transfer of public land in favour of private person was illegal having no legal effect---Sale of said land was declared illegal having no legal effect---Said land might be required for construction of second phase of bridge---Other legal heirs of father of petitioners had not filed constitutional petition nor they had been arrayed as parties and prayer in the petition did not envisage or accept their right/entitlement to the land---Land in question would be resumed by the Provincial Government and preserved which should not be sold, transferred or alienated in favour of any person, however same could be utilized for any public purpose---Respondents (lessees) were directed to surrender the original sale deed to Sub-Registrar and Tehsildar was directed to cancel all the mutations of land in dispute made in favour of respondents---Respondents (lessees) had put up a false defence and wasted time, therefore costs of fifty thousand rupees on each one of them was imposed which would be paid to the petitioners---Constitutional petition was accepted in circumstances.

Shahbaz v. Government of Jammu and Kashmir 1992 MLD 2121 ref.

Nadir Ali Chalgari and Khursheed Anwar Khoso for Petitioners.

Baz Muhammad Kakar for Respondent No.8.

Muhammad Arshad Chaudhary for Respondents Nos. 10 to 12.

Abdul Latif Kakar, Asstt A.-G. for Official Respondents.

Abuzar Haider, Special Prosecutor, NAB for NAB.

Dates of hearing: 14th and 16th July, 2014.

P L D 2015 Balochistan 26

Before Naeem Akhtar Afghan and Shakeel Ahmed Baloch, JJ

ADAM---Petitioner

Versus

Mst. ABIDA and 2 others---Respondents

Constitutional Petition No.864 of 2012, decided on 23rd July, 2014.

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

----S. 5, Sched.---Constitution of Pakistan, Art. 199-Constitutional petition---Suit for recovery of dower---Deferred dower---35 Miscal gold was fixed as prompt dower whereas 65 Miscal gold was fixed as deferred dower---Husband had paid 35 Miscal gold as prompt dower 10 the wife at the time of marriage/Nikah Nama---65 Miscal gold which was deferred dower was payable on a date or time agreed between the parties and in case no date or time was mentioned for payment of the same then same was payable on the eventuality of dissolution of marriage by death or divorce---Marriage tie between the parties was in existence and same had not been dissolved and no date or time had been mentioned in the Nikah Nama for payment of deferred dower---Wife could not claim said dower at present stage however she would be at liberty to file suit for recovery of deferred dower i.e. 65 Miscal gold after eventuality of dissolution of marriage either by death or divorce---Constitutional petition was accepted in circumstances.

Saadia Usman v. Muhammad Usman Iqbal Jadoon 2009 SCMR 1458 rel.

(b) Islamic Law--

---"Mehr Muajjal" and "Mehr Muwajjal"---Scope---Dower would be either "Mehr Muajjal" prompt dower (immediately payable) or "Mehr Muwajjal" deferred dower (payable later after a certain time)---"Prompt dower" was payable on demand during subsistence of marriage tie whereas deferred dower was payable on the time stipulated between the parties.

Sikandar Ahmed Marri for Petitioner.

Nadir Ali Chalgari and Khursheed Anwar Khosa for Respondent No.1.

Date of hearing: 23rd July, 2014.

P L D 2015 Balochistan 30

Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ

Mst. NASEEM and another---Petitioners

Versus

ALI AKBAR and another---Respondents

Constitutional Petitions Nos.355 and 603 of 2013, decided on 24th July, 2014.

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

----Ss. 25 & 17---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minor---Condition-Welfare of minor--- Preference of minor---Scope---Father filed an application for custody of minors which was dismissed by the Guardian Court but same was accepted by the Appellate Court to the extent of male children-- Validity---Basic criteria for appointment of guardian and restoration of custody was the welfare of minor---Appellate Court was required to pass its findings on the condition laid down in Ss.17 & 25 of Guardians and Wards Act, 1890---Right of parents with regard to custody and control of children was not to be exercised in their interest but in the interest and welfare of children themselves---Father was though the natural guardian but his right of custody was also subordinate to the welfare of minors---Father had contracted second marriage and there were issues from the said marriage while mother had not contracted second marriage and custody of male children could not be handed over to the step-mother---Minors were with their mother since birth and change of their custody would naturally damage their personality psychologically which would not be in the welfare of minors---Minors had reached an age where they could formulate an opinion for preference and court might also consider their choice---Welfare of minors would lie with the mother in the present case---Findings of Appellate Court that the age of male children were more than 7 years and father was entitled for their custody were not tenable as such right was always subject to welfare of minor which was paramount consideration for determining the question of custody of minor--- Source of income was also not a ground for determination of welfare of minor---Appellate Court had mis-appreciated the evidence on record and its findings were not correct---Impugned judgment and decree passed by the Appellate Court to the extent of handing over the custody of male children to the father were set aside---Constitutional petition was accepted in circumstances.

Zahoor Ahmad v. Mst. Rukhsana Kausar and 4 others 2000 SCMR 707; Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838 and Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain 1978 SCMR 299 rel.

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

----S. 5, Sched.---Civil Procedure Code (V of 1908), O. XLI, R.33--- Constitution of Pakistan, Art. 199---Constitutional petition--- Maintenance for minor children, decree for---Execution proceedings, termination of---Scope---Father moved an application for termination of execution proceedings on the ground that minor had attained age of majority---Validity---Father was bound to maintain his sons till they had attained the age of puberty and majority and he was also bound to maintain his daughter until she or they were married---Daughter of the parties was 20 years of age but she had not contracted marriage and was entitled for maintenance till she was married---Findings of Appellate Court that daughter of the parties had attained the age of 20 years and she was not entitled for further maintenance though not challenged were reversed---Execution petition with regard to maintenance of minor would be deemed to be pending before the Executing Court---Constitutional petition was accepted in circumstances.

Muhammadan Law, S.370 rel.

Attaullah Khan Kakar for Petitioners (in C.P.No.355 of 2013).

Muhammad Ilyas Mughal Nagi for Respondent No.1 (in C.P.No.355 of 2013).

Muhammad Ilyas Mughal Nagi for Petitioners (in C.P.No.603

2013).

Attaullah Khan Kakar for Respondents (in C.P.No.603 of 2013).

Date of hearing; 9th April. 2014.

P L D 2015 Balochistan 41

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

RIZWAN AHMAD BALOCH---Appellant

Versus

ARSHAD KHAN and 2 others---Respondent

R.F.A. No.71 of 2007, decided on 29th September, 2014

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

---O. VI, Rr. 7 & 17---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Maxim: Secundum allegata et probata, principle of---Applicability---Departure from pleadings-- General power of attorney---Novation of contract---Ex parte evidence and affidavit of plaintiff was outright departure from pleadings--- Averments made in the pleadings did not constitute evidence, evidence led by the party in support of his pleadings should be consistent therewith---Pleadings could not be departed except by way of amendment---Anything stated outside the scope of such an averment could not be looked into---Rule of "secundum allegata et probata" would not only exclude the elements of surprise but also preclude the proving of the facts which were not contained in the pleadings---Plaintiff himself had established novation of original agreement by producing/introducing general power of attorney on the basis of which he himself transferred the subject matter in favour of defendant-- Plaintiff was estopped by his own conduct---Appeal was dismissed in circumstances.

Government of West Pakistan's case PLD 1976 SC 469; 1968 SCMR 804; 1996 SCMR 336 and Maj. (Retd.) Barket Ali and others v. Qasim Din and others 2006 SCMR 562 rel.

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

---Art. 114---"Estoppel"---Meaning---Estoppel would only mean stopped---Someone would be stopped from saying something or other or doing something or other or contesting something or other.

Hadi Shakeel Ahmed for Appellant, Hamayun Tareen, Addl. A.G. for Respondent No.3.

Date of hearing: 8th September, 2014.

P L D 2015 Balochistan 47

Before Syeda Tahira Safdar, J

MUHAMMAD AYUB and others---Petitioners

versus

BIBI GULL and others---Respondents

Civil Revision No.433 of 2013, decided on 21st October, 2014.

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

----O. XIII, Rr. 1 & 2, O. XII, Rr. 1 & 2 & O. XVIII, R. 3---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Document, production of---Good cause---Scope---Plaintiffs after production of evidence filed an application for production of documents which was refused by the Trial Court---Validity---Court had discretion to receive document in evidence if a good cause for non-production of such document was shown---Provisions of Order XIII, Rules 1 and 2, C.P.C. were mandatory in nature---No detail of document had been submitted to be produced in the court---Said document intended to be produced was in the knowledge of plaintiffs and if same was not in their possession then copy of the said document might be obtained when plaintiffs were in the process of producing their evidence but it was not done so---Even none of the documents was confronted to the attorney of defendants when he was in the witness box---Plaintiffs had already produced their evidence and at the time of closing of their side there was no request to reserve their right of rebuttal---Plaintiffs appeared with the request when evidence of the parties had already been completed---Copy of judgments could be referred and placed before the Trial Court at the final hearing of the matter and said court might take judicial notice of the same---Contradiction if any arising there from could be pointed out at the relevant time to enable the Trial Court to dilate upon the same while recording its final decision---Right to give notice for admission of document or calling for the evidence in rebuttal was always available to a party to the suit with a discretion for its exercise within the given bounds---Revision was dismissed in circumstances.

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

----O. XVI, R. 1, O. XII, Rr. 1 & 2 & O. XVIII, R. 3---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Witness, production of---Good cause---Scope---Plaintiffs after production of evidence filed an application for production of witness which was refused by the Trial Court---Validity---Court had discretion to call such witness whose name was not mentioned in the list of witnesses after showing good cause---Provisions of Order XVI, Rule 1,C.P.C. were mandatory in nature---No detail of witness had been submitted by plaintiffs to be produced in the court---Plaintiffs had already produced their evidence and at the time of closing of their side there was no request to reserve their right of rebuttal---Plaintiffs appeared with the request when evidence of the parties had already been completed---Copy of judgments could be referred and placed before the Trial Court at the final hearing of the matter and said court might take judicial notice of the same---Contradiction if any arising therefrom could be pointed out at the relevant time to enable the Trial Court to dilate upon the same while recording its final decision---Right to give notice for admission of document or calling for the evidence in rebuttal was always available to a party to the suit with a discretion for its exercise within the given bounds---Revision was dismissed in circumstances.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court had power to correct the errors committed by the courts below while exercising its revisional jurisdiction.

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

----S. 115---"Case decided"---Meaning---Term "case decided" could be construed as a decision given with regard to any state of facts after judicially considering the same which need not necessarily dispose of the whole matter.

Haji Sakhi Dost Jan v. Pakistan narcotics Control Board 1998 SCMR 1978 rel.

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

----S. 115---Revision---Scope---Interim order---Ambit of revision would extend to the interim order made during the course of trial subject to the fact that such an order had decided a material aspect of the case and had an effect on its final decision.

Inamullah Kakar for Petitioners.

Baz Muhgammad Kakar and Farooq Sarwar, Asstt. A.G. for Respondents Nos. 22 to 23.

Date of hearing: 10th October, 2014.

P L D 2015 Balochistan 54

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

INDEPENDENT MEDIA CORPORATION (PVT.) LTD. through Attorney and another---Petitioners

versus

PROSECUTOR GENERAL, QUETTA and 7 others---Respondents

Constitutional Petition No.891 of 2014, decided on 30th December, 2014.

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

----S. 185(2)---Proceedings before two courts---Interference by High Court---Principle---Sine qua non for interference by High Court under S.185(2), Cr.P.C., is as to where proceedings were first commenced.

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

----S. 185(2)---Proceedings before two courts---Earlier commencement, principle of---Interference by High Court---Scope---Where two or more subordinate courts taking cognizance of same offence are not subordinate to same High Court, therefore, to eliminate possible confusion and conflict, principle of earlier commencement has been enjoined.

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

----S. 185(2)---Proceedings before two courts---Interference by High Court---Considering factors---Factum of earlier commencement may be one of such considerations but not the only consideration for exercising discretion of High Court conferred under S.185(1), Cr.P.C.---Question of convenience and other peculiar factor of case may be a material consideration for exercising such discretion.

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

----S.185---Constitution of Pakistan, Art.199---Constitutional petition---Multiple FIRs for one occurrence---Quashing of FIRs---Principle---Large number of FIRs were got registered against petitioners all over the country for one and the same occurrence---Petitioners sought quashing of FIRs pending before different courts subordinate to the High Court---Validity---Court had to examine facts and circumstances giving rise to all FIRs and test of sameness was to be applied to find out whether all FIRs related to same incident in respect of same occurrence or were in regard to incidents which were two or more parts of the same transaction---If answer was in the affirmative, second or remaining FIRs were liable to be quashed---In case, contrary was proved, where version in second FIR was different and they were in respect of two different incidents/crimes, second FIR was permissible---Manner in which number of FIRs were got registered, that too, in different parts of country regarding one and the same offence and subsequently its investigation and submission of challans before concerned courts having jurisdiction, indicated that it was abuse of process of law---There had to be an end to litigation in every legal system, it would be shocking to judicial system to try a man again and again for one and the same alleged offence and that was what would happen if such practice was allowed---High Court quashed all FIRs except one pending trial---Petition was allowed accordingly.

Saim Hashim and Zahra Sehr Vayani for Petitioners.

Abdul Latif Kakar, Asstt. A.G. for Respondents.

Miss Sarwat Hina, Addl. P.G.

Date of hearing: 16h December, 2014.

P L D 2015 Balochistan 62

Before Muhammad Noor Meskanzai, C.J. and Mrs. Syeda Tahira Safdar, J

MUHAMMAD LAL---Appellant

versus

THE STATE---Respondent

Criminal (CNS) Jail Appeal No.24 of 2011, decided on 12th January, 2015.

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

----S. 302(c)---Criminal Procedure Code (V of 1898), Ss.369 & 561-A---Qatl-i-amd---Review---Inherent jurisdiction of High Court---Accused was convicted by Trial Court under S.302(c), P.P.C. and sentenced to imprisonment for ten years and also to pay Diyat amount to legal heirs of deceased---Conviction and sentence awarded by Trial Court was maintained by High Court---Validity---Judgment passed by Criminal Court could not be reviewed, altered or varied, except having been passed beyond jurisdiction, or suffered from a patent illegality rendering the judgment void or passed behind the back of a party by way of having been condemned unheard---Object of initiating criminal proceedings by prosecution against accused was to establish his guilt and get him convicted and sentenced by a court of competent jurisdiction in accordance with codified law and observance of law was the primary consideration in the process---In the present case, punishment not contemplated by law was awarded by Trial Court and maintained by High Court and the same fell within the purview of patent injustice, absolute illegality which necessitated its review because an illegality could not be allowed to be perpetuated---Judgment passed by Trial Court and maintained by High Court was illegal, unlawful and without jurisdiction to the extent of liability of Diyat---Judgment was reviewed in circumstances Muhammad Lal v. The State 2012 YLR 1771, held no more a good law.

Muhammad Yaqoob v. The State 1997 PCr.LJ 1979; Muhammad Sharif v. The State 2014 SCMR 668; Aftab Iqbal Khilji v. The State 2013 PCr.LJ 518 and Nazak Hussain v. The State PLD 1996 SC 178 ref.

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

----S. 561-A---Inherent jurisdiction of High Court---Scope---High Court can correct an error of its judgment apparent on face of it but without going into re-examination of facts or making an attempt to arrive to any other conclusion, which may be possible on the basis of facts and circumstances of the case---No one should suffer on account of an act of court.

(c) Precedent---

----Review of judgment---Effect---When judgment is reviewed, it is no more an authority on the subject hence may not be referred to and relied upon to such extent.

Abdul Karim Yousafzai for Appellant.

Ms. Sarwar Hina, Addl. P.G. assisted by Haji Liaquat Ali for the State.

Date of hearing: 3rd December, 2014.

P L D 2015 Balochistan 69

Before Muhammad Noor Meskanzai, C.J., Jamal Khan Mandokhail and

Muhammad Kamran Khan Mulakhail, JJ

MUHAMMAD AKBAR AZAD and another---Petitioners

versus

FEDERATION OF PAKISTAN through Secretary, Law, Justice and Human Rights Division and others---Respondents

Constitutional Petitions Nos. 474 of 2006 and 80 of 2009, decided on 24th March, 2015.

(a) Constitution of Pakistan---

----Art. 199---High Court---Judicial review, power of---Scope---Legislative instrument---While exercising the power of judicial review, the court was hardly concerned with good or bad aspects of the legislative instrument rather the prime, paramount and pivotal consideration (of the court) was the constitutionality of the statute---Court had to ensure and remain satisfied that any of the provisions of the enactment was not violative of the Constitution.

(b) Dastoor-ul-Amal Diwani, Riasat Kalat, 1952 ---

----Preamble---Legislative history of Dastoor-ul-Amal Diwani, Riasat Kalat, 1952 and subsequent legislations affecting, amending and repealing the Dastoor or otherwise, traced.

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

----Preamble, Ss.1(3) & 28 & Sched.---Dastoor-ul-Amal Diwani, Riasat Kalat, 1952, Preamble---Dastoor-ul-Amal Diwani, Riasat Kalat (Amendment) Ordinance (XXXII of 1984), Preamble---Dastoor-ul-Amal Diwani Kalat (Amendment) Act, 1989 (I of 1990), Preamble---Central Laws (Statues Reforms) Ordinance (XXI of 1960), Preamble & S.4(1)---Government of Balochistan, Notification No.Legis.6-63/LAW/80-II, dated 19th April, 1982---Constitution of Pakistan, Arts. 143 & 199---Constitutional petition---Dastoor-ul-Amal Diwani, Riasat Kalat, 1952 ("Dastoor"), applicability of---Contention of petitioner that the said Dastoor had been repealed by Schedule to the West Pakistan Civil Courts Ordinance, 1962, thus it did not exist on the statute book and therefore was void and of no legal effect; that the Provincial Government was not empowered to withdraw the applicability of West Pakistan Civil Courts Ordinance, 1962, from certain areas of the Province and revive the Dastoor in its place---Validity---Section 1(3) of West Pakistan Civil Courts Ordinance, 1962 and different notifications issued by the Government from time to time showed that the said Ordinance was only made applicable to certain areas of the entire Province, and its applicability in any other area of the Province was subject to issuance of a notification in the official Gazette by the Government by specifying the particular date---Said Ordinance was never enforced in the entire Province---Regarding the contention that Schedule to the West Pakistan Civil Courts Ordinance, 1962, repealed the Dastoor-ul-Amal Diwani, Riasat Kalat, 1952, the said Schedule read in conjunction with S.1(3) of the Ordinance clearly postulated that the Ordinance would be made applicable by the Government on a date specified by it by means of issuing a notification stipulating the date of the enforcement of the Ordinance---Admittedly, when the West Pakistan Civil Courts Ordinance, 1962, was enacted and its Schedule provided for the repeal of the Dastoor-ul-Amal Diwani, Riasat Kalat, 1952, the Ordinance was not applicable to Balochistan States Union (BSU), therefore, by no stretch of imagination it could be inferred that the Schedule which was in conflict with the enacting part of the statute (Ordinance) could have the force of repealing the Dastoor---So the Schedule to the said Ordinance to such extent lost its worth and significance---Schedule to West Pakistan Civil Courts Ordinance, 1962, had lost its efficacy, legality and significance to the extent of repealing the Dastoor as it was in conflict with its enacting part---After merger of Balochistan States Union into Pakistan, first attempt for uniformity of laws applicable to various areas integrated into the Province of West Pakistan was made through Central Laws (Statues Reforms) Ordinance 1960---Object behind the enactment of the said Ordinance of 1960 was to extend certain laws and also to remove from the statute book certain Acts/Ordinances, which had become obsolete---Dastoor-ul-Amal Diwani, Riasat Kalat, 1952, was expressly repealed for the first time by Central Law (Statute Reforms) Ordinance, 1960, but reenacted with the same ink in the same sentence by the same Ordinance of 1960---Dastoor-ul-Amal Diwani, Riasat Kalat, 1952, was thus declared to be a Central Statute and it remained alive on the statute book---Legal status of Dastoor-ul-Amal Diwani, Riasat Kalat, 1952, had come up for consideration in a number of cases in the Provincial High Court, however, at each occasion it was held that the Dastoor had not been repealed in its entirety---Although some of the provisions of the Dastoor, corresponding to the provisions of the Code of Civil Procedure, 1908, were declared to have been repealed in the said cases but rest of the provisions of the Dastoor were held to have been preserved---Neither the Dastoor-ul-Amal Diwani, Riasat Kalat, 1952, had been repealed by the West Pakistan Civil Courts Ordinance, 1962 nor as a Central Statute could it be repealed within the meaning of Art. 143 of the Constitution by a Provincial Statute---Constitutional petition was dismissed accordingly.

Jia Ram v. Smt. Kundana Wanti and 4 others PLD 1978 Quetta 91; Yusuf Khan and 24 others v. Wadera Muhammad Siddique and 2 others 1985 SCMR 1692; Mst.Naz Bibi v. Mst. Roz Khatoon PLD 1987 Quetta 1;.Dost Muhammad and another v. Rais Satik and another PLD 1962 (W.P.) Quetta 82 and Mir Said Muhammad and 6 others v. Mir Chakar and 6 others PLD 1973 Quetta 43 ref.

(d) Balochistan Civil Disputes (Shariat Application) Regulation, 1976 --

----Preamble---Dastoor-ul-Amal Diwani, Riasat Kalat, 1952, Ss. 11 & 22---Civil Procedure Code (V of 1908), S.89-A---Constitution of Pakistan, Arts. 2A & 199---Constitutional petition---Balochistan Civil Disputes (Shariat Application) Regulation, 1976 ("Regulation") and Dastoor-ul-Amal Diwani, Riasat Kalat, 1952 ("Dastoor"), vires of---Contentions of petitioner were that the said Regulation and Dastoor did not cater the need of the day and were discriminatory; that the Regulation did not state the forum for non-Muslims, and it also debarred a private party to apply against the Federal Government, the Provincial Government, a local authority, a public corporation or a public servant acting in the discharge of his/its duty---Validity---Section 11 of Dastoor-ul-Amal Diwani, Riasat Kalat, 1952, provided for amicable settlement of disputes, and required the Qazi to necessarily try for reconciliation, which provision, was akin to S.89-A, C.P.C. i.e. Alternative Dispute Resolution---Said section also provided a mechanism for resolving the disputes arising between the (non-Muslim) Hindu community through their 'Punchait/Jirga'---Constitutionally no law repugnant to Holy Qu'ran and Sunnah could be enacted (in Pakistan) and all existing laws had to be brought in conformity with the Injunctions of Islam as enunciated in the Holy Qu'ran and Sunnah---Analyzing the scheme of the Dastoor and Regulation at such touchstone, both the laws contained specific provisions towards such end---For instance S.22 of the Dastoor-ul-Amal Diwani, Riasat Kalat, 1952, directed the Presiding Officer for the decision of the matter according to Shariat---Similarly the Balochistan Civil Disputes (Shariat Application) Regulation, 1976, mentioned in its opening words (Preamble) that it was a Regulation to provide for the adjudication of certain civil disputes in the Tribal Areas of the Province according to Muslim (Shariat) Law---Balochistan Civil Disputes (Shariat Application) Regulation, 1976 and Dastoor-ul-Amal Diwani, Riasat Kalat, 1952, were at a high pedestal and enjoyed a preferential, distinguishing and a distinctive feature by having provisions that satisfied the constitutional requirement of conforming to Injunctions of Islam as contained in the Holy Qur'an and the Sunnah---Constitutional petition was dismissed accordingly.

(e) Constitution of Pakistan---

----Part. II, Ch. 1 [Arts.8 to 28]---Fundamental Rights---Injunctions of Islam as contained in the Holy Qur'an and Sunnah---Fundamental Rights as enshrined/given in the Constitution were not supposed to violate the norm(s) of Islam.

(f) Constitution of Pakistan---

----Art. 199---Constitutional petition before the High Court challenging vires of a legislative instrument---Maintainability---"Aggrieved person", requirement of---Scope---While challenging the vires of a legislative instrument the question of "aggrieved party" or person as contemplated by Art. 199 of the Constitution was hardly treated a hurdle.

Muhammad Akbar Azad, Hadi Shakeel Ahmed (Petitioner in person) and Muhammad Qahir Shah for Petitioners.

Sher Shah Kasi, DAG and Shai Haq Baloch, A.A.-G. for Respondents.

Date of hearing: 1st December, 2014.

P L D 2015 Balochistan 97

Before Muhammad Noor Meskanzai, C J and Muhammad Hashim Khan Kakar, J

TALAL HALEEM and 3 others---Petitioners

versus

PRINCIPAL BOLAN MEDICAL COLLEGE, QUETTA and 4 others---Respondents

Constitutional Petition No.59 of 2015, decided on 17th March, 2015.

(a) Constitution of Pakistan---

----Art. 25---Equality of citizens---Intelligible differentia, principle of---Scope---Protection of Art.25 of the Constitution can be denied in peculiar circumstances of the case on the basis of reasonable classification founded on intelligible differentia, which distinguishes person or things that are grouped together from those who have been left out--- Differentia must have rational nexus to the object sought to be achieved by such classification.

I.A. Sharwani v. Government of Pakistan through Secretary, Finance Division, Islamabad 1991 SCMR 1041 rel.

(b) Prospectus of Bolan Medical College for Session 2014-2015---

----Chap. 1, para 1(B)---Constitution of Pakistan, Arts.25 & 199--- Constitutional petition---Admission to medical colleges---Gender discrimination---Petitioners were aggrieved of reserving 50% seats for female candidates for admissions in medical colleges in Balochistan province---Validity---State was mandated under the Constitution to eliminate gender discrimination but authorities had attempted to perpetrate the act of gender discrimination in fixing percentage of seats for girls in medical colleges---No plausible and justifiable reasons were offered on the part of authorities to arrive at the conclusion that female students did not enter field of medical after completing their studies and, therefore, to hold 50% reservation provided for girls needed to be implemented---Women were working in all spheres of life including law enforcing agencies, education and civil administration---Restraining admission of females in medical colleges on the ground that they did not enter into medical field, could not be appreciated, as the same work was already being performed by them---Such action of authorities amounted to gender discrimination and could not be called as a reasonable restriction---High Court declared policy of fixation of quota to be unconstitutional, against Art.25 of the Constitution and principles laid down by the Supreme Court---High Court directed to exclude para. 1(B) of Chap. I of the Prospectus of Bolan Medical College for session 2014-15---High Court further directed that old policy in respect of admissions in first year M.B.,B.S. Bolan Medical College should be continued while granting admissions to students in session 2014-15---High Court also directed that for 2014-15 session, admission to Bolan Medical College must be finalized on the basis of old policy as early as possible---Petition was allowed accordingly.

Asma Javaid and others' case Writ Petition No.28142 of 2014 and Shrin Munir v. Government of Punjab PLD 1990 SC 295 ref.

Shrin Munir v. Government of Punjab PLD 1990 SC 295 rel.

Muhammad Qahir Shah and Nadir Ali Chalgari for Petitioners.

Masoom Khan Kakar for Interveners/Applicants.

Nazim ud Din, Advocate-General, and Shai Haq Baloch, Asstt. Advocate-General for Official Respondents.

Date of hearing: 11th March, 2015.

P L D 2015 Balochistan 110

Before Mrs. Syeda Tahira Safdar, J

Messrs SUI SOUTHERN GAS COMPANY LTD. through General Manager

and another---Petitioners

versus

ARBAB NAJEEBULLAH---Respondent

Civil Revision No.62 of 2011, decided on 27th February, 2015.

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

----S. 42---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), Ss. 11 & 12---Suit for declaration---Maintainability---Alternate remedy---Appreciation of evidence in civil and criminal cases---Scope---Defendant a Natural Gas Supply Company had sued the plaintiff for criminal liability of tampering with meter fixed by company---Contention of plaintiff was that he was acquitted from the criminal case but his connection was not restored by the Company---Suit was decreed concurrently---Validity---Company sued the plaintiff initially for a criminal liability---Plaintiff approached the civil court for redressal of his grievance on finalization of criminal proceedings---Facts of criminal case and acquittal recorded in favour of plaintiff (respondent) were in the knowledge of courts below---Both the courts below relied upon the findings recorded in the criminal case---Undue weight was given to the fact that prosecution could not establish its case which resulted in acquittal of the plaintiff---Both the courts below had erred in law---Standard of appreciation of evidence in criminal and civil cases was different---Accused was presumed to be innocent in criminal cases unless his guilt was proved beyond any shadow of doubt---Court had to reach at the basis of the matter in civil case and for its minor contradictions or omissions had to be ignored---Evidence recorded in one case could not be read in another case unless the same was produced and exhibited in accordance with the rules of evidence---Person had to establish his case when he had approached a court to establish his civil liability independently on the basis of evidence produced during course of trial of respective case---Each case had to be decided on its own merit---Basic principle had been ignored by both the courts below while dealing with the present case---Dispute was between a consumer and a licensee of natural gas---Matter was to be governed by the Oil and Gas Regulatory Authority Ordinance, 2002---Alternate remedy was available to the plaintiff as consumer of Natural Gas against the Company but he avoided the same---Plaintiff was consumer of Natural Gas and was in contract with the Company (petitioner) for supply of gas for domestic use---Meter was installed on the premises which was removed and connection was disconnected on the allegation of tampering---Statute had provided a proper procedure for resolution of dispute between a consumer and a licensee---Provisions of law and Regulation had to be adhered to by the parties---Plaintiff was bound to set into motion the relevant provisions and to avail the provided remedy but he directly approached a court of civil jurisdiction which was an error---Alternate remedy provided by law and Regulations had to be availed first while civil suit would be the last resort---Civil suit was not maintainable in presence of Regulations without availing of the remedy provided therein for redressal of the grievances of a consumer against a licensee---Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed being not maintainable---Revision was accepted in circumstances.

(b) Administration of justice---

---Each case had to be decided on its own merit.

M.W.N. Kohli for Petitioners.

Iqbal Ahmed Kasi for Respondent.

Date of hearing: 24th September, 2014.

P L D 2015 Balochistan 117

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

JAMAL-UD-DIN and others---Petitioners

versus

NATIONAL DATABASE AND REGISTRATION AUTHORITY (NADRA) through Deputy Director (Verification), Islamabad and 5 others---Respondents

C.Ps. Nos. 452, 470 and 535 of 2012, decided on 31st March, 2015.

Pakistan Citizenship Act (II of 1951)---

----Sched.---Constitution of Pakistan, Art. 199---Constitutional petition---Factual controversy---Oath of allegiance---Nationality, determination of---Grievance of petitioners was that authorities wrongly declared them to be foreigners which had deprived them from getting admissions in medical college---Validity---Once one was declared alien, without taking certificate of domicile from Federal Government in prescribed manner and taking oath of allegiance in the form as set out in sched. to Pakistan Citizenship Act, 1951, and registered as citizen of Pakistan, it was not possible for authorities to issue a Local Certificate to such person---Petitioners were not bona fide citizens of Pakistan and High Court could not declare them locals of a district of Pakistan---High Court declined to interfere with findings of facts drawn by authorities---Petition was dismissed in circumstances.

Muhammad Qahir Shah and Syed Ayaz Zahoor for Petitioners.

Zubair Naseem Khawaja and Abdul Latif Kakar, A.A.G. for Respondents.

Date of hearing: 16th December, 2014.

P L D 2015 Balochistan 127

Before Muhammad Hashim Khan Kakar, J

Mst. RAZYA GHULAM and another---Petitioners

versus

The GENERAL PUBLIC---Respondent

Civil Revision No.75 of 2015, decided on 16th April, 2015.

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

----Ss. 372, 373 & 375----Succession certificate---Condition of furnishing of surety---Scope---Petitioner, being sole legal heir of her husband who was government servant, filed petition for obtaining succession certificate and other legal heirs did not object to issuance of succession certificate---Trial Court allowed said petition subject to production of two sureties equal to amount of the succession certificate---Petitioner filed application seeking dispensation with furnishing of said two sureties, which the court dismissed---Petitioner contended that her case was not covered under S.373(3) or S.373(4) of Succession Act, 1925, and Trial Court in terms of S.375 of the Act had discretion to dispense with furnishing of surety in appropriate cases---Validity---Trial Court passed impugned order of dismissal of application without giving any reason and mentioning contentions of petitioner's counsel---Impugned order, being "non-speaking" and resulting from non-application of judicial mind, was not a judicial order---Trial Court, declaring petitioner to be sole legal heir of the deceased and entitled to issuance of succession certificate, should not have insisted upon furnishing of sureties---Petitioner was entitled to grant of succession certificate without furnishing sureties---High Court accepting the petition ordered issuance of succession certificate in favour of petitioner subject to obtaining personal surety bond of any government official.

Muhammad Iqbal Chaudhry v. Secretary, Ministry of Industries and Production, Government of Pakistan PLD 2004 SC 413 rel.

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

----Ss. 373 (3) & (4) & 375(1)----Succession certificate---Furnishing of surety---Word "Shall" in S.375 of Succession Act, 1925 is used with reference to class of cases, which fell under Ss.373(3) & 373(4) of Succession Act, 1925, wherein, court decides to proceed in summary manner to determine right as to grant of succession certificate---In such cases S.375(1) of Succession Act, 1925 makes it incumbent on court to order issuance of certificate subject to furnishing of surety in addition to execution of bond---Where case for grant of succession certificate does not fall under S.373(3) or S.373(4) of Succession Act, 1925, it is discretionary with court to require the person in whose favour certificate is issued to give surety as condition for grant thereof.

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

----S. 375----Object---Object of demanding security from person, in whose favour succession certificate has been granted by court, is to ensure proper rendition of account by him regarding debts and securities of deceased received by him and to provide indemnity to such person, who may be entitled to whole or any part of these debts and securities---Where all heirs of deceased were before court and there was no doubt that any other person was or may be entitled to the estate of deceased and all such persons were adult and major and they expressed their consent for grant of succession certificate in favour of one of the heirs of deceased, court in such clear cases may not at all insist upon furnishing of security.

Tahir Ali Baloch for Petitioners.

Shai Haq Baloch, Asstt. A.-G. for Respondents.

Date of hearing: 10th April, 2015.

P L D 2015 Balochistan 132

Before Naeem Akhtar Afghan, J

HIFEEZA and 5 others---Appellants

versus

GENERAL PUBLIC---Respondent

Succession Appeal No. 2 of 2015, decided on 4th May, 2015.

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

----Ss. 5(2), 372 & 384---Application for succession certificate---Appeal under S.384 of Succession Act, 1925 against dismissal of application for certificate---Jurisdiction of court---"Domicile"---Interpretation and determination---Deceased was temporarily residing out of country and claimed amount lying there---Competent forum---Application for issuance of succession certificate, was dismissed for lack of jurisdiction on ground that predecessor was domiciled of a foreign country and amount claimed was lying abroad---Applicants contended that their predecessor was permanent resident to Pakistan and had gone abroad to earn livelihood where he was temporarily residing---Validity---Applicants and their predecessor were permanent residents of Pakistan---Correct criteria for issuance of succession certificate was domicile of the deceased at time of his death---Nothing was available on record that could show that the deceased had intended to abandon Pakistan for ever---Trial court while dismissing application filed under S.372 of Succession Act, 1925, had erred in facts and law while interpreting the word 'domicile'---Word 'domicile' had not been defined in Succession Act, 1925---In ordinary meaning 'domicile' meant the place where a man lived or had his home---Impugned order was set aside and Trial Court was directed to decide succession application on merits in accordance with law---Appeal was accepted in circumstance.

(b) Words and phrases---

----"Domicile"---Meaning and definition.

Halsbury's Laws of England (4th Edn.) Vol. 8, para. 421; Black's Law Dictionary (9th Edn.) by Bryan A. Garner and/Dicy and Morris on Conflict of Laws (10th Edn.) Vol. 1, p.100 ref.

Khurshid Ahmed Khosa for Appellants.

Nemo for Respondent.

Date of hearing: 27th April, 2015.

P L D 2015 Balochistan 135

Before Muhammad Noor Meskanzai, C.J.

SALEH MUHAMMAD and 6 others---Petitioners

versus

ARZ MUHAMMAD and 9 others---Respondents

Civil Revision No.204 of 2012, decided on 24th April, 2015.

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

----Ss. 47, 104 & 115---Balochistan Civil Disputes (Shariat Application) Regulation, 1976, Regln. 4(2)---West Pakistan Civil Courts Ordinance (II of 1962), S. 18---Revision against order passed in execution of decree---Maintainability---Competent forum---Conversion of revision into appeal or vice versa---Re-conversion---Rules---Stage of conversion---Limitation---Determination---Defendants filed the present revision petition against order of executing court whereby their objection petition had been dismissed---Defendants contended that impugned order was governed by provisions of Dastoor-ul-Amal Diwani. Kalat, 1952, and the present revision petition was competent before High Court thereunder---Validity---Suit had been filed under provisions of Balochistan Civil Disputes (Shariat Application) Regulation, 1976 and not under Dastoor-ul-Amal Diwani, Kalat, 1952---In terms of S.18 of Civil Courts Ordinance, 1962, either revision or appeal was competent before Majlis-e-Shoora under Regln.4(2) of Balochistan Civil Disputes (Shariat Application) Regulations, 1976---Objection raised and decided was a question that related to execution, discharge or satisfaction of decree, which fell within ambit of S.47, C.P.C. and impugned order passed by executing court was an appealable order under S. 104, C.P.C.---Revision could be converted into appeal and appeal could be converted into revision---Proceedings could be re-converted if necessary---Present revision was not competent before High Court, and if the same was not converted into appeal, defendants would be deprived of the right of hearing before competent forum---No legal embargo existed to convert revision into appeal from date of its institution---Revision petition had been filed within time---Revision petition was converted into appeal by High Court and was transferred to Majlis-e-Shoora for decision.

(b) Administration of justice----

----Conversion of proceedings---Legal proceedings---Conversion of revision into appeal and vice versa---Object---Prime purpose and paramount consideration of legal proceedings is to do justice between parties subject to competency of court and to achieve this object the nature of proceedings are always of secondary consideration, because too much adherence to tech nicalities, which impede course of justice, cannot be countenanced by court---One type of proceedings can conveniently be converted into another type of proceedings to avoid multiplicity of proceedings or failure of justice.

(c) Balochistan Civil Disputes (Shariat Application) Regulations, 1976----

----Regln. 4(2)-Civil Procedure Code (V of 1908), Ss. 115 & 96--West Pakistan Civil Courts Ordinance (II of 1962), S.18---Dastoor-ul-Amal Diwani, Kalat (1952)---Appeal/revision---Maintainability---Order passed by executing court---Defendant contended that impugned order was governed by provisions of Dastoor-ul-Amal Diwani, Kalat, 1952, and revision was competent before High Court thereunder---Suit had been filed under provisions of Balochistan Civil Disputes (Shariat Application) Regulation, 1976 and not under Dastoor-ul-Amal Diwani, Kalat, 1952---In terms of S.18 of West Pakistan Civil Courts Ordinance, 1962 either revision or appeal was competent before Majlis-e-Shoora under Regln.4(2) of Balochistan Civil Disputes (Shariat Application) Regulation, 1976---Impugned order passed by executing court was appealable.

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

----Ss. 47 & 104---Objections dismissed by executing court---Remedy---Orders from which appeal lies---Objection raised and decided was a question that related to execution, discharge or satisfaction of decree, which fell within ambit of S.47, C.P.C. and was an appealable order under S.104, C.P.C..

Muhammad Ismail v. Raja Muhammad Younis 2003 CLC 1252; Liaqat Ali v. Bashiran Bibi and 9 others 2005 CLC 11; Mst. Noor Jahan v. Mst. Roshan Jahan and 6 others 1994 SCMR 2265; Muhammad Hanif and others v. Muhammad and others PLD 1990 SC 859 and Abdul Aziz and others v. Sheikh Abdur Rahim and others PLD 1984 SC 164 rel.

Tahir Ali Baloch for Petitioners.

Taj Muhammad Mengal for Respondents.

Date of hearing: 20th March, 2015.

P L D 2015 Balochistan 143

Before Muhammad Noor Meskanzai, C.J.

MUHAMMAD SIDDIQUE SHERANI---Petitioner

versus

SHAHJAHAN and 3 others---Respondents

Civil Reference No.270 of 2007, decided on 24th April, 2015.

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

----Ss. 12, 42 & 55----Transfer of Property Act (IV of 1882), S.53-A---Stamp Act (II of 1899), Ss. 33, 35, 36 & 61---Registration Act (XVI of 1908), S.50 proviso 1---Specific performance of agreement---Essentials---Part performance---Suit for declaration---Maintainability---Examination and impounding of instrument---Instrument not duly stamped---Admissibility---Possession under unregistered agreement---Effect---Admission of instrument not duly stamped---Bar as to objection---Rejection of plaint---Requirements---Plaintiff filed suit for declaration, specific performance and injunction claiming that defendants executed agreement to sell in his favour to sell suit property and thereunder not only received possession of suit property but also raised construction over the same, and defendant refused to enter mutation in name of plaintiff---Trial court decreed the suit, but appellate court dismissed the same---Validity---Contract had been duly executed and signed by predecessor of defendants, and the same was produced and exhibited in evidence without any objection and remained undisputed---Possession had been delivered to plaintiff as part performance of contract, which was an admitted fact---Plaintiff had not only remained in possession of suit property but also raised construction over the same to the notice of defendants---Plaintiff was bona fide purchaser and had been in possession against valid consideration right from the day of transaction---Admitted characteristics of contract attracted provisions of S.53-A of Transfer of Property Act, 1882, which was illegally withheld by appellate court---Appellate court while dealing with objection as to non- registration of document was ignorant of provisions of S.53-A of Transfer of Property Act, 1882 and remained oblivious of proviso (1) of S. 50 of Registration Act, 1908, which provided that person in possession of property under unregistered documents prior in date, would be entitled to rights under S.53-A of Transfer of Property Act, 1882---Trial court had neither impounded the instrument under Ss.33 & 35 of Stamp Act, 1899 nor refused to admit the same in evidence---No objection was raised during admission of contract in evidence---Once contract had been admitted in evidence, legality and validity of such admission with reference to provisions of Stamp Act, 1899 was beyond competence of appellate court---Appellate court failed to visualize S.36 of Stamp Act, 1899 which prima facie barred, restrained and prohibited appellate court to question admission of instrument even if the same had been admitted erroneously---Appellate court had no option but to endorse the admission of contract---Document, either understamped or unstamped once admitted in evidence, appellate court was not supposed to entertain any controversy except to the extent as permitted under S.61 of Stamp Act, 1899---Since trial court had not passed any specific order regarding sufficiency or otherwise of stamp of instrument, the appellate court could not pass any order under S.61 of Stamp Act, 1899---Suit to sustain under S.42 of Specific Relief Act, 1877 and remain competent and maintainable was required to reveal and reflect claim of right to or interest in subject matter, and denial or interest to deny the same by defendant---Present suit was competent and maintainable---Findings of appellate court regarding maintainability of suit were absolutely unwarranted and unjustified---Plaintiff's suit was not hit by provision of O.VII, R.11, C.P.C.---To attract penal provisions of O.VII, R.11, C.P.C., contents of plaint must have been accepted as the same were and thereafter it was to be ascertained as to whether plaint was hit by any provision of clauses of O.VII, R.11, C.P.C.---If suit was liable to be rejected in view of any clause of O.VII, R.11, C.P.C., then appellate court should have rejected the same without discussing merits of the case, which course was not adopted by appellate court---No counter-claim for possession and cancellation of agreement was filed by defendants---Evidence produced by plaintiff was consistent, coherent and straightforward---Relief on undisputed claims could be refused---Attorney of defendants had admitted plaintiff's right to mutation regarding suit property, which was sufficient for a decree in favour of plaintiff---High Court by setting aside judgment and decree of appellate court, upheld decree of trial court---Revision petition was allowed in circumstances.

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

----Ss.33, 35, 36 & 61---Examination and impounding of instruments---Instrument not duly stamped---Admissibility---Admission of instrument not duly stamped---Bar as to objection---Trial court had neither impounded the instrument under Ss.33 & 35 of Stamp Act, 1899 nor refused to admit the same in evidence---No objection was raised during admission of contract in evidence---Once contract had been admitted in evidence, legality and validity of such admission with reference to provisions of Stamp Act, 1899 was beyond competence of appellate court---Appellate court, in the present case, failed to visualize S.36 of Stamp Act, 1899 which had prima facie barred, restrained and prohibited appellate court to question admission of instrument even if the same had been admitted erroneously---Appellate court had no option but to endorse the admission of contract---Document either under-stamped or unstamped once admitted in evidence, appellate court was not supposed to entertain any controversy except to the extent as permitted under S.61 of Stamp Act, 1899--Since Trial Court had not passed any specific order regarding sufficiency or otherwise of stamp of instrument, the appellate court could not pass any order under S.61 of Stamp Act, 1899---Object of S. 35 of Stamp Act, 1899 was not to invalidate the document and play mischief with commercial life rather the aim and theme thereof was just to collect public revenue---Section 36 of Stamp Act, 1899 had prevailing effect as the same came after Ss.12 to 33 of the Act--- Findings of appellate court regarding registration of agreement were contrary to law.

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

----S. 35---Object---Object of S.35 of Stamp Act, 1899 was not to invalidate the document and play mischief with commercial life rather the aim and theme thereof was just to collect public revenue.

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

----S. 36---Scope---Section 36 of Stamp Act. 1899 had prevailing effect as the same came after Ss.12 to 33 of the Act.

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

----S. 42----Suit for declaration-Maintainability---Suit to sustain under S.42 of Specific Relief Act, 1877 and remain competent and maintainable requires to reveal and reflect claim of right to or interest in subject matter, and denial or interest to deny the same by defendant.

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

----O. VII, R.11---Rejection of plaint---Requirements---To attract penal provisions of O.VII, R.11, C.P.C., contents of plaint must be accepted as the same are and thereafter to ascertain as to whether plaint is hit by any provisions of clauses of O.VII, R.11, C.P.C.---If suit is liable to be rejected in view of any clause of O.VII, R.11, C.P.C. then court should reject the same without discussing merits of the case.

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

----S. 50, proviso, (1)---Transfer of Property Act (IV of 1882), S.53-A---Possession under unregistered agreement---Validity---Part performance of unregistered agreement---Effect---Admitted characteristics of contract, in the present case, attracted provisions of S.53-A of Transfer of Property Act, 1882, which was illegally withheld by appellate court---Validity---Appellate court while dealing with objection as to non-registration of document was ignorant of provisions of S.53-A of Transfer of Property Act, 1882 and remained oblivious of proviso, (1) to S.50 of Registration Act, 1908, which provided that person in possession of property under unregistered documents prior in date, would be entitled to rights under S.53-A of Transfer of Property Act, 1882.

Abdul Ghani v. Abrar Hussain 1999 SCMR 348; Fazla v. Mehr Din 1997 SCMR 837;Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique PLD 1978 SC 279 and Muhammad Ashiq v. Niaz Ahmed PLD 2004 Lah. 95 rel.

Muhammad Riaz Ahmed for Petitioner.

Ex Parte: Respondents Nos. 1 and 2.

Muhammad Jamil Khan Lodhi for Respondents Nos.3 and 4.

Date of hearing: 13th March, 2015.

P L D 2015 Supreme Court 1

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Gulzar Ahmed, JJ

MAZHAR IFTIKHAR and others-Appellants

Versus

SHAHBAZ LATIF and others---Respondents

Civil Appeals Nos.861, 936 to 939 and 943 of 2014, decided on 22nd September, 2014.

(On appeal from the judgments of the Lahore High Court, Lahore, dated 7-5-2014 and 31-3-2014 passed in W.Ps. Nos. 27470 of 2013, 6619, 664, 10825 of 2014 and W.P. No.1006 of 2013 respectively).

National Accountability Ordinance (XVIII of 1999)---

----S. 10(d)---Conviction under National Accountability Ordinance, 1999---Sentence of imprisonment---Remission allowed---Section 10(d) of National Accountability Ordinance, 1999, which expressly prohibited grant of remissions to an accused convicted under the said Ordinance, was declared ultra wires to the Constitution and struck down as void by a Full Bench of the High Court in the case of Saleem Raza v. The State PLD 2007 Karachi 139 which case was not assailed and attained finality---Remissions were available to those convicted under the National Accountability Ordinance, 1999---Appeal was dismissed accordingly.

Saleem Raza v. The State PLD 2007 Kar. 139 and Nazar Hussain v. The State PLD 2010 SC 1021 approved.

Shah Hussain v. The State PLD 2009 SC 460 disapproved.

Unapproved Judgment dated 29-3-2012 in S.M.Case No.24 of 2007 dissented.

Kh. Saeed-uz-Zafar, Advocate Supreme Court for Appellant (in C.A.No.861 of 2014).

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court and Sardar Khurram Latif Khan Khosa, Advocate Supreme Court for Respondent No.l (in C.A.No.861 of 2014).

Mudassar Khalid Abbasi, A.A.G. (Pb.) for Respondents Nos. 2 and 3 (in C.A.No.861 of 2014).

K.K.Agha, P.G. NAB and Fauzi Zafar, Addl. D.P.G. NAB for Appellant (in C.A.No.936 of 2014).

N. A. Butt, Advocate Supreme Court for Respondent No.1 (in C.A.No.936 of 2014).

Mudassar Khalid Abbasi, A.A.G. (Pb.) for Respondents Nos. 2 to 4 (in C.A.No.936 of 2014).

K.K.Agha, P.G. NAB and Fauzi Zafar, Add!. D.P.G. NAB for Appellant (in C.A.No.937 of 2014).

Nemo for Respondent No.1 (in C.A.No.937 of 2014).

Mudassar Khalid Abbasi, A.A.G. (Pb.) for Respondents Nos. 2 to 4 (in C.A.No.937 of 2014).

K.K.Agha, P.G. NAB and Fauzi Zafar, Addl. D.P.G. NAB for Appellant (in C.A.No.938 of 2014).

Nemo for Respondents Nos.1-5 (in C.A.No.938 of 2014).

Mudassar Khalid Abbasi, A.A.G. (Pb.) for Respondents Nos. 6 to 10 (in C.A.No.938 of 2014).

K.K.Agha, P.G. NAB and Fauzi Zafar, Add!. D.P.G. NAB for Appellant (in C.A.No.939 of 2014).

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court and Sardar Khurram Latif Khan Khosa, Advocate Supreme Court for Respondent No.! (in C.A.No.939 of 2014).

Mudassar Khalid Abbasi, A.A.G. (Pb.) for Respondents Nos. 2 and 3 (in C.A.No.939 of 2014).

K.K.Agha, P.G. NAB and Fauzi Zafar, Addl. D.P.G. NAB for Appellant (in C.A.No.943 of 2014).

Nemo for Respondent No.1 (in C.A.No.943 of 2014).

Mudassar Khalid Abbasi, A.A.G. (Pb.) for Respondents Nos. 2 and 3 (in C.A.No.943 of 2014).

Date of hearing: 22th September, 2014.

P L D 2015 Supreme Court 6

Present: Nasir ul Mulk, C.J., Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

GHULAM RASOOL---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division Islamabad and others---Respondents

Civil Petition No.2124 of 2013 and C.M.As. Nos. 1079 and 4821 of 2014, decided on 14th November, 2014.

(On appeal against the order dated 10-10-2013 passed by Islamabad High Court, Islamabad in I.C.A. No.1005 of 2013)

(a) Civil Servants Act (LXXI of 1973)---

----S. 2(b)---Employee of Inter Services Intelligence (ISI), belonging to surveillance cadre, status of---Civil servant---Petitioner, who was an employee of the Inter Services Intelligence, enjoyed the status of civil servant in terms of S.2(b) of the Civil Servants Act, 1973--- Appointment letter of petitioner had also been issued under the said Act and the proper forum for redressal of his grievance was the Federal Service Tribunal.

(b) Constitution of Pakistan--

----Art. 90---Constitutional posts--: Heads of Statutory bodies and Public sector companies---Appointment---Plea of Federal Government that it was facing difficulties in appointments to such offices in view of the direction given by the Supreme Court in the judgment Khawoja Muhammad Asif v. Federation of Pakistan (2013 SCMR 1205), wherein it was directed that a Commission should be constituted for appointments to certain offices in statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory bodies etc; that some of said offices were created by statutes providing their own procedure for appointment, and, therefore, anomalies would arise in case such appointments were made by a Commission in accordance with the directions given by the Supreme Court---Validity---Various Acts/Ordinances laid down a specific criteria/qualifications for high-level appointments and empowered the Federal Government to make such appointments---In view of Art. 90 of the Constitution it was the exclusive preserve of the Federal Government to appoint heads of , statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory bodies etc. and also to make appointments on merit under the Acts/Ordinances---Appointments of heads of statutory bodies, autonomous/semi-autonomous bodies, corporations, regulatory authorities etc. were governed under specific statutory provisions which could not be overlooked or substituted by some other mechanism---In light of the observations/directions given in the judgment Khawaja Muhammad Asif v. Federation of Pakistan (2013 SCMR 1205), the legal authority for appointments had been vested in a Commission and its recommendations were made binding upon the Prime Minister, which was not in accordance with Art. 90 of the Constitution-- Supreme Court while making directions for the formation of a Commission in the case Khawoja Muhammad Asif v. Federation of Pakistan (2013 SCMR 1205),overlooked provisions of Art.90 of the Constitution---Application was allowed accordingly with the observation that no statutory Commission had been created in Pakistan for examining suitability of persons for appointment to high public offices, thus the Government may consider the establishment of such a Commission through legislation in order to ensure transparency which would also enable the executive authority to make an informed decision while making appointments.

Khawaja Muhammad Asif v. Federation of Pakistan 2013 SCMR 1205; Shahid Orakzai and another v. Pakistan PLD 2011 SC 365; Ch.. Nisar Ali Khan v. Federation of Pakistan and others PLD 2013 SC 568 and Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195 ref.

(c) Civil service---

----Appointment---Posting---Transfer---Responsibility of deciding suitability of an appointment, posting or transfer fell primarily on the executive branch of the State.

(d) Constitution of Pakistan---

----Arts. 184(3) & 199---Policy making---Domain of Executive---Courts should ordinarily refrain from interfering in policy making domain of the Executive.

Executive District Officer (Revenue), District Khushab v. Ijaz Hussain 2012 PLC (C.S.) 917 ref.

(e) Constitution of Pakistan---

----Arts. 184(3) & 199---Civil service---Appointments---Policy adopted by Government for appointments--- Subject to judicial review---Even where appointments were to be made in exercise of discretionary powers, such powers were to be employed in a reasonable manner---Even otherwise, the policy adopted by the Federal Government in making appointments was open to judicial review on the touchstone of the Constitution and the laws made thereunder i.e. in case of any illegality in the ordinary process of appointment, the Supreme Court as well as the High Courts had sufficient powers under Arts.184 & 199 of the Constitution to exercise judicial review.

Abdul Rahim Bhatti Advocate Supreme Court for Petitioner.

Khurram Mumtaz Hashmi, Advocate Supreme Court for Respondent (3).

Salman Aslam Butt, Attorney General and Muhammad Waqar Rana, Additional Attorney General for Federation.

Date of Hearing: 30th October, 2014.

P L D 2015 Supreme Court 15

Present: Jawwad S. Khawaja, Mushir Alam and Dost Muhammad Khan, JJ

Mst. SHAHISTA BIBI and another---Appellants

Versus

SUPERINTENDENT, CENTRAL JAIL, MACH and 2 others---Respondents

Civil Appeal No.482 of 2014, decided on 19th September, 2014.

(On appeal from the judgment dated 30-9-2013 passed by the High Court of Balochistan, Quetta in C.P.No.265 of 2012).

(a) Interpretation of statutes---

-----Punitive law curtailing liberty of person---While interpreting such

law, court was required to strive in search of an interpretation, which preferred the liberty of a person instead of curtailing the same and that too unreasonably and unfairly, unless, the statutory law clearly directed otherwise---If two equal interpretations were possible then the one favourable to the accused and his liberty must be adopted and preferred.

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

----Ss. 35 & 397---Conviction of several offences at one trial or different trials---Sentences of imprisonment---Hardship case---Discretion of court--- Concurrent running of sentences-Provisions of Ss. 35 & 397 Cr.P.C. widened the scope of discretion the court to direct that sentences of imprisonment or that of life imprisonment awarded at the same trial or at two different trials but successively, shall run con currently---Once the legislation had conferred the said discretion in the court, then in hardship cases, courts were required to seriously take into consideration the same to the benefit of the accused so as to minimize and liquidate hardship treatment---Court of law could not fold up its hands to deny the benefit of Ss.35 & 397, Cr.P.C. to an accused person as denial would amount to ruthless treatment.

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

----Ss. 35 & 397---Penal Code (XLV of 1860), S. 302-Explosive Substances Act (VI of 1908), Ss. 3 & 6--- Conviction of several offences at one trial---Death sentence---Commuted to life imprisonment by the Government---Quantum of period of imprisonment---Scope--­Hardship case---Discretion of court---Concurrent running of sentences---Appellant was sentenced to death and a total period of imprisonment was equal to 214 years---Subsequently death sentence awarded to appellant was commuted to life imprisonment by the Government---Held that, according to the calculation chart, the total period of imprisonment came to 214 years and the total amount of fine imposed was Rs.17,20000/- or in default thereof to undergo imprisonment for a further period of 11-1/2 years---After getting benefit of S. 382-B Cr.P.C. and various remissions, granted by the Federal and Provincial Governments and the jail authorities, the appellant had undergone sentence of 42 years, 7 months and 21 days---Court of law could not fold up its hands to deny the benefit of Ss. 35 & 397, Cr.P.C. to the appellant as denial would amount to ruthless treatment and he would certainly die while undergoing such long period of imprisonment---If concurrent running of sentences was denied to the appellant, it would bring at naught the benefit conferred upon him by the amnesty given by the Government and ultimately the object of the same would be squarely defeated as appellant would meet natural death during imprisonment---Construing the beneficial provisions in favour of the appellant would clearly meet the ends of justice---Supreme Court directed that all the sentences awarded to the appellant shall run and shall be deemed to have run concurrently; that the appellant shall also have the benefit of S. 382-B, Cr.P.0 and all the remissions whether granted by the Federal and Provincial Governments or the jail authorities, shall be extended to him---Appeal was allowed accordingly.

Khan Zaman v. The State 1987 SCMR 1382; Juma Khan v. The State 1986 SCMR 1573 and Altaf Hussain v. The State 1987 PCr.LJ 2169 ref.

(d) Administration of justice---

--Hardship case---Substantial justice by court---Technicality of law---For doing substantial justice in the true sense in a hardship case, technicality of law and rule shall not operate as an absolute bar in the way of the court because giving preference to the technicality of law would defeat substantial justice.

Malik Azmatullah Kasi, Advocate Supreme Court for Appellants.

Iqbal Khattak, A.P.G. for Respondents.

Date of hearing: 19th September, 2014.

P L D 2015 Supreme Court 21

Present: Jawwad S. Khawaja, Muhammad Athar Saeed and Umar Ata Bandial, JJ

Messrs A.M. ASSOCIATES---Appellants

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others---Respondents

Civil Appeal No.271 of 2014, decided on 9th July, 2014.

(On appeal from the judgment dated 9-1-2014 of the Peshawar High Court, Peshawar passed in R.F.A. No.120-P of 2012).

Arbitration Act (X of 1940)----

----S. 15---Arbitration Council-7-Members---Arbitration award made without involving one of the members---Effect---Arbitration Council coram non judice---In terms of the contract parties had appointed a Dispute Adjudication Board, comprising of one Chairman and two members---Subsequently Dispute Adjudication Board was converted into Arbitration Council, and arbitration proceedings were conducted without involvement of the Chairman---No explanation was given as to why the Chairman was not made part of the Arbitration Council, and why proceedings were not held in the city, specifically provided as place of arbitration in the contract---In terms of the contract, the matter was to be decided by three arbitrators and not by two, therefore for all practical purposes the Chairman should have been a part of the decision of the award---Failure of the two arbitrators who passed the award to include and involve the Chairman in the Arbitration proceedings had rendered the award without jurisdiction and arbitrators were guilty of misconduct---Arbitration Council had become coram non judice for passing the award, which therefore could not be made rule of court---Appeal was dismissed accordingly.

Arshad Ali Syed, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellants.

Zahid Yousaf Qureshi, Addl. A.G. Khyber Pakhtunkhwa for Respondents.

Date of hearing: 9th July, 2014.

P L D 2015 Supreme Court 27

Present: Sarmad Jalal Osmany and ljaz Ahmed Chaudhary, JJ

MUSHTAQ HUSSAIN---Appellant

Versus

FATEH KHAN and others---Respondents

Civil Appeal No.863 of 2009, decided on 11th September, 2014.

(Against the judgment dated 1-4-2008 passed by Lahore High Court, Rawalpindi Bench in R.P.No.59 of 2008)

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

----S. 6(2)---Right of pre-emption---Pre-requisites---Zarar (loss)---Avoidance of loss was the underlying philosophy of law of pre­emption---Pre-emptor had to establish that he would suffer loss etc. unless the pre-empted property was sold to him.

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

----S. 6(1), Explanation II & III---Right of pre-emption---Shafi Khaleet and Shaft Jar---Ownership of a passage adjacent to the pre-empted land---Passage a public thoroughfare used by the public at large---Effect--- No right of pre-emption---Appellant/pre-emptor owned only one marla of the passage which was situated adjacent to the suit property-Such passage was not in the exclusive use of the appellant as it was a public thoroughfare used by the public at large--- Ownership of such passage would not give the right of pre-emption to the appellant on the ground that he was a Shafi Jar because he was not the exclusive owner of the same---Similarly appellant could not be termed a Shaft Khaleet as there were no special rights attached to the suit property in the sense that it was a public thoroughfare---No superior right of pre­emption had accrued to the appellant---Appeal was dismissed accordingly.

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

----S. 6---Right of pre-emption---Pre-requisite---Ownership of property---Underlying principle of law of pre-emption was that the pre­emptor had to own property before he could exercise such right.

Muhammad Khan v. Muhammad Yousaf PLD 2003 Lah. 413 and Muhammad Ramzan v. Muhammad Rafiq and others 1983 CLC 2837 distinguished.

Ahmad Khan v. Sattar Din PLD 1981 SC 148; Aurangzeb Khan v. Abdur Rehman 1984 SCMR 1294; Syed Alam v. Rabia Gul 1981 SCMR 59; Zia Farhat Awan etc. v. Aurangzeb and others 1981 SCMR 824; Mughal Baz Khan v. Sher Afzal Khan 1980 SCMR 692 and Government of N.-W.F.P. through Seceretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 ref.

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

----S. 6(1), Explanation II & III-Right of pre-emption---Shafi Khaleet and Shaft Jar---Pre-emption was allowed when the pre-emptor owned property either adjacent to the pre-empted one or the parties shared a water channel or common thoroughfare adjacent to their respective properties.

Sh. Zamir Hussain, Advocate Supreme Court for Appellant.

Dr. Babar Awan, Senior Advocate Supreme Court for Respondents.

Date of hearing: 11th September, 2014.

P L D 2015 Supreme Court 33

Present: Amir Hani Muslim and Qazi Faez lsa, JJ

MUHAMMAD AMIN LASANIA---Petitioner

Versus

Messrs ILYAS MARINE AND ASSOCIATES and others---Respondents

Civil Petition No.349-K of 2014, decided on 13th November, 2014.

(On appeal from the judgment/order dated 28-8-2014 in C.P.No.S-233/2007 passed by the High Court of Sindh, Karachi).

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

----Ss. 10(2) & (3)---Ejectment petition---Depositing rent with Rent Controller--- Scope--- Rent was required to be tendered to the landlord, and only if he refused or avoided to receive the same, it could be sent to him by postal money order or deposited with the Rent Controller within whose jurisdiction the premises were located---Landlord who was willing to receive the rent should not be made to suffer unnecessarily by having to go to court for withdrawing rent.

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

---S. 15---Limitation Act (IX of 1908), First Sched. Art.110--- Ejectment petition---Maintainability---Recovering of rent---Period of limitation, expiry of---Ejectment petition filed at a time when period of limitation for recovery of rent had expired---Legislature had consciously envisaged the eviction of tenant, despite the fact that recovery of rent may have become time barred.[Asghari Begum v. Baji Dubash (1991 CLC 203) held to be wrongly decided].

Asghari Begum v. Baji Dubash 1991 CLC 203 held to be wrongly decided

Pervaiz Akhtar v. The Additional District Judge, Rawalpindi PLD 1990 SC 681 and Badruddin v. Muhammad Yousuf 1994 SCMR 1900 ref.

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

----S. 15(2)(ii)---Ejectment petition-Default in payment of rent---Timely payment of rent---Burden of proof---Burden of establishing the timely payment of rent laid upon the tenant.

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

----S. 15(2)(vii)---Constitution of Pakistan, Art. 185(3)---Ejectment petition---Personal need of landlord-company-Premises required for starting business---Part of premises required for starting business was in possession of tenant, while the other part was in possession of landlord-company---Plea of landlord-company that it required the entire premises for starting business---Plea of tenant that landlord-company had attempted to sell the premises in the past, which dislodged its plea of personal need--- Validity---Mere fact that the landlord-company had some portion of the premises in its possession was not sufficient to establish that it did not need the entire property---Earlier attempt to sell the premises could not in itself dislodge the plea of personal need of landlord-company, since the company could decide not to sell if it did not get a reasonable price or for any other reason and decided to utilize the same for its own purpose---High Court had rightly accepted the landlord-company's plea of personal need of premises---Petition for leave to appeal was dismissed accordingly and leave was refused.

K.A. Wahab, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Hafeez Ahmed Managing Director for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 5th November, 2014.

P L D 2015 Supreme Court 41

Present: Nasir ul Mulk, Jawwad S. Khawaja, Mian Saqib Nisar, Astf Saeed Khan Khosa and Ejaz Afzal Khan, JJ

MUHAMMAD ASLAM---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.327-L of 2013, decided on 12th June, 2014.

(Against the order dated 7-6-2013, passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.5422-B of 2013)

Criminal Procedure Code (V of 1898)---

----S. 497---Second/subsequent application for post-arrest bail, filing of---Fresh grounds---Scope---First post-arrest bail application filed by accused before the High Court was dismissed as withdrawn after arguments by counsel for accused at some length---Second bail application filed by accused before the High Court did not disclose any fresh ground for his admission to bail, thus in view of the law declared by the Supreme Court in the case of Nazir Ahmed and another v. The State and others (PLD 2014 SC 241), second bail application was not maintainable---Appeal was dismissed accordingly.

Nazir Ahmed and another v. The State and others PLD 2014 SC 241 followed.

Rai Bashir Ahmad, Advocate Supreme Court for Appellant.

Mazhar Sher Awan, Addl. Prosecutor-General, Punjab for the State.

Mian Shah Abbas, Advocate Supreme Court for Respondent No.2.

Date of hearing: 12th June, 2014.

P L D 2015 Supreme Court 42

Present: Jawwad S. Khawaja, Mushir Alam and Dost Muhammad Khan, JJ

LIBERTY PAPERS LTD: and others---Appellants

Versus

HUMAN RIGHTS COMMISSION OF PAKISTAN---Respondent

Civil Appeal No.302 of 2006, decided on 17th September, 2014.

(On appeal from the judgment dated 23-1-2006, passed by the High Court of Balochistan, Quetta in R.F.A. No.62 of 2002)

(a) Defamation Ordinance (LVI of 2002)---

----S. 3---Civil Procedure Code (V of 1908), Ss. 19 & 20-Defamatory and libelous material published in a newspaper-Place of instituting suit for defamation-Option for plaintiff-Jurisdiction of courts in defamation cases lay both where the newspaper was published and where it was circulated, with the option to be used by the plaintiff-- Cause of action needed to arise only in part in a jurisdiction for it to be an open option for the plaintiff---Significant readership and distribution of newspaper in a city qualified as 'cause of action', in part at least.

Altaf Gauhar v. Wajid Shamsul Hasan and another PLD 1981 Kar. 515; Mazhar Valjee v. Sher Afghan Khan Niazi 2004 YLR 2525; Messrs Rahe Manzil Transport and others v. M. Ameen PLD 1963 Kar. 182; Abdul Hakim and others v. Saad Ullah Khan PLD 1970 SC 63 and Province of Punjab through District Collector Mianwali and others v. Mahmood ul Hassan Khan 2007 SCMR 933 ref.

(b) Defamation Ordinance (LVI of 2002)---

----S. 9--- Defamation--- Remedies--- Damages--- "Compensatory", "general" and "aggravated damages"---Scope.

Compensatory damages themselves could be divided into general and special. Plaintiff who won a defamation action was entitled to an award of general damages, compensating him for the injury to his reputation and feelings by being proportionate to the damage which the plaintiff had suffered and nothing greater than what was necessary to provide adequate compensation and to re-establish his reputation.

General damages were based on the matters of vindication, injury to reputation and injury to feelings. Plaintiff should be able to point to the sum awarded as a demonstration to the world at large that the allegations in question were baseless. Sometimes restoration to the pre-publication status quo was not possible so the general damages purely reflected the damage caused by the defamatory publication.

Unapologetic behavior of defendant could lead to award of aggravated damages. If the publisher of defamatory material was unable to establish the factual correctness of the material published, malice on the publisher's part would stand established through implication, thus fulfilling the criteria of aggravated damages.

(c) Defamation Ordinance (LVI of 2002)---

----Ss. 3 & 9-Defamatory and libelous material published in a newspaper against Human Rights Commission of Pakistan ("organization")---Story published in a newspaper stated that office bearers of the organization were instigators of violence, propagating anti-military sentiments through dispersal of financial rewards---Trial Court awarded damages of five million rupees against the newspaper-High Court upheld the judgment of Trial Court but reduced the damages to one million rupees---Validity---Gravity of the allegations was significant in the sense that office bearers of the organization were active in the public sphere-Allegations paved way for accusations of conspiracy against an arm of the executive by the office bearers of the organization through nefarious means-Size of the circulation of the concerned newspaper was throughout the country-Possible effects of the publication were loss of possible income for the office bearers of the organization along with loss in standing in society---Appeal was dismissed accordingly and judgment of High Court was upheld.

(d) Defamation Ordinance (LVI of 2002)---

----Ss. 5(b) & (c)---Code of Ethics of the Council of Pakistan Newspaper Editors (CPNE), Clauses. 2 & 3---Defamation---Defamatory material published by a newspaper---Defences---Good faith---Best practice of professional ethics---Scope---Defendant-newspaper in a case of defamation for damages, as the publisher of defamatory material, needed to prove through evidence besides pleading good faith that it was diligent in _checking facts and followed the best practices of professional ethics universally accepted---Codes of Ethics of the Council of Pakistan Newspaper Editors (CPNE) provided that press should avoid biased reporting or publication of unverified material, and avoid the expression of comments and conjectures as established fact, and that generalizations based on the behavior of an individual or a small number of individuals would be deemed unethical.

(e) Defamation Ordinance (LVI of 2002)---

----S. 3---Constitution of Pakistan, Arts. 4(2)(a), 14, 19 & 19A--- Defamation---Dignity of person---Constitutional obligation of State---Respect and regard for dignity of every person---Defamation of any person or citizen through spoken or written words or any other means of communication lowered the dignity of a man fully guaranteed by the Constitution, thus, not only was it the constitutional obligation of the State but all the citizens and persons living within the State to respect and show regard to dignity of every person and citizen---Anyone who committed an act of malice by defaming any person, would be guilty under the Constitution and would cross the red line of prohibition imposed by the Constitution, attracting serious penal consequences under the law and the person violating the same had to be dealt with under the law--- When a person was disgraced, his/her dignity was brought to almost naught, thus no lenient treatment should be shown to anyone in such regard nor anyone could plead the unbridled right of expression and right to have access to information.

(f) Defamation Ordinance (LVI of 2002)---

----S. 3---Code of Ethics of the Council of Pakistan Newspaper Editors (CPNE)---Defamation---Media, duty of---Irresponsible and derogatory reporting of news---Media as a whole played a vital role in reshaping political and social life, creating awareness amongst the masses about their rights and responsibilities as well as against corruption--- While performing such noble duties, the media was equally required like any other citizen to abide by the provisions of the Constitution, the code of ethics, the rules and regulations and not to resort to mud-slinging by violating standards of true professional ethics as irresponsible and derogatory reporting of news would diminish its own credibility in the eyes of the readers and viewers.

Ms. Shaista Altaf, Advocate Supreme Court for Appellants.

Muhammad Munir Peracha, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 17th September, 2014.

P L D 2015 Supreme Court 50

Present: Mian Saqib Nisar, Asif Saeed Khan Khosa, Amir Hani Muslim, Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ

KHALID IQBAL and 2 others---Petitioners

Versus

MIRZA KHAN and others---Respondents

Crl. R.P.No.76/2008 in Crl.R.P. No.12/2001 and C.A.No.1262/2014 and Crl.M.A. No.371-L/2014 in Crl.R.P. No.Nil/2014 in Crl.P. No.50-L/2012, decided on 26th November, 2014.

(Against the order dated 6-3-2008 of this Court passed in CrI.R.P.No.12 of 2001 and against the order dated 7-5-2014 of the Lahore High Court, Bahawalpur Bench, passed in W.P.No.3280 of 2014 against the order dated 2-12-2002 of this Court passed in Crl.P.No.50-L of 2002).

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

---S. 403(1)---Constitution of Pakistan, Art. 13(a)---Autrefois acquit and autrefois convict, principle of---Scope---Question of quantum of sentence--- Principle of autrefois acquit and autrefois convict contained in S.403(1) Cr.P.C. had no relevance to a case wherein the question under consideration in an appeal was not as to whether a new trial of the convict should be held or not, but as to the quantum of sentence for a con vict---Reduction of sentence from death to imprisonment for life of a convict, who had served out the sentence of 25 years during the pendency of the legal remedy, could not seek refuge under the doctrine of autrefois acquit and autrefois convict contained in Art. 13(a) of the Constitution.

Hasan and others v. The State PLD 2013 SC 793 ref.

(b) Constitution of Pakistan---

---Art. 13(a)---Double jeopardy, doctrine of---Scope---Variation of sentence by Appellate Court--- Variation of sentence of a convict could not be termed as double jeopardy and did not attract Art.13(a) of the Constitution, which could only be applied, if the convict was exposed to a new trial.

Hasan and others v. The State PLD 2013 SC 793 ref.

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

----S. 302(b)---Qatl-i-amd---Conviction---Death sentence reduced/ commuted to imprisonment for life---Convict sentenced to death undergoing a period of custody equal to or more than a full term of imprisonment for life during the pendency of his legal remedy against his conviction---Death sentence of such convict could be commuted to life imprisonment, but not on the sole ground that he remained incarcerated in the death cell for a lengthy period of time---Court also had to consider other factors to reduce the quantum of sentence.

Dilawar Hussain v. The State 2013 SCMR 1582 and Hasan and others v. The State PLD 2013 SC 793 ref.

(d) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O. XXVI, R. 9---Second review petition filed before the Supreme Court---Maintainability--- O.XXVI, R.9 of the Supreme Court Rules, 1980 barred a second review petition---Supreme Court had already recorded findings against the convict by dismissing his appeal and (first) review petition--- Convict through a second review petition could not re-agitate the matter---Second review petition was dismissed accordingly.

(e) Constitution of Pakistan---

---Arts. 184, 187 & 188---Power of Supreme Court to revisit its earlier decision or depart from it---Scope---Constitution did not impose any restriction or bar on the Supreme Court to revisit its earlier decisions or even to depart from them, nor the doctrine of stare decisis would come in its way so long as revisiting of the judgment was warranted, in view of the significant impact on the fundamental rights of citizens or in the interest of public good-Supreme Court had absolute powers to re-visit, to review and/or to set aside its earlier judgments/orders by invoking its suo motu jurisdiction under Arts. 184(3), 187 or 188 of the Constitution-Powers of the Supreme Court to exercise its inherent jurisdiction under the said Articles of the Constitution were not dependent upon an application of a party.

PLD 2013 SC 829 ref.

(f) Constitution of Pakistan---

----Art. 199(5)-Constitutional petition-Judgment of Supreme Court challenged by way of a constitutional petition before the High Court-Maintainability- Bar under Art.199(5) of the Constitution, prohibited issuance of a writ against the Supreme Court and the High Court or by any other collateral proceeding.

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

---S. 302(b)---Constitution of Pakistan, Arts. 185(3) & 188-Qatl-i-amd-Conviction-Death sentence---Delay in carrying out death sentence-Not a mitigating factor to reduce death sentence to imprisonment for life-Convict sentenced to death undergoing a period of custody equal to or more than a full term of imprisonment for life having exhausted/lost all legal remedies against his death sentence-Delay caused by the executive in executing death sentence of convict was not a ground to invoke the principle of expectancy of life to reduce his death sentence to imprisonment for life.

Hasan and others v. The State PLD 2013 SC 793 ref.

Sardar Latif Khan Khosa, Senior Advocate Supreme Court for Petitioners (in Crl.R.P.76 of 2008).

Iltaf Ellahi Sheikh, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.A.1262 of 2014).

Syed Iqbal Hussain Shah Gillani, Advocate Supreme Court for Petitioners (in CrI.M.A.371-L of 2014).

Syed Hamid Ali Bukhari, Senior Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondents (in Crl.R.P.76 of 2008).

Complainant in Person (in C.A.1262 of 2014). Ahmed Raza Gillani, APG(Pb) for the State.

Date of hearing: 10th November, 2014.

P L D 2015 Supreme Court 66

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Umar Ata Bandial, JJ

GHULAM QAMMBER SHAH---Petitioner

Versus

MUKHTIAR HUSSAIN and others---Respondents

Criminal Petition No.513 of 2014, decided on 28th November, 2014.

(Against the judgment dated 18-7-2014 passed by the Lahore High Court, Multan Bench, Multan in Criminal Miscellaneous No.3456-8 of 2014)

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

----Ss. 497 & 200 ---Bail, grant of---Scope---Private complaint and challan case---Accused was granted bail by High Court on the ground that a private complaint had already been filed by the complainant against accused regarding the same incident and, thus, further detention of accused in the challan case had become illegal---Legality---High Court had referred to no provision of law for declaring continued custody of accused in jail in connection with the challan case as "illegal"---Bail granted to accused was set aside in circumstances.

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

----Ss. 497 & 200---Subsequent bail application, filing of---Fresh grounds---Scope---First bail application dismissed as not pressed--- Second bail application dismissed as withdrawn after 15 minutes of arguments---Effect---Dismissal of a bail application as having been withdrawn after arguing the case on merits amounted to dismissal of the bail application on merits of the case, and a subsequent application for bail could only be filed and entertained if the same disclosed any fresh grounds for such relief, i.e. a ground which was not available till the dismissal of the earlier application for bail.

Nazir Ahmed and another v. The State and others PLD 2014 SC 241 and Muhammad Aslam v. The State and another Criminal Appeal No.327-L of 2013) ref.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324, 148 & 149-- Attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, cancellation of---Accused was attributed a specific firearm injury on the neck of injured prosecution witness, who stood by his allegation against the accused in such respect, and was also prima facie supported by the medical evidence---Accused could not be released on bail in such circumstances on the basis of further inquiry into his guilt---Bail granted to accused by the High Court was cancelled accordingly.

Qari Abdul Rasheed, Advocate Supreme Court for Petitioner.

Aftab Ahmed Khan, Advocate Supreme Court and Mehar Khan Malik, Advocate-on-Record for Respondent No.1.

Ch. Muhammad Waheed Khan, Addl. Prosecutor-General, Punjab for the State.

Date of hearing: 28th November, 2014.

P L D 2015 Supreme Court 69

Present: Jawwad S. Khawaja and Qazi Faez Isa, JJ

SUBHANUDDIN and others---Appellants

Versus

PIR GHULAM---Respondent

Civil Appeal No.1131 of 2011, decided on 24th October, 2014.

(On appeal from the judgment dated 29-7-2011 in C.R. No.117 of 2006 passed by the Peshawar High Court, D.I. Khan Bench)

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13(2)---Talb---Talb-i-Muwathibat---Burden of proof---Person conveying information of sale and price not produced as witness---Effect---Initial burden of proof with regard to conveying of the information of sale and price lay upon the pre-emptor, who failed to discharge the same---Person who had conveyed information of sale and price to brother of pre-emptor, who in turn passed it onto the pre-emptor, was not produced as a witness---Elements of Talb-i-Muwathibat were thus not proved---Appeal was allowed accordingly and suit for pre-emption was dismissed.

(b) Islamic Law---

----Pre-emption---Talbs---Talb-i-Muwathibat---Meaning.

'Kitab-Al-Shufa' of Fatawa-i-Alamgiri and Fatawa-i-Kazi Khan translated by Mohomed Ullah Ibn Jung in 'The Muslim Law of Pre-Emption'; 'The Hedaya' of Maulana Burhanuddin translated by Charles Hamilton and D.F. Mulla's 'Principles of Mahomedan Law' ref.

(c) Islamic Law---

----Pre-emption--- Talbs--- Talb-i-Muwathibat--- Significance--- Found-ation of claim of pre-emption rested on making an immediate declaration of intention to assert one's right (Talb-i-Muwathibat) and if the same was not done, the entire structure collapsed.

(d) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----Ss. 5 & 33---Suit for possession through pre-emption---Actual sale price of suit land---Proof---Unsubstantiated statement by pre-emptor---Contravention of Shariah---Disentitlement to claim of pre-emption---Pre-emptor claimed that suit land was sold at a much lower price compared to the amount mentioned at time of mutation---Pre-emptor failed to disclose the source of such information, and if his reason for mentioning a lower price was to obtain an advantage, the same was not permissible as it would contravene the provisions of Shariah, which were specially made applicable to pre-emption cases---Shariah required honesty and truthfulness in one's dealings and false statements made to obtain an advantage was an anathema to Almighty Allah---When pre-emptor sought undue advantage to be gained on the basis of a completely unsubstantiated statement it would disentitle a shafee (pre-emptor) to claim pre-emption---Plea of pre-emptor in the present case regarding lesser sale price of suit land had no basis and in fact was taken to gain an advantage---Appeal was allowed accordingly and suit for pre-emption was dismissed.

Al-Qur'an Surah 9, At-Taubah Verse 119; Suraha 16, An-Nahl, Verse 92 and Surah 16, An-Nahl, Verse 94 ref.

Zulfikar Khalid Maluka, Advocate Supreme Court for Appellants.

Syed Mastan Ali Zaidi, Advocate Supreme Court for Respondent.

Date of hearing: 24th October, 2014.

P L D 2015 Supreme Court 77

Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Dost Muhammad Khan and Qazi Faez Isa, JJ

CRIMINAL APPEAL NO. 126 OF 2012

(Against the judgment dated 23-11-2011 passed by the Islamabad High Court, Islamabad in Criminal Appeal No.30 of 2004, Criminal Revision No.19 of 2004 and Murder Reference No.54 of 2005)

ZAHID REHMAN---Appellant

Versus

The STATE---Respondent

CRIMINAL PETITION NO.568 OF 2011

(Against the judgment dated 23-11-2011 passed by the Islamabad High Court, Islamabad in Criminal Revision No. 19 of 2004)

SHEERIN ZAFAR---Petitioner

Versus

ZAHID-UR-REHMAN and others---Respondents

CRIMINAL APPEAL NO.80 OF 2001

(Against the judgment dated 20-4-2000 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.95 of 1994)

AMIR KHAN---Appellant

Versus

MUHAMMAD ASLAM and others---Respondents

Criminal Appeal No.126 of 2012, Criminal Petition No.568 of 2011 and Criminal Appeal No.80 of 2001, decided on 15th January, 2015.

Per Asif Saeed Khan Khosa, J; Dost Muhammad Khan and Qazi Faez Isa, JJ, agreeing; Ejaz Afzal Khan and Ijaz Ahmed Chaudhry, JJ, disagreeing. [Majority view]

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

----Ss. 299(k) & (l)---'Qisas' and 'Ta'zir'---Scope and distinction---Qisas in Islamic terms was Almighty Allah's law dealing with the offences of murder and bodily hurt and Ta'zir was man-made law for such offences and the standards of proof and the punishments provided for them therefore were by and large different---Qisas and Ta'zir were two distinct and separate legal regimes which were mutually exclusive and not overlapping and they were to be understood and applied as such.

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

----Ss. 302, 304, 306, 307, 308 & 311---Qatl-i-amd (intentional murder)---Punishment---Qisas or Ta'zir---Scope and principles---Provisions of S. 304, P.P.C. provided that a conviction for an intentional murder could entail the punishment of qisas only if the accused person made before a court competent to try the offence a voluntary and true confession of commission of the offence or the requisite number of witnesses were produced by the prosecution before the Trial Court and their competence to testify was established through Tazkiya-tul-shahood (scrutiny of the witness before trial of the accused person)---Cases of intentional murder other than those fulfilling the requirements of S. 304, P.P.C. were cases entailing the punishment of ta'zir, as provided in and declared by S. 302(b), P.P.C., and the provisions relating to the punishment of qisas were to have no application or relevance to the same---For all cases of conviction for the offence of intentional murder the question as to whether the convict was to be punished with qisas or with ta'zir was dependant upon the fact whether the conviction was brought about on the basis of proof in either of the forms mentioned in S. 304, P.P.C. or not---When the conviction was based upon proof as required by S. 304, P.P.C. then the sentencing regime applicable to such convict was to be that of qisas but if the conviction was based upon proof other than that required by S.304, P.P.C. then the sentencing regime relevant to such convict was to be that of ta'zir---Only after determining that the sentencing regime of qisas was applicable to the case of a convict, did it become relevant to consider as to whether such convict was to be punished with qisas under the general provisions of S. 302(a), P.P.C. or his case attracted the exceptions to S.302(a), P.P.C in the shape of Ss. 306 or 307, P.P.C. in which cases punishments different from that under S.302(a), P.P.C. were provided---General provision regarding an intentional murder being punishable through qisas was S. 302(a), P.P.C. carrying only the punishment of death but S. 302, P.P.C. was subject to the other relevant provisions of Chapter XVI of the Pakistan Penal Code, 1860 which provided punishments different from that of death for certain special classes of murderers mentioned therein despite their cases otherwise attracting a punishment of qisas---Sections 306, 307 & 308, P.P.C. belonged to such category of cases which cases were exceptions to the general provisions of S. 302(a), P.P.C. but nonetheless all such cases were to be initially proved as cases entailing a punishment of qisas which punishment was then to be withheld because the offender belonged to a special class for which an exception was created in the matter of his punishment---Plain reading of the provisions of Ss. 306 & 307, P.P.C. showed that the cases covered by said provisions were primarily cases of qisas but because of certain considerations the punishment of qisas was not liable or enforceable in such cases---Before considering the question of his punishment in such a case a convict must have incurred the liability or enforceability of the punishment of qisas against him which punishment was to be withheld from him in view of the considerations mentioned in Ss. 306 & 307, P.P.C. and that was why some alternate punishments for such offenders were provided for in S. 308, P.P.C.; in other words a conviction for an offence entailing the punishment of qisas must precede a punishment under S. 308, P.P.C. and such conviction could only be recorded if proof in either of the forms mentioned in S.304, P.P.C. was available before the Trial Court and not otherwise---Provisions of S. 311, P.P.C. provided another example in such context showing as to how in a case otherwise entailing a punishment of qisas the offender may be handed down a punishment of ta'zir and the said section also fell in Chap. XVI of the Pakistan Penal Code, 1860 specifying an exception to the general provisions of S.302(a), P.P.C.---Provisions of and the punishments provided in S. 308, P.P.C. were relevant only to cases of qisas and had no relevance to cases of ta'zir as in the latter category of cases a totally different legal regime of proofs and punishments was applicable.

Abdus Salam v. The State 2000 SCMR 338 ref.

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

----Ss. 302(a), 304, 306, 307 & 308--- Qatl-i-amd (intentional murder) not liable to qisas---Cases in which qisas for qatl-i-amd shall not be enforced---Scope---Exception to the general provision regarding punishment of qisas contained in S.302(a), P.P.C.---Section 306, P.P.C. did not constitute a distinct offence and the same did not entail different punishments under S. 308, P.P.C.---For a case attracting the provisions of S. 306, P.P.C., S.302 or 304, P.P.C. were very much relevant---Section 306, P.P.C, only provided that the punishment of qisas shall not be liable in cases of certain classes of murderers specified therein, which meant that it provided an exception to the general provision regarding liability to the punishment of qisas contained in S. 302(a), P.P.C. and for such an exceptional case a set of different concessional punishments was provided in S.308, P.P.C.---Cases covered by the provisions of Ss. 306 & 307, P.P.C. were primarily cases of qisas but because of certain considerations the punishment of qisas was not liable or enforceable in those cases and instead some alternate punishments for such offenders were provided for in S. 308, P.P.C.---Provisions of and the punishments provided in S.308, P.P.C. were relevant only to cases of qisas and had no relevance to cases of ta'zir--- Any latitude or concession in the matter of punishments contemplated by the provisions of Ss. 306, 307 & 308, P.P.C. and extended to certain special categories of offenders in cases of qisas mentioned in such provisions ought not to be mistaken as turning those cases into cases of ta'zir with the same latitude or concession in the punishments.

Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Muddassar alias Jimmi v. The State 1996 SCMR 3; Muhammad Afzal alias Seema v. The State 1999 SCMR 2652; Muhammad Saleem v. The State 2001 SCMR 536; Umar Hayat v. Jahangir and another 2002 SCMR 629; Muhammad Akram v. The State 2003 SCMR 855; Ghulam Murtaza v. The State 2004 SCMR 4; Nasir Mehmood and another v. The State 2006 SCMR 204; Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111; Abdul Jabbar v. The State and others 2007 SCMR 1496; Tauqeer Ahmed Khan v. Zaheer Ahmad and others 2009 SCMR 420; Samiullah and others v. Jamil Ahmed and 2 others 2008 SCMR 1623 and Ahmad Nawaz and another v. The State 2011 SCMR 593 endorsed.

Khalil-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885; Muhammad Iqbal v. The State 1999 SCMR 403; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Naseer Ahmed v. The State PLD 2000 SC 813; Dil Bagh Hussain v. The State 2001 SCMR 232; Muhammad Abdullah Khan v. The State 2001 SCMR 1775; Amanat Ali v. Nazim Ali and another 2003 SCMR 608 and Muhammad Ilyas v. The State 2008 SCMR 396 per incuriam.

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

----S. 302(c)---Qatl-i-amd where punishment of qisas not applicable---Scope---Provisions of S. 302(c), P.P.C. were relevant to those acts of murder which were committed in situations and circumstances which did not attract the sentence of qisas---Section 302(c), P.P.C. related to certain situations and circumstances wherein a murder was committed and according to the Injunctions of Islam the punishment of qisas was not applicable to such situations and circumstances.

Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 ref.

(e) Constitution of Pakistan---

----Arts. 203D & 203G---Penal Code (XLV of 1860), Preamble---Repugnancy to Injunctions of Islam---Federal Shariat Court---Shariat Appellate Bench of the Supreme Court---Jurisdiction---Scope---Provisions in Pakistan Penal Code, 1860, relating to Injunctions of Islam---By virtue of the provisions of Art. 203G of the Constitution, the Supreme Court, or even a High Court, had no jurisdiction to test repugnancy or contrariety of any existing law or legal provision to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and such jurisdiction vested exclusively in the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court.

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

----Ss. 302, 309, 310, 311 & 338-E---Criminal Procedure Code (V of 1898), S. 345(2)---Murder---Compounding of offence---Compromise---'Qisas' and 'Ta'zir'---Principles and distinction---Section 309, P.P.C. pertaining to waiver (Afw) and S. 310, P.P.C. pertaining to compounding (Sulh) in cases of murder were relevant only to cases of qisas and not to cases of ta'zir---For cases of ta'zir the matter of compromise between the parties was governed and regulated by the provisions of S. 345(2), Cr.P.C. read with S. 338-E, P.P.C.---Partial compromise may be acceptable in cases of qisas but a partial compromise was not acceptable in cases of ta'zir---Compounding of an offence falling in Chapter XVI of the Pakistan Penal Code, 1860 was permissible under some conditions both in cases of qisas as well as ta'zir but at the same time it was equally true that such compounding was regulated by separate and distinct provisions and that such limited common ground between the two did not obliterate the clear distinction otherwise existing between the two separate legal regimes.

Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307; Niaz Ahmad v. The State PLD 2003 SC 635; Abdul Jabbar v. The State and others 2007 SCMR 1496; Manzoor Hussain and 4 others v. The State 1994 SCMR 1327; Muhammad Saleem v. The State PLD 2003 SC 512; Muhammad Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 others PLD 2003 SC 547; Riaz Ahmad v. The State 2003 SCMR 1067; Bashir Ahmed v. The State and another 2004 SCMR 236 and Khan Muhammad v. The State 2005 SCMR 599 ref.

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

----S. 311---Ta'zir after waiver or compounding of right of Qisas in qatl-i-amd---Scope---Provisions of S.311, P.P.C. were relevant to and could be pressed into service in cases of qisas only and not in cases of ta'zir.

Manzoor Hussain and 4 others v. The State 1994 SCMR 1327; Khan Muhammad v. The State 2005 SCMR 599; Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111 and Iqrar Hussain and others v. The State and another 2014 SCMR 1155 ref.

Per Ejaz Afzal Khan. J; disagreeing with Asif Saeed Khan Khosa, J.

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

----S. 299(k)---"Qisas"---Definition and meaning---Punishment---Scope---Word "qisas" as defined in S. 299(K), P.P.C. meant punishment by causing similar hurt at same part of the body of the convict as he had caused to the victim or by causing his death if he had committed qatl-i-amd, in exercise of the right of the victim or a wali---Word "qisas" meant "return of evil for evil", and it also meant"retaliation"--- Another word, close in meaning to the word qisas was retribution which meant a punishment inflicted in return for a wrong and thus distinctively stressed the operation of strict justice by administering merited punishment.

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

----S. 299(l)---Ta'zir---Definition and meaning---Punishment---Scope---Word "ta'zir" as defined in S. 299(l), P.P.C. meant punishment other than qisas---Literal meaning of ta'zir was chastisement---Punishment of ta'zir was not prescribed by the Holy Quran and Sunnah---Punishment of ta'zir could not be as stern and stringent as that of qisas.

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

----Ss. 306, 307 & 308---Qatl-i-amd not liable to qisas---Cases in which qisas for qatl-i-amd shall not be enforced---Punishment---Scope---Sections 306, 307 & 308, P.P.C. were equally applicable to the cases going outside the pail of qisas---Restricting application of said provisions to cases of qisas only would give rise to an anomaly, which was that if sentence in qatl-i-amd liable to qisas, despite stern and stringent forms of proof, could be lenient in view of the circumstances mentioned in Ss. 306 & 308, P.P.C. why could not it be lenient in view of the same circumstances in the case of ta'zir notwithstanding the forms of proof and sentence provided thereunder were comparatively less stern and stringent---Restricting the application of S. 306, P.P.C. to qisas only would amount to reading down its sub-clauses (a), (b) & (c) without any interpretative justification---Section 307, P.P.C. though also stated the circumstances taking qatl-i-amd outside the pail of qisas, but they were not the ones existing at the time of commission of the crime, but as a matter of fact, arose out of the events taking place subsequent thereto---Distinction thus had to be drawn between the circumstances stated in S. 307, P.P.C. and those stated in the section preceding it---Provisions contained in Ss. 306 & 308, P.P.C. also applied to the cases going outside the pail of qisas, with the same force and vigor---Any leniency in punishment available in the cases of qisas in view of the circumstances mentioned in Ss. 306 & 308, P.P.C. could not be denied to a person guilty of qatl-i-amd liable to ta'zir.

Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203; Muhammad Afzal alias Seema v. The State 1999 SCMR 2652; Muhammad Saleem v. The State 2001 SCMR 536; Umar Hayat v. Jahangir and another 2002 SCMR 629; Muhammad Akram v. The State 2003 SCMR 855; Ghulam Murtaza v. The State 2004 SCMR 4; Nasir Mehmood and another v. The State 2006 SCMR 204; Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111; Abdul Jabbar v. The State and others 2007 SCMR 1496; Taqueer Ahmed Khan v. Zaheer Ahmed and others 2009 SCMR 420; Samiullah and others v. Jamil Ahmed and 2 others 2008 SCMR 1623; Ahmed Nawaz and another v. The State 2011 SCMR 593; Muhammad Iqbal v. The State 1999 SCMR 403; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Naseer Ahmed v. The State PLD 2000 SC 813; Dil Bagh Hussain v. The State 2001 SCMR 232; Muhammad Abdullah Khan v. The State 2001 SCMR 1775; Amanat Ali v. Nazim Ali and another 2003 SCMR 608 and Muhammad Ilyas v. The State 2008 SCMR 396 ref.

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

----Chap. XVI & Ss. 306, 307, 308, 309, 310, 311 & 338-E---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd---Compounding of offence---Compromise---"Qisas" and "Ta'zir"---Principles and distinction---Provision of S. 338-E, P.P.C. showed that all offences under chapter XVI, P.P.C could be waived or compounded and the provisions of Ss. 309 & 310, P.P.C. shall mutatis mutandis apply to the waiver or compounding of such offences---Reference to S.345, Cr.P.C., in S. 338-E, P.P.C., by no means restricted the application of Ss. 306, 307 & 308, P.P.C. to the cases of qisas only nor did it prevent a wali from waiving or compounding the offence of qatl-i-amd.

Per Dost Muhammad Khan, J; agreeing with Asif Saeed Khan Khosa, J.

(l) Interpretation of statutes---

----Intention of legislature---Discovery by court---Principles---Where the statute was plainly understandable and its meaning was conveniently conceivable, court could not put a different meaning on a statute nor could it stretch the same to cover those matters or to apply to the cases which were not covered by the same either impliedly or expressly---Supplying omissions; repairing defects in a statute and changing clear meaning of statute was not the province of the court.

Judges may enter upon in construing and interpreting a statute if it did not convey a clear meaning or the intention of the law maker. Similarly, judges would strive in search of the intent of the law maker in case a statute was ambiguous or it conveyed two different meanings. Courts would give that meaning to a statute which was more reasonable and which furthered the purpose and object of the enactment intended by the Parliament.

Primary and fundamental principle was that the courts/judges had to discover the true intention of the law maker. In case the statute was plainly understandable and its meaning was conveniently conceivable then the court could not put a different meaning on a statute nor could it stretch the same to cover those matters or to apply to the cases which were not covered by the same, either impliedly or expressly.

Courts were duty bound to undertake the exercise of construction and interpretation of a statute when it did not convey conceivable meaning or if the intention of the law maker was not clearly flowing therefrom so as to make it workable and beneficial. Again, in such course, the courts/judges were supposed to give true meaning to the statute keeping in view the objects of the enactment, the law maker wanted to achieve.

During interpretation of statutes courts/judges could not enter into the field of legislation as that process fell within the province of the Legislature. Of course, there was one exception to such rigid rule and that was when any statute or enactment had encroached upon the fundamental rights of the citizens and came in conflict with those fundamental provisions of the Constitution, which guaranteed fundamental rights.

Reference No.1 of 1957 by President of Pakistan PLD 1957 SC 219 ref.

Supplying omissions or repairing defects in a statute was not the province of the courts because such role and authority was undeniably vested in the law makers. Maxim, "casus omissus" could in no eventuality be supplied by a court of law as that would amount to make laws. Court was not entitled to read words into an Act of Parliament unless unavoidable circumstances provided a clear reason for acting in such manner. It was also not the domain of a court to add to or to take from a statute anything unless there were very strong grounds for holding that the Legislature intended something, which it had failed to express however, in the course of such exercise no undue inference could be drawn to that effect. Similarly, a court had no power to fill up any gap in any statute as doing so would amount to usurping the function and encroaching upon the constitutional power of the Legislature. Whether the omission was intentional or inadvertent was not the concern of the court and a "casus omissus" could not be supplied by a court of law. It was better to leave the same for the wisdom of the Legislature and the court had to point out the defect or omission in any statute.

Similarly, it was not for the court to change the clear meaning of the statute for the reason that it would bring about inconvenient consequences. Such considerations were alien to the science of construction of statute and even in case of such a statute the meaning could not be departed from by the court on the ground of public policy because it was the exclusive business of the Legislature and not of the judges to remedy the defects in a particular statute. Court was neither supposed nor vested with powers to subvert the true meaning of a statute by putting on it a more liberal construction to cover the cases which were never intended by the Legislature.

Equally it was the duty of the courts not to exonerate parties who plainly came within the scope of an enacted law/statute, on account of a highly technical and forced construction because that would narrow down and exclude cases fairly falling within and covered by such statute. Mere verbal nicety or forced construction was never to be resorted to in order to exonerate persons plainly coming within the scope of a statute.

Khizar Hayat v. Commissioner Sargodha Division PLD 1965 Lah. 349 (F.B); Chairman Evacuee Trust Property v. Muhammad Din PLD 1956 SC 331 and E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536 ref.

(m) Interpretation of statutes---

----Penal statute---Penal statutes were to be strictly construed and in case of doubt they were to be construed in favour of the accused---Courts were not authorized to interpret penal statutes in a manner so as to emasculate the same when they otherwise conveyed a clear and definite meaning---Adhering to the strict grammatical meanings of the words used in the statute was a well settled principle of construction.

Brig. (Rtd.) F.B. Ali v. The State PLD 1975 SC 506 ref.

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

--- Ss. 306, 307, 308, 309, 310, 311 & 312---Qatl-i-amd--- Punishment of qisas---Scope---Provisions of Ss.306, 307, 308, 309 & 310 in unequivocal and clear terms mentioned the punishment of "qisas" leaving no room for 'ta'zir' punishment to be read or included therein by implication---Same was the position with Ss. 311 & 312. P.P.C.

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

----Ss. 299(b), (d), (e) & (k)---Qatl-i-amd---Right to take 'Qisas', 'Diyat', 'Arsh', 'Daman' or 'Badl-e-Sulah'---Scope---No victim or "wali" of deceased had a right to take 'qisas', 'diyat', 'arsh', 'daman' or 'badl-e-sulah' without due process of law as such right would only accrue after the accused/offender was booked for such crimes, investigation was carried out by the investigating agency, inquiry and trial was conducted by the courts and the accused was held guilty for the offence of 'qisas', 'diyat', 'Arsh', 'daman' etc.

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

----S. 299(l)---Ta'zir---Punishment---Scope---Punishment by way of 'ta'zir' exclusively rested with the State because such crimes were considered crimes against the society at large.

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

----Ss. 299(b), (d), (e) & (l)---Qatl-i-amd---Fine---'Diyat', 'Arsh', 'Daman' & Ta'zir---Scope---In case of ta'zir, if fine was imposed then it shall go to the Government Treasury, while in the case of 'diyat', 'arsh' and 'daman', it was payable to the individuals like the victim or the 'wali' (legal heirs of the deceased).

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

----Ss. 302, 306, 307, 308, 309, 310, 311 & 338-E & 338-F---Qatl-i-amd---Waiver or compounding of offence---'Qisas' and 'Ta'zir'---Distinction---Provision of Ss. 338-E & 338-F could not be pressed into service to enlarge the scope of Ss. 306 to 311, P.P.C to include therein ta'zir cases and punishment---Ta'zir cases and punishment could not be read into the said sections by implication when it had been expressly omitted therefrom.

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

----Ss. 302(b), 304, 306, 307, 308, 309, 310, 311 & 314---Qatl-i-amd---Qisas and Ta'zir---Punishment---Scope---Supreme Court observed that it was essential for the Government to make suitable amendments in S.302(b), P.P.C. to the effect that only life imprisonment shall be awardable when for want of standard of proof as required under S.304, P.P.C., the punishment of qisas could not be inflicted; that in such situation awarding death sentence was not desirable or justified because under the provision of S. 314, P.P.C. procedure of execution of "qisas' punishment was almost one and the same and was executed by a functionary of a government by causing death of the convict as the court may direct; that the Government was well advised to bring suitable amendment in S. 302(b) P.P.C. ordinarily providing punishment of life imprisonment unless the commission of the crime was attended by an element of terrorism, sectarian revenge or the murder was committed in a ruthless, cruel and brutal manner, which appeared unconscionable and no mitigating circumstance was there to reduce the gravity of the crime; that once the punishment of qisas could not be enforced or the offender was not liable to punishment under qisas in the cases enumerated in Ss. 306 to 311, P.P.C., then ta'zir punishment shall also not be inflicted or it should be mild in nature [i.e. not death or life imprisonment]; that the proper course was that the courts were vested with a discretion in such regard to award punishment by way of "ta'zir" but not death sentence or life imprisonment barring the above exceptions and also compensation to the "Wali" of deceased or victim of hurt crime.

Per Qazi Faez Isa, J, agreeing with Asif Saeed Khan Khosa, J

"My learned brother Justice Ejaz Afzal Khan, however, was of a different opinion that appears to be premised on an interpretation of qisas, with which with the greatest of respect I cannot bring myself to agree. I must, however, at the outset acknowledge my inadequacy to interpret Almighty Allah's commands with certainty and seek His protection and mercy for any mistake in my understanding. My distinguished colleague states that the word qisas means "return of evil for evil" and also "retaliation" or "retribution". However, Abdullah Yusuf Ali in his commentary on the 178th and 179th verses of surah Al-Baqarah, wherein the word qisas is mentioned writes:--

"Note first that this verse and the next make it clear that Islam has much mitigated the horrors of the pre-Islamic custom of retaliation. In order to meet the strict claims of justice, equality is prescribed, with a strong recommendation for mercy and forgiveness. To translate qisas, therefore, by retaliation, is I think incorrect. The Latin legal term Lex Talionis may come near it, but even that is modified here. In any case it is best to avoid technical terms for things that are very different. "Retaliation" in English has a wider meaning equivalent almost to returning evil for evil, and would more fitly apply to the blood-feuds of the Days of Ignorance."

Moreover, when we examine the said two verses (2:178 and 179) they do not mandate stern and stringent punishments, but seek to inculcate forgiveness and charity in hardened hearts. "This is a concession and Mercy from your Lord" (2:178) and "In the law of qisas there is (saving of) life to you, O ye men of understanding; that ye may restrain yourself (2:179)." In any case there is no need to translate or interpret the word qisas because we are only concerned with how it has been used in the P.P.C., i.e. a defined term (section 299(k) of P.P.C.); similarly, tazir is also required to be considered as used in section 299(l), P.P.C.

My learned colleague also states that, "there are no two opinions on the point that punishment of tazir cannot be as stern and stringent as that of qisas", but the said statement is not referenced and I have also not been able to discover its source. I may however question whether a person who comes forth and makes a voluntary and true confession of murder (qatl-i-amd), thereby coming within the statutory definition of qisas, should be deserving of a greater punishment than the one whose crime is painstakingly established through other forms of evidence?

This Bench was assembled to consider whether sections 306 and 308, P.P.C. are applicable to cases of tazir. Section 306 attends to three different categories of cases. The first category is, "when an offender is a minor or insane" (section 306 (a) P.P.C.), i.e. the offender does not have full mental capacity on account of age or state of mind. Had this exception not been provided, then an offender who is a minor or insane would have to be sentenced to death under section 302(a) which prescribes no other exception. The second category is, "when an offender causes the death of his child or grandchild, how lowsoever" (section 306(b), P.P.C.). And the third category is, "when any wali of the victim is a direct descendant, how lowsoever, of the offender" (section 306(c), P.P.C.). In the second and third categories "qatl-i-amd is not liable to qisas" therefore it has been made liable to tazir. However, if the offender is also not liable to tazir (as held by my learned brother Justice Ejaz Afzal Khan), then the offender would only "be liable to diyat" (in terms of subsection (1) of section 308, P.P.C.), which is monetary compensation (section 323, P.P.C.), subject however to the stated exceptions (the second and third provisos to subsection (1) of section 308 and subsection (2) of section 308). In Muhammad Akram v. The State (2003 SCMR 855) this court had held that such an interpretation, "would amount to grant the licence of killing innocent persons by their Walies." Therefore, this is yet another reason for me to agree with the opinion of my learned brother Justice Asif Saeed Khosa."

Kh. Haris Ahmed, Advocate Supreme Court for Appellant (in Criminal Appeal No. 126 of 2012).

Hafiz Hifz-ur-Rehman, Advocate Supreme Court for Appellant (in Criminal Appeal No. 80 of 2001).

Nemo for Petitioner (in Criminal Petition No.568 of 2011).

Kh. Haris Ahmed, Advocate Supreme Court for Respondent No.1 (in Criminal Petition No.568 of 2011).

Malik Muhammad Kabir, Advocate Supreme Court for Respondent No.1 (in Criminal Appeal No.80 of 2001).

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State (in Criminal Petition No.568 of 2011 and Criminal Appeal No.80 of 2001).

Nemo for the State (in Criminal Appeal No.126 of 2012).

Dates of hearing: 14th and 15th October, 2014.

P L D 2015 Supreme Court 134

Present: Mian Saqib Nisar, Ijaz Ahmed Chaudhry and Umar Ata Bandial, JJ

Ch. ZULFIQAR ALI CHEEMA and 3 others---Appellants

Versus

FARHAN ARSHAD MIR and others---Respondents

Civil Appeals Nos. 426-L to 438-L of 2009, decided on 31st December, 2014.

(On appeal from the judgment dated 23-12-2008 of the Lahore High Court, Lahore passed in C.Rs. Nos. 67 to 79 of 2009)

Defamation Ordinance (LVI of 2002)---

----S. 9---Court Fees Act (VII of 1870), S.7(1)---Defamation proceedings---Special damages, claim for---Payment of court-fee---Scope---Appellants initiated their remedy under S.9 of Defamation Ordinance, 2002, and therein also claimed relief of special damages---Trial Court directed appellants to pay ad valorem court fee for the claim of (special) damages propounded in their petition---Legality---Section 9 of Defamation Ordinance, 2002, which dealt with remedies, could be split and segregated into two parts: the first was relatable to tendering of apology and statutory damages which the court could allow, for which no court fee was payable; second part of the section however starting with the expression "and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the court", was an added right of the party, giving him a choice and option to claim special damages from the special forum or to resort to civil suit---Said remedy (of special damages) available to the person approaching the "Court" was in the nature of a civil suit and the claim shall attract the payment of ad valorem court fee under S.7(1) of the Court Fees Act, 1870---Appeal was dismissed accordingly.

Raees Ghulam Sarwar through Attorney v. Mansoor Sadiq Zaidi and 4 others PLD 2008 Kar. 458 ref.

Muzammal Akhtar Shabbir, Advocate Supreme Court for Appellants (in all cases).

Nemo for Respondents (in all cases).

Date of hearing: 31st December, 2014.

P L D 2015 Supreme Court 137

Present: Anwar Zaheer Jamali, Mian Saqib Nisar and Amir Hani Muslim, JJ

MANDI HASSAN alias MEHDI HUSSAIN and another---Appellants

Versus

MUHAMMAD ARIF---Respondent

Civil Appeal No. 32 of 2013, decided on 17th November, 2014.

(Against the order dated 15-10-2012 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Civil Revision No.578-D/ 2009/BWP)

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

----S. 115---Revision jurisdiction of the court---Scope and nature---Revisional jurisdiction was a supervisory jurisdiction, which was vested in a higher forum (subject to the pecuniary jurisdiction of the case either the District Court or the High Court) and was exercised and/or was invoked for scrutiny if a 'case decided' by the court subordinate to the higher court's jurisdiction, suffered from any defect in terms of exercise of its jurisdiction and/or on the grounds(s) that the court subordinate had acted in exercise of such jurisdiction illegally and/or with material irregularity---Being a supervisory jurisdiction, the higher forum which was approached (i.e. the revisional court) was conferred with the power to ensure that the court subordinate thereto conformed to the parameters of its jurisdiction---Revisional jurisdiction was meant to rectify, to obviate, forefend and stage off the exercise of jurisdictional errors/defects and the illegalities and/or material irregularity committed by the subordinate court in such regard.

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

----S. 115---Invoking of revisional jurisdiction of the higher court---Valuable right of aggrieved party---Approaching a higher court in its revisional jurisdiction for the redressal of one's grievance, if the case was covered by S.115, C.P.C. was not a privilege, but was a valuable right of an aggrieved party---Such exercise of revisional jurisdiction shall obviously be subject to the rules of discretion; but the matter of approaching the revisional court could not be relegated to a mere privilege of the court.

Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 and Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs 1992 SCMR 2334 ref.

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

----S. 115---Limitation Act (IX of 1908), S.5 & First Sched. Art.181---Civil revision petition (not admitted for regular hearing) dismissed for non-prosecution, restoration of---Period prescribed for restoration of such revision petition---Scope---Civil Procedure Code, 1908 did not contain any provisions to cater for a situation, where a revision petitioner failed to appear and to prosecute his case---Where a revision petition had not been admitted for regular hearing it should be dismissed for non-prosecution by the court while exercising its inherent jurisdiction to meet the ends of justice and to prevent the abuse of process of the court, which inherent power of the court had been recognized by S.115, C.P.C.---Likewise the reversal of such dismissal and restoration of the revision could also be made by the court resorting to its inherent jurisdiction so far as the case for restoration had been made out, however this should only be done where such inherent jurisdiction of the court had been invoked by the revision petitioner---Limitation Act, 1908 did not contain any specific period of limitation prescribed for restoration of a revision petition dismissed for non-prosecution, thus residuary provision of Art.181, Limitation Act, 1908, would be attracted which provided period of three years for such purpose---Starting point of time for restoration of such revision petition shall be the date when the revision was dismissed for non-prosecution (subject to certain exceptions available under the Limitation Act, 1908)---Supreme Court directed that copy of present judgment should be sent to the concerned Secretary to take immediate steps for amendment in the provisions of Limitation Act, 1908, keeping in view the corresponding amendment n the Indian Limitation, 1963, to bring harmony and consistency in regulating the period of limitation for the restoration of a civil revision petition, dismissed for non-prosecution---Appeal was allowed accordingly.

Muhammad Sadiq v. Mst. Bashiran PLD 2000 SC 820 ref.

Allah Bachai and others v. Fida Hussain and others 2004 SCMR 615 per incuriam

Muhammad Munir Peracha, Advocate Supreme Court for Appellants.

Nazir Ahmed Bhutta, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent.

Date of hearing: 17th November, 2014.

P L D 2015 Supreme Court 145

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Umar Ata Bandial, JJ

MUHAMMAD RAHEEL alias SHAFIQUE---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 291 of 2007, decided on 6th January, 2015.

(Against the judgment dated 11-5-2006 passed by the Lahore High Court, Lahore in Criminal Appeal No.12-J of 2005 and Murder Reference No.7-T of 2005)

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Sectarian killing---Death sentence, confirmation of---Promptly lodged F.I.R.---Specific allegations---At the spot arrest---Medical account supporting ocular account---Effect---F.I.R. was lodged with great promptitude and in the F.I.R. the accused had been nominated as the sole perpetrator of both the murders---Specific allegations had been levelled against the accused in the F.I.R. vis-a-vis causing specific injuries to both the deceased and such allegations had subsequently been substantiated and established through consistent statements made by as many as three eyewitnesses who resided in the same house wherein the occurrence had taken place and who were nothing but natural witnesses---Motive, in the present case, was sectarian hostility which had not been seriously doubted during the trial---Medical evidence provided sufficient support to the ocular account furnished by the natural and consistent eyewitnesses---Accused was apprehended at the spot and his physical custody as well as the weapons recovered from his custody were handed over by the complainant party to the local police within minutes of taking place of occurrence---Involvement of accused in the murders had been proved by the prosecution beyond reasonable doubt---Appeal was dismissed accordingly and death sentence awarded to accused was upheld.

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

----Ss. 100 & 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 121---Qatl-i-amd---Reappraisal of evidence---Right of private defence, plea of---Proof---No witness produced to establish such plea---Presumption---Plea of right of private defence had been advanced by the accused through his statement recorded under S.342, Cr.P.C. as well as through some suggestions put to the eye-witnesses during their cross-examination but the accused had failed to make a statement on oath under S.340(2), Cr.P.C. and he had also failed to produce any witness in his defence who could enter the witness-box and confirm the plea being advanced by the accused---Provisions of Art. 121 of the Qanun-e-Shahadat Order, 1984 clearly provided that in such a case the court was to presume the absence of circumstances supporting the plea of exercise of right of private defence being advanced by the accused and it was incumbent upon the accused to establish the said circumstances before the Trial Court through positive evidence which he had completely failed to do in the present case---Appeal was dismissed accordingly and plea of right of private defence was rejected.

(c) Criminal trial---

----Acquittal---Scope---'Falsus in uno, falsus in omnibus'---Applicability---Acquittal of co-accused persons may not by itself be sufficient to cast a cloud of doubt upon the veracity of the prosecution's case against a convicted accused who was attributed fatal injuries to the deceased---Principle of "falsus in uno falsus in omnibus" was not applicable in Pakistan.

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

----S. 7---Claim of juvenility---Proof---Onus of proof---Claim of juvenility was based upon an assertion of fact and the onus to prove such fact was upon the accused person and if he failed to establish such fact through positive evidence then no advantage could be taken by him on such score and no benefit of any doubt regarding his age could be extended to him.

Masood Sarwar v. Sadaqat Hussain and others 2007 SCMR 936; Tauqeer Ahmed Khan v. Zaheer Ahmad 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; Tauqeer Ahmed Khan v. Zaheer Ahmed Khan 2009 SCMR 420 and Om Prakash v. State of Rajasthan and another 2012 SCMR 1400 ref.

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

----S. 7---Juvenility---Delayed claim of juvenility---Effect---Delayed claim of juvenility advanced by an accused person was to be visited with an adverse inference against him.

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 and Faisal Aleem v. The State PLD 2010 SC 1080 ref.

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

----S. 302(b)---Juvenile Justice System Ordinance (XXII of 2000), S.7---Qatl-i-amd---Reappraisal of evidence---Delayed claim of juvenility---Effect---Accused had never claimed at any stage of the trial that he was a child, he had never agitated before the High Court that he was a juvenile and he had led no evidence before any court regarding his date of birth---Any belated attempt made by the accused in such regard before the Supreme Court may not be met with approval or acceptance---Mere mentioning of the accused's age in his statement recorded under S.342, Cr.P.C. was not a conclusive determining factor regarding his actual age for the purposes of declaring him a juvenile---Appeal was dismissed accordingly and claim of juvenility was rejected.

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 and Faisal Aleem v. The State PLD 2010 SC 1080 ref.

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

----S. 302(b)---Murder---Convict on death row---Convict spending lengthy period of time on death row during pendency of his appeal before the Supreme Court---Mitigating factor---Scope---Such ground was not sufficient all by itself to convert a sentence of death into that of imprisonment for life but it could only be considered as one of the circumstances which, in a given case, may persuade a court to reduce a convict's sentence from death to imprisonment for life if there were some other mitigating circumstances also available in the case.

Khalid Iqbal v. Mirza Khan and another (Criminal Review Petition No.76 of 2008 decided on 26-11-2014) PLD 2015 SC 50 ref.

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

----S. 302(b)---Cruel and brutal sectarian murder---Re-appraisal of evidence---Convict on death row---Convict spending lengthy period of time on death row during pendency of his appeal before the Supreme Court---Mitigating factor---Scope---Accused had acted cruelly and brutally and what he had done was in furtherance of sectarian hostility---Accused had repeatedly fired at and killed two persons belonging to the opposite religious sect and had demonstrated extreme desperation which factors detracted from any sympathy to be evoked in the matter of his sentence and, thus, his mere spending of a long time awaiting execution of the sentence of death was not a valid basis for reduction of his sentence from death to imprisonment for life---Appeal was dismissed accordingly and death sentence awarded to accused was maintained.

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

----Ss. 6 & 12---Sectarian killing---Anti-Terrorism Court, jurisdiction of---Scope---Sectarian killings were also included in the definition of 'terrorism' contained in S.6 of the Anti-Terrorism Act, 1997 and, thus, an Anti-Terrorism Court was possessed of the requisite jurisdiction to try a case of sectarian killing.

Sheikh Muhammad Suleman, Advocate Supreme Court for Appellant.

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 6th January, 2015.

P L D 2015 Supreme Court 154

Present: Anwar Zaheer Jamali and Sh. Azmat Saeed, JJ

INDUSTRIAL FABRICATION COMPANY through M.D.---Appellant

Versus

MANAGING DIRECTOR, PAK AMERICAN FERTILIZER LIMITED---Respondent

Civil Appeal No.542 of 2008, decided on 11th December, 2014.

(On appeal from the judgment dated 1-4-2008 of the Lahore High Court, Lahore passed in F.A.O. No.364 of 2002)

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

----S. 20---Application to file arbitration agreement in court---Pre-requisite---"Existing dispute"---Existing dispute relating to a matter falling within the ambit of the arbitration agreement was a sine qua non for invoking the jurisdiction of the court under S.20 of the Arbitration Act 1940 and the absence thereof would be a "sufficient cause" in terms of S.20(4) of the said Act for declining to direct filing of arbitration agreement.

Messrs Friends Trading Co. v. Messrs Muhammad Usman-Moula Bux PLD 1954 Sindh 56; Dawood Bhai Abdul Kadir v. Abdul Kadir Ismailji (AIR 1931 Bom 164); Shah Velchand Chhaganlal v. Lieutenant R.C.C. Liston ILR 38 Bombay 638; Uttarn Chand Saligram v. Jewa Mamooji 46 ILR Cal. 534 and Oil and Gas Development Corporation Ltd. Pakistan v. Claugh Engineering Ltd. through Legal Representative Mr. Marin Harris 1999 MLD 254 ref.

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

----S. 20---Application to file arbitration agreement in court---Pre-requisite---"Existing dispute"---Full and final settlement between parties---"Sufficient cause" for declining to direct filing of arbitration agreement--- Where a claim was raised and finally settled through accord and satisfaction by payment or adjustment, there would be no "existing dispute" requiring resolution through arbitration---Where the original contract was substituted through novation, lawful rescission or alteration the arbitration clause therein may also perish thereby precluding a reference to the arbitrators---Factum of such final settlement may be disputed---Settlement being a sub-specie of contract, its validity may be contested on the ground of having been obtained through exercise of undue influence or coercion, or on any other ground available under the law---Acceptance of the settlement may be equivocal or "without prejudice" or substantial questions as to its true import meaning or effect may be raised by the opposite side---In such eventualities, a dispute arising from the contract would exist requiring adjudication by the forum chosen by the parties i.e. arbitrators and appropriate orders in such behalf may be passed under S.20 of the Arbitration Act, 1940, provided such dispute had been raised and was before the court seized of an application under S.20 of the said Act.

Messrs P. K. Ramaiah and Company v. Chairman and Managing Director National Thermal Power Corporation (1994 Supp (3) SCC 126); Nathani Steels Ltd. v. Associated Constructions (1995 Supp (3) SCC 324); Damodar Valley Corporation v. K.K. Kar. AIR 1974 SC 158; Union of India v. B. C. Nawn (Bros.) Ltd. AIR 1961 Ca1. 630; The Karachi Electricity Supply Corpotation Ltd v. Consortium 2000 P.E.C.H. Society, Karachi 1986 CLC 1350; Manzoor Construction Co. Ltd. v. University of Engineering and Technology, Taxila 1984 CLC 3347; Union of India v. D. Bose and others AIR 1981 Cal. 95; Chairman and M.D., N.T.C. Ltd. v. Messrs Reshmi Constructions Builders and Contractors AIR 2004 SC 1330; Messrs Bharat Heavy Electricals Limited Ranipur v. Messrs Amar Nath Bhan Prakash (1982 1 SCC 625 and Union of India and another v. Messrs L.K. Ahuja and Co. AIR 1988 SC 1172 ref.

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

----S. 20---Application to file arbitration agreement in court---Pre-requisite---"Existing dispute"---Full and final settlement between parties---"Sufficient cause" for declining to direct filing of arbitration agreement ---Scope---Agreement between appellant company and respondent-company---Dispute over payment raised by appellant-company---Letter issued by the appellant-company to the respondent-company quantifying the amount due to them as full and final settlement---Payments in terms of the letter received by appellant-company as full and final settlement---Subsequent to receiving such payment appellant-company filed an application in court under S.20 of the Arbitration Act, 1940, alleging therein that the payment due under the contract had not been made by the respondent-company and illegal deductions had been made, and that respondent-company should be directed to file the agreement in the court and an order should be passed, referring the dispute to the arbitrators---Legality---Appellant-company in its letter had quantified the final value of the work under the agreement and a full and final claim including for additional works was made---Settlement offered by the appellant-company was clear and unambiguous, without any reservation and was not "without prejudice"---Authenticity of such settlement offer was acknowledged and admitted---Amount as identified was admittedly paid to and received by the appellant-company, thus, claim raised by the appellant-company was fully and finally settled by the respondent-company leaving no existing dispute---Absence of an "existing dispute" was a "sufficient cause" for the court in terms of S.20(4) of the Arbitration Act, 1940 for declining to direct filing of arbitration agreement---High Court had rightly held that there was no existing dispute between the parties, hence there was sufficient cause for not directing the filing of arbitration agreement---Appeal was dismissed accordingly.

B.A. Khawaja, Advocate Supreme Court for Appellant.

Javed Jalal, Advocate Supreme Court for Respondent.

Date of hearing: 11th December, 2014.

P L D 2015 Supreme Court 166

Present: Jawwad S. Khawaja, Iqbal Hameed-ur-Rehman and Umar Ata Bandial, JJ

CIVIL APPEAL NO.632-L OF 2012

MEMBER BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSIONER, PUNJAB, LAHORE---Appellant

Versus

ABDUL MAJEED and another---Respondents

(On appeal from the judgment/order dated 24-6-2009 passed by Lahore High Court, Lahore in I.-C.A. No.253 of 2008)

CIVIL APPEAL NO.633-L OF 2012

MEMBER BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSIONER, PUNJAB, LAHORE---Appellant

versus

MUHAMMAD TUFAIL and another---Respondents

(On appeal from the judgment/order dated 24-6-2009 passed by Lahore High Court, Lahore in ICA No.254 of 2008).

Civil Appeals Nos. 632-L and 633-L of 2012, decided on 22nd January, 2015.

(a) Auction---

----Auction purchaser, rights of--- Scope--- Rights conferred onto an auction purchaser after the confirmation of the auction sale were of a contractual nature.

Muhammad Attique v. Jami Limited PLD 2010 SC 993 and Government of Puniab v. Abdul Ghafoor 2009 SCMR 1055 ref.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)--

----Ss. 2 & 3---Available Properties Scheme for Management and Disposal of Available Urban Properties, 1977, para. 11---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) [repealed], S.10---Notified Officer---Powers and duties---Evacuee property, auction of---Successful bidder---Defects in auctioned property preventing its transfer to the successful bidder---Allotment of alternate land to successful bidder by notified officer as compensation---Legality---Question as to whether notified officer was under a legal obligation to allot alternate land as compensation to the successful bidder in a confirmed auction sale of available (evacuee) property in a case where defects pertaining to the auctioned property prevented its transfer to the said bidder---Respondents were the successful bidders in an auction held for the evacuee plots in question---Respondents paid all the dues, whereafter they were issued a verification certificate and transfer deed---Respondents did not take immediate possession of the plots nor did they approach the revenue authorities for recording mutation of their transfer deed---Meanwhile plots in question became subject matter of litigation as a result of which they were mutated in favour of a third party---When respondents became aware of such mutations in favour of third party they instead of assailing the same and defending their own title to the plots, applied to the Board of Revenue for grant of alternate evacuee land---Board of Revenue declined respondents' application to allot them alternate evacuee land---Respondents filed a constitutional petition before the High Court which was allowed by holding that revenue authorities were under a duty to properly compensate the respondents by transferring to them alternate available evacuee plots of equal value in lieu of the disputed ones---Validity---Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, did not vest the notified officer with any authority to make a fresh allotment of available (evacuee) land and such restriction included the power to allot alternate land---Neither the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 nor the Available Properties Scheme for Management and Disposal of Available Urban Properties, 1977, applicable to the present case visualized the allotment of alternate land to any party whatsoever---Allotment of alternate land to a verified claimant was a relief that could be granted by settlement authorities in terms of schemes framed under the repealed Displaced Persons (Compensation and Rehabilitation) Act, 1958---For getting benefit of the schemes framed under the said Act, it was necessary that the auction sale in favour of the respondents should qualify as "pending proceedings" within the meaning given to such expression by S.3(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Such classification of "pending proceedings" could not be given to the auction sale in the present case as they were held under the "Available Properties Scheme for Management and Disposal of Available Urban Properties, 1977"---Since the respondents' rights and claims as auction purchasers did not arise from "pending proceedings" and did not qualify to be dealt with under the repealed Displaced Persons (Compensation and Rehabilitation) Act, 1958, therefore, the relief of allotment of alternate land available under schemes made pursuant to the said repealed Act could not be extended to him---Consequently, the direction given by the High Court to the revenue authorities to allot alternate land to the respondents did not enjoy the backing of any law---Rights conferred on respondents (auction purchasers) after the confirmation of the auction sale were of a contractual nature, therefore, their remedy for the breach of obligation of the revenue authorities to transfer title and possession of the auctioned plot were either specific performance of the auction sale "or" award of compensation for the pecuniary loss suffered by them---At all material times after issuance of Transfer Deed until their election for allotment of alternate land, the respondents had a legal right to pursue the completion of the auction sale in their favour; however, they did not do so, nor did they sought the alternate remedy of monetary compensation for loss suffered---Instead the respondents elected to claim compensation from the revenue authorities through allotment of alternate land for being deprived of the auctioned plots; in doing so, the respondents may be said to have surrendered their contract law remedy of specific performance of the auction sale in their favour---Respondents did not possess entitlement for the allotment of available evacuee land and its allocation/allotment to them without cover of law constituted an undue favour amounting to unfairness and discrimination---Direction passed by High Court for allotment of alternate land to respondents was set-aside in circumstances, however Supreme Court observed that in so far as any claim by the respondents for contractual damages or refund for money was concerned, the same may, if the respondents were so inclined, be agitated before a competent court or forum for determination in accordance with law---Appeal was allowed accordingly.

Saifullah v. Board of Revenue 1991 SCMR 1255; Muhammad Ramzan v. Member (Rev.)/CS 1997 SCMR 1635 and Government of Punjab v. Muhammad Yaqoob, PLD 2002 SC 5 ref.

Barkat Ali v. Qaim Din 2006 SCMR 562 distinguished.

(c) Administration of justice---

----Direction given by court---Per incuriam---Scope---Party failing to assist the court on the factual and legal points in the case and also not filing parawise comments---Direction issued by the court in such circumstances would be based on a mistaken view of the law---Such direction was to be treated as given per incurium, and since it lacked legal validity and effect, it did not require compliance---Principles.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 and Re: Pensionary Benefits of the "Judges of Superior Courts PLD 2013 SC 829 ref.

(d) Constitution of Pakistan---

----Arts. 184(3) & 199---Constitutional jurisdiction of High Courts and Supreme Court---Scope---Fostering of justice---Protection and validation of void or defective order---Scope---Constitutional jurisdiction of the courts was exercised to foster justice, which meant that the constitutional courts did not interfere with void orders that achieved a fair and just result substantively---Apart from the legal validity of an action taken by an executive authority, its fairness and substantive propriety, deserved greater attention in the exercise of judicial review by the court---Where an order passed by an (executive) authority was without jurisdiction, but more importantly, it achieved a just and fair result in relation to the disposal of a public asset, notwithstanding its legal defect, the said order merited protection and validation---Principles.

Rounaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Khiali Khan v. Nazir PLD 1997 SC 304; Province of the Punjab v. S.Muhammad Zafar Bukhari PLD 1997 SC 351 and Secretary to the Government of the Punjab v. Ghulam Nabi PLD 2001 SC 415 ref.

Mehmood A. Sheikh, Advocate Supreme Court for Appellants.

A.G. Tariq Chaudhry, Advocate Supreme Court for Respondents.

Date of hearing:9th October, 2014.

P L D 2015 Supreme Court 187

Present; Mian Saqib Nisar and Ijaz Ahmed Chaudhry, JJ

FARZAND ALI and another---Appellants

Versus

KHUDA BAKHSH and others---Respondents

Civil Appeal No.261-L of 2014, decided on 1st January, 2015.

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

----Ss. 12 & 22---Specific performance of an agreement to sell---Decree---Discretion of court---Scope---Grant of specific enforcement of an agreement to sell pertaining to an immovable property was a discretionary relief---Even in cases where the agreement to sell was validly proved by the plaintiff, the courts may refuse to allow the relief of specific enforcement---Court was neither obliged to grant the relief of specific performance nor could the plaintiff claim it as a matter of right.

Liaqat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506; Mst. Mehmooda Begum v. Syed Hassan Saijad and 2 others PLD 2010 SC 952; Shakeel Ahmed v. Mst. Shaheen Kousar 2010 SCMR 1507 and Muhammad Sharif and others v. Nabi Bakhsh and others 2012 SCMR 900 ref.

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

----Ss. 12 & 22---Transfer of Property Act (IV of 1882), S. 52---Suit for specific performance---Principle of lis pendens---Scope---Consent decree, authenticity of---Scope---Agreements to sell---Dispute between two rival vendees (appellant and respondent) inter se against a common vendor---Both vendees filing suits for specific performance of their respective agreements against common vendor in respect of the same property---During pendency of appellant's suit for specific performance, vendor entered into a compromise with the respondent, whereafter a consent decree was passed in the respondent's suit---Sale deed was executed and registered by the vendor in favour of the respondent despite pendency of appellant's suit---Legality---Although appellant was not a party to the suit filed by the respondent, but it was not established that the respondent was aware of the agreement to sell between appellant and vendor or that appellant was deliberately not arrayed as a party---Suit filed by respondent was decreed through a compromise between the respondent and vendor, wherein the vendor expressly and unambiguously acknowledged, accepted and admitted the agreement to sell between him and the respondent---Subsequent to such consent decree sale deed was executed and registered by the vendor in favour of the respondent---Even if it was assumed that the respondent was aware of the suit filed by the appellant for specific performance, no cross-examination was conducted on the respondent's assertion that he did not file any written statement therein or that he was not served in the case---Nothing was available on record to suggest that the respondent acted fraudulently and misrepresented the actual owner, the vendor of the property, in entering into the compromise or procuring the consent decree and/or ultimately securing the sale deed in his favour---Compromise between respondent and vendor was a lawful compromise by all means and the sale deed in favour of the respondent was duly executed by the vendor for lawful consideration---Appellant had not signed his agreement to sell, therefore in law there was no contract---Besides appellant failed to furnish two attesting witnesses to prove his agreement to sell---Even otherwise no steps were shown to have been taken by the appellant for the performance of his obligations under the agreement---Appellant in his plaint never averred that he was ready and willing to pay the balance consideration to the vendor and have the deal accomplished---Appellant neither made any attempt to pay the balance amount nor proved that he had the requisite money at the relevant point in time and was in a position to pay the same---Moreover, appellant's agreement to sell was subsequent in time to the agreement of the respondent---Appellant did file an application for his impleadment in the suit of the respondent, however such application was subsequently withdrawn with the plea that it was done for the purpose of filing a suit for specific performance---Such plea of appellant was not only illogical, but also ludicrous, because the filing of such application for impleadment and pursuing the same would never in any manner had prejudiced his right to file an independent suit for specific performance; rather had the appellant pursued such application for impleadment, he would have effectively safeguarded his interest in that litigation and resisted the passing of the compromise decree and the respondent's sale deed based thereupon---Even in the suit for specific performance filed by the appellant, it was not his case that he moved an application for procuring an injunctive order to restrain the vendor from transferring the suit property---Appellant also never attempted to seek transfer of either of the two suits to one court and for the consolidation of the matters---Admittedly there was enmity between the appellant and the respondent and possession of disputed property was with the respondent---Probability could not be ruled out that in order to dislodge the respondent from purchasing the property the appellant filed the suit for specific performance---Principle of lis pendens would have become applicable had the appellant succeeded in his suit at the strength of his own case and the relief of specific performance was allowed to him---Appellant could not rely on the rule of lis pendens because of the invalidity of his own agreement to sell---High Court had rightly dismissed the suit for specific performance filed by the appellant--- Appeal was dismissed accordingly.

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

----S. 12---Civil Procedure Code (V of 1908), O. VIII, R. 1---Suit for specific performance---Agreement to sell, existence of---Proof---Vendor denying existence of agreement to sell in his written statement but subsequently admitting its existence---No bar was placed on the vendor, that, once having denied the agreement (to sell) in the written statement, he could not admit the same afterwards and that too in writing and act upon it.

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

----S. 10---Agreement to sell immovable property---Nature and scope---Non-signing of agreement to sell immoveable property---Effect---Agreement to sell immovable property was a contract and the first, and the foremost requisite of a contract (agreement) was that the parties should have reached agreement---Where a contract was reduced into writing, not only should it be founded upon the imperative elements of offer and acceptance, but its proof was also dependent upon the execution of the contract by both the contracting parties i.e. by signing or affixing their thumb impression, so that it should reflect and establish their "consensus ad idem", which obviously was the inherent and basic element of the meeting of the minds, which connoted the mutuality of assent, and reflected and proved the intention of the parties thereto---Non-execution (non-signing) of the agreement to sell by the vendee meant that in law and fact there was no contract (agreement).

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

----Art. 30---Admission---Admission of a co-plaintiff or a co-defendant---Scope---Agreement to sell immovable property---Non-signing of such agreement---Plea of plaintiff that agreement to sell had been admitted by the vendor and, therefore, was valid and the non-signing of the same had lost its efficacy---Validity---Validity and valid execution of the agreement to sell had been challenged by the defendant in a separate suit, for which a separate issue was framed by Trial Court, therefore, the plaintiff could not rely upon and take advantage of any admission made by the vendor, because an admission made by a co-defendant was not binding on the other even if made in the written statement---Appeal was dismissed accordingly

Shah Muhammad and 2 others v. Dulla and 2 others 2000 SCMR 1588; Allah Rakha through L.Rs. v. Nasir Khan and 4 others 2007 CLC 154; Zeeshan Bhatti v. Maqbool Bhatti and another PLD 2001 SC 79 and Mst. Gulshan Hamid v. Kh. Abdul Rehman and others 2010 SCMR 334 ref.

Messrs Jamal Jute Baling & Co., Dacca v. Messrs M. Sarkies & Sorts, Dacca PLD 1971 SC 784 distinguished.

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

---Arts. 17(2) & 79---Agreement to sell immoveable property---Proof---Attestation by two witnesses---Agreement to sell an immovable property squarely fell within the purview of the provisions of Art. 17(2) of the Qanun-e-Shahadat, 1984 and had to be compulsorily attested by the two witnesses and this was sine qua non for the validity of the agreement---For the purposes of proof of such agreement it was mandatory that two attesting witnesses must be examined by the party as per Art. 79 of the Qanun-e-Shahadat, 1984.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241 ref.

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

----Art. 79---Agreement to sell immoveable property---Proof---Scribe of such agreement, evidence of---Relevance---Scribe of an agreement to sell immoveable property was not a substitute for an attesting witness, and did not legally qualify to be so, therefore, his evidence may have a supportive value, but was neither in line with the mandate of law nor did it meet the test of Art.79 of the Qanun-e-Shahadat, 1984.

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

----Arts.132 & 133---Cross-examination---Crucial and vital fact deposed in examination-in-chief was not subjected to cross-examination---Such deposition be deemed to have been admitted.

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

----S. 52---Lis pendens, principle of---Applicability---Subsequent transferee could not sustain his transfer (e.g. the sale) if he had purchased the property during the pendency of the suit---Subsequent transferee was bound by the outcome of the suit, obviously that shall be so if the case was decided against the transferor from whom he was purchasing the property or against the transferee if he was a party to the case, but if the case was decided in his favour, there shall be no question about the application of the rule of lis pendens.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 ref.

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

----O. I, Rr. 3 & 10---Suit against dead defendant---Scope---Where a lis was initiated against more than one person out of whom one was dead, the lis as a whole was not a nullity, but it was a defect which was curable.

Malik Bashir Ahmed Khan and another v. Qasim Ali and 12 others PLD 2003 Lah. 615 and Muhammad Yar (deceased) through L.Rs. and others v. Muhammad Amin (deceased) through L.Rs. and others 2013 SCMR 464 ref.

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

----S. 12---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance---Maintainability---Suit was maintainable even if plaintiff failed to sue for cancellation of registered sale deed executed in favour of some other party while asking for specific performance of earlier sale agreement.

Muhammad Sharif v. Mst. Sughra Bano and others 1984 SCMR 1139 ref.

Muhammad Shahzad Shoukat, Advocate Supreme Court for Appellants.

Ch. Anwar ul Haq Pannun, Advocate Supreme Court and Ms.Tasneem Amin, Advocate-on-Record for Respondent No.1.

M. Arif Awan, Advocate Supreme Court for Respondents Nos.3 to 5.

Date of hearing: 1st January, 2015.

P L D 2015 Supreme Court 212

Present: Mian Saqib Nisar, Amir Hani Muslim and Ejaz Afzal Khan, JJ

Dr. MUHAMMAD JAVAID SHAFI---Appellant

Versus

Syed RASHID ARSHAD and others---Respondents

Civil Appeal No.413 of 2012, decided on 24th November, 2014.

(Against the judgment dated 25-1-2012 of the Lahore High Court, Lahore passed in Civil Revision No.1639-D of 1992)

Per Mian Saqib Nisar, J; Amir Hani Muslim, J, agreeing; Ejaz Afzal Khan, J, dissenting. [Majority view]

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

----First Sched. Arts. 91 & 142---Specific Relief Act (I of 1877), Ss.8 & 39---Suit for cancellation of general power of attorney, sale agreement and sale deed and recovery of possession of immoveable property---Plaintiff joining several causes of action and seeking multiple remedies/relief in the suit---Primary remedy/relief---Ancillary, incidental and consequential remedies/relief---Question as to which remedy was to be considered for the purposes of ascertaining the limitation period for filing suit---Plaintiff allegedly executed and got registered an irrevocable general power of attorney in favour of the defendant/attorney---Defendant on basis of such power of attorney sold out the suit plot to a third person, who in turn sold it to the appellant---About 16 years after the date of execution/registration of the general power of attorney in favour of defendant, plaintiff filed a suit for cancellation of documents and possession of the suit land alleging that the power of attorney, sale agreements and sale deeds were obtained by fraud, forgery, misrepresentation and manipulation---Trial Court dismissed the suit on the basis that it was barred by limitation---High Court, however, decreed the suit on the grounds that suit being for possession of immovable property was filed within twelve years and was thus within the time limit---Legality---Suit filed by plaintiff had been treated by the High Court to be one for possession and Art.142 of First Schedule of the Limitation Act, 1908 had been resorted to---Where an instrument, was alleged to have been obtained by fraud, undue influence, coercion or misrepresentation, it was not a document which could be held to be void ab initio or on the face of it void, but it was required to be determined and adjudged by the court of law as voidable or void as the case may be and in such an eventuality, the matter shall squarely be covered by S.39 of the Specific Relief Act, 1877---Suit filed by the plaintiff in the present case was in fact for cancellation of the documents on the allegations of fraud, forgery and misrepresentation, which (suit) squarely fell within the purview of S.39 of the Specific Relief Act, 1877 and per Art.91 of the First Schedule of the Limitation Act, 1908, the prescribed period of limitation for such suit was three years---Plaintiff was primarily challenging the documents as being invalid against him on the ground of fraud, forgery, misrepresentation etc., and as a consequential relief he unambiguously was seeking a decree for possession of suit land by further asking for the demolition of the superstructure existing thereupon---Relief for possession claimed by plaintiff upon proper construction of the plaint and the frame of the suit was merely ancillary, incidental, consequential and dependent upon the primary relief of cancellation of the documents which was the basic and the foundational relief being sought---Where the main relief was time barred and the bar was not surmounted by the plaintiff, the incidental and consequential relief had to go away along with it and the suit was liable to be dismissed on account of being time barred---Plaintiff had knowledge of the general power of attorney and all the transaction(s) of sale in favour of third party and the appellant made through the defendant/attorney, but did not bring any legal action under S.39 of the Specific Relief Act, 1877, within the prescribed period of (3 years) limitation per Art.91 of First Schedule of the Limitation Act, 1908---Suit filed by the plaintiff was, thus, barred by time and was accordingly dismissed---Appeal was dismissed accordingly.

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

----S. 3 & Preamble---Law of limitation---Object, scope and significance.

Law of limitation was founded upon public policy and State interest, and it was vital for an orderly and organized society and the people at large, who believed in being governed by systemized law. The obvious object of law of limitation was that if no time constraints and limits were prescribed for pursuing a cause of action and for seeking reliefs/remedies relating to such cause of action, and a person was allowed to sue for the redressal of his grievance within an infinite and unlimited time period, it shall adversely affect the disciplined and structured judicial process and mechanism of the State, which was sine qua non for any State to perform its functions within the parameters of the Constitution and the rule of law.

Law of limitation was considered prescriptive and preventive in nature and served as a major deterrent against the factors and the elements which could affect peace, tranquility and due order of the State and society. The law of limitation required that a person must approach the Court and take recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by the law; as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire. Because if that was so permitted to happen, it shall not only result in the misuse of the judicial process of the State, but shall also cause exploitation of the legal system and the society as a whole. This was not permissible in a State which was governed by law and Constitution.

The object of the law of limitation and the law itself, prescribing time constraints for each cause or case or for seeking any relief or remedy had been examined by the courts in many a cases, and it had been held to be a valid piece of legislation, and law of the land. Law of limitation should be strictly construed and applied in its letter and spirit, and by no stretch of legal interpretation it could be held that such law was merely a technicality and that too of procedural nature. Rather from the mandate of S.3 of the Limitation Act, 1908 it was obligatory upon the court to dismiss a cause/lis which was barred by time even though limitation had not been set out as a defence. This showed the imperative adherence to and the mandatory application of such law by the courts. Law providing for limitation for various causes/reliefs was not a matter of mere technicality but foundationally of the "LAW" itself.

Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446 ref.

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

----S. 3 & First Sched.---Suit---Several causes of action---Multiple remedies/relief sought---Limitation---Scope---Plaintiff joining several causes of action and seeking multiple remedies/relief in the suit---Primary remedy/relief---Ancillary, incidental and consequential remedies/relief---Question as to whether the cause of action/remedy entailing the maximum period of limitation should necessarily and mandatorily be resorted to and should cover the question of limitation for the purposes of the whole suit, regardless of whether the suit was barred by time for other cause(s) of action or relief---To ascertain the application of the correct Article from the First Schedule to the Limitation Act, 1908, the frame of the suit should be considered, adverted and adhered to---Test for determining the period of limitation was to see the true effect of the suit and not its formal or verbal description---Legal aspect (of the suit) should be examined by taking into consideration the facts of each case and particularly the frame and object of the suit, taking inter alia further into account the contents of the plaint itself---Point to be determined was what main relief was being sought by the plaintiff and whether the other remedies asked for (which may be carrying longer period of limitation) were ancillary, dependent and consequential to the main relief---Where the main/basic/foundational relief being sought was time barred and the bar was not surmounted by the plaintiff, the incidental and consequential relief had to go away along with it and the suit was liable to be dismissed on account of being time barred.

Mst.Fattan Bi and 2 others v. Fateh Muhammad and 6 others PLD 1974 Lah. 458; Janki Kunwar v. Ajit Singh 15 Cal. 58 [Privy Council] and Bashir Ahmad v. Partab 1989 MLD 4314 ref.

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

----Art. 114---Estoppel---Scope---Where a person was aggrieved of a fact, he had a right, rather a duty to object thereto to safeguard his right, and if such a person did not object, he shall be held to have waived his right to object and subsequently shall be estopped from raising such objection at a later stage---Person was estopped by his own conduct, if he though was aware of certain fact(s), which was likely to cause harm to his rights and adversely affect him and was prejudicial against him, avowedly or through some conspicuous act or by omission, intentionally permitted and allowed another person to believe a thing to be true and act on such belief without taking any steps to controvert or nullify such adverse fact and instead he slept over the matter--- Such waiver or estoppel may arise from mere silence or inaction or even inconsistent conduct of a person.

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

----Art. 114---Contract Act (IX of 1872), Ss. 203, 206 & 207---Specific Relief Act (I of 1877), S. 39 --- Suit for cancellation of general power of attorney, and consequential sale agreement and sale deed---Estoppel---Scope---Silence and inaction on part of plaintiff in safeguarding his right---Effect---Waiver of right to object---Suit plot was exempted in favour of plaintiff/respondent by the Development Authority as compensation for acquired land---Plaintiff purportedly executed and got registered an irrevocable general power of attorney in favour of the defendant/attorney---Defendant pursued the exemption of the suit plot with the Development Authority on behalf of the plaintiff---Subsequently defendant on basis of the power of attorney sold out the suit plot to a third person, who in turn sold it to the appellant---About 16 years after the date of execution/registration of the general power of attorney in favour of defendant, plaintiff filed a suit for cancellation of documents and possession of suit land alleging that the power of attorney, sale agreements and sale deeds were the result of fraud, forgery, misrepresentation and manipulation---Validity---Plaintiff admittedly came to know about the general power of attorney in favour of defendant in the year 1971, but did not take recourse to the proper legal action---Plaintiff according to his own statement was aware of the sale having been made in favour of third party in 1974, but no action was taken for assailing the same in time and he remained silent---General power of attorney which was the basis of alleged fraud was undisputedly in the knowledge of the plaintiff since 1971, but he slept over the matter, and allowed the said power of attorney to be utilized against his interest, which culminated into the sale firstly in favour of third party and thereafter in favour of the appellant---Defendant in fact virtually procured the exemption of the suit plot on the basis of the said power of attorney, and thereafter entered into an agreement with the Development Authority---Plaintiff having come to know of the power of attorney neither sought revocation of the same as per S.203 of the Contract Act, 1872, nor issued a notice for its revocation or renunciation according to Ss.206 & 207 of the Contract Act, 1872 or a public notice to renounce the same---Plaintiff since the year 1971 never even bothered to visit the suit land to see its physical condition, whether it was vacant or had been constructed upon---All such facts put together led to the conclusion that the rule of estoppel squarely operated against the plaintiff, within the purview of Art.114 of Qanun-e-Shahadat, 1984---Plaintiff in the facts and circumstances of the case was estopped by his own conduct from filing the suit--- Appeal was dismissed accordingly.

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

----S. 39---Transfer of Property Act (IV of 1882), S. 54---Contract Act (IX of 1872), S. 182---Suit for cancellation of registered power of attorney and sale deed---Plea of fraud and fabrication---Burden of proof---Scope---Where plaintiff (alleged executant) himself was challenging the power of attorney and consequential sale deed, and all such documents were registered with the sub-Registrar, it was the plaintiff's duty to bring on record the said documents and discharge the initial burden by establishing that they were invalid.

Per Ejaz Afzal Khan, J; disagreeing with Mian Saqib Nisar, J. [Minority view]

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

----Ss. 8 & 39 ---Transfer of Property Act (IV of 1882), S. 41---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Suit for cancellation of general power of attorney, sale agreement and sale deed and recovery of possession of immoveable property---Claim based on documentary evidence---Documents not proved---Effect---Plaintiff, who was owner of suit plot, allegedly executed and got registered an irrevocable general power of attorney in favour of the defendant/attorney---Defendant on basis of such power of attorney sold out the suit plot to a third person, who in turn sold it to the appellant---Plaintiff filed a suit for cancellation of documents and possession of the suit land alleging that the power of attorney, sale agreements and sale deeds were obtained by fraud, forgery, misrepresentation and manipulation---Trial Court dismissed the suit, however, High Court, reversed findings of Trial Court and decreed the suit---Validity---Only question requiring consideration, in the present case was whether the appellant proved the documents which were sheet anchor of his claim---Case of the appellant was that he purchased the property in dispute from a third party, who purchased it from the defendant, who allegedly held a general power of Attorney on behalf of the plaintiff---Appellant did not prove any of the documents; he did not even examine the person who was holding general power of attorney on behalf of plaintiff to prove that in fact he was holding such power of attorney---Question as to who executed the power of attorney, who scribed it, who witnessed it, what was the consideration, if any, where and in whose presence was it paid, were the (sort of) queries to be addressed before examining the sustainability of the superstructure raised thereon---Appellant could not assert his title to the suit property when he neither proved the general power of attorney nor the deeds witnessing the alleged sale transactions nor confronted the plaintiff therewith---Failure of appellant to examine the attorney, the attesting witnesses of the power of attorney, the executant of the sale deeds and their attesting witnesses would give rise to a presumption under Art. 129(g) of Qanun-e-Shahadal, 1984, that the evidence which could be but was not produced, would, if produced, be unfavourable to the person withholding it---Appellant in such circumstances could not be termed a bona fide purchaser either so as to entitle him to protection under S.41 of the Transfer of Property Act, 1882---High Court had rightly decreed the plaintiff's suit---Appeal was dismissed accordingly. [Minority view]

Zar Wali Shah v. Yousaf Ali Shah and others 1992 SCMR 1778 and Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051 distinguished.

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

----First Sched. Arts. 91 & 142---Specific Relief Act (I of 1877), Ss.8 & 39---Contract Act (IX of 1872), Ss. 2(g) & 17---Suit for cancellation of general power of attorney, sale agreement and sale deed and recovery of possession of immoveable property---Property transferred under a void and fraudulent agreement---Suit filed by owner of such property for its possession---Limitation period---Scope---Plaintiff, who was owner of suit property, allegedly executed and got registered an irrevocable general power of attorney in favour of the defendant/attorney---Defendant on basis of such power of attorney sold out the suit plot to a third person, who in turn sold it to the appellant---About 16 years after the date of execution/registration of the general power of attorney in favour of defendant, plaintiff filed a suit for cancellation of documents and possession of the suit land alleging that the power of attorney, sale agreements and sale deeds were obtained by fraud, forgery, misrepresentation and manipulation---Trial Court dismissed the suit on the basis that it was barred by limitation, as limitation period for filing a suit for cancellation of documents was three years---High Court, however, decreed the suit on the grounds that suit being for possession of immovable property was filed within twelve years and was thus within the time limit---Legality---Appellant did not prove any of the documents on which he based his claim---Appellant neither proved the general power of attorney nor the deeds witnessing the alleged sale transactions nor confronted the respondent therewith---Plaintiff, in such circumstances, did not need to institute a suit for declaration or cancellation of documents, which had no existence---Plaintiff needed to institute a suit for possession on the basis of title within a period of 12 years, and that was what he did---Appellant who was left with sheer possession could not defend it in a possessory suit instituted by the plaintiff on the basis of title---Failure to question a transaction within the period of limitation would certainly matter, if it had any existence and effect, but where it had no existence and effect, it could not in any manner have life breathed into it, and passage of time or length of years could not give it any existence and effect---Building a castle of limitation in defence of such a transaction or its beneficiary on the basis of documents which were neither produced nor proved, would amount to building a castle in the air---Such exercise would be all the more unwarranted when the beneficiary (i.e. appellant) himself did not stir even a straw to prove his claim---Although the law of limitation ensured order in the society but it could not be used as a bulwark to perpetuate a gain having its origin in fraud which not only vitiated the most solemn transaction but the very fabric of the society---Shielding a transaction based on fraud and forgery would be more chaotic and disorderly than undoing it---Limitation could not shield a transaction having no effect and existence on account of fraud and forgery---Plaintiff, in the present case thus could not be non-suited on account of his failure to institute a suit for declaration or for cancellation of documents within the time provided by the statute---High Court had rightly held that plaintiff's suit was for possession of suit property, which was filed within the limitation period of twelve years---Appeal was dismissed accordingly.[Minority view].

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Mst. Hameeda Begum v. Mst. Murad Begum PLD 1975 SC 624 and Abdul Rehman and others v. Ghulam Muhammad through L.Rs and others 2010 SCMR 978 ref.

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

----Ss. 2(g) & (i)---Void and voidable transaction, setting aside of---Scope---When a transaction was voidable it was essential that it was set aside but if it was void the question of setting it aside would not arise.

Muhammad Akbar Shah v. Muhammad Yusuf Shah and others PLD 1964 SC 329 ref.

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

----Preamble---Contract Act (IX of 1872), S. 17---Limitation could not shield a transaction having no effect and existence on account of fraud and forgery.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245; Muhammad Akbar Shah v. Muhammad Yusuf Shah and others PLD 1964 SC 329; Mst. Hameeda Begum v. Mst. Murad Begum PLD 1975 SC 624 and Abdul Rehman and others v. Ghulam Muhammad through L.Rs and others 2010 SCMR 978 ref.

Gulzarin Kyanai, Senior Advocate Supreme Court, Atiq-ur-Rehman Kiyani, Advocate Supreme Court and Ch. Akthar Ali, Advocate-on-Record for Appellant.

Ahmed Awais, Advocate Supreme Court and Muhammad Akram Javed, Advocate Supreme Court for Respondent No.1.

Ex parte for Respondents Nos.2 to 4.

Date of hearing: 24th November, 2014.

P L D 2015 Supreme Court 242

Present: Asif Saeed Khan Khosa and Qazi Faez Isa, JJ

Mst. JEWAN MAI---Petitioner

versus

The STATE and others---Respondents

Criminal Petition No. 811-L of 2014, decided on 17th February, 2015.

(Against the order dated 26-6-2014 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.8120-B of 2014)

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302 & 34---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, common intention---Bail, cancellation of---Identical allegations against accused and co-accused--Accused admitted to bail while co-accused denied bail on identical allegations---Discrepancy---High Court admitted accused to post-arrest bail on the grounds that he had not been nominated in the FIR for the alleged murders; and that the name of accused had been introduced in the present case as a culprit through a statement made by complainant, under S.161, Cr.P.C. after six days of the alleged occurrence---Validity---Said grounds relied upon by the High Court for admitting accused to bail equally applied to the case of co-accused whose petition for post-arrest bail had earlier been dismissed by the same Judge of the High Court by observing that complainant and the other eye-witnesses mentioned by her in her statement recorded under S.161, Cr.P.C. were consistent regarding participation of co-accused in the murder and that the said co-accused was attributed an effective role of causing injuries to the deceased which allegation found support from the medical evidence---Allegations levelled by complainant and the other eye-witnesses against co-accused as well as accused were almost identical and the circumstances in which both of them had been implicated in the present case were also not dissimilar, thus, it was surprising that co-accused had been denied post-arrest bail by the same Judge who had admitted accused to post-arrest bail--- Judge-in-Chamber of the High Court had adopted discrepant approaches vis-a-vis different accused persons attributed almost identical roles which approach could not be approved---Regarding the merits of the case accused stood duly implicated by complainant as well as the other eye-witnesses in their statements recorded under S.161, Cr.P.C. as the person who had given toka(knife) blows to deceased on his head causing his death besides causing injuries to the other deceased collectively with the co-accused---Medical evidence prima facie lent support to the allegations levelled against accused---During the investigation accused had been opined to be fully involved in the alleged occurrence and consequently a challan had already been submitted against him before the Trial Court---Offence under S.302, P.P.C. attracted the prohibitory clause contained in S.497(1), Cr.P.C. and the present case was a case of double murder---Reasonable ground did exist regarding involvement of accused in the murders in issue---Petition for leave to appeal was converted into an appeal and allowed, and bail granted to accused by the High Court was cancelled.

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

----S. 497(5)---Bail application, filing of---Counsel, conduct of---Same counsel for accused and co-accused---Identical allegations against accused and co-accused---Co-accused denied bail by High Court---Counsel filing bail application for accused before the same Judge of High Court but failing to mention at the bottom of the bail application the fact regarding refusal of the same relief to co-accused by the same court only a few days ago---Effect---Such suppression of a material fact reflected adversely upon bona fide of accused in approaching the High Court, particularly when accused was represented before the High Court by the same counsel who had appeared before the said court in support of the petition for post-arrest bail filed by co-accused---Such conduct of counsel for accused could not be approved---Bail allowed to accused by High Court was cancelled accordingly.

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

----Ss. 173, 200 & 497(5)--- Penal Code (XLV of 1860), Ss. 302 & 34---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, common intention---Bail, cancellation of---Challan case and complaint case for the same offence---Accused summoned to face trial in complaint case---Custody of accused in challan case---Scope---High Court admitted accused to post-arrest bail on the ground that a private complaint had also been instituted by the complainant for the offence, wherein the accused had already been summoned to face trial, and in view of the trial being conducted in the complaint case the custody of accused in connection with the challan case amounted to custody without a trial and such custody, according to the spirit of the law, was unconscionable---Legality---Striking feature of the impugned bail granting order, passed by the Judge of High Court, was that he considered that the accused had been arrested in connection with the challan case and proceedings before the learned trial court were presently being conducted in the connected complaint case and, therefore, the challan case had become dormant and continued custody of accused in connection with the dormant criminal case was not justified---Such approach adopted by the Judge of the High Court, had categorically been held to be incorrect by the Supreme Court in the case of Ghulam Qammber Shah v. Mukhtiar Hussain and others (PLD 2015 SC 66)---Petition for leave to appeal was converted into an appeal and allowed, and bail granted to accused was cancelled accordingly, and Judge of High Court was cautioned to be careful in such regard in the future.

Ghulam Qammber Shah v. Mukhtiar Hussain and others PLD 2015 SC 66 ref.

Muhammad Arshad Bhatti, Advocate Supreme Court and Sardar Abdul Majeed Dogar, Advocate Supreme Court for Petitioner.

Mian Shah Abbas, Advocate Supreme Court for Respondent No.2 with in person.

Mazhar Sher Awan, Additional Prosecutor-General, Punjab and Nazar Abbas, I.O. for the State.

Date of hearing: 17th February, 2015.

P L D 2015 Supreme Court 247

Present Jawwad S. Khawaja, Ejaz Afzal Khan and Qazi Faez Isan, JJ

MUHAMMAD KHALIQ (decd.) through Legal Heirs---Petitioners

versus

GUL AFZAL KHAN and others---Respondents

Civil Review Petition No.281 of 2014 in Civil Appeal No.140 of 2005, decided on 21st January, 2015..

(Against judgment of this Court dated 2-6-2014 passed in C.A.No.140 of 2005).

(a) Constitution of Pakistan---

----Art. 188---West Pakistan Land Revenue Act (XVII of 1967), S. 52---Review of Supreme Court judgment---Scope---Longstanding entries of the revenue record---Presumption of correctness---Plea of petitioner that fresh documentary evidence from the revenue record had been dug up by the petitioner and needed to be placed on record---Validity---No such documentary evidence had been placed on file by the petitioner---Such course and conduct could not be allowed because there were other stringent conditions which applied in cases of review---In the absence of documentary evidence sought to be placed on file, court was not at all convinced as to the relevance of such missing documents or that the same were unavailable at the trial stage or at any subsequent stage before the hearing of present review petition---Attempt was made by the petitioner to reargue the entire case, even in respect of questions which had adequately been discussed and decided in the judgment under review---Review petition was dismissed accordingly.

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

----S. 114 & O. XLVII---Constitution of Pakistan, Art. 188---Supreme Court Rules, 1980, O. XXVI---Limitation Act (IX of 1908), Preamble---Laws such as the law relating to review or other laws such as the Civil Procedure Code, 1908, or the Limitation Act, 1908 etc. had a rationale---Such laws were always made for the furtherance of the collective public good and if individuals suffered because of such laws, it was but a natural and logical consequence of protecting the larger public good for the purpose of bringing an end to litigation particularly through review petitions, which were frivolous.

(c) Supreme Court Rules, 1980---

----O. XXVI, R. 4---Constitution of Pakistan, Art. 188--- Frivolous review petition---Scope---Certificate in terms of O. XXVI, R. 4 of the Supreme Court Rules, 1980 filed by counsel for petitioner in a mechanical and unthinking manner---Supreme Court observed that such practice was to be deprecated in the interest both of the litigant and the legal system and also to further the constitutional imperative of ensuring expeditious and inexpensive justice---Review petition was dismissed accordingly.

Raja Muhammad Irshad, Senior Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 21st January, 2015.

P L D 2015 Supreme Court 250

Before Asif Saeed Khan Khosa and Qazi Faez Isa, JJ

Malik JAVAID IQBAL---Petitioner

versus

THE STATE and others---Respondents

Criminal Petition No.849-L of 2014, decided on 18th February, 2015.

(Against the order dated 24-7-2014 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.7585-B of 2014).

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

----Ss. 173, 200 & 497(5)---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Bail, cancellation of---Remand of bail petition to High Court for decision afresh on merits---Challan case and complaint case for the same offence---Accused summoned to face trial in complaint case---Proceedings of challan case were kept pending---Custody of accused in challan case---Scope---Judge-in-Chamber of High Court admitted accused to post-arrest bail only on the ground that accused had been arrested in connection with a challan case but present proceedings were underway before the Trial Court in connection with a private complaint instituted in respect of the same incident and, thus, continued custody of accused in connection with the challan case was "against the principles of safe administration of justice"---Legality---Such ground weighing with the Judge-in-Chamber of High Court for admitting accused to post-arrest bail did not find support from any provision of S.497, Cr.P.C---Post-arrest bail in cases attracting the prohibitory clause contained in S.497(1), Cr.P.C. could be granted to an accused person in a challan case only within the parameters of the provisions of S.497, Cr.P.C---No provision in S.497, Cr.P.C. authorized a court to admit an accused person to bail if such accused person had been arrested in connection with a challan case and the proceedings of the challan case were kept pending while the trial was being conducted in a connected case arising out of a private complaint---Solitary ground weighing with the Judge-in-Chamber of the High Court, in the present case for admitting accused to post-arrest bail in the challan case did not have the requisite statutory sanction---Petition for leave to appeal was converted into an appeal and allowed and consequently the impugned bail granting order passed by the Judge-in-Chamber of the High Court was set aside---Judge-in-Chamber of High Court having not adverted to any grounds in the bail petition vis-à-vis merits of the accused's case and granted him bail only on the solitary ground of proceedings in the complaint case, Supreme Court directed that bail petition filed by accused before the High Court shall be treated by the same court as a pending petition and the same shall be re-decided by the said court on the merits of the case of accused, and that till such time the accused shall be deemed to be on ad interim post-arrest bail and thereafter it shall be for the High Court to regulate the matter of his custody.

Ghulam Qammber Shah v. Mukhtiar Hussain and others PLD 2015 SC 66 and Mst. Jewan Mai v. The State and others Criminal Petition No.811-L of 2014 decided on 17-2-2015 (PLD 2015 SC 242) ref.

Muhammad Hanif and 6 others v. The State 2001 PCr.LJ 1470 approved.

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

----S. 497(1)---Post-arrest bail, grant of---Offence attracting prohibitory clause of S.497(1), Cr.P.C---Scope.

Following are the cases in which an accused could be admitted to post-arrest bail, where prohibitory clause contained in S.497(1), Cr.P.C applied:-

(i) cases attracting the first proviso to subsection (1) of section 497, Cr.P.C. wherein the accused person was under the age of sixteen years or was a woman or was a sick or infirm person;

(ii) cases attracting the statutory ground of delay in conclusion of the accused person's trial;

(iii) cases attracting subsection (2) of section 497, Cr.P.C. wherein sufficient grounds for further inquiry into the guilt of an accused person existed; and

(iv) cases wherein after conclusion of the trial and before delivery of the final judgment the Court was of the opinion that reasonable grounds existed for believing that the accused person was not guilty of any offence.

Asif Javaid Qureshi, Advocate Supreme Court for Petitioner

Mian Shah Abbas, Advocate Supreme Court with Respondent No.2 (in person).

Ehtesham Qadir Shah, Prosecutor-General, Punjab for the State.

Mazhar Sher Awan, Additional Prosecutor-Generl, Punjab for the State.

Date of hearing: 18th February, 2015.

P L D 2015 Supreme Court 257

Present: Jawwad S. Khawaja, Ejaz Afzal Khan and Qazi Faez Isa, JJ

C.M.A. NO. 4343 OF 2014 IN S.M.C. NO. 1 OF 2005

(Matter regarding publishing/printing incorrect version of section 23 of Contract Act, 1872 in the Book titled "The Contract Act, 1872, 2nd Edition/2011" by M. Mahmood, Advocate)

AND

C.M.A. NO. 5436 OF 2014 IN S.M.C. NO. 1 OF 2005

(Matter regarding missprinting of section 7(1)(e) and section 7(4)(d) and (e) of the Patent Ordinance, 2000 in the Book titled "Manual of Intellectual Property Laws")

AND

C.M.A. NO.5869 OF 2014 IN S.M.C. NO. 1 OF 2005

(Matter regarding section 2(K)(i) of Punjab Consumer Protection Act, 2005 and Manual of Consumer Protection Laws by Raja Nadeem Haider, Advocate Supreme Court Published by Punjab Law House (Edition 2009))

C.M.As. Nos. 4343, 5436 and 5869 of 2014 in S.M.C. No.1 of 2005, decided on 10th February, 2015.

Constitution of Pakistan---

----Arts. 28, 184(3) & 251---Legal Practitioners and Bar Councils Act (XXXV of 1973), Ss.9 & 13---Law books privately published and cited in court---Suo motu action taken up by the Supreme Court upon noticing that a number of law books privately published and cited in court contained glaring mistakes committed by authors and publishers in the text of the statutes---Publishing/printing of incorrect sections of statutes in legal textbooks---Erroneous printing of bare Acts---Non-availability of the laws of Pakistan in the form of a consolidated code---Federal and Provincial laws not translated into the national language of Pakistan---Effect---Uncertainty in the administration of justice---Loss to litigants---Lawlessness---Errors and mistakes in statutes contained in legal textbooks were misleading the legal practitioners and judges and were creating uncertainty in the administration of law---No law existed on the statute book which would impose a civil and/or criminal liability on publishers, authors etc. responsible for publishing law books with such errors---Copyright in the laws was vested in the Government which had made such laws---Books published in print and available for sale in the country were authored and published incorporating the statutes of the Federation and the provinces, but without the permission of the concerned government, being the owners of the copyright---Governments had to rectify such situation, if necessary, by enforcing their copyrights or by legislation so that publishers of law books could be dealt with and penalized if they published erroneous books---Making the applicable laws readily available to the public was a responsibility of the State---Discharging such responsibility was one of the primary functions of the Federal and Provincial Law Departments---No official publication existed either in hard form or on the internet which could provide an accurate and error free version of the laws of Pakistan in one easily accessible compendium---No easy and user-friendly means were available to the people of Pakistan to enable them to find out what the statute book contained---Neither the Bar Councils nor the Federal or Provincial governments had shown any seriousness of intent in addressing the present issue---Present state of affairs had serious consequences for State governance and for judicial adjudication of cases, and it adversely effected the rights of the people of Pakistan and contributed towards the perpetuation and spread of lawlessness in the country---Where applicable laws were not available, there could be little expectation or likelihood that the law would be abided by---Federal Government had a very effective system for compiling the Pakistan Code till the year 1966 when the last compendium of Federal laws was published in a proper and user friendly form containing a chronological as well as alphabetical index of the laws on the federal statute book which included the amendments made from time to time so that any lawyer, judge, researcher or man on the street could ascertain the state of the law applicable in the country---Such manner of publishing the Pakistan Code had been discontinued since the year 1966 without explanation---Neither the Provinces nor the Federation had undertaken the exercise of codifying the subordinate legislation made pursuant to rule-making powers given to the respective executives by legislation and nor was there any codification of notifications or other statutory instruments---First and foremost obligation of the government in any civilized system of government was to make sure that all applicable laws were made easily available to citizens in easily understandable language, therefore, it was a matter of great concern that the laws of Pakistan, whether Federal or Provincial, had not been translated into the national language which was a requirement of Art.251 of the Constitution or publicized in provincial/local languages if considered appropriate, in line with the constitutional provision in Art. 28 of the Constitution---Supreme Court directed that the complete Pakistan Code ('the Code') shall be compiled and displayed on the website of the Federal Law Ministry; that bound hard copies of the Code shall be made available for sale throughout the country so as to be easily accessible to the public at inexpensive prices; that an alphabetical consolidated word index containing the words in the title of a statute and words defined in the provisions of a statute containing definitions shall be included in the alphabetical index; that as a sample of the required consolidated word index, the consolidated index appearing at the end of volume 16 of the Pakistan Code published by the Manager of Publications, Government of Pakistan, Karachi (1968) may be used as a rudimentary sample; that improvements in said sample must be made by use of technology and by benefiting from the Codes published by common law jurisdictions in the subcontinent and elsewhere; that the Code shall include in foot-notes, particulars of amendments made from time to time in the various statutes published in the Code; that marginal notes shall be made to cross reference the provisions of one statute with related provisions in another statute; that the sample of the Pakistan Code published by the Manager of Publications (1968) may be adapted and improved; that translation (of the Code) into the national language shall be completed and displayed in easily understandable form at inexpensive prices; that translations of the Code into provincial/vernacular languages where deemed appropriate by provinces shall be made by the Provinces; that subordinate legislation in the form of rules and regulations framed under statutory powers shall be compiled in the form of a Code, containing a consolidated word index; that a compendium of all statutory orders and notifications shall be compiled and shall be made available to the public at inexpensive prices; that a legislative and/or administrative regime shall be prepared with effective enforcement and prosecution mechanisms to ensure that law publications for sale to the public were error free and, where applicable, had the permission of the Government owning copyrighted material, and that the Provinces shall follow the same pattern of publication of soft and hard copies of laws, rules and notifications as had been ordered for the Federation--- Order accordingly.

The Contract Act, 1872, 2nd Ediction/2011" by M. Mahmood, Advocate; The Code of Criminal Procedure, 1898 by M. Mahmood (Edn. 2005); Code of Criminal Procedure, Bare Act, by S.A. Abid (Edn. 2012) and Code (India Code ) http://indiacode.nic.in/ ref.

Kh. Ahmed Hussain, DAG with Muhammad Raza Khan, Secretary M/o Law on Court's Notice.

Muhammad Farid Dogar, AAG with Safdar Hussain Secretary Law for Government of Balochistan.

Abdul Latif Yousafzai, AG and Muhammad Aarfin, Secretary Law for Government of Khyber Pakhtunkhwa.

Mudassar Khalid Abbasi, AAG with Mohsin Abbas Syed, Additional Secretary/Director (Law and PA) for Government of Punjab.

Muhammad Qasim Mirjat, Additional AG and Mir Muhammad Sheikh, Secretary Law for Government of Sindh.

Nemo for Pakistan Bar Council.

Nemo for Punjab Bar Council.

Nemo for Khayber Pakhtunkhwa Bar Council.

Nemo for Respondents (in C.M.As. Nos.4343 and 5436 of 2014).

Muttaqi Raza, Manager for Respondents (in C.M.A. No.5869 of 2014).

Date of hearing: 28th January, 2015.

P L D 2015 Supreme Court 275

Present: Nasir-ul-Mulk, C.J., Jawwad S. Khawaja, Anwar Zaheer Jamali, Mian Saqib Nisar, Asif Saeed Khan Khosa, Sarmad Jalal Osmany and Mushir Alam, JJ

ISHAQ KHAN KHAKWANI and others---Petitioners

versus

MIAN MUHAMMAD NAWAZ SHARIF and others---Respondents

Constitutional Petitions Nos.78, 79 and 85 of 2014 and Civil Petition for Leave to Appeal No.1 646-L of 2014, decided on 9th December, 2014.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 8-9-2014 passed in Intra-Court Appeal No.865 of 2014 and Constitution Petitions under Article 184(3) of the Constitution)

Per Nasir-ul-Mulk, C.J.

(a) Constitution of Pakistan---

----Arts. 62(1)(f) & 63(1)(g), 184(3) & 185(3)---Disqualification of Prime Minister and Interior Minister sought for making false statements in Parliament---Contentions of petitioner were that the Prime Minister and Interior Minister had made statements on the floor of the House in the National Assembly, which were subsequently refuted/contradicted by the Inter-Services Public Relations (ISPR) department of the Armed Forces; that the Prime Minister and Interior Minister had, thus, made false statements on the floor of the House and thus stood disqualified from membership of the Parliament under Art.62(1)(f) of the Constitution as they were not "sagacious, righteous and non-profligate and honest and ameen", as well as under Art.63(1)(g) of the Constitution for defaming or bringing into ridicule the Armed Forces of Pakistan---Validity---Contents of statement made by Prime Minister in the Parliament showed that he was referring to the information/statement divulged by the Interior Minister in the Parliament in his speech earlier made on the same day---Statement made by the Interior Minister was in line with the release/statement made by Inter-Services Public Relations (ISPR) department of the Armed Forces---No material inconsistency existed in the three statements so as to attribute falsity to the statement of either the Prime Minister or the Interior Minister---Constitutional petition and petition for leave to appeal were dismissed accordingly.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199---Constitutional petition before the Supreme Court/High Court---Maintainability---"Political question"---Petition raising a political question---Where the determination of any question raised before the court required interpretation or application of any provision of the Constitution the court was obliged to adjudicate upon the same notwithstanding that the action impugned or the questions raised had political overtones---Supreme Court judgment in Messrs Hudabiya Paper Mills Ltd. and others v. National Accountability Bureau (PLD 2012 Lahore 515), held, could not be considered to have laid down that a constitutional petition could be thrown out on the ground of non-maintainability because the petition raised a "political question."

Messrs Hudabiya Paper Mills Ltd. and others v. National Accountability Bureau PLD 2012 Lah. 515; Mehmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166; Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Baker v. Carr [369 U.S. 186 (1962)] and State of Rajasthan v. Union of India AIR 1977 SC 1361 ref.

Per Jawwad S. Khawaja, J ; agreeing with Nasir-ul-Mulk, C.J.

(c) Constitution of Pakistan---

----Arts. 62(1)(f) & 63(1)(g)---Disqualification of Member of Parliament in terms of Arts. 62(1)(f) & 63(1)(g) of the Constitution---Scope and prerequisites---Declaration/conviction by a court of competent jurisdiction---Court must first make a declaration in terms of Art.62(1)(f) of the Constitution or pronounce a conviction in terms of Art. 63(1)(g) of the Constitution, before the Speaker of the National Assembly could initiate the process for unseating a Member of Parliament---Speaker could only act in such a matter if there was a prior declaration or conviction made by a court.

(d) Constitution of Pakistan---

----Arts. 10A, 62 & 63, 66, 184(3), 185(3) & 199---Qualifications/ Disqualifications for membership of Parliament in terms of Arts.62 & 63 of the Constitution---Scope---Questions posed by a Bench of three members of the Supreme Court which needed to be adjudicated upon by a larger Bench of the court to ensure that constitutional questions and challenges as to the qualifications/disqualifications and eligibility of members of Parliament were decided in accordance with one single and definite measure.

Following were the questions which needed to be adjudicated upon to ensure that constitutional questions and challenges as to the qualifications/disqualifications and eligibility of members of Parliament were decided in accordance with one single and definite measure:

"(i) Whether in view of the express stipulations in Articles 62(1)(f) and 63(1)(g) of the Constitution requiring declaration/conviction by a court, the High Court could have dismissed the Writ Petition on the ground that it raised a "political question" and was, therefore, not justifiable;

(ii) If it is held that the High Court fell in error and that the Writ Petition was maintainable, what would be the effect of the constitutional requirement that declaration/conviction as aforesaid has to be by a court and for the purpose of such declaration/conviction whether the provisions of Article 10A of the Constitution requiring 'fair trial" and "due process" are attracted; and if so, what do these terms entail;

(iii) It may well be that the facts and circumstances emerging on record may prima facie, not justify the acceptance of the Writ Petition, but it is in our view still essential to lay down the law and parameters of the constitutional provisions and to outline on principle, what would be the

(a) as to which Court will be competent to make such declaration or to pass an order convicting a member of Parliament;

(b) what will be the procedure adopted by such Court for rendering such declaration/conviction;

(c) what will be the standard of proof required for making such declaration or order of conviction;

(d) as to who will have locus standi to seek such declaration/conviction;

(iv) The Constitutional provisions of eligibility for elected office requiring an elected persons to be "honest" and "ameen" have to be given meaning because these terms have to be interpreted as they constitute a substantive part of the Constitution; and it is the people of Pakistan who have (through the Constitution) mandated and are entitled to ensure that members of Parliament elected by them are inter alia, "honest" and "ameen" and thus fulfil the eligibility criteria and qualifications given in Articles 62 and 63 of the Constitution;

(v) Whether Article 66 (privileges of members etc.) of the Constitution provides an absolute or a qualified privilege to members of parliament for statements made on the floor of the two houses of Parliament and Provincial Assemblies and also whether the provisions of Articles 62 and 63 of the Constitution override the provisions of Article 66 ibid;

(vi) What is the effect of the material changes which have been made in Articles 62 and 63 of the Constitution by virtue of the 18th amendment passed in April, 2010."

His Lordship observed that in order to avoid controversy as to the meaning of Arts. 62(1)(f) and 63(1)(g) of the Constitution and the terms 'honest' and 'ameen' used therein, the questions framed must be adjudicated to provide guidance through precedent; that such precedent could ensure that constitutional questions and challenges as to the qualifications/disqualifications and eligibility of members of Parliament were decided in accordance with one single and definite measure, otherwise there could be vastly divergent and differing approaches which could be taken by various returning officers or election tribunals as per their reading and understanding of the Constitution, which in turn had the potential of leading to and rendering any election controversial.

It was further observed that the question as to which court would have jurisdiction to make the declaration or conviction envisioned by Arts. 62 and 63 of the Constitution would also need to be decided because the said constitutional provisions could not be rendered redundant for the reason that the Constitution did not identify the Court which was competent to render the declaration under Art. 62(1)(f) of the Constitution or the conviction under Art.63(1)(g) of the Constitution, and that the procedure of the Court and the standard of proof would (also) be relevant considering that a member of Parliament who had been elected by the people was to be unseated.

Constitution petition and petition for leave to appeal were dismissed accordingly.

Per Asif Saeed Khan Khosa, J ; agreeing with Nasir-ul-Mulk, C.J.

(e) Constitution of Pakistan---

----Art. 2A---Objectives Resolution---Islamic features of the Objectives Resolution---Scope---Although sovereignty of Almighty Allah over the entire universe had been acknowledged in the Objectives Resolution yet the State had been recognized as the delegates thereof which was to exercise such sovereignty through chosen representatives of the people within the limits prescribed by Almighty Allah as a sacred trust---While conceding sovereignty to a democratically elected Parliament the Constitution simultaneously circumscribed such sovereignty by confining it to the limits prescribed by Almighty Allah---Such a concept was in exact conformity with a Muslim's belief that he may be free to make his own choices in life but he may not overstep the limits prescribed by his Creator---Looked at in such perspective the Constitution, conforming to the Islamic perceptions, recognized democracy as the only mode of governance, but a democracy which did not come in conflict with a Muslim's faith---To an outsider such a concept may appear to be enigmatic but the Muslims of Pakistan had no difficulty in understanding and applying such concept, therefore, it fits into the scheme when the Objectives Resolution referred to "the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam" and envisioned a State "wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah"---Scheme (of the Objectives Resolution) was the establishment of a modern and democratic Islamic State in fulfilment of the wishes of the Muslims and the manifestations of such scheme were to be found spread over the entire Constitution.

(f) Constitution of Pakistan---

----Arts. 1(1), 2, 2A, 41(2), 31, 37(g) & (h), 38(f), 40, 50, 62, 203D, 203F, 227(1), 228, 230(1)---Islamic features of the Constitution of Pakistan highlighted.

Islamic Provisions in the Constitution of Pakistan, 1973 by Asif Saeed Khan Khosa PLD 1995 Journal 17 ref.

(g) Constitution of Pakistan---

----Art. 228 & 230(1)---Council of Islamic Ideology---Functions, nature of---Advisory and recommendatory function---Functions of the Council of Islamic Ideology were primarily advisory and recommendatory in nature and its advice or recommendation was not self-executory.

Islamic Provisions in the Constitution of Pakistan, 1973 by Asif Saeed Khan Khosa PLD 1995 Journal 17 ref.

(h) Constitution of Pakistan---

----Art. 2A---Pakistan as an Islamic State---Scope---Constitution of Pakistan envisioned a modern, democratic and welfare Islamic State.

Islamic Provisions in the Constitution of Pakistan, 1973 by Asif Saeed Khan Khosa PLD 1995 Journal 17 ref.

(i) Constitution of Pakistan---

----Arts. 62, 63, 184(3) & 185(3)---Qualifications/Disqualifications for membership of Majlis-e-Shoora (Parliament)---Obscurities and impracticalities in the application and interpretation of Arts. 62 & 63 of the Constitution---Obscurities and impracticalities in the interpretation and application of Arts. 62 & 63 of the Constitution were gnawing the Returning Officers, Election Tribunals and the superior courts of the country but those responsible for rationalizing the troublesome provisions of the Constitution through appropriate amendments of the Constitution had slept over the matter for long and they still demonstrated no sign of waking up; that as long as such obscurities and impracticalities were not addressed and remedied nobody should complain that the Returning Officers, Election Tribunals and the superior courts of the country were generally unsuccessful in catching the candidates with bad character or antecedents in the net of Arts. 62 and 63 of the Constitution, particularly when the electorate was quite happy to elect such candidates with sweeping majorities while in full knowledge of their character and antecedents; that one should not shy away from acknowledging the hard reality that there was a disconnect between constitutional morality and political ethos; that if the constitutional provisions in question (Arts. 62 & 63 of the Constitution) could not be put to practical use due to their obscurities or impracticalities then it should be remembered that useless laws weakened necessary laws, and, that laws and institutions, like clocks, must occasionally be cleaned, wound up and set to true time; that insistence upon complete virtue in an ordinary mortal may be unrealistic and puritanical behaviour of an ordinary human may have a tendency of making him inhuman, and that it may be true that humans were the best of Almighty Allah's creations but the divine structural design never intended an ordinary human being to be perfect and free from all failings, frailties or impurities---Constitution petition and petition for leave to appeal were dismissed accordingly.

Qualifications for Candidates: A Constitutional Puzzle by Asif Saeed Khan Khosa PLD 1988 Journal 272 ref.

Irfan Qadir, Advocate Supreme Court and Sardar Abdul Raziq Khan, Advocate Supreme Court for Petitioners (in C.Ps. Nos.78 and 79 of 2014).

Nemo for Petitioners (in C.P. No.85 of 2014).

Petitioner in person (in C.P. No.1646-L of 2014).

Salman Aslam Butt, Attorney-General for Pakistan, Waqar Rana, Additional Attorney-General for Pakistan, Kh. Saeed-uz-Zafar, Additional Attorney-General for Pakistan and Sohail Mehmood, Deputy Attorney-General for Pakistan on Court's Notice.

Hamid Khan, Senior Advocate Supreme Court and Kh. Haris Ahmed, Advocate Supreme Court as Amici Curiae.

Nemo for Respondents (in all petitions).

Date of hearing: 9th December, 2014.

P L D 2015 Supreme Court 307

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Qazi Faez Isa, JJ

ZAFAR IQBAL---Appellant

versus

The STATE---Respondent

Criminal Appeal No.567 of 2014, decided on 24th February, 2015.

(On appeal from the judgment dated 28-7-2003 of the Lahore High Court, Rawalpindi Bench passed in Cr.A. No. 245/I of 2002 and M. R. No.54/T of 2002)

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Constitution of Pakistan, Arts.10(1) & 10A---Qatl-i-amd, act of terrorism---Reappraisal of evidence---Right to fair trial---Scope---Right of accused to be defended by a legal practitioner/counsel of his choice---Scope---Accused refusing services of counsel arranged by Trial Court---Article 10(1) of the Constitution stipulated that an accused shall not, "be denied the right to consult and be defended by a legal practitioner of his choice", but it did not stipulate that, if the accused could not afford the service of such legal practitioner, the public or State shall bear the professional fee of such legal practitioner---Trial Court in the present case had provided to the accused the services of a counsel, and had further offered him the services of any of the other available counsel if he had any reservations with the counsel appointed, but the accused remained obdurate that State should appoint and pay for a defence counsel from amongst his choices of counsel as he did not have sufficient funds to engage any of them---Under such circumstances it could not be stated that the accused was not provided a fair trial or his right to a fair trial was in any manner vitiated---Article 10A of the Constitution enshrined the right, "to a fair trial and due process", however this did not mean that an intransigent accused could be allowed to hold the criminal adjudication system hostage or create irregularities in the trial with a view to earn a future benefit--- If such benefit was permitted then every accused would either not engage a counsel or not permit the counsel appointed by the State to do his job and disrupt the trial with a view to induce an irregularity to gain a subsequent benefit---Trial Court in the present case took abundant care to safeguard the interest of the accused at every juncture, but the accused remained adamant---Appeal was dismissed accordingly.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Criminal Procedure Code (V of 1898), Ss.340(2) & 342---Constitution of Pakistan, Art.10A---Qatl-i-amd, act of terrorism---Reappraisal of evidence---Right of fair trial---Scope---Accused was convicted for the murders of five persons by Trial Court and sentenced to death under S.7(a) of the Anti-Terrorism Act, 1997---Trial court in the present case provided the accused the services of a counsel, and further offered him the services of any of the other available counsel if he had any reservations with the counsel appointed, but the accused found none of them to be acceptable, and thus, remained unrepresented throughout the trial---Accused was also provided an opportunity to cross-examine each and every prosecution witness, but he consciously elected not to do so---Statement of accused under S.342, Cr.P.C. was recorded and he affirmed that he understood the prosecution evidence which had been recorded in his presence---Accused declined the offer to produce evidence in his defence and also elected not to make a statement on oath under S.340(2), Cr.P.C.---Under such circumstances it could not be stated that the accused was not provided a fair trial or his right to a fair trial was in any manner vitiated---Appeal was dismissed accordingly.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, act of terrorism---Re-appraisal of evidence---Conversion of death sentence into imprisonment for life---Mitigating circumstances---Scope---Expectancy of life, principle of---Scope---Accused remaining in prison for a period equal to or more than a life imprisonment during pendency of legal remedies against his conviction---Case of pre-mediated cold-blooded murder---Accused was sentenced to death by Trial Court under S.7(a) of the Anti-Terrorism Act, 1997---Contention of accused was that he had been in the death cell for over seventeen and a half years and had already served out what could have been an imprisonment for life, therefore, he could not now be hanged as that would tantamount to imposing upon him two sentences, i.e. imprisonment for life and death---Validity---Convict/condemned prisoner could be extended concession of lesser sentence from death to life imprisonment, if he had been incarcerated for a period equal to or more than a life imprisonment on account of principles of expectancy of life, treating it as "one of the factors" towards mitigating circumstances---However, it was completely misconceived that every convict or condemned prisoner, who was sentenced to death or life imprisonment and had served full term of imprisonment for life during the pendency of his legal remedies against his conviction, could not be awarded death penalty, if other factors so warranted---Accused, in the present case, committed the coldblooded premeditated murder of five persons and there was no mitigating circumstance or factor that could persuade the court to convert the sentence of death to one of imprisonment for life---Appeal was dismissed accordingly.

Hassan v. State PLD 2013 SC 793 distinguished.

Khalid Iqbal v. Mirza Khan PLD 2015 SC 50 ref.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), Ss.7(a) & 38---Criminal Procedure Code (V of 1898), S.537---Qatl-i-amd, act of terrorism---Reappraisal of evidence---Error or material irregularity in conviction recorded by Trial Court---Correction of error in judgment---Scope---Incident had taken place prior to commencement of Anti-Terrorism Act, 1997---Trial Court convicted and sentenced the accused to death under S.7(a) of the Anti-Terrorism Act, 1997, and dropped the charge under S.302, P.P.C. at the time of pronouncement of judgment---Crime in question was committed on 10th of January, 1994 (before the operation of the Anti-Terrorism Act, 1997) therefore the accused could not have been convicted under S.7(a) of the Anti-Terrorism Act, 1997---Section 38 of the Anti-Terrorism Act, 1997 stipulated that in respect of the offences committed before the commencement of the said Act, the convicted person, "shall be liable to punishment as authorized by law at the time the offence was committed."---Trial court, therefore, could only have punished the accused under S.302, P.P.C., and not under S.7(a) of the Anti-Terrorism Act, 1997---Question for determination in such circumstances was as to whether there had been a mistrial or materially defective trial on account of the fact that the Trial court had (erroneously) convicted the accused under S.7(a) of the Anti-Terrorism Act, 1997, and dropped the charge under S.302, P.P.C, at the time of the passing of judgment---Record showed that accused was charged under both S.7(a) of the Anti-Terrorism Act, 1997, and S.302, P.P.C.--Record also showed that charge was read out to the accused and he understood the same---Had the accused, in the present case, been convicted under S.302(b), P.P.C. it would have left him with a window of opportunity to effect a compromise with the heirs of a deceased, therefore to such extent his conviction under S.7(a) of the Anti-Terrorism Act, 1997, could be categorized as a failure of justice---Supreme Court, while exercising power under S.537, Cr.P.C, altered the conviction of accused from S.7(a) of Anti-Terrorism Act, 1997, to one under S.302(b), P.P.C. as ta'zir, while payment of compensation of one hundred thousand rupees to the heirs of each deceased was maintained---Appeal was dismissed accordingly.

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

----S. 537---Sentence when reversible by reason of error or omission in charge or other proceedings---Scope---Sentence could be reversed and altered provided it had occasioned a failure of justice.

Sardar M. Ishaq Khan, Senior Advocate Supreme Court and Sahibzada Ahmed Raza Qasuri, Senior Advocate Supreme Court for Appellant.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for the Complainant.

Zubair Ahmed Farooq, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 24th February, 2015.

P L D 2015 Supreme Court 322

Present: Asif Saeed Khan Khosa, Amir Hani Muslim and Qazi Faez Isa, JJ

The STATE---Appellant

versus

DANIYAL alias DANI---Respondent

Criminal Appeal No.33-K of 2014, decided on 19th March, 2015.

(Against the judgment dated 30-5-2014 passed by the High Court of Sindh, Karachi in Criminal Appeal No.322 of 2012 and Murder Reference No.3 of 2012)

Criminal Procedure Code (V of 1898)---

----Ss. 369, 374 & 410---Penal Code (XLV of 1860), S.302---Criminal appeal/Murder Reference before High Court---Short order passed by High Court, finality of---Scope---No subsequent change in verdict after passing of short order---Division Bench of the High Court dismissed appeal filed by accused and passed a short order stating that "For the reasons to be recorded later on, this appeal is dismissed---Death sentence awarded by the Trial Court is hereby confirmed---Reference stands responded in affirmative."---Subsequently (five days later) the same Division Bench of High Court passed an order stating that "While recording reasons, we have found that the appellant is a very young boy and the counsel appearing for the appellant did not invite our attention to his statement under S.342, Cr.P.C. and perhaps was a first offender, therefore, we would like to re-hear this appeal---Let notice be issued to the Counsel for the appellant as well as to the Prosecutor General and counsel for the complainant….." ---After rehearing the appeal the Division Bench of High Court reduced death sentence of accused to imprisonment for life---Contention of complainant that after having passed and signed the short order the Division Bench of the High Court could not have fixed the matter for rehearing and it could not, thus, change its earlier decision at any later stage---Validity---When a judgment was reserved a court was well within its jurisdiction to fix the matter for rehearing of any point which needed further elaboration, but if a judgment was announced with a final verdict regarding the fate of an accused person and such announcement was through a short order to be followed by detailed reasons and such short order was actually signed by the Members of the Bench then the court was left with no jurisdiction to change the verdict subsequently or even to fix the case for rehearing on the merits or even on the question of sentence unless such court possessed review jurisdiction which may even be exercised suo motu---Present matter was that of a criminal appeal and in such a matter the High Court had no review jurisdiction available to it and, therefore, once the short order had been passed by it deciding the fate of the accused and of his appeal then the High Court was subsequently bereft of any jurisdiction to order rehearing of the matter for the purposes of considering alteration of its earlier announced judgment---Supreme Court observed that the factual and legal position of the present case had created a very difficult situation because if the earlier short order of the High Court was treated to be the final judgment then there was no detailed judgment of the High Court available vis-a-vis confirmation of the sentence of death passed against the accused, and if the subsequent detailed judgment released by the High Court was to be treated as its final judgment then the same could not be accepted as such because such detailed judgment was bereft of any legal validity impinging upon its very existence---Supreme Court in such circumstances sent the matter back to the High Court for a fresh decision of the appeal and the connected murder reference on all aspects of the case after hearing all the parties so that the interests of justice may be served well---Appeal was allowed accordingly.

The State v. Asif Adil and others 1997 SCMR 209; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Dr. Agha Ijaz Ali Pathan v. The State 2010 SCMR 322; Wafi Associates (Pvt.), Limited v. Farooq Hamid and others 2010 SCMR 1125; D.G. A.N.F. Rawalpindi and others v. Munawar Hussain Manj and others 2014 SCMR 1334; L and B (Children) 2013 SCMR 842 Supreme Court of the United Kingdom ref.

Saleem Akhtar, Additional Prosecutor-General, Sindh for Appellant.

Nemo for Respondent.

Mrs. Abida Parveen Channar, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for the Complainant.

Date of hearing: 19th March, 2015.

P L D 2015 Supreme Court 327

Present: Jawad S. Khawaja and Sarmad Jalal Osmany, JJ

GHAZALA TEHSIN ZOHRA---Appellant

versus

Mehr GHULAM DASTAGIR KHAN and another---Respondents

Civil Appeal No.90 of 2011, decided on 2nd February, 2015.

(Against the judgment dated 18-5-2010 passed by the Lahore High Court in W.P.No.4729 of 2010)

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

----Arts. 128(1)(a) & 2(9)---West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S. 2---Specific Relief Act (I of 1877), S.42---Muslim personal law ---Paternity of children---DNA test, permissibility of---Scope---For harmonius construction of provision of Art.128(1)(a) of the Qanun-e-Shahadat, 1984, resort was to be made to S.2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Birth during marriage, conclusive proof of legitimacy---Scope---Legal protection and defence against stigmatization of women and children---Declaratory suit was filed by the father in the present case, seeking a declaration to the effect that he was not the natural/biological father of the children born during subsistence of his marriage, and that any official record in such regard was bogus and had been fraudulently prepared---Father also filed an application in the suit praying that a DNA test be conducted to establish his denial of paternity---Said application was allowed by the revisional court, which judgment was upheld by the High Court---Validity---Children, in the present case, were not only conceived but were also born during the subsistence of the marriage--- Article 128(1)(a) of the Qanun-e-Shahadat, 1984 was couched in a language which was protective of societal cohesion and the values of the community, which appeared to be the rationale for stipulating affirmatively that a child who was born within two years after the dissolution of the marriage between his parents (the mother remaining un-married) shall constitute conclusive proof of his legitimacy---Otherwise, neither the classical Islamic jurists nor the framers of the Qanun-e-Shahadat, 1984, could have been oblivious of the scientific fact that the normal period of gestation of the human foetus was around nine months---Stipulation in Art. 128 of the Qanun-e-Shahadat, 1984, was that the birth of a child within the period stipulated in the said Article was conclusive proof that he was a legitimate child---Once the relevant facts as to commencement and dissolution of marriage and the date of birth of a child within the period envisioned in Art. 128 of the Qanun-e-Shahadat, 1984, were proved, and the date of birth was within the period specified in the said Article, then the Court could not allow evidence to be given for disproving the legitimacy of a child born within the said period---Question then was as to how to deal with a situation where the husband refused to own the child---Muslim Personal Law was clear and well settled on such subject as it provided that legitimacy/paternity must be denied by the father immediately after birth of the child (as per Imam Abu Hanifa) and within the post natal period (maximum of 40 days) after birth of the child (as per Imam Muhammad and Imam Yousaf)---No lawful denial of paternity could be made after said stipulated period---Rationale of the law set out in Art. 128 of the Qanun-e-Shahadat, 1984, read with S.2 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, was quite clear; both said statutes ensured (in specified circumstances) an unquestioned and unchallengeable legitimacy of the child born within the stipulated period notwithstanding the existence or possibility of a fact through scientific evidence---Framers of the law or jurists in the Islamic tradition were not unaware simpletons lacking in knowledge---Conclusiveness of proof in respect of legitimacy of a child was properly thought out and quite deliberate---Much greater societal objective was served by adhering to the said rules of evidence than any purpose confined to the interests of litigating individuals---Many legal provisions existed in the statute book and rules of equity or public policy in the jurisprudence where the interests of individuals were subordinated to the larger public interest---Law did not give a free licence to individuals and particularly unscrupulous fathers, to make unlawful assertions and thus to cause harm to children as well as their mothers---Wisdom of rule of Muslim Personal Law could not be gainsaid, considering in particular the patriarchal and at times misogynistic societal proclivities where women frequently did not receive the benefit of laws and on the contrary faced humiliation and degrading treatment---For the honour and dignity of women and innocent children as well as the value placed on the institution of the family, women and blameless children had been granted legal protection and a defence against scurrilous stigmatization---Appeal, in the present case was allowed and suit filed by father was dismissed with the observation that it was worth to reflect on the belief in (our) tradition that on the Day of Judgment, the children of Adam would be called out by their mother's name, which showed that the Divine Being had, in His infinite wisdom and mercy, taken care to ensure that even on a day when all personal secrets shall be laid bare the secrets about paternity shall not be delved into or divulged.

Muhammad Shahid Sahil v.The State PLD 2010 FSC 215 distinguished.

Hedaya and Fatawa-i-Alamgiri ref.

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

----Art. 128(1)(a)---West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.2---Civil Procedure Code (V of 1908), O.I, R.10(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Paternity of children---DNA test---Declaratory suit filed by the father seeking a declaration to the effect that he was not the natural/biological father of the children born during subsistence of his marriage, and that a DNA test be conducted to establish his denial of paternity---Non-impleadment of children as parties to the declaratory suit---Effect---Children in the present case had not been impleaded as parties in the suit filed by the father-plaintiff, which was a fatal flaw in the plaintiff's case and was by itself sufficient for the purpose of dismissing the suit because the mother could not act for or be compelled to act for or on behalf of the minor children---Fourteen years had passed since the institution of the suit, and it was quite extraordinary that the children who were to suffer opprobrium and vilification without their fault, for the rest of their lives should stand condemned without being given an opportunity of defending themselves through a proper and fair trial---Children were denied their right to plead the Qanun-e-Shahadat, 1984, and the Muslim Personal Law (Shariat)---No DNA test to determine paternity could possibly be conducted without the participation and involvement of the children whose legitimacy was being denied---Mother was wholly irrelevant for the purpose of a paternity test, however such aspect of the case had been overlooked by courts below---Appeal was allowed accordingly and declaratory suit filed by father was dismissed.

Saif ul Maluk, Advocate Supreme Court with appellant and her daughter (Hania Fatima) for Appellant.

Sardar Muhammad Aslam, Advocate Supreme Court for Respondent No.1.

Pro forma respondent (Respondent No.2).

Date of hearing: 2nd February, 2015.

P L D 2015 Supreme Court 344

Before Anwar Zaheer Jamali, Dost Muhammad Khan and Umar Ata Bandial, JJ

WAPDA and others---Appellants

versus

BASHIR HUSSAIN SHAH and another---Respondents

Civil Appeals Nos. 19 and 20 of 2009, decided on 13th April, 2015.

(On appeal from judgment of Lahore High Court, Rawalpindi Bench dated 27-10-2008 passed in RFAs Nos. 70 and 71 of 2006).

Land Acquisition Act (1 of 1894)---

----Ss. 18(3)(4), 22-A, 50(2), proviso & 54-Constitution of Pakistan, Art.203-D(3)(b)---Appeal against award---Right of Federal Government or beneficiary of acquired land to file appeal---Scope---Necessary parties to the appeal---Appeals filed by Land Acquisition Collector and Provincial Government (beneficiary of the acquisition) were dismissed by the High Court on the grounds that beneficiaries of acquisition were not necessary parties as per the Land Acquisition Act, 1894---Legality---Provisions of Ss.18(3)(4), 22-A, 50(2) & 54 of Land Acquisition Act, 1894, barring right of appeal to Government/beneficiary (of the acquisition) had been declared as repugnant to Injunctions of Islam by Shariat Appellate Bench of Supreme Court vide judgment dated 18-2-1991 in Shariat Appeal No.7/89, after fixing a cut-off date till 30-9-1991, for making therein necessary amendments by competent bodies---According to Art.203-D(3)(b) of the Constitution, any law or its provision declared by Shariat Appellate Court as repugnant to Injunctions of Islam would cease to have effect on date on which its decision would take effect---Government/beneficiaries (of acquisition) after expiry of such cut-off date would have right to an appeal---Impugned judgment of High Court was set aside and case was remanded to the High Court for hearing afresh, after affording due opportunity of hearing to all the concerned parties---Appeal was allowed accordingly.

Land Acquisition Collector v. Muhammad Nawaz PLD 2010 SC 745 ref.

Sardar Muhammad Aslam, Advocate Supreme Court for Appellants (in both appeals).

Nemo for Respondents Nos. 1-3, 5 and 6 (in C.A. No.19 of 2009).

Ex parte: Respondents Nos. 4, 7 and 8 (in C.A. No.19 of 2009)

Muhammad Asif Chaudhary, Advocate Supreme Court for Respondents Nos.16, 20-22 (in C.A.No.20 of 2009).

Ex parte: Respondents Nos. 1-15, 17, 19, 23-27 (in C.A.No.20 of 2009).

Date of hearing: 13th April, 2015.

P L D 2015 Supreme Court 348

Present: Asif Saeed Khan Khosa, Sarmad Jalal Osmany and Qazi Faez Isa, JJ

Mian KHALID RAUF---Appellant

versus

Chaudhry MUHAMMAD SALEEM and another---Respondents

Criminal Appeal No.465 of 2006, decided on 14th April, 2015.

(Against the judgment dated 11-11-2005 passed by Lahore High Court, Lahore in Criminal Appeal No.688 of 2004).

(a) Pakistan Criminal Law Amendment Act (XL of 1958)---

----S. 10(2)---Order passed by Special Judge---Appeal/revision against such order filed before the High Court---Person competent to file such appeal---Scope---Section 10(1) of Pakistan Criminal Law Amendment Act, 1958, provided that the forum for filing an appeal from the judgment of a Special Judge was the High Court and the same court had also been given powers of revision---Any aggrieved person, whether it be Federal or the Provincial Government or an accused or a complainant, could approach the High Court in appeal against either an order of conviction or acquittal or for that matter for the purpose of enhancement of a sentence passed by any Special Judge appointed under Pakistan Criminal Law Amendment Act, 1958.

Habib Bank Ltd. v. The State and 6 others 1993 SCMR 1853; Abdul Hafeez v. The State PLD 1981 SC 352 and State v. Qaim Ali Shah 1992 SCMR 2192 ref.

(b) Pakistan Criminal Law Amendment Act (XL of 1958)---

----S. 10(2)---Criminal Procedure Code (V of 1898), S.417(2-A)---Prevention of Corruption Act (II of 1947), S.5(2)---Order of acquittal passed by Special Judge, Anti-Corruption---Appeal against such acquittal filed before the High Court---Person competent to file such appeal---Scope--- Special Judge, Anti-Corruption acquitted the accused person from charges under S.5(2) of the Prevention of Corruption Act, 1947---Complainant filed appeal against such acquittal before the High Court under S.417(2-A), Cr.P.C. which was dismissed on the ground that such right of appeal was only confined to the Federal Government under S.10(2) of Pakistan Criminal Law Amendment Act, 1958, and the same could not be arrogated to the complainant on the strength of S.417(2-A), Cr.P.C.---Legality---Any aggrieved person, including a complainant, could approach the High Court in appeal against an order of acquittal passed by any Special Judge appointed under the Pakistan Criminal Law Amendment Act, 1958---Appeal was allowed accordingly and Supreme Court directed that appeal against acquittal filed by complainant before the High Court shall be treated as pending and should be disposed of at the earliest convenience.

Munir Ahmad Bhatti, Advocate Supreme Court for Appellant.

M. Inayatullah Cheema, Advocate Supreme Court for Respondent No.1.

Naveed Rasool Mirza, A.G., Pb. on Court Call.

Ch. M. Waheed, A.P.G. Pb. for the State.

Date of hearing: 14th April, 2015.

P L D 2015 Supreme Court 354

Present: Nasir-ul-Mulk, C.J., Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and Natural Resources and another---Petitioners

versus

DURRANI CERAMICS and others---Respondents

C.R.P. Nos. 335, 340 to 399 of 2014, decided on 15th April, 2015.

(On Review from the judgment of this Court dated 22-8-2014 passed in C.As. Nos.1540 to 1599 of 2013 and C.A. Nos.21 of 2014)

(a) Supreme Court Rules, 1980---

----O. XXVI---Review of Supreme Court Judgment---Scope---Second review --- Second review of a judgment of the Supreme Court was not permissible under the Supreme Court Rules, 1980.

(b) Gas Infrastructure Development Cess Act (XXI of 2011)--

----Ss. 3, 4 & Second Sched.---Constitution of Pakistan, Arts.73(4) & 188---Review petition---Gas Infrastructure Development Cess ("the Cess"), levy of---Constitutionality---Decision of Speaker of National Assembly with respect to nature of a bill being a "Money Bill"---Scope ---Supreme Court had declared in the impugned judgment under review that imposition of Gas Infrastructure Development was a fee and not as tax, therefore, it could not have been imposed through a "Money Bill"---Contention of Government that once the Speaker of National Assembly had certified that levy of cess in question was validly included in the Money Bill (implying that it was a tax and not a fee), such determination attained finality, and could not be reopened by the Supreme Court---Validity---Certificate by the Speaker of the National Assembly providing that a bill was a Money Bill would only be relevant if proceedings arose in Parliament---Such a certificate would not prevent the Court from examining whether a particular item could have validly been included in a Money Bill, and it would also not create a bar on the jurisdiction of the court to determine true nature of the levy of cess in question---Review petition was dismissed accordingly.

Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879 ref.

(c) Constitution of Pakistan---

----Art.188 & Fourth Sched., Part 1, Entry. No.51---Review petition---Entry appearing in Federal Legislative List, interpretation of---Legislative history of such an Entry, relevance of---Taxes on mineral oil, natural gas "and" minerals for use in generation of energy---Interpretation of the word "and"---Scope---Government had contended in the judgment under review that the word "and" appearing between the words 'natural gas' and 'minerals', in Entry No.51, Part 1 of the Fourth Schedule to the Constitution, should be interpreted and read as "or"---Supreme Court had declared in the judgment under review that there was no ambiguity in the interpretation of Entry No.51, Part 1 of the Fourth Schedule to the Constitution, and it should be given its ordinary meaning; that if the legislature wanted it would have used the word "or" instead of "and" in the said Entry---Validity---Words should be given their ordinary meaning unless the context otherwise required---Legislative history of an Entry appearing in the Federal Legislative List would be relevant if such Item was ambiguous---Words used in Entry No. 51, Part 1 of the Fourth Schedule to the Constitution, did not pose any difficulty in interpretation or lead to any absurdity when given their ordinary meaning---Reference to historical perspective would thus not be required to find out the true meaning of Entry No.51, Part 1 of the Fourth Schedule to the Constitution---Supreme Court maintained the construction already placed on Entry No.51, Part 1 of the Fourth Schedule to the Constitution, in the judgment under review---Review petition was dismissed accordingly.

Salman Aslam Butt, Attorney General for Pakistan and Waqar Rana, Addl. Attorney General for Pakistan for Petitioners.

Abid S. Zuberi, Advocate Supreme Court for Respondent No.4 (in CRP No.335 of 2014).

Makhdoom Ali Khan, Senior Advocate Supreme Court for Respondent No.1 (in CRP No.352 of 2014).

Sardar Muhammad Ghazi, Advocate Supreme Court for Respondent No.1 (in CRP Nos. 355 and 356 of 2014).

Date of hearing: 15th April, 2015.

P LD 2015 Supreme Court 360

Present: Mian Saqib Nisar, Ejaz Afzal Khan and Umar Ata Bandial, JJ

REGISTRAR, PESHAWAR HIGH COURT and others---Appellants

versus

SHAFIQ AHMAD TANOLI and others---Respondents

Civil Appeals Nos. 1171 to 1192 of 2013, decided on 11th May, 2015.

(On appeal from the judgment dated 26-8-2013 of the KPK Subordinate Service Tribunal, Peshawar passed in Service Appeals Nos.1, 4, 5, 7, 8, 6, 9, 10, 11, 13, 15, 16 of 2010, 2 of 2009, 1, 17, 18, 19, 20, 21, 22, 27 of 2010).

(a) High Courts (Establishment) Order (President's Order 8 of 1970)---

----Art. 3---Punjab Courts Act (XVIII of 1884) [since repealed], S.8---Punjab Courts Act (III of 1914) [since repealed], S. 8---Punjab Courts Act (VI of 1918) 'since repealed], Ss. 3 & 8---High Court of West Pakistan (Establishment) Order (G.G.O. XIX of 1955) [since repealed], Art.3---West Pakistan Civil Courts Ordinance (II of 1962), S.28(5)---Executive and Administrative work of the High Court---History of Acts/Rules regulating the executive and administrative work of the High Court since its establishment traced.

(b) Khyber Pakhtunkhwa Civil Servants Act (XVIII of 1973)---

----Ss. 5 & 8---Khyber Pakhtunkhwa Judicial Service Rules, 2001, Rr.4 & 10---High Court (Lahore) Rules and Orders, Vol. V, Chap. 10, Part A, R.1---Subordinate/District judiciary (Khyber Pakhtunkhwa)---Appointment---Determination of seniority---Statutory responsibility---Administration Committee of the (Peshawar) High Court---Chief Justice of the (Peshawar) High Court---Appointment of members of District Judiciary and determination of their seniority was a statutory responsibility, which was to be exercised by the Administration Committee of the High Court---Chief Justice of the High Court in such context could not do anything on his own---Any decision taken by the Administration Committee of the High Court (in the matter of appointment of members of District Judiciary and determination of their seniority) shall be binding on the Chief Justice of the High Court.

Qazi Muhammad Anwar, Senior Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. 1171 to 1176, 1181 to 1188 of 2013).

Farooq H. Naek, Senior Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. 1178 and 1189 of 2013).

Muhammad Munir Paracha, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. 1174 and 1186 of 2013).

Mushtaq Ali Tahir Kheli, Advocate Supreme Court and Ch. Akhtar Ali Advocate-on-Record for Appellants (in C.As. 1179, 1180, 1190 and 1192 of 2013).

Tariq Aziz, Advocate Supreme Court/Advocate-on-Record for Appellants (in C.A.1191 of 2014).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record for Respondents ((in C.As. 1173, 1174, 1177, 1179, 1180, 1182, 1183, 1186, 1187, 1189 to 1192 of 2013).

Anwar Kamal Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (in C.As. 1176 and 1188 of 2013).

Mir Adam Khan, Advocate-on-Record (in C.A.1181 of 2013).

Imran Ullah, Legal Draftsperson, P.H.C., Muhammad Saeed, Assistant Director KPK Public Service Commission for Peshawar High Court.

Date of hearing: 24th February, 2015.

P L D 2015 Supreme Court 380

Present: Mian Saqib Nisar, Sh. Azmat Saeed and Mushir Alam, JJ

GOVERNMENT OF SINDH through Secretary and Director General, Excise and Taxation and another---Appellants

versus

MUHAMMAD SHAFI and others---Respondents

Civil Appeal No.1890 of 2002, decided on 16h March, 2015.

(a) Interpretation of statutes--

----Fiscal statute --- Charging section, interpretation of --- Scope --- Charging section in a fiscal statute, demanded its strict interpretation and application in so far as the revenue was concerned, but where it was susceptible to two possible interpretations, it should be liberally construed in favour of the tax payer/citizen; particularly, where there was substantial doubt about the true import and application of a charging section---Such doubt should be resolved in favour of the tax payer/citizen.

1993 SCMR 274 and 1993 PTD 69 ref.

(b) Words and phrases---

----"Perpetuity"---Meaning.

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

----S. 107---Lease in perpetuity, meaning of---Lease in perpetuity could be held to be a transaction of immoveable property which was irreversible or non-returnable.

(d) Administration of justice--

----Action, validity of---Scope---If an act was done in violation of law, the same shall have no legal value and sanctity, especially when the conditions/circumstances which rendered such an act invalid had been expressly and positively specified in law.

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

----S. 107---Registration Act (XVI of 1908), S. 49---Lease, registration of---Non-registration of lease---Effect---No lease could be effected beyond the period of one year except by a registered instrument and if any lease was not so accomplished, it had no legal validity and sanction beyond the period of one year and would neither create nor purport to create any lease for the period exceeding one year --- On account of such clear mandate and compulsion of law, no lease which was not in consonance with such provisions (i.e. not registered) could at all be said or held to be permanent in nature under any circumstances whatsoever.

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

----S. 107---Lease in perpetuity/ permanent lease---Nature and scope---Lease deed, interpretation of---Factors relevant for ascertaining whether a lease contract was in the nature of a permanent lease/lease in perpetuity elaborated by the Supreme Court---Were the language of the lease deed made it clear that the tenancy was for a fixed period of time, even if it (the deed) contained a clause for renewal, but such renewal was left at the option of the lessor, the lease could not be held to be permanent in nature---Fact that the lessee has been allowed to raise construction over the property of a permanent nature and to even sub-let/sublease the same, specifically where the same was subject to the consent/approval of the lessor, by itself shall not be a factor for holding a lease to be one in perpetuity---For construing a contract of lease in ascertaining its permanency or not, object for which the lease had been granted shall also be germane and important---Where a lease of the property had been given by the lessor to the lessee for a particular and a specific purpose, but no time was fixed, for all intents and purposes it shall be an object specific lease, which meant that the purpose/object should be considered as the time/period fixed by the parties for the determination of the lease, and thus the moment the purpose was achieved and accomplished, the purpose shall be held to have extinguished (come to an end)---Lease which at its very inception may have been perceived to have some overtones of permanency in its nature, regardless of whether a period had been fixed or not, such lease, even if construed to be permanent on the basis of its object/purpose, shall automatically come to an end when the object of the lease was extinguished, and even if the lessee under the terms of lease had raised construction, as such structure shall either be treated as an accretion to the original leased out property and would go to the lessor or the lessor would have to compensate the lessee for such construction (but this depended upon the facts and circumstances of each case and on the basis of the terms and conditions settled between the parties)---Once the purpose of the lease was finally achieved and the purpose for which the property was leased out came to an end, the lease which might have had some colours of perpetuity at its inception shall also end with it and the lease shall then be rendered to be that of "holding over" entitling the landlord to determine/terminate the lease and ask for the vacation of the leased property.

(g) [Sindh] Urban Immoveable Property Tax Act (V of 1958)---

----Ss. 3 & 4(a) & (b)---Transfer of Property Act (IV of 1882), S. 107--- Property tax---Evacuee Trust Property Board ("Board"), property of---Lease deed, interpretation of---Lease in perpetuity---Scope---Fixed term lease with return of property to Board (lessor) upon expiry of lease---Non-exemption from property tax---Property in question, which was owned by Evacuee Trust Property Board ("Board"), was leased out to lessee for 30 years, with the option to extend the lease by another 30 years on terms and conditions laid down by the Board---Provincial Property Tax Department ("Tax department") claimed property tax on the property in question on the ground that since the lease could be further extended for a period of 30 years, thus, it was a lease in perpetuity, upon which property tax could be levied (in terms of Ss.4(a) & (b) of [Sindh] Urban Immoveable Property Tax Act, 1958---Validity---Perusal of lease deed showed that period of lease was thirty years, and on the expiry of such period the superstructure raised by the lessee was to vest with the Board without payment of any compensation whatsoever to the lessee---Such condition was quite cardinal and pivotal for determination of the nature of the lease in, in that, it was not perpetual, rather the return of the superstructure in the ownership of the Board made the lease in the nature of a Build, Operate and Transfer (BOT) contract---Only for the reason that there was a clause for renewal in the lease deed for a further period of thirty years, regardless of whether renewal had been factually granted or not, which otherwise seemed to be the exclusive privilege of the Board and lessee could not claim it as a matter of right, lease in question could not be held to be one in perpetuity---Besides, lessee was not free to raise construction at his own free will, but only with the prior approval of the Chairman of the Board---Subletting/sub-lease of the constructed property had also been subjected to the approval of the concerned Administrator of the Board and in any case, such sub-lease could not travel beyond the period of thirty years i.e. the original lease period---Rights of the lessee had been restricted in that, he was not allowed to either mortgage or alienate or encumber the leased out property---Moreover, it was clearly and unequivocally stipulated in the lease deed that breach of any of the conditions of the lease shall make the lease liable to be cancelled at the prerogative of the lessor and the lessor shall have authority to evict the lessee---When all said stipulations of the lease deed were read as a whole, they militated against the concept of lease in perpetuity---Supreme Court directed that since lease in question was not in perpetuity, therefore, the Tax department had no lawful authority to demand/levy property tax from the lessee in term of Ss.4(a) & (b) of [Sindh] Urban Immoveable Property Tax Act, 1958---Supreme Court observed that present opinion (judgment) shall neither apply nor be relevant for the grants and the leases pertaining to and made in the cantonment areas, or border areas etc., as the court did not have the privilege and advantage of examining such transactions and the relevant law, the rules and the policies applicable thereto under which those (leases) had been given---Appeal was dismissed accordingly.

Qasim Mirjatt, Addl. A.G. Sindh for Appellants.

M. Bilal, Senior Advocate Supreme Court for Respondent No.1.

Mian Qamar-uz-Zaman, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.3.

Date of hearing: 16th March, 2015.

P L D 2015 Supreme Court 396

Present: Mian Saqib Nisar, Mushir Alam and Maqbool Baqar, JJ

HINA MANZOOR---Appellant

versus

Malik IBRAR AHMED and others---Respondents

Civil Appeal No.319 of 2014, decided on 28th April, 2015.

(Against the judgment dated 5-12-2013 of the Election Tribunal, Rawalpindi passed in E.P. No.257/2013/RWP/12/2013).

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

----Ss. 55(3) & 3(a)---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Verification---Fresh memo of petition---Election Tribunal dismissed election petition on the ground that it did not contain verification as laid down in Civil Procedure Code, 1908, though the candidate had filed fresh memo of petition subsequently---Validity---Merely affixing signature at the foot of election petition and/or under its verification clause, without the same being attested/verified by Oath Commissioner, or some other authorized person by itself, did not meet the requirement of verification as prescribed by O.VI, R.15, C.P.C. and rendered the petition non-compliant with the provisions of S.55(3) of Representation of the People Act, 1976, essentially entailing its dismissal in terms of S.63(a) of Representation of the People Act, 1976---In suitable cases where amendment sought was necessary for the purposes of determining real issue, the bar of limitation could be overlooked---Amendment, making up of lacuna, sought to be allowed could not be considered to be an amendment necessary for adjudication of controversy/allegation pertaining to rigging and corrupt practices in election process---Election petition suffered with inherent defect of non-compliance of S.55(3) of Representation of the People Act, 1976, the candidate could not be allowed to circumvent purpose of law in the manner sought by him---Supreme Court declined to interfere in the judgment passed by Election Tribunal dismissing election petition filed by candidate---Appeal was dismissed.

Engr. Iqbal Zafar Jhagra and others v. Khalil-ur-Rehman and 4 others 2000 SCMR 250 and Zia-ur-Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 rel.

Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600 and Malik Umar Aslam v. Sumaira Malik and others PLD 2007 SC 362 ref.

Muhammad Munir Paracha, Advocate Supreme Court for Appellant.

M. Rafique Rajwana, Advocate Supreme Court for Respondent No.1.

Date of hearing: 28th April, 2015.

P L D 2015 Supreme Court 401

Present: Nasir-ul-Mulk, C.J., Jawwad S. Khawaja, Anwar Zaheer Jamali, Mian Saqib Nisar, Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Amir Hani Muslim, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Gulzar Ahmed, Sh. Azmat Saeed, Iqbal Hameedur Rahman, Mushir Alam, Dost Muhammad Khan, Umar Ata Bandial, Qazi Faez Isa and Maqbool Baqar, JJ

CONSTITUTION PETITIONS NOS.12, 13, 18, 20-22, 31, 35-36, 39, 40, 42-44 OF 2010

(Petitions under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973)

AND

C.M.A. No.1859 of 2010 IN CONSTITUTION PETITION NO.40 OF 2010

(Application for Impleadment As Party)

AND

CIVIL PETITION NO.1901 OF 2010

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 16-6-2010 passed in W.P. No.1581 of 2010)

AND

H.R.C. NO. 22753-K OF 2010

(Petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973)

AND

CONSTITUTION PETITIONS NOS.99 AND 100 OF 2014

(Petitions under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973)

AND

CONSTITUTION PETITIONS NOS.2, 4 TO 13, 23-24 OF 2015

(Petitions under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973)

DISTRICT BAR ASSOCIATION, RAWALPINDI and others---Petitioners

versus

FEDERATION OF PAKISTAN and others---Respondents

Constitution Petitions Nos.12, 13, 18, 20-22, 31, 35-36, 39, 40, 42-44 of 2010, C.M.A. No. 1859 of 2010 in Constitution Petition No.40 of 2010, Civil Petition No. 1901 of 2010, H.R.C. No. 22753-K of 2010, Constitution Petitions Nos. 99, 100 of 2014 and Constitution Petitions Nos.2, 4 to 13, 23-24 of 2015, decided on 5th August, 2015.

By a majority of 14 to 3, the Constitution petitions challenging the Constitution (Eighteenth Amendment) Act (X of 2010) were dismissed, while by a majority of 11 to 6 the Constitution petitions challenging the Constitution (Twenty-first Amendment) Act (I of 2015) and the Pakistan Army (Amendment) Act (II of 2015) were dismissed.

Per Nasir-ul-Mulk, C.J; dismissing petitions against the Constitution (Eighteenth Amendment) Act (X of 2010) and Constitution (Twenty-first) Amendment Act (I of 2015).

(a) Constitution of Pakistan---

----Arts. 239(5), 239(6) & 184(3)--- Constitution (Eighteenth Amendment) Act (X of 2010), Preamble---Constitution (Twenty-first) Amendment Act (I of 2015), Preamble---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 and Constitution (Twenty-first) Amendment Act, 2015---Amendments made to the Constitution, vires of--- Basic structure of the Constitution, doctrine of---Applicability and scope of such doctrine in Pakistan---Doctrine of basic structure of the Constitution was recognized (in Pakistan) only to the extent of identifying salient or fundamental features of the Constitution---Said doctrine could not be made a ground to annul any amendment to the Constitution---Constitutional petition challenging the Constitution (Eighteenth Amendment) Act, 2010 and Constitution (Twenty-first) Amendment Act, 2015, was dismissed accordingly.

Sajjan Singh v. The State of Rajasthan AIR 1965 SC 845; Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486; State v. Zia-ur-Rahman PLD 1973 SC 49; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; Federation of Pakistan v. United Sugar Mills Ltd. Karachi PLD 1977 SC 397; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; Sabir Shah v. Federation of Pakistan PLD 1994 SC 738; Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263 and Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719 ref.

Zafar Ali Shah v. Pervez Musharraf Chief Executive of Pakistan PLD 2000 SC 869 distinguished.

(b) “Basic structure” of the Constituion, doctrine of---

----Development and applicability of doctrine of basic structure in India--- Historical perspective and analysis of the trends introduced by judgments of superior courts in India to identify the history of the struggle and conflict between the Judiciary and Parliament in India necessitating the development of the doctrine of basic structure, stated.

Golak Nath v. State of Punjab AIR 1967 SC 1643; Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461; Shankari Prasad v. Union of India AIR 1951 SC 458; Sajjan Singh v. State of Rajasthan AIR 1965 SC 845; Indira Nehru Gandhi v. Shri Raj Narain AIR 1975 SC 2299; Minerva Mills Ltd. v. Union of India AIR 1980 Supreme Court 1789; Waman Rao v. Union of India AIR 1981 SC 271; I.R. Coelho v. State of Tamil Nadu AIR 2007 SC 861; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263 and Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719 ref.

(c) Constitution of Pakistan---

----Art. 2A---Objectives Resolution---Historical role and status envisaged for the Objectives Resolution in the Constitution and its status as a ‘substantive part’ of the Constitution as interpreted by the Supreme Court of Pakistan stated.

State v. Zia-ur-Rahman PLD 1973 SC 49; Miss Asma Jilani v. Government of the Punjab PLD 1972 SC 139; Hakim Khan v. Government of Pakistan PLD 1992 SC 595; Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901 and Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 ref.

(d) Constitution of Pakistan---

----Art. 2A---Objectives Resolution, status of---Objectives Resolution as ‘substantive part’ of the Constitution---Scope---Notwithstanding the inclusion of Art. 2A in the Constitution, whereby the Objectives Resolution had been made a substantive part of the Constitution, it neither controlled other provisions of the Constitution nor could other provisions of the Constitution be struck down on the ground that they came into conflict with it---Objectives Resolution as substantive part of the Constitution could, however, be used in interpretation of other provisions of the Constitution in case of doubt.

State v. Ziaur Rahman PLD 1973 SC 49; Miss Asma Jilani v. Government of the Punjab PLD 1972 SC 139 and Hakim Khan v. Government of Pakistan PLD 1992 SC 595 ref.

(e) Constitution of Pakistan---

----Part III, Chapter 2 [Arts. 50 to 61]---Parliament, powers of---Legislative and constitutent powers---Parliament under the the Constitutional structure of Pakistan had both legislative and constitutent powers---No divide between ‘legislative powers’ and ‘constituent powers’ existed in the Constitution.

Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263 and Dewan Textile Mills Ltd. v. Pakistan and others PLD 1976 Kar. 1368 ref.

(f) Constitution of Pakistan---

----Arts. 239(5), (6) & 184(3)---Amendment to the Constitution---‘Political mandate’ of Parliament to make Constitutional amendment---‘Political question’---Exercise of restraint by superior courts---Any determination of the existence or otherwise by the courts of the political mandate of the Parliament to make amendments to the Constitution would be entering the ‘political thicket’, and it would be wise for the Courts to leave determination of such question to the people rather than engaging in it as it was purely a ‘political question’.

State v. Zia-ur-Rahman PLD 1973 SC 49 and Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719 ref.

(g) Constitution of Pakistan---

----Arts. 2A, 239(5), 239(6) & 184(3)---Objectives Resolution---Amendment to the Constitution, annulment of---Grounds---Objectives Resolution could not be made a ground to annul any amendments to the Constitution.

(h) Constitution of Pakistan---

----Arts. 8(2), 178, 184(3), 239(5), (6) & Part II, Chapter 1 [Arts. 8 to 28]---Amendment to the Constitution---Ouster of jurisdiction of the Supreme Court to strike down Constitutional amendment---Scope---Supreme Court acting under its original jurisdiction under Art.184(3) of the Constitution could not strike down Constitutional amendments, even if same violated any of the Fundamental Rights in the Constitution---Principles. [Minority view]

Following are the principles in relation to ouster of jurisdiction of the Supreme Court to strike down a Constitutional amendment.

Supreme Court acting under its original jurisdiction under Article 184(3) of the Constitution could not strike down Constitutional amendments as they were not ‘law’ within the meaning of Article 8(2) of the Constitution. Constitutional amendment was not in the nature of the making of ordinary law as a difference had been maintained in the Constitution between making of law and amendment of the Constitution.Powers conferred on the Supreme Court under Article 184(3) of the Constitution could not be exercised to strike down any amendment in the Constitution even if it violated any of the Fundamental Rights in the Constitution. Such power had not been conferred on the courts even by any other provision of the Constitution. Article 239(5) of the Constitution in no ambiguous terms ousted the jurisdiction of all courts to call into question any amendment to the Constitution. No limitations, express or implied existed on the powers of the Parliament to amend the Constitution and the amendments brought about in exercise of such power were not liable to be challenged on any ground whatsoever before any court. Constitutional duty of a judge undertaken by him in his Oath of Office was to preserve, protect and defend the Constitution, which would include amendments in the Constitution. No judge, bound by his Oath, could arrogate to himself jurisdiction which had not been granted or conferred by the Constitution. Courts could not exercise jurisdiction not vested in them by the Constitution so as to place any limitation upon the powers of the Parliament to amend the Constitution. As jurisdiction of the Court had been clearly ousted from reviewing any amendments made by the Parliament to the Constitution, Courts could not assume such jurisdiction upon themselves by relying on any academic theories, doctrines or any other means of construing meaning of the Constitution.

Mr. Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486 and Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263 ref.

(i) Interpretation of statues/Constitution---

----Extrinsic aid in interpretation, use of---Scope---Principle of construction of statutory and Constitutional law was that in case the language was clear, no outside or extrinsic aid could be brought to determine their meaning.

Federation of Pakistan v. Durrani Ceramics 2014 SCMR 1630 and Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources v. Durrani Ceramics PLD 2015 SC 354 ref.

(j) Constitution of Pakistan---

----Art. 75(3)---General Clauses Act (X of 1897), S. 5(3)---Act of Parliament---Date of commencement---Assent of the President---After a Bill had become law or an Act, unless the Legislature intended otherwise, the Act shall come into force from the start of the day when Presidential Assent was given to it.

Mst. Ummatullah v. Province of Sindh PLD 2010 Kar. 236 and Khalid M. Ishaque v. Chief Justice and The Judges of the High Court of West Pakistan, Lahore PLD 1966 SC 628 ref.

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

----Preamble---Constitutional provisions, interpretation of---Provisions of the General Clauses Act, 1897, could not be applied to construe provisions of the Constitution.

Government of Punjab v. Ziaullah Khan 1992 SCMR 692 and Muhammad Arif v.The State 1993 SCMR 1589 ref.

(l) Constitution of Pakistan---

----Arts. 75(3) & 238---General Clauses Act (X of 1897), S. 5(3)---Amendment to the Constitution---Date of commencement---Assent of the President---General rules regarding coming into force or enforcement of a law or Act (as contained in the General Clauses Act, 1897) did not apply to a Constitutional amendment, thus, the latter became part of the Constitution and came into force the moment Presidential assent was given to it, unless a different intention had been clearly expressed by the Parliament---Moment the Bill amending the Constitution received the assent of the President as provided under the Constitution, the amendment became an integral part of the Constitution.

Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263 ref.

(m) Pakistan Army (Amendment) Act (II of 2015)---

----Preamble---Constitution (Twenty-first) Amendment Act (I of 2015), Preamble---Constitution of Pakistan, Arts. 75(3) & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015---Contention that Pakistan Army (Amendment) Act, 2015, did not enjoy Constitutional protection as it was assented to by the President later in time than the Constitution (Twenty-first) Amendment Act, 2015---Validity---After their introduction into the National Assembly the Constitution (Twenty-first) Amendment Bill, 2015, was numbered as Act No. I of 2015, while the Pakistan Army (Amendment) Bill, 2015, was numbered as Act No. II of 2015---Both the Bills were passed by the National Assembly after reading and voting on them had taken place simultaneously---Said two bills were then transmitted to the Senate where they were passed in the same sitting---Record of proceedings of Senate showed that Pakistan Army (Amendment) Bill, 2015, was passed by the Parliament at 5-00 p.m. while the Constitution (Twenty-first) Amendment Bill, 2015, was passed at 5-40 p.m.---Since Pakistan Army (Amendment) Bill, 2015, was passed prior in time to the Constitution (Twenty-first) Amendment Bill, 2015, it could be assumed that they were placed for assent before the President in the same order---Even otherwise the Parliamentarians were conscious that they were according Constitutional protection to the amendments that were being made in the Pakistan Army Act, 1952 by way of Pakistan Army (Amendment) Bill, 2015---President had signed both the Bills when they were presented to him in the same sitting, thus, it could not be determined as to which Bill was signed by him first---In any case, it does not conclusively follow from the sequence of the assignment of numbers to the Bills that the President gave his assent to the Bills in accordance with their numbers---Contention against Constitutional protection of Pakistan Army (Amendment) Act (II of 2015) was dismissed in circumstances---Constitutional petition was dismissed accordingly.

(n) Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)]---

----Ss. 2 & 20---Constitution (Twenty-first) Amendment Act (I of 2015), Ss. 2, 3 & Preamble---Constitution of Pakistan, Art. 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015---Trial before Military Courts---Order/sentence passed by Military Courts---Judicial review by the Supreme Court---Scope---Decision to select and refer the case of any accused for trial under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, and any order passed or decision taken or sentence awarded in such trial shall be subject to judicial review on the grounds of coram non judice, being without jurisdiction or suffering from mala fide---Constitutional petition challenging the Constitution (Twenty-first) Amendment Act, 2015, was dismissed accordingly.

Per Jawwad S. Khawaja, J; striking down certain provisions of the Constitution (Eighteenth Amendment) Act (X of 2010); agreeing with the Minority view of Qazi Faez Isa, J., in respect of Constitution (Twenty-first) Amendment Act (I of 2015) and Pakistan Army (Amendment) Act (II of 2015) by holding that the said Amendments were liable to be struck down.

(o) Constitution of Pakistan---

----Arts. 238, 239(5), 239(6) & Preamble---Parliamentary sovereignty, principle of---Non-applicability of such principle in Pakistan---Powers of Parliament to amend the Constitution, limitations on---Jurisdiction of the Supreme Court to strike down a Constitutional amendment---Scope---Constitution of Pakistan did not state that Parliament enjoyed supremacy over the Constitution itself---In fact quite the contrary was established in that the supremacy of the Constitution over all State organs had to be recognized---Parliament was a subordinate instrumentality of the people, created by them to subserve and implement their will---Parliament was not sovereign as its power to amend the Constitution was constrained by limitations which were clear from the reading of the Constitution as a whole---Such limitations were not only political but were subject to judicial review and, as a consequence, the Supreme Court had the power to strike down a Constitutional amendment which transgressed such limits---Principles.

Following are the principles in relation to the non-applicability of the doctrine of Parliamentary sovereignty in Pakistan, and the power of the Supreme Court to strike down a Constitutional amendment.

According to Articles 239(5) & (6) of the Constitution, “[no] amendment of the Constitution shall be called in question in any court on any ground whatsoever” and that “there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.” Article 239 of the Constitution, however, had to be read as being one small cog in the Constitutional machinery and had little significance as a stand-alone provision. Articles 239(5) & (6) of the Constitution had to be reconciled with the rest of the Constitutional provisions which provided for, amongst other things, guarantees of due process, Fundamental Rights, observance of the principles of democracy, safeguarding the legitimate interests of the minorities and independence of the Judiciary which had been expressed by the people with a degree of clarity.

Munir Bhatti v. The Federation PLD 2011 SC 407 ref.

Articles 239(5) & (6) of the Constitution had dubious provenance, as they were not part of the Constitution as originally framed. These provisions were thrust in the Constitution by a military dictator, in 1985 through an undemocratic and dictatorial process which did not inspire the same kind of legitimacy as the process which culminated in the framing of the original Constitution.

Mahmood Khan Achakzai v. Fderation of Pakistan PLD 1997 SC 426 ref.

Doctrine of Parliamentary Sovereignty did not apply in Pakistan. This was on account of at least two reasons: firstly, this was due to the long-standing difference between the Constitutional contexts (of Pakistan and Britain) and even more significantly the fact that Parliamentary sovereignty did not match with the aspirations of the people of Pakistan who had, through their struggle, replaced it with the notion of the supremacy of the “will of the people” as crystallized in the written Constitution of Pakistan. Aspects of the system of Parliamentary sovereignty in Britain differentiated it from the Constitutional dispensation defining the powers of Parliament in Pakistan. Sovereignty of the Parliament in Britain, as described by A.V. Dicey may be a fundamental feature of the British Constitution but it had no room and little relevance in the jurisprudence of Pakistan other than to highlight the contrast between the legal systems prevalent in the two countries.

Muhammad Azhar Siddique v. Federation of Pakistan PLD 2012 SC 774 and Dewan Textile Mills Ltd. v. Pakistan PLD 1976 Kar. 1368 not approved.

Provisions in the Preamble to the Constitution of Pakistan clearly demonstrated that the amending power delegated as a grant to the chosen representatives was coupled with express directives which circumscribed the extent of the Parliamentary power under Articles 238 and 239 of the Constitution. Thus the amending power exercisable by Parliament as grantee under the said Articles, could only be invoked in obedience to the Will of the people and subject to their command as set out in the Constitutional Preamble. Stipulations commanded by the people (of Pakistan) had to be secured by the organs and functionaries of the State as a bounden duty. It was this fiduciary obligation which operated as a constraint on Parliament. Language used in Article 239(5) & (6) of the Constitution could only be read in a manner which recognized the fiduciary (and, therefore, subordinate) status of Parliament having derivative powers only, granted by the people of Pakistan.

In a responsible democratic polity, public opinion and free elections did act as checks on Parliament, however, this did not mean that the Constitution itself did not provide judicially enforceable limits on the powers of Parliament. To identify such limits was to recognise the status of the Judiciary. To deny the existence of such limits and to clothe Parliament with ‘sovereignty’ and absolute supremacy over other State organs, would amount to creating a supra-Constitutional Parliament capable even of destroying the Constitution which created it. If Parliament was permitted to act thus, it would not, fall under the ambit of any judicial principle; it would amount to an abdication of judiciary’s Constitutional duty.

In Pakistan’s Constitutional dispensation, the duty of the judiciary was to protect the Constitution as the embodiment of the Will of the people. Failing to do so would deny the role for which Courts had been created. This important consideration must be factored into the role of courts and judges while interpreting the Constitution. There was no Constitutional basis for any extraordinary deference being shown to Parliament if in the process, Parliament was to be made free of any checks and constraints which the Constitution imposed on it. Powers vested in and exercisable by Courts were not a matter of Parliamentary grace or sufferance, but were granted to protect the people against excesses, inter alia, of State organs and functionaries. As such these powers were to be guarded vigilantly against erosion and encroachment because the same were a grant of the Constitution for an important fiduciary purpose. People who had granted the powers retained primacy in the Constitutional scheme of Pakistan. Acknowledging the supremacy of the people, was very different from saying that Parliament was unfettered and could encroach on or reduce such powers granted to courts, under the guise of amending the Constitution.

Realities of the political process in Pakistan were grim, which cast doubt upon the inherent checks and mechanisms of the political process for self-correction making judicial review of Constitutional amendments redundant.

People, who were the originators of the Constitution, must remain its owners; it would not be justifiable if the representatives of the people who were entrusted with the Constitution and were deputed to preserve, protect and defend the same, were allowed without restraint to make any and all changes in the Constitution. Supreme Court, thus, had the power to judicially review a Constitutional amendment passed by Parliament.

(p) Interpretation of Constitution---

----Reading of the Constitution as an ‘organic whole’---Scope---No provision of the Constitution could be interpreted in isolation---Constitution had to be read organically and holistically---Individual Articles or clauses of the Constitution, if read in isolation from the rest of the Constitution, may mislead the reader because the meaning of the Constitution was to be gathered from the Constitution as an integrated whole, not as a mechanical deduction, but based on reason---Constitution had to be read as an ‘organic whole’.

Munir Bhatti v. The Federation PLD 2011 SC 407 ref.

(q) Words and phrases---

----“Amendment”---Meaning.

Raghunathrao Ganpatrao v. Union of India AIR 1993 SC 1267 ref.

(r) “Parliamentary sovereignty”, principle of---

----Meaning---Principle of Parliamentary sovereignty as historically understood and applied in Britain and erosion of its Constitutional relevance in recent times stated.

Jackson v. Attorney General [2005] UKHL 56 ref.

(s) Constitution of Pakistan---

----Preamble---Interpretation of Constitution of Pakistan---Tools of interpretation---Constitutions of foreign countries, relevance of---Any reading of the Constitution of Pakistan must be firmly grounded in Pakistan’s historical facts and Constitutional text and not on the irrelevant historical facts of foreign countries.

(t) Constitution of Pakistan---

----Arts. 239(5), (6) & 184(3)---Constitution (Eighteenth Amendment) Act (X of 2010), Preamble---Constitution (Twenty-first) Amendment Act (I of 2015), Preamble---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 and Constitution (Twenty-first) Amendment Act, 2015---Amendment to the Constitution---Basic structure of the Constitution, doctrine of---Meaning---Irrelevancy of the basic structure doctrine in the Constitutional context of Pakistan---Basic structure doctrine stated that the power of the Parliament to amend the Constitution did not extend to altering some fundamental features (the basic structure) of the Constitution and if an amendment was in conflict with such basic structure, it could and must be struck down---Basic structure doctrine which took root in an alien soil (Indian jurisdiction) under a distinctly different Constitution, needed serious critical examination before being pressed into use in aid of Constitutional interpretation in Pakistan---Any grafting of an alien concept onto our body politic was as likely to be rejected as an alien organ transplanted in a human body---Constitutional petition challenging the Constitution (Eighteenth Amendment) Act, 2010 and Constitution (Twenty-first) Amendment Act, 2015, on the basis of the basic structure doctrine was dismissed accordingly.

Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 ref.

(u) “Basic structure” of the Constitution, doctrine of---

----Critiques of the basic structure theory within the Indian jurisdiction stated.

Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 ref.

(v) Constitution of Pakistan---

----Preamble---Scope and significance---Preamble to the Constitution was a charter comprising nine commands ordained by the people of Pakistan for all instrumentalities of the State, including the Parliament and the Judiciary---Preamble acted as the ‘key’ to one’s understanding of the Constitution in terms of defining the legal relationship between the people, the State and the chosen representatives of the people---Preamble to the Constitution could be seen as the embodiment of the nation’s social contract in outline; the architectural plan and mould which the people of Pakistan gave to their representatives in the National Assembly for the ‘order’ which they had chosen to construct for themselves, the State and its institutions---Relationship of the people with their instrumentalities was clearly contained in the Preamble to the Constitution.

(w) Constitution of Pakistan---

----Arts. 239(5), 239(6), 184(3) & Preamble---Amendment to the Constitution, vires of---Preamble to the Constitution of Pakistan provided a ground for the Supreme Court to examine and/or strike down any amendment made to the Constitution by the Parliament---Principles.

Following are the principles in relation to the power of the Supreme Court to examine/strike down a Constitutional amendment on the basis of the Preamble to the Constitution.

Language of the Preamble to the Constitution of Pakistan made it clear that Parliament being a grantee of authority was a fiduciary of the people of Pakistan who were the source of temporal power in the country, and Parliament could exercise only such authority as was delegated to it. Such authority being a grant of the Constitution, by definition, could not be untrammeled. Preamble to the Constitution recorded and reflected the extent of such delegation by giving nine different commands. People had given to Parliament the power to make laws for the fulfillment of their directives stated in the Preamble. Just like any delegate could not exceed the terms of his grant, Parliament did not have the power to make any lawful amendments to the Constitution that manifestly defied any of the commands contained in the Preamble. If such amendments were indeed made, it would then be the duty of the judiciary to strike them down so as to ensure that the will of the people embodied in the Constitution prevailed over that of one of the instrumentalities of the people viz Parliament.

Preamble being the cornerstone of Pakistan’s legal edifice or the key to its understanding, it could not be reduced to the status of meaningless verbiage which was what necessarily would happen if it was held that Parliament had an absolute, unfettered and limitless power to change the Constitution, regardless of the commands in the Preamble.

(x) Constitution of Pakistan---

----Preamble---Comparison and distinction between the Preamble to the Constitution of Pakistan and Constitutional Preambles of United States of America and India stated.

(y) Words and phrases---

----“Representatives”---Meaning and connotation.

Black’s Law Dictionary (8th Edition); The Shorter Oxford English Dictionary (3rd Edition) and Webster’s Unabridged Dictionary (2nd Edition) ref.

(z) Constitution of Pakistan---

----Art. 51(1) & Preamble---‘Representatives’ of people---Members of Parliament---Fiduciary duties---Scope---Members of Parliament held their office in a representative capacity only, with all the limitations which inhered in such representative capacity---Elected members in Parliament were only the representatives of the people and acted in a fiduciary capacity towards the people of Pakistan---Constitution imposed a bar on Parliament and Parliamentarians from acting as free agents unconstrained by their Constitutional status as fiduciaries of the people limited by the terms of their grant---Principles.

Following are the principles in relation to the fiduciary status and duties of members of Parliament as representatives of the people of Pakistan.

Wherever a person was placed in a position where he exercised powers on behalf of others, and whereby the interests of such others were represented, the former was said to be acting as a fiduciary for such others. Members of Parliament held their office in a representative capacity only, with all the limitations which inhered in such representative capacity. Representative who was a grantee of certain powers could not disobey the grantor or dislodge the grantor. Whatever the Members of Parliament did in their capacity of chosen representatives, affected the rights and interests of the people they represented, in matters relating to governance. Representatives of the people of Pakistan were meant to be single mindedly loyal to the people of Pakistan. Such loyalty could only be manifested if, in obedience to the command of the people, these representatives of the people, fully abided by and ensured fulfillment of such command. This was a necessary and inextricable incident of being a representative of the people of Pakistan.

Suo Motu case No. 10 of 2009 2010 SCMR 885; Bristol and West BS v. Mothew 1996 (4) AER 698; Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923 and SEC v. Chenary Corpn. 518 US 80 (1943) ref.

Constitution imposed a bar on Parliament and Parliamentarians from acting as free agents unconstrained by their Constitutional status as fiduciaries of the people limited by the terms of their grant.

(aa) Constitution of Pakistan---

----Preamble---Constitutional provisions, interpretation of---Tools of interpretation---Doctrines, theories and philosophies of Constitutional law from foreign jurisdictions, relevance of---Such doctrines, theories and philosophies required serious critical examination before being pressed into use in Pakistan, because legal theory and Constitutional construction must spring from one’s own experience and historical context---One was likely to keep groping and floundering if he continued searching for answers to one’s Constitutional conundrums in models constructed in different political climes by philosophers and political scientists who were products of their own times and social conditions.

(bb) Constitution (Eighteenth Amendment) Act (X of 2010)---

----Ss. 16(6)(c), 16(6)(e), 22, 67, 68, 69 & 74---Constitution (Nineteenth Amendment) Act, (I of 2011), S. 4---Constitution of Pakistan, Arts. 51(6)(c), (e), 63A(1)(b)(iii), 175A & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Judicial review of Eighteenth Amendment---Inclusion of Parliamentary Committee in the process of appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court [Art. 175A of the Constitution]---Leaders/heads of political parties influencing party members in Parliament from voting on a Constitutional amendments [Art. 63A of the Constitution]---Non-Muslim/minority members of Parliament selected by political parties in proportion to the number of seats won by each party in the general election [Art. 51 of the Constitution]---Constitutionality---Eighteenth Amendment to the Constituion, as further amended by the Nineteenth Amendment to the extent of inclusion of Parliamentary Committee in the process of appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court did not transgress the limitations of Parliamentary power to amend the Constitution, hence, Art. 175A of the Constitution was not liable to be struck down [Majority view]---Addition of the words “or a Constitution (Amendment) Bill” in Art. 63A(1)(b) of the Constitution by the Eighteenth Amendment with the effect of allowing leaders of political parties to un-seat a member of the party in Parliament on ground of voting or abstaining from voting in the Parliament in relation to a ‘Constitution (Amendment) Bill’ contrary to any direction issued by the party leader or party to which he belonged, were liable to set aside---Aspects of the Eighteenth Amendment which amended parts of Art. 51 of the Constitution with the effect that major parties would chose and select the minority members for seats reserved for them in Parliament, and there would be no election for such reserved seats, were also liable to be set aside [Minority view]---Detailed reasons stated.

Following are the reasons for upholding the process of appointment of judges of superior courts provided under Article 175A of the Constitution [as added by the Eighteenth Amendment and subsequently amended by the Nineteenth Amendment], and for setting-aside changes made in Articles 63A and 51 of the Constitution by the Eighteenth Amendment.

Parliamentary Committee constituted under Article 175A of the Constitution was not in breach of the principle of trichotomy of powers and did not infringe the independence of the Judiciary. Inclusion of eight members of the Parliamentary Committee (separate from the Judicial Commission) in the process of appointment of Judges of the High Court and the Supreme Court was per se not contrary to the notion of the independence of the judiciary. Involvement of persons outside the Judicial Commission, in the process of appointment of Judges was not contrary to the independence of the Judiciary. Adequate safeguards were present in the amended Article 175A of the Constitution which ensured that the independence of the judiciary was fully secured. Parliamentary Committee had ensured that it took decisions objectively which were justiceable and had to stand the test of judicial review. Elements of the previous system of appointment of Judges involving the Chief Justice of Pakistan and the executive appointing authority namely, the President on the advice of the Prime Minister in appointing Judges had now been retained (in Article 175A of the Constitution) but in an expanded form. Decision making process had been diffused over a collegium comprising of the persons forming part of the Judicial Commission. These persons now included, apart from the members of the judiciary, the Law Ministers of the Federation and the Province concerned as well as the members nominated by the Pakistan Bar Council and the Bar Council of the Province concerned. Article 175A of the Constitution, as added by Eighteenth Amendment and subsequently amended by the Nineteenth Amendment to the Constitution, did not adversely affect the independence of the judiciary and was not violative of the peoples’ directive that such independence shall be fully secured.

Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407 and Federation of Pakistan v. Munir Hussain Bhatti PLD 2011 SC 752 ref.

In line with the aspirations reflected in the Preamble to the Constitution, it was the chosen representatives of the people sitting in Parliament who were to preserve, protect and defend the Constitution. Representatives had to perform the function of amending the Constitution and in doing so they had to rise above personal interests and inclinations in line with their Oath, to protect, preserve and defend the Constitution. Parliamentarian, in matters of Constitutional amendments was the chosen representative of the people and not a representative of a political party or a Party Head. Addition of the words “or a Constitution (Amendment) Bill” in Article 63A(1)(b)(iii) of the Constitution by way of Eighteenth Amendment did not advance the principles of democracy and in fact constituted a Constitutionally mandated pressure on a Parliamentarian to vote on an amendment Bill in accordance with party lines and not in accordance with his Oath and his fiduciary duty as a chosen representative of the people. When voting on a Constitutional amendment, every Parliamentarian must search deeply into his own conscience and ensure that he did not become a party to its erosion or destruction. This was a fiduciary obligation of a Parliamentarian in addition to being a term of his Oath of Office. Such discretionary responsibility could not be delegated by a fiduciary nor could it be allowed to be clouded by any external influence. In making his decision (on a Constitutional amendment), a Parliamentarian could not allow party considerations to bear influence on him. Another important aspect of the changes in Article 63A of the Constitution brought about by the Eighteenth Amendment was that a party head, who now wielded influence over a Parliamentarian, may not be a member of Parliament or he may in fact be ineligible to be elected to Parliament; yet he may be able to exert influence on the content of the Constitution. Individual elected members of Parliament, and in particular those of the National Assembly, had the best claim to being considered “the chosen representatives of the people of Pakistan”. Preamble to the Constitution asserted that it was these representative who shall possess the power to amend the Constitution and none else. Leaders of political parties, need not be elected or chosen by the people, thus an amendment which put the directly chosen representatives of the people under Constitutionally permitted influence of persons outside (or even inside) Parliament could not be seen as furthering the principles of Parliamentary democracy. Parliamentary elections were governed through a rigorous procedure laid down in the Representation of People Act, 1976, conducted and overseen by a Constitutionally-protected Election Commission, while the election of party heads, were much less rigorously democratic or transparent as these were not conducted or overseen by the Election Commission or by any independent body outside the party. Prior to the Eighteenth Amendment, every political party was obliged to hold intra party elections to elect its office-bearers and party leaders as a Constitutional obligation. Such requirement had been done away with and as a result intra party elections were no longer required by the Constitution. Such erosion of popular legitimacy of a party leader had, therefore, been made even more questionable than before. Granting to such political leader the ability to cast a shadow on the Constitution flew in the face of the command that “the State shall exercise its powers and authority through the chosen representatives of the People”. Words “or a Constitution (Amendment) Bill”, added to Article 63A(1)(b)(iii) of the Constitution by the Eighteenth Amendment, constituted a breach of the duty cast on a Parliamentarian as the chosen representative of the people, thus said words were liable to be struck down.

Articles 51(6)(c) & (e) of the Constitution as amended by Eighteenth Amendment, left members of the minorities with no ability either to participate in elections for Parliament or even to offer themselves for such election because there was in fact no election at all. Changes made in Article 51 of the Constitution through the Eighteenth Amendment were such that at the time of election, a member of a minority whose name appeared on the electoral roll would have no choice to fill the seats reserved for non-Muslims or to offer himself for election. Such scheme introduced in the Constitution did not conform to any of the principles of democracy which would allow the minorities to choose their own representatives. Instead the major parties would choose the minority members and there would be no election to the seats reserved for minorities; there would be a selection of members instead, and that too which was not made by the minority community. In view of the changes made to Article 51 of the Constitution by the Eighteenth Amendment, it would not be unreasonable to state that new arrangement could be used by the political parties to introduce such people in the National Assembly who would work under the command of political parties. In fact the new system would open floodgates of exploitation of such representatives and the ultimate effect would be non-representation of the minorities in the National Assembly. Provisions of the Eighteenth Amendment which made changes to Article 51 of the Constitution were liable to be struck down and Parliament may substitute said provisions if it so choose, by such provisions which recognized the high degree of importance given to minorities and to the principles of democracy.

Per Sh. Azmat Saeed, J; dismissing petitions against Constitution (Eighteenth Amendment) Act (X of 2010) and Constitution (Twenty-first) Amendment Act (I of 2015); Anwar Zaheer Jamali, Sarmad Jalal Osmany, Amir Hani Muslim, Gulzar Ahmed, Mushir Alam, Umar Ata Bandial, and Maqbool Baqar, JJ. agreeing.

(dd) “Basic structure” of the Constitution, doctrine of---

----Amendment to the Constitution, limitation on---Survey of case-law from the Indian jurisdiction on the doctrine of “basic structure’ limiting the powers of Parliament to amend certain salient features of the Constitution provided.

Sankari Prasad v. Union of India AIR 1951 SC 458; Sajjan Singh v. State of Rajasthan AIR 1965 SC 845; Golak Nath v. State of Punjab AIR 1967 SC 1643; Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461; Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299; Minerva Mills Limited v. Union of India AIR 1980 SC 1789; Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. AIR 1983 SC 239; Shri Raghunathrao Ganpatrao v. Union of India AIR 1993 SC 1267; AR Kelu v. State of Tamil Nadu AIR 2007 SC 861 and State of West Bengal v. Committee for Protection of Democratic Rights AIR 2010 SC 1467 ref.

(ee) Constitution of Pakistan---

----Preamble---‘Salient features’ of the Constitution of Pakistan---Scope---Constitution of Pakistan had certain ‘Salient features’---Constitution of Pakistan was not a bunch of random provisions cobbled together but there was an inherent integrity and scheme to the Constitution evidenced by certain fundamental provisions, which were its ‘Salient Features’---Prominent characteristics, which defined the Constitution and were its Salient Features included Democracy, Federalism, Parliamentary Form of Government blended with the Islamic Provisions, Independence of Judiciary, Fundamental Rights, Equality, Justice and Fair Play, Protection and Preservation of the Rights of Minorities, both as equal citizens of Pakistan and as minorities etc.

Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486; State v. Zia-ur-Rahman PLD 1973 SC 49; Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719 and Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869 ref.

(ff) Interpretation of Constitution---

----Harmonious and wholistic interpretation of the Constitution was necessary.

Construction of Statutes by Earl T. Crawford; Al-Jehad Trust through Raees-ul-Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Fazal Dad v. Col. (Retd) Ghulam Muhammad Malik and others PLD 2007 SC 571; Kamaluddin Qureshi and others v. Ali International Co., and others PLD 2009 SC 367; “Regarding Pensionary Benefits of the Judges of Superior Courts from the date of their Respective Retirements, Irrespective of their Length of Service as such Judges PLD 2013 SC 829; Reference by the President of Pakistan under Article 186 of the Constitution of the Islamic Republic of Pakistan, 1973 PLD 2013 SC 279; Reference by the President of Pakistan under Article 162 of the Constitution of the Islamic Republic of Pakistan PLD 1957 SC 219; Aftab Shahban Mirani and others v. Muhammad Ibrahim and others PLD 2008 SC 779; Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254; Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263; Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 308 and PLD 2011 SC 407 ref.

(gg) Constitution of Pakistan---

----Part III, Chapter 2 [Arts. 50 to 89]---Parliament in Pakistan, sovereignty of---Scope and limitations---Parliament in Pakistan was not completely sovereign---Legislature did not possess the powers of omnipotence---Parliament too was a creature of the Constitution and had only such powers as may be conferred upon it by the said instrument.

State v. Zia-ur-Rahman PLD 1973 SC 49 ref.

(hh) Constitution of Pakistan---

----Arts. 238, 239(5), 239(6) & Part II, Chapter 1 [Arts. 8 to 28]---Power of Parliament to amend the Constitution---Implied restrictions---Scope---Salient features of the Constitution---Implied restrictions existed upon the Parliament to amend the Constitution so as to substantively alter, repeal or abrogate its salient features---Word “Amendment” as used in Arts. 238 & 239 of the Constitution had a restricted meaning---As long as the amendment had the effect of correcting or improving the Constitution and not of repealing or abrogating the Constitution or any of its salient features or substantively altering the same, it could not be called into question---Implied limitation upon the power of the Parliament to amend the salient features of the Constitution did not imply that such salient features, were forbidden fruit in respect whereof the Parliament could not exercise its amendatory powers---Factually and legally what was prohibited, was for the Parliament to repeal or abrogate the salient features of the Constitution or substantively alter i.e. to significantly affect its essential nature.

Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719 and Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869 ref.

(ii) Judgment---

----Short order/order of the court---Scope---Short order/order of the court was in fact the judgment of the Court and was valid even in the absence of supporting reasons.

The State v. Asif Adil and others 1997 SCMR 209; Accountant General Sindh and others v. Ahmed Ali U. Qureshi PLD 2008 SC 522 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan and others PLD 2010 SC 61 ref.

(jj) Words and phrases---

----“Amendment”---Definition and meaning.

Abdul Muktadar and another v. District and Sessions Judge, Jhang and 2 others 2010 SCMR 194; Corpus Juris Secundum, Volume 3A; P Ramanatha Aiyar’s Concise Law Dictionary with Legal Maxims, Latin Terms, and Words and Phrases, Fourth Edition 2012 and Black’s Law Dictionary, Ninth Edition ref.

(kk) Words and phrases---

----“Political question”---Definition.

Ballentines Law Dictionary and Corpus Juris Secundum, Vol.16 ref.

(ll) Constitution of Pakistan---

----Art. 184(3)---Constitutional petition before the Supreme Court raising a ‘political question’---Maintainability---‘Political question’, doctrine of---Scope---Doctrine of ‘political question’ was based on the trichotomy of powers, as integrated into the provisions of the Constitution---Matter pertaining to the judicial power of interpreting the Constitution, identifying the limits of the Executive and the Legislature thereunder and enforcing such limits was the sole and exclusive jurisdiction of the courts---While exercising such powers, the court would not abdicate its jurisdiction merely because the issue raised, had a political complexion or political implication---Once the authority of the Legislature had been delineated through interpretation, how such authority was to be exercised and what policies were to be framed and enacted through the legislation was the prerogative of the Legislature and as long as such legislative action was consistent with the provisions of the Constitution, the Court would not interfere and this would involve a ‘political question’.

(mm) Constitution of Pakistan---

----Arts. 239(5), 239(6) & 184(3)---Amendment made in the Constitution by the Parliament---Jurisdiction of the Supreme Court to scrutinize such amendment---Scope---Supreme Court was vested with the jurisdiction to scrutinize the amendments made by the Parliament in the Constitution in order to determine whether the implied limitations upon such amendatory powers had been transgressed ---However, it was not the correctness of the amendment or its efficiency/utility, which could be ruled upon by the Supreme Court but only its Constitutionality.

Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486 ref.

(nn) Constitution of Pakistan---

----Preamble---Constitution as a ‘social contract’---Scope---Constitution in essence was a social contract amongst the people to politically organize themselves into a State identifying the relationship between the citizens and the State and the rights retained by the people and guaranteed unto them---Constitution created and identified the State institutions upon which the State sovereignty was distributed and the mode and limitation for the exercise thereof.

(oo) Constitution of Pakistan---

----Preamble---Prominent characteristics of Constitution of Pakistan---Pakistan was a democracy with the ultimate sovereignty vesting in Almighty Allah and delegated to the people of Pakistan (and not to any individual or group of persons who may seize power by force of arms)--- Constitution provided for a Parliamentary form of Government---Fundamental Rights were guaranteed to all citizens, including minorities---Trichotomy of Power existed with a judiciary having its independence fully secured---Rule of law, equality and social and economic justice were embodied in the Constitution in no uncertain terms---Said features were the prominent characteristics which defined the Constitution of Pakistan.

(pp) Constitution of Pakistan---

----Part VII [Arts. 178 to 212]---Independent judiciary---Significance and functions---Adjudication of disputes of individuals---Protection of Fundamental Rights---Adjudication of election disputes---Adjudication of disputes between two or more Federating Units or between Federating Units and the Federation---Functions and significance of an independent judiciary in Pakistan stated.

(qq) Constitution (Eighteenth Amendment) Act (X of 2010)---

----Ss. 67, 68, 69 & 74---Constitution (Nineteenth Amendment) Act (I of 2011), S. 4---Constitution of Pakistan, Arts. 175A & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Role of Judicial Commission and Parliamentary Committee in the process of appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court [Art.175A of the Constitution]---Constitutionality---Litmus test for the Independence of Judiciary qua the appointment of the Judges appeared to be that the power to initiate and the primacy or decisiveness with regard to the final outcome of the process must vest in the Chief Justices and the Members of the Judiciary---Article 175A of the Constitution as inserted by the Eighteenth Amendment, in view of the provisions of the Nineteenth Amendment and the dictum laid down by Supreme Court in the cases reported as Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another (PLD 2011 SC 308 and PLD 2011 SC 407) passed such test, and did not offend against the Salient Features of the Constitution---Detailed reasons stated.

Following are the reasons for upholding the process of appointment of judges of superior courts provided under Article 175A of the Constitution [as added by the Eighteenth Amendment and subsequently amended by the Nineteenth Amendment to the Constitution].

Prior to the introduction of Article 175A of the Constitution, the matter of ascertaining expertise, professional competence, legal acumen and general suitability of a person to be appointed as a Judge was for all intents and purposes in the exclusive domain of the Chief Justices. It was presumed that the Chief Justices concerned would take their respective colleagues into confidence as was and continues to be the practice. This matter had now been formalized by the Eighteenth and Nineteenth Amendments to the Constitution by making senior Judges a part of the Judicial Commission. It had always been a common practice for the Chief Justices to solicit the opinion from the Bar and such practice still continued and such aspect of the matter too had been formalized by Eighteenth and Nineteenth Amendments to the Constitution by adding the representatives of the Bar Councils to the Judicial Commission. Question of expertise, legal acumen and general suitability of a candidate to be appointed as a Judge was (now) within the exclusive domain of the Judicial Commission with the powers of initiation vesting in the Chief Justice concerned. Prior to the Eighteenth and Nineteenth Amendments to the Constitution, the question of antecedents of such candidates was with the Executive but now this was no longer wholly true as the Attorney General and the Federal Law Minister and the Provincial Law Minister as the case may be were made the Members of the Judicial Commission, therefore, all relevant information, in such behalf, with the Executive was now available to the Judicial Commission. Parliamentary Committee (formed as a result of Eighteenth and Nineteenth Amendments) could not sit in appeal over the decisions of the Judicial Commission and in case of any disagreement the matter was justiciable by the Court. Litmus test for the independence of judiciary qua the appointment of the Judges appeared to be that the power to initiate and the primacy or decisiveness with regard to the final outcome of the process must vest in the Chief Justices and the members of the judiciary. Article 175A of the Constitution as inserted by the Eighteenth Amendment, in view of the provisions of the Nineteenth Amendment and the dictum laid down by Supreme Court in the cases reported as Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another (PLD 2011 SC 308 and PLD 2011 SC 407) passed such test, and did not offend against the salient features of the Constitution.

(rr) Constitution (Eighteenth Amendment) Act (X of 2010)---

----S. 22---Constitution of Pakistan, Arts. 63A & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Article 63A of the Constitution (as amended by the Eighteenth Amendment), vires of---Disqualification/de-seating of member of Parliament on ground of defection---Influence exercised by leaders/heads of political parties as to how members of the party, elected to the Parliament/Provincial Assemblies, voted on a Constitutional amendment---Constitutionality---Grounds provided under Art. 63A of the Constitution for disqualification of a member of Parliament in case of defection brought stability to the political system and were ex facie conducive to democracy---Decision of a political party as how to vote in Parliament on certain issues had been conferred upon the party leader/head---Article 63A of the Constitution (as amended by the Eighteenth Amendment) added ‘Amendment to the Constitution’ to such issues, which did not affect in substance the purpose of Art. 63A of the Constitution, which was to curb the mischief of political instability due to change of loyalties---Shifting of the emphasis from the Parliamentary Leader to the Party Head, as a result of the Eighteenth Amendment was in consonance with the ground realities of politics in Pakistan---Detailed reasons stated.

Following are the reasons for upholding the changes made in Article 63A of the Constitution by the Eighteenth Amendment to the Constitution.

Prior to the introduction of Article 63A of the Constitution, the Members of the Parliament and Provincial Assemblies were induced or coerced into changing loyalties. Instability was the natural result. Sitting Governments were under a constant threat of overthrow. Such a state of affairs also brought the Parliament and the Provincial Assemblies along with their members in great disfavour with the people. To suppress such mischief, the members of Parliament imposed upon themselves the restrictions, as enumerated in Article 63A of the Constitution. Said Article had brought stability to the political system and was ex facie conducive to democracy.

Through the Eighteenth Amendment, Article 63A of the Constitution had only been amended to the extent that the decision of the party as to how to vote had been conferred upon the Party Head and the matters in which such instructions would apply now included an Amendment to the Constitution in addition to Money Bill and vote of confidence or no confidence. Such changes did not affect in substance the import and effect of Article 63A of the Constitution with regard to the mischief of political instability in the system brought by change of loyalties. Shifting of the emphasis from the Parliamentary Leader to the Party Head, as a result of the Eighteenth Amendment was in consonance with the ground realities of politics in Pakistan. Suffice it to say, a political leader whose personal popularity translated into votes may have out grown the Parliament or Provincial Assembly and/or he may otherwise choose not to contest the election. Once democracy in Pakistan was stabilized through continuity, the Parliament could always revisit Article 63A of the Constitution to bring it in conformity with the practice in mature democratic countries.

(ss) Constitution (Eighteenth Amendment) Act (X of 2010)---

----Ss. 16(6)(c) & 16(6)(e)---Constitution of Pakistan, Arts. 51(6)(c), 51(6)(e) & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Seats reserved for non-Muslims/minorities in Parliament filled by political parties in proportion to the number of seats won by each party in the general election [Art. 51 of the Constitution]---Constitutionality---Through a General Election the minorities may not find due representation in the Parliament, therefore, seats were reserved for them to be filled through proportional representation on party basis which was not undemocratic and was in vogue in several countries with a Parliamentary form of Government---In terms of Art. 51(6)(c) & (e) of the Constitution (as amended by the Eighteenth Amendment), the principle of one man one vote was not violated---Any member of the minorities could contest on any general seat of Parliament from any constituency, and there was a joint electorate---Minority members of the Parliament were included in the Cabinet and formed part of the power structure thereby not only serving their country but also their communities---By no stretch of the imagination could it be said that the provisions of the Constitution, in such behalf, offended against or compromised democracy and/or the protection of rights of minorities---Compared with the present procedure, perhaps a more efficient mode for ensuring that the minorities were integrated into the political mainstream and the democratic process could be adopted, but such mode would lie in the domain of the Parliament---Constitutional petition was dismissed accordingly.

(tt) Constitution (Eighteenth Amendment) Act (X of 2010)---

----Ss. 6 & 29---Constitution of Pakistan, Arts. 17, 91(5), proviso & 184(3)---Constitutional petition before the Supreme Court under Art.184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Removal of requirement of holding intra-party elections for political parties---Removal of restriction on the number of terms for the office of the Prime Minister---Constitutionality---Regarding the changes made by the Eighteenth Amendment, i.e. withdrawal of the restrictions on the terms of the Prime Minister and the necessity to hold intra-party elections by the political parties, suffice it to say that both the said conditions did not form part of the originally framed Constitution, thereby diluting their relevance for determining the salient features of the Constitution---Even otherwise, in a Parliamentary form of Government usually no restriction on the number of tenures for the office of the Prime Minister was imposed---Holding of intra-party elections was not a sine qua non for a democratic set up---Constitutional petition was dismissed accordingly.

(uu) Constitution (Eighteenth Amendment) Act (X of 2010)---

----S. 3---Constitution of Pakistan, Arts. 1(2)(a) & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Change in name of Province---Name of North-West Frontier Province (N.-W.F.P) changed to Khyber Pakhtunkhwa (KPK)---Constitutionality---Renaming of the Province in accordance with the wishes of the people as expressed in a resolution of the Provincial Assembly in no manner effected the salient features of the Constitution---Constitutional petition was dismissed accordingly.

(vv) Constitution (Twenty-first) Amendment Act (I of 2015)---

----Ss. 2, 3 & Preamble---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Preamble---Constitution of Pakistan, Arts. 70, 148(3), 245 & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Terrorist attacks and armed rebellion against the State---‘Threat of war’---Military Courts---Power of Parliament to set up Military Courts---Trial of civilians in Military Courts---Constitutionality---Parliament had the legislative competence to take appropriate legislative measures to enable the Federation to fulfil its obligation to act in defence of the State of Pakistan to provide for the trial and punishment of civilians by Military Courts under the Pakistan Army Act, 1952, which had a direct nexus with the defence of Pakistan---Constitution (Twenty-first) Amendment Act, 2015 and the Pakistan Army (Amendment) Act, 2015, had a direct nexus with the Armed Forces or the Defence of Pakistan---Constitution (Twenty-first) Amendment Act, 2015, was in the nature of a temporary measure targeting a very small specified clearly ascertainable class of terrorists/accused who were to be tried by Military Courts in accordance with a procedure which was consistent with recognized principles of criminal justice---Constitution (Twenty-first) Amendment Act, 2015 was not opposed to the scheme of the Constitution and its salient features while the Pakistan Army (Amendment) Act, 2015, was not ultra vires the Constitution---Detailed reasons for upholding the Constitution (Twenty-first) Amendment Act, 2015 and the Pakistan Army (Amendment) Act, 2015, which permitted trial of civilians, accused of certain type of offences, in Military Courts stated.

Following are the reasons for upholding the Constitution (Twenty-first) Amendment Act, 2015 and the Pakistan Army (Amendment) Act, 2015, which permitted trial of civilians, accused of certain type of offences, in Military Courts.

Article 70 of the Constitution empowered the Parliament to legislate on all matters enumerated in the Federal Legislative List. Item 1 of the said List clearly mentioned the Defence of Pakistan and the Armed Forces. Pakistan Army Act, 1952 was obviously covered by the said Item, as ex facie it dealt with the Defence of Pakistan and the Armed Forces and included the trial of persons subject to that said Act by the forums established thereunder i.e. Court Martial.

When the law and order situation degenerated beyond mere civil disorder and rioting to insurrection, mutiny or open armed rebellion against the State whereby territories were lost to the miscreants and the institutions of the State no longer existed in such areas, a duty was cast under Article 148(3) of the Constitution upon the Federal Government to defend the Federation, the Province and every part thereof. Appropriate directions, in such behalf, could only be given in terms of Article 245 of the Constitution. Calling upon Armed Forces to merely ‘act in aid of civil power’ may not be sufficient, adequate or efficacious in such a situation. In such circumstances, unless a situation was held to be covered by the phrase ‘threat of war’, the Federal Government may be helpless to defend the State and unable to fulfill its obligations in terms of Article 148(3) of the Constitution.

Civilians could not be tried by Court Martial or other Military Courts, when the Armed Forces were called to ‘act in aid of civil power’, but where the Armed Forces were directed to deal with ‘external aggression’ or ‘threat of war’, such civilians could be tried where the offence in question had a direct nexus with the Armed Forces or the Defence of Pakistan.

Trials of civilians by Court Martial/Military Courts was an exception and could never be the rule, however, the gravity of the current situation faced by the State of Pakistan and the intensity of the armed conflict, warranted its description as a ‘threat of war’ permitting trial of civilians by Court Martial/Military Courts. Current grave situation could not be met by merely directing the Armed Forces to ‘act in aid of civil power’. Factual data on record showed that since the year 2002, thousands of incidents of terrorists attacks had occurred which included attacks on the most sensitive of defence installations and civilians airports. Mosques, churches and other places of worship had been subjected to attacks and bomb blasts. Public transport had been ambushed and people belonging from different sects and religions were killed in cold blood after being identified. Schools had not been spared and small children were massacred. At various points of time, control of the State on its territories had been periodically lost. Since the year 2002, thousands of people in Pakistan had been killed or wounded, including both civilians and members of the law enforcement agencies. Persons involved in the armed conflict against the State not only included foreigners but there were also indications of foreign funding and instigation. To counter the situation, large scale military operations were required to be undertaken and were being currently conducted. Armed persons waging war against Pakistan were well organized and well trained with declared foreign affiliations and the coordination and intensity of their aggression had created a situation, the gravity whereof could not be squeezed into the narrow confines of a state of affairs where mere ‘acting in aid of civil power’ by the Armed Forces would suffice. In such backdrop, in order to deal with the current situation, an additional tool to counter the situation had been provided by way of the Constitution (Twenty First) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015.

State of Pakistan was currently confronted with a warlike situation and consequently the Federation was duty bound by the Constitution to defend Pakistan. In such circumstances, the Federation must act in accordance with the first part of Article 245(1), by categorizing the current situation as a threat of war requiring extraordinary measures in terms of use of the Armed Forces. Parliament (Legislature) had made a judgment call by enacting the Constitution (Twenty First) Amendment Act, 2015 and the Pakistan Army (Amendment) Act, 2015.

Provisions of the Pakistan Army (Amendment) Act, 2015 specifically provided that the offence must be committed by a person known or claiming to be a member of a terrorist group or organization, using the name of religion or sect, who in furtherance of his terrorist design waged war against Pakistan or committed any other offence mentioned therein. Activities of such terrorists had created a warlike situation against the State necessitating its defence by the Armed Forces. Offences committed by such terrorists appeared to have direct nexus with the defence of Pakistan. Consequently, the Parliament had the legislative competence to take appropriate legislative measures to enable the Federation to fulfill its obligation to act in defence of the State of Pakistan to provide for the trial and punishment of civilians by Military Courts under the Pakistan Army Act, 1952, which had a direct nexus with the defence of Pakistan. Article 245 of the Constitution could be invoked in an extraordinary situation but only as a temporary measure. Such a measure neither contemplated nor provided a permanent solution. In the present case, the Constitution (Twenty First) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015, both contained sunset clauses being only effective for a period of two years. Such legislative measure appeared to be in accordance with the Constitution.

Sheikh Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 and Brig. (Retd) F.B. Ali and another v. The State PLD 1975 SC 506 ref.

Constitution (Twenty First) Amendment Act, 2015, was in the nature of a temporary measure targeting a very small specified clearly ascertainable class of terrorists/accused who were to be tried under the Pakistan Army Act, 1952 in accordance with a procedure which was consistent with recognized principles of criminal justice. Neither the selection and transfer of cases nor the eventual order or sentence passed by the Military Court under the Pakistan Army Act, 1952, were immune from the sanctity of judicial review by the High Courts and the Supreme Court. In such circumstances, it was difficult to hold that the nature of the salient features of the Constitution i.e. the Fundamental Rights and the independence of judiciary, as applicable in Pakistan had been repealed, abrogated or substantively altered by the Constitution (Twenty First) Amendment Act, 2015, so as to invalidate the same, especially in view of the temporary nature of the said Amendment.

(ww) Constitution of Pakistan---

----Art. 245(1)---Pakistan Army Act (XXXIX of 1952), Preamble---Armed Forces ‘acting in aid of civil power’ on directions of the Federal Government---Scope---Trial of civilians apprehended by Armed Forces while ‘acting in aid of civil power’---Forum---Legal implications and effect of the eventuality where the Armed Forces were called upon by the Federal Government to ‘act in aid of civil power’ stated.

Following are the legal implications and effect of the eventuality where the Armed Forces were called upon by the Federal Government to ‘act in aid of civil power’.

When the Armed Forces upon the direction of the Federal Government were required to ‘act in aid of civil power’, the Armed Forces would act to assist the civil power but could not replace it. Role of Armed Forces would be primarily with regard to supporting and invigorating the executive functions, more particularly, pertaining to law enforcement and the police power. Armed Forces could not supplant the entire civil power. More particularly, this also applied to the judicial power of the State, which was exercised through the functioning of the courts under an independent judiciary. When ‘acting in aid of civil power’, the Armed Forces may quell disturbance and apprehend offenders who had to be brought before the regular courts for trial. Armed Forces may not be authorized to constitute their own courts for trial as long as the regular courts were functioning in the area where the Armed Forces had been called in to ‘act in aid of civil power’. Civilians, not otherwise subject of the Pakistan Army Act, 1952, could not to be tried by Military Courts/Court Martial. Such dictum, however, was only applicable when the Armed Forces were called to ‘act in aid of civil power’ and not in the event of an ‘external aggression’ or the ‘threat of war’.

Sheikh Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 ref.

(xx) Interpretation of Constitution---

----Sub-Constitutional legislation, interpretation of--- Scope---Redundancy or surplusage was normally not easily attributed to sub-Constitutional legislation let alone the Constitution.

East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663; Muhammadi Steamship Co. Ltd. v. The Commissioner or Income Tax (Central) Karachi PLD 1966 SC 828 and Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823 ref.

(yy) Constitution of Pakistan---

----Arts. 8(1), 8(2), 8(3)(b)(ii), 238 & First Sched., Part I---List of laws mentioned in Part I of First Schedule to the Constitution exempted from the operation of Arts. 8(1) & (2) of the Constitution---Addition of new laws to the said list---Procedure---Parliament on the strength of Art.8(3)(b)(ii) of the Constitution could add new laws to Part I of First Schedule to the Constitution but only through the process of amending the Constitution---However, whenever more laws were added to the First Schedule to the Constitution, each such addition would need to be scrutinized so as to ensure that the Fundamental Rights were not substantively altered.

(zz) Interpretation of statutes---

----Absurdity should not be attributed to the Legislature while interpreting a statute.

Maxwell‘s Interpretation of Statutes, 1953 Edition. p. 229; Khalid Qureshi and 5 others v. United Bank Limited I.I. Chundrigar Road, Karachi 2001 SCMR 103; Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1089 and Federation of Pakistan through Secretary M/o Petroleum and Natural Resources and another v. Durrani Ceramics and others 2014 SCMR 1630 ref.

(aaa) Constitution (Twenty-first) Amendment Act (I of 2015)---

----S. 3---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Preamble---Constitution of Pakistan, Arts. 8(3)(b)(ii), 184(3) & First Sched., Part I---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Incorporation of Pakistan Army Act, 1952 [as amended by the Pakistan Army (Amendment) Act, 2015] into Part I of First Schedule to the Constitution---Validity---Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, had been validly and effectively incorporated in the Part I of First Schedule to the Constitution and the same was also the clear intention of the Legislature---Nullifying such intention by attributing absurdity to the Parliament and redundancy to the Constitution (Twenty-first) Amendment Act, 2015, would neither be proper nor lawful---Constitutional petition was dismissed accordingly.

(bbb) Constitution (Twenty-first) Amendment Act (I of 2015)---

----Ss. 2, 3 & Preamble---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Preamble---Constitution of Pakistan, Arts. 10A & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and the Pakistan Army (Amendment) Act, 2015---Trial conducted by Court Martial/Military Court---Right of fair trial---Constitution (Twenty-first) Amendment Act, 2015, permitted Court Martial/Military Court to conduct trial of civilians who had committed offences having direct nexus with the defence of Pakistan---Contention of petitioners were that proceedings before a Court Martial/Military Court violated right to fair trial including the right to framing of charges, right to present evidence, right to representation by counsel, right to defence and right to appeal---Validity---Process and procedure followed by the forums, established under the Pakistan Army Act, 1952, had been found to be satisfactory and consistent with the recognized principles of criminal justice in different judgments of the Supreme Court and Federal Shariat Court---Procedure which was found acceptable (by the superior courts) for officers and men of the Pakistan Army could hardly be termed as unacceptable for trial of terrorists/civilians, who acted as enemies of the State---Constitutional petition was dismissed accordingly.

Brig. (Retd) F.B. Ali and another v. The State PLD 1975 SC 506; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632 and Col. (R) Muhammad Akram v. Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and another PLD 2009 FSC 36 ref.

(ccc) Constitution (Twenty-first) Amendment Act (I of 2015)---

----Ss. 2, 3 & Preamble---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Preamble---Constitution of Pakistan, Arts. 25 & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Military Courts---Trial of civilians in Military Courts---Constitutionality---Discrimination---Valid classification---Contention that trial of civilians in Military Courts was discriminatory and offended Art. 25 of the Constitution as different laws could not be made for different classes of persons---Validity---Cases that could be tried under the Pakistan Army Act, 1952 [as amended by the Pakistan Army (Amendment) Act, 2015] had been clearly identified in terms of offences enumerated therein when committed by a terrorist known or claiming to be a member of a group or organization or in the name of a religion or a sect---Such ascertainable and clearly defined criteria based on an intelligible differentia constituted a valid classification---Provisions of Pakistan Army Act, 1952, as amended by Pakistan Army (Amendment) Act, 2015, could not be invalidated for offending against Fundamental Rights, including Art. 25 of the Constitution---Constitutional petition was dismissed accordingly.

Brig. (Retd) F.B. Ali and another v. The State PLD 1975 SC 506; I. A. Shirwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041; Jahanghir Sarwar and others v. Lahore High Court and another 2011 SCMR 363; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1; Dr. Shahnaz Wajid v. Federation of Pakistan through Secretary Establishment Division, Government of Pakistan 2012 PLC (C.S.) 1052; Regarding Pensionary Benefits of the Judges of Superior Courts from the date of their respective retirements irrespective of their length of service as such Judges PLD 2013 SC 829 and Secretary Economic Affairs Division, Islamabad v. Anwarulhaq Ahmed and others 2013 SCMR 1687 ref.

(ddd) Constitution (Twenty-first) Amendment Act (I of 2015)---

----Ss. 2, 3 & Preamble---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Preamble---Constitution of Pakistan, Arts. 199(3) & 184(3)---General Clauses Act (X of 1897), S. 24A---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Military Court---Order passed or sentence awarded by Military Court---Judicial review by the High Courts or Supreme Court---Scope---Any order passed or sentence awarded by a Court Martial/Military Court or other forums under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, was subject to the judicial review both by the High Courts and the Supreme Court, inter alia, on the ground of coram non judice, without jurisdiction or suffering from mala fides including malice in law---Such power of judicial review would also apply where the Federal Government exercised its discretion to select and transfer a case for trial before a Court Martial---Such selection/transfer required the exercise of discretion by the Executive authority, which must necessarily be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment, as provided by S. 24A of the General Clauses Act, 1897---Constitutional petition was dismissed accordingly.

Brig. (Retd) F.B. Ali and another v. The State PLD 1975 SC 506; Mrs. Shahida Zahir Abbas and 4 others v. President of Pakistan and others PLD 1996 SC 632; Ex. Lt. Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549; Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another PLD 2007 SC 498; Ghulam Abbas Niazi v. Federation of Pakistan and others PLD 2009 SC 866; Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1229; Rana Muhammad Naveed and another v. Federation of Pakistan through Secretary M/o Defence 2013 SCMR 596; Ex. PJO-162510 Risaldar Ghulam Abbas v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and others 2014 SCMR 849; The State v. Zia-ur-Rahman and others PLD 1973 SC 49; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Karamat Ali v. State PLD 1976 SC 476; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Mst. Tahira Alams and another v. Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and another PLD 2002 SC 830; Begum Syed Azra Masood v. Begum Noshaba Moeen and others 2007 SCMR 914; Syed Rashid Ali and others v. Pakistan Telecommunication Company Ltd. and others 2008 SCMR 314 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 ref.

Per Mian Saqib Nisar, J; agreeing with Nasir-ul-Mulk, C.J, dismissing petitions against Constitution (Eighteenth Amendment) Act (X of 2010) and Constitution (Twenty-first) Amendment Act (I of 2015), but with his own reasons;

(eee) Constitution of Pakistan---

----Arts. 239(5) & (6)---Amendment to the Constitution, vires of---Basic structure of the Constitution, doctrine of---Said doctrine was not part of the Constitutional law in Pakistan, hence it could not be used to strike down a Constitutional Amendment---Principles.

Following are the principles in relation to the non-applicability of the doctrine of basic structure in Pakistan, and consequently why it could not be used to strike down a Constitutional Amendment.

Doctrine of basic structure was not incorporated in the Constitutional law of Pakistan, hence the same could not be used to strike down a Constitutional Amendment. Even if the ‘basic features’ doctrine were to be regarded as part of Pakistan’s Constitutional law, its actual application and enforceability would at once run up against the hurdle of Article 239(6) of the Constitution, which stated that “there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution”. ‘Basic features’ doctrine was not merely the creation of the courts; it was entirely at the courts‘ mercy. Basic features doctrine put the power to amend the Constitution, i.e., the constituent power, under the control of the courts. ‘Basic features’ doctrine should not be adopted and made part of the Constitutional law of Pakistan.

(fff) Constitution of Pakistan---

----Arts. 239(5), 239(6) & 184(3)---Amendment made to the Constitution by the Parliament, vires of---Judicial review by the Supreme Court of an amendment to the Constitution---Scope---Supreme Court had no jurisdiction to examine and declare ultra vires (or annul) an amendment made in the Constitution---Placing constituent power in the hands of the judiciary would be a deviation from the path of the rule of law---Principles. [Minority view]

Following are the principles in relation to ouster of jurisdiction of the Supreme Court to examine the vires of a Constitutional Amendment.

Supreme Court had no jurisdiction to examine and declare ultra vires (or annul) an amendment made in the Constitution. Question as to whether, when or how the Constitution was to be amended ought to be left in its entirety to the chosen (i.e., elected) representatives of the people of Pakistan. Constituent power of the State by which the Constitution was amended laid with the chosen representatives of the people and not with an unelected judiciary, even though the chosen representatives may not always come up to the expectations of the public. Judiciary was the creature of the Constitution – it was not above it, thus, it must function in accordance with it. Article 184(3) of the Constitution existed not because of any direct conferment of power by the people of Pakistan on the Supreme Court but because of the conscious decision of the duly elected representatives of the people to include it in the Constitution, thus, it would not be right either ethically, legally or Constitutionally for the Supreme Court to now turn around and seek to deny primacy to the language of that very Constitution and the right of elected representatives to amend it.Had the people of Pakistan wished to place restrictions upon power of Parliament to amend the Constitution they could have easily done so. Such matter had to be decided by the chosen or elected representatives of the people and put in black and white to place it beyond any doubt, and it was not to be left in the hands of the judicial branch. If the people wanted to curtail the power that vested in them to exercise constituent power, then it was the people who must say so, and no one else, as this was the only true and proper manner in which the exercise of constituent power could be curtailed. Placing constituent power in the hands of any other body, no matter how well intentioned, erudite and sensitive to the public good that body might be, was to begin to deviate from the path of the rule of law.

(ggg) Constitution of Pakistan---

----Arts. 184(3), 199, 238 & 239---Amendment to the Constitution---Constituent power of the Legislature, exercise of---Scope---While amending the Constitution, the legislature exercised a constituent power, and not a mere legislative power---Ultimate power should flow not from the pens of judicial appointees, but from the elected representatives of the people of the country [Majority view]---Constitution of Pakistan did not contain any express limit on the exercise of the constituent power---Article 239(6) of the Constitution expressly clarified that there was no limitation to such power--- Unlike the situation when ordinary legislative power was exercised by the Legislature (and the matter was made justiciable under Arts. 184(3) & 199 of the Constitution), the exercise of constituent power was expressly made non-justiciable by Art. 239(5) of the Constitution [Minority view].

(hhh) “Basic structure” of the Constitution, doctrine of---

----Historical development and critique of the use of the “doctrine of basic structure” by the Indian Supreme Court in its numerous judgments to place a limitation upon the power of Parliament to amend the Constitution stated---Deficiencies/weaknesses in the conceptual foundations of the ‘basic structure’ doctrine through a survey of judgments of the Indian Supreme Court stated.

Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461; Golak Nath v. State of Punjab AIR 1967 SC 1643; Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299; Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789; Shri Kumar Padma Prasad v. Union of India AIR 1992 SC 1213; Supreme Court Advocates on Record Association v. Union of India AIR 1994 SC 268; R.C. Poudyal v. Union of India and others [1994] Supp. 1 SCC 324; Shri Kihota Hollohan v. Zachilhu and others AIR 1993 SC 412; Shankari Prasad Singh Deo and others v. Union of India and others AIR 1951 SC 458; Sajjan Singh v.The State of Rajasthan AIR 1965 SC 845; Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd. and another AIR 1983 SC 239; Constitutional Law of India, by H.M. Seervai (4th Ed.) Vol. 3 (1996), pg. 3114; I.R. Coelho v. State of Tamil Nadu AIR 2007 SC 861; Glanrock Estate (P) Ltd. v. The State of Tamil Nadu (2010) 10 SCC 96; Dillon v. Gloss (1921) 256 US 368 and Coleman v. Miller (1939) 307 US 433 ref.

(iii) Interpretation of Constitution---

----Implied provision in conflict with an express provision of the Constitution---Implied provision could not be read into (the Constitution) if it was inconsistent with an express provision.

(jjj) Constitution of Pakistan---

----Preamble---“Democracy”, concept of---Scope---Democracy was a cast of mind, a respect for the opinions and decisions of a plurality of ordinary citizens, i.e., those not wielding official power.

(kkk) Constitution of Pakistan---

----Preamble---‘Salient features’ of the Constitution, doctrine of---Relevance in Pakistan--- Doctrine of ‘Salient features’ which stated that the Constitution of Pakistan had certain fundamental provisions, which were its ‘salient features’ was enunciated or suggested, in obiter dicta, without any analysis, or justification, in the cases of Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719)--- Such enunciation of the said doctrine must therefore be deemed to be obiter dicta---No justification existed for adopting the doctrine of ‘salient features’ in Pakistan. [Minority view]

Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719 and Zafar Ali Shah v. Pervez Musharraf PLD 2000 SC 869 ref.

(lll) Constitution of Pakistan---

---Art. 2A---Objectives Resolution, significance of---Scope---Objectives Resolution could not be given a supra-Constitutional status---Objectives Resolution was not to be treated as a grund norm and therefore impliedly placed on a higher pedestal than the Constitution of Pakistan---Opening sentence of the Objectives Resolution was very important as it sets out the Islamic doctrine of sovereignty by stating that sovereignty over the entire universe rested in Almighty Allah and in Him alone, and all temporal power was to be exercised as a sacred trust through the chosen representatives of the people---However, conferring a similar status on the rest of the Objectives Resolution was not justified---Any attempt to attach a quasi-mystical, or supremely overarching significance and importance to the Objectives Resolution, as if it had been uniquely conceived by the founders of Pakistan, was not altogether justified.

(mmm) Constitution of Pakistan---

----Part VII [Arts. 175 to 212]---Independence of judiciary---Meaning and scope---Phrase “independence of the judiciary in Constitutional parlance” meant an institutional independence i.e., the judiciary, as an institution, was independent; the reference was not to personalities but to the office held by members of the judiciary; an independence, above all, from the Executive, and an independence also from the Legislature.

(nnn) Constitution of Pakistan---

----Part VII [Arts. 175 to 212]---Independence of judiciary---Importance of democracy to independence of judiciary---Democracy and its attendant forces were the true foundation of an independent judiciary---When democracy was weakened, the judiciary was weakened too.

(ooo) Constitution of Pakistan---

----Art. 209 & Part VII [Arts. 175 to 212]---Independence of judiciary---Judicial restraint, exercise of---Reasons for superior judiciary in Pakistan to exercise its powers with restraint and wisdom stated.

Following are the reasons due to which the superior judiciary in Pakistan should exercise judicial restraint.

Judiciary in Pakistan was neither elected by the people nor was it answerable or accountable to the people. Judiciary in Pakistan was answerable only to itself under Article 209 of the Constitution. Indeed, if any other institution claimed the right to be only answerable to itself there would be a public outcry. In other countries of the world (including India, England and United States of America), the general rule was that the superior judiciary was answerable to the elected representatives of the people. Judiciary in Pakistan thus held a uniquely privileged position Constitutionally and it was therefore incumbent on it to exercise its great powers with restraint and wisdom. Function of the Supreme Court was not to weaken democratic institutions and traditions by declaring that since the elected representatives of the people were not, in its opinion, discharging their functions honestly, hence those functions in relation to the judiciary would be taken over by the judiciary itself. Caliber of the elected representatives of the people of Pakistan was not important—they were present today and would be gone tomorrow— what was important was the fact that they were the elected representatives and in democracies all over the world, ultimate power always resided in elected (and not appointed) representatives.

Judiciary had a role and place in the Constitutional firmament and it was without any doubt a crucial and vitally important role and place. However, the Constitution did not end (and it certainly did not begin) with the judges, and the courts would do well to remember such fact. Every institution and each organ of the State had its own role to play. Such realization and acceptance ensured that the Constitutional balance was maintained. Court should not do anything that unbalanced the Constitution. Court should never assume in its own favor that it was the ultimate arbiter in all Constitutional matters.

(ppp) Constitution (Eighteenth Amendment) Act (X of 2010)---

----Ss. 67, 68, 69 & 74---Constitution (Nineteenth Amendment) Act (I of 2011), S. 4---Constitution of Pakistan, Arts. 175A & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Role of Judicial Commission and Parliamentary Committee in the process of appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court [Article 175A of the Constitution]---Constitutionality---Independence of judiciary---In terms of Art. 175A of the Constitution nominations for appointment as Judges were to be made by a Judicial Commission that was not merely dominated by Judges, but in which they had an absolute majority---Such power of Judicial Commission was unique and extraordinary, and strengthened the independence of the judiciary---Parliamentary Committee could block a nominee of the Judicial Commission provided at least six out of the Committee’s eight members refused to confirm---Parliamentary Committee consisted of members representing the Government and the Opposition, who could be at loggerheads, and by a majority of at least six members out of eight, it would have to agree on very sound reasons before blocking the Commission’s nominee---Even otherwise where the Parliamentary Committee refused to confirm the Judicial Commission’s nominee, such action could be judicially reviewed---Process of appointment of Judges to the superior courts provided under Art. 175A of the Constitution did not affect the independence of the judiciary---Detailed reasons stated.

Following are the reasons for upholding the process of appointment of Judges of the superior courts provided under Article 175A of the Constitution [as added by the Eighteenth Amendment and subsequently amended by the Nineteenth Amendment to the Constitution].

In terms of Article 175A of the Constitution [as added by Constitution (Eighteenth Amendment) Act, 2010, and subsequently amended by the Constitution (Nineteenth Amendment) Act, 2011] the Judicial Commission [“Commission”] when nominating a person for appointment, acted by a simple majority of its total membership, and it was Judges (serving and retired) who comprised such total majority. Such composition was completely unprecedented in Constitutional history of Pakistan and also that of other well-established and functional democracies. In terms of Article 175A of the Constitution the judges could, independently of the other members of the Commission, make nominations for vacancies in the superior courts. Article 175A of the Constitution, rather than derogating from the earlier position (provided in the original Constitution of Pakistan, 1973) in which the views of the judiciary (regarding appointments) merely had primacy, had actually strengthened the judiciary’s hand immeasurably. In terms of Article 175A of the Constitution no matter what the Law Minister(s) and the Attorney General and the senior advocate appointed by the Bar(s) said or did, even by acting together, the judges’ view regarding appointments would always prevail. Article 175A of the Constitution unequivocally provided that nominations for appointment as judges were to be made by a Commission that was not merely dominated by Judges, but in which they had an absolute, and indeed, unassailable majority. Such power given to the Commission was unique and extraordinary, as in other Constitutional systems around the word, there was a decisive involvement of the other branches of the state in both the appointment and removal of judges. Creation of the Judicial Commission for the appointment of judges of the superior courts had strengthened, and not weakened, the independence of the judiciary.

Article 175A of the Constitution made the appointment of judges, both to the Supreme Court as well as to the High Court, on the basis of decision making by a Judicial Commission which consisted of and was headed by the Chief Justice of Pakistan and included the four most senior judges of the Supreme Court as well as a former Chief Justice or former Judge of the Supreme Court (who was to be nominated by the Chief Justice of Pakistan in consultation with the four member judges for a period of two years). Judicial Commission did not impinge on the powers of the judiciary – what it did was to share the exercisable powers between the Chief Justice of Pakistan and the senior most judges. Conferment of exclusive and complete power on a single individual [as was the case prior to the Constitution (Eighteenth Amendment) Act, 2010], whether he be a member of the Executive or the judiciary, was surely less desirable than a meaningful, purposeful and consensus-oriented system under Article 175A of the Constitution in terms of which appointments were made by a broad based body after carrying out a consultative process falling within defined parameters.

In terms of Article 175A of the Constitution if the Parliamentary Committee [“Committee”] refused to confirm the nominee of the Commission within 14 days, the nominee shall be deemed to have been confirmed. Thus, in a sense, the formal confirmation by the Committee was irrelevant, and could only bring forward the confirmation. Said period of 14 days was fixed and immutable. Once the Commission had made its recommendation and it was communicated, the time began to run at once, and, nothing could stop it. If at all the Committee wished to refuse to confirm a nominee, it must do so within such period, or not at all. Such refusal must be by a three quarters majority, i.e., at least six out of the Committee’s eight members must refuse to confirm. Membership of the Committee was evenly split between the Treasury (i.e., Government) and Opposition benches; it was therefore a diverse mix, and at least six must cast the negative vote. Such position under Article 175A of the Constitution could be compared with the situation prior to the Constitution (Eighteenth Amendment) Act, 2010. In the latter case, the person nominated by the judicial consultees could be refused appointment by the President, acting on the advice of the Prime Minister, as long as he recorded very sound reasons for his disagreement. Thus, one individual alone could block the person nominated by the judicial branch provided he could adduce very sound reasons for doing so. However in the present case of the Committee, not less than six individuals, representing the Government and the Opposition, who could be at loggerheads, would have to agree on the very sound reasons before the Commission‘s nominee could be blocked. Even where the Committee refused to confirm the Commission’s nominee, such action could be judicially reviewed, therefore, there was nothing in Article 175A of the Constitution, whether in respect of the Commission or the Committee that would in any manner derogate from the independence of the judiciary. If anything, the hand of the judicial branch had been considerably strengthened, and had certainly not been weakened.

(qqq) Constitution (Eighteenth Amendment) Act (X of 2010)---

----S. 22---Constitution of Pakistan, Arts. 63A & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]--- Article 63A of the Constitution (as amended by the Eighteenth Amendment), vires of---Disqualification/de-seating of member of Parliament on ground of defection---Influence exercised by leaders/heads of political parties over members of the party elected to the Parliament/Provincial Assemblies---Constitutionality---Mischief that Art. 63A of the Constitution, as amended by the Eighteenth Amendment, sought to address was the perennial problem of horse-trading and floor-crossing that had plagued politics in Pakistan for decades---Article 63A of the Constitution, as amended by the Eighteenth Amendment, provided that if any one of five specified situations therein arose in relation to any member of a parliamentary party, he may be declared by the ‘party head’ to have defected---Before making such a declaration, the ‘party head’ must issue a show-cause notice and give an opportunity of hearing to the member concerned---Party Head’s declaration in such regard was not final and binding as such declaration was referred to the Election Commission (via the Chief Election Commissioner) and it was for the Election Commission to decide whether a defection had occurred or not---Only where the Election Commission decided that defection had occurred would the member cease to be a Parliamentarian and his seat shall stand vacated---Aggrieved party/member also had the right to appeal to the Supreme Court---Moreover Art. 63A of the Constitution, as amended by the Eighteenth Amendment did not contain an ouster of jurisdiction clause, therefore, the whole matter was justiciable at every stage---Besides Art. 63A of the Constitution, before being amended by the Eighteenth Amendment, contained much stronger and draconian provisions with respect to disqualification on grounds of defection, and such provisions were upheld by the Supreme Court in the case of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263)---In such circumstances any objection to Art. 63A of the Constitution as amended by the Eighteenth Amendment, which is much less draconian than its original form, was, to say the least, problematic---Constitutional petition challenging changes made to Art.63A of the Constitution by the Eighteenth Amendment was dismissed accordingly.

Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263 and Kihota Hollohon v. Zachilhu and others (1992) Supp (2) SCC 651 ref.

(rrr) Constitution (Twenty-first) Amendment Act (I of 2015)---

----Ss. 2, 3 & Preamble---Pakistan Army (Amendment) Act (II of 2015), Preamble---Constitution of Pakistan, Arts. 175 & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Military Courts---Power of Parliament to set up Military Courts---Trial of civilians in Military Courts for a limited time period---Constitutionality---Constitution (Twenty-first) Amendment Act, 2015, which permitted trial of certain civilians/terrorists in Military Courts had been expressly limited to remain in force for a period of two years only in the hope and expectation that by that time the existential threat which was being faced by Pakistan would have been resolved, thus it was explicitly a temporary provision intended to meet a specific crisis, and not intended to remain a part of the permanent structure of the Constitution---Such important circumstance justified the restriction placed therein in relation to the functioning of the normal courts---Article 175 of the Constitution comprehended both the creation of the Courts, as well as the conferment of jurisdiction therein---Proviso added to Art. 175 of the Constitution by the Constitution (Twenty-first) Amendment Act, 2015, stated that the provisions of Art. 175 had no application to the trial of persons belonging to terrorist groups or organizations---Said proviso made the legislative intent clear beyond any doubt---Constitutional petitions challenging the Constitutionality of Military Courts and the Pakistan Army (Amendment) Act, 2015 were dismissed accordingly.

Per Asif Saeed Khan Khosa, J; dismissing petitions against the Constitution (Eighteenth Amendment) Act (X of 2010); partially allowing petitions against the Constitution (Twenty-first) Amendment Act (I of 2015) and declaring the Pakistan Army (Amendment) Act, 2015 as unconstitutional.

(sss) Constitution of Pakistan---

----Arts. 238 & 239(6)---Power of Parliament to amend the Constitution---Scope---Article 239(6) of the Constitution clarified that “For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution”---Said provision left no doubt that the Constitution may enjoy supremacy and may be in a position to control the Parliament in the areas of its legislative and other powers, functions and processes prescribed by the Constitution but when it came to amending the Constitution itself the chosen representatives of the people in the Parliament assumed sovereignty and control and the existing Constitution could not stop them from amending any provision of the Constitution in any manner they wished [Minority view]---National Assembly adopting the Constitution of 1973 had never claimed or presumed that it was omnipotent, as was evident from the provisions of Arts. 238 & 239 of the Constitution, thus, raising of any such presumption by a court of law would be far-fetched and incongruous besides being inconsistent with the declared intention of the people---Court could not accept or hold that the National Assembly of Pakistan adopting the Constitution of 1973 could bind all the successor Parliaments not to amend certain parts or provisions of the Constitution ever.

(ttt) Constitution of Pakistan---

----Arts. 2, 31, 238 & 239(6)---Power of Parliament to amend the Constitution---Scope---Islam as the State religion of Pakistan---Question was as to whether the Parliament could amend the Constitutional provisions regarding Islamic way of life and Islam being the State religion of Pakistan---Islam was not just a fundamental principle or a salient feature of the Constitution of Pakistan but it was the very life and soul of the society in Pakistan and was a matter of faith transcending any Constitutional dispensation---Pakistan was created in the name of Islam and was predominantly inhabited by Muslims, therefore, the Parliament was most unlikely to, notwithstanding any express or implied Constitutional limitation to that effect or not, amend the Constitution for achieving something which might offend against any express divine command because acting to the contrary may negate the raison d’etre of the country’s conception, creation and existence [Majority view]---However, if at some future stage the people of Pakistan had a change of heart or mind in such respect then the Will of the people would have its way and the aspirations of yore or yesteryears may not be able to shackle it. [Minority view]

(uuu) Constitution of Pakistan---

----Arts. 239(5), (6) & 184(3)---Amendment made to the Constitution---Basic structure of the Constitution, doctrine of---Non-applicability of said doctrine in Pakistan---Pakistan in its short history had seen more than one Constitution and other Constitutional instruments depicting varying salient features---So-called basic features of the different Constitutions and Constitutional instruments in force in Pakistan from time to time vastly oscillated between different forms---Constitution of Pakistan, 1973 itself had been amended from time to time so frequently and so drastically that it was not possible to observe with any degree of certainty as to what its salient features had throughout been---In such circumstances doctrine of basic structure or basic features could not be applied to Pakistan---Detailed reasons stated.

Following are reasons justifying non-applicability of the doctrine of “basic structure” of Constitution in Pakistan.

Theory/doctrine of basic features or basic structure of the Constitution may have some attraction in a country where a Constitution had been acted upon for a long time and where the people of the country had stuck or adhered to the basic features of that Constitution considering the same to be representing continued national aspirations and core values of the society. Such an academic theory may, however, have no relevance to a country like Pakistan which had, quite unfortunately, seen many Constitutional dispensations in its short history depicting varying salient features. Bare look at the Objectives Resolution of 1949, the Constitution of 1956, the Constitution of 1962, the Interim Constitution of 1972 and the Constitution of 1973 besides other Constitutional instruments introduced from time to time like the Legal Framework Orders and the Provisional Constitution Orders, etc. clearly showed that it was practically not possible to lay down in black and white as to what the salient features of our Constitutional dispensations had consistently been. Prescription due to efflux of time and long user, was necessary to gather as to whether a particular feature of the Constitution continued to represent the national aspiration or resolve or not. In the context of Pakistan it was difficult to deny that the so-called basic features or the basic structures of the different Constitutions and Constitutional instruments introduced and practised from time to time had been vastly oscillating between different forms like federal and unitary, one unit and multiple provinces, presidential and parliamentary, unicameral and bicameral, joint electorate and separate electorate, martial and democratic, capitalist and socialist, theocratic and liberal, provincial autonomy and central control, conservative and modern, etc.---Constitution of 1962 initially did not contain any Fundamental Right, and the Fundamental Rights provided in the Constitution of 1973 had mostly remained suspended and when they were operational most of them could be described at best as qualified rights because they were subject to so many conditions or restrictions to be imposed by law. Even the Constitution of 1973 itself had been amended from time to time so frequently and so drastically that it was not possible to observe with any degree of certainty as to what its salient features had throughout been, even if the intermittent and stretched periods of its suspension and abeyance were taken out of consideration. Ever changing Constitutional dispensation in Pakistan had turned (our) Constitution into a rolling stone and the rapidity of its change had not allowed it to gather any moss of fixed values and aspirations to be termed or accepted as its basic features or basic structure. In such circumstances doctrine of basic structure or basic features could not be applied to Pakistan. Aspirations that Pakistan as a society entertained today unfortunately did not have the backing of a consistent and long history of practice and, therefore, the same were yet to mature into basic features of the Constitution for a court of law to accept and apply, if at all.

Mahmood Khan Achakzai and others v. Federation of Pakistan and others PLD 1997 SC 426; The State v. Zia-ur-Rehman PLD 1973 SC 49; Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad and others v. United Sugar Mills Ltd., Karachi PLD 1977 SC 397; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263; Pakistan Lawyers Forum v. Federation of Pakistan PLD 2005 SC 719 and Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457 ref.

Zafar Ali Shah v. Pervez Musharraf Chief Executive of Pakistan PLD 2000 SC 869 per incuriam.

(vvv) Constitution of Pakistan---

----Arts. 70 & 239---Bill introduced in Parliament---Statement of Objects and Reasons, utility of---Scope---Statement of Objects and Reasons accompanying a Bill might sometimes be alluded to by a court for properly understanding or appreciating the spirit of the law proposed and enacted but such Statement of Objects and Reasons had no other utility for the court.

(www) Constitution of Pakistan---

----Part VII [Arts. 175 to 212]---Judicial system, objective of---“Justice for all”---Features of a judicial system that were sine qua non for achieving the objective of “justice for all” stated.

Following are the features of a judicial system that were sine qua non for achieving the objective of “justice for all”.

For accomplishing the objective of justice for all there were different imperatives for a judicial system which were sine qua non and they included impartiality, independence, competence, efficiency and effectiveness. For each of such imperatives different factors played important roles and those for independence included Constitutionally entrenched courts, security of tenure for judges, transparent appointment process, articulated judicial and ethical standards, impartial discipline process, adequate and Constitutionally protected salary, physical security, civil immunity for judicial functions, freedom from interference in decision making from superior judicial officers outside of the appellate process, integration of subordinate courts as full members of the judiciary, separation of the judiciary from the executive, judicial control of its own budget, judicial control of its own administration, judicial control of the curriculum and faculty of judicial education, freedom from arbitrary geographic transfers, avoidance of retrospective legislation that had anything to do with the judiciary, Executive support to enforce judgments even against itself, Executive support to prosecute and punish attempted or actual judicial corruption, Executive restraint from interference in judicial decision making process, an independent Bar, a government sensitive to public opinion, an educated public demanding an independent and impartial judiciary and a free and informed print and electronic media. Similarly, the other imperatives for a judicial system to ensure “justice for all”, i.e. impartiality, competence, efficiency and effectiveness also had multiple factors playing important roles. Judiciary may be absolutely independent but it may still be partial in many ways or that it may be quite independent but incompetent, inefficient or ineffective and, thus, its independence may not be of any avail because the end result may not be just and fair. Judiciary known to be afflicted with its own biases or prejudices may be independent from extraneous influences but it could not be perceived by the public at large as an independent judiciary if it did not decide cases brought before it with the requisite independence of mind. In this view of the matter if “justice for all” was an ideal or an aspiration to be achieved then mere independence of the judiciary may not serve the purpose as long as the other imperatives were not simultaneously ensured.

(xxx) Constitution (Eighteenth Amendment) Act (X of 2010)---

----Ss. 67, 68, 69 & 74---Constitution (Nineteenth Amendment) Act (I of 2011), S. 4--- Constitution of Pakistan, Arts. 175A, 175(3) & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Process of appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Role of Judicial Commission and Parliamentary Committee in the appointment process of Judges---Constitutionality---Independence of judiciary---Separation of Judiciary from the Executive---Scope---Contention of petitioners that independence of judiciary was inextricably linked and connected with the Constitutional process of appointment of Judges of the superior judiciary, and, therefore, changes brought by the Eighteenth Amendment politicized such process by involving politicians in the same, which directly impinged upon independence of the judiciary---Validity---People of Pakistan were the actual stake-holders for whose benefit the judicial system was created, thus their involvement in the appointment of judges through their chosen representatives could not be termed as “politicizing the matter”---People of Pakistan through their chosen representatives had the right to change the mode of judicial appointments set out in the Constitution---Constitution and different laws of Pakistan already recognized involvement of one organ of State in appointments in another organ---When the Constitution of Pakistan spoke of independence of the judiciary it spoke of independence of the judiciary as an existing organ when the Judges already stood appointed---After a person became a part of the Judiciary the mechanisms of independence of the judiciary set out by the Constitution became operational and started protecting it from the organs other vis-a-vis its functional autonomy, thus, concept of independence of judiciary could not be stretched to the process of appointment of Judges---Article 175A of the Constitution also marginalized the roles of the President, the Prime Minister and the ruling party in appointment of judges of the superior courts, to avoid any undue influence in appointments---Involvement of the Parliament through a Parliamentary Committee in the process of appointment of Judges of the superior courts was, thus, not likely to impinge upon independence of the judiciary and it also did not offend the concept of separation of powers between the Judiciary and the Executive---Detailed reasons stated.

Following are the reasons for upholding the process of appointment of Judges of the superior courts provided under Article 175A of the Constitution [as added by the Eighteenth Amendment and subsequently amended by the Nineteenth Amendment to the Constitution].

People of Pakistan were the most important stake-holders in the matter of appointment of Judges of the superior courts, therefore, their involvement in the same through their chosen representatives could not be termed as politicizing the matter. People were the actual stake-holders for whose benefit and welfare, the judicial system stood created. Judicial office may be a high office carrying a lot of prestige and honour but it could not be denied that the people were the ultimate worldly sovereign as well as the paymasters and if they wished to have a direct role in the matter of hiring persons for such office then such role could not be denied to the sovereign paymasters by branding it as politicization.

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

Appointment of judges was essentially an Executive function. Constitution and different laws of Pakistan already recognized involvement of some other organs in appointments or elections to a different organ inasmuch as appointments to the Executive involved the Legislature laying down the parameters, qualifications and procedures, etc. and the judiciary participating in the process of selection through membership of the Public Service Commissions and also judicially scrutinizing the appointments when challenged so as to ensure adherence to the required parameters, qualifications and procedures, etc.; elections to the Legislature involved the Election Commission comprising of Judges holding the elections, the Executive arranging and organizing such elections and the judiciary ensuring that only eligible and genuinely elected candidates became members of the Legislature --- Such involvement of the other organs was meant to ensure inter alia legality, regularity, correctness and fairness of the process of appointment or election and also to make the process democratic and participatory, conferring acceptability of all the stake-holders upon the appointments made or the elections held. After such participatory manner of appointment or election, the relevant organ stood constituted or persons became part of that organ and thereafter independence of that organ or its duly appointed or elected members actually started. According to the Constitutional scheme of Pakistan, independence of an organ or of its members started after the organ stood constituted and its members were duly appointed or elected to the same, therefore, the concept of independence of an organ could not be unduly stretched or applied to the process of appointment or election to an organ, especially where such process was made participatory and democratic by the Constitution itself. Involvement of the Parliament or the Parliamentarians in the process of appointment of judges of the superior courts, therefore, was not likely to impinge upon independence of the judiciary.

Under the new process of appointment of judges of superior courts provided under Article 175A of the Constitution, no other organ, authority or person could get anybody appointed as a judge of any superior court if the Judicial Commission dominated by judges did not nominate him for appointment. Besides it was incumbent upon the Parliamentary Committee to record its reasons for not confirming a nomination made by the Judicial Commission, and such reasons recorded by the Parliamentary Committee were also justiciable before the Supreme Court.

Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407; Federation of Pakistan through Secretary Ministry of Law v. Munir Hussain Bhatti and others PLD 2011 SC 752 and Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs and Justice, Islamabad v. Sindh High Court Bar Association through President and another PLD 2012 SC 1067 ref.

Article 175A of the Constitution ensured equal representation of the Treasury and the Opposition Benches in the Parliamentary Committee and the manifest intention in such regard was to further obviate any undue influence of the government of the day or the ruling party in the matter of appointment of judges of the superior courts. If taken in the positive spirit, the Parliament appeared to have gone an extra mile by expanding the consultative process and at the same time reducing and marginalizing the roles of the President, the Prime Minister and the ruling party in such matter in order to cleanse the appointments process of undue influence of the political executive.

Inclusion of politicians through the Parliamentary Committee in the process of appointment of judges of the superior judiciary did not offend the concept of separation of powers. Separation of the judiciary from the Executive mandated by Article 175(3) of the Constitution primarily pertained to separation regarding performance of respective functions by the two organs of the State and not to a general prohibition regarding any interaction between them whatsoever even where such interaction was contemplated or provided for by the Constitution itself in non-judicial matters. In terms of Article 175A of the Constitution (added by the Eighteenth Amendment) specified members of the judiciary participated in the consultative and deliberative process of appointment of judges of the superior courts. Such participation of judges in the appointment process was as persona designata and they did not perform any judicial function in that capacity. Participation of the Executive and the judiciary in the consultative or deliberative process prior to an appointment, and participation of even the Legislature in such appointment process, thus, could not be said to be offensive to the Constitutional concept of separation of powers.

Government of Sindh and others v. Sharaf Faridi and others PLD 1994 SC 105 ref.

In Pakistan the experience with the previous systems or methods of appointment of judges of the superior courts had, unfortunately, failed to convince the people of its continued efficacy or utility and, arguably, Article 175A in the Constitution (as added by the Eighteenth Amendment and subsequently amended by the Nineteenth Amendment) was a vote of no-confidence against the previous systems and the people surely had the right to change the mode of achieving the original ideal or the machinery provisions in such regard.

Independent judiciary was just one of the tools to be employed for achieving the ideal of justice for all. Independence of the judiciary or adoption of a particular mode of appointment of judges of the superior judiciary was not an end in itself but it was only one of the means to the end. Judiciary may be absolutely independent but it may still be partial in many ways or that it may be quite independent but incompetent, inefficient or ineffective and, thus, its independence may not be of any avail because the end result may not be just and fair. Judiciary known to be afflicted with its own biases or prejudices may be independent from extraneous influences but it could not be perceived by the public at large as an independent judiciary if it did not decide cases brought before it with the requisite independence of mind.

Particular mode of judicial appointments deemed appropriate by the society for achieving justice for all at one point of time could not be stated to be the only mechanism or methodology with which the society was to be stuck for ever.

(yyy) Academic doctrines/theories---

----Utilization of such doctrines/theories by courts for deciding Constitutional and legal issues---Caution to be exercised by courts---Court must exercise caution against unthoughtful utilization of purely academic theories while adjudicating upon practical issues, particularly in matters affecting governance and running of the State---Academic theories depicting intellect, scholarship and ingenuity and advanced through a lecture or a book were like intellectual kite-flying which may be essential or useful for intellectual growth, making contribution to jurisprudence and advancement of learning through triggering thought processes but such theories remained in the air till they attained general acceptability on the ground---Hazardous consequences may follow where a court of law decided Constitutional or legal issues solely on the basis of half-baked academic theories until such theories matured and seasoned as doctrines fit for being used as standards or yardsticks and until they attained general acceptability or widespread recognition.

(zzz) Constitution of Pakistan---

----Arts. 2A & 238---Objectives Resolution, status of---Amendment to the Constitution---Objectives Resolution was not to be given a status higher than that of other provisions of the Constitution---Provisions of Art.2A of the Constitution or of the Objectives Resolution could not be used as a touchstone or a test of repugnancy or contrariety vis-a-vis the other provisions of the Constitution or an amendment to the Constitution.

Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 and Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901 ref.

(aaaa) Interpretation of Constitution---

----Conflict between two or more fundamental principles or core values of a Constitution---Approach to be adopted by the court to resolve such a conflict--- Survey of case-law from Canada, Germany, United States of America, United Kingdom, India and Pakistan to demonstrate the approach adopted by courts of said countries to resolve such a conflict.

Reference Re Secession of Quebec [1998] 2 S.C.R. 217; R v. Oakes [1986] 1 S.C.R 103; Ross v. New Brunswick School District No.15 [1996] 1 S.C.R. 825; R v. S. (N.) 2012 SCC 72; Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R 385; R v. Keegstra [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor [1990] 1 S.C.R 892; R v. Mills [1999] 3 S.C.R. 668; Roe v. Wade (No. 70-18) 410 U.S. 113; Capitol Square Review and Advisory Board v. Pinette 515 U.S. 753; New York Times Co. v. United States Supreme Court 403 U.S. 713; Schenck v. U.S. (1918) 249 U.S. 47; A.G. v. Times Newspaper (1974) A.C. 273; Chintaman Rao v. M. P. (1950) S.C.R. 759; Madras v. V. G. Row (1952) S.C.R. 597; Ramji Lal Modi .v. U.P. (1955) 1 S.C.R. 1004; Babulal Parate v. Maharashtra (1961) 3 S.C.R. 423; S. Rangarajan v. P. Jagjivan Ram (1989) 2 S.C.C. 574; East and West Steamship Company v. Pakistan PLD 1958 SC 41; Independent Newspaper Corporation (Pvt.) Ltd. v. Chairman Fourth Wage Board and Implementation Tribunal for Newspaper Employees 1993 PLC 673; Jameel Ahmed Malik v. Pakistan Ordnance Factories Board 2004 SCMR 164 and Pakistan Muslim League v. Federation PLD 2007 SC 642 ref.

(bbbb) Constitution of Pakistan---

----Arts. 184(3) & 199---Executive action---Legislative action---Judicial review by superior courts---Scope---Judicial review of executive action and judicial review of legislative action stood expressly recognized by the Constitution.

(cccc) Constitution of Pakistan---

----Arts. 175(2), 184(3), 199, 238 & 239(5)---Amendment to the Constitution---Judicial review---Scope---People of Pakistan had given no mandate to the Judges or courts qua judicial review of Constitutional amendments and the same was evident from the provisions of Arts. 175(2) & 239(5) of the Constitution---According to Art.175(2) of the Constitution “No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law” and Art. 239(5) stipulated that “No amendment of the Constitution shall be called in question in any court on any ground whatsoever”---However, despite the ouster of jurisdiction clause contained in Art. 239(5) of the Constitution there may still be available a window for challenging a Constitutional amendment and such window was provided by Art. 238 of the Constitution---According to Art.238 of the Constitution the power to amend the Constitution was subject to Part XI of the Constitution which comprised of Arts. 238 & 239, thus, apparently the only challenge to a Constitutional amendment conceived by the Constitution was if such amendment was not brought about in terms of the requirements of or in terms of the mechanisms provided by Arts. 238 & 239 of the Constitution. [Minority view]

(dddd) Constitution of Pakistan---

----Preamble--- “Representatives of the people”--- Delegation of sovereignty by the people to their representatives---Effect---In the Constitutional scheme the people, while electing their representatives, invested such representatives with all the legislative and constituent powers to be exercised on their behalf and did not reserve any right to be consulted before exercise of such powers, irrespective of the gravity of the issue involved---Such investment and delegation of authority by the people in favour of their elected representatives was clearly borne out from the Preamble to the Constitution itself---After electing their representatives the people exhausted their sovereignty and for the ensuing term of the Parliament the elected representatives were competent to exercise the people‘s sovereignty without consulting them and without seeking instructions from them.

Dewan Textile Mills Ltd. v. Pakistan and others PLD 1976 Kar. 1368 ref.

(eeee) Constitution of Pakistan---

----Arts. 184(3) & 199---Judicial review by superior courts---Scope and grounds---Constitutional scheme or system could not be condemned or struck down by a court of law merely on the basis of its hypothetical impracticality or conjectural absurdity---Court had to keep in mind that at its inception every system of whatever kind was likely to face some practical hiccups but continued practice of the system ironed out the difficulties and paved way for its smooth functioning.

(ffff) Interpretation of Constitution---

----Conflicting provisions in a Constitution---Where harmonizing two conflicting provisions of a Constitution was impossible then the provision carrying more weight was to be preferred over the other carrying lesser weight.

(gggg) Constitution of Pakistan---

----Part III, Chapter 2 [Arts. 50 to 89] & Part VII [Arts. 175 to 212]---Sovereignty of the Parliament---Independence of the judiciary---Conflicting provisions in the Constitution---Where as a result of two conflicting provisions in the Constitution independence of the judiciary was found to be pitched against sovereignty of the Parliament then, one should lean in favour of sovereignty of the Parliament because without a sovereign Parliament there may not be true democracy and without true democracy independence of the judiciary may be nothing more than an illusion.

(hhhh) Constitution of Pakistan---

----Part VII [Arts. 175 to 212]---Judiciary and Executive---Distinct roles in society---Application of laws---Maintenance of order---Judiciary’s role in the society was to ensure proper application of the laws and it ought never to be expected to become a limb, extension or tool of the Executive in the matter of achieving or maintaining order howsoever bad the Executive‘s performance may be in discharging its functions in such regard.

(iiii) Constitution (Twenty-first) Amendment Act (I of 2015)---

----Ss. 2, 3 & Preamble---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Preamble---Constitution of Pakistan, Arts. 75(3) & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Military Courts---Trial of civilians in Military Courts---Constitutionality---Jurisdiction given to Military Courts under Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015, for conducting trial of civilians was not “founded” on any power conferred by any provision of the Constitution---In terms of Art. 75(3) of the Constitution, Pakistan Army (Amendment) Act (II of 2015) had not even come into existence as a law till coming into existence of Constitution (Twenty-first) Amendment Act (I of 2015), thus, the latter Act could not possibly extend any Constitutional or legal protection to the former Act which had not become law by then---Pakistan Army (Amendment) Act (II of 2015) was declared to be unconstitutional, and all trials and appeals decided by the Military Courts deriving authority from the said Act were to be treated as non est---Since Pakistan Army (Amendment) Act, 2015 was declared to be unconstitutional , therefore, the Constitution (Twenty-first Amendment) Act, 2015 lost its raison d’etre, efficacy and utility---Detailed reasons stated. [Minority view]

Following are the reasons for declaring trial of civilians, accused of certain type of offences, in Military Courts under the Constitution (Twenty-first Amendment) Act, 2015, and Pakistan Army (Amendment) Act, 2015, as unconstitutional.

Through the Constitution (Twenty First) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015, trial of civilians by Military Courts for some specified offences had been made permissible, but the military courts’ jurisdiction for such trial of civilians was not “founded” on any power conferred by any provision of the Constitution. The Pakistan Army (Amendment) Act, 2015 made it permissible for the already established military courts to try a specified category of civilians, and the Constitution (Twenty First Amendment) Act, 2015 only referred to such trials to be conducted by the Military Courts under the Pakistan Army (Amendment) Act, 2015. Preamble to The Pakistan Army (Amendment) Act, 2015, itself recognized that the Military Courts to try civilians were established under the Pakistan Army Act, 1952 and that such courts were not created, constituted or established by or under the Constitution, thus it was obvious that the jurisdiction of military courts for trial of civilians was still not “founded” on any power conferred by any provision of the Constitution. Any Special Court constituted by an Act of Parliament was to be unconstitutional unless its creation was “founded on a Constitutional provision”. Even an Act of Parliament would not enable the Armed Forces to perform the judicial functions unless it was “founded” on the power conferred by a Constitutional provision. Constitution (Twenty First) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015, which made it permissible for the military courts to try civilians, were unconstitutional, without lawful authority and of no legal effect.

Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

Constitution (Twenty First) Amendment Act, 2015 amended Article 175 of the Constitution and also sub-part III of Part I of the First Schedule to the Constitution in an attempt to ensure that the concept of separation of powers and the notion of judicial review, administrative control and supervision of the Supreme Court and the High Courts over all matters judicial in nature did not apply to the trial of civilians by the Military Courts for the offences contemplated by the Pakistan Army (Amendment) Act, 2015, and also to keep such trials by Military Courts away from application or enforcement of all the Fundamental Rights otherwise guaranteed by the Constitution. However, Constitution (Twenty First) Amendment Act, 2015, had been assented to by the President before assenting to Pakistan Army (Amendment) Act, 2015, and by virtue of Article 75(3) of the Constitution a Bill became law and it could be called an Act of Majlis-e-Shoora (Parliament) only after receiving assent of the President. In terms of Article 75(3) of the Constitution, thus, Pakistan Army (Amendment) Act, 2015 had not even come into existence as a law till coming into existence of Constitution (Twenty First) Amendment Act, 2015, and, therefore, the latter Act could not possibly extend any Constitutional or legal protection or immunity to the former Act which had not become law by then.

Saiyyad Abul A’la Maudoodi and others v. The Government of West Pakistan, through Secretary to Government of West Pakistan, Home Department, Lahore PLD 1964 Kar. 478 and Khalid M. Ishaque, Ex-Advocate-General v. The Hon’ble Chief Justice and the Judges of the High Court of West Pakistan PLD 1966 SC 628 distinguished.

Pakistan Army (Amendment) Act, 2015 was declared to be unconstitutional, without lawful authority and of no legal effect. As a consequence all the trials conducted and the appeals decided by the military courts deriving authority from the Pakistan Army (Amendment) Act, 2015 were to be treated as non est and all the judgments delivered by invoking said law were rendered incapable of implementation and execution. Since Pakistan Army (Amendment) Act, 2015 was declared to be unconstitutional, the Constitution (Twenty First Amendment) Act, 2015 had lost its raison d’etre, efficacy and utility.

(jjjj) Constitution of Pakistan---

----Art. 245(1)---Armed Forces acting under directions of Federal Government, functions of---‘External aggression’---‘Internal disturbance’---In the context of the first part of Art. 245(1) of the Constitution the words “defend Pakistan against external aggression or threat of war” were to be read together and conjunctively to cater for an actual external aggression or a threatened external aggression---Second part of Art. 245(1) of the Constitution dealing with the Armed Forces acting “in aid of civil power” was relevant to internal disturbance, be it a civil commotion, natural or other disaster, insurrection or insurgency, etc.

(kkkk) Words and phrases---

----“War”---Definition and meaning.

Corpus Juris Secundum and American Jurisprudence, Second Edition (1975) ref.

(llll) Constitution of Pakistan---

----Arts. 8(2), 8(3)(b)(i), 8(3)(b)(ii) & First Sched.---Laws excluded/ exempted from the application and enforcement of Fundamental Rights---Scope---Article 8(2) of the Constitution closed the door upon any future law to be exempted from application and enforcement of the Fundamental Rights being guaranteed by the Constitution---Provisions of Art. 8(3)(b)(i) of the Constitution only allowed amendments to the already exempted laws to be also exempted, but never allowed any other independent law to be added to the list of the already exempted laws---Words “other laws specified in Part I of the First Schedule” appearing in Art. 8(3)(b)(ii) of the Constitution referred to the laws specified in Part I of the First Schedule on the commencing day of the Constitution leaving no room for addition to the list of the specified laws at any future stage. [Minority view]

(mmmm) Constitution (Twenty-first) Amendment Act (I of 2015)---

----Ss. 2, 3 & Preamble---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Preamble---Anti-Terrorism Act (XXVII of 1997), Ss. 19 & 25---Penal Code (XLV of 1860), Preamble---Protection of Pakistan Act (X of 2014), Preamble--- Constitution of Pakistan, Art. 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Military Courts---Trial of civilians in Military Courts---Constitutionality---Contention that civilians accused of certain offences should face a “speedy trial” in Military Courts due to the extraordinary situation and circumstances existing in Pakistan, which demanded special measures for speedy trial of certain offences relating to terrorism, waging of war or insurrection against Pakistan---Validity---Offences relating to terrorism, waging of war or insurrection against Pakistan and acts threatening the security of Pakistan were offences recognized and catered for by the Pakistan Penal Code, 1860, Anti-Terrorism Act, 1997 and the Protection of Pakistan Act, 2014 and the only declared purpose for making it permissible for Military Courts constituted under the Pakistan Army Act, 1952 to try such offences was “speedy trial”of such offences---However, a comparison of Ss. 19 & 25 of the Anti-Terrorism Act, 1997 with the relevant provisions of the Pakistan Army Act, 1952 showed that a trial and an appeal under the Anti-Terrorism Act, 1997 were far speedier than those under the Pakistan Army Act, 1952, making it evident that the actual purpose for making it permissible for military courts to try civilians was not “speedy trial” but something else and that undisclosed something else could not be achieved through or delivered by the normal courts of the country which were trained to dispense and achieve nothing but justice according to law---Present spate of terrorism in Pakistan might be a momentary phase or phenomenon, therefore, it may be imprudent to compromise or injure the permanent moral, religious and Constitutional value of justice for tackling such transitory menace---Phenomenon of terrorism in Pakistan might have devoured thousands innocent citizens, soldiers and policemen but compromising justice for combating such menace may be a death knell for the value system of the entire nation---Pakistan Army (Amendment) Act, 2015 was unconstitutional, without lawful authority and of no legal effect, and all trials and appeals decided by the Military Courts deriving authority from the Pakistan Army (Amendment) Act, 2015 were to be treated as non est---Since Pakistan Army (Amendment) Act, 2015 was unconstitutional, therefore, the Constitution (Twenty-first) Amendment Act, 2015 lost its raison d’etre, efficacy and utility---Constitutional petition was partially allowed accordingly. [Minority view]

Abid Hussain and another v. Chairman, Pakistan Bait-ul-Mal and others PLD 2002 Lah. 482 and Holy Qur’an: Surah 5, Verse 8 ref.

(nnnn) Constitution of Pakistan---

----Art. 199(3)---Pakistan Army Act (XXXIX of 1952), Preamble---Proceedings in Military Court---Ouster of jurisdiction of the High Court---Scope---Ouster of jurisdiction of High Court under Art. 199(3) of the Constitution was not relevant where the impugned proceeding, action or order of a Military Court was without jurisdiction, coram non judice or mala fide.

Brig. (Retd.) F. B. Ali and another v. The State PLD 1975 SC 506; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Sabur Rehman and another v. Government of Sindh and 3 others PLD 1996 SC 801; Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Mst. Tahira Almas and another v. Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and another PLD 2002 SC 830; Mushtaq Ahmed and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others PLD 2007 SC 405; Ghulam Abbas Niazi v. Federation of Pakistan and others PLD 2009 SC 866; Federation of Pakistan through Secretary Defence and others v. Abdul Basit 2012 SCMR 1229; Rana Muhammad Naveed and another v. Federation of Pakistan through Secretary Ministry of Defence 2013 SCMR 596 and Ghulam Abbas v. Federation of Pakistan through Secretary, Ministry of Defence and others 2014 SCMR 849 ref.

Per Sarmad Jalal Osmany, J; dismissing petitions against Constitution (Eighteenth Amendment) Act (X of 2010) and Constitution (Twenty-first) Amendment Act (I of 2015).

(oooo) Public office---

----All public offices were in the nature of a trust which included those of the Judiciary, Executive and Legislature.

(pppp) Constitution of Pakistan---

----Preamble---“Salient Features” of the Constitution of Pakistan---Independence of the judiciary, Federalism, and Parliamentary form of Government blended with Islamic provisions were the “Salient Features” of the Constitution.

(qqqq) Constitution of Pakistan---

----Arts. 239(5), 239(6), 184(3) & Part II, Chapter 1 [Arts. 8 to 28]---Amendment to the Constitution---Judicial review---Grounds---Any amendment to the Constitution which would deny the people of Pakistan their freedom per their Fundamental Rights or the form of Government which they had chosen or the independence of the judiciary could never be condoned.

(rrrr) Constitution (Eighteenth Amendment) Act (X of 2010)---

----S. 22---Constitution of Pakistan, Arts. 63A & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Disqualification/de-seating of Member of Parliament on ground of defection---Article 63A of the Constitution (as amended by the Eighteenth Amendment)---Constitutionality---Changes brought in Art. 63A of the Constitution by the Eighteenth Amendment appeared to be reasonable and also necessary for the maintenance of party discipline, stability and smooth functioning of democracy in Parliament---Eighteenth Amendment also introduced in Art. 63A of the Constitution inbuilt safeguard mechanism for a member of Parliament before he was disqualified---Besides any declaration of disqualification was justiciable before the Supreme Court---Changes made to Art. 63A of the Constitution by the Eighteenth Amendment did not in any manner undermine or violate the basic structure of the Constitution---Detailed reasons stated.

Following are the reasons for upholding the changes made to Article 63A of the Constitution by the Eighteenth Amendment to the Constitution.

Article 63A of the Constitution as it originally stood before being amended by the Eighteenth Amendment brought stability in the polity of the country by eradicating the vice of floor crossing, and it was also in consonance with the Quran and Sunnah as the same enjoined its believers to honour their commitments. In its present shape vide the Eighteenth Amendment there was no significant change to the original Article 63A of the Constitution other than the scope of the directions in specific matters mentioned in sub-paragraphs (i) to (iii) of Article 63(1)(b) had been enhanced. Changes brought in Article 63A of the Constitution by the Eighteenth Amendment appeared to be reasonable and also necessary for the maintenance of party discipline, stability and smooth functioning of democracy in Parliament.Eighteenth Amendment also introduced in Article 63A of the Constitution inbuilt safeguard mechanism for a Member before he was disqualified by giving him an opportunity to show cause why a declaration that he/she had defected from the party may not be made. Such declaration was then sent to the Presiding Officer of the concerned House and copied to the Election Commission and finally the Election Commission was required to decide the same which was justiciable before the Supreme Court. Such safeguards adequately protected a party member from being disqualified if he merely debated or raised a point of order in the House against a particular issue being discussed in the Parliament and even if he did decide to vote against his party as a matter of conscience, he had legal redress up to the Supreme Court. Changes made to Article 63A of the Constitution by the Eighteenth Amendment did not in any manner undermine or violate the basic structure of the Constitution.

(ssss) Constitution (Eighteenth Amendment) Act (X of 2010)---

----Ss. 67, 68, 69 & 74---Constitution (Nineteenth Amendment) Act (I of 2011), S. 4---Constitution of Pakistan, Arts. 175A & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Procedure of appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Judicial Commission and Parliamentary Committee---Inclusion of non-judicial persons and politicians in the Judicial Commission and Parliamentary Committee---Constitutionality---Inclusion of persons other than the Judges of the superior courts in the appointment of Judges was a salutary provision---Judges could not claim to be the repository of all wisdom insofar as the antecedents of a candidate were concerned---Judges could evaluate the professional worth of a nominee i.e. his knowledge of the law, his grasp of legal principles and his acumen as a lawyer but the other qualities required of a Judge which were his impeccable integrity, character and reputation etc. could perhaps best be ascertained by non-judicial members of the Judicial Commission as well as the Parliamentary Committee who were not as aloof from society as Judges were supposed to be---Furthermore where the Parliamentary Committee did not endorse the nomination of the Judicial Commission the same was justiciable (before the Supreme Court)---Process of appointment of judges to the superior courts provided under Art. 175A of the Constitution (as added by the Eighteenth Amendment and subsequently amended by the Nineteenth Amendment) did not militate against the independence of the judiciary or for that matter any other provision of the Constitution---Constitutional petition was dismissed accordingly.

Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 308 ref.

(tttt) Constitution (Twenty-first) Amendment Act (I of 2015)---

----Ss. 2, 3 & Preamble---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Preamble---Protection of Pakistan Act (X of 2014), Preamble---Constitution of Pakistan, Arts. 4 & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Military Courts---Trial of civilians in Military Courts---Constitutionality ---Constitution (Twenty-first) Amendment Act, 2015, and Pakistan Army (Amendment) Act, 2015, gave jurisdiction to the Military Courts for the trial of such persons who claimed or were known to belong to any terrorist group or organization using the name of a religion or a sect and raised arms or waged war against Pakistan etc., or attacked the armed forces or law enforcement agencies of Pakistan---State of Pakistan was presently passing through difficult times, as the terrorists/insurgents who were to face trials before the Military Courts were desperate persons whose avowed objective was to destabilize the Government and the State of Pakistan and to establish their own writ based upon their own interpretation of religion---Trial conducted by Military Courts provided the accused with all the basic rights available in a criminal trial---Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act 2015 did not militate against the essential features of the Constitution---Detailed reasons stated.

Following are the reasons for upholding the Constitution (Twenty-first) Amendment Act, 2015 and the Pakistan Army (Amendment) Act, 2015, which permitted trial of civilians, accused of certain type of offences, in Military Courts.

By way of the Constitution (Twenty First) Amendment Act, 2015, the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 were added to the First Schedule to the Constitution, with the intent to obviate any challenge thrown to the trial of certain type of accused-terrorists by Military Courts on the ground that it was violative of their Fundamental Rights. Pakistan Army Act, 1952 has been amended by Pakistan Army (Amendment) Act, 2015 to give jurisdiction to the Military Courts for the trial of such persons who claimed or were known to belong to any terrorist group or organization using the name of a religion or a sect and raised arms or waged war against Pakistan etc., or attacked the armed forces of Pakistan or law enforcement agencies or attacked any civil or military establishment of Pakistan etc. Pakistan was a nation presently at war as persons who claimed to belong to different religious organizations or sects were engaged in an insurgency in order to propagate their own view of religion. Objectives of such insurgents were no secret and in short these were to grab political and economic power of the State through force of arms. Such insurgents operated in the name of religion and murdered, decapitated, tortured and ended the lives of innocent people whom they perceived to be their enemies only because they did not subscribe to their particular brand of religion. Desperation of these insurgents was such that they did not even spare women and children while carrying out their agenda of challenging the writ of the State of Pakistan. Extension of the Military Courts’ jurisdiction over such terrorist elements, thus, would not in any manner militate against the independence of judiciary as desperate times called for desperate measures. By no stretch of imagination could it be said that these insurgents were ordinary criminals because they were waging a war against the State of Pakistan and hence they could not claim protection of Article 4 i.e. right to be dealt in accordance with law. Such persons could certainly be subjected to a more stringent/strict regime of trial.

In a criminal trial the basic rights of an accused were to be apprised of the charge against him, the right to counsel of his choice, the right to cross-examine the prosecution witnesses and the right to lead his own evidence. All such rights were available to an accused before a Military Court. Besides those persons who were convicted by the Military Courts could approach the superior courts if they could establish that their trial was mala fide or without jurisdiction or coram non judice. Consequently the Constitution (Twenty First) Amendment Act, 2015 did not militate against the essential features of the Constitution and neither did the Pakistan Army (Amendment) Act, 2015.

Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506 ref.

Per Ejaz Afzal Khan, J; dismissing petitions against Constitution (Eighteenth Amendment) Act (X of 2010); allowing petitions against the Constitution (Twenty-first) Amendment Act (I of 2015) and Pakistan Army (Amendment) Act, 2015, and declaring the same to be ultra vires the Constitution and consequently non est.

(uuuu) Constitution of Pakistan---

----Arts. 2A, 239(5), 239(6), 184(3) & Preamble---Basic structure of the Constitution, doctrine of---Applicability and scope of said doctrine in Pakistan---Amendment to the Constitution, vires of---Constitution of Pakistan was amenable to amendments so long as the amendment sought to be made did not alter the parts forming its basic structure---Supreme Court had jurisdiction to examine the vires of any amendment in the Constitution and annul it, if it impaired, undermined or altered any of the parts forming basic structure of the Constitution---Article 239(5) & (6) of the Constitution could not curtail such power and jurisdiction of the Supreme Court---Parts forming the basic structure of the Constitution of Pakistan were democracy; Fundamental Rights; independence of judiciary; separation of powers; federal character of the Constitution; protection of the rights of minorities; declaration that any law or any custom or usage having the force of law, insofar as it was inconsistent with the rights conferred by Chapter 1 of Part II of the Constitution shall to the extent of such inconsistency be void; declaration that the State shall not make any law which took away or abridged the Fundamental Rights so conferred; declaration that any law made in contravention of Art. 8(2) of the Constitution shall to the extent of such contravention be void; declaration that all the existing laws shall be brought in conformity with the Injunctions of Islam and that no law shall be enacted which was repugnant to such injunctions---Said parts forming the basic structure of the Constitution were based on eternal and unalterable values which did not change with the changes around. [Minority view]

Miss Asma Jilani v. The Government of the Punjab and another PLD 1972 SC 139 and The State v. Zia-ur-Rehman and others PLD 1973 SC 49 distinguished.

Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595; Mst. Kaneez Fatima v. Wali Muhammad and another PLD 1993 SC 901; Mahmood Khan Achakzai v. Federation of Pakistan and others PLD 1997 SC 426; Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263 and Pakistan Lawyers Forum and others v. Federation of Pakistan and others PLD 2005 SC 719 not followed.

Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Golak Nath v. State of Punjab AIR 1967 SC 1643; Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 and Jackson and others v. Her Majesty’s Attorney General [2005] UKHL 56 ref.

(vvvv) Constitution of Pakistan---

----Arts. 2 & 239(6)---Power of Parliament to amend the Constitution---Scope and limitations---Islam as the State religion of Pakistan---Islam was the structural base of the homeland (i.e. Pakistan) founded for Muslims on the basis of the “Two Nation Theory”---Parliament could not, therefore, replace Islam with secularism, as that was what the Muslims of the subcontinent aspired and endeavored for---Islam was in essence the raison d‘etre for the establishment of the separate homeland (i.e. Pakistan)---Parliament could not, therefore, amend the Constitution to make Pakistan a secular State.

(wwww) Constitution of Pakistan---

----Arts. 1 & 239(6)---Power of Parliament to amend the Constitution---Scope and limitations---Pakistan as a Federation---Parliament could not amend the Constitution to replace Federation of Pakistan with a Confederation.

(xxxx) Constitution of Pakistan---

----Preamble--- Parliamentary sovereignty, doctrine of--- Non-applicability of said doctrine in Pakistan---Sovereignty of Parliament (in Pakistan) was not absolute---Court while interpreting the Constitution need not be swayed by the doctrine of sovereignty of Parliament.

(yyyy) Constitution (Eighteenth Amendment) Act (X of 2010)---

----Ss. 67, 68, 69 & 74---Constitution (Nineteenth Amendment) Act (I of 2011), S. 4---Constitution of Pakistan, Arts. 175A & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Procedure for appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court provided under Art. 175A of the Constitution (as added by the Eighteenth Amendment and subsequently amended by the Nineteenth Amendment to the Constitution)---Constitutionality---Eighteenth Amendment to the Constitution did not contain anything which impinged upon the independence of judiciary or impaired or altered any of the parts forming the basic structure of the Constitution---In such circumstances Eighteenth Amendment to the Constitution could not be annulled---Constitutional petition against the Eighteenth Amendment to the Constitution was dismissed accordingly.

(zzzz) Constitution (Twenty-first) Amendment Act (I of 2015)---

----Ss. 2, 3 & Preamble---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Preamble---Pakistan Air Force Act (VI of 1953), Preamble---Pakistan Navy Ordinance (XXXV of 1961), Preamble---Protection of Pakistan Act (X of 2014), S. 8---Anti-Terrorism Act (XXVII of 1997), S. 13---Constitution of Pakistan, Arts. 175, 203 & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Military Courts---Trial of civilians in Military Courts---Constitutionality---Proviso added to Art.175 of the Constitution by the Constitution (Twenty-first Amendment) Act, 2015 sought to exclude the application of said Article to the trial of certain terrorists in Military Courts under the Pakistan Army Act, 1952, Pakistan Air Force Act, 1953, Pakistan Navy Ordinance, 1961, and Protection of Pakistan Act, 2014---Such Military Courts, however, were not conferred any jurisdiction in terms of Art. 175 of the Constitution to try the terrorists, and were thus, coram non judice---No court could try any person and decide any lis without being established and vested with the requisite jurisdiction by the Constitution or by or under any law---Furthermore the Anti-Terrorism Courts (established under the Anti-Terrorism Act, 1997) and Special Courts (established under Protection of Pakistan Act, 2014) were already in place to conduct trials of certain types of persons, who were specified in the Constitution (Twenty-first) Amendment Act, 2015---Addition of Proviso to Art. 175 of the Constitution by the Constitution (Twenty-first) Amendment Act, 2015, was, thus, against the basic structure of the Constitution and thus non est---Detailed reasons stated. [Minority view]

Following are the reasons for declaring Constitution (Twenty-first) Amendment Act, 2015, and Pakistan Army (Amendment) Act, 2015 as ultra vires the Constitution and thus non est.

Article 175 of the Constitution dealt with establishment of the Supreme Court, High Courts and other Courts, and the conferment of jurisdiction and restraint on exercise of jurisdiction not conferred on such courts. Said provision ensured independence of judiciary, its separation from the executive and thereby laid basis for trichotomy of power. Proviso was added to Article 175 of the Constitution by the Constitution (Twenty First Amendment) Act, 2015 which sought to exclude the application of said Article to the trial of persons in Military Courts under the Pakistan Army Act, 1952, Pakistan Air Force Act, 1953, Pakistan Navy Ordinance, 1961, and Protection of Pakistan Act, 2014, who belonged to any terrorist group or organization using the name of religion. Such Military Courts, however, were not conferred any jurisdiction in terms of Article 175 of the Constitution to try such persons. Question was as to how could Military Courts be said to have been founded under the provisions of the Constitution when the provision (Article 175) dealing with the establishment of Courts and conferment of jurisdiction by the Constitution or by or under any law had been rendered nugatory by the addition of the proviso thereto? No forum or court could try any person and decide any lis without being established and without being vested with the requisite jurisdiction by the Constitution or by or under any law.

No court or tribunal could lawfully share judicial power with the courts referred to in Articles 175 and 203 of the Constitution unless founded on the provisions of the Constitution. If courts were allowed to be founded in derogation of Article 175 of the Constitution the superstructure together with the infrastructure of rule of law would inevitably crumble into ruins. Anti-Terrorism Courts (established under the Anti-Terrorism Act, 1997) and Special Courts (established under Protection of Pakistan Act, 2014) were already in place to conduct trials of certain types of persons, therefore, question was as to what necessitated trial of such persons by the Military Courts. Addition of the Proviso to Article 175 of the Constitution by the Constitution (Twenty First Amendment) Act, 2015,which excluded application of Article 175 to the trial of person by the Military Courts under the Pakistan Army Act, 1952, Pakistan Air Force Act, 1953, Pakistan Navy Ordinance, 1961, and Protection of Pakistan Act, 2014, was against the basic structure of the Constitution and thus non est.

Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

(aaaaa) Constitution of Pakistan---

----Art. 8(3)(b)(ii) & First Sched.---Laws “specified” in Part 1 of the First Schedule to the Constitution exempted from the application and enforcement of Fundamental Rights---Word “specified”---Scope---“Specified” as used in Art. 8(3)(b)(ii) of the Constitution could not be extended to include a law to be specified in future. [Minority view]

Per Dost Muhammad Khan, J; allowing petitions against the Constitution (Eighteenth Amendment) Act (X of 2010), and consequently striking down Article 175A of the Constitution; allowing petitions against the Constitution (Twenty-first) Amendment Act (I of 2015) and Pakistan Army (Amendment) Act, 2015, and declaring the same to be ultra vires the Constitution.

(bbbbb) Constitution (Eighteenth Amendment) Act (X of 2010)---

----Ss. 67, 68, 69 & 74---Constitution (Nineteenth Amendment) Act (I of 2011), S. 4---Constitution of Pakistan, Arts. 175A, 175(3), 68 & 184(3)---Constitutional petition before the Supreme Court under Art.184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Procedure of appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court provided under Art. 175A of the Constitution (as added by the Eighteenth Amendment and subsequently amended by the Nineteenth Amendment to the Constitution)---Constitutionality---Inclusion of Parliamentary Committee in the appointment process---Effect--- Inclusion of Parliamentary Committee in the appointment of Judges of superior courts politicized the judiciary and encroached upon independence of judiciary---Article 175(3) of the Constitution, which provided for separation of judiciary from the Executive, clashed with Art.175A, thus the latter Article had to be struck down and deleted from the Constitution---Article 68 of the Constitution prohibited the Parliament from discussing the conduct of any Judge of the Supreme Court or of a High Court in discharge of his duties, thus proceedings of Parliamentary Committee formed under Art. 175A of the Constitution, wherein the conduct of any sitting Judge could be discussed, clearly violated the prohibition contained in Art. 68 of the Constitution---Formation of Parliamentary Committee was, thus, ultra vires the Constitution---Detailed reasons stated. [Minority view]

Following are the reasons for declaring the process of appointment of Judges of superior courts provided under Article 175A of the Constitution (as added by the Eighteenth Amendment and subsequently amended by the Nineteenth Amendment), as ultra vires the Constitution, and thus of no legal effect.

Under Article 175A of the Constitution (as added by the Eighteenth Amendment and subsequently amended by the Nineteenth Amendment to the Constitution) a Judicial Commission, to be chaired by the Chief Justice of Pakistan was constituted, however, the Executive through the Law Ministers and the Attorney General for Pakistan were made its members with a right of vote. Parliamentary Committee was also constituted under Article 175A of the Constitution, consisting of eight members, four from the Treasury Benches, nominated by the Chief Executive and four from the Opposition Benches. Parliamentary Committee was influenced by the Chief Executive/Prime Minister or the leader of the Opposition. Considering such Constitutional aspect, the Executive had made serious inroads and had encroached upon the independence of judiciary. Procedure of appointment of Judges of the superior courts under Article 175A of the Constitution politicized the judiciary, and was thus ultra vires the Constitution and liable to be struck down.

Article 175(3) of the Constitution, which provided that the judiciary had to be separated from the Executive, could not be reconciled or harmonized with process of appointment of judges of superior courts provided under Article 175A of the Constitution. Since Article 175(3) of the Constitution was enacted by the Constituent Assembly, thus, it had a super-imposing effect on Article 175A. In such circumstances, in view of the irreconcilable clash between the two Articles of the Constitution, Article 175A could not stand in the way of Article 175(3) and on this score too, Article 175A of the Constitution was liable to be struck down and deleted from the Constitution as a whole, subject to the exception that whatsoever had been done in the past by the Judicial Commission infested by the Executive and the Parliamentary Committee, shall be deemed to be a valid past and closed transactions to avoid a constitutional crises.

Furthermore, keeping in view the provision of Article 68 of the Constitution, the Parliament had been prohibited from discussing the conduct of any judge of the Supreme Court or of a High Court in discharge of his duties. Proceedings of Parliamentary Committee formed under Article 175A of the Constitution would be deemed to be the proceedings before the Parliament. In case, the Parliamentary Committee discussed the conduct of any sitting judge, who was to be further elevated or of Additional Judge to be confirmed, they would clearly violate the prohibition contained in Article 68 of the Constitution. Therefore, the formation of Parliamentary Committee was ultra vires the Constitution and shall have no role whatsoever in the process of appointment and confirmation of the judges to the superior judiciary.

(ccccc) Interpretation of Constitution---

----Constitution was the supreme and organic law of the State, therefore, none of its provision should be construed and interpreted without having regard to the other relevant provisions or the entire scheme of the Constitution.

(ddddd) Constitution of Pakistan---

----Part II, Chapter 1 [Arts. 8 to 28]---Fundamental Rights---Amendment to the Constitution infringing or taking away Fundamental Rights--- Constitutionality--- Fundamental Rights mentioned in Part II, Chapter 1 of the Constitution could not be infringed, violated or destroyed by the Legislature or any other organ of the State---Said Fundamental Rights were inalienable and inviolable, therefore, they were beyond the scope of amending power of the Legislature to infringe, diminish or destroy them in any manner whatsoever.

(eeeee) Constitution (Twenty-first) Amendment Act (I of 2015)---

----Ss. 2, 3 & Preamble---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Preamble---Pakistan Air Force Act (VI of 1953), Preamble---Pakistan Navy Ordinance (XXXV of 1961), Preamble---Protection of Pakistan Act (X of 2014), S. 8---Anti-Terrorism Act (XXVII of 1997), S. 13---Constitution of Pakistan, Arts.8, 10(1), 10A & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Military Courts---Trial of civilians in Military Courts---Constitutionality---Doctrine of necessity---Creation of a parallel judiciary in the shape of Military Courts with absolute and exclusive jurisdiction to try civilians for certain offences violated the explicit scheme of the Constitution---Minimum standards of justice and due process were not observed in Military Courts---Trial of such civilians was within the exclusive domain of the existing Special Courts (formed under the Protection of Pakistan Act, 2014, and Anti-Terrorism Act, 1997)---Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015, were super-imposed on the Parliament, as they were not based on the Will of the Parliamentarians but of the heads of the Parliamentary parties---Parliament had pressed into service doctrine of necessity by introducing the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Judge presiding the Military Court could not be held to be impartial---Functionaries of the Federal Government alone were given the powers to determine as to which civilians were to be tried by Military Courts, which was a clear encroachment on the power of the judiciary, as such determination was judicial in nature---Constitution (Twenty-first) Amendment Act, 2015, and amendments in the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014, were unconstitutional and should be deleted from the Constitution as a whole---Detailed reasons stated. [Minority view]

Following are the reasons for declaring trial of civilians, accused of certain type of offences, in Military Courts established under the Constitution (Twenty-first) Amendment Act, 2015, and Pakistan Army (Amendment) Act, 2015, as unconstitutional.

Negligent omission on part of the Government to enhance the capacity and skills of the existing justice system, did not provide any justification to divest the established judiciary, the only one recognized and acknowledged by the Constitution, and to create/establish a parallel judiciary (i.e. Military Courts) with absolute and exclusive jurisdiction to try civilians for certain offences. Constitution (Twenty First) Amendment Act, 2015 clearly violated the explicit scheme of the Constitution. In Military Courts, minimum standards of justice and due process were not observed and the trial of accused was held behind closed doors, in violation of Articles 10A and 10(1) of the Constitution.

Jurisdiction of Courts Martial/Military Courts already in existence could not be extended to try the civilians for the offences, specified in the proviso to Article 175 of the Constitution [as inserted by Constitution (Twenty First) Amendment Act, 2015]. Amendments brought in the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 for all intents and purposes, keeping in view the specific division of powers of the two hierarchies of courts i.e. the Constitutionally recognized judiciary on the one hand and the Courts Martial/Military Courts on the other, thus, investing power in the Military Courts to try civilians, amounted to introducing an altogether different hierarchy of courts into the established system, ordained by the Constitution.

Legislature had acted beyond the scope of its allotted authority by introducing the Constitution (Twenty First) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015, and establishing a separate hierarchy of Tribunals (Military Courts) to try civilians because that was the exclusive domain of the established judiciary including the Special Courts (constituted under the Protection of Pakistan Act, 2014, and Anti-Terrorism Act, 1997).

Constitution (Twenty First) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015, were imposed/coerced legislation, super-imposed on the Parliament.Senior Parliamentarians, acquainted with the scheme of the Constitution, on the floor of each House expressed serious reservations and repentance, while voting in favour of the questioned amendments, which was a strong evidence to reinforce the view that the said Acts were not based on the will of the Parliamentarians but of the heads of the Parliamentary parties.

Proviso inserted in Article 175 of the Constitution and amendments made in the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014, amounted to enacting a new law, and the same was done in clear violation of the absolute prohibition contained in Article 8 of the Constitution, an integral part of the basic structure of the Constitution.

Fundamental Rights under the Constitution were inalienable, and they could not be encroached upon or destroyed by the Executive, the Legislature or even by the judiciary in any manner, even on basis of the doctrine of necessity, which the Parliament had pressed into service by introducing the Constitution (Twenty First) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015.

As the Armed Forces were directly engaged in a fight with the terrorists, the investigator into the crime and the Judge presiding the Military Court would certainly belong to the Armed Forces and therefore being party to the conflict, they may be held to be judges in their own cause. Thus, trial of civilians by the Military Courts would certainly violate the universal principle of independent justice. Notified team of functionaries of the Federal Government alone were given the power to determine the fate of the civilians accused, referring their cases for trial by the Military Courts. This was a clear encroachment on the power of the judiciary as, such determination being a judicial one, was beyond the scope/authority of the Executive.

Constitution (Twenty First) Amendment Act, 2015, inserting a proviso in Article 175 and amendments in the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 and all subsequent amendments made through ordinary legislation were null and void being unconstitutional and should be deleted from the Constitution as a whole. All the proceedings, inquiries, trials, investigations, and convictions as well sentences recorded by the Military Courts established under the Constitution (Twenty First) Amendment Act, 2015, were illegal and unconstitutional, and liable to be set aside, and all the cases pending before such Military Courts should be transferred to the ordinary criminal courts in particular Anti-Terrorism Courts established under the Anti-Terrorism Act, 1997.

(fffff) Interpretation of Constitution/statutes---

----Schedule to a statute/Constitution--- Such a Schedule was always subservient to the substantive provision of the law and the Constitution, and it could neither operate independently nor be effective.

Per Umar Ata Bandial, J; dismissing petitions against the Constitution (Eighteenth Amendment) Act (X of 2010) and Constitution (Twenty-first) Amendment Act (I of 2015).

(ggggg) Constitution (Twenty-first) Amendment Act (I of 2015)---

----Ss. 2, 3 & Preamble---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Preamble---Pakistan Air Force Act (VI of 1953), Preamble---Pakistan Navy Ordinance (XXXV of 1961), Preamble---Protection of Pakistan Act (X of 2014), S. 8---Anti-Terrorism Act (XXVII of 1997), S. 13---Constitution of Pakistan, Arts. 8, 10(1), 10A & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Military Courts---Trial of civilians in Military Courts---Constitutionality---Constitution (Twenty-first) Amendment Act, 2015, provided Constitutional immunity to trials of certain terrorist militants specified in the Pakistan Army (Amendment) Act, 2015 in Court Martial / Military Court---Such Constitutional immunity, however, was a temporary measure for a period of two years, and it also survived the salient features threshold of the Constitution---State of Pakistan had paid a huge price in terms of human life, economic losses, erosion of State writ and authority and continuous flight of capital and skilled human resource owing to the growing insecurity and lawlessness that had beleaguered the State---In terrorism trials the logistical shortcomings and legal lacunae exposed witnesses, police investigators, prosecutors and Judges to violence that impaired the working of the criminal justice system---Terrorist combatants had nexus with the defence of Pakistan and were fit subjects for inclusion within the ambit of the Pakistan Army Act, 1952 [as amended by the Pakistan Army (Amendment) Act, 2015] for the purpose of their detention, trial or punishment in accordance with the laws of Pakistan by Courts Martial---Pakistan Army Act, 1952, provided sufficient legal safeguards for a fair trial and due process---Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015, did not substantially alter the salient features of an independent judiciary, and separation of judiciary and exercise of judicial power from the hands of the Executive---Constitution (Twenty-first) Amendment Act, 2015, had accordingly lawfully extended trial under the Pakistan Army Act, 1952 [as amended by the Pakistan Army (Amendment) Act, 2015] to terrorist militants who were unlawful combatants---Detailed reasons stated.

Following are the reasons for upholding the Constitution (Twenty-first) Amendment Act, 2015 and the Pakistan Army (Amendment) Act, 2015, which permitted trial of civilians, accused of certain type of offences, in Military Courts.

Constitution (Twenty First) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015, had been made solely for the purpose of ensuring the defence of the integrity and security of Pakistan against armed groups of terrorists and militants that had by gruesome acts of physical violence duly propagated by digital communications openly attacked and threatened the existence of Pakistan. Scale and severity of the terrorist onslaught was clear from the attacks conducted against the State institutions, agencies, service personnel and ordinary citizen of Pakistan. Pakistan had paid a huge price in terms of human life, economic losses, erosion of State writ and authority and continuous flight of capital and skilled human resource owing to the growing insecurity and lawlessness that had beleaguered the State.

Court Martial of terrorist militants was a measure by which Parliament had sought to address a grave and serious existential threat to the integrity and security of Pakistan. From the provisions of the Constitution (Twenty First) Amendment Act, 2015, it was obvious that the Parliament was conscious that the amendment made by the Pakistan Army (Amendment) Act, 2015, enabling trial of civilian militants by Courts Martial / Military Courts was an extra-ordinary step that may deviate from the pristine principle of judicial power being exercised by the independent judiciary of the country and under its oversight. To safeguard such principle, the Constitution (Twenty First) Amendment Act, 2015, restricted the Constitutional immunity given to Court Martial / Military Court trials of certain terrorist militants specified in the Pakistan Army (Amendment) Act, 2015, to be a temporary measure that “shall remain in force for a period of two years from the date of its commencement and shall stand repealed on the expiration of the said period”. Constitutional immunity given to the legal validity and status of the impugned Courts Martial / Military Courts survived the salient features threshold of the Constitution. Existentialist threat posed by terrorist militants by waging war against Pakistan, the restriction on Military Court trials of terrorist militants to a narrow class of persons, who were captured or were to be captured in combat with the law enforcement agencies of Pakistan, and the time limitation on Constitutional immunity given to the legal status of such Military Court trials survived the salient features threshold of the Constitution.

Narrow class of persons affected by the Pakistan Army (Amendment) Act, 2015, the reviewability of the Executive decision to select persons for trial before Military Courts on the basis of statutory criteria, and limited duration of the Constitutional immunity given to such Military Courts imposed limitations that indicated proportionality in the legislative measures adopted by the Parliament.

In cases of terrorism, police investigators and State prosecutors were handicapped in the collection of incriminating evidence because the principal players in the execution of terrorism acts escaped to the havens of their sponsors or commanders, who were in turn the terrorist militants engaged in combat with the law enforcement agencies in waging their war against Pakistan. Logistical shortcomings and legal lacunae exposed witnesses, police investigators, prosecutors and Judges to violence that impaired the working of the present criminal justice system.

Nature of armed conflict in which terrorist combatants were engaged in waging war against Pakistan with the Armed Forces and the law enforcement agencies of Pakistan, it was crystal clear that such combatants had nexus with the defence of Pakistan and were fit subjects for inclusion within the ambit of the Pakistan Army Act, 1952 [as amended by the Pakistan Army (Amendment) Act, 2015] for the purpose of their detention, trial or punishment in accordance with the laws of Pakistan by Courts Martial. Consequently, the proceedings of such Courts Martial could not be interrupted or challenged. However, if such proceedings had concluded in a conviction and sentence, a challenge to the same was available on the grounds of proceedings under the Pakistan Army Act, 1952 being coram non judice, without jurisdiction or mala fide.

F.B. Ali v. State PLD 1975 SC 506; Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632 and Mushtaq Ahmed v. Secretary Ministry of Defence PLD 2007 SC 405 ref.

Procedure of trial followed by Court Martial under the Pakistan Army Act, 1952, complied with the minimum safeguards expected by the Geneva Conventions, 1949. Standard and adequacy of due process provided by Courts Martial under the Pakistan Army Act, 1952 was sufficient and satisfactory. Pakistan Army Act, 1952, which provided sufficient legal safeguards for a fair trial of members of the Armed Forces even in relation to offences falling under the ordinary criminal law of the country, could not surely be said to be deficient for the trial of offences alleged to have been committed by terrorist militants, who fell in the category of unlawful combatants engaged in armed conflict with the Armed Forces and the law enforcement agencies in their bid to wage war against Pakistan.

Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632 and F.B. Ali v. State PLD 1975 SC 506 ref.

In a situation, such as the present one faced by Pakistan, where Executive action was occasioned by the duty of the Federal Government to defend Pakistan, the Courts exercised restraint because national success in the war was to be ensured in order to escape from national plunder or enslavement.

Farooq Ahmed Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 ref.

Constitution (Twenty First) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015, did not substantially alter the salient feature of an independent judiciary, and separation of judiciary and exercise of judicial power from the hands of the Executive. Such salient feature was still intact for all citizen of Pakistan except a miniscule class of persons comprising terrorist militants who had forsaken their duty of loyalty to Pakistan and obedience to its Constitution. No prohibition existed in the Constitution of Pakistan against treating such terrorist militants as unlawful combatants or enemy combatants and providing them due process under the law of war. Constitution (Twenty First) Amendment Act, 2015, had accordingly lawfully extended trial under the Pakistan Army Act, 1952 [as amended by the Pakistan Army (Amendment) Act, 2015] to terrorist militants who were unlawful combatants.

(hhhhh) Interpretation of statutes---

----Amending statute---Preamble---Law permitted reference to be made to the provisions of the Preamble of an amending statute for seeking guidance about the purpose, scope and meaning of the amendments.

(iiiii) Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)]---

----S. 2(1)(d), second Proviso---Constitution of Pakistan, Art. 199(3)---Federal Government’s decision to select a civilian for trial by Military Court / Court Martial---Judicial review of such decision by the High Court---Bar contained under Art. 199(3) of the Constitution---Scope---Federal Government was under a duty to decide each case selected for trial by Court Martial / Military Court after conscious application of mind to the relevant statutory criteria and for reasons that were reflected on the record---Selection of persons for trial by Courts Martial was guided by the criteria laid down in the Pakistan Army (Amendment) Act, 2015 containing ingredients of specified offences---Judicial scrutiny of Executive’s reasons and record selecting a case for Court Martial trial was outside the prohibition contained in Art. 199(3) of the Constitution and, therefore, may be judicially reviewed in a challenge filed by an alleged belligerent combatant who was accused of being a terrorist militant within the meaning of S. 2(1)(d)(iii) of the Pakistan Army Act, 1952 [as amended by the Pakistan Army (Amendment) Act, 2015]---As such a person falling within the mischief of the said provision had a judicial remedy available to him before the competent Constitutional courts for challenging the Executive’s decision to select him as a belligerent combatant or as an aider, abettor or conspirator of such combatant, for trial by Court Martial.

Per Qazi Faez Isa, J; striking down certain provisions of the Constitution (Eighteenth Amendment) Act (X of 2010) by concurring with Jawwad S. Khawaja, J; allowing petitions against Constitution (Twenty-first) Amendment Act (I of 2015) and Pakistan Army (Amendment) Act (II of 2015) and holding that the said Acts were liable to be struck down.

(jjjjj) Interpretation of statutes---

----Particular enactment---General enactment---Whenever there was a particular enactment and a general enactment, which, taken in its most comprehensive sense would overrule the former, the particular enactment would prevail.

(kkkkk) Interpretation of Constitution---

----Rules to be considered by courts when interpreting the Constitution stated.

Following are the rules to be considered by courts when interpreting the Constitution:

(i) Constitution should be read as a whole.

(ii) Effect should be given to every word, paragraph, clause and article of the Constitution and redundancy should not be imported thereto. Every part and every word of the Constitution was significant and an interpretation that rendered any word or provision (of the Constitution) meaningless must be avoided.

(iii) If there were two provisions of the Constitution attending to similar matters, the particular provision excluded the general provision.

(iv) If there was a conflict between two provisions of the Constitution and one of them was inserted when the Constitution was abrogated, subverted, suspended or held in abeyance then the conflicting provision which was in the Constitution prior to the said abrogation, subversion, suspension or abeyance was to be preferred if it was closer to the provisions of the Preamble.

(lllll) Constitution of Pakistan---

----Arts. 239(5) & 184(3)---Amendment to the Constitution, vires of---Jurisdiction of Supreme Court to examine vires of a Constitutional amendment---Scope---Article 239(5) of the Constitution stated that “No amendment of the Constitution shall be called in question in any court on any ground whatsoever”---Term “any court” used in the said Article did not include the Supreme Court---Scheme of the Constitution was such that it mentioned the Supreme Court by name when the jurisdiction of the Supreme Court was to be ousted, but when the Constitution did not mention the Supreme Court, its jurisdiction was not ousted---Article 239(5) of the Constitution, thus, did not oust the jurisdiction of the Supreme Court to call in question an amendment made to the Constitution by the Parliament---Even if an attempt was made to curtail the jurisdiction of the Supreme Court (to question the vires of an amendment to the Constitution), it would not be sustainable as the original Constitution of Pakistan, 1973 did not envisage it---Besides Art. 239(5) had no place in the original Constitution of Pakistan, 1973, and it was subsequently inserted by a military dictator [vide President’s Order No. 20 of 1985 - Constitution (Second Amendment) Order, 1985] to sustain himself in the usurped office of the President.

(mmmmm) Constitution of Pakistan---

----Arts. 239(5), 239(6) & 184(3)---Power of Parliament to amend the Constitution---Scope---Judicial review of Constitutional amendment by the Supreme Court---Parliament did not have unbridled or unfettered power to amend the Constitution, and if an amendment was made the Supreme Court had the jurisdiction to examine it and, if necessary, strike down the offending whole or part thereof.

(nnnnn) Constitution of Pakistan---

----Arts. 239(6) & Part II, Chapter 1 [Arts. 8 to 28]---Power of Parliament to amend the Constitution---Scope---‘Inalienable rights’---Fundamental Rights---Parliament through a Constitutional amendment could not abolish, take away or abridge any of the Fundamental Rights.

(ooooo) Constitution (Eighteenth Amendment) Act (X of 2010)---

----S. 22---Constitution of Pakistan, Arts. 63A, 184(3), Part II, Chapter 1 [Arts. 8 to 28] & Preamble---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Article 63A of the Constitution (as amended by the Eighteenth Amendment), vires of---Disqualification/de-seating of Member of Parliament on ground of defection---Influence exercised by leaders/heads of political parties over how members of the party elected to the Parliament/Provincial Assemblies voted in the House---Constitutionality---Contention of petitioner that ability of Members of Parliament to vote independently on certain matters had been compromised (pursuant to the amendment made in Art. 63A by the Eighteenth Amendment), as such Members were now required to vote, if they belonged to a political party, as per the dictates of their party Head--- Validity--- Article 63A of the Constitution (as amended by the Eighteenth Amendment) directed only the voting behavior of members---Said Article did not infringe upon their right to debate or raise a point of order in the House---Moreover, voting against the party position did not automatically de-seat a member---In case of a genuine apprehension or for legal reason or on moral grounds a Member could still exercise his/her independent discretion on how to vote, even if his/her political party or its party Head was not pleased---Article 63A of the Constitution (as amended by the Eighteenth Amendment) had a safeguard mechanism before disqualifying a Member---Firstly, the party Head had to provide an opportunity to show cause why a declaration that a Member had defected from the party may not be made; secondly, the declaration was sent to the Presiding Officer of the concerned House and copied to the Election Commission; thirdly, the Election Commission was required to decide it and fourthly, any party/member aggrieved by the decision of the Election Commission could file an appeal in the Supreme Court---Decision of the party Head, therefore was justiciable before two forums---Ample safeguards were available against an apprehension of a vindictive or unreasonable party Head---Article 63A of the Constitution (as amended by the Eighteenth Amendment), thus, could not be categorized as undermining any of the principles of democracy mentioned in the Preamble to the Constitution or any of the stated Fundamental Rights of the chosen representatives of the people---Constitutional petition was disposed of accordingly.

(ppppp) Constitution of Pakistan---

----Arts. 175A(12) & 175A(13)---Procedure of appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court---Parliamentary Committee, powers of--- Scope--- Parliamentary Committee objecting against nominee of Judicial Commission---Where the Parliamentary Committee provided a valid objection against the nominee of the Judicial Commission, the Committee had to give its reasons and the Commission upon receipt thereof reconsidered the nominee‘s suitability to hold judicial office---Parliamentary Committee, however, did not have the power to veto the nominee of the Judicial Commission.

(qqqqq) Constitution (Twenty-first) Amendment Act (I of 2015)---

----Ss. 2, 3 & Preamble---Pakistan Army Act (XXXIX of 1952) [as amended by the Pakistan Army (Amendment) Act (II of 2015)], Ss. 2(1)(d)(iii), 2(1)(d)(iv), 2(4) & Preamble---Pakistan Air Force Act (VI of 1953), Preamble---Pakistan Navy Ordinance (XXXV of 1961), Preamble---Protection of Pakistan Act (X of 2014), Preamble---Anti-Terrorism Act (XXVII of 1997), Ss. 11B, 11F, 11G, 11H, 11I, 11J, 11K, 11W, 13, 19(1), 19(10), 21L & 27B---Constitution of Pakistan, Arts. 4, 25(1), 175, 202, 203, 203C, 212, 245 & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Twenty-first) Amendment Act, 2015 and Pakistan Army (Amendment) Act, 2015---Military Courts---Trial of civilians in Military Courts---Constitutionality---Proviso inserted at the end of Art. 175(3) of the Constitution by the Constitution (Twenty-first) Amendment Act, 2015, sought to create a parallel system of Military Courts, in violation of the separation of the judiciary from the Executive---Military was a part of the Executive, thus, it could not conduct criminal trials of civilians---Fundamental Rights of accused-civilians could not be excluded by invoking Art. 8(3) of the Constitution and placing the Pakistan Army Act, 1952, Pakistan Air Force Act, 1953, Pakistan Navy Ordinance, 1961, and Protection of Pakistan Act, 2014 in the First Schedule to the Constitution---No criteria or measure was prescribed for the exclusive power of Federal Government to select and transfer a case to the Military Courts---Constitution (Twenty-first) Amendment Act, 2015 was enacted before the Pakistan Army (Amendment) Act, 2015, consequently it left the Pakistan Army (Amendment) Act, 2015 without the constitutional cover that Art. 8(3) may have provided i.e. exemption from the applicability of Fundamental Rights---Federal Government instead of utilizing and implementing important provisions of the Anti-Terrorism Act, 1997, which if implemented would help to stem terrorism and also ensure the conviction of terrorists, resorted to formation of Military Courts---Constitution (Twenty-first) Amendment Act, 2015, did not succeed in its attempt to try civilians by the military---Pakistan Army (Amendment) Act, 2015, was unconstitutional and consequently void---Detailed reasons stated. [Minority view]

Following are the reasons for declaring trial of civilians, accused of certain type of offences, in Military Courts established under the Constitution (Twenty-first) Amendment Act, 2015, and Pakistan Army (Amendment) Act, 2015, as unconstitutional.

Article 175(3) of the Constitution had set out a clear goal of achieving a progressive separation of the Executive from the judiciary, within a period of fourteen years’ from the ‘commencing date’, i.e. 14th August, 1973. Fourteen years milestone was reached on 14th August 1987, on which date the Executive and the judiciary stood separated, irrevocably and absolutely. Proviso inserted at the end of Article 175(3) of the Constitution by the Constitution (Twenty First) Amendment Act, 2015, sought to create a parallel system of Military Courts and undo what had already been attained, i.e. the separation of the judiciary from the Executive, and as it was not conceivable to force a flower back into a bud it was not possible to yoke or agglutinate the Executive with the judiciary. Provisos merely limited or qualified the main enactment, therefore the Proviso added at the end of Article 175 could not be allowed to destroy or nullify Article 175(3) of the Constitution. Article 175(2) of the Constitution also did not permit conferment of jurisdiction on the military to conduct the trial of civilians in criminal cases; the same was also not contemplated by Article 245 of the Constitution.

Constitution (Twenty First) Amendment Act, 2015 established Military Courts not by amending the Constitution, but by subterfuge. Parallel court system was not envisaged by Article 175 of the Constitution.Constitutional framework relating to judiciary did not admit/permit the establishment of a parallel system of the (Military) Courts or Tribunals. Where the Constitution makers wanted to provide judicial forums other than what was envisaged by Articles 175, 202 and 203, they had expressly provided for the same in the Constitution such as Administrative Courts and Tribunals established under Article 212 of the Constitution or the Federal Shariat Court established under Article 203C of the Constitution.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

Military was a part of the Executive, and the Executive could not conduct criminal trials of civilians. Military personnel, who would preside over the trials conducted by Military Courts established under the Constitution (Twenty First) Amendment Act, 2015, were part of the Executive, and not a part of the judiciary.

Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 ref.

Article 8 of the Constitution provided that laws inconsistent with or in derogation of Fundamental Rights were to be void. Article 8(3)(b)(ii) of the Constitution, however, created an exception by stating that provisions of Article 8 would not apply to laws specified in Part I of the First Schedule to the Constitution. Federal Government by relying on Article 8(3)(b)(ii) of the Constitution purportedly inserted the Pakistan Army Act, 1952, Pakistan Air Force Act, 1953, Pakistan Navy Ordinance, 1961, and Protection of Pakistan Act, 2014 in Part-I of the First Schedule to the Constitution to exempt the said Acts from the application of Article 8 of the Constitution. Although Article 8(3) of the Constitution did carve out certain exceptions which were exempt from the application of Article 8 of the Constitution, but they were restricted to laws relating to members of the Armed Forces or of the police or of such other forces as were charged with the maintenance of public order, discharge of their duties and maintenance of discipline amongst them; conducting the trial of civilians who had been accused of terrorist acts did not come within its parameters. Constitution did not permit the trial of civilians by the military as it would contravene Fundamental Rights, which could not be excluded by invoking Article 8(3) of the Constitution and placing the Pakistan Army Act, 1952, Pakistan Air Force Act, 1953, Pakistan Navy Ordinance, 1961, and Protection of Pakistan Act, 2014 in the First Schedule to the Constitution. Moreover, Article 4 of the Constitution, which provided the right of an individual to be dealt in accordance with law, etc., was a stand-alone Article and neither could it be excluded (by invoking Article 8(3) of the Constitution) nor could the rights encapsulated therein be infringed.

According to sections 2(1)(d)(iii) & (iv) of the Pakistan Army Act, 1952 [as amended by the Pakistan Army (Amendment) Act, 2015], civilians who were “claiming or are known to belong to any terrorist group or organization using the name of religion or a sect” could be tried and court-martialed, provided their cases had been sent for trial by the Federal Government pursuant to section 2(4) of the Pakistan Army Act, 1952. No criteria or measure was prescribed for the Federal Government to follow in choosing the cases that it decided to send for such trials; it thus had absolute and unfettered discretion. Classification or categorization criteria that was not properly classified or was unreasonable, infringed the equality requirement prescribed in Article 25(1) of the Constitution.

I. A. Sherwani v. Government of Pakistan 1991 SCMR 1041 and Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 ref.

Definition of religious or sectarian organizations provided in the Pakistan Army Act, 1952, which had also been incorporated in the Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance, 1961, was vague and lacked details, which would give rise to jurisdictional and Constitutional problems.

Constitution (Twenty-first) Amendment Act, 2015 and the Pakistan Army (Amendment) Act, 2015 both came into effect on the same date i.e. 7th January, 2015. However, Constitution (Twenty-first) Amendment Act, 2015 was enacted first and then the Pakistan Army (Amendment) Act, 2015, as could be gathered from their respective numbering ‘Act I of 2015’ and ‘Act II of 2015’ as well as from their respective notification numbers. Consequently, the insertion of the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953 and the Pakistan Navy Ordinance, 1961 into the First Schedule of the Constitution would have taken place before the Pakistan Army (Amendment) Act, 2015 had been amended to include the court-martial of civilians. Enacting the Constitution (Twenty-first) Amendment Act, 2015 first would provide only the un-amended version of Pakistan Army Act, 1952 with the Constitutional cover of Article 8(3) of the Constitution i.e. exemption from the applicability of Fundamental Rights. Mistake of enacting Constitution (Twenty-first) Amendment Act, 2015 and the Pakistan Army (Amendment) Act, 2015, in reverse order, left the Pakistan Army (Amendment) Act, 2015 without the constitutional cover that Article 8(3) may have provided. Pakistan Army (Amendment) Act, 2015 which purported to widen the ambit of the Pakistan Army Act, 1952 to subject particular types of civilians to Court-Martial, therefore, had no constitutional protection. Such procedural flaw similarly impacted the three other laws inserted by the Constitution (Twenty-first) Amendment Act, 2015 in the First Schedule of the Constitution i.e. the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014.

Knee-jerk reaction of the Federal Government in enacting the Constitution (Twenty First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015, did not take into account the fact that the Government was not utilizing and implementing the provisions of Anti-Terrorism Act, 1997, in relation to proscribing of terrorists, lodging of cases against them, collection of evidence and conducting a thorough prosecution. Federal Government had somehow concluded that the reason terrorism continued unabated was because trials were being conducted by the Anti-Terrorism Courts, thereby, necessitating them to be supplanted with Military Courts.

Constitution (Twenty-first) Amendment Act, 2015, did not succeed in its attempt to permit trial of civilians by Military Courts. Pakistan Army (Amendment) Act, 2015 took away and abridged Fundamental Rights mentioned in Chapter 1 of Part II to the Constitution therefore the same was void. All convictions, sentences passed or acquittals made of civilians tried by the Military Courts pursuant to the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 were set aside and all such cases were to be adjudicated afresh by the Anti-Terrorism Courts. All proceedings of civilians pending before the Military Courts pursuant to the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 were to be transferred to the Anti-Terrorism Courts.

(rrrrr) Words and phrases---

----“Proviso”---Definition.

Black’s Law Dictionary, St. Paul, Minnesota: West Publishing Co., Revised 4th Edition, 1968 ref.

(sssss) Constitution of Pakistan---

----Art. 245---Function of the Armed Forces---Scope, purpose and sphere of action by the Armed Forces under Art. 245 of the Constitution stated.

(ttttt) Constitution (Eighteenth Amendment) Act (X of 2010)---

----Ss. 16(6)(c), 16(6)(e) & Preamble---Constitution of Pakistan, Arts. 51(6)(c), (e) & 184(3)---Constitutional petition before the Supreme Court under Art. 184(3) of the Constitution challenging the Constitution (Eighteenth Amendment) Act, 2010 [“Eighteenth Amendment”]---Non-Muslim/minority members of Parliament selected by political parties in proportion to the number of seats won by each party in the general election---Constitutionality---Provisions relating to the elections of non-Muslims (minorities), provided under Art. 51 of the Constitution (as amended by the Eighteenth Amendment) were contrary to the provisions of the Preamble to the Constitution as they contravened ‘the principles of democracy’, did not ‘safeguard the legitimate interests of minorities’ and deprived their right of representation through their ‘chosen representatives’---Constitutional petition against the Constitution (Eighteenth Amendment) Act, 2010, was partially allowed accordingly. [Minority view]

Muhammad Ikram Ch., Senior Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioner (in Constitution Petition 12 of 2010).

Zafar Ullah Khan, Advocate Supreme Court for Petitioner (in Constitution Petition 13 of 2010).

Hamid Khan, Senior Advocate Supreme Court and Rashid A. Rizvi, Senior Advocate Supreme Court assisted by Ajmal Ghaffar Toor, Advocate for Petitioners (in Constitution Petitions 18, 35, 36, 39 and 44 of 2010).

A.K. Dogar, Senior Advocate Supreme Court for Petitioner (in Constitution Petition 20 of 2010).

Sardar Khan Niazi (Petitioner in person) (in Constitution Petition 21 of 2010).

Shahid Orakzai, (Petitioner in person) (in Constitution Petition 22 and C.P. 1901 of 2010).

Habib-ul-Wahab-ul Khairi, (Petitioner in person) (in Constitution Petition 31 of 2010).

Dr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Miangul Hassan Aurangzeb, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in Constitution Petition 40 and C.M.A. No.1859 of 2010).

Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in Constitution Petition 42 of 2010).

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Petitioner (in Constitution Petition 43 of 2010).

Qari Abdul Rasheed, Advocate Supreme Court for Applicant (in H.R.C. 22753-K of 2010).

Zafar Ullah Khan, Advocate Supreme Court for Petitioner (in Constitution Petition 99 of 2014).

Rasheed A. Rizvi, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in Constitution Petition 100 of 2014).

Hamid Khan, Senior Advocate Supreme Court and Shafqat Mehmood Chohan, Advocate Supreme Court assisted by Ajmal Ghaffar Toor, Advocate for Petitioner (in Constitution Petition 2 of 2015).

Moulvi Iqbal Haider, Petitioner in person (in Constitution Petition 4 of 2015).

Muhammad Ikram Ch., Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in Constitution Petition 5 of 2015).

Nemo for Petitioner (in Constitution Petition 6 of 2015).

Taufiq Asif, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in Constitution Petition 7 of 2015).

Arshad Zaman Kiyani, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Petitioner (in Constitution Petition 8 of 2015).

Abrar Hasan, Advocate Supreme Court, Abdul Latif Afridi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in Constitution Petition 9 of 2015).

Asma Jahangir, Advocate Supreme Court, Kamran Murtaza, Advocate Supreme Court, Fazal-i-Haq Abbasi, Advocate Supreme Court President (SCBA), Ch. Muhammad Maqsood Ahmed, Advocate Supreme Court Secretary (SCBA) and Chaudhry Akhtar Ali Advocate-on-Record assisted by Dr. Mansoor Usman Awan, Advocate for Petitioner (in Constitution Petition 10 of 2015).

Hamid Khan, Senior Advocate Supreme Court and Ahmed Awais, Advocate Supreme Court assisted by Ajmal Ghaffar Toor, Advocate for Petitioner (in Constitution Petition 11 of 2015).

Abid S. Zuberi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record assisted by Haseeb Jamali, Advocate and Shoaib Elahi, Advocate for Petitioner (in Constitution Petition 12 of 2015).

Nemo for Petitioners (in Constitution Petition 13 of 2015).

Fida Gull, Advocate Supreme Court for Petitioner (in Constitution Petition 23 of 2015).

Sh. Ahsan-ud-Din, Advocate Supreme Court as Petitioner in person (in Constitution Petition 24 of 2015).

Salman Akram Raja, Advocate Supreme Court for Petitioners (in C.M.A. No.1859 of 2010 in Constitution Petition 40 of 2010).

Salman Aslam Butt, Attorney-General, M. Waqar Rana, Additional Attorney-General assisted by Dilnawaz Ahmed Cheema Consultant to AGP, Mian Abdul Rauf, A.G., Islamabad, Razzaq A. Mirza, Additional A.G., Punjab, Abdul Latif Yousafzai A.G., KPK, Ayaz Swati, Additional A.-G., Balochistan and Adnan Karim, Additional A.G., Sindh on Courts’ Notice.

Khalid Anwar Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record assisted by Muhammad Anas Makhdoom, Advocate for the Federation (in Constitution Petitions 12, 13, 18, 20, 21, 22, 31, 35, 36, 39, 40, 42 and 43 of 2010).

Khalid Anwar, Senior Advocate Supreme Court and Qari Abdul Rasheed, Advocate-on-Record assisted by Muhammad Anas Makhdoom, Advocate for the Federation (in Constitution Petition 2 of 2015).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court assisted by Saad Butter, Advocate for the Government of Khyber Pakhtunkhwa (in Constitution Petitions 13, 20 and 21 of 2010).

Adnan Karim, Additional Advocate-General, Sindh and Raja Abdul Ghafoor, Advocate-on-Record for the Government of Sindh (in Constitution Petitions 12, 13, 18, 20, 21, 22 and 40 of 2010).

Dates of hearing: 16th, 22nd, 27th to 29th, April, 4th to 7th, 12th, 13th, 18th to 21st, 25th, 26th, 28th of May, 1st to 4th, 16th to 18th and 22nd to 26th June, 2015.

P L D 2015 Supreme Court 1210

Present: Jawwad S. Khawaja, C.J., Dost Muhammad Khan and Qazi Faez Isa, JJ

MUHAMMAD KOWKAB IQBAL and another---Petitioners

versus

GOVERNMENT OF PAKISTAN through Secretary Cabinet Division, Islamabad and others---Respondents

Constitutional Petitions Nos. 56 of 2003 and 112 of 2012, decided on 8th September, 2015.

(a) Constitution of Pakistan---

----Arts. 251 & 184(3)---Constitutional petition before the Supreme Court seeking implementation of Art. 251 of the Constitution---Adoption, promotion and use of the National language i.e. Urdu, as the official language of Pakistan---Significance---Article 251 of the Constitution used the term "shall", which showed that it was a mandatory provision and not an optional or directory one---Implementing Art. 251 of the Constitution was not just a matter of obeying the Constitution: it had real practical implications for the public---No substantial action had been taken by the concerned authorities so far for the implementation of Art. 251 of the Constitution---Lack of interest shown by the Government to the Constitutional command contained in Art. 251 of the Constitution directly fed into the lawlessness that prevailed in the society---In the governance of the Federation and the Provinces there was hardly any necessity for the use of the colonial language (i.e. English) which could not be understood by the public at large---Even for many civil servants and public officials, who may have received education in English, said language would in most cases, not be the language most used by them---Many officials were therefore forced to spend time on attempting to initiate and take decisions in a language which they were not entirely comfortable with---Time thus spent was quite wasteful because a lot of energy was dedicated to deciphering the language of the noting (which could have been easily drafted in the Urdu language) itself rather than understanding its content or substance---Such wasteful exercise at times resulted in absurd and farcical outcomes which could be wholly avoided by use of the National language i.e. Urdu---Supreme Court was tasked to both obey the Constitution and to enforce it, and thus it could not shy away from its obligation to the same while the nation suffered even if some, from habit or training, found it more convenient to continue using the colonial language i.e. English---Supreme Court directed that the provisions of Art. 251 of the Constitution shall be implemented with full force and without unnecessary delay by the Federal and Provincial Governments; the time-lines (in letter No. 1/Prog/2015 dated 6-7-2015 issued by Government of Pakistan, Cabinet Secretariat, the Cabinet Division) given by the Government itself must be considered for implementation by the Government in line with Art. 251 for implementation; that the Federal Government as well as Provincial Governments should coordinate with each other for uniformity in the "rasmulkhat" for the National language; that Federal as well as provincial laws should be translated in the National language within three months; that statutory, regulatory and oversight bodies shall take steps to implement Art. 251 of the Constitution without unnecessary delay and also ensure compliance by regulatees; that in the competitive examinations at Federal level the recommendations made by the National Language Authority, (presently renamed as National Language Promotion Department) in the year 1981, should be considered by the Government for implementation without unnecessary delay; that judgments in cases relating to public interest litigation and judgments enunciating a principle of law in terms of Art. 189 of the Constitution must be translated in Urdu and should be published in line with Art. 251 of the Constitution; that in court cases government departments should make all reasonable efforts to submit their replies in Urdu to enable citizens to effectively enforce their legal rights; that subsequent to present judgment, if, public bodies or public officials continued to violate the Constitutional command contained in Art. 251 of the Constitution, citizens who suffered a tangible loss directly and foreseeably resulting from such violation shall be entitled to enforce any civil rights which may accrue to them on such account--- Constitutional petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Arts. 251, 14, 25 & 25A---Article 251 of the Constitution---Scope and significance---Adoption, promotion and use of Urdu language and provincial languages---Article 251 of the Constitution was not a stand-alone provision, but was directly linked to the realization of various Fundamental Rights protected by the Constitution, especially the right to dignity (Article 14), the right to equal treatment under the law (Article 25), and the right to education (Article 25A)---Natural corollary of a person's right to dignity enshrined in the Constitution was that his or her language (national or provincial) should be respected and recognized by the State which exercised authority over him or her---Likewise, it was a corollary of a person's right to equality that he or she must not be denied access to economic and political opportunities because he or she was only conversant in the languages recognized and referred to in Art. 251 if the Constitution and not conversant with the English language---When the state refused to recognize such fact it denied to its citizens equality of status and opportunity and also their dignity in a very real sense---Right to education had a direct link with (one's) language---Empirical studies throughout the world advocated the use of a child's native language in instruction since this was the language the child grew up with and which was in use in his home and around him.

Kokab Iqbal, Advocate Supreme Court Petitioner (in person) (in Constitutional Petition No. 56 of 2003).

Syed Mehmood Akhtar Naqvi Petitioner (in person) (in Constitutional Petition No.112 of 2012).

Abid Saqi, Advocate Supreme Court with Mohtarma Parveen Malik for Applicants (in C.M.A. No.4981 of 2015).

Aamir Rehman, Additional AGP, Mohtarma Saba Mohsin Raza, Additional Secretary M/o Information, Dr. Irum Najam, Joint Secy., Cabinet Div., Khalil Ahmed Chaudhry, Dy. Secy. Cabinet Div., Dr. Rashid Hamid, Dy. Secy. National Language Authority, Mehboob Bugti, Dy. Director, National Language Authority, Tanvir Hussain Shah, S.O. Cabinet Div. and Iftikhar Shah, PS to Secy. M/o Information for the Federation.

Razzaq A. Mirza, Additional Advocate-General, Waqar Ahmed, Director Rawalpindi Arts Council and Sajjad Hussain, Assistant Director for Government of Punjab.

Shehryar Khan Qazi, Additional A.-G. for Government of Sindh.

Mian Arshad Jan, Additional A.-G., Hidayatullah, Dy. Secy. Education and Liaquat Amin, Assistant Director Information Deptt. for Government of Khyber Pakhtunkhwa.

Muhammad Ayaz Khan Swati, Additional A.-G. for Government of Balochistan.

Date of hearing: 26th August, 2015.

P L D 2015 Supreme Court (AJ&K) 1

Present: Muhammad Azam Khan, C.J. and Saeed Akram Khan, J

MUHAMMAD SHARIF---Appellant

Versus

MUHAMMAD ZAMAN and 2 others---Respondents

Civil Appeal No.4 of 2013, decided on 10th March, 2014.

(On appeal from the judgment and decree of the High Court dated 8-5-2012 in Civil Appeal No.319 of 2006)

(a) Azad Jammu and Kashmir Supreme Court Rules, 1978---

---O. XIII, R. 1---Azad Jammu and Kashmir Interim Constitution Act

(VIII of 1974), S.42(12)---Limitation Act (IX of 1908), Ss.5 & 12(5)---Civil Petition for Leave to Appeal---Limitation---Condonation of delay---Sufficient cause---Scope---Limitation for petition for leave to appeal from the judgment of High Court was 60 days--Petition for leave to appeal had been filed after 141 days from the announcement of judgment of High Court which was 81 days beyond the period of limitation-Application for obtaining copy of judgment was filed after the expiry of limitation for petition for leave to appeal-Period consumed in obtaining the copy of judgment had to be condoned if an application for obtaining the said copy was moved within the period of limitation-Negligence of appellant had proved as appeal was filed after a lapse of one month and 27 days from obtaining copy of judgment-Conduct of appellant was of a negligent person-Law would favour the vigilant and not the ignorant---Party had to show sufficient cause for condonation of delay---Condonation of delay of even one day could be refused when no sufficient cause was shown by the party-Appellant had not claimed that he was not in the knowledge of judgment of High Court-Appellant had failed to explain the delay after rest period till filing of appeal who was not vigilant in pursuing the case-No sufficient cause had been shown by the petitioner-Delay could only be condoned if a party was successful in establishing sufficient cause for filing suit/appeal beyond the period of limitation-Appeal was hopelessly time barred which was dismissed with costs.

Muhammad Ishfaque Khan v. Rehman Khan and 11 others 2011 SCR 18 ref.

Muhammad Ishfaque Khan v. Rehm2an Khan and 11 others 2011 SCR 18; Qurban Ali and another v. The State PLD 1984 SC(AJ&K) 104; Muhammad Habib Khan v. Nasiri Khatoon and 11 others 2006 SCR 22; Muhammad Aslam and another v. Muhammad Rashid 2006 SCR 11 and Fakhar Mahmood v. Mst. Famida Begum and 10 others 2004 YLR 3121 rel.

(b) Words and Phrases---

----"Sufficient cause"---Meaning---"Sufficient cause" was such a cause which was beyond the control of a party.

Muhammad Reaz Alam Advocate for Appellant.

Ch. Muhammad Sabir, Advocate' for Respondents.

Date of hearing: 19th February, 2014.

P L D 2015 Supreme Court (AJ&K) 7

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

NOMAN RAZZAQ---Appellant

versus

FARYAD HUSSAIN CHAUDHARY and 13 others---Respondents

Civil Appeal No.136 of 2012, decided on 21st April, 2014.

(On appeal from the order of the High Court dated 8-5-2012 in Writ Petition No.50 of 2011)

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

----S. 44---Writ petition before High Court---Maintainability---Alternate remedy---Scope---High Court admitted writ petition for regular hearing with regard to the matter which was pending in the civil court---Validity---Writ jurisdiction of High Court could only be invoked when there was no other remedy available---Respondent had already availed the remedy by filing a suit before the court of competent jurisdiction which was pending adjudication---Two remedies could not be availed simultaneously at different fora---Writ petition was not competent as same relief had been sought in the suit already pending in the civil court---Both the parties were claiming plots situated at the one and same place---Factual controversy could not be resolved by High Court in writ jurisdiction without recording the evidence---Existence of another adequate remedy would oust the writ jurisdiction of High Court---Extraordinary jurisdiction under S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 could not be invoked when adequate, efficacious, convenient, beneficial, speedy and effective alternate remedy was available to an aggrieved party---When impugned order was without jurisdiction and unlawful then there would be no bar on filing a writ petition and High Court should entertain writ petition although alternate remedy was available---High Court should be satisfied that aggrieved person had no other adequate remedy under the law to redress his grievance---Respondent had already availed the adequate remedy in the form of civil suit in the present case---Impugned order passed by the High Court was set aside and writ petition was dismissed---Appeal was accepted in circumstances.

Akhlaq Ahmed v. Secretary to the Government of Punjab, Local Government and Rural Development Department, Lahore and 2 others 1998 SCMR 516; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Azad Government and others v. Sahibzada Ishaq Zafar and others 1994 MLD 2382, Azad Government of the State of Jammu and Kashmir and others v. Maj. General (Rtd.) Muhammad Hayat Khan and another 1995 SCR 283 and Azad Jammu and Kashmir Council and 3 others v. Muhammad Ikram and 3 others 2007 SCR 155 ref.

Ch. Jan Muhammad v. Ch. Muhammad Ismail and 6 others 2000 YLR 1051; The Eastern Construction Company v. AJ&K Government and others 2013 SCR 548; Capt. Rtd. Ali Afsar Khan v. Khalid Mahmood 2007 SCR 263; Dr. Liaqat Ali Khan and another v. District Returning Officer, District Sargodha and 3 others 2002 SCMR 1632; Ghulam Hussain and 3 others v. Muhammad Bostan and 3 others PLD 1995 SC (AJ&K) 38 and Azad Government of the State of Jammu and Kashmir through Chief Secretary and 6 others v. Kashmir Steel and Re-Rolling Mills through Managing Director and 3 others 2005 YLR 1834 rel.

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

----S. 44---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court could only be invoked when there was no other remedy available---Principles.

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

----S. 44---Writ jurisdiction of High Court---Scope---Factual controversy could not be resolved in writ jurisdiction.

The Eastern Construction Company v. AJ&K Government and others 2013 SCR 548 and Capt. Rtd. Ali Afsar Khan v. Khalid Mahmood 2007 SCR 263 rel.

Ch. Muhammad Siddique, Advocate for Appellant.

Sheikh Masood Iqbal, Advocate for Respondent No.1.

Muhammd Younis Tahir, Advocate for Respondents Nos.2 to 10.

Date of hearing: 15th April, 2014.

P L D 2015 Supreme Court (AJ&K) 17

Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

ALI SHAN and 8 others---Appellants

versus

IFTIKHAR AHMED and 2 others---Respondents

Civil Appeal No.25 of 2011, decided on 15th April, 2014.

(On appeal from the order of the High Court dated 12-10-2010 in Revision Petition No.37-A of 2008).

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

----Art. 89---Specific Relief Act (I of 1877), S. 42---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42---Appeal to Supreme Court---Suit for declaration---Document issued by foreign country, proof of---Scope---Application for placing on record a copy of 'misl-i-haqiat' was filed during pendency of suit which was accepted by the Trial Court but same was dismissed by the High Court---Validity---Document/order issued by the courts of occupied Kashmir could not be given the status of the document/order issued by the foreign country as same did not fall under the purview of foreign State---Status of occupied Kashmir was yet to be determined according to the resolutions of United Nations Organization---Government of occupied Kashmir was not recognized by the people of Azad Jammu and Kashmir or the Government---Document which the plaintiffs wanted to produce was only an attested copy of agency under the control of Government of occupied Kashmir and same had not been certified under the seal of consul or diplomat---If such document was certified under the seal of consul or diplomat even then the same could not be brought in the purview of Art.89 of Qanun-e-Shahadat, 1984 as Indian occupied Kashmir did not hold the status of a foreign country---No mode was available to verify such document that the original was in the possession of the same person who issued it---Such document could not be given any authenticity without any codal backing and same was not admissible in evidence---Appeal was dismissed in circumstances.

Jalal Khan and another v. Imam Din and others PLD 1970 AJ&K 88 rel.

M. Reaz Alam for Appellants.

Ch. Muhammad Mehfooz for Respondents.

Date of hearing: 26th March, 2014.

P L D 2015 Supreme Court (AJ&K) 23

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

MUHAMMAD HUSSAIN---Appellant

versus

ABDUL RASHEED and 6 others---Respondents

Civil Appeal No.139 of 2013, decided on 19th May, 2014.

(On Appeal from the judgment and decree of the High Court dated 14-6-2013 in Civil Appeal No.125 of 2010).

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

----O. I, R.3---Specific Relief Act (I of 1877), S.42---Azad Jammu and Kashmir Interim Constitution Interim Constitution Act (VIII of 1974), S.42---Appeal to Supreme Court---Suit for declaration---Necessary party, non-impleadment of---Effect---Amendment in the memo of appeal---Sufficient cause---Suit was concurrently decreed by the courts below---Contention of plaintiffs was that one of the plaintiff in whose favour a decree had also been passed was not impleaded as party in the line of respondents before any appellate court---Validity---No effective order could be passed without impleading a person in the line of respondents who was necessary party---Application for amendment in the memo of appeal filed at belated stage could not be considered without provision of sufficient cause---Non-impleading the necessary party in the present case was not a bona fide mistake and same could not be ignored lightly---Application for amendment in the memo of appeal was not beneficial to the defendant as appeals before the appellate courts were not competently filed---Valuable right had accrued to the other party---No convincing explanation for not impleading one of the plaintiff as party in the line of respondents before the appellate courts who was necessary party had been advanced which was fatal for maintenance of present appeal---Gross negligence was on record on the part of defendant which could not be ignored lightly---Appeal was dismissed in circumstances.

Muhammad Latif v. Zulfiqar Ali and 2 others 1993 SCMR 245; Sardar Muhammad Naseem Khan v. Brig. (R.) Muhammad Akbar Khan and 7 others 2003 SCR 142; Barkat Hussain v. Sardar Misri Khan PLD 1992 SC (AJ&K) 45; Said Muhammad and others v. M. Sardar and others PLD 1989 SC 532 and Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 ref.

Zahid Mehmood Shah and 24 others v. Azad Government and 14 others 2011 SCR 159; Zeenat Begum and others v. Fazal Dad and others 1993 SCR 245; Masud Ahmed and others v. United Bank Limited 1992 SCR 98 and Rehmdil Khan and 2 others v. Ali Safdar Khan and 2 others 1998 MLD 416 rel.

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

----S. 42---Appeal, amendment of---Sufficient cause---Scope---Application for amendment in the memo of appeal filed at belated stage could not be considered without provision of sufficient cause.

(c) Azad Jammu and Kashmir Supreme Court Rules, 1978--

----O. XIII, R. 1---Civil Petition for Leave to Appeal---Limitation---Limitation for filing petition for leave to appeal was 60 days.

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

----O. I, R.3---Failure to implead necessary party---Effect---No effective order could be passed without impleading a person in the line of respondents who was necessary party.

Raja Muhammad Shabbir Khan for Appellant.

Sardar Muhammad Azam Khan for Respondents.

Date of hearing: 24th April, 2014.

P L D 2015 Supreme Court (AJ&K) 31

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and

Raja Saeed Akram Khan, JJ

Civil Appeal No.11 of 2014

BASHIR AHMED MUGHAL and 6 others---Appellants

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 6 others---Respondents

On appeal from the judgment of the High Court dated 4-12-2013 in Writ Petitions Nos.752/2009 and 373/2013.

Civil Appeal No.99 of 2014

SADAQAT HUSSAIN RAJA, ADVOCATE and 6 others---Appellants

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 6 others---Respondents

On appeal from the judgment of the High Court dated 4-12-2013 in Writ Petitions Nos.752 of 2009 and 373/2013.

Civil Appeals Nos.11, 99 of 2014 and Civil Review Petition No.5 of 2014, decided on 25th August, 2014.

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

----Ss. 3 & 31(5)---Azad Jammu and Kashmir Interim Constitution---Basic spirit, essence and scheme---Basic spirit, essence and scheme of the Azad Jammu and Kashmir Interim Constitution Act, 1974, has been derived from the sources of the Holy Qur'an and Sunnah of the Holy Prophet (P.B.U.H).

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

----Ss. 3, 31(5), 42(6) & 43(4) & First Sched.---Judicial independence, concept of---Islam---Islam is the State religion of the Azad Jammu and Kashmir---Without independence there is no concept of judiciary in Islam---Scheme of the Azad Jammu and Kashmir Interim Constitution Act, 1974 speaks of an independent judiciary---Oath of office of a judge (i.e. Chief Justice of Azad Jammu and Kashmir, Judge of Supreme Court or High Court of Azad Jammu and Kashmir) clearly indicates the scheme and spirit of the Constitution which speaks of independence of judiciary by using the expressed words "without fear or favour", "affection or ill-will"---According to the constitutional provisions and command of Almighty Allah, independence of judiciary was the most sacred and important requirement of the State---Azad Government and others v. Genuine Rights Commission and others 1999 MLD 268, held per incuriam.

Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Saga of Judicial Independence in Pakistan by Muhammad Anum Saleem PLD 2003 Journal 41; Chief Justice of Pakistan Iftikhar Muhammad Chaudury v. President of Pakistan through Secretary and others PLD 2010 SC 61 and Surah Al Nisa, Verse No. 134 ref.

Azad Government and others v. Genuine Rights Commission and others 1999 MLD 268 per incuriam.

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

----Ss. 4(1) & (2)---Fundamental rights---Scope---Laws abridging or taking away fundamental rights, constitutionality of--- Scheme and spirit of the Azad Jammu and Kashmir Interim Constitution Act, 1974 is to protect, advance, and safeguard the constitutionally guaranteed fundamental rights---Section 4(1) & (2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, provides that any law, whether made by legislative bodies or by judges, the application of which resulted into abridging and taking away of fundamental rights was null and void even before its inception and was consequently of no legal effect---Provision of S.4(1) & (2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, has overriding effect and all laws have to be interpreted, implemented and enforced according to the spirit of said constitutional provisions.

Dr. Mobashir Hassan and others v Federation of Pakistan and others PLD 2010 SC 265 and Mahendra Lal Mini v. State of Uttar Pardesh and others AIR 1963 (sic) 1019 ref.

(d) Azad Jammu and Kashmir Shariat Court Act (IX of 1993)---

----Ss. 3(1) & 6---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.4(4)---Azad Jammu and Kashmir Shariat Court---Fundamental rights, relevance of---According to its jurisdiction Azad Jammu and Kashmir Shariat Court was concerned with all the Fundamental rights (provided under the Azad Jammu and Kashmir Interim Constitution Act, 1974).

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

----S. 4(4)---Fundamental rights---Equality of state subjects---Significance and scope---Fundamental right that all the State subjects were equal before law and entitled to equal protection of law, appeared to be a foundation upon which the whole structure of other fundamental rights was based.

Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others 1994 CLC 2339 ref.

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

----S. 4(4)---Fundamental rights, protection of---Independent judiciary---Significance and role---Judiciary was the sole organ of the State to protect the constitutionally guaranteed fundamental rights---Fundamental rights could only be enforced or guaranteed by an independent judiciary, which was the spirit and essence of the Azad Jammu and Kashmir Interim Constitution Act, 1974.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Al-Jehad Trust through Raeesul Mujahideen Habibul-Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Muhammad Nadeem Arif v. Inspector General of Police, Punjab 2011 SCMR 408 and All Pakistan Newspapers Society v. Federation of Pakistan PLD 2012 SC 1 ref.

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

----S. 4(4)---Fundamental rights---Equality of state subjects---Access to justice---Judicial independence---Without an independent judiciary, there could be no concept of equal treatment of law or equal protection of law---Right of access to justice and equal protection of law were the most fundamental rights than any other right which could only be achieved through an independent judiciary.

Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Sh. Riaz-ul-Haq and another v. Federation of Pakistan and others PLD 2013 SC 501; Sharaf Faridi v. Islamic Republic of Pakistan PLD 1989 Kar. 404 and Government of Balochistan through Additional Chief Secretary v. Azizullah Memom PLD 1993 SC 341 ref.

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

----S. 4(4)---Fundamental rights---Scope---Law which "takes away" or "abridges" the fundamental rights---"Takes away" or "abridges"---Meaning---According to the provisions of S.4(1) & (2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, any law which "takes away" or "abridges" the fundamental rights was void---Term "takes away" was very much clear conveying the total deprivation of the rights, whereas the term "abridges" included even curtailment or partial deprivation of rights.

(i) Words and phrases---

----"Abridge"---Meaning.

Black's Law Dictionary with Pronunciations, Sixth Edition by Henry Campbell Black M.A, (p.8); Kitabistan's New Millennium Practical Dictionary, English-English-Urdu, by B.A. Qureshi, (p.4); Chambers 20th Century Dictionary, New Edition, 1983 Edited by E.M. Kirpatrick, (p.4) and Chambers 21st Century Dictionary Revised Edition, Edited by Mairi Robinson ref.

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

----S. 4(4)---Fundamental rights, curtailment of---Scope---Independent judiciary, absence of---Effect---Absence of an independent judiciary amounted to taking away and abridging the fundamental rights.

(k) Azad Jammu and Kashmir Shariat Court Act (IX of 1993)---

----Ss. 3(2) & 6---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.4(4), 42(4) & 43(2-A)---Azad Jammu and Kashmir Shariat Court---Appointment of judges---Procedure---Judicial independence---Appointment of judge of the Shariat Court, Azad Jammu and Kashmir without consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the Shariat Court of Azad Jammu and Kashmir---Constitutionality---Favouritism and nepotism in appointment of judges---According to the modern principles of the jurisprudence and universally accepted constitutional provisions, the basic essence and spirit in all the constitutions of the civilized states was the establishment of an independent judiciary and access to justice---Shariat Court of Azad Jammu and Kashmir according to the scope of its jurisdiction assigned under the provisions of Azad Jammu and Kashmir Shariat Court Act, 1993 or by any other law had to perform an important role in the system of administration of justice---According to its scope and jurisdiction the Azad Jammu and Kashmir Shariat Court was directly and indirectly concerned with the constitutionally guaranteed fundamental rights, thus, its independence was constitutionally required---According to the nature of the judicial functions of the Shariat Court it was an important judicial institution for the purpose of administration of justice and its complete independence according to the spirit and scheme of the constitution was inevitable---For attaining and maintaining the independent status of judicial organs, the mode of appointment (of judiciary) was of much importance and without following the mode which was required according to the constitution for an independent judiciary, no court could be established---Common feature of constitutions of different countries around the world, whether democratic or non-democratic, was that the appointments were made in the judiciary in consultation with or on the recommendations of the concerned bodies consisting of the Chief Justices, or judges or jurists of the country, or the persons or office holders concerned with the field of administration of justice---Such method of (judicial) appointments upheld the independence and dignity of the judiciary---Power of judicial appointments did not arbitrarily or solely vest in the ruler---According to the universally applicable principles, there was no concept of subservient judiciary in the world rather there was a universal consensus on the independent status of the judiciary---For independence of judiciary, the appointments in Shariat Court of Azad Jammu and Kashmir in consultation with the Chief Justice of High Court/Shariat Court and the Chief Justice of Azad Jammu and Kashmir was a mandatory constitutional requirement---Appointments in the judiciary without consultation with the Chief Justices were against the spirit of the Azad Jammu and Kashmir Interim Constitution Act, 1974---For establishment of an independent judiciary and to protect the constitutionally guaranteed fundamental rights, if any court was established in violation of the spirit of the constitution without consultation of the Chief Justices, it amounted to abridging and taking away the fundamental rights---For appointment of a Judge of Shariat Court, the Azad Jammu and Kashmir Shariat Court Act, 1993, did not contain any provision for consultation with the Chief Justices, which meant that such appointment was purely dependent upon the arbitrary discretion of the appointing authority i.e. the President---Such mode of appointment was violative of the independence of judiciary---Subservient judiciary could not safeguard or protect the constitutionally guaranteed fundamental rights which amounted to abridging the fundamental rights of access to justice---Present mode of appointment of judges of Shariat Court raised the presumption that such appointments were made in an arbitrary manner without any meaningful consultation, application of mind, necessary required deliberations or comparison among the eligible state subjects for determination of merit, eligibility and suitability---Adopting a mechanism of bypassing the constitutional provisions providing requirement of consultation with the Chief Justices before appointment of judges of the Shariat Court , was one of the reasons which created doubts in the minds of the public at large regarding (Shariat) Court's establishment for accommodation of some persons on the basis of favouritism and nepotism---Such doubts resulted in damaging the dignity of the judiciary and shaking the public confidence upon such an important state organ---Provisions of S.3 of the Azad Jammu and Kashmir Shariat Court Act, 1993 (in their present shape) empowered the executive authority to appoint the Judge Shariat Court without consultation with the Chief Justices which was in negation of the constitutional spirit of the independence of judiciary, and also amounted to abridging and taking away the fundamental rights---Any law which was against the independence of judiciary whether regarding exercise of its jurisdiction or powers for administration of justice or the mode of appointment amounted to taking away and abridging the constitutionally guaranteed fundamental rights---Section 3 of the Azad Jammu and Kashmir Shariat Court Act, 1993,was declared to be partly ultra vires to the Azad Jammu and Kashmir Interim Constitution Act, 1974 to the extent of empowering the appointing authority to appoint the judges of the Shariat Court without consultation of the Chief Justices---Supreme Court directed that the appointment of all the judges of Shariat Court of Azad Jammu and Kashmir from the year 1993 under S.3 of the Azad Jammu and Kashmir Shariat Court Act, 1993 (except the proviso of S.3(2) of said Act), were void, however, all the acts done by such judges were declared to be valid on the principle of de-facto doctrine including the drawing of the financial benefits etc; that for establishment of the Shariat Court according to the spirit of the constitution and for achieving the object mentioned in the Azad Jammu and Kashmir Shariat Court Act, 1993, legislation was required which provided for mode of appointment of judges (of Shariat Court) with consultation of the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of High Court who was also Chief Justice of Shariat Court---Appeal was disposed of accordingly.

Azad Government and others v. Genuine Rights Commission and others 1999 MLD 268 per incuriam.

Muhammad Younas Tahir and another v. Shaukat Aziz, Advocate, Muzaffarabad and others PLD 2012 SC (AJ&K) 42; Al-Jehad Trust's case PLD 1996 SC 324; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Constitution of India, Articles 233 and 234; Constitution of the Kingdom of Saudi Arabia, Article 52; Constitution of the Islamic Republic of Iran, Articles 157 and 162; Constitution of the Republic of Turkey, Articles 138 and 140; Constitution of Indonesia, Articles, 24, 24A and 24B; Federal Constitution of Malaysia, Article 122B(1) and Constitution of the United Arab Emirates, Article 96 ref.

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

----S. 4(4)---Fundamental rights---Constitutional provisions, interpretation of---Scope---When interpreting constitutional provisions, liberal interpretation in favour of safeguarding the fundamental rights was always preferred.

National Industrial Cooperative Credit Corporation Ltd. and another v. Province of Punjab/Government of Punjab and another PLD 1992 Lah. 462 ref.

(m) Azad Jammu and Kashmir Shariat Court Act (IX of 1993)---

----S. 3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 4(4)---Shariat Court, Azad Jammu and Kashmir---Removal of judges, procedure for---Constitutionality---Azad Jammu and Kashmir Shariat Court Act, 1993, did not contain any express provision for removal of the Judges of the Shariat Court, logical consequences of which could be either that the judges of Shariat Court were above law, or that they were not accountable for any misconduct, or that they were to be removed for (only) physical or mental incapacity, or that their removal depended on the sweet will of the ruler--- Azad Jammu and Kashmir Shariat Court Act, 1993, in the context of removal of judges of Shariat Court, was violative of the spirit of independence of judiciary which resulted into abridging and taking away the constitutionally guaranteed fundamental rights---Section 3 of the Azad Jammu and Kashmir Shariat Court Act, 1993, was declared to be partly ultra vires to the Azad Jammu and Kashmir Interim Constitution Act, 1974 to the extent of lacking the provision and procedure for removal of judge of Shariat Court---Supreme Court directed that for establishment of the Shariat Court according to the spirit of the Constitution and for achieving the object mentioned in the Azad Jammu and Kashmir Shariat Court Act, 1993, legislation was required which provided a mode for removal of judge of Shariat Court for misconduct, incapability of properly performing functions of duties by reason of physical or mental incapacity---Appeal was disposed of accordingly.

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

----S. 46(2) & (3)---"Other courts" in addition to Supreme Court and High Court Azad Jammu and Kashmir---Scope---Section 46(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974, stated that there shall, in addition to the Supreme Court of Azad Jammu and Kashmir and the High Court, be such other courts as established by law---Establishment of such other courts did not mean conferring the jurisdiction already vested in the Supreme Court and High Court or to establish parallel additional Supreme Court or the High Court---Word "in addition" used in S.46 of Azad Jammu and Kashmir Interim Constitution Act, 1974, clearly conveyed the intention of legislature that for establishment of such (other) courts, there must be some additional object which could not be achieved through the already established courts---Establishment of such other courts without the additional object or jurisdiction would amount to destroying the whole system of administration of justice which could not be the true spirit of the Constitution or intention of the legislature.

(o) Azad Jammu and Kashmir Shariat Court Act (IX of 1993)---

----Ss. 3 & 6---Constitution of Pakistan, Art. 203-C---Shariat Court of Azad Jammu and Kashmir, composition of---Superfluous composition---Lack of Aalim/Ulema judges---Present composition of the Shariat Court of Azad Jammu and Kashmir appeared to be superfluous because there was no special features, qualification or distinction in its composition except the mode of appointment of judges---Azad Jammu and Kashmir Shariat Court Act, 1993, had basically been established to examine the status of law whether or not it was in accordance with the Injunctions of the Holy Qur'an and Sunnah, but regrettably, not a single person as judge had been included (appointed) to achieve such purpose---For the necessity of establishment of the Shariat Court, there must be some distinction in its composition as compared to the High Court to justify the establishment of a separate court---Since qualification and terms and conditions of the judges of the Shariat Court were the same (as that of a judge of the High Court), then question was as to why the jurisdiction which had been conferred upon Shariat Court could not be exercised by the judges of the High Court having the same qualification and privileges---Composition of Shariat Court of Azad Jammu and Kashmir should be such that there must be some judges having special qualification relevant to the specified purpose to be achieved by the said court, like the Constitution of Pakistan which provided for induction of Ulema as judges of Shariat Court of Pakistan, having at-least fifteen years' experience in Islamic law research or instruction---Section 3 of the Azad Jammu and Kashmir Shariat Court Act, 1993, was, thus, declared to be partly ultra vires to the Azad Jammu and Kashmir Interim Constitution Act, 1974, to the extent of lacking the necessary provision of induction of Aalim Judge(s) for achieving the specific object of Islamization of laws---Supreme Court directed that for establishment of the Shariat Court according to the spirit of the constitution and for achieving the object mentioned in the Azad Jammu and Kashmir Shariat Court Act, 1993, legislation was required which provided for induction of at-least one Aalim Judge, possibly having the qualification as near to Mujtahid or at-least the qualification provided under Art.203-C of the Constitution of Pakistan i.e. having at-least fifteen years' experience in Islamic law, research or instruction--- Appeal was disposed of accordingly.

(p) Words and phrases---

----"Law"---Scope---Term "law" not only included the laws made by the 'legislative bodies' but also included 'judge made law'.

Sultan and others v. Additional Sessions Judge, Sargodha and others 1983 PCr.LJ 2182 and Government of Pakistan through Director General, Ministry of Interior, Islamabad and others v. Farheen Rasheed 2011 SCMR 1 ref.

(q) Precedent---

----Judge-made law could not be applied or interpreted in such a manner which resulted into making any provision of the Constitution as inoperative or redundant--- Allowing such an interpretation would amount to subversion of the Constitution.

(r) Interpretation of statutes---

----Principles---Courts while interpreting the law did not legislate or create any new law or amend the existing law, but they only declared the true meanings of law which already existed---Such interpretation of law would be applicable from the date of enactment of the interpreted law.

Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161 ref.

Raja Muhammad Hanif Khan, Advocate for Appellants (in Civil Appeal No. 11 of 2014).

Asghar Ali Malick, Advocate for Respondents (in Civil Appeal No. 11 of 2014).

Raja Muhammad Hanif Khan, Advocate along with Sadaqat Hussain Raja, Advocate for Appellants (in Civil Appeal No. 99 of 2014).

Asghar Ali Malick, Advocate for Respondents Nos.1 and 2 (in Civil Appeal No. 99 of 2014).

Abdul Rashid Abbasi and Raja Ibrar Hussain, Advocates for Respondents Nos.5 and 6 (in Civil Appeal No. 99 of 2014).

Asghar Ali Malik, Advocate for Petitioners (in Civil Review Petition No.5 of 2014).

Date of hearing: 3rd June, 2014.