PLD 2016 Judgments

PLD 2016 Federal Shariat Court 1

Before Allama Dr. Fida Muhammad Khan, Sheikh Najam ul Hasan and Zahoor Ahmed Shahwani, JJ

NADEEM SIDDIQUI---Petitioner

Versus

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

Shariat Petition No.5/L of 2013, decided on 16th April, 2015.

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

----S. 5 & Sched.---Constitution of Pakistan Art.203-D---Shariat petition---Jurisdiction of Family Court to issue decree for restitution of conjugal rights---Repugnancy to injunctions of Islam---No specific verse of the Qur'an or Hadith put an embargo on the Family Court to restrain it from passing art order for restitution of conjugal rights-- Jurisdiction of Family Court to issue decree for restitution of conjugal rights was not against the Injunctions of Islam.

Reconciliation efforts had been emphasized in the Holy Qur'an to effect compromise between the spouses, if their relations were strained. West Pakistan Family Courts Act, 1964, also provided for compromise or reconciliation at pre-trial and post-trial stages, which was according to Injunctions of Islam. In case of spouses, the jurisdiction to resolve their differences had been granted to the Family Court. However in case, the compromise or re-conciliation failed and did not appear to be possible, then the course to be adopted by the Family Court to settle matter had also been mentioned in the West Pakistan Family Courts Act, 1964. Petitioner did not cite any verse of the Qur'an or Hadith to support his contention that jurisdiction of Family Court to issue decree for restitution of conjugal rights was against the Injunctions of Islam--- Shariat petition was dismissed accordingly.

Surah Al-Nisa, Verse 35 ref.

Ch. Bashir Hussain Khalid for Petitioner, Date of hearing: 16th April, 2015.

P L D 2016 Federal Shariat Court 4

Before Allama Dr. Fida Muhammad Khan, Sheikh Najam ul Hasan and Zahoor Ahmed Shahwani, JJ

NADEEM SIDDIQUI---Petitioner

Versus

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

Shariat Petition No.4/L of 2013, decided on 30th April, 2015.

(a) Islamic jurisprudence--

--Decree of court-Significance-Decree passed by a competent court had great significance and sanctity in Islam.

(b) Civil Procedure Code (V of 1908)

----O. XXI, Rr. 32 & 33---West Pakistan Family Courts Act (XXXV of 1964), S. 5 & Sched.---Constitution of Pakistan, Art. 203-D---Shariat petition-Decree against wife for restitution of conjugal rights--- Non-compliance with decree by wife-Jurisdiction of Family Court to attach wife's property or order her to make periodical payments to the husband for non-compliance with decree---Repugnancy to Injunctions of Islam---Decree passed by a competent court had great significance and sanctity in Islam---Order XXI, Rr.32 & 33, C.P.C. provided a mechanism for execution of decree/judgment delivered by Family Court, in the event that a spouse was not complying with such decree/judgment---Order XXI, Rr.32 & 33, C.P.C. were not against the Injunctions of Islam.

Family Courts were established for the expeditious settlement of disputes relating to marriage and family affairs. Where a decree passed or a judgment delivered by Family Court was not complied with or not taken to its logical end, the whole exercise would become meaningless, therefore, there had to be some mechanism to execute the judgment/decree. Order XXI, Rules 32 & 33, C.P.C. provided such a mechanism for executing judgments/decrees. Under Order XXI, Rules 32 & 33, C.P.C., a Family Court had the jurisdiction to attach a wife's property or order her to pay periodical payments to the husband in case she did not comply with the decree for restitution of conjugal rights. More importantly in case the wife was unwilling to live with the husband, she could resort to the judicial process and move a petition for obtaining a decree for dissolution of marriage on the basis of 'khula'. Shariat petition was dismissed.

Surah Al-Baqarah, Verse 231 distinguished.

(c) Constitution of Pakistan ---

----Art. 203-B(c)---Civil Procedure Code (V of 1908), 0.XXI, Rr.32 & 33---West Pakistan Family Courts Act (XXXV of 1964), S. 5 & Sched--- Federal Shariat Court, jurisdiction of---Muslim Personal law-- Jurisdiction of Federal Shariat Court was excluded in matters pertaining to Muslim Personal law---Order XXI, Rr.32 & 33, C.P.C. (which provided a mechanism to the Family Court for execution of its judgment/decree) were not only procedural law but also fell within the category of Muslim Personal law, thus they were excluded from the jurisdiction conferred on the Federal Shariat Court---Shariat petition was dismissed accordingly.

Ch. Bashir Hussain Khalid for Petitioner.

Date of hearing: 16th April, 2015.

P L D 2016 Federal Shariat Court 9

Before Dr. Allama Fida Muhammad Khan, Shaikh Najam ul Hasan and Zahoor Ahmed Shahwani, JJ

PAKISTAN COTTON GINNERS ASSOCIATION (REGD.) PAKISTAN through Secretary---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Commerce and 5 others---Respondents

Shariat Petition No.07/I of 2005, decided on 16th April, 2015.

(a) Words and phrases--

----"Custom or usage"---Scope and essential elements.

"Words and Phrases" published by West Publishing Co. ref.

(b) Words and phrases--

----"Custom"---Definition.

Law-Terms and Expression, Edn. 2012 ref.

(c) Constitution of Pakistan ---

----Arts. 203-B(c) & 203-D---Federal Shariat Court, jurisdiction of-- Scope-Rules framed under an Act or Ordinance---Repugnancy to Injunctions of Islam---Act/Ordinance was termed as "statutory law"--- Rules framed under the powers conferred by the "statuary law", were integral part of the same law and such Rules, if considered repugnant to the Injunctions of Islam, could be challenged in a Shariat petition by any citizen.

(d) Constitution of Pakistan---

----Arts. 203-B(c) & 203-D---Federal Shariat Court, jurisdiction of--- Scope---By-laws or Rules of a Private Limited Company/Association not made/approved by the Government--Such by-laws/Rules were non-statutory in nature and thus remain beyond the pale of jurisdiction of the Shariat Court.

Petitioner had challenged certain by-laws framed by the Karachi Cotton Association, which was a private limited company. Rules/by-laws which had been made by a Private Limited Company/Association, without the approval of the legislature and which could be changed, any time, only by the Company/Association, without the intervention of the Government,' enjoyed a non-statuary status and thus remain beyond the jurisdiction of the Federal Shariat Court, as determined by the Constitution. Impugned by-laws/Rules of Karachi Cotton Association could not be brought inside the scope of "custom or usage" as used in Article 203-B(c) of the Constitution. Federal Shariat Court could not examine the impugned by-laws of Karachi Cotton Association by way of Shariat petition. Shariat petition was dismissed accordingly.

(e) Constitution of Pakistan---

----Arts. 203-B(c) & 203-D---Federal Shariat Court, jurisdiction of---"Custom or usage" having the force of law---Scope and meaning---Meaning and legal connotation of the expression "custom and usage" [used in Art.203-B(c) of the Constitution] could not be left to the discretion or notions of an individual but had to be clearly spelt out in the light of its legal import, hence, it would not be permissible at all to exercise such free imagination to the extent that its nexus with the law was lost---Meaning of the expression "custom and usage" should always be consistent with ethos and spirit of legal tinge and must be properly spelled out very clearly to remain limited to only certain situations as and when they would emerge from time to time and should not be unnecessarily given unlimited expansion---If such principle was relaxed, every now and then minor "usage and custom", only local and insignificant in nature, having no legal import, would un­necessarily start coming to the Federal Shariat Court for adjudication.

Dr. Muhammad Aslam Khaki for Petitioner.

Muhammad Zakir Sheikh, DeptyAttorney-General of Pakistan, Khurram Shahzad Baig, Standing Counsel, Syed Riaz ul Hasan Gillani, Senior Advocate for Respondent No.3 and Muhammad Yousaf, Section Officer for Respondent No.4.

Date of hearing 7th April, 2015.

P L D 2016 High Court (AJ&K) 1

Before M. Tabassum Aftab Alvi, Sardar Abdul Hameed Khan and Chaudhry Jahandad Khart, JJ

AZAD JAMMU AND KASHMIR CABLE OPERATORS ASSOCIATION through

Chief Coordinator and another---Petitioners

Versus

AZAD JAMMU AND KASHMIR COUNCIL through Chairman and 7 others---Respondents

Writ Petition No.1155 of 2011, decided on 15th September, 2015.

(a) Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act (VII of 2005)----

---Ss. 2(b), 3 & 4----Pakistan Electronic Media Regulatory Authority Ordinance (2002), Ss. 15, 16, 17 & 19---Adaptation of Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002), Preamble-Omission of Ss.15, 16 & 17 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and amendment of S.19 of said Ordinance---Constitutionality and vires of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005---Petitioner, sole representative of cable operators in Azad Jammu and Kashmir, challenged the vires and propriety of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005, along with Pakistan Electronic Media Regulatory Authority Rules, 2009 for having been adapted and issued without lawful authority and sought quashing all proceedings, actions and orders issued by Pakistan Electronic Media Regulatory Authority and steps taken by functionaries of Azad Jammu and Kashmir regarding business of petitioner---Petitioner contended that functions of PEMRA, as set up under Pakistan Electronic Media Regulatory Authority Ordinance, 2002, could not be extended to Azad Jammu and Kashmir through Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005, and that powers could not be conferred on its employees by Azad Jammu and Kashmir Council, and that the PEMRA could not function within territorial limits of Azad Jammu and Kashmir---Validity---According to Constitution of Pakistan and Azad Jammu and Kashmir Interim Constitution Act, Azad Jammu and Kashmir was not part of Pakistan, and that laws of Pakistan were not applicable to the liberated territory of Jammu and Kashmir; thus, the functionaries, appointed under a particular law, which was in force in Pakistan, did not have the jurisdiction to function in Azad Jammu and Kashmir---Section 2 (b) of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005 had declared PEMRA as an agent of the Azad Jammu and Kashmir Council---Employees of the PEMRA were neither appointed by Azad Jammu and Kashmir Council, nor were they answerable before the same, nor the Council had power to legislate for said employees--- Section 2(b) of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005 was, therefore, against Azad Jammu and Kashmir Interim Constitution Act, 1974 to the extent of entrustment of powers to PEMRA---Under S.3 of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005, Ss.15, 16 & 17 of Pakistan Electronic Media Authority Ordinance, 2002, being superfluous, had been omitted---In case of establishment of Council Electronic Media Regulatory Authority, said provisions could not be omitted---Section 3 of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and- Extension of Functions to Azad Kashmir) Act, 2005 was, therefore, bad in law---Under S.4 of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005, after S. 19(4) of Pakistan Electronic Media Authority Ordinance, 2002, S.19(5) had been added, according to which PEMRA, after receiving fees from the licensee, would transfer fifty percent of the same to Azad Jammu and Kashmir Council within thirty days of receipt of the same, which is also against provisions of Azad Jammu and Kashmir Interim Constitution Act, 1974---Provisions of Ss. 2(b), 3 & 4 of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005 were, therefore, contrary to the Azad Jammu and Kashmir Interim Constitution Act, 1974---High Court, partially accepting present petition, struck down provisions of Ss.2(b), 3 & 4 of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005, being without lawful authority-Writ petition to the extent of adaptation of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005, was dismissed.

Messrs Jabbeer Hotel Mirpur v. Kashmir Council Islamabad and 4 others 2001 PLC(CS) 11 rel.

(b) Pakistan Electronic Media Regulatory Authority Rules, 2009----

----Rr. 6, 8, 9 & 10----Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002), Ss. 15, 16, 17, 19, 28 & 33---Azad Ja111111ll and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act (VII of 2005), Ss.2 & 6---Grant of licence-Subscription fee---Fee and security deposits---Suspension of broadcast media and distribution services--- Offences and penalties-Adaptation of Pakistan Electronic Media Regulatory Authority Rules, 2009---Scope---Petitioners, cable operators and television channel, were alleged to have been running their business illegally, and show cause notices were therefore issued to them to regularize their services by obtaining new licence after depositing requisite fee under the prevailing laws and rules---Petitioners contended that Pakistan Electronic Media Regulatory Authority Rules, 2009 had not been adapted by Azad Jammu and Kashmir Council, and that the PEMRA therefore could not collect revenue from the State of Azad Jammu and Kashmir---Validity---As proved from pleadings, Pakistan Electronic Media Regulatory Authority Rules, 2009 had not been adapted by Azad Jammu and Kashmir Council---Letter issued by PEMRA provided that PEMRA would perform its functions in name and style of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (CEMRA); however, said letter had no statutory backing---Employees, who were basically employees of the PEMRA, had neither been appointed by, nor were they answerable, to Azad Jammu and Kashmir Council---However, Azad Jammu and Kashmir Council was empowered to establish CEMRA through legislation and appoint its employees for purposes of enforcement of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005---Pakistan Electronic Media Regulatory Authority Rules, 2009, having not been adapted by Azad Jammu and Kashmir Council, were set aside, and all the proceedings taken, orders/letters issued by or on behalf of PEMRA, were quashed.

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

----S. 31 & Third Sched. Item No. 2----Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act (VII of 2005), S. 2--- Legislative Powers of Azad Jammu and Kashmir Council---Scope--- Validity of adaptation of Pakistan Electronic Media Regulatory Authority, 2002---Petitioners contended that Azad Jammu and Kashmir Council was not competent to legislate the provisions of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005, which did not fall under any of the items given in the Council Legislative List as enshrined in the Third Schedule of Azad Jammu and Kashmir Interim Constitution Act, 1974---Validity---Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005 consisted of two parts: namely, adaptation of legislation and entrustment of powers to Pakistan Electronic Media Regulatory Authority to perform its functions in Azad Jammu and Kashmir--- Legislative powers had been bestowed upon Azad Jammu and Kashmir Council and Legislative Assembly as per S.31 of Azad Jammu and Kashmir Interim Constitution Act, 1974---State according to Third Schedule of Azad Jammu and Kashmir Interim Constitution Act, 1974, was empowered to legislate on fifty-two items---Broadcasting and ether like forms of communication were included in Item No.2 of the Third Schedule of Azad Jammu and Kashmir Interim Constitution Act, 1974----Assertion of petitioners that Azad Jammu and Kashmir Council was not competent to legislate on electronic media was repelled--- Adaptation of Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005 was held to be valid.

(d) Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act (VII of 2005)----

----Ss. 2, 3 & 4----Pakistan Electronic Media Regulatory Authority Rules, 2009, Rr. 6, 8, 9 & 10---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition-Maintainability-Laches and estoppel, principles of-Applicability-Validity of adaptation of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and the Pakistan Electronic Media Regulatory Authority Rules, 2009---Respondent raised the objection that present petition was not maintainable on grounds of laches and estoppel and as the civil suit had already been filed by petitioner and the same had been decided in his favour-Validity-Said objection was devoid of force---Petitioners had been preferring applications to various officials, including the Prime Minister of the State of Azad Jammu and Kashmir, far redressal of their grievances, and when their applications were not attended, then, they had invoked writ jurisdiction of High Court---Principles of laches and estoppel were not applicable to present case, as petitioners had neither challenged Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005 and Pakistan Electronic Media Regulatory Authority Rules, 2009 before any court of law, nor had they accepted the same---Suit filed by petitioners was related to declaration-cum-perpetual injunction against respondents not to interfere in lawful business of the petitioner---Writ petition could not be refused on basis of said suit, as neither Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act, 2005 nor Pakistan Electronic Media Regulatory Authority Rules, 2009 had been challenged in the suit.

(e) Azad Jammu and Kashmir Council Electronic Media Regulatory Authority (Adaptation and Extension of Functions to Azad Kashmir) Act (VII of 2005)----

----Ss. 2, 3 & 4----Pakistan Electronic Media Regulatory Authority Rules, 2009, Rr. 6, 8, 9 & 10---Civil Procedure Code (V of 1908), Ss.80(2) & 94---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition-Maintainability-Suit against Government---Requirements as to prior notice and permission for filing representative suit-Scope-Supplemental proceedings-Validity of adaptation of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 and the Pakistan Electronic Media Regulatory Authority Rules, 2009---Respondents raised the objection that present petition had been filed without issuing notices to the Government Officers and without obtaining permission for filing representative suit as required under Ss. 80 & 94 of C.P.C.---Validity---Said objection of respondents was baseless---Under S.80(2), C.P.C., where any suit was instituted without notice, plaintiff would not be entitled to any costs and, court would allow not less than three months to the Government to submit its written statement---Section 94, C.P.C. related to supplemental proceedings, having no nexus with proposition involved in the present case---Petitioners, even otherwise, had not filed present petition in the public interest; rather, the same was for enforcement of their Fundamental Right pertaining to "freedom of trade, business and profession".

Barrister Humayun Nawaz Khan for Petitioners.

Raza Ali Khan for Respondents Nos.1 and 2.

Muhammad Ashraf Qureshi for Respondents Nos.3 to 5.

Asghar Ali Malik for Respondents Nos.6 to 8.

P L D 2016 High Court (AJ&K) 32

Before Muhammad Sheraz Kiani, J

MUJAHID HUSSAIN NAQVI---Petitioner

Versus

ANSAR MEHMOOD AWAN and 2 others---Respondents

Revision Petition No.196 of 2015, decided on 18th February, 2016

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

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.147, 148, 149, 379, 382, 427, 447, 506, 509 & 511---Rioting, rioting armed with deadly weapons; theft; theft of car or other vehicle; mischief causing damage to the amount of fifty rupees, criminal trespass; criminal intimidation; word, gesture or act with intent to insult the modesty of a woman; attempt to commit offences punishable with imprisonment for life or for shorter term---Bail grant of---Further inquiry---False implication---Court below confirmed the pre-arrest bail granted to the accused persons---Prosecution evidence along with video recording of the occurrence appeared to have conflicting and contradictory situation---Case of the accused required further inquiry for the reasons that nothing was available on the record to show that when the occurrence had been witnessed by the cited witnesses and in what manner the stolen property had been shifted from the place of occurrence; that important questions regarding motive, which was dispute of land, were yet to be decided by the civil court; that allegation that the accused was armed with pistol appeared to be doubtful from the statements of witnesses recorded under S.161, Cr.P.C.; that allegations of harassment were also doubtful; and that the accused had allegedly exploded crackers, but no empties of those crackers had been taken by the police from place of occurrence---Possibility of false implication could not be ruled out in view of the overall circumstances of the case---High Court maintained the impugned order of grant of bail---Petition was dismissed accordingly.

PLD 2009 SC 427; PLD 1983 SC 82; 2012 PCr.LJ 430; 1997 MLD 2926; 2013 PCr.LJ 1082; 2004 MLD 905; 2014 SCR 173; 2014 SCR 412 (sic); 1999 PLC (C.S.) 115 and 2003 YLR 410 distinguished.

2006 PCr.LJ 144; 2005 YLR 842; PLD 1999 Lah. 277; 2014 PCr.LJ 1512; 2014 SCR 916 and 2014 SCR 234 ref.

Murad Khan's case PLD 1983 SC (PAK) 82; Hadyat Ullah Khan v. Khushi Muhammad and Siddique Ali PLD 1981 (Lah.) 599 and Zaffar Mehmood v. Muzaffar and another 2014 PCr.LJ 1512 rel.

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

----S. 497(5)---Bail, cancellation of---Principles---Once bail is granted by court of competent jurisdiction, very strong and exceptional grounds are required to cancel the same.

Zaffar Mehmood v. Muzaffar and another 2014 PCr.LJ 1512 rel.

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

----Ss.498 & 497(2)---Pre-arrest bail, grant of---Scope and conditions---Pre-arrest bail can be granted if the arrest of accused is being made for ulterior motives, such as humiliation, unjustified harassment, motive of the prosecution and political consideration on part of the police so as to cause irreparable injury to the reputation and liberty of the accused---Scope of pre-arrest bail, however, has gradually been widened, and the pre-arrest bail can be granted to the accused if he satisfies the conditions of S.497(2), Cr.P.C. that are reasonable grounds existed to believe that the accused is not guilty of the offence and sufficient grounds exist warranting further inquiry into his guilt.

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

----Ss. 497 & 498---Pre-arrest bail---Appreciation of evidence---Principles---At bail stage, only tentative assessment of record, such as FIR, statements of the witnesses recorded under S.161, Cr.P.C. along with other material and defence, if any, raised by the accused, has to be made---Deeper appreciation of evidence is although not permissible at bail stage; however, bail order cannot be passed in vacuum---If during tentative assessment of the evidence collected by the police slightest doubt or question of further inquiry arises, then no bar exists for the court to grant pre-arrest bail.

Petitioner in person.

Ch. Muhammad Mumtaz for Respondents.

Date of decision: 18th February, 2016.

P L D 2016 High Court (AJ&K) 39

Before Chaudhary Jahandad Khan and Muhammad Sheraz Kiani, JJ

The STATE through Advocate-General Azad Jammu and Kashmir, Muzaffarabad---Appellant

Versus

RUSTAM KHAN and 11 others---Respondents

Criminal Appeal No.6 of 2013, decided on 2nd February, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 417 & 492---Azad Jammu and Kashmir law Department Manual, 1984, Rr.2(a), 5, 8 & 14---Azad Jammu and Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.20---Appeal against acquittal---Competence to file---Procedure---Section 417(1), Cr.P.C. manifested that in case of appeal against acquittal, Government could only direct the Public Prosecutor, subject to provision of S.417(4), Cr.P.C. to file appeal to High Court from original or appellate order of acquittal passed by any court other than High Court---Word 'Public Prosecutor' had been specifically inserted by which Advocate General, Additional and Assistant Advocate Generals were not the authority within the meaning of S.417(1), Cr.P.C. to file acquittal appeal---Office of Public Prosecutor was distinct and his functions and duties were different from the duties of the Assistant to the Advocate General or of the Advocate General---Sections 417 & 492, Cr.P.C. clearly provided that person presenting appeal must act as public Prosecutor; however, he might hold one or more other offices---Criminal Procedure Code, 1898 did not provide that Advocate General would also be Public Prosecutor---Definitions of 'Public Prosecutor' and 'Advocate General' postulated that the purpose and intent of both definitions were quite distinct from one another---Public Prosecutor was appointed under S.492, Cr.P.C. and Advocate General, under S.20 of Azad Jammu and Kashmir Interim Constitution Act, 1974---Advocate General did not fall within the meaning of 'Public Prosecutor'---Direction should have been issued to the Public Prosecutor as required under S.417, Cr.P.C. rather than to the Additional Advocate General or Advocate General---Star prosecution witnesses of Qalandra Challan cited as ocular witnesses, had already been recorded whereas, the other two prosecution witnesses were the responsibility of the prosecution---No fruitful purpose would be served, even if further evidence was ordered to be produced at that stage---Trial Court had committed no illegality while allowing the application---Appeal was presented before High Court neither by "Public Prosecutor" nor by a person wholly authorized with powers for the purpose as enshrined by S.417, Cr.P.C.---Appeal, being incompetent, was dismissed accordingly.

The State v. Muhammad Nasim Baig 1989 PCr.LJ 1842; State through Advocate General, Sindh v. Hanif Ahmd and others 1994 SCMR 749 and The State v. Nooro alias Noor Muhammad and others 1998 PCr.LJ 35 rel.

Ch. Ashraf Ayaz, Addl. A.-G. and Ch. Arif Raza, Asstt. A.-G. for the State.

Nemo for Respondents Nos. 1 and 2.

Respondents Nos. 3 to 12 along with Zaheer Babar Chaughtai, Advocate.

Date of decision: 2nd February, 2016.

P L D 2016 Islamabad 1

Before Athar Minallah, J

SHAFQAT HUSSAIN---Petitioner

Versus

PRESIDENT OF THE ISLAMIC REPUBLIC OF PAKISTAN and 8 others---Respondents

Writ Petition No.1096 of 2015, decided on 11th May, 2015.

(a) Constitution of Pakistan---

----Art. 45---Grant of pardon---Power of the President-Judicial review---Scope--Powers of the President under Art.45 of the Constitution are unfettered and subject to limited power of judicial review by courts---Writ cannot be issued compelling the President to exercise discretion under Art.45 of the Constitution---Such discretion has been exclusively vested in the President by the framers of the Constitution.

Ziaullah v. Najeebullah and others PLD 2003 SC 656; Nazar Hussain v. The State PLD 2010 SC 1021; Satrughan Chauhan v. Union of India and others (2014) 3 SCC 1 and Hakim Khan v. Government of Pakistan and others PLD 1992 SC 595 rel.

(b)Administration of justice---

---What cannot be done directly can also not be done indirectly.

(c) Constitution of Pakistan--

----Art. 199---Suo motu powers of High Court---Scope---High Court cannot exercise suo motu powers under Art. 199 of the Constitution.

Dr. Imran Khatak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122 rel.

(d) Maxim:

----"Interest reipublicae ut sit finis litium"---Connotation: In, the interest of society as a whole, litigation must come to an end; it is imbedded in and an integral part of the rule of law.

Abul Hossain Sana v. Suwalal Agarwala and another PLD 1962 SC 242 rel.

(e) Constitution of Pakistan---

----Art. 13---Double jeopardy---Scope---Rule known as 'double jeopardy' is also embedded in the doctrine of finality of proceedings.

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

----S. 302(b)---Constitution of Pakistan, Arts. 10-A, 45 & 199---Qatl-i­amd---Constitutional petition---Death sentence-Pardon, grant of---Right to fair trial---Petitioner was convicted by Trial Court and sentenced to death---Conviction and sentence awarded by Trial Court attained finality up to Supreme Court and mercy petition filed before President was also dismissed-Validity-No material was placed before High Court which would entitle petitioner to grant of pardon---Petitioner did not challenge trial proceedings, nor had any complaint with regard thereto---Trial and proceedings before appellate forums were in accordance with his right to a fair trial---Petitioner was represented by counsel of his choice and besides his confessional statement before Judicial Magistrate, prosecution established its case beyond a reasonable doubt---Evidence recorded was far more than confessional statement-Well reasoned exhaustive judgment of Trial Court was sufficient to place heavy burden on petitioner to make out at least an arguable case for consideration of grant of pardon---High Court in exercise of constitutional jurisdiction declined to interfere in conviction and sentence awarded to accused by Trial Court---Petition was dismissed in circumstances.

Shehla Zia's case PLD 1994 SC 693; Schulp v. Delo 513 U.S. 298, 317 (1995); Roper v. Simmons 543 U.S. 551 (2005); Bhai Khan v.

The State PLD 1992 SC 14; Abdul Malik v. The State PLD 2006 SC 365; Nazar Hussain v. The State PLD 2010 SC 1021; Muhammad Jamil v. The State and 3 others 2004 SCMR 1871; Sarfraz alias Shaffa v. The State and 3 others 2007 SCMR 758 and Rehmat Ullah alias Raja v. Home Secretary Punjab and others 2004 SCMR 1861 ref.

(g) Criminal trial--

----Finality of proceedings---Scope---If proceedings, which have attained finality, are made subject to reassessments, role of judicial system and effectiveness of criminal justice system will be undermined and eroded inevitably leading to chaos in society---Simultaneously victims of crime will also suffer.

Tariq Hassan and Syed Buland Sohail for Petitioner.

Mian Abdul Rauf, Advocate-General, Islamabad, Muhammad Waqar Rana and Afnan Karim Kundi, Addl. Attorney-General, Muhammad Shafaqt Jan and Syed Hasnain Ibrahim Kazmi, Deputy Attorney General, Muhammad Javaid Iqbal, Standing Counsel, Abdul Sattar Khokar, JS, M/O Interior, Syed Safer Hussain Shah, D.S. M/O Interior and Sh. Ijaz Ahmad, AD, FIA for Respondents.

Date of hearing: 8th May, 2015.

P L D 2016 Islamabad 15

Before Aamer Farooq, J

AMIR AHMAD---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.972 of 2015, decided on 3rd June, 2015.

Extradition Act (XXI of 1972)---

----Ss. 5, 7, 10 & 12---Constitution of Pakistan, Art.199--- Constitutional pet ition---Extradition---Delay in surrender---Discharge of accused---Petitioner was a fugitive from law and his extradition was sought by United States of America---Petitioner sought his discharge on the ground that he was not surrendered to foreign country within two months after he was taken into custody---Validity---Failure on the part of Government of Pakistan to extradite and convey petitioner out of Pakistan was due to pendency of criminal cases against him and were being tried in court of competent jurisdiction---Proper inquiry proceedings were conducted under S.10 of Extradition Act, 1972, and High Court under S.12 of Extradition Act, 1972, had jurisdiction to discharge the petitioner---Petitioner sought his discharge and not release on bail as his bail had already been dismissed by Supreme Court---Petition was dismissed in circumstances.

Mirza Iftikhar Mehmood v. Area Magistrate PLD 2009 Lah. 215; Suran Narayan Jha and others v. Emperor AIR 1935 Patna 419; Ahtabar Gul and others v. The State PLD 2014 Pesh. 10 and Muhammad Azeem Malik v. Government of Pakistan and others PLD 1989 SC 519 distinguished.

Muhammad Zubair Khalid for Petitioner.

Malik Feisel Rafique, D.A.G. for Respondents with Muhammad Asgher Ali Balooch, Inspector FIA.

Date of decision:3rd June, 2015.

P L D 2016 Islamabad 19

Before Aamer Farooq, J

ABID KHAN---Petitioner

Versus

GUL ZAMAN KHAN ABBASI and 4 others---Respondents

Civil Revision No.255 of 2013, decided on 31st July, 2015.

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

----Ss 12 & 27(b)---Transfer of Property Act (IV of 1882), Ss.52 & 41---Qanun-e-Shahadat (10 of 1984), Arts.117, 118, 119 & 120---Suit for specific performance of agreement to sell---Subsequent transaction---Lis pendens, principle of---Exception---Subsequent vendee-Requirements---Existence of certain facts---Burden of proof---Good faith---Scope---Suit property was further transferred during pendency of suit---Contention of subsequent vendee was that he was bona fide purchaser without notice---Suit was dismissed concurrently---Validity---Where a party to the lis wanted the court to believe about the existence of certain facts and sought verdict in his favour then onus to prove would be on such litigant who had asserted the existence of facts---Initial onus to prove would be on the subsequent vendee that he acquired the property for consideration in good faith and he had no knowledge of original sale agreement---If subsequent vendee had taken due care and there were no indicators to put him to a notice of third party interest then he should be said to have acted in good faith---Once initial onus was discharged by the subsequent vendee then burden would be on the plaintiff to prove that subsequent purchaser had notice of his sale agreement and subsequent transaction was without consideration; colourable or a fraudulent transaction entered into with dishonesty of purpose by the vendor and subsequent vendee to prejudice his rights under sale agreement---Onus to prove a fact in civil disputes did not remain constant or stagnant---Once initial onus had been discharged by the side upon whom it was originally placed then it would shift over the other party for rebuttal thereof or for the proof otherwise---Principle of lis pendens had an exception by way of transferee who had purchased the property during pendency of suit for consideration without notice---Onus to prove the plea of bona fide purchaser was on subsequent vendee who had discharged the same---Plaintiff had not questioned the transaction in favour of subsequent vendee either in the pleadings or through evidence---Revision was dismissed in circumstances.

2013 SCMR 1600; 2010 SCMR 286; PLD 1988 Lah. 717. Industrial Development Bank of Pakistan v Saadi Asmatullah 1999 SCMR 2874; Mukhtar Baig v. Sardar Baig 2000 SCMR 45; Muhammad Khan v. Muhammad Nawaz 2001 MLD 844; Muhammad Mobeen v Messrs Long Life Builders PLD 2006 Kar. 278; Eman Enterprises v. Rahim Industries PLD 1988 Lah. 717; Covalnon v. Fateh Khan PLD 1983 SC 53; Muhammad Ashraf Butt v. Muhammad Asif Bhatti PLD 2011 SC 905 and 2010 SCMR 1507 ref.

Muhammad Idress v. Muhammad Pervaiz 2010 SCMR 5; Mandi Hassan Muhammad Arif PLD 2015 SC 137; Khair-un-Nisa v. Malik Muhammad Ishaq PLD 1972 SC 25; Haifz Tassadaq Hussain v. Lal Khatoon PLD 2011 SC 296; Muhammad Iqbal v. Khair-ud-Din 2014 SCMR 33; Mst. Surraya Begum and others v. Ms.Suban Begum and others 1992 SCMR 652 and MCB Bank v. Duty Free Shop (Pvt.) Ltd. PLD 2011 Kar. 586 rel.

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

----Art. 119---Burden of proof as to particular fact---Scope---Where a party to the lis wanted the court to believe about the existence of certain facts and sought verdict in his favour then onus to prove would be on such litigant who had asserted the existence of fact.

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

----Art. 118---Burden of proof---Onus to prove a fact in civil disputes did not remain constant or stagnant---Once initial onus had been discharged by the side upon whom it was originally placed then it would shift over the other party for rebuttal thereof or for the proof otherwise.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court could not interfere with the findings of courts below unless same had suffered from jurisdictional infirmity.

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

----Preamble---Scope---Provisions of Transfer of Property Act, 1882 were not applicable to Islamabad Capital Territory.

Muhammad Nazir Javad for Petitioner.

Tariq Aziz, Ghulam Shabbir Akbar and Syed Wosat ul Hassan Shah for Respondents.

Date of hearing: 24th June, 2015

P L D 2016 Islamabad 32

Before Muhammad Anwar Khan Kasi, C J

TARIQ MEHMOOD---Petitioner

Versus

MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.2571 of 2014, decided on 11th November, 2015.

(a) Words and phrases---

----"Public Interest"---Connotation---Term 'Public interest' connotes interest of a large group or segment of society and is contraindicative of an interest which vests in an individual or a smaller group of persons.

Black's Law Dictionary 8th Edn. rel.

(b) Passport and Visa Manual---

----Para. 51---Constitution of Pakistan, Art. 199---Constitutional petition---Blacklisting of any person---Principle---Petitioner was arrested at the airport on the plea that his name had been placed in blacklist because he was previously convicted and sentenced to undergo imprisonment for one year under S.9(b) of Control of Narcotic Substances Act, 1997---Validity---Petitioner did not approach authorities designated by Rules and as such it could not be said that he had availed remedy of review at appropriate level---Order in question was based upon an established previous conviction which could not be interfered straightaway in constitutional jurisdiction---Mere assertion that impugned action was taken without prior notice could not in itself be a valid ground for setting aside the same as in the peculiar circumstances of case, it was matter of public interest making it permissible for the authorities to take preventive action---High Court declined to interfere in the order as the same had been done reasonably under authority of law---Petitioner could approach review committee after reasonable interval---Petition was dismissed in circumstances.

Naheed Khan v. Government of Pakistan PLD 1997 Kar. 513 rel.

Imran Feroz for Petitioner.

Ch. Haseeb Ahmad, Standing Counsel with Raja Asif, FIA/AHTC for Respondents.

Date of hearing 8th October, 2015.

P L D 2016 Islamabad 39

Before Muhammad Anwar Khan Kasi, C J

YOUCHAN ZHANG---Petitioner

Versus

SPECIAL JUDGE CUSTOMS and 3 others---Respondents

Criminal Revision No.61 of 2015, decided on 14th December, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 523---Customs Act (IV of 1969), Ss.8, 70, 178 & 156(1)---Smuggling---Passport, superdari of---Accused lady was a foreign national married to a Pakistani and she was alleged to have smuggled pork meat and liquor into Pakistan---Trial Court declined to hand over the accused her passport which was taken into custody at the time of her arrest---Authorities declined handing over the passport on the plea of a proof to travel history---Validity---Passport was prima facie neither instrumental to commission of alleged offence nor any offence was committed concerning the same as it had not been included in memo of recovery (Fard Baraamdgee) along with liquor and pork meat rather the same was added in memo of frisk (Fard Jama Talashi) listing her personal belongings like mobile phone, purse etc.---Passport could not be allowed to be retained on superficial basis of travel history recorded which could be seen through copy of passport---Procedure of law contained under Ss.516-A & 523, Cr.P.C. applicable on either case did not allow rejecting request for custody concerning an article which was not principally and essentially involved in commission or proof of alleged offence, where the same would limit freedom of movement---High Court directed the authorities to hand over passport to accused subject to furnishing solvent surety---Revision was allowed in circumstances.

Zia Ur Rehman for Petitioner.

Sadaqat Ali Khan, State Counsel and Muhammad Shakeel Awan, Law Officer, Customs.

P L D 2016 Islamabad 42

Before Miangul Hassan Aurangzeb, J

Dr. KHAYAL-UR-REHMAN---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Health Services, Regulation and Coordination, Islamabad and 2 others---Respondents

Writ Petition No.121 of 2016, decided on 15th January, 2016.

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

----Ss. 3 (1) & 31 [as amended by Pakistan Medical and Dental Council Ordinance (XI of 2015)]---Constitution of Pakistan, Art. 247(3)---Federally Administered Tribal Areas, reserved seat---Notification, withholding of---Petitioner was a practicing doctor and belonged to Federally Administered Tribal Area---Petitioner was aggrieved of notification issued by Federal Government notifying names of 15 members of Pakistan Medical and Dental Council and name of petitioner was omitted---Validity---Non-extension of Pakistan Medical and Dental Council Ordinance, 1962, to Federally Administered Tribal Area in terms of Art. 247(3) of the Constitution did not pose any legal hindrance or obstacle for Federal Government to notify petitioner and a similarly placed person as a duly elected member of Pakistan Medical and Dental Council, in terms of S. 31 of Pakistan Medical and Dental Council Ordinance, 1962---Member of Federally Administered Tribal Area, under Pakistan Medical and Dental Council Ordinance, 1962, was not required to perform duties in Federally Administered Tribal Area, as all members of Pakistan Medical and Dental Council were required to perform their duties in entire country other than Federally Administered Tribal Area---For petitioner to be notified as a member of Pakistan Medical and Dental Council from Federally Administered Tribal Area, extension of Pakistan Medical and Dental Council Ordinance, 1962, was not necessary---High Court directed the authorities to include name of petitioner in notification in question issued under S. 3 (1) of Pakistan Medical and Dental Council Ordinance, 1962, as a duly elected member of Pakistan Medical and Dental Council from Federally Administered Tribal Area---Constitutional petition was allowed in circumstances.

Ghilaf Gul v. Commissioner of Income Tax 1997 PTD 849; Muhammad Ihsan v. Government of Pakistan 1999 MLD 1154; Hazrat Muhammad v. The State PLD 1988 Pesh. 11; Abdul Baqui v. Mitha Khan 1990 MLD 1980; Gul Zamin v. Sarfraz Khan 1984 SCMR 374; Najibullah Khan v. Federation of Pakistna 2003 PTD 2083 and Commissioner of Income Tax v. Gul Cooking Oil and Vegetable Ghee (Pvt.) Ltd. 2008 PTD 169 rel.

Muhammad Ali Bhatti for Petitioner, Malik Zahoor Awan, Standing Counsel, Attaullah Hakim Kundi for Respondent No. 2.

Mohd. Azam Ghakhar, Section Officer, Ministry of NHSR&C.

P L D 2016 Islamabad 53

Before Athar Minallah and Shaukat Aziz Siddiqui, JJ

FEDERATION OF PAKISTAN---Appellant

Versus

ASAD JAVED and others---Respondents

I.C.A. No.249 of 2015, decided on 1st February, 2016.

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

----Ss. 2(c), 9 (4) & 12---Agreement between Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Islamic Republic of Pakistan on the Transfer of Prisoners [enforced on 19-8-2007]---Invoking jurisdiction of Court---Locus standi---Respondent/offender was convicted by Court at United Kingdom and sentenced to imprisonment for twenty five years for drug trafficking---Respondent/offender was transferred to Pakistan under "the Agreement between Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Islamic Republic of Pakistan on the Transfer of Prisoners"---On petition filed by respondent/ offender, High Court in exercise of its Constitutional jurisdiction extended him benefit of remissions available to him for whole sentence period i.e. the period served in foreign country as well as in Pakistan---Validity---Respondent/offender could not invoke S.9(4) of Transfer of Offenders Ordinance, 2002, independently as that would violate legislative intent as well as the Agreement executed between the two sovereign countries---Question of incompatibility had to be determined prior to the transfer and with the agreement of specified or transferring country---In case respondent/offender had any grievance regarding incompatibility of sentence imposed in the specified country with the laws of Pakistan after his transfer, then it would be open for him or her to approach Competent Authority, which Legislature had appointed as the Authority in Receiving State to deal with the matters relating to and in connection with Transfer of Offenders Ordinance, 2002---Respondent/offender had no locus standi for the purposes of invoking S.9(4) of Transfer of Offenders Ordinance, 2002, through Constitutional petition, nor could he be treated as an aggrieved person without having approached Competent Authority, or having adopted the mandatory procedure as prescribed and laid down in Transfer of Offenders Ordinance, 2002, read with the Agreement---By consent to his transfer, the respondent/offender had unequivocally committed himself to accept and abide with the terms and conditions of the Agreement---Respondent/offender who claimed remission had to approach relevant competent authority in such regard; it was within the exclusive jurisdiction of the authority to determine whether a person claiming remission was entitled to the same---Division Bench of High Court set aside the judgment passed by Single Judge of High Court, as constitutional petition filed by respondent/offender was not maintainable under S.199 of the Constitution---In order to claim any entitlement under S.12 of Transfer of Offenders Ordinance, 2002, or any grievance relating to S.9(4) of Transfer of Offenders Ordinance, 2002, respondent/offender was at liberty to approach Competent Authority as defined in S.2(c) of Transfer of Offenders Ordinance, 2002---Intra court appeal was allowed in circumstances.

Mrs. Fozia Sultana v. Province of Sindh through Secretary, Home Department and 2 others PLD 2013 Sindh 203; Imran Ali v. Province of Sindh through Secretary, Home Department, Sindh Secretariat, Karachi and 3 others 2007 PCr.LJ 1364; Muhammad Iqbal v. Province of Sindh through Secretary, Home Department and 2 others PLD 2011 Kar. 32; Akif Shoaib v. Province of Sindh through Secretary, Home Department, Karachi and 2 others PLD 2011 Kar. 633; Muhammad Ilyas and another v. Muhammad Sufian and another PLD 2001 SC 465; Ghulam Murtaza and another v. The State PLD 2009 Lah. 362; Zafar and another v. The State 1999 SCMR 2028 and Thomas D. Powell v. United States Bureau of Prisons 927 F 2d 1239 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Writ of mandamus---Pre-conditions---Essential for a person who invokes jurisdiction under Art.199 of the Constitution seeking a writ in the nature of mandamus to explicitly show that there exists a legal right in such a person to insist upon a clear duty being performed by some public officer in respect of that right---Demand for performance of such duty ought to have been made and the same had been met with refusal by public officer or authority in relation to the right being asserted---Any person seeking a writ of mandamus is further required to satisfy the Court that no other equally expeditious, inexpensive and efficacious remedy is available to him or her.

District Magistrate, Lahore and another v. Syed Raza Kazim PLD 1961 SC 178 rel.

(c) Administration of justice---

----Doing of a thing---Principle---When law prescribes for a thing to be done in a particular manner, then it has to be done in that manner alone.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.

Raja Muhammad Khalid, D.A.G. for Appellant.

Sher Afzal Khan for Respondents.

Date of hearing: 17th December, 2015.

P L D 2016 Islamabad 67

Before Aamer Farooq, J

UCH POWER PRIVATE LIMITED---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.2384 of 2015, decided on 18th January, 2016.

Gas Infrastructure Development Cess Act (IV of 2015)---

----Ss. 3 & 4---Vires of Gas Infrastructure Development Cess Act, 2015---Petitioners assailed Gas Infrastructure Development Cess Act, 2015, to be repugnant to the provisions of Constitution---Plea raised by petitioners was that the gas was supplied to them from a particular field therefore, no benefit could accrue to them from payment of fee and development of pipelines---Validity---Levy of cess was in the nature of fee extending special benefit to a class of people---Class that would benefit due to cess was that required natural gas for its business or commercial purpose---Petitioners were producers of electricity and for such process utilized natural gas---Plea of the petitioners was not tenable as they were users of natural gas and projects for which fee was being charged would eventually benefit them too---Benefit accruing might not be calculable with mathematical precision or exactitude against the Constitution mode---Petitioners were commercial/industrial users of natural gas and they would derive benefit from the fee/cess paid by them---Constitutional petition was dismissed in circumstances.

PLD 2014 Isl. 83; 2015 SCMR 1385; East Pakistan Chrome Tannery Pvt. Ltd. v. Federation of Pakistan and others 2011 PTD 2643; 1993 SCMR 1705; PLD 1975 SC 50; 1973 SCMR 2; PLD 1981 Lah. 640; Pak. Com Ltd. and others v. Federation of Pakistan PLD 2011 SC 44 and The Hinger Rampur Coal Co. Ltd. and others v. The State of Orissa and others AIR 1961 SC 459 ref.

Federation of Pakistan v. Durrani Ceramics 2014 SCMR 1630 and PLD 2015 SC 354 rel.

Barrister Umair Majeed Malik and Saad Muhammad Hashmi for Petitioner.

Khawaja Saeed-ul-Zafar and Sardar Ahmed Jamal Sukhera for Respondents.

Syed Hussnain Ibrahim Kazmi, Dy. Attorney General for the Federation.

Malik Muhammad Nazir, Director Law, Ministry of Petroleum for the Federation.

Date of hearing: 21st October, 2015.

P L D 2016 Islamabad 76

Before Athar Minallah, J

PAKISTAN OIL FIELDS LTD. through Authorised Attorney and General Manager---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Revenue and 2 others---Respondents

Writ Petition No.3414 of 2011, decided on 24th February, 2016.

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

----S. 130---Appellate Tribunal---Proceedings---Scope---Appellate Tribunal is the first independent forum outside the department to decide rights and liabilities of taxpayer as well as safeguarding the interests of exchequer---Proceedings before Appellate Tribunal are judicial proceedings---Appellate Tribunal has the power to stay recovery of tax under relevant statute or increase burden of liability.

(b) Constitution of Pakistan---

----Arts. 189 & 188---Judgment of Supreme Court---Binding nature---Review, pendency of---Even if a review is pending against judgment of the Supreme Court the same is binding unless it has been reviewed and a different conclusion is reached by Supreme Court---Judgment of Supreme Court has due effect and deference if it decides a question of law or is passed on the basis of law and/or enunciates a principle of law.

Khan Gul Khan and others v. Daraz Khan 2010 SCMR 539; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; Sindh High Court Bar Association through its Secretary and others v. FOP through M/O Law and Justice, Islamabad and others PLD 2009 SC 879; Commissioner Income Tax v. Habib Bank Ltd. ANZ and Grindlays Bank 2015 PTD 619, Pakistan Telecommunication Employees Trust (PTET) through M.D. Islamabad and others v. Mohammad Arif and others 2015 SCMR 1472 and Nazir Ahmed and others v. The State and others PLD 2014 SC 241 rel.

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

----Ss. 2(2), 3(c) & 130---Sales Tax Act (VII of 1990), S.46---Federal Excise Act (VII of 2005), S.2(3)---De fecto doctrine, applicability---Appointment of Chairman Appellate Tribunal---Consultation with Chief Justice---Scope---Petitioners assailed appointment of Chairman and members of Appellate Tribunal on the ground that Chief Justice of Pakistan was not consulted on such appointment---Validity---Meaningful consultation with Chief Justice of Pakistan before making such appointment was to safeguard independence of judiciary; it could be through such meaningful consultation that it was determined whether a person falling in S.3(c) of income Tax Ordinance, 2001 was to be appointed as Judicial Member---Three categories of persons were prescribed who could be appointed as judicial members and with regard to nature of such appointment, preference could be given to such category as would be in the best interest of independence of Appellate Tribunal as a forum exercising judicial functions---Such object could be achieved through meaningful consultations with Chief Justice of Pakistan---High Court declared appointments of Chairman and Members of Appellate Tribunal made without consultation of Chief Justice of Pakistan, as illegal, void and without lawful authority---Chairman and Members so appointed were directed to be treated as de facto holders of their respective offices---Acts done and orders or judgments passed, including any and all proceedings shall remain protected under de facto doctrine---Constitutional petition was allowed accordingly.

Sh. Riaz-ul-Haq and others v. Federation of Pakistan and others PLD 2013 SC 501 rel.

Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Imran v. Presiding Officer Punjab Special Court No.VI, Multan PLD 1996 Lah. 542; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Ziaullah v. Najeebullah PLD 2003 SC 656; Raj Mohd Khan v. Mohd Farooq Khan 1998 SCMR 669; Ranyal Textiles v. Sindh Labour Court PLD 2010 Kar. 27; Imran v. Presiding Officer, Punjab Special Court, Multan PLD 1996 Lah. 542; Shahid Orakzai v. Pakistan PLD 2011 SC 365; Ch. Nisar Ali Khan v. Federation of Pakistan PLD 2013 SC 568; Magor and St. MelIons Rural District Council v. Newport Corporation (1951) 2 All ER 839; State v. Zia ur Rehmani PLD 1973 SC 49; Executive District Officer (Revenue), District Khushab At Jauharabad v. Ijaz Hussain 2012 PLC (C.S.) 917; Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff PLD 2013 SC 1; Shahid Nabi Malik v. Chief Election Commissioner PLD 1997 SC 32; Shell Co. of Australia Limited v. Federal Commissioner of Taxation ((1930) All ER 367; Imran Raza Zaidi v. Government of Punjab 1996 SCMR 645; Tariq Transport Company v. The Sargodha Bhera Bus Service PLD 1958 SC 437 and Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 ref.

Makhdoom Ali Khan, Shahid Hamid, Senior Advocate Supreme Court, Muhammad Raheel Kamran Sheikh, Sardar Ahmed Jamal Sukhera, Ali Sabtain Fazli, Ayyaz Shaukat, Advocates Supreme Court and Malik Sardar Khan Awan, AHC and Saad M. Hashmi, AHC for Petitioners.

Afnan Karim Kundi, Additional Attorney General, Malik Zahoor Awan, Standing Counsel, Saeed Ahmed Zaidi,, Sh. Anwar-ul-Haq and Mst. Dr. Farhat Zafar, Advocates Supreme Court for Respondents.

Date of hearing 25th November, 2015

P L D 2016 Islamabad 91

Before Miangul Hassan Aurangzeb, J

MUHAMMAD ZULFIQAR and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE (WEST), ISLAMABAD and others---Respondents

Writ Petition No.783 of 2016, decided on 7th March, 2016.

Partition Act (IV of 1893)---

----Ss. 2, 3, 6 (2) & 7----Civil Procedure Code (V of 1908), O. XXI, Rr.66 & 72---Power of court to order sale instead of division in partition suits---Co-sharers undertake to buy---Procedure---Reserved bidding and bidding by shareholders---Procedure to be followed in cases of sale---Execution of decree---Special law to prevail over general law---Maxim:---Generalia specialibus non derogant (general things do not derogate from special things)---Applicability---Defendants challenged the order passed by the Trial Court whereby the court, dismissing the defendants' objections to the report of the Local Commission regarding market value/reserve price of the suit property and appointed the auctioneer for auction of the properties---Defendants sought permission to participate in the open auction of the suit properties by submitting their bids---Permissibility---Reading of Ss.2 & 6(2) of Partition Act, 1893 showed that no prohibition against the co-sharers existed from bidding for the properties to be auctioned/sold---In case of sale of property under Partition Act, 1893, primarily the procedure prescribed by C.P.C. had to be followed---Auction/sale in partition suit was to be conducted according to provisions of O.XXI, R.66, C.P.C.---Order XXI, R.72. C.P.C. would also be applicable to the sale of property through auction in pursuance of preliminary decree passed in suit for partition of joint property under provisions of Partition Act, 1893---Section 7 of Partition Act, 1893 required that in case of sale of property under the Act, the procedure prescribed in the C.P.C. was to be followed as far as practicable---Suit for partition had distinct features, in which every co-sharer, whether included as plaintiffs or defendants, stood in the position of a plaintiff--- Preliminary decree for partition of the property having been passed under the provisions of Partition Act, 1893, all the co-owners of the property, both plaintiffs and defendants, attained the status of decree holders---Under O.XXI, R.72, C.P.C., holder of a decree in execution of which property is sold, would not bid for the purchase of property without permission of the court---Order XXI, R.72, C.P.C. having been couched in negative terms, in ordinary circumstances, permission of the court for bidding for the property to be auctioned was essential for the decree holder; however, the position was different, when a party to suit for partition, who jointly owned the property with other parties, wanted to bid such property in auction pursuant to preliminary decree passed under Partition Act. 1893, as S. 6(2) of Partition Act, 1893 permitted a co-sharer/shareholder of the property to bid for the property on such terms as mentioned therein and S.7 of the Act started with the words 'save as hereinafter provided'---Partition Act, 1893, being special law, a share holder did not need to apply to the executing court for permission to bid for property under O.XXI, R. 72, C.P.C.: therefore, no permission was required by the plaintiff/co-sharers of the suit properties from the executing court or High Court to bid for the properties---Section 6(2) of Partition Act, 1893, being part of special law, would prevail over O.XXI, R.72, C.P.C., which is part of general law---Maxim:---'Generalia specialibus non derogant' (general things do not derogate from special things) could be pressed into service in the present case---Any of the co- sharers of the suit properties were at liberty to bid for the same in terms of S. 6 (2) of Partition Act, 1893, however, the legal heirs would not have preferential treatment vis-a-vis other bidders---Constitutional petition was dismissed in circumstances.

Israr Muhammad Khan v. Senior Cjvil Judge, Lahore 1990 SCMR 693; Shahid Ali v. Aziz Fatima PLD 2010 SC 38; Mst. Khatoon v. Siddiq Muhammad, 1981 CLC 409; Ilahi Noor and others v. Muhammad Din PLD 1977 SC 634; Khusheed Begum v. Inam-ur-Rehman PLD 2009 Lah. 552; Federal Bank for Cooperatives v. Ehsan Muhammad 2004 SCMR 130; Atta Ullah v. Sami Ullah 2007 SCMR 289 and Iqbal Hussain v. Government of Azad J&K PLD 1974 Azad J&K 67 rel.

Raja Shahid Masood for Petitioners.

P L D 2016 Islamabad 98

Before Miangul Hassan Aurangzeb, J

Ch. AHMED NADEEM---Petitioner

Versus

ABDUL QAYYUM and another---Respondents

Civil Revision No.92 of 2016, decided on 4th April, 2016.

(a) Easements Act (V of 1882)---

----S. 60---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Licensee was occupying a Kiosk in the building for commercial use under a licence---Commercial Licence---Agreement, termination of---Temporary injunction, grant of---Scope---Works of permanent nature in the property would require prior sanction of the licensor which was missing in the present case---Agreement between the parties did not permit the plaintiff to carry out works of a permanent nature--- Inventory purchased for business could not be termed as expenditure on works of permanent nature and such investment did not afford protection to a licensee from termination of a licence---Plaintiff had agreed in the said agreement that it would not be construed or interpreted in a manner as to amount to an easement---Plaintiff was estopped from submitting that he had carried out permanent works as he had not even pleaded so in his suit---Alleged agreement was not irrevocable---Plaintiff had not made out a case for the grant of an interim injunction---Revision was dismissed in circumstances.

Digital World Pakistan (Pvt.) Limited v. Samsung Gulf Electronics PZE PLD 2010 Kar.274; Muhammad Jawaid v. The Province of Sindh 2008 CLC 348; Green Fuels v. Shell Pakistan Limited 2005 CLC 1602; Diamond Food Industries Ltd v. Joseph Wolf GmbH 2004 CLD 343; Baba Handicraft v. Civil Aviation Authority 1997 CLC 1005; Noor Muhammad v. Civil Aviation Authority 1987 CLC 393 and M.F. De Souza v. Children's Education Uplift Society AIR 1959 Bombay 533 distinguished.

M.A. Naser v. Chairman, Pakistan Eastern Railways and others PLD 1965 SC 83, Daewoo Pakistan Motorway Service Limited v. Sunshine Service 2009 CLC 406; Aftab Hussain through Attorney v. Government of Sindh through Chief Secretary and 2 others 2015 MLD 1688; Malik Muhammad Jawaid v. Province of Sindh and others 2008 CLC 348; Kassamali v. Mst. Shakra Begum PLD 1968 Kar. 307, Messrs Universal Business Equipment Pvt. Ltd v. Kokusai Commerce Inc. and 2 others 1995 MLD 384; Messrs Sign Source v. Messrs Road Trip Advertisers and another 2005 CLC 1982; Ram Sarup Gupta v. Bishun Narain Inter Collegiate, AIR 1987 SC 1242; Ali Asghar Shah v. Pakistan International Airline Corporation 2016 CLC 189 and Bank Al-Falah Limited v. Neu Multiplex and Entertainment Square Co. Pvt. Ltd. 2015 YLR 124 rel.

(b) Easements Act (V of 1882)---

----S. 60---Licence when not revocable---Conditions enumerated---Licence could be revoked by the grantor unless licensee in terms of the licence had set up a construction of permanent nature and had incurred expenditure for such construction.

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

----S. 115---Revision---Scope---Point which had not been raised before the original court should not be permitted to be raised for the first time in the revisional jurisdiction.

Chevalier I.I. Iyyappan v. The Dharmodayam Company, Trichur AIR 1966 SC 1017; Mahadeo Tatu Naik v. Ramakant Ataram AIR 1985 Bombay 347; Raghubir Saran v. Param Kirti Saran AIR 1962 All. 444 and Radhakrishna Hazra v. Joykrishna Hazra AIR 1967 Cal. 204 rel.

(d) Pleadings---

----No party to be permitted to travel beyond its pleadings.

(e) Pleadings---

----Parties were bound by their pleadings---Facts having not been pleaded could not be allowed to be taken or agitated at a subsequent stage.

(f) Maxim---

----"Secundum allegata et probata"---Meaning.

Khurram M. Hashmi for Petitioner.

Atiq-ur-Rehman Siddiqui for Respondents.

Date of hearing: 10th March, 2016.

P L D 2016 Islamabad 112

Before Mohsin Akhtar Kayani, J

ASHFAQ AHMED KHAN---Appellant

Versus

PTCL and others---Respondents

Consumer Appeals Nos. 5, 6 and Criminal Appeals Nos. 11, 15 and 40 of 2016, 113, 185 of 2015, decided on 22nd March, 2016.

(a) Constitution of Pakistan---

----Art. 10-A---Fair trial, right to---Due process, doctrine of---Scope---`Due process of law' imposed duty upon the courts, Authority, judicial or quasi- judicial forum, executives to give fair opportunity to everyone to defend himself, afford a fair opportunity for submission of cases by means of pleadings and allow them to appear in person, record their statement, cross- examine the witnesses against them and produce the record in terms of law---Courts, administrative Tribunal, executive officers were under duty to follow the procedure available in the relevant laws, statute in a manner as provided and if the procedure was silent even then the minimum standard was to be followed on the touchstone of Art. 10-A of the Constitution, failing which the entire edifice constructed would crumble down---Where all said ingredients were missing in impugned orders, as the same had been passed without taking into consideration the very spirit of the law and procedure and general terms 'examination, inquiry, opinion, consideration, opportunity of being heard and deem appropriate' were not considered in their true perspective, High Court, setting aside the impugned orders, remanded the case to the Authority for decision afresh after adhering to the procedure in accordance with the law---Appeal was allowed accordingly.

(b) Islamabad Consumer Protection Act (III of 1995)----

----Ss. 8 & 9----Procedure for disposal of complaint---Scope---Islamabad consumer Protection Act, 1995 provides two ways to protect the consumer: firstly, by way of punishment to be awarded to a person playing unfair trade practice with the consumer while adopting Criminal Procedure Code, 1898 and secondly, by granting compensation to the consumer---Islamabad Consumer Protection Act, 1995 differentiates the procedural aspect of punishment and compensation---Under Islamabad Consumer Protection Act, 1995, the Authority has to follow the procedure of S. 8 of the Act for punishment and compensation purposes.

(c) Islamabad Consumer Protection Act (III of 1995)---

----Ss. 8, 8-A, 9----Procedure for disposal of complaint---Terms "Examination"/"opinion"/"consideration" or "considering"/ "opportunity of being heard" "inquiry" and "deem appropriate"---Connotation and scope.

Black's Law Dictionary; PLD 1995 Kar. 436; PLD 1988 Lah. 725; PLD 1960 Kar. 1=PLR 1960 (1) 422l PLD 1964 Kar. 478; PLD 1979 Lah. 91; Words and phrases Vol. I, Second Edn.; Hanksv. Minister of Housing and Local Government (1963) I All ER 47; Chamber 21st Century Dictionary, p.292; Black's Law Dictionary, 5th Edn., 1979, p.448; Maine Potato Growers and Shippers Association v. interstate Commerce Commission, 66 App. D.C.398, 88 F. 2d. 780, 783; 2003 MLD 98; PLD 1983 SC(AJ&K) 223; PLD 1973 Lah. 659; 2015 SCMR 1550; PLD 1970 Lah. 412; PLD 1972 AJ&K 7; PLD 1975 Lah. 1385; PLD 20906 Kar. 314; 2016 PCr.LJ 336; 2007 YLR 3203; PLD 1994 SC 52; 1993 SCMR 745; PLD 1997 Lah. 499; PLD 1973 Lah. 164 and PLD 1988 Lah. 49 rel

(d) Islamabad Consumer Protection Act (III of 1995)----

----Preamble---Word 'Promotion', 'protection' and 'interest'---Meaning.

(e) Islamabad Consumer Protection Act (III of 1995)----

----Preamble----Scope---Legislature, while using the words "promotion" "protection" and "interest" in the preamble of Islamabad Consumer Protection Act, 1995, has made that clear that the main person whose interests/rights and feeling are to be protected is a 'consumer'.

(f) Islamabad Consumer Protection Act (III of 1995)---

----Ss. 8-A. 9(1) & 9(2)----Criminal Procedure Code (V of 1898), Ss.262, 263. 264 & 14-A---Procedure for disposal of complaint---Determination---Authority, coming to know that prima facie some offence had been committed in terms of S. 8-A of Islamabad Consumer Protection Act, 1995. was to follow the procedure available in Ss.262, 263 & 264, Cr.P.C for purpose of summary trial, which could be tried by Special Magistrate appointed under S. 14-A, Cr.P.C---Penalties under Ss.9(1) & 9(2) of Islamabad Consumer Protection Act, 1995, could be given after summary trial---Special Magistrate, however, could award the punishment to the extent of six month; therefore, if the quantum of punishment to be awarded was more than six months, the Authority/Court of Session could pass the same after adopting the procedure under Cr.P.C.

(g) Islamabad Consumer Protection Act (III of 1995)----

----Ss. 8 & 9(3)----Procedure for disposal of complaint---Scope---Penalties---Authority, while adjudicating upon the complaint under Islamabad Consumer Protection Act, 1995, especially awarding compensation in terms of S.9(3) of the Act, 1995, would conduct enquiry which includes, framing the points of determination/issues, requiring oral evidence or evidence through affidavits, allowing the parties to cross-examine the witnesses and produce documentary evidence, calling for record from any authority, company, office, summoning any expert witness to resolve the technical question of issue related to proposition in hand and principles of, Qanun-e-Shahadat Order, 1984 had to be applied in essence.

(h) Islamabad Consumer Protection Act (III of 1995)---

----S. 2(c)---'Consumer'---Petition and scope---Term 'consumer' was compared with as appeared in different legislations of the world.

(i) Islamabad Consumer Protection Act (III of 1995)----

----Ss. 8, 8-A & 9---Procedure for disposal of complaint---'Penalty'/'fine'---Meaning and scope---Under Islamabad Consumer Protection Act, 1995, the Authority has to observe the difference of 'penalty', 'fine' and 'compensation', as concept of fine is available only in criminal prosecution in terms of S.9(1)&(2) of Islamabad Consumer Protection Act. 1995. after holding summary trial by the Special Magistrate or Authority if the Authority comes to the conclusion after holding the enquiry in terms of Ss. 8 and 8-A of Islamabad Consumer Protection Act, 1995, fine was to be imposed as punishment then the same must be differentiated form compensation.

Pakistan Telecommunication Authority v. Pakistan Telecommunication Company Limited 2016 SCMR 69 rel.

(j) Islamabad Consumer Protection Act (III of 1995)---

----S. 9(3)----Penalties---Scope-Damages under general law-Permissibility---Compensation under Islamabad Consumer Protection Act, 1995, is only to be given in case of unfair trade practice, if the same is proved after holding enquiry by the Authority---Section 9(3) of Islamabad Consumer Protection Act, 1995, however, imposes restriction to award compensation by the Authority only to the extent the consumer has suffered any damage or loss through the act of the unfair trade practice; hence, general damages cannot be awarded rather actually suffered loss or damage is to be considered as measuring factor to award the same only to the consumer---Consumer's right to claim special or any other kind of damages under general law is, therefore, protected, notwithstanding award of the claim by the Authority under Islamabad Consumer Protection Act, 1995, therefore, consumer can file separate claim/suit in the court of general jurisdiction for his relief.

(k) Islamabad Consumer Protection Act (III of 1995)----

----Ss. 9(3) & 9(4)----Penalties---Compensation. award of---Requirements--- For purposes of compensation, speaking order in terms of Ss 9(3) and 9(4) of Islamabad Consumer Protection Act, 1995 has to be passed, keeping in view the entire pleadings, evidence, documents and technical expert evidence if any.

(l) Islamabad Consumer Protection Act (III of 1995)----

----Ss. 8 & 9----Procedure for disposal of complaint---Procedural steps for the Authority/Court to observe during consumer complaint---Analogy drawn from other special statutes.

Nawab Khan and another v. Government of Pakistan through Secretary Ministry of Defence Rawalpindi and others PLD 1994 SC 222; Rauf Baksh Kadri and others v. Messrs National Technology Development Corporation Ltd. and others 2005 CLD 747 and 2016 SCMR 213 rel.

(m) Constitution of Pakistan---

----Art. 10-A----Right to fair trial---`Due process', scope of---Article 10-A of the Constitution has to be applied and given effect in every statute---Term 'due process' can be summarized to include that a person would have notice of proceedings which affect his rights, he would be given reasonable opportunity to defend, the Tribunal or court before which his rights are adjudicated is so constituted as to give reasonable assurance of its honesty and impartiality, and that was a court of competent jurisdiction.

New Jubilee Insurance Company Limited v. National Bank of Pakistan PLD 1999 SC 1126 and Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863 rel.

(n) Interpretation of statutes----

----Word not defined in statute---Interpretation, rules of---When the special law is silent qua definition of different terms, it is imperative upon the court to adopt the meaning of ordinary sense or to use dictionary meanings, even they are bound to follow the meaning generally defined in different authoritative decisions of High Courts and Supreme Court.

Appellant in person (in Consumer Appeal No.5 of 2016).

Barrister Faisal Khan for Respondent (in Consumer Appeal No.5 of 2016).

Appellant in person (in Consumer Appeal No.6 of 2016).

Barrister Faisal Khan for Respondent (in Consumer Appeal No.6 of 2016).

Barrister Faisal Khan for Appellants (in Criminal Appeal No.11 of 2016).

Respondent in person (in Criminal Appeal No.11 of 2016).

Ch. Muhammad Haseeb, Standing Counsel (in Criminal Appeal No.11 of 2016)..

Ms. Shazia Bilal, State Counsel (in Criminal Appeal No.11 of 2016).

Barrister Faisal Khan for Appellants (in Criminal Appeal No.15 of 2016).

Respondent in person (in Criminal Appeal No.15 of 2016).

Ch. Muhammad Haseeb, Standing Counsel (in Criminal Appeal No.15 of 2016).

Ms. Shazia Bilal, State Counsel (in Criminal Appeal No.15 of 2016).

Ch. Abdul Ghafoor for Appellant (in Criminal Appeal No.40 of 2016).

Malik Abdul Munir for Respondent No.2 (in Criminal Appeal No.40 of 2016).

Ch Muhammad Haseeb, Standing Counsel for Respondent No.2 (in Criminal Appeal No.40 of 2016).

Ms. Shazia Bilal, State Counsel for Respondent No.2 (in Criminal Appeal No.40 of 2016).

Appellant in person (in Consumer Appeal No.113 of 2015).

Muhammad Junaid Akhtar for Respondent No.1 (in Consumer Appeal No.113 of 2015).

Barrister Munawar Iqbal Duggal for Respondent No.2 (in Consumer Appeal No.113 of 2015).

Ch. Muhammad Haseeb, Standing Counsel for Respondent No.2 (in Consumer Appeal No.113 of 2015).

Ms. Shazia Bilal, State Counsel for Respondent No.2 (in Consumer Appeal No.113 of 2015).

Appellant in person (in Consumer Appeal No.185 of 2015).

Respondent No.1 in person (in Consumer Appeal No.185 of 2015).

Dates of hearing: 4th March, 2016 and 18th March, 2016.

P L D 2016 Islamabad 141

Before Aamer Farooq, J

EDUCATIONAL SERVICES (PVT) LIMITED and 4 others---Petitioners

Versus

FEDERATION OF PAKISTAN and another---Respondents

Writ Petitions Nos.3178 and 3272 of 2015, decided on 30th May, 2016.

(a) Islamabad Capital Territory, Private Educational Institutions (Registration and Regulation) Act (XI of 2013)--

----Ss. 4(c) & 5(1)(b)(h)--- Private Educational Institutions Regulatory Authority---Scope---Aim of Regulatory Authority is to fix and regulate rate of fee being charged by private educational institutions and ensure that quality of services being provided commensurate with fee that has been charged.

(b) Islamabad Capital Territory, Private Educational Institutions (Registration and Regulation) Act (XI of 2013)--

----S. 5(1)(b)---Tuition fee, fixation of--- Determining factors--- Tuition fee of all private educational institutions cannot be fixed by a single notification without taking into consideration expenses, standards and other factors of such institution.

(c) Islamabad Capital Territory, Private Educational Institutions (Registration and Regulation) Act (XI of 2013)--

----Ss. 4(c), 5(1)(b)(h) & Preamble--- Private Educational Institutions Regulatory Authority---Object and scope--- Objective of law is that each school is to be registered, its fee is to be determined and then regulated to ensure that it commensurate with requirements and services being provided.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---High Court has jurisdiction under Art. 199 of the Constitution; to examine validity of any act of Parliament and/or delegated legislation including notifications; in case any law/act of Parliament violates any provision of the Constitution including fundamental rights, the same can be struck down; and law can also be struck down if it provides unfettered powers/discretion to be exercised in a discriminatory manner.

Arshad Mehmood v. Government of Punjab through Secretary PLD 2005 SC 193; Sh. Liaquat Hussain and others v. Federation of Pakistan through M/o Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Contempt Proceedings against Chief Secretary, Sindh and others 2013 SCMR 1752; Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmed Khan and another 2013 SCMR 6; Dr.Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Province of the Punjab through Secretary, Local Government and Rural Development Department, Civil Secretariat, Lahore and another v. Mian Manzoor Ahmed Wattoo 1998 CLC 1585; Shaukat Ali Mian and another v. The Federation of Pakistan 1999 CLC 607 and Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697 rel.

(e) Islamabad Capital Territory, Private Educational Institutions (Registration and Regulation) Act (XI of 2013)--

----Ss. 4(c) & 5(1)(b)(h)---Tuition fee, fixation of---Purpose---Sole purpose of fixing fee and regulation of same under Islamabad Capital Territory, Private Educational Institutions (Registration and Regulation) Act, 2013 is to prevent public from extortion or unreasonable profiteering on part of private educational institutions--- Purpose was not to deprive private educational institutions from gains out of their businesses.

P.A. Inamdar and others v.State of Maharashtra and others AIR 2005 SC 3226 and T.M.A. PAI Foundation v. State of Karnataka (2002) 8 SSC 481 rel.

(f) Islamabad Capital Territory, Private Educational Institutions (Registration and Regulation) Act (XI of 2013)--

----Ss. 4(c) & 5(1)(b)(h)--- Constitution of Pakistan, Art.18---Islamabad Capital Territory, Private Educational Institutions (Registration and Regulation) Act, 2013---Vires---Right to free trade and business--- Petitioners were owners of private educational institutions and they were aggrieved of notification issued by the Authority directing not to increase any fee/charges/funds and also directed to refund/adjust any increase in fee/charges/funds---Plea raised by petitioners was that provisions of Ss.4(c) & 5(1)(b)(h) of Islamabad Capital Territory, Private Educational Institutions (Registration and Regulation) Act, 2013 were ultra vires the Constitution---Validity---PEIRA had authority to fix fee but same could not be done in arbitrary manner without calling for record of expenses and examination of requirements of individual private institutions---Factors which the Authority had to take into consideration in fixation of fee were to be formulated in rules which it had power to frame under Islamabad Capital Territory, Private Educational Institutions (Registration and Regulation) Act, 2013---Broad guidelines which the Authority had to keep in consideration before fixation of price and/or formulation of rules and regulations were; privately managed educational institutions could only maintain high standards of education if they would hire highly qualified teachers; provide adequate buildings comprising all facilities escalation in utility bills and other charges; and payment of rents on commercial rates---Private educational institutions could not make windfall profits however, were entitled to return for services rendered---Provisions of Ss.4(c) & 5(1)(b)(h) of Islamabad Capital Territory, Private Educational Institutions (Registration and Regulation) Act, 2013 were not ultra vires the provisions of Art.18 of the Constitution---High Court declared notification in question to be illegal and without lawful authority---Constitutional petition was allowed accordingly.

Case law referred.

(g) Constitution of Pakistan---

----Art. 199---Constitutional petition---Writ of mandamus---Precondition---Sine qua non for filing writ of mandamus that petitioner should have an interest in performance of duty and must have approached authorities for the same.

Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192 rel.

Shahid Hamid Advocate Supreme Court, Mrs. Ayesha Hamid, Mrs. Asma Jahangir, Advocate Supreme Court, Syed Naeem Bukhari, Advocate Supreme Court, Syed Hamid Ali Shah, Advocate Supreme Court, Ch. Mazhar Ali, Advocate Supreme Court, Syed Ahmed Hassan Shah, Ammar Seri, Waseem Abid, Tariq Saleem Shikh, Mian Muhammad Zafar Iqbal, Syed Ishfaq Hussain Naqvi, Khurram M. Hashmi, Muhammad Shoaib Razzaq, Malik Imran Safdar, Jawad Hassan, Barrister Umar Azad Malik for Petitioners.

Waheed Iqbal, Barrister Qasim Wadood, Ms. Saadia Noreen, Iftikahr Ahmed Bashir and Jahangir Jadoon for Applicants.

Aftab Alam Rana, Syed Hasnain Ibrahim Kazmi, Deputy Attorney-General, Imtiaz Ali Qureshi, Member PEIRA and Javed Iabal, Secretary PEIRA for Respondents.

Date of hearing: 30th May, 2016.

P L D 2016 Sindh 1

Before Munib Akhtar and Muhammad Iqbal Kalhoro, JJ

QAIM---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. D-1454, D-1449, D-1847, D-1946 of 2014 and Criminal Miscellaneous Application No.D-402 of 2014, decided on 27th May, 2015.

(a) Words and phrases---

----"Obeisance"---Connotation---"Obeisance" means respectfulness of manner or bearing; deference; homage; submission.

Shorter Oxford English Dictionary, 6th Ed., 2007, Vol. II, p.1968 rel.

(b) Constitution of Pakistan---

----Art. 185(3)---Leave granting/refusing order---Scope---Such order is very highly persuasive and such observations must ordinarily be followed---High Court should not in normal course regard itself as free to take some other view, unless some exceptional circumstances exist for adopting different view.

Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; University of Health Sciences and others v. Mumtaz Ahmed and another 2010 SCMR 767; Province of Punjab and others v. Muhammad Saleem and others PLD 2014 SC 783; Ch. Fayyaz Ahmed v. Mst. Hidayat Begum and 21 others 1997 SCMR 1393 and Fateh Ali Khan v. Subedar Muhammad Khan 1970 SCMR 238 ref.

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

----S. 59---Pakistan Air Force Act (VI of 1953), S.164---Criminal Procedure Code (V of 1898), S.382-B---Constitution of Pakistan, Arts.189 & 199---Constitutional petition---Pre-conviction custody---Benefit---Petitioners were convicted under Pakistan Army Act, 1952 and Pakistan Air Force Act, 1953, who sought benefit of their pre-conviction custody---Validity---High Court directed Jail authorities to prepare a fresh jail roll for each petitioner in which pre-conviction period of custody would be taken into consideration---High Court further directed that once petitioners served out period of detention as so computed petitioners would be set at liberty---Petition was allowed in circumstances.

Nizamuddin v. The State PLD 2014 Sindh 248; Manthar alias Manoo v. Federation of Pakistan Cr. Misc. Application No.D-104 of 2014 and Shah Hussain v. The State PLD 2009 SC 460 fol.

Abdul Ghani v. Federation of Pakistan (C.P. D-1345/2012); Nabi Dad v. Registrar Court of Appeals Judge Advocate General's Department PLD 2009 Quetta 27; Sajid lqbal v. Superintendent of Jail, Adiyala Rawalpindi and others 2011 YLR 283; Abdul Karim and others v. Federation of Pakistan and others 2011 YLR 1572; Shahid Mahmood v. The State and others PLD 2011 Lah. 502; Javed lqbal v. The SHO and others 2013 PCr.LJ 1394; Azhar lqbal v. The State and others 2014 PCr.LJ 1387; Syed Hamid Ali Shah v. Summary Military Court, Karachi and others 1984 PCr.LJ 1379 and Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 ref.

Taj Muhammad Kaimkhani, Irshad Ali Khoso and Ahmed Ali Jarwar for Petitioners/Applicant in respective matters.

Muhammad Hamayon Khan, Standing Counsel.

Dates of hearing: 13th and 21st May, 2015.

P L D 2016 Sindh 11

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

INDEPENDENT MEDIA CORPORATION (PVT) LTD.---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. D-3517 to 3524, 3648 to 3658 and 4018 to 4029 of 2014, decided on 4th August, 2015.

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

----Ss. 28, 30 & 33--- Constitution of Pakistan, Art.199---Constitutional petition---Cable operator licence---Position of channel---Factual controversy---Petitioner was a television broadcasting company and sought suspension of licence of cable operator on the plea that it had changed the position of petitioner's channel---Validity---Disputed averments were made from the parties which could not be examined or resolved by High Court while exercising its constitutional jurisdiction under Art.199 of the Constitution without recording evidence---After restoration of licence of petitioner by Pakistan Electronic Media Regulatory Authority, transmission of broadcast of its TV channels was resumed by 98% of cable operators in the Province, whereas, Pakistan Electronic Media Regulatory Authority had already issued notices to such delinquent cable operators in accordance with law---High Court directed the petitioner to pursue its remedy which it had already availed by filing complaints and could also file fresh applications before Pakistan Electronic Media Regulatory Authority by specifying the names of such cable operators who were violating law and creating hindrance and obstruction in smooth transmission of channels---High Court further directed Pakistan Electronic Media Regulatory Authority to decide all such applications filed by petitioner through reasoned order expeditiously after hearing all concerned parties---Petition was disposed of accordingly.

Dr. Shahid Masood v. Federation of Pakistan 2010 SCMR 1849; Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 507; The State and others v. Director General PIA and others PLD 2010 Lah. 23; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244; Pakistan Red Crescent Society and another v. Syed Nazi Gillani PLD 2005 SC 806 and Abdul Wahab and others v. HBL and others 2013 SCMR 1383 ref.

Jam Asif Mehmood, Saim Hashmi and Behzad Haider for Petitioner.

Dr. Amjad H. Bokhari for Respondent.

Mian Abdul Ghaffar and Mian Abdul Bari for respondents Nos.3 to 5 (in C.P. No.D-3521/2014).

S. Amir Ali for Respondent (in C.P.No.D-4029/2014).

Kashif Hanif for Respondent/PEMRA along with Salman Elahi, Deputy Director, Press Information Department.

Dilawar Hussain, Standing Counsel.

Date of hearing: 27th May, 2015.

P L D 2016 Sindh 19

Before Muhammad Ali Mazhar, J

Messrs POPULAR INTERNATIONAL (PVT.) LTD. through Authorised Officer and another--Plaintiffs

Versus

PROVINCE OF SINDH through Secretary, Ministry of Health, Government of Sindh, Karachi and 4 others---Defendants

Suits Nos.2605, 2283, 2346, 2587, 2617, 2249 of 2014 and 14 of 2015, decided on 4th September, 2015.

(a) Sindh Public Procurement Act (IV of 2009)----

----S. 5---Sindh Public Procurement Rules, 2010, Rs.4, 31, 48 & 49---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Functions and powers of Procurement Regulatory Authority---Principles of procurement---Acceptance of bids---Award of contract---Redressal of grievances---Claim relating to previous financial years---Enforceability---Special and general damages, right as to---Plaintiffs questioned award of tender, work orders issued for supply of different pharmaceutical products and decision rendered by Complaint Redressal Committee relating to financial years 2014 to 2015---Defendants invited tenders for financial years 2015 to 2016 excluding those items regarding which injunctive order had been issued by High Court, and in which plaintiffs had also participated and made bids---Plea taken by defendants was that due to said interim injunctive orders, public at large was suffering, and that after lapse of financial year, issue of past tenders and its award could not be reopened or considered, as budget for previous financial year had already lapsed---Validity---Dispute, in the present case, had discernable nexus with public interest, which merited expeditious disposal to safeguard and vouch for rights of general public---Procurement laws were, however, meant to uphold and preserve transparency---High Court disposed of suits in following terms: Bids submitted by plaintiffs for financial years 2013-2016 would be considered by Evaluation/Technical Committee in transparent manner; plaintiffs would be informed in writing to enable them to ensure their representation at time of opening of their bids before concerned Committee; tender proceedings would be conducted by defendants and concerned department strictly in accordance with law quickly and without any further delay; if plaintiffs were declared qualified by Technical Committee to participate in further proceedings, their bids and tender documents would be placed for financial opening, and if plaintiff were declared successful, they would be issued work orders in accordance with Sindh Public Procurement Act, 2009 and Sindh Public Procurement Rules, 2010; in the event of any future cause of action, plaintiffs might seek appropriate remedy in accordance with law and if plaintiffs had any grievance as to any special or general damages having been caused due to non-issuance of work orders after having been declared successful bidder in previous tender proceedings, they might also avail appropriate remedy in accordance with law---Order accordingly.

(b) Words and phrases----

----'Public interest'---Meaning and Scope---'Public interest' has been considered as core of democratic theories of government and often paired with two other concept, convenience and necessity, which means welfare or well-being of general public---'Public interest' is very wide expression and embraces public security, public order and public morality---Expression 'Public Interest' in common parlance means an act beneficial to general public---Action taken in public interest necessarily means an action taken for public purpose.

Abu Dhabi Medical Devices Co. LLC v. Federation of Pakistan and another 2010 CLC 1253 rel.

(c) Words and phrases----

----'Public Importance'---Definition and scope---Expression 'public importance' is not capable of any precise definition, and same therefore, can only be defined by process of judicial inclusion or exclusion---Each case has to be judged in its circumstance as to whether question of public importance is involved---Public importance must include a purpose or aim in which general interest of community, as opposed to particular interest of individual, directly or widely is concerned.

Abu Dhabi Medical Devices Co. LLC v. Federation of Pakistan and another 2010 CLC 1253 rel.

Ravi R. Pinjani for Plaintiffs (in Suits Nos.2605, 2617, 2587 of 2014 and 14 of 2015) and for Defendant No.4 (in Suit No.2346/2014 and for Intervener in Suit Nos.2249 and 2283 of 2014).

Yawar Farooqi and Irfan Ahmed Memon for Plaintiffs (in Suits Nos.2346, 2249 and 2283 of 2014) and for Defendant No.5 (in Suits Nos.2605, 2587/2014, 14/2015) and Defendant No.4 (in Suit No. 2617 of 2014).

Muhammad Akhtar holding brief for Malik Khushhal for Defendant No.4 (in Suit No.2587 of 2014).

Qazi Majid Ali Additional A.G

Dr. Abdul Razzak, O.S.D, Health Department, Government of Sindh, Karachi.

Muhammad Omer, Attorney of the Shah Dev (Plaintiff in Suits No.2249, /2014, 2283/2014 and Defendant in Suits Nos.2617, 2587, 2605 of 2014) and 14 of 2015) is also present.

P L D 2016 Sindh 26

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

SHAHZAD and another---Petitioners

Versus

IVTH ADDITIONAL DISTRICT JUDGE, KARACHI (EAST) and 5 others---Respondents

C.P. No.D-4028 of 2015, decided on 23rd September, 2015.

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

----S. 54----Civil Procedure Code (V of 1908), O. VII, R. 11 & S. 91---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for permanent injunction---Rejection of plaint---Principles---Public nuisance---Permission of Advocate General for filing suit on ground of nuisance under S.91, C.P.C.---Scope---Section 91 of C.P.C. provided that suit for declaration or injunction in respect of public nuisance could be filed by two or more persons with permission of Advocate General---Exception, however, was there, that principle as embodied in S.91(2) of C.P.C., which provided that provision of S.91(1), C.P.C. would not limit or otherwise affect any right of suit, which might exist independently---Plaintiff had claimed that conversion of residential unit into commercial unit (car showroom) had disturbed their peace, privacy and security, and that they would face constant disturbance and agony along with their families due to said illegal conversion---Plaintiff, on basis of said claims, had independent right to sue, and no permission of Advocate General was, therefore, required for filing of present suit---Present suit contained multiple prayers and permission of Advocate General under S.91 of C.P.C. would be required only to the extent of prayer regarding said conversion and not regarding other reliefs prayed for by plaintiff---Plaint could not be rejected in piecemeal---Plaint could only be rejected if all reliefs claimed by plaintiffs were barred under law---Even if one of the prayers was maintainable, plaint could not be rejected under O. VII, R.11 of C.P.C.---Constitutional petition was dismissed in circumstances.

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

----O. VII, R. 11----Rejection of plaint---Principles----Plaint cannot be rejected in piecemeal---Plaint can only be rejected if all reliefs claimed by plaintiffs are barred under law---Even if one of the prayers is maintainable, plaint cannot be rejected under O.VII, R.11 of C.P.C.

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

----S. 91----Specific Relief Act (I of 1877), Ss. 42 & 54---Public nuisance---Permission of Advocate General for filing of suit---Principles---Section 91 of C.P.C. provided that suit for declaration or injunction in respect of public nuisance could be filed by two or more persons with permission of Advocate General---Exception, however, was there, that principle as embodied in S.91(2) of C.P.C., which provided that provision of S.91(1) of C.P.C. would not limit or otherwise affect any right of suit, which might exist independently.

(d) Words and phrases----

----'Nuisance'----Meaning and scope---Word 'nuisance' is derived from French word 'Nuire' which means to injure, hurt or harm---Literally term 'nuisance' means a thing, or a situation that is annoying or causing trouble---While using said term in respect of law, it is a behavior of somebody that annoys other people, and that court of law can order the person to stop---In liberal sense, anything that endangers life or health, gives offences to sense, violates laws of decency, or obstructs reasonable and comfortable use of property would constitute 'nuisance'.

Black's Law Dictionary ref.

Iftikhar Javaid Qazi for Petitioners.

Date of hearing: 23rd September, 2015.

P L D 2016 Sindh 31

Before Salahuddin Panhwar, J

JAFFAR ALI---Petitioner

Versus

STATION HOUSE OFFICER, AIRPORT POLICE, LATIFABAD

HYDERABAD and another---Respondents

C.P. No.S-878 of 2014, decided on 25th February, 2015.

(a) Constitution of Pakistan----

----Art. 199---Antiquity Act (VII of 1976), Ss.17 & 18---Ancient Monument (Preservation) Act (VII of 1904), Preamble---Sindh Cultural Heritage (Preservation) Act (XII of 1994)---Constitutional petition---Registration of FIR---Illegal encroachment over religious place and graveyard---Petitioner filed present petition for registration of FIR for illegal encroachment over religious place 'Kali Mai Ka Phera' and graveyard---High Court, after receiving report regarding site inspection, converted petition for determination "as to whether alleged encroached areas fell within meaning of 'ancient' or 'monument'"; whether "disposal of available land for 'public purpose' was as per directives issued by Supreme Court" and whether "allotment of government land was within parameters for such grant"---Report submitted by Land Utilization Department showed that land had been allotted to different housing schemes of Societies and Cooperative Societies---Validity---Report of Archeology department showed that neither 'Kali Mai Ka Phera' was listed in protected heritage or antiquity under Antiquities Act, 1975 or Sindh Cultural Heritage (Preservation) Act, 1994, nor traces of graveyard were found---Police report categorically mentioned that petitioner had no legal document of ownership---Petitioner was, therefore, not entitled to seek direction of lodgment of FIR against encroachers---Archeology department was directed by High Court to revisit site and report existence or non-existence of 'Kali Mai Ka Phera'---Constitutional petition was disposed of accordingly.

2014 SCMR 1611 rel.

(b) Antiquity Act (VII of 1976)----

----Preamble---Ancient Monument (Preservation) Act (VII of 1904), Preamble---Scope---Antiquity Act, 1976 or Ancient Monument (Preservation) Act, 1904 are not only meant to protect only those which are so declared under relevant law but would also include other things defined as 'ancient' or 'antiquity'.

(c) Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance (III of 2001)----

----Ss. 3 & 5----Sindh Government Notification No.09-294-03/SO-I/336, Dated 25-2-2006, Cond. 3---Cancellation and regularization of allotments, conversions and exchanges---Principles---Report of Utilization Department, in the present case, showed that number of allotments or grants had been made even in negation of order of Supreme Court, most of them for housing schemes and even to individual---Report also showed remark as to bogus entry---High Court observed that State land was public property, which could not be disposed of by Chief Executive of the Province, being custodian, at his wishes---Authority was meant and believed to act to protect such property which included disposal of such property at proper market price---Illegal order, regardless of status of person passing or issuing such order, would not have binding effect upon his subordinate---Process of allotment of government land should not have started by making application but from wide publication---Requirement of open auction was not attached for disposal of State land for other purposes including 'incremental housing' or 'project'---Sindh Government Notification No.09-294-03/SO-I/336, dated 25-2-2006 regarding statement of conditions was completely in negation of dictum laid down by Supreme Court with regard to object of Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, 2001---Requirement of 'open auction' would have been in all cases of disposal of government or State land, else the directives of Supreme Court and provisions of Constitution dealing with rights of people and equal treatment would fail---Ban over allotment of State land was continuing and relaxation had been allowed by Supreme Court only for specific 'projects'---Housing scheme did not, prima facie, appeared to be one falling in such exception---Allotment in name of housing scheme, in existence of ban and directives of Supreme Court, seemed to be deliberate, pejorative and intentional attempt to deceive purpose and objective of such ban and directives---Any such attempt would create no binding effect upon subordinate officials---Land Utilization department was directed by the High Court to enquire into the matter of allotments and undo all illegal allotments in respect of State land including allotments mentioned in said report following the directions of Supreme Court.

(d) Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance (III of 2001)----

----Ss. 3 & 5----Cancellation and regularization of allotments, conversions and exchanges---Principles---Bogus entry is not to be kept in record nor same should be allowed to be used to exploit right, title and interest of government land---Where revenue authorities claimed an entry in Record of Rights to be bogus, then same should always be processed to give it its natural fate.

(e) Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance (III of 2001)----

----Ss. 3 & 5----Cancellation and regularization of allotments, conversions and exchanges---Principles---Authority was competent to create and generate revenue through different modes, including disposal of 'State land' as provided by law---Such competence and jurisdiction, however, should never have been used nor allowed to be exercised in arbitrary manner, but same must be shown to have been exercised bonafidely in its true sense, keeping 'public interest' at its place---'Public interest' was supreme to all other interests---Disposal of State land would not equate the term 'public interest' unless a mechanism was resorted to create competition so as to generate maximum revenue which was expected from every owner---Grant or allotment of government land, if made for housing scheme, would not equate term 'public interest', particularly when it was being made without open auction---Housing scheme might be under plea to provide shelter to someone but patently term 'someone' could not equate term 'public at large'---Interest of 'public at large' could only be protected if maximum revenue was generated, which was believed to be used for interest and betterment of public at large.

2014 SCMR 1611 rel.

(f) Sindh Urban State Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance (III of 2001)----

----Ss. 3 & 5----Cancellation and regularization of allotments, conversions and exchanges---Principles---Work of leasing authority does not come to an end by passing on lease or grant but such grant or lease is always in shape of a 'contract'---Authority continues with full and complete responsibility to have continuous watch to examine whether 'lessee' standing well with purpose and object of lease or grant or otherwise---Lease only creates those rights which contract permits and same, in no way, dress 'lessee' up with status of 'absolute owner' who is entitled to legally enjoy property as per his wishes---Status of 'lessee' was not such as that of company, person or department even, but it is object of lease or grant which matters----'Lessee', regardless of its status, may have right to create sub-title but cannot change object and purpose for which lease or grant was made, which is to be protected by lesser under all circumstances---'Lesser', government authority, being custodian of rights and interest of public, is not supposed to be silent spectator but is believed to assure people guarantees of their rights, interests and claims under it---Breach or illegality always continues to be 'breach or illegality', and mere lapse of time shall, in no way, be sufficient to covert an 'illegality' into a legality---High Court observed that Land Utilization Department is to make sure that no breach or illegality in grant or lease goes unchecked particularly when contract permits penal action, including cancellation of lease or grant, against 'lease'.

Shaikh Muhammad Yousuf Khatri for Petitioner.

Ishrat Lohar, Adovcate for Deputy Commissioner, Hyderabad.

Syed Ghulam Nabi Shah for Secretary, Land Utilization Department.

Ashfaque Nabi Kazi, A.A.G, along with Mrs. Anita Shah, D.S.C.U Department.

Attaullah, Additional Deputy Commissioner-1, Hyderabad on behalf of D.C. Hyderabad and ASI Arshad on behalf of SHO PS Airport.

Date of hearing: 23rd January, 2015.

P L D 2016 Sindh 41

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

Syed MANSOOR ALI and others---Petitioners

Versus

CHAIRMAN, NAB and others---Respondents

C.Ps. Nos. D-2820, D-2918 and D-3102 of 2014, decided on 25th July, 2014.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a) & (b)---National Judicial Policy, 2009---Criminal Procedure Code (V of 1898), S.497(1), third proviso---Corruption and corrupt practices---Bail, grant of---Delay in conclusion of trial---Effect---Accused sought bail on the plea that they had been in custody for the past more than one year and delay in conclusion of trial was not attributed to them---Validity---Intention of law was that criminal case must be disposed of without unnecessary delay---Inordinate delay in imparting justice was likely to cause erosion of public confidence in judicial system on one hand and on the other hand, it was bound to create a sense of helplessness, despair feeling of frustration and anguish apart from adding to their woes and miseries---Guidance in National Judicial Policy, 2009, was provided to ensure its due implementation with dynamic approach within prescribed time---Provision for seeking bail on ground of statutory delay had been revived through a proviso added in S.497(1), Cr.P.C., which stipulated that court would except where it was of the opinion that delay in trial of accused had been occasioned by an act or omission of accused or any other person acting on his behalf, should be released on bail---Bail was allowed in circumstances.

Syed Maqsood Ahmed v. The State through NAB and another Civil Petition No.620-K of 2011; Jamil A. Durrani v. The State PLD 2003 Kar. 393 and Muhammad Saeed Mehdi v.State and others 2002 SCMR 282 ref.

Amir Haider Shah and Malik Muhammad Ejaz for the Petitioner (in C.P. No.D-2820 of 2014).

Syed Ghulam Hasnain for the Petitioner (in C.P.No.D-2918 of 2014).

Rauf Ahmed and Khurram Nizam for the Petitioner (in C.P. No.D-3102 of 2014).

Noor Muhammad Dayo, ADPG, NAB

Date of hearing: 25th July, 2014.

P L D 2016 Sindh 47

Before Nadeem Akhtar, J

Mrs. AMINA JAFFER: In the matter of grant of Succession Certificate---Petitioner

S.M.A. No.168 of 2013, decided on 22nd May, 2015.

Succession Act (XXXIX of 1925)---

----S. 372---Succession certificate, grant of---Furnishing of security---Object---Discretion, exercise of---Scope---Plea of petitioner was that there was no objection with regard to issuance of succession certificate and she should be exempted from furnishing surety---Validity---Object of requiring surety was to secure the interest of any such person who might have a share, claim or interest in the assets left by the deceased whose name had not been disclosed to the court or who was not before the court, or a creditor of the deceased, a minor legal heir or a legal heir of unsound mind whose share was retained by the court or a legal heir whose share was not distributed to him in accordance with law after the grant of succession certificate or letters of administration---If court was satisfied that such situation did not exist then it might dispense with the furnishing of surety while granting letters of administration or succession certificate---Such power of court was discretionary and person applying for letters of administration or succession certificate could not seek such discretion as a matter of right---Exercise of discretion would depend upon the facts and circumstances of each case---Such discretion should be exercised liberally keeping in view the hardship that might be faced by the legal heirs of the deceased in furnishing surety who might not have any other or additional property of their own to offer as surety---Other legal heirs had no objection in granting of succession certificate in favour of petitioner---Discretion of dispensing with the requirement of furnishing surety could be exercised in favour of petitioner---No impediment existed in the grant of succession certificate in the name of petitioner---Succession certificate was issued in the name of petitioner subject to her executing personal bond equivalent to her share of the total assets left by the deceased and furnishing surety to the satisfaction of Nazir equivalent to the shares of other legal heirs---Petition for grant of succession certificate was allowed in circumstances.

Kamran Mirza v. Moazzam Mirza PLD 2014 Sindh 500 ref.

Khalid Anwer, Rashid Anwer and Muhammad Yousuf Nasim for Petitioner.

Date of hearing: 22nd May, 2015.

P L D 2016 Sindh 50

Before Munib Akhtar, J

GOLDEN ARROW SELECTED STOCK FUNDS LTD. and another---Plaintiffs

Versus

CLARIANT PAKISTAN LTD. and 9 others---Defendants.

Suit No.1373 of 2013, decided on 5th June, 2015.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Sale of property of company---Temporary injunction, grant of---Invoking exception to the rule in Foss v. Harbottle (1843) 67 ER 189 (in any action in which a wrong is alleged to have been done to a company, the proper claimant is the company itself)---Scope---Consideration received by the company was above the fair market value---No loss, injury or damage would be suffered by the company---No fraud was on record within the meaning of the exception to the rule in Foss v. Harbottle---Said exception could not be invoked in favour of shareholders-plaintiffs in the terms of present proceedings---Application for grant of interim relief was dismissed in circumstances.

Daniels v. Daniels [1978] 2 WLR 73, 75 (et seq.); Konamaneni and others v. Rolls Royce Industrial Power (India) Ltd. and others [2002 1 All ER 979, 987-9; Prakashchandra Rajmal Jain v. Firm Swarupchand Hukumchand and Co. and others 1975 MPLJ 390; Spectrum Technologies USA Inc. v. Spectrum Power Generation Company Ltd. Delhi High Court, dated 21-9-2001; Nirad Amilal Mehta v. Genelec Limited and others [2008] 146 Comp. Cas 481; Prudential Assurance Co. Ltd. v. Newman Industries Ltd and others (No.2) [1980] 2 All ER 841; [1981] 1 Ch. 257; North-West Transportation Company Ltd. and another v. Henry Beatty and others (1887) 12 App. Cas. 589; Muhammad Suleman Kanjiani and others v. Dadex Eternet Ltd. and others 2009 CLD 1687; Pfizer Laboratories Ltd. v. Parke Davis and Co. Ltd. 2007 CLD 1047; In re: Kohinoor Raiwind Mills Ltd. and others 2002 CLD 1747 and Kohinoor Raiwind Mils Ltd. v. Kohinoor Gujar Khan Mills and others 2002 CLD 1314 ref.

In re: Dunlop India Limited and Madura Coats Limited (2012) 2 Comp LJ 199; Anil Modhavdas Ahuja v. Marvel Fragrances Pvt. Ltd. and others (2011) 113 Bom LR 3142 and Nirad Amilal Mehta v. Genelec Limited and others [2008] 146 Comp. Cas 481 distinguished.

Fort Gilkicker Ltd. [2013] 3 All ER 546; Abouraya v. Sigmund and others [2014] EWHC 277 (Ch); Waddington Ltd v. Chan Chun Hoo Thomas [2009] 2B CLC 82; Prudential Assurance Co Ltd v Newman Industries Ltd and others (No. 2) [1982] 1 All ER 354; [1980] 2 All ER 841; [1981] 1 Ch. 257 and [1982] 1 All ER, at p.359) rel.

Murtaza Wahab for Plaintiffs.

Mayhar Mustafa Kazi and Omer Soomro for Defendants Nos.1 and 2

Zohaib Ahmed for Defendant No. 3.

Dates of hearing: 16th January and 3rd and 12th February, 7th March and 2nd December, 2014.

P L D 2016 Sindh 63

Before Faisal Arab, C.J. and Muhammad Iqbal Kalhoro, JJ

Syed HAFEEZUDDIN---Petitioner

Versus

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

Constitutional Petition No.3081 of 2014 along with connected petitions decided on 3rd October, 2015.

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

----Ss. 10 & 12----Delimitation of Constituencies Act (XXXIV of 1974), Ss.3-A, 6 & 9---Constitution of Pakistan, Arts.199 & 140-A(2)---Constitutional petition---Delimitation of union councils---Characteristics of local area---Delimitation of constituencies etc. for local government elections---Petitioner challenged delimitation process and validity of notification issued by Provincial Government in exercise of its powers under S.10(1) of Sindh Local Government Act, 2013 [as amended under Sindh Local Government (Amendment) Act, 2015]---Contention raised by petitioners was that only Election Commission could undertake process of holding elections in terms of Art.140-A(2) of the Constitution---Validity-Power of Government to issue notification in terms of S.10(1) of Sindh Local Government Act, 2013 was not amenable to any question---Such notifications could not be declared ultra vires the Constitution---Process of determining number of Union Councils, Union Committees and Wards in Municipal Committees and Town Committees in pursuance of S.10 of Sindh Local Government Act, 2013 could not be equated with powers of Election Commission to delimit constituencies under S.3-A of Delimitation of Constituencies Act, 1974, nor was that synonymous with delimitation process---Delimitation of constituencies would only be carried out once Government had declared areas---Election Commission, under no law, was empowered to determine Union Councils, Union Committees and Wards in Municipal Committees before holding elections, nor such exercise could be bracketed as part of elections to be carried out by Election Commission---Section 3-A of Delimitation of Constituencies Act, 1974 clearly demonstrated that so long as marking out any Union Councils or Union Committees, etc. was concerned, that was prerogative of Provincial Government to do so under the law, and delimitation process would start only after areas had been so categorized---Such would not be feasible for Election Commission to determine number of Union Councils etc. in the country without support of Federal or Provincial Government concerned---Task of determining number of Union Councils etc. and demarcation of councils was duty of Provincial Government in terms of S.6 of Delimitation of Constituencies Act, 1974---No bar existed over authority of Government to notify areas as Union Councils etc. for delimitation purpose---Government, while determining number of Union Councils and declaring areas to be urban or rural, would follow principles enumerated in Ss.10(3) & 12 of Sindh Local Government Act, 2013 read with tenets set in S.9 of Delimitation of Constituencies Act, 1974---If Government, while acting did not adhere to such standards meaningfully, same could be made ground for raising objection over the way such exercise had been undertaken, however, same could not be made basis to annul impugned notifications as null and void for want of authority.

(b) Delimitation of Constituencies Act (XXXIV of 1974)---

----Ss. 10-A & 9----Sindh Local Government Act (XLII of 2013), Ss.10 & 12---Constitution of Pakistan, Art.199---Constitutional petition---Powers of Election Commission to make amendment, alteration and modifications in final list of constituencies---Scope---Delimitation of union councils---Characteristics of local area---Contention was that Election Commission had failed to assert its role, power and responsibility of being neutral umpire in whole process of delimitation---Validity---Sindh Government, in a number of constituencies, had made some changes, either by including already notified rural areas into urban or vice versa, or excluding certain areas from place of their origin and placing them into regions far away from their original place in disregard to principles of contiguity, closeness and homogeneity---Union Councils, in some cases, had been divided in a way that village had been separated into two different Union Councils or Union Councils had been separated in a way to include areas across the river---Dehs, which were separated from each other, had been blended together in one Union Council---Functionaries of Election Commission, while carrying out process under Ss.10(2) & 10(3) of Sindh Local Government Act, 2013, had not adhered to guidelines with regard to territorial unity and appreciated distinction between urban and rural areas in several constituencies---Whole process appeared to have been done in arbitrary manner, purpose whereof was nothing but gerrymandering---Election Commission had failed to correct wrongs by resorting to S.10-A of Delimitation of Constituencies Act, 1974---Election Commission could suo motu take notice of all those irregularities highlighted in the present case and correct the same---Guidelines provided by superior courts had not been adhered substantively during delimitation process in question to avoid confusion---Principles of compactness, contiguity, territorial unit homogeneity and population had not been followed---High Court allowed Election Commission to make only such alterations and modifications in those constituencies which Election Commission could carry out expeditiously in exercise of its powers under S.10-A of Delimitation of Constituencies Act, 1974 by only looking at existing boundaries of disputed constituencies---High Court provided guidelines for the purpose.

MQM and others v. Province of Sindh and others 2014 CLC 335 rel.

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

----Ss. 8, 10(3), 12, 13 & 14---Delimitation of Constituencies Act (XXXIV of 1974), S.9---Constitution of Pakistan, Arts.199 & 10-A---Constitutional petition---Local areas---Delimitation of Union Councils---Characteristics of local area---Declaration of urban and rural areas---Declaration of Town, Municipality, Municipal Corporation and Metropolitan Corporation---Principles of delimitation---Contention was that questions as to whether delimitation process was just and transparent and in accordance with principles laid down in Ss.10(3) & 12 of Sindh Local Government Act, 2013 read with S.9 of Delimitation of Constituencies Act, 1974 could not be taken by High Court in its Constitutional jurisdiction for main reasons that same, being factual in nature, had been adjudicated upon by Delimitation hierarchy after considering objections of parties---Validity---Nothing was on record to show that due hearing, that was inviting objections in terms of Ss.8, 10, 13 & 14 of Sindh Local Government Act, 2013, had been afforded to petitioners---Decisions of Delimitation Officers, whose orders had been challenged in appeals before Delimitation Authority, were maintained on basis of their consent recorded during hearing--Such was gross disregard to provisions of fair trial encapsulated in Art. 10-A of Constitution that appellate Authority had based its decision merely on consent of the officer whose order was impugned before it without considering contentious issues---Local residents were main party in delimitation process, as they would be most affected people in either way in case of any change in constituency they resided in had been accepted by law itself---High Court could look into matters where apparently person performing functions either in connection with affairs of the Federation or Province had failed to do anything which he was required under law to do---Where there was wide-spread disenchantment among people over process of delimitation, High Court, under Art. 199 of the Constitution, could issue appropriate directions to Election Commission to take note of those complaints and redress them in accordance with law---Objection as to maintainability of constitutional petition, being without any substance, was rejected.

(d) Constitution of Pakistan---

----Arts. 218(3) & 219(d)---Election Commission---Duties of---Article 219(d) of Constitution spoke of duties of Election Commission that it shall be charged with the holding of general elections to the National Assembly, Provincial Assemblies and the Local Governments---Expression "to ensure that election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against" in Art. 218(3) of the Constitution denotes the importance that Legislature attaches to transparency and fairness of election---Reason behind said provision is to enhance public confidence in whole process and to make same more permeating, so that wide range of people shall involve themselves in decision making process concerning their lives and get maximum benefit out of it---Corrupt practices, which can wreak havoc regarding results of elections and have far-reaching adversarial effects on very process of election, are bound to raise questions over eligibility of returned candidates.

(e) Constitution of Pakistan----

----Arts. 218 & 219----Sindh Local Government Act (XLII of 2013), Ss.10 & 12---Delimitation of Constituencies Act (XXXIV of 1974), Ss.3-A, 6, 9 & 10-A---Constitution of Pakistan, Art.199---Constitutional petition---Election Commission---Duties of---Imperative for Election Commission, as per its mandate under the Constitution, to devise and supervise every step till elections are finally held---In given context role of Election Commission as a neutral empire assumes importance that has to be discharged by it independently---Any sitting government contesting elections is always to be treated as party at par with other contesting candidates---To conduct elections with honesty, justness and fairness, it becomes incumbent upon Election Commission to also decide elections related issues occurring either before or after elections in transparent manner and in accordance with law---When Election Commission is tasked to guard against corrupt practices, it entailed that not only it shall take over charge of all affairs relating to election but it has to watch over any manoeuvering, in whatsoever shape and nature, in delimitation process---Under law, Election Commission can take note of and undo any notification by Government notifying certain areas, which are urban, as rural or vice versa, if it is done to gain some advantage in elections---Commission can certainly make necessary amendments in constituencies as provided under Delimitation of Constituencies Act, 1974 to avoid any imbalance in population ratio and reverse new changes made by Government to gain edge over opponents in election.

(f) Delimitation of Constituencies Act (XXXIV of 1974)---

----Ss. 10 & 10-A----Sindh Local Government Act (XLII of 2013), S.10(3)---Constitution of Pakistan, Arts. 218, 219 & 199---Constitutional petition---Reports of Commission and list of constituencies---Powers of Election Commission to make amendment, alteration and modification final list of constituencies---Election Commission, under the Constitution. was mandated and tasked with holding of election and culminating in notifying returned candidates or in case of some dispute till their proper and final adjudication---Any dispute, so long as same concerned elections, arising either before or after it, had to be taken up and decided by Commission first strictly in accordance with law---Such powers of Election Commission were manifest in S.10 Delimitation of Constituencies Act, 1974---In terms of S.10-A of Delimitation of Constituencies Act, 1974, Election Commission might, at any time, on its own motion, make such amendments, alterations or modifications in final list of constituencies published under S.10(3) of Delimitation of Constituencies Act, 1974 or areas included in constituency as it thought necessary---Election Commission could exercise said powers, even in absence of any complaint, where there was witnessed dissatisfaction and disenchantment among people of area either on delimitation or on process whereby local areas were included or excluded out of their declared places; or on manoeuvering in census blocks to offset demographic balance to peril of one party and to advantage of another---When demarcation had been carried out without inviting objections of residents and without hearing their view point on subject as required by law, it became all more compulsory for Commission to wield its power and authority in terms of S.10-A of Delimitation of Constituencies Act, 1974 to correct the wrongs.

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

----S.10---Constitution of Pakistan, Art. 199---Constitutional petition---Contention was that S.10 of Sindh Local Government Act, 2013 was ultra vires of the Constitution and needed to be declared so---Delimitation of Union Councils---Delimitation process provided under S.10 was not to be mixed with proposition of delimitation of constituencies to be undertaken under Delimitation of Constituencies Act, 1974, so long as scheme of Sindh Local Government Act, 2013 was concerned---Initiation of process of delimitation of constituencies for local government elections through notification issued by Provincial Government under Ss.10(1) & 10(3) of Sindh Local Government Act, 2013 was within confines of said Act.

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

----Ss. 8, 10 & 13----Delimitation of Constituencies Act (XXXIV of 1974), S.10-A-- Constitution of Pakistan, Art. 199---Constitutional petition---Local areas---Delimitation of Union Councils---Declaration of "urban" and "rural" areas---Under Ss.8 & 13 of Sindh Local Government Act, 2013, delimitation process would commence at least eighteen months before schedule of local government elections is announced which shall follow exercise of determining number of Union Councils etc. and demarcation of Councils in terms of S.10 of Sindh Local Government Act, 2013--- Delimitation process by Election Commission would start at least one year before election schedule---High Court observed that Election Commission to exercise its powers to make amendments, alteration and modification in final list of constituencies in terms of S.10-A of Delimitation of Constituencies Act, 1974 within period of six month before election schedule.

(i) Delimitation of Constituencies Act (XXXIV of 1974)---

----Ss. 3-A & 10---Constitution of Pakistan, Art.199---Constitutional petition---Term 'Delimitation process'----Meaning and scope-- Delimitation of constituencies etc. for local government election---Report of Commission and list of constituencies---'Delimitation process' means and includes (but not restricted to) preparing a preliminary report and making such amendments, alterations or modifications in report as are deemed fit and necessary after hearing and considering representations, if any, and publishing in official gazette a final report and list of constituencies under S.10 of Delimitation of Constituencies Act, 1974 and passing an order under S.3-A of Delimitation of Constituencies Act, 1974.

Haq Nawaz Talpur, Inayatullah Morio, Abdul Rasheed Kalwar, Muhammad Farogh Naseem, Abrar Hasan, Manzoor Hussain Samor, Zulfiqar Ali Domki, Syed Mureed Ali Shah, Abdul Basit, Irshad Jatoi, Naeem Iqbal, Shujja Abbas, Khalid Nawaz Marwat, Ashraf Ali, Jaffer Raza, Asadullah, Muhammad Aqil, Azhar Ahmed Shah, Shiraz Shaukat Rajpar, Ghulamullah Chang, Mohsin Kadir Shahwani, Muhammad Nishat Warsi, Shafique Ahmed, Ms. Khalida Parveen, Shaikh Muhammad Aslam, Muhammad Hashim Leghari, Ghulamullah, Muhammad Aslam Bhutta, Zamir Hussain Ghumro, Parkash Kumar, Fayaz Ahmed, Sundar Das, Ghulam Sarwar, Wahid Bakhsh, Imtiaz Ali, Sardar Iqbal, Muhammad Arshad S. Pathan, Muhammad Nawaz, Muhammad Jaffer Raza, Ch. Aftab Ahmed Warraich, Wali Muhammad Jamari, Muhammad Hassan, Ahsan Gul, Ishrat Ali Lohar, Mir Zamin Hussain Khan, Zahid Mallah, Mohsin Raza, Munwar Ali, Syed Zafar Ali Shah, Aayatullah, Muzafar Ali Leghari, Wali Muhammad Khoso, Ayaz Hussain Tunio, Mir Naeem Talpur, Hameedullah Dahri, Meer Ahmed Mangrio, Dildar Ali, Shakeel Ahmed Zai, Muhammad Hayat, Abdul Waheed Bijarani, Muhammad Saleem, Ali Nawaz Ghanghro, Farhan Khaliq, Ghulam Dastagir Shahani, Bakhshan Khan Mahar, Habibullah Ghori, Nisar Ahmed, Abdul Rehman Bhutto, Asif Ali Soomro, Rashid Mustafa Solangi, S. Khizar Askar Zaidi, Rehman Dino Mahesar, Hadi Bux Bhatt, Advocates, Abdul Fatah Malik, Advocate General along with Mukesh Kumar Karara, Addl. A.G., Farooq H. Naek, Advocates, Awais Ahmed Abro, Abdullah Hanjrah Law Officer, Election Commission, Syed Rashid Hussain, Delimitation Officer, Amir Ahmed Kehar, Focal Person on behalf of Law Secretary, Government of Sindh.

Date of hearing: 15th, 16th and 17th September, 2015.

P L D 2016 Sindh 86

Before Faisal Arab, C.J. and Muhammad Iqbal Kalhoro, J

SULTAN AHMED---Petitioner

Versus

MUHAMMAD BACHAL and 4 others---Respondents

Constitutional Petition No.D-6387 of 2015, decided on 20th October, 2015.

Sindh Local Councils (Election) Rules, 2015--

----R. 18(3)(c)---Sindh Civil Servants (Conduct) Rules, 2008, Rr. 24(3) & 25---Candidate for Local Government elections --- Such a candidate could be proposed and seconded by a Government servant --- Proposing or seconding a candidate to stand for election did not amount to an activity relating directly to either canvassing or otherwise interfering/influencing the elections.

Haider Waheed for Petitioner.

Mukesh Kumar, A.A.G. for Respondents.

Date of hearing: 19th October, 2015.

P L D 2016 Sindh 87

Before Salahuddin Panhwar, J

MAQBOOL AHMED---Appellant

Versus

SHAH MUHAMMAD and another---Respondents

Criminal Acquittal Appeal No.S-225 of 2012, decided on 16th December, 2014.

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

----Ss. 265-K & 265-F---Application for acquittal---Defence of alibi---Accused took plea of alibi and was acquitted upon acceptance of a document in support of said plea---Document of defence could not be the base for final determination/acquittal without letting the opposite party to make an attempt to disprove or at least challenge the authenticity of such document and if such was allowed to hold the field, the same would frustrate the very scheme of the 'Trial Procedure' as provided under S.265-F of the Cr.P.C.---Plea of alibi can be substantiated through leading evidence which an accused could, no doubt enjoy, but only at accused's turn within meaning of S.265-F of the Cr.P.C.---Charge against accused was of 'abetment or conspiracy' and to constitute an offence for abetment or conspiracy, physical presence of the accused at the time of commission of offence was not required---Impugned order was set aside and case was remanded to Trial Court.

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

----S. 265-K---Acquittal through an application under S.265-K, Cr.P.C.---Scope---Defence of alibi supported by documents---Effect---Acquittal appeal against a judgment of full-fledge trial and against one order passed on application under S.265-K, Cr.P.C. could not be compared in the same parameters, and while court can acquit under said (S.265-K, Cr.P.C.), at any stage of trial, however such power was subject to satisfaction of the court, after examining material and hearing prosecution, that there was no probability of the accused being convicted for any offence and not necessarily the one with which he was charged with---Trial Court could acquit the accused at any stage if no evidence was available on record---Acquittal under S.265-K, Cr.P.C., could only be sought with reference to prosecution material and any material of defence, if the same had not come on record as required by law, could not be legally considered to acquit the accused since the term 'no possibility of conviction of accused for any offence' used in S.265-K, Cr.P.C., had no room for a material or plea of defence, but a defence plea, whatever it may be remained a defence plea which, unlike civil proceedings, was not necessarily be proved to earn success.

Nawaizish Ali v. State 2010 SCMR 1785; Hajan v. Ist Additional Sessions Judge, Dadu 2014 PCr.LJ 824; Asif Ali Zardari v. State PLD 2008 Kar. 310 and State v. Ashiq Ali Bhutto 1993 SCMR 523 ref.

Ghulam Ahmad Chishti's case 2011 SCMR 385 and Rashid Minhas's case 2012 PCr.LJ 816 rel.

Mansoor Ahmed Khan for Appellant.

Chaudhry Aftab Ahmed Warraich for Respondent No.1.

Syed Meeral Shah, Deputy Prosecutor General.

P L D 2016 Sindh 92

Before Munib Akhtar, J

Haji KHAWAND BUX GHULAM

MUHAMMAD JAHEJO---Applicant

Versus

SHARJEEL INAM MEMON and 23 others---Respondents

Election Petition No.14 of 2013, decided on 17th October, 2015.

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

----Ss. 2(viii), 16, 17, 52, 54(a) & 63---Election petition---Withdrawal---Retirement from election etc.

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

----Ss. 11, 16, 17 & 52----Election petition---Notification for election--- Withdrawal-Retirement from election etc.---Section 16 of Representation of the People Act, 1976 enables a validly nominated candidate to withdraw by or before a date to be stipulated in this regard, which is part of the Schedule of dates to be notified by Election Commission in terms of S.11 of Representation of the People Act, 1976---Once said date is crossed, then remaining validly nominated candidates become the contesting candidates, and ballot papers are printed accordingly---Said candidates will, or, at least, are expected, to contest the election---Section 17 of Representation of the People Act, 1976, serves as exception, as same allows contesting candidate to retire from the electoral fray up to later date, notwithstanding that ballot papers may have been printed, and even though candidates may, prior to their withdrawal, have been campaigning vigorously in their constituency--- Interests of electors must be duly protected in order to ensure that their votes are not wasted if all said statutory concessions are to be granted to the candidates---Statutory concession under S.17 of Representation of the People Act, 1976, therefore, cannot be open ended and left to sweet will of contesting candidates allowing them to retire from election even on very eve of polling day---Rigorous and detailed procedure or conditions for informing electors, which cannot be realistically be complied with or met, are also not desirable to be laid down, and a balance under provisions of S.17 of Representation of the People Act, 1976 has been struck.

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

----S. 17----Scope---Retirement from election etc.---Interest of electors must be regarded as paramount while interpreting and applying S.17 of Representation of the People Act, 1976.

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

----Ss. 17(1), 17(2), 17(3) & 52----Election petition---Retirement from election etc.---Notice of retirement, validity of---Determination---Returning Officer as set out in S.17(2) of Representation of the People Act, 1976, could accept or reject notice of retirement, as long as the same had been given in timely manner by either the candidate or by his duly authorized agent---Sections 17(3) & 17(4) of Representation of the People Act, 1976 were directed towards addressing the question as to how electors were to be informed about retirement of the candidate---Absence of compliance with either of the two provisions, did not make S.17(1) of Representation of the People Act, 1976 applicable, even though S.17(1) of the Act might have been complied with, and contesting candidate, in such situation, would continue, in law, to remain as such.

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

----Ss. 17(3) & 17(4) & 52----Election petition---Retirement from election etc.---Affixation and publication of notice of retirement---Burden of proof---Onus of establishing that there had been compliance of either of S.17(3) or 17(4) of Representation of the People Act, 1976 must lie on person asserting that concerned candidate had retired and was no longer a contesting candidate.

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

----Ss. 17(1), 17(2), 17(3) & 52----Qanun-e-Shahadat (10 of 1984), Art.129, Illust. (e)---Election petition---Retirement from election etc.---Court may presume existence of certain facts---Respondent submitted that notice of retirement in terms of S.17(1) of Representation of the People Act, 1976 did not become effective, unless requirements of S.17(3) had been complied with by Returning Officer---Petitioner contended that on proof that notice of retirement complying with S.17(1) of Representation of the People Act, 1976 was given, requirement of S.17(3) of the Act would be presumed to have been met under Art.129 of Qanun-e-Shahadat, 1984---Validity---Section 17 (3) of Representation of the People Act, 1976, had two limbs: First limb required a specifically identified act, that was copy of notice of retirement was to be affixed by Returning Officer at some conspicuous place in his office and second limb was more general in nature, as it conferred broad discretion that Returning Officer must also publish the notice in such manner as he might think fit---Both the limbs must be complied with as regards S.17(4) of Representation of the People Act, 1976---Word 'publish' was to be construed and applied broadly, in the sense of informing electors that concerned candidate had retired---Requirements of both the limbs were distinct from each other---Returning Officer, while affixing copy of notice of retirement on notice board outside his office, could not affix another copy on wall of compound in his office, in purported compliance of the second limb---Returning Officer, on the other hand, had the discretion to decide the manner in which notice of retirement was to be published---Section 17(4) of Representation of the People Act, 1976, was deeming provision which was limited only to the second limb of S.17(3) of Representation of the People Act, 1976---Candidate would be deemed to have withdrawn from election on mere proof of fact that Returning Officer had published the notice of retirement---Proof as to compliance of the first limb, in such situation, would be immaterial, and the same would not be sufficient to make S.17 of Representation of the People Act, 1976, applicable---Evidence on record did not show as to whether Returning Officer had complied with first limb of S.17(3) of Representation of the People Act, 1976---Fact that proper notice of retirement had been given, could not. of itself and without anything more, raise the presumption that Returning Officer had done all that was required of him in terms of S.17(3) of the Act---Presumption, in appropriate circumstances, could be made under Art. 129 of Qanun-e-Shahadat, 1984 regarding the second limb of S.17(3) of Representation of the People Act, 1976, that the notice of retirement had been published by Returning Officer if he had put in motion the manner chosen by him and the same involved act of some other official---Mode chosen by Returning Officer, in the present case, was publication by and through Information Department of Government, and said mode had been set in motion by forwarding a copy of confirmation of notice of retirement to Deputy Director Information-Publication of the notice could, therefore, be presumed to have taken place---Compliance with the second limb of S.17(3) of Representation of the People Act, 1976 would bring the deeming provision of S.17(4) of the Act into operation.

Shabbir and Zafar Alam for Petitioner.

Haider Waheed and Basil Nabi Malik for Respondent No.1.

Date of hearing: 10th October, 2015.

P L D 2016 Sindh 105

Before Ahmed Ali M. Shaikh and Sadiq Hussain Bhatti, JJ

ABDUL QADIR TAWAKAL---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (SINDH) (NAB) and another---Respondents

Constitutional Petition No.D-1856 of 2015, decided on 10th September, 2015.

(a) Vested Right---

----Amendment in law---Effect---Any amendment in law does not take away, empower, nullify or destroy a vested right which has attained finality and has become past and closed transaction.

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

----Ss. 10, 11 & 33-E---Criminal Procedure Code (V of 1898), S.386---Constitution of Pakistan, Art.12---Recovery of fine as arrears of land revenue---Imprisonment in lieu of fine---Amendment, retrospective effect of---Trial Court convicted the accused and also imposed fine upon him and on default of fine he was to undergo sentence of imprisonment---Grievance of petitioner was that after passing of conviction and sentence, S.33-E was inserted in National Accountability Ordinance, 1999, which had no retrospective effect, therefore, order passed by Accountability Court for recovery of fine as arrears of land revenue was illegal---Validity---Proceedings for recovery of fine as arrears of land revenue could not be initiated against petitioner as prior to insertion of S.33-E in National Accountability Ordinance, 1999, the petitioner had been convicted and sentenced by Accountability Court---If order passed by authorities with regard to recovery of fine as arrears of land revenue at such stage was allowed to remain in field, the same would tantamount to violation of Art.12 of the Constitution----By awarding sentence of any/certain term in lieu of payment of fine to an accused facing trial under National Accountability Ordinance, 1999, the Accountability Court in fact, provided immunity to person found guilty of corruption and corrupt practices etc., from payment of fine, thus defeating the very object, spirit and aim of National Accountability Ordinance, 1999--- In law the Accountability Court while awarding conviction and sentence could not award sentence of any/certain term in lieu of payment of fine to any accused found guilty of offence of corruption and corrupt practices etc.. as envisaged in National Accountability Ordinance, 1999, which was a special law---High Court set aside order passed by Accountability Court on application by authorities under S.386, Cr.P.C., read with S.33-E of National Accountability Ordinance, 1999---Petition was allowed in circumstances.

Jamshaid Gulzar v. Federation of Pakistan 2014 SCMR 1504 and Irshad Ahmed Sheikh v. National Accountability Bureau 2015 SCMR 588 ref.

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

----S. 10(a)---Corruption and corrupt practices---Punishments---Scope---Three simultaneous punishments have been provided i.e., imprisonment, fine and forfeiture of assets of a holder of public office or any other person who commits the offence of corruption and corrupt practices.

(d) Words and phrases---

----'And'--- Connotation--- In its conjunctive sense, word 'and' is used to conjoin words, clauses, or sentences expressing the relation of addition or connection and signifying that something is to follow.

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

----S. 10(a)---Word 'and'---Scope--- Word 'and' used in S.10(a) of National Accountability Ordinance, 1999, conjoins punishment of rigorous imprisonment for a term which may extend to 14 years with fine, with forfeiture of assets as mentioned in S.10 of National Accountability Ordinance, 1999, and Schedule thereto.

Muhammad Farooque for Petitioner.

Muhammad Altaf, ADPG, NAB. for Respondent No.1.

Date of hearing: 21st August, 2015.

P L D 2016 Sindh 114

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

Dr. PERVAIZ MEHMOOD HASHMI---Petitioner

Versus

PROVINCE OF SINDH through Secretary Sindh Local Government Department and 7 others---Respondents

Constitutional Petition No.D-2131 of 2010, decided on 14th October, 2015.

Sindh Building Control Ordinance (V of 1979)---

----Ss. 6 & 7-A---Easements Act (V of 1882), S. 28---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Easementory right of privacy---'Aggrieved person', determination of---Approval of plan---Violation of certain provisions---Petitioner claimed that private respondents had illegally raised certain construction at the back of his house, which were without any approved plan and against the limits prescribed by the law and that said constructions violated easementory right of petitioner, as his privacy had been badly affected as result of such constructions---Official respondents stated that they had already made several attempts to demolish illegal constructions in question, but every time a mob gathered at the site and hampered the demolition proceedings---Private respondents took plea that present constitutional petition was not maintainable as disputed question of facts were involved and as they had applied to Karachi Buildings Control Authority for regularization of disputed constructions---Validity---Petitioner had filed number of application to official respondents with request that constructions in question were illegal---Whenever any public officer fails to perform its public duty or right of any citizen is infringed, he had remedy under Art. 199 of the Constitution to approach High Court for redressal of his grievance---High Court observed that neighbour had right to maintain constitutional petition when enjoyment of right to his property was being violated, as that person, claiming some statutory rights, fell under definition of 'aggrieved person', and hence, constitutional petition was maintainable in that behalf---Present constitutional petition was, therefore, maintainable---Official respondents had admitted that the constructions raised by private respondents were without approved plan, and the same had not been raised as per Karachi Building and Town Planning Regulations---People of the area had admittedly intervened in actions the official respondents had taken for demolition of the illegal constructions---Illegal constructions in question, which was beyond the permissible limit and the limit which came under ambit of regularization, were being raised in illegal and unauthorized manner, and the same, therefore, had to be demolished by Sindh Building Control Authority---Private respondents categorically stated that they were ready to close down windows and drainage pipes to the satisfaction of petitioner regarding his easementory right---High Court directed Sindh Building Control Authority to proceed against the private respondents and if the structures raised by them were found to be unauthorized and illegal, the same would be dealt with in accordance with law strictly adhering to provisions of Ss. 6 & 7-A of Sindh Building Control Ordinance, 1979---Constitutional Petition was allowed in circumstances.

Abdul Waheed Butt v. Mrs. Asma and 4 others 1989 CLC 1936; Dr. Muhammad Farooq v. Karachi Building Control Authority (K.M.C) and others 1997 MLD 2777; Shaukat Ali Qadri v. Karachi Building Control Authority 1998 CLC 1387; Mir Afzal Khan and 21 others v. Karachi Development Authority through Director-General and 4 others PLD 1998 Kar. 283; Messrs ASCO International (Pvt.) Ltd. through Manager v. Government of Sindh through Secretary, Industries, and 3 others 2008 CLC 642; Din Muhammad Qureshi v. Government of Sindh and others 2003 CLC 245; Shaukat and others v. Controller, Karachi Building Control Authority and others 2004 YLR 1192; Naik Muhammad v. Maqbool Ahmed and others 2004 YLR 2777; Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 and Sadiq Ali v. City District Government and others 2004 MLD 1659 ref.

Muhammad Amin v. Karachi Building Control Authority 1992 CLC 691; Messrs Asma Builders v. Government of Sindh and 9 others 1993 CLC 326 and Noor Muhammad and another v. Building Control Authority and 2 others 1992 CLC 729 distinguished.

Suleman Mala v. Karachi Building Control Authority and 3 others 1990 CLC 448; Ardeshir Cowasjee and others v. Messrs Multiline Associates, Karachi and others PLD 1993 Kar. 237 and Mian Fazal Din v. Lahore improvement Trust, Lahore and another PLD 1969 SC 223 rel.

Khawaja Shams-ul-Islam assisted by Khawaja Saif-ul-Islam and Imran Taj for Petitioner.

Meeran Muhammad Shah, Addl. A.-G. Sindh (AAG) for Respondents Nos. 1 and 4.

Anwer Ali Shah for Respondent No.2.

Nemo for Respondent No.3.

Zahid Farooq Mazari for Respondents Nos. 5 to 8.

Ms. Azra Muqeem for Karachi Metropolitan Corporation (KMC) (On Court Notice).

Date of hearing: 18th September, 2015.

P L D 2016 Sindh 124

Before Sajjad Ali Shah and Muhammad Junaid Ghaffar, JJ

BOURBON MARITIME (PVT) LTD. through

Chief Executive/authorized person---Appellant

Versus

M. V. SALAJ through Official Assignee and 3 others---Respondents

Admiralty Appeal No.5 of 2006, decided on 17th September, 2015.

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

----Ss. 3, 2(b) & 2(i)----Port Qasim Authority Act (XLIII of 1973), Ss.21 & 23---Civil Procedure Code (V of 1908), S. 9---Admiralty suit---Maintainability---Admiralty jurisdiction of High Court---'Charges' and Port'---Meaning---Power to detain vessels for non-payment of rates etc.---Alternative remedy by suit---Jurisdiction of High Court under S.9, C.P.C.---Plaintiff filed Admiralty suit under S.3 of Admiralty Jurisdiction of High Courts Ordinance, 1980 against defendant-Vessel for recovery of dues and expenses, which plaintiff had incurred on behalf of the Vessel, including payment of dues to defendant-Port Authority---Defendant-Port Authority also filed Admiralty suit for recovery of its Port charges-High Court decreed both the suits, however, claim of defendant-Port Authority was held to have preference over the claims of other decree holders including plaintiff---Defendant-Vessel, having already been arrested under suit filed by other claimants, was put to auction, but amount realized from sale was less than the decretal amount of suits in question; and since, defendant had priority over the other claimants, the entire amount of sale along with profits earned therefrom, was released in its favour---Plaintiff contended that the suit filed by defendant did not fall within Admiralty Jurisdiction of High Court, as S.3(2) (m) of Admiralty Jurisdiction of High Courts Ordinance, 1980 did not cover the 'Port charges', as the same was in respect of dock charges and equipment, which were brought for construction or repair of ship and not in respect of ships which were normally birthed or anchored within the port area, and that defendant should have invoked either provisions of Port Qasim Authority Act, 1973 or original civil jurisdiction of High Court for detaining and attachment of the Vessel, and that only principal amount, out of the amount realized from sale of the Vessel, was to be paid to defendant, and profits earned on such amount should have been distributed amongst the other claimants including plaintiff---Defendant's plea that plaintiff could not challenge judgment and decree passed in its favour, as plaintiff was not aggrieved by the same, and that, being Port Authority, its claim fell within Admiralty Jurisdiction of High Court---Validity---Section 3(2) (m) of Admiralty Jurisdiction of High Courts Ordinance, 1980 covered the claim of Port Authority in respect of birthing of ship and provision of other facilities---Word 'or' in between 'ship' and 'dock charges' was to be read disjunctively (that was 'any claim in respect of dock charges or dues') and not conjunctively---Section 3(2)(m) of Admiralty Jurisdiction of High Courts Ordinance, 1980 started with 'any claim', which was in respect of either 'construction of a ship', 'repair of a ship' and 'equipment of a ship' and then 'any claim in respect of dock charges or dues'---Defendant's claim fell within Admiralty Jurisdiction as provided in S.3(2) of Admiralty Jurisdiction of High Courts Ordinance, 1980, and objection of plaintiff in that regard was misconceived---Plaintiff could not agitate the decree issued in favour of defendant, as plaintiff itself was in possession of decree in its favour and could only agitate rejection or reduction of its entire claim by High Court and not with regard to what had been allowed to others---Under S.21 of Port Qasim Authority Act, 1973, defendant, to recover its lawful dues and demands, could arrest and sell the Vessel on its own and proceeds of such sale might have been utilized for its specified claim---Such authority and power was a lien under Port Qasim Authority Act, 1973---Section 23 of Port Qasim Authority Act, 1973 was an alternative to said powers exercisable under S.21 of the Act---Under S.23 of the Act, defendant had paramount right, which had overridden claims of all other creditors or decree holders including secured creditors---Vessel in question, having been sold by Official Assignee of High Court, such sale and release of the vessel could not have been executed without consent of defendant---Defendant (Port Authority) could exercise its authority under S.21 or 23 of Port Qasim Authority Act, 1973 for recovery of its dues and port charges, in situations where the vessel arrived at port and did not pay its charges; however, no such power needed to be exercised, as the vessel had already been arrested by order of High Court passed under other suits---Vessel in question could not have been sold or delivered to auctioneer purchaser without first settling the dues of defendant---Defendant, after confirmation of sale by the Official Assignee, had refused to release the vessel before settlement of its dues, and the vessel allowed the sailing after show cause notice was issued to Chairman of the Port Authority---Port Authority had, therefore, exercised its right in terms of Port Qasim Authority Act, 1973---Vessel in question was already under arrest, defendant was, therefore, not required, nor that would be appropriate, to detain the same or invoke ordinary civil jurisdiction of High Court under S.9, C.P.C.---Impugned judgment and decree was, therefore, unexceptionable and did not warrant any interference by High Court---Appeal was dismissed in circumstances.

Hong Kong Finance Limited v. m. v. Asian Queen through Nazir High Court PLD 1991 SC 1021; Muhammad Bashir Butt v. M.V. Taheri PLD 1980 Kar. 458; Twaha v. The Master m. v. Asian Queen and 2 others PLD 1982 Kar. 749; British Transport Docks Board v. Owners of the Proceeds of Sale of the Steamships or Vessels Charger, Probe, Vigia, Dideki, Surveyor, Constellation, Errol and Regency and owners of the Steamships or Vessels Vaseran and Pursuit [1968 1 W.L.R.; Q.E.B. Insurance Limited v. The Trustees of the Port of Karachi (through Chairman and others) 1992 CLC 904; ICICI Limited v. Board of Trustees, Port of Calcutta (2005) 10 SCC 284; M/s Maratos & Co. v. Rice Trader and 2 others PLD 1989 Kar. 94 and SEMCO Salvage PTE. Ltd. v. m. v. Kaptan Yusuf Kalka Van through Person Incharge and another PLD 1994 Quetta 51 ref.

Muhammad Bashir Butt v. M.V. Taheri PLD 1980 Kar. 458; ICICI Limited v. Board of Trustees, Port of Calcutta (2005) 10 SCC 284; Ashoke Arya v. M.V. Kapitan Mitos AIR 1988 Bom. 329 and Board of Trustees, Port of Mumbai v. Indian Oil Corporation and another AIR 1998 SC 1878 rel.

Agha Zafar for Appellant.

Abdul Razzak for Respondent.

Date of hearing: 17th September, 2015.

P L D 2016 Sindh 135

Before Irfan Saadat Khan and Shahab Sarki, JJ

GHULAM NABI and 2 others---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.968 of 2014, decided on 16th December, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 35, 397 & 561-A---Penal Code (XLV of 1860), Ss.302(b), 324 & 353---Pakistan Arms Act (XX of 1965), S.13(d)---Concurrent running of sentences---Inherent jurisdiction of High Court---Accused was convicted and sentenced to imprisonment for life on four counts and was also convicted for other offences---Plea raised by the accused was that all sentences were require to run concurrently---Only one incident had taken place but different offences were involved, therefore, four different FIRs were lodge din same police station and even the Investigating Officer was the same---High Court found it fit and proper to exercise its discretion in favour of accused persons for concurrent running of sentences---High Court directed that all the sentences awarded to the accused persons be run concurrently---Application was allowed accordingly.

Ali Akbar Shah v. The State PLD 2004 Kar. 589; Abdul Ghafoor v. The State 2007 YLR 700; Shamshad Hussain alias Shamla v. The State 2002 MLD 1079; Ather Hussan v. The State 2010 MLD 1913 and Nek Mohammad and another v The State PLD 2007 Kar. 62 rel.

Sikander Ali Junejo for Applicants.

Abdul Rehman Kolachi APG for the State.

P L D 2016 Sindh 139

Before Shahnawaz Tariq, J

SIKANDAR ZULQARNAIN---Petitioner

Versus

Messrs HABIB BANK LTD. and 9 others---Respondents

Criminal Miscellaneous Application No.260 of 2013, decided on 4th December, 2014.

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

----S. 94(b)---Application seeking direction to respondents to produce documents---Exercise of power by High Court under section 94(b), Cr.P.C.---Scope---Pendency of civil proceedings in a controversy would not be a bar to exercise of powers under S.94(b), Cr.P.C.---Application under S.94, Cr.P.C. by Investigating Officer, inter alia, seeking direction to respondents (Banks and the Federal Board of Revenue) to provide complete details of accounts and tax deduction of persons accused of embezzlement and fraud---Contention of accused persons was inter alia, that civil suit pertaining to the same controversy was pending whereby Nazir of the Court was appointed to collect details of transactions and arbitrator had also been appointed; therefore, present application was not competent---Validity---Section 94(b) of the Cr.P.C. empowered the High Court to grant permission to police to investigate the question of embezzlement and misappropriation of money allegedly belonging to claimant, therefore, while granting such permission, the court had to exercise said powers compassionately, keeping in mind fairness and transparency of the process of investigation---Accused persons, in the present case, allegedly committed cheating and dishonestly deposited amounts in accounts other than accounts of the firm; and the Investigating Officer had already discovered 18 such accounts and collected details of the same to complete process of investigation so that final challan may be submitted---High Court observed that at such stage, if on mere plea of pendency of a civil suit, the process of investigation was restricted then the same would defeat the very purpose of the investigation and cause deviation from the settled norms of administration of justice---Permission in terms of S.94(b) of the Cr.P.C. was granted and respondents were directed to provide required details to the Investigating Officer---Application was allowed, accordingly.

Syed Mohammad Ahmed v. The State 1972 SCMR 85; Akhtar Hussain Zaidi v. The State PLD 1985 Lah. 662 and Ahmed Bin Saleem v. The State and 3 others 1990 PCr.LJ 838 ref.

Central Bank of India Ltd. v. P.D. Shamdasani AIR 1938 Bom. 33 and Haji Muhammad Latif v. Farman Ali 1990 SCMR 1299 distinguished.

(b) Administration of Justice--

----Civil and criminal proceedings---Criminal investigation in view of pendency of civil proceedings---Scope---Institution of civil proceedings placed no restriction or embargo upon lodgment of FIR against accused regarding commission of fraud, cheating and misappropriation by the party claiming to have been defrauded---Pendency of civil suit would not obstruct or hamper process of investigation to collect the necessary and essential evidence from concerned forums---Through civil suit aggrieved person could seek settlement of accounts and recovery of deprived amount while by lodgment of FIR the accused could be punished for committing the offence of cheating, fraud and misappropriation---Civil proceedings and criminal prosecution pertaining to same cause of action or dispute could be continued simultaneously before appropriate forums and criminal proceedings could not be stopped for the final decision of civil proceedings or vice versa.

Mr. Ali Hyder Saleem, APG for the State

Mr. Umar Soomro, advocate for complainant Mr. Mehmood Alam Rizvi, advocate for accused

P L D 2016 Sindh 146

Before Salahuddin Panhwar, J

THE STATE---Petitioner

Versus

WADERO MOHABAT KHAN KHOSO and 4 others---Respondents

Constitutional Petition No.S-1057 of 2015, decided on 30th September, 2015.

(a) Constitution of Pakistan--

----Art. 9---Safety and enforcement of fundamental rights---Duty of State---Scope---It is the absolute and exclusive responsibility of State through its organs (parts) to ensure safety and enforcement of fundamental rights.

(b) Sindh Children Act ( XII of 1955)---

----Ss. 23 & 62---Constitution of Pakistan, Arts. 4 & 10-A---Jirga, decisions of---Validity---Protecting reputation of accused or victim children---High Court took notice of a news item highlighting a person who intended to sell his daughters in order to enforce decision passed by Jirga against him for payment of huge amount and in case of failure for marriage of his daughters---News was flashed that one person was moving in the town with demand and slogan that he was poor and not in a position to lays amount imposed by Jirga, so he was setting his daughters---Validity---Custom or usage of 'Jirga' was in derogation to fundamental rights, in particularly that of Art.20-A of the Constitution, and the same was void---Jirga could not dress itself up with status of a 'Law Authority' which was al ways vested with jurisdiction to enforce its verdict, as holding of Jirga was illegal---Protection was provided towards 'reputation' as was prima facie appearing from the provisions of Art.4 of the Constitution, therefore, publication of names and identity of victims of such act would cause damage to reputation of such family---Pakistan Electronic Media Regulatory Authority was supposed to ensure that no names, videos, photos of child victim or accused or females would be circulated in print media---High Court directed Deputy Commissioner to show necessary action as and when he would notice or acquire knowledge of any such thing, particularly where dignity of a person was attached or involved---High Court also directed Pakistan Electronic Media Regulatory Authority and all information related concerned to ensure that no name and photos of victims or child accused were published as per requirement provided by Sindh Children Act, 1955---Petition was disposed of accordingly.

Rohaifa v. Federation of Pakistan PLD 2014 SC 174; Watan Party v. Federation of Pakistan PLD 2011 SC 997; Human Rights Case No.20107-G of 2013 (2014 SCMR 287 and Muhammad Aslam (Amir Aslam) v. District Police Officer 2009 SCMR 141 ref.

Shahzado Saleem, A.P.G. along with Shah Zaman Khuhro, Deputy Commissioner, Jacobabad and Zafar Iqbal Malik, SSP Jacobabad.

D.O. Education, Jacobabad.

Counsel for Respondent No.1 called absent.

P L D 2016 Sindh 153

Before Salahuddin Panhwar, J

ALTAF UR RAHMAN alias ALTAF and another---Applicants

Versus

ADDITIONAL SESSIONS JUDGE, TANDO ADAM and 3 others---Respondents

Criminal Revision Application No.S-188 of 2013, decided on 24th December, 2014.

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

----S. 337(1)---Term 'Any person'---Scope---Provision of S.337(1) Cr.P.C. should not be limited to only those who have been sent as 'accused persons' in relevant column of charge sheet/Challan---Only requirement is that such person is supposed to have been directly or indirectly concerned in or privy to the offence.

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

----Ss. 337, 338, 339 & 494---"Tender of pardon" and "withdrawal from prosecution"---Distinction---Line causing difference between two provisions, is that withdrawal under S.494, Cr.P.C. earns acquittal/discharge while S.337, Cr.P.C. turns status of one into 'witness of prosecution' under a condition of his making a full and true disclosure of whole of the circumstances within his knowledge having nexus to the offence---Acquittal or discharge, if require to be challenged can be challenged through appeal or revision as the case may be however, pardon tendered under S.337 or 338, Cr.P.C. does not bar trial of such person on failure of fulfilling the conditon, as is evident from S.339, Cr.P.C.

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

----S. 337---Tender of pardon---Court, jurisdiction of---Competence of Court, trying the case to tender or order officer in charge of prosecution in the district to tender a pardon; in either case, it is the Court alone which is competent of the purpose.

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

----Ss. 164 & 337---Qanun-e-Shahadat (10 of 1984), Art.16---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-i-amd---Tender of pardon---Right of accused---evidence of accomplice---Scope---Accused persons were aggrieved of the order passed by Trial Court granting pardon to a co-accused and directing Magistrate to record his statement as approver---Validity---Law nowhere made any exception to statement of an accomplice nor provided an exception to normal procedure of trial when prosecution had a witness to whom pardon had been granted---Credibility and veracity was required to be examined by Trial Court and accused had every right to question credibility of such witness but at due stage and time---Accused would have a fair opportunity of cross-examining such person so as to shatter his credibility and even to question the character thereof---High Court declined to interfere in the matter as mandatory requirement of consent/permission from legal heirs, stood complied with---Revision was dismissed in circumstances.

Ghulamulla.h Chang for applicants.

Amanullah Khan Jadoon for Respondent No.3.

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

P L D 2016 Sindh 161

Before Aqeel Ahmed Abbasi and Muhammad Junaid Ghaffar, JJ

UNITED HUMAN RIGHTS COMMISSION PAKISTAN and others---Petitioner

Versus

GOVERNMENT OF SINDH and others---Respondents

Constitutional Petitions Nos. D-3974 of 2012, D-4166, D-4183, D-4753 of 2013, decided on 5th August, 2015.

Provincial Motor Vehicles Rules, 1969---

----R. 2---Status of "Qingqi Motorcycle Rickshawa" (three wheelers)---Plea of petitioner was that three wheelers "Qingqi Motorcycle Rickshaws" plying in the cities without any registration or route permit should be banned---Validity---"Qingqi Motorcycle Rickshaws" (three wheelers) did not meet the requirements of law and requisite specifications---Said Rickshaws did not have any fitness certificate, route permit or even registration but were roaming on the roads and highways in violation of rules and regulations---no action had been taken against such violations---large number of 'Qingqi Motorcycle Rickshaws" (three wheelers) had been allowed on the roads with the connivance of public functionaries---Description of said Rickshaws did not match with the description as prescribe din R.2 of Motor Vehicles Rules 1969---Authorities were directed to take legal action against such "Qingqi Motorcycle rickshaws" (three wheelers) plying on the roads without any fitness certificate, route permit and registration certificate---Such action might include issuance of challans, imposing fine and impounding of such illegal vehicles in accordance with law---Constitutional petition was accepted in circumstances.

Javed Ahmed Chhatari for Petitioner (in C.P.No.D-4165/2013).

Jamil Ahmed Virk for Petitioners (in C.P.Noo.D-4183/2013)

Munawar Ali for Petitioner (in C.P. No.D-4753/2013).

Petitioner through Secretary General Rana Faizul Hasan (in C.P.No.D-3974/2012).

Saifullah AAG along with Ms. Nasreen Sehto, State Counbsel.

Ghazanfar Ali Qadri, Secretay, PTA DSP Riaz Jawed Bhutto on behlf of DIG, Traffic, Fazalullah Arbab, Deputy Director, Excise and Taxation Department, Waheed Ahmed Siddiqui, AETO, Yar Muhammad, Focal Person, Transport Department and Fouzia Sikandar, Law Officer, Transport Department.

Dates of hearing: 16th April and 3rd August, 2015.

P L D 2016 Sindh 169

Before Muhammad Ali Mazhar, J

GLOBAL QUALITY FOODS PVT. LTD. through Company Secretary---Plaintiff

Versus

HARDEE'S FOOD SYSTEMS, INC.---Defendant

Suit No.838 of 2012, decided on 19th November, 2015.

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

----S. 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for permanent injunction-Temporary injunction, refusal of---Claim as to exclusive right to run food business---Prima facie case, balance of convenience and irreparable loss/injury---Plaintiff sought direction to defendant to restrain pending disposal of the suit from awarding licence to operate/develop licensed Restaurants for the Province of Sindh to any other person except the plaintiff and further direction to give necessary licence and/or approval to the plaintiff to develop defendant's restaurants under International Development Agreement (IDA) and to provide development schedule for the same accordingly---Plaintiff filed the present suit on basis of an Assignment Agreement, which it had executed with defendant's predecessor-in-­interest, (GFC), whereby, the said organisation with acceptance and endorsement by the defendant, had transferred all its rights and liabilities to the plaintiff pertaining to Multi-Unit License Agreement (MULA), on basis of which the plaintiff and the defendant had executed a New Development Rider (NDR) for initiation of Restaurants---Plaintiff contended that in terms of IDA, MULA and NDR and the Assignment Agreement, it had exclusive right to open, operate and develop defendant's Restaurants in the Province uncle- the provisions of IDA, which had an overriding effect on the other said correlated agreements--- Validity---Certain clause of the IDA, laid down right and/or opportunity to the developer to enter into MULA and NDR, so that the developer might develop and operate licensed restaurants at different sites in the developed territory---Said provision further provided that each licensed restaurant developed pursuant to IDA would be opened and operated only in full compliance with MULA and NDR---Clause of IDA, however, further provided that as long as the developer was in full compliance, the defendant, would not develop or operate any said Restaurant in the development territory during the development term---Another clause of IDA clearly mentioned that the licensee had been granted non-exclusive right to open each licensed restaurant in the development territory--- Yet another clause of IDA further provided that the licensee had no exclusive right to use the System or proprietary marks of defendant---Said provision further provided that nothing in the licence agreement prohibited defendant from, during or after agreement term, developing, opening or operating or licensing any third party to open or operate, develop any type of restaurant, including licensed Restaurant at any location---Plaintiff was claiming right of exclusivity under said Assignment Agreement, which only spoke of the assignment of rights emanating from the MULA without mentioning any right under IDA---On basis of said assignment agreement, not only the defendant had accepted the terms of the assignment but also signed the NDR with the plaintiff, which only related to developing and opening and operating of only one licensed Restaurant at the licensed location---Rights under IDA had not been assigned in said Assignment Agreement, for the reason that the defendant had already served notice of termination of the IDA to the GFC, against which no legal action had been initiated against the defendant---Rights under MULA were confined to the opening of single restaurant without conferring any exclusive rights---As manifested from the terms of the Assignment Agreement the parties were fully cognizant of the fact that IDA was no more in force, and for the same reason, all the covenants of the Assignment Agreement had been confined to the right of the MULA and the defendant had only consented to the assignment of MULA-Plaintiff failed to make out prima fade case to claim exclusive rights of operation in the Province-Balance of convenience did not fall in favour of plaintiff---Question of any irreparable loss or injury did not exist without any backing or patronage or exclusive rights-Plaintiff failed to make out the case of injunctive relief---Application for grant of temporary injunction was declined by High Court in circumstances.

Messrs Nawab Brothers Ltd. Karachi v. Project Director, Special Projects, Planning and Development Department, Karachi and another 1981 CLC 638; Rana Abdul Hafeez v. Muhammad Ali Khan and 12 others 2005 CLC 1377; Muhammad Aref Effendi v. Egypt Air 1980 SCMR 588; Mrs. Naz'Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540 and Tradesmen International (Pvt.) Ltd. v. Federation of Pakistan and others 2005 MLD 541 distinguished.

Roomi Enterprises (Pvt.) Ltd. v. Staffore Miller Ltd. and others 2005 CLD 1805; Bolan Beverages (Pvt.) Ltd. v. Pepsico INC and others PLD 2004 SC 860 and Far Esatern Impex (Pvt.) Ltd. v. Quest International Nederland BV and others 2009 CLD 153 ref.

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

----Ss. 3(2) & 4---Arbitration Act (X of 1940), S.34---United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), Art. II---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction---Power of court, where arbitration agreement is ordered not to apply to a particular difference, to order that a provision making an award a condition precedent to an action shall not apply to such difference---Enforcement of arbitration agreements---Jurisdiction of court---Recognition of arbitration agreements---Defendant, contended that under International Multi-Unit License Agreement (MULA), the dispute in present suit was to be resolved through arbitration---Plaintiffs took the plea that its claim did not fall within ambit of said arbitration clause, as the same was covered under one of the exceptions provided under MULA---Validity---Clause of IDA, provided that neither party would be compelled to arbitrate any claim that had commenced after development term/period but which related to any claim excepted from arbitration under the enforcement provisions---None of the IDA rights had been assigned to the plaintiff---Plaintiff was stranger to IDA and therefore could not set into motion arbitration clause---No dispute existed between the parties in relation to MULA, under which the plaintiff was already operating one licensed restaurant mentioned in New Development Rider (NDR), which had provided that defendant and the licensee/plaintiff were executing said NDR so that the terms of MULA would govern the development and operation of the licensed restaurant---Present (dispute) suit had been filed to protect the alleged rights emerging from IDA-Section 3(2) of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 provided that application to stay the legal proceedings pursuant to provisions of Art.II of UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958---Pakistan was signatory to United Nations' Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958---Article II of the Convention provided that each contracting State would recognize written agreement, under which the parties undertook to submit to arbitration all or any differences which had arisen or which might arise between them in respect of their defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement through arbitration---Section 4 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 provided that party might apply to the court, in which proceedings had been brought, to stop the proceedings, insofar as they concerned that matter---Section 4(2) of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 provided that court would refer the parties to arbitration, unless the court found that the arbitration agreement was null and void, inoperative or incapable of being performed---Plaintiff had not raised or highlighted any arbitral dispute germane to MULA---Claim of exclusive rights by the plaintiff in terms of IDA could not become the subject matter of arbitration---No purpose would be achieved to refer present parties to arbitration as the same would be futile exercise without any corporal outcome---Application for reference to arbitration was dismissed in circumstances.

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

----O. VII, R. 11---- Specific Relief Act (I of 1877), S. 54----Suit for permanent injunction---Rejection of plaint---Cause of action, existence of---Determination---Choice of forum, law, etc., determination of-- Permanent injunction, relief of---Scope---Private International (Conflict of laws), principles of---Applicability---Exclusive jurisdiction clause---Plaintiff had filed present suit for permanent injunction claiming exclusive right to open, operate, and develop licensed Restaurant under International Development Agreement (IDA) and sought direction against the defendant, to restrain him to grant licence for said purpose to any other person except the plaintiff---Defendant sought rejection of the plaint on ground that the same did not disclose any cause of action, as said claim of the plaintiff was not supported by any document--- Validity---Present suit was for permanent injunction alone, in which ancillary relief as well as consequential relief were one and the same---Clause of IDA recounted the choice of law, choice of forum, limitation period, waivers, remedies not exclusive, injunctive relief and survival of enforcement provisions---Said provision lucidly postulated that any claim arising out in connection with, or in relation to, IDA, would be governed by and construed in accordance with the laws of jurisdiction in United States, where principal offices of defendant were located as of effective date without regard to conflict of laws principle---In the same clause, choice of forum was also provided with respect to claims, which were not subject to arbitration, or that might be pursued by means other than arbitration, and the developer might file any claim against defendant only in the Federal or State court having jurisdiction in the City, County and State, in which defendant had its Principal offices---Provision regarding choice of law and choice of forum had also been provided in Multi-Unit License Agreement (MULA), but present suit had not been filed to agitate rights of MULA; whereas, the plaintiff wanted to hold back IDA rights in its favour through present proceedings---Resort, therefore, should have been made in accordance with terms and conditions of IDA---Plaintiff should have sued the defendant for declaratory relief within the agreed jurisdiction of laws and forum and not in Pakistan-Plaintiff did not ask for any declaration of IDA rights but permanent injunction alone---Question as to whether plaintiff was entitled to claim exclusive rights or not could not be decided by High Court, (in Pakistan) in view of the bar contained in the choice of law and selection of forum---Stay of present suit, instead of rejection of plaint, would advance cause of justice, as return of plaint would simply not serve the purpose---If the plaintiff was interested to set the law into motion within the agreed jurisdiction of court, then it had to abide by and follow the protocol of applicable law, and mere endorsement with return of plaint would not be sufficient to institute the plaint in the competent court of law---High Court, however, observed that instead of rejecting the plaint it would advance the cause of justice to stay the suit giving option to the plaintiff to institute the legal proceedings for seeking declaration against the defendant in competent court of law---Application for rejection of plaint was disposed of accordingly.

Messrs Raziq International (Pvt.) Ltd. v. Panalpina Management Ltd. PLD 2014 Sindh 175 rel.

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

----S. 28----Civil Procedure Code (V of 1908), Ss. 9 & 20-Agreement in restraint of legal proceedings void---Saving of contract to refer to arbitration disputes that may arise---Suit barred by such contracts saving to contract to refer questions that have already arisen---Jurisdiction of court---Exclusive jurisdiction clause-Choice/selection of forum---Principles---Exclusive jurisdiction clause in an agreement cannot be ignored lightly merely at the whims of one of the parties to the contract, unless there is strong cause to displace the forum that the parties have agreed to resolve their dispute---Choice of forum and/or selection of forum have much significance---All local and foreign agreements containing choice or selection of forum clause are to be seen minutely---Two or more courts having jurisdiction to try a suit and agreement between the parties, any dispute arising between them shall be tried only by one of such courts, is not contrary to public policy, as the same would neither contravene provisions laid down in S.28 of Contract Act, 1872 nor violate in any manner provisions of Ss.9 or 20, C.P.C.

(e) Private International Law (Conflict of Laws)----

----Jurisdiction and choice of law---Forum non conveniens, doctrine of---Connotation---Jurisdiction clause, Scope and reach of---Legal effect of valid jurisdiction clause---Principles.

`The Conflicts of Laws', by Dicey, Morris and Collins quoted.

Messrs Raziq International (Pvt.) Ltd. v. Panalpina Management Ltd. PLD 2014 Sindh 175 rel.

(f) Words and phrases---

----Term "Forum non conveniens"---Connotation.

Black's Law Dictionary ref.

(g) Forum Non Conveniens, doctrine of----

----Scope---Doctrine of 'forum non conveniens' means that some other forum is more proper in the sense of more suitable ends of justice---Choice of forum selection clause should be honoured by parties and enforced by courts---Said clauses cannot be objected, being improper because it tends to oust a court's jurisdiction, in hardly more than a vestigial legal fiction.

Dr. Muhammad Farogh Naseem for Plaintiff.

Muhammad Omer Soomro for Defendant.

Date of hearing: 2nd July, 2015.

P L D 2016 Sindh 191

Before Sadiq Hussain Bhatti and Aftab Ahmed Gorari, JJ

JUMAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Jail Appeal No.D-337 and Confirmation Case No.D-21 of 2011, decided on 9th December, 2015.

(a) Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979)----

----Ss. 17(4), 20, 24 & 7----Constitution of Pakistan (1973), Arts. 203-C to 203-GG---Haraabah; Haraabah liable to Tazir---Proof of theft liable to Hadd---Federal Shariat Court, exclusive jurisdiction of---Bar of jurisdiction---Scope---Appeal before High Court---Permissibility---Appellate forum, determination of---Principles---Charge, not the sentence, determined the appellate forum---Trial court, having convicted accused persons under S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, sentenced one of them to death as Qisas and sentenced the other to suffer life imprisonment as Tazir---Question of law before High Court was that whether it was the charge or the sentence which would decide the forum of appeal---FIR had been lodged, charge framed and accused tried, under S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Result of trial would not change the jurisdiction of (appellate) court---Charge would determine the forum---On account of non-availability of evidence satisfying the standard of proof as required under S.7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the sentence was to be inflicted by mentioning a section of P.P.C. within the meaning of S.20 of the Ordinance---Mere passing of the sentence under Tazir was not determinative of the forum---Under S.24, Second Proviso of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the sentence less than two years only had been made appealable before High Court---Present appeals being covered under section 24 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with Art. 203-DD of Constitution, Federal Shariat Court had exclusive Jurisdiction to entertain, hear and decide the appeals-- -High Court transferred the appeals to Federal Shariat Court.

2009 PCrLJ 747 and PLD 2002 SC 534 distinguished.

2010 YLR 657, 2001 SCMR 1142 and 2013 PCr.LJ 105 ref.

Muhammad Akbar v. State 2003 YLR 1339; Karamat Khan v. State 2002 PCr.LJ 1868, Muhammad Juman v. State 2004 MLD 278; Moula Bux Gello v. State 2003 UYLR 2956 and Muhammad Safeer v. State 2004 PCr.LJ 899 rel.

Syed Tarique Ahmed Shah and Ayatullah Khawaja for Appellants.

Shahzado Saleem, Nahiyoon, APG for Respondent.

Date of hearing: 9th December, 2015.

P L D 2016 Sindh 197

Before Nadeem Akhtar, J

Mrs. RATNA DEVI, W/o Justice (Retd.) Rana Bhagwandas: In the matter of

S.M.A. No.73 of 2015, decided on 25th June, 2015.

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

----S. 372---Succession certificate grant of---Hindu Law---Succession-Scope---Deceased was last full owner of all the property left by him---Said properties should devolve upon his legal heirs according to the rules of succession---Daughters during life time of their mother under Hindu law of succession were not entitled to inherit from the estate of their father---Such right of daughters would accrue only after the death of their mother---Daughters would succeed if their mother died daring the lifetime of their father---Heritable right would accrue to the daughters not on the death of their father but after the death of their mother though they were not heirs of their mother but of their father---Daughter of deceased was not entitled to inherit from the estate as her mother and the widow of the deceased was alive and not because that she got married during the lifetime of deceased---Movable and immovable properties left by the deceased would be inherited by his widow and sons---Widow would take only a limited interest i.e. 'the widow's estate' in the estate of her husband and in the event of her death the estate would be inherited not by her heirs but by the next heirs of her husband i.e. 'reversioners'---Widow had filed her affidavit surrendering and relinquishing her "life interest" in favour of her sons/other legal heirs of the deceased---Movable and immovable properties left by the deceased be divided amongst his two sons---Application for grant of succession certificate and letters of administration was allowed in circumstances.

(b) Hindu Law---

----Inheritance---Rule of survivorship---Scope---Rule of survivorship would apply to joint family property---If at the time of his death the owner of property was a member of a joint and undivided family i.e. 'coparcenary' then his undivided interest in the coparcenary property would devolve on his coparceners by survivorship.

(c) Hindu Law---

----Inheritance---Rule of succession---Scope---Rule of succession would apply to the property held in absolute severalty by the last owner.

(d) Hindu Law--

----Inheritance---Window would take only a limited interest i.e. the widow's estate' in the estate of her husband and in the event of her death the estate would be inherited not by her heirs but by the next heirs of her husband i.e. `reversioners'---Widow might alienate her life-interest in the estate but she had no power to dispose of the corpus of the immovable property inherited by her except when there was legal necessity or when the alienee had acted honestly in the belief that the necessity existed or when there was such consent of the next reversioners to the alienation and when it was a surrender by her of her whole interest in the whole estate in favour of the nearest reversioner at the time of alienation.

(e) Words and phrases--

----'Last full owner'---Meaning-'Last full owner' of property was one who held the same absolutely at the time of his death.

Abdul Qadir Khan for Petitioner.

Dates of hearing : 26th, 29th May, 2015 and 25th June, 2015.

P L D 2016 Sindh 201

Before Faisal Arab, C.J. and Zafar Ahmed Rajput, J

Messrs RANIPUR SUGAR MILLS (PVT.) LTD. through Director Operations---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Agriculture Department and another---Respondents

C.P. No.D-1039 of 2014, decided on 23rd April, 2015.

(a) Agricultural Produce Markets Act (V of 1939)---

----Ss. 19 & 6---Notification No. SO (PMP)/5(377)/2006 dated 07.02.2011-Agriculture Produce Markets Rules, 1940, R. 29 (11)---Sale and purchase of agricultural produce---Market fee, payment of---Scope---Market Committee (Committee) issued revised market fee and petitioners were directed to pay the same---Contention of petitioners was that Agricultural Produce Markets Act, 1939 had been repealed and impugned notifications were not enforceable---Validity---Agricultural Produce Markets Act, 1939 had been repealed by Sindh Wholesale Agricultural Produce Markets (Development and Regulation) Act, 2010 but statutory functions had not been transferred to market committees by the Markets notified under Agricultural Produce Markets Act. 1939---Government and Committee were still operating and exercising all the powers under the said Act---Impugned notices and levy of market fee under Agricultural Produce Markets Act, 1939 were neither illegal nor without authority---Petitioner (Sugar Mill) was bound to obtain licence form Market Committee and was liable to pay market fee---Sugar Mill had paid market fee from 1998-99 to 2011-12 but had failed to clear its liabilities---Market Committee had spent Rs.1,02,63.939/- on construction of roads and parking area of growers, vehicles in the premises of petitioners' mill---Amenities/facilities to the growers, dealers as well as public could not be provided unless fees schedule was revised from time to time---Schedule for recovery of market fee was lastly revised in the year 1980---Earlier schedule did not meet the expenditure of Market Committee and revision of market fee was justified---Said revision in market fee had been approved by the Government after publication in the leading national newspapers---No illegality was pointed out in the impugned notices---Constitutional petition was dismissed in circumstances.

Fauji Sugar Mills v. Market Committee Tando Muhammad Khan 1988 SCMR 155 and Matiari Sugar Mills v. Government of Sindh PLD 1999 Karachi 424 ref.

Noor Sugar Mills Ltd. v. Market Committee and others PLD 1989 SC 449; Pakistan Flour Mills v. Government of Sindh and others 2003 SCMR 162; Bawany Sugar Mills Ltd. v. Market Committee , Badin and another PLD 1983 Kar. 1 and Messrs Mirpurkhas Sugar Mills Ltd. v. Government of Sindh through Secretary 1993 SCMR 920 rel.

(b) Agricultural Produce Markets Act (V of 1939)--

---Preamble---Scope---Agricultural Produce Markets Act, 1939 was promulgated to provide a uniform law with regard to better regulation of purchase and sale of agricultural produce; to establish markets for agricultural produce throughout the province and to establish Market Committee to provide amenities/facilities to the growers, dealers as well as public.

Muhammad Siddique Mirza for Petitioner.

Ansari Abdul Lateef for Respondent No.2.

Date of hearing: 12th March, 2015.

P L D 2016 Sindh 207

Before Faisal Arab, C.J. and Muhammad Iqbal Kalhoro, J

Messrs PAKISTAN GAS PORT LTD.---Appellant

Versus

Messrs SUI SOUTHERN GAS CO. LTD. and 2 others---Respondents

M.A. No.2 of 2015, decided on 2nd September, 2015.

Per Muhammad Iqbal Kalhoro, J--

(a) Public Procurement Rules, 2004---

----R. 36---Open competitive bidding---Technical and financial proposals---Single stage-two envelope procedure---Scope---In a single stage-two envelope procedure two separate envelopes containing financial and technical proposals separately are submitted and initially envelope marked as technical proposal is opened for evaluation while the envelope marked as financial proposal is retained by procuring agency---Upon approval of technical proposals, the financial proposals are publically opened at the appointed time.

(b) Public Procurement Rules, 2004---

----Rr. 38 & 44---"Acceptance of bids"---Meaning---Bid is accepted only when in addition to being the lowermost financially, it is not in conflict with any other law, rules, regulations or policy of Federal Government and it culminates into procurement contract in terms of Rr.38 & 44 of Public Procurement Rules, 2004.

(c) Public Procurement Rules, 2004--

----R. 41---Public Procurement Regulations, 2008, Regln. 5---Term "confidentiality"---Scope---Procuring company is required to guard relevant information till the award of contract is arrived at---Refusing to furnish such information by procuring company is a lawful act.

(d) Public Procurement Rules, 2004---

----Rr. 35, 36, 41 & 48(5)---Contract Act (IX of 1872), S. 2(a)(b)(d) & (e)---Open competitive bidding---Second lowest bidder---Vested right---Procuring company floated tenders for setting up a Liquefied Natural Gas import terminal for storage and regasification---Appellant and respondent were qualified for the tender and respondent was the lowest bidder---Grievance of appellant was that there were some deficiencies in the bidding documents of respondent therefore, appellant was entitled to get the tender---Grievance petition filed by appellant before authorities was dismissed---Validity---Law did not recognize conferment of any right on the second lowest bidder to the contract in the face of disqualification of the lower most bidder---Even the one having the lowest bid had no absolute title or claim to the award of the contract---Efforts to seek enforcement of rights to a contract were justifiable and could be a strong basis for an action (lis) to be brought in the Court when a contract had come into existence---If for certain reasons the contract was not executed and the offer or proposal had not become a promise against some consideration as provided under S.2(a)(b)(d) and (e) of Contract Act, 1872, no contract came into existence creating certain rights in favour of parties that might be enforced through court's intervention---Bidder company's decision to rebid the whole process did not suffer from any illegality warranting interference from High Court but on the contrary it was set to improve public confidence over working of bidder company and was the most befitting step to avoid long litigation---Lowest bidder could not claim its right to the contract to be absolute and unquestionable till acceptance of its bid and signing of the contract---Bidder company acted lawfully under R.33 of Public Procurement Rules, 2004, to cancel all bids---Appeal was dismissed in circumstances.

Khawaja Ahmad Hassan v. Government of Punjab and others PLD 2004 SC 694; Messrs Sh. Abdul Raheem, Allah Ditta v. Federation of Pakistan and others PLD 1988 SC 670; Talib Hussain v. Board of Intermediate and Secondary Education, Multan 1991 SCMR 1806; Jafari and Co. v. Tehsil Municipal, Administration, Sheikhupura 2009 YLR 1994; Dr. Raja Muhammad Kamran v. Shaheer Construction 2013 MLD 118; Shakeel Ahmed v. Mst. Kausar Parveen and others 2014 CLC 524; Mst. Saeeda v. Province of Punjab and others 2013 CLC 454; Kh. Muhammad Asif v. Federation of Pakistan PLD 2014 SC 206; Asif Fasihuddin Khan Vardag v. Government of Pakistan 2014 SCMR 676; Petrosin Corporation (Pvt.) Ltd v. Singapore and 2 others 2010 SCMR 306; Messrs Poddar Steel Corporation v. Ganesh Engineering Works and others 1991(3) SCC 273 and 2015 SCMR 630; 2013 SCMR 817 and 2013 CLC 1780 ref.

Per Faisal Arab, C J.--

(e) Public Procurement Rules, 2004---

----Rr. 33, 34, 35, 36, 41 & 48(5)---Open competitive bidding--- Discretion, exercise of---Procuring company floated tenders for setting up a Liquefied Natural Gas import terminal for storage and regasification--- Appellant and respondent were qualified for the tender and respondent was the lowest bidder---Grievance of appellant was that there were some deficiencies in the bidding documents of respondent therefore, appellant was entitled to get the tender---Grievance petition filed by appellant before authorities was dismissed and procuring company intended to float a new tender---Validity---Exercise of discretion under Rr.33 & 34 of Public Procurement Rules, 2004, did not give any undue advantage to any of the participants of the bidding process---Such occasion could only arise when procuring agency disclosed its intention to grant contract in favour of any of the bidders---Only in such eventuality decision of procuring agency could come under scrutiny---Rules did not envisage that once bids are invited, the process could be annulled by invoking R.33 of Public Procurement Rules, 2004---Discretion under Public Procurement Rules, 2004, having been conferred upon procuring agency, the Court had to give effect to such rules if the occasion so warranted---Financial bid of neither of the participating bidders was accepted therefore, no complaint as envisaged under rules was competent and could be filed by any of them---As the provisions of R.34 of Public Procurement Rules, 2004, were also invoked, both the bidders were free to participate in new process of bidding as and when announced by procuring company---Disqualification attributed to both the participants in abandoned bidding process would not come in their way in any manner in the new process of bidding.

Muhammad Haseeb Jamali for Appellant

Sajid Zahid for Respondent No.1.

Rasheed A. Razvi for Respondent No.3.

Ashique Janjua, Standing Counsel.

P L D 2016 Sindh 232

Before Nazar Akbar, J

Mst. SUGHRA BEGUM and 4 others---Appellants

Versus

Mst. AKBARI BEGUM and 5 others---Respondents

IInd Appeal No.13 of 2011, heard on 7th September, 2015.

Islamic Law---

----Inheritance---Nephew being son of pre-deceased brother could not claim inheritance even as vested inheritance as his father was not alive at the time of opening of succession---Daughter being sole legal heirs was entitled to half of the estate of the deceased as sharer and the remaining half which was to be treated as residue would also devolve on her---Both the courts below had passed judgments and decrees in violation of law of inheritance---Impugned judgments and decrees being contrary to law were set aside and suit filed by the plaintiffs was dismissed---Second appeal was allowed in circumstances.

Naimatullah Soomro for Appellants

Hakim Ali Siddiqi for Respondents Nos. 1 to 3.

Anwar Baig Mughal for Respondents Nos.4 and 5.

Date of hearing: 3rd August, 2015.

P L D 2016 Sindh 238

Before Salahuddin Panhwar, J

NASRULLAH---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION JACOBABAD and 6 others---Respondents

Constitutional Petition No.S-618 of 2012 and S-65, S-74, S-79, S-134, S-164, S-226, S-284, S-337, S-697, S-814, S-834, S-845, S-932 and S-1079 of 2015, decided on 14th October, 2015.

(a) Words and phrases---

----"Accused"---Meaning.

Black's Law Dictionary (Eighth Edition) rel.

(b) Words and phrases---

----"Abscond"---Meaning.

Black's Law Dictionary (Eighth Edition) rel.

(c) Police Rules, 1934---

----R. 23.25--- Proclaimed offender---Information to public---Object, scope and purpose---Not only every police officer was responsible to arrest a proclaimed offender but the rules permit informing public of such proclamation of arrest---Purpose of informing public could be nothing except to have help from public in causing arrest of such persons.

(d) Police Rules, 1934---

----R. 23.25---Criminal Procedure Code (V of 1898), Ss. 59, 87 & 88---Constitution of Pakistan, Art. 199---Constitutional petition---Proclaimed offender, arrest of---Procedure---Grievance of petitioners was that police had not arrested their accused persons despite they had been declared as proclaimed offenders---Petitioners had further grievance that the accused persons who had been declared proclaimed offenders were leading normal lives without any deterrence of arrest---Validity---If accused persons were enjoying normal rights then purpose and object of declaring one as 'absconder/proclaimed offender' never served its objective nor would so if allowed to continue on the hearts of the files only---High Court issued directions to the police authorities in that respect.

High Court directed the Inspector General of Police, DIGPs and SSPs to:

(i) ensure proper maintenance of relevant register(s), as insisted by Chapter XXIII of Police Rules, 1934, at every police station or at relevant place, as explained by the relevant rules;

(ii) ensure proper checking thereof periodically;

(iii) ensure progress in this regard and reward to rightful and necessary action against negligent;

(iv) ensure attachment of properties of such proclaimed offenders against whom proceedings under section 88, Cr.P.C., stood completed by approaching concerned Mukhtiarkar or head of Revenue authority at district level;

(v) ensure creation of well-organized websites containing details of proclaimed offenders and absconders wanted by concerned Courts as well as Police Stations concerned of relevant districts with friendly use/utility for private informants, whereby information conveyed by the informant should be sent automatically to the concerned I.O./Police Station, SSP and District and Sessions Judge simultaneously. Needless to add here that secrecy of private informant from general public should be ensured;

(vi) ensure wide circulation of information regarding creation of such website(s) for general public in electronic and print media, seeking their cooperation in arrest of those proclaimed offenders and absconders with assurance of their anonymity of informants in order to curb criminal elements at large;

(vii) ensure proper display, communication and update of information/data of absconders/proclaimed on such website periodically;

In second phase, they are further directed to:

a. establish "cells" on districts and divisions levels specifically for the purpose of maintaining record of such persons, shall be fully equipped with modern devices;

b. the Cells shall develop a relation-nexus with NADRA in getting/collecting data of such persons;

c. the Cells shall also develop a mechanism by consultation with Member, Board of Revenue, Sindh, so as to have details of properties of all such persons and to proceed for attachment thereof;

d. the Cells shall also develop a net-working with consultation of State Bank for getting/obtaining details of Bank-accounts of such persons and then to process such information to concerned court(s)/authority for necessary order of attachment/seizure etc. as such money falls within the meaning of section 88(3)(a) of the Code;

e. the Cells shall also communicate details of proclaimed offenders to F.I.A. for placing their names in E.C.L. (Exit Control List).

A detailed report regarding efforts taken towards first phase, shall be communicated to High Court within a period of one month, wherein detailing the issuance of 'reward to deserving'; 'action against negligent' and progress in lessening such mountain of absconders/proclaimed offenders. All the S.H.Os. shall be directed to submit quarterly report to the ILLAQA Magistrate regarding progress towards matter of absconders/proclaimed offenders.

The report regarding second phase, shall also be submitted to High Court within a period of three months showing progress towards such subject. Any further effective addition in first and second phase shall be a mark of appreciation on part of the IG, DIGs and SSPs of Police.

Issue of special funds, meant for investigation, be mechanized in a manner so as to eliminate all chances of intervention of third person and such fund should directly reach the Investigation Officer concerned through cross-cheque(s), which surely will make the investigation offier accountable for speedy and effective investigation without an excuse of having no fuel etc. Needless to add that purpose of 'reward' or allocation of funds towards investigation was always to encourage investigating officers to use all means without a fear of spending his own money (salary) in the name of 'duties'. Separate record shall be maintained on police station(s) level, non-compliance shall expose to the contempt proceedings.

Since, with reference to sections 87 and 88 of the Code, the Court(s) were under heavy obligations(s) to complete process of publication of proclamation (87) and that of attachment (88) within strict meaning purpose and object of the provisions, which could not be achieved unless the Court(s) took advantage of available means particularly that of establishment of I.T. Cell at District Level, therefore, the I.T. personnel working at District level should be engaged to:

\ prepare and maintain data of proclaimed offenders(s) of Judicial District maintaining the statistics thereof on daily basis and to present the same before District and Sessions judge for communication to Sr. Superintendent of police of that District for progress and report thereof, which, if found unsatisfactory, be communicated to DIGP;

\ Fix all cases kept on dormant file on quarterly basis and call progress report in those matters by directing concerned SHOs.

(e) Investigation---

----Conclusion of--- Scope--- Investigation continues till the crime is unearthed and guilt or innocence is determined by courts of law.

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

----Ss.87, 88, 344 & 512--- Proclaimed offender, case of---Procedure---Cases wherein police submits final report/charge sheet by showing all accused as absconders under S.512, Cr.P.C., such report should not be treated as final report---Magistrate should postpone cognizance in terms of S.344, Cr.P.C., by treating such report as an interim report and should fix those cases fortnightly for progress report.

(g) Constitution of Pakistan---

----Art. 199---Constitutional petition---Writ of mandamus---Direction to police officer---Scope---Writ of mandamus is available where one legally bound to perform is guilty of avoiding---Police officer needs no direction from High Court even for performing his duty.

Asif Ali Abdul Razzak Soomro and Safdar Ali Ghouri for Petitioner (in C.P. No.S-618 of 2012).

Naimatullah Bhurgri for Petitioner (in C.Ps. Nos.S-65 and 284 of 2015).

Ali Nawaz Ghanghro for Petitioner (in C.P. No.S-74 of 2015).

Akeel Ahmed Bhutto for Petitioner (in C.P. No.S-79 of 2015).

Muhammad Imran Abbasi for Petitioner (in C.Ps. Nos.S-134 and 834 of 2015).

Mir Muhammad Buriro for Petitioner (in C.P. No.S-226 of 2015).

Mrs. Najaf Shah for Petitioner (in C.P. No.S-337 of 2015).

Mumtaz Ali Brohi for Petitioner (in C.Ps. Nos.S-164 and S-932 of 2015).

Rafique Ahmed K. Abro for Petitioner (in C.Ps. Nos.S-697 and 814 of 2015).

Imdad Ali Junio for Petitioner (in C.P. No.S-845 of 2015).

Muhammad Afzal Jaghirani for Petitioner (in C.P. No.S-1079 of 2015).

Athar Abbas Solangi and Shamsuddin Abbasi Amicus Curiae.

Shahzado Saleem, Assistant Prosecutor General.

Abdul Hamid Bhurgri, Additional Advocate General along with Dr. Sain Rakhio Mirani, DIGP Larkana and Kamran Nawaz Panjutha, SSP, Larkana.

Date of hearing: 8th October, 2015.

P L D 2016 Sindh 263

Before Ahmed Ali M. Shaikh and Abdul Maalik Gaddi, JJ

MUHAMMAD SADIQ---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Interior and 2 others---Respondents

Constitutional Petition No.D-570 of 2015, decided on 28th May, 2015.

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

----Ss. 2 & 3--- Constitution of Pakistan, Arts. 4, 9, 15 & 25---Exit Control List---Criminal/Civil litigation, pendency of---Petitioner was a businessman whose name was entered in Exit Control List---Plea raised by petitioner was that he had been acquitted from courts of competent jurisdiction in cases got registered by Customs department for storing huge quantities of smuggled items---Validity---Cause assigned for placing name of petitioner on Exit Control List was not reasonable for curtailing liberty of a citizen to travel abroad---Such liberty could be curtailed if it was shown that foreign visit of petitioner endangered security of the state and/or was against public interest---No such material was available on record to justify action of authorities---Provisions of Arts. 4, 9. 15 & 25 of the Constitution made it vivid that every citizen had the liberty to travel abroad and enter into Pakistan unless he was precluded under the law made in public interest---Restraining order passed by authorities under S.2(3) of Exit from Pakistan (Control) Ordinance, 1981, was to be made in public interest and validity must be judged on the touchstone of reasonableness and fairness---Mere pendency of criminal or civil litigation against a citizen was no ground to deny freedom as guaranteed by the Constitution to travel within or out of Pakistan---High Court directed the authorities to remove the name of petitioner from Exit Control List---Constitutional petition was allowed in circumstances.

State of the Islamic Republic of Pakistan v. Zulfiqar Ahmed 2005 SCMR 1469; Khan Muhammad Mahar v. Federation of Pakistan PLD 2005 Kar. 252; Messrs United Bank Ltd. v. Federation of Pakistan and others 2014 SCMR 856, Habibullah Niazi v. Federation of Pakistan through Federal Secretary, Ministry of Interior, Pakistan Secretariat, Islamabad and 2 others PLD 2009 Kar. 243 and Saleem Akhtar v. Federation of Pakistan and another PLD 1999 Kar. 177 rel.

Aamir Mansoob Qureshi for Petitioner.

Ainuddin Khan, D.A.G. along with Mirza Tanveer Ahmed, Legal Assistant FIA for Respondents.

Date of hearing: 28th May, 2015.

P L D 2016 Sindh 268

Before Salahuddin Panhwar, J

Mst. RAHAMAT BIBI and another---Petitioners

Versus

STATION HOUSE OFFICER, KARAN SHARIF and 8 others---Respondents

Set - 1

Constitutional Petitions Nos.S-907, 1074 of 2012, 636, 1028 of 2013, 120, 196, 307, 336, 350, 515, 531, 550, 576, 644, 662, 671, 754, 764, 775, 844, 871, 903, 929, 967, 993, 1028, 1048, 1051, 1085, 1173, 1180, 1201, 1231, 1233, 1250, 1259 of 2014, 2, 20, 31, 33, 34, 40, 51, 80, 119, 141, 148, 175, 211, 213, 230, 244, 248, 292, 297, 298, 301, 313, 384, 405, 414, 443, 458, 492, 513, 530, 673, 712, 788, 803, 942, 959, 986, 1034, 1083, 1094, 1098, 1108, 1115, 1116, 1141, 1222, 1204 and 1230 of 2015, decided on 17th November, 2015.

Set - 2

Constitutional Petitions Nos.S-602, 683 of 2012, 184, 225, 342, 391, 446, 451, 549, 558, 612, 633, 822, 833, 846, 876, 888, 899, 947, 995, 1000, 1025, 1041, 1093, 1103, 1105, 1193, 1219, 1221, 1240, 1263, 1264 and 1268 of 2014; 76, 105, 186, 198, 223, 235, 237, 241, 255, 566, 282, 304, 305, 314, 326, 330, 336, 345, 415, 659, 735, 793, 886, 918, 1002, 1147 and 1209 of 2015, decided on 17th November, 2015.

Custom---

----Violence against women---Honour killings---Forced marriages---Jirga, holding of---Legality---Killing of women on the allegation of "Karo Kari"---Forcible marriage and giving the hands of women as penalty in "Jirga"---Equality of women---Contracting marriage by two sui juris was not an offence---State was bound to ensure protection of every single soul and make law for protection of women and children---Woman would be free in choosing her life partner and protecting her property and honour---Women were considered as true and complete owner of their respective property which they had received---Men had no right to part a woman from her own belonging or property---Constitution had ensured 'dignity' and 'privacy' of a home as inviolable---Woman could not be declared as "Kari" and no one could decide the fate of a lady while awarding her death penalty on pretext of "Kari"---Woman could not be married with Quran to escape her right in property---No one could give a lady as compensation for sin if any of others and maltreat her---No custom could be in conflict with law of the land---'Jirga' could not be backed by any law and only courts would be competent to pass a decree and enforce it---Law enforcing agencies were bound to prohibit happening of offences and ensure sense of security to each single individual---Every participant of "Jirga" must be dealt with in accordance with law---Police officer failing to stop the "Jirga" should be prosecuted in the list of accused---State should establish 'Dar-ul-Amman' and safe-house(s) at each District/Taluka level where a victim family could safely reside/stay till she was able to send to her demanded place or she agreed to go with the person of her choice---Such safe-house should be managed and controlled by women only---Provincial Chief Secretary was directed by High Court to establish safe-house(s) at Taluka level and make necessary arrangements for the said houses and victims---Commissioners were directed to supervise the issue with regard to women in their respective divisions---District and Sessions Judges were directed to dispose of cases with regard to violence against women within a specified period---Constitutional petitions were disposed of accordingly.

Habibullah G. Ghouri, Abdul Rehman Bhutto, Sarfraz Khan Jatoi, Rafique Ahmed K. Abro, Muhammad Murad Chachar, Rasool Bux Soomro, Muhammad Afzal Jagirani, Mohsin Ali Pathan, Ashique Hussain Abbasi, Muhammad Ali Pirzado, Abdul Rasheed Abro, and Imtiaz Ahmed Bhatti for Petitioners.

Abdul Hamid Bhurgri, Additional Advocate-General along with Fida Hussain Solangi, DSP Legal on behalf of DIGP, Sukkur, Farooque Ahmed Bhutto, SP on behalf of DIGP, Larkana PDSP Muhammad Bachal on behalf of SSP, Kamber-Shahdadkot, DSP Ansar Ali Mithani on behalf of SSP, Kashmore at Kandhkot, Inspector/PDSP, Bashir Ahmed Abro, District Larkana, DSP Muhammad Sadiq, SDPO Tangwani, SIP Ghulam Hyder on behalf of SSP Sukkur, SIP Khalil Ahmed on behalf SSP, Khairpur Mirs, SIP Sikandar Ali Khoso on behalf of SP, Ghotki, SIP Abdul Fattah SHO PS Tangwani, PSI Shoukat Ali on behalf of SSP, Shikarpur, P.I Atta Muhammad Soomro on behalf of SSP, Jacobabad, ASI Zulfiqar Ali and Khadim Hussaih Khooharo, Deputy Prosecutor General for Respondents.

Dates of hearing: 27th and 28th October, 2015.

P L D 2016 Sindh 284

Before Sajjad Ali Shah and Syed Saeed-ud-Din Nasir, JJ

MEEZAN BANK LIMITED through Attorney and 4 others---Petitioners

Versus

GOVERNMENT OF SINDH through Secretary and 2 others---Respondents

C.Ps. Nos. D-2050 of 2011, D-640 of 2014, D-303 of 2011, D-559 of 2011 and D-747 of 2011, decided on 3rd June, 2015.

Stamp Act (II of 1899)---

----Ss. 22A, 22B, 73 & Sched.---Books to be open to inspection---"Public office" and "Public officer"---Definition---Scope---Contention of petitioner was that impugned notices served upon him by authorities under S.73 of Stamp Act, 1899 on the ground that petitioner being a Banking Company registered under Companies Ordinance, 1984 fell within definition of a public office as contemplated by S.73 of Stamp Act, 1899 was invalid---Authorities contended that petitioner being a Banking Company registered under Companies Ordinance, 1984 was a commercial concern having more than 20 employees and was a "public office company" within the meaning contemplated by S.22A of Stamp Act, 1899---Held, that a Banking Company fell within definition of a "public office" by virtue of S.22A of Stamp Act, 1899 and by virtue of S.22B of Stamp Act, 1899, a "public officer" included an officer-in-charge of a public office for the purpose of Stamp Act, 1899, therefore, authorities were legally competent to issue notices for inspection of record chargeable with stamp duty under Schedule to Stamp Act, 1899---Constitutional petition was dismissed, in circumstances.

Behzad Haider for Petitioner No.2 (in C.P. No.D-640 of 2014).

Rizwan Ahmed Siddiqui for Petitioner No.5 (in C.Ps. Nos.303, 550 and D-747 of 2011)

Ahmed Pirzada for Respondents.

Date of hearing: 29th April, 2015.

P L D 2016 Sindh 288

Before Nazar Akbar, J

PROVINCE OF SINDH through Secretary, Irrigation and Power Department and 2 others---Appellants

Versus

LAND ACQUISITION OFFICER and 3 others---Respondents

Ist Appeals Nos.51 of 2010 and 54 and 55 of 2011, decided on 6th October, 2015.

Legal Practitioners and Bar Councils Act (XXXV of 1973)--

----Ss.54 & 41---Civil Procedure Code (V of 1908), O.XVII, Rr.1 & 2---Using contemptuous language while seeking adjournment by the advocate---Misconduct---Initiation of proceeding---Advocate and his counsel filed an application for adjournment supported by his affidavit---Contemptuous language was used in the affidavit by using words like 'you' 'you' and 'you' while addressing Judge of the High Court ---Effect---High Court observed that incidents of intimidating the court for petty issue and/or to avoid decision on merits in weak cases were increasing day by day---Trial Courts and even the High Court and the Supreme Court had also been experiencing the same---Allegations contained in the affidavit of advocate were false and frivolous---Adjournment had been sought in contemptuous way and counsel of the party had also hand in such design---High Court refrained to take action itself and referred the case to the Bar Council for initiation of proceedings against the advocate and his counsel---Copy of application and affidavit were sent to the Bar Council for initiation of proceedings against both the advocates within specified period---Disciplinary Committee of Bar Council was informed that in case of non-compliance of order the Court would be constrained to initiate the proceedings itself---Application for adjournment was disposed of in circumstances.

Ashfaq Nabi Qazi, Asstt. A.G. and Muhammad Humayoon Khan Standing Counsel and Special Counsel for appellants in 1st Appeal No.51 of 2010 and 54 of 2011 and for Respondents in 1st Appeal No.55 of 2011.

Imran Qureshi for Respondents.

P L D 2016 Sindh 292

Before Salahuddin Panhwar, J

Haji ALI GOHAR and 10 others---Applicants.

Versus

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

Revision Application No.180 of 2014, decided on 3rd December, 2014.

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

----S. 91---Public nuisance---Permission of Advocate General for filing of a lis---Written permission of Advocate General was required for filing a lis by two or more persons with regard to 'public nuisance' who had not suffered any special damage---Said condition would not limit or affect a right of suit which might exist independently---Where one or more persons had approached the court for declaration of a nuisance while claiming an invasion to their 'easement right' permission of Advocate General for filing the lis was not required---In the present case, plaintiffs had alleged that use of property as Marriage Hall by the respondents had been causing serious discomfort and annoyance resulting in disturbing their easment rights---Held, one had a right to enjoy music and arrange gathering or feast at his place but not by discomforting or annoying neighbours to enjoy their right of easment and restrict them to reach at their doors---Complaint of the plaintiffs if established would constitute a 'nuisance (infringement of their individual rights to enjoy property and right to live therein)---Both the courts below had exceeded in exercising their jurisdiction---Impugned judgments/orders passed by the courts below were set aside and case was remanded in its original position for decision in accordance with law within a specified time.

Islamuddin v. Ghulam Muhammad PLD 2004 SC 633; Clifton and Defence TW Association v. President CCB PLD 2003 Kar. 495 and PLD 2003 Kar. 477 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court while exercising revisional jurisdiction could not disturb the 'factual controversy' resolved by the courts below unless impugned judgments were result of non-reading, mis-reading and violation of legal principles---Revision was purely confined to examine legality of exercise of jurisdiction by the courts below in interpreting a 'legal issue/question'---Purpose of revisional jurisdiction was meant to correct an illegality.

(c) Words and phrases---

----"Nuisance"---Meaning.

Black's Law Dictionary; Sultan Ahmed v. Wahid Hussain 1991 MLD 1340 and Clifton and Defence TW Association v. President CCB PLD 2003 Kar. 495 rel.

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

----O. VII, R.11 & S.115---Plaint, rejection of Revision---Order of rejection of plaint was a pure question of law and High Court could examine and disturb the same because the factual controversy would have effect on the parties of lis alone but a decision on law would have binding effect upon all.

Raja Jawad Ali Sahar for Applicants.

Mukhtiar Ahmed Khanzada, State Counsel for Respondents Nos.1 and 2.

M. Hashim Laghari for Respondents Nos. 3 to 7.

P L D 2016 Sindh 300

Before Salahuddin Panhwar, J

Sofi MUREED HUSSAIN ALFUQRAH and another---Applicants

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No.S-601 of 2013, decided on 25th July, 2014.

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

----Ss. 173 & 190(1)---Word 'may' occurring in S.190(1), Cr.P.C.---Significance---Investigation report---Agreeing or disagreeing of Magistrate---Scope---Deliberate use of word 'may' is sufficient to show intention of Legislature that discretion has been left with magistrate either to agree or disagree with police report without being influenced with ipse dixit of police---While concurring with report submitted by police under S.173, Cr.P.C., Magistrate can competently agree or disagree with recommendation/conclusion or opinion of investigating officer and such 'inclining' or declining' is to be exercised under S.190, Cr.P.C.

Syed Muhammad Ahmed v. The State and others PLD 2006 SC 316 and Anwar Shamim and another v. The State 2010 SCMR 1791 rel.

(b) Administration of justice--

----Judicial order---Pre-conditions---Requisite of a judicial decision or act are: if (a) competent authority not being court in ordinary sense (b) has power to give binding and authoritative decision (c) after hearing evidence and upon consideration of facts and circumstances and (d) imposing liability to affecting rights of parties, there is a duty to act judicially---To qualify an order or act to be 'judicial' it is required to stand well with the conditions.

Bahadur and another v. The State and another PLD 1985 SC 62 rel.

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

----Ss. 193---Cognizance by court---Effect---Taking of cognizance by competent court can never be taken as a verdict of guilt or innocence---Presumption of innocence in favour of accused continues till a competent court determines otherwise after a full and fair trial as provided by Criminal Procedure Code, 1898.

Haq Nawaz v. The State 2000 SCMR 785 rel.

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

----Ss. 173, 190 & 561-A---Penal Code (XLV of 1860), Ss.302 & 324---Qatl-i-amd and attempt to commit Qatl-i-amd---Filing of investigation report---Magistrate disagreeing with police report---Direction to file Challan---Investigating officer recommended the case for its disposal under 'B' class but Magistrate disagreed with report submitted by investigating officer and directed him to file Challan before Trial Court---Validity---Magistrate was not required to pass order while discussing and appreciating available material as required while passing a 'judicial order/judgment', he was required to scrutinize all available material judicially but, in the present case, the order of Magistrate was silent with regard to material---Such order of Magistrate could not be legally termed to be a speaking and reasoned order---High Court in exercise of inherent powers under S.561-A, Cr.P.C., set aside the order passed by Magistrate and remanded the case to him to pass appropriate order, considering all available material while forming an independent opinion regarding taking cognizance or otherwise---Application was allowed accordingly.

Hakim Ali v. The State PLD 2006 Kar. 302 and Afshan v. Farukh Ali PLD 2013 Sindh 423 ref.

Faqeer Rehmatullah Hisbani for Applicants.

Syed Meeral Shah, D.P.G.

Ahsan Gul Dahri for Respondent No.2.

P L D 2016 Sindh 311

Before Ahmed Ali M. Shaikh and Muhammad Iqbal Kalhoro, JJ

NASEEM A. SATTAR and 6 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Federal Secretary, Ministry of Interior, Islamabad and 3 others---Respondents

Constitutional Petition No.544 of 2015, decided on 16th April, 2015.

Penal Code (XLV of 1860)---

----Ss. 406, 420, 468, 471 & 109---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss.7, 10, 11 & 20---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss.3, 4 & 6---Suit for recovery of bank loan---Allegation of misappropriation of hypothecated stock by customer---Registration of FIR by the Bank---Petition for quashment---Scope---Customer (petitioners) filed leave to defend suit denying claim of Bank---Pending said suit, Bank had registered FIR under Ss.406, 420, 468, 471 & 109, P.P.C.---Contentions of the petitioners was that offences alleged in the impugned FIR squarely fell under S.20(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001, of which only Banking Court could take cognizance and hold trial against the petitioners, after a complaint in writing was made in that regard; that impugned FIR registered under the Penal Code was completely without jurisdiction---Contention of respondent Bank was that petitioners had committed acts punishable under P.P.C., which were Scheduled offences in terms of Offences in Respect of Banks (Special Courts) Ordinance, 1984, and were triable by the Special Court for offences in respect of Banks; that S.20(1) of Financial Institutions (Recovery of Finances) Ordinance, 2001, did not envisage any bar on an action which was taken by the aggrieved party (Bank) against accused under any other penal laws, either in addition to it or independent of it---Validity---Words "without prejudice to any other action which could be taken against him under this Ordinance, or any other law for the time being in force" occurring in S.20 of Financial Institutions (Recovery of Finances) Ordinance, 2001, amply established that registration of FIR in case of commission of cognizable offence by a person, was not barred altogether---Mode of taking cognizance by Banking Court under S.7 of Financial Institutions (Recovery of Finances) Ordinance, 2001, was a separate and independent concept under criminal law, which could not overtake or equate the right of a person to register an FIR in the face of a cognizable offence---Impugned FIR had been lodged for offences which were cognizable in nature and were Scheduled offences according to provisions of Offences in Respect of Banks (Special Courts) Ordinance, 1984; and same were triable exclusively by Special Court, notwithstanding anything contained in the Penal Code---Impugned FIR, did not appear to be illegal or coram non judice---First Information Report in question was not alleged to have been lodged maliciously against the petitioners; or contained allegations which ex facie, were not tenable in the eyes of law; or registration of the same was abuse of process of law---In absence of any cogent and legal grounds; merely on the pleas taken by the petitioners, impugned FIR could not be quashed---Constitutional petition was dismissed accordingly.

2009 PCr.LJ 325; 2010 YLR 547; 2005 P.CrLJ 1228; 2005 CLD 20; 2013 CLD 2133; 2002 YLR 3847; PLD 2002 SC 610; 2006 SCMR 483 and 2005 CLD 436 ref.

Adnan Iqbal Choudhry for Petitioners.

Ashfaq Rafiq Janjua,Standing Counsel for Respondents Nos. 1 and 2.

Jamshed Malik for Respondent No.4.

Date of hearing: 24th March, 2015.

P L D 2016 Sindh 318

Before Aqeel Ahmed Abbasi and Syed Saeeduddin Nasir, JJ

MUHAMMAD ASHRAF SAMOO and 30 others---Petitioners

Versus

SINDH BAR COUNCIL through Secretary and 59 others---Respondents

Constitutional Petition No.D-5948 of 2014, decided on 4th August, 2015.

(a) Legal Practitioners and Bar Councils Rules, 1976---

----Rr. 11, 13, 22(1) & 61---Constitution of Pakistan, Art.199---Constitutional petition---Election dispute---Disputed question of fact---Petitioners were candidates in elections for Sindh Bar Council and assailed election result of returned candidates---Main grievances of petitioners were that election results were result of rigging, illegalities and irregularities committed by Returning Officer---Validity---Generalized and vague allegations were raised by petitioners without any material or substance after completion of entire election process and announcement of unofficial results---Most of the facts as stated in memo of petition were seriously disputed and denied by officials as well as respondents through their affidavits, and the same otherwise required evidence---Such disputed facts could not be examined by high Court while exercising its jurisdiction under Art.199 of the Constitution---High Court declined to interfere in the election result---Petition was dismissed in circumstances.

Ghulam Mustafa Jatoi v. Addl. District and Sessions Judge and others 1994 SCMR 1299; Syed Zafar Ali Shah v. Hamid Khan and others 1992 CLC 665; Muhammad Saleem v. Provincial Election Authority Sindh and others PLD 1985 Kar. 135; Muhammad Baran and others v. Member, Settlement and Rehabilitation and others PLD 1991 SC 691; Lt. Col. Farzand Ali and others v. Province of West Pakistan PLD 1970 SC 98; Chaudhry Salahuddin, MLA v. Haji Ghulam Muhammad and others PLD 1957 (WP) Lah. 728; Muhammad Tariq Malik v. Pakistan through Secretary Establishment and others PLD 2014 Isl. 38; Sanaullah Khan Gandapur v. Advocate General, N.-W.F.P. and others 1995 SCMR 79; Rana Moen Akhtar v. Additional Collector, Customs SBLR 2015 Sindh 01; Allah Ditta v. Muhammad Munir and others PLD 1966 (WP) Lah. 770; Muhammad Mustafa v. Syed Zafar Ali Shah and others PLD 2014 Sindh 224; In the matter of Human Rights Case Nos. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759 and Islamic Republic of Pakistan v. Israrul Haq and others PLD 1981 SC 531 distinguished.

Munir A. Malik v. Malik Muhammad Qayyum and others PLD 2007 SC 262 ref.

Tariq Mehmood A. Khan and another v. Sindh Bar Council 2012 SCMR 702; Sanaullah Khan Gandapur v. Advocate General, NWFP/Returning Officer and others PLD 1997 Pesh. 80 and Javed Iqbal and another v. Returning Officer and others PLD 2005 Quetta 121 rel.

(b) Legal Practitioners and Bar Councils Rules, 1976--

----Rr. 61 to 65---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Alternate efficacious remedy---Election dispute can only be agitated at relevant point of time in terms of Rr.61, 62, 63, 64 & 65 of Legal Practitioners and Bar Councils Rules, 1976, before Election Tribunal, instead of directly approaching High Court by invoking provisions of Art.199 of the Constitution.

Z. K. Jatoi and Abdul Waheed Kanjoo for Petitioner.

Ms. Afroze (Ahsan) Haq for Petitioner No. 17.

Khalid Latif for Respondent No. 1.

Mustafa Lakhani and Salahuddin Khan Gandapur for Respondent No.21

Farhatullah for Respondents Nos. 37 and 47.

Muhammad Aqil, Irfan Ahmed Siddiqui and Salahuddin Ahmed for Respondent No.40.

Hakim A. Shaikh for Respondent No. 7.

Abid S. Zuberi and Saad Siddiqui for Respondent No. 54.

Sabir Shah, Advocate.

Peer Derwesh, Advocate.

Tariq Mehmood A. Khan for Respondent No. 37.

Saifullah, AAG along with Ms. Nasreen Sehto, State Counsel.

Date of hearing: 18th May, 2015.

P L D 2016 Sindh 332

Before Salahuddin Panhwar, J

In the matter of: ABDUL MAJEED, SEEKING INSOLVENCY CERTIFICATE

Insolvency Petition No. Nil of 2014, decided on 21st December, 2015.

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

----Ss. 10, 11, 13, 14 & 15---Sindh Chief Court Rules (O.S.), R.586 (1) & (2)---Insolvent, declaration of---Principle---Maintenance of minor children---Absence of report of Official Assignee---Petitioner remained actively litigating with creditor, who was his ex-wife---Validity---Number of F1Rs were lodged from either side, which normally insolvent did not do---Petitioner was an admitted father of children and could not avoid his legal, moral and bounden obligation i.e. to maintain his children---Such obligation even did not require one to earn status of 'creditor' first for compelling his/her father to provide maintenance---Father would not be legally entitled to seek exemption to his obligation to maintain his child even under cover of Insolvency (Karachi Division) Act, 1909, because it was confined to 'creditor' and 'debtor'---Demand of maintenance of child from father did not require any intervention of Court---In FIRs lodged by petitioner, he claimed to be possessing house and valuable articles but he produced no record / details thereof before Court as required by S.15 of Insolvency (Karachi Division) Act, 1909, nor before the Official Assignee---Nothing was available on record except bald words of petitioner that he had no means, and the same was not sufficient for petitioner to seek his adjudication as 'Insolvent'-Prima facie failure of petitioner to make compliance of S.15(3) of Insolvency (Karachi Division) Act, 1909, and that of R.586(1) of Sindh Chief Court Rules (O.S.) would result into dismissal of petition because R.586(2) of Sindh Chief Court Rules, (O.S.) had made it clear that without certificate of Official Assignee there would be no order on the petition---Petition was dismissed in circumstances.

PLD 2012 Kar. 522 and 2014 CLC 1705 ref.

Zeeshan Abdullah, Amicus Curiae.

Date of hearing: 13th November, 2015.

P L D 2016 Sindh 337

Before Nadeem Akhtar and Sadiq Hussain Bhatti, JJ

MUHAMMAD SABIR AWAN through Legal Heirs---Appellants

Versus

PAKISTAN DEFENCE OFFICES HOUSING AUTHORITY and others---Respondents

H.C.A. No.111 of 2005, decided on 29th October, 2015.

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

----O. XLI, R. 27---Expression 'to enable it to pronounce judgment'---Scope---Expression 'to enable it to pronounce judgment' means to enable Appellate Court to pronounce a satisfactory and complete judgment and does not mean that additional evidence should be admitted in appeal in order to enable Appellate Court to pronounce judgment in favour of a particular party---Provisions of O.XLI, R.27, C.P.C., can be invoked by allowing additional evidence only in cases where it is impossible for Appellate Court to pronounce judgment on the basis of the evidence available on record.

Muhammad Azam v. Muhammad Abdullah through legal heirs 2009 SCMR 326; Mad Ajab and others v. Awal Badshah 1984 SCMR 440; Parshotim Thakur and others v. Lal Mohar Thakur and others AIR 1931 PC 143; Muhammad Siddique v. Abdul Khaliq and 28 others PLD 2000 SC (AJ&K) 20; Taj Din v. Jumma and 6 others PLD 1978 SC(AJ&K) 131; Nazir Hussain v. Muhammad Alam Khan and 3 others 2000 YLR 2629 [SC(AJ&K)]; Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671; Nazir Ahmed and 3 others v. Mushtaq Ahmed and another 1988 SCMR 1653; Mst. Jewan Bibi and 2 others v. Inayat Masih 1996 SCMR 1430; Khan Iftikhar Hussain Khan of Mamdot (represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd. Lahore PLD 1971 SC 550 and Ejaz Muhammad Khan and others v. Mst. Sahib Bibi through Shahzad Khan and others 1996 SCMR 598 rel.

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

----O. XLI, R. 27---High Court appeal---Additional evidence, summoning of--- Principle--- Lacuna, filling of---Defendant assailed judgment and decree passed by Single Judge of High Court on the ground that he intended to produce additional evidence in support of his claim---Validity---Power of Appellate Court to allow additional evidence in appeal, under O.XLI, R.27, C.P.C., was purely discretionary in nature and a party to appeal could not seek production of additional oral or documentary evidence as a matter of right--- Parties led evidence in support of their respective cases and documents sought to be produced pertained to the period when alleged transaction was entered upon between the parties and documents in question were in existence much before the evidence was recorded---None of the documents that were sought to be produced by way of evidence could be permitted to be produced as the same would amount to filling in the lacuna, if any, left in defendant's case---Defendant did not state any cause by which he was prevented from producing evidence in question before Trial Court---Evidence could have produced by him at trial if he had been diligent---As the defendant was not diligent, and purported disability to produce additional evidence before Trial Court was for the causes due to his negligence, it could not constitute a substantial cause within the meaning of O.XLI, R.27, C.P.C.---Sufficient evidence was available with Single Judge of High Court to decide the cause one way or the other effectively and appeal before Division Bench of High Court could be disposed of effectively and completely on the basis of available evidence and there was no requirement or necessity of any additional evidence or document to enable Division Bench of High Court to pronounce judgment in appeal---Division Bench of High Court refused to allow production of additional evidence---Judgment and decree passed by Single Judge of High Court was balanced and equitable based on correct appreciation of evidence with full and proper application of mind and defendant was not able to show any infirmity or illegality therein--- Division Bench of High Court declined to interfere in the judgment and decree passed by Single Judge of High Court---Appeal was dismissed in circumstances.

Alam Khan and 3 others v. Pir Ghulam Nabi Shah and Company, 1992 SCMR 2375, Roazi Khan and others v. Nasir and others 1997 SCMR 1849; Mansab Ali v. Nawab and others 1994 CLC 2208; Qamrul Hasan and another v. United Bank Ltd. and another 1990 MLD 276; Karali Prasad Dutta and another v. A. I. Ry. Co., AIR 1928 Calcutta 498; Govardhan Das v. Ahmadi Begum, AIR 1953 Hyderabad 181; General Manager, HBFC and others v. Ali Rehman and others 1995 CLC 531; Zar Ali Shah and 9 others v. Yousuf Ali Shah and 9 others 1992 SCMR 1778; Ghulam Zohra and 8 others v. Nazar Hussain through legal heirs 2007 SCMR 1117; Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another PLD 2008 SC 564; Riazul Ambia v. Ibrahim and others PLD 1961 SC 43; American Life Insurance Co. v. Abdullah and others PLD 1968 Kar. 765; Gul Begum v. Muhammad Riaz and another 2006 MLD 480; Khan Muhammad Yousuf Khan Khattak v. S.M. Ayub and 2 others, PLD 1973 SC 160; AAS Muhammad and others v. Chahat Khan and others, 2004 SCMR 770; Anwar Ahmed v. Mst. Nafisa Bano through legal heirs 2005 SCMR 152; Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007 SCMR 1884; Messrs Foremost Trading Company v. Messrs Calendonian Insurance Company Limited and 2 others PLD 1988 Kar. 131; Barkatullah through Legal Heirs and 12 others v. Wali Muhammad through Legal Heirs and 3 others 1994 SCMR 1737; Khan Muhammad v. Muhammad Din through LRs. 2010 SCMR 1351; Siraj Din and others v. Ghulam Nabi and others PLD 2003 SC 159; Allah Diwaya v. Ghulam Fatima PLD 2008 SC 73; Ali Raza v. Muhammad Shoaib 2014 CLC 1343; Messrs Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation 2002 CLC 166 ref.

Munir A. Malik and Chaudhry Atif Rafiq for Appellant.

Nazar Hussain Dhoon for Respondent No.1.

Muhammad Jamal Ghazali for Respondent No.2 (call absent).

H.A. Rahmani for Respondent No.3.

Dates of hearing: 3rd, 9th, 11th, 15th September of 2014 and 15th September, 2015.

P L D 2016 Sindh 367

Before Muhammad Faisal Kamal Alam, J

ABU DHABI FLOUR AND ANIMAL FEED FACTORY through Attorney---Plaintiff

Versus

M.V. BOUDAA-1 through Master and 2 others---Defendants

Admiralty Suit No.1030 of 1991, decided on 7th March, 2016.

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

----S. 3(f)(i)---Suit for recovery of damages---Admiralty jurisdiction---Absence of owner of vessel---Plaintiff sought direction to defendants to arrange transship plaintiff's consignment to the port of discharge and had also sought recovery of damages---Validity---In the proceedings of the nature, that was, for an action in rem, a plaintiff even without participation of owner of a vessel, if the case (of plaintiff) otherwise fell within the purview of Admiralty Jurisdiction of High Courts Ordinance, 1980, could succeed in its claim---One of the basic reasons for the same was that if an owner of vessel was a foreign entity and had no presence in Pakistan, then a genuine claim of a party should not fail or a plaintiff should not be remediless, merely due to absence of the owner of vessel or for any other technicality---Defendant was even resisting delivery of cargo in question to plaintiff and contract of carriage was breached by defendants as it was discharged at the port that too only after the orders of High Court whereas, port of discharge as mentioned on Bills of Lading was other one---Suit was decreed accordingly.

Port Qasim Authority and others v. Official Assignee of Karachi 2007 CLD 143; Pakistan through Secretary Communication Islamabad v. Messrs Habib Insurance Company Ltd. 1991 CLC 1270; (2005) 10 SCC p.284 and Bourbon Maritime (Pvt.) Limited v. M. V. Salaj and others Admiralty Appeal No.5 of 2006 rel.

Shaiq Usmani for Plaintiff.

Nemo for Defendants Nos. 1 to 3.

Abdul Razzaq for Khyber Pakhtunkhwa.

Date of hearing: 22nd January, 2016.

P L D 2016 Sindh 378

Before Anwar Hussain, J

MOMIN KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1346 of 2015, decided on 29th December, 2015.

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

----S. 497----Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9 (b)---Possession, import or export, trafficking or financing the trafficking of narcotic drugs etc.---Bail, refusal of---Bail could be declined in case of recovery of 990 grams of Charas---One thousand grams of Charas from one accused and one hundred grams of Charas along with ten grams of heroin were alleged to have been recovered from the other accused---Narcotics although had been recovered from the accused persons only in presence of Mashirs/police witnesses, but no enmity had been shown by the accused with the Anti-Narcotics Force for their false implication---Accused were narcotic traffickers and had been apprehended from the street while being in possession of the narcotics---Offence in question, being heinous in nature, considered as offence against the society at large; therefore, even if the offence did not fall within the prohibitory clause of S. 497, Cr.P.C, the accused were not entitled to the grant of bail---Bail could be declined even in case where the recovered Charas was 990 grams---Bail application was dismissed accordingly.

2007 YLR 3105; 2003 SCMR 573; 2015 SCMR 1077 and 2008 SCMR 1254 rel.

2014 PCr.LJ 427; 2014 YLR 639 and 2014 PCr.LJ 1335 distinguished.

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

----S. 25----Criminal Procedure Code (V of 1898), S. 103----Mode of making search and arrest---Search to be made in presence of witnesses---Application of S.103, Cr.P.C. has been excluded in narcotic cases in view of S.25 of Control of Narcotic Substances Act, 1997.

2008 SCMR 1254 and PLD 1997 SC 408 rel.

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

----S. 2(s)---Warcotic drug'---Scope---No bifurcation or specification existed in Control of Narcotic Substances Act. 1997 in respect of narcotics as to Charas or Heroin. [p. 380] E

2013 SCMR 1538 rel.

Shah Imroz Khan for Applicant.

Habib Ahmed, Special Prosecutor for ANF

P L D 2016 Sindh 381

Before Salahuddin Panhwar, J

AZHAR MUKHTAR through Next Friend/Guardian ad-Litem---Plaintiff

Versus

Mst. TAZEEN ---Defendant

Civil Suit No.118 of 2012, decided on 29th May, 2015.

(a) Sindh Mental Health Act (L of 2013)---

----Ss. 32, 33(1), 34 & 35---Appointment of guardian---Management of property of mentally disordered person --- Responsibility of Manager---Purpose and object of appointment of 'Guardian' and 'Manager' under Sindh Mental Health Act, 2013 were not synonym to each other as was evident from S.32 & S.33(1) of the Act---'Guardian' should be appointed where person (mentally disordered) was incapable of taking care of himself while 'manager' should be appointed where person (mentally disordered) was incapable of managing his property---Language of S.35 gave an impression that guardian' and 'manager' should be two different 'suitable persons'---Sindh Mental Health Act, 2013, now here, specifically restricted appointment of single person or a relative as 'guardian' and 'manager' i.e. to look after the person (mentally disordered) and also to manage property of such person but subject to only one condition that 'it should be for the benefit of mentally disordered person"---According to S.34, it was the 'manager' and notguardian' who was responsible for care, cost of treatment and maintenance of mentally disordered person and of such members of family who were dependent on him.

(b) Sindh Mental Health Act (L of 2013)---

----S. 34---Management of the property of mentally disordered person---Appointment of manager should specify as to for which property he was appointed as manager---Purpose was to entitle 'manager' on his/her appointment to take control and management thereof---Appointment of a person as 'manager' should not authorize him any other power except that of 'managing the property'.

(c) Sindh Mental Health Act (L of 2013)---

----Ss. 32, 33 & 34---Mentally disordered person---Appointment of guardian---Scope---Order authorizing a person to 'look after matters of mentally disordered person by acting as his guardian' should not dress such person with power and authority so specifically meant to be exercised by 'Manager'.

(d) Sindh Mental Health Act (L of 2013)---

----Ss. 32, 33 & 34---Mentally disordered person---Appointment of guardian---Scope---Court of protection was required to process with any application while keeping in view that court was ultimate guardian of property of mentally disordered person as the status of a person not capable to manage his affairs and property, was not more than a 'child'---Similar caution must be shown by "court of protection" while dealing with any such application.

Jaffar Raza for Plaintiff.

Nemo for Defendants.

Date of hearing: 18th May, 2015.

P L D 2016 Sindh 388

Before Sajjad Ali Shah and Sadiq Hussain Bhatti, JJ

YUSUF J. ANSARI---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Interior, Islamabad and another---Respondents

Constitutional Petitions Nos.D-4325, D-4326 and D-4327 of 2014, decided on 16th February, 2015.

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

----S.3---Constitution of Pakistan, Arts. 15 & 199---Constitutional petition---Exit Control List---Flight risk--- Right of free movement---Names of petitioners were entered in Exit Control List on the request of National Accountability Bureau, treating them as 'flight risk' without issuing show cause or speaking explanation---Memorandum through which names of petitioners were placed on ECL neither assigned any reason for doing so and appeared to have been issued in a mechanical manner---Validity--- Right of free movement included right of travelling abroad subject to reasonable restriction, and the same was guaranteed under Art.15 of the Constitution---In case such right was to be curtailed by applying reasonable restriction, such power must be exercised fairly, reasonably and in good faith--- Order whereby such restriction was imposed should not be passed mechanically on the request of any Ministry or department unless against public interest--- Such order must have detailed reason and reflected application of mind--- High Court directed the authorities to remove names of petitioners from Exit Control List---Petition was allowed, in circumstances.

Wajid Shams-ul-Hassan v. Federation of Pakistan PLD 1997 Lah. 617; Khan Muhammad Mahar v. Federation of Pakistan PLD 2005 Kar. 252; Ashfaq Yousuf Tola v. Federation of Pakistan PLD 2006 Kar. 193; Nazir Adenwala v. Islamic Republic of Pakistan PLD 2013 Sindh 186 and Wasatullah Jeffery v. Ministry of Interior PLD 2014 Sindh 28 ref.

Farooq H.Naek for Petitioners (in all petitions).

Muhammad Aslam Butt, DAG for Respondent No.1.

Noor Muhammad Dayo, Addl. DPGA, NAB for Respondent No.2.

Dates of hearing: 23rd January and 9th February, 2015.

P L D 2016 Sindh 392

Before Salahuddin Panhwar, J

ADNAN ABID---Plaintiff

Versus

MUNAF ATTARA and others---Defendants

Civil Suit No.1602 of 2012, decided on 25th March, 2015.

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

----O.VI, Rr.16 & 17---Sindh Chief Court Rules (O.S), Rr.126 & 127---Specific Relief Act (I of 1877) Ss. 12 & 54---Suit for specific performance, permanent injunction damages and other penal interests---Defendant in his written statement used words 'all family members are habitual offenders' against family members of the plaintiff---Plaintiff moved an application to strike of remarks from pleadings which was allowed---Deputy Registrar of the Court failed to endorse 'struck off remarks from pleadings', nor amended written statement filed with original---Plaintiff filed another application to seek direction to comply with order of striking off, in view of Rr.126 & 127 of Sindh Chief Court Rules (O.S)---Defendant contested application on ground that he failed to contest order of striking off since it contained no direction with regard to striking off the remarks in 'red ink'---Validity---Any party to suit could ask Court to strike out pleadings of other party on grounds that pleadings were shown to be unnecessary, scandalous, frivolous or vexatious and Court was empowered to strike out any matter in pleadings which tended to be the same along with facts that prejudice, embarrass or delay the fair trial of the suit---When court had passed an order to strike out pleadings and order was holding field being unchallenged, failure by party to follow subsequent procedure would not prejudice or affect legality of such order---Rr.126 & 127 of Sindh Chief Court Rules (O.S) required that any amendment made in pleadings by omission should be made by striking it out of record with 'red ink' and an amendment proceedings would be filed and annexed to original after being endorsed by Deputy Registrar of the Court---Remarks had been expunged but there was no endorsement by Deputy Registrar which was of no use without endorsement---Application was allowed by High Court and Registrar of the Court was directed to make endorsement in 'red ink' in original which should be followed by filing amended pleadings---Order accordingly.

PLD 1991 SC 371 and AIR 1966 Mad. 161 rel.

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

----O. VI, Rr.16 & 17---Specific Relief Act (I of 1877) Ss. 12 & 54---Suit for specific performance, permanent injunction damages and other penal interests---'Amendment of pleadings' and 'striking out pleadings'---Distinction---By seeking amendment of pleadings party may seek amendment in his own pleadings whereas by seeking striking out pleadings one can ask court to strike off pleadings from other party.

(c) Words and phrases---

----"Expunge"---'Strike out' is synonymous to expunge that has been defined as to strike out, obliterate, or mark for deletion; to efface completely, destroy and to eliminate (as a memory) from one's consciousness.

Muhammad Ramzan Ghaus for Plaintiff.

Khawaja Shamsul Islam for Defendant No.1.

Date of hearing: 25th March, 2015.

P L D 2016 Sindh 398

Before Ahmad Ali M. Shaikh and Muhammad Iqbal Kalhoro, JJ

PACIFIC EXIM (PVT.) LTD. through Company Secretary---Petitioner

Versus

PAKISTAN STEEL MILLS CORPORATION through Chairman and another---Respondents

Constitutional Petition No.D-5090 of 2013, decided on 27th May, 2015.

(a) Public Procurement Rules, 2004---

----R. 19---Contract for supply of goods---Allegations of fraud and corruption---Blacklisting of contractor---Natural justice, principles of---Applicability---Proportionality of punishment---Scope---Petitioner-contractor was permanently blacklisted due to allegation of fraud and corruption in the supply of goods---Contention of petitioner-contractor was that no fair opportunity of hearing was afforded to him---Validity---Procuring agency was competent to permanently or temporarily bar the supplier and contractor from participating in its procurement proceedings who failed to provide satisfactory performance or were found to be indulged in corrupt or fraudulent practice---Such supplier or contractor should be afforded adequate opportunity of hearing before blacklisting---Procuring agency could devise manner and mechanism to arrive at an inference for such decision which should base on some material and cogent reasons---Proceedings were conducted before the Standing Committee against the petitioner-contractor and he was given proper opportunity of hearing---No illegality was pointed out in the impugned order---Procuring agency could not be compelled to do business with a specific contractor and supplier---Decision to debar permanently or temporarily a contractor and supplier to participate in the procurement proceedings should depend upon the severity of alleged offence---Principles of natural justice and proportionality should be taken into consideration while awarding a punishment to a contractor for his malfeasance---Petitioner-contractor in the present case, had been permanently debarred from venturing into contractual obligations---Nothing was on record as to whether petitioner-contractor acted or omitted to act in collusion with other alleged culprits, the profits it gained and loss was suffered by the procuring agency---Permanently blacklisting the petitioner-contractor was harsh and heavy punishment in the present case---No right of appeal had been provided to the petitioner-contractor---Party affecting from an adversarial order should have right to challenge the same before the higher forum---If such right was abridged then there would be miscarriage of justice---High Court could examine such order on the touchstone of natural justice---Matter was remanded to the competent authority for decision afresh within a specified period---Constitutional petition was disposed of in circumstances.

(b) Appeal---

----Right of appeal was a substantial right--- Party affecting from an adversarial order should have right to challenge the same before the higher forum.

Usman Hadi for Petitioner.

Agha Zafar Ahmed for Respondent No.1.

Saeed A. Memon, Standing Counsel for Respondent No.2.

Date of hearing: 11th March, 2015.

P L D 2016 Sindh 405

Before Nadeem Akhtar, J

RIMSHA SHAIKHANI---Plaintiff

Versus

NIXOR COLLEGE through Board of Directors/Governors and another---Defendants

Suit No.728 of 2015, decided on 15th October, 2015.

(a) Constitution of Pakistan--

----Art. 25---Right to education---'No Tuition Policy', validity of---Doctrine of proportionality---Applicability---Rights and duties of students and educational institutions---Scope and enforceability---College did not allow plaintiff to appear in final A-Level examination as she had taken private tuition against their 'No Tuition Policy'---Plaintiff was, however, allowed to sit in final examination as per direction of the Court under interim relief---Plaintiff filed present application seeking directions to the College to the effect that her result of final examination be released, and school leaving certificate be issued along with any other documents that might be required by her---Validity---Defendant-college admittedly did allow their students to take tuitions subject to conditions that prior permission in that behalf was obtained from the college by student and tuitions were taken only from faculty of the college---College never had any objection to plaintiff's act itself whereby she took tuitions, which was also permissible according to their policy---College's entire case was on the ground that she had taken tuition without permission---Colleges, in such event, could remove plaintiff from school according to their own orientation but could not withhold her results or school leaving certificate---Before taking any adverse action against student for wrong committed by him, it must have been ascertained whether such wrong was "legal wrong" or "moral wrong"---High Court observed that acts as cheating in tests or examinations, violence or vandalism, use of drugs or arms, obscenity and vulgarity, failure in observing punctuality and maintaining attendant, or any such act, which was of serious in nature, committed by students, could not, and should not, be allowed or tolerated under any circumstances---Students were legally and morally bound not to indulge in any of the said acts, otherwise, they would be liable to punitive or penal consequences---All other duties and obligations which students were required or expected to do, whether by themselves or by their educational institutions, were moral duties and obligations---Non-performance of moral duties and obligations did not entail any punitive or penal consequences against them nor could same be enforced against them---Obligation to seek permission for tuitions from college was merely moral obligation, non-fulfilment of which could not expose plaintiff to any punitive actions (punitive actions provided during orientation given to students' parents)---As per college's own 'No Tuition Policy', 'students who would fail to adhere to said policy may have to face consequences such as being dropped from the subject in question, being made to register privately for CIE examinations or being asked to withdraw from college altogether'---Word 'may' used in said policy was significant, which implied that consequences mentioned in the policy for not adhering to same, were not clearly mandatory and possibly not uniformly applicable to all---Policy was internal policy of college, having been developed by on its own, thus could not be deemed to have force of law or affect or take away valuable rights of students to have access to their fundamental right of education---College undertook to comply with orders of the High Court passed on present application---College was directed by High Court to take all necessary steps for release of result of plaintiff.

(b) Constitution of Pakistan---

----Art. 25---Right to education---Scope and extent---Fundamental and unalienable right of every citizen of Pakistan to seek education---Every educational institution was duty bound to impart best possible education to its students according to their needs, choice, wishes and desires---In consideration of receiving education, it was duty of every student to pay agreed education and examination fee to educational institution, to show respect to teachers, and also to follow disciplinary rules of institution.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235 and Collector, Land Acquisition, Chashma Right Bank Canal Project, WAPDA, D.I. Khan and others v. Ghulam Sadiq and others, 2002 SCMR 677 ref.

(c) Constitution of Pakistan---

----Art. 25----Right to education---Scope and extent---High Court observed that right of student to choose tuitions or style of learning according to his or her own needs and requirements could not be restricted, curtailed or denied---Primary responsibility of educational institutions to care about results and future of their students, but they could not rule or regulate lives of their students.

(d) Doctrine of---Proportionality--

----Applicability---Natural justice, principles of---Scope---Restrictions on human rights---Principles---Laws can restrict human rights, but only in order to make conflicting rights compatible or to protect rights of other persons or important interests of community--¬-Any restriction on human right not only requires constitutional sanction, but same must also be proportional to rank and importance of right at stake---Reasonable restriction or any sub-constitutional limitation on constitutional fundamental right must also flow from Constitution to protect lawful rights and interests of others or society at large---Exercise of discretionary powers in which there is no reasonable relationship between objective which should be achieved and means and method used for such purpose, or where punishment imposed in wholly out of proportion to wrong committed, is liable to be quashed by court---Any disproportionate action would be open to scrutiny not only on touchstone of principles of natural justice, but also on doctrine of proportionality---Penalty or punishment awarded must be proportionate to wrong committed-Where wrong is trivial and committed under compelling circumstances or for first time, mercy in Islamic Jurisprudence is a rule and punishment an exception---Doctrine of proportionality is recognized even in modern jurisprudence.

Messrs Kulja Industries Limited v. Chief General Manager, W.T. Project, BSNL and others 2014 SCMR 1748 rel.

(e) Jurisprudence----

----"Rights", "duties" and "wrongs"---Meaning and enforceability---Legal wrong is an act which is legally wrong, being contrary to rule of legal justice and violation of law, essence whereof consists in its recognition as wrong by law---Moral wrong is an act which is morally or naturally wrong, being contrary to rule of natural justice---Some wrongs may be both legal and moral wrong---Duties and obligations are also of two kinds: legal duties and moral duties---Not all acts which a person ought to do constitute duties---When law recognizes an act as duty, it enforces its performance or punishes for disregard of same---Rights are also of two kinds: legal and moral---If a person intends to enforce his interest, which according to him is his right, against another person, such interest or right must not only have legal protection, but also definite legal recognition.

(f) Administration of justice---

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

Dr. Muhammad Farogh Naseem for Plaintiff.

Ahmed Ali Hussain for Defendants Nos. 1 and 2.

Khalid Shah for Defendant No.3.

Dates of hearing: 2nd, 15th and 21st September, 2015.

P L D 2016 Sindh 420

Before Ahmed Ali M. Shaikh, Actg. C.J. and Syed Muhammad Farooq Shah, J

Messrs GETZ PHARMA (PVT.) LTD. through Authorised Person---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad and 12 others---Respondents

Constitutional Petition No. D-3650 of 2015, decided on 7th March, 2016.

(a) Sindh Public Procurement Rules, 2010---

----Rr. 4, 31, 32 & 56---National Accountability Ordinance (XVIII of 1999), Ss.9 & 10---Misprocurement---Mechanism for redressal of grievances---Petitioner, a pharmaceutical company, whose technical bid had been rejected by the procuring agency sought direction to National Accountability Bureau for initiating inquiry/investigation against the authorities and direction to the Province to initiate disciplinary proceedings against them for misprocurement of the medicines against the rights of the petitioner---Rule 31 of Part-II of Sindh Public Procurement Rules, 2010 provided mechanism for redressal of grievances of bidders that might surface during the procurement proceedings---Rule 32 of the Rules provided appeal to the Review Committee in case a bidder was not satisfied with the decision of the Complaints Redressal Committee---Powers of the Review Committee in terms of R.32 (7) of Sindh Public Procurement Rules, 2010, in relation to the actions of the procuring agency were highlighted---Chairman of National Accountability Bureau or officer duly authorized by him, having received a complaint, might refer the matter for inquiry or investigation---Petitioner had not approached National Accountability Bureau and/or Sindh Public Procurement Regulatory Authority---Petitioner had also filed civil suit wherein it had specifically sought declaration in regard to rejection of its bid for its product and award of the tender for procurement of the drug in question to the respondents---Any finding or direction, at present stage and in the given circumstances of the case in the collateral proceedings, would be prejudicial to the rights of contesting parties and would also amount to circumventing the civil suit---Constitutional petition was dismissed in circumstances.

2012 SCMR 773; PLD 2010 Isl. 85 and 2015 SCMR 1348 ref.

(b) Constitution of Pakistan---

----Art. 199---Writ of mandamus---Scope---Writ of mandamus commands the person to whom the same is addressed to perform some public or quasi- public legal duty, which he has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy---Under Art.199 of the Constitution, for issuance of writ of mandamus, petitioner being aggrieved has to show that he has no other alternate and efficacious remedy or has exhausted the other remedies available under the law---Issuance of writ or grant of relief in writ jurisdiction is always discretionary---High Court has also to see whether the petitioner has vested legal right for the enforcement under Art.199 of the Constitution on the date when the petitioner filed the petition and petitioner had no other adequate and legal remedy available under the law.

(c) Constitution of Pakistan--

----Art. 199---Constitutional jurisdiction---Scope---Before an order passed by a public authority is struck down, the Court is under a duty to explore every possible explanation for its validity and examine the entire field of powers conferred on the Authority in pursuance to which the impugned order has been passed.

Abdul Sattar Pirzada and Mamoon N. Chaudhry for Petitioner.

Saeed A. Memon, Standing Counsel for Respondent No.1.

Noor Muhammad Dayo, ADPG, NAB for Respondent No.2.

Mukesh Kumar Karar, Additional AG for Respondents Nos. 3 to 5.

Malik Naeem Iqbal for Respondents Nos.6, 7, 8 and 9.

Altaf Ahmed Shahid for Respondent No.10.

Sarmad Hani and Samiur Rehman for Respondent No.11.

Behzad Haider for Respondent No.12.

Date of hearing. 1st February, 2016.

P L D 2016 Sindh 431

Before Faisal Arab, C.J. and Muhammad Iqbal Kalhoro, J

AGAR TEXTILES (PRIVATE) LTD. through Authorised Officer---Petitioner

Versus

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

Constitutional Petitions Nos. D-1434, D-1590, D-3273, D-4257, D-4258, D-4361, D-4362, D-5082 of 2013 and D-4191 of 2014, decided on 2nd September, 2015.

(a) Estoppel---

----Promissory estoppel---Scope--- Doctrine of promissory estoppel cannot be invoked for directing to do a thing that was against the law, when the representation was made or the promise was held out--- No authority can be made bound by a promise or representation not lawfully extended or given.

1992 SCMR 1652 rel.

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

----Ss. 7(3), 32 & 47---Interim Power Procurement (Procedures and Standards) Regulations, 2005, Rglns. 3, 4 & 5---Constitution of Pakistan, Art. 199---Constitutional petition---Electricity tariff---Modification in policy---National Electric Power Regulatory Authority (NEPRA), role of---Petitioner companies were aggrieved of decision taken by National Electric Power Regulatory Authority to determine tariff in respect of Captive Power Plants (CPPs) and New Captive Power Plants (NCPPs) commonly known as Small Power Producers (SPPs)---Validity---National Electric Power Regulatory Authority after minutely appreciating all factors passed order in pursuance of Regln.4(1) of Interim Power Procurement (Procedures and Standards) Regulations, 2005. whereby it granted permission for power acquisition to power distribution company to purchase power from the petitioners on take-and-pay basis---Power acquisition contract was approved subject to amendments in relevant sections referring to the tariff---Whole process of determining tariff was legally executed and no illegality rendering it ultra vires of the Constitution and relevant law was pointed out---National Electric Power Regulatory Authority had the power to determine tariff and while doing so it had to keep in view the interest of general public and accordingly it could revise and review its early decisions or determination---No illegality either in the notice issued in the year 2012 or determination of tariff in question was notices---As the notice was published on 01-02-2012, whereby the arrangement granting permission to the companies either generating or distributing power to charge mutually agreed tariff was done away with, same was deemed to be cut-off date after which tariff rates were to be charged as per determination of National Electric Power Regulatory Authority in question and not before that--- Petition was allowed accordingly.

Manzoor Hussain and others v. Wali Muhammad and another PLD 1965 SC 425 and 1998 SCMR 1404 ref.

2012 SCMR 773 rel.

Makhdoom Ali Khan for Petitioner (in C.Ps.Nos.1434 of 2013); Omer Soomro for Petitioner (in C.P.No.1590 of 2013), (in C.P.No.3273 of 2013), (in C.P.No.4257 of 2013), (in C.P. No.4258 of 2013), (in C.P.No.4361 of 2013), (in C.P.No.4362 of 2013), (in C.P.No.5082 of 2013), (in C.P.No.4191 of 2014).

Kashif Haneef for Respondent (NEPRA).

Aijaz Ahmed Zahid for Respondents HESCO and SEPCO.

D.A.G. for Government of Pakistan.

Dates of hearing: 11th, 12th, 13th, 18th and 19th August, 2015.

P L D 2016 Sindh 445

Before Zafar Ahmad Rajput, J

Mst. ROSHAN BANO and 5 others---Plaintiffs

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY through Administrator and 7 others---Defendants

Suit No.1427 of 2013, decided on 18th May, 2015.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Ingredients---Court had to see that a good prima facie arguable case was made out or not for issuance or refusal of interim injunction---If plaintiff had succeeded in establishing a good prima facie arguable case then other ingredients irreparable loss and balance of convenience would be looked into---Court had to make only a tentative assessment of plaintiff's case for enabling itself to see whether ingredients for grant of injunction existed in favour of plaintiff or not---Court might tentatively examine the pleadings, affidavits, counter affidavits, rejoinder if any and the documents annexed thereto to determine such ingredients---Pleadings must contain facts constituting the existence of right and its infringement at the hands of opposite party---Prima facie case, could not be deemed unless plaintiff had proved the existence of some of his rights and its infringement---Existence of a prima facie case was to be judged or made out on the basis of material/evidence on record---Such evidence or material should be of the nature that court should or ought to be of the view that plaintiff was likely to succeed by having a decision in his favour---Temporary injunction could not be issued where prima facie case was not made out---Court should refrain from granting such injunction where prima facie case could not be established without recording evidence---Plaintiff should show that irreparable loss would occur to him if injunction was not granted and there was no other remedy open to him by which he could protect himself from the consequences of the apprehended injury---Plaintiff had to show that the inconvenience caused to him would be greater than that which might be caused to the defendant---Court while granting temporary injunction would weigh one party's needs against other party's needs and determine where the balance of convenience would lie---Nothing was on record, in the present case, to show that subject plot was an amenity/park or green belt---Plaintiff could not establish arguably the existence of right claimed in the suit and infringement thereof---Balance of convenience did not lie in favour of plaintiff but was in favour of defendants---Defendants would suffer more inconvenience by granting injunction than the plaintiff by withholding of injunction---Question of nuisance and infringement of easement rights could be determined after recording of evidence of the parties---Application for grant of temporary injunction was dismissed, however, construction so raised would be subject to the determination of status of the subject plot.

Messrs Excell Builders and others v. Ardeshir Cowasjee and others 1999 SCMR 2089; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Abdul Razzaq v. Karachi Building Control Authority and others PLD 1994 SC 512; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Pakistan National Oils Limited and another v. Sattar Muhammad 1980 SCMR 686; Mst. Ummatullah through Attorney v. Province of Sindh through Secretary, Ministry of Housing and Town Planning, Karachi and 6 others PLD 2010 Kar. 236; Queens Road Lane v. City District Government and others 2006 CLC 272; Sobho Mal and another v. Karachi Development Authority (K.D.A.) and others 2005 YLR 2412; Clifton and Defence Traders Welfare Association through General Secretary v. President, Clifton Cantonment Board, Karachi and 4 others PLD 2003 Kar. 495; Clifton Centre Association (CCA) Clifton Karachi, through General Secretary v. City District Government Karachi through Nazim-e-Aala Municipal Building, Karachi and 3 others PLD 2003 Kar. 477; Dr. Zahir Ansari and others v. Karachi Development Authority and others PLD 2000 Kar. 168; Jawad Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472; A. Razaq Adamjee and another v. Messrs Datari Construction Company (Pvt.) Ltd. and another 2005 SCMR 142; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Federation of Pakistan v. Aitzaz Ahsan and another PLD 1989 SC 61; Mst. Noor Jehan v. City District Government, Karachi through District Co-ordination Officer and 6 others 2010 CLC 669; Messrs Al-Munaf Corporation through Partner v. Sindh Industrial Trading Estate Ltd. through Secretary and 4 others 2009 CLC 950; Sultan Ahmed v. Dr. Shaheen A. Hussain and 8 others 2009 MLD 231; Mrs. Zunaira Khan through Attorney v. Federation of Pakistan through Secretary of Ministry of Petroleum and others 2008 YLR 1701; Mrs. Alba D'Sa and others v. Mrs. Naheed Pabani and others 2008 YLR 738; Messrs Shaheen Services v. CDGK and others 2005 YLR 1895; Abdul Rashid through Legal Heirs and 6 others v. Mahmood Ali Khan 1994 SCMR 2163; Messrs Al-Munaf Corporation through Partner. v. Sindh Industrial Trading Estate Ltd. through Secretary and 4 others 2009 CLC 95 and Mst. Seema and others v. Messrs Millennium Developers and others 2003 CLC 632. ref.

(b) Easements Act (V of 1882)---

----S. 15---Acquisition of right of easement by prescription---Conditions.

Abdul Khaliq alias Mithoo v. Moulvi Sher Jan and others 2007 SCMR 901 rel.

(c) Injunction---

----Meaning---Injunction was a preventive remedy for the purpose of preserving the status quo of the matter of suit pending for determination.

(d) Injunction---

----"Status quo"---Meaning---Status quo was that same status with regard to title or possession of immovable property as existed on date of filing of suit was to be maintained.

(e) Injunction---

----"Irreparable loss"---Meaning---Irreparable loss meant "such loss which was incapable of being calculated on the yardstick of money".

(f) Injunction---

---"Balance of convenience"---Meaning---Balance of convenience meant that if an injunction was not granted and suit was ultimately decreed then inconvenience caused to the plaintiff would be greater than that which would be caused to the defendant if an injunction was granted but the suit was ultimately dismissed.

Khawaja Shamsul Islam for Plaintiffs.

Abid S. Zuberi for Defendant No.1.

Adnan I. Chaudhry for Defendant No.5.

Date of hearing: 26th February, 2015.

P L D 2016 Sindh 462

Before Ahmed Ali M. Shaikh and Mohammed Karim Khan Agha, JJ

MISBAH KARIM and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary and others---Respondents

Constitutional Petitions Nos. D-446 of 2016, D-8034, D-7999 of 2015 and D-405, D-406 of 2016, decided on 15th April, 2016.

(a) Anti-Money Laundering Act (VII of 2010)---

----S. 3---Money laundering by private individual---Investigation---Scope---Federal Investigation Agency can investigate cases of money laundering by private individuals under money Laundering Act, 2010.

(b) Administration of justice---

----Both civil and criminal proceedings can run in parallel.

(c) Anti-Money Laundering Act (VII of 2010)---

----Ss. 3, 6, 7(2), 12 & 25---Criminal Procedure Code (V of 1898), S.94---Bank record, seeking of---Financial Monitoring Unit---Role---Sessions Judge granted permission to Federal Investigation Agency seeking copies of Bank record during the inquiry against money laundering---Contention of petitioners was that permission under S.94, Cr.P.C., could not be granted at inquiry stage and that no inquiry on allegation of money laundering could be initiated without any information provided by Financial Monitoring Unit---Validity---Federal Investigation Agency in investigating the cases of money laundering could on its own motion based on reliable/credible information open its own investigation into money laundering under Anti-Money Laundering Act, 2010 independently of the Financial Monitoring Unit especially in cases where initial information was not based on banking transactions or on information from financial institutions---No bar existed on Federal Investigation Agency making a similar application except using the word 'investigation' instead of 'inquiry'---To strike down the order on such a technicality would tend to serve very little purpose except to further unnecessarily delay the investigation---Sessions judge properly passed order in question and it did not require interference---Federal Investigation Agency's inquiry was lawful and order passed by Sessions Judge was maintained---Constitutional petition was dismissed in circumstances.

Muhammad Anwar v. Mst. Ilyas Begum PLD 2013 SC 255; Waqar Ahmed v. FIA and others W.P.3223P/13; Hamza Shabaz Sharif v. Federation of Pakistan 1999 PCr.LJ 1584; Muhammad Siddique v. State PLD 1983 FSC 173 and Maqbool Ahmad v. SHO Police Station Chhanga Manga 1999 PCr.LJ 1198 ref.

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

----S. 161(2)---Statement of accused---Self-incrimination---Accused can always inform investigating agency in writing that he has no comment to make on concerned matters [which seems to be specifically provided in S.161(2), Cr.P.C.]---Right of accused to be heard in such a scenario is respected as he has been given opportunity to explain his position and likewise his concern about non-self-incrimination would have been satisfied.

Shahab Sarki for Petitioner (in C.P.No.D-446 of 2016).

Abdul Sattar Pirzada and Umair Qazi for Petitioner (in C.P.No.D-405 of 2016).

Samir Ghazanfar for Petitioner (in C.P.No.D-7999 of 2015).

Zahid F. Ibrahim for Petitioners (in C.P.Nos. 406 of 2016 and C.P.No.D-8034 of 2015).

Salman Talibuddin, Additional Attorney General for Pakistan and Saeed Ahmed Memon, Standing Counsel for Respondents.

Date of hearing: 30th March, 2016.

P L D 2016 Sindh 479

Before Mohammad Shafi Siddiqui, J

Messrs GETZ PHARMA (PVT.) LIMITED through Authorised Person---Plaintiff

Versus

PROVINCE OF SINDH through Chief Secretary, Government of Sindh and 7 others---Defendants

Suit No.62 and C.M.A. No.543 of 2015, decided on 26th March, 2015.

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

----Ss. 42 & 54---Sindh Public Procurement Rules, 2010, Rr. 13, 21, 26 & 44---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Life saving medicine, procurement of---Discrimination---Plaintiff company was aggrieved of acceptance of tender by Provincial Government submitted by defendant company for a life-saving medicine---Validity---Provisions of Sindh Public Procurement Rules, 2010, emphasized that there should be no discrimination in so far as procurement of goods, services and works were concerned---Quality that was required could be asked to be matched with the best quality available in market---Evaluation committee had to decide as to whether drugs of plaintiff were as good as the products which were required through tender---When medicines/drugs were at least at par to each other, cost of life saving drugs would play a pivotal role as no justified reason was available to procure drug at a price of Rs.5000/- or more as against Rs.2100/- which was being provided by plaintiff---Medicines in question were required for hepatitis patients on priority basis; therefore, authorities could opt to float tenders afresh for procurement in accordance with relevant laws---Application was allowed, in circumstances.

Case law referred.

(b) Sindh Public Procurement Rules, 2010---

----R. 4---Procurements---Discrimination---Applicability---Import of a term, which may oust any of the parties contesting bidding process, would amount to discrimination.

(c) Sindh Public Procurement Act (IV of 2009)---

----S. 2(a)---Sindh Public Procurement Rules, 2010, Rr. 2(cc), 23, 31, 32 & 32-A---Civil Procedure Code (V of 1908), S.9---Procurement authorities---Civil Courts, jurisdiction of---Scope---Civil suits which are filed in terms of S.9, C.P.C., the presence of remedy in terms of Rr.31, 32 & 32-A, of Sindh Public Procurement Rules, 2010, does not bar civil suit---No ouster clause relating to jurisdiction of S.23 exists which relates to indemnity, bars suits against authority i.e. Sindh Procurement Regulatory Authority which is defined in S. 2(a) of Sindh Procurement Regulatory Act, 2009, whereas the suit revolves around procurement agency which is separately defined in terms of S.2(cc) of Sindh Public Procurement Rules, 2010---Mala fides attributed against procurement agencies would be sufficient for entertaining suit as only those facts which are performed under Sindh Procurement Regulatory Act, 2009, could be hit by the ouster clauses.

M.N. Construction Co. v. Federation of Pakistan PLD 2013 Isl. 85; Asaf Fasihuddin v. Government of Pakistan 2014 SCMR 676; Province of the Punjab v. Haji Yaqoob Khan 2007 SCMR 554 and Hamid Hussain v. Government of West Pakistan 1974 SCMR 356 rel.

(d) Good governance---

----Financial responsibilities---Principles---Government is the trustee of all amounts of the State and that these trustees should act in a manner which should be transparent and paramount consideration should be to protect finance interests of the State.

(e) Sindh Public Procurement Rules, 2010---

----R. 4---Procurements---Laches, principle of---Applicability---Where the action apparently and prima facie appears to be mala fide or colourable exercise of power and not transparent and/or not in the manner as required in terms of Sindh Public Procurement Rules, 2010 laches would not be an appropriate defence in such cases.

Mirpurkhas Sugar Mills v. Federation of Pakistan 2013 MLD 433 rel.

Faisal Siddiqui along with Muhammad Vawda for Plaintiff.

Qazi Majid, A.A.G. and Ziauddin Junejo, A.A.G for Defendants Nos.1 to 4.

Hyder Ali Khan along with Sarmad Hani for Defendant No.5.

A. Sattar Pirzada along with Mamoon Chaudhary for Defendant No.6.

Yawar Farooqui along with Irfan Memon for Defendant No.7.

Khalid Jawed for Defendant No.8.

Dates of hearing: 29th January, 10th, 12th, 19th, 25th, 27th February, 2015, 2nd, 4th, and 6th March, 2015.

P L D 2016 Sindh 506

Before Ahmed Ali M. Shaikh and Muhammad Karim Khan Agha, JJ

The STATE through Director, Intelligence and Investigation (Customs and Excise)---Appellant

Versus

Haji NABI BUX and another---Respondents

Criminal Acquittal Appeal No.30 of 2014, decided on 15th March, 2016.

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

----Ss. 9(c), 48 & 72---Customs Act (IV of 1969), S.185-F---Criminal Procedure Code (V of 1898), S.417 (2A)---Notification SRO 486(1)/2007, dated 9-6-2007---Appeal against acquittal---Maintain-ability---Locus standi---Director of Intelligence---Accused persons were alleged to have transported poppy seeds for which Customs officials filed case under the provisions of Control of Narcotic Substances Act, 1997--- Both the accused were acquitted by Trial Court and Director Intelligence of Customs filed appeal against acquittal---Validity---It might be that appellant being Director Intelligence and Investigation Federal Board of Revenue, in his view was a person aggrieved by the order of acquittal so as to fall within the purview of S.417 (2A), Cr.P.C.---It was the Federal Board of Revenue that lodged FIR, filed Challan and prosecuted the case and as such was the most concerned with the outcome of the case---When acquittal came in the Director Intelligence had every right to feel aggrieved and dissatisfied with acquittal order which related to a customs case although triable under Control of Narcotic Substances Act, 1997---Appellant could only file appeal in his capacity as Director under S.185-F of Customs Act, 1969, read with notification SRO 486(I)/2007, dated 9-6-2007, but was not entitled to file an appeal through or on behalf of the State which could only have been done by a duly authorized and instructed law officer---Director Intelligence and Investigation had no lawful authority to file appeal through the State against acquittal of accused persons---Appeal was dismissed in circumstances.

Haji Muhammad Aslam v. Director General Pakistan Coast Guards 2012 PTD 629; F.A. Corporation v. Director General Customs Intelligence and Investigation 2008 PTD 1365; Haji Abdullah Jan v. The State 2003 SCMR 1063; The State v. Munawar ud Din 1985 PCr.LJ 1431; The State v. Bashir Ahmad 2003 YLR 2229 and Director Directorate General of Intelligence and Investigation v. Messrs Al Faiz Industries (Pvt.) Limited 2006 SCMR 129 ref.

Ghulam Haider Shaikh for Appellant.

Asif Ali Pirzada for Respondents.

Habib Ahmed, Special Prosecutor ANF (On Court notice).

Mehmood A. Qureshi: Amicus Curiae.

Date of hearing: 25th January, 2016.

P LD 2016 Sindh 521

Before Nazar Akbar, J

MUHAMMAD YASEEN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.342 of 2004, decided on 3rd November, 2016.

Penal Code (XLV of 1860)---

----S. 320---Criminal Procedure Code (V of 1898), Ss. 340(2) & 342---Qatl-i-Khata by rash or negligent driving---Appreciation of evidence---Di'yat, non-awarding of---Accused was allegedly driving vehicle rashly and negligently and as a result, accident took place and six people lost their lives while fourteen were injured---Trial Court convicted the accused and sentenced him for five years imprisonment but did not order payment of Di'yat amount---Validity---Accused in order to disprove allegation of rash and negligent driving should have made a statement on oath under S.340(2), Cr.P.C.---Accused, in his statement under S.342, Cr.P.C., was unable to make any explanation as to why evidence had come on record against him---Trial Court rightly convicted the accused but should have added punishment of payment of Di'yat to legal heirs of each deceased---Trial Court in view of the use of word 'shall' in S.320,P.P.C. had no option to avoid ordering payment of Di'yat to legal heirs of deceased while convicting accused---High Court maintained the conviction but modified the sentence and included payment of Di'yat to legal heirs of the deceased person by the accused---Appeal was dismissed accordingly.

Jamroz Khan Afridi for Appellant.

Ms. Akhter Rehana, A.P.G. for the State.

Date of hearing: 10th March, 2016.

P L D 2016 Sindh 527

Before Irfan Saadat Khan and Zafar Ahmed Rajput, JJ

KARACHI WATER AND SEWERAGE BOARD through Managing Director---Appellant

Versus

Messrs FAMOUS ART PRINTERS (PVT) LTD. through Director and another---Respondents

H.C.A. No.24 of 1995, decided on 19th February, 2016.

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

----S. 47---Executing Court, duties of---Words "all questions arising" occurring in S.47,C.P.C.---Object, scope and purpose---Court executing decree is empowered under S.47, C.P.C., to determine all questions relating to execution, discharge or satisfaction of decree---Object of S.47, C.P.C., is not only to afford relief to parties in matters arising out of execution of decree but also to curtail multiplicity of litigation and hardship to be faced by parties---Words 'all questions arising' means questions relating to or effecting rights of parties to the suit---Question of payability when not specifically mentioned in the decree is the question to be decided by Executing Court---Executing Court is vested with power to interpret decree in light of pleadings and judgments of the Court.

Muhammad Afzal and another v. Pakistan International Airlines Corporation 2006 YLR 3074 rel.

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

---Ss. 34 & 47---Decree, interpretation of---Executing Court---Powers---Executing Court, in the present case, included amount of markup in the decretal amount--- Judgment- debtor raised the plea that Executing Court could not include any amount in decretal amount as it would tantamount to changing the decree---Validity---Interest from date of suit was ordinarily granted in view of S.34, C.P.C.---Trial Court awarded interest to decree-holders at the rate of 14% per annum, therefore decree was not without any interest on principal amount---Date from which interest was to be paid was not itemized in the decree thus question had arisen before Executing Court as to from which date decree-holders were entitled to the interest---Executing Court had rightly observed the fact that decree-holders in their pleadings had claimed for the interest from date of suit and there was nothing in the circumstances of the case to show that they were not entitled to the same which due to inadvertence could not be specified in the decree---Such order of Executing Court could not be termed as amendment in decree but the same was within 'interpretation of the decree'---High Court declined to interfere in the order passed by Executing Court---Intra Court Appeal was dismissed in circumstances.

Muhammad Lal v. Abdul Qudoos PLD 1975 Quetta 29; Major (Retd.) Mahmood Hussain v. Habib Bank Limited, Faisalabad 2001 CLC 2016 and Arif Ali Shah and another v. Province of West Pakistan 1969 SCMR 690 ref.

Nemo for Appellant.

M. Ishtiaq Ahmed Memon for Respondents.

Date of hearing: 12th February, 2016.

P L D 2016 Sindh 532

Before Mohammad Shafi Siddiqui, J

AYESHA SOLVENT PLANT (PVT) LTD. through Attorney---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary, National Food Security and Research and 2 others---Defendants

Suit No.821 of 2016, decided on 4th May, 2016.

Pakistan Plant Quarantine Rules, 1976---

----R. 8(1)(5)---Phytosanitary certificate---Place of origin, determination of---Principle---Goods in transit/re-export---Consignment in question consisted of soyabean of Brazil and US origin imported by an importer in Egypt and was off loaded at an Egyptian port---Relevant authorities of Brazil and USA had issued Phytosanitary certificates and on basis of same certificates, consignment was exported to Pakistan---Authorities declined to issue necessary plant protection release order in relation to consignment in question on the ground that origin of consignment was Egypt, not Brazil/USA therefore, Phytosanitary certificate had to be issued by Egypt, not Brazil/USA---Validity---Shipment from port of Egypt was being made after a delay of about six months and it might or might not be in transit---Provisions of R.8(1) of Pakistan Plant Quarantine Rules, 1967 required that such plant or plant material should carry official certificate from a plant quarantine authority of that country and did not only relate to a country where such plants or plant products were grown--- Place of origin varied according to situation and requirement of a Phytosanitary status---Place of origin under the Convention and Act referred to a place from where a consignment gained its Phytosanitary status where possibility of exposure to infestation or contamination of pests was evident and could not be ruled out---Place where commodity was grown was not always considered as place of origin---If a commodity was stored, its Phytosanitary status could change over a period of time as a result of its new location---In such cases, new location could change Phytosanitary status and might be considered as place of origin---Place of origin was dependent upon Phytosanitary status not place of growth---Commodity could gain its Phytosanitary status from more than one places and NPPO of all such countries providing certificates should decide about place or places of origin depending upon the situation that they had undergone which might have changed Phytosanitary status---Egypt was to be considered as place of origin for such shipment, and the definition of 'place of origin' in policy would not turn the situation unless such certificates were made available, authorities in Pakistan under Quarantine Act were justified in not issuing release order---In terms of R.8(5) Pakistan Plant Quarantine Rules, 1967, shipment arrived without certificate or declaration meant in R. 8(2) of Pakistan Plant Quarantine Rules, 1967 and with permit were liable to be confiscated or destroyed or to be returned to the port of origin at the expense of importer---Application was disposed of with order and observations by the High Court.

PLD 1994 SC 693 and 2002 SCMR 1694 ref.

Khalid Jawed Khan for Plaintiff.

Salman Talibuddin, Addl. Attorney General for Defendant No.1.

Kashif Nazir for Defendant No.3.

Dates of hearing: 20th, 21st and 22nd April, 2016.

P L D 2016 Sindh 547

Before Salahuddin Panhwar and Syed Saeeduddin Nasir, JJ

Khawaja MUHAMMAD SALMAN YOUNIS and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Law and 10 others---Respondents

Constitutional Petition No.D-916 of 2015, decided on 4th September, 2015.

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

----Ss. 205, 497 & 498---Constitution of Pakistan, Art.10-A---Due process of law---Protective bail---Attendance of accused---Necessity---Attorney whether could be substituted for accused---Petitioner was aggrieved of Red Notices issued by Interpol for his arrest and had sought protective bail---Validity---Plea of grant of bail or protective bail in constitutional jurisdiction required to be attended carefully within parameters of Art.199 of the Constitution---Attendance of accused could not be substituted through attorney though S.205, Cr.P.C., provided mechanism whereby a Magistrate could dispense with personal attendance of accused--- Such provision could not be taken to expand jurisdiction of High Court to grant bail which per S.497, Cr.P.C. was subject to arrest, detention, appearance or his bringing before a Court---Provisions of Art. 10-A of the Constitution insisted for fair trial which object could not be achieved without providing accused an opportunity to face the charge. particularly where accused himself volunteered to do so---If accused of cognizable offence showed his intention to face his trial and resorted to constitutional jurisdiction for the purpose of enabling him to land at Pakistan to approach proper courts, then he could resort for such purpose---Purpose of Red Notices was to seek location of a wanted person and his or her detention, arrest or restriction of movement for purposes of extradition, surrender or similar lawful action---Such by itself was not meant to declare the 'innocence or guilt' of the person against whom a Red Notice was issued nor it was in any way prejudice the rights of fair trial of such person---Intention of petitioner was to face charges and it would serve the purpose of Red Notice touching the object of fair trial as enshrined in the Constitution through insertion of Art.10-A of the Constitution---High Court declined to grant bail to the petitioner but enabled him to land at the lands of Pakistan and to immediately approach the proper Court for bail---Constitutional petition was disposed of accordingly.

2006 YLR 3116 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Term 'aggrieved person'---Scope---To invoke Constitutional jurisdiction of High Court, one is required to first qualify the test of being 'aggrieved person' (If matter is not one of public litigation) and then to show that his/her case falls in any of the categories, so defined by Art.199 of the Constitution and there is no other alternate legal remedy else petition is not competent.

(c) Words and phrases---

----"Coercion"---Defined.

Black's Law Dictionary Ninth Edn. rel.

(d) Administration of justice---

----Legal action---Scope---To avoid a legal action, plea of coercive action is not available.

Ghulam Fareed v. State 2009 SCMR 929 rel.

(e) Constitution of Pakistan--

----Art.199---Constitutional petition---Writ of mandamus---Scope---Writ of mandamus cannot be issued for a relief which otherwise amounts to restrain a person from doing a lawful and permitted legal act.

Petitioner No.1 present in person.

Rizwan Dodani filed Vakalatnama on behalf of Petitioner No.1.

Date of hearing: 4th September, 2015.

P L D 2016 Sindh 557

Before Muhammad Ali Mazhar and Anwar Hussain, JJ

KHURRAM and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary/Chairman and others---Respondents

C.Ps. Nos. 209, 913 and 1092 of 2015, decided on 14th May, 2016.

(a) Pakistan Legal Practitioners and Bar Councils Rules, 1976 [As amended by Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 2013]----

----Rr. 108-C, 108-B & 108-A----Legal Practitioners and Bar Councils Act (XXXV of 1973), Ss. 9, 13, 26 & 55---Constitution of Pakistan, Arts.18 & 60---SRO No.184(II)2013 dated 08.03.2013---Persons qualified for admission as advocates---Assessment/NTS test, legality of---Functions of Pakistan Bar Council/Provincial Bar Councils---Scope---Power of Pakistan Bar Council to make rules---Severability, doctrine of---Applicability---Freedom of trade, business, profession, etc.---Scope---Petitioners challenged R. 108-C, proviso of Pakistan Legal Practitioners and Bar Councils Rules, 1976, whereby the admission/enrollment as an advocate had been pre-conditioned with passing of a mandatory assessment test to be conducted by the National Testing Services (NTS)---Petitioners contended that the Pakistan Bar Council had no jurisdiction to make any such rule being inconsistent with S.26 of Legal Practitioners and Bar Councils Act, 1973---Validity---Under S.26 (d) of Legal Practitioners and Bar Councils Act, 1973, one of the prerequisites provided for admission as an advocate was that the applicant had undergone such course of training and passed such examination after the training as might be prescribed by the Pakistan Bar Council---Rule 108-B of the Rules catalogued the formalities and prerequisites of the application, including a certificate/result card issued by the NTS or any other authority duly notified by Pakistan Bar Council---Pakistan Bar Council had assigned the NTS with responsibility to conduct 'LAW Graduate Assessment Test' (LAW-GAT), which was not violative of any law except that the same was an agreement and arrangement which might be determined at any time by the parties in accordance with the terms of the engagement if any---Section 55 of the Act provided for the various rule-making powers which were also included in the functions of Pakistan Bar Council under S. 13 of the Act including the rule-making power for general principle and for guidance of the Provincial Bar Councils---Applicability of S. 26 of the Act emanated and cropped up only after completion of pupilage and not prior thereto---Article 18 of the Constitution had not prevented the regulation of any trade or profession by licensing system---Right to join any profession etc. was not an absolute right and the same was liable to certain restrictions---To join legal profession was although a fundamental right but to become an advocate on one's own terms and conditions was not the fundamental right and he had to follow all the procedural requirements---Rule 108-C, proviso of Pakistan Legal Practitioners and Bar Councils Rules, 1976 [As amended by Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 2013] was not in derogation of the substantive provisions of the Act nor the same was repugnant nor militates or rendered the provisions of the Act ineffective; rather the provisions of the Act and that of the Rules both could stand together and there was no conflict in which circumstances the Rules must give way to the provisions of the Act---Doctrine of severability permitted the Court to sever the unconstitutional portion of a partially unconstitutional statute to preserve the operation of any uncontested or valid remainder---Rule 108-B(1) of the Rules merely expressed a formality to attach certificate/result card issued by the NTS or any other authority duly notified by the Pakistan Bar Council, as to applicant's having passed the assessment test; therefore, the same had not adverse repercussions or ramifications---High Court, therefore, declared the impugned rule and the assessment test conducted therein as valid and in accordance with the provisions of the Legal Practitioners and Bar Councils Act, 1973---Constitutional petitions were dismissed---Principles.

Under Section 26(d) of Legal Practitioners and Bar Councils Act, 1973, one of the prerequisites provided for admission as an advocate was that the applicant had undergone such course of training and passed such examination after the training as might be prescribed by the Pakistan Bar Council. Rule 108-A of Pakistan Legal Practitioners and Bar Councils Rules, 1976 [As amended by Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 2013] postulated that any person qualified to be admitted as an advocate under Section 26 of the Act might make an application in Form 'A' prescribed by the Pakistan Bar Council for admission as an advocate to the Provincial Bar Council within whose jurisdiction he proposed to practice generally. Rule 108-B of the Rules catalogued the formalities and prerequisites of the application, including a certificate/result card issued by the NTS or any other authority duly notified by Pakistan Bar Council, as to show that the applicant had passed the assessment test as laid down in Rule 108-B(1) of the Rules.

National Testing Service had not been constituted under any statute, and it was only a service provider venture, which arranged facility and infrastructure to make easy and facilitate the required assessment or aptitude test. Pakistan Bar Council had assigned the NTS with responsibility to conduct 'LAW Graduate Assessment Test' (LAW-GAT). Pakistan Bar Council had made arrangement of the assessment test through the NTS, which by all means was a contractual engagement between a service provider and the apex body of all the Provincial Bar Councils; thus, such an engagement was not violative of any law except that the same was an agreement and arrangement which might be determined at any time by the parties in accordance with the terms of the engagement if any.

Section 13 of Legal Practitioners and Bar Councils Act, 1973 provided for functions of the Pakistan Bar Council, which included to lay down standards of professional conduct and etiquette for advocates, to promote and suggest law reforms, to exercise general control and supervision over the Provincial Bar Councils and to issue directions to them from time to time to promote legal education, prescribe standards of such education in consultation with the universities in Pakistan and the Provincial Bar Councils, to recognize universities whose degrees in law would be qualification for enrolment as an advocate and to do all things necessary for discharging the functions. Likewise, section 9 of the Act provided for the function of the Provincial Bar Councils. Section 55 of the Act provided for the various rule-making powers which were also included in the functions of Pakistan Bar Council under Section 13 of the Act including the rule-making power for general principles and for guidance of the Provincial Bar Councils. Provincial Bar Councils had to work together within the framework of the provisions of the Act, wherein each Bar Council had been invested with the powers to deal with the affairs of the advocates while the Pakistan Bar Council being the appellate and supervisory body of all the Provincial Bar Councils stood on a higher pedestal.

S.M. Gharib Nawaz Daccawala v. Sindh Bar Council and another PLD 2001 SC 84 rel.

Pakistan Legal Practitioners and Bar Councils Rules, 1976 [As amended by Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 2013] could not go beyond the scope of Legal Practitioners and Bar Councils Act, 1973, and examination of the amendment to recapitulate whether the Rules made was inconsistent with or in derogation of substantive provisions of the law or statute was not beyond the province of the court. Section 26 of the Act provided certain qualifications for admission as an advocate but the same came in the way only after filing intimation and undergone such course of training and pass examination after the training as might be prescribed by the Pakistan Bar Council. No separate or independent provision specified itself under the Act as to how a new entrant might file his Intimation Form and what further formalities he had to meet with at the time of filing the intimation or even what requirements he had to fulfil and comply with after completion of his pupilage; all those peculiarities and procedure were provided under the Rules framed by the Pakistan Bar Council. Applicability of Section 26 of the Act emanated and cropped up only after completion of pupilage and not prior thereto.

Requirement of assessment test naturally ensured at very initial stage when a person after passing LLB final examination decided to join the legal profession. Article 18 of the Constitution had not prevented the regulation of any trade or profession by licensing system. Expression 'subject to qualification if any as may be prescribed by law' connoted that the State or the competent authority in law could regulate any trade, profession or business. Right to join any profession etc. was, therefore, not an absolute right and the same was liable to certain restrictions. To join legal profession was although a fundamental right but to become an advocate on one's own terms and conditions was not the fundamental right and he had to follow all the procedural requirements.

Bar Councils had created a concept of assessment test under Pakistan Legal Practitioners and Bar Councils Rules, 1976 [As amended by Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 2013] and Legal Practitioners and Bar Councils Act, 1973, which was not derogatory or inconsistent with the Act nor did the same violate or militate the fundamental right of any person. Pakistan Bar Council and the Provincial Bar Councils had to formulate and compose all the best possible efforts to maintain the high standards and benchmarks for the noble profession of law and that was their onerous duty to apply assessment test as a precondition of 'Intimation Form' to sift and screen the right and deserving persons so that they might maintain the decorum and high standard of the legal profession as the true successors of their exalted vocation for which assessment test was an excellent device and yardstick.

Rule 108-C, proviso of Pakistan Legal Practitioners and Bar Councils Rules, 1976 [As amended by Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 2013] was not in derogation of the substantive provisions of the Act nor the same was repugnant nor militates or rendered the provisions of the Act ineffective; rather the provisions of the Act and that of the Rules both could stand together and there was no conflict in which circumstances the Rules must give way to the provisions of the Act. Introduction of the assessment test for new entrants also did not violate or contravene any fundamental right of any person nor was the same discriminatory to any individual, and rather the same was applicable across the board with a broad spectrum. Curriculum of the assessment test showed that it had virtuously confined and restricted to the subject of law and that was not conceivable that a contender who had appeared in various subjects of law and passed his LL.B. final examination could not sit and solve the assessment paper.

Doctrine of severability permitted the Court to severe the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder, but if the valid portion was so closely mixed up with the invalid portion that it could not be separated without leaving an incomplete or more or less mixed remainder, the court would declare the entire Act void. No such situation had arisen in the present case to declare the Rule 108-C, proviso of Pakistan Legal Practitioners and Bar Councils Rules, 1976 [As amended by Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 2013] as void. Rules framed under the delegated legislation could easily be adjusted in the light of experience of its working which had been done by the Pakistan Bar Council, which was a rule-making authority. Present case was not regarding that the provisions of Section 26 of the Act and Rule 108-C, proviso of the Rules were so inextricably mixed up that they could not be separated from one another so that the invalidity of a portion must result in the invalidity of the Act in its entirety; on the other hand, both were distinct and separate. Doctrine of severability was, therefore, not applicable in the present case for the court to preserve the operation of any uncontested or valid remainder and declare Rule 108-C, proviso of the Rules in derogation of the substantive provisions of the Act. Rule 108-B(1) of the Rules merely expressed a formality to attach certificate/result card issued by the NTS or any other authority duly notified by the Pakistan Bar Council, as to applicant's having passed the assessment test; therefore, the same had no adverse repercussions or ramifications.

M.Q.M. and others v. Province of Sindh and others AIR(sic) 1957 SC 628 rel.

High Court provided that the intimation forms already accepted by the Sindh Bar Council in view of the earlier decision of the Executive Committee of the Council would not be subject to the assessment test at that stage, and that in future all intimation forms would be accepted after fulfilling the requirement of Assessment Test as envisaged under Rule 108-C of Pakistan Legal Practitioners and Bar Councils Rules, 1976 [As amended by Pakistan Legal Practitioners and Bar Councils (Amendment) Rules, 2013]. Constitutional petitions were dismissed in circumstances.

Province of East Pakistan and another v. Nur Ahmed and another PLD 1964 SC 451; Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806; Suo Motu Case No.11 of 2011 (PLD 2014 SC 389); Suo Motu Case No.13 of 2009 (PLD 2011 SC 619); Pakistan Bar Council v. Federal Government and others PLD 2007 SC 394; Qaiser Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846; Khursheed Ahmed Junejo and others v. Government of Sindh and others 2005 MLD 1724; M.Q.M. and others v. Province of Sindh and others 2014 CLC 335 and AIR(sic) 1957 SC 628 ref.

(b) Words and phrases---

----'Lawful'---Meaning.

(c) Words and phrases---

----'Profession'----Meaning and scope.

Judicial Review of Public Actions by Justice (R) Fazal Karim (page 719, Chap. 10, Vol.1) rel.

(d) Words and phrases---

----'Occupation'---Meaning and scope.

Judicial Review of Public Actions by Justice (R) Fazal Karim (page 719, Chap. 10, Vol.1) rel.

(e) Words and phrases---

----'Legal profession'---Definition and historical background.

http://www.britannica.com/topic/legal-profession rel.

(f) Words and phrases---

----'Aptitude test'---Meaning and scope.

AIR 1957 SC 628; http://www.britannica.com/topic/legal-profession; Kamran Shehzad Siddiqui and 2 others v. Administration Committee and 2 others 2010 PLC (C.S.) 957; Miss Hina Javed v. Government of N.-W.F.P. 1998 SCMR 1469; S.M. Gharib Nawaz Daccawala v. Sindh Bar Council and another PLD 2001 SC 84; Judicial Review of Public Actions by Justice (R) Fazal Karim (Page 719, Chap. 10, Vol 1); Judicial Review of Public Actions by Justice (R) Fazal Karim, Chap. 3, page 1281, Vol.2 and Bennion on Statutory Interpretation, Fifth Edn. (Comment on Code S.59, Page 263) and Justice G.P. Singh, in his book "Principles of Statutory Interpretation 12th Edn. 2010, P.1051. rel.

(g) Interpretation of statutes---

----Subordinate legislation----Scope---Subordinate legislation must, in order to be law, and in order to be valid, depended on an Act.

Judicial Review of Public Actions by Justice (R) Fazal Karim, Chap. 3, page 1281, Vol.2 rel.

(h) Interpretation of statutes---

----Rules/bye-laws/forms---Rule of construction---Scope.

Bennion on Statutory Interpretation, Fifth Edn. (Comment on Code S.59, Page 263) and Justice G.P.Singh, in his book Principles of Statutory Interpretation 12th Edn. 2010, P.1051. rel.

(i) Interpretation of statutes---

----Rules/bye-laws/forms---Scope and object.

Bennion on Statutory Interpretation, Fifth Edn. (Comment on Code S 59, Page 263) and Justice G.P.Singh, in his book Principles of Statutory Interpretation 12th Edn. 2010, P.1051. rel.

(j) Interpretation of statutes---

----Delegated legislation---Scope and object.

Bennion on Statutory Interpretation, Fifth Edn. (Comment on Code S 59, Page 263) and Justice G.P.Singh, in his book Principles of Statutory Interpretation 12th Edn. 2010, P.1051. rel.

(k) Interpretation of statutes---

----'Primary legislation'/subordinate/delegated legislation'---Distinction, requirements and object.

Judicial Review of Public Actions by Justice (R) Fazal Karim, Chap. 3, page 1281, Vol.2 rel.

(l) Interpretation of statutes---

----Ultra vires, theory of----Scope and test.

(m) Severability, doctrine of---

----Scope and object.

Ms. Mehreen Ibrahim and Shajee Siddiqui for Petitioner (in C.P. No.D-209) of 2015.

Khaleeq Ahmed and Ms. Rozina Essa for Petitioner (in C.P. No.D-913) of 2015.

Aga Zafar Ahmed and Fasih-ur-Zaman Abbasi for Petitioner (in C.P. No.D-1092) of 2015.

Abrar Hassan, Syed Masroor Ahmed Alvi and Mir Arif Ali Talpur for Pakistan Bar Council.

Salahuddin Ahmed and Nadeem Ahmed for Sindh Bar Council.

Shaikh Liaquat Hussain, Standing Counsel.

Adnan Karim, A.A.G.

Date of hearing: 23rd February, 2016.

P L D 2016 Sindh 586

Before Nadeem Akhtar and Aziz-ur-Rehman, JJ

NADAR SHAH and 9 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary and another---Respondents

Constitutional Petition No.D-2703 of 2016, decided on 31st May, 2016.

(a) Interpretation of statutes---

----Rules framed under statute---Scope---Rules made or framed under statute cannot override provisions of the statue under which they were made or framed and on which their very existence is dependent.

National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited 2016 SCMR 550; Suo Motu Case No.11 of 2011, PLD 2014 SC 389; Mst. Ummatullah through attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning Karachi and 6 others PLD 2010 Kar. 236; Mushtaq Ali Shah v. N.E.D. University of Engineering and Technology. Karachi and 3 others 2010 PLC (C.S.) 392; Abdul Sattar Chughatai Malik v. Pakistan Bar Council through Secretary and another PLD 2007 Lah. 170 and Hirjina Salt and Chemicals (Pak.) Ltd., Karachi v. The Union Council, Gharo and another PLD 1972 Kar. 145 rel.

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

----S. 33---Sindh Local Councils (Elections) Rules, 2015, R.42(A)---National Assembly and Provincial Assemblies Allocation of Reserved Seats of Women and non-Muslims (Procedure) Rules, 2002, R.3---Joining of political party---Petitioners were returned candidates and their grievance was that their right to join a political party of their choice could not be denied, restricted or curtailed by virtue of a subordinate legislation---Validity---Provision of R.42(A) of Sindh Local Councils (Elections) Rules, 2015 assailed by petitioners whereby their statutory right under S.33 of Sindh Local Government Act, 2013 had been affected, was of no legal effect in view of order passed by Supreme Court and same was ultra vires the parent statute and notification in respect thereof was coram non judice---Provisions of R.3 of National Assembly and Provincial Assemblies Allocation of Reserved Seats of Women and non-Muslims (Procedure) Rules, 2002 was also a subordinate legislation and same was not tenable on same principle on which R.42(A) of Sindh Local Councils (Elections) Rules, 2015 had been held to be ultra vires---High Court declared provision of R.42(A) of Sindh Local Councils (Elections) Rules, 2015 to be of no legal effect in view of order of Supreme Court as well as ultra vires its parent legislation, Sindh Local Government Act and the Constitution---High Court further declared notification, whereby R.42(A) of Sindh Local Councils (Elections) Rules, 2015 was introduced to be coram non judice---Constitutional petition was disposed of accordingly.

Civil Appeals Nos.760 to 786 of 2016 fol.

Haider Waheed and Basil Nabi Malik for Petitioners.

Mukesh Kumar G. Karara, Addl. A.G. Sindh for Respondent No.1.

Dilawar Hussain, Standing Counsel for Respondent No.2

P L D 2016 Sindh 598

Before Salahuddin Panhwar, J

Mst. HUMAIRA ASLAM---Plaintiff

Versus

ABDUL RAHIM RAFI---Defendants

Suit No.1955 of 2014, decided on 22nd December, 2015.

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

----Reglns. 3 to 3.2---Sindh Local Government Ordinance (XXVII of 2001), S.40(a)---Easements Act (V of 1882), S.35---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Easement right---Scope---Application for temporary injunction---Conversion of residential property into commercial---Plaintiff sought injunction to restrain the defendant from converting his residential property into commercial---Plea of easementory right---Right of easement though was recognized right in law, but such right nowhere brought a permanent full stop over the use of ownership over one's own property---Ownership was required to be exercised in the manner so as to avoid certain prejudice to the right of immediate neighbours, such as light, air, etc.---Plaintiff's grievance was related to her right of easement likely to result form the illegalities/irregularities due to approval of the project in question---Project in question was still at initial stage with the clear undertaking of defendant that no violation or departure would be carried out, and the construction of the project/plot would continue strictly in accordance with the rules, procedure and approval thereof---Defendant had specifically claimed the conversion of the plot from residential into commercial under the legal resolution confirmed by the notification issued by the City District Government under S.40(a) of Sindh Local Government Ordinance, 2001---Authorities had affirmed that the defendant had obtained all the requisite approval from the concerned quarters, and that the commercial plan was with reference to the Reglns. 3 to 3.2 of Karachi Building and Town Planning Regulations, 2002---Plaintiff, in respect to her easement right, would have to prove with reference to structure of the project, acts and omissions of the defendant in completing the structure thereof, which prima facie appeared to be questions of facts and law involved in the case requiring evidence---Injunctive relief was also obtainable in case of invasion of civil right in the nature of tort, but the person seeking injunction must make out a case of actual or threatened violation of his/her right---Injunctive relief would be granted only if the plaintiff succeeded in establishing co-existence of all the three ingredients prima facie case, balance of inconvenience and irreparable injury---Application under O.XXXIX, Rr. 1 & 2, C.P.C. was dismissed in circumstances.

1994 CLC 314; 2006 YLR 2537; 1984 CLC 340; 1995 CLC 1012 (1019); 1989 MLD 1966 and PLD 2007 SC 472 ref.

PLD 2003 Kar. 477; Clifton and Defence TW Association v. President CCB PLD 2003 Kar. 495 and ATCO Lab., (Pvt.) Ltd. v. Pfizer Ltd. and others 2002 CLD 120 rel.

(b) Easement Act (V of 1882)---

----S. 35---Special Relief Act (I of 1877), Ss.42, 39 & 54---Suit for declaration, cancellation, easementory rights, permanent injunction and damages---Maintainability---Nuisance amounting to tortuous act---Public or private nuisance---Locuas sandi and permission of Advocate General---Easement right, violation of---Proof---Section 42 of Specific Relief Act, 1877 gave a right to institute a suit to any person who had any right in any property---Right to enjoyment of a property, as postulated under S.54 of Specific Relief Act, 1877, gave such right to the plaintiff, who could establish that the right to view and exposure of his commercial establishment was of some beneficial interest to her---Nuisance amounted to interference with a person's use or enjoyment of his property or any right appurtenant thereto, was a tortuous act---If an act complained of was both public and private nuisance, then any person affected by such wrong or nuisance might bring an action without permission of Advocate-General---Plaintiff, in order to maintain a suit on ground of his easement right, had to show her suffering from an independent act of other person over his own property---Plaintiff had both asserted a threat to her personal right of easement and also sought declaration and relief of damages for having suffered as result of the acts of the defendants---Plaintiff's suit was, therefore, maintainable in law.

1994 CLC 314; 2006 YLR 2537; 1984 CLC 340; 1995 CLC 1012 (1019); 1989 MLD 1966 and PLD 2007 SC 472 ref.

Marghub Siddiqui v. Hamid Ahmed Khan and 2 others 1974 SCMR 529 rel.

Muhammad Yasin Azad for Plaintiff.

Basil Nabi Malik for Defendant.

Saba Siddiqui for SBCA (Defendant No.4).

P L D 2016 Sindh 607

Before Sajjad Ali Shah, C.J. and Muhammad Junaid Ghaffar, J

SHOAIB AHMED SHAIKH and 2 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary and others---Respondents

C.Ps. Nos. D-5260 and D-3890 of 2015, decided on 4th January, 2016.

(a) Anti-Money Laundering Act (VII of 2010)---

----S. 8---Attachment---Issuance of notice before passing of an order of attachment---Validity---Law does not provide for any such issuance of notice and same cannot be claimed as a matter of right.

(b) Anti-Money Laundering Act (VII of 2010)---

----Ss. 8 & 9---Attachment of Bank accounts---Petitioners were aggrieved of attachment of their accounts by Federal Investigation Agency for purpose of investigation---Validity---Mere passing of provisional attachment order under S.8 of Anti-Money Laundering Act, 2010 did not in any manner prejudice petitioners---Such order of attachment would loose its efficacy after a maximum period of 90 days, if proceedings were not finalized in accordance with provisions of Anti-Money Laundering Act, 2010---Petitioners were asked to come forward and justify that money lying in provisionally attached accounts was not earned through proceeds of crime---Investigating Officer after completion of proceedings under S.9 of Anti-Money Laundering Act, 2010 was further required to approach Court for confirmation of provisional attachment order---Legislature had provided for a complete mechanism for rederssal of grievance of petitioners---Petitioner's appearance before High Court was premature in nature as they had bypassed remedy provided in law and invoked constitutional jurisdiction of High Court---Petitioners could not be allowed to challenge a provisional attachment order which was yet to be confirmed---Fair opportunity was given to petitioners to present their case and satisfy Investigating Officer as well as Trial Court that money lying in accounts in question had got nothing to do with alleged offence---Constitutional petition was dismissed in circumstances.

Chaudhry Muhammad Akram Waraich v. Chairman, National Accountability Bureau, Islamabad and others 1010 YLR 2766; Chaoudhry Shujat Hussain v. The State 1995 SCMR 1249; Nisar Ahmed v. The State PLD 1971 SC 174; Light Metal and Rubber Industries Pvt. Limited and others v. Sarfraz Quaudri 2011 CLD 1485; Government of Sindh and another v. Mst. Sirtaj Bibi and another PLD 2001 Kar. 442; M. Saraswathy and R. Devadass v. The Registrar Adjudicating Atrocity Under Prevention of Money Laundering Act, 2002 (Crl. O.P. No. 2240 of 2011); Gautam Khaitan and another v. Union of India and another (W.P.(C) 8970 of 2014; Alive Hospitality and Food Pvt. Limited v. Union of India (C/SCA/4171/ 2012); A. Akramunnisa Ghori v. The Chairperson Prevention of Money Laundering, Union of India, New Delhi (Writ Petitions Nos. 1912, 2870, 13421 and 22062 of 2011 ref.

Abid S. Zuberi and Ayan Memon for Petitioners.

Salman Talibuddin, Additional Attorney General of Pakistan and Asim Mansoor Khan DAG. for Respondent No.1.

Zahid Jamil for Respondent No.3.

Salahuddin Gandapur and Shahab Usto for Respondent No.4.

Khalid Hayat for Respondent No.6.

P L D 2016 Sindh 618

Before Aqeel Ahmed Abbasi, Munib Akhtar, Muhammad Ali Mazhar, Sadiq Hussain Bhatti and Salahuddin Panhwar, JJ

Messrs ABID S. ZUBERI and others---Complainants

Versus

Messrs Khawaja SHAMS-UL-ISLAM and another---Respondents

Criminal Miscellaneous Application No.79 of 2014, decided on 26th January, 2015.

(a) Contempt of Court Ordinance (V of 2003)---

----Ss. 6, 7, 9 & 11---Constitution of Pakistan, Art. 204---Legal Practitioners and Bar Councils Act (XXXV of 1973), Ss. 42 & 54---Criminal and judicial contempt of court---Use of abusive and contemptuous language against Judge of the High Court---Judge exercised restraint in not taking cognizance of the contempt---Advocates witnessing the alleged contempt filed complaint before Chief Justice of the High Court for taking action against alleged contemnors---Maintainability---Alleged incident took place in Court room of a Judge of the High Court, who instead of taking cognizance of the alleged contempt himself or referring the matter to the Chief Justice for appropriate action in terms of Art.204 of the Constitution and Contempt of Court Ordinance, 2003, exercised judicial restraint and demonstrated the grace and magnanimity which was expected from a Judge of superior Court---However, the Advocates, who witnessed the alleged incident in the open Court and were directly concerned and felt aggrieved, considered it their duty to report the matter to the Chief Justice to take appropriate action against the alleged contemnors---Bona fide of advocates in referring the matter to the Chief Justice to protect and safeguard the sanctity of the Court as well the honour of the Judge could not be doubted---Upon such complaint, the Chief Justice of the High Court, after having taken notice of the alleged incident, constituted Full Bench for taking appropriate action as per law---In such circumstances when complaint had been filed by the advocates there was no impediment in taking cognizance of such complaint by Full Bench of the High Court and issuing a show cause notice to the alleged contemnors.

(b) Contempt of Court Ordinance (V of 2003)---

----Ss. 6, 7, 9 & 11---Constitution of Pakistan, Art. 204---Legal Practitioners and Bar Councils Act (XXXV of 1973), Ss. 42 & 54---Criminal and judicial contempt of court by advocates---Use of abusive and contemptuous language against Judge of the High Court---Unconditional apology tendered by contemnors---Effect---Show cause notices, discharge of---Alleged contemnors instead of defending the allegations or contesting the contempt proceedings on merits, surrendered themselves at the mercy of the Court by tendering unconditional apology---Such unqualified apology tendered soon after issuance of show cause notices for alleged contempt of court and professional misconduct was accepted by the High Court, and show cause notices for contempt of court were discharged---High Court observed that the alleged contemnors should be careful in future and abstain themselves from indulging in any such act, which may in any manner lower the dignity and honour of the Court or the Judges, and should ensure to conduct themselves in a manner, which was required from every professional lawyer, who was expected to demonstrate the highest norms of ethics and decency; that if the alleged contemnors indulged themselves in any such activity, which in any manner was contemptuous or scandalous in nature, then, they would expose themselves to legal proceedings in accordance with law without any further leniency in such regard.

Imran Khan,Chairman, Pakistan Tehreek-e-Insaf v. State PLD 2014 SC 367; Masroor Ahsan v. Ardeshir Cowasjee PLD 1998 SC 823; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Dr. Muhammad Tahir-ul-Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others PLD 2013 SC 413 and Robkar-e-Adalat v. Muhammad Younas Arvi PLD 2015 HC(AJ&K) 1 rel.

(c) Contempt of Court Ordinance (V of 2003)---

----S. 3---Constitution of Pakistan, Art. 204---Contempt of Court---Judicial restraint---Scope---High Court observed that Judicial restraint, magnanimity and good grace should always be demonstrated by a Judge, who was saddled with onerous responsibility to impart justice to all without any fear, favour or ill will.

(d) Legal Practitioners and Bar Councils Act (XXXV of 1973) ---

----Ss. 42 & 54---Contempt of Courts Ordinance (V of 2003), S. 3---Constitution of Pakistan, Art. 204---Contempt of court---Advocate, duty of---Scope---In order to facilitate the process of delivering speedy and impartial justice to the litigant parties, it was the duty of an Advocate to provide all necessary assistance on facts and law to the Court---In such process an Advocate was required to observe not only the legal ethics and etiquettes as per Legal Practitioners and Bar Councils Act, 1973, but also to demonstrate utmost care and caution towards maintaining Court's decorum---Submissions made on behalf of clients and the language used should be temperate and polite without impugning the integrity or impartiality of the Judge and in no manner should lower the dignity of the Court.

Arshad Tayebaly, Abdul Hafeez Lakho, Syed Ghulam Shabbir Shah, Faisal Siddiqui, Abdur Rehman and Amanullah Khan for Complainants.

P L D 2016 Lahore 1

Before Syed Mansoor Ali Shah, J

AWAIS YOUNAS---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.8222 of 2015, heard on 30th March, 2015.

(a) Cantonments Local Government (Elections) Ordinance (LXXIX of 2002)---

----S. 14---Constitution of Pakistan, Arts. 17(2), 15, 16, 19 & 199---Local Government Elections on a non-party basis---Fundamental Right to freedom of association and to form and be part of a political party---Constitutionality of non-party elections under S.14 of the Cantonments Local Government (Elections) Ordinance, 2002---Petitioners, who were voters in various wards of the Cantonment challenged the constitutionality of S.14 of the Cantonments Local Government (Elections) Ordinance, 2002 whereby local government elections in the said Cantonment were to be held on non-party basis---Held, that Art.17(2) of the Constitution had been held to guarantee not only the right to form or be a member of a political party but also to operate as a political party and forming of a political party necessarily implied that right of carrying on of all its activities as otherwise the formation itself would be of no consequence---Functioning was implicit in the formation of a political party and said Art.17(2), provided a basic guarantee to the citizen against usurpation of his will to freely participate in the affairs and governance of Pakistan through political activity relating thereto---Right to form or to be a member of a political party had been held to comprise of the right to participate in and contest an election---Freedom of association as enunciated by Art.17 of the Constitution, conferred a fundamental right on every individual to partake in the political governance of the State, whilst concurrently reinforcing the Constitutional mandate to protect and advance such right through a democratic system---Fundamental Rights of freedom of assembly and freedom of speech also served to realize such Constitutional imperative and Art.17(2) of the Constitution therefore, underscored the integrality and importance of a functional political party to democracy---Article 17(2) of the Constitution along with the cluster of other Constitutional freedoms and the evolution of jurisprudence provided a Constitutional springboard for a robust and dynamic political environment, where citizens could profess their political choices, participate in political activity, had access to information so as to meaningfully oppose irrational and bad policies of the government and on the whole be active members of the political governance of the nation---Entire political architecture and the construct of Constitutional freedoms rested on the existence of spirited and dynamic political parties---Political Parties were, therefore, the engines of democracy in any country and any political activity or political space leading to formation of government of the people and for the people would be grossly inadequate and incomplete, besides being unconstitutional, unless it allowed full participation of the existing political parties in the country---High Court held that S.14 of the Cantonment Local Government (Elections) Ordinance, 2002 offended Art.17(2) of the Constitution and the concomitant Fundamental Rights under Arts. 15, 16, 19 & 19A of the Constitution and was, therefore, struck down, with the direction to the authorities to hold Cantonment Local Government Elections on party basis---Constitutional petition was allowed, accordingly.

Pakistan Peoples Party v. Government of Punjab and others PLD 2014 Lah. 330; Abraham Lincoln at the Soldiers' National Cemetery in Gettysburg, Pennsylvania, November 19, 1863; Political Parties Functions and Organisation in Democratic Societies. Wilhelm Hofmeister/Karsten Grabow, Korad Adenauer Stiftung; Minimum Standards for the Democratic Functioning of Political Parties - National Democratic Institute (NDI). www.ndi.org http://www.ndi.org.; www.parliament.uk http://www.parliament.uk; Political Parties and Democracy in Theoretical and Practical Perspectives- Developments in Party Communications by Pippa Norris. National Democratic Institute for International Affairs; IDEA (International Institute for Democracy and Electoral Assistance). cliffsnotes.com, Shmoop.com, Parliament. UK; Reference Speaker's Conference on Parliamentary Representation. See www.Parliament.UK http://www.Parliament.UK; PLD 1964 SC 673 at 692; PLD 1993 SC 473, 642; Article 2(d) of the Political Parties Order, 2002; PLD 1988 SC 416, 515-7; Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad PLD 2009 SC 107, Jammu and Kashmir Tehrik Ammal Party, and 11 others v. The Azad State of Jammu and Kashmir and another¨ PLD 1985 Azad J&K 95; All Pakistan Muslim League through Chief Organizer Sindh v. Government of Sindh through Home Secretary and 3 others 2012 CLC 714; Social Development Papers- Local Governance and Accountability Series (Paper No.III/July 2008) Electroal Institutions and Local Government Accountability = Daniel Packel; Cheema Ali, et al. Breaking The Countercyclical Pattern of Local Democracy in Pakistan¨ P.6; http://home.uchicago. edu/rmyerson/research/ pakdemoc. pdf; Okafor, Jude C, Constitutional Democracy and Caretaker Committee in Nigeria Local Government System: An Assessment Commonwealth Journal of Local Governance Issue 12: May, 2013 http://epress. lib.uts. edu.au/ojs/ index.php/cjlg; Zoe Scott, Decentralisation, Local Development and Social Cohesion: An Analytical Review¨ GSDRC Research Paper May, 2009, http://www.gsdrc. org/docs/open/po60.pdf ; Raja Rab Nawaz v. Federation of Pakistan through Secretary, Defence and others 2013 SCMR 1629; Myerson, Roger P. Local Foundations for Better Governance---A Review of Ghazala Manssuri and Vijayendra Raos Localizing Development, Policy Working Paper No. 7131, World Bank Group, 2014; Myerson, Roger P. Federalism and Incentives for Success of Democracy, Quarterly Journal of Political Science, 2006, 1:3-23, http://home.uchicago.edu/rmyerson/ research/federal.pdf; Myerson, Roger P. Constitutional Structure for a Strong Democracy: Considerations on the Government of Pakistan accessed from https:// ideas.repec.org/a/eee/ wdevel/ v53y2014icp46-54. html ; Myerson, Roger P. Local agency costs of political centralization¨, http://home. uchicago. edu/- rmyerson/ research/ localagency. pdf; Myerson, Roger P. Federalism and Incentives for Success of Democracy¨, Quarterly Journal of Political Science, 2006, 1:3-23, http://home.uchicago.edu/ rmyerson/research/federal.pdf; Judicial Review of Public Actions by Justice (Retd) Fazal Karim. P.715 (also see Benazir Bhutto cases, PLD 1988 SC 416, PLD 1989 SC 66, PLD 2002 SC 994 and PLD 2003 SC 955); PLD 1993 SC 473; Retd) Fazal Karim. Pp.715-716 and PLD 2012 SC 681 rel.

(b) Constitution of Pakistan--

----Art. 17(2) ---- Political Parties Order [C.E.'s O.18 of 2002] Preamble & Art.2(d)---Freedom of association---Right to form or be a member of a political party---Nature of the Fundamental Right to form or be a member of a political party---Representative democracy---Political parties as engines of democracy in any country---Importance and significance of political parties in a modern Constitutional State---Advantages and functions of political parties in a democratic system---Notion of existence of political parties as being integral to a representative democracy---Importance of engagement of local parties with the electorate, extensively discussed.

Pakistan Peoples Party v. Government of Punjab and others PLD 2014 Lah. 330; Political Parties Functions and Organisation in Democratic Societies. Wilhelm Hofmeister/Karsten Grabow, Korad Adenauer Stiftung; Minimum Standards for the Democratic Functioning of Political Parties - National Democratic Institute (NDI). www.ndi.org http://www.ndi.org.; www.parliament.uk http://www.parliament.uk; Political Parties and Democracy in Theoretical and Practical Perspectives- Developments In Party Communications by Pippa Norris. National Democratic Institute for International Affairs; IDEA (International Institute for Democracy and Electoral Assistance). cliffsnotes.com, Shmoop.com, Parliament.UK.; Reference Speaker's Conference on Parliamentary Representation. See www.Parliament.UK http://www.Parliament.UK; PLD 1964 SC 673 at 692; PLD 1993 SC 473, 642; Article 2(d) of the Political Parties Order, 2002; PLD 1988 SC 416, 515-7; Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad PLD 2009 SC 107, Jammu and Kashmir Tehrik Ammal Party, and 11 others v. The Azad State of Jammu and Kashmir and another¨ PLD 1985 Azad J&K 95; All Pakistan Muslim League through Chief Organizer Sindh v. Government of Sindh through Home Secretary and 3 others¨ 2012 CLC 714 and Raja Rab Nawaz v. Federation of Pakistan through Secretary, Defence and others 2013 SCMR 1629 rel.

(c) Democracy ----

----Nature of a democratic system of government---Basic elements present in any democratic system---Scope---In a democracy, every citizen could participate in the democratic process by freely acceding information about political issues, by openly expressing their own opinion on public affairs, by formulating expectations, proposals or requirements without fear of repression, by voting in elections, by engaging in civil society organizations or political parties, or by standing up as a candidate in democratic elections---Democracy, in this way, was the "government of the people, by the people, for the people"---Basic elements present in any democratic system were; that the governing bodies have to be occupied by elected authorities, who are accountable to the voters: that free and fair elections have to take place regularly; that all adults have to possess the right to vote and to be elected to political office; that freedom of opinion has to reign without anybody being persecuted for freely expressing his opinion; that free access to alternative and pluralistic sources of information should be guaranteed and that the right to form independent associations, groups of interest and political parties must exist so that such rights can be executed.

Abraham Lincoln at the Soldiers' National Cemetery in Gettysburg, Pennsylvania, November 19, 1863 and Political Parties Functions and Organisation in Democratic Societies. Wilhelm Hofmeister/Karsten Grabow, Korad Adenauer Stiftung rel.

(d) Constitution of Pakistan--

----Arts. 140A & 17(2)---Local Government---Freedom of association and to form and be part of a political party---Advantages of local government politics through political parties---Scope---Even in political systems that explicitly prohibit parties from contesting seats in local elections, national and regional parties often unofficially backed candidates in local elections, even if such support was not denoted on the actual ballot---Thus, permitting parties to compete in local elections allowed the inescapable link between local government and higher levels of government to exist openly, allowing for greater transparency---Where a strong national party system existed, parties had significant incentives to mobilize at the local level in order to improve their electoral chances at higher levels and preventing parties from participating in local elections permitted decentralized governance to retain the negative qualities of partisan politics, without gaining benefits---Such benefits included scrutiny and public accountability that came from an officially acknowledged party opposition on local councils, an opposition that had clear incentives to be vigilant and uncover instances of wrongdoing---Additionally, non-partisan candidates were often elected based on their individual popularity, rather than the strength of their ideas---Recognizing the presence of parties at the village or municipality level thus may allow more transparent representation of interest and furthermore, political competition built around personalism may be just as likely, if not more likely, to lead to relationships of clientelism and patronage than political competition built around partisanship---Permitting partisanship in local elections may ultimately be conducive to promoting accountability and empirical evidence showed that non-partisanship was either unenforceable or used as a mechanism to promote the hegemony of a specific party---Proposed advantages of openly partisan elections appeared to be linked to substantive political competition at the local and national level---Local government politics through political parties provided nurseries for national politics and it educated the common people to realize and fortify the sense of participation and social cohesion---Elected representatives were accountable and answerable to their electorates at the local level and it enhanced healthy competition between political parties and aligned their national, regional and local policies, and hence the federation was strengthened---Performance of a party at local government level also enhances its national stature.

Social Development Papers- Local Governance and Accountability Series (Paper No.III/ July 2008) Electroal Institutions and Local Government Accountability = Daniel Packel; Cheema Ali, et al. Breaking The Countercyclical Pattern of Local Democracy in Pakistan¨ P.6. http:// home.uchicago. edu/myerson/ research/ pakdemoc.pdf; Okafor, Jude C, Constitutional Democracy and Caretaker Committee in Nigeria Local Government System: An Assessment Commonwealth Journal of Local Governance Issue 12: May, 2013 http://epress. lib.uts. edu.au/ojs/ index.php/cjlg; Zoe Scott, Decentralisation, Local Development and Social Cohesion: An Analytical Review¨ GSDRC Research Paper May, 2009, http://www.gsdrc.org/docs/open/po60.pdf ; Raja Rab Nawaz v. Federation of Pakistan through Secretary, Defence and others 2013 SCMR 1629; Myerson, Roger P. Local Foundations for Better Governance---A Review of Ghazala Manssuri and Vijayendra Raos Localizing Development, Policy Working Paper No. 7131, World Bank Group, 2014; Myerson, Roger P. Federalism and Incentives for Success of Democracy, Quarterly Journal of Political Science, 2006, 1:3-23, http://home.uchicago.edu/rmyerson/ research/federal.pdf; 20 Myerson, Roger P. Constitutional Structure for a Strong Democracy: Considerations on the Government of Pakistan accessed from https:// ideas.repec.org/a/eee/ wdevel/ v53y2014icp46-54. html; Myerson, Roger P. Local agency costs of political centralization¨, http://home. uchicago. edu/- rmyerson/ research/ localagency. pdf; Myerson, Roger P. Federalism and Incentives for Success of Democracy¨, Quarterly Journal of Political Science, 2006, 1:3-23, http://home.uchicago. edu/rmyerson/research/federal.pdf and Pakistan Peoples Party v. Government of Punjab and others PLD 2014 Lah. 330 rel.

Waqar Mushtaq Toor for Petitioiner.

Bukhtiar Kasuri, Muhammad Azhar Sidduque, Muhammad Ramzan Chaudhry and Fayyas Ahmad Mehr for Petitioners in connected writ petitions.

Mian Irfan Akram and Nasar Ahmad, Deputy Attorney Generals for Pakistan for Respondents.

Syed Akmal Hussain Shah, Standing Counsel for Pakistan.

Salamn Akram Raja, Advocate/amicus curiae.

Waqar A. Sheikh for Cantonment Board.

Mahmood Ahmad Joiya for Respondents

Research by: Qaisar Abbas and Mohsin Mumtaz, Research Associates and Civil Judges, Lahore High Court Research Centre (LHCRC).

Date of hearing: 30th March, 2015.

P L D 2016 Lahore 23

Before Shahid Hameed Dar, J

MUHAMMAD AFZAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.634 of 2005, heard on 14th April, 2015.

Penal Code (XLV of 1860)--

---S. 228---Criminal Procedure Code (V of 1898), S.480---Intentional insult or interruption to public servant sitting in judicial proceedings--- Appreciation of evidence---Procedure in cases of contempt---Accused was police official who was convicted by the Trial Court trying murder case, alleging that he (police official) did not serve process to prosecution witness--- Validity---Process specifically given to accused for service of Investigating Officer was executed as the witness turned up before court on following day and was examined as prosecution witness in court---Order of the court was not a circumstance to burden accused with a notice under S.228, P.P.C.---High Court observed that there could have been many factors and mixed feelings in the mind of Trial Court about working of police but it was not an occasion to issue a notice in such perspective and seek reply thereto just within 24 hours, let alone accused would have been held guilty and awarded sentence-- Everything was done gratuitously in undue haste, without any plausible reasons and justification by Trial Court---Procedure provided under S.480, Cr.P.C. for dealing with such proposition of law and fact was thrown to winds and accused was unluckily chosen to bear brunt of the fury of court---High Court disapproved the procedure adopted and judgment given by Trial Court, therefore, the same was set aside and accused was acquitted of the charge---Appeal was allowed in circumstances.

Rana Jamshed Hussain for Appellant.

Usman Iqbal, Deputy District Public Prosecutor for the State.

Date of hearing: 14th April, 2015.

P L D 2016 Lahore 28

Before Muhammad Khalid Mehmood Khan, J

PROVINCE OF PUNJAB through Secretary, Social Welfare and another---Appellant

Versus

Mirza KHALID SHAFIQUE BAIG and 3 others---Respondents

Regular First Appeal No.43 of 2012, decided on 12th November, 2014.

Islamic Law--

----Wakf---Purpose and scope---Mere declaration by a Wakif was sufficient to complete a valid Wakf---Delivery of possession of property to the Mutawalli was not necessary when Wakif himself was the first Mutawalli---Wakf should not be deemed to be invalid merely because benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature was postponed until after the extinction of the family, children or descendents of the person creating the Wakf---Founder of the Wakf had power to appoint first Mutawalli and to lay a scheme for the administration of Wakf property and also for succession to the office of Mutawalli---No restriction existed with regard to appointment of more than one Mutawalli under the Islamic law---Purpose for making Wakf was to help the poor through government department---Department of Social Welfare had been established for the welfare of mankind---Social Welfare Department was helping the poor and providing assistance to widows---No question of inheritance would arise in case of wakf---Owner of the property, in the present case, had created Wakf, and got it registered, appointed himself and his wife joint Mutawalli of the said property-Wakif and his wife remained manager of the suit property unless they both died and after the death of joint Mutawalli the mutawalliship went to Social Welfare Department---Wakif created a valid wakf for the welfare of poor in circumstances.

Jafar Hussain and others v Mian Muhammad Hanif 2001 CLC 628; Niamatullah Shah v. Farmanullah and another 1980 SCMR 953 and Sections 203 and 204 of Muhammadan Law by D.F. Mulla ref.

Yunus Mia Chowdhury and another v. Firoz Ahmad Chowdhary and others PLD 1952 Dacca 206; Anjuman Himayat-e-Islam, Lahore v. Syed Farooq Hassan PLD 2007 SC 352; Muhammad Nawaz Tariq Mehmood v. Nlian Muhammad Shafiq 2005 YLR 2405; Abdul Razaq v. Ali Bakhsh and others PLD 1950 PC 1 and A.S. Abdul Khader Wakf for Deeni v. Saber Miah 2003 (6) ALD 625 rel.

Malik Abdul Aziz Awan, Asstt. A.G., Punjab for Appellants.

Mirza Khalid Shafique Baig and Ch. Muhammad Ishaq Sipra for Respondent No.l.

Miss Sabiha Ali Chughtai for Respondent No.2.

Date of hearing: 3rd July, 2014.

P L D 2016 Lahore 35

Before Syed Mansoor Ali Shah and Ayesha A. Malik, JJ

FLYING CEMENT COMPANY---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

I.C.A. No.1068 of 2014, decided on 29th May, 2015.

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

----Ss. 7(3), 12(b) & 31(4) & (5)---National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, R. 17(3)--- Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeal--- Determination of electricity tariff---Exclusive function/domain of NEPRA---Scope---Contention of Federal Government was that although tariff of electricity was determined by NEPRA, but it was finalized by the Federal Government under the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Validity--- Under S.7(3) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, NEPRA had the power to determine tariff, rates, charges and other terms and conditions for supply of electric power services by the generation, transmission and distribution companies and recommend the same to the Federal Government for notification-Determination or modification of tariff was one of the core functions of NEPRA, and it could not delegate such power---Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, and the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, did not contemplate any role of the Federal Government in the determination process---Actual determination of tariff laid exclusively with NEPRA, meaning that if any party including the Federal Government desired any change or modification in the tariff, which could include reasons related to the prudency of costs, it would have to file a petition before NEPRA Tariff could only be determined and modified by NEPRA---Once the tariff was determined (by NEPRA) it had to be notified by the Government---Section 31(4) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 being a specific section regarding tariff, casted an obligation on the Federal Government to notify the tariff upon intimation by NEPRA---Any interpretation to the effect that NEPRA (only) recommended the tariff determined by it to the Federal Government for re-examination and review, was not only opposed to the provisions of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, it also debilitated and enfeebled the role and purpose of NERPA, which was an autonomous and independent regulator under the said Act---Intra-Court appeal was allowed accordingly.

(b) Words and phrases--­-

---"Surcharge"---Meaning.

The Free Dictionary by Farlex ref.

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

----S. 31(5)---National Electric Power Regulatory Authority (Tafiff Standards and Procedure) Rules, 1998, R.17(3)---Constitution of Pakistan, Arts. 9 & 24(l)---Law Reforms Ordinance (XII of 1972), S.3 ---Intra-court appeal---Electricity tariff---Equalization surcharge---Debt Servicing Surcharge--- Universal Obligation Fund Surcharge--­Neelum Jhelum Surcharge-Surcharges levied on electricity tariff by the Federal Government---Legality and Constitutionality-Involuntary extraction of money from consumers-Contention of Federal Government was that the necessity to impose the surcharges in question was that they represented the cost of the system i.e., the cost of transmission, generation and distribution of electric power consumed, and included capital and development costs for future projects to produce electricity; that the Federal Government was not raising any revenue by levying surcharges but was in fact simply recovering the cost of electricity to ensure economic and efficient generation, transmission and distribution of electricity; that surcharges (costs), over and above the tariff determined by NEPRA were constitutionally permissible and could be imposed by the Federal Government--­Validity---Surcharge was an additional or extra charge on the original charge---Surcharge was supposed to be an add on or additional charge built on an existing charge---Federal Government had argued that all four surcharges (i.e. Equalization surcharge, Debt Servicing Surcharge, Universal Obligation Fund Surcharge and Neelum Jhelum Surcharge) were actually costs of the system, which were not included in the tariff determined by NEPRA---In order for such costs to qualify as a surcharge, there must first exist the original cost to which these surcharges owed their existence to-Impugned surcharges did not rest on an existing charge--- NEPRA has opined that the surcharges in question did not rest on any original cost which is or was under consideration by NEPRA---NEPRA had categorically stated that it had not allowed these costs to be included in the tariff as they did not satisfy the prudency test nor were they directly related to the costs incurred for producing, transmitting or distributing electricity--- Surcharges in question represented costs which were otherwise not included or even considered in the tariff determined by NEPRA, therefore, the impugned surcharges levied by the Federal Government, even though packaged as costs of the system did not figure in the tariff determined by NEPRA---Surcharges in question were, therefore, at best an involuntary extraction of money from the consumers of electricity, labelled as costs of the system or the distribution companies by the Federal Government-Federal Government levied surcharges in question at its own discretion with no accountability and disclosure of the amounts collected---No prescribed process was laid down under which money collected front consumers was allocated to the power producers---Mode and manner in which the money collected under the impugned surcharges was routed through different accounts maintained by different Government institutions, was not only unconstitutional but also exhibited poor financial governance and discipline, which amounted to playing a fraud on the people-Such extraction of money in the garb of surcharges from the ordinary consumer of electricity was, therefore., violative of the fundamental right to life and property. of the consumers-Impugned surcharges, also had no element of quid pro quo, therefore, they could not be labelled as fees-High Court declared the impugned surcharges namely; Equalization surcharge, Debt Servicing Surcharge, Universal Obligation Fund Surcharge and Neelum Jhelum Surcharge levied from time to time through impugned notifications, as unconstitutional and hence set aside the same-High Court directed the Federal Government to refund the amount of surcharges illegally extracted from the consumers-Intra-court appeal was allowed accordingly.

Messrs Gadoon Textile Mills, and 814 others v. WAPDA and others 1997 SCMR 641; Sohail Jute Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance and others PLD 1991 SC 329; The Treasurer 'of Charitable Endowments for Pakistan v. Central Board of Revenue and 2 others 1986 MLD 1731; Sheikh Nadeem Younas, Chief Executive, Noble Textile Mills, Pattoki, District Kasur v. WAPDA through Chairman WAPDA, WAPDA House, Lahore and 4 others 1996 CLC 1090 ref.

(d) Taxation--

----"Tax and fee"---Distinction-Tax was a common burden for raising revenue compulsorily from the public---Tax was a compulsory extraction of money by the government for a public purpose without reference to any special benefit on the payer of the tax and the amounts collected under a tax became part of the general revenue of the government---Fee on the other hand was levied for rendering some specific service and the amount collected went towards that particular purpose-In the case of a "fee" there must be an element of quid pro quo---"Tax" and "fee" were compulsory extraction of money but the difference between the two laid in the fact that the tax was not co-related to any particular service rendered but intended to meet the expenses of the government and a "fee" was meant to compensate the government for expenses incurred in rendering services to the persons from whom the fee was collected.

Collector of Customs and others v. Sheikh Spinning Mills 1999 SCMR 1402 ref.

(e) Constitution of Pakistan---

----Art. 77 & Fourth Schedule, Parts I & II-Federal Legislative List--­Taxation---Non-tax entries on the Federal Legislative List---Question as to whether the non-tax entries or subject specific generic entries on the Federal Legislative List included the power to taxation-Federal Legislature had the power to make laws in respect of any matter in the Federal Legislative List-Taxation had been specifically dealt with under entries 43 to 53 of Part-I of the Federal Legislative List-Part-II of the Federal Legislative List did not provide for any specific taxation---Purpose of providing specific entries for taxation (entries 43 to 53 of Part-I of the Federal Legislative List) showed that the constitutional intent was to consider "taxation" as a separate subject-- Taxation, therefore, could not be read into other generic subject entries in the Federal Legislative List as it enjoyed the status of a separate and distinct subject---Such special space carved out for taxation under the Constitution also found support from Art. 77 of the Constitution which mandated that tax could only be levied under the authority of an Act of Parliament---Such authority to impose taxation had to be specifically and clearly mentioned in the Constitution-In the presence of the specific and clear entries regarding taxation under entries 43 to 53 of Part-I of the Federal Legislative List, it could not be said that the generic entries also included the power of taxation-Taxation was a specific subject and unless specifically and clearly listed in the Federal Legislative List, the power of taxation, could not be read into the general subject entries. [p.62] M

State of W.B. and another v. Kesoram Industries Ltd. and others [(2004 (10) SCC 2011 and Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and E.T.I.O. and others [2007(5) SCC 447] ref.

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

----S. 31 (5)---Law Reforms Ordinance (XII of 1972), S. 3---Intra-court appeal ---Excessive delegation of power by the Legislature to the Executive---Electricity tariff---Surcharge---Power of the Executive (i.e. Federal Government) to levy surcharge on electricity tariff---Legality and Constitutionality-Section 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, provided that "distribution company shall pay to the Federal Government such surcharge as the Federal Government, from time to time, notify in respect of each unit of electric power soka to the consumers..."---Said section did not specify the design and nature of surcharge to be imposed on the sale of the electric power; it also failed to provide legislative parameters or guidelines or legislative policy for determining the amount and nature of surcharge or the number of surcharges to be levied---Legislature has left it to the discretion of the Executive to decide what it wanted to recover and how---Power vested in the hands of the Executive (under S.31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997) was unguided and uncontrolled ---Section 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, delegated an essential legislative function to the Executive which was not permissible under the Constitution---Foundations of excessive delegation owed its genesis to the doctrine of separation of powers, which was a fundamental principle of constitutional construct---Section 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, simply opened an unguided window and empowered the Executive to assume legislative responsibility, which offended separation of powers and fell within excessive delegation---Such unguided and unstructured delegation empowered the Executive with a power which was ex facie discriminatory and hence not permissible under the Constitution---High Court declared S.31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, and the impugned surcharges namely; Equalization Surcharge, Debt Servicing Surcharge, Universal Obligation Fund Surcharge and Neelum Jhelum Surcharge levied from time to time through impugned notifications, as unconstitutional and hence set-aside the same, and that the Federal Government by charging unconstitutional and illegal surcharges from the consumers of electricity had been unjustly enriched---High Court directed that the Federal Government should refund the amount of surcharges illegally extracted from the consumers; that NEPRA should work out the total amount of surcharges collected from the end consumers to date and evolve a plan for the repayment of the said amount through adjustment in tariff for the benefit of the end consumer---Intra-court appeal was allowed accordingly.

Khawaja Ahmad Hassan v. Government of Punjab and others 2005 SCMR 186; Engineer Iqbal Zafar Jhagra and another v. Federation of Pakistan and others 2013 SCMR 1337 and Messrs Pfizer Laboratories Limited v. Federation of Pakistan and others PLD 1998 SC 64 ref.

(g) Taxation ---

----Imposition, administration and implementation of taxes---Legislature and Executive, powers of-Delegation of power of taxation by the Legislature to the Executive---Scope---Legislature was omnipotent in the exercise of the taxing prerogative---Whereas the right to impose taxes and to determine the circumstances under which they would be done was the privilege of the legislative power, administration of the tax law was the responsibility of the executive power---Certain limitations on the taxing power of the Legislature were self-evident-Since the power to raise taxes was a prerogative of the public authority, a Government had only the right to impose a levy in so far as it was competent to do so-Under such principle, all that was necessary was that the rights of the tax administration and the corresponding obligations of the taxpayers be specified in the law-Implementation of the tax was generally regulated by the executive power---Power to fix the rate of tax was a legislative power but if the Legislature laid down the legislative policy and provided the necessary guidelines, that power could be delegated to the Executive---Merely on the ground that the legislature had entrusted the power to alter, modify, vary the tax, a provision could not be held to be impermissible delegation provided the legislation had given its policy and the relevant Act provided sufficient guidelines.

Taxmann's Interpretation of Taxing Statutes pp.5-9 ref.

(h) Legislature---

----Delegation of power by the Legislature---Scope---Legislature could not repose any power, essentially legislative, in another body or organ; it could not efface itself and set up a parallel legislative authority; it must exercise its judgment on vital matters of policy and enact the general principles which should be embodied in the legislation-- Legislature could, however, confer upon any person or body, fit to exercise it, the power to work out details and particulars for carrying out its policy and in order to give effect to the legislation in a particular direction---Legislature could not delegate its power to make a law but it could make a law to delegate powers to determine some facts or state of things upon which the law made or intended to make its own action dependant--- Where the law was flexible, having laid down broad principles of its policy, the Legislature could leave the details to be supplied by the administrator to adjust to the rapid changing circumstances.

Taxmann's Interpretation of Taxing Statutes pp.5-9 ref.

Appellants/Petitioners by:

Muhammad Azhar Siddique Assisted by Shahanshah Shamil Pirracha, Muhammad Wan Mukhtar, Muneer Ahmed, Shabbir Ahmad, Maryam Mazhar and Amna Liaqat, Mian Muhammad Hussain Chotya, Mustafa Kamal, Rana Ali Akbar Khan, Mian Muhammad Rashid, Miss Kohl Saleha, Muhammad Mohsin Virk, Shahzad Saleem Bhatti, Muhammad Asim Mumtaz, Adnan Ahmed, Muhammad Kamran Siddiqui, Hasham Ahmad Khan, Mian Tariq Mehmood, Mian Masroor Akbar, Ashfaq Ahmad Tabsassum, Muhammad Nawaz, Mirza Qasim Baig, Mirza Abbas Baig, Muhammad Junaid Ashraf, Saood Nasrullah Cheema, Malik Naveed Suhail, Mian Muhammad Tanveer Chotya, Fiaz Ahmed Khan Baloch, Hamad Shafqat Sulahria, Ch. Mumtaz ul Hassan, Azeem Akram, Ch. Farid Anwar, M. Irfan Liaqat, Rana Nadeem Ijaz, Khalil ur Rehman, Mohsin Ali, Saith Nadeem Hussain, Khurram Shahbaz Butt, Babar Ilyas Chatha, Ahmad Bilal, Rubia Latif, Naveed Shabbir Goraya, Ijaz Ahmad Awan, Mehar Shahid Mehmood, Ch. Muhammad Naseer Gujjar, Faisal Tahir, Ch. Inayat Ullah, Muhammad Adeel Chaudhry, Ch. Muhammad Shahbaz Kang, Amna Asif, Malik Aftab Aslam, Sheikh Akbar Ali Tahir, Mumtaz Ahmed Mangat, Jamil Khan, Rana Muhammd Zahid, Ch. Muhammad Ali, Ch. Abdul Razzaq, Ch. Anwaar-ul-Haq-1, Ms. Shabnum Aslam, Fakhar-uz-Zatnan Akhtar Tarar, Rana Ali Akbar Khan, Malik Ahsan Mehmood, Muhammad Umer Riaz, Munir Hussain Panjotha, Irtiza Ali Naqvi, Sultan Hassan Malik, Ahmed Bilal Soofi, Mirza Bilal Zafar, Ch. Naveed Akhtar Bhutta, Main Tabssum Bashir, Abid Minhas, Misbah ul Hassan Qazi, Seth Iftikhar Ali Tayyab, Muhammad Javed Iqbal Qureshi and Muhammad Rasheed Bhatti.

Respondents By:

Mirza Nasar Ahmad and Mian Wan Akram, Deputy Attorney Generals for Pakistan, Syed Akmal Hussain, Standing Counsel for Pakistan for Federation of Pakistan.

Munawar us Salam and Muhammad Shoaib Rashid for Ministry of Water and Power, Islamabad.

Muhammad Shafique for NEPRA.

Umer Sharif for WAPDA/NEPRA.

Amar Sikandar Ranjha and Mansoor Usman Awan for Respondent NEPRA.

Saad Rasool for WAPDA.

Rasaal Hassan Syed for WAPDA.

Sheikh Muhammad Ali, Barrister Haris Ramzan and Ms.Mubashra Khalid for NTDC/CPPA.

Sh. Muhammad Ali and Ms. Mubashra Khan for FESCO Sarfraz Ahmad Cheema for FESCO.

Aurangzeb Mirza for GEPCO.

Muhammad Ilyas Khan for LESCO and FESCO. Mian Muhammad Javaid for FESCO.

Dr. M. Irtiza Awan for IESCP.

Khalid Ishaq for GEPCO.

Syed Murtaza Ali Zaidi for RESCO and MEPCO.

Zargham Eshaq Khan, Joint Secretary, Ministry of Water and Power, Islamabad.

Muhammad Yousaf Raza, Manager Legal, LESCO and Muhamxnad Yasin Badar, Legal Consltant, LESCO.

Majid Khan, DG, Legal, NTDCL.

Syed Ausaf Ali, D.G. (Tariff) NEPRA.

Muhammad Shahzad, Addl. Secretary, CCI, Islamabad.

Sabir Ali, CEO, PEPCO.

Qamar uz Zaman Farooqi, Joint Secretary (Budget Imp), Ministry of Finance along with Khan Hafeez, Deputy Secretary, Ministry of Finance.

Amici Curiae:

Khaleeq-uz-Zaman, Waqqas Ahmad Mir, assisted by Hassan Niazi, Faizan Raja, Ms. Noor Bano Khan, Ms. Khizra Tariq, Ms. Fatima Arshad, Wasee-ul-Hasnain Naqvee, assisted by Barrister Saba Qaiser.

Assisted by:

Qaisar Abbas and Mohsin Mumtaz, Civil Judges/Research Officers, Lahore High Court, Research Centre (LHCRC).

Dates of hearing: 16th, 17th, I8th, 19th, 23rd, 24th, 26th February, 2nd, 3rd, 9th, 10th, 11th, 12th, 18th, 19th, 20th, 24th, 25th and 26th March, 2015.

P L D 2016 Lahore 70

Before Muhammad Farrukh Irfan Khan, J

KHAIR-UL-BASHAR---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.8286 of 2015, decided on 11th May, 2015.

Passport and Visa Manual, 2006---

----Para. 23(ii)---Constitution of Pakistan, Art. 199---Constitutional petition---Passport, issuance of---Doubts/suspicion regarding national status of an applicant---Procedure for determining national status of such an applicant---Passport issuing Authorities had to refer the cases for determination of national status to the Special Branch of Police---Similarly, para. 23(ii) of the Passport and Visa Manual, 2006, required that in case of doubt about the national status, the passport officer had to refer the matter to the Special Branch of Police for its verification-- High Court directed that in future if a Passport Officer considered a case suspicious qua national status of a passport seeker, he would refer the matter to Special Branch of Police except cases of highly sensitive nature in which assistance of Intelligence Bureau was deemed to be necessary and that too with the prior approval of D.G. Immigration and Passports; that Special Branch of Police was bound to dispose of such like cases within 15 days of being referred---Constitutional petition was disposed of accordingly.

Muhammad Ashraf Pasha for Petitioner.

Syed Nadeem Anjum, Standing Counsel.

Siraj-ul-Islam, Addl. A.G. along with Kamran Adil, AIG, Legal Punjab, Ashar Hameed, SSP Security, Muhammd Imtiaz Ali, DSP Legal H.Q. C:P.O., Office, Saif ul Murtaza, DSP Legal Special Branch and Rabia Saleem, Inspector Legal CPO, Lahore.

P L D 2016 Lahore 73

Before Shezada Mazhar, J

ALI ADNAN DAR through Attorney---Petitioner

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No.21213 of 2014, decided on 7th November, 2014.

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

---Ss. 17-A & 5, Sched---General Clauses Act (X of 1897), S.24-A--­Constitution of Pakistan, Arts. 199 & 10-A---Constitutional petition--­Maintainability---Maintenance of minor child---Interim maintenance, fixation of---Procedure---Interim order---Appeal---Family Court fixed interim maintenance of minor at the rate of Rs.10,000/- per month--­Validity---Family Court had power to pass interim maintenance order at any stage of the suit---Interim maintenance should be fixed after filing of written statement of the defendant---If defendant had found that same was excessive or if order suffered from any illegality, irregularity or same was arbitrary, fanciful, void ab initio, without jurisdiction or same had attained the status of final order, then the constitutional petition was maintainable---Constitutional petition was not maintainable where factual controversies were involved---Public Authority was required to furnish reasons for every order whether the same was executive or judicial and order for grant of interim maintenance allowance was not an exception----Family Court while keeping in view prima facie status of both the parties fixed tentative interim maintenance allowance of the minor daughter at the rate of Rs.10,000/- per month---Father was working abroad but he had not mentioned about his actual salary in his written statement---Amount fixed by the Family Court could not be termed excessive or in consistent with ostensible financial status of father in the given circumstances-- Father was under legal as well as moral obligation to maintain and support his minor daughter as per Injunction of Islam---Impugned order could not be assailed in constitutional petition as statute did not provide any appeal against interlocutory order---Impugned order was neither void ab initio nor without jurisdiction and not a final order-- Amount of Rs.10,000/- per month as an interim maintenance was sufficient to meet day to day expenses of minor daughter who was of only one and half year old---Family Court, while passing the interim maintenance was required to give the bear minimum to the minor---No illegality or material irregularity had been pointed out in the impugned order---Both the constitutional petitions were dismissed in circumstances.

Irfan Ahmed v. II-Judicial Magistrate East, at Karachi and another 2006 MLD 135; Mst. Samina Afzaal and 5 others v. Additional District Judge and another 2010 MLD 52; Awais Khalid v. Judge Family Court and others 2011 YLR 3034 and Abrar Hussain v. Mehwish Rana and 3 others PLD 2012 Lah. 420 ref..

Sikhawat Hussain v. Farzand Bibi and 6 others 2004 MLD 1834; Ghulam Mohy-ud-Din v. Mst. Mehvish 2002 YLR 3771; Muhammad Khalid Javeed v. Mst. Shahida Parveen and 4 others 2007 YLR 1366; Aamer Mehmood Hussain v. Naeha Aamer Sayed and 2 others 2011 MLD 1105; Abrar Hussain v. Mehwish Rana and 3 others. PLD 2012 Lah. 420; Nadeem Raza v. Judge Family Court and 3 others 2013 YLR 965; Muhammad Younus Khan and 12 others v. Government of N.-W.F.P through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Benedict F.D. Souza v. Karachi Building Control Authority and 3 others 1989 SCMR 918; Mst. Sitwat Chughtai and another v. Judge, Family Court, Lahore and another PLD 2009 Lah. 18 and Muhammad Saad Ali and 2 others v. Mst. Maryam Khan and 2 others 2014 CLC 715 rel.

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

----Preamble---Object---West Pakistan Family Courts Act, 1964 had been established for protection and convenience of the weaker and vulnerable segments of the society i. e. women and children.

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

----S. 17-A---Interim maintenance, fixation of---Procedure---Family Court had power to pass interim maintenance order at any stage of the suit---Interim maintenance should be fixed after filing of written statement of the defendant.

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

----S. 17-A---Interim maintenance, fixation of---Guidelines.

Following are guidelines with regard to fixation of interim maintenance for minor:

(i) Purpose behind insertion of section 17-A in Family Courts Act, 1964 is to ensure that during pendency of proceedings with Family Court, financial constraints faced by minors are ameliorated;

(ii) Family Court should broadly look into social status of parties, earning of defendant, his capacity to pay and requirements of minor is the touchstone on which Family Court should fix interim maintenance;

(iii) For the reason that no right of appeal etc. has been provided against fixation of interim maintenance, such order being tentative and interim in nature, the Family Court should be more careful and precise in such context to ward off any injustice.

I. Maintenance allowance is indispensable right of the mother and children, so the order for grant of maintenance allowance must be passed at a "convenient stage" of the proceedings.

II. Although section 17-A of the ibid Act empowers Family Court to pass an order for grant of interim maintenance allowance at any stage of the proceedings, in the normality of the circumstances, it must be passed after hearing "both of the parties" unless the attitude and conduct of the defendant/father is evasive.

III. The order for grant of interim maintenance is made on the basis of tentative assessment of the material available on file and keeping in view the social status of the parties. Further, both the above, material available and social status, should be mentioned in the order for the grant of interim maintenance. Further the quantum of interim maintenance should be "bare minimum" to meet the day to day needs of the recipient in the narrow context.

IV. Although the family laws have been enacted to promote, protect and advance the rights of women and children yet at the interim stage, the version of the respondent/defendant be given a sympathetic or somewhat preferable consideration because, non-payment of interim maintenance allowance will cut throat of his invaluable right i.e. "right to defence" and in consequential effects, children/women would be the losing and deprived parties.

V. Further, if the case is not decided within the statutory period as given in Section 12-A of the West Pakistan Family Courts Act, 1964 either party may apply to the High Court for appropriate direction. However, the order for grant of interim maintenance shall hold the field unless reviewed by High Court under Section 12-A or Family Court itself reviews it at any stage as observed below.

VI. Family Court, according to section I2-A" of the West Pakistan Family Courts Act, 1964, is under legislative direction to decide the case within six months. Although this provision is directive as no penalty/consequences are mentioned for non-compliance and in this regard reference is made to (2001 SCMR 1001). But in case the matter is not decided within six months and the delay is due to the plaintiff party, then Family Court either on its own motion or on the application of the defendant/father review its earlier order for grant of interim maintenance allowance.

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

---S. 14---Interim order---Remedy---No remedy of appeal, revision or review had been provided against an interim order passed by the Family Court.

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

----S. 14---Interim order of Family Court, review of---Scope---Family Court had power to review its own order but only to the limited extent.

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

----S. 24-A---Constitution of Pakistan, Art. 10-A---Right to fair trial--­"Scope---Public authority was required to furnish reasons for every order whether same was executive or judicial.

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

----S. 14---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Interim order---High Court avoid interference in interlocutory order where no appeal was provided in the relevant statute against interlocutory order.

Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi and others 1996 SCMR 1165; Mohtarma Benazir Bhutto, MNA and Leader of the Opposition, Bilawal House, Karachi v. The State 1999 SCMR 1447 and Spectrum Plus Limited and others v. National Westminster Bank PLC ([2005] 2 AC 680) rel.

(i) Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Constitutional petition was not maintainable where factual controversies were involved.

(j) Interlocutory order---

----Meaning---"Interlocutory order" was an order in which no final verdict was pronounced but an ancillary order was passed with the intention to keep the same operative till final order/decision was passed in the pending matter.

Rao Javed-ul-Haq Khan and Shams Nouman Qazi for Petitioner/father.

Muhammad Imran along with Respondent No.2/Mother.

P L D 2016 Lahore 85

Before Muhammad Farrukh Irfan Khan, J

MUHAMMAD AFZAL WARRAICH and others---Petitioners

Versus

MUHAMMAD RAMZAN and others---Respondents

Writ Petition No.4609 of 2012, decided on 14th May, 2015.

Punjab Sugar Factories Control Act (XXII of 1950)---

----Ss. 17 & 22----Constitution of Pakistan, Art. 199--Constitutional petition-Sale of sugarcane---Dispute resolution---Procedure---On application made by sugarcane owners, Sessions Judge in his capacity as District Chairman of Human Rights, directed police to register case against petitioners-Validity---None else except Cane Commissioner was competent to adjudicate upon claim of sugarcane owners---Punjab Sugar Factories Control Act, 1950, was a special enactment legislated for resolution of such disputes and special law had overriding effect over general law---Sugarcane owners instead of following procedure laid down in special enactment chose wrong forum for redressal of their grievance and Sessions Judge without -taking into consideration the ouster clause provided in S.22(1) of Punjab Sugar Factories Control Act, 1950, passed order in question---High Court, in exercise of constitutional jurisdiction, set aside the order passed y Sessions Judge---Petition was allowed in circumstances.

Director City Circle GEPCO Ltd. and others v. Shahid Mir and others PLD 2013 SC 403 ref.

Syed Ijaz Qutab for Petitioners.

Ch. Sultan Mehmood for Respondents.

P L D 2016 Lahore 89

Before Muhammad Anwaarul Haq and Erum Sajad Gull, JJ

BASHIR AHMAD---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.34275 of 2015, decided on 19th August, 2015.

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

----S. 23 & Third Sched. Para 4(iv)---Penal Code (XLV of 1860), Ss.336-B, 452 & 34---Constitution of Pakistan, Art.199---Constitutional petition---Hurt by corrosive substance (acid)---Jurisdiction of Anti-Terrorism Court---Scope---Offence of throwing acid on victim in a house---Plea of accused that since such alleged offence took place in the room of a house, and did not create any sense of fear or insecurity in the mind of public at large, therefore the Anti-Terrorism Court did not have the jurisdiction to try the case---Application for transfer of case from Anti-Terrorism Court to ordinary court was allowed by Anti-Terrorism Court---Validity---Offence (of throwing acid) committed by the accused, in the present case, fell under S.336-B, P.P.C. and the same was duly reflected in the Third Schedule to the Anti-Terrorism Act, 1997---Paragraph No. 4(iv) of Third Schedule to the Anti-Terrorism Act, 1997 clearly postulated that the Anti-Terrorism Court to the exclusion of any other court shall try the offence relating to hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance---Medico-legal certificate of the victim issued, in the present case, clearly reflected that the injuries on the person of the victim were the result of acid---Anti-Terrorism Court constituted under the Anti-Terrorism Act, 1997 had direct jurisdiction in the offences mentioned in Paragraph No.4(iv) of Third Schedule to the Anti-Terrorism Act, 1997 and no nexus was required to be searched for such scheduled offences as the very commission of said offences created terror, panic and sense of insecurity amongst the general public---Application moved by accused for transfer of his case from Anti-Terrorism Court to the court of ordinary jurisdiction was dismissed in circumstances---Constitutional petition was allowed accordingly.

2013 PCr.LJ 1880 distinguished.

Muhammad Yousaf v. The State and another PLD 2014 Lah. 644; Rana Abdul Ghaffar v. Abdul Shakoor and 3 others PLD 2006 Lah. 64 and Mst. Ruqqia Bibi v. Special Judge, Anti-Terrorism Court and 2 others 2015 PCr.LJ 456 ref.

Ch. Zaheer Ahmad Cheema and Muhammad Younas Bhullar for Petitioner.

Ch. Muhammad Mustafa, Deputy Prosecutor General for the State.

Ch. Muhammad Anwar Bhinder for Respondents.

Date of hearing: 19th August, 2015.

P L D 2016 Lahore 94

Before Muhammad Farrukh Irfan Khan, J

Dr. YASIN ZIA---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.13202 of 2015, decided on 2nd July, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Installation of CCTV cameras in police stations---Petitioner was Chairman of a welfare organization and sought indulgence of High Court for installation of CCTV cameras at public places including police stations and hospitals---Petitioner had also sought direction of High Court to provide ambulances and medical facilities to his organization---Validity---Installation of CCTV cameras in each police station and its monitoring at District Headquarters as per its own policy, had become essential to be undertaken in the minimum possible time in improving working of police and to a great extent, help in minimizing instances of illegal detention. abuse of inmates, verbal and physical torture of inmates and persons inside police stations---Such installation could also help develop confidence of public at large who had to go to police stations for redressal of their grievance---Petitioner was unable to refer any rule or regulation on the basis of which a welfare organization could claim facilities from the government---Constitutional jurisdiction of the High Court was meant for enforcement of a right and not for its creation---High Court turned down request of petitioner as the same was devoid of any force---Petition was dismissed in circumstances.

Petitioner in person.

Siraj-ul-Islam Khan, Addl.A.G. along with Sohail Ashraf, Addl. Secretary (Police) Home Department and Ishtiaq Butt, Section Officer, Manzar Shah L.O.

Ms. Rabia Saleem, Inspector Legal.

P L D 2016 Lahore 97

Before Sh. Azmat Saeed, C.J., Muhammad Ameer Bhatti and Muhammad Khalid Mehmood Khan, JJ

MUMTAZ HUSSAIN---Appellant

Versus

Haji MUHAMMAD BASHIR and others---Respondents

R.F.As. Nos.916, 320 and 1003 of 2011, decided on 10th April, 2012.

(a) West Pakistan Civil Courts Ordinance (II of 1962)--

----Ss. 17 & 18---Suits Valuation Act (VII of 1887), Preamble---Appeal, filing of---Pecuniary jurisdiction of Appellate Court---Suit value fixed in the plaint---Pecuniary jurisdiction of a suit for the purpose of an appeal was that which the plaintiff himself/itself fixed in the plaint and not the value ascertained by the Court.

(b) West Pakistan Civil Courts Ordinance (II of 1962)--

----S. 18---Civil Procedure Code (V of 1908), S.96---Decree passed by Civil Judge---First Appeal, filing of---Forum---District Judge or High Court---Pecuniary value of decree---Where the Civil Judge passed a decree of pecuniary value in excess of Rs.2.5 million first appeal there-against would lie before the High Court---All decrees of Civil Judge not exceeding the pecuniary value of Rs.2.5 million would be heard by a District Judge.

(c) West Pakistan Civil Courts Ordinance (II of 1962)--

----S. 17--- Civil Procedure Code (V of 1908), S.96---High Court (Lahore) Rules and Orders, Vol. V, Chap. 3, Part B, Rr.1 & 2---Decree passed by District Judge---First appeal, filing of---Forum---Single Bench or Division Bench of High Court---Pecuniary value of decree---All decrees passed by District Judge having pecuniary value of less than Rs.2.5 million would be heard by a Single Bench of High Court, whereas decrees having pecuniary value exceeding Rs.2.5 million would be heard by Division Bench of High Court.

Ali Azfar Tirmizi for Appellant.

Malik Noor Muhammad Awan and Sh. Naveed Shahryar, Amici Curiae.

Date of hearing: 16th December, 2011.

P L D 2016 Lahore 101

Before Syed Mansoor Ali Shah, Ayesha A. Malik and Ali Akbar Qureshi, JJ

BARKHURDAR---Petitioner

Versus

APPELLATE TRIBUNAL/ADDITIONAL DISTRICT AND SESSIONS JUDGE and 3 others---Respondents

Writ Petition No.31556 of 2015, heard on 19th October, 2015.

(a) Constitution of Pakistan--

----Arts. 140A & 17(2), 2A & Preamble---Representative democracy---Principles of democracy and constitutional guarantee of political justice as part of the constitutional values---Local Government---Delimitation---Constitutional vision of institutionalized participation of people at the local level, extensively discussed.

Judicial Review of Public Actions by Justice (Retd.) Fazal Karim, p.715; Benazir Bhutto's cases, PLD 1988 SC 416, PLD 1989 SC 66, PLD 2002 SC 994, PLD 2003 SC 955; Free Legal Dictionary by Farlex and the Concept of Constituency--Political Representation, Democratic Legitimacy and Institutional Design (Cambridge University Press) rel.

(b) Punjab Local Governments (Conduct of Elections) Rules, 2013--

----Rr. 12(2), 14(7), 14(3)(b) & 2(f)---Punjab Local Government Act (XVIII of 2013), Ss. 2(v), 8 & 27---Constitution of Pakistan, Arts. 199, 140A & 17(2)---Constitutional petition---Local government elections---Nomination for elections---Scrutiny of nomination papers---Mandatory nature of requirement of having a proposer and seconder from the same constituency from where a candidate had been nominated---Constituency---Scope---Petitioner filed nomination papers for elections to the seat of General Member of a Ward in a Union Council, and admittedly, the proposer and seconder belonged to a different Ward of the same Union Council---Question before the High Court was as to whether the proposer and seconder under R. 12(2) of the Punjab Local Governments (Conduct of Elections) Rules, 2013 must be from the constituency from where a candidate had been nominated---Held, that a "constituency" was a territorial or geographical compact where a group of voters held an election to elect a representative and, in the present case, Ward was the smallest territorial compact where elections were held to directly elect a person to the seat of a General Member, who then became one of the six General Members of the Union Council, which constituted a Local Government and therefore, "Ward" was "a constituency"---No one could contest elections on his own unless nominated by a proposer or a seconder from the same constituency and "nomination" meant the act or instance of appointment of a person to an office---Philosophy and rationale of nomination was to actualize the Constitutional vision of representative democracy by ensuring that the contesting candidate was a person who had been nominated by the electors (proposer and seconder) of the constituency to represent the constituency, if elected and nomination went to the heart of the concept of representation of electoral constituency in a democracy---Every constituency must nominate a candidate to represent the constituency and without inviting nominations, anyone could come forward and contest elections from an electoral constituency, resulting in a sham electoral representation, thereby usurping the right to political participation of the voters of the unrepresented constituency---In order to confirm the representation of the constituency, the proposer and a seconder have to sign the nomination papers of the candidate contesting from the constituency which statutory requirement of a proposer and a seconder to be from the same constituency was provided under R.12(2) of the Punjab Local Governments (Conduct of Elections) Rules, 2013---Elections, in the present case, were being held in a Ward which was a delimited electoral area, to fill the seat of a General Member, and therefore, a Ward was a constituency and the proposer and the seconder must be from the same said ward/constituency for the nomination papers to meet the requirement of R.12(2) of the Punjab Local Governments (Conduct of Elections) Rules, 2013---Contention that a Ward was not a local government under S.2(v) of the Punjab Local Government Act, 2013 and since the elections were for electing members of the local government, the proposer and seconder could be from any ward of the local government, was not tenable as the election process under the Punjab Local Government Act, 2013 and the Punjab Local Governments (Conduct of Elections) Rules, 2013 worked on the basis of electoral constituencies and a constituency was primarily a geographical area with a pool of electors and could also happen to be a local government---High Court observed that importance of a proposer and seconder was in the context of a constituency and not of a local government and if the said contention was taken to be correct, certain wards in a Union Council would go unrepresented which was against the spirit of representative democracy and equitable representation of electoral constituencies---Nomination papers of a candidate were liable to be rejected if the proposer or seconder were not from the same constituency in which the elections were being held.

Judicial Review of Public Actions by Justice (Retd.) Fazal Karim, p.715; Benazir Bhutto's cases, PLD 1988 SC 416, PLD 1989 SC 66, PLD 2002 SC 994, PLD 2003 SC 955; Free Legal Dictionary by Farlex and Concept of Constituency--Political Representation, Democratic Legitimacy and Institutional Design (Cambridge University Press); Oxford Advanced Learner's Dictionary (8th Edn.) and Black's Law Dictionary 9th Edn.rel.

(c) Punjab Local Governments (Conduct of Elections) Rules, 2013--

----Rr. 14(7), 14(3)(b) & 12(2)---Constitution of Pakistan, Arts. 199, 140A & 17(2)---Constitutional petition---Local government elections---Nomination for elections---Scrutiny of nomination papers---Mandatory nature of requirement of having a proposer and seconder from the same constituency from where a candidate had been nominated---Defects of a substantial nature---Scope---Defects which could not be remedied by Returning Officer under R.14(7) of the Punjab Local Governments (Conduct of Elections) Rules, 2013---Scope---Petitioner filed nomination papers for elections to the seat of General Member of a Ward in a Union Council, and admittedly, the proposer and seconder belonged to a different Ward of the same Union Council, and on the said ground, petitioner's nomination papers were rejected---Question before the High Court was as to whether having a proposer or a seconder in the nomination paper from another constituency was a defect of "substantial nature" which could not be remedied by the Returning Officer at the time of scrutiny under R.14(7) of the Punjab Local Governments (Conduct of Elections) Rules, 2013---Validity---Requirement of a proposer or a seconder to be from a constituency in which the elections were being held was a mandatory provision for, inter alia, Constitutional reasons and the same had been explicitly provided under R.12(2) of Punjab Local Governments (Conduct of Elections) Rules, 2013---Under R.14(3)(b) of the Punjab Local Governments (Conduct of Elections) Rules, 2013, nomination papers stood rejected if the proposer or seconder were not qualified to subscribe to the nomination papers and such qualification of a proposer and seconder was that he or she must be a voter from the same constituency wherein the elections are being held and no other qualification was envisaged in law---Said Rr.12(2) & 14(3)(b) of the Punjab Local Governments (Conduct of Elections) Rules, 2013, therefore, established the substantiality of the requirement of a proposer and seconder in a nomination paper and the same was a mandatory requirement of law and there was no provision under the law to waive said statutory requirement---High Court observed that under R.12(7) of the of Punjab Local Governments (Conduct of Elections) Rules 2013, a person may be nominated for a seat in the same constituency by not more than five nominations and under R.14(4) of Punjab Local Governments (Conduct of Elections) Rules, 2013, and the rejection of one nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper---High Court further observed that with such flexibility and concession available under the law, R.14(7) of the of Punjab Local Governments (Conduct of Elections) Rules, 2013 had to be viewed and interpreted strictly and a defect in the constituency of the proposer or seconder was to be considered as a defect of a substantial nature---Mention of a proposer or seconder in the nomination papers from a different constituency was a defect of a substantial nature and therefore could not be remedied by the Returning Officer under R.14(7) of the Punjab Local Governments (Conduct of Elections) Rules, 2013.

Reading the Law--The Interpretation of Legal Texts-Scalia and Garner, P.195; Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood PLD 2007 SC 277; Mudassar Qayyum Nahra v. Election Tribunal Punjab, Lahore and 10 others 2003 MLD 1089; Hafiz Muhammad Abbas v. Returning Officer and 16 others 1993 MLD 2509 and Asif Khan v. Returning Officer 2003 MLD 230 rel.

(d) Punjab Local Governments (Conduct of Elections) Rules, 2013--

----Rr. 14(7) & 12(2)---Interpretation of Rr. 14(7) & 12(2) of the Punjab Local Governments (Conduct of Elections) Rules, 2013---Mandatory nature of requirement of having a proposer and seconder from the same constituency from where a candidate had been nominated----Scrutiny of nomination papers of a candidate---Rejection of nomination papers---Defects of a "substantial nature"---Proposer and seconder not being from the same constituency in which the elections were being held was a "defect of substantial nature", which could not be remedied by the Returning Officer in terms of R.14(7) of the Punjab Local Governments (Conduct of Elections) Rules, 2013---Concept, scope, rationale explained.

Judicial Review of Public Actions by Justice (Retd.) Fazal Karim, p.715; Benazir Bhutto's cases, PLD 1988 SC 416, PLD 1989 SC 66, PLD 2002 SC 994, PLD 2003 SC 955; Free Legal Dictionary by Farlex and the Concept of Constituency--Political Representation, Democratic Legitimacy and Institutional Design (Cambridge University Press) rel.

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

----Ss. 27, 29 & 144---Punjab Local Governments (Conduct of Elections) Rules, 2013, Rr. 2(e) & 2(g), 12(2) & 14(7)---Constitution of Pakistan, Arts.140A, 17(2)---Conduct of local government elections---Constitutional themes of representative democracy and political justice---Distinction between "qualification of a candidate" and "nomination of a candidate"---Effect of invalidation of nomination of a candidate on the qualification of such a candidate---Qualifications and disqualifications of a person desirous of being elected as a member or to hold an elected office were provided for under S.27 of the Punjab Local Government Act, 2013---To be qualified to be elected as member of the local government was one thing and to participate in the electoral process and contest the elections was yet another---Qualified person may or may not contest the elections, but once such person decided to jump into the electoral fray, he was subjected to the rigours of the electoral scheme---Even a person qualified to be elected as member could not contest elections unless he was nominated from a constituency to contest the elections---Nomination was, therefore, integral to the electoral process for Constitutional and political reasons and qualification of a candidate alone did not meet the Constitutional requirement of representative democracy and political justice---Qualifications coupled with valid nomination achieved such constitutional vision---Local Governments (Conduct of Elections) Rules, 2013 was a complete electoral code for conducting the elections under the provisions of the Punjab Local Government Act, 2013---Qualifications and nomination were two disparate themes and one was a pre-condition for participating in the elections, while the other was a mandatory part of the electoral process and was there to meet the democratic and Constitutional goals which were foundational to any representative elections---Rules 2(e) & (g) of the Punjab Local Governments (Conduct of Elections) Rules, 2013 provided that a person qualified to participate in the elections became a "candidate" when he was nominated for an election under the Punjab Local Governments (Conduct of Elections) Rules, 2013, and a "contesting candidate" when he was a validly nominated candidate---Invalidation of a nomination paper on the grounds stated in Rr.12(2) or 14(3)(b) of Punjab Local Governments (Conduct of Elections) Rules 2013 had no bearing on the qualifications of the candidate.

(f) Words and phrases---

----"Nomination"---Meaning---Nomination meant the act or instance of appointment of a person to an office.

Free Legal Dictionary by Farlex rel.

(g) Words and phrases ---

----"Constituency"---Meaning---Constituency meant the whole body of voters who elected one representative, or the people who lived in and voted in a particular district, or a body of citizens dwelling in a defined area and entitled to elect a representative---Constituency was a territorial or geographical compact where a group of voters held an election to elect a representative.

Free Legal Dictionary by Farlex; Oxford Advanced Learner's Dictionary (8th Edn.) and Black's Law Dictionary 9th Edn.rel.

(h) Words and phrases ---

----"Local Government"---Meaning---Local government is an administrative body for a small geographic area, such as a city, town, county, or state---Local government will typically only have control over their specific geographical region, and cannot pass or enforce laws that will affect a wider area---Local governments could elect officials, enact taxes, and do many other things that a national government would do, just on a smaller scale.

http://www.businessdictionary.com rel.

(i) Interpretation of statutes ----

----Interpretative canon of noscitur a sociis -----Application of the established interpretative canon of noscitur a sociis, was that associated words bore on one another's meaning and nature of errors, for example; name and serial number, etc. were clerical and cosmetic.

Reading the Law-The Interpretation of Legal Texts-Scalia and Garner, p.195 rel.

(j) Interpretation of statutes--

----Interpretative canon of ejusdem generis---Application of the interpretative canon of ejusdem generis was that where general words followed an enumeration of two or more things, they applied only to persons or things of the same general kind or class specifically mentioned.

Reading the Law-The Interpretation of Legal Texts-Scalia and Garner, p.195 rel.

Petitioners by:

Malik Asif Ahmed Nissoana, Shah Nawaz Dhillon, Ijaz Ahmed, Ch. Asif Zaman Chatha, Rana Adnan Ahmed, Malik Ejaz Ahmed Phullarwan, Imdad Ali Nekokara, Muhammad Rizwan Ghumman, Ch. Muhammad Ashraf Jalal, Shoaib Ahmed Malik, Rai Sarfraz Ali Khan, Ch. Muhammad Arfan Faiz Kalaar, Malik Nisar Ahmed Khokhar, Ch. Imran Arshad Naro, Sikandar Zulqarnain Saleem, Sh. Muhammad Umar, Abdul Razzaq Chadhar, Mian Shahid Ali Shakir, Ch. Muhammad Yaqoob, Malik Nisar Ahmed, Muhammad Asif Bhatti, Ch. Umar Farooq, Burhan Moazzam Malik, Khushi Muhammad Naseem, Rana Saif Ullah Khan, Syed Mohsan Raza Shah, Usman Shahzad Malik, Akhtar Ali Noshai, Ch. M. Lehrasib Khan Gondal, Ch. Rab Nawaz, Mian Muhammad Waheed Akhtar, Fayyaz Ahmad Ranjha, Faisal Shahzad Arshad, Tariq Mehmood Bajwa, Ghulam Mustafa Ch., Malik Saleem Iqbal Awan, Nadeem Ahmad Ansari, Malik Matee Ullah, Muhammad Fayyaz Siddique, Raja Abdul Rehman, Muhammad Irfan Malik, Muhammad Iqbal Ghuncha, Rana Nauman Khalid, Malik Muhammad Shahbaz Nithar, Mustafa Shaukat Imran Pasha, Saqib Akram Gondal, Qadeer Ahmad Rana, Malik Abdul Khaliq, Asif Mahmood Cheema, Zulfiqar Ahmad Bhatti, Khalil ur Rehman, Mirza Azhar Iqbal, Ch. Zulfiqar Ali, Ch. Muhammad Naveed Akhtar Bhatti, Mian Maqsood Ahmad-I, Ch. Nazir Ahmad Ranjha, Mian Muhammad Ismail Thaheem, Muhammad Asif Ismail, Shah Nawaz Shah, Malik Muhammad Imtiaz Mahl, Ch. Faisal Mehmood Sivia, Ch. Amin Rehmat, Ch. Ghulam Sarwar Nihung, Rana Liaqat Ali Khan, Gohar Nawaz Sandhu, Muhammad Anwar Bhatti, M. Jasim Warraich, Mushtaq Ahmad Mohal, Rai Salah-ud-Din Kharal, Muhammd Abdul Quddus and M. Mehmood Ch., Advocates.

Respondents by:

Naseer Ahmad Bhutta, Additional Attorney General for Pakistan.

Mian Irfan Akram, Deputy Attorney General for Pakistan.

Ms. Hina Hafeez Ullah Ishaq, Standing Counsel for Pakistan.

Omer Farooq Khan, Assistant Advocate General Punjab.

Ch. Muhammad Amin Javed, Waqar A. Sheikh and Ghulam Abbas Haral, Advocates in connected matters.

Ali Akhtar Khan and Hafiz Adeel Ashraf, Law Officers of Election Commission of Pakistan. Ch. Abrar Ahmad, Director Law Local Govt. and Community Department, Govt. of Punjab, Muhammad Fahad, Law Officer, Local Govt. and Community Department, Govt. of Punjab and Qadeer Mughal, Section Officer (Regulations) LG&CD.

Research by:

Qaisar Abbas and Mohsin Mumtaz, Research Associates and Civil Judges, Lahore High Court Research Centre (LHCRC).

Date of hearing: 19th October, 2015.

P L D 2016 Lahore 123

Before Shahid Karim, J

Dr. SHAHIDA HASNAIN---Petitioner

Versus

Mian UMAR IKRAM UL HAQ and another---Respondents

Writ Petition No.3925 of 2015, heard on 10th June, 2015.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 24, 10 & 15---Eviction of tenant---Denial of relationship of landlord and tenant by the tenant---Tentative rent, deposit of---Scope---Word "rent due" mentioned in S.24 of Punjab Rented Premises Act, 2009---Scope---Agreement to sell---Effect---Leave to contest was granted but no order was passed for deposit of interim rent on the ground that relationship of landlord and tenant had yet to be determined---Validity---Tenor of S.24 of Punjab Rented Premises Act, 2009 did not make a distinction between the cases where relationship of landlord and tenant was admitted and where same had been denied---Rent Tribunal was bound to make an order for deposit of rent due from the tenant and continue to deposit the same in accordance with tenancy agreement when leave to contest was granted---If there was dispute with regard to rent then Rent Tribunal should tentatively determine the rent and order for deposit of the same---Word "rent due" would include a dispute of the nature where relationship of landlord and tenant had been denied---Tenancy agreement should have been formed the basis for determination of dispute between the parties---Rent Tribunal was not bound to rely upon the agreement to sell while refusing to exercise jurisdiction---Tentative rent might be deposited with the Rent Tribunal in case of dispute with regard to amount or rate of rent or a denial of relationship of landlord and tenant and reimbursed at the conclusion of trial--Such act would also discourage multiplicity of litigation---Agreement to sell or any other agreement between landlord and tenant would not affect relationship between them---Agreement to sell did not create a title or right---If defense had been set up on the basis of same then tenant must first vacate the premises and then he/she might claim on the basis of that agreement to sell---No reason had been given for failure to make an order for payment of interim rent---Impugned order was presumptuous and tendentious---Impugned order to the extent of refusal to order the deposit of rent was set aside---Rent Tribunal was directed to determine the interim rent before proceeding further with the merits of eviction petition---Constitutional petition was accepted in circumstances.

Rana Abdul Hameed Talib v. Additional District Judge, Lahore and others PLD 2013 SC 775; Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Qamar ud Din v. Abdul Latif and others 2010 YLR 114; Muhammad Iqbal Haider and another v. Vth Rent Controller/Senior Civil Judge, Karachi Central and others 2009 SCMR 1396; Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242 and Syed Bahadur Ali Shah v. Additional District Judge and 3 others 2012 YLR 2293 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----Preamble---Object---Punjab Rented Premises Act, 2009 had been promulgated to discourage and ward off unscrupulous and irrational defenses on the part of tenants.

Ch. Riasat Ali for Petitioner.

Nemo for Respondents.

Date of hearing: 10th June, 2015.

P L D 2016 Lahore 130

Before Shams Mehmood Mirza, J

BASHIR AHMAD and others---Appellants

Versus

MUHAMMAD BAKHSH through Legal Heir---Respondent

R.S.A. No.60 of 2005, heard on 10th April, 2015.

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

----S.12---Qanun-e-Shahadat (10 of 1984), Arts. 3, 61, 72, 78, 79 & 129---Civil Procedure Code (V of 1908), O.VI, R.2---Suit for specific performance of agreement to sell---Execution of document---Proof---Proof of signatures and handwriting of person alleged to have signed or written document produced---Deed writer of scribe of agreement without licence---Competency as witness---Trial Court decreed the suit and first appellate court dismissed the same for lack of proof as to execution of agreement to sell---Defendant took plea that plaintiff should have asked Trial Court to send the agreement to sell and payment receipt to handwriting expert for his opinion as to thumb impression of defendant on the same---Validity---Plaintiff had produced two attesting witnesses, whose testimony remained consistent in cross-examination---Plaintiff had also produced scribe or deed writer by way of corroboration---Fact that plaintiff witness, deed writer, did not have license of deed writing did not prejudicially impinge upon his testimony and had no bearing on the fate of the case, more so when lower appellate court did not give any reasons for disbelieving testimony of marginal witnesses---Pleadings needed to contain only basic and material facts and not the evidence---Fact that plaintiff had not mentioned in his plaint that they were tenants of defendant was of no consequence---Plaintiff had produced best possible evidence in shape of original documents and the marginal witnesses---No contradictions or discrepancies existed in testimony of witnesses produced by plaintiffs---Appellate court below therefore, had no occasion to disbelieve the evidence of plaintiff---Appellate court had not taken into consideration statement of defendant witnesses terming the same as hearsay, who had admitted that his father, defendant, had signed the agreement to sell---Marginal witnesses and scribe of the agreement had been produced, which remained consistent as to that the agreement to sell and receipt of payment of consideration had been executed by defendant---Plaintiffs had thus fulfilled the requirements of proof of documents in question---Direct evidence, in the present case, was produced by plaintiffs in shape of marginal witnesses and scribe, and as such there was no need for plaintiff to move Trial Court for sending the documents to handwriting expert---Whenever evidence, which was legally required to be provided to prove execution of a document, had been produced, then the other party, denying the execution of the document, had to produce handwriting expert in proof of his denial of execution---Defendant had not moved necessary application before Trial Court for sending the document in question to handwriting expert---Failure to ask court to refer the matter to handwriting expert would raise inference against the party---High Court observed that where none of the parties to the suit moved the court for referring the document in question to handwriting expert, remand of the case to Trial Court for said purpose was not legal---Plaintiffs were already in possession of suit property and ready to perform their part of bargain by making balance payment---High Court, setting aside judgment and decree of appellate court, restored that of Trial Court---Second appeal was allowed in circumstance.

Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR 359; Meraj Din and another v. Kh. Mahboob Elahi and 4 others 1992 CLC 2457; Hafiz Muhammad Ramzan and others v. Muhammad Khalique 1991 CLC 417 and Maddan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 rel.

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

----Arts. 78 & 79---Proof of document---Proof of signatures and handwriting of person alleged to have signed or written document produced---Proof of execution of document required by law to be attested---Testimony of marginal witnesses---Scope---Article 78 of Qanun-e-Shahadat, 1984 does not prescribe any particular mode of proof for proving a document---In case of denial of execution by executant, best course for proving his signatures would be to call the attesting witnesses in whose presence the document has been executed, provided such witnesses are alive and capable of giving evidence---Marginal witnesses are produced not merely to identify signatures of executant of a document but are examined also to prove that the executant has put his signatures within view of the attesting witnesses.

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

----Art. 2(1)(c)----"Evidence"---Meaning and scope---Definition of "evidence" under S.2(1)(c) of Qanun-e-Shahadat, 1984 clearly contemplates that evidence means and includes such statements of witnesses which are produced in a court in relation to the case tried by such court and also documents which are produced in the court---Word 'evidence' cannot be restricted merely to the statement of a party or to any one specific witness---'Evidence' includes statements of all the witnesses recorded by the court and the documents produced during trial.

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

----Arts. 59, 61, 78 & 79---Expert evidence---Nature and scope---Proof of document---Opinion of expert-Opinion of handwriting expert when relevant---Proof of signatures and handwriting of person alleged to have signed or written document produced---Proof of execution of document required by law to be attested---Under scheme of Qanun-e-Shahadat, 1984, there are many methods for proving a document, and sending the document to the handwriting expert is one of the modes for proving signatures and thumb impression of a person on a document, which is, however, not a convincing method of proof---Expert evidence is in nature of confirmatory and explanatory of direct or other circumstantial evidence and is not of much significance in presence of direct and creditworthy evidence.

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

----Arts. 59, 61, 78, 79 & 129----Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Expert evidence---Nature and scope---Proof of document---Opinion of expert-Opinion of handwriting expert when relevant---Proof of signatures and handwriting of person alleged to have signed or written document produced---Proof of execution of document required by law to be attested---Court may presume existence of certain facts---Defendant took plea that plaintiff should have asked Trial Court to send the agreement to sell and payment receipt to handwriting expert for his opinion as to thumb impression of defendant on the same---Validity-Direct evidence, in the present case was produced by plaintiffs in shape of marginal witnesses and scribe, and as such there was no need for plaintiff to move Trial Court for sending the documents to handwriting expert---Whenever evidence, which was legally required to be provided to prove execution of a document, had been produced, then the other party, denying the execution of the document, had to produce handwriting expert in proof of his denial of execution---Defendant had not moved necessary application before Trial Court for sending the document in question to handwriting expert---Failure to ask court to refer the matter to handwriting expert would raise inference against the party---High Court observed that where none of the parties to the suit moved the court for referring the document in question to handwriting expert, remand of the case to Trial Court for said purpose was not legal.

(f) Evidence--

----Quantum of proof in civil cases---Court, in civil cases, has to see the cumulative effect of all material placed on record, and mere preponderance of probability is sufficient as basis for a decision---Party, having preponderance of probability, must win the case.

Mst. Zainab v. Majeed Ali and others 1993 SCMR 356 and Jameel Ahmed v. Saifuddin PLD 1994 SC 501 rel.

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

----O. VI, R. 2----Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement---Pleadings---Pleadings needed to contain only basic and material facts and not the evidence---Fact, that plaintiff had not mentioned in his plaint that they were tenants of defendant, was of no consequence.

Sahibzada Mehboob Ali for Appellant.

Ch. Abdul Hakeem for Respondents.

Date of hearing: 10th April, 2015.

P L D 2016 Lahore 140

Before Shams Mehmood Mirza, J

MUHAMMAD SIDDIQUE through

Legal Representatives---Petitioners

Versus

Mst. NOOR BIBI through Legal Heirs and others---Respondents

C.R. No.811-D of 2002, decided on 17th September, 2015.

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

----S. 42----Civil Procedure Code (V of 1908), O. III, Rr. 1 & 2---West Pakistan Land Revenue Act (XVII of 1967), Ss. 44 & 53---Qanun-e-Shahadat (10 of 1984), Art. 129---Suit for declaration on basis of oral sale effected through mutation---Proof---Recognized agent---Plaintiff appearing as witness box through his attorney---Principles as to permissibility---Mutation, legal effect of---Plaintiff filed suit on ground that defendants, his sisters, had sold out their inherited shares to him regarding suit land and mutation had been sanctioned in his name on basis of the same, and challenged orders of revenue authorities whereby said mutation was set aside and a subsequent inheritance mutation was sanctioned in names of parties---Trial Court decreed the suit; whereas, appellate court dismissed the same---Defendants took plea that their predecessors had not appeared before revenue authorities regarding sanction of the mutation in the name of plaintiff---Validity---Lower appellate court, on account of serious inconsistencies in their deposition, did not believe the witnesses of plaintiff---Plaintiff had to prove the alleged sale in his favour by defendants, instead of (proving) disputed mutation---Mutations per se did not confer any title, and, once challenged, beneficiary thereof had to revert to original transaction on basis of which mutation had been sanctioned and to prove the same---Plaintiff himself, for unexplainable reasons, had not appeared in witness box, and in his place, his attorney had appeared as plaintiff witness---Power of attorney, produced in evidence, stated that plaintiff was suffering from ailment, which had not been described---Said attorney was not privy to transaction of alleged sale---Plaintiff, in order to prove the transaction of oral sale and payment of the sale consideration, ought to have examined himself as witness and to state all those facts which were in his personal knowledge---Testimony of said attorney, being different regarding conclusion of the sale and payment of sale consideration, had to be ignored---If facts, which were required to be proved, were exclusively in personal knowledge of the principal, then evidence of attorney holder on those facts would in nature of hearsay evidence carrying no weight---Sale consideration, in case of alleged oral sale, had to be proved through cogent and convincing evidence---Plaintiffs' witnesses had deposed differently regarding payment of sale consideration---Material contradictions in deposition of plaintiff's witness could not have been justified by Trial Court on account of long lapse of time between the sale and recording of evidence---Plaintiff, after death of his father, had got inheritance mutation surreptitiously sanctioned exclusively in his name by depriving his sisters, defendants, from their shares---Lambardar of the village, who was alleged to have identified the defendants at the time of sanctioning of the sale mutation, had not been produced in evidence---Fact as to whether said Lambardar was alive or dead, could only be proved if plaintiff, who was bound to call him as a witness, has summoned him through process of court---Question whether defendant was alive at time of sanction of sale mutation became insignificant in view of failure of plaintiff to prove oral sale through any convincing evidence---Judgment of court below proceeded on generalities and focused entirely on lapses in evidence led by defendants, instead of ascertaining whether plaintiff had been able to prove his case---Trial Court had ignored inconsistencies in material evidence produced by plaintiff and failed to draw inference therefrom---Appellate court, on the other hand, dealing with all relevant points, had correctly appreciated the evidence of plaintiff---Judgment of appellate court, suffering from no jurisdictional error or legal infirmity, was upheld---Revision petition was dismissed in circumstances.

Muhammad Akram and another v. Altaf Ahmed PLD 2003 SC 688; Janki Vashdeo Bhojwani v. Indusind Bank Limited 2005 (2) SCC 217; Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Malik Riaz Ahmad and others v. Mian Inayat Ullah 1992 SCMR 1488 and Maddan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 rel.

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

----Ss. 44 & 53----Specific Relief Act (I of 1877), S. 42---Suit for declaration---Maintainability---Suit for declaratory decree by persons aggrieved by any entry in revenue record---Courts below were not necessarily to render their findings on all impugned orders of revenue authorities---Defendants had sought correction of sale transaction before revenue authorities, and as such alleged sale transaction was not an issue, which, therefore, could not be adjudicated upon---Plaintiff, once having filed suit for declaration regarding his title over suit land, orders impugned by him became irrelevant, as revenue authorities were not empowered to examine and pronounce upon title of a person---Once title becomes an issue between parties and same is under challenge, civil court is the only proper forum for adjudication of said issue---Revenue authorities are only clothed with power to correct entries of revenue record, which does not confer title---Plaintiff had rightly filed the present suit.

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

----Arts. 70, 71, 72 & Ch. VI [Arts.102 to 110]----Specific Relief Act (I of 1877), S. 42---Suit for declaration---Proof of facts by oral evidence---Oral evidence must be direct---Proof of contents of document---Exclusion of oral by documentary evidence---Personal knowledge of witness, when not required---Facts, which are required to be proved by production of documentary evidence, limit the scope of leading oral evidence, and in such case, personal knowledge (of witness) does not matter---Documents, in such case, can be produced either by the party or by his attorney, as production of the documents does not require any personal knowledge.

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

----O. III, Rr. 1 & 2----Qanun-e-Shahdat (10 of 1984), Arts. 70, 71, 72 & Chap. VI [Arts.102 to 110]---Suit for declaration---Recognized agents---Attorney, when competent to testify---Proof of facts by oral evidence---Oral evidence must be direct---Proof of contents of document---Exclusion of oral by documentary evidence---Party, without examining himself, can establish his case possibly by examining witness, who can validly testify, and in such case, the party can give evidence through attorney holder, which cannot be ignored---Facts, which are required to be proved by production of documentary evidence, limit the scope of leading oral evidence, and in such a case, personal knowledge (of witness) does not matter---Documents, in such a case, can be produced either by the party or by his attorney, as production of the documents does not require any personal knowledge.

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

----O. III, Rr. 1 & 2----Qanun-e-Shahdat (10 of 1984), Art. 71---Specific Relief Act (I of 1877), S.42---Suit for declaration---Recognized agents---Attorney when not competent to testify---Oral evidence must be direct---If facts, which are required to be proved, are exclusively in personal knowledge of the principal, then evidence of attorney holder on those facts will be in nature of hearsay evidence carrying no weight.

(f) Pardahnashin lady---

----Inheritance---Courts will take a hard look at transactions through which illiterate ladies are divested of their share in inheritance---Beneficiary of such transactions, which are often male members of the family, are duty bound to prove through confidence inspiring evidence that the transaction was indeed entered into by the ladies and that independent legal advice was available to them at the time.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Malik Riaz Ahmad and others v. Mian Inayat Ullah 1992 SCMR 1488 rel.

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

----S. 115---Revision---Scope---Revisional court necessarily has to indulge in comparative analysis of both judgments of courts below, when the same are at variance, to assess their merits and demerits.

Maddan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 rel.

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

----Arts. 71 & 129----Civil Procedure Code (V of 1908), O. III, Rr. 1 & 2---Specific Relief Act (I of 1877), S.42---Suit for declaration---Oral evidence must be direct---Court may presume existence of certain facts---Recognized agent---Party to suit must show some plausible reason for not appearing in witness box to give evidence, more so when facts required to be deposed were exclusively in personal knowledge of the party---Party, not appearing in witness box and stating his own case on oath and offering himself to be cross-examined by the other side, would give rise to presumption that case set by him was not correct---Party, who abstained from entering witness box, would give rise to adverse inference against him.

Syed Kabir Mehmood for Petitioners.

Sardar Muhammad Abbas for Respondents.

Date of hearing: 11th May, 2015.

P L D 2016 Lahore 153

Before Muhammad Anwaarul Haq and Erum Sajad Gull, JJ

Mst. NUSRAT PERVEEN---Petitioner

Versus

HOME DEPARTMENT and others---Respndents

Writ Petition No.22496 of 2015, decided on 1st September, 2015.

Criminal Procedure Code (V of 1898)---

----S. 381---Pakistan Prison Rules, 1978, R.356(2)---Black warrant---Suspension---Medical fitness---Petitioner was convicted and his death sentence was confirmed---Petitioner sought suspension of black warrant on the plea that he was suffering from tuberculosis meningitis and was permanently paralyzed therefore, he had become medically unfit for execution of death sentence---Validity---No rule existed declaring hanging of a disabled person as illegal---High Court declined to interfere in the execution of black warrant---Petition was dismissed in circumstances.

Shafqat Hussain v. Presdent of Pakistan and others Civil Petition No.1127 of 2015 and Maqbool Hussin alias Jamala Dogar v. Federation of Pakistan and another W.P.No.19907 of 2015 rel.

Ms. Sara Bilal for Petitioner.

Muhammad Nasir Chohan, Additional Advocate-General.

Raja Abdul Qayyum, Law Officer, Directorate of Prisons, Punjab, Lahore.

Dr. Shahid Ahmed, Senior Medical Officer, Central Jail, Faisalabad.

Muhammad Zubair, Deputy Superintendent and Muhammad Imran, Assistant Superintendent, Central Jail, Faisalabad.

P L D 2016 Lahore 156

Before Ch. Muhammad Iqbal, J

MUHAMMAD IDREES through Muhammad Sarwar---Petitioner

Versus

DISTRICT OFFICER (REVENUE) and another---Respondents

Writ Petition No.9618 of 2011, decided on 1st September, 2015.

Stamp Act (II of 1899)---

----Ss. 49(d)(6) & 50(3)---Stamp papers, refund of---Limitation---Petitioner was aggrieved of the order passed by Revenue authorities whereby they had refused to refund amount of non-judicial stamp papers on the ground that same was barred by time---Validity---Petitioner had not stated in the petition that sale deed could not be completed due to refusal rather some dispute had arisen between the parties due to which sale deed could not be registered---Later on the parties settled their dispute and petitioner got registered a sale deed in favour of same purchaser on new stamp papers---Case of petitioner fell under the ambit of S.49(d)(6) read with section 50(3) of Stamp Act, 1899, which prescribed a period of six months for refund of stamp papers---Application for refund of stamp papers was filed within time by the petitioner, therefore, order passed by revenue authorities were illegal as they had not applied their judicious mind while passing the same---High Court directed revenue authorities to issue refund of stamp papers to petitioner---Petition was allowed in circumstances.

Zahid Pervaiz v. Commissioner Rawalpindi Division Rawalpindi and 3 others 2004 YLR 890 and Riaz Hussain v. Board of Revenue Punjab through Senior Member and 2 others 2010 CLC 1575 rel.

Muhammad Akram Chaudhry, on behalf of Petitioner.

Ms. Asma Hamid, Addl. Advocate-General.

P L D 2016 Lahore 159

Before Shahid Hameed Dar, J

SAJID RAFIQUE---Petitioner

Versus

GHULAM DASTGIR KHAN and 3 others---Respondents

Criminal Original No.6 in Criminal Misc. No.75-H of 2006, decided on 29th May, 2015.

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

----Ss. 3, 4 & 5---Contempt of Court---Unconditional apology---Refusal to accept apology earlier by Court---Contemnors realized that no one was above law irrespective of his status and that even time factor could not defeat due process of law---Contemnors were really ashamed of what they did, felt sorry and penitent and they bow their heads in shame with drooped shoulders---Effect---Contemnors were really ashamed of what they did and their unconditional apology was genuine and sincere---Contempt stood purged, when contemnor had thrown himself unconditionally at the mercy of Court---Mere fact that Court had earlier declined to accede to request of contemnors for seeking forgiveness could not take away the Court from giving second thought to their incumbent entreatment for unconditional apology---Grace was in forgiving and not in being harsh---Refusal by Court to show mercy to contemnor could go against Islamic jurisprudence---High Court wound up contempt proceedings and acceded to unconditional apology---Contempt notice was discharged in circumstances.

Fakhre Alam's case PLD 1973 SC 525 fol.

Rai Nadeem Kharal for Petitioner.

Raza-ul-Karim Butt, Asstt. Advocate-General, Punjab.

M.A. Fatimi with Respondent-contemnors Ghulam Dastgir Khan Inspector/SHO and Tariq Mehmood ASI.

P L D 2016 Lahore 163

Before Ijaz ul Ahsan and Shahid Mubeen, JJ

MUHAMMAD ABID IQBAL---Appellant

Versus

DISTRICT ELECTION COMMISSIONER and 3 others---Respondents

I.C.A. No.1331 in W.P. No.29297 of 2015, decided on 21st October, 2015.

Punjab Local Government (Conduct of Elections) Rules, 2013--

----R. 14(10)---Law Reforms Ordinance (XII of 1972), S.3(2)---Intra-court appeal---Maintainability---Right of appeal availability of---Appellants had assailed original orders passed by Returning Officers either rejecting or accepting nomination papers---Appeals filed before appellate authority were dismissed and the order was maintained by Single Judge of High Court---Validity---Against the orders passed by Returning Officers appeal was provided under R.14(10) of Punjab Local Government (Conduct of Elections) Rules, 2013, therefore intra-court appeals were not competent as law applicable had provided one appeal against such orders under proviso to S.3(2) of Law Reforms Ordinance, 1972---Intra-court appeal was dismissed under circumstances.

Mst. Karim Baksh and others v. Hussain Bakhsh and another PLD 1984 SC 344 rel.

Muhammad Afzal Lone for Appellant (in I.C.A. No.1331-2015 and I.C.A. No.1338-2015).

Muhammad Ramzan Chaudhry for Appellant (in I.C.A. No. 1311-2015).

Arshad Ali Mahar for Appellant (in I.C.A. No.1321-2015).

Rai Haider Ali Khan Kharal for Appellant (in I.C.A. No. 1384-2015).

Ch. Faza Ullah for Appellant (in I.C.A. No. 1313-2015).

Fida Hussain Matta for the Appellant (in I.C.A. No. 1364-2015).

Fayyaz Ahmad Mehar for Appellant (in I.C.A. No. 1345-2015).

Rana Habib-ur-Rehman for Appellant (in 1.C.A. No. 1357-2015).

Shahnawaz for Appellant (in I.C.A. No. 1365-2015).

Rustam Nawab Lak for Appellant (in I.C.A. No. 1368-2015 and I.C.A. No. 1391-2015).

Azhar Abbas Thaheem for Appellant (in I.C.A. No. 1336-2015).

Ch. Fayyaz Ahmad Basra for Appellant (in I.C.A. No.1309-2015 and I.C.A. No. 1310-2015).

Mian Irfan Akram, Deputy Prosecutor General for the State.

Hafiz Adeel Ashraf, Election Commission of Pakistan.

P L D 2016 Lahore 168

Before Atir Mahmood, J

ASKARI BANK LTD. and others---Appellants

Versus

IRFAN AHMED NIAZI and others---Respondents

R.F.A. No.211 of 2008, heard on 8th October, 2015.

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

----Ss. 28, 27, 25 & 3----Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.7(4)---Constitution of Pakistan, Art.143---Banker and customer---Claim by consumer, dismissal of---Jurisdiction of Consumer Court---Settlement of claim, limitation for---Powers of Banking Court---Subsequent notices issued to Bank for settlement of claim not to affect on prescribed limitation---Punjab Consumer Protection Act, 2005 not in derogation of any other law---Inconsistency between Federal and Provincial Law---Effect---Complainant, while getting activation of his new credit card, was informed by the Bank the transactions having been made through his old credit card, which the complainant denied on ground that he had lost the old card and those transactions had not been made by him---Consumer Court allowed the claim by restraining the Bank to recover amount of the disputed transactions---Validity---Complainant had requested the Bank for blockade of his credit card after the card had already been used for alleged unauthorized transactions---Bank could be held responsible for the unauthorized use of the card only after the Bank had been told about misplacing of the same---Bank could neither stop the transactions nor be held responsible for the same, as there was no intimation to the Bank about loss of the card---Matter in question was between the Bank, which was financial institution, and its customer, which could only be taken up and decided by Banking Court, as provided under S.7(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Consumer Court did not have unfettered powers, and certain restrictions existed as embedded in S. 3 of Punjab Consumer Protection Act, 2005---Consumer Court had no jurisdiction to deal with the matter, and had transgressed its powers and erred in law while assuming jurisdiction in the present matter---Financial Institutions (Recovery of Finances) Ordinance, 2001, being Federal statute, had precedence over Punjab Consumer Protection Act, 2005, as provided under Art. 143 of the Constitution---Claim in question had been filed with delay of about one year after cause of action had arisen on pretext that complainant used to issue notices or letter to the Bank in that regard---Mere issuance of subsequent notices after specific denial by the Bank in response to the first notice did not extend period of limitation---Complainant had only thirty days to file his grievance petition in terms of S.28 of Punjab Consumer Protection Act, 2005; whereas, Consumer Court might allow extension of time for filing the same, which had not been done, in the present case---Complaint, being barred by time, should have been dismissed---High Court, setting aside impugned order, dismissed the complaint---Appeal against order was allowed.

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

----S. 7(4)----Punjab Consumer Protection Act (II of 2005), S. 27---Constitution of Pakistan, Art. 143---Powers of Banking Court---Jurisdiction of Consumer Court---Matter in question was between the Bank, which was financial institution, and its customer, which could only be taken up and decided by Banking Court, as provided under S.7(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Financial Institutions (Recovery of Finances) Ordinance, 2001, being Federal statute, had precedence over Punjab Consumer Protection Act, 2005, as provided under Art.143 of Constitution.

Tariq Kamal Gazi for Appellants.

Asad Ali Bajwa for Respondents.

Date of hearing: 8th October, 2015.

P L D 2016 Lahore 173

Before Ayesha A. Malik, J

T&T EMPLOYEES' IDEAL COOPERATIVE HOUSING SOCIETY LTD. through President---Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary and others---Respondents

W.P. No.5817 of 2015, heard on 16th September, 2015.

Rules of Business (Punjab), 2011--

----R, 17 & Second Sched.----Co-operative Societies Act (VII of 1925), Ss. 43 to 44-E---Constitution of Pakistan, Art. 139(3)---Chief Minister's Inspection Team (CMIT)---Functions and jurisdiction---Determination---Distribution of business among departments---Inquiry by Registrar of Cooperative Societies---Inspection of books of indebted society---Powers of Registrar in course of inspection or inquiry---Special measures---Conduct of business of Provincial Government---Jurisdiction of Chief Minister's Inspection Team with regard to private complaint for which remedy is available under a statute---Respondent filed application against petitioner Cooperative Society before Chief Minister, levelling allegations of fraud and corruption against the Society and its management, in response to which, Chairman, Chief Minister's Inspection Team (CMIT) issued letter to Member of CMIT to conduct inquiry into the allegations and submit his report---Petitioner contended that CMIT had no jurisdiction to conduct any such parallel inquiry, as the jurisdiction was vested with District Officer (Cooperative), who, having conducted inquiries on all such allegations, had already decided several similar complaints of the same respondent---Validity---Chief Minister's Inspection Team was an independent department, whose basic function was to inspect government departments and government officers to ensure that they were doing their duties and functions efficiently and expeditiously---CMIT had jurisdiction to inspect a department, in case the department or an officer was delaying matters or not doing their work---CMIT was to bring important matters related to functioning of government departments and officers to the notice of Chief Minister for his consideration and necessary orders---CMIT could entertain complaints pertaining to discharge of duties by a department or an officer, and after obtaining necessary orders, could require the department or officer to carry out its functions efficiently and expeditiously---CMIT was strictly required to ensure good governance from Provincial Government department and officers and could carry out special assignments related to the working of the departments and officers on instructions of Chief Minister---Punjab Government Rules of Business, 2011, therefore, required CMIT to maintain close liaison with Anti- Corruption Department to ensure good governance from its departments and officers---Punjab Government Rules of Business, 2011 did not permit CMIT to assume investigative power on a private complaint, where a forum and specific authority for the same was provided under a statute---Sections 43 to 44-E of Co-operative Societies Act, 1925 gave specific powers to Registrar Cooperative Department to conduct inquires and inspect books of any Cooperative Society---Section 44-E of Co-operative Societies Act, 1925 gave the Registrar special powers for adopting special measures---CMIT was not an additional or alternate forum for private complaints such as that of present respondent---High Court set aside the impugned letter for being against the mandate of Punjab Government Rules of Business, 2011---Constitutional petition was accepted in circumstances.

Waqar A. Sheikh and Ahmad Ali Ranjha for Petitioner.

Ch. Sultan Mahmood, AAG along with M. Farooq Inspector Cooperative.

Nemo for Respondents.

Date of hearing: 16th September, 2015.

P L D 2016 Lahore 179

Before Shahid Karim, J

MUHAMMAD ILYAS---Petitioner

Versus

RETURNING OFFICER and others---Respondents

Writ Petition No.28694 of 2015, decided on 8th October, 2015.

(a) Punjab Local Government (Conduct of Election) Rules, 2013---

----R. 14(7)(10)---Constitution of Pakistan, Art. 199---Constitutional petition---Election dispute---Nomination papers---Replacing of proposer and seconder---Petitioners submitted their nomination papers but as the proposer and seconder were not from the ward in which election was to be held, therefore, Returning Officer rejected the papers--- Plea raised by petitioners was that they be allowed to replace their proposer and seconder---Validity---To allow proposer and seconder to be substituted would mean a fresh nomination to be made---Such would mean an extension in the date of receiving of nomination papers and a change in rest of the schedule too and the same would impinge upon the rights of candidates---Election schedule could not be changed for facilitating merely one candidate and the same would be making a mockery of the entire electoral process and its solemn and serious nature---Defect was substantial and could not be covered by remedial provision of R.14(7) of Punjab Local Government (Conduct of Election) Rules, 2013---Distinction was to be drawn in cases where defect was flagged at the time of scrutiny of nomination papers and the cases where it had become known to candidate before the date of receipt of nomination papers had come to pass---In the former case, Returning Officer could not proceed to remedy the defect in purported exercise of powers under R.14(7) of Punjab Local Government (Conduct of Election) Rules, 2013; in the latter case the candidate could choose to remedy the defect by filing fresh nomination papers by any mode provided by law---Such would not entail exercise of discretion of Returning Officer and provisions of R.14(7) of Punjab Local Government (Conduct of Election) Rules, 2013 were not engaged---High Court declined to interfere in order passed by Returning Officer---Petition was dismissed in circumstances.

Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood PLD 2007 SC 277; Mudassar Qayyum Nahra v. Election Tribunal, Punjab, Lahore 2003 MLD 1089; Hafiz Muhammad Abbas v. Returning Officer and 16 others 1993 MLD 2509 and Asif Khan v. Returning Officer 2003 MLD 230 rel.

(b) Words and phrases---

----"Substantial"---Meaning.

Cambridge Advanced Learner's Dictionary, 4th Edn.; Merriam Webster's Unabridged Dictionary and The Cambers Dictionary 12th Edn. A to Z Chambers Harrap Publishers Ltd. 2011 at p.1552 rel.

Petitioners by:

Ch. Zulfiqar Ali, Ishtiaq Chaudhry, Fiaz Ahmad Mehr, Nadeem Abbas Sandhu, Fida Hussain Matta, Ch. Muhammad Idrees, Amjad Hussain, Mian Khadim Hussain, M.R. Awan Malik, Muhammad Saeed Ansari, Naseer Ahmad Jaura, Muhammad Ramzan Rana, Muhammad Afzal Lone, Irfan Umar Khokhar, Ch. Abrar Hussain, Mian Shehbaz Ahmad, Rana Farhat Abbas, Rana Ghulam Sarwar, Malik Sajjad Hussain, Muhammad Shahid Iqbal Babra, M. Ahsan Farooq, M. Nauman Khan, Zohaib Imran Sheikh, Malik Noor Muhammad Awan, Ch. M. Ashraf Jalal, Sardar Muhammad Ramzan, ljaz Ahmad Ch., Iftikhar Ahmad Mian, Asghar Ali Gill, Naveed Ahmad Khawaja, Syed Ali Imran, Muhammad' Ghazanfar Ali Bhatti, Sh. Sakhawat Ali, Amir Yaqoob Bhatti, Malik Amjad Pervaiz, Allah Bukhsh Leghari, Ch. Abdul Waheed, Muhammad Shafiq Malik, Rai Nasir Ali Kharal, Ch. Shah Nawaz Dhillun, Malik M. Awais, Pir Khaliq Nawaz Shah, Mian Maqsood Ahmad, Muhammad Faisal Awan, Ch. Babar Waheed, Ch. Abdul Razzaq Chadhar, Numan Khan Lodhi, Rana Sana Ullah Khan, Mubeen Uddin Qazi, Ch. M. Anwar Khan, M. Asif Ismail, Fakhar uz Zaman Akhtar and W. Anjum Munir Kashif.

Respondents by:

Mian Irfan Akram, Deputy Attorney General along with Hafiz Adeel, Law Officer.

Dates of hearing: 2nd, 5th, 6th and 7th October, 2015.

P L D 2016 Lahore 200

Before Shahid Jamil Khan, J

IKHLAQ HAIDER and others---Petitioners

Versus

MOTOR REGISTRATION AUTHORITY and others---Respondents

Writ Petition No.21139 of 2014, decided on 24th July, 2014.

(a) Punjab Motor Vehicles Taxation Act (XXXII of 1958)---

----Ss. 3 & 13---Punjab Motor Vehicles Taxation Rules, 1969, R.6(iv)---Provincial Motor Vehicles Ordinance (XIX of 1965), Ss.31, 29, 30, 23 & 24---Constitution of Pakistan, Art. 199---Constitutional petition---Registration of vehicle---Change of residence or place of business---Imposition of tax---Exemptions from payment of tax----Scope---Petitioner impugned charging of motor vehicle tax imposed by Motor Registration Authority, Punjab, on the ground that the vehicles in question were registered with the Motor Registration Authority, Balochistan; and therefore charging of the tax in Punjab was tantamount to double taxation---Contention of the respondent authority was, however, that the tax charged was the differential between the tax paid in Balochistan and the tax required to be paid in Punjab, which was in accordance with law---Held, that motor vehicles in question were plied on a route within the territorial limits of the Province of Punjab---Section 23 of the Punjab Motor Vehicles Ordinance, 1965 prohibited a vehicle from being driven at any place unless it was registered and S.24 of the Ordinance required a vehicle to be registered by its owner at his place of residence or business; where said vehicle was normally kept---Motor vehicle registered in any part of Pakistan did not require further registration at another place under S.29 of the Ordinance subject to provisions of S.30; however assignment of a new registration mark was required under said S.30 if vehicle was kept in another Province for a period exceeding twelve months and such assigned registration mark was to be entered upon the existing registration certification under intimation to previous registration authority---Petitioner being owner of such vehicles was therefore required to perform the said statutory obligations---Rule 6(iv) of the Punjab Motor Vehicles Taxation Rules, 1969, categorized vehicles into two groups, one which normally operated on a route which lay partly outside the Province, and second which were temporarily brought into the Province and kept therein for less than thirty days---Vehicles owned by petitioner fell into neither category as they were plied on a route within Punjab for many years---Motor vehicle tax was therefore to be levied in Punjab and in case procedure under Ss. 30 & 31 of the Provincial Motor Vehicles Ordinance, 1965 was not followed by the Motor Registration Authority in Punjab, then the petitioner was to be given benefit of S.13(4) of the Punjab Motor Vehicles Taxation Act, 1958 by allowing deduction of tax paid in Balochistan from tax due in Punjab; which was done in the present case---Contentions of the petitioner were therefore, misconceived---Constitutional petition was dismissed, in circumstances.

(b) Taxation---

----Exemption---Exemption presupposed the levy---Question of an exemption did not arise where a tax was not leviable.

Collector of Customs and others v. Ravi Spinning Ltd. and others 1999 SCMR 412 = 1999 PTD 1078 rel.

(c) Taxation---

----Exemption---Concept of exemption under a fiscal statute, examined.

Collector of Customs and others v. Ravi Spinning Ltd. and others 1999 SCMR 412 = 1999 PTD 1078; Messrs Humauun Ltd. v. Pakistan and others PLD 1991 SC 963 and Bank of Commerce v. Tennesse (161 US 134 rel.

(d) Taxation---

----Double taxation---Double taxation could be made by the Legislature through an express and clear enactment---Unless there was any prohibition or restriction on the power of the Legislature to impose a tax twice on the same subject matter; double taxation could not be declared illegal or void though it may be oppressive and inequitable---Unless there was a clear law imposing tax twice merely by implication tax could not be imposed twice and there should be a clear and specific provision to such effect.

Haji Muhammad Shafi and others v. Wealth Tax Officer and others 1992 PTD 726 rel.

Mian Javed Iqbal Arain for petitioners.

Syed Nayyar Abbas Rizvi, Additional Advocate General, Punjab.

Faisal Shahzad, ETO, Sargodha.

Zaka AETO, Sargodha.

P L D 2016 Lahore 207

Before Shams Mehmood Mirza, J

M.S. GHANI GASES LIMITED---Petitioner

Versus

FEDERATION OF PAKISTAN and 2 others---Respondents

Writ Petition No.6285 of 2013, decided on 18th January, 2016.

(a) Public Procurement Regulatory Authority Ordnance (XXII of 2002)--

----Ss. 2(j) & 2(k)---Public procurement---"Procuring agency" definition of---Public funds---Scope---Question before the High Court was whether the respondent Company, which was a public limited company with shareholding of the Federal Government at 60%, fell within the definition of "procuring agency" under Public Procurement Regulatory Authority Ordinance, 2002---Contention of the petitioner was that respondent Company could not have awarded a contract for procurement without inviting tenders in terms of the Public Procurement Regulatory Authority Ordinance, 2002---Contention of respondent Company was, inter alia, that it did not fall within definition of "procuring agency" in terms of S.2(j) of the Public Procurement Regulatory Authority Ordinance, 2002---Validity---Section 2(j) of the Public Procurement Regulatory Authority Ordinance, 2002 defined "procuring agency" to mean, amongst others, any corporation, body or organization established by or under a Federal Law or which was owned or controlled by the Federal Government and similarly "public fund" included the funds of enterprises which were owned and controlled by the Federal Government ---Catchword in both definitions was "owned and controlled by Federal Government" and the said expressions "owned" and "controlled" had been used disjunctively and both needed to be present in a corporation (company) before it could be said to fall within definition of procuring agency"---In a limited liability company there was some divorce of ownership from control and was particularly so in public imitated companies where the ownership (theoretically) rested with a large and diverse body of shareholders but the control (management) rested with directors---In the present case, two groups of shareholders through Memorandum of Understanding brought about a change in the corporate governance structure of the respondent company by deciding to take all decisions through consensus and such consensual arrangement over decision making in the respondent company made it impossible for the respondent to be termed as an enterprise owned and controlled by the government, therefore the same did not fall within the definition of "procuring agency" and its funds could not be termed as "public funds"---High Court observed that the Public Procurement Regulatory Authority Ordinance, 2002 which regulated "public procurement", that was acquisition of goods. services etc; financed wholly or partly out of Public Funds, was not applicable to contracts entered into by the respondent company---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan--

----Art. 199---Public Procurement Regulatory Authority Ordinance (XXII of 2002), S.2(j)---Constitutional jurisdiction of High Court---Scope---Public procurement---Maintainability of Constitutional petition against public limited company with shareholding of the State/Government---Scope---Contention of petitioner was that the Federal Government owned 60% shares of the respondent company and therefore the same was amenable to the Constitutional jurisdiction of High Court---Validity---Respondent company was no doubt a joint venture between Federal Government and another party, but being a limited liability company its administration was being run by its Board of Directors which by terms of its MOU and Articles of Association, had to make all decisions through consensus regardless of pattern of shareholding and numerical strength of government directors on its Board---Per said arrangement, nominee directors of the Government could not and did not, exercise administrative and financial control over the company and the company was therefore an entity that was free from executive control of Federal Government and all of its affairs were to be run by its Board representing two set of shareholders through consensus and furthermore, all decisions in the General Meeting of the company were also to be taken by both sets of shareholders by consensus---No document existed on record demonstrating that the Federal Government funded operations of the respondent and for it to be held to be an instrumentality of the State; petitioner ought to have demonstrated with cogent documentary material that the Government was providing substantial financial assistance to it and that the government had deep and persuasive control over its management and policies and also substantiated that functions carried out by the company were public functions closely related to State functions---Primary burden was upon the petitioner to establish that company was a "person" within meaning of Art.199 of the Constitution, which it failed to establish---High Court observed that subscription of capital by the Government had never been considered to establish control of the Government over affairs of a company/corporation---Constitutional petition was dismissed, in circumstances.

Pakistan International Airline Corporation and others v. Tanweer ur Rehman and others PLD 2010 SC 676; Printing Corporation of Pakistan v. Province of Sindh PLD 1990 SC 452 and Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---"Persons" amenable to Constitutional jurisdiction of High Court ---- Maintainability of Constitutional petition against public/private limited company with shareholding of Government/State---Test for a "person" within meaning of Art.199 of the Constitution including a body corporate performing functions in connection with affairs of the Federation/Government was to see whether function entrusted to the organization or person concerned were indeed functions of the state involving some exercise of sovereign or public power; and that whether control of the organization vested in a substantial manner in the hands of the Government; and that whether bulk of funds of the organization were provided by the Government/State---Subscription of capital by the government had never been considered to establish control of the government over affairs of a company/corporation.

Pakistan International Airline Corporation and others v. Tanweer ur Rehman and others PLD 2010 SC 676; Printing Corporation of Pakistan v. Province of Sindh PLD 1990 SC 452 and Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 rel.

Shahid Ikram Siddiqi and Rao Athar Ikhlaq for Petitioner..

Makdoom Ali Khan and Ali Sibtain Fazli for Respondent No.2.

Miss Ayesha Hamid for Respondent No.3.

Muzamil Akhtar Shabbir, D.A.G.

P L D 2016 Lahore 216

Before Mazhar Iqbal Sidhu, J

MUHAMMAD MUBASHIR---Petitioner

Versus

The STATE and 4 others---Respondents

Criminal Revision No.506 of 2015, decided on 16th June, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to Qatl-i-amd and rioting armed with deadly weapons---Giving up of prosecution witness---Locus standi---Petitioner and three others were injured during occurrence in which two persons lost their lives---On the application filed by one injured witness, evidence of petitioner was given up on the allegation of being won over by accused persons---Validity---Indubitably legal heirs of deceased could prosecute case on every stage but law did not permit a witness of a case to get other witness given up except who had the status of legal heirs of deceased---Injured prosecution witness on whose evidence petitioner was given up lacked such qualification---Such like practice, if was allowed then it would remain difficult for prosecution to prove the charge---Any of the legal heirs of deceased could step up to prosecute the case in absence of complainant in any eventuality under the supervision of Public prosecutor---High Court set aside the order passed by Trial Court as it was not curmudgeon and the order was not sustainable in the eye of law---Revision was allowed in circumstances.

Zahid Aslam Malik for Petitioner.

Iftikhar-ul-Haq, Addl. P.G.

Kh. Awais Mushtaq for Respondent No.5.

P L D 2016 Lahore 218

Before Shahid Hameed Dar, J

MAQSOOD MASIH---Appellant

Versus

The STATE and another---Respondents

Criminal Revision No.1020 of 2014, heard on 9th June, 2015.

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

----Ss. 420, 468 & 471---Cheating, forgery and using forged document---Appreciation of evidence---Compromise---Effect---Parties entered into compromise but Trial Court convicted accused and sentenced him to imprisonment for one year for each offence---Conviction and sentence awarded by Trial Court were maintained by Lower Appellate Court---Validity---Compromise was fully applicable to mischief of S.420, P.P.C. and as the parties had resolved their differences amicably and voluntarily, accused was acquitted of the charge of cheating---Conviction under Ss. 468 & 471, P.P.C. was based on cogent and confidence inspiring evidence, led by prosecution against him during the course of trial---Testimonies of prosecution witnesses emitted sense of believability regarding allegation, the accused was tried for---No inconsistencies or major discrepancies were found in prosecution evidence, which bore the stamp of impartiality and credibility---High Court upheld the conviction awarded to accused under Ss.468 & 471, P.P.C. but reduced imprisonment from one year each to period already undergone by him---Appeal was allowed accordingly.

Mazhar Ahmad's case 2012 SCMR 997 and Ghulam Ali v. The State and another 1997 SCMR 1411 ref.

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

----S. 345---Compromise---Scope---Compromise has generally been considered a redeeming feature, bound to bring peace and harmony in society---Compromise may bring warring parties close to each other and motivate them to bury their hatchet for good---Courts often respected the will of parties to compound an offence, may it be compoundable or not---In case of compoundable offence, no extra argument is required to extend the fullest benefit of rapprochement to a convict but in a case that is not compoundable, its benefit may still be extended to him in viable terms, so as to translate parties' reconciliatory mood into an objective reality---Compromise always hints at noble spirit parties which ought to be respected and given an assent to by the Court of law.

Rana Hassam Kayani with Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor-General Punjab for the State.

Irshad Ullah Rana for the Complainant.

Date of hearing: 9th June, 2015.

P L D 2016 Lahore 223

Before Syed Mansoor Ali Shah, J

MILITARY ACCOUNTS CO-OPERATIVE HOUSING SOCIETY LTD.---Petitioner

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No.18431 of 2015, decided on 28th January, 2016.

(a) Words and phrases---

----"Cooperative", meaning of---"Co-operative" (also known as co-op, cooperative or coop) is an autonomous association of persons united voluntarily to meet their common economic, social and cultural needs and aspirations through a jointly owned and democratically controlled enterprise---Co-operatives are based on the values of self-help, self-responsibility, democracy, equality, equity and solidarity and in the tradition of their founders, co-operative members believe in the ethical values of honesty, openness, social responsibility and caring for others.

Statement on the Cooperative Identity International Cooperative Alliance (ICA) (www.ica.coop) and International Cooperative Alliance (ICA) is a non-government co-operative union representing co-operative and the cooperatives movement worldwide. it was founded in 1895 to unite, represent and serve cooperatives worldwide rel.

(b) Cooperatives ----

----Core principles upon which cooperatives are based, explained.

The Rochdale Principles (Set out in 1844) as revised by Statement on the Cooperative Identity (1996) rel.

(c) Cooperative Societies Act (VII of 1925)---

----Preamble---Nature, scope and object of the regulation of cooperative societies under the Cooperative Societies Act, 1925---Cooperative Societies Act, 1925, provides for the formation, registration and regulation of cooperative societies for the promotion of thrift, self help and mutual assistance amongst agriculturists or other persons with common economic or social interests and for achieving better standard of living and for the matters connected therewith and incidental thereto---While a cooperative society enjoyed its democratic independence, the government, in order to ensure that the cooperative principles were not compromised or overlooked, regulated its affair and such regulation by the government under the Cooperative Societies Act, 1925 was not to stifle the voluntary character and democratic spirit behind a cooperative society but was to safeguard the foundational cooperative principles, at work, behind any cooperative society.

(d) Cooperative Societies Act (VII of 1925)---

----Ss. 44-D & 16-A---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court--- Power of Registrar to give directions under S.44-D of the Cooperative Societies Act, 1925---Direction of Registrar under S.44-D of the Cooperative Societies Act, 1925 to a cooperative society to adopt Model Election Rules as bylaws---Parameters for exercise of powers under S.44-D of the Cooperative Societies Act, 1925---Judicial review of such directions issued by Registrar under S.44-D of the Cooperative Societies Act, 1925---Scope---Cooperative Societies Act, 1925 did not provide for any appellate or remedial forum, for the cooperative society to challenge the direction(s) issued under S.44-D of the Cooperative Societies Act, 1925 and in absence of any other remedy, directions (or the discretion of the Registrar) could be judicially reviewed by High Court on the touchstone of the parameters given for the exercise of such discretion under S.44-D of the Cooperative Societies Act, 1925---Discretion of the Registrar under S.44-D of the Cooperative Societies Act, 1925 was structured on the basis of the following parameters: public interest or to prevent the affairs of any society from being conducted in a manner detrimental to the interest of its members or depositors of the society or to secure the proper management of any society generally and by-laws of a cooperative society if the same were in fact based on the direction of the Registrar under S.44-D of the Act, then the same, along with the proposed amendments by the society could be reviewed and examined on the said criteria---When the direction of the Registrar has assumed the status of by-laws, the same could be amended at any stage by the Members of the society under S.16A of the Cooperative Societies Act, 1925 and as the by-laws could be amended at any stage, so could a direction under S.44-D of the Cooperative Societies Act, 1925, if the same had a bearing on the by-laws of the Society---High Court observed that a cooperative society was an ever-evolving democratic association of persons and could be the best judge to reconsider, modernize or alter its governance structure at any stage, in accordance with law and therefore, a society was free to amend its by-laws as a part of its evolutionary process and by the same token, a direction which directs the Society to adopt Model By-laws could also be judicially reviewed at any stage---High Court had to draw a balance between the democratic and independent character of a cooperative society and the extent of intrusion and interference into its affairs by the regulator and in doing so, the emphasis would always remain in favour of maintaining a strong democratic and an independent association of persons.

(e) Cooperative Societies Act (VII of 1925)---

----Ss. 44-D & 7-A---Cooperative Societies Rules, 1927, Rr. 53 & 54---Constitution of Pakistan, Art. 199---Constitutional petition---Power of Registrar to issue directions under S.44-D of the Cooperative Societies Act, 1925 to a cooperative society to adopt Model Election Rules as bye-laws---Parameters for exercise of discretion under S.44-D of the Cooperative Societies Act, 1925---Amendment in bye-laws adopted under direction from Registrar---Judicial examination of direction(s)/exercise of discretion of Registrar under S.44-D of the Cooperative Societies Act, 1925---Petitioner was a cooperative society, and was directed to adopt the Model Election Rules through a direction issued by the Registrar under S.44-D of the Cooperative Societies Act, 1925 which direction was complied with by the petitioner and the said rules were approved by the petitioner as the by-laws of the petitioner society---Subsequently, the petitioner sought to make amendments to the said rules/by-laws which application was declined by the Registrar on the ground that proposed amendments offended provisions of the Cooperative Societies Act, 1925 and that the by-laws having been framed under the direction of the Registrar under S.44-D of the Cooperative Societies Act, 1925 and were in public interest, and therefore, could not be altered---Validity---Direction given by the Registrar stood translated into the adoption of the Model Election Rules as the by-laws of the petitioner society, and any amendment in such like by-laws would amount to challenging the direction of the Registrar, which could best be done through invoking Constitutional jurisdiction of High Court rather than by approaching the Registrar, who in the first place directed that the said by-laws be adopted---By-law of the petitioner society which required that a person stood disqualified from contesting elections who had not been a member of the society for more than one year from date of filing nomination papers was judicially examined by the High Court which observed that under S.7A of the Cooperative Societies Act, 1925 only requirement for an individual to be eligible to become a member of a society was that he was above the age of 18 years, was of sound mind, was solvent and had not applied to be adjudged as an un-discharged insolvent---Period of one year as directed by the Registrar under S.44-D of the Cooperative Societies Act, 1925 transgressed the scope of the Cooperative Societies Act, 1925---Discretion under S.44-D could only be exercised to achieve the statutory requirement mentioned in the said section, which required that a direction must be in public interest or to prevent the affairs of any society from being conducted in a manner detrimental to the interest of its members or depositors of the society or to secure the proper management of any society generally and no reasons had been given in the letter carrying the direction by the Registrar as to why such lapse of one year was a basic requirement for contesting elections and how did absence of it invoke S.44-D of the Cooperative Societies Act, 1925---Direction of the Registrar to such extent was modified, the impugned orders to such extent were set aside and the proposed amendment by the petitioner society to abolish said requirement was allowed---High Court further observed that in the present case, the two other amendments which were proposed to be deleted two Model Election Rules, which Rules found support in Rs.53 & 54 of Cooperative Societies Rules, 1927; that provided for transparency and good governance---When viewed objectively, the said by-laws avoided conflict of interest and engendered transparency which was in the general welfare of the petitioner society and such by-law therefore fully met the requirement of the parameters mentioned in S.44-D of the Cooperative Societies Act, 1925---High Court, in public interest and in the interest of the society, upheld the impugned order of the Registrar, which declined the said amendments---Constitutional petition was disposed of, accordingly.

Bahadur Yar Jang Cooperative Housing Society Ltd. v. Feroze Shamsi and others PLD 2010 SC 1058 and Mst. Haleema Rasheed v. Registrar Cooperative Housing Society and 32 others 2010 YLR 2497 ref.

Statement on the Cooperative Identity International Cooperative Alliance (ICA) (www.ica.coop); International Cooperative Alliance (ICA) is a non-government co-operative union representing co-operative; and the cooperatives movement worldwide. It was founded in 1895 to unite, represent and serve cooperative worldwide and The Rochdale Principles (Set out in 1844) as revised by Statement on the Cooperative Identity (1996) rel.

Petitioner by:

Muhammad Javaid Iqbal Qureshi, Pir Muhammad Masood Chishti and Muhammad Shahid Iqbal Qureshi for Petitioner.

Waqar A Sheikh for Petitioner (in W.P.No.25827 of 2015).

Zahid Saleem for Petitioner in Crl;.Org.No.1603-W of 2015 and for Applicants (in C.M. No.6003 of 2015 (in W.P.No.18431 of 2015).

Anwar Toor for Petitioner (in Crl.Org.No.1603-W of 2015).

Respondents by:

Imtiaz Ahmad Kaifi, Addl. Advocate-General, Punjab.

Anwar Hussain, Asstt. Advocate-General, Punjab.

Waqas Ahmad Chaudhry, Asstt. Registrar Cooperative Societies Housing-I, Lahore

Date of hearing:11th November, 2015.

P L D 2016 Lahore 237

Before Syed Mansoor Ali Shah, J

PUNJAB HEALTHCARE COMMISSION---Petitioner

Versus

MUSHTAQ AHMED CH. and others---Respondents

Writ Petition No.32150 of 2015, decided on 3rd February, 2016.

(a) Punjab Healthcare Commission Act (XVI of 2010)---

----Ss. 9(1)(i), 13, 4, 5, 40, 41 & 30---Constitution of Pakistan, Arts.4 & 199---Constitutional petition---Functions and powers of the Board of Commissioners---Standing Orders of the Punjab Health Care Commission approved by the Board under S. 9(1)(i) of the Punjab Healthcare Commission Act, 2010---Sealing of healthcare establishments by Punjab Healthcare Commission under a Standing Order approved per S.9(1)(i) of the Punjab Healthcare Commission Act, 2010---Petitioner (Punjab Healthcare Commission) initiated proceedings against respondent, who was a health service establishment and sealed the said establishment, and said sealing was set aside by District Court under S.30 of the Punjab Healthcare Commission Act, 2010---Contention of petitioner (Commission) inter alia, was that S.9(1) of the Punjab Healthcare Commission Act, 2010 provided for sealing of healthcare provider/establishment and the impugned order passed by District Court was therefore without lawful authority---Validity---Architecture of the Punjab Healthcare Commission Act, 2010 revealed that stewardship of the Punjab Healthcare Commission was in the hands of the Board of Commissioners as it exercised all the functions and powers of the said Commission and therefore, the Commission was the legal entity which was run and managed by the Board---Punjab Healthcare Commission Act, 2010 only provided for penalties in the shape of monetary fine and there was no provision for sealing or passing of an order for closing down a healthcare establishment under the Punjab Healthcare Commission Act, 2010---No Rules and Regulations under the Punjab Healthcare Commission Act, 2010 were in the field as yet, hence the current legislative landscape was bereft of any such powers---Section 9(1)(i) of Punjab Healthcare Commission Act, 2010 provided that the Board will approve the Standing Orders of the Commission and as the Board ran and operated the Commission, the Standing Orders were in fact framed and approved by the Board---Source of such Standing Orders was therefore the Board or the Commission, and in the absence of any specific power of delegation authorizing the Commission or the Board to issue Standing Orders in order to give effect to the purposes of the Punjab Healthcare Commission Act, 2010, such Standing Orders shall pass for administrative directions of the Commission, which were not enforceable against an individual or third party, however, the same may deal with internal governance of the Commission or at best regulate internal working of the Commission---Subordinate or delegated legislation, on the other hand, was authorized by the parent legislation and simply advanced the purpose of primary legislation and, therefore, enjoyed the force of law and Standing Orders did not pass for law---Distinction existed between law passed by the legislature or passed through delegation by the legislature and administrative or internal orders or directions issued by a statutory body or authority that was the Commission or the Board---High Court observed that under the Punjab Healthcare Commission Act, 2010, Regulations and the Rules framed under Ss.40 & 41 of the Act would pass for subordinate legislation which Rules and Regulations would advance and carry out the purposes of the Punjab Healthcare Commission Act, 2010 and the same also would undergo a legislative process of previous publication with draft thereof to be published in the official gazette for eliciting public opinion---Subordinate legislation, like legislation, must entail public participation and official publication through gazette notification whereas administrative orders or directives of any authority including the Commission, on the other hand, were passed internally by the authority and, therefore, only had an internal application---Such administrative orders, at best, constituted guidelines or directions for the Commission itself but did not bind any individual or any third party, as they did not pass for a "law"---Standing Orders laying down the process of sealing healthcare establishments and providing for the setting up of an Anti Quackery Cell, therefore, had no legal force and could not be pressed against any individual or third party---Absence of requisite statutory provisions or Rules and Regulations could be filled through administrative Standing Orders and action of sealing the healthcare establishment of respondent was therefore, without the backing of law---Impugned order passed by the learned District Court was upheld and Constitutional petition was dismissed, in circumstances.

M.P. Jain and S.N. Jain, Principles of Administrative Law 6th Ed. p.42; The Free Dictionary by Farlex and M.P. Jain and S.N. Jain, Principles of Administrative Law 6th Ed. p.189 rel.

(b) Interpretation of statutes---

----Delegated legislation---Scope and meaning of---Difference between a legislative and an executive or administrative instrument---Delegated legislation was that which proceeded from any authority other than sovereign power and was therefore dependent for its continued existence and validity on some superior or supreme authority---Delegated legislation was also referred to as secondary legislation or subordinate legislation or subsidiary legislation and was a law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of such primary legislation---Delegated legislation was thus law made by a person or body other than the Legislature but with Legislature's authority---Difference existed between administrative direction and delegated legislation and delegated legislation was binding on both administration and the individual and was enforceable through a court of law but a direction was not so binding and enforceable on an individual or third party---Foundational feature of subordinate legislation was that its source of power was the Legislature itself, while the source of any administrative direction was the statutory authority or agency, established by the same Legislature---Parent statute must clearly delegate such power of legislation to the authority in order to carry out the purposes of an Act.

(c) Administrative order---

----Scope---Absence of requisite statutory provisions or Rules or Regulations could not be filled through administrative orders.

(d) Punjab Healthcare Commission Act (XVI of 2010)---

----Ss. 9, 4, 5, 40 & 41---Constitution of Pakistan, Art. 4---Right of individuals to be dealt with in accordance with law, etc.---Scope and purpose of Standing Orders of the Punjab Healthcare Commission approved by the Board of Commissioners under S.9(1)(i) of the Punjab Healthcare Commission Act, 2010 being administrative orders could not be substituted for law---Article 4 of the Constitution states that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, in particular, no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law and no person shall be prevented from or be hindered in doing that which is not prohibited by the law---Standing Orders of the Punjab Healthcare Commission did not pass for the law while Rules and Regulations framed under the Punjab Healthcare Commission Act, 2010 did and distinction between law passed by the legislature or passed through delegation by the legislature and administrative or internal orders or directions issued by a statutory body or authority that was the Commission or the Board, had to be kept in mind---Source of such Standing Orders was the Board or the Commission, and in the absence of any specific power of delegation authorizing the Commission or the Board to issue Standing Orders in order to give effect to the purposes of the Punjab Healthcare Commission Act, 2010, such Standing Orders shall pass for administrative directions of the Commission which were not enforceable against an individual or third party, however, the same may deal with internal governance of the Commission or at best regulate internal working of the Commission.

Shakil-ur-Rehman Khan for Petitioner (in W.P.No.32150 of 2015).

Muhammad Ahmad Qayyum for Petitioner (in W.P. No.31831 of 2015 and for Respondent No.1 (in W.P.No.32150 of 2015).

Anwar Hussain and Jamal Mamdot, Assistant Advocate-Generals, Punjab for Respondents.

Date of hearing: 20th November, 2015.

P L D 2016 Lahore 248

Before Muhammad Yawar Ali, J

SALIM JAVED BAIG and others---Petitioners

Versus

FEDERAL OMBUDSMAN and others---Respondents

Writ Petition No.31289 of 2015, decided on 19th October, 2015.

(a) Protection against Harassment of Women at the Workplace Act (IV of 2010)----

----Ss. 8 & 2(1)----Constitution of Pakistan, Art. 199---Constitutional petition---Alternate remedy, availability of---Principles---Accused, an Association of Lawyers, sought rejection of complaint pending before Federal Ombudsman on ground that Federal Ombudsman had no jurisdiction to proceed with the matter, as their office did not fall within meaning of 'organization' as defined under S. 2(1) of Protection against Harassment of Women at the Workplace Act, 2010---Accused, before filing present petition, had already filed application before Federal Ombudsman seeking the same relief, which was still pending for adjudication---Validity---Present constitutional petition was only maintainable if no other alternative remedy was available to accused---Court observed that for exercise of jurisdiction under Art. 199 of the Constitution, availability of no other remedy was condition precedent---Matter was still pending before Federal Ombudsman without any final verdict---Federal Ombudsman had only issued notice to, and called upon, accused to appear in complaint---No adverse order had thus far been passed against accused by Federal Ombudsman---In absence of any findings of Federal Ombudsman, present petition would not be maintainable---Constitutional petition was dismissed in circumstances.

Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122; Adamjee Insurnce Company Ltd. v. Pakistan through the Secretary to Government of Pakistan in the Ministry of Finance, Islamabad and 5 others 1993 SCMR 1798; Sheikh Rashid Ahmad v. D.M. Rawalpindi and others PLJ 2004 Lah. 1221; Muhammad Akhtar Sherani and 35 others v. The Punjab Textbook Board, Lahore and 4 others 2001 PLC(C.S.) 939 and Virasat Ullah v. Bashir Ahmad, Settlement Commissioner (Industries) and another 1969 SCMR 154 rel.

(b) Constitution of Pakistan--

----Art.199---Constitutional petition---Alternate remedy, availability of---Principles---Constitutional petition is maintainable only if no other alternate remedy is available.

Mian Muhammad Hussain Chotya for Petitioners.

Muhammad Javed Kasuri, Deputy Attorney General for Pakistan.

P L D 2016 Lahore 251

Before Ali Akbar Qureshi, J

GHULAM MUSTAFA---Petitioner

Versus

A.S.J. CHUNIAN and others---Respondents

Writ Petition No.31621 of 2015, heard on 21st October, 2015.

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

----S.27(2)(e)----Muslim Family Laws Ordinance (VIII of 1961), S. 5---Penal Code (XLV of 1860), S. 21---Constitution of Pakistan, Art.199---Constitutional petition---Qualifications and disqualifications for candidates and elected members----Public servant---Scope---'Nikkah Registrar' falls within definition of 'public servant'---Nikkah Registrar' duly appointed under Muslim Family Laws Ordinance, 1961 was `public servant' in terms of S. 21 of Penal Code, 1860, and as such was disqualified under S. 27 (2) (e), Punjab Local Government Act, 2013 to contest local bodies election against any seat---'Nikkah Registrar' was, therefore, not qualified to contest election for the seat of Chairman Union council---High Court, setting aside impugned orders, rejected nomination papers of Nikkah Registrar---Constitutional petition was allowed in circumstances.

Muhammad Arif v. Muhammad Kashwar Ali PLD 1969 SC 435 and Mst. Zubaida Bibi and others v. Mst. Majidan and another 1994 SCMR 478 rel.

Sardar Waseem Ahmad Mokal for Petitioner.

Muhammad Javed Kasuri, Deputy Attorney General of Pakistan for Respondents.

Rana Muhammad Anwar for Respondent No.4.

Date of hearing: 21st October, 2015.

P L D 2016 Lahore 255

Before Muhammad Anwaarul Haq, J

ABDUL WAHEED and another---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeal No.977 of 2015, decided on 12th February, 2016.

Criminal Procedure Code (V of 1898)---

----S. 408(b)---Notification SO(JII)1-8/75(P-V), dated 21-3-1996---Accused convicted and sentenced by Magistrate empowered under S.30, Cr.P.C.---Direct appeal before the High Court---Not maintainable---Persual of S.408(b), Cr.P.C. [as amended through Notification No.SO(J-II)1-8/75(P-V), dated 21-3-1996 to the extent of Punjab] showed that any sentence passed by any class of Magistate including Special Magistrate was appealable to the Court of Session and any such appeal directly filed before the High Court was not maintainable.

Aman Ullah v. The State 2005 PCr.LJ 1435 and Jehanzeb and 3 others v. The State and another 2013 MLD 1054 ref.

Ch. Abdul Ghaffar for Appellants.

Ch. Muhammad Mustafa, Deputy Prosecutor General along with Maqsood Ahmad, S.I. for the State.

Humayoun Rashid for the Complainant.

Date of hearing: 12th February, 2016.

P L D 2016 Lahore 258

Before Muhammad Farrukh Irfan Khan, J

RIZWAN ZAKA GILL---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.12412 of 2014, decided on 2nd April, 2015.

Criminal Procedure Code (V of 1898)---

----S. 144---Constitution of Pakistan, Arts.9, 18, 25 & 199---Closure time of all marriage related functions in hotels, marriage halls etc.---Authorities by invoking the provisions of S.144, Cr.P.C., directed that all marriage related functions would be closed by 10.00 p.m. in all hotels, marriage halls etc.---Petitioner had called in question said order, contending; that by imposing said restriction, Authorities had curtailed the employment hours of the general public; that such ban was violative of Art.9 of the Constitution; that Art.18 of the Constitution had provided "freedom of trade, business and lawful profession" to every citizen, but through impugned ban a restriction had been imposed upon the businessmen to carry out their business during a limited and particular period of time and that no such restriction having been imposed by any other Province, such restriction was discriminatory under of Art.25 of the Constitution---Validity---Held, no doubt Art.9 of the Constitution had provided protection against deprivation of life and liberty of individual and Art.18 of the Constitution, had guaranteed right to every citizen of the country to enter upon any lawful profession or occupation, but no Fundamental Right guaranteed by the Constitution, was absolute, and the State was empowered to impose certain "reasonable" restrictions to regulate those rights---Right of freedom of trade, guaranteed by Art.18 of the Constitution was subject to lawful regulation and restriction---Theme behind issuance of impugned order, was to save the public at large from the mischief which was likely to be occurred in the late night marriage functions---Right to life and liberty of a citizen could be restricted, if it was in accordance with law---Fundamental right of an individual guaranteed under the Constitution, could be surrendered to a lawful collective interest---In order to preserve peace and tranquility of the public at large, the State was vested with power to impose certain reasonable restrictions on the individual---Each Provincial Government was to act independently in its constitutionally defined spheres of legislative and executive competence---Any policy adopted by one Province, would provide no basis for determination of question of discrimination---Such was the domain of the Provincial Government to regulate trade and business, to safeguard peace and tranquility of the general public---Late night functions, were one of the major cause for disturbance of public peace and tranquility---If the Government had taken any step in the large interest of the public, it could in no manner be said to be an infringement of fundamental right of individual---Restriction imposed appeared to be valid and reasonable---High Court declined to interfere with the order of the Authorities.

Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Administrator, Market Committee, Kasur and 3 others v. Muhammad Sharif and others 1994 SCMR 1048; Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642 and Abdul Hameed Qadri v. District Magistrate Lahore and another PLD 1957 (W.P.) Lah. 213 ref.

2013 SCMR 304 rel.

Petitioner in person.

Anwaar Hussain, A.A.G.

P L D 2016 Lahore 262

Before Shahid Mubeen, J

MUHAMMAD ANWAR---Petitioner

Versus

MUHAMMAD IKHLAS and 6 others---Respondents

Writ Petition No.21539 of 2015, decided on 13th July, 2015.

Punjab Land Revenue Rules, 1968---

----R. 19(2)(d)---Constitution of Pakistan, Art.25---Constitutional petition---Appointment of woman as lambardar---Discrimination---Scope---Contention of petitioner was that a female could not be appointed as lambardar---Validity---Discrimination for sole reason that candidate was a woman was violative of Art.25 of the Constitution---Rule 19(2)(d) of Punjab Land Revenue Rules, 1968 was violative of Art.25(2) of the Constitution---No bar existed for a female to be appointed as lambardar---Petitioner was absentee and such a person could not be appointed as lambardar---No one had vested right to be appointed as lambardar---High Court under Art.199 of the Constitution was not a court of appeal for considering the case of appointment of lambardar---High Court could only examine if there was any jurisdictional error in the order passed by the revenue authorities---Concurrent findings recorded by the revenue authorities did not require any interference while exercising constitutional jurisdiction by High Court---Appointment of respondent as lambardar was legal and same did not require any interference by the High Court---Constitutional petition was dismissed in limine.

Mst. Nasreen Iqbal v. Member (Revenue) Board of Revenue, Punjab, Lahore and another PLD 1993 Lah. 423; Mst. Sarwari Bibi v. Arshad Ali Khan and others 2007 YLR 702; Mst. Zubaida Begum v. Member (Judicial, Board of Revenue, Punjab, Lahore and another 2002 YLR 3393; Mushtaq Hussain v. Mst. Naseem Akhtar and others PLD 1982 SC 271; Shrin Munir and others v. Government of the Punjab through Secretary Health, Lahore and another PLD 1990 SC 295; Haji Muhammad Zaman Khan v. Member Board of Revenue Punjab and others 2014 SCMR 164; Ch. Ghulam Ullah v. Board of Revenue, West Pakistan, Lahore and 4 others `1984 CLC 2973; Masood Ahmad v. Member (Revenue), Board of Revenue and others 1982 CLC 357; M. Nazir Ahmad v. Muhammad Aslam and others 2013 SCMR 363 and Abdul Ghafoor v. The Member (Revenue) Board of Revenue and another 1982 SCMR 202 rel.

Malik Saleem Iqbal Awan for Petitioner.

P L D 2016 Lahore 269

Before Muhammad Anwaarul Haq and Syed Shahbaz Ali Rizvi, JJ

RABNAWAZ---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT, SARGODHA and 5 others---Respondents

Writ Petition No.12203 of 2015, decided on 22nd June, 2015.

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

----Ss. 6, 34 & Third Sched., Para No.4(iv)---Penal Code (XLV of 1860), Ss.336-A, 336-B & 34---Constitution of Pakistan, Art.199---Constitutional petition---Hurt caused by corrosive substance, common intention---Transfer of case to court of ordinary jurisdiction---Principles---Jurisdiction of Anti-Terrorism Court---Scope and determination---"Terrorism," meaning of---"Corrosive substances", definition of---Accused was alleged to have thrown acid on son of complainant, due to which he suffered damage on different parts of body---Anti-Terrorism Court on application of accused, transferred case to court of ordinary jurisdiction on ground that alleged incident was result of personal motive, and there was no intention on part of accused to cause panic, fear, terror and instability in any section of society---Validity---Section 6 of Anti-Terrorism Act, 1997 provided definition of 'terrorism', but to the extent of act or action mentioned in subsection (2), subsection (1) provided certain pre-requisites provided in sub-cls. (b) and (c) to bring use of threat of action provided in subsection (2) within meaning of 'terrorism', Subsection (3) was very relevant under which pre-requisites provided in subsection (1) were to be considered whenever use or threat of action provided in subsection (2) were to be evaluated to determine as to whether or not same fell under definition of 'terrorism' which determined the jurisdiction of Anti-Terrorism Court---Legislature had left no space for interpretation or determination with regard to certain actions by placing same in Third Schedule of Anti-Terrorism Act, 1997---Under S.34 of Anti-Terrorism Act, 1997, offence of causing hurt by means of corrosive substance or attempt to cause hurt by means of corrosive substance which was punishable under S.336-A, P.P.C., had been added in Third Schedule of Anti-Terrorism Act, 1997---Explanation to S.336-A, P.P.C. clarified that corrosive substance also included every kind of acid which had corroding effect and was deleterious to human body---Paragraph No.4(iv) of Third Schedule to Anti-Terrorism Act, 1997, clearly postulated that Anti-Terrorism Court would, to the exclusion of any other Court, try offence relating to hurt caused by corrosive substance or attempt to cause hurt by means of corrosive substance---High Court, setting aside impugned order of Anti-Terrorism Court, dismissed application for transfer of case to court of ordinary jurisdiction---Constitutional petition was allowed accordingly.

Malik Matee Ullah for Petitioner.

Sittar Sahil, Asstt. A.-G. and Ch. Muhammad Mustafa, Deputy Prosecutor General for the State along with Muhammad Ashraf, ASI.

Muhammad Sharif Khokhar for Respondents Nos.3 and 4.

Mian Muhammad Abdullah Kalyar for Respondent No.5.

M. Tariq Mehmood for Respondent No.6.

P L D 2016 Lahore 271

Before Shezada Mazhar, J

BASHARAT AHMED---Petitioner

Versus

Mst. SHAMIM and 2 others---Respondents

Writ Petition No.2163 of 2009, decided on 29th October, 2014.

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

----Ss. 5, Sched & 10 (4)---Civil Procedure Code (V of 1908), O. VII, R. 11---Constitution of Pakistan, Art. 199---Constitutional petition---Dissolution of marriage---Khula---Non-Muslim woman seeking khula---Scope---Husband filed application for rejection of plaint on the ground that non-Muslim female could not invoke jurisdiction of Family Court for dissolution of marriage on the basis of khula---Application for rejection of plaint was dismissed concurrently---Validity---Khula was purely an Islamic concept and non-Muslim woman could not claim the same under S.10(4) of Family Courts Act, 1964---Family Court had dissolved the marriage on the basis of khula without ascertaining and establishing on record whether such concept was available in the personal law of wife---Impugned judgments and decrees were set aside and case was remanded to Family Court to decide the same afresh after framing issues and recording of evidence in accordance with law---Constitutional petition was accepted in circumstances.

Mst. Noreen Iqbal v. Sohail Iqbal and others 2005 CLC 1472 ref

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

----Preamble---Scope---Followers of all religions could invoke the provisions of Family Courts Act, 1964---Family Court had jurisdiction to adjudicate upon family matters of all religions including the Ahmadies/Qadyanis.

Riaz Javaid v. Sheraz Ahmed and 4 others 2010 CLC 1925 rel.

(c) Islamic Law---

----"Khula"---Meaning.

Mst. Balqis Fatima v. Najam ul Ikram Qureshi PLD 1959 Lah. 566 and Holy Quran and Narrated by al-Bukhaari, 5273 rel.

Petitioner in person.

Muhammad Zahid for Respondents.

Date of hearing: 16th October, 2014.

P L D 2016 Lahore 277

Before Shahid Hameed Dar and Ali Baqar Najafi, JJ

BILAL FAROOQ---Petitioner

Versus

The STATE and 4 others---Respondents

Writ Petition No.2855 of 2014, heard on 15th May, 2014.

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

----Ss. 6(b) & 23---Penal Code (XLV of 1860), S.302---Constitution of Pakistan, Art. 199---Constitutional petition---Act of terrorism---Qatl-i-amd---Deceased was a student nurse who was raped by doctor (since absconder) and others and then she was murdered---Trial Court declined to transfer case from Anti-Terrorism Court to Court of planery jurisdiction---Validity---Rape was committed in a room of hospital at night but its detail was shocking which created either a sense of insecurity, especially amongst nurses as a whole or it was likely to terrorize them---Absconded accused and his co-accused including petitioner were taken-over by their criminal and lecherous self and they joined hands satanically to ravish and murder a poor staff nurse---Appalling savagery of crime allegedly committed by them was not an ordinary incident---Accused doctor was a trusted companion, who played false and stabbed in the back---As such the same had shocked and jolted staff nurses all over---Ferocity of alleged offence must have emitted shock waves and signals of unknown fear, dislodging their mental peace with feeling of insecurity and vulnerability---Trial was being conducted by Court established under Anti-Terrorism Act, 1997, in a lawful manner---High Court declined to interefere in the order passed by Trial Court as there was no jurisdictional defect---Petition was dismissed in circumstance.

Nazir Ahmad and others v. Nooruddin and another 2012 SCMR 517 and Mst. Raheela Nasreen v. The State and another 2002 SCMR 908 ref.

Khawaja Awais Mushtaq for Petitioner.

Khadim Hussain Qaiser, Addl. A.G. with Qasim Inspector and Abdul Razzaq SI.

Ch. Muhammad Rafique Jathol for Respondent No.5.

Date of hearing: 15th May, 2014.

P L D 2016 Lahore 282

Before Shahid Waheed, J

RAFIQUE AHMAD AWAN---Appellant

Versus

ADDITIONAL DISTRICT JUDGE, SIALKOT and another---Respondents

F.A.O. No.281 of 2008, heard on 29th January, 2014.

Contempt of Court---

----Injunctive order, violation of---Proceedings for contempt of court---Requirements---"Contempt in theory"---Scope---Contention of respondent was that contempt proceedings could be initiated against the person who had violated the injunctive order but not against the institution---Validity---Contempt proceedings could be initiated against a person who had violated the injunctive order and not against the institution/organization and its offices---Proceedings were conducted in the absence of respondent who was not afforded even an opportunity to lead evidence and was detained in civil prison---Proceedings conducted by the Trial Court were neither fair nor in accordance with law---Trial Court was required to check whether respondents were impleaded by name, to get reply of all the alleged contemners, to frame issues, to allow the applicant as well as alleged contemners to lead evidence and after hearing arguments pass order according to the conduct of each alleged contemner---Trial Court had exercised its jurisdiction illegally and with material irregularity---Evidence led by the applicant did not make out a case of contempt of court or violation of temporary injunction as it did not show any intentional disobedience of order by the respondent---Disobedience should be willful in order to constitute punishable contempt of court---Unintentional disobedience to judgment, order or process of court would amount to "contempt in theory" only which would not render a person liable to punishment---Penal provisions of law were required to be applied with due care and caution when question of sentence of imprisonment and liberty of a citizen was involved---Court should satisfy itself before convicting and sentencing someone besides the violation of any order that the violator of injunctive order had intention to challenge the authority of court and such was not an act under some misunderstanding or misapplication---Existence of mens rea on the part of violator of injunctive order was essentially required to be explored and established beyond doubt---Impugned order was result of mis-reading and non-reading of evidence---No material was available on record that alleged contemner violated the injunctive order deliberately/intentionally or that he had challenged the authority of court---Sentence awarded to the respondent was not sustainable---Impugned judgment passed by the Trial Court was set aside and application filed under O. XXXIX, R.2(3), C.P.C. was dismissed---Appeal was accepted in circumstances.

Pitrus Lahara v. R.V. Dalal AIR 1953 Nag. 179; Radhamohan Rana and others v. Gobinda Gopalananda AIR 1951 Orissa 230; State of Bihar v. Rani Sonabati Kumari AIR 1954 Patna 513 and N. Baksi v. O.K.Ghosh AIR 1957 Patna 528 rel.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 29th January, 2014.

PLD 2016 Lahore 287

Before Amin-ud-Din Khan, J

Mst. BUDHAI through Legal Heirs---Appellant

Versus

GHULAM MUSTAFA and others---Respondents

R.S.A. No.54 of 1997, decided on 29th April, 2014.

Islamic law---

----Gift---Gift through attorney---Scope---Plaintiffs filed suit for declaration that property in question could not be gifted by the attorney after the death of principal whereas defendants filed suit wherein they challenged the date of death of the principal---Suit of plaintiffs was decreed by the Trial Court but that of defendants was dismissed but both the judgments and decrees of Trial Court were reversed by the Appellate Court---Validity---Gift was a personal action which could be performed by the owner only---Without any consideration in the shape of tangible material donor could gift any property to any person due to love and affection---Attorney had no right to gift property to any person on his own behalf---Attorney could use his powers only for completion of formalities of transfer in the shape of registration of gift deed or entry of attestation of gift mutation where principal had transferred the property through gift---Principal, in the present case, had not gifted suit property to the father of attorney but he had transferred the same through registered gift deed in favour of his father on the basis of registered power of attorney---Transfer of property in question in favour of his father by the attorney through gift on his own behalf was not permissible under the law---No gift of property prior to the registration of gift deed had been proved by the donee from the principal---Attorney was bound to get specific permission from the principal for transfer of his property in favour of his own father---No such permission was granted to the attorney to transfer the property in favour of his near relative---Gift deed executed by attorney was nullity in the eye of law---Inquiry had been conducted and after inquiry Deputy Commissioner had passed order with regard to date of death of principal---Findings recorded by the Trial Court with regard to date of death of principal were comprehensive---Suit filed by the defendants was rightly dismissed by the Trial Court and findings recorded by the Appellate Court were not sustainable in the eye of law---Impugned judgments and decrees passed by the Appellate Court were set aside and those of Trial Court were restored---Suit instituted by the plaintiffs was decreed with costs throughout whereas that of defendants was dismissed with costs throughout---Appeal as well as revision was accepted in circumstances.

Mahommedan Law by D.F. Mulla, pp. 138 and 149; Amna Rani and others v. Ashfaq Ahmad and others 2008 SCMR 805; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 and Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341 rel.

Mian Hameed-ud-Din Kasuri for Appellant.

Azhar Maqbool Shah for Respondents.

Dates of hearing: 25th and 29th April, 2014.

P L D 2016 Lahore 293

Before Ibad-ur-Rehman Lodhi, J

CHINIOT CO-OPERATIVE HOUSING SOCIETY LTD. through President---Petitioner

Versus

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

Writ Petitions Nos.11292, 8872, 11224 of 2003; 14543 of 2010 and 2692 of 2014, decided on 9th September, 2015.

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

----Ss. 4, 5, 5-A, 6, & 17(4), 40----Lahore Development Authority Act (XXX of 1975), Ss. 13 (5) & 33---Constitution of Pakistan, Arts. 199, 24, 23 & 10---Constitutional petition---Acquisition of land---Principles---Public purpose---Scope---Publication of preliminary notification and powers of officers---Declaration that land was required for public purpose---Special powers in case of urgency---Right to fair trial---Protection of property rights---Petitioners' Societies, through present petitions, challenged notifications issued under Ss. 4, 6 & 17 of Land Acquisition Act, 1894 by respondent-Lahore Development Authority for its residential housing scheme---Contention raised by petitioners was that they, being registered Co-operative Societies, had already acquired subject land and entered into agreement of acquisition for accommodating their members---Validity---For determining 'public purpose', which was basic and necessary ingredient for acquiring any land, it would be seen as to whether members of petitioners Societies would fall within definition of 'public' or only contributors to LDA scheme would be considered as members of public---In view of categories of members of petitioners Societies, such members could not have been ousted from consideration to be members of a class of public---Land, already having been arranged for residential purposes, could not be taken back to the disadvantage of such needy people to accommodate members of LDA scheme, who were better placed than members of petitioners Societies---Term 'purpose' would be applicable to both classes: members of petitioners Societies and contributor to LDA scheme---High Court observed that when suit land had already been held by petitioners Societies for paramount public purpose, then issuance of notice under S. 6 of Land Acquisition Act, 1894 was not warranted---Once petitioners' Societies had accommodated their members for purpose of extending residential accommodation to them, they could not be deprived from such benefit simply in order to accommodate members of LDA scheme, which was not intention of law of acquisition---In schemes under petitioners Societies, development process was completed, allotments had been made, and even some members had also constructed theirs houses---Members of petitioners Societies were protected and to be dealt with under Co-operative Societies Act, 1925---Acquiring agency or Collector would have no competence to acquire shares of members of Co-operative Societies---Members of Co-operative Societies were purchasers of shares of Societies and their shares could not, in any way, be subject matter of land acquisition proceedings---High Court setting aside impugned notifications issued by respondent-LDA for acquiring suit properties, quashed acquisition proceedings---Constitutional petition was allowed in circumstances.

Federation of Pakistan through G.M. Telegraph and Telephone Department, Lahore Telephone Region, Lahore v. Province of Punjab through Land Acquisition Collector/Assistant Commissioner, Headquarters, Lahore and 2 others 1993 SCMR 1673; Ch. Mehraj Din and others v. Lahore Improvement Trust, Lahore through the Chairman PLD 1986 SC 673; Mian Fazal Din v. Lahore Improvement Trust PLD 1969 SC 225; Federal Government Employees' Housing Foundation through Director-General Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad 2002 PLC (C.S.) 1655; Nazir Ahmad and 7 others v. Commissioner, Lahore Division, Lahore and 3 others 2000 MLD 322; Muhammad Ahmad Siddiqui and 11 others v. Collector, Lahore District, Lahore and 4 others 2000 MLD 820; Darshan Lal Nagpal (dead) by L.Rs. v. Government of NCT of Delhi and others AIR 2012 SC 412 and Sulemna(sic) Daud v. Lahore Development Authority Writ Petition No.7160 of 2007 rel.

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

----Ss. 5, 5-A & 17(4)---Constitution of Pakistan, Art.199---Constitutional petition---Acquisition of land---Notification that particular land was needed for public purpose or for company---Hearing of objections, requirement of---Special powers in case of urgency---Direct issuance of notification under S.17(4) of Land Acquisition Act, 1894 by dispensing with requirements as provided under Ss.5 & 5-A of the Act, was nullity in eye of law---Collector and acquiring agency had failed to demonstrate as to emergent nature of the affair, whereunder entertainment of objections, hearing the same and disposal thereof could have been dispensed with---Constitutional petition was allowed.

(c) Lahore Development Authority Act (XXX of 1975)----

----Ss. 13 (5) & 33--- Constitution of Pakistan, Art.199---Constitutional petition---Preparation of Housing scheme---Approval or sanction of Authority, requirement as to---Principles---Objection of Authority was that petitioners Societies had been introduced without legal sanction or approval of the Authority and was nullity---Validity---Under S.13(5) of Lahore Development Authority Act, 1975, no planning or development scheme would be prepared by any person or local body or government agency within the areas except with concurrence of LDA---Neither sanction nor approval of Authority was required for any development scheme; rather, 'concurrence' of Authority was maximum requirement of law---Silence on part of LDA for long time, after scheme by petitioners Societies had been publically launched, would amount to concurrence, particularly, when violation of such non-concurrence would have no consequential effect---Under S.33 of Lahore Development Authority Act, 1975, in case of any contravention of any provision of the Act or rules or regulations made thereunder, LDA could impose penalty of imprisonment up to six months with or without fine---Absence of such concurrence would not create any adverse effect upon future proceedings of Co-operative Society.

(d) Land Acquisition Act (XXX of 1894)----

----Ss. 4, 6(4) & 17(4)--- Constitution of Pakistan, Art.199---Constitutional petition---Publication of preliminary notification and powers of officers---Declaration that land was required for "public purpose"---Special powers in case of urgency---Principles---Term 'land' used either in S.6 or S.17(4) of Land Acquisition Act, 1894, was necessarily referable to term 'land' used in S.4(1) of the Act---Section 6(4) of Land Acquisition Act, 1894 only catered that situation where area in respect of which notification under S.6 or 17(4) of Land Acquisition Act, 1894 is less than area previously notified under S.4(1) of the Act, which is deemed to have been superseded by said notification so far that related to excess area---Such provision did not cater with situation, where land notified under S. 6 read with S.17(4) of Land Acquisition Act, 1894 was exceeded the land already notified under S.4 of Land Acquisition Act, 1894---Land, which was to be notified either under S.6 or 17(4) of Land Acquisition Act, 1894, must not be in excess of land notified under S.4 of the Act---Notification issued under S.17(4) of Land Acquisition Act, 1894 acquiring land in excess than land already notified under S.4(1) of the Act, was, therefore, defective and invalid.

(e) Constitution of Pakistan----

----Art. 10-A---Right to fair trial---'Fair trial', scope of---Under S.10-A of the Constitution, fair trial has been taken as fundamental and basic right of citizens of Pakistan---Depriving any interested person from raising any objection as to his intended deprivation from his right, would be an act, which can conveniently be termed as violative to concept of "fair trial".

Nazir Ahmad and 7 others v. Commissioner, Lahore Division, Lahore and 3 others 2000 MLD 322 and Sulemna(sic) Daud v. Lahore Development Authority Writ Petition No.7160 of 2007 rel.

Mian Bilal Bashir and Ch. Bashir Hussain Khalid (in W.P.No.11292 of 2003), Mian Israr-ul-Haq, (in W.P.11224 of 2003), Syed Najaf Hussain Shah (in W.P.No.8872 of 2003), Ch. Zafarullah (in W.P. No.14543 of 2010) and Tallat Farooq Sheikh (in W.P.No.2692 of 2014) for Petitioners.

Khawar Ikram Bhatti, Addl. A.-G. Punjab for Respondents Nos.1 and 3.

Kh. Muhammad Haris for Respondent No.2-LDA.

Date of hearing: 1st June, 2015.

P L D 2016 Lahore 306

Before Ijaz ul Ahsan, J

AHMED DIN and 8 others---Petitioners

Versus

MEMBER CONSOLIDATION, BOARD OF REVENUE, PUNJAB and 13 others---Respondents

Writ Petition No.2760 of 2010, decided on 7th November, 2014.

(a) Punjab Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 11 & 13---Constitution of Pakistan, Art.199---Constitutional petition---Consolidation scheme---Petitioners were some of the landowners who were not satisfied with consolidation scheme prepared by revenue authorities and sought the scheme to be annulled---Validity---Petitioners failed to point out any specific instance where deficiency was beyond permissible limits---Petitioners were also unable to specify any such land owners or land holdings where such reduction had taken place---No document from record was pointed out that could support allegation of petitioners---Classification of land in question was carried out under Punjab Consolidation of Holdings Ordinance, 1960 and Punjab Consolidation of Holdings Rules, 1998 and the same had been accepted by advisory council on classification of land---High Court declined to disturb distribution of land on the basis of categorization/classification---Reports of concerned revenue functionaries placed on record showed that there was no serious objection regarding wrong/erroneous classification made at any stage---Small number of 'aggrieved persons' could not be given a veto power and a right to challenge and nullify work done to the satisfaction of more than 80% of land holders of the village---Aggrieved persons who were small in number would not be non-suited and they always had right to approach concerned revenue Courts and other judicial fora to get remedies for their individual grievances (if any)---High Court declined to interfere in order passed by Board of Revenue whereby consolidation scheme in question was maintained---Petition was dismissed in circumstances.

Manzoor Hussain and others v. Member Judicial Board of Revenue and others 2006 SCMR 951; Khushi Muhammad v. The Board of Revenue, West Pakistan and 3 others PLD 1973 Lah. 829; Muhammad Din and 3 others v. The State and others PLD 1982 Revenue 2; Mir Ali and 8 others v. K.B. Dil Aram Khan (deceased) through Legal Heirs and others 1992 SCMR 1; Abdul Ghani v. Abdul Farooq and others 1993 MLD 1643 and Allah Jawaya v. Muhammad Sharif and others PLD 1987 Revenue 29 rel.

(b) Punjab Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 11 & 13--- Constitution of Pakistan, Art.199--- Constitutional petition---Maintainability---Constitutional jurisdiction is not proper forum for agitating grievance against allocation of land in consolidation proceedings.

Asad Riaz v. Member, Board of Revenue, Punjab, Lahore 1997 SCMR 1611; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Umar Din and others v. Member (Colonies), Board of Revenue and others 1984 CLC 17; Allah Rehman and others v. Amtul Qayyum and another 1989 SCMR 1817; Ghulam Qadir v. Member Board of Revenue, West Pakistan, Lahore and 4 others 1970 SCMR 292; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Amir Din and others v. Muhammad Malik and others 1981 SCMR 834 and Falak Sher v. Sharif and others 1989 SCMR 1096 rel.

(c) Punjab Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 11 & 13---Punjab Board of Revenue Act (XI of 1957), S.8---Consolidation proceedings---Review of order---Scope---Power of review was though not provided in the of Punjab Consolidation of Holdings Ordinance, 1960, Board of Revenue was competent to review its orders at the instance of aggrieved person in matters relating to consolidation proceedings.

Muhammad Shafi v. The Member (Cons.) Board of Revenue and 2 others 1995 CLC 966 rel.

(d) Punjab Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 11 & 13---Consolidation scheme, assailing of---Judicial side/administrative side---Principle---Where consolidation scheme is being scrutinized or has been scrutinized on judicial side, same cannot be interfered with on administrative side.

Chuttan and others v. Sufaid Khan and others 1987 SCMR 503 rel.

(e) Punjab Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 11 & 13---Consolidation proceedings---Chief Minister / Revenue Minister---Jurisdiction---Neither Chief Minister of a province nor Revenue Minister have any role to play in matter of consolidation.

Ahmed Khan v. Member (Consolidation) Board of Revenue Punjab, Lahore and others PLD 1990 SC 1070 rel.

(f) Punjab Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 11 & 13---Consolidation proceedings, assailing of---Locus standi---Land owners who had alienated their properties, had no locus standi to challenge consolidation proceedings.

Abdul Ghani v. Abdul Farooq and others 1993 MLD 1643 and Khushi Muhammad v. The Board of Revenue, West Pakistan and 3 others PLD 1973 Lah. 829 rel.

(g) Punjab Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 11 & 13---Consolidation proceedings---Procedure---Entire body of affected land owners should be summoned in any matter involving consolidation scheme, which is sought to be annulled.

Ghulam Farid Sanotra for Petitioners.

Naveed Sheheryar Sh. along with Miss Humera Bashir for Respondents.

Seetat Hussain Naqvi for Respondents Nos. 6 to 11.

P L D 2016 Lahore 318

Before Erum Sajad Gull, J

ADNAN HAFEEZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.13060-B of 2015, decided on 20th October, 2015.

Criminal Procedure Code (V of 1898)---

----S. 497--- Electronic Transactions Ordinance (LI of 2002), Ss. 36 & 37--- Penal Code (XLV of 1860), Ss. 420 & 109---Cyber crime, cheating and abetment---Bail, grant of---Hacking---Recovery of electronic equipment---Tampering/destroying of evidence, apprehension of---Accused was apprehended red-handed from the office of a travel agency where he was working---From the possession of accused, three laptop computers, mobile phone and one portable internet device were taken into custody by Federal Investigation Agency---Laptop computers were sent to Forensic Science Laboratory from where it was proved that multiple SSL IDs assigned to different travel agents were found in the recovered laptop computers of the accused---Effect---Such SSL IDs could only be used by authorized travel agents but were illegally being accessed by laptops found in possession of accused--- Prosecution had collected substantial evidence connecting accused with commission of offence---Apprehension existed that if bail was granted to accused he would tamper with the evidence and even destroy it---Accused was a technical expert and mastermind of a gang who had been hacking IDs of various travel agents---Lead to other co-accused would be destroyed if petitioner was allowed to get in contact with his co- accused and the hectic efforts of Federal Investigation Agency in tracing out the culprits of such serious scam would suffer a serious setback---All business dealings and transactions were done internationally through internet, therefore, cyber crime could not be taken lightly---High Court observed that legislature should consider enhancing sentences for such crimes---Bail was refused in circumstances.

Afzaal Ahmed v. The State 2003 SCMR 573; Imtiaz Ahmed and another v. The State PLD 1997 SC 545 and Shahzad Ahmed v. The State through F.I.A. Islamabad, 2010 SCMR 1221 rel.

Mian Shehzad Hassan for Petitioner.

Sameer Khosa for Respondent No.2.

Syed Akmal Hussain Shah, Standing Counsel along with Sami-ur-Rehman Khan, A.D FIA.

P L D 2016 Lahore 321

Before Syed Mansoor Ali Shah, J

INSTITUTE OF ARCHITECTS, PAKISTAN (LAHORE CHAPTER)---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No.4407 of 2015, heard on 25th January, 2016.

(a) Punjab Revenue Authority Act (XLIII of 2012)---

----Ss. 3, 5 & 8---Punjab Sales Tax on Services Act (XLII of 2012), Preamble & Ss. 6 & 39---Punjab Revenue Authority---Public sector organization---Appointments to public sector organization---Validity of proceedings---Improper or non-constitution of statutory public sector organization/authority---Effect---Contention of the petitioner was, inter alia, that the Punjab Revenue Authority ("Authority") had not been lawfully constituted under S. 3 of the Punjab Revenue Authority Act, 2012 and that the appointment of the Chairperson and Members of said Authority by the Provincial Government had not been done in accordance with provisions of the Punjab Revenue Authority Act, 2012 and therefore, all actions taken by the said Authority were illegal---Validity---Legal establishment of the Authority, as a corporate body, was to be done through a notification under S. 3(1) of Punjab Revenue Authority Act, 2012 and admittedly, no such notification had been issued to date; hence the Authority had not been legally established under law---Contention of the respondents that S. 8 of Punjab Revenue Authority Act, 2012 provided that existence of any vacancy or any defect in the constitution of the Authority did not render the acts, proceedings, decisions, orders of the Authority invalid was not tenable; since said S. 8 of Punjab Revenue Authority Act, 2012 presupposed that the Authority had been lawfully established and constituted in the first place and the same was not a protection clause that covered for the failure of the Provincial Government to establish or constitute the Authority---No Rules or Regulations had so far been framed under Punjab Revenue Authority Act, 2012 and the Provincial

Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876; PLD 2012 SC 132; Enayat Ali and others v. Province of West Pakistan and others PLD 1968 Kar. 552; The Sargodha Bhera Bus Service Limited and others v. The Province of West Pakistan PLD 1959 SC 127; Muhammad Arif and another v. The State and another 1993 SCMR 1589; Syed Wajid Ali and 4 others v. Globe Automobiles Ltd. and another 1993 SCMR 819 and Krishna Kumar Singh and another v. State of Bihar (1998) 5 SCC 643 rel.

(b) Public Law---

----Autonomous Public Sector Authority/Entity---Purpose of setting up a distinct autonomous Authority as opposed to a department or attached department of the Government---Purpose, scope and extent of such autonomy, described.

Revenue Administration: Autonomy in Tax Administration and the Revenue Authority Model by Wailliam Crandall. Fiscal Affairs Department, International Monetary Fund, June, 2010 rel.

(c) Words and phrases---

----"Ex-officio", meaning of---"Ex officio" was a Latin phrase meaning from the office, used to describe something said or done officially or by right of office or position.

Free Dictionary by Farlex rel.

(d) Civil service---

----Parameters for appointments to public sector organisations---Principles of open, fair, objective, consultative, deliberative, and transparent selection / appointment process---Jurisprudence and case-law, examined.

2014 SCMR 949; 2013 SCMR 1159; PLD 2012 SC 132 and Mushtaq Ahmad Mohal and others v. The Honourable High Court, Lahore and others 1997 SCMR 1043 rel.

(e) Public Law---

----Public sector organisations---Institutional integrity and distinctive competence---Scope---Administrative agencies, like all other institutions, develop special capabilities and proficiencies in the performance of their tasks and to say that an institution had integrity was to suggest that it was faithful to the functions, values, and distinctive set of unifying principles that defined its special competence and character---Preservation of institutional integrity involved protecting the institution from injury, destruction or decay and also protecting institutional processes, values, and unifying principles that determined an institution's distinctive competence---Integrity, at the institutional level, implied an organization that defined, and acted within a strong code of ethical conduct and positive values, and that adopted no tolerance of attitudes, actions and activities by its employees or partners that deviate from such code---Said concept was strongly interlinked with the principle of transparency, implying openness, communication and accountability and as far as organizations and institutions were concerned, the key aspect was that an integrity-based organization performed its tasks in line with its intended purpose, and was operated in a transparent, accountable, decent, ethical, faultless and invulnerable manner---Behaviour of the individuals was consistent with the values and goals that were being followed, and the organization and their associates took all necessary steps to do their work in compliance with such values---Institutional integrity in the public sector was particularly important due to the public character of these institutions that implied public trust in the institution's practices, operations, and policies.

Leadership of Public Bureaucracies: The Administrator as Conservator. By Larry D. Terry. 2nd Edn. Routledge; Principles and Approaches in Ethics Assessment, Institutional Integrity, Agata Gurzawska University of Twente, June 2015 and Centre for Public Interest Litigation v. Union of India AIR 2011 SC 1267 rel.

(f) Public Functionary---

----Functions of---Public officials to act as trustees---Public interest---Duty of loyalty---Duty of trusteeship---Collective Good---Scope---Public officials do not act for their own sake but rather for the sake of the public interest---Role of the public official in a democracy, like the role of the State itself, was to serve the interest of the public and its members---Government in itself had no "private" interest of its own and existed for the sake of individuals---Representatives of the Government had no "self" interest that must be protected; and they must act to achieve the collective interest---Duty of the loyalty sought to prevent the serious concern that representatives of the Government would develop their own interests and use the tremendous power granted them for purposes that did not reflect the collective good---Said duty of loyalty sought to guarantee that the government took care of the public and not itself---Duty of trusteeship imposed derivative duties upon the state and trusteeship required fairness, and fairness required integrity, relevance, equality, and reasonableness---List of principles derived from the position of trusteeship was not closed, and list of values derived from the duty of fairness was not fixed---Values and principles, by nature, were on the one hand stable and on the other hand evolving and were sown in the soul of the nation and were not subject to passing trends and as such were full of vitality, and they evolve to provide fitting solutions to new problems.

Aharon Barak - The Judge in a Democracy. P/220-222 rel.

Syed Reza Ali for Petitioner (in Writ Petitions Nos.4407/2015, 27698/2014 and 18112/2014).

Imtiaz Rashid Siddiqui, Barrister Shehryar Kasuri, Muhammad Humzah and Raza Imtiaz for Petitioners (in Writ Petitions Nos.18213/2013, 11627/2014, 28272/2013, 25950/2013, 16851/2015, 14764/2015, 14918/2015, 14766/2015, 14299/2015, 37683/2015 and 38187/2015)

Salman Akram Raja and Malik Ahsan Mehmood for Petitioner (in Writ Petitions Nos.17350/2013, 6498/2014 and 26963/2013).

Naveed A. Andrabi for Petitioner (in W.Ps. Nos.21463/2015, 5983/2015, 23273/2015, 7207/2014, 17854/2013, 11510/2014 and 40307/2015).

Mansoor Usman Awan for Petitioner (in Writ Petitions Nos.24049/2013, 5028/2013 and 4725/2013).

Waseem Ahmad Malik for Petitioner (in Writ Petitions Nos. 578/2014, 582/2014, 580/2014, 571/2014, 1380/2014, 767/2014, 5403/2014, 5389/2014, 773/2014, 818/2014, 822/2014, 803/2014, 729/2014, 817/2014, 575/2014, 777/2014, 732/2014, 815/2014, 1019/2014, 5391/2014, 5398/2014, 5401/2014, 5353/2014, 5396/2014, 1028/2014, 8812/2014, 5407/2014, 5405/2014, 1009/2014, 1010/2014, 1026/2014, 1378/2014, 18674/2014, 18936/2014, 1753/2016, 727/2016, 374/2016, 32897/2015, 1887/2016 and 40156/2015).

Muhammad Masood Chishti and Waseem Ahmad Malik for Petitioner (in W.P. No.14508/2013).

Uzair Karamat Bhandari, Mian Muhammad Kashif and Muhammad Suhail Tipu for Petitioners (in Writ Petitions Nos.8208/2014, 39392/2015 and 39601/2015)

Muhammad Ajmal Khan, Mian Abdul Ghaffar and Sumaira Khanum for Petitioners (in Writ Petitions Nos. 5803/2013, 31549/2015, 31540/2015, 31979/2015, 31547/2015, 29795/2015, 31538/2015, 28663/2015, 28664/2015, 28650/2015, 12646/2015, 4130/2015 and 39286/2015).

Dr. Ilyas Zafar and Syed Nasir Ali Gillani for Petitioners (in W.P. No.6253/2015).

Shezada Mazhar, Jawad Khan Lodhi and Asad Raza for Petitioners (in Writ Petitions Nos.15945/2015 and 20091/2015).

Muhammad Mohsin Virk, Abu Baker Haider and Shahzad Saleem Bhatti, for Petitioner (in Writ Petitions Nos.31403/2015, 31400/2015, 31405/2015, 20440/2015 and 35011/2015).

Abdul Waheed Habib for Petitioner (in Writ Petitions Nos.35537/2015, 32971/2015, 32959/2015 and 34216/2015).

Moiz Tariq for Petitioners (in Writ Petitions Nos. 1565/2016, 1567/2016, 1572/2016, 1573/2016, 37646/2015, 35140/2015, 35187/2015, 35406/2015, 35282/2015, 35334/2015, 35255/2015, 35267/2015, 35186/2015, 37650/2015, 37653/2015, 37656/2015, 37658/2015, 36098/2015, 35139/2015, 35271/2015, 35306/2015, 35360/2015, 35405/2015, 38392/2015, 38405/2015, 35834/2015, 35836/2015, 35841/2015, 35843/2015, 35844/2015, 35845/2015, 35851/2015, 35852/2015, 35853/2015, 35854/2015, 35855/2015, 35856/2015, 35280/2015 and 36450/2015).

Zulfiqar Khan and Tanveer Hussain for Petitioners (in Writ Petitions Nos. 18809/2014, 18805/2014, 18969/2014, 18806/2014, 18804/2014, 19559/2014, 18968/2014, 18812/2014, 18808/2014, 18807/2014, 18811/2014, 30594/2015, 30577/2015, 30593/2015, 1264/2016 and 35822/2015).

Raja Jehanzeb Akhtar for Petitioner (in W.P. No. 5316/2015).

Adnan Ahmad for Petitioner (in W.P. No.38907/2015).

Syed Muhammad Ijaz for Petitioner (in W.P. No.40373/2015).

Masood Ahmad Wahla for Petitioner (in W.P. No.698/2016).

Malik Sahib Khan Awan for Petitioner (in W.P. No.36023/2015).

Rana Hamad Aslam for Petitioner (in W.P. No.37725/2015).

Zia Haider Rizvi and Sajjad Haider Rizvi for Petitioners (in Writ Petitions Nos.26223/2015 and 33043/2015).

Zulfiqar Ali Khan for Petitioner (in W.P. No.19739/2015).

Sikandar Javed for Petitioner (in Writ Petitions Nos.23327/2015, 30339/2015, 24749/2015, 24885/2015 and 24750/2015).

Khurram Shahbaz Butt for Petitioner (in Writ Petitions Nos.11850/2013 and 21536/2015).

Sumair Saeed Ahmad for Petitioner (in Writ Petitions Nos.29695/2015 and 29696/2015)

Khubaib Ahmad for Petitioner (in Writ Petitions Nos.31248/2015 and 31236/2015).

Muhammad Amir Sohail for Petitioner (in Writ Petitions Nos.8789/2015 and 19078/2015).

Ghulam Murtaza for Petitioner (in Writ Petitions Nos.11807/2014 and 11802/2014).

Sirdar Ahmad Jamal for Petitioner (in Writ Petitions Nos.8072/2014 and 8397/2014).

Assad Ullah Jaral for Petitioner (in Writ Petitions Nos.11034/2015 and 11027/2015).

Hamza H. Rashid and Ch. Saeed Ashraf for Petitioners (in Writ Petitions Nos.723/2015, 27465/2015 and 23314/2015).

Imran Anjum Alvi for Petitioners (in Writ Petitions Nos.1375/2015, 4489/2015, 2915/2015, 2665/2015, 2081/2015, 2681/2015 and 1373/2015).

Saqib Akram Gondal for Petitioner (in Writ Petitions Nos.17365/2015, 17364/2015, 17366/2015 and 17367/2015).

Ch. Riaz Ahmad Basra for Petitioner (in W.P. No.12686/2014).

Awais Ahmad Bhatti for Petitioner (in W.P. No.15486/2015).

Hyder Ali Khan for Petitioner (in W.P. No.4124/2015).

Zulfiqar Ali Khan for Petitioner (in W.P. No.997/2014).

Jawad Hassan, Haider Zaman Qureshi and Rana Muhammad Asif for Petitioner (in W.P. No.33002/2013).

Malik Muhammad Ali Awan for Petitioner (in W.P. No.31877/2015).

Barrister Ahmad Umar Saqib for Petitioner (in W.P. No.16874/2013).

Sardar Kalim Ilyas for Petitioner (in W.P. No.32573/2013).

Hamza Khan for Petitioner (in W.P. No.33876/2014).

Syed Samar Hussain for Petitioner (in W.P. No.15864/2013).

Akhtar Javaid Malik for Petitioner (in W.P. No.8845/2014).

Ali Sibtain Fazli, Hasham Ahmad and Umer Tariq Gill for Petitioners (in W.P. No.7995/2014).

Mian Muhammad Ismail Thaheem for Petitioner (in W.P. No.7686/2014).

Mian Muhammad Irfan for Petitioner (in W.P. No.9130/2014).

Shahid Pervaiz Jami and Mudassar Shujauddin for Petitioners (in W.P. No.11841/2014).

Mustafa Kamal for Petitioner (in W.P. No.23521/2014).

Rao Muhammad Faisal Iqbal for Petitioner (in W.P. No.7052/2013).

Ch. Waseem Ahmad and Aamir Ch. for Petitioners (in W.P. No.16565/2015).

Afzal Bashir and Rao Qasim Ali Khan for Petitioners (in W.P. No.38767/2015).

Kh. Mahmood Ayaz for Petitioner (in W.P. No.18183/2015).

Fawad Malik Awan for Petitioner (in W.P. No.21516/2015).

Khalil-ur-Rehman for Petitioner (in W.P. No.174/2015).

Nasar Ahmad and Ch. Muhammad Jahangir Wahla, Deputy Attorney Generals for Pakistan for Respondents.

Anwaar Hussain and Ahmad Hasan Khan, Assistant Advocate Generals, Punjab for Respondent.

Sajid Ijaz Hotiana, Afzal Hussain Malik, Muhammad Awais Khalid, Umer Sharif and Barrister Muhammad Ahmad Pansota for Respondent PRA.

Sarfraz Ahmed Cheema for Respondents (in Writ Petitions Nos.5028/2013, 7052/2013, 11802/2014, 25950/2015 and 29257/2015).

Ch. Muhammad Zafar Iqbal for Respondent.

Sarfraz Akhtar for Respondent P.T.A. (in Writ Petitions Nos.32573/2013 and 14508/2013).

Ibrar Ahmad for Respondent FBR (in W.P. No.26223/2015).

Ali Raza Kabir for Respondent No.3 (in W.P. No.16874/2013).

Ayyaz Shaukat for Respondent No.4 (in W.P. No.16874/2013).

Ghulam Subhani for Respondent No.6 (in W.P. No.5316/2015).

Assisted by:

Qaisar Abbas and Mohsin Mumtaz, Research Associates and Civil Judges, Lahore High Court Research Centre (LHCRC).

It is our misfortune that when we are looking for individuals to serve our own-selves, we search for the best of doctors, the best of architects, the best of lawyers, the best of engineers, the best of cooks, the best of butlers and so on but when it comes to selecting similar individuals to serve the public, we get swayed by nepotism, by petty personal interests and by other similar ulterior and extraneous considerations and settle for the ones not worthy of serving the public in the requisite manner.

Supreme Court of Pakistan

Date of hearing: 25th January, 2016.

P L D 2016 Lahore 355

Before Syed Mansoor Ali Shah, J

Messrs D.S. TEXTILE MILLS LIMITED---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

W.P. No. 9078 of 2007, decided on 20th April, 2016.

(a) Punjab Local Government Ordinance (XIII of 2001) [since repealed]---

----Ss. 116, 39(b), 2(xxxi) & Sched.---Punjab Local Governments (Fee for Licensing and Permits and Licensing of Professions and Vocations) Rules, 2002, R. 4---Constitution of Pakistan, Arts. 73(3)(a), 18, 140, 199 & Second Sched. Part-I, Item 6---Local Government---Functions and powers of Zila Council---Additional power of taxation---Fee for license and permits liable to be paid to Local Government under the Punjab Local Government Ordinance, 2001---"Fee" (simpliciter)/user fee and "license fee", two distinct charges having their own characteristics---"Fee" and "license fee" not a "tax"---Levy of "license fee" by Local Government---Constitutionality---Petitioners impugned the constitutionality and legality of the "license fee" imposed upon them by the Local Government under S. 116 read with S. 39(b) of the Punjab Local Government Ordinance, 2001---Contention of petitioners, inter alia , was that the word "tax" had been defined in Punjab Local Government Ordinance, 2001 which definition included "fee", and thus the license fee being a "tax" could not be levied as the tax on corporations fell within the legislative competence of the Federal Legislature and that even otherwise, there was no quid pro quo for which a fee could be demanded---Validity---Word "tax" was defined in S. 2(xxxi) of the Punjab Local Government Ordinance, 2001 to include "fees", however, the same was subject to the rider that the said definition did not hold if there was anything repugnant in the subject or context---Section 116 of the Punjab Local Government Ordinance, 2001 clearly spelled out that a Local Government may levy taxes, fees, rates, cess, rents, tolls, charges, surcharge and levies specified in the Second Sched. and said items in the Second Sched. further clarified that "license fee" was distinct from a "tax" and was charged for licenses and permits---"License fee" was not a tax but a fee or a regulatory charge for granting permission to businesses to carry out their trade within the jurisdiction of the Local Government; and was the instrument through which the licensing system was enforced and furthermore, it was to regulate various trades within the jurisdiction of the Local Government, hence the incidence of the same was not upon the legal form of the business i.e., company, partnership or sole proprietorship but on the nature of the business---"License fee" was, therefore, not a tax and did not in any manner overlap with Federal Corporation Tax---Examination of Constitutional provisions and jurisprudence on the subject, revealed that "fee simpliciter" or user fee required a corresponding service to be rendered in return (a quid pro quo) while "license fee", on the other hand, was architecturally different as it was a fee charged to permit or allow a person to operate within a regulatory scheme designed to protect and improve public welfare---While "fee" had a micro objective of extending services to an identified person; "license fee" had a more micro objective and was charged to meet the administrative costs of maintaining a regulatory scheme for the benefit of the community, a particular sector or of the public at large---Such distinction was constitutionally recognized under Art. 73(3)(a) of the Constitution and "fee" and "license fee" were, therefore two distinct sub-species of charges, having their own peculiar characteristics---Contention that in the absence of a service in return, license fee amounted to a tax, was not sustainable and was opposed to the clear provisions of the Constitution---License fee, in essence, was a regulatory fee and not a user fee and did not require a service rendered in return hence, the impugned License Fee was constitutionally permissible and legally valid---Petitioners were, therefore, held liable to pay the impugned "license fee"---Constitutional petition was dismissed, in circumstances.

Federation of Pakistan through Secretary M/o Petroleum and Natural Resources and another v. Durrani Ceramics and others 2014 SCMR 1630; Messrs Lucky Cement Factory Limited and others v. The Government of N.W.F.P. through Secretary Local Government and Rural Development Department, Peshawar and others 2013 SCMR 1511; Messrs East and West Steamship Company PLD 1958 SC (Pak.) 41; ICI Pakistan Ltd. v. Tehsil Council, Pind Dadan Khan and others PLD 2007 SC 428; Messrs Nishat Chunian Ltd. through Chief Officer v. Province of Punjab through Secretary, Local Government and 2 others 2013 CLC 34; A.P. Paper Mills Ltd. v. Govt. of A.P. and another (2000) 8 Supreme Court Cases 167 and Delhi Race Club Limited v. Union of India and others (2012) 8 SCC 680 ref.

Messrs Adil Textile Mills v. Government of Punjab PLD 2005 Lah. 677; Collins English Dictionary - Complete and Unabridged, 12th Edition 2014 © Harper Collins Publishers, 2014 quoted by The Free Dictionary by Farlex; Understanding Regulation- Theory, Strategy and Practise. Robert Baldwin, Martic Crowe and Martin Lodge. Oxford. 2nd Ed. pp. 2-3; Free Dictionary by Farlex; 2014 SCMR 1630; Black's Law Dictionary 9th Ed. p.1005; Delhi Race Club Ltd. v. Union of India (SC) (2012) 8 SCC 680; Shannon v. Lower Mainland Dairy Products Board, AIR 1939 PC 36; Vam Organic Chemical Ltd. and another v. State of U.P. and others (1997) 2 SCC 715; P. Kannadasan v. State of T.N., (1996) 5 SCC 670, para 36; State of Tripura v. Sudhir Ranjan Nath, (1997) 3 SCC 665, 673; Delhi Cloth and General Mills Co. Ltd. v. The Chief Commissioner, Delhi, (1969) 3 SCC 925; Westbank First Nation v. British Columbia Hydro and Power Authority [1999] SCJ No. 38 and The Law of the Canadian Constitution by Guy Regimbald & Dwight Newman. Lexis Nexis. 1st edition P 344 rel.

(b) Constitution of Pakistan---

----Art. 73---Procedure with respect to Money Bills---Distinction between "license fee" and "fee (simpliciter)"/user fee---"Fee" in the context of services rendered in return---"License fee" as distinguished from "fee simpliciter" or user fee---Regulatory charge distinguished from being a "tax"---Concept and scope of "license fee", "fee" and "regulatory charge"---Case-law and comparative jurisprudence extensively examined.

2014 SCMR 1630; Black's Law Dictionary 9th Ed. p.1005; The Free Dictionary by Farlex; Delhi Race Club Ltd. v. Union of India (SC) (2012) 8 SCC 680; Shannon v. Lower Mainland Dairy Products Board, AIR 1939 PC 36; Vam Organic Chemical Ltd. and another v. State of U.P. and others (1997) 2 SCC 715; P. Kannadasan v. State of T.N., (1996) 5 SCC 670, para 36; State of Tripura v. Sudhir Ranjan Nath, (1997) 3 SCC 665, 673; Delhi Cloth and General Mills Co. Ltd. v. The Chief Commissioner, Delhi, (1969) 3 SCC 925; Westbank First Nation v. British Columbia Hydro and Power Authority [1999] SCJ No. 38 and The Law of the Canadian Constitution by Guy Regimbald & Dwight Newman. Lexis Nexis. 1st edition P.344 rel.

(c) Words and phrases---

----"License Fee"---Meaning---"License fee" has been defined as a monetary charge imposed by a governmental authority for the privilege of pursuing a particular occupation, business or activity---Such type of charge was accompanied by a requirement that the licensee take some action, or be subjected to regulation or restriction and it was a fee paid to the government for the privilege of being licensed to do something.

Black's Law Dictionary 9th Ed. p.1005 and The Free Dictionary by Farlex rel.

(d) Constitution of Pakistan---

----Art. 18 & proviso---Freedom of trade, business or profession---Regulation of any trade or profession by a licensing system---Fundamental Right to freedom of trade, business or profession---Nature---"Regulation"---Concept and scope---Every citizen had the right to enter into a lawful trade or business under Art. 18 of the Constitution, however, such fundamental right did not prevent the "regulation" of any trade or profession by a licensing system and such "regulation" meant a rule, principle, or condition that governed procedure or behaviour and it was the sustained and focused control exercised by a public agency over activities that were valued by a community---"Regulation" involved the promulgation of a binding set of rules to be applied by a body devoted to such purpose and regulation also covered all state actions that were designed to influence business or social behaviour---Concept of "regulation" is often thought of as an activity that restricted behaviour and prevented the occurrence of certain undesirable activities (a "red light concept") however, the broader view was that the influence of regulation may also be enabling or facilitative ('green light' concept) or a mix of both---"License" means official or legal permission to engage in a regulated activity.

Collins English Dictionary - Complete and Unabridged, 12th Edition 2014  Harper Collins Publishers, 2014 quoted by The Free Dictionary by Farlex; Understanding Regulation - Theory, Strategy and Practise. Robert Baldwin, Martic Crowe and Martin Lodge. Oxford. 2nd Ed. pp. 2-3 and Free Dictionary by Farlex rel.

(e) Words and phrases---

----"Regulation", meaning and concept of---"Regulation" meant a rule, principle or condition that governed procedure or behavior and regulation was the sustained and focused control exercised by a public agency over activities that are valued by a community---"Regulation" involved promulgation of a binding set of rules to be applied by a body devoted to such purpose and "regulation" also covered all state actions that were designed to influence business or social behaviour---Concept of "regulation" was thought of as an activity that restricted behaviour and prevented the occurrence of certain undesirable activities (a "red light concept") however, the broader view was that the influence of regulation may also be enabling or facilitative ('green light' concept) or a mix of both.

Understanding Regulation- Theory, Strategy and Practise. Robert Baldwin, Martic Crowe and Martin Lodge. Oxford. 2nd Ed. pp. 2-3 rel.

(f) Words and phrases---

----"License"---Meaning---"License" means official or legal permission to engage in a regulated activity.

Free Dictionary by Farlex rel.

Syed Waqar Hussain Naqvi for Petitioner (in Writ Petitions Nos.17177, 17178 of 2011, 9077, 9079 of 2007 and 13958 of 2008).

Umar Abdullah for Petitioner (in Writ Petitions Nos.21790, 9818 of 2007 and 5828 of 2006).

Adnan Ahmad Paracha on behalf of Shafqat Mehmood Chohan for Petitioner (in Writ Petitions Nos. 1317 and 1323 of 2006).

Muzamil Akhtar Shabir for Petitioner (in W.P. No. 1385 of 2005).

Nasar Ahmad, Deputy Attorney General for Pakistan, Imtiaz Ahmad Kaifi, Additional Advocate-General, Punjab, Anwaar Hussain, Assistant Advocate-General, Punjab assisted by Imran Khan and Ms. Rutaaba Gul, Ahmad Hasan Khan, Assistant Advocate General, Punjab, Mirza Muhammad Aziz-ur-Rahman, Ch. Abrar Ahmad, Director Law, Local Government, Muhammad Fahad, Law Officer, Local Government, Azhar Hussain Shah, Advocate/Legal Advisor, District Government, Sheikhupura, Arif Hussain, ETO, Hafizabad and Iftikhar Ahmad Khan, Tax Inspector, Hafizabad for Respondents.

Assisted by Qaisar Abbas and Mohsin Mumtaz, Research Associates and Civil Judges, Lahore High Court Research Centre (LHCRC).

Date of hearing: 11th February, 2016.

P L D 2016 Lahore 373

Before Zafarullah Khan Khakwani, J

Mst. SARA ALI MALIK---Petitioner

Versus

CITY POLICE OFFICER, GUJRANWALA and others---Respondents

Writ Petition No.306 of 2014, decided on 28th April, 2014.

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

----S. 24-A---Speaking orders---Scope---Public functionary is bound down to decide applications of citizens with reasoning and after applying judicious mind.

Wajid Saeed Khan v. Abdul Qadoos Khan Swati and others 2007 SCMR 1759 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional petition---Scope---High Court has jurisdiction to correct illegalities/irregularities committed by public functionaries.

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

----S.302---Police Order (22 of 2002), Art. 18---Constitution of Pakistan, Art.199---Constitutional petition---Change of investigation---Joint investigation team, constitution of---Investigation was changed on application filed by complainant which order was suspended by High Court but new Investigating officer concluded investigation and declared petitioner as guilty---Validity---City Police Officer had no power to transfer investigation to joint investigation team, so the letter in such regard was illegal and unlawful having no legal effect and all subsequent proceedings were taken thereon were null and void---High Court declared opinion/recommendations of District Standing Board and subsequent order passed by City Police Officer, unlawful, non-speaking and only for satisfaction of complainant---High Court also declared subsequent investigation conducted by Investigating officer to be null and void having no legal effect and remanded the matter to Regional Standing Board, which if it though fit would change investigation to a team comprising upright, bold and competent police officers---Petition was allowed accordingly.

Abdul Latif v. Inspector General, Police and others 1999 PCr.LJ 1357; Ghulam Sarwar Zardari v. Piyar Ali Allas Piyaro and another 2010 SCMR 624 and Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 ref.

Abid Saqi and Azeem Abbas Kazmi for Petitioiner.

Imtiaz Ahmad Kaifi, Addl. Advocate General and Asjad Goral, Addl. Prosecutor General with Mahmood D.S.P. (Legal), Muhammad Anwar D.S.P./S.D.P.O. Kamoki and Muhammad Sahfi, Sub Inspector.

Waseem Mumtaz Malik for Respondent No.4.

P L D 2016 Lahore 383

Before Ch. Muhammad Masood Jahangir, J

ABDUL MAJEED through Legal Heirs---Petitioner

Versus

ABDUL RASHEED and others---Respondents

C.R. No.427 of 2006, heard on 7th April, 2015.

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

----S. 41----Qanun-e-Shahadat (10 of 1984), Art. 72, 75, 78, 79 & 140----Civil Procedure Code (V of 1908), O. XIII, R. 4---Specific Relief Act (I of 1877), Ss. 8 & 42---Suit for declaration and possession through partition---Benami transaction---Essentials---Proof---Execution of document---Onus of proof---Admission of document under O. XIII, R.4, C.P.C.---Effect---Cross-examination as to previous statement in writing---Non-confrontation of document during examination---Effect---Contradictory defences---Effect---Plaintiff filed suit for declaration and possession through partition regarding suit property asserting that suit property was owned by his father and after his death parties became owners-in-possession of the same and that defendant (one of the sons) had obtained affidavit in his favour for sanction of site plan from the other legal heirs/parties---Defendant resisted said claim on grounds that he was actual owner of suit property, whereas father of parties was only a Benami owner thereof and that all other legal heirs had surrendered their legal share in his favour by executing an affidavit---Suit was dismissed concurrently---Contention of plaintiff was that defendant had neither pleaded motive of alleged Benami transaction in his written statement nor had he asserted the same in his evidence---Defendant, alleging Benami title and surrender of shares by other legal heirs through affidavit, had taken contradictory defences---Said affidavit could not be termed as sale deed as the same was executed only for sanction of site plan and transfer of shares could only be made through registered document---Plea taken by defendant was that suit property was transferred in name of his father as ostensible owner and all legal heirs, acknowledging said transaction as Benami, had surrendered their rights regarding suit property in his favour---Validity---Suit property had admittedly been transferred in name of father of parties, and defendant had never filed suit against his father in his life time on basis of Benami transaction---Defendant failed to prove any motive in his written statement as to why suit property had been got transferred in name of his father---Permanent Transfer Deed issued by Settlement Authorities in favour of father of parties contained price/consideration for transfer---Defendant neither produced previous owner nor any documentary evidence to prove that sale consideration had been paid by him---Defendant through oral evidence had proved payment of sale consideration but the same could not be preferred over documentary evidence in shape of "Permanent Transfer Deed" to which strong presumption of truth was attached---No agreement to sell or mode of payment was brought on record to prove that defendant had purchased suit property---Defendant's witnesses were contradictory---Original Permanent Transfer Deed was not produced by defendant---Defendant failed to prove necessary elements of Benami---Defendant also failed to prove that other legal heirs had surrendered their share in his favour---Mere production of copy of affidavit was insufficient to hold that rights of plaintiff had been surrendered in favour of defendant---Affidavit had admittedly been executed for sanction of site plan and the same was submitted to concerned Authority for said purpose, but original affidavit was not summoned from custody of said Authority---Plaintiff was not confronted with affidavit during cross-examination---Affidavit was not a public document and the same was to be proved in terms of Art.79 of Qanun-e-Shahdat, 1984---Party relying on affidavit must produce deponent for cross-examination and if deponent fails to submit to cross-examination, affidavit would lose all its force as probative piece of evidence and the same could not be acted upon---Onus to prove the affidavit was on defendant but neither stamp vendor nor scribe, Notary Public, Oath Commissioner were produced to prove contents of the affidavit---Affidavit got exhibited under O. XIII, R. 4, C.P.C. on statement of witness who was not related to said affidavit--- Admission of document in evidence under O. XIII, R. 4, C.P.C., was not binding on parties---In cross-examination, it was suggested to plaintiff that an affidavit had been executed by him but on his denial that he did not intend to surrender his rights, it was required under the law that he should have been confronted with the writing of said affidavit---Under Art.140 of Qanun-e-Shahadat, 1984, such confrontation was mandatory---Non-confrontation of affidavit to plaintiff had damaged the case of defendant---Affidavit could not be proved under Qanun-e-Shahadat, 1984 and the same could not be made basis of dismissal of suit---Defendant failed to prove the defences set up by him---Findings of courts below regarding said affidavit were not sustainable under law---Courts below fell in legal error while dismissing suit of plaintiff who had fully proved his claim---High Court, allowing revision petition, set aside judgments and decrees of courts below and remanded the suit to Trial Court with direction to pass preliminary decree after determining legal shares of parties---Revision petition was accepted in circumstance.

Sikandar Hayat and 4 others v. Master Fazal Karim PLD 1971 SC 730; Ghulam Rasool through Lrs. v. Muhammad Shafi and another 2013 SCMR 1501 and The President--Referring Authority v. Justice Shaukat Ali PLD 1971 SC 585 rel.

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

----O. XIII, R. 4---Production of document---Admission of document in evidence under O. XIII, R. 4, C.P.C., is not binding on parties---Unproved documents could not be regarded as proved merely because the same has been admitted in evidence by court without any objection---Order XIII, R. 4, C.P.C. must be strictly complied with---Document once brought on record and exhibited, even if no objection is taken from other side when the same is exhibited, court is not prevented from adjudicating its nature to ascertain that whether same is valid and not fake.

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

----S. 41---Transfer by ostensible owner---Essentials---Benami transaction---Importance of motive of Benami transaction---Essentials for proof of Benami transaction were that what was the source of consideration for Benami transaction, that in whose custody original title documents were and who was in possession of Benami property; and that what was the motive of Benami transaction---Essential elements must exist to prove Benami transaction between ostensible owner and purchaser for purchase of property in name of ostensible owner for benefit of person who was to make payment of consideration---Existence of motive for creation of Benami title was relevant---For determining as to whether title vesting with opposite party in disputed property was merely Benami, absence of motive always goes against claimant.

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

----Art. 79---Proof of handwriting and signatures---Affidavit---Proof---Affidavit was not a public document and the same had to be proved in terms of Art.79 of Qanun-i-Shahadat, 1984---Party relying on affidavit must produce deponent for cross-examination and if deponent fails to submit to cross-examination, affidavit would lose all its force as probative piece of evidence and the same could not be acted upon.

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

----Art. 140----Cross-examination as to previous statement in writing---Non-confrontation of document---Effect---Where in cross-examination, it was suggested to plaintiff that an affidavit surrounding his rights in property had been executed by him but on his denial that he did not intend to surrender his rights in suit land, it was required under the law that he should have been confronted with the writing of said affidavit---Under Art.140 of Qanun-e-Shahadat, 1984, such confrontation was mandatory.

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

----S. 41----Transfer by ostensible owner---Essentials---Benami transaction---Motive of Benami transaction---Existence of motive for reation of Benami title is relevant---For determining that whether title vesting with opposite party in disputed property was merely benami, absence of motive always goes against the claimant.

Babar Ali for Petitioner.

Zafar Abbas Mir for Respondents.

Date of hearing: 7th April, 2015.

P L D 2016 Lahore 393

Before Ayesha A. Malik, J

KAINAT AKHTAR---Petitioner

Versus

REGIONAL HEADQUARTER NADRA and 2 others---Respondents

Writ Petition No.855 of 2014, heard on 26th February, 2014.

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

----S. 9---Constitution of Pakistan, Art. 199---Constitutional petition---Issuance of Computerized National Identity Card---Scope---Adopted child---Contention of respondent-NADRA was that petitioner was adopted child and she did not have a mother or father---Validity---Guardianship certificate had been issued in favour of petitioner by the court of competent jurisdiction---Petitioner had provided the name of her guardian and no contradiction existed in her documents---Every citizen in or out of Pakistan who had attained the age of eighteen years should get himself registered and a parent or guardian of every citizen who had not attained such age should not later than one month after birth of such citizen get such citizen registered in accordance with the provisions of the Ordinance---National Identity Card was a document for identification of a citizen---Issuance of National Identity Card would mean that the information contained therein was valid and correct--- Application form issued by the NADRA had contemplated the category of guardian and same also inquired the relationship with the family head to be explained---Petitioner was entitled to registration with the NADRA and for issuance of her Computerized National Identity Card---Constitutional petition was accepted and respondents were directed to issue Computerized National Identity Card to the petitioner forthwith.

Muhammad Salah-ud-Din v. NADRA PLD 2012 Lah. 378 ref.

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

----Preamble---Object---National Database and Registration Authority Ordinance, 2000, was promulgated to facilitate the registration of all the persons and for establishment and maintenance of database, data warehouses, networking, interfacing of databases and related facilities---Purpose of Ordinance and Authority was to register persons and classes thereof including citizens.

Nadeem Ahmad Sheikh for Petitioner.

Jamil Khan, Law Officer for NADRA.

Date of hearing: 26th February, 2014.

P L D 2016 Lahore 397

Before Sadaqat Ali Khan and Erum Sajad Gull, JJ

MUHAMMAD JAWAD HAMID---Petitioner

Versus

HASEEB AKBAR and others---Respondents

Writ Petition No.2666 of 2016, decided on 25th February, 2016.

Constitution of Pakistan---

----Art. 13---Double jeopardy, principle of---Applicability---Two FIRs of one incident---Petitioner sought consolidation of two FIRs registered with different set of accused persons to be tried in one trial on the principle of double jeopardy---Validity---Both FIRs were registered regarding the same occurrence with different versions and different set of accused well mentioned in both FIRs---Different versions of the same incident advanced by rival parties through cross cases and different sets of accused persons was to be held simultaneously and side-by-side---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121 and Niaz Ahmed v. Hasrat Mahmood and others PLD 2016 SC 70 rel.

Rai Bashir Ahmad for Petitioner.

P L D 2016 Lahore 402

Before Shahid Waheed, J

Sheikh MUBASHAR IRFAN---Petitioner

Versus

PRESIDENT OF PAKISTAN and 3 others---Respondents

Writ Petition No.37312 of 2005, decided on 14th December, 2015.

Constitution of Pakistan---

----Arts. 47, 63 & 199---Constitutional petition---Maintainability---Impeachment of the President---Petitioner was aggrieved of certain remarks made by the President of Pakistan in a speech and alleged that under Art. 16(g) of the Constitution, the President stood disqualified to hold office--- Validity---Procedure stated in Art.47 of the Constitution did not admit filing of petition under Art.199 of the Constitution for a direction or order to Speaker of National Assembly or Chairman Senate to initiate proceedings on the charge of violating Constitution or gross misconduct against the President at the instance of a lawyer or a citizen---Wisdom in such procedure was that the President as the symbol of unity of Republic was entitled to the highest respect and esteem---High Court under Art. 199 of the Constitution could not take upon itself the exercise to record even a tentative finding that the President had violated the Constitution or committed misconduct warranting initiation of proceedings for his removal or impeachment under Art.47 of the Constitution as it would be contrary to the language and spirit of said Article---Constitutional petition was dismissed in circumstances.

Haji Rana Muhammad Shabbir Ahad Khan v. Federation of Pakistan through Attorney General for Pakistan and another PLD 2001 SC 18; Dr. Azim ur Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299 and Suo Motu case No.15 of 2009 (PLD 2012 SC 610) ref.

Shahid Orakzai v. President of Pakistan, Islamabad and another 1999 SCMR 1598 rel.

Petitioner in person

P L D 2016 Lahore 405

Before Muhammad Anwaarul Haq, J

IMRAN BASHIR---Petitioner

Versus

RAI BILAL HAIDER and others---Respondents

Criminal Miscellaneous No.15444-CB of 2015, decided on 22nd March, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, recalling of---Dispute between an advocate (accused) and complainant (a disabled person) over an agreement to sell---Pre-arrest bail of accused had been confirmed by the court below without pointing out any mala fide of the complainant or of the police, which was a sine qua non for the relief of pre-arrest bail---Observation of court below that complainant was not willing to return the original agreement to sell was not based upon facts because the complainant was admittedly not present before the court on the relevant date---Accused was given reasonable opportunity and time to fulfill his commitment to pay the outstanding amount to the complainant, but the accused failed to do the same---Stubborn attitude of the accused reflected that he had no regard for commitments made before the court---Whereas the complainant was a blind man pursuing present bail cancellation petition regularly despite his disability---Pre-arrest bail confirming order passed by court below was recalled in such circumstances.

Zohaib Riaz Cheema for Petitioner.

Ch. Muhammad Mustafa, Deputy Prosecutor-General for the State with Sarfraz Ahmad A.S.I. with record.

Ch. Mahmood Alam for Respondent No.1 along with Respondent No.1 Rai Bilal Haider in person.

P L D 2016 Lahore 408

Before Shahid Hameed Dar and Mazhar Iqbal Sidhu, JJ

FARAZ SHAUKAT---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4771/M of 2014 in Criminal Appeal No.300 of 2008, decided on 26th January, 2015.

Criminal Procedure Code (V of 1898)--

----S.426(2-B)---Penal Code (XLV of 1860), S.302(b)---Qatl-i-amd---Petition for suspension of sentence---Death sentence awarded to accused by the Trial Court was converted into imprisonment for life---Petitioner challenged the judgment of High Court before Supreme Court, wherein leave to appeal had been granted to the petitioner---Petitioner, had filed petition for suspension of sentence pending disposal of appeal before Supreme Court---Delayed FIR; discrepant medical evidence as to the role of the petitioner; the inter se relationship of the eye-witnesses, as well likelihood of their being the chance witnesses; the materially improved testimonies of the eye-witnesses and motive having been discarded by the Trial Court, as well as by High Court, were the facts pressed into service by the counsel for the petitioner, which persuaded the Supreme Court to grant leave to appeal---All of the contentions made would be open to detailed scrutiny by the Supreme Court; and probability could not be ruled out that the prosecution case could fall through in the long run---No two opinions existed about the argument of Deputy Prosecutor General that mere grant of leave to appeal, did not necessarily mean that the petitioner had become entitled to suspension of his sentence as a matter of right, but it could not be brushed aside either that in a suitable case of alike nature; sentence of accused could be suspended, as envisaged by S.426(2-B), Cr.P.C.---Accused, after having been arrested on 18-1-2005 had been languishing in jail ever since---Petitioner, had served sentence of eleven years and four months, inclusive of remission, being in jail---Continued incarceration of the petitioner for an indefinite period of time, could not serve any useful purpose for prosecution's case---Allowing petition, sentence of the petitioner, was suspended pending decision of his appeal before the Supreme Court---Petitioner, would be released from prison subject to furnishing of bail bond.

Raja Nadeem Haider, advocate for the Petitioner.

Hamayoon Aslam, Deputy Prosecutor General Punjab for the State.

Complainant in person.

P LD 2016 Lahore 412

Before Shahid Karim, J

KITCHEN CUISINE (PVT) LTD.---Petitioner

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION and others---Respondents

Writ Petition No.7098 of 2016, decided on 8th April, 2016.

(a) Punjab Public Procurement Rules, 2004---

----R. 23---Contract for 'In-Flight Catering Services' awarded by the National Airline ("Airline")---Procurement process---Filing of tender schedule---Requirements---Objection with regard to the non-compliance of Punjab Public Procurement Rules, 2004 was on the basis of the tender schedule which formed part of the bidding documents and which ought to have been filled properly so as to enable the evaluation of the bid submitted by the respondent and the consequent compilation of the evaluation report---Final report prepared by the Airline had not properly filled in the tender schedule and the respondent had filled in the schedule properly. along with fulfilling other requirements of the tender---Objection was dismissed accordingly.

(b) Punjab Public Procurement Rules, 2004----

----Rr. 4, 26, 35 & 38---Contract for 'In-Flight Catering Services' awarded by the National Airline ("Airline")---Procurement process, validity of---Bid validity period was of fundamental importance---Prescribing a bid validity period lent fairness, transparency and certainty to the procurement process---Contract, in the present case, had not been awarded within the original period of bid validity, and no extension in the period of bid validity had been granted---Good faith must permeate the entire procurement procedure---Submission of the (bid) evaluation report and the award of contract, in the present case, was without lawful authority and ultra vires---Procurement process for the contract was declared to be null and void.

Petitioner-company challenged the procurement process whereby contract for provision of 'In-Flight Catering Services' had been awarded by the National Airline ("Airline") to the respondent-hotel.

Rule 26 of Punjab Public Procurement Rules, 2004 provided that a procuring agency would evaluate the bid validity period. Under Rule 26(3) of the Rules, the procuring agency would ordinarily be under obligation to process and evaluate the bid within the stipulated bid validity period that was ninety days in the present case; however, under exceptional circumstances and for reasons to be recorded in writing if an extension was considered necessary, all those who had submitted their bids would be asked to extend their respective bid validity period, and such extension would not be for more than the period equal to the period of the original bid validity. Given the tenor and context of section 26 (3) of the Rules, the terms of said Rule were mandatory in nature and the same must have been complied with in the present case. Good faith must have permeated the entire procurement procedure. Evaluation report, in the present case, had been submitted after five months of the submission of the bid, and the contract had been awarded to the respondent after one year of the tender for the bids. Bid validity period admittedly had not been extended by a speaking order nor the bidder had been asked to extend their respective bid validity period. Non-compliance of Rule 26(3) of the Rules rendered the subsequent acts of submission of the evaluation report and also the award of contract in the present case as ultra vires and void.

Prescribing a bid validity period was for a purpose, which was just and fair and lent fairness, transparency and certainty to the procurement process, as price quoted in a tender or bid might be subject to many differing variables and might be subject to entirely different price etc. after a certain period, duties and taxes might change, the freight charges might fluctuate and the goods to be supplied or civil works to be performed might get impacted by unforeseen factors.

Rule 26(2) of the Punjab Public Procurement Rules provided imposition of duty stating that bids would be valid for the period of time specified in the bidding document. Under the scheme of Rule 26(2) read with Rule 38 of the Rules, the award of the procurement contract also had to be made within the original or extended period of the bid validity. Bid validity period was, therefore, of fundamental importance and all acts must adhere to that period. Contract in the present case had not been awarded to the respondent within the original period of bid validity, and no extension in the period of bid validity had been granted. Any grant of contract in the period beyond the original period must be held to be unlawful and contrary to the Rules.

Judicial Review of Contracting Decisions [2007] P.L.444, 463 by S. Bailey; Mass Energy Ltd. v. Birmingham City Council [1994] Env. L.R.298 and Cookson & Clegg Ltd. v. Ministry of Defence [2005] EWCA Civ 811; R. (on the application of Molinaro) v. Kensington and Chelsea RLBC [2001] EWHC Admin 896; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport Karachi and others 1998 SCMR 2268; Alleged Corruption In Rental Power Plants etc.: In the matter of Human Rights 2012 SCMR 773 and Suo Motu Case No.5 PLD 2010 SC 73 rel.

High Court held the procurement process to be without lawful authority and ultra vires and declared the award of contract as null and void. Constitutional petition was allowed in circumstances.

(c) Punjab Public Procurement Rules, 2004----

----R. 48---Contract for 'In-Flight Catering Services' awarded by the National Airline ("Airline")---Procurement process, grievance against---Complaint filed by one of the bidders before the Grievance Committee---Notice and hearing by Grievance Committee. requirement of---Under R.48 of the Punjab Public Procurement Rules, 2004, the Grievance Committee would investigate and decide upon a complaint within fifteen days of the receipt of the complaint; whereas, in the present case, after the complaint had been properly lodged, the Committee had not informed about its decision till filing of present constitutional petition by the complainant (aggrieved bidder)---Grievance Committee had not engaged the complainant (aggrieved bidder) in the hearing of the complaint, which offended the principles of fairness and due process---Rederessal by the Grievance Committee ought to have been made by hearing the complainant after proper notice, so that the complainant could put forth its objection to the evaluation report ---Procurement process was held to be without lawful authority and ultra vires and award of contract was declared as null and void.

(d) Punjab Public Procurement Rules, 2004--

----R. 4---Constitution of Pakistan, Art. 199---Constitutional jurisdiction/judicial review of procurement decisions---Scope---Traditional approach of the courts to procurement decisions all within the sphere of private law and are therefore reviewable by the private law courts, and Judicial review proceedings can only be brought if it can be shown that the contracting decision in question has an additional public law element which justifies bringing the case within the sphere of public law---Judicial review should be generally available at least in cases where the contract is made under statutory powers due to the importance to the rule of law of ensuring public bodies are held accountable in respect of abuses of power---Only two ways exist in which a procurement decision could be brought within the realm of public law: either the decision was conducted using statutory power and could therefore be reviewed for compliance with that statute or an alternative undefined public law element needed to be proved---Public bodies are given their powers on the basis that they are to be exercised in the public interest and consequently, the public had an interest in ensuring that they were not abused-Courts review procurement decisions on all the normal judicial review grounds so long as use of statutory powers can be shown---Simple fact that a local authority was exercising statutory function should be sufficient to justify judicial review where there are allegations as to abuse of power---Contract carrying elements of public interest, concluded by functionaries of the State has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review.

Judicial Review of Contracting Decisions [2007] P.L.444, 463 by S. Bailey; Mass Energy Ltd. v. Birmingham City Council [1994] Env. L.R.298 and Cookson & Clegg Ltd. v. Ministry of Defence [2005] EWCA Civ 811; R. (on the application of Molinaro) v. Kensington and Chelsea RLBC [2001] EWHC Admin 896; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport Karachi and others 1998 SCMR 2268 and Alleged Corruption In Rental Power Plants etc.: In the matter of Human Rights 2012 SCMR 773 rel.

(e) Punjab Public Procurement Rules, 2004---

----R. 4----Procurement-Principles---Rule 4 of the Punjab Public Procurement Rule, 2004 is grund norm of said Rules---Fairness, transparency, value for money and the process being efficient and economical lie at the heart of the procurement process---None of the said factors can be nullified or brushed under the carpet to the detriment of the process and those who offer their tender for the procurements.

(f) Punjab Public Procurement Rules, 2004---

----Word 'shall' used in the entire Punjab Public Procurement Rules, 2004 denotes and accentuate the mandatory nature of the duty, which runs through the length and breadth of the Rules, as against permissive words which grant distinction.

Usman Ahmad Sahi for Petitioners.

Umer Sharif for Respondents Nos. 1 and 2.

Qamar Zaman Qureshi for Respondent No.3.

Date of hearing: 30th March, 2016.

P L D 2016 Lahore 425

Before Ibad-ur-Rehman Lodhi, J

Messrs DAWLANCE UNITED REFRIGERATION INDUSTRIES PRIVATE LTD. through Branch Coordinator---Appellant

Versus

MUHAMMAD ASIM CHAUDHRY---Respondent

F.A.O. No.120 of 2009, heard on 14th September, 2015.

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

----Ss. 28(4) & 2(c)(1)----Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976), S.5---Settlement of claims---Limitation, determination of---Term 'consumer', meaning of---Product forming part of wife's dowry---Husband debarred from filing claim---Respondent contended that Consumer court had wrongly granted claim, as same was beyond prescribed limitation---Validity---Under S.28(4) Punjab Consumer Protection Act, 2005, claim by consumer or Authority would be filed within thirty days of arising of cause of action---Consumer Court, however, had jurisdiction to allow claim to be filed after thirty days within such time as might be allowed if court was satisfied that there was sufficient cause for not filing claim within specified period---In the present case, neither the Consumer Court was asked to exercise such jurisdiction nor Consumer Court had permitted claimant to file delayed claim-Section 28(4) of Punjab Consumer Protection Act, 2005 provided that such extension would not be allowed beyond period of sixty days from date of expiry of warranty specified, and if no period was specified, then one year from date of purchase of product or providing of services would be considered as period of limitation for filing claim---Warranty card issued to complainant did not contain any date as to expiry of warranty-In absence of warranty period, maximum time. which could be granted to claimant by Consumer Court, even after giving an extension in filing complaint, must not exceed one year from date of purchase of product---Claimant had filed present claim after about one and half year from date of purchase---Claim was, therefore, barred by time---Wife of claimant, as matter of admitted fact, had originally purchased product (washing machine) for her dowry and she herself had used the same after her marriage---Husband of wife could not be treated as 'consumer' as defined under S.2(c)(1) of Punjab Consumer Protection Act, 2005---Under S.5 of Dowry and Bridal Gifts (Restriction) Act, 1976, bride was to be considered as absolute owner of items of dowry and other bridal gifts---Impugned order suffered from illegalities, and same was, therefore, not sustainable---Consumer Court had misapplied the law---High Court, setting aside impugned order, dismissed the claim---Appeal was allowed in circumstances.

(b) Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976)----

----S. 5---Vesting of dowry etc. in the bride---Under S.5 of Dowry and Bridal Gifts (Restriction) Act, 1976, bride is to be considered as absolute owner of items of dowry and other bridal gifts.

Kashif Ali Chaudhry for Appellant.

Rana Mohammad Anwar for Respondent.

Date of hearing: 14th September, 2015.

P L D 2016 Lahore 428

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD RAFIQUE---Petitioner

Versus

NASIR MEHMOOD---Respondent

Civil Revision No.1210 of 2011, decided on 12th March, 2015.

(a) Oaths Act (X of 1873)----

----Ss. 8, 9, 10 & 11----Qanun-e-Shahadat (10 of 1984), Art. 163---Administration of oath---Procedure---Decision on oath---Effect---Principle of approbate and reprobate---Applicability---Plaintiff filed suit for declaration against his son/defendant, which Trial Court dismissed on basis of special oath on Holy Quran administered to defendant as per offer made by plaintiff---Appellate court affirmed judgment and decree of Trial Court---Plaintiff contended that he could not understand the consequences of his offer made to defendant for administration of oath---Validity---Plaintiff had, out of his free will and consent, made the offer for decision of suit on special oath administered to defendant---Special oath, administered under Oaths Act, 1873, was different from the one made on oath provided by Art.163 of Qanun-e-Shahadat, 1984---Plaintiff had not made the offer for administration of special oath as provided under Art.163 of Qanun-e-Shahadat, 1984, rather oath had been administered in the light of his mutual agreement with defendant---Mutual consent was basic theme as provided under Oaths Act, 1873---Court had administered special oath to defendant after he had accepted the offer made by plaintiff---Plaintiff being bound by his offer could not pray for reopening the matter---Plaintiff could not retract from his offer, which had already been acted upon, on the ground that he could not understand consequences thereof-Offer made by plaintiff could not be considered as having been made without his free will and volition, as Trial Court had recorded separate statements of parties for administration of special oath, and said statements were duly signed by parties---Sanctity was attached to judicial proceedings, and it could not be presumed that Trial Court had acted in hasty manner while deciding the suit---Plaintiff, after accomplishment of process in response to the offer made by him, could not resile from his offer---Plaintiff was not obliged to challenge validity of decision of the suit which had been decided on basis of special oath administered by defendant---Decision on basis of oath had more fruits as compared to any other form of decision if oath had been administered in accordance with law---Once offer made by plaintiff had been accepted and acted upon by defendant, he could not wriggle out from the output thereof---Such offer and acceptance would be an agreement of binding nature---Principle of approbate and reprobate was applicable with full force to the present case---No material illegality or irregularity or jurisdictional defect was committed by courts below while passing impugned judgments and decrees to warrant interference by revisional court---Revision petition was dismissed in limine being devoid of any merit.

(b) Oaths Act (X of 1873)---

----Ss. 8, 9, 10 & 11----Decision on basis of oath---Validity---Decision on basis of oath has more fruits as compared to any other form of decision, if oath has been administered in accordance with law---Once offer made by one party has been accepted by the other party and the same is acted upon, the parties cannot wriggle out from output thereof, as such offer and acceptance will be an agreement of binding nature.

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

----Art. 163----Oaths Act (X of 1873), Ss. 8, 9, 10 & 11---Acceptance or denial of claim on oath---Administration of oath---Procedure---Decision on Special oath administered under Oaths Act, 1873 is different from the one made on oath provided by Art.163 of Qanun-e-Shahadat, 1984, under which initiative is to be taken by plaintiff whose first stance is to take oath in support of his lis, whereafter, on his request, court has to call upon the other side to refute said statement of plaintiff on oath---Court is bound to pass any order in the light of said statements of parties---Provision of Art.163 of Qanun-e Shahadat, 1984 and that of Ss. 8, 9, 10 & 11 of Oaths Act, 1873 are opposite to each other.

(d) Judicial proceedings---

----Sanctity---Sanctity was attached to judicial proceedings.

Ch. Ahmad Saifullah Khatana for Petitioner.

P L D 2016 Lahore 433

Before Syed Mansoor Ali Shah, J

SALIM JAVED BAIG and others---Petitioners

Versus

FEDERAL OMBUDSMAN and others---Respondents

Writ Petition No.33483 of 2015, heard on 5th April, 2016.

(a) Protection Against Harassment of Women at the Workplace Act (IV of 2010)--

----Ss. 1(1), 10, 7 & 13 [as amended by Ss.3 & 9 of Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012 (III of 2013)]---Constitution (Eighteenth Amendment) Act (X of 2010), Preamble, Ss.96 & 101(3)---Constitution of Pakistan, Arts.270-AA(6), 97, 142, 137 & 1(2)---Scope, nature and effect of Art.270-AA(6) of the Constitution on Federal Laws with respect to any of the matters enumerated in the Concurrent Legislative List, after omission of the said list by the Constitution (Eighteenth Amendment) Act, 2010---Territorial jurisdiction of the Federal Ombudsman for Protection against Harassment of Women at the Workplace---Petitioners impugned order of Federal Ombudsman for Protection against Harassment of Women at the Workplace ("Ombudsman"), whereby petitioners' application against assumption of jurisdiction by the Ombudsman for entertaining complaint against the petitioners, was rejected---Contention of the petitioners was, inter alia, that per Art.270-AA(6) of the Constitution, notwithstanding the omission of the Concurrent Legislative List, laws in existence prior to the Eighteenth Constitutional Amendment continued to be in force unless altered, repealed or amended by the competent legislature and in Punjab; through enactment of the Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012, the (federal) Protection Against Harassment of Women at the Workplace Act, 2010 stood altered/amended into a Provincial Act and thus, under the Constitutional scheme, the (federal) Protection Against Harassment of Women at the Workplace Act, 2010 did not remain in force and stood succeeded by the Provincial enactment---Validity---Under Art.270-AA(6) of the Constitution, the (federal) Protection Against Harassment of Women at the Workplace Act, 2010 remained in force as a Provincial Act; irrespective of the omission of the Concurrent Legislative List by the Constitution (Eighteenth Amendment) Act, 2010 until such time that the said Federal Act was altered, repealed or amended by the competent authority (legislature) and such alteration or amendment in the law by the competent legislature did not affect its continuity and said law continued to be in force, albeit, as a Provincial law, not because of the alteration or amendment but because of the Constitutional declaration under the Eighteenth Constitutional Amendment and only on repeal, said law came to an end---Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012 amended and altered the (federal) Protection Against Harassment of Women at the Workplace Act , 2010 while retaining the same title; and was the Constitutional declaration of devolution, the underlying Constitutional theme of federalism and provincial autonomy under the Eighteenth Constitutional Amendment which metamorphosed the said Federal Act into a Provincial Act---Alteration and amendment by the competent Provincial legislature was a legislative exercise to align the law according to the wishes of the Provincial Legislature and had no bearing on the character of the law which already stood transformed into a Provincial law by virtue of the Constitutional declaration through the promulgation of the Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012---High Court observed that if under Art.270-AA(6) of the Constitution, a federal law can only be subjected to alteration, amendment and repeal by the Provincial legislature, and then the same meant that said federal law had lost its federal character and stood transformed into a Provincial law---In such a case, if the appropriate legislature did not carry out any amendment or alteration to the said federal law, it still automatically stood converted into a Provincial law and remained in force as such---With the omission of the Concurrent Legislative List of the Constitution, the Federal Legislature loses its legislative fiat and command over the areas in the Concurrent Legislative List to the Provincial legislature and as a consequence the federal law was deprived of its federal character---With the legislative shift from federal to provincial, the executive authority under Art.97 of the Constitution also got realigned and changed hands from federal executive to the provincial executive---Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012, therefore, Constitutionally trimmed the (federal) Protection Against Harassment of Women at the Workplace Act, 2010 and restricted its jurisdiction to territories of Pakistan that fell outside the Provinces in terms of Art.1(2) of the Constitution---Section 1(2) of the (federal) Protection Against Harassment of Women at the Workplace Act, 2010 stated that territorial jurisdiction of the Ombudsman under the same, extended to the whole of Pakistan and such geographical extent had to be pruned according to the Constitutional mandate under the Eighteenth Constitutional Amendment and for said purpose, the best interpretational tool to apply was that of reading down S.1(2) of the Protection Against Harassment of Women at the Workplace Act, 2010 in order to align the same with the constitutional scheme---High Court held that S.1(2) of the (federal) Protection Against Harassment of Women at the Workplace Act, 2010 had to be read down thereby limiting the extent of the Federal Act to areas which do not form part of any Province---Complaint against petitioners, in the present case, was based on a cause of action arising in Lahore (Punjab) and the alleged accused also resided there, therefore, the jurisdiction to entertain and hear said complaint was with the Provincial Ombudsperson under the Provincial Act and the Federal Ombudsman has no jurisdiction to entertain the said complaint---High Court further held that impugned order passed by the Federal Ombudsman along with all the prior orders assuming jurisdiction in the matter were therefore unconstitutional, illegal and without lawful authority and, were accordingly set aside with the observation that the complaint shall be deemed to have been returned to complainant who may file the same before the Provincial Ombudsperson, if so advised---Constitutional petition was allowed, accordingly.

A.F. Ferguson & Co. v. The Sindh Labour Court and another PLD 1985 SC 429; Messrs Simma Fabrics Ltd, Gujranwala v. Authority under the Payment of Wages Act and 3 others 1981 PLC 498; V. Sasidharan v. (M/s) Peter and Karunakar and others 1985 PSC 777; Dr.Shagufta Hussain and another v. Water and Power Development Authority through Chairman and 4 others 2004 CLC 293 and State of Rajasthan v. Ganeshi Lal AIR 2008 SC 690 ref.

Messrs Chenone Stores Ltd. through Executive Director (Finance Accounts) v. Federal Board of Revenue through Chairman and 2 others 2012 PTD 1815; Nadeem Asghar Nadeem and others v. Province of the Punjab and others 2015 CLC 1509 and Syed Imran Ali Shah v. Government of Pakistan and 2 others 2013 PLC 143 rel.

(b) Protection Against Harassment of Women at the Workplace Act (IV of 2010)--

----S. 1(2)---Constitution of Pakistan, Arts. 270-AA(6),1(2) & 142(d)---Constitution (Eighteenth Amendment) Act (X of 2010), Preamble, Ss.96,101(3) & 75---Territorial jurisdiction of the Federal Ombudsman for Protection Against Harassment of Women at the Workplace after the Eighteenth Constitutional Amendment---Scope---Section 1(2) of the Protection Against Harassment of Women at the Workplace Act, 2010 stated that the territorial jurisdiction of the Federal Ombudsman for Protection Against Harassment of Women at the Workplace Act, 2010 extended to the whole of Pakistan and such geographical extent had to be pruned according to the Constitutional mandate under the Eighteenth Constitutional Amendment and for said purpose, the best interpretational tool to apply was that of reading down S.1(2) of the Protection Against Harassment of Women at the Workplace Act, 2010 in order to align the same with the Constitutional scheme---High Court held that S.1(2) of the Protection Against Harassment of Women at the Workplace Act, 2010 had to be read down, thereby limiting the extent of S.1(2) of the Protection Against Harassment of Women at the Workplace Act, 2010 to areas which did not form part of any Province and continuance of the said Act in Federal Areas found support under Art.142(d) of the Constitution which provided that the Federal Legislature had the exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as were not included in any Province.

Messrs Chenone Stores Ltd. through Executive Director (Finance Accounts) v. Federal Board of Revenue through Chairman and 2 others 2012 PTD 1815; Nadeem Asghar Nadeem and others v. Province of the Punjab and others 2015 CLC 1509 and Syed Imran Ali Shah v. Government of Pakistan and 2 others 2013 PLC 143 rel.

(c) Constitution of Pakistan--

----Arts. 270-AA(6), 97, 142 & 137---Constitution (Eighteenth Amendment) Act (X of 2010), Preamble, S. 96,101(3) & 75---Federal and Provincial laws---Extent of executive authority of Province(s) and Federation---Effect of Art.270-AA(6) Constitution on Federal Laws with respect to any of the matters enumerated in the Concurrent Legislative List, after omission of the said list by the Constitution (Eighteenth Amendment) Act, 2010---Scope---Under Art.270-AA(6) of the Constitution, an applicable federal law remained in force as a Provincial Act; irrespective of the omission of the Concurrent Legislative List by the Constitution (Eighteenth Amendment) Act, 2010 until such time that the said federal law was altered, repealed or amended by the competent authority (legislature) and such alteration or amendment in the law by the competent legislature did not affect its continuity and said law continued to be in force, albeit, as a provincial law, not because of alteration or amendment but due to the Constitutional declaration under the Eighteenth Constitutional Amendment and only on repeal, said law came to an end---Federal law, falling under purview of Art.270-AA(6) of the Constitution, could only be subjected to alteration, amendment and repeal by the Provincial Legislature, and the same meant that the said federal law had lost its federal character and stood transformed into a Provincial law---If the appropriate legislature did not carry out any amendment or alteration in the said federal law, it still automatically stood converted into Provincial law and remained in force as such---With the omission of the Concurrent Legislative List, the Federal Legislature loses its legislative fiat and command over the areas in the Concurrent Legislative List to the Provincial legislature and as a consequence the said federal law is deprived of its federal character---Such legislative shift from Federal to Provincial, meant that the executive authority under Arts. 97 & 137 of the Constitution also got realigned and changed hands from federal executive to the provincial executive.

(d) Constitution of Pakistan--

----Art. 199---Federal Ombudsman Institutional Reforms Act (XIV of 2013), Ss.18 & 21---Protection Against Harassment of Women at the Workplace Act (IV of 2010) Ss.10 & 7---Constitutional jurisdiction of High Court in respect of Federal Ombudsmen---Jurisdiction of Federal Ombudsman for Protection Against Harassment of Women at the Workplace---Bar of jurisdiction under S.18 of the Federal Ombudsman Institutional Reforms Act, 2013---Nature and scope of such bar---Contention of the Federal Ombudsman for Protection against Harassment of Women at the Workplace, was that a specific bar existed by virtue of S.18 of the Federal Ombudsman Institutional Reforms Act, 2013 whereby no court or authority shall have jurisdiction to entertain a matter which fell within the jurisdiction of an Ombudsman nor any court or authority shall assume jurisdiction in respect of any matter pending with or decided by an Ombudsman---Held, that S.18 of the Federal Ombudsman Institutional Reforms Act, 2013 was a sub-Constitutional legislation and could not control or regulate the powers of the Constitutional court under the Constitution and therefore reliance on S.18 of the Federal Ombudsman Institutional Reforms Act, 2013 was hopelessly misconceived.

Arshad Mehmood v. Commissioner and others PLD 2014 Lah. 221 and Election Commission of Pakistan through Secretary v. Province of Punjab through Chief Secretary and others PLD 2014 SC 463 rel.

(e) Federal Ombudsman Institutional Reforms Act (XIV of 2013)--

----S. 5---Constitution of Pakistan, Art.209---Federal Ombudsman for Protection Against Harrassment of Women at the Workplace repeatedly exhibiting disrespect and defiance to the orders of the High Court---High Court directed that copy of judgment on the present issue be placed before the Supreme Judicial Council, to be treated as a Reference against the Federal Ombudsman for Protection Against Harassment of Women at the Workplace for her removal in terms of S.5 of Federal Ombudsman Institutional Reforms Act, 2013---Constitutional petition was allowed accordingly.

Petitioner No.1 in person along with Mian Muhammad Hussain Chotya, M. Nadeem Nasir and Mouzzam Ali Butt for Petitioners.

Nasar Ahmad, Deputy Attorney General for Pakistan.

Anwaar Hussain, Ahmad Hassan Khan, Assistant Advocates-General, Punjab assisted By Miss Rutaaba Gul and Muhammad Shahid Piracha and Muhammad Chand Khan for Respondent No.2.

Date of hearing: 5th April, 2016.

P L D 2016 Lahore 456

Before Amin-ud-Din Khan and M.Sohail Iqbal Bhatti, JJ

NATIONAL BANK OF PAKISTAN through President and 2 others---Appellants

Versus

MUHAMMAD HALEEM KHAN CHOHAN---Respondent

R.F.A. No.104 of 1993, heard on 28th November, 2014.

(a) Malicious prosecution---

----Suit for damages---Death of parties during pendency of appeal---Effect---Abatement---Scope---Maxim "actio personalis moritur cum persona"---Personal action connected with the individuality of a person did not survive him---If suit of a plaintiff was dismissed by the Trial Court and during pendency of appeal in the case of death of either party, appeal abated---If decree had been passed in favour of plaintiff, in case of death of either party, appeal filed by the defendant would not abate and the legal representatives of the parties would step into the shoes of appellant/respondent---If suit had been partially decreed and both parties had preferred appeals, then in case of death of either party, the appeal for enhancement of damages would abate but appeal of defendant for setting aside the partial decree would not abate---Death would extinguish the liability in tort---Where appeal was filed by the tortfeasor and cross objections were filed by the plaintiff and appellant had died, appeal did not abate but cross objections would abate and if plaintiff had appealed, the same would have abated---Cross objection had been abated and same could not proceed and stand dismissed---Appeal was dismissed, in circumstances.

Mir Shakeel-ur-Rehman and others v. Yahya Bakhtiar and others PLD 2010 SC 612; Government of Punjab through Secretary, Ministry of Agriculture Lahore and another v. Mst. Kamina and others 1990 CLC 404; S. Muniyappa (deceased by l.Rs) v. H.L. Narasimhaiah and others AIR 1984 Karnataka 63; Paramen v. Sundarraja 1902 ILR 26 Mad. 499; Gopal v. Ramachandra 1902 ILR 26 Bom.597 and Haridas v. Jaganath Das 1940 ILR Nag. 63 rel.

(b) Tort---

----Death would extinguish the liability in tort---Abatement---Scope---Where appeal was filed by the tortfeasor and cross-objections were filed by the plaintiff and appellant had died, appeal did not abate but cross-objections would abate and if plaintiff had appealed, the same would also abate.

Mir Shakeel-ur-Rehman and others v. Yahya Bakhtiar and others PLD 2010 SC 612 and Government of Punjab through Secretary, Ministry of Agriculture Lahore and another v. Mst. Kamina and others 1990 CLC 404 ref.

(c) Maxim:--

----"Actio personalis moritur cum persona"---Meaning---"Personal action connected with the individuality of a person did not survive him".

Noor Muhammad Khan Chandia for Appellants.

Inayat Ullah Chaudhry for Respondent.

Date of hearing: 28th November, 2014.

P L D 2016 Lahore 460

Before Ch. Muhammad lqbal and Shahid Bilal Hassan, JJ

AMINA WELFARE TRUST (REGD.) through Executor Trustee---Appellant

Versus

ASHFAQ AHMAD QURESHI and others---Respondents

R.F.A. No.1118 of 2010, decided on 10th November, 2015.

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

----S. 92 & O. VII, R. 11---Trust property---Filing of suit without prior permission of Advocate-General---Conditions---Plaint, rejection of--­Scope---Provision of S.92, C. P. C. was with regard to the internal management/affairs/disputes of the Trust as well as breach of the trust---Suit could only be filed with the consent of Advocate -General in such eventuality---Object of S. 92, C. P. C was to regulate the institution of suit for the relief enumerated in the said provision so that the trust and the rights of public in such Trust were safeguarded-- If reliefs mentioned in the said provision were not claimed then suit could be filed without the consent of Advocate-General-Present suit was filed by the Trust itself in a private capacity against the defendant who allegedly had occupied the suit property of the Trust and not for the reliefs mentioned in S.92, C.P. C---Plaintiff was not bound to obtain prior consent of Advocate-General for filing the present suit--Trial Court had illegally and erroneously declared that the suit property was not the property of the Trust---Impugned order passed by the Trial Court was set aside and application for rejection of plaint was dismissed--- Trial . Court was directed to decide the matter afresh on merits and in accordance with law---Appeal was allowed in circumstance

Abdul Rahim and others v. Syed Abu Mahomed Barkat All Shah and others AIR 1928 PC 16 and Bachint Singh and another v. Ganpat Rai and others AIR 1937 Lah. 660 ref

Faqir Shah and others v. Mehtab Shah Pir Budhari Masjid Committee and others PLD 1989 SC 283; Miskin v. Additional District Judge, Mansehra and 32 others 2003 SCMR 121; Khadim Hussain and 3 others v. Ata Muhammad and 7 others PLD 1967 Lah. 915; Syed Arif Ali v. Syed Firdous Ali and others 2002 MLD 908; Jamia Masjid Muhammadia and Madrassa Faizia v. Shamsher Khan and others 2003 CLC 682 Kar. and Ghulam Yahya through Attorney and Legal Representative v. Ali Muhammad Jamal Maternity Homes PLD 2005 Karachi 240 rel.

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

---S. 92---Public charities---Permission of Advocate-General to file suit---Conditions---For obtaining consent of Advocate-General for filing suit under S.92, C.P.C. conditions were that there must exist a trust for a public purpose of a charitable or religious nature; plaint must either allege that there was a breach of Trust or that the directions of the court were necessary for the administration of the Trust; suit must be a representative one on behalf of the public and not for the assertion of the personal rights of a party and relief claimed must be one of the reliefs enumerated in S. 92, C. P. C.

(c) Punjab Civil Courts Ordinance (II of 1962)--

---S. 18---Pecuniary jurisdiction of District Judge---Proceedings before wrong forum---Effect---District Judge decided the revision wherein value of suit for the purpose of court fee and jurisdiction was Rs.1,30,00,000/---Validity---District Judge had pecuniary jurisdiction to hear the appeal against the Order or decree up to the value of Rs.25, 00, 000/---District Judge had no jurisdiction to decide the revision petition---Judgment passed by the District Judge was coram-non-judice.

Muhammad Ayub and 4 others v.Dr. Obaid Ullah and 6 others 1999 SCMR 394 rel.

Zahid Aziz Bhutta for Appellant.

Syed Kazim Bukhari and Muhammad Zahid Sadiq for Respondent No. 1.

Date of hearing: 27th October, 2015.

P L D 2016 Lahore 467

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

NAVEED ASGHAR and 2 others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.16-J of 2011, Criminal Revision No.31 of 2011 and Murder Reference No.25 of 2011, heard on 12th February, 2016.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 392--- Qanun-e-Shahadat (10 of 1984), Arts. 24(2) & 46-A---Qatl-i-amd and dacoity---Appreciation of evidence---Multiple murders---Relevant facts---Recovery of articles---Cellphone call data---Investigating officer, during spot inspection, secured an empty box of a cellular phone handset with International Manufacturer Equipment Identification Number (IMEI) printed on it---Such innocuous piece of cardboard turned out as a formidable piece of evidence when one accused at the time of his arrest led to the recovery of the same handset with the same IMEI number---According to cellphone call data, recovered handset was operated with two SIMs secured at time of arrest---Such piece of evidence generated through an automated system was not amenable to human interference, as such constituted relevant facts within the contemplation of Art. 46-A of Qanun-e-Shahadat, 1984---Reference to IMEI number was antedated in point of time to arrest of accused and recovery of handset as well as SIMs were conclusively established by a computer generated document---Such piece of evidence was inexorably pointed on accused as it clinched his presence at the venue with co-accused---Recovery of various articles from accused persons in pursuance of their disclosures, cellphone data, blood stained weapons, relationship of co-accused with the family constituted formidable evidence within the contemplation of illustration (b) of Art.24(2) of Qanun-e-Shahadat, 1984---Prosecution successfully established its case beyond a shadow of doubt with the chain of circumstances constituting an irresistible nexus inter-se the accused persons and deceased---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

Raja Ghaneem Aaber Khan and Raja Amanat Ali Khan for Appellants.

Malik Muhammad Kabir for the Complainant.

Muhammad Waqas Anwar, Deputy Prosecutor General with Syed Zafar S.I. for the State.

Date of hearing: 12th February, 2016.

P L D 2016 Lahore 474

Before Atir Mahmood and Mushtaq Ahmad Tarar, JJ

Dr. HAMMAD RAZA KHAN---Appellant

Versus

Syed SHAH HUSSAIN and 2 others---Respondents

R.F.A. No.324 of 2010, heard on 11th November, 2015.

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

----Ss. 12, 15 & 17---Civil Procedure Code (V of 1908), O.VII, R.11---Part performance of agreement to sell---Plaint, rejection of---Word "party" contained in S.15 of Specific Relief Act, 1877---Scope---Court could issue decree for part performance of agreement to sell---Plaintiff must fulfil his obligations first and then ask for compliance of the agreement by the other side---If plaintiff had failed to perform in full or the part left unperformed on his part was larger than he had performed or wanted to perform then he was not entitled to the decree---Only the plaintiff could be held entitled for decree in shape of performance of agreement or any compensation in lieu thereof---Mere denial by the defendant to an agreement allegedly executed by him did not entitle him to file an application for rejection of plaint---Defendant could not take plea that the portion which was left unperformed on his part was larger than the left one---Plaint could be rejected if it did not disclose any cause of action against the defendant(s)---Pleadings contained in the plaint and agreement to sell or other documents appended therewith did disclose cause of action against the defendant who was signatory of alleged agreement to sell---Initial burden to prove case was on the plaintiff for which he should have been given opportunity---Trial Court should have proceeded to record evidence of the parties and then decide the suit accordingly rather than rejecting the plaint---Impugned order passed by the Trial Court being against law was not sustainable---Impugned order was set aside and case was remanded to the Trial Court with direction to record evidence of the parties and then decide the matter in accordance with law---Appeal was allowed in circumstances.

Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 rel.

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

----S. 15---Part performance of contract---Word "party" contained in S.15 of Specific Relief Act, 1877---Scope---Word "party" mentioned in S.15 of Specific Relief Act, 1877 would mean the party which approached the court for decree i.e. the plaintiff but it did not mean the defendant.

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

----O. VII, R. 11---Plaint, rejection of---Scope---Provisions of O. VII, R.11, C. P. C would pertain to the suits and plaints.

(d) Pleadings---

----Plaint and written statement were mere pleadings and same could not be termed as proof of anything contained therein.

Javaid Ahmad Khan for Appellant.

Respondents proceeded against ex parte vide order dated 6-10-2015.

Date of hearing: 11th November, 2015.

P L D 2016 Lahore 478

Before Amin-ud-Din Khan, J

GHULAM FARID---Petitioner

Versus

NASEER AHMAD and others---Respondents

Civil Revision No.492-D of 2004, heard on 21st October, 2015.

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

----Ss. 12 & 42---Suit for declaration on the basis of agreement---Scope---If there was an agreement between the parties then suit for specific performance was competent and not suit for declaration.

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

----S. 42---Suit for declaration of cancellation of registered power of attorney---Scope---Third party had no right to file suit for declaration that registered power of attorney by one defendant in favour of other defendant be cancelled.

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

----S. 42---Suit for declaration---Scope---Decree in a suit for declaration could declare a pre-existing right but could not create a new right.

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

----S. 115---Revisional jurisdiction, invoking of---Requirements---Petitioner was required to show that the proceedings recorded by the courts below were result of mis-reading and non-reading of evidence or some procedural defect to invoke revisional jurisdiction under S.115, C.P.C.

Syed Sami Azhar Gardezi for Petitinoer.

Tahir Mehmood and Malik Muhammad Latif Khokhar for Respondents.

Date of hearing: 21st October, 2015.

P L D 2016 Lahore 482

Before Qazi Muhammad Amin Ahmed, J

AMIR SHAHZAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.256 of 2015, decided on 25th March, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 304, 308 & 338-F---Criminal Procedure Code (V of 1860), Ss.200, 202, 204, 340 & 510---Qanune-e-Shahadat (10 of 1984), Arts.39, 73, 74, 78, 79 & 140---Qatl-i-amd, qatl-i-amd liable to qisas, common intention, abetment---Private complaint---Request for copy of first version of accused, denial of---One of accused persons, opted to be his own witness in disproof of charge against him---When said accused entered witness-box as defence witness, he was asked about his first version made by him before Investigating Officer under S.161, Cr.P.C.---Request of the petitioner/complainant to provide copy of first version of accused to confront accused, was declined by the Trial Court---Validity---Argument of the petitioner, that accused after entering the witness-box had exposed himself to the possibility of infliction of qisas on him, was misconceived; for the reason that general principle of jurisprudence, could not be made applicable to an adjudicatory process, without express legislative intent; and approval through a statutory mechanism, which in respect of punishment of qisas was already in place---Qisas, on the charge of homicide, could only be exacted from an offender, either on the basis of confession made by him, or by meeting the standard of proof required by law within the contemplation of S.304, P.P.C.---Exercise of discretion by an accused to become his own witness in disproof of charge against him, or against any other person charged or tried together, would not in any way expose him to the rigors of qisas; if standard of proof, otherwise, was not available---Failure of accused in the witness-box to disprove the charge against him, or dislodge the prosecution case, would not entail additional adverse consequences; as it would not absolve the prosecution to prove its case on its own---Argument that once an accused had opted to enter the witness-box, he was stripped off all the immunities and protection, available to him; and he was liable to be treated at par with any other witness, was also besides the mark---Even a prosecution witness deposing in deviation from his statement under S.161, Cr.P.C., could not be confronted with which was purportedly attributed to him during course of investigation---Prosecution, could not be allowed to pin down an accused to (a so-called) first version, which by all means, was a statement while being in Police custody, hit by Art.39 of the Qanun-e-Shahadat, 1984---Primary responsibility of the prosecution alone to bring home charge against accused beyond a shadow of doubt---Trial Court, had rightly declined to supply the copy of first version of accused, purportedly recorded by the Investigating Officer during course of investigation.

Sarfraz Talib v. Abdul Waheed 2001 PCr.LJ 698 and Mst.Ameer Khatoon v. Faiz Ahmad and others PLD 1991 SC 787 ref.

Muhammad Sarfraz v. The State PLD 2013 SC 386 and Sandeep Raj Singh v. State of M.P. (Madhya Pradesh) 1997 (1) CCR 247 rel.

Naveed Inayat Malik for Petitioner.

Rana Muhammad Shafiq, DPG for the State with Muhammad Afzal, SI.

Siraj-ul-Islam Khan, Additional Advocate General Punjab.

Muhammad Afzaal Siddiqui for Respondents.

P L D 2016 Lahore 487

Before Amin-ud-Din Khan, J

MUHAMMAD ASHRAF and another---Petitioners

Versus

JAFAR and 4 others---Respondents

Civil Revision No.126 of 2008, heard on 19th November, 2015.

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

----S. 12---Limitation Act (IX of 1908), Art. 113 & S. 14---Suit for specific performance of agreement to sell---Limitation---Arbitration proceedings---Scope---Limitation for filing a suit for specific performance was three years from the date fixed for performance of the same---Present suit was barred by limitation---Benefit of S.14, Limitation Act 1908 could be sought if proceedings were initiated in wrong court in good faith and after coming to know that proceedings had been started in wrong court had come to the court where actually the suit was to be filed---Arbitration proceedings and present suit were independent proceedings and were on the basis of separate cause of action---Plaintiff could not claim the benefit of S. 14 of Limitation Act, 1908---Appellate Court had rightly dismissed the suit---No procedural defect had been pointed out in the judgment passed by the Appellate Court---Revision was dismissed in circumstances.

Muhammad Khan v. Salehun alias Saleh Muhammad 2010 SCMR 36; Pakistan Industrial and Commercial Leasing Ltd through Authorized Manager Recovery v. Haq Knitwear Pvt. Ltd through Chief Executive and 2 others PLD 2009 Lah. 52; Ahmad Khan v. Kausar Parveen and another 2009 CLC 759; Zulqarnain and 7 others v. Custodian Evacuee Property, AJ&K Muzaffarahad and 73 others 2008 CLC 412; Messers Imperial Builders through Managing Partner and another v. Lines Pvt Limited through Chief Executive and 3 others PLD 2006 Kar. 593 and Dr. Syed Sibtain Raza Naqvi v. Hydrocarbon Development and others 2012 SCMR 377 ref.

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

----Art. 113---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Limitation---Limitation for filing a suit for specific performance was three years from the date fixed for performance of the same.

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

-Art. 14---Exclusion of time of bona fide proceedings in court without jurisdiction---Seeking benefit of S. 14, Limitation Act, 1908---Requirements---Benefit of S. 14, Limitation Act 1908 could be sought if proceedings were initiated in wrong court in good faith and after coming to know that proceedings had started in wrong court had come to the court where actually the suit was to be filed.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court could be exercised if judgment passed by the court below was contrary to law or there was some procedural defect.

Mian Dilawar Mahmood for Petitioners.

Syed Muhammad Javed Rizvi for Respondents.

Date of hearing: 19th November, 2015.

P L D 2016 Lahore 491

Before Atir Mahmood, J

KARAMAT HUSSAIN and another---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Provincial Election Commissioner (Punjab) and 7 others---Respondents

Writ Petition No.17949 of 2015, heard on 10th December, 2015.

(a) Punjab Local Government (Conduct of Elections) Rules, 2013--

----R. 36(2)----Election for local government---Re-counting/verification of rejected votes by the Returning Officer---Candidate submitted application for re-counting/verification of rejected votes which was accepted by the Returning Officer---Validity---Returning Officer had no power to review/recall his own order whereby he had accepted application for re-counting/examination of rejected votes---Returning Officer should scrutinize the rejected votes if there was any objection by either party upon counting of rejected votes and if he found that such votes should not have been rejected then he should count them in favour of the candidate in whose favour those had been polled---If there was any illegality or error on the part of public servant with the affairs of the State then writ of mandamus could be issued to the concerned officer---Returning Officer was directed to re-count/examine the rejected votes and then declare the consolidated results---Consolidated results were set aside---Constitutional petition was disposed of in circumstances.

Muhammad Anwar v. The Deputy Commissioner Delimitation Officer, Faisalabad and 2 othes 1985 MLD 1154 and Muhammad Aslam Abro v. Sardar Muhammad Muqeem Khosa and others 2013 SCMR 1676 rel.

(b) Constitution of Pakistan--

----Art. 199---Constitutional jurisdiction of High Court---Scope---Election dispute---Appointment of Election Tribunal---Mere appointment of Election Tribunal would neither curtail nor bar the jurisdiction of High Court when matter was already under adjudication before it.

(c) Constitution of Pakistan---

----Art. 199---Writ of mandamus, issuance of---Scope---If there was any illegality or error on the part of public servant with the affairs of the State, writ of mandamus could be issued to the concerned officer.

Muhammad Aslam Abro v. Sardar Muhammad Muqeem Khosa and others 2013 SCMR 1676 rel.

Muhammad Usman Sharif Khosa for Petitioners.

Muhammad Masood Bilal for Respondents Nos. 4 and 5.

Muhammad Naeem Khan, Legal Adviser and Muhammad Younas, Returning Officer, U.C. No.25, Kabirwala for Election Commission.

Date of hearing: 10th December, 2015.

P L D 2016 Lahore 495

Before Erum Sajad Gull, J

MUHAMMAD SHAH---Petitioner

Versus

MUHAMMAD ZAIGHAM and 5 others---Respondents

Writ Petition No.10544 of 2012, decided on 19th October, 2015.

Criminal Procedure Code (V of 1908)---

----S. 173---Police Rules (1934), R.24.7---Penal Code (XLV of 1860), Ss.395 & 398---Dacoity; attempt to commit robbery or dacoity when armed with deadly weapon---Report of police officer---Cancellation report accepted by Magistrate---Legality---Cancellation of cases/FIR---Procedure and jurisdiction of competent court---No provision existed in Cr.P.C. for cancellation of FIR; rather, the same was provided in R.24.7 of Police Rules, 1934, according to which Magistrate was empowered to cancel the FIR if he agreed with cancellation report forwarded by the Investigating Officer---Magistrate, while passing order for cancellation of FIR, was not acting in his judicial capacity, and the order passed by him was administrative order---However, the Magistrate was required to judicially examine the report under S.173, Cr.P.C---Magistrate was not competent to pass the impugned order, as offences mentioned in the FIR were triable by the Court of Session--- Magistrate, after applying his mind to the cancellation report placed before him, should have recorded his detailed opinion giving reasons as to why he had agreed or disagreed with the cancellation report and then forwarded the same to the court of competent jurisdiction---Court of competent jurisdiction was to decide whether cognizance was to be taken or not---Order of Magistrate could only be considered as a recommendation report to the court of competent jurisdiction---High Court, setting aside impugned order, remanded the case to the Magistrate for passing speaking order, record reasons for agreeing with the cancellation report and then forward his recommendation to the court of competent jurisdiction---Constitutional petition was accepted in circumstances.

Bahadur and another v. The State and another PLD 1985 SC 62 and Rasool Bux Shaikh v. The State and another 2010 PCr.LJ 733 rel.

Saif-ul-Malook for Petitioner.

Naveed Saeed Khan, Additional Advocate General along with Qasim Ali A.S.I.

Muhammad Afzal Maan for Respondents Nos.2 to 6.

P L D 2016 Lahore 497

Before Syed Mansoor Ali Shah and Shahid Bilal Hassan, JJ

Ch. IMRAN RAZA CHADHAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1007 of 2016, decided on 13th May, 2016.

(a) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----Ss. 42 & 54---Contempt of Court Ordinance (V of 2003), Ss.3 & 4---Constitution of Pakistan, Art. 204---Advocate High Court---Contemptuous attitude and misconduct---Frustrating the proceedings of court---Suspension of practicing licence---Unconditional apology tendered---Defiling the dignity, honour and prestige of the court could not be tolerated at any cost---Legal profession required respect for the law and the judicial institution---Bar leaders and elders with the consent of contemnor-advocate assured the Court that in future such events would not be repeated by any member of the Bar, and proposed that suspension of the advocate's professional licence be maintained for a period of one month and he be allowed to deposit a certain sum of money with the Diagnostic Centre of the High Court Bar Association as a token of respect for the institution---High Court accepted the proposals of the Bar on behalf of the contemnor-advocate and issued directions accordingly.

Prestige, dignity, respect and honour of the Court was supreme and could never be compromised.

Law was a noble profession and requires noble men - full of knowledge and respect for the law and the judicial institution. It could not be permitted that an advocate first hurled insults at the Court, tarnishing the prestige and honour of the Court in public and then tendered an apology at the end of the day. High Court observed that defiling the dignity, honour and prestige of the court could not be tolerated at any cost.

Advocate in question/contemnor tendered unconditional apology and assured the Court that he would not repeat his contemptuous conduct.

Members of the Bar with the consent of the contemnor-advocate proposed that the suspension of the licence of the advocate be maintained for a period of one month and he be allowed to deposit a sum of Rs.500,000/- with the Diagnostic Centre of the High Court Bar Association, as a token of respect for the institution.

In the interest of resolving the incident, and considering the unanimous request of the Bar leaders and elders and having been assured that an unfortunate event such as the present one would not be repeated at the High Court by any member of the Bar, High Court accepted the proposal of the Bar on behalf of the contemnor-advocate and directed that the professional license of the advocate shall remain suspended for a period of one month (w.e.f. from the date when it was first suspended by the High Court), and that the advocate shall deposit a sum of Rs.500,000/- with the Diagnostic Centre of the High Court Bar Association as a token of respect for the institution.

(b) Bar and Bench ---

----Duty of an advocate to maintain toward the Court a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance---Judges, not being wholly free to defend themselves, were peculiarly entitled to receive the support of the Bar against unjust criticism and clamor; at the same time whenever there was proper ground for complaint against a judicial officer, it was the right and duty of an advocate to ventilate such grievances and seek redress thereof legally.

Canon 159 - Canons of Professional Conduct and Etiquette of Advocate ref.

Rana Zia Abdul Rehman, Raja Abdul Rehman, Asjad Saeed, Azam Nazeer Tarar, Arshad Malik Awan, Rana Intizar Hussain, Asad Manzoor Butt and Anas Ghazi for the Appellant.

Ms. Hina Hafeezullah Ishaque, Standing Counsel for Pakistan.

Anwaar Hussain, Assistant Advocate General, Punjab.

P L D 2016 Lahore 502

Before Shahid Karim, J

AZIZ AHMAD---Appellant

Versus

AKBAR SHAMSHER---Respondent

R.F.A. No.154 of 2006, decided on 7th April, 2015.

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

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), Ss. 4 & 118---Qanun-e-Shahadat (10 of 1984), Art. 17 (2)---Institution of summary money suit on the basis of pronote---Negotiable instrument---Presumption---Scope---Burden of proof---Plaintiff filed suit for recovery of money on the basis of pronote which was dismissed by the Trial Court---Validity---Initial presumption that negotiable instrument was made, drawn, accepted and endorsed for consideration was yet rebuttable---Onus would be on the person denying such consideration to allege and prove the same---Where execution of promissory note and its receipt had been proved by the plaintiff, the burden would shift on the defendant to prove for want of consideration---Defendant executed a pronote albeit it was blank when same was executed---Defendant had not specifically denied that he did not execute or sign the promissory note---Defendant had admitted his signature on the said pronote in circumstances---Once a presumption attached to a negotiable instrument was established and pronote was validly executed then onus would shift on the defendant to rebut the said presumption---Alleged pronote was witnessed by two witnesses who were produced in evidence by the plaintiff--Promissory note was not required to be attested by witnesses---Trial Court had committed an error while relying upon Art.17(2) of Qanun-e-Shahadat, 1984---Trial Court had placed the entire burden to prove the case on the plaintiff and had not considered the applicability of S.118 of Negotiable Instruments Act, 1881---Trial Court had not considered the presumption attached to the pronote which had been validly exhibited---Defendant was bound to produce reliable and positive evidence to rebut the presumption attached to the pronote--¬Defendant had not discharged burden which shifted upon him to establish that he had signed and thumb marked on blank paper and amount of pronote had been paid---Suit filed by the plaintiff was decreed in circumstances---Appeal was allowed.

PLD 2007 Lah. 114 rel.

(b) Negotiable Instruments Act (XXVI of 1881)--

----S. 4---Promissory note---Essentials---Document to be a promissory note should be an unconditional undertaking to pay; the sum should be a sum of money and should be certain; the payment should be to or to the order of a person who was certain or to the bearer of the instrument and maker of the same should sign the said document.

2011 CLC 837 and PLD 2007 Lah. 114 rel.

(c) Negotiable Instruments Act (XXVI of 1881)--

----S. 118--Negotiable instrument---Presumption---Scope---Negotiable instrument had presumption that same was made or drawn for consideration and that every such instrument when it had been accepted, endorsed, negotiated or transferred then same was accepted, endorsed, negotiated or transferred for consideration---Every negotiable instrument bearing a date should be presumed to have been made or drawn on such date.

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

----Art. 17(2)---Promissory note---Attestation of---Scope---Promissory note was not required to be attested by witnesses.

Tariq Muhammad Iqbal Chaudhary for Appellant.

Zahid Mahmood Chaudhary for Respondent.

Date of hearing: 1st April, 2015.

P L D 2016 Lahore 509

Before Ibad-ur-Rehman Lodhi and Raja Shahid Mehmood Abbasi, JJ

Ex.-Brigadier ALI KHAN---Petitioner

Versus

SECRETARY, HOME DEPARTMENT, GOVERNMENT OF PUNJAB and another---Respondents

Writ Petition No.2983 of 2015, decided on 26th January, 2016.

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

----Ss. 21-F & 11-F (2)---Penal Code (XLV of 1860), Ss. 302 & 120-B---Pakistan Army Act (XXXIX of 1952), Ss. 59 & 31 (d)---Pakistan Prison Rules, 1978, Rr.199 & 214-A---Grant of remission to prisoner---Scope-- Accused was convicted and sentenced by Field General Court Martial---Representation for seeking remission was moved by the accused but same was declined---Validity---If remissions were refused on account of conviction under Anti-Terrorism Act. 1997 then effect of such refusal must not be taken beyond the period of maximum conviction provided for such offence---Principle of refusal of remission even if applied in the present case then same must not be extended for remaining period of conviction after exclusion of the period of maximum sentence of six months as provided under S.11-F(2) of Anti-Terrorism Act, 1997---Accused was never convicted for espionage or anti-state activities resulting into refusal of remission---To grant remission was an extra judicial power of prison managers to shorten the sentence in a judicial manner to make the criminal minds sane citizen---Such powers should have been in the exclusive domain of prison authorities to deal with the matters in post-conviction period---No unjustified restrictions could be imposed upon the prison authorities either in order to pre-empt their such jurisdiction or to overawe their such statutory right---Only prison authorities had power in view of the conduct of the prisoner in post-conviction period either to grant or refuse remission and no other authority was competent to even comment upon the conduct of the prisoner--Impugned refusal to grant remission to the accused was violative of the Pakistan Prison Rules, 1978---Jail authorities were directed to grant remission to the accused available under Pakistan Prison Rules, 1978 by excluding the period of conviction of six months provided under S.11-F(1) of Anti-Terrorism Act, 1997---Constitutional petition was allowed in circumstances.

Shah Hussain v. The State PLD 2009 SC 460 and Nazar Hussain and another v. The State PLD 2010 SC 1021 distinguished.

(b) Pakistan Prison Rules, 1978---

----Rr. 199 & 214-A---Remission to prisoner---Scope-Remission was an arrangement by which a prisoner sentenced to imprisonment whether by one sentence or by consecutive sentences for a period of four month or more might by good conduct and industry become eligible for release when a portion of his sentence ordinarily not exceeding one-third of the whole sentence had yet to run--Person who was convicted for espionage or anti-State activities was not entitled to ordinary or special remission unless otherwise directed by the Provincial Government.

Tanveer Iqbal Khan for Petitioner.

Malik Feisel Rafique, Deputy Attorney General for Pakistan with Raja Abdul Qayyum, Law Officer and Col. Shamsher Ali for Respondent.

Barrister Qasim Ali Chohan, Assistant Advocate General, Punjab.

Date of hearing: 21st December, 2015.

P L D 2016 Lahore 514

Before Abdul Sami Khan and Shehram Sarwar Ch. JJ

MUHAMMAD ARSHAD---Appellant

Versus

Ex-Officio JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE and 3 others-- Respondents

I.C.A. No.1488 of 2015 in Writ Petition No.31708 of 2015, decided on 11th November, 2015.

Law Reforms Ordinance (XII of 1972)---

----S. 3(2)---Constitution of Pakistan, Art.199(1)(b)(i)---Intra court appeal---Maintainability---Writ of habeas corpus---Writ of habeas corpus was filed which was dismissed by the Single Judge of High Court---Validity---High Court could issue a writ of habeas corpus and no appeal would lie against an order passed under Art.199(b)(i) of the Constitution---Intra court appeal being not maintainable was dismissed in limine.

Mrs. Shehla Chohan, Advocate.

P L D 2016 Lahore 516

Before Muhammad Farrukh Irfan Khan, J

ZULFIQAR AHMED---Petitioner

Versus

SHAGUFTA PARVEEN and others---Respondents

Writ Petition No.8427 of 2015, decided on 7th March, 2016.

Family Courts Act (XXXV of 1964)--

----S. 5, Sched---Recovery of maintenance allowance for children---"Past" and "future" maintenance---Scope---Non-mentioning of "future maintenance" in the plaint---Effect---Law did not make any distinction between "past" and "future maintenance"---Father was bound to pay maintenance allowance to his minor children till their legal entitlement---Mere non-mentioning of the word "future maintenance" in the plaint neither disentitled the minors from future maintenance nor absolved the father from the duty to pay maintenance to his minor children---Court had power to grant such relief for administration of justice even if plaintiffs omitted to claim future maintenance along with past maintenance---Nothing was on record that minor or their mother were living with the father/husband after passing the impugned judgment and decrees---Child who was entitled to past maintenance was also entitled to future maintenance---No illegality or jurisdictional defect had been pointed out in the impugned judgment and decree passed by the courts below---Constitutional petition was dismissed in circumstances.

Aurangzeb v. Judge Family Court, Khanewal and others 2004 MLD 8; Samar Gul v. Central Government and others PLD 1986 SC 35 and Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984 rel.

Muhammad Ashraf and Javaid Mahmood Sandhu for Petitioner.

Nemo for Respondents.

P L D 2016 Lahore 518

Before Sikandar Zulqarnain Saleem, J

Mst. FOZIA SHABNAM---Petitioner

Versus

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

Writ Petition No.112 of 2015, decided on 24th December, 2014.

Criminal Procedure Code (V of 1898)---

----Ss. 174 & 176---Application for disinterment of dead body---Scope of Ss.174 & 176, Cr.P.C.--- Petitioner/sister of the deceased, submitted application, seeking disinterment of dead body of her deceased brother, on the ground that; her brother did not die natural death, but was murdered by giving poison; and after strangulation by respondents on the instigation of other respondents---Said application was dismissed by the courts below---Validity---Question of exhumation, had to be decided only keeping in view the circumstances relevant to cl.(1) or (b), or (c) of subsection (1) of S.174, Cr.P.C.; there should either be an indication that the information related to the commission of suicide or regarding the killing of a person by another person; or by an animal; or by machinery; or by an accident---Other aspect relevant for disinterment, was the existence of the circumstances raising a reasonable suspicion; that some other persons, had committed an offence in relation to the death of the deceased, required to be disinterred---Petitioner, being the real sister of the deceased, had all the genuine cause to dispel the suspicion of unnatural death of her deceased brother---Scope and intent of S.176, Cr.P.C., was to discover the actual cause of death of the deceased---Subsection (1) of S.176, Cr.P.C., made provision for conducting an inquiry into the cause of death, either instead of or in addition to the investigation held by the Police, if the case was covered by S.174, Cr.P.C.---Even the registration of the FIR, was not an impediment for holding an inquiry into the case of death of deceased under S.176, Cr.P.C.---In the wake of a specific allegation and apprehension of unnatural death of the deceased, the requirements of Ss.174 & 176, Cr.P.C., could not be ignored---Sister of the deceased had a right to know the actual cause of death of her deceased brother, so that her apprehension was laid to rest once and for all---Exhumation of dead body, could be ordered on the request of, or on the information, even a stranger for the purpose to know the actual cause of death, so that criminal machinery, be set in motion---Petitioner, was justified in asking for exhumation of the dead body of the deceased to know the cause of death---Exercise of constitutional jurisdiction being an equitable relief, High Court could validly look into the matter for the ends of justice---High Court setting aside concurrent orders of the courts below, directed Judicial Magistrate to manage for the disinterment of the body of the deceased for the purpose of ascertainment of cause of death.

Mudassar Altaf Qureshi for Petitioner.

Ch. Muhammad Akbar, DPG for the State on Court's call.

OBJECTION CASE

SIKANDAR ZULQARNAIN SALEEM, J.---Learned counsel for the petitioner contends that instead of mentioning the order dated 11.6.2014 passed by the learned Ilaqa Magistrate inadvertently due to typographical mistake the same has been mentioned as 20.05.2014, which may be corrected accordingly. In this view of the matter, office is directed to number this petition and fix the main petition for hearing as with the concurrence of both the learned counsel for the parties this petition is being decided today.

MAIN CASE

1. The petitioner Mst. Fouzia Shabnam submitted an application to the learned Civil Judge-Cum-Judicial Magistrate, Multan seeking, disinterment of her deceased brother Bashir Ahmad on the ground that he was murdered by giving poison and after strangulation by respondents Nos.3 to 6 on the instigation of respondents Nos. 7 to 9. After recording her statement, notices were issued to the respondents and SHO concerned was asked to submit his detailed report regarding, the matter in question and the learned Magistrate by an order dated 11.06.2014 dismissed the application of the petitioner. The petitioner being aggrieved by the said order preferred revision petition before the learned Additional Sessions Judge, Multan which was also dismissed through the order dated 15.12.2014, hence, this writ petition before this Court.

2. The learned counsel for the petitioner has contended that orders passed by both the courts below are absolutely illegal, unwarranted and result of misconception of law; that it is the right of real sister of the deceased to know the actual cause of death of her deceased brother so that her apprehension is laid to rest once and for all; that Bashir Ahmad deceased was died an unnatural death and there was reasonable suspicion that he was administered poison by respondents Nos.3 to 9 which can only be dissolved through disinterment and conducting of exhumation, hence, this writ petition may be accepted and the orders passed by both the courts below may be set aside.

3. The learned Deputy Prosecutor General opposes this petition on the ground that the death of Bashir Ahmad deceased had taken place to normal course and there were no such circumstances as could raise a reasonable suspicion that some other person had committed an offence. It is next contended that a number of persons had recorded their statements before local police and particularly the person who gave bath to the dead body of the deceased expressly and categorically stated that there was no such sign of injury as claimed by the petitioner. It was further contended that the application moved by the petitioner was purely mala fide and she only wanted to blackmail, harass and pressure the legal heirs of Bashir Ahmad deceased as the petitioner contracted a runway marriage due to which she was having, clashes with her family and for a long time she did not contact her family and the petitioner did not bother to come even on her mother's death, hence, the orders passed by both the courts below do not suffer from any illegality and call for no interference by this Court, therefore, this writ petition may be-dismissed.

4. Although it cannot be denied that disinterment of the dead body is not as simple as legal process in our social atmosphere where such a process is generally actuated with humiliation of the legal heirs and disrespect to the deceased person yet the process of law cannot be over thrown only because of the apprehension of humiliation and disrespect, if the case is otherwise within the ambit of section 174(1), Cr.P.C. and an action is necessitated in terms of section 176, Cr.P.C. In the instant case, versions of both the sides were brought on record by the learned Magistrate but then he proceeded to dilate upon the veracity of the contention of the parties regarding the inheritance of the deceased. This was essentially beyond the scope of the authority of the learned Judicial Magistrate. The sensitive and intricate matters of inheritance or the endeavours of the parties to achieve their objectives in that behalf could not be determined in the course of the investigation under sections 174/176, Cr.P.C. The question of exhumation has to be decided only keeping in view the circumstances relevant to clause (a) or (b) or (c) of subsection (1) of section 174, Cr.P.C. There should either be an indication that the information relates to the commission of suicide or regarding the killing of a person by another person or by an animal or by machinery or by an accident. The other aspect relevant for disinterment is the existence of the circumstances raising a reasonable suspicion that some other person has committed an offence in relation to the death of the deceased required to be disinterred.

5. The petitioner being the real sister of the deceased had all the genuine cause to dispel the suspicion of unnatural death of her deceased brother. The scope and intent of section 176, Cr.P.C. is to discover the actual cause of death of a deceased person. Subsection (1) of section 176, Cr.P.C. makes a provision for conducting an inquiry into the cause of death either instead of or in addition to the investigation held by the police if the case is covered by subsection (1) of section 174, Cr.P.C. Even the registration of an F.I.R. is not an impediment for holding an inquiry into the cause of death of deceased person under section 176, Cr.P.C. In the wake of a specific allegation and apprehension of unnatural death of the deceased, brother of the petitioner, the requirements of section 174 read with section 176, Cr.P.C. could not be ignored or kept aside by deriving certain conclusions regarding the interests, whether bona fide or mala fide, of the parties. The only thing that had to be considered by the learned Judicial Magistrate was whether the death had taken place under the circumstances raising a reasonable suspicion that some other person had committed an offence, which in the light of the statement of the petitioner could not brush aside. Further, it is the right of real sister of the deceased to know the actual cause of death of her deceased brother so that her apprehension is laid to rest once and for all. It may be noted that an application for disinterment can be moved on the ground of suspicion only and it is in the interest of justice that an order for exhumation of dead body is passed in such case. It is constant view of the Superior Courts that exhumation of dead body could be ordered on the request of or on the information even a stranger for the purpose to know the actual cause of death so that criminal machinery be set in motion. In the present case, applicant is closely related (real sister) to the deceased and she is justified in making an application for exhumation of dead body of the deceased to know the cause of death.

P L D 2016 Lahore 522

Before Shahid Hameed Dar, J

Khawaja MUHAMMAD HUSSAIN KHATEEB---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, SIALKOT and 7 others---Respondents

Writ Petition No.5729 of 2015, decided on 26th October, 2015.

Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), S.11 & O.XXIII, R.1(3)---Constitutional petition---Dismissal of constitutional petition as withdrawn---Fresh constitutional petition---Maintainability---Earlier constitutional petition on the same subject was dismissed as withdrawn---No permission had ever been sought by the petitioner to file a fresh petition nor High Court had accorded the same---Earlier petition was not withdrawn on account of any technical or formal defect---Point or plea which was available to the petitioner; and was not taken by him in the earlier constitutional petition would be deemed to have been taken up and refused or abandoned---Dismissal of earlier petition could not be assumed to have generated a fresh ground in favour of the petitioner to file fresh petition---Provisions of Civil Procedure Code, 1908, would exclusively regulate and control constitutional proceedings---Subsequent constitutional petition on the same subject matter, and the relief sought for, was not maintainable in view of S.11 of Civil Procedure Code, 1908---Second petition being not maintainable, was dismissed, in circumstances.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145 and Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325 ref.

Imran Abbas Khawaja for Petitioner.

Raza-ul-Karim Butt, Additional Advocate General, Punjab

P L D 2016 Lahore 526

Before Shams Mehmood Mirza, J

NIB BANK LIMITED---Decree Holder

Versus

MANZOOR TEXTILE MILLS LTD.---Judgment Debtor

Execution Petition No. 10-B of 2015, decided on 3rd September, 2015.

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

----O. XXI, Rr. 66 & 83---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.9---Suit for recovery of loan amount---Auction of Mortgaged property by Court---Requirements---Decree-holder filed execution petition wherein objection application was moved--Contentions of judgment debtor were that value of the property sought to be auctioned was more than what had been assessed by the evaluator and that evaluator had not mentioned the covered area of the building correctly---Validity---Fixing the value of the property was a matter of opinion and court could not give its opinion on such a point---Sale price in the auction conducted by the court should be accepted as purchaser/bidder had to take risk of litigation---Reserve price fixed by the court and forced sale value determined by the evaluator should be one and the same---Reserve price had to be fixed to protect the interest of judgment-debtor against a collusive and insufficiently competitive auction---Proclamation of sale should contain everything which the court consider material for a purchaser to know---Court should give preference to the evaluation report prepared under its orders rather than a report which was prepared at the behest of judgment-debtor---Judgment-debtor could bring a buyer of his choice either in auction or before the court prior to the sale if property was being sold for a price on the lower side---Court could postpone sale of property to enable the judgment-debtor for raising money through private sale of the same---Description of property should be fairly and accurately described in the auction schedule---Details with regard to superstructure or constructed area were not necessary to be contained in the auction schedule---Purchaser could ascertain for themselves the constructed area within the boundary walls of the property---Court sales did not entail warranty of title---Objections application was dismissed in circumstances.

United Bank Limited v. Al-Noor Enterprises and others 2006 CLC 822 and Messrs Julandar (Pvt.) Limited v. Official Assignee and 2 others 2003 CLD 1336 rel.

(b) Words and phrases--

----"Reserve price"---Meaning.

(c) Words and phrases--

----"Forced sale"---Meaning.

(d) Words and phrases--

----"Market price"---Meaning.

(e) Words and phrases--

----"Distressed sale"---Meaning.

M Ali Malik for Applicant.

Talib Hussain for Decree Holder Bank.

Hafiz Chaudhary, Muhammad Tahir and Mian Subha Sadiq Watto, Court Auctioneers.

P L D 2016 Lahore 533

Before Mrs. Erum Sajad Gull, J

MUHAMMAD AWAIS---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No.765 of 2015, decided on 17th December, 2015.

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

----S. 540---Qanun-e-Shahadat (10 of 1984), Preamble---Power to examine material witness or examine person present---Scope of S.540, Cr.P.C.---Re-examination/recalling of witnesses---Principles as to permissibility---Formal witness/constable not cross-examined by defence without any reason---Trial Court dismissed application filed under S.540, Cr.P.C. for re-examination of prosecution witness/constable---Accused contended that said witness, having received the parcel of the empties, had deposited the same in Forensic Science Laboratory, but Investigating Officer had not recorded his statement under S.161, Cr.P.C. and that statement of said witness was essential as said parcel had been submitted with a delay of sixteen days---No provision existed either in Cr.P.C. or Qanun-e-Shahadat, 1984 to recall a witness for re-examination---Discretion to summon a material witness was left to Trial Court under S.540, Cr.P.C.---Section 540. Cr.P.C. had two parts: in the first part, the discretion was with the court; while, the second part was mandatory---Purpose of S.540, Cr.P.C. was to empower the court with ample jurisdiction to ensure that court dug out truth during trial, so that no innocent was punished---If the court was of the view that evidence of a witness was to be recorded in order to reach a just conclusion of the case, then the court had powers to even re-examine any witness---No witness could, however, be re-called for examination to fill the lacuna left by defence or prosecution---Witness could only be recalled for examination in exceptional cases, where interest of justice thus demanded to rectify an obvious mistake---Accused, in the present case, could not satisfy the court as to why he had chosen not to cross-examine the said witness---Witness, sought to be recalled, was formal witness, and not recalling him would not amount to miscarriage of justice in any way---Statements of all witnesses had already been recorded and the case was fixed for final arguments---Revision petition was dismissed accordingly.

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

----S. 439---High Court's power of revision---Scope---High Court can exercise revisional jurisdiction only when there are exceptional circumstances, and impugned order is perverse or suffering from any type of infirmity.

Syed Nasir Ali Shah for Petitioner.

Ms. Ummul Banneen, Deputy District Public Prosecutor for the State.

Muhammad Mohsin Awan for Respondent No.2.

P L D 2016 Lahore 536

Before Shahid Mubeen, J

KISHWAR PARVEEN and others---Petitioners

Versus

DISTRICT JUDGE, GUJRAT and others---Respondents

Writ Petition No.24836 of 2014, decided on 29th September, 2015.

Family Courts Act (XXXV of 1964) ---

----S. 5, Sched---Suit for recovery of maintenance allowance---Paternity of minor---Determination of---Scope---Husband disowned paternity of the minor son---Family Court decreed the suit for recovery of maintenance allowance but Appellate Court remanded the matter with the direction to determine the legitimacy of the minor son---Contention of wife was that question of paternity could only be decided by the civil court---Validity---Question of paternity could not be determined by the Family Court---Appellate Court could not remand the case to determine the paternity of the minor---Appellate Court had exceeded its jurisdiction---Family court as well as appellate court were not court of civil jurisdiction---Only civil court could adjudicate upon the paternity of minor---Impugned order passed by the Appellate Court was set aside and case was remanded for decision afresh in accordance with law---Constitutional petition was accepted in circumstances.

Iftikhar Hussain and another v. Muhammad Aslam and others 1991 MLD 1500 and Mst. Aziz Begum v. Faiz Muhammad PLD 1965 (WP) Lah. 399 rel.

Muhammad Asif Bhatti for Petitioners.

P L D 2016 Lahore 539

Before Zafarullah Khan Khakwani, J

AHMAD NAWAZ KHAN BAKHTIARI---Petitioner

Versus

APPELLATE AUTHORITY and others---Respondents

Writ Petition No.8386 of 2015, decided on 19th November, 2015.

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

----S. 27(1)(b)---National Database and Registration Authority Ordinance (VIII of 2000), Ss. 9, 10 & 19---Election for local government---Dispute with regard to age of candidate---Entries of National Identity Card and Birth Registration Certificate---Scope---Nomination papers were rejected by the Returning Officer on the ground that candidate did not qualify being under twenty-five years of age---Appellate authority accepted the nomination papers holding that candidate was more than twenty five years according to Birth Registration Certificate---Validity---National Identity Card was a public document having probative value---Presumption of truth was attached to the National Identity Card which could be considered as evidence---Entries of National Identity Card were considered to be more authentic and admitted to be correct---Such entries should be given preference over other documents/certificates unless same were rebutted by better and strong evidence---Entries of National Identity Card should be considered for determining the age of any person---Preference should be given to the entries made in the National Identity Card over the entries made in the Birth Registration Certificate---Computerized National Identity Card of the candidate, in the present case, was duplicate or had been issued after expiry of old one---Nothing was on record that any effort was made by the candidate for correction of his date of birth if wrongly mentioned on Computerized National Identity Card before filing of his nomination papers---Candidate had used present National Identity Card for many years without any complaint---Date of birth of candidate was less than twenty five years at the time of filing of nomination papers and he was not eligible to contest the election---Impugned order passed by the appellate authority was set aside and that of Returning Officer was restored---Nomination papers submitted by the candidate were rejected---Constitutional petition was allowed in circumstances.

Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837; Mst. Razia Khatoon through Legal Heirs v. Dr. Roshan H. Hanji and another 1991 SCMR 840 and Malik Muhammad Faisal and another v. State Life Insurance Corporation through Chairman and 2 others 2008 SCMR 456 rel.

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

----S. 10---National Identity Card---Scope---Identity of a citizen would depend upon the contents of National Identity Card issued on the information supplied by him---National Identity Card was a public document having probative value---Presumption of truth was attached to the National Identity Card which could be considered as evidence.

Syed Muhammad Ibrahim Bukhari and Syed Muhammad Areeb Abdul Khafid Shah Bukhari for Petitioner.

Ch. Abdul Jabbar, Sanding Counsel for Federation

Malik Muhammad Hayat for Respondents Nos. 3 and 4.

C. M. No. 5116 of 2015.

ZAFARULLAH KHAN KHAKWANI, J.---This is an application under Order I, Rule 10 of the C.P.C. seeking permission to array Syed Mahboob Alam Meharvi son of Syed Abdul Hameed as co-petitioner on the ground that since the petitioner is contesting election for the joint candidature of Chairman and Vice Chairman of the Union Council as such said Syed Mahboob Alam Meharvi is necessary party to be impleaded as co-petitioner.

1. For the reasons mentioned above, this C.M. is allowed subject to all just and legal exceptions and the amended petition appended with this C.M. is allowed to be placed on the file.

MAIN CASE

Briefly stated the facts for the purpose of appreciating the contentions raised by learned counsel for the parties are that nomination papers of Ishaq Ahmad, respondent No.3 filed along with respondent No.4 to contest election for the joint candidature of Chairman and Vice Chairman of Union Council No.68, District Bahawalpur, were rejected by the Returning Officer/respondent No.2 vide order dated 13-10-2015 on the objection raised by the petitioners not qualified being under 25 years of age at the time of filing of his nomination papers. However, the appeal filed by said Ishaq Ahmad, respondent has been accepted by the appellate authority vide order dated 4-11-2015 necessitating filing of this constitutional petition by the petitioners being rival candidates.

1. By referring to section 27(1)(b) of the Punjab Local Government Act, 2013 learned counsel for the petitioners submits that as per National Identity Card issued by the NADRA age of respondent No.3 was below 25 years i.e. less than the required age to contest election of the local government and as such he was not qualified but the appellate authority while ignoring said provision of law wrongly accepted nomination papers of respondent No.3 which are liable to be set aside.

2. Conversely, learned Law Officer assisted by learned counsel for respondent No.3 by referring entries made in the Birth Registration Certificate issued on 19.10.2015 (after rejection of nomination papers) by Secretary Union Council Chanab Rasool Pur, Ahmad Pur East, contends that according to Birth Certificate date of birth of the said respondent was 30-6-1989 i.e. more than 25 years at the time of filing of nomination papers as required by law, therefore, his appeal was rightly accepted. Further contends that respondent No.3 has already filed civil suit before the Court of competent jurisdiction for correction of his date of birth in the National Identity Card, therefore, counting 25 years from the date of birth mentioned in his Birth Certificate, he was qualified to contest the election.

3. Arguments from all corners heard at length and record perused.

4. Section 27 of the Punjab Local Government Act, 2013 deals with qualifications and disqualifications for candidates and elected members of Local Governments. Subsection (1) of this Section runs as under:

5. Qualifications and disqualifications for candidates and elected members. (1) A person shall qualify to be elected as a member or to hold an elected office of a local government, if he:

(a) is a citizen of Pakistan;

(b) except the youth member, is not less than twenty five years of age on the last day fixed for filing the nomination papers; and

(c) is enrolled as a voter in the electoral rolls of the ward or the local government from which he is contesting the election.

It is manifest from above quoted Clause (b) that a person shall be qualified to contest election if he is not less than 25 years of age on the last date fixed for filing of nomination papers.

1. The National Identity Card of respondent No.3 issued by the National Database and Registration Authority (NADRA) on 22-9-2015 depicts his date of birth as 4.5.1993. If one goes by this entry in the Card, then age of respondent No. 3 was less than 25 years on the last date for filing of nomination papers. Although learned counsel for respondent No. 3 has produced photo copy of Birth Registration Certificate purportedly issued by NADRA with the signatures of Secretary Union Council Chanab Rasool Pur, Ahmad Pur East in which date of birth of respondent No. 3 is mentioned as 30.7.1989, to contend that as per said Birth Certificate said respondent was more than 25 years of age and thus qualified to contest the forthcoming election of local government but said contention is of no avail to the said respondent for the following reason:

Section 9 of the National Database and Registration Authority Ordinance, 2000 deals with registration of citizens. Sub-section (1) says that every citizen in or out of Pakistan who has attained the age of eighteen years shall get himself and a parent or guardian of every citizen who has not attained that age shall, not later than one month after the birth of such citizen, get such citizen registered in accordance with the provision of this Ordinance. Perusal of this provision would demonstrate that it has two parts; one that every citizen who has attained the age of eighteen years shall get himself registered and the other is that a parent or guardian of a citizen who has not attained that age, within one month of birth of said citizen shall get such citizen registered as prescribed by the provisions of said Ordinance. Subsection (5) authorizes the Authority to issue Certificate of Registration (Birth Certificate) to a citizen who has not attained the age of eighteen years but is registered under subsection (1). Section 10 deals with National Identity Cards. It says that the Authority shall issue or renew on certain terms and conditions, subject to every citizen who has attained the age of eighteen years and got himself registered under Section 9, a card to be called National Identity Card.

Importance of National Identity Card can be gathered from the purposes enumerated in Section 19 of the Ordinance. Sub-section (1) of Section 19 prohibits issuance of passport, permit or other travel documents for going out of Pakistan to a citizen who has attained the age of eighteen years but does not possess or produce a National Identity Card. Subsection (2) says that any officer charged with the duty of conducting the poll at an election may, for the purpose of satisfying himself as to the identity of any person, require such person to produce his National Identity Card. Subsection (4) contemplates that a card including a National Identity Card issued to a person under this Ordinance shall be proof of his identity as could be established from the contents of such card for any purpose for which his identity is required to be established. This means that identity of a citizen is dependent upon the contents of the National Identity Card and the entries of the identity card are the proof of identity of a person. Needless to mention that the National Identity Card is issued after full inquiry is made on the basis of solemn affirmation of the applicant regarding the information supplied by him. It is a public document and has got probative value. Presumption of truth is attached to it and can be considered as an evidence. It is with this background that making any false information or material particular which is not believed to be true to obtain National Identity Card has been made punishable under Section 30(2)(a) of the National Database and Registration Authority Ordinance, 2000.

1. It is by now settled proposition of law that entries in CNIC are considered to be more authentic and admitted to be correct and have to be given preference over other documents/certificates unless the same was rebutted by better and strong evidence. 1 am, therefore, of the considered view that entries in the National Identity Card carry sufficient weight to be considered for determining the age of any person. Steering thoughts in this regard have been gathered from the cases of Abdul Ghani and others v. Mst. Yasmeen Khan and others (2011 SCMR 837), Mst. Razia Khatoon through Legal Heirs v. Dr. Roshan H. Nanji and another 1991 SCMR 840) and Malik Muhammad Faisal and another v. State Life Insurance Corporation through Chairman and 2 others (2008 SCMR 456). This being the position, preference is to be given to the entries made in the Identity Card issued under Section 10 over the entries made in the Birth Registration Certificate and that too issued after issuance of National Identity Card or any other document including School Leaving Certificate which do not carry equal authenticity.

2. There is another aspect of the matter which cannot be lightly ignored. In the Electoral Roll 2012, copy of which is appended as Annex-D, vote of said respondent was registered at Sr. No.274 in Census Block Code No.243090505 in Electoral Area of Rasoolpur, District Bahawalpur having same number of National Identity Card. This fact indicates that Computerized National. Identity Card had been issued to the said respondent much before preparation of Electoral Roll 2012 meaning thereby that the present Computerized National Identity Card issued on 22.09.2015 is revised/duplicate or has been issued after expiry of old CNIC. Last date of filing of nomination papers was 07.10.2015. There is nothing on record to suggest any effort made by said respondent for correction of his date of birth if wrongly mentioned on Computerized National Identity Card before filing his nomination papers. This fact is sufficient to demonstrate that respondent-No. 3 used this National Identity Card for many years for different purposes without any complaint. According to plaint, the civil suit was filed by respondent No.3 for correction of date of birth on 21.10.2015 i.e. after rejection of nomination papers. Learned counsel for respondent No.3 frankly conceded that date of birth depicted on the Computerized National Identity Card of said respondent is 4.5.1993. He even failed to place on record any educational document to display his date of birth as 3.7.1989. By filing civil suit in Civil Court the respondent has admitted that in the line of his date of birth mentioned as 4.5.1993 in the Computerized National Identity Card he was less than 25 years of age at the time of filing of nomination papers.

P L D 2016 Lahore 545

Before Ibad-ur-Rehman Lodhi, J

KHALID ZAHIR AKHTAR---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence---Respondent

Writ Petition No.2663 of 2015, decided on 23rd December, 2015.

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

----Ss. 92, 16, 2(2) & 60---Army Regulations Rules, 1998, Rr. 269-A & 269-C---Petitioner, a retired army officer---Dismissal from service---When petitioner was called with reference to S.92 of Pakistan Army Act, 1952 then there was no other option with the authorities except to try him and punish him for such offence allegedly committed by him---Such mode was not adopted by the respondents in the present case---No order by the Chief of Army Staff existed for constitution of Court of Inquiry-No show cause notice was issued to the petitioner---Proceedings could be ordered against an officer who was at the relevant time in active service of Pakistan Army---Army Regulations Rules, 1998 did not empower any authority to proceed against an already retired officer---If retired officer from army was called under S.92 of Pakistan Army Act, 1952 then he should be made subject to Pakistan Army Act, 1952 but only for limited purpose provided in the said provision of law---Petitioner was never charge sheeted for any alleged offence committed by him---Petitioner was never tried by any Court Martial and no conviction had ever been passed against him---Retirement order of petitioner had already been acted upon which had never been recalled, modified, cancelled, rescinded or replaced---Retired army officer could not be dismissed without adopting the required process---Impugned order was based on malice and was without jurisdiction---Impugned order of dismissal of petitioner from service was not sustainable which was set aside---Constitutional petition was allowed in circumstances.

(b) Constitution of Pakistan---

----Art. 199(3)---Constitutional petition against Armed Forces---Bar of jurisdiction---Scope---Bar of jurisdiction contained in Art. 199(3) of the Constitution is not absolute and High Court had jurisdiction to examine whether the order challenged suffered from mala fide or was without jurisdiction or coram non judice.

District Bar Association Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v President of Pakistan through Secretary and others PLD 2010 SC 61 rel.

Mohammad Akram Sheikh, Mohammad Wasif Khan Niazi and Syed Faraz Raza for Petitioner.

Waqar Ahmad Rana, Additional Attorney-General for Pakistan, Raja Faisal, Standing Counsel and Col. Shamsher Ali for Respondent.

Date of hearing: 16th December, 2015.

P L D 2016 Lahore 553

Before Atir Mahmood, J

INAM AKBAR---Petitioner

Versus

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

Writ Petition No38431 of 2015, decided on heard on 22nd January, 2016.

(a) Constitution of Pakistan--

---Art. 199---Constitutional jurisdiction of High Court---Territorial jurisdiction---Scope---Where cause of action had accrued to a person, such person could invoke jurisdiction of the court situated in such area---Where the impugned order had been passed by or under a Federal Ministry; the petitioner had a right to invoke the constitutional jurisdiction of any High Court in the country.

Trading Corporation of Pakistan Private) Limited v. Pakistan Agro Forestry Corporation (Private) Limited and another 2000 SCMR 1703 and The Collector, Customs and Central Excise, Peshawar and others v. Messrs Rais Khan Limited through Muhammad Hashim 1996 SCMR 83 rel.

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

----Ss. 2 & 3---Constitution of Pakistan, Art. 15---General Clauses Act (X of 1897), S. 24-A---Power to prohibit exit from Pakistan---Freedom of movement---Natural justice, principles of---Applicability---Non-speaking order---Effect---Alternate remedy---Scope---Petitioner impugned placement of his name on the Exit Control List (ECL) via Office Memorandum of the Federal Investigation Agency (FIA)---Validity---Perusal of impugned order revealed that the same was a non-speaking order which contained no reasons as to why the petitioner had been stopped from travelling aboard and said impugned order stated that the petitioner should approach the Ministry of Interior for further information---Under the law, Ministry of Interior was only competent to place a person's name on the ECL on its own or from advice from any concerned authority reasonably, fairly and justly and if it receives such advice from any concerned authority to place a person's name on ECL, then it had to apply a judicious mind before passing such an order---Impugned order did not reflect such exercise having been undertaken at the Ministry of Interior's end and the same was passed in mechanical manner without giving reasons---No prior notice was issued to the petitioner regarding placing his name on the ECL, and he was not given an opportunity of hearing, which was against principles of natural justice and the impugned order therefore, was hit by S.24-A of the General Clauses Act, 1897---Allegations against petitioner seemed to be based on suspicions and no material evidence was available against him---Mere inquiry was being conducted against him and neither investigation had commenced nor the trial stage had reached, therefore freedom of the petitioner to travel aboard could not be curtailed at such stage as the same could tantamount to abridge his fundamental right of free movement under the Constitution---Contention that alternate remedy of review under S.3 of the Exit from Pakistan (Control) Ordinance, 1981 was available to the petitioner was not tenable as the impugned order did not contain reasons, therefore, alternate remedy available to affectee of such a non-speaking order would useless to such an affectee as he/she would be unable to file an effective application, appeal, review or representation against such order---Impugned order/memorandum could therefore, not be sustained under the law and was accordingly set aside---Constitutional petition was allowed, in circumstances.

Muhammad Asif v. Chairman NAB and others C.P.No.1728 of 2013; Lubna Salahuddin v. Federation of Pakistan and others Constitution Petition No. D-2763 of 2014 and Irfan Iqbal Puri and others v. Government of Pakistan through Ministry of Interior Pakistan Secreariat Islamabad and others Writ Petition No.2956 of 2002 ref.

Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation (Private) Limited and another 2000 SCMR 1703; The Collector, Customs and Central Excise, Pashawar and others v. Messrs Rais Khan Limited through Muhammad Hashim 1996 SCMR 83; Messrs United Bank Limited v. Federation of Pakistan and others 2014 SCMR 856 and Wajid Shamas ul Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabd PLD 1997 Lah. 617 rel.

(c) Constitution of Pakistan--

----Art. 199---Constitutional petition---Maintainability---Alternate remedy---Scope---Maintainability of constitutional petition against "non-speaking order" against which an alternate remedy is available to the petitioner---Scope---Order passed by an authority must contain reasons enabling an affectee of such an order to challenge same before the appropriate forum and if the said impugned order contained reasons the alternate remedy of appeal was duly efficacious and useful, and in such a case constitutional petition would not be maintainable---Where, however, impugned order contained no reasons, then alternate remedy was of no avail as the affectee of such an order would be unable to file an affective application, appeal, review or representation against such an order---Right of appeal in such cases, even if provided by law, becomes useless, and therefore constitutional petition would be maintainable.

Wajid Shamas ul Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabd PLD 1997 Lah. 617 ref.

Saad Rasool for Petitioner.

Muhammad Akram Javed, Special Prosecutor, NAB, Muhammad Zakria Sheikh, DAG and Zahoor Ahmad, S.I., F.I.A. for Respondents.

Date of hearing: 22nd January, 20016.

P L D 2016 Lahore 560

Before Miss Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

The STATE---Appellant

Versus

SAID RAHEEM and others---Respondents

Criminal Appeal No.1627 of 2010, decided on 30th October, 2015.

Criminal Procedure Code (V of 1898)---

----S. 417(2-A)---Control of Narcotic Substances Act (XXV of 1997), S.48(1)---Limitation Act (IX of 1908), Ss.5 & 29(2)(a)&(b)---Appeal against acquittal, dismissal of---Extension of period in certain cases---Application for condonation of delay in filing appeal against acquittal---Maintainability---Appeal was admittedly out of time by one month and eighteen days---Provisions of S.5 of Limitation Act, 1908 lost their applicability or relevancy over the matter, due to the bar contained in S.29(2)(a)&(b), Limitation Act, 1908, and there being the special limitation of thirty days prescribed under Control of Narcotic Substances Act, 1997---Lapse of time, in criminal matter, was sufficient to provide protection to person, who had been acquitted, from further judicial process---Plea raised by prosecution did not constitute valid ground for condonation of delay and the same was, therefore, unsustainable---Condonation of delay under S.5 of Limitation Act, 1908 was not available for filing of appeal against acquittal---High Court observed that filing of appeal against acquittal along with application seeking condonation of delay was not maintainable---Appeal along with the application was dismissed in circumstances.

Piran Ditta v. The State and others 1970 SCMR 282; Mst. Zeenat Sultan v. Mumtaz Khan and other PLD 1994 SC 667; Aziz-ur-Rehman Hamid v. Crescent Commercial Bank 2008 SCMR 54; The State/Anti Narcotics Force through Deputy Director (Law) Karachi v. Muhammad Adeel Hussain and another 2010 YLR 1322 and The State through Advocate-General, N-W.F.P. Peshawar v. Gulla 2011 PCr.LJ 696 rel.

Muhammad Ikhlaq, DPG for the State.

P L D 2016 Lahore 563

Before Ali Baqar Najafi, J

SAFDAR HUSSAIN---Appellant

Versus

Mst. NOSHI (NISHAT) GILLANI and others---Respondents

R.F.A. No.268 of 2009, decided on 11th December, 2015.

(a) Copyright Ordinance (XXXIV of 1962)---

----Ss 14 & 28---Contract Act (IX of 1872), S. 2 (j)---Civil Procedure Code (V of 1908), O.VII, R. 11---Claim for exclusive right of publication---Agreement barred by law---Plaint, rejection of---Scope---Exclusive right of publication was given to the plaintiff-publisher through agreement by the defendant-author---Agreement which was not conflict with any statute could only be enforced---Author might not specify the period of agreement but by operation of law its life could be curtailed to a definite period---Alleged agreement could bind the parties only for ten years---Almost seventeen years had lapsed since the agreement was executed---Plaint of a suit which was barred by law should be rejected---Appeal was dismissed in circumstances.

Shakeel Adilzadah v. Pakistan Television Corporation Ltd. and 2 others 1989 CLC 2447 and Jogendra Nath Sen and another v. State and another AIR 1991 Calcutta 3081 distinguished.

2014 SCMR 513 rel.

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

----S. 2(j)---Agreement---Scope---Agreement which was not in conflict with any statute could be enforced.

(c) Copyright Ordinance (XXXIV of 1962)---

----S. 3(a)---"Copyright"---Meaning.

Rana Farman Ali Sabir for Appellant.

Muhammad Waseem Sindhu for Respondents.

Date of hearing: 23rd November, 2015.

P L D 2016 Lahore 570

Before Shahid Hameed Dar, J

Mst. REHANA ANJUM---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and 6 others---Respondents

Criminal Revision No.39 of 2015, heard on 6th March, 2015.

Penal Code (XLV of 1860)---

----Ss. 302, 34 & 109---Criminal Procedure Code (V of 1898), Ss.200, 202, 204 & 510---Qanun-e-Shahadat (10 of 1984), Arts.73, 74, 78 & 79---Qatl-i-amd, common intention---Abetment---Private complaint---Proof of segregation and handwriting---Execution of document required by law to be attested---Respondents/accused persons, produced in their defence, defence witness who was Statistical Assistant, whose examination was intercepted twice by the petitioner/complainant by raising couple of objections---Trial Court overruled said objections with direction that the statements of the defence witness be completed---Validity---Document produced by the defence witness, depicted electronically generated evidence, which in terms of Art.73 of Qanun-e-Shahadat, 1984, could be considered primary evidence---Print out or other form of output of an automated information system, could not be denied the status of primary evidence, solely for the reason that it was an output of automated information system---Document in question, was not prepared manually, nor had been marginally signed by the executors or the witnesses thereof---Such was the product of automated system, which was hardly required to be signed by any one---Tendering a document in evidence, was something different from proving same in contents thereof---Admissibility of a document in evidence by itself, would not absolve the party from proving its contents in terms of Art.79 of Qanun-e-Shahadat, 1984---Defence witness, did not fall within any of the categories mentioned in S.510, Cr.P.C.; he had to depose about contents of document in question; and petitioner/complainant, would be within her right to cross-examine him, so as to shake his credibility---Merely by tendering the said document in evidence, without saying a word to the contents thereof by defence witness, it would not be possible for the Trial Court to assess the evidentiary value thereof---Petitioner, appeared to have shown unnecessary haste in raising objections, without anticipating the intricacies and fall out thereof---All said and done by the petitioner, as to her objections, was a circumstance which had been rightly dealt with by the Trial Court, through impugned order/observation at noted stage of the trial---Petition, filed by the petitioner was dismissed, in circumstances.

Mehram Ali Bali for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for the State.

Mian Khadim Hussain for Respondents Nos. 2 to 6.

Date of hearing 6th March, 2015.

P L D 2016 Lahore 577

Before Shujaat Ali Khan, J

AZIZ ULLAH KHAN---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Finance Department and 7 others---Respondents

Writ Petition No.27935 of 2012, decided on 9th March, 2016.

(a) Punjab Stamp (Non-Judicial Refund, Renewal and Disposal) Rules, 1954---

----Rr. 32 & 5---Punjab Stamp Losses and Defalcation Rules, 1934, Part III, Chap. 8---Stamp papers---Refund of---Discrimination---Petitioner submitted application for refund of amount deposited for issuance of misplaced stamp papers which was refused---Contention of authorities was that for refund against un-used or spoiled stamp papers person concerned was bound to present the same in original---Validity---Public functionaries in the event of loss of stamp papers in transit had been bestowed with a remedy to seek write off whereas private persons had not been provided with such facility---Discriminatory treatment was being given by the public functionaries to their own brethren in the event of loss of stamp papers---When via media had been provided in the event of loss of stamp papers during transit by the public functionaries then petitioner could not be deprived of such facility---Collector while referring the matter to the Board of Revenue through Commissioner was not bound to forward the original stamp papers in every case rather in case of hardship, matter could be processed even without production of original stamp papers---Collector could forward the claim of a person without production of original stamp papers---Logic behind issuance of refund against the spoiled, destroyed or unused stamp papers was to accommodate a person who had not used the same---Neither the misplaced stamp papers were used nor anybody else had claimed refund in that regard---Request of petitioner could not be turned down merely on the ground that he could not produce the original misplaced stamp papers before the competent authority---Nobody could be left remediless---Masses could not be penalized due to stagnant attitude of legislator about new issues---High Court directed the authorities to issue refund irrespective of the fact whether original stamp papers had been produced or not---Government would be at liberty to have an undertaking from the petitioner to the effect that in case it was established (in future) that the misplaced stamp papers were used by him or somebody else or refund was claimed by somebody else against them, he would make the loss good---Constitutional petition was allowed in circumstances.

Zila Council, Sargodha v. Haji Irshad Ahmad 1994 CLC 79; H.R.C. No.40927-S of 2012 Application by Abdul Rehman Farooq Pirzada PLD 2013 SC 829 and Sarfraz Saleem v. Federation of Pakistan and others 2014 PLC (C.S.) 884 rel.

(b) Maxim---

----'Ubi jus ibi remedium'---Meaning---Where there is right there is a remedy.

(c) Public functionaries---

----Public functionaries were supposed to eliminate difficulties of public-at-large.

Sarfraz Ahmad Cheema for Petitioner.

Rana Shamshad Khan, Additional Advocate General with Muhammad Khalid Chief Inspector of Stamp for Respondents.

Date of hearing: 23rd February, 2016.

P L D 2016 Lahore 587

Before Ch. Muhammad Masood Jahangir, J

SARDARA AND ALLAH DITTA through Legal Heirs and others---Appellants

Versus

Mst. BASHIR BEGUM and another---Respondents

R.S.A. No.64 of 2008, decided on 25th January, 2016.

(a) Gift--

----Oral gift---Alleged donor an old illiterate village lady---Gift in favour of alien---Requirements---Gift mutation sanctioned on the basis of consent decree---Scope---Non-claiming of consequential relief---Effect---Judicial proceedings---Presumption of truth---Scope---Contention of plaintiffs was that gift mutation sanctioned through consent decree was illegal, void and ineffective upon their rights---Suit was dismissed concurrently---Validity---Nothing was on record as to when, where and before whom declaration of gift was made by the donor which was accepted by the donee and possession was delivered in lieu thereof---Oral gift was permissible but same was required to be proved by production of persuasive and trustworthy evidence---Trial Court proceeded to decree the suit merely on the basis of conceding written statement as well as conceding statement of donor without taking precautionary measures whether all such proceedings were being conducted without any coercion or misrepresentation on the part of donor-lady---Consent decree being an agreement between the parties to the lis when brought under challenge was required to be proved by beneficiary through production of convincing and cogent evidence---Trial Court without issuance of summons to the rival party for any further date of hearing received written statement of defendant-donor and after recording her conceding statement suit was decreed on the same day---Identification of a lady by the advocate before the court who had not been engaged through execution of power of attorney would have no sanctity in the eye of law---No other independent advice was available to the donor who was an illiterate and old age folk lady---Gift mutation for its completion required independent witnesses and identifiers which were not available to the donee in the present case---Principles.

Donee managed to get transferred the suit property through the alleged consent decree. Judicial Officer was required to exercise his jurisdiction while dealing with the case file as provided by the enactment. Court could not decide the lis without following the procedure and that too in a haste. Defendant being beneficiary of impugned decree was required to prove that donor had made a declaration of gift and same was accepted by her and possession was delivered to her in lieu thereof. No convincing and reliable evidence had been led by the defendant to prove the alleged transaction of gift. Neither any official of the court nor counsel who filed the suit on behalf of defendant were brought into witness-box by the defendant to prove that donor had appeared before the court. Fictitious decree was obtained by the defendants. Presumption of truth was attached to the judicial proceedings but when such proceedings were challenged then beneficiary was required to prove the same. Consent decree was not implemented till the death of donor. lf decree was passed with the free consent of donor then same must have got implemented in her life time. Revenue hierarchy was bound to implement decree in common assembly to be convened in the concerned revenue estate and same must have come in the knowledge of donor as well as her legal heirs. Donee was not related to donor and without assigning any reason gift in favour of alien was not valid. When legal heirs of donor were available then reasons should be highlighted as to why the donor made the gift in favour of an alien. Donee had failed to prove the transaction of oral gift, genuineness and validity of decree by withholding the best evidence. Plaintiffs being the legal heirs of donor could not be deprived of their share in the disputed property on technical grounds. If party seeking declaration had failed to claim consequential relief, it could not be non-suited on such count. Rules and regulations were made to foster the cause of justice and those were not to be interpreted to thwart the same. Court should not deny substantial justice on mere technicalities. When main factual issue had been determined in favour of a party on merits, his lis could not be defeated on the technical ground that he failed to claim a proper relief. Court being custodian of rights of litigants was vested with the powers to grant relief even if it had not been claimed/prayed for. Impugned judgments and decrees passed by both the courts below were not based on proper examination of material available on record which were set aside. Suit filed by the plaintiffs was decreed with further relief that they would be entitled for recovery of possession of suit property. Plaintiffs were directed by High Court to affix court fee of Rs.15,000/- on the plaint as well as on the memo of appeals within a period of two months otherwise their suit as well as present appeal would be deemed to be dismissed. Second appeal was allowed in circumstances.

Abdul Majid and others v. Khalil Ahmad PLD 1955 FC 38; Mt. Kapoori and 4 others v. Man Khan and 6 others 1992 SCMR 2298 and Haji Sultan Ahmed through Legal Heirs v. Naeem Raza and 6 others 1996 SCMR 1729 ref.

Habib and 8 others v. Haji Muhammad and 3 others PLD 1970 Kar. 495; Ghulam Akbar Khan v. Haji Sher Jan and others 1989 CLC 1789; Pir Dil and others v. Dad Muhammad 2009 SCMR 1268; Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938; Meraj Din v. Mst. Sardar Bibi and 5 others 2010 MLD 843; Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another 1991 SCMR 2114; Pakistan v. Khuda Yar and another PLD 1975 SC 678; Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR 318 and Muhammad Khan v. Rasul Bibi PLD 2003 SC 676 rel.

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

----S. 100---Second appeal---Scope---High Court could rebuff the concurrent findings of courts below if same were based on improper and perverse appreciation of evidence.

Khushi Muhammad v. Liaquat Ali PLD 2002 SC 581 and Iftikhar v. Khadim Hussain PLD 2002 SC 607 rel.

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

----Arts. 129(e) & 58---Judicial proceedings---Presumption of truth---Scope---Presumption of truth was attached to the judicial proceedings but when such proceedings were challenged, beneficiary was required to prove the same.

(d) Administration of justice---

----Technicalities could not be allowed to create any hurdle in the way of substantial justice.

(e) Administration of justice--

----Court could mould relief according to merits of the case.

Sheikh Naveed Shahryar, Humaira Bashir Ch. and Javed Imran Ranjha for Appellants.

Abid Hussain Minto for Respondent No.1.

Dates of hearing: 18th December, 2015 and 25th January, 2016.

P L D 2016 Lahore 602

Before Shahid Waheed, J

Mst. RASHIDAN BIBI through Legal Heirs and others---Petitioners

Versus

AMAN ULLAH KHAN BANGSH through Legal Heirs and another---Respondents

Writ Petition No.26684 of 2015, heard on 14th October, 2015.

Civil Procedure Code (V of 1908)---

----S. 33 & O.XX. R.6---Partition Act (IV of 1893), S.4---Court Fees Act (VII of 1870), S.11---Suit for partition---Non-preparation of decree due to non-submission of stamp papers---Effect---Decree was not drawn for non-submission of stamp papers by the court below---Validity---Decree should follow the judgment when same was passed---Drawing up of decree could not be withheld by the court---Certified copy of decree had to be supplied to the parties to enable them to file appeal---Decree would not be executable until court-fee was paid---Court could not stop preparation of final decree of the suit for partition pending payment of stamp duty or other taxes---Impugned orders passed by the courts below were set aside which were passed without lawful authority having no legal effect---Application for drawing up of decree-sheet was allowed---Constitutional petition was accepted in circumstances.

Kedar Nath Goenka v. Chandra Mauleshwar Prasad Sindh AIR 1932 Patna 228; Siri Ram and others v. Jagan Nath and others AIR 1957 Punjab 66; Faqir Muhammad Khan v. Senior Member, Board of Revenue and 5 others 1990 MLD 575; Khawaja Muhammad Arif v. Mrs. Tahira Asif and others PLD 2005 SC 972; Velagala Sriramareddi and others v. Karri Sriramareddi AIR 1941 Mad. 929 and Mirshebmiya Bahadarmiya Sheikh v. State of Gujrat AIR 1981 NOC 215 rel.

Nauman Qureshi for Petitioners.

Muhammad Zia ud Din Ansari for Respondents.

Date of hearing: 14th October, 2015.

P L D 2016 Lahore 607

Before Mrs. Erum Sajad Gull, J

Mrs. NIGHAT SULTANA---Petitioner

Versus

DISTRICT CO-ORDINATION OFFICER LAHORE and others---Respondents

Writ Petition No.34533 of 2015, decided on 11th November, 2015.

(a) Constitution of Pakistan---

----Art. 4---Liberty of a person---Principle---Citizen cannot be deprived of his liberty on the whims of any person.

(b) Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Preventive detention---Statutory representation---Principle---Husband of the petitioner was put into preventive detention for 30 days on the ground that he was a notorious gambler---Authorities raised an objection that petition was not maintainable as remedy of statutory representation was available---Validity---Authority without applying its mind, mechanically passed an order on the recommendation of police even though the detenu was on bail and no such situation had arisen to have deprived the detenu of his liberty---Police could not be allowed to use the backdoor of arresting a person if such person had already been granted bail by a competent court---Detention in question was a sheer violation of law and the Constitution---Order passed by District Coordination Officer was coram non judice therefore, the detenu was not required to file a statutory representation as required by S.3(6) of Punjab Maintenance of Public Order Ordinance, 1960---High Court set aside the detention order passed by District Coordination Officer as the same was illegal and passed without lawful authority---Petition was allowed in circumstances.

Liaqat Ali Khan v. District Coordination Officer, Bahawalpur and 3 others PLD 2012 Lah. 336; Muhammad Nadeem v. Government of Punjab through Home Secretary and another PLD 2010 Lah. 371; Haq Dad Khan v. District Magistrate, Mianwali 1997 PCr.LJ 1288 and Syed Mubbashar Raza v. Government of Punjab through Secretary Home Department and 2 others PLD 2015 Lah. 20 ref.

Muhammad Zahid Murtaza for Petitioner.

Adnan Tariq, Assistant Advocate-General (on Court's call).

Date of hearing: 11th November, 2015.

P L D 2016 Lahore 610

Before Mahmood Ahmad Bhatti, J

Haji MUHAMMAD ABBAS---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

C.R. No.1461 of 2015, heard on 30th June, 2015.

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

----O. XXXVII, R.1---Money suit based on negotiable instrument---Summary procedure---Nature and scope---Trial Court was to conduct proceedings within framework of O. XXXII, C.P.C. which in many respects stood apart from rest of C.P.C. and such proceedings conducted thereunder were to be allowed to move at a snail's pace and treated like one's in a regular suit then the same would defeat very purpose of Legislature in enacting O. XXXVII, C.P.C.

(b) Constitution of Pakistan---

----Art. 14---Civil Procedure Code (V of 1908), O.XVII, R.3---Adjournments---Constitutional guarantee of dignity of person---Scope---Witnesses of plaintiff were made to wait for all day long only to be returned and issues were framed on 3-1-2013---While evidence for plaintiff was not allowed to be recorded until 28-4-2014---Thirty dates were fixed between for recording of evidence and barring a few dates, witnesses for plaintiff remained in attendance and furthermore, even after recording of witnesses of plaintiff on 28-4-2014, they had to show up on 16 more dates so as to present themselves for cross-examination---High Court observed that such a case could be curtain raiser and it threw light on environment in which subordinate courts were functioning---Presiding officers were made to play ball with counsel and to conduct proceedings of a case at their convenience and no one came to rescue the witnesses and nobody paid heed to their discomfort while they had to spend all day long standing outside courts---Dignity of man guaranteed in Art. 14 of Constitution in such cases had been reduced to a farce.

Indus Steel Pipes (Public) Limited through Managing Director v. Khalid Enterprises through Sole Owner and Proprietor 2003 YLR 2551; Muhammad Javed and another v. The State and another 2006 PCr.LJ 1170 and Nadeem Ahmed v. Altaf Hussain and others 2014 MLD 921 ref.

Haji Muhammad Tayyab v. Muhammad Sharif Mali, Dy. Superintendent Customs Intelligence and another 1996 SCMR 1967 rel.

(c) Counsel and client---

----Contention of petitioner was that he was not to be penalized for conduct of his counsel---Held, that it was the petitioner who engaged counsel of his choice and he had ample opportunities to change the counsel---Fact that petitioner retained him as his counsel up to the last moment goes a long way to show confidence in such counsel---High Court observed that in such circumstances petitioner had to bear responsibility for acts and omissions of his counsel and he could not turn around to distance himself from questionable conduct of his counsel. [p. 616] C

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

----S. 114---Review---Scope---Scope for review for an order/judgment was narrow and such scope of review was well-settled.

Ghulam Murtaza v. Abdul Salam Shah and others 2010 SCMR 1883, Abdul Majeed and another v. Chief Settlement Commissioner and others 1980 SCMR 504; Mst. Kalsoom Malik and others v. Assistant Commissioner and others 1996 SCMR 710; Noor Hassan Awan v. Muhammad Ashraf 2001 SCMR 367; Ayyaz Baig alias Bau Chuhanwala v. The State 2002 SCMR 380, Messrs Pakistan International Airlines Karachi v. Inayat Rasool 2004 SCMR 1737; Sh. Muhammad Amjad v. The State PLD 2004 SC 32; Syed Wajhul Hassan Zaidi v. Government of the Punjab and others PLD 2004 SC 801; Habib ul Haque alias Ajar v. Umer Gul through L.Rs. and others 2009 SCMR 335; Mst. Kabir un Nisa and another v. Settlement Commissioner Lands, Lahore and 3 others 1975 SCMR 493; Abdul Ghaffar Abdul Rehman and others v. Asqhar Ali and others PLD 1998 SC 363; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (overseas) Ltd and another PLD 1997 SC 865; Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829 and Haji Muhammad Zaman Khan v. Member Board of Revenue Punjab and others 2014 SCMR 164 rel.

Arshad Farooq for Petitioner.

Respondent No.2 proceeded ex parte.

Date of hearing: 30th June, 2015.

P L D 2016 Lahore 617

Before Ch. Muhammad Masood Jahangir, J

MEHRAM KHAN and others---Petitioners

Versus

GULZAR AHMAD and others---Respondents

Writ Petition No.3204 of 2010, decided on 16th February, 2016.

(a) Mental Health Ordinance (VIII of 2001)---

----S. 32---Punjab Land Revenue Act (XVII of 1967), S. 163---Mentally disabled person---Review of mutation by the Revenue Officer---Scope---Revenue hierarchy was bound to ensure that its record was free from element of fraud---Whenever fraud was unfolded to the Revenue Officer or brought to his notice at any time, he should rectify the revenue record---Question of limitation would be irrelevant in such like matters---Medical Superintendent had declared the respondent to be mentally retarted person---Revenue Officer was justified in recalling the impugned mutations---Mentally disabled person was deprived of his valuable property and revenue hierarchy was perfect in exercise of its jurisdiction---Revenue Officer was appointed as 'Receiver' of said land who would take charge/possession of the same and invest the income of the property upon the treatment and upbringing of respondent until and unless his manager was appointed by the Protection Court---Constitutional petition was dismissed in circumstances.

Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; United Bank Limited and others v. Noor-un-Nisa and others 2015 SCMR 380; Dildar Ahmad and others v. Member (Judicial-III) BOR, Punjab, Lahore 2013 SCMR 906; Muhammad Amir and others v. Mst. Beevi and others 2007 SCMR 614; Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618 and Mst. Zulaikhan Bibi through L.Rs and others v. Mst. Roshan Jan and others 2011 SCMR 986 ref.

(b) Fraud---

----Fraud would vitiate all solemn acts and any instrument/mutation/ judgment or decree obtained through fraud would be nullity in the eye of law and had to fall down whenever it was challenged.

Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618 and Mst. Zulaikhan Bibi through L.Rs and others v. Mst. Roshan Jan and others 2011 SCMR 986 rel.

Malik Abdul Wahid for Petitioners.

Mohammad Hanif Dahar for Respondent No.1.

P L D 2016 Lahore 622

Before Mirza Viqas Rauf, J

MUHAMMAD RAMZAN---Petitioner

Versus

ALI HAMZA and others---Respondents

Writ Petition No.15699 of 2014, decided on 25th February, 2016.

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

----Ss. 13 & 5, Sched---Maintenance allowance---Grand father, liability of---Execution petition---Procedure---Execution of a decree against a person who was not party to the suit---Scope---Minors filed suit for maintenance allowance against their father which was decreed---Judgment debtor (father) was sent to civil prison till the satisfaction of decree and property belonging to the grandfather was ordered to be attached---Contention of grandfather was that he was not party to the suit and decree could not be executed against him---Validity---Liability of grandfather to maintain his grandchildren would start when father was poor and infirm and mother was also not in a position to provide maintenance to her children---Such liability of grandfather was dependent upon the fact that he was in easy circumstances---If father and mother were alive then grandfather could not be held responsible for maintenance of his grandchildren unless it was first determined that he was in easy circumstances---Family Court was bound to first adjudicate and determine such fact which could not be done unless he was a party to the suit having fair opportunity to explain his status and position---No decree could be executed against a person who was not a party to the proceedings---Executing court could not go beyond the decree---Decree passed by the Family Court would remain in field to the extent of actual judgment-debtor even after suffering civil prison unless it was satisfied---Process of execution of decree could not shift towards the grandfather only on account of mere fact that judgment-debtor had failed to discharge his liability under the decree--Family Court could adopt the procedure provided in Civil Procedure Code, 1908 for execution of its decree---Judgment-debtor could be sent to civil prison for one year--Impugned order for attachment of property of grandfather was un-warranted by law which was declared illegal and unlawful---Constitutional petition was allowed in circumstances.

Abdullah v. Jawaria Aslam and 2 otehrs 2004 YLR 616 distinguished.

Ghulam Nabi v. Muhammad Asghar and 3 others PLD 1991 SC 543; Shafqat Ullah and 2 others v. Land Acquisition Collector (D.C.), Haripur and 2 others 2006 CLC 1555 and Irshad Masih and others v. Emmanuel Masih and others 2014 SCMR 1481 rel.

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

----Ss. 17 & 13---Civil Procedure Code (V of 1908), Ss. 10 & 11 & O.XXI, R.30---Execution of decree---Provisions of Civil Procedure Code, 1908--Applicability-Scope---Provisions of Civil Procedure Code, 1908 except Ss. 10 & 11 though had been ousted from the purview of Family Courts Act, 1964, however, Family Court might follow the procedure as contained in Civil Procedure Code, 1908 for the execution of decree.

Rao M.I., Zafar Khan for Petitioner.

Saeed Ullah Khan for Respondents.

Date of hearing: 11th February, 2016.

P L D 2016 Lahore 629

Before Qazi Muhammad Amin Ahmed and Raja Shahid Mehmood Abbasi, JJ

MUHAMMAD FARHAN KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN and another---Respondents

Writ Petition No.1243 of 2016, decided on 30th May, 2016.

Pakistan Army Act (XXXIX of 1952)---

----S. 80(3)---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), Chap. II [Ss.6 to 27] & Chap.XV [Ss.177 to 199-B]---Constitution of Pakistan, Art. 199---Constitutional petition---"Act of terrorism"---Territorial jurisdiction of High Court---'Dominant purpose' of filing constitutional petition---Relevance---Judicial review---Scope---Field General Court Martial, convened at 'Karachi', convicted the petitioner/accused and sentenced him to punishments, including death penalty---Court of Appeal at 'Rawalpindi' rejected the appeal against the same, and the mercy petition filed against the same before the Chief of Army Staff had met the same fate---Petitioner challenged the conviction and sentences through constitutional petition and contended that both Sindh High Court as well as Rawalpindi Bench of Lahore High Court had concurrent jurisdiction in the matter---Validity---Authority of the High Court to judicially review the vires of an act or proceedings taken in connection with the affairs of the Federation, within its territorial jurisdiction, could not be doubted; however, the constitutional arrangement contemplated under Art.199 of the Constitution were to be faithfully observed in order to uphold the principle of judicial comity and harmony---In order to determine the question of territorial jurisdiction, the 'dominant purpose' behind recourse to law was to be taken into consideration---'Dominant purpose' that brought the petitioner before High Court (Rawalpindi Bench) was repudiation of a judgment originally rendered within the territorial limits of Sindh High Court and the proceedings drawn up subsequent thereto were in continuation thereof---Impugned conviction and sentences awarded to the petitioner had been returned by a Tribunal convened in the Province of Sindh; therefore, mere affirmation of the same by a functionary at Rawalpindi would not take the petitioner's case out of the territorial jurisdiction of Sindh High Court to be concurrently dealt with by some other High Court, as the Court of Appeals or office of the Chief of Army Staff were not place-specific, designated under the law---Provisions of C.P.C. were although applicable in writ proceedings, nonetheless, in criminal matters, arrangements envisaged under Chaps. II & XV of Criminal Procedure Code, 1898 could not be lost sight of, which provided ordinary place of inquiry and trial of offences as well as forums to a convict---Constitutional petition was dismissed accordingly.

Flying Craft Paper Mills (Pvt.) Ltd. v. Central Board of Revenue Islamabad 1997 SCMR 1874; Trading Corporation of Pakistan (Pvt.) Ltd. v. The Pakistan Agro Forestry Corporation (Pvt.) Ltd. and another 2000 SCMR 1703 and Anoud Power General Ltd. v. Federation of Pakistan and others PLD 2001 SC 340 ref.

Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334 and Aqeel Kareem Dhedhi v. National Accountability Bureau through Chairman and 3 others PLD 2015 Sindh 1 rel.

Inam-ur-Rahman and Muhammad Wasif Khan for Petitioner.

Malik Abdul Jalil, Standing Counsel (on court call).

P L D 2016 Lahore 633

Before Atir Mahmood, J

NEWZELAND ELECTRONICS TRADING COMPANY LCC through Managing Director---Appellant

Versus

NADEEM FAROOQ and another---Respondents

F.A.O. No.49 of 2015, heard on 31st May, 2016.

Civil Procedure Code (V of 1908)---

----S. 44-A---Notification SRO 208(I)/2007, dated 6-3-2007---Execution of foreign decree---Term 'superior court'---Connotation---Appellant was holder of decree passed by Federal Court of a foreign country---Appellant filed application for execution of the decree which was passed against respondent---District Judge dismissed execution application on the ground that the foreign court which passed the decree was not 'superior court' in terms of S.44-A, C.P.C.---Validity---Federal Court of a foreign country was court of appeal as it could hear appeals arising out of judgments of the local courts, since it was a court of appeal, therefore, it was 'superior court' and its decree was executable in Pakistan under S.44-A, C.P.C.---Although decree in question was not passed by Federal Court of foreign country in appeal, but the same was passed in its original jurisdiction i.e. as a court of first instance, yet it being a court of appeal was a 'superior court' for the purposes of S.44-A, C.P.C. and any decree passed by that court whether in its original jurisdiction or in its appellate jurisdiction could be executed in Pakistan---Decree in question could be executed in Pakistan to offer fruit of decree to appellant passed in its fovour by Federal Court of foreign country being superior court of that country as provided under Notification No.SRO 208(I)/2007, dated 6-3-2007---High Court set aside the order passed by District Judge as the same was not sustainable in the eye of law---Appeal was allowed in circumstances.

Shaukat Rauf Siddiqui for Appellant.

Malik Muhammad Kabir for Respondents.

Date of hearing: 31st May, 2016.

P L D 2016 Lahore 637

Before Amin-ud-Din Khan and Shams Mehmood Mirza, JJ

Messrs POWER CONSTRUCTION CORPORATION OF CHINA LIMITED through Authorized Representative---Appellant

Versus

PAKISTAN WATER AND POWR DEVELOPMENT AUTHORITY through Chairman and 2 others---Respondents.

I.C.A. No.1114 in W.P.No.12535 of 2016, heard on 29th June, 2016.

(a) Constitution of Pakistan--

----Art. 199---Constitutional jurisdiction of High Court---Administrative action---Judicial review---Nature and scope---Power to judicially review an administrative action was not concerned with the merits of the decision in respect of which judicial review was sought, but the decision making process itself---Remedy of judicial review was concerned with setting aside of the order/action and was remittal in nature, unlike appeal where the Court could vary the decision and could also substitute its decision for that of the decision maker.

(b) Contract---

----Interpretation of---Principles---Scope---Fundamental and natural precept of contract interpretation was that agreements were to be construed in accordance with the parties' intent---Words of the contract, however, could not be interpreted in a vacuum, and context was provided by other parts of the contract, the circumstances in which the contract was made, and the commercial purpose of the contract as objectively understood---First step in the interpretive process of identifying the true meaning of a contractual provision was to consider the normal meaning of the words used therein.

Melanesian Mission Trust Board v. Australian Mutual Provident Society (1996) 74 P&CR 297 rel.

(c) Admission--

----Principle that an admission which was wrong in point of fact or was made in ignorance of a legal right had no binding effect on the person making it, however, said principle could not apply to the submissions or concessions made by counsel during course of arguments with regard to legal issues or the inferences required to be drawn from documents.

Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 rel.

(d) Public Procurement Rules, 2004--

----Rr. 5 & 3---Public procurement---International and inter-governmental commitments of the Federal Government---Appellant impugned order whereby its constitutional petition against Corporation's disqualification from the pre-qualification process for procurement related to a Power Project, was dismissed---Contention of the appellant, inter alia, was that it had been discriminated against by Authority---Validity---Perusal of the financing agreement for the project, entered into between the Federal Government and the World Bank and further perusal of the World Bank's "Guidelines: Procurement of Goods, Works, and Non-Consulting Services under IBRD Loans and IDA Credits and Grants (2011)" revealed that the said Guidelines gave carte blanche to the World Bank in regard to choice of proposed bidders and stipulated that pre-qualification process undertaken by Authority was subject to prior approval of the World Bank---Impugned disqualification notice issued to the appellant Corporation was merely consequential to the decision of the World Bank---No right came to vest in the appellant by reason of submitting its bid as its status remained of a proposed bidder---Financing agreement and the Guidelines were not subject to any municipal law of Pakistan, and therefore, the same came within the purview of R. 5 of the Public Procurement Rules, 2004, as the financing agreement for the project was entered into by the executive authority of the Federal Government and was not a piece of legislation----High Court, in intra court appeal, observed that the question requiring determination was whether the appellant possessed the right to challenge decision of the World Bank in rejecting its name from list of potential bidders as the controversy arose out of a clause of the Guidelines rather than any law or action by the Authority---High Court further observed that it was rightly held by single Judge of High Court that the World Bank was not a "person" performing functions in connection with the affairs of the Federation, a Province or local authority, therefore no directions could be issued to it in exercise of powers of the High Court under Art.199 of the Constitution---Intra court appeal was therefore dismissed, in circumstances.

Guidelines for Procurement of Goods, Works and Non-Consulting Services under IBRD Loans and IDA Credits and by World Bank Borrowers; Abdullah Mangi and another v. Pakistan International Airlines and others 2005 SCMR 445; Melanesian Mission Trust Board v. Australian Mutual Provident Society (1996) 74 P&CR 297 and Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 rel.

Salman Aslam Butt, Shahzad Atta Elahi and Muhammad Shoaib Rashid for Appellant.

Saad Rasool for Respondents Nos. 1 and 2.

Imran Aziz Khan, Deputy Attorney General for Respondent No.3.

Tahir Mahmood Khokhar, Standing Counsel.

Date of hearing: 29th June, 2016.

P L D 2016 Lahore 652

Before Muhammad Farrukh Irfan Khan, J

Kh. MUHAMMAD ISLAM---Petitioner

Versus

SPECIAL JUDGE RENT and others---Respondents

Writ Petition No.22232 of 2016, decided on 1st July, 2016.

Punjab Rented Premises Act (VII of 2009)-

----Ss. 8 & 9---Tenancy not conforming with the provisions of the Punjab Rented Premises Act, 2009 --- Rent Tribunal, jurisdiction of---Scope---By virtue of S.8 of the Punjab Rented Premises Act, 2009, it was the requirement of the law to bring all the existing tenancies in conformity with the provisions of the Punjab Rented Premises Act, 2009---However, non-conformity of the existing tenancies with the provisions of the said Act did not oust the jurisdiction of the Rent Tribunal to adjudicate upon the matter rather it placed a restriction upon the Rent Tribunal not to proceed with the matter unless the fine as mentioned in S.9 of the said Act was paid---Even if the tenancy was not in consonance with the provisions of the Punjab Rented Premises Act, 2009, the Rent Tribunal had exclusive jurisdiction to adjudicate upon the rent matter subject to fulfillment of requirement of S.9 of the said Act---High Court directed that in case the requirements of S.9 were not fulfilled, the Rent Tribunal shall halt further proceedings and first require the party to comply with the mandatory provisions of S.9 within the specified period of time and then proceed with the matter in accordance with the law---Constitutional petition was dismissed accordingly.

Rana Abdul Hameed Talib v. Additional District Judge, Lahore and others PLD 2013 SC 775 ref.

Dr. Abdul Basit for Petitioner.

P L D 2016 Lahore 655

Before Sayyed Mazahar Ali Akbar Naqvi and Malik Shahzad Ahmad Khan, JJ

MUHAMMAD ASLAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.1887 and Murder Reference No.468 of 2009, heard on 20th January, 2016.

Penal Code (XLV of 1860)----

----S. 295-C----Use of derogatory remarks etc. in respect of Holy Prophet (P.B.U.H)---Appreciation of evidence---Benefit of doubt---Tazkia-tul-Shahood, test of---Person, who made any attempt to segregate the honour or even had any doubt regarding the supremacy of the last Prophet (P.B.U.H.) had defiled/disregarded the basic postulates of the Muslim faith---Accused, in the present case, was a petty shopkeeper in a village belonging to a lower middle class, who might not have been in a position to know the meaning of the alleged blasphemous words---Application for registration of the FIR had been submitted to the police with a delay of five days, for which no plausible explanation had been rendered---Complainant had failed to point out the name of the person, who scribed the application for registration of the FIR---Complainant was also not willing to disclose the names of the 'Ulema', who had sanctioned the lodging of the crime report with the local police---High Court, in circumstances, declined to observe about the social and religious statuts of the 'Ulema', who had given authority to the complainant to initiate the proceedings and were instrumental in writing the application for registration of present case---Prosecution had failed to produce any witness from the nearby shops to support its version, except the witness who had admitted to have been employed at the workshop of the complainant and who had made his statement before the police after 5/6 days of the occurrence---Pamphlet of 'Naat Khawani', which the complainant was allegedly reading when the accused had allegedly uttered blasphemous words, had not been taken into possession by the Investigation Officer, nor had the same been produced during the course of the trial, which created serious suspicion about the initiation of the proceeding by the prosecution---Accused, both at the time of his arrest and while making statement under S.342, Cr.P.C had taken the plea that he had not uttered the blasphemous words and denied the allegations contained in the crime report, stating that he was Sunni Muslim by faith and could not even think to utter blasphemous words or defiling the Holy Personality of the Universe---Accused, while explaining his faith, had stated that he had deemed himself to be the servant of servants of the Holy Prophet (P.B.U.H)---Prosecution, on careful and cautious scrutiny, revealed nothing but ignorance, lack of adequate knowledge, a victim of propaganda as well as sheer prey of exploitation with no mantal faculty of realization---High Court observed that present matter might be the most unfortunate aspect of the judicial scrutiny before a court of law in the given circumstances, and that there had been an increased number of incidents with the allegation of blasphemy and element of mischief involved therein---Reasons of such issues could be religious, sectarian and blackmailing for monetary gains, and the same could also be turned into a potential instigation of some terrorist activities in the society---Factors definitely existed in the society, which used the issue of blasphemy as a tool to satisfy their ulterior motives and extraneous considerations---In the present era, nation could not afford to face such like mischief, as the same might damage the unity, harmony and strength of the nation as a whole---Rational-cum-stern action was the demand of the day to evaluate and curb said tendency---Being a believer, that was the bounden duty (of court) to decide the case by minutely going through the evidence brought forth on record within the parameters of prevailing law---Court might err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion---To maintain impugned conviction/sentence, in circumstances, would be against the canons of safe administration of criminal justice, especially, when none amongst the complainant and the other prosecution witnesses had adequate knowledge to be tested on the touchstone of Tazkia-tul-Shahood---High Court, extending benefit of doubt, acquitted the accused and directed the Inspector General of Police, to ensure that when such cases were reported, the same would be evaluated in the spirit of present judgment, (and) while assigning the investigation of the case, the Joint Investigation Team would be associated with a religious scholar of immense repute for guidance, ensuring a fair, transparent and unbiased investigation, which otherwise was a Constitutional right guaranteed under the Constitution---Appeal against conviction was allowed accordingly.

Al-Quran Surah Al-Ahzab, Verse No.56; Sura Al-Hujurat (49) Verse 2 & 3; Sura a"l-Mujadla, Verse No.12; Sheikh Saadi, Mirza Ghalib; Allama Muhammad Iqbal; Ayub Masih v. the State PLD 2002 SC 1048 and Nahjul Balagha rel.

Muhammad Sohail Dar for Appellant.

Nisar Ahmed Virk, DDPP for the State.

Ch. Ghulm Mustafa and Khawaja Ibrar Majjal, Hameed Ahmad Chaudhry, Muhammad Toqeer Ashraf, Tahir Sultan Khokhar and Nadeem Asghar Nadeem for the Complainant.

Date of hearing: 20th January, 2016.

P L D 2016 Lahore 667

Before Sardar Muhammad Shamim Khan, Kh. Imtiaz Ahmad and Muhammad Farrukh Irfan Khan, JJ

Messrs HUDAIBYA PAPER MILLS LTD. and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.2617 of 2011, decided on 11th March, 2014.

Per Sardar Muhammad Shamim Khan, J, on reference on difference of opinion between Muhammad Farrukh Irfan Khan and Kh. Imtiaz Ahmad, JJ on an observation made by Kh. Imtiaz Ahmed, J that "NAB Authorities would be competent to re-investigate the matter in accordance with law".

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

----Ss. 9(v) & 16(a)---Criminal Procedure Code (V of 1898), S. 173---Financial resources disproportionate to known sources of income---Reference sent by National Accountability Bureau (NAB) --- Quashment of reference---Whether after quashment of the reference NAB authorities could be permitted to re-investigate the matter---After filing of reference against accused persons they were neither summoned to join the investigation nor called upon to account for their resources---Reference against them was quashed by a Division Bench of the High Court, however at the time of quashing the reference one of the judges of the Division Bench made an observation that "NAB authorities were competent to proceed against the accused if investigation was again initiated in accordance with law"---Legality---Per Sardar Muhammad Shamim Khan, J [Referee judge]: National Accountability Ordinance, 1999 or the Criminal Procedure Code, 1898 did not contain any provision authorizing the Court to order for re-investigation after filing of reference or after submitting report under S.173 Cr.P.C. before the competent Court of law and to call a person to join fresh investigation after the quashment of the proceedings---Furthermore the Federal Government or NAB during arguments of constitutional petition before Division Bench of the High Court did not make any request for allowing them to re-investigate the matter, therefore, there was no reason for the judge to make the impugned observation---Moreover S.16(a) of National Accountability Bureau Ordinance, 1999 provided that case against an accused shall be disposed of within 30 days---Present reference was filed before the Accountability Court about 12 years ago and allowing NAB authorities for re-investigation of the reference after so many years would be contrary to the scheme of law---[Per Muhammad Farrukh Irfan Khan, J: Impugned observation was likely to be mistaken as an express permission by the High Court to initiate investigation afresh against the accused persons, which the High Court was not ordering---Such an observation would give a premium to the prosecution of their own fault and provide them another opportunity to fill up their lacunae for victimizing the accused persons---Question as to whether an investigation could be initiated again after 12 years was a question which had not been raised during present proceedings, nor had the Division Bench heard arguments on the issue, therefore passing the impugned observation, without hearing the accused persons on the issue, would be prejudicial to them and violate the principle that "no person shall be condemned unheard"]---Impugned observation that "NAB Authorities were competent to proceed against the accused if investigation was again initiated in accordance with law" was superfluous and uncalled for and accordingly set aside. [Majority view]

Accused persons were alleged to have possessed financial resources disproportionate to known sources of income. During pendency of the case accused persons were exiled to a foreign country. Trial Court adjourned the case sine die. After accused persons returned back to Pakistan, they were neither summoned to join the investigation and face trial nor called upon to account for their resources. Accused persons filed the present Constitutional petition for quashment of reference, whereas National Accountability Bureau (NAB) filed an application for revival of the reference.

Division Bench of the High Court disposed of the constitutional petition by finding that the reference was filed against the spirit of section 9 of National Accountability Bureau Ordinance, 1999, which provision clearly meant that joining of the accused in an investigation was condition precedent, and that the investigation so conducted by the NAB authorities was absolutely illegal, as despite the availability of the petitioners, they were never required to join the investigation or to account for the resources. Division Bench of the High Court quashed the reference against the accused persons and subsequent proceedings before the court, however, one of the judges on the Division Bench (Kh. Imtiaz Ahmad, J) observed that the NAB authorities were competent to proceed against the accused persons if the investigation was again initiated in accordance with law. Other judge on the Division Bench (Muhammad Farrukh Irfan Khan, J) was of the view that such an observation was superfluous and uncalled for as it would give a premium to the prosecution of their own fault and provide them another opportunity to fill up their lacunas for victimizing the accused persons.

Per Sardar Muhammad Shamim Khan, J [Referee judge]

National Accountability Ordinance, 1999 or the Criminal Procedure Code, 1898 did not contain any provision authorizing the Court to order for re-investigation after filing of reference or after submitting report under section 173 Cr.P.C. before the competent Court of law and to call a person to join fresh investigation after the quashment of the proceedings. Impugned observation, whereby, NAB was empowered to re-investigate the matter, was therefore beyond the jurisdiction of the court.

When report under section 173, Cr.P.C. was forwarded to Magistrate for taking cognizance of the offence, the Magistrate could direct the Officer Incharge of the Police Station to make further investigation keeping in view the provision of section 173(2), Cr.P.C. Even after submission of report under section 173(2) Cr.P.C., police had the right to further investigation but not fresh investigation or re-investigation. Although, under special circumstances re-investigation could be permitted after submission of report under section 173 Cr.P.C. and during the trial but findings of such investigation were just an opinion of the police and Court had to decide the case after recording evidence of the parties. However, in the present case, the effect of quashing of proceedings was that said proceedings were "annulled"/"void" for all purposes. After the quashment of the reference it had become non-est and non-existent.

Perusal of record further revealed that NAB or Federal Government during the arguments of constitutional petition before Division Bench of the High Court did not make any request for allowing them to re-investigate the matter, therefore, there was no reason for making an observation which would amount to giving free hand to NAB authorities and premium to the prosecution of its own faults and provide them an opportunity to fill up their lacunae and equip them with better tool for victimization of the accused persons after a lapse of twelve years which was not permissible in the law.

Section 16(a) of National Accountability Bureau Ordinance, 1999 provided that an accused shall be prosecuted for an offence under the Ordinance in the court and the case shall be heard from day to day and shall be disposed of within 30 days. The reference against the accused persons was filed before the Accountability Court, in the year, 2000 which should have been decided within 30 days as it was a mandatory provision of law. Impugned observation allowing NAB authorities for re-investigation of the reference, after about 12 years of filing of reference, would be contrary to the scheme of law.

Per Muhammad Farrukh Irfan Khan; J

Explicit observation that the "NAB authorities were competent to proceed against the petitioners if the investigation was again instituted in accordance with law" was likely to be mistaken as an express permission by the High Court to initiate investigation afresh against the accused persons, which the High Court was not ordering and such an observation/clarification was likely to be misused for victimization, which could not be allowed against any person.

Division Bench of the High Court had not heard arguments on the question as to whether NAB authorities were competent to proceed against the accused persons if the investigation was again instituted in accordance with law, and therefore no observation such as the impugned observation could be expressly given in the present proceedings. As to whether an investigation could be again initiated after 12 years was a question which had not been raised by the respondents, nor had the Division Bench heard arguments on this issue and if such an observation was given by the High Court as a clarification or otherwise, without hearing them on this issue, that would be prejudicial to the accused persons and violate the principle that no person shall be condemned unheard. Whether or not such an investigation or re-investigation could be initiated after 12 years on the same charges, in particular when the accused were available for investigation at relevant time but were not associated in the investigation, was not of ordinary significance but had to be carefully and cautiously adjudicated on the touchstone of appropriate law and judicial precedents.

After quashing the reference, the impugned observation/ clarification would not only amount to giving a premium to the prosecution of their own fault but also provide them another opportunity ostensibly to fill up their lacunae and equip them with better tools for combating/victimizing the accused persons at the hands of the NAB authorities, which obviously was not the intent and purport of the law. Impugned observation/clarification was superfluous and uncalled for.

Impugned observation was set-aside accordingly.

Per Sardar Muhammad Shamim Khan, J [Referee judge]

(b) Words and phrases ---

---- "Quash" --- Meaning and connotation.

Per Kh. Imtiaz Ahmad, J

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

----S. 9---Corruption and corrupt practices---Investigation by National Accountability Bureau (NAB)---Mandatory to join the accused during the investigation---Investigation conducted by NAB authorities without summoning the accused persons, in spite of their availability, was absolutely illegal---Reference was quashed by the High Court accordingly. [Majority view].

Section 9 of National Accountability Ordinance, 1999 clearly implied that the accused could only be said to commit or to have committed the offence of corruption or corrupt practices which he could not reasonably account for meaning thereby that joining him in the investigation was condition precedent because if he could reasonably account for the said allegations then he had committed no offence. In the present case in spite of the fact that all the accused persons were available, they were never joined in the investigation.

In the report submitted by NAB it was mentioned that the questionnaire was issued to accused persons but no such questionnaire was available on the record and NAB had conceded that the accused persons were never summoned to join the investigation. By violating the provisions of section 9(v) of the National Accountability Bureau Ordinance, 1999, the investigation so conducted by the NAB authorities was absolutely illegal, as in spite of availability of the accused persons, they were never required to join the investigation or to account for the resources. Reference against accused persons and subsequent proceedings were quashed by the High Court accordingly.

Nadeem Sarwar v. Station House Officer Saddar, Hafizabad and others 2000 YLR 756; Liaqat Ali and others v. State 1998 PCr.LJ 216; Bank of Punjab and another v. Haris Steel Industries (Pvt) Ltd. and others PLD 2010 SC 1109; Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144 and Hakim Ali Zardari v. The State 2007 MLD 910 ref.

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

----S. 26(e) [as it existed before the National Accountability Bureau (Second Amendment) Ordinance, 2000]---Corruption and corrupt practices---Statement of approver/accomplice recorded before the Magistrate---Evidentiary value---Statement of approver was recorded on 15.10.1999, and in terms of S.26(e) of the National Accountability Ordinance, 1999, at the relevant time such statement could only be recorded by the Chairman NAB or the court---Magistrate was not competent to record such statement at the relevant time---Through the National Accountability Bureau (Second Amendment) Ordinance, 2000 promulgated on 5.7.2000, much after the recording of statement by the Magistrate, the amendment in S.26(e) was made whereby words "Chairman NAB or the 'court" were substituted by the word "Magistrate"---Said amendment did not have retrospective effect and so it stood established that the statement of approver/accomplice, in the present case, was not recorded by a person authorized by law, so it lost its value and significance---Reference against accused persons and subsequent proceedings were quashed by the High Court accordingly. [Majority view].

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

----S. 156---Investigation not conducted in the manner provided by law---Effect---Subsequent proceedings based on such investigation were bound to fall on the ground automatically.

Abdul Latif v. Inspector-General Police and others 1999 PCr.LJ 1357 ref.

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

----S. 9---Criminal Procedure Code (V of 1898), S. 156---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Scope---Corruption and corrupt practices---Investigation conducted by National Accountability Bureau (NAB)---Investigation not conducted in the manner provided by law---Quashing of reference by the High Court---Permissibility---High Court in its constitutional jurisdiction under Art. 199 of the Constitution could quash the reference as well as the subsequent proceedings where the investigation was not conducted in the manner prescribed by law.

State through Advocate-General, N.W.F.P Peshawar and others v. Gulzar Muhammad and others 1998 SCMR 873 and Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 ref.

Salman Aslam Butt assisted by Shoaib Rashid for Petitioners.

Ch. Riaz Ahmed, Additional Prosecutor General for NAB.

Naseer Ahmed Bhutta, Additional Attorney General and Muhammad Mahmood Khan, Deputy Attorney General representing Federation of Pakistan.

Dates of hearing: 25th, November, 11th and 19th December, 2013.

P L D 2016 Lahore 699

Before Abid Aziz Sheikh and Shahid Karim, JJ

KAMIL KHAN MUMTAZ and others---Petitioners

Versus

PROVINCE OF PUNJAB through Chief Secretary, Government of Punjab, Lahore and others---Respondents

Writ Petition No.39291 of 2015, decided on 14th July, 2016.

Per Abid Aziz Shiekh, J; Shahid Karim, J agreeing.--

(a) Antiquity Act 1975 (VII of 1976)---

----S. 22---Execution of development schemes and new constructions in proximity to immovable antiquity---Approval of Director General, Archeology---Discretion vested with the Director General, Archeology---Scope---Over-riding non Obstante provision of S.22 of the Antiquity Act, 1975 provided that no development plan or scheme or new construction on or within distance of 200 feet of a protected antiquity shall be undertaken or executed except with the approval of Director General, Archaeology---Discretion vested with the Director General, Archaeology to give permission under S.22 was not unfettered, unbridled and could not be exercised to frustrate the purpose of the Antiquity Act, 1975 of preserving and protecting heritage sites---Such permission could not be granted as a ministerial job in routine at the whim and wish of Director General but only in exceptional circumstances subject to necessary inspections, expert opinions and unequivocal conclusion by Director General that such development plan, scheme or new construction on or within 200 feet of protected antiquity would not in any manner destroy, break, damage, alter, injure, deface, mutilate or impair the protected immovable antiquity---In case the development plan, scheme or new construction was likely to cause damage to the protected antiquity in any way, the permission under S. 22 could not be granted.

(b) Antiquity Act 1975 (VII of 1976)---

----Preamble---Provisions of the Antiquity Act, 1975---Said provisions were mandatory as their violation entailed penal consequences.

(c) Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985)---

----S. 11---Execution of development schemes and new constructions in proximity to Special Premises---Approval/permission of the Government or a Committee---Scope---Permission under S.11 of the Punjab Special Premises (Preservation) Ordinance, 1985 could not be granted in routine but it was only in exceptional circumstances, where the Government or Committee after due inquiry and inspection was satisfied that development plan, scheme or new construction on or within 200 feet of special premises would not in any way destroy, break, damage, injure, deface or impair the special premises.

(d) Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985)---

----Preamble---Provisions of the Punjab Special Premises (Preservation) Ordinance, 1985---Said provisions were mandatory (in nature) as their violation was subject to penal consequences.

(e) Constitution of Pakistan---

----Art. 9---"Right to life"---Scope---Article 9 of the Constitution which protected right to life, included amenities, facilities, dignity of life with cultural traditions and heritage.

(f) Antiquity Act 1975 (VII of 1976)---

----Ss. 2(j) & 10---Protected immoveable antiquities of Lahore city under the Antiquity Act, 1975---"Shalamar Garden", "Gulabi Bagh Gateway", "Buddhu's Tomb", "Chauburji" and "Zebunnisa Tomb" were examples of protected immoveable antiquities of Lahore city under the Antiquity Act, 1975.

(g) Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985)---

----S. 2(a)---Historical buildings of Lahore city declared as Special Premises under the Punjab Special Premises (Preservation) Ordinance, 1985---Such buildings included "Lakshmi Building", "General Post Office" (G.P.O), "Aiwan-e-Auqaf (Shah Chiragh) Building" , "Supreme Court Registry Building" and "Mauj Darya Darbar & Mosque".

(h) Constitution of Pakistan---

----Art.199---Public functionaries---Failure to perform duty---Remedy---Constitutional jurisdiction of the High Court---Scope---Public functionaries were responsible to act fairly, justly and in accordance with law being trustees of public power---Where public functionaries failed to perform their duties or acted illegally or in excess of their jurisdiction relating to public duties, any concerned person could invoke the Constitutional jurisdiction of the High Court.

(i) Constitution of Pakistan---

----Art. 199---'Aggrieved person'---Scope---Term 'aggrieved person' under Art.199 of the Constitution would not be confined to a person having strict legal right but would extend to any person having legitimate interest in performance of a public duty.

(j) Constitution of Pakistan---

----Arts. 184(3) & 199---Infringement of law by Executive authorities---Constitutional petition for judicial review---Maintainability---Where infringement of law and Constitution by Executive authorities was involved, the Court could cast aside the technicalities of procedure in dispensing judicial review and entertain the petition filed by like-minded public individuals---However, individuals who moved the Court for judicial redressal must act bona fide.

(k) Antiquity Act 1975 (VII of 1976)---

----Ss. 2(c), 2(g), 2(j) & 22---Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985), Ss. 2(a) & 11---Constitution of Pakistan, Art. 199---"Lahore Orange Line Metro Train Project" ("Project")---Heritage/historical sites---Construction within 200 feet of historical sites---Constitutional petition filed by concerned citizens challenging the legality of the "Project"---Maintainability---Locus standi of petitioners---Petitioners, in the present case, were concerned citizens and had invoked the Constitutional jurisdiction of the High Court to protect and preserve their culture and heritage sites---Present petition concerned public interest and was aimed for good of the public---Petitioners did have the locus standi to invoke the Constitutional jurisdiction of High Court---Objection regarding maintainability of Constitutional petition was overruled accordingly.

(l) Constitution of Pakistan---

----Art. 199---Policy decisions of the Government---Non-interference by the High Court in its Constitutional jurisdiction---Scope---Where policy decision of the Government was not ultra vires the law and was reasoned, rational and reasonable, the High Court in exercise of judicial review could not set aside and displace such decision---However, where a decision and/or recommendation of the Government/competent authority was not in accordance with law or suffered from mala fide or same was arbitrary, irrational and unreasonable, the High Court could direct the State/Government to act strictly in accordance with law.

(m) Constitution of Pakistan---

----Art. 199---Administrative action---Judicial review by the High Court---Grounds---Administrative action was subject to control by judicial review on four grounds; first, where there was "illegality", which meant the decision maker must understand correctly the law that regulated his decision making power and must give effect to it; second, in case of irrationality, which meant the decision should not be unreasonable; third, in case of "procedural impropriety", and fourth where there was arbitrariness and favoritism by government bodies.

(n) Antiquity Act 1975 (VII of 1976)---

----Ss. 2(c), 2(g) & 2(j)---Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985), S. 2(a)---Public development projects---Protection and preservation of heritage sites---Duty of Government---Scope---Sustainable development---Essential features---Government should pursue public development projects, but in such pursuit damage to protected antiquities and special premises was neither permissible nor desirable---Government at the time of preparing plans and feasibilities of a development project was required to devise a coordinated and coherent plan to protect heritage sites simultaneously with the development of the project---Concepts of development and ecology could go hand in hand---Development projects were essential for public welfare and economy of a country but at the same time, environment, culture and heritage had to be protected---Such goal could be achieved by sustainable development---Essential features of sustainable development were that statutory authorities must anticipate, prevent and address the causes of environmental degradation---Where there were threats of serious and irreversible damage during development of a project, the State shall act to protect and preserve the heritage and culture along with sustainable development---Where construction of a development project would cause harm and damage to heritage (site), no permission could be granted for carrying out construction within the prohibitory zone or even beyond.

Penn Central Co. v. New York City 438 US 104 1978; Barnwell Manor Wind Energy Limited v. East Northampton District Council (2014) EWCA Civ 137; North Norfolk District Council v. Secretary of State for Communities and Local Government (2014) EWHC 279 (Admin); Bath Society v. Secretary of State for the Environment and others Weekly law reports 6th December, 1991; South Lakeland District Council v. Secretary of State for Environment (1992) 2 WLR 204; Heatherington (UK) Limited v. Secretary of State for Environment (1995) 69P & CR 374; Mahendra Lodha v. State of Rajisthan (RLW 2007 (2)RAJ 1428; EMCA Construction Company v. Archaeological Survey of India (2009 (113) DRJ 446DB; Guruprasad RAO v. State of Karnataka (2013) 8 Supreme Court cases 418; Sir Meanakri Gramities v. District Collector (2011(2) CTC 684; Archcological Survey of India v. State of Madhya Pardesh and others (2014) 12 Supreme Court case 34; Hited 'rajen Mankotia v. Secretary to the President of India (1997 10 Sec 441; MC Mehta v. Union of India (1997) 2 Supreme Court case 353 and SN BharDway v. Archaeological Survey India (2016) Supreme Court case 691 ref.

(o) Antiquity Act 1975 (VII of 1976)---

----Ss. 2(c), 2(g), 2(j) & 22---Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985), Ss. 2(a) & 11---"Lahore Orange Line Metro Train Project" ("Project")---Heritage/historical sites---"Protected immoveable antiquities"---"Special Premises"---Construction within 200 feet of historical sites---No Objection Certificate (NOC) issued by Director General Archaeology and Committee---Legality---Numerous protected immoveable antiquities and special premises were in the vicinity of the "Project" and were being affected by the alignment of the Project as heavy construction was being carried on within the prohibited 200 feet limits of such historical sites---Director General Archaeology and Committee while granting original NOCs under the Antiquity Act, 1975 and Punjab Special Premises (Preservation) Ordinance, 1985 respectively had not applied their mind independently and acted illegally, unreasonably, irrationally and beyond their jurisdiction in giving permission to develop, plan and construct the "Project" within 200 feet of protected antiquity and special premises---Revised NOCs and addendums were issued long time after commencement of the Project---Revised NOCs were issued to cure the defect in the original NOCs---However revised NOCs were a continuation of the defective original NOCs, thus, they too could not remain in the field---Revised NOCs were based on report of an Advisory Committee---Members of said Committee were either working in Government owned and controlled institutions or they were Members of Provincial Assembly---Manner in which the NOCs were granted was nothing but utter disregard of the fiduciary duty owed to the nation for protection and preservation of heritage sites---Heritage Impact Assessment (HIA) report was focused on permitting the Project and prescribing mitigating measures and option of abandoning the Project near heritage sites was not even considered---Report of structural engineer could not be treated as totally independent, as he was engaged by the relevant Development Authority and worked with the Provincial Government in a number of projects---Original NOCs, all revised NOCs and addendum NOCs under the Antiquity Act, 1975 and the Punjab Special Premises (Preservation) Ordinance, 1985 were set aside being issued without lawful authority and of no legal effect---High Court directed that Provincial Government shall not carry out any construction within a distance of 200 feet of protected immovable antiquity and special premises; that the Director General Archeology should engage independent consultants consisting of panel of experts of international status to carry out fresh independent study regarding protected immovable antiquities and special premises; that request for permission under the Antiquity Act, 1975 and Punjab Special Premises (Preservation) Ordinance, 1985 should be considered afresh by the competent authorities in light of study by independent experts, and that the Government should frame rules under the said Act and Ordinance to structure discretion of competent authorities for future permissions.

Heritage sites including "protected antiquities" and "special premises" were to be preserved and protected by the State under the Constitution and statutory enactments as well as international conventions.

Certain protected immoveable antiquities and special premises were in vicinity of Orange Line Train Project ("Project") and were being affected by the alignment of the project as heavy construction was being carried on within prohibited 200 feet limits of such historical sites.

When the "Project" was placed before the then Director General Archeology for issuance of NOC in terms of section 22 of the Antiquity Act, 1975, he raised serious concerns about the protected historical sites. He also constituted a special Committee concerning issuance of NOC. Said Committee specifically mentioned in its report that the "Project" would be an irreversible intervention with respect to certain historical sites and might result in permanent removal of heritage of Pakistan from the world heritage list and that same would also have negative impact on tourism. Notwithstanding the concerns of the then Director General Archeology and committee constituted by him, just three days later, a new Director General was appointed. Newly appointed Director General was given a presentation by the Chief Engineer of Lahore Development Authority (LDA) and new Director General without application of independent mind and without expert opinion, in just two days' time, after holding an in-house meeting issued the NOC for the "Project" to carry out construction within 200 feet of all heritage sites. No Heritage Impact Assessment, or expert opinion from any archeologist, architect, historian or even the Committee which earlier dealt with issue of NOC was called for or consulted before grant of NOC for construction within prohibited area of heritage sites. Chief Engineer of LDA was admittedly not an expert on archeology but a person from the field of construction, therefore, his opinion and presentation was apparently not a relevant enough factor to put all heritage sites under the threat of destruction due to heavy construction within prohibited limit of 200 feet. Further a general NOC was issued by the new Director General Archeology and none of the protected antiquity properties were separately assessed, discussed and inspected to determine whether they would be affected by construction of the "Project" and if NOC should or should not have been granted for any particular antiquity. Director General Archaeology while granting NOC under the Antiquity Act, 1975 had not applied his mind independently and acted illegally, unreasonably, irrationally and beyond his jurisdiction in giving permission to development, plan and construct the "Project" within 200 feet of protected antiquity and special premises.

Regarding NOC granted under the Punjab Special Premises (Preservation) Ordinance, 1985, the same was granted as per plan presented by Lahore Development Authority for various special premises without seeking any expert advice or opinion from an independent Advisory body. Further no separate assessment regarding special premises were made to determine whether at all NOC should or should not have been issued. Committee while granting NOC under the Punjab Special Premises (Preservation) Ordinance, 1985 had not applied its mind independently and acted illegally, unreasonably, irrationally and beyond its jurisdiction in giving permission to development, plan and construct the "Project" within 200 feet of protected antiquity and special premises.

Due to the defects in the original NOCs, revised NOCs were issued for each protected antiquity and addendum NOCs for special premises. However since original NOCs were based on irrelevant considerations and found to be illegal, revised NOCs and addendum could not stand independent of the original NOCs. Revised and addendum NOCs from their language showed that they were not independent documents but in continuation and in furtherance to the original NOCs, therefore, once the original NOCs did not remain in the field, the entire superstructure would fall. Perusal of revised and addendum NOCs showed that though they were separate in respect of each protected antiquity and special premises, however all revised and addendum NOCs were stereo type and identical in language. The Director General Archaeology and Committee were required to assess and evaluate each protected antiquity and special premises separately and there should have been well reasoned independently assessed NOCs for each site. Manner in which the NOCs were granted was nothing but utter disregard of the fiduciary duty owed to the nation for protection and preservation of heritage sites.

Revised and addendum NOCs were based upon the report of an Advisory Committee. The constitution of the Advisory Committee showed that the Director General Archeology who himself issued the original NOC was the Chairman of said Committee. The other members of Advisory Committee were either working in Government owned and controlled institutions or they were Members of Provincial Assembly.

Revised and addendum NOCs were also based upon a Heritage Impact Assessment (HIA) report. Said report confirmed that impact and risk to heritage sites during construction phase would be high; that there was risk of noise, dust, fire and vibration from machinery; that there would be permanent visual impairment of such sites and access to them would be diminished. Perusal of HIA report holistically demonstrated that it was focused on permitting the project and prescribing mitigating measures and option of abandoning the Project near heritage sites, if it caused harm and damage to them, was not even considered. Further the HIA report was not in line with the guidelines provided by International Council on Monuments and Sites. Director General Archaeology and Committee while granting approval under the Antiquity Act, 1975 and Punjab Special Premises (Preservation) Ordinance, 1985 respectively, were only required to see whether the project and construction would injure and damage the heritage sites and could not base their permission on mitigating measures prescribed by the Government. Notwithstanding the independence, credibility and standard of the HIA report, the serious impact of project highlighted in the said report was not taken into account by the competent authority while prescribing mitigating measures and issuing revised and addendum NOCs.

Revised and addendum NOCs also relied upon the report of a structural engineer, who was not an independent expert but was engaged by a Governmental authority i.e. Lahore Development Authority. Said engineer remained associated with Lahore Development Authority and Provincial Government in number of projects and he was also on the list of approved consultants of the Government, therefore, his report prima facie could not be treated as totally independent report.

As per provision of section 22 of the Antiquity Act, 1975 and section 11 of the Punjab Special Premises (Preservation) Ordinance, 1985, NOCs were to be issued before commencement of the Project, whereas revised and addendum NOCs were issued a long time after commencement of the Project.

Original NOCs, all revised NOCs and addendum NOCs under the Antiquity Act, 1975 and the Punjab Special Premises (Preservation) Ordinance, 1985 were set aside being issued without lawful authority and of no legal effect. High Court directed that Provincial Government shall not carry out any construction within a distance of 200 feet of protected immovable antiquity and special premises; that the Director General Archeology should engage independent consultants consisting of panel of experts of international status preferably in consultation with United Nations Educational, Scientific and Cultural Organization (UNESCO), to carry out fresh independent study/report regarding protected immovable antiquities and special premises; that request for permission under section 22 of the Antiquity Act, 1975 and section 11 of Punjab Special Premises (Preservation) Ordinance, 1985 should be considered afresh by the competent authorities in light of study/report by independent experts of international status; that to structure discretion of competent authorities for future permissions under section 22 of the Antiquity Act, 1975 and section 11 of Punjab Special Premises (Preservation) Ordinance, 1985, the Government should frame rules under the said Act and Ordinance. Constitutional petition was disposed of accordingly.

(p) Antiquity Act 1975 (VII of 1976) ---

----Ss. 2(c), 2(g), 2(j) & 22---Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985), Ss. 2(a) & 11---Punjab Environmental Protection Act (XXXIV of 1997), Ss. 5(6) & 12---"Lahore Orange Line Metro Train Project"---Environment Impact Assessment Approval (EIA) ---Legality---Contention of petitioners that Environment approval for the Project was granted in haste without seeking opinion of Advisory Committee and without making any qualitative and quantitative assessment of the data---Validity---Advisory Committee on Environment Impact Assessment was constituted and the Project was presented before the said Committee for its opinion---Advisory Committee consisted of seven members and except for one members, all others were independent persons from different walks of life and fields including environmental sciences, civil engineering , law and journalism---Advisory Committee visited the project route and expressed its concerns that certain provisions of Environmental Management Plan given in Environment Impact Assessment (EIA) were not being followed---Advisory Committee also gave certain suggestions in such regard---Advisory Committee also reviewed the entire process of grant of Environmental approval and the proceedings followed by Environmental Agency for approval of Environmental Impact Assessment---Advisory Committee after detailed discussion came to the conclusion that all formalities for approval of Environmental Impact Assessment (EIA) were fulfilled---Recommendations and opinion of Advisory Committee had already been incorporated by way of addendum to the Environment approval---Proceedings and recommendations of the Advisory Committee showed that data for the Project was discussed and evaluated qualitatively and quantitatively even if same was not assessed in detail by the experts---Objection of petitioners with regard to legality of Environment Impact Assessment Approval was overruled accordingly.

(q) Punjab Environmental Protection Act (XXXIV of 1997)--

----Preamble---Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000---Constitution of Pakistan, Art.270-AA(6)---Constitution (Eighteenth Amendment) Act (X of 2010), S.101(3)---After the Constitution (Eighteenth Amendment) Act, 2010, the "Punjab Environmental Protection Act, 1997" and "Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000" were provincial laws and shall remain in force under Art.270-AA(6) of the Constitution unless altered, repealed or amended---Merely because no correspondent amendment was made in the said Regulations, it would not cease to have effect in view of Art.270-AA(6) of the Constitution.

(r) Antiquity Act 1975 (VII of 1976)---

----Ss. 2(c), 2(g), 2(j) & 22---Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985), Ss. 2(a) & 11---Punjab Environmental Protection Act (XXXIV of 1997), Ss. 12, 22 & 23---Constitution of Pakistan, Art. 199---"Lahore Orange Line Metro Train Project"---Environment Impact Assessment Approval (EIA)---Constitutional petition filed before the High Court challenging the legality of the Environment Impact Assessment Approval (EIA)---Maintainability---Availability of alternate remedy---In case there was any defect in the environmental approval granted by Environmental Provincial Agency, the petitioners had statutory remedies of two appeals, first before Tribunal under S.22 of the Punjab Environmental Protection Act, 1997 and second appeal before Division Bench of the High Court under S.23 of the said Act---Petitioners had not availed said statutory remedies---Constitutional petition to the extent of Environmental approvals was, therefore, not maintainable.

Per Shahid Karim, J; agreeing with Abid Aziz Shiekh, J.

(s) Antiquity Act 1975 (VII of 1976) ---

----Ss. 2(c), 2(g), 2(j) & 22---Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985), Ss. 2(a) & 11---Constitution of Pakistan, Art. 199---"Lahore Orange Line Metro Train Project" ("Project")---Heritage/historical sites---Construction within 200 feet of historical sites---Constitutional petition challenging the legality of the "Project"---Maintainability---Locus standi of petitioners---"Aggrieved person"---Scope---Petitioners were not busybodies by any stretch of imagination nor was there any allegation of private malice, vested interest or publicity seeking on their part---Petitioners were public spirited individuals who did not urge a vested or personal interest in the present matter; they had broached a subject which impacted the heritage and historical assets of the entire people of the country---Present petition related to the antecedence and historical basis for claim to nationhood by its people and thus it would be a travesty of justice to deny the petitioners the invocation of the constitutional jurisdiction of the High Court---Petitioners were "aggrieved persons" and must be held as such---During the course of present proceedings the court found no inkling of a personal benefit to accrue to the petitioners, who had brought forth and identified a matter of public interest of grave importance---Constitutional petition was held to be maintainable accordingly.

De Smith's Judicial Review (Seventh Edition); Walton v. Scottish Ministers [2102] UK SC 44 and Aharon Barak in "The Judge in a Democray ref.

(t) Constitution of Pakistan ---

----Art. 9---Right to life---Scope---History and heritage of a person was comprised in the broad concept of the expression 'life' and was protected by Art.9 of the Constitution---Such a right must be preserved inviolate---Any threat, howsoever remote, to the historical monuments was a threat to life to the collective right of the people as a whole---Right to life included the right of people to enjoy their (cultural) heritage in all its grandeur and beauty.

Arshad Mehmood and others v. Government of the Punjab through Secretary Transport, Civil Secretariat, Lahore PLD 2005 SC 1993; Suo Motu Case No.13 of 2009 (PLD 2011 SC 619); PLD 2010 SC 759; PLD 2012 SC 224; 2013 SCMR 1383; 2014 SCMR 396; AIR 1996 SC 1051; Common Cause v. Union of India AIR 1999 SC 2979; Siddharam Satlingappa Mhetre v. State of Maharashtra and others AIR 2011 SC 312; Penn Central Transportation Co. v. City of New York 438 US 104 (1978) and Binay Kamar Mishra v. State of Behar and others AIR 2001 Patna 148 ref.

(u) Antiquity Act 1975 (VII of 1976) ---

----Ss. 2(c), 2(g), 2(j) & 22---"Lahore Orange Line Metro Train Project" ("Project")---Heritage/historical sites---"Protected immoveable antiquities"---Construction within 200 feet of historical sites---No Objection Certificate (NOC) issued by Director General Archaeology---Legality---No Objection Certificate issued by the Director General, Archeology did not fulfill the criteria to be employed for the exercise of discretion by a public authority on whom the discretion had been vested under a provision of law---Original NOC had been issued in haste without consideration of relevant and proper facts and documents---Revised NOC for the Project was issued without requiring a (temporary) halt to all works on the Project---Advisory Committee appointed before issuance of revised NOC prepared a report entirely based on the data furnished by Government instrumentalities, and no assistance of independent experts was taken---Members of the Advisory Committee had no expertise in the conservation of monuments and endangered sites---Members of the said committee were not entirely independent as most of them were either working in institutions under the control of the Government or were members of the Provincial Assembly---Report of structural engineer could not be termed as independent as he was appointed by the relevant Development Authority and was on the panel of structural engineers maintained by the Provincial Government---Original NOC and revised NOC were stems of the same root and the illegality which afflicted the original NOC equally struck at the revised NOC---Revised NOC did not consider at all the factors which would impact the protected antiquities during the construction phase as also during the operational phase---Revised NOC completely ignored the aspects related to visual impairment of the protected antiquities, and the alternatives to the alignment plan of the Project---Further revised NOC had been issued well after the work on the Project had begun --- City planners were not involved in the process of granting NOC since any such permission related to the skyline, topography and the landscape of the city---Director General Archaeology in issuing the original and revised NOC acted as an arm and instrumentality of the Government and not as an independent regulator---Director General Archaeology must have been imbued with a sense of history and a dire need to preserve it inviolate---In granting NOC for the Project public authorities failed to weigh the competing public interest in preserving the heritage and the need for public transport---Both were matters of public interest and ought to have been weighed by a proper application of mind---Original NOC and revised NOCs issued by the Director General Archaeology were held to be ultra vires and without lawful authority---Constitutional petition was partially allowed accordingly.

Committee was constituted to examine the impact of the Project on archeological sites falling on its alignment. Report prepared by the said Committee raised several issues; first, the effect of the use of heavy machinery during the construction period in the proximity of the historical and heritage sites; second, the visual barrier and mitigation caused by the construction of elevated viaduct; third, that it was imperative to shift the track of the Project as far as possible from the protected areas, and fourth, that measures should be taken to remove the cause of visual barrier of to the historical sites. Such aspects had not been subsequently considered by the Director General Archaeology at the time of issuance of the original NOC for the Project. Original NOC, therefore, had to be struck down on the basis that it had been issued without consideration of relevant and proper facts and documents.

No Objection Certificate issued by the Director General, Archeology did not fulfil the criteria to be employed for the exercise of discretion by a public authority on whom the discretion had been vested under a provision of law. NOC issued did not comport with the onerous duties cast upon the Director General Archaeology by section 22 of the Antiquity Act, 1975.

Director General, Archeology held a meeting with the Chief Engineer of Lahore Development Authority, and issued the original NOC two days thereafter, which showed that the Director General, Archaeology paid scant regard to the entire facts and circumstances of the case as merely two days was an insufficient period by any stretch of imagination for a monumental task of present nature to be accomplished and an NOC issued thereby. Such haste betrayed an utter lack of application of mind on the part of Director General, Archaeology.

Revised NOC was issued by the Director General, Archaeology to cure the defects in the original NOC. However if good faith and proper motives was the underlying theme in undertaking a revision of the original NOC, the Director General Archaeology ought to have required a halt to all works on the Project as a revision may have entailed a realignment and a fresh feasibility of the route of the Project had the Director General come to a finding that the construction could not take place within the buffer zone, contemplated by law. Since this was not done, it was reasonable to conclude that the Director General, Archaeology sat with preconceived notion and improper motives.

Advisory Committee was appointed by the Provincial Government before issuance of revised NOC. Report prepared by said committee reveled that it was entirely based on the specifications and data/ reports, furnished by the Chief Engineer Lahore Development Authority and the Project Manager of a Federal Government instrumentality. No support or assistance of independent experts was taken in the preparation of the report. None of the members of the Advisory Committee were experts in the nature of work that was assigned to them and which entailed a specialized knowledge and expertise in the conservation of monuments and endangered sites. Advisory Committee was completely oblivious of the importance and significance of the concept of visual barrier or impairment with regard to the historical and cultural sites. Besides, members of the said committee were not entirely seen to be independent. It could not be said that members of the Advisory Committee acted independent of the influence of the Provincial Government. Chairman and most members of the said committee were either working in institutions under the control of the Federal or Provincial Government, or were members of the Provincial Assembly.

Before issuance of revised NOC, a structural engineer was appointed by the Lahore Development Authority to give an independent report. Said engineer had undertaken a considerable number of projects on behalf of the Provincial Government and the Lahore Development Authority and was on the panel of Structural Engineers maintained by the Planning and Development (P&D) Department of the Provincial Government. Such facts alone disqualified him from acting as an independent structural engineer.

Original NOC and revised NOC were stems of the same root and the illegality which afflicted the original NOC equally struck at the revised NOC too as the revised NOC merely glossed over the inherent and patent incompetence of the original NOC. Revised NOC was, from its contents, in furtherance of the original NOC, and did not mention that original NOC was no more alive or in the field. Language and the grounds of grant of revised NOC was all the same, verbatim i.e. for each protected antiquities, the same set of conditions had been prescribed for the grant of the approval. This showed the lack of application of mind on the part of the Director General Archaeology while issuing the revised NOC in respect of five different protected antiquities bearing different locations, architectural attributes as also requiring distinct and separate treatment for their preservation and conservation. Revised NOC did not consider at all the factors which would impact the protected antiquities during the construction phase as also during the operational phase. Director General Archaeology completely ignored two aspects in the issuance of revised NOC; the first related to visual impairment of the protected antiquity, and the second concerned the alternatives to the alignment plan submitted by a government instrumentality and sought to be implemented with regard to the Project. These two aspects were baseline questions which had to be dealt with by the Director General Archaeology and the mere fact that they had not been dealt with in the revised NOC, rendered the revised NOC as ultra vires and without lawful authority.

Revised NOC was the products of bodies (i.e. Director General Archaeology and Advisory Committee) which were part of the executive. Conferring an unlimited discretion on such bodies as to how those approvals in which the executive had a vital interest, were to be granted seemed to be wholly unacceptable. Director General Archaeology had acted as an arm and instrumentality of the Government and not as an independent regulator.

Since the Director General Archaeology was to exercise his discretion under section 22 of the Antiquity Act, 1975 and the mandate of the Advisory Committee was precisely to advise the Director General to arrive at a reasonable conclusion, the Director General ought to have recused himself from participating in the proceedings of the Advisory Committee. That the Director General Archaeology became part of the Advisory Committee and its decision-making rendered the report of the Advisory Committee as non-est and a nullity. Director General entirely based his decision on the report of the Advisory Committee of which he was a part, which fact was in itself sufficient to render the decision of issuance of Revised NOCs illegal.

Mandate of the law was for approvals to be obtained before work commenced however in the present case revised NOC had been issued well after the work began.

Major flaw in the permission granted by Director General Archaeology was that city planners were not involved in the process since any such permission related to the skyline, topography and the landscape of the city.

There should have been a presumption in favour of the conservation of the designated heritage assets. It was a sine quo non for any permission/decision that reasons ought to have been given which would have reflected that the authorities had conducted a balancing exercise with regard to the general duty to preserve a monument and in case harm would be caused to the setting of the buildings and whether it would be substantial or less than substantial.

Aesthetic value of monuments delved from their visual association and with their setting. That is why the courts insist upon the weight to be given to the desirability of preserving a listed building or its setting. A nation without its history was a nation without its soul. Nations did not abdicate or let go of their historical moorings or claims based on ancient facts. This was of the essence of a country's standing in the comity of nations and at the heart of the decision-making were the issues of great public harm to the monuments, the close proximity of the Project to these monuments and an urgent need to prevent serious injury. It was imperative that the Director General Archaeology must have been imbued with a sense of history and a dire need to preserve it inviolate. They ought to be officers with a missionary zeal for the need to care and nurture heritage as an essential linkage of a nation to an ancestry and past. The preferment of public interest in the execution of the Project had been touted as a single-most significant factor for the approval to be granted. However, the public authorities failed to weigh the competing public interest in preserving the heritage and the need for public transport. Both were matters of public interest and ought to have been weighed by a proper application of mind.

Original NOC and revised NOCs issued by the Director General Archaeology were held to be ultra vires and without lawful authority. Constitutional petition was partially allowed accordingly.

(v) Public functionary---

----Discretion, exercise of---Principles---Any discretion conferred upon a public official had to be exercised in a structured manner---Taking account of relevant considerations was a sine quo non in the exercise of all discretionary powers---Public official must also have regard to the 'desirability' of something.

R v. Boundary Commission for England Ex.p.Foot [1983] I Q.B. 600 ref.

(w) Public functionary---

----Illegality, commission of---Illegality committed by a public functionary in taking a decision---Public functionary/decision-maker committed an illegality if he misinterpreted a legal instrument relevant to the function being performed; or, he had no legal authority to make the decision; or, he failed to fulfil a legal duty; or, exercised discretionary power for an extraneous purpose; or, took into account irrelevant considerations or failed to take account of relevant considerations; or improperly delegated decision-making power.

(x) Antiquity Act 1975 (VII of 1976)---

----Ss. 2(c), 2(g), 2(j), 19 & 22---Heritage/historical sites---"Protected immoveable antiquities"---Construction within 200 feet of historical sites---No Objection Certificate (NOC)---Discretion of Director General Archaeology/competent authority---Scope---Discretion to permit the construction to be carried out within a zone of 200 ft. of the protected immoveable antiquity could only be undertaken if there existed no risk at all to the antiquity---While considering the issuance of an NOC, there was no scope for mitigation---While exercising discretion, in case the Director General/competent authority felt that there was any danger (present or looming in the horizon) of a protected antiquity being destroyed, damaged, altered, mutilated etc., the Director General shall not grant approval/NOC for any development plan or scheme or new construction to be undertaken within a distance of 200 feet of the protected immovable antiquity.

(y) Antiquity Act 1975 (VII of 1976) ---

----Ss. 2(c), 2(g), 2(j) & 22---"Lahore Orange Line Metro Train Project" ("Project")---Heritage/historical sites---Heritage Impact Assessment (HIA) report---Legality---Bias and personal interest of person preparing the HIA report---Effect---Person who had prepared the HIA report also had a bias and monetary interest in the entire matter---Director General Archaeology issued the revised No Objection Certificate (NOC) for the Project on the basis of such HIA report---Said report was geared towards facilitating the Project and for having it implemented---Even otherwise the Heritage Impact Assessment (HIA) report for the Project had stated the severe risks to historical and heritage sites during the construction and operational phase of the Project---Revised No Objection Certificate (NOC) for the Project based on the Heritage Impact Assessment (HIA) report was declared to be ultra vires and without lawful authority.

Person who had prepared the HIA report had a monetary interest in the entire matter having the relevant Development Authority as her client. Director General Archaeology, in turn, based his revised No Objection Certificate (NOC) for the Project on the HIA report without regard to the fact that person who had prepared it had a bias in the matter and no reliance could be placed on such HIA report. Director General Archaeology completely brushed under the carpet, the mitigation measures proposed in the HIA report and also the aspect that the mere fact that mitigation measures had been proposed required an independent analysis as also to explore the option of "no development" since there was a real likelihood that the mitigation measures may not be successful at all.

Even otherwise the Heritage Impact Assessment (HIA) report for the "Lahore Orange Line Metro Train Project" ("Project") stated that the during the construction phase of the Project, there was severe risk of noise, dust, vibration from machinery, diminished access, fire, physical damage and risk to fabric in regard to protected antiquity and monuments; that during the operational phase of the Project there shall be a permanent impact on protected monuments with regard to visual impairment, noise and vibration. Said report also stated mitigation measures required in respect of heritage sites. Definition of the term "requires mitigation measures" had been given in the report to mean "if there will be some adverse effects, but these can be eliminated, reduced or offset to a large extent by specific mitigation measures". Reading of HIA report showed that despite mentioning the risks to heritage sites, it was geared towards facilitating the Project and for having it implemented.

Revised No Objection Certificate (NOC) for the Project issued by Director General Archaeology after taking into account the Heritage Impact Assessment (HIA) report was declared to be ultra vires and without lawful authority.

(z) Interpretation of statutes---

----"Preamble"---Preamble was a window to the main statute---Although, the Preamble did not control the main enactment, it certainly gave an inkling of the intention of the legislature and as to the policy of the Act---Concept relating to the policy of the Act was of paramount importance and all interpretations must be done in accordance with the policy and the intention of the legislature found therein.

(aa) Constitution of Pakistan---

----Art. 199---Administrative decision-making under a statute---Judicial review---Scope---Discretion must be used to promote the policy and objects of the statute---Where public authorities set their face against the policy of a statute, and either declined to implement it or else attempted to frustrate it, the same would amount to an unlawful motive, and hence liable to judicial invalidation.

Administrative Law, H.W.R. Wade & C.L Forsyth (Eleventh Edition); Breen v. Amalgamated Engineering Union [1971] 2 Q.B.175 at 190 and Laker Airways Ltd. v.Depatment of Trade [1977] QB 643 ref.

(bb) Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985) ---

----Ss. 2(a) & 11---"Lahore Orange Line Metro Train Project" ("Project")---"Special Premises"---Construction within 200 feet of "Special Premises"---No Objection Certificate (NOC) issued by the Committee---Legality---Committee which granted the No Objection Certificate (NOC) for the Project consisted mostly of Government officials---Since the Provincial Government had a keen interest in the execution of the Project at any cost, therefore, a more bipartisan constitution of the Committee was required---Since the same was not done vital element of justness and impartiality was conspicuously lacking in the decision of the Committee to issue the NOC and the addendums---No Objection Certificate (NOC) was issued in respect of six special premises without regard for the difference in their locations and the difference in the technology being employed for the construction of the Project in the proximity of a particular special premises---Committee while issuing addendums to the original NOC failed to apply its mind to each special premises independently and to prescribe distinct and separate conditions with regard thereto---Conditions mentioned in the addendums for the six special premises were exactly the same without any change in a word---Each special premises had its peculiar circumstances with respect to its location, integrity, age, current condition and the steps required for its preservation---All six special premises could not be treated alike and made subject to the same set of conditions---Experts appointed by the Committee comprised of teachers of an institution directly under the control of the Provincial Government---City planners were not involved in the process of granting NOC/approval for the Project since any such permission related to the skyline, topography and the landscape of the city---Original NOC and addendums issued by the Committee were declared to be ultra vires and without lawful authority---Constitutional petition was partially allowed accordingly.

Committee issued a No Objection Certificate (NOC) regarding the special premises falling on the alignment of the Project. At a later stage the Committee issued an addendum in respect of each special premises and these addendums were issued in furtherance of the original NOC. Committee had an overwhelming membership of high Government officials and the Provincial Chief Secretary was the Chairman of the Committee. Since the Provincial Government had a keen interest in the execution of the Project at any cost, therefore, any request by the Provincial Government for the grant of approval by a Committee in respect of the special premises and for the Project to be implemented required a more bipartisan constitution of the Committee. The Committee was politically predisposed in favour of the Project that they preceded to approve. It was filled by officers who were answerable to the controlling political party and had no independence. Committee's acts betrayed an element of dictation and extraneous influence in their outcome. Presumption was that the Committee was acting on the dictation of the Provincial Government. It was of fundamental importance that the Committee should have been reconstituted and independent members inducted. This was essential so that justice was "seen to be done". With the current composition of the Committee the vital element of justness and impartiality was conspicuously lacking in the ultimate decision i.e. NOC and addendums issued by it.

Members of the Committee were given a presentation by the Director General, Lahore Development Authority about the alignment of Project. This presentation was the only information imparted to the members of the Committee in the meeting and on the same date, an NOC regarding the construction of the Project was issued subject to certain conditions. No rational and reasonable basis were given for the issuance of the approval/NOC by relying entirely and solely upon a presentation given by the Director General, Lahore Development Authority. No Objection Certificate (NOC) was issued in respect of six special premises without regard for the difference in their locations and the difference in the technology being employed for the construction of the Project in the proximity of a particular special premises. No independent advice was sought from any of the experts. No Objection Certificate (NOC) was a sham and offended the principles regarding the exercise of discretion in a structured and reasonable manner.

Addendums to the NOC were issued by the Committee on the same date for each of the six special premises and had been stated to be in addition to and in furtherance of the NOC/permission regarding construction of the Project. Conditions mentioned in the addendums for the six special premises were exactly the same without any change in a word. Similarity in the language and phraseology of these addendums and the conditions being exactly the same, in verbatim, was a sufficient ground on which these addendums ought to be struck down. Purpose of having separate addendums/approvals for each special premises was the consideration of the peculiar circumstances of that special premises, its location, integrity, the age of the monument, its current condition and the steps which were required for its preservation distinctly and separately. It could not be perceived by any stretch of imagination that all six special premises could be treated alike and could be made subject to the same set of conditions with regard to the special and peculiar set of circumstances concerning that special premises. Adverse impact of the potential damage that may be caused by the construction works of the Project would befall differently in respect of each special premises distinctly and separate set of conditions ought to have been compiled while issuing the addendums. Addendums suffered from utter lack of application of mind, were irrational, unreasonable and unlawful and ought to be set aside on such grounds

One of the conditions in the addendums was that in case of any adverse impact to the special premises during excavation, construction and execution phases of the Project, the executing agency will take all possible actions to conserve that part from its resources in consultation and as per advice of Director General, Archaeology. Such condition was bordering on callousness on the part of the Committee for in case of adverse impact, which had not been defined by the Committee, there may not be any options left to conserve the premises any more in any manner.

Experts appointed by the Committee comprised of teachers of an Engineering University which was once again an institution directly under the control of the Provincial Government. In any case said experts rendered their finding on the basis of the reports of Lahore Development Authority and a governmental instrumentality, therefore, no reliance could be placed on the findings of such experts.

Major flaw in the permission granted by Committee was that city planners were not involved in the process since any such permission related to the skyline, topography and the landscape of the city.

It was imperative that Committee must have been imbued with a sense of history and a dire need to preserve it inviolate. They ought to be officers with a missionary zeal for the need to care and nurture heritage as an essential linkage of a nation to an ancestry and past. The preferment of public interest in the execution of the Project had been touted as a single-most significant factor for the approval to be granted. However, the public authorities failed to weigh the competing public interest in preserving the heritage and the need for public transport. Both were matters of public interest and ought to have been weighed by a proper application of mind.

Original NOC and addendums issued by the Committee were declared to be ultra vires and without lawful authority. Constitutional petition was partially allowed accordingly.

(cc) Administrative law---

----Executive decisions---Aphorism that "justice should not only be done but should manifestly and undoubtedly be seen to be done" equally applied to all public law decisions---Rules of administrative law had been formulated to ensure that all executive decisions were made justly and lawfully.

(dd) Antiquity Act 1975 (VII of 1976) ---

----Ss. 2(c), 2(g) & 2(j)---Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985), S. 2(a)---Heritage/historical sites and monuments, conservation of---Survey of case law from American, British and Indian jurisprudence on the issue of conservation and planning permissions regarding heritage sites, protected buildings and historical monuments.

Penn Central Transportation Co. v. City of New York 438 U.S. 104 (1978); Barnwell Manor Windh Energy Ltd. East Northamptonshire District Council etc. [2014] EWCA Civ 137; Hetherington (UK) Ltd. v. Secretary of State for Environment [1995) 69 P. & C.R. 374; Garner v. Elmbridge Borough Council [2014] EWCA Civ 891; North Norfolk District Council v. Secretary of State for Communities and Local Government and others [2014] EWHC 279 (Admin); Binay Kumar Mishra v. State of Behar and others AIR 2001 Patna 148; K.Gunr Prasad Rao v. State of Karnataka and others (2013) 8 SCC 413; Taj Mehal's case (1997) 2 SCC 353; Rejeev Mankotia v. Secretary to the President of India and others (1997) 10 SCC 441 and EMCA Construction Co. v. Archaeological Survey of India and others (2009) 113 DRJ 446 ref.

(ee) Constitution of Pakistan ---

----Art. 199---Public body---Decision-making---Judicial review---Scope---Lack of independence (of a public body) could be a ground for judicial review of a public decision if it amounted to the effective surrender of the body's independent judgment.

R v. Environment Feretory, ex P Kiskstall Valley Compaign Ltd. [1996] 3 All ER 304, 321 ref.

Petitioners by:

Ms. Asma Jahangir, Khawaja Ahmed Tariq Rahim, Muhammad Azhar Saddique assisted by Abdullah Malik, Hamayun Faiz Rasool Bhutta, Munir Ahmad, Shabir Ismail, Shahanshah Shamil Parachi, Muhammad Irfan and Adeel Hasan.

Respondents by:

Shahid Hamid along with Mustafa Ramday, Ms. Ayesha Hamid and Jahanzaib Inam for Respondents Nos.2, 3 and 4.

Ashtar Ausaf Ali, Attorney General for Pakistan along with Ch. Naseer Ahmad Bhutta, Addl. Attorney General, Mirza Nasar Ahmad, Deputy Attorney for Pakistan.

Shakil-ur-Rehman Khan, Advocate-General Punjab along with Imtiaz Kaifi, Shan Gull, Ms.Asma Hamid, Addl. A.Gs. Ms. Samia Khalid Mehmood, Qasim Ali Chohan, Jamal-ud-Din Mamdot, Khalid Waheed Khan, Khurram Shahzad Chughtai, Ch. Sultan Mahmood, A.A.Gs. Asrar Saeed, Chief Engineer, LDA, Ameer Hassan Director Law, LDA, Hasan Ahmad, Deputy Director, LDA, Nawaz Malik, Director Law, Environment Depatment.

Amicus Curiae:

Syed Ali Zafar, Advocate.

Dates of hearing: 28th January, 7th, 10th, 15th, 29th March, 5th, 6th, 11th, 12th, 13th, 18th, 19th, 20th, 25th, 26th, 27th April, 2nd 3rd, 5th, 6th, 10th, 30th, 31st May, 1st, 2nd, 7th, 8th, 9th, 13th, 15th, 28th June, 4th, 12th, 13th and 14 July, 2016.

P L D 2016 Lahore 857

Before Ali Baqar Najafi, J

Mst. RUKHSANA BIBI and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.5939 of 2006, decided on 18th May, 2016.

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

----S. 10(2)---Constitution of Pakistan, Art. 199---Constitutional petition filed by an alien/foreign national seeking directions for issuance of Pakistan passport---Alien male was not recognized as someone who could invoke the constitutional jurisdiction of the High court---Constitutional petition to the extent of such alien/foreign national was dismissed as being not maintainable.

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

----S. 10(2)---Constitution of Pakistan, Art.25---Universal Declaration of Human Rights (UDHR), Art.15---International Covenant on Civil and Political Rights (adopted on 23.03.1976), Art. 23---Beijing Declaration and Platform for Action of 1995, Art. 232---Foreign male national migrating to Pakistan and marrying a Pakistani woman---Right of such foreign male national to acquire Pakistani nationality---Discrimination---Alien male who had migrated to Pakistan and married a Pakistani woman was not granted a right to acquire Pakistani Nationality under S.10(2) of the Pakistan Citizenship Act, 1951---Denial of such right was discriminatory and violated not only Art.25 of the Constitution but also various instruments of international law, which the State of Pakistan was bound to follow in view of the commitments it had made to the International community---High Court directed concerned authorities to grant citizenship to the foreign national/husband of the petitioner after following the relevant procedure.

Under section 10(2) of the Pakistan Citizenship Act, 1951 alien female had been given the right to acquire the Pakistan nationality on her marriage with a man having Pakistani nationality but an alien male who had migrated to Pakistan and married a Pakistani woman was not granted a right to acquire Pakistani Nationality.

Denial of citizenship to a foreign national having a Pakistani wife appeared to be arbitrary and not founded on any rational basis and had no nexus to the object to be achieved by such classification. Constitution of Pakistan did not recognize gender discrimination.

Suo Motu Case No.1/K of 2006 PLD 2008 FSC 1 ref

Sharifan and 6 others v. The Federation of Pakistan through Secretary Ministry of Interior and Narcotics Control, Interior Division, Islamabad PLD 1998 Lah. 59 distinguished.

Both petitioner and her foreign national husband had been living together ever since they married during which a child was also born in their family in Pakistan. Husband's mother also died in Pakistan, where she was buried.

Jamal-ud-Din and others v. National Database and Registration Authority (NADRA) through Deputy Director (Verification), Islamabad and 5 others PLD 2015 Bal. 117 distinguished.

Under Article 15 of the Universal Declaration of Human Rights everyone had a right to a nationality and also to change his nationality. Further under Article 23 of International Covenant on Civil and Political Rights adopted on 23.03.1976 the right of men and women of marriageable age to marry and to form a family was recognized which was natural and fundamental group unit of the society. Article 232(2) of the Beijing Declaration and Platform for Action of 1995, the Governments were required to review national laws including customary laws and legal practices in the areas of family, civil, penal, labour or commercial law in order to ensure the implementation of the principles and procedure of all relevant international human rights instruments by means of a national legislation, revoke any remaining laws for discrimination on the basis of sex and removing gender bias in the administration of justice. The State of Pakistan was bound to adopt/follow these relevant laws keeping in view the commitments it had already made to the International Community.

Denying right of Pakistani citizenship to petitioner's husband under section 10(2) of the Pakistan Citizenship Act, 1951 was discriminatory and in violation of Article 25 of the Constitution. High Court directed concerned authorities to grant citizenship to husband of the petitioner after following the relevant procedure.

(c) Constitution of Pakistan---

----Art. 25---Right of woman to marry person of her own choice --- Such right was a basic human right---In acknowledging such right no discrimination was to be observed against Art.25 of the Constitution.

Syed Sajjad Haider Naqvi for Petitioners.

Wajid Nawaz Bhatti, Standing Counsel along with Mian Riaz Hussain, Assistant Director, Passport Office, Multan for Respondent.

Date of hearing: 20th April, 2016.

P L D 2016 Lahore 865

Before Ibad-ur-Rehman Lodhi, J

KHALIDA SHAMIM AKHTAR---Petitioner

Versus

GHULAM JAFFAR and another---Respondents

Civil Revision No.795-D of 2010, heard on 2nd June, 2016.

(a) Islamic jurisprudence---

----Sources---Main sources of Shariat are the Holy Qur'an, Sunnah, Ijma and Qias.

(b) Islamic law---

----Book "Muhammadan Law by D.F. Mulla"---Significance and relevance---High Court observed that the said book was only a reference book and not statutory law applicable in the country (Pakistan) in the sense that the legislature had not enacted the same; that it was just an option of the Court to consult the same on the basis of equity and refer to the principles mentioned in paragraphs of the said book; that the rules quoted in the said book were not at all applicable, if in the opinion of the Court, they were found opposed to justice, equity and good conscience, and that the Rules mentioned in the said book were not even referred to in situations directly covered by the Holy Qur'an or Sunnah or by binding Ijma and Qias.

Muhammad Nasrullah Khan v. The Federation of Pakistan and another (Shariat Petition No.06/1 of 2013) ref.

(c) Islamic law---

----Shia law of inheritance---"Issueless/childless widow"---Share of 'issueless widow' from her (Shia) husband's estate---Question of competence of a childless widow from Fiqa-e-Jafriya had neither been adjudicated upon by the Judiciary as yet nor codified into a law by the Legislature---However, Ayat No.12 of Sura Al-Nisa (Holy Qur'an), stated that a childless widow was entitled to 1/4th share from the leftover estate of her husband---High Court on such basis declared that even a childless widow from Fiqa-e-Jafariya would be entitled to claim 1/4th share from the leftover estate of her husband---High Court observed that it expected that the Federal Ministry of Law, would take legislative measures to promulgate a codified law in such regard in order to protect the rights of Ahl-e-Tashih childless widows, in getting their due shares from the inheritance of their deceased husbands. [Para 113 of Muhammadan Law by D.F. Mulla, not approved.]

Syed Muhammad Munir (represented by 10 heirs) and another v. Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others PLD 1972 SC 346; Muhammad Bashir and others v. Mst. Latifa Bibi through L.Rs. 2010 SCMR 1915; Al-Qur'an Ayat No.12 of Sura Al-Nisa and "Kitab-e-Meeras" Volume 3, Chap. 9 by Allama Syed Iftikhar Hussain Naqvi Jajafi ref.

Tahir Jamil Butt (absent) for Petitioner.

Malik Muhammad Jahanzeb Khan Tamman for Respondents.

Allama Syed Iftikhar Hussain Naqvi, Najafi, Member, Council of Islamic Ideology, Government of Pakistan: Amicus Curiae.

P L D 2016 Lahore 872

Before Shams Mehmood Mirza, J

WAHEED SHAHZAD BUTT---Petitioner

Versus

FEDERATION OF PAKISTAN through Director Legal-II President (Appellate Authority) and another---Respondents

Writ Petition No.28180 of 2014, decided on 18th January, 2016.

(a) Freedom of Information Ordinance (XCVI of 2002)---

----Ss. 2(h)&(i), 3, 7, 8, 13, 15, 19, 32 & 37---Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), S. 32---Federal Ombudsman Institutional Reforms Act (XIV of 2013), S.2(b)---Income Tax Ordinance (XLIX of 2001), S. 134-A---Sales Tax Act (VII of 1990), S.47-A---Constitution of Pakistan, Arts. 199 & 19-A---Access to information/record, right of---Scope---Exclusion of certain record, validity of---Recourse to the Mohtasib and Federal Tax Ombudsman---Representation to the President---Maintainability---'Ombudsman'---Definition and scope---'Decision' and 'recommendation'---Connotations and scope---'Any intermediary opinion or recommendation'---Scope---Fundamental right to information---Interpretation of various provisions of the Freedom of Information Ordinance, 2002---Federal Board of Revenue in the present case had declined to provide the record pertaining to the recommendations made by the Alternate Dispute Resolution Committee (ADRC) and the order passed by the Board thereon; whereas, the Federal Ombudsman allowed provision of the said record to the petitioner; however, the President, on Board's representation, modified the decision of the Ombudsman by disallowing the recommendations of the ADRC---Questions before the High Court were that whether the representation by the Board before the President against the decision of Tax Ombudsman was competent in terms of S.32 of Federal Tax Ombudsman Ordinance, 2000 and whether the information/documents sought for by the petitioner fell in the exclusions mentioned in S.8 of Freedom of Information Ordinance, 2002---Freedom of Information Ordinance, 2002 did not provide any further appeal beyond the forum of the Tax Ombudsman and as such finality must be attached to its decision subject to the challenge made in the constitutional jurisdiction of the High Court---By providing the forum of Tax Ombudsman for lodging complaints by a person denied access to information or public record did not mean that the remedy of representation to the President provided for in S.32 of the Establishment of Office of Federal Tax Ombudsman Ordinance, 2000 also became available to the public bodies-President of Pakistan, therefore, had no jurisdiction to entertain and pass a decision on the representation filed by the (respondent) department against the decision of the Tax Ombudsman---Expression 'any intermediary opinion or recommendation' in any event did not include the opinion given by the ADRC to the Board under a dispute resolution mechanism, which had its roots in various statutes---Recommendations of the ADRC, being a statutory remedy, did not fall in the deliberative process of department/authority leading up to the formation of a policy or passing of a decision---Under the scheme of Sales Tax Act, 1990 and Income Tax Ordinance, 2000, finality was attached to the opinion rendered by the ADRC, as upon its submission to the Board the role of the ADRC came to an end---Board had not passed any order on the petitioner's application and the President had not furnished any reasons in the impugned order for claiming the exclusion of S. 8 of Freedom of Information Ordinance, 2002 on the opinions of the ADRC---Both the Board and the President, thus, had defeated the very purpose of the Ordinance, without application of mind---High Court, therefore, declared the impugned decision passed by the President as without lawful authority and of no legal effect and directed the respondent to provide the requisite information/record to the petitioner forthwith---Principles.

Sections 2(h), 2(i), 3, 7, 8, 15 and 19 of Freedom of Information Ordinance, 2002 showed that the citizens had been granted a right to official/public record and that an applicant (requester) did not need to provide any reason for seeking such record, and that was for the designated official to determine whether the record sought for did not constitute public record or that the record sought for was excluded under Section 8 of the Ordinance.

Section 19 of the Ordinance itself provided a three tier process and was a complete code for processing the application of a requester with self-help remedies in case of denial of his request. In terms of Section 13 of Ordinance, down the chain was the designated official to whom the application was made. In case of denial by the designated official to provide the information or the record, the requester had the remedy to approach the head of the public body with the complaint. In case the requester failed to get the information or record from the head of the public body, he could approach the Tax Ombudsman or the Mohtasib. Tax Ombudsman or the Mohtasib under the Ordinance was the last appellate forum to entertain the complaint and redressal of grievance of a requester.

Section 19 of the Ordinance stood on a different footing in comparison to other laws which created the officer of Mohtasib in that the Tax Ombudsman under the Ordinance passed a decision on the complaint of a requester rather than making recommendation on mal-administration of the delinquent officials. Said difference must not have been lost sight of as the same brought into sharp focus the type of jurisdiction being exercised by the Tax Ombudsman under Section 19 of the Ordinance.

Given the three tier process provided for in Section 19 of the Ordinance and non-availability of appeal against the decision of the Tax Ombudsman, Freedom of Information Ordinance, 2002 intended finality to be attached to the orders of Tax Ombudsman. Appeal was a creature of statute and unless provided the same could not be resorted to by recourse to the right of appeal provided in another law. Decision of Federal Tax Ombudsman on a complaint filed by a requester under the Ordinance, as per Supreme Court judgment in Pakistan Fisheries Case (PLD 1993 SC 109), was final with no further remedy available to the Board.

Mst. Bibi Chazala v. Member, Board of Revenue, Punjab, Lahore and others 2011 SCMR 749; Capital Development Authority through Chairman v. Raja Muhammad Zaman Khan and another PLD 2007 SC 121 and Mst. Tabassum v. Waqar Hussain and another 2011 MLD 351 ref.

Contention that finality attached to the decision of the Federal Tax Ombudsman would yield to the remedy of representation to the President provided for in Section 32 of the Ordinance was misplaced, as Section 37 of the Ordinance merely granted effect to the provisions of Federal Tax Ombudsman Ordinance, 2000 over other laws for the time being in force but no more. Purpose of non obstente clause of the nature found in Section 37 of the Ordinance was nothing more than to point out that the same should have precedence over anything contrary in any other law to the contrary. Freedom of Information Ordinance, 2002, having been promulgated in the year 2002 and also being a special law, its provisions could not be made subservient to the Federal Tax Ombudsman Ordinance, 2000, which was an earlier law; both being special laws, the later in time would prevail. Nothing inconsistent or contradictory existed between the two enactments in question inasmuch as the subject matter of the both was different and distinct.

Sheikh Khalid Mahmood v. Banking Tribunal, NWFP, Peshawar and another 1997 CLC 1812 rel.

Section 19 of Freedom of Information Ordinance, 2002, provided final remedy to a citizen of approaching the Tax Ombudsman, who had been denied information or public record. Freedom of Information Ordinance, 2002 did not provide any further appeal beyond the forum of the Tax Ombudsman and as such finality must be attached to its decisions subject to the challenge made in the constitutional jurisdiction of the High Court. By providing the forum of Tax Ombudsman for lodging complaints by a person denied access to information or public record did not mean that the remedy of representation to the President provided for in Section 32 of the Federal Tax Ombudsman Ordinance, 2000 also became available to the public bodies. Section 2 (b) of Federal Ombudsman Institutional Reforms Act, 2013 provided definition of 'Ombudsman' to mean ombudsman appointed under the 'relevant legislation'; whereas, Freedom of Information Ordinance, 2002, as defined in its Section 2(c), was not included in the definition of 'relevant legislation'. Recourse to Section 14 of the Freedom of Information Ordinance, 2002 was, therefore, of no avail to the respondents.

Section 32 of Federal Tax Ombudsman Ordinance, 2000 provided remedy of representation before the President against the recommendations of the Tax Ombudsman. Two expressions 'decision' and 'recommendation' had different connotations. The President, therefore, had no jurisdiction to entertain and pass a decision on the representation filed by the department against the decision of the Tax Ombudsman.

Department, in the present case, had not made any attempt to demonstrate that the disclosure of the recommendations of the ARDC would be contrary to the public interest and thus failed to overcome the public interest test. Expression 'any intermediary opinion or recommendation' in any event did not include the opinion given by the ADRC to the Board under a dispute resolution mechanism, which had its roots in various statutes. Recommendations of the ADRC, being a statutory remedy, did not fall in the deliberative process of department/authority leading up to the formation of a policy or passing of a decision. Under the scheme of Sales Tax Act, 1990 and Income Tax Ordinance, 2001, finality was attached to the opinion rendered by the ADRC, as upon its submission to the Board the role of the ADRC came to an end. After the opinion of the ADRC, the decision thereon rested with the Board or the Appellate Authority where the matter was pending before the same had been sent to the ADRC. Expression 'any intermediary opinion or recommendation' must have been taken to be a step in the deliberative process which was made basis of formulation of a policy or other decision of like nature. Recommendation of the ADRC, which had been made under the statutory dispensation, were thus not covered by the exclusion contained in Section 8(c) of the Ordinance. Disclosure of the recommendations of the ADRC would not pose any risk of harm that would outweigh the democratic interest in Government's accountability.

Jordan v. Department of Justice [1978] USCA DC 317; 591 F (2d) 753 rel.

Interpretation of Section 8(c) of the Ordinance, under which it was contended that the record of the ADRC pertained to the personal privacy of the individual and that record pertained to the private documents furnished on the express or implied condition that the information contained in any such document would not be disclosed to a third person, was not valid. Firstly, in order for a matter to be referred to the ADRC, the same had to be pending before the Appellate Authority, which essentially meant that the matter was under litigation between the Revenue and the tax payer and pending before an adjudicatory forum; thus, the record of such litigation could not be termed as private record. Secondly, the alternate dispute resolution mechanism was a system for resolving the disputes between the parties out of the court, which system operated alongside the normal adjudicatory mechanism and thus could not be allowed to be shrouded in mystery. Recommendations of the ADRC could potentially form basis for an out of court settlement between the tax payer and the Revenue pertaining to matters of liability to pay duties, taxes, admissibility of refund or rebate, waiver or fixation of penalty or fine, confiscation of goods and relaxation to time limitation, procedural and technical conditions. As the matter pertained to payment of taxes or waiver thereof, which had been taken outside the normal adjudicatory mechanisms by virtue of the ADRC, it was of utmost importance for the public to know about the recommendation which formed basis for the final orders passed by the Board. ADRC had to give its recommendations on the dispute between the parties in regard to which the relevant documents were already on the record before the Appellate Authority and thus accessible to public.

Application of the petitioner had not been responded to by the Board contrary to the command of the Freedom of Information Ordnance, 2002, which had prompted the petitioner to approach the Tax Ombudsman. Board, instead of complying with the direction of the Tax Ombudsman, had approached the President to get its decision set aside, even though the President had no authority to entertain the said representation under the applicable law. Board had not passed any order on the petitioner's application and the President had not furnished any reasons in the impugned order for claiming the exclusion of Section 8 of the Ordinance on the opinions of the ADRC. Both the Board and the President, thus, had defeated the very purpose of the Ordinance, without application of mind. High Court, declared the impugned decision passed by the President as without lawful authority and of no legal effect and directed the respondent department to provide the requisite information/record to the petitioner forthwith. Constitutional petition was allowed in accordingly.

Muhammad Hussain and others v. Islamic Republic of Pakistan PLD 1991 SC 385 distinguished.

S.M. Rahman & Co. v. Motabar and others PLD 1981 SC 282 ref.

Pakistan v. Maqsood Ali 1981 PLC 307; Pakistan Fisheries Ltd. Karachi and others v. United Bank Limited PLD 1993 SC 109; Padfield v. Minister of Agriculture Fisheries and Food [1968] AC 997; Ealing London Borough Council v. Race Relations Board [1972] 1 All ER 105; AXA General Insurance Ltd. v. HM Advocate [2012] 1 AC 868; Mckinnon v. Secretary, Department of Treasury [2005] FCAFC 142; National Labor Relatios Board v. Board of Robbins Tire and Rubber Co. (1978) 437 U.S. 214 and Dagg v. Canada (Minister of Finance) [1997] 2 SCR 403 rel.

(b) Freedom of Information Ordinance (XCVI of 2002)----

----Ss. 3, 8 & 15---Access to information---Exclusions---Rules of construction---In terms of S. 3 of Freedom of Information Ordinance, 2002, the Court is to interpret and apply the Ordinance so as to further its object, bearing in mind that while the Ordinance gives a legally enforceable right to every person to be given access to public record held by the Government, which right is subject to an exemption contained in S.15 of the Ordinance relating to international relations---Relevant provisions of the Ordinance, therefore, were to be given proper construction, which would further, rather than hinder, free access to information----Section 8 of the Ordinance, in addition, provided certain exclusions in relation to public record, which made the documents mentioned therein not to be public record.

(c) Freedom of Information Ordinance (XCVI of 2002)----

----S. 8---Constitution of Pakistan, Art. 19-A---Access to information, right of---Scope---Exclusion---Rules of interpretation---Subsequent to the passing of Freedom of Information Ordinance, 2002, Art. 19-A of the Constitution had been inserted in the Constitution through Constitution (Eighteenth Amendment) Act, which grants every citizen the right to have access to information in all matters of public importance subject to regulation and reasonable restriction imposed by law---Citizens, in addition to the Ordinance, had the constitutional guarantee of freedom of access to information---Exclusion contained in S.8 of the Ordinance, after the introduction of Art. 19-A of the Constitution, would have to be strictly construed justifying the denial of access of public record to the citizens.

(d) Freedom of Information Ordinance (XCVI of 2002)----

----Ss. 8 & 15---Access to information, right of---Information/documents excluded/exempted---Scope---'Likely to cause grave and significant damage to the interests of Pakistan'---Applicability---Section 8 of Freedom of Information Ordinance, 2002 vaguely and generally specifies the document which were excluded from the purview of the public record without prescribing the criteria on which the application of a requester may be turned down for their supply---Ordinance has not set any standards for determining as to which record or portions thereof should or may be withheld from disclosure---Expression 'any intermediary opinion or recommendation' did not mean every opinion or recommendation in a file, which is excluded being not public document---Section 15 of the Ordinance grants absolute exemption to such information the disclosure of which was likely to cause grave and significant damage to the interests of Pakistan in the conduct of international relations---Standard of 'likely to cause grave and significant damage to the interests of Pakistan' thus would trump the right of the requester seeking information regarding the international relations.

(e) Freedom of Information Ordinance (XCVI of 2002)----

----Ss. 8 & 7---Exclusions/exemptions---Information/documents excluded/exempted---Opinion of designated Official---Scope---Section 8 of the Ordinance, in regard to exclusions, explicitly specified that the designated official is to form opinion that he is excused from disclosing/providing the information/record requested on the ground that the same does not constitute public record under S. 7 of Freedom of Information Ordinance, 2002 and was excluded in terms of S.8 of the Ordinance---Forming of such opinion per se makes the exclusions of S.8 of the Ordinance qualified and not absolute, as the same are dependent on the subjective opinion of the designated official.

(f) Freedom of Information Ordinance (XCVI of 2002)----

----S. 8---Exclusion of certain record---'Forming of opinion' by designated official---Onus as to validity of exclusion---Onus is on the designated official to make out a case for exclusion of a document based on the scheme of the Ordinance, which obligates disclosure---Expression "Forming of opinion" or expressions of like nature on their face appeared to confer on the public official unlimited power, or at least the power to choose from a wide range of alternatives, the purpose being to free them of judicial interference---Courts, however, does not readily defer to the finality and conclusiveness of an administrative body's decision as to the existence of a question of fact upon which the validity of its exercise of power rests---Exercise of powers couched in subjective terms is still to be made in good faith and on relevant considerations---Courts have always insisted on that such unconstrained power is limited by the purpose of the statute---Courts would require the public official to take into account the specified considerations and ignore the irrelevant, where the purpose of the statute is clearly defined---Freedom of Information Ordinance, 2002 cast a duty on the designated official to make a determination whether the documents requested for fall in the exclusions contained in S.8 of the Ordinance.

Padfield v. Minister of Agriculure Fisheries and Food [1968] AC 997 rel.

(g) Freedom of Information Ordinance (XCVI of 2002)----

----S. 8---Exclusion of certain record---Rules of interpretation---Basic scheme of Freedom of Information Ordinance, 2002 and the language employed suggested that the right of access to information/record was the primary interpretation tools to be employed in making a determination regarding the exclusions of S. 8 of the Ordinance.

(h) Freedom of Information Ordinance (XCVI of 2002)----

----S. 8----Exclusions of certain record---Test---Test applicable under Freedom of Information Ordinance, 2002 is that access to information is to be provided unless its disclosure, on balance, would be contrary to public interest---Duty of a public body to disclose and provide the information/record is thus displaced by the exclusions of S. 8 of the Ordinance only if the public interest in disclosing and providing the information/record sought is outweighed by public interest in maintaining exclusions.

AXA General Insurance Ltd. v. HM Advocate [2012] 1 AC 868 rel.

(i) Freedom of Information Ordinance (XCVI of 2002)----

----S. 8----Exclusions of certain record---Principles---Merely because the record has come within the purview of the general words used in S.8 of Freedom of Information Ordinance, 2002 does not necessarily mean that its disclosure will harm the interest protected by the exclusions.

(j) Freedom of Information Ordinance (XCVI of 2002)----

----S. 8----Exclusions of certain record---Duty of public body relying on exclusion---In case exclusion from disclosure under S. 8 of the Ordinance is relied on by the public body, it is for the pubic body to justify/demonstrate that the stance is supported by weighing of the relevant aspects of the public interest.

(k) Freedom of Information Ordinance (XCVI of 2002)----

----S. 8---Exclusions of certain record---Object of exclusions/ exemptions--- Documents subject to exclusions/ exemptions---Comparative study.

Jordon v. Department of Justice [1978] USCA DC 317; 591 F (2d) 753 rel.

(l) Freedom of Information Ordinance (XCVI of 2002)----

----S. 8---Exclusions of certain record---Documents subject to exclusion---Scope---'Intermediary opinion or recommendation'---Interpretation, rules of---Duty of designated official---Every intermediary opinion or recommendation on a departmental file will not fall into the category of excluded documents---Expression 'intermediary opinion or recommendation' has to be interpreted in a manner so as to confine its scope to the deliberative process during the formation of policy of a department/agency/authority that is a process involving deliberations, consultation and recommendation that occurs prior to a decision, or before or while undertaking a course of action---Any intermediary recommendation or opinion given to an agency/ department/authority during a process which involved weighing up or evaluating competing arguments or considerations that may have bearing on a course of action, decision, proposal or policy may be excluded from the public record in terms of S. 8 (c) of Freedom of Information Ordinance, 2002, but a decision must be made by the designated official whether, in the particular circumstances of the case, the desirability of disclosing the information, in the public interest, outweighs the interest in withholding the information.

Mckinnon v. Secretary, Department of Treasury [2005] FCAFC 142 rel.

(m) Freedom of Information Ordinance (XCVI of 2002)----

----S. 8---Exclusions of certain record---Object and scope---Exclusions of S.8 of the Ordinance can be seen as an attempt to protect the integrity and viability of the decision making process---In case the release of record of Government/public bodies would significantly harm and prejudice the decision making process and on balance there is no benefit of the public which outweighs that impairment then it would be contrary to the public interest to grant access to such record---Said test favours the release of information/documents, but the same also allows competing consideration to be taken into account.

(n) Freedom of Information Ordinance (XCVI of 2002)----

----S. 8---- Exclusions of certain record---Duty of public authority---In case a public authority is of the opinion that the information sought is to be withheld in terms of S. 8 of the Ordinance, the authority must decide that the exclusion applies to the requested information and that public interest is better served by maintaining the exclusion (and hence withholding the information) or by disclosing the information.

(o) Freedom of Information Ordinance (XCVI of 2002)----

----S. 8---Exclusions of certain record---Persons subject to applicability of exclusions---Phraseology used in S. 8 (g) of Freedom of Information Ordinance, 2002 indicates that the Legislature had in mind only a natural person as having, for the purposes of the section, personal affairs and not a corporation---No provision of the Ordinance deals with the need to preserve privacy of business/tax documents be that of an individual or a corporation.

(p) Freedom of Information Ordinance (XCVI of 2002)----

----Preamble---'Public interest'---Meaning and Scope---'Public interest' is an amorphous concept, and its definition is often not found in the freedom of information legislation---Flexibility of 'public interest' was intentional as public interest will change over time according to the circumstances of each situation.

Mckinnon v. Secretary, Department of Treasury [2005] FCAFC 142 rel.

(q) Freedom of Information Ordinance (XCVI of 2002)----

----Preamble----Object---Freedom of Information Ordinance, 2002 is intended to cast aside the era of closed government and to transform the culture of secrecy to one of openness thus promoting good governance and public administration.

National Labor Relations Board v. Board of Robbins Tire and Rubber Co. (1978) 437 U.S. 214 and Dagg v. Canada (Minister of Finance) [1997] 2 SCR 403 rel.

(r) Freedom of Information Ordinance (XCVI of 2002)----

----Preamble----Object---Object of Freedom of Information Ordinance, 2002 is to provide improved access to public record and to make Government more accountable to the citizens and to facilitate and encourage the disclosure of information.

Ealing London Borogh Council v. Race Relations Board [1972] 1 All ER 105 rel.

(s) Constitution of Pakistan---

----Part II, Chap. 1 [Arts. 8-28]----Fundamental rights---Scope---Fundamental rights cannot be overridden by general or ambiguous words.

(t) Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000)----

----Preamble----Scope of the Ordinance---Federal Tax Ombudsman Ordinance, 2000 deals with the investigation and redressal of injustices done to a person on account of maladministration by the officials of the revenue department.

(u) Interpretation of statutes----

----In case two provisions of two different enactments are in clash with each other and cannot be reconciled, then the later in date would prevail.

(v) Interpretation of statutes----

----When the object and aim of a statute is clearly expressed in its provisions, the scope and intent thereof cannot be restricted or rendered nugatory by the provisions of another statute particularly when the other statute did not contain any provision inconsistent with the same.

(w) Interpretation of statutes----

----Courts cannot ignore the express language and the plain meaning of the various provisions of a statute in attempting to find the object of the law and the goals fixed by the Legislature.

(x) Jurisdiction--

----Special jurisdiction created by statute---Fundamental rule---Where an enactment creates a new jurisdiction, prescribes the manner in which that jurisdiction is to be exercised and further specifies the remedy, such remedy is exclusive and the party aggrieved of an order made in the exercise of that jurisdiction must seek only such remedy and no other.

(y) Words and phrases---

----'Decision'/'recommendation'---Two expressions 'decision' and 'recommendation' have different connotations---'Decision is a binding adjudication of rights and claims between two or more persons whereas 'recommendation' denotes something in the nature of a suggestion.

Petitioner in person.

Ch. Liaqat Ali for Respondents.

Javed Athar for FBR.

Ms. Hina Hafeez Ullah, Standing Counsel.

P L D 2016 Peshawar 1

Before Yahya Afridi and Muhammad Younis Thaheem, JJ

SAJED ULLAH---Petitioner

Versus

Mst. SHAKEELA NAZ and 3 others---Respondents

Writ Petitions Nos.325-B of 2013 and 34-B of 2014, decided on 28th January, 2015.

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

----S. 5 & Schd.---Muslim Family Laws Ordinance (VIII of 1961), Ss.7, 8, 9 & 10---Constitution of Pakistan, Art. 199---Constitutional petition---Talaq/Khula' pronounced through Jirga/arbitration---Respondent/wife filed suit for recovery of dower amount with fine, dowry articles, maintenance for herself and for minor and medical expenses against petitioner/husband claiming that petitioner had ousted her out of his house forcibly taking gold ornaments and dowry articles from her---Petitioner denied all the allegations---Trial Court, after recording evidence decreed the suit regarding dower without fine and maintenance of respondent/wife till completion of Iddat, maintenance of minor with ten per cent annual increase and medical allowance partially, and dismissed the suit regarding dowry articles---Appellate court dismissed appeals filed by both parties except dismissing the claim for recovery of medical expenses---Petitioner contended that Talaq was pronounced on basis of Khula' upon decision of Jirga/Arbitrators as agreed and desired by wife, and she was not entitled to recovery of dower amount as she had given her consent to proceedings of Jirga for Khula' which were binding on her---Wife argued that Trial Court had rightly decreed medical charges spent during delivery of minor and she had never demanded Talaq nor had she participated in any Jirga/Arbitration proceedings or gave her consent for the same---Validity---Wife had a right to seek divorce on basis of Khula' in lieu of returning benefits which she had received from her husband---Khula' could be granted through court and could not be decreed by force without consent of wife---Decision of arbitrators had no sanctity in law, and divorce on basis of Khula' could not be pronounced by arbitrators/Jirga nor could the decision be imposed upon wife---Divorce pronounced by husband, in circumstances, was to be treated as Talaq not on basis of Khula'---Free consent of wife was mandatory in case of divorce on basis of Khula'---Husband pronounced Talaq on basis of Khula' upon decision of arbitrators without consent of wife and the same could not be treated divorce on basis of Khula'---Courts below rightly held that divorce pronounced by husband was Talaq and not Talaq on basis of Khula'---Wife was entitled for recovery of dower amount along with other reliefs---Husband admitted fixation of dower amount as claimed and wife was entitled to recover the same---Trial court rightly appreciated facts. circumstances, evidence and relevant law while holding the recovery of dower---Wife produced evidence in support of her claim regarding medical expenses and appellate court had rightly reversed findings of Trial Court regarding medical treatment charges---Findings of appellate court were based on proper appreciation of evidence and needed no interference---Constitutional petition was dismissed.

Dr. Akhlaq Ahmad v. Kishwar Sultana and others PLD 1983 SC 169; Aman Ullah v. Mst. Husna Bibi PLD 1997 Kar. (sic) and Zeb Sar v. Mst. Kosar and 3 others PLD 2004 Pesh. 15 rel.

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

----S. 5 & Schd.----Family Court, jurisdiction of---Scope---Pronouncement of divorce on basis of Khula'---Procedure---Jirga/Arbitration proceedings, validity of---Islamic provisions relating to marriage, maintenance and Talaq were governed and regulated through Muslim Family Laws Ordinance, 1961---Exercise of right of Khula' by wife was subject to satisfaction of judicial conscious of court---Unlawful decisions through Jirga system were practised in Pakistan but when some provisions of law were violated by Jirga members or arbitrators that could not be protected---Talaq through Khula' could only be pronounced with intervention of court.

Shazia Bibi v. State 2004 PCr.LJ 1523 rel.

Muhammad Qasim Khan and Wajahatullah for Petitioner.

Muslim Jan for Respondents

Date of hearing: 28th January, 2014.

P L D 2016 Peshawar 8

Before Yahya Afridi, J

MUHAMMAD AYAZ and others---Petitioners

Versus

Malik ZAREEF KHAN and others---Respondents

Civil Revision No.1106-P of 2013, decided on 27th March, 2015.

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

----S. 4---Civil Procedure Code (V of 1908), O. XX, R. 18---West Pakistan Land Revenue Act (XVII of 1967), Ss. 3 & 172 (2)---Suit for partition---Rights of parties, determination of---Scope---Preliminary decree---Purpose---Partial partition---Competence---Partition had to be sought for all the undivided immovable properties and partial partition thereof would not be competent---All the co-sharers of said undivided property had to be impleaded in the suit for partition---Court to ensure that each co-sharer was allotted his share equitably depending on the value thereof which would depend upon the area, location and nature of property---Suit property sought to be partitioned was situated within the Abadi Deh and civil court was competent to adjudicate the partition proceedings---Defendants had failed to point out any other joint immovable property within Abadi Deh in the Mauza---Immovable undivided property outside the Abadi Deh had to be partitioned by the Revenue hierarchy---Plaintiffs could not have included the land owned by the parties in Shamilat Deh in their suit filed before the Trial Court---Trial Court was required to first determine the respective rights of the parties and record the same in the preliminary decree---Said preliminary decree would ensure each party /co-sharer to know exactly their rights which would include their respective shares and if any improvement was made thereon---Both the courts below had accepted the prayer for partition but had not determined the respective rights of the parties---Impugned judgments passed by both the courts were set aside and case was remanded to the Trial Court with direction to determine the rights of the parties and decide the same within specified period.

Razia Sultana's case 2004 CLC 668; Mahmood Khan's case 2004 CLC 1345; Ghulam Rasool's case 2006 YLR 2289; Qamar Sultan's case 2012 SCMR 965; Mst. Maqsooda's case 2004 YLR 1019; Muqadar's case 2008 CLC 43 and Jamaluddin's case 2012 CLC 1353 ref.

Chandi Shah's case AIR 1930 Lah. 286; Jan Muhammad's case 1993 SCMR 1463 and Qazi Qaiser Parvez's case 2000 CLC 519 rel.

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

----S. 4---Suit for partition of the property other than agricultural land---Stages of proceedings detailed.

In cases of partition of immovable property, which are governed under the provision of the Partition Act, 1893, other than agricultural land, the proceedings thereof entail the following stages;

Stage No.I. Pleadings.

A co-owner files a suit for partition of immovable property before a Court of competent civil jurisdiction, the said plaint should include all the immovable property and implead all the co-owners of the said undivided joint immovable property.

Stage No. II. Preliminary Decree.

The trial Court after seeking written statement of the other co-owners, frame issues, allow parties to record their pro and contra evidence and thereafter passes a Preliminary Decree determining the rights of each of the co-owners in the joint undivided immovable property as per the contemplation of Sub-Rule 2 of Rule 18 of Order XX of C.P.C.

Stage No.III. Final Decree.

Any one of the parties to the original suit for partition whose rights have been determined by the trial Court as recorded in the Preliminary Decree therein may move an application for final partition to the trial Court within the contemplation of section 3 of the Partition Act, 1893. The trial Court after seeking the necessary evidence as to the nature of the property sought to be partitioned determine the mode of partition of the said property in the Final Decree, which would stipulate, inter alia, the actual delivery of possession to each co-owner of his share in the divided property or where the same is not physically divisible amongst the shareholders then each party is given his share in the auction proceeds of the divided property or any other arrangement, deemed appropriate in the circumstances of the case.

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

----S. 4---Partition---Requirements---Partition had to be sought for all the undivided immovable properties and partial partition thereof would not be competent---All the co-sharers of undivided property had to be impleaded in the suit for partition---Court should ensure that each co-sharer was allotted his share equitably depending on the value thereof which would depend upon the area, location and nature of property.

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

----S. 3---Partition of immovable property---Jurisdiction of civil court---Scope---Jurisdiction for partition of undivided immovable property which was outside the domain of Revenue hierarchy would vest in the ordinary civil court of competent jurisdiction.

Syed Sher Badshah Gillani for Petitioners.

Muhammad Hamayun Khan for Respondents.

Date of hearing: 27th March, 2015.

P L D 2016 Peshawar 18

Before Nisar Hussain Khan and Qalandar Ali Khan, JJ

Mst. BILQEES BEGUM and 2 others---Petitioners

Versus

ARBAB HIDAYAT ULLAH KHAN and others---Respondents

Writ Petition No.1811 of 2009, decided on 1st April, 2015.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Specific Relief Act (I of 1877), S. 42---Constitution of Pakistan, Art. 199---Constitutional petition---Plaintiffs filed suit for declaration on basis of inheritance from their mother who was daughter of predecessor, challenging gift mutations executed by the predecessor in favour of his son---Defendants filed application under O.VII, R.11, C.P.C. on ground of limitation, which was dismissed by Trial Court but the same was accepted by revisional court and plaint was rejected---Contention raised by plaintiffs was that only statement made in plaint should have been taken into consideration instead of partition proceedings or other facts not forming part of plaint, and that limitation was mixed question of law and facts, as starting point of limitation was date of knowledge---Validity---Plaint alone had to be taken into consideration for order under O.VII, R.11, C.P.C.---Plaintiff had challenged gift mutations after more than sixty years and had claimed inheritance from deceased mother who had not challenged the mutations by her father in favour of her brother in her life time---Plaint was barred by law of limitation calling for its rejection under O.VII, R.11, C.P.C.---Impugned order of appellate court did not suffer from illegality or irregularity to call any interference---Constitutional petition was dismissed in circumstance.

Abdul Sattar Khan for Petitioners.

Zia-ur-Rehman Khan for Respondents.

Date of hearing: 1st April, 2015.

P L D 2016 Peshawar 21

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 2016 Peshawar 26

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 2016 Peshawar 29

Before Malik Manzoor Hussain and Haider Ali Khan, JJ

Raja LIAQAT ALI---Appellant

Versus

SHEHZAD ALAM and 3 others---Respondents

R.F.A. No.30-M of 2013, decided on 3rd December, 2014.

Defamation Ordinance (LVI of 2002)---

----S. 3---Civil Procedure Code (V of 1908), O.VII, R.11---Constitution of Pakistan, Art.247(3), 270-AA & 89---Defamation---Suit for damages---Applicability of Defamation Ordinance, 2002 to Provincially Administered Tribal Areas of Khyber Pakhtunkhwa---Plaint, rejection of---Scope---Trial Court rejected plaint on the ground that Defamation Ordinance, 2002 had no application to the Provincially Administered Tribal Areas---Validity---Provincially Administered Tribal Areas were part of Pakistan and Defamation Ordinance, 2002 was made applicable to the whole of the country---Article 247 of the Constitution was non-operative when Defamation Ordinance, 2002 was promulgated---Separate Ordinance/Order or a Regulation by the President was not required for extension of Defamation Ordinance, 2002 to Provincially Administered Tribal Areas---President had not promulgated Defamation Ordinance, 2002 in exercise of his ordinary powers under Art.89 of the Constitution rather it was in exercise of powers under Provisional Constitution Order, 1999---Impugned order passed by the Trial Court was not in accordance with provisions of Constitution which was declared without lawful authority and of no legal effect---Suit filed by the plaintiff would be deemed to be pending before the Trial Court who should decide the same in accordance with law---Appeal was accepted in circumstances.

Aftab Alam for Appellant.

Mujahid Farooq for Respondent.

Date of hearing: 3rd December, 2014.

P L D 2016 Peshawar 32

Before Waqar Ahmad Seth and Qalandar Ali Khan, JJ

Messrs CHERAT CEMENT COMPANY LTD. NOWSHERA through Manager Accounts---Petitioner

Versus

PAKISTAN through Secretary Ministry of Petroleum and Natural Resoures, Islamabad

and 3 others---Respondents

Writ Petition No.1096 of 2011, decided on 11th November, 2014.

Constitution of Pakistan--

----Arts. 158 & 199---Constitutional petition---Supply of natural gas---Priority---Petitioner company raised the plea that in view of Art.158 of the Constitution, failure to supply natural gas to its plant was illegal---Validity---Province of Khyber Pakhtunkhwa had surplus gas over and above its own consumption---Cement manufacturing unit of petitioner situated in Khyber Pakhtunkhwa Province should have had precedence over cement manufacturing units outside the Province but record spoke otherwise---Instead of giving precedence to petitioner's cement manufacturing unit, the units in other Provinces were given preference and petitioner was deprived of its legal and constitutional right---High Court declared the conduct of authorities in delaying the provision and supply of gas connection to petitioner company as illegal, arbitrary, unreasonable, discriminatory, without lawful authority and jurisdiction and also violative of constitutional guarantees enshrined in the Constitution---High Court directed the authorities to act in accordance with law and Constitution and forthwith supply gas to cement manufacturing unit of petitioner---Petition was allowed accordingly.

Messrs Lucky Cement Limited through General Manager v. Federation through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and others PLD 2011 Pesh. 57 ref.

Khalid Mehmood Siddiqui for Petitioner.

Kifayat Ullah Khan, D.A.G. for Respondents.

Date of hearing: 11th November, 2014.

P L D 2016 Peshawar 35

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

KHALID KHAN---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No.252-P of 2015, decided on 30th April, 2015.

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

----S. 164---Pakistan Air Force Rules, 1957, R. 99---Criminal Procedure Code (V of 1898), S.382-B---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Extension of benefit of S.382-B, Cr.P.C. to the accused belonging to armed forces---Scope---Equality of citizens---Contention of petitioner was that while awarding sentence benefit of S.382-B, Cr.P.C. was not extended to him which was against fundamental right---Validity---Courts-Martial had their own procedure of trial and provisions of Code of Criminal Procedure, 1898 were not applicable thereto---All the armed forces had their independent procedure and forum of investigation, inquiry, trial and appeals---Section 164 of Pakistan Air Force Act, 1953 was analogous to some extent to S.382-B, Cr.P.C.---Period of trial was to be computed towards served-out sentence---Court-Martial had powers to consider the period of confinement pending trial apart from other factors including general character, age, services, rank and any recognized act of gallantry or distinguished conduct of the accused while awarding the sentence---Court-Martial had powers to reduce the sentence proportionate to the period spent in confinement during trial---Section 164 of Pakistan Air Force Act, 1953 and R.99 of Pakistan Air Force Rules, 1957 were pari materia to S.382-B, Cr.P.C. with only distinction that in the former too Court-Martial had been empowered to itself consider the period of confinement during the trial and accordingly remit the sentence whereas in the latter jail authorities were required to compute the sentence while reckoning the period of detention during trial towards imprisonment---Section 164 of Pakistan Air Force Act, 1953 made it mandatory to reckon the period of detention during trial in computing the sentence of imprisonment---Action having been taken against the petitioner as member of Pakistan Air Force therefore, High Court could not interfere with any order passed against him by the hierarchy of Pakistan Air Force---High Court could not interfere with any such order by abridging rather transgressing the barring clause of Art.199 of the Constitution which had vested jurisdiction---Service structure of the armed forces had provided strict rules of procedure for maintenance of discipline---Personnel of armed forces in their matters of service and discipline could not be treated at par with the civil servants or an ordinary citizen---Personnel of armed forces had their independent rights and liabilities according to their nature of service and duties and they could not claim equal treatment (in this regard) with the civilians---Present constitutional petition was not maintainable which was dismissed in circumstances.

Dr. Muhammad Aslam Khaki v. The State PLD 2010 FSC 1 ref.

Ex. Lt. Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary Ministry of Defence, Rawalpindi and 2 others PLD 2001 SC 549 and Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286 rel.

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

----S. 164---Pakistan Air Force Rules, 1957, R. 99---Criminal Procedure Code (V of 1898), S. 382-B---Distinction between S.164 of Pakistan Air Force Act, 1953, R. 99 of Pakistan Air Force Rules, 1957 and S.382-B of Criminal Procedure Code, 1898---Section 164 of Pakistan Air Force Act, 1953 and R.99 of Pakistan Air Force Rules, 1957 were pari materia to S.382-B, Cr.P.C. with only distinction that in the former too, Court-Martial had been empowered to itself consider the period of confinement during the trial and accordingly remit the sentence whereas in the latter jail authorities were required to compute the sentence while reckoning the period of detention during trial towards imprisonment.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Matters relating to armed forces---Bar of jurisdiction under Art.199(3)---Scope---No order should be made under Art.199(3) of the Constitution with regard to a person who was member of the armed forces of Pakistan in respect of any matter arising out of his service or in respect of any action taken in relation to him as member of armed forces.

(d) Constitution of Pakistan---

----Art. 25---Equality of citizens---Scope---Equality of citizens and their equal treatment and protection of law was a cherished goal of the Constitution but rule of classification was also an established principle of law as well as Islamic jurisprudence on the principle of intelligible differentia.

Muhammad Arif Jan for Petitioner.

Muhammad Sohail Khan, A.A.G. and Manzoor Khan Khalil, D.A.G. for Respondents.

Date of hearing: 30th April, 2015.

P L D 2016 Peshawar 42

Before Yahya Afridi, J

ALI MUHAMMAD and others---Petitioners

Versus

ROMAL---Respondent

C.R. No.1239 of 2012 with C.M.645-P of 2012, decided on 10th July, 2015.

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

----O. XLI, R. 23---Remand of case---Principles---Relevant evidence had been recorded---Preliminary decree and record had not been placed on record but same had been commented upon by the courts below---When there was no need for recording of additional evidence, case be decided and should not be remanded to the lower court for framing of issue---Revision was dismissed in circumstances.

Muhammad Akbar's case 1998 SCMR 724; Bharoo' case 1999 SCMR 786 and Mst. Malkani's case 2004 SCMR 1591 ref.

Abdul Karim's case 2012 SCMR 212; Muhammad Dervaish Al-Gilani's case 1997 SCMR 524; Ashiq Ali's case PLD 2004 SC 10; Muhammad Mukhtar's case 2007 SCMR 1867 and Habib Ullah's caes 2007 SCMR 271 rel.

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

----S. 4---Suit for partition---Preliminary decree---Scope---Preliminary decree would decide the respective shares of all the co-owners in the undivided joint property---Final decree had to be sought for execution of preliminary decree for delivery of possession of the share of each co-owner in the corpus of the undivided property.

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

----S. 115---Revision---Scope---Revisional Court could not interfere in the findings recorded by the courts below even if it had come to a different conclusion than the ones arrived at by the said courts unless those were arbitrary, capricious or outrightly absurd.

Muhammad Idrees v. Muhammad Parvez 2010 SCMR 5 rel.

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

----O. VI, R.5---Parties could not go beyond their pleadings---Particulars of evidence need not to be mentioned in the plaint and same could be produced during recording of evidence.

Pir Muhammad's case PLD 2007 SC 302; Haji Noor Muhammad's case 2000 SCMR 329 and Altaf Hussain's case 2000 SCMR 314 rel.

Mian Muhibullah Kakakhel for Petitioners.

Nasir Khan Khalil for Respondent.

Date of hearing: 10th July, 2015.

P L D 2016 Peshawar 49

Before Muhammad Daud Khan, J

AMEERULLAH KHAN---Appellant

Versus

Mst. NISAR BEGUM and others---Respondents

R.F.A. No.19-B of 2011, decided on 9th June, 2014.

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

----Ss. 14 & 5---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Interpretation of Ss.14 & 5, Limitation Act, 1908---Proceedings before wrong forum---Exclusion of time of proceedings in court without jurisdiction---Scope---Appeal---Limitation---Condonation of delay---Expression "due diligence" and "good faith"---Sufficient cause---Due care and attention---Time spent in pursuing the proceedings before wrong appellate forum could not be excluded as suit did not include the appeal or the application---Benefit of S.14 of Limitation Act, 1908 could not be extended to exclude the time consumed in prosecuting an appeal before wrong forum---Provisions of S.14 of Limitation Act, 1908 could not be invoked for seeking condonation of delay for filing an appeal---Expression "due diligence and good faith" mentioned in S.14 of Limitation Act, 1908 did not occur in S.5 of the said Act which enjoined only "sufficient cause"---Expression given in both sections could not be equated with each other---Power to condone delay and grant extension in time under S.5 of the Limitation Act, 1908 was discretionary---Condition prescribed in S.5 of Limitation Act, 1908 for its applicability was "sufficient cause" which would differ from case to case---Capability of counsel of the party and conduct of the party during the proceedings would be material to determine the "sufficient cause"---Appeal would lie to the High Court when suit was for the recovery of Rs.five million---Provisions of S.18 of West Pakistan Civil Courts Ordinance, 1962 made it clear that no complication existed with regard to facts to question the proper forum for filing of appeal---Presentation of appeal in District Court was an act of gross negligence---Appellants counsel was expected to know the legal position as to where the appeal was to be filed---Appeal was returned to the appellant on transpiration of wrong forum but same was filed before the High Court after further delay of 48 days which were neither mentioned nor explained in the appeal---Appellant was required to explain delay of each day for condonation of the same in filing of appeal/revision---Appellant had neither claimed condonation of delay in the memorandum of appeal nor had submitted an application for such purpose---Appellant who had failed to satisfy the court that he had been prosecuting his remedy before the wrong forum in good faith and with due diligence was not entitled to the condonation of delay in filing of appeal in the wrong forum---Appeal as well as application for condonation of delay were dismissed in circumstances.

Ghulam Ali v. Akhar alias Akoor and other PLD 1991 SC 957; Raja Karamatullah and others v. Sardar Muhammad Sakheera 1999 SCMR 1892 and Mst Mussarat Ara Khanum v. Umeed Ali and others PLD 1999 Quetta 36) ref.

Government of N.-W.F.P. and others v. Akbar Shah 2010 SCMR 1408; Mst. Bas Khan and others v. Muhammad Rais Khan and others PLD 2005 Pesh. 214; Sher and others v. Fazal Muhammad and others 1995 SCMR 584; Taza Gul and others v. Haji Fazal Subhan 2006 SCMR 504 and Dilawar Shah v. Nasrullah Khan PLD 2011 Pesh. 256 distinguished.

Haji Zabta Khan v. Dr. Ahmad Ali Siraj and others 2014 YLR 1015; Muhammad Hussain and others v. Settlement Commissioner and others 1982 SCMR 425; Mian Muhammad and others v. Additional Commissioner/Settlement Commissioner Rawalpindi and others 1991 SCMR 520; Sherin and others v. Fazal Muhammad and others 1991 SCMR 1679; Ismail v. Subaidar Gul Inayat Shah PLD 1991 SC 997; Abdul Ghani v. Ghulam Samar PLD 1977 SC 102; Raja Karamatullah and others v. Sardar Muhammad Aslam Sakheera 1999 SCMR 1892 and Doctor Syed Sabtain Raza Naqvi v. Hydro Corbon Limited and others 2012 SCMR 377) rel.

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

----S. 14---Applicability of S.14 of Limitation Act, 1908 to appeal---Scope---Provisions of S.14 of Limitation Act, 1908 could not be invoked for seeking condonation of delay for filing an appeal.

Shauket Hayat Khan Khakwani and Hamayun Wazir for Appellant.

Aziz-ur-Rehman for Respondnet.

Date of hearing: 9th June, 2014.

P L D 2016 Peshawar 57

Before Waqar Ahmad Seth and Irshad Qaiser, JJ

YOUSAF AYUB KHAN---Petitioner

Versus

GOVERNMENT through Chief Secretary, Peshawar and 2 others---Respondents

Writ Petition No.2874 of 2009, heard on 29th April, 2015.

(a) Constitution of Pakistan---

----Art. 199---Shariah Nizam-e-Adl Regulation (1 of 2009), Preamble---Constitutional jurisdiction of High Court---Scope---Challenge to vires of law---'Aggrieved person'---Person who was not personally aggrieved could file a constitutional petition before the High Court to assail a law enacted in contravention of Fundamental Rights.

Petitioners, in the present case, had challenged the vires of certain paragraphs of the Shariah Nizam-e-Adl Regulation, 2009 contending that Executive Magistrates had been entrusted with judicial functions. Petitioners had knocked the door of a Constitutional Court (High Court) to assist their fellow citizens in leading their lives in the glow of Constitution and to enjoy the rights provided therein. If a person, having no personal interest came forward in the larger interest and questioned lacunae (in a law), the doors of the Court should not be shut for him, but rather kept open for him. Objection taken to the maintainability of present Constitutional petition on the ground that petitioners were not "aggrieved persons" and therefore could not approach the High Court under Article 199 of the Constitution was not tenable. Moreover three of petitioners were advocates and one was affectee (of a criminal complaint) and they had the right to challenge the vires of the law as custodians of law as well as the affectees.

Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 and Human Rights Commission of Pakistan v. Government of Pakistan PLD 2009 SC 507 rel.

Balochistan Bar Association v Government of Balochistan PLD 1991 Queeta 7 ref.

(b) Constitution of Pakistan ---

----Part. II, Ch. 1 [Arts. 8 to 28]---Fundamental Rights, protection of---Scope---Under the Constitution, the Fundamental Rights were entrenched for every citizen and they were guaranteed against the excesses of all branches of Government including the legislature, be it the Federal Government or the Provincial Government.

(c) Constitution of Pakistan ---

----Art. 4---'Access to justice'---Meaning---Term "access to justice to all" mentioned in Art.4 of the Constitution included the doctrine of due process of law---Tribunal or Court before which the rights of parties were adjudicated should be constituted (in a way) which gave reasonable assurance of the honesty and impartiality of its judges so as to make it a Court of competent jurisdiction.

(d) Shariah Nizam-e-Adl Regulation (1 of 2009)---

----Paras. 5(e), 7, 19(2) & Sched.III---Khyber Pakhtunkhwa Judicial Service Rules, 2001, Rr. 4 & 5---Constitution of Pakistan, Arts. 2A, 4, 8, 9, 10A, 25, 175(3), 199, 202 & 203---Constitutional petition---'Executive Magistrates' appointed under Shariah Nizam-e-Adl Regulation, 2009 by the Government/Executive entrusted with judicial functions, vires of---Independence of 'Judiciary' from the 'Executive'---Executive could not be given judicial powers---Executive Magistrates envisaged under the impugned Shariah Nizam-e-Adl Regulation, 2009 were neither appointed nor supervised by the High Court---Trial of a person by an executive officer over whom the judiciary had no control would violate Art.2A & 203 of the Constitution---Shariah Nizam-e-Adl Regulation, 2009 gave power of judicial appointments to the Government, which contravened Rr.4 & 5 of Khyber Pakhtunkhwa Judicial Service Rules, 2001---Shariah Nizam-e-Adl Regulation, 2009 did not provide the criteria or the terms and conditions of service for the appointment of Executive Magistrates, and it also did not provide for any (mandatory) legal education and training for Executive Magistrates before being granted judicial power---Regular courts, consisting of Civil Judges/Judicial Magistrates had (already) been established in the area to adjudicate civil and criminal disputes, therefore, addition of Executive Magistrate was not based on any rational classification or intelligible differentia and the Government created discrimination and negated the very concept of justice and violated Fundamental Rights---High Court struck down paragraphs 5(e), 7, 19(2), Schedule III, and other relevant paragraphs of Shariah Nizam-e-Adl Regulation, 2009 in respect of functions of Executive Magistrate, Notification No.SO (FATA) IHDI1-60/NAR/09 dated 02.10.2009 and other Notifications entrusting Executive Officers with judicial powers as being ultra vires of the Constitution.

Constitution of Pakistan was based on the principle of trichotomy of powers in which Executive, Legislative and Judiciary had their own defined functions independent from each other. Executive could not be given judicial powers as it would encroach upon the defined domain of the judiciary. Objectives Resolution, which was a substantive part of the Constitution (Article 2A of the Constitution) provided for the independence of the judiciary. Further Article 203 of the Constitution provided that each High Court shall supervise and control all Courts subordinate to it. Said provisions of the Constitution would be negated and rendered null and void if a person was tried by an executive officer over whom the judiciary had no control.

Sharaf Faridi v. Federation of Islamic Republic of Pakistan PLD Kar. 404; Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Dr.Mubasher Hussan v. Federation of Pakistan PLD 2012 SC 265; Al-Jehad Trust's case PLD 1996 SC 324; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Sheikh Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Sindh High Court Bar Association v. Federation of Pakistan PLD 2010 SC 879; Munir Hussain Bhatti v. Federation of Pakistan PLD 2011 SC 407; Muhammad Irshad v. Assistant Commissioner Swat and others PLD 1990 Pesh. 51; Government of Balochistan through Additional Chief Secretary v. Aziz Ullah Memon and 16 others PLD 1993 SC 341; Accountant General Sindh v. Ahmad Ali U. Qureshi PLD 2009 SC 522 and Benazir Bhutto's case PLD 1989 SC 416 ref.

Rule 4 of Khyber Pakhtunkhwa Judicial Service Rules, 2001 provided that appointment of judicial officers of subordinate courts (including Magistrates) shall be made by the High Court. Rule 5 of said Rules provided the method of recruitment for judicial officers. However Shariah Nizam-e-Adl Regulation, 2009 gave power of such judicial appointments to the Government. Government had no authority whatsoever, to appoint Government Officers to perform judicial functions. Executive Magistrates envisaged under the impugned Regulation were neither supervised nor appointed by the High Court.

Neither any criteria for the appointment of Executive Magistrates nor the terms and conditions of their service has been described in the Shariah Nizam-e-Adl Regulation, 2009. Said Regulation did not require that the Executive Magistrates have any legal education and training and instead of their appointments by High Court as required under Article 203 of Constitution, it empowered the Government to appoint them as it may deem necessary. Theoretically an illiterate person could be appointed as an Executive Magistrate. Even if it was presumed that the Government would only appoint Government servants as Executive Magistrate, they would have no legal training, nor were they required to acquire any training before being granted judicial power.

Article 202 of the Constitution, authorized High Court to make "rules regulating the practice and procedure of the Court or any Court subordinate to it". But the High Court had no power to make Rules regulating the practice and procedure of the Executive Magistrates appointed under the impugned Regulation.

Shariah Nizam-e-Adl Regulation, 2009, allowed the Government to confer unrestricted and unfettered power in the Executive to administer criminal justice, when regular courts, consisting of Civil Judges/Judicial Magistrates having qualification as required by the impugned Regulation and Khyber Pakhtunkhwa Judicial Service Rules, 2001, had (already) been established in the area to adjudicate civil and criminal disputes. But without any apparent justification the Government had introduced the repealed colonial setup of Executive Magistracy, which was condemned by the residents of the area.It was a complete negation of the Fundamental Rights which guaranteed equal protection of law, equality before law and right of access to justice unhindered and unfettered as provided by the Constitution and the Injunctions of Islam. Constitution of Pakistan was based on the principle of trichotomy, therefore, by imposing Executive Magistrates without control of High Court, the Government created discrimination in the area and negated the very concept of justice and violated Fundamental Rights. Shariah Nizam-e-Adl Regulation, 2009, thus created a bar against the right of citizen to approach the established Courts of law and to be governed by the general criminal law and procedure applicable in the entire country. In the presence of normal (regular) Courts the addition of Executive Magistrate in the area was not based on any rational classification or intelligible differentia. Provisions of Articles 4, 8, 9, 10-A and 25 of the Constitution did not permit the legislature to frame such laws which may offend the Fundamental Rights. Executive Magistrates created under paragraphs 5(e) and 7 of Shariah Nizam-e-Adl Regulation, 2009, and controlled and superintended by the Executive for adjudication of criminal cases as given in Schedule III of the impugned Regulation would be in a complete conflict with Articles 4, 8, 9, 10-A, 25, 175 and 203 of the Constitution.

High Court declared that paragraphs 5(e), 7, 19(2), Schedule III, and other relevant paragraphs of Shariah Nizam-e-Adl Regulation, 2009 in respect of functions of Executive Magistrate, Notification No.SO(FATA)IHDI1-60/NAR/09 dated 02.10.2009 and other Notifications entrusting Executive Officers with judicial powers of any nature were ultra vires of the Constitution; that any Rule, Notification and order, declaring or appointing any person as Executive Magistrate and authorizing such persons to exercise powers of conducting trials or any other powers pursuant to Shariah Nizam-e-Adl Regulation, 2009 was also void and of no legal effect, however, the convictions made and proceeding conducted by the Executive Magistrate, in pursuance of the said law were saved and protected under the doctrine of past and closed transactions. High Court directed that all pending proceedings before the Executive Magistrates, were to be transferred to the concerned Judicial Magistrates (Ilaqa Qazis) or to the Sessions Judges (Zilla Qazis) of the concerned District, who after receiving such cases shall proceed therewith in accordance with law; that Federal and Provincial Governments should take appropriate measures to bring the Shariah Nizam-e-Adl Regulation, 2009 in conformity with the Constitution within a period not exceeding six months, and that any step taken, which related to the conferment of judicial powers, in the area shall be made in consultation with the High Court.

(e) Constitution of Pakistan ---

----Arts. 10A & 175(3)---Independence of 'Judiciary' from the 'Executive'---Executive officer entrusted with judicial functions---Effect --- Fair trial was deemed to be vitiated if judicial functions were given to the 'Executive' and its officer---Independence of judiciary could not be secured if the 'Executive' was made a part of 'Judiciary'.

Muhammad Kamran Mullahkhail and others v. Government of Balochistan through Chief Secretary and others PLD 2012 Bal. 57 ref.

(f) Constitution of Pakistan ---

----Art. 203---Subordinate judiciary---Supervision by the High Court---Under Art. 203 of the Constitution supervision and control over the subordinate judiciary vested in the High Court and any (subordinate) Court created under any law which was not subject to the judicial supervision of High Court would be violative of Art. 203 of the Constitution.

(g) Shariah Nizam-e-Adl Regulation (1 of 2009)---

----Para. 19(2)---Criminal Procedure (Amendment) Ordinance (XXXVII of 2001), Preamble---Constitution of Pakistan, Arts.143 & 199---Constitutional petition---Paragraph 19(2) of the Shariah Nizam-e-Adl Regulation, 2009, repealed application of Criminal Procedure (Amendment) Ordinance, 2001 to certain parts of Provincially Administered Tribal Area (PATA) of Khyber Pakhtunkhwa---Constitutionality---Shariah Nizam-e-Adl Regulation, 2009 was promulgated by the Provincial Governor---Vide paragraph 19(2) of the Shariah Nizam-e-Adl Regulation, 2009, a Federal statute, i.e. Criminal Procedure (Amendment) Ordinance, 2001 had been repealed without observing the relevant provision of law and Constitution---Para.19(2) of the impugned Regulation sought to specifically undo the changes made to Cr.P.C. by the Federation which was in complete contravention of Art. 143 of the Constitution---High Court struck down para.19(2) of the Shariah Nizam-e-Adl Regulation, 2009, as being ultra vires of the Constitution ---Constitutional petition was disposed of accordingly.

(h) Constitution of Pakistan ---

----Preamble---Limitations prescribed by the Constitution---Constitution was not merely an imprisonment of the past but was also alive to unfolding of future---Constitution was the supreme law, therefore, care should be taken not to transgress the limits prescribed by the Constitution.

Farhat Nawaz Lodhi for Petitioner.

Abdul Latif Yosafzai, A.G. and Syed Muhammad Atique Shah, Deputy Attorney-General for Pakistan for Respondents.

Date of hearing: 29th April, 2015.

P L D 2016 Peshawar 84

Before Yahya Afridi and Irshad Qaiser, JJ

KHAZANA SUGAR MILLS (PVT.) LTD. through General Manager---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Water and Power, Islamabad and 9 others---Respondents

C.M. No.868-P of 2015 in W.P. No.3876-P of 2014, decided on 23rd July, 2015.

Constitution of Pakistan---

----Art. 199(4-A) & (4-B)---Constitutional petition---Recovery of levy---Grant of interim relief by High Court---Period of interim relief granted by Constitutional Court---Scope---Recovery of said levy was challenged in different High Courts whereas another High Court had decided the matter, against which leave was granted by the Supreme Court and recovery of levy was suspended---Authorities sought withdrawal of interim relief on the ground that Supreme Court had granted leave against the judgment of the other High Court---Validity---Interim order passed by the constitutional court would have a life of six months provided main constitutional petition was finally decided---Where main constitutional petition was not decided within six months, interim order passed therein would remain in force till its revocation or its merger in the decision of the main constitutional petition---Period for interim order could not be extended---Grant of leave to appeal by the Supreme Court could not be sole ground for revoking the interim order in a case pending before the High Court---Each case had to be decided on its own merits---If interim order was revoked on the sold ground that Supreme Court had granted leave in the matter decided by the other High Court then it would prejudice the lis before the aggrieved person was properly heard---If interim order remained operative, it would lead to discrimination, abuse of process of law and inconsistency in the orders emanating from the superior courts---Interim order passed by the High Court could not be allowed to remain in field in view of suspension order passed by the Supreme Court---Interim order passed by the High Court was allowed to be withdrawn to bring in parity and consistency amongst all the concerned without any discrimination---Interim order passed by the High Court staying the recovery of levy was vacated and recovery of amount (stayed) would be decided at the time of final decision of main constitutional petition---Applications for withdrawal of interim order were allowed in circumstances.

United Sugar Mill's case PLD 1977 SC 397 and Zahur Textile Mills's case PLD 1999 SC 880 rel.

Kifayatullah Khan, D.A.G. for the Applicant-Federation.

Qazi Ghulam Dastagir, for writ-Petitioner.

Asad Jan for PESCO.

P L D 2016 Peshawar 89

Before Lal Jan Khattak and Qalander Ali Khan, JJ

MIAN KHAN---Petitioner

Versus

DEPUTY COMMISSIONER, HARIPUR and others---Respondents

W.P. No.955-A of 2015, decided on 1st October, 2015.

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

----S. 3---Preventive detention--- Maintenance of public order--- Accused of offence---Petitioner was aggrieved of his detention made under S.3 of West Pakistan Maintenance of Public Order Ordinance, 1960---Powers under S.3 of West Pakistan Maintenance of Public Order Ordinance, 1960, could not be invoked for detention of person on the grounds other than provided for by law---Preventive detention of a person who was either accused of an offence or a convict for a crime would not only amount to double jeopardy but would also militate against spirit of relevant law, prescribing procedure and penalties for commission of offences---Resort to preventive measures was useful only before commission of offence and not after the offence had been committed, whereafter case was registered and legal process for prosecution of perpetrator was initiated---High Court declared the order passed by authorities for preventive detention as illegal, unlawful, without lawful authority, arbitrary, perverse and of no legal effect as there was no justification in law for order under S.3 of West Pakistan Maintenance of Public Order Ordinance, 1960---High Court directed the authorities to release him from jail---Petition was allowed in circumstances.

Khan Gul Khan for Petitioner.

Addl. A.G. along with Representative for Respondents.

Date of hearing: 1st October, 2015.

P L D 2016 Peshawar 92

Before Mazhar Alam Khan Miankhel, C.J. and Muhammad Daud Khan, J

WOMEN MEDICAL COLLEGE, ABBOTABAD through Principal---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (KHYBER PAKHTUNKHWA) through Director General and 2 others---Respondents

W.P. No.542-A of 2014, decided on 9th July, 2015.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 18 & 19---Pakistan Medical and Dental Council Ordinance (XXXII of 1962), Ss.11 & 35(1)---Constitution of Pakistan, Art.199---Constitutional petition---Inquiry notice---Illegalities in Medical and Dental Colleges---Petitioners were running private medical and dental colleges and they were aggrieved of notices issued by National Accountability Bureau---Plea raised by National Accountability Bureau was that notices were issued as petitioners were running illegal medical colleges and they were involved in corruption and corrupt practices---Validity---Proper mechanism had already been provided if Pakistan Medical and Dental Council was not complying with provisions of Pakistan Medical and Dental Council Ordinance, 1962---When there was no complaint either from Federal Government of Pakistan Medical and Dental Council, about petitioners' colleges then National Accountability Bureau could not supersede and take on the role and function of Pakistan Medical and Dental Council to create an environment of fear and harassment at medical institutions without pinpointing the nature of irregularities, whether it was a matter of academics, administration or finance---Process of inspection was highly technical and Pakistan Medical and Dental Council's qualified inspectors had taken it with great care---Pakistan Medical and Dental Council was responsible to inspect whether medical and dental institutions were fulfilling requisite criteria mentioned in Pakistan Medical and Dental Council Regulations, 2012---Intervention of National Accountability Bureau in the affairs of institutions was not within its view---High Court set aside notices issued by National Accountability Bureau to college administration and authorities were refrained to interfere in the affairs of Pakistan Medical and Dental Council or colleges, which were duly recognized by Pakistan Medical and Dental Council, as well as Federal Government to impart training and award degrees to students---Petition was allowed in circumstances.

Dr. Arsalan Iftikhar's case PLD 2012 SC 903; Pakistan Medical and Dental Council v. Ziauddin Medical University PLD 2007 SC 323; H.M. Saya & Co. v. Wazir Ali Industries Limited PLD 1969 SC 65 and Muhammad Irshad Khan v. Chairman, National Accountability Bureau 2007 PCr.LJ 1957 rel.

Abdul Rauf Rohaila for Petitioner.

Muhammad Jamil Khan DPG for NAB.

F.M. Sabir Standing Counsel for Respondent No.2

Aurang Zeb Khan for PMDC

Date of hearing: 2nd June, 2015.

P L D 2016 Peshawar 98

Before Qaiser Rashid Khan and Assadullah Khan Chamkani, JJ

AYAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.135-P of 2015, decided on 1st July, 2015.

(a) Khyber Pakhtunkhwa Arms Act (XXIII of 2013)----

----Ss. 13 & 15----Anti-Terrorism Act (XXVII of 1997), Ss. 7(i) & 7(ff)---Explosive Substances Act (VI of 1908), S.5---Unlicensed manufacture, sale or repair, prohibition of giving arms without licence, unlicensed possession of arms, etc., prohibition of keeping, carrying or displaying arms, etc., acts of terrorism, making or possessing explosives under suspicious circumstances---Appreciation of evidence---Two prosecution versions as to arrest of accused creating serious doubt---Recovery of case property not effected as per prescribed procedure---Place of arrest of one of two accused as stated in FIR and shown in arrest card of accused was different---Two versions were on record regarding arrest of one of accused persons, which created serious doubt and went to very roots of prosecution case---Prosecution witness-SHO, who had acted as marginal witness to recovery memo, deposed that case property had not been sealed by complainant-SHO in his presence on spot---Other marginal witness to recovery memo deposed that recovery of arms and ammunition from accused had not been effected in his presence---Arms and ammunition had been produced by Chief Investigating Officer, who himself sealed the same into parcel---Said witness further deposed that recovery memo had been prepared on following day of occurrence and parcels of same had been prepared and sealed in police station---Said aspect of case created serious doubts about alleged recovery of case property---Sanction of prosecution had not been obtained in respect of charge under S.5 of Explosive Substances Act, 1908 which was mandatory under S.7 of the said Act---Under S.19(8B) of Anti-Terrorism Act, prosecution would apply for such sanction and if same was not received within thirty day of submission of Challan, that would be deemed to have been given, and court would proceed with trial of case---Consent or sanction for prosecution had not been sought from prosecution from competent authority, much less receipt of same within thirty days---Accused was, therefore, entitled to acquittal straightaway under S.5 of Explosive Substances Act, 1908---Prosecution had failed to bring home guilt of accused through cogent and confidence inspiring evidence beyond shadow of reasonable doubt---Court did not deem appropriate to dilate upon defence plea, which had otherwise been substantiated by accused in his statement under S.340 (2), Cr.P.C---High Court, setting aside conviction and sentence, acquitted accused---Appeals were allowed in circumstances.

Said Muhammad v. The State 2009 PCr.LJ 604 rel.

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

----S. 19(8B)----Procedure and powers of Anti-Terrorism Court---Consent or sanction for prosecution---Principles---Had there been no need of any consent or sanction of appropriate authority under S.19(8B) of Anti-Terrorism Act, 1997, then, Legislature, in its wisdom, would not have mentioned about receipt of consent or sanction within certain specified period, rather Legislature would have mentioned that without any consent or sanction, Trial Court could proceed with trial---Under S.19(8B) of Anti-Terrorism Act, 1997, trial court could proceed with trial in absence of any such sanction if same was not received within period prescribed therein---Prosecution had not sought consent or sanction from prosecution from competent authority, much less receipt of same within thirty days---Accused was entitled to acquittal.

(c) Explosive Substances Act (VI of 1908)----

----S. 7----Restriction on trial of offences---Sanction of prosecution had not been obtained in respect of charge under S.5 of Explosive Substances Act, 1908, which was mandatory under S.7 of same Act---Word 'shall' as used in S.7 of Explosive Substances Act, 1908, left no room for any departure therefrom.

Said Muhammad v. The State 2009 PCr.LJ 604 rel.

Saeed Khan for Appellant.

Mujahid Ali, AAG for State.

Date of hearing: 1st July, 2015.

P L D 2016 Peshawar 105

Before Muhammad Ghazanfar Khan, J

Mst. Dr. YOUSAF FIDA and another---Appellants

Versus

Justice (Retd.) MUHAMMAD AZAM KHAN---Respondent

R.F.A. No.128 of 2010, decided on 12th November, 2014.

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

----Ss. 6, 7 & 8---Civil Procedure Code 9V of 1908), S.35-A---Allegations made in judicial proceedings---Qualified privilege---Defamation---Damages, recovery of---Requirements---Service of notice upon the defendant---Limitation---Claim/suit of plaintiff was based on proceedings---No damages could be claimed on the basis of civil litigation even though based on mala fide intention---Plaintiff was bound to prove that before institut98on of suit he had served a notice within time on the defendant---Plaintiff had given a notice to the defendants prior to institution of suit but he had not mentioned a specific date and source of his knowledge in the plaint---Alleged allegations came in the knowledge of plaintiff on the day he served the defendants with a legal notice---Plaintiff should have served notice upon the defendants within two months of the knowledge of allegations---Legal notice had been served after lapse of more than two months---Present suit was not maintainable as notice had not been served properly and legally---Statements or any judicial proceeding were qualified privileged statements---No action would lie in such like cases---Proceeding son the basis of which plaintiff had based his claim were pending adjudication before a competent court of law---Suit at the time of its inception was premature---No action could be claimed on the basis of a sub judice case---Suit could be dismissed with special compensatory cost if it was found to be mala fide and fraudulent---Impugned judgment and decree passed by the Trial Court were set aside---Suit filed by the plaintiff was dismissed---Appeal was allowed in circumstances.

2007 CLC 1174; 2006 YLR 1623; PLD 1954 Sindh 70 and AIR 1939 Cal. 477 ref.

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

----S. 8---Defamation---Damages, recovery of---Notice---Limitation---Notice had to be served upon the defendant within two months of knowledge of allegations.

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

----S. 35-A---Special cost---Scope---Suit could be dismissed with special compensatory cost if it was found to be mala fide and fraudulent.

Muhammad Anwar for Appellant.

Muhammad Muazzam Butt for Respondents.

Date of hearing: 12th November, 2014.

P L D 2016 Peshawar 109

Before Qaiser Rasheed Khan and Assadullah Khan Chamkani, JJ

GUL AKBAR and another---Petitioners

Versus

JAMEELA AFRIDI and 4 others---Respondents

Writ Petition No.867-P of 2015, decided on 8th September, 2015.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Wakil-e-Nikkah as surety for dower---Suit for recovery of dower in shape of share in immovable property and possession therein was decreed by Appellate Court---Contention of petitioner/defendant, who was the real brother of the husband, was that he had never undertaken as per the Nikahnama to transfer said property in favour of plaintiff as "Mehr" and that the same was the responsibility of her husband and in presence of husband/bridegroom, there was no reason for the defendant to sign the Nikahnama as "Wakil-e-Nikah" and at the best the said signatures could be that of witness of Nikahnama---Validity---No doubt payment of dower to his wife was primarily, the duty and obligation of husband, yet there was no bar or prohibition for another person to bind himself as a surety by way of putting his signatures on the Nikahnama for ensuring its payment---Such surety could not wriggle out from such legal obligation when a suit for recovery of dower was brought against him by the wife---At the time of Nikah, the entire contents of Nikahnama including the name of bridegroom, his parentage and the dower whether in cash or in kind, was announced and pronounced very vociferously and was heard by all the people forming the close gathering and defendant could be no exception to the general rule as he neither denied his presence on the occasion nor his signatures on Nikahnama and there was no escape for defendant from the contents of Nikahnama in presence of his duly authorized signatures---Impugned order could not be interfered with---Constitutional petition was dismissed, in circumstances.

Rahmaullah for Petitioners.

Hassan U.K. Afridi for Respondent No.1.

Khurram Shahzad for Respondent No.2.

Date of hearing: 8th September, 2015.

P L D 2016 Peshawar 114

Before Mazhar Alam Khan Miankhel, C.J., Nisar Hussain Khan, Mrs. Irshad Qaiser, Syed Afsar Shah and Muhammad Younis Thaheem, JJ

NOOR DARAZ KHAN through MPA, PK-40---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Cabinet Division and 7 others---Respondents

Writ Petition No.1352-P of 2015, decided on 23rd December, 2015.

(a) Khyber Pakhtunkhwa Ehtesab Commission Act (I of 2014) [as amended by Khyber Pakhtunkhwa Ehtesab Commission (Amendment) Act (XXXI of 2015)]----

----Ss. 1, 3, 4, 5, 8(3), 9, 35, 56 & Preamble----Notification No.SOE-V(E & AC)/14-11/Appt/EC/2014, dated 14.09.2015---National Accountability Ordinance (XVIII of 1999), Preamble---Constitution of Pakistan, Arts. 37, 38, 142, 143, 144, 149 & 154---Question before the High Court was as to "whether Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, its subsequent amendments and the Notification issued thereunder, were in conflict with Arts. 142 & 143 of the Constitution, when the Federal legislation, National Accountability Ordinance, 1999 and other laws on the same subject, were already in the field"---High Court, declared the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 within the legislative competence of the Provincial Assembly and also as compatible with Arts.142 & 143 of the Constitution as well as that of National Accountability Ordinance, 1999, and held both the legislations as complementary/supplemental---Principles.

High Court observed that menace of corruption was big problem for Pakistan. Corruption was a poison, which squandered Government resources, deterred investment, stunted economic growth, undermined democracy and good governance, fueled poverty and hunger and also created political instability.

Suo Motu Case No.18 of 2010 (2014 SCMR 585) rel.

Petitioners had contended that Article 142 (b) of the Constitution was a mini concurrent list, on basis of which both the Parliament and Provincial Assembly had powers to make laws.

Held, that before the 18th Amendment in the Constitution, the subjects of criminal law, criminal procedure, civil procedure and evidence were part of the Concurrent Legislative List, by virtue of which the Parliament and Provincial Legislature both were competent to make laws on those topics. After said amendment, the Concurrent Legislative List was omitted in totality and said subjects were neither inserted in the Federal Legislative List, nor were the same kept on the Concurrent Legislative List; however, said three subjects had been mentioned in Article 142(b) of the Constitution. Articles 142, 143, 144, 149 and 154 of the Constitution, before 18th Amendment, were having the words 'concurrent', but this word had been omitted from said Articles after said amendment. Intention of the framers of 18th amendment was, however, very much visible to the extent of retaining the three subjects in Article 142(b) of the Constitution with the Parliament and Provincial Assembly, and in case of repugnancy between the law made by the two Legislatures, the provisions of Article 143 of the Constitution would be attracted. Powers to legislate on said three subjects were, therefore, exercisable by both the Legislature if not in conflict with each other.

Term 'ultra vires' simply meant 'beyond powers' or 'lack of power'. Term 'ultra vires' signified a concept distinct from 'illegality'. In the widest sense, everything what was not warranted by law was illegal, but, in its proper or strict connotation, term 'illegal' referred to that quality which made the act itself contrary to law. Keeping in view the provision of Article 142 (b) and other relevant Articles of the Constitution, Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 was not 'ultra vires' to the provisions of the Constitution, and the same was within the competence of the Provincial Legislature.

Petitioners had raised the contention that the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 had been made pursuant to Articles 37 and 38 of the Constitution, which related to promotion of social justice, eradication of social evils and economic well-being, therefore, said criminal enactment could not be enacted under those provisions.

Held, that the Legislative body, while enacting law, exercised its legislative function and the essentials of such functions were the determination of the legislative policy. Basically, 'social evil' was anything that could be considered harmful or dangerous to a person, who was involved in that but also the people who were related to him or lived around him, that was the whole society and/or community. Corruption or corrupt practices were indeed social evil; thus, the Provincial Assembly could competently make a law to effectively curb the social evils from the society.

Petitioners had also contended that Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 was also repugnant to National Accountability Ordinance, 1999.

Held, that question of repugnancy became material when the law made by the Parliament and that made by the Provincial Legislature on the same subject were contradictory to each other. However, when the two laws could simultaneously be run without overlapping and the same were rather supplemental in nature, the question of repugnancy would not arise. Presumption was in favour of the validity of the law and every effort should have been made to reconcile them and construe both so as to avoid their repugnancy, which must exist in fact and not merely on possibility. Care should also have been taken to see whether the two laws really operated in the field without encroachment. Comparison of the two laws in question revealed that no consistency existed in the actual terms of the same.

Provisions of National Accountability Ordinance, 1999 and that of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 were at par with each other, and in case of assuming parallel jurisdiction over a matter, the provision of S. 35 of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 would be resorted. Provisions of Ss. 35 and 56 of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 had left enough room for the Federal law, as the same provided the functionaries under the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 would not initiate proceedings in a matter for which the federal agency had already taken cognizance, unless said federal agency was convinced that the matter pertained to their jurisdiction and that in case of any conflict between the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 and Federal Law, the provisions of the Federal Law would prevail. Laws in question could very well be treated to be complementary to each other. Only keeping the two laws in juxtaposition was not safe idea to determine the question of 'occupied field', because that had also to be seen whether the two laws could proceed side by side without blocking each other.

Asfand Yar Wali Khan's case PLD 2001 SC 607 rel.

Petitioners had further contended that under the National Accountability Ordinance, 1999, the appointment of Chairman National Accountability Bureau was subject to consultation with the Chief Justice of Pakistan, whereas under Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, no such consultation was required for appointment of the Commissioners and Director General, who had been given vast powers under the Act.

Held, that under Ss. 5, 8(3), 9 of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 appointment of the Commissioners and Director General was not the job of one man. In view of the procedure provided under said provisions for appointment of the Commissioners and other staff of the Commission, appointment of the Commissioners could not be regarded as having been made without adopting transparent procedure.

Very thin line of difference existed between the doctrine of 'repugnancy' and 'occupied field'. Repugnancy arose only if actual conflict existed between two legislations, one enacted by the Federal Legislature and the other by the Provincial Legislature, both of which were competent to do that. Scenario of 'occupied field', after 18th Constitutional amendment, had gone a manifest change as Concurrent Legislative List had been omitted. Principle of 'occupied field' would be attracted only in respect of the subjects mentioned in Article 142 (b) of the Constitution, and that too, when repugnancy existed between the laws made by the Federal and Provincial Legislature within the meaning of Article 143 of the Constitution.

PLD 1976 SC 483 rel.

Petitioners, drawing an analogy, contended that Supreme Court had struck down Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act, 2003 on the ground that the Federal Government had already enacted law in the shape of Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance, 2000, which having been valid and in force, the Provincial Legislature of Punjab was not legally competent to enact said Provincial Law, as the Federal law had supremacy under Article 143 of the Constitution.

Held, that Concurrent Legislative list was part of the Constitution at the time Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act, 2003 made by the Provincial Government had been struck down and under Article 143 of the Constitution, prior to 18th amendment, the Federal law was to prevail over the Provincial law. By then (after the 18th amendment), situation had altogether changed and all matters not mentioned in the Federal Legislative List had fallen back to the Provinces. Besides, Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 was within the Legislative competence of the Provincial Legislature under Article 142(b) of the Constitution and no overlapping and conflict existed between the Federal and Provincial Law. Subjects mentioned in Article 142 of the Constitution were within the respective domain of the Federal and Provincial Legislatures; therefore, question of repugnancy under Article 143 of the Constitution did not arise in the present case.

Ch. Muhammad Siddique and 2 others v. Government of Pakistan through Secretary, Ministry of Law and Justice Division, Islamabad and others PLD 2005 SC 1 rel.

Petitioners had also contended that under Section 3 of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, after commencement of the Act, the Government should have established a Commission through Notification duly published in the official gazette, but no such notification had been issued, and that subsequently, through an executive notification, which was not published in official gazette, retrospective effect had been given to the establishment of the Commission; therefore, all acts done by the Commission were void ab initio.

Held, that Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 revealed that wherever that was necessary to use the word notification, the same had been mentioned in the relevant sections, such as in Sections 50 and 51 of the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014. Word 'notification' had not been used in Section 3 of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, like Section 5(k) of National Accountability Ordinance, 1999, which expressly demanded issuance of notification for establishment of National Accountability Bureau. In a statute, when establishment of an institution was subject to issuance of a notification, then issuance of the same became sine qua non. Under Sections 3 and 4 of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, the moment the Commissioners had been appointed, the Commission stood established. Requirement of law was to establish a Commission and the same could not have been established unless the Commissioners were appointed as per procedure given in Section 4 of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 and onward for the composition of the Commission. As and when the Commission became functional, the same stood established.

Phraseology 'it shall come into force at once and shall be deemed to have taken effect from the 1st day of January, 2004' used in Section 1(2) and (3) of the amending Act (Khyber Pakhtunkhwa Ehtesab Commission (Amendment) Act, 2015) was part of the principal Act from the time the principal Act came into force, when the same had been notified after getting the assent of the Governor. Courts were not to fill in the lacuna or remove the defects in the enactment, and only the Legislature could look into the matter. In case meaning of statute was not plain, then that might be ground for construction by implication, but the general rule was not to import words into the statute, which were not found there. Amending statute could not be construed as having retrospectivity, if the same affected the vested interest. However, if the amendments in the statute were pertaining to the procedure then the same should have been construed as having retrospective effect. Amendments in Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 pertained to the procedure. Generally, retrospectivity to the amendment was ipso facto applied but the Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 had expressly given retrospective effect to the amendments pertaining to procedure.

Provincial Legislature had made its own law within its competence conferred by Article 142 (b) of the Constitution with all curing provisions contained in Sections 35 and 56 of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014. Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, its subsequent amendments and the notification were neither in conflict with Articles 142 and 143 of the Constitution nor were the same repugnant to the provisions of National Accountability Ordinance, 1999; rather the nature of the same was that of special supplemental law to the subject of curbing the corruption and corrupt practices. Constitutional petitions were dismissed in circumstances.

2002 SCMR 312; PLD 2008 SC 779; 2001 CLC 148; PLD 2007 SC 133; PLD 2014 Isl. 83; 2013 SCMR 34; Pir Sabir Shah's case PLD 1995 SC 66; PLD 1995 SC 423; PLD 1999 SC 504; PLD 2010 Kar. 328 and AIR 1939 FC 74 ref.

(b) Khyber Pakhtunkhwa Ehtesab Commission Act (I of 2014) [as amended by Khyber Pakhtunkhwa Ehtesab Commission (Amendment) Act (XXXI of 2015)]----

----Ss. 40, 49 & Preamble----Notification No.SOE-V(E & AC)/14-11/ Appt/EC/2014, dated 14.09.2015---National Accountability Ordinance (XVIII of 1999), Preamble---Constitution of Pakistan, Arts.10-A, 12, 25---Question before the High Court was as to "whether Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 (as amended) was in contravention of Fundamental Rights enshrined in Arts. 10-A, 12 & 25 of the Constitution"---Held, provisions of National Accountability Ordinance, 1999 and that of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 were almost of the same nature with similar procedure of trial---Section 40 of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 related to Policy objectives for trial of offences; therefore, the accused under the Act, could not be said to have not been given right of fair trial---Legislatures were competent to give retrospective effect to an enactment, which the Legislature was competent to enact---Article 12 of the Constitution might be availed against those offences which were offences at the time when they were sought to be punished but were not offences at the time when they were done--- Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, thus, was not ultra vires to Art. 12 of the Constitution, because the offences mentioned in the Act were punishable offences prior to its promulgation---Same punishment was, however, not provided for corruption and corrupt practices both under Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 and National Accountability Ordinance, 1999---Person booked under Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 would face discrimination as compared to the person booked under National Accountability Ordinance, 1999 for the similar offence---Article 25 (1) of the Constitution provided that all citizens were equal before law and entitled to equal protection of law, which meant equality among equals---High Court observed that S.49 of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, was to be suitably amended to bring the same in harmony with "Voluntary Return" and "Plea Bargain" as contained in National Accountability Ordinance, 1999.

Asfand Yar Wali Khan's case PLD 2001 SC 607 and Jamat-e-Islami through Amir and others v. Federation of Pakistan and others PLD 2009 SC 549 rel.

(c) Khyber Pakhtunkhwa Ehtesab Commission Act (I of 2014) [as amended by Khyber Pakhtunkhwa Ehtesab Commission (Amendment) Act (XXXI of 2015)]----

----Preamble---Notification No.SOE-V(E & AC)/14-11/Appt/EC/2014, dated 14.09.2015---Constitution of Pakistan, Art.44---Question before the High Court was as to "whether Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 suffered from errors with jurisdiction and errors without jurisdiction and whether its provisions passed the test of reasonability"---Held, sole object of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 was to curb the mushroom growth of corruption and corrupt practices by those public office holders, who were grabbing money from the public and public exchequer---Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 was also intended to provide legal mechanism and judicious machinery to deal with such persons for the purpose of recovery of looted money---Provincial Legislature, therefore, had carefully taken into consideration the public interest and safety---Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 had not overstepped the permissible limits of reasonableness---No arbitrariness or unreasonableness existed in the procedure prescribed in the relevant sections of Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, nor had unguided power been conferred on the competent authority or Special Court in that regard---Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 fell within the power of the Provincial Legislature after the 18th amendment in the Constitution---Khyber Pakhtunkhwa Ehtesab Commission Act, 2014, thus, stood the test of "reasonableness" and did not violate the principles of fundamental rights.

(d) Constitution of Pakistan---

----Arts. 90, 137, 140-A, 142, 143, 144, 270-AA---Constitution (Eighteenth Amendment) Act (X of 2010), Preamble---Executive authority of Federation---Scope---Executive authority of Province---Extent---Local Government, subject-matter of Federal and Provincial laws---Under Constitution (Eighteenth Amendment) Act, 2010, after omission of the Concurrent Legislative List, the Constitution (Eighteenth Amendment) Act, 2010 had fundamentally altered the division of legislative powers between the Parliament and Provincial Assemblies, which resulted in significant increase in the extent of Provincial autonomy---Said Constitutional Amendment had redefined the structure contours of the State through paradigm shift from a heavily centralized to predominantly decentralized Federation---New Constitutional framework of Pakistan had reinforced a multilevel governance system by extending greater autonomy to the Federating Units (Provinces) and laying down fundamentals of substantive decentralization at the lower tiers of the Local Governance---Constitution of Pakistan had delineated the extent of executive authorities of Federal and Provincial Governments through Arts. 90 & 137 of the Constitution---Executive authority of the Federation extended to matters with respect to which the Parliament held the power to make laws, including the exercise of rights, authority and jurisdiction in and outside Pakistan; while the executive authority of the Provinces extended to matters with respect to which the Provincial Assembly had the power to make laws---Executive authority had, therefore, been conditioned with the legislative authority at the Federal and Provincial levels---Constitution (Eighteenth) Amendment Act, 2010 had re-demarcated the jurisdiction of Pakistan's multi-level Governance at the Federal, Inter-Provincial and Provincial levels by revising the Federal Legislative List, Part I and Part II and abolishing the erstwhile Concurrent Legislative List---Legislative and executive authorities of the Federal and Provincial Governments had been delimited by assigning the exclusivity of fifty three subjects to the Federal Government, eighteen subjects to the Council of Common Interests and all residual subjects to the Provincial Governments---Further, redistribution of functions at the District, Tehsil And Union Council levels had been vested with the Provincial Governments in accordance with the Policy Framework enunciated in Art. 140(A) of the Constitution---Under Art. 270AA(2) of the Constitution, the competent authority for all the residual matters was the Provincial Assembly in respect of each Province under Art.142(c) of the Constitution.

(e) Constitution of Pakistan----

----Art. 199----Constitutional jurisdiction of High Court---Scope---Striking down the legislative enactment by superior courts---Grounds---Functions of judiciary---Extent---Legislation of law was the domain and prerogative of the Legislature---Legislative Act could not be struck down by Superior Courts on the grounds of mala fides or lack of bona fides or non-application of mind in exercise of such power---Function of the judiciary was not to legislate or question the wisdom of Legislature in making a particular law---Legislative enactment could be struck down by the Court only on two grounds: firstly, where the appropriate Legislature did not have competency to make the law; and secondly, where the enactment abridged any of the fundamental rights enumerated in the Constitution or any other Constitutional provisions.

Pir Sabir Shah's case PLD 1995 SC 66; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2012 SC 1; 2013 SCMR 34 and Lahore Development Authority through D.-G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 rel.

(f) Criminal law---

----Object and scope---Fundamentals of criminal law are based on the principles of justice, equity and good conscience, and the same provide adequate guidelines for the formulation of a rational penal policy---Functioning of the criminal justice system is wide enough to achieve its goals and objectives---Ultimate goal of criminal law is undoubtedly to make the society safer for its citizens.

(g) Interpretation of Constitution---

----Scope and nature---Written Constitutions, object of---Constitution is a law, in its ordinary sense; however, the same is also a law made by the people as nation, through its Constituent Assembly---Written constitutions seek to delineate the spheres of actions of the various organs of the State, with more or less strictness and the extent of powers exercisable therein.

(h) Constitution of Pakistan---

----Preamble---Constitution of Pakistan to be read on basis of historical facts of Pakistan---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---As compared to the Constitutions of Canada and British, the scenario in Pakistan was quite different, particularly after the Constitution (Eighteenth) Amendment Act, 2010.

PLD 2015 SC 401 rel.

(i) Interpretation of Constitution----

----Principles---When some words or phrases are used in the Constitution, the same meaning should be ascribed, unless the context demands otherwise.

(j) Interpretation of statutes----

----Words and phrases used in a statute should be read keeping in view their plain meaning.

Aminur Rehman Khan for Petitioners.

Abdul Latif Yousafzai, A.G., Syed Yahya Zahed Gilani, P.G. Zahid Aman, D.P.G. Qazi Babar Irshad, ADP. Lajbar Khan, ADP. Farooq Shah, A.D.P.G. Attiqur Rehman, Special Prosecutor and Ashraf Ali Khattak, Special Prosecutor for Ehtesab Commission, Syed Mohammad Attique Shah, Additional Attorney-General, Manzoor Khan Khalil, DAG for Federation, Omar Farooq Adam, Addl. A.G. for Provincial Government and Mohammad Jamil Khan, D.P.G. for NAB.

Dates of hearing: 23rd, 24th, 25th, 26th, 27th and 30th November, 2015.

P L D 2016 Peshawar 157

Before Qalandar Ali Khan, J

MUTIHAIDA TRANSPORT ASSOCIATION and others---Petitioners

Versus

SECRETARY PROVINCIAL TRANSPORT AUTHORITY---Respondent

Writ Petition No.8-A of 2015, decided on 25th March, 2015.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Fixation of rates of fares by Provincial Transport Authority---Scope---Rates were to be decided as policy matter in fiscal planning---High Court could not exercise jurisdiction to go into reasonableness of rates falling outside the domain of judicial determination---High Court would not be justified in deciding the matter primarily within the jurisdiction of the authority involving the question of fact---Constitutional petition was dismissed in circumstance.

AIR 1976 SC 1986 and AIR 1976 SC 2512 rel.

S. Nasir Aslam for Petitoners.

Respondent in person with A.A.G.

Date of hearing: 25th March, 2015.

P L D 2016 Peshawar 160

Before Waqar Ahmad Seth, J

ZARKHAWOND---Petitioner

Versus

IMDAD ULLAH---Respondent

Civil Revision No.617-M of 2012, decided on 6th April, 2015.

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

----Art. 72---Proof of contents of document---Translation of documents---Competent authority to translate---Father of plaintiffs filed suit against predecessor of defendants for declaration, possession and permanent injunction claiming that they were owners of suit land---Trial Court decreed the suit giving findings on basis of documents which were either in Persian language or not legible---Appellate court disallowed appeal against judgment and decree of Trial Court---Validity---Courts below, being not conversant with Persian language, based their findings on documents which were in Persian language---Counsel for parties were unable to interpret or translate any of such documents---Documents in question were neither got translated from any competent authority nor were the same discussed in impugned judgments---Other documents, apart from the ones in Persian language, were not legible---Defendants had annexed translation of said documents in Urdu language which had been translated by retired Principal of education department---Translation of the documents in Urdu was not reliable as the same was not translated by concerned department of University recognized under Higher Education Commission---Court was not in a position to understand the contents, meanings of the said exhibited documents which were in Persian---Courts below did not appreciate and reflect meanings of those document in their judgments---Non of the documents available in Persian language were understandable---Impugned judgments of courts below were based on only presumption, and the same could not be allowed to remain in field unless and until said documents were translated by said competent forum---Contents of a document could be appreciated only when the same was read and understood language-wise---High Court, setting aside impugned judgments, remanded case to Trial Court for decision afresh after getting translation of documents in Urdu language by competent authority---Revision petition was accepted in circumstances.

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

----Art. 72----Proof of contents of document---Word "contents" used in Art.72 of Qanun-e-Shahadat, 1984, comes from the word "contain" which means "to hold inside" and "to include as a part"---Contents of a document can only be appreciated when the same are read and understood language-wise.

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

----Art. 72----Proof of contents of document---Translation of document into another language---Competent authority for translation---Only concerned department of University recognized by Higher Education Commission is competent to translate a document into another language.

M. Ijaz Khan Sabi for Petitioner.

Ghulam Nabi Khan for Respondent.

Date of hearing: 6th April, 2015.

P L D 2016 Peshawar 164

Before Lal Jan Khattak and Qalandar Ali Khan, JJ

Sheikh WAJAHAT ALI---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and others----Respondents

Writ Petition No.385-A of 2011, decided on 21st May, 2015.

(a) Constitution of Pakistan---

----Art. 199----Arbitration Act (X of 1940), S. 2---Constitutional petition---Maintainability---Alternate remedy, when not a good ground---Laches, principle of---Applicability---Factual controversy---Determination---Objection as to existence of arbitration clause---Principles---Cancellation of allotment---Pre-requisites---Petitioner challenged cancellation of allotment of plot by respondents and allotment of the same to other person and sought restoration of possession thereof claiming that the respondents having allotted the plot to petitioner through registered lease deed for ninety-nine years could not cancel his allotment and allot the plot to any other person---Respondent took plea that present petition was not maintainable as lease deed contained arbitration clause which petitioner had not exhausted, and that petitioner had failed to comply with the lease agreement by not utilizing the plot within prescribed period, and that present petition was hit by laches---Validity---Respondents unilaterally cancelled allotment of petitioner without associating him in cancellation process or giving him any plausible reason and notice regarding said cancellation---Plot was further allotted to another person without putting the same for auction, and manner in which said allotment had been made showed connivance of respondents prior to impugned cancellation---Entire process starting from cancellation to subsequent allotment lacked transparency---Respondents was legally empowered to cancel plot but subject to procedure prescribed for the same---As per bye-laws of respondent, if lessee/petitioner had failed to establish his unit in plot within two years of allotment, lessor/respondent could resort to withdrawing all facilities for such violation, which was not the case of petitioner, as stipulated period of two years had not yet expired when cancellation order was issued---Impugned cancellation order was based on mala fide of respondent---Arbitration clause would be of no importance and significance unless specific application at initial stage of case was moved requesting court to refer case for arbitration---Objection of respondent as to maintainability of present petition on ground of arbitration clause was repelled as it had not moved any such application---Alternate legal remedy for redressal of grievance could not per se be good ground for dismissal of constitutional petition particularly when impugned order was tainted with mala fide---No factual controversy was involved in the present case as allotment of plot to petitioner was admitted, its cancellation was not denied and its subsequent allotment to another person was not under dispute---Factual controversy would arise only when some facts were asserted by one party and denied by other but when parties to lis did not deny existence of any fact, High Court could well proceed with case to decide the same----When order or action was basically illegal, contrary to established principles and based on mala fide, such order or action could not be allowed to remain in field on mere ground that same had not been challenged within due time---Impugned order of cancellation and subsequent order of allotment were declared illegal, unlawful and of no legal effect---Constitutional petition was accepted in circumstance.

(b) Constitution of Pakistan---

----Art. 199----Constitutional petition---Maintainability---Alternate remedy when not a good ground---Alternate legal remedy for redressal of grievance cannot per se be good ground for dismissal of constitutional petition particularly when impugned order is tainted with mala fide.

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

----S.2----Reference to arbitration---Arbitration clause---Applicability---Arbitration clause will be of no importance and significance unless specific application at initial stage of case is moved requesting court to refer case for arbitration.

(d) Constitution of Pakistan---

----Art. 199----Constitutional petition---Factual controversy---Determination---Factual controversy would arise only when some facts were asserted by one party and denied by other but when parties to lis did not deny existence of any fact, High Court could well proceed with the case to decide the same---No factual controversy was involved in the present case as allotment of plot to petitioner was admitted, its cancellation was not denied and its subsequent allotment to another person was not under dispute.

PLD 1992 SC 113;1998 SCMR 2268; 1999 SCMR 2883; 2003 SCMR 90; 2005 SCMR 126; 2005 SCMR 678 and 2008 MLD 782 ref.

PLD 1962 SC 108; PLD 1990 SC 48; 1999 SCMR 121; PLD 2003 SC 808; PLD 2011 SC 44; 1999 CLC 26; 2001 CLC 694; 2012 CLD 298; 2011 MLD 10; 2012 MLD 902; 2006 YLR 467; PLD 1997 Kar. 636; 2010 SCMR 1097; 2012 CLC 1729; 2013 CLC 34; 2009 YLR 348 and 2013 YLR 2123 distinguished.

Muhammad Asghar Khan Kundi for Petitioner.

Additional A.G. for Respondent No.1.

Malik Mahmood Akhtar for Respondents Nos.2 and 3.

Abdur Rehman Qadir for Respondent No.4.

Date of hearing: 21st May, 2015.

P L D 2016 Peshawar 170

Before Yahya Afridi and Irshad Qaiser, JJ

MUHAMMAD IRSHAD---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Local Government and others---Respondents

Writ Petition No.1762-P of 2015, decided on 28th May, 2015.

(a) Electoral Rolls Act (XXI of 1974)---

----S. 17, 18, 19 & 20---Constitution of Pakistan, Art.199---Constitutional petition---Revision or correction of electoral rolls after constituency was called upon to elect---Principles---Petitioner sought alteration of voters' area mentioned in final delimitation list---Permissibility---Petitioner had not approached respondents/Election Commission before date when schedule for local bodies election was announced---Provision of S.20 of Electoral Rolls Act, 1974 had barred any revision or correction or preparation of fresh electoral rolls for any area after constituency had been called upon to elect---Barring provision contained in S.20 of Electoral Rolls Act, 1974 expressly referred to revision of rolls as provided under S.17, correction of rolls under S.18 and preparation of fresh rolls under S.19 of the Electoral Rolls Act, 1972---Term 'constituency has been called upon to elect referred to date of announcement of schedule of elections, which was crucial date---All persons were to be vigilant about their rights both under general law and Constitution---Petitioner remained indolent and did not agitate about his rights---Respondents had taken all necessary steps to inform public about time, place and manner of bringing about changes in electoral rolls in order to preserve and protect vested rights of persons to vote---Constitutional petition was dismissed in circumstance.

(b) Constitution of Pakistan---

----Art. 17(2)----Right to vote---Importance and scope---Right to vote and franchise is vested right of person and may even be equated with fundamental right of person as enshrined in the Constitution---Right of person to vote cannot be taken in isolation---With every right there is corresponding obligation of person---All persons are to be vigilant about their rights both under general law and Constitution.

Humayun Iftikhar Chishti's case 1999 CLC 79 and Arjmand and Zaheer Afzal Khan's case 2001 CLC 1305 distinguished.

Haider Ali Khan Jamali's case 2014 CLC 1381 rel.

Salaman Faayaz for Petitioner.

Riaz Ahmad Khattak, Law Officer (in person).

Date of hearing: 28th May, 2015.

P L D 2016 Peshawar 175

Before Rooh-ul-Amin Khan, J

JAVED AKBAR KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Revision No.11-D of 2014, decided on 22nd September, 2014.

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

----Ss. 492 & 493---Constitution of Pakistan, Art. 10--- Public prosecutor and private advocate---Principle---Public prosecutor is the sole authority to assist Court in furtherance of justice and prosecute case against accused in criminal cases---Any counsel/advocate privately engaged by party may only assist Public prosecutor who remains subordinate to him---Scheme of Criminal Procedure Code, 1898, lays no bar on private complainant to engage counsel of his own choice---Where a private person gets vested right in the matter and any decision of Court may affect his case considerably, such intervener/person may not be kept deprived of right of audience---Every complainant in private complaint has vested right to represent his case effectively before Court and is at liberty to engage counsel of his choice but on his own cost.

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

----S. 493---Public prosecutor and private advocate---Job description---Scope---Difference between job description of public prosecutor and private counsel is that public prosecutor does not act as counsel for any particular party and his conduct is not to aggravate case against accused. rather to act in aid of Court in discovery of truth---Privately engaged counsel promotes case of his client and paramount consideration before him is to watch interest of his client.

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

----S. 94(2)---Criminal Procedure Code (V of 1898), S. 493---Complaint by Election Commission---Engaging a private counsel---Election Commission filed complaint against petitioner on allegation of holding fake educational degree---Plea raised by accused was that Election Commission was not competent to lodge complaint and appoint private counsel to conduct case against him---Validity---Held, it was the foremost duty of Election Commission to discharge its constitutional obligation to guard against corrupt practices and launch prosecution of persons who stood accused of commission of corrupt practice---Election commission was competent authority to take crucial steps towards ensuring transparent election and to disallow and discourage any malpractice by launching prosecution of a person indulged in it---Election Commission/Chief Election Commission was fully empowered to lodge complaint against corrupt persons and being independent constitutional authority could engage and appoint private counsel/pleader of its choice to conduct and assist prosecution in any case on its behalf---High Court declined to interfere in order passed by Trial Court---Revision was dismissed in circumstances.

Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828; Mian Najibuddin Oawaisi v. Aamir Yar and 7 others 2011 SCMR 180; Nawabzada Iftikhar Ahmad v. The Chief Election Commissioner (Civil Revision No.287 of 2008) and Mian Najibuddin Oawaisi v. Aamir Yar and 7 others PLD 2011 SC 1 rel.

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

----S. 94 & Chap.-VIII---Constitution of Pakistan, Art. 10---Complaint by private person---Counsel of choice---Scope---Offences enumerated in Chapter-VIII of Representation of the People Act, 1976, have been made cognizable under S.94 of Representation of the People Act, 1976---For invoking jurisdiction of Sessions Judge, even an individual can lodge complaint---If private individual is vested with authority to lodge a complaint against a person for being involved in corrupt practice, such person is equally vested with unalienable right to prosecute his case personally or through pleader/advocate---Fundamental right of every person to be provided ample opportunity of presenting his case before Court of law.

Muhammad Ismail Khan Alizai for Petitioner.

Adnan Ali Marwat, A.A.G. for the State.

Abid Hussain Bokhari and Kamran Hayat Miankhel, Federal Standing Counsel for Respondent No.2

Date of hearing: 22nd September, 2014.

P L D 2016 Peshawar 185

Before Qaiser Rasheed Khan and Rooh-ul-Amin Khan, JJ

PESHAWAR ELECTRIC SUPPLY EMPLOYMENT COMPANY LTD. through Authorised Officer---Petitioner

Versus

WAFAQI MOHTASIB (OMBUDSMAN) and 2 others---Respondents

Writ Petition No.1796-P of 2015, decided on 4th December, 2015.

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

----Ss. 2(1) & 32---Federal Ombudsmen Institutional Reforms Act (XIV of 2013), S. 2(a)---"Agency" as used in S. 2(a) of Federal Ombudsmen Institutional Reforms Act, 2013---Definition---Scope---Petitioner company assailed order passed by Wafaqi Mohtasib, on the ground that it did not fall within the meaning of 'Agency' as defined under S. 2(a) of Federal Ombudsmen Institutional Reforms Act, 2013---Petitioner instead of availing remedy by preferring representation to the President within 30 days, directly approached High Court---Validity---Federal Government through NEPRA exercised over all control over petitioner company so much so that Chief Executive of petitioner company had assumed office after a nod by Federal Government, or worked in his office at the pleasure of Federal Government---Mere shrugging off shoulders by petitioner company could not take it out of the domain of NEPRA or the overall control and watchful eyes of Federal Government---Petitioner company squarely fell within the definition of 'Agency' as per S.2(a) of Federal Ombudsmen Institutional Reforms Act, 2013--- High Court declined to interfere in the order passed by Wafaqi Mohtasib---Petition was dismissed in circumstances.

National Bank of Pakistan Karachi v. Wafaqi Mohtasib (Ombudsman), Karachi and another PLD 1992 Kar. 339; Pakistan International Airlines Corporation Karachi v. Wafaqi Mohtasib and others 1998 SCMR 841; East West Insurance Company Limited v. Wafaqi Mohtasib and 3 others 1999 MLD 3050; Idris Ahmed Rizwani v. Federal Public Service Commission through Secretary, Chughtai Plaza, Blue Area, Islamabad and 3 others 2000 SCMR 1889; Allied Bank of Pakistan Ltd. v. The Wafaqi Mohtasib (Ombudsman) and others PLD 2001 Kar. 203; Aviation Authority v. Wafaqi Mohtasib (Ombudsman) and others PLD 2001 Kar. 304; Pakistan International Airlines Corporation v. Air Master (Pvt) Limited and another PLD 2004 Kar. 77; Ch. Muhammad Yasin v. Wafaqi Mohtasib (Ombudsman) and others 2013 CLC 1441; Khan Iftikhar Hussain Khan of Mandot v. Messrs Ghulam Nabi Corporation Limited Lahore PLD 1971 SC 550; Messrs Razo (Pvt) Private Limited v. Director, Karachi City Region Employees Old Age Benefit Institution 2005 CLD 1208; Hasnain Cotex Limited through its Director v. Jasim Khan, Proprietor Messrs Suzuki Frontier Motor East Circular Road, D.I.Khan 2012 YLR 2743; Hakim Ali v. Muhammad Saleem and others 1992 SCMR 46; Federation of Pakistan through Secretary, Establishment Division Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada and others 1999 SCMR 2189; Water And Power Development Authority and others v. Commissioner, Hazara Division and others 1992 SCMR 2102; Messrs Shifa Medicos v. Wafaqi Mohtasib (Ombudsman) and others 2003 SCMR 928 and Pakistan Railways through General Manager, Railway Headquarters Office, Lahore v. Abdul Bari Khan and others PLD 2004 SC 127 ref.

Abdul Rauf Rohaila for Petitioner.

Hafiz Ihsan Ahmad for Respondents Nos. 1 and 2 and Manzoor Khan Khalil, Deputy Attorney General for Respondent No.3.

Date of hearing; 4th December, 2015.

P L D 2016 Peshawar 195

Before Muhammad Younis Thaheem, J

LAL HABIB---Petitioner

Versus

TAHIR AZIZ and another---Respondents

Criminal Miscellaneous Q.P. No.69-B of 2014, decided on 9th February, 2015.

(a) Per incuriam---

----Defined.

Blacks' Law Dictionary, Ninth Edn. rel.

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

----Ss. 369, 439 & 561-A---Penal Code (XLV of 1860), S. 337-X---Arsh, amount of---Re-determination---Conviction and sentence awarded to accused attained finality and he was released on bail to pay Arsh amount in instalments---After release of accused on bail, he assailed his conviction to the extent of calculation of Arsh amount and sought correction of the same---Validity---No specific provision of review existed in Criminal Procedure Code, 1898 and provisions of S.369, Cr.P.C. could only be invoked for clarifying or correcting existing clerical errors in the judgment---Petition had no legal footing and was in violation of S.369, Cr.P.C.---If any action in form of redetermination of Arsh amount was taken by High Court, it would amount to review its previous order/judgment and the same was not provided in law---Criminal courts were not vested with power to alter, modify, reopen or review a criminal case after its final decision---Petition was dismissed in circumstances.

Dr. A. Basit v. Depty Registrar (Judicial) and others PLD 2001 SC 1028 rel.

1992 PCr.LJ 1583; 2003 YLR 1779; 2012 SCMR 437; 2006 PCr.LJ 80; 2014 PCr.LJ 165; 1995 MLD 610; 1996 MLD 502; 1996 MLD 786; 2001 YLR 536; 1965 PLD (W.P) Lah. 570; 1971 SCMR 789; 1971 SCMR 618; 1976 PCr.LJ 747; PLD 1996 SC 178; 1996 PCr.LJ 119; 2001 PCr.LJ 1634; 2001 PCr.LJ 222; 2012 PCr.LJ 164; 2013 PCr.LJ 767 and PLD 1970 Kar. 737 ref.

Pir Liaqat Ali Shah for Petitioner.

Qudratullah Khan Gandapur, Asstt.A.G. for the State.

Shabir Hussain Gigyani for Respondent No.1.

Date of hearing: 9th February, 2015.

P L D 2016 Peshawar 204

Before Mazhar Alam Khan Miankhel, C.J. and Mrs. Irshad Qaiser, J

ZAKIR ALI---Petitioner

Versus

The STATE---Respondent

Writ Petitions Nos.1173-P, 1071-P, 2500-P, 1169-P, 1174-P and 2237-P of 2015, decided on 17th December, 2015.

(a) Protection of Pakistan Act (X of 2014)--

----S. 18---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Bail---Under S.18, Protection of Pakistan Act, 2014 there was no legal bar to seek bail through constitutional petition filed under Art.199 of the Constitution---Constitutional petition in the present case being for bail in substance, was maintainable; as the petitioner had no other remedy to seek bail under Criminal Procedure Code, 1898.

District Bar Association Rawalpindi v. Federation of Pakistan PLD 2015 SC 401 Citations (ww) and (ccc) and Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607 ref.

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

----Ss. 497 & 498---Constitution of Pakistan, Art.8(1)(2)---Protection of Pakistan Act (X of 2014), S.18---Penal Code (XLV of 1860), Ss.324, 353, 427, 148 & 149---Explosive Substances Act (VI of 1908), Ss.3, 4 & 5---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief, rioting, common object, possessing explosive substances, act of terrorism---Bail after arrest and ad interim pre-arrest bail, refusal of---Accused, though, were not directly charged/nominated, but were implicated later on, through a source report---Accused were correctly identified by the witness---Accused who had committed the crime, but was not charged in the promptly lodged report, or not arrested on the spot, could not be implicated later on, despite having sufficient material against him, was not a universal rule---Accused persons, in the present case, had been implicated on account of source report, based on some solid incriminating evidence against them, would not be in a position to take shelter under the umbrella of technicalities; as they had not directly been charged in the FIR---Accused persons in other FIR had directly been charged for committing the crime and decamping thereafter from the spot---Accused persons claimed that as co-accused had been granted bail, they were also entitled to be released on bail on the principle of consistency---Validity---Proper protection had been given to the actions, which were done prior to Twenty-first Amendment to the Constitution of Pakistan and co-accused had been granted bail before said Amendment---In the present scenario, neither the principle of consistency would be attracted to the case of accused persons, nor they could claim that no retrospective effect was given to the FIR lodged before Twenty-first Constitutional Amendment---Accused were unable to establish any mala fide or grudge on the part of the Police qua their false involvement in the present instant cases and the offences, for which they were charged with being Scheduled Offences---Article 8(1)(2) of the Constitution, would not be applicable to their case---Accused persons being prima facie, connected with the crime, attracting prohibitory clause of S.497, Cr.P.C., did not deserve the concession of bail---Accused persons could not make out a case for bail---Petitions being without substance, were dismissed, and order of High Court qua granting ad interim pre-arrest bail to accused was recalled, in circumstances.

Muhammad Afzal alias Abdullah and others v. State 2009 SCMR 436; Bacha Zeb v. State 2010 SCMR 1189; Shafqat Mehmood v. State 2011 SCMR 537; Sabir Ali alias Fauji v. State 2011 SCMR 563 and Nazir Ahmad v. Muhammad Iqbal 2011 SCMR 527 distinguished.

Arshad Khan Mohmand for Petitioner.

Qaiser Ali Shah, Add. A.G. for the State.

Manzoor Khan Khalil, Deputy Attorney General for Federation.

Date of hearing: 17th December, 2015.

P L D 2016 Peshawar 212

Before Mazhar Alam Khan Miankhel, C.J., Nisar Hussain Khan, Mrs. Irshad Qaiser, Syed Afsar Shah and Muhammad Younis Thaheem, JJ

Dr. IFTIKHAR AHMED, SENIOR MEDICAL OFFICER, ABBOTTABAD---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHUNKHWA through Chief Secretary Civil Secretariat, Peshawar and 4 others---Respondents

Writ Petition No.420 of 2015, decided on 23rd December, 2015.

(a) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Preamble---Constitution of Pakistan, Arts. 137, 141, 148, 154, Fourth Schedule, Part II, Entries Nos. 11 & 12---Constitution (Eighteenth Amendment) Act (X of 2010), Preamble---Federal and Provincial laws---Obligations of Provinces and Federation---Functions and rules of procedure---Petitioners challenged the constitutionality of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 on the ground that the Provincial Legislature was not competent to make the Act---Validity---Object of Constitution (Eighteenth Amendment) Act, 2010 was to vest the Provinces with maximum autonomy, both in legislative and administrative spheres---Authority of the Federal Government in the matters mentioned in the Concurrent List had been taken away with certain safeguards supplied in Arts. 137 & 148 (1) of the Constitution in the administrative and executive fields respectively---Article 154(1) of the Constitution related to the formulation of policies relating to Entries No. 11 & 12, Part-II of Fourth Sched. of the Constitution, which explicitly spoke of legal, medical and other professions and standards in the institutions for higher education and research, scientific and technical institution---Federal Government could formulate policies and regulations---However, Art. 154 of the Constitution with reference to the Entries No.11 & 12 could not be blown out of proportion to an extent which might take away the legislative and executive powers of the Province enshrined in Arts. 137 & 141 of the Constitution---Title and Preamble of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 explicitly referred to the Medical Institutions and Health care services, which had remained subject of the Province, being its sole domain---Medical Institutions and health care services had never been the subject of the Federal Government, even prior to Constitution (Eighteenth Amendment) Act, 2010---Objection was overruled.

(b) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Preamble----Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Services Ordinance (XLVII of 2002) [since repealed], Preamble---'Occupied Field' doctrine of---'Repugnancy', doctrine of---Paramountcy', doctrine of---Scope and applicability---Conflicting, supplemental, duplicative provisions, existence of---Effect---Petitioners contended that as field (medical institutions and health care services) was already occupied by Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Services Ordinance, 2002 [Since repealed], hence, the impugned Act was liable to be struck down---Validity---Held, no repugnancy or occupied field arose in the present case---Principles.

Such objection was to be raised only when Provincial Legislature enacted statute on the subject which was already occupied by a Federal Act. Doctrine of 'Occupied Field' was based on the principle, which was to avoid any conflict of the Central and Provincial laws, and when such conflict emerged between the two laws, the same attracted the principle of repugnancy. In case both Legislatures, Provincial and Federal, were competent to concurrently legislate on the same subject and obedience to the provincial legislation would not be achieved without disobeying the Federal law, then Provincial law to that extent would be repugnant and thus void.

"Doctrine of paramountcy" provided that where there was conflict between the validity of Provincial and Federal laws, the Federal law would prevail, and the Provincial law would yield to the extent which contradicted with the Federal law. In case both Provincial and Federal laws were although overlapping but field of their operation was clear and the same did not conflict inter se in their operational fields, then neither of the laws might be ultra vires; however, if the field was not clear, then the Federal law was to prevail. In case Provincial statute contained conflicting provisions along with supplemental and duplicative provisions to the Federal statute, the conflicting provisions might be severed and the supplemental might be operative when the same did not conflict with the Federal law, and to the extent the same would be valid and operate concurrently with the Federal law.

Provincial Secretary of P.E.I. v. Egan and A.G., of P.E.I. (1941), S.C.R. 396; Grand Trunk Railway Company of Canada v. A.G. of Canada (1907) A.C.65 by Privy Council; Clyde Engineering Company Limited v. Cowburn and Metters Limited v. Pickard and Lever Brother Limited v. Pickard (1926)-High Court of Australia-466 rel.

Principles of "occupied field", "repugnancy" and "doctrine of paramountcy" were applied when two laws were concurrently been enacted on the same subject-matter by two competent Legislature, Federal and Provincial. Federal Legislature had no concern with the health institutions of the Province, which was sole domain of the latter; for which reason, no Federal law existed in the field. No repugnancy or occupied field, therefore, arose in present case.

Zeerbhai Ajmaidas v. the State of Bombay (1954 AIR 752); Ch.Tikka Ramji and others v. State of Uttar Pradesh AIR 1956 SC 676; Ex Parte Mclean (1980) 48-C.L.R. 472 and Stock Motor Club Ltd. (1932) 48 CLR 128 rel.

(c) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Ss. 16, 23, 24, 26 & Preamble----Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance (XLVII of 2002) [Since repealed], Preamble---General Clauses Act (X of 1897), S.6---Khyber Pakhtunkhwa General Clauses Act (VI of 1956), S. 4---Constitution of Pakistan, Arts. 240(b) & 265---Service of Medical Teaching Institution---Power to make rules/regulations---Petitioner raised the objection that under Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, the rights accrued to the petitioners under Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance, 2002 [Since repealed] would be taken away---Validity---Article 240 (b) of the Constitution spoke of service of the Province, and posts in connection with affairs of the Province to be determined by or under the Act of the Provincial Assembly---Services of the Medical Teaching Institutes and the employees thereof had been protected under S. 16 of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015; whereas, rest of the conditions and terms of appointment, maintenance of seniority, promotion and matters ancillary and incidental thereto were to be determined and regulated by the rules and regulations framed under Ss.23 & 24 of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---Provisions of Art. 265 of the Constitution, which was a saving clause, S.6 of General Clauses Act, 1897 and S.4 of Khyber Pakhtunkhwa General Clauses Act, 1956, were meant to obviate a situation of chaos and confusion and not to affect the legal proceedings taken under the repealed Act-Actions taken under Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance, 2002 [Since repealed] had also been saved under Ss. 26 (4) & 26 (5) of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015.

(d) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Preamble----Constitution of Pakistan, Arts. 2-A & 199---Judicial review, doctrine of---Parameters---Objectives Resolution, scope and applicability of---Functions of Judiciary---Principles---Acts of Legislature, presumptions as to---Petitioners contended that Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 had been passed to frustrate the judgments of the High Court and Supreme Court to undermine the independence of judiciary---Validity---Held, Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 had been validly and competently been enacted by the Provincial Legislature---Principles.

High Court observed that when law was enacted by Federal or Provincial Legislature through chosen representatives of the people, the same reflected the will of the people. Presumption of constitutionality and validity was always inherently embedded in such legislation. Mala fide or malice could not be attributed to the competent Legislature. Person challenging the validity of legislation was under bounden duty to prove that the law had malafidely been legislated or the same was in violation of the Fundamental Rights or Constitutional provisions. Courts have the power of judicial review of the enactment but within the parameters laid down in the Constitution. Court was not to enquire into motive of the legislature nor could the court ascertain the wisdom of the legislature. Powers of judicial review were corrective and directive which were only meant to see legality of administrative action. Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 could not be called as colourable legislation, as the Legislature was competent to enact the same.

Zia ur Rehman's case PLD 1975 SC 49; Fauji Foundation v. Shamim ur Rehman PLD 1983 SC 457; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; PLD 1966 SC 854; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923 and KC Gajapati Narain Deo v. State of Urissa AIR 1953 SC 375 rel.

Independence of judiciary could not be judged at the touchstone of the Objectives Resolution nor on the basis of Objectives Resolution, any provision of the Constitution or law might be struck down. Function of the judiciary was not to legislate or to question the wisdom of the Legislature in making a particular law nor could the judiciary refuse to enforce the law even if the same might result in nullifying its own decision.

Asma Jeelani's case PLD 1972 SC 139 and Al-Samraz Enterprise v. Federation of Pakistan 1986 SCMR 1917 rel.

Courts are to decide lis in accordance with law in vogue at the relevant time and not to go behind the previous laws. Courts are to consider the laws in operation and to express its opinion in accordance therewith. Court cannot and should not bind the legislature nor refrain it from new legislature with the changing circumstances. High Court observed that law is an organic document in substance, which with the change of human complexities, socio-economic values and demographic attitudes, might be molded, altered, amended or reconstituted by repeal of the earlier laws with the changed requirements. Law might not be kept as stagnant or static, which, with the passage of time, might not cope with the situation nor catered with the needs of the people for whose welfare laws were enacted. Legislature being the representative of the people, was the best judge of determination of the suitability of the law with the prevailing circumstances. Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 had been validly and competently enacted by the Provincial Legislature.

Federation of Pakistan through Secretary Ministry of Law v. Munir Hussain Bhatta and others PLD 2011 SC 752 and Mehr Zulfiqar Ali Babu and others v. Government of Punjab and others PLD 1997 SC 11 rel.

(e) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----S. 16 & Preamble----Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance (XLVII of 2002) [Since repealed], Ss. 5, 9 & Preamble---Constitution of Pakistan, Part II, Chap. 1 [Arts.8 to 28] & Arts. 199---Fundamental Rights---Service of Medical Teaching Institutions, protection of---Petitioner had contended that Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 was violative of the Fundamental Rights as enshrined in Part II, Chap.1 of the Constitution by promulgation of the Act autonomy of the Medical Institutions had been taken away and the control of the bureaucracy had been brought about, and that outsiders (being non-doctors) could not be assigned the task of management and administration of the Medical Institutions---Validity---Concept of assigning task to non-doctors to administer the Medical Institutions also existed in Khyber Pakhtunkhwa Medical and Health Institutions and Regulation of Health-Care Ordinance (XLVII of 2002) [since repealed]---Profession and efficiency of a professional was one thing, whereas administration of the body was altogether different phenomenon---Objection that the government had taken control of the Institution was belied by the fact that three members of the Board being the nominees of the Government had not been given the right to vote---Decision making power had absolutely been vested in the private member belonging to the public at large---Administrative landscape had been broadened by Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---Services of the employees had been protected by virtue of S. 16 of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---Rights accrued to petitioner under the repealed Ordinance had not been affected by Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---High Court observed that phrase 'till further orders' occurring in S. 16 (2) of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 appeared to be not compatible with cl.(2) and substituted cl.(3) of S. 16 of the Act, and the same being unreasonable and unjustified was liable to be omitted and deleted.

(f) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Preamble---Right to hold post of Medical Superintendent---Scope---No one had vested right to remain on a post for all times to come---Petitioner contended that the main object of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 was to nullify the judgments of the High Court and Supreme Court previously passed in his favour, and that after his removal from the post he had not been assigned any post in the Institution---Validity---High Court had not issued any writ in favour of the petitioner to retain the post of Medical Superintendent for all times to come, and Management Council of the Hospital had been asked to consider for appointment of the most eligible, suitable and senior medical officer possessing extra ordinary qualities both medical and professional for the post---Ratio of the judgment was that only Management Council was to make transfers and appointments within the Institution, keeping in view the criteria---Supreme Court, while maintaining said judgment of the High Court, had observed that procedural failings had resulted in the judgments without any serious restraints on future action, which showed that the petitioner had not been disturbed from the post but with some serious reservations---Statute enacted by the competent legislature might not be struck down merely on the ground that the same was enacted for nullifying the judgments of the Courts that too judgment in personam, not in rem---Once the petitioner had opted to be absorbed in the service of the Institution after his removal from the post, then he might not be treated according to the whim of the administration and should have been assigned suitable post according to his qualification---High Court directed the authorities to address said grievance of the petitioner without fail.

(g) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Preamble---Petitioners, Para-Medical staff of the Hospital, contended that doctors and nurses had been separately provided with their respective Directors, whereas the Para-Medical staff had been left without any Director---Validity--¬-No reference of Para-Medical Staff performing functions falling within the responsibilities of other medical and nursing wings had been made in Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, and the Hospital Director was the overall incharge of non-clinical functions of the hospital---Para-Medical Staff, being the highest in strength as compared to doctors and nurses, was required to have a Director of Para-medics---Clinical functions could not be suitably and adequately discharged without cooperation and coherence of the Para-Medical Staff---Legislature was responsible for leaving any deficiency in Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015---High Court directed the authorities to make suitable amendment in the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 for provision of Director of Para-Medical Staff.

(h) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)---

----Preamble---Khyber Pakhtunkhwa Essential Services (Maintenance) Act (XXXIV of 1958), Preamble---Agreement between Doctors' Association and Provincial Government allowing the doctors to entertain private patients during normal working hours in the Hospital---Discipline in Department and the establishment, requirement of---Scope---Held, administration could not enter into any such agreement with the employees (doctors)---Principles.

Agreement between the doctors and the Provincial Government had allowed the doctors for the first time to entertain private patients during normal working hours in the hospitals. Provincial Legislature being representatives of the populace of the Province had reflected the will of the people in Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015. Preamble of the Act was manifestation of the will that was intended for provision of effective, efficient and suitable health-care services to the people of the Province, but neither the people of the Province nor their representatives were signatory to the agreement, at the altar of which the whole scheme of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 had been frustrated. Doctors' Association, after filing Constitutional petitions against Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015, had influenced the administration by their protests, processions and strikes either to withdraw the Act or come to their terms. High Court had previously directed that medical services be declared as essential services in terms of Khyber Pakhtunkhwa Essential Services (Maintenance) Act, 1958. High Court expressed concerns about the weak and maladministration and non-adherence to the public services at the altar of favouritism, nepotism and political pressures of the doctors, which prevailed with the administration and the provisions of Khyber Pakhtunkhwa Essential Services (Maintenance) Act, 1958 had not been resorted to. High Court observed that doctors had not only constituted their associations but were also found chanting slogans, marching processions on the roads, leaving the patients in the emergency and operation theatres crying for their survival. Said inhumanly and indifferent attitude exhibited by the educated people was unbecoming of such noble profession. Mere promulgation of an Act was not big achievement unless the same was enforced and implemented in letter and spirit without fear or favour. High Court directed that the administration could not enter into any such agreement with the employees of the Medical Institutions at the cost of public at large to frustrate the spirit of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015.

High Court remarked that for smooth and effective functioning and rendering proper services to the public, smooth, responsive and strict discipline of the staff was the hallmark of an establishment. Department or establishment was bound to fail in all respect if it is faced with disarray and lack of discipline in ranks and files and has disrespect to the rule of law. Discipline could be maintained by loose administration, by pick and choose and discriminatory application of laws and regulations. Government to address the issue was not only to enact the law but also jealously implement the same. High Court directed the Government to make suitable amendments and introduce effective rules of discipline for their application and implementation to curb the menace of mismanagement, day to day protests and procession and if there was any resistance from any quarter, to proceeded against the same taking disciplinary action under the relevant laws and rules as well as Essential Services (Maintenance) Act, 1958.

(i) Interpretation of statutes---

----Constitutional provisions, interpretation of---Principles.

(j) Constitution of Pakistan---

----Art. 199---Judicial Review---Scope.

Mushtaq Ali Tahirkhaili for Petitioner.

Abdul Latif Yousafzai,A.G. for official Respondents.

Syed Arshad Ali and Shakeel Ahmad for MTIs for Respondents.

Date of hearing: 7th December, 2015.

P L D 2016 Peshawar 254

Before Nisar Hussain Khan, J

NANO RAM through Legal Heirs and others---Petitioners

Versus

JAVED and others---Respondents

Civil Revision No.1395 of 2011, decided on 26th October, 2015.

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

----S. 92 & O. I, R. 8---Qanun-e-Shahadat (10 of 1984), Arts. 103, 104 & 129(e)---Dispute between two communities (Hindus and Sikhs) with regard to "Temple" and "Gurdawara"---Oral evidence---Official record---Presumption of truth---Settlement record---Evidentiary value---Consent of Advocate General---Scope---Provisions of S. 92 & O.I, R.8, C.P.C---Scope---Suit building was an evacuee trust property---Temple and Gurdawara both were in existence on the spot---Official record carried presumption of truth which would prevail against the oral evidence---Quality not quantity of evidence would be given preference while determining rights of the parties---Oral evidence could not outweigh the documentary evidence---Original record had presumption of truth being initial official record---Evidentiary value of such record would be at par with a first settlement record carrying presumption of correctness---Subject matter of the present suit was "Gurdawara" and "Mander" which was a trust for religious purpose---Consent of Advocate General was sufficient compliance to maintain suit---Order I, R.8, C. P. C was with regard to suit between the private individuals---Both the provisions of S.92 & O.I, R. 8, C.P. C were mutually exclusive in different domain of facts---Each provision would apply to particular circumstances of the case---Said provisions were not complementary or supplementary to each other---When circumstance of the case had mandated compliance of one provision of law then there would be no need of simultaneously invoking of the other---Consent of Advocate General was proper compliance of law for institution of present suit---Findings of Appellate Court were result of misreading and non-consideration of evidence on record---Impugned judgment and decree passed by the Appellate Court were set aside and that of Trial Court dismissing the suit were restored---Revision was allowed in circumstances.

Raja Ali Shan v. Messsrs Essem Hotel Limited and others 2007 SCMR 741 and Waqar Alam Saeed v. District Coordination Officer/ Chiarman and 3 others 2005 YLR 1742 ref.

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

----S. 92 & O.I, R. 8---Scope---Both the provisions of S.92 & O.I, R. 8, C.P.C., were mutually exclusive in different domain of facts---Each provision would apply to particular circumstances of the case---Said provisions were not complementary or supplementary to each other---When circumstances of the case mandated compliance of one provision of law then there would be no need of simultaneously invoking of the other.

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

----O. I, R. 8---Representative suit---Scope---When private persons were numerous having common interest in the suit then anyone or more with the permission of court might sue or defend the suit on behalf of all to protect the interest of interested parties subject to giving a notice to all the interested persons on the expenses of such persons with regard to institution or for defence of the suit.

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

----Art. 103---Oral evidence against documentary one---Scope---Oral evidence could not outweigh the documentary evidence.

(e) Words and phrases--

----"Dharmasala"---Meanings.

New Encyclopaedia Britannica; Encyclopaedia of Wikipedia; Ram Kishan Das v. Shiromani Gurdawara Parbandhak Committee, Amritsar and another AIR 1937 Lah. 290 and Kuldipchand and another v. Advocate General of Government of Himachal Pardesh and others AIR 2003 SC 1685 rel.

Syed Arshad Ali for Petitioners.

Shah Faisal Utmankhel for Respondents Nos. 1 to 6.

Gul Hussain Khilji for Respondents Nos.7 and 8.

Date of hearing: 26th October, 2015.

P L D 2016 Peshawar 266

Before Yahya Afridi and Rooh-ul-Amin Khan, JJ

FAKHERYAR KHAN---Petitioner

Versus

AGRICULTURE UNIVERSITY, PESHAWAR through Vice Chancellor and 6 others---Respondents

Writ Petition No.1058-P of 2015, decided on 1st December, 2015.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Educational institution---Admission to public university---Prospectus---Criteria for admission---Judicial restraint---Exceptions---Scope---Prospectus framed by public educational institution was essentially an administrative policy statement of the respective institution and settled judicial trend was to exercise judicial restraint in interfering with matters dealing with policy decisions of educational institutions---Such general rule of judicial restraint was not absolute and exceptions existed where the impugned action(s) or inaction of the educational institution was ultra vires , mala fide or against fundamental rights of citizens or where the same offended principles of reasonability.

Rana Aamer Raza Ashfaq's case 2012 SCMR 6; Government College University Lahore's case 2015 SCMR 445; Amna Sharif's case 2015 MLD 220; Muhammad Abdullah Riaz's case PLD 2011 Lah. 555 and Muhammad Iqbal Khan Niazi's case PLD 1979 SC 1 rel.

(b) Educational Institution---

----Prospectus of a public educational institution---Nature---Prospectus framed by a public educational institution was essentially an administrative policy statement of the respective institution and prospectus of an educational institution could be placed as a "bye-law"

Muhammad Iqbal Khan Niazi's case PLD 1979 SC 1 rel.

(c) Constitution of Pakistan---

----Arts. 25A, 25, 9, 189 & 199---Constitutional jurisdiction of High Court---Judicial restraint---Educational institution---Criteria for admission---Maximum age-limit---Equality of citizens---Discrimi-nation---Reasonable classification Intelligible differentia---Right to education---Petitioner was granted provisional admission to respondent University, however the same was rescinded when the petitioner placed on record his date of birth, which per the University prospectus did not entitle him for admission as he was over the age of 25---Contention of petitioner was that restricting admission to candidates under the age of 25 for admission was illegal and unconstitutional---Validity---Article 25A of the Constitution provided right to free and compulsory education of children between ages of 5 to 16 and did not expressly provide for right of a person of advanced age, such as the petitioner and it would not be appropriate to stretch the said fundamental right to the petitioner who was admittedly beyond the age of 16 years and was seeking higher and professional education at a University---Testing the impugned criteria on the threshold of discrimination to citizens beyond the age of 25 years, it was to be noted that the impugned criteria had created a class of applicants within a particular age group who could apply for admission for the bachelors degree at the respondent University and the Court had to see whether such classification qualified the legal test of Constitutionality or otherwise---Impugned criteria not only had an intelligible differentia but also had nexus with advancement of education and encouraged students of a certain age group and thus such "policy decision" of the respondent university passed the "test of classification"---On basis of the principles of "reasonability", the impugned criteria was not unreasonable---Respondent university had only granted provisional admission to the petitioner and directed him to submit correct date of birth and on receiving the same, had passed the impugned decision and by granting such provisional admission; the respondent university had retained authority to recall the same prior to finalization of admission---High Court observed that in line with decisions of the Supreme Court, complete judicial restraint was to be exercised by not granting relief sought by petitioner---Constitutional petition was dismissed, in circumstances.

Fiaqat Hussain's case PLD 2012 SC 224; Petition Regarding Miserable Conditions of Schools 2013 SCMR 764; Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation ("Wednesbury case") 1948 1 KB 223, Court of Appeal; Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374; R (Daly) v. Secretary of State for the Home Department [2001] UKHL 26 [2001] 2 AC 532 at [32]; Abul Ala Maudoodi's case PLD 1964 SC 673; Benazir Bhuto's case PLD 1988 SC 416; Abdul Hamid Kadri's case PLD 1957 WP Lah. 213; Watan Party's case PLD 2006 SC 697; Khwaja Ahmad Hassan's case 2005 SCMR 186; Judicial Review of Public Action by Justice (Retd.) Fazal Karim; Pir Imran Sajid's case 2015 SCMR 1257; Suo Motu case No.13 of 2009; PLD 2011 SC 619; Imdad Hussain's case PLD 2007 Kar. 116; Mian Muhammad Afzal's case 2004 SCMR 1570; Muhammad Arshad's case 1999 YLR 968; Wasif Zameer Ahmad's case 1997 SCMR 15 and Muhammad Rafiq's case 2007 CLC 149 rel.

(d) Judicial review --

----Judicial review of administrative actions---Reasonability---Principles and test of reasonability examined.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation ("Wednesbury case") 1948 1 KB 223, Court of Appeal; Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374; R (Daly) v. Secretary of State for the Home Department [2001] UKHL 26 [2001] 2 AC 532 at [32]; Abul Ala Maudoodi's case PLD 1964 SC 673; Benazir Bhuto's case PLD 1988 SC 416; Abdul Hamid Kadri's case PLD 1957 WP Lah. 213; Watan Party's case PLD 2006 SC 697; Khwaja Ahmad Hassan's case 2005 SCMR 186 and Judicial Review of Public Action by Justice (Retd.) Fazal Karim rel.

(e) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Term "Life" meant meaningful, complete and worth living life and was not to be limited to mere vegetative state or animal life.

Pir Imran Sajid's case 2015 SCMR 1257; Suo Motu case No.13 of 2009; PLD 2011 SC 619 and Imdad Hussain's case PLD 2007 Kar. 116 rel.

Muhammad Raees for Petitioner.

Muhammad Shakib for Respondents.

Date of hearing: 1st December, 2015.

P L D 2016 Peshawar 278

Before Yahya Afridi and Rooh-ul-Amin Khan, JJ

Haji AMEERZADA and 6 others---Petitioners

Versus

SECRETARY TO GOVERNMENT OF KHYBER PAKHTUNKHWA, REVENUE DEPARTMENT and others---Respondents

Writ Petition No.2485-P of 2014, decided on 19th January, 2016.

(a) Constitution of Pakistan---

----Art. 246(b)---Kyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S.6(2)---Provincial Government Notifications No. 1075, dated 15-1-2014 and No.3283, dated 7-2-2014---Creation of new districts by the Provincial Government in the tribal area---Allegation of ill will and mala fide---Scope---General and bald assertions of ill will and mala fide had been made by the petitioners and that too without any particulars---Ground of mala fide taken by the petitioners did not fulfil the condition precedent to challenge the impugned action on the said basis---Newly established districts did not figure anywhere in Art.246 of the Constitution and same could not be regarded as territory forming part of Provincially Administered Tribal Areas---Impugned action of Provincial Government had resulted in disturbing the status provided to the said areas under the Constitution---Command of Constitution had to be respected and observed---All actions, orders and steps taken by any authority in pursuance or in consequence of impugned orders of Provincial Government needed to be protected and preserved for public confidence unless dealt with otherwise in accordance with law---Impugned notifications were declared to be illegal---Decisions of Provincial Government with regard to postings and transfers of officers and declaring place "X" as the district headquarter of the newly established district being administrative and policy decisions, were non-justiciable and no declaration was passed thereon by the High Court---Constitutional petition was disposed of in circumstances.

Nawabzada Ghazanfar Ali Gul's case 1999 CLC 430; Ali Muhammad's case 2011 SCMR 1964 and Abdul Bari's case PLD 2014 Pesh. 132 ref.

Begum Agha Abdul Karim Shorish Kashmiri's case PLD 1969 SC 14; Messrs Al-Imdad's case 2015 PTD 734; Messrs Associated Industry's case 2014 PTD 552; Tika Iqbal Muhammad Khan's case PLD 2008 SC 615; Zafar Ali Shah's case PLD 2000 SC 869; Rehmatullah's case 2007 SCMR 729; Justice Khurshid Anwar Bhinder's case PLD 2010 SC 483; Malik Asad Ali's case PLD 1998 SC 161 and Mir Muhammad Idris's case PLD 2011 SC 213 rel.

(b) Administration of justice---

---When original order lacked jurisdiction then the entire superstructure built thereon could not be sustained and must fall.

Barister Syed Masood Kausar for Petitioners.

Abdul Latif Yousafzai, A.G. and Syed Muhammad Attique Shah, Addl. Attorney General for Respondents.

Abdul Latif Afridi and Muhammad Ijaz Khan Sabi for newly added respondents.

Date of hearing: 19th January, 2016.

P L D 2016 Peshawar 298

Before Nisar Hussain Khan, Musarrat Hilali and Yahya Afridi, JJ

ABDUL JABBAR---Petitioner

Versus

The CHAIRMAN NAB through Director General National Accountability Bureau and 3 others---Respondents

Writ Petition No.1292-P of 2013, decided on 30th October, 2014.

Per Nisar Hussain Khan, J; Yahya Afridi, J. agreeing Musarrat Hilali J. dissenting

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

----Ss. 9, 10, 11, 17 & 33-E---Penal Code (XLV of 1860), S.70---Criminal Procedure Code (V of 1898), Ss.386 & 403---Constitution of Pakistan, Art.13---Embezzlement, corruption and corrupt practices---Imposition of fine---Default in payment of fine---Recovery of amount of fine as arrears of land revenue---Petitioners were charged for embezzlement, corruption and corrupt practices, were found guilty, and accordingly convicted and sentenced to imprisonment with fine---Petitioners had under-went the substantive sentences, as well as the sentence for default of payment of fine---National Accountability Bureau, despite that, filed application under S.33-E, read with S.17 of National Accountability Ordinance, 1999 for recovery of amount of fine as arrears of land revenue; which was accepted---Petitioners contended that as they had undergone sentence of imprisonment for default of payment of fine, they were absolved from the liability of fine and proceedings of recovery initiated by NAB Authorities; tantamounted to double jeopardy---Validity---Sentence awarded for default of payment of fine, was actually the sentence for non-payment of fine and it could not be termed as a consideration of the fine---Having undergone the sentence in default of payment of fine, the petitioners, had not discharged their liability of payment of fine which was imposed under the special law for corruption and corrupt practices, particularly, when it was visualized in terms of S.11 of National Accountability Ordinance, 1999, which manifested that the legislature required the recovery of the whole misappropriated amount in lieu of fine---Contention that recovery proceedings by virtue of S.70, P.P.C., were time barred having been filed after six years of the conviction, was misconceived; as petitioners, were tried and convicted under the provisions of special law the National Accountability Ordinance, 1999 and provisions of P.P.C., had no nexus with it nor the principles of the P.P.C. had been given any room to National Accountability Ordinance, 1999---Limitation provided in S.70, P.P.C., therefore, was inapplicable to the present proceedings, in circumstances---No such limitation was provided in National Accountability Ordinance for recovery of fine---Provision of S.386, Cr.P.C., was not applicable, when National Accountability Ordinance, had provided its own mechanism for recovery of fine in S.33-E of the Ordinance---Provision of S.386, Cr.P.C., therefore, could not be invoked---Objection of the petitioners, with regard to double jeopardy, was primarily based on Art.13 of the Constitution; whereby, the person must have been prosecuted earlier for the offence charged and convicted or acquitted and prosecuted subsequently; there must be double prosecution of accused for the same offence---In the present case, however, the petitioners had been prosecuted and punished for offence of corruption and corrupt practices under S.10 of National Accountability Ordinance, 1990, but there was not second prosecution for the same offence---Proceedings by Accountability Court, in no way could be termed as second prosecution for the same offence, falling under the ambit of "Double Jeopardy"---Sentence undergone by a convict in default of payment of fine, could not be a substitute for sentence of fine, because, one sentence undergone by a convict, could not be treated as a substitute of another sentence imposed by a court of law---Plea of double jeopardy raised by the petitioners, was misplaced, and was not tenable.

Ahmad Ali Siddiqui v. Sargodha Central Cooperative Bank Limited and another 1989 SCMR 824; Siddappa v. State of Mysore AIR 1957 Mys. 52; The DIG Police Lahore and others v. Anis ur Rehman Khan PLD 1985 SC 134; Amir Abdullah v. Superintendent of Police and others 1989 SCMR 333; Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar PLD 1987 SC 195; Muhammad Tufail v. Assistant Commissioner/Collector 1989 SCMR 316; Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121; S.A. Venkataraman v. Union of India and another AIR 1954 SC 375; Maqbool Hussain v. The State of Bombay AIR 1953 SC 325; Manipur Administration, Manipur v. Thokchom Bira Singh AIR 1965 SC 87 and and State of Rajasthan v. Hat Singh and others AIR 2003 SC 791 ref.

(b) Interpretation of statutes---

----When language of a statute was plain and simple, and carried a clear message, it should be given effect in the way it was couched---No other interpretation, or meaning could be extracted therefrom on any hypothetical construction, extraneous to the intent of the Legislature---Even if a court was satisfied that the Legislature did not contemplate the consequences of an enactment, the court was bound to give effect to its clear language---Rule and principle of construction of a statute, was that a statute may not be extended to meet a case for which provision had clearly and undoubtedly not been made---Judges, could not wrest the language of parliament, even to avoid an obvious mischief.

Warburon v. Loveland (1831) 2 D. &/CL (H.L) 480, 489; Gwynne v. Burnell (1840) TCL & F 572, 696 and Stowel v. Lord Zouch (1562) Plowd. 369 ref.

(c) Interpretation of statutes--

----Preamble---Scope---Preamble, was introductory part of the statute, which states reasons and intent of law---Preamble, serves to portray the intent of the framer and the mischief to be remedied---Preamble affords in general a key to the construction of the statute; and a clue to discover the plain object and general intention of the Legislature in passing the Act and often helps to solution of doubtful points---Preamble, was regarded as a key to open the minds of the framer of the Act.

Att-Gen. v. H.R.H. Prince Ernest Augustus of Hanover ref.

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

----Preamble---Scope and object of promulgation of Ordinance---National Accountability Ordinance, 1999, was a special law which was promulgated, when other penal laws the Prevention of Corruption Act, 1947 and Pakistan Penal Code, 1860, were already in operation---What necessitated the promulgation of said Ordinance, in presence of those penal laws, was reflected in its Preamble, which would also be helpful to resolve the question formulated herein---Objective of the promulgation of said Ordinance, had been discretely transcribed in eight paragraphs of the Preamble, encompassing all the dimentions of corruption, corrupt practices, embezzlement and other forms of misappropriation of the public money.

(e) Constitution of Pakistan---

----Art. 13---Criminal Procedure Code (V of 1898), S.403---Double jeopardy---Scope and protection---Subsequent prosecution and punishment in presence of former prosecution and consequential acquittal or conviction must exist to avail the protection of Art.13 of the Constitution---Court while applying the principle of double jeopardy and extending protection under Art.13 of the Constitution, had to see, whether accused was being prosecuted twice for the same offence, or otherwise---No body could be prosecuted and punished for an offence, when he had already been prosecuted and acquitted or punished for the same offence by the competent court of law---Constitutional guarantee, and legal protection existed against double jeopardy---Accused proposed to be tried second time for the same offence for which he had already been tried and acquitted or convicted, could legitimately plead autre fois acquit or autre fois convict---If case of accused, did not come within the ambit of barring clause and fell within the exception embodied in clauses (2)(3), (4) of S.403, Cr.P.C., he could legitimately be tried for the same offence.

Per Musarrat Hilali, J. dissenting with Nisar Hussain Khan, J [Minority view].

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

----Ss. 9, 10, 11, 17 & 33-E---Penal Code (XLV of 1860), S.70---Criminal Procedure Code (V of 1898), Ss.386 & 403---Constitution of Pakistan, Art.13---Embezzlement, corruption and corrupt practices---Imposition of fine, default in payment of fine, recovery of amount of fine as arrears of land revenue---Petitioners/accused persons, who were charged for embezzlement corruption and corrupt practice, having been found guilty, were convicted and sentenced to imprisonment and with fine---Petitioners, underwent the substantive sentence, as well as the sentence for default of payment of fine---National Accountability Bureau, despite undergoing the substantive sentence filed application under S.33-E, read with S.17 of National Accountability Ordinance, 1999 for recovery of amount of fine as arrears of land revenue which application was accepted---Petitioners, contended that as they had undergone sentence of imprisonment for default of payment of fine, they were absolved from the liability and proceedings of recovery initiated by NAB Authorities, tantamounted to double jeopardy---Validity---Accountability Judge by exercising powers, not vested in him, mechanically imported the term of imprisonment in default of payment of fine and had departed from S.11 of the National Accountability Ordinance, 1999 and gave an option to the convict with regard to the payment of fine by holding that accused was to pay fine or in default to suffer further imprisonment---Under provisions of S.386, Cr.P.C., legislature had imposed condition for realization of fine, when the party had served out the imprisonment in default in payment of fine---Court, in circumstances, would not issue notice for realization of fine, unless for special reasons to be recorded in writing---Impugned notices, did not show any special reasons for realization of fine amount, as was required by law---Trial Court was required to adopt the procedure given in S.33-E of National Accountability Ordinance, 1999, but, NAB Authorities had haphazardly issued notices asking to pay the fine amount ignoring the law on the subject---Judgments of Accountability Court having been fully acted upon and the petitioners having suffered the sentence imposed upon them, proceedings initiated against the petitioners for recovery of fine amount, were declared null and void, without any lawful authority and of no legal effect---Impugned orders, were set aside, in circumstances. [Minority view].

Haji Ghousuddin v. The State PLD 2012 Bal. 104 and The State through Deputy Prosecutor General v. Muhammad Kaleem Bhatti 2010 MLD 676 rel.

Per Yahya Afridi, J, agreeing with Nisar Hussain Khan, J. (on difference of opinion between Nisar Hussain Khan and Mussarat Hilali, JJ) [Majority view].

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

----Ss. 9, 10, 11, 17 & 33-E---Penal Code (XLV of 1860), S.70---Criminal Procedure Code (V of 1898), Ss.386 & 403---Embezzlement, corruption and corrupt practices---Imposition of fine---Default in payment of fine---Recovery of amount of fine as arrears of land revenue---Points of difference, requiring opinion by the Referee Judge, were whether the amount of fine imposed by the Trial Court, could be recovered from the petitioners/accused persons, when they had served out not only substantive sentence of imprisonment but also imprisonment in default of payment of fine; who could recover the said fine and before which legal forum; whether such fine, could be recovered after six years of passing of sentence by the Trial Court, in terms of S.70, P.P.C. and whether recovery of such fine would amount to double jeopardy---Held, National Accountability Ordinance, 1999, was a special law, aimed to eradicate corrupt practices and hold accountable all those persons, accused of such practices and matter ancillary thereto---Punishment for the offence of 'corrupt and corrupt practices' had been provided under S.10 of National Accountability Ordinance, 1999, which was for rigorous imprisonment for terms extending to 14 years, and with fine and confiscation of tainted assets---Allowing the convicted person to undergo simple imprisonment in default of payment of sentenced fine, or the confiscation of tainted acquired property, would be against the spirit and aim of the Ordinance---General application of provisions of Criminal Procedure Code would not apply, when same were inconsistent with any provision of National Accountability Ordinance, 1999---Application of the provisions of Cr.P.C., were not to be blindingly followed by the Accountability Court under all circumstances---In view of insertion of S.33-E in the Ordinance, authority to recover the fine from a convicted person under the Ordinance vested with NAB---In view of distinct mode of recovery of sentenced fine prescribed under S.33-E of Ordinance, the general provisions provided for in S.386 of Cr.P.C., would not be applicable---Sentence of fine awarded by the Accountability Court in no circumstances could be condoned---Authority of the Trial Court to render reasons for issuance of warrant under S.386, Cr.P.C., had been deleted vide Law Reforms Ordinance, 1972---Mode adopted by NAB and the jurisdiction assumed by the Accountability Court for the recovery of sentenced fine, was without lawful authority---Recovery of the sentenced fine had to be recovered through the respective Revenue Collector under the enabling provisions of Land Revenue Act, 1967.

Muzammil Niazi's case PLD 2003 Kar. 526 ref.

Altaf Khan for Petitioner.

Syed Azam Dad, Special Prosecutor for Respondents.

P L D 2016 Balochistan 1

Before Muhammad Noor Meskanzai, C.J. and

Muhammad Hashim Khan Kakar, J

NAJEEBULLAH and others---Petitioners

Versus

DIRECTOR NADRA, BALOCHISTAN, QUETTA and others---Respondents

Constitutional Petitions Nos. 871 to 889, 896 of 2014 and 216, 351 and 371 of 2015, decided on 25th May, 2015.

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

----Ss. 18 & 23---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Constitutional petition filed prematurely before any final order---Availability of alternate remedy---Disputed questions of fact requiring probe/inquiry-Effect-Non-issuance/non­renewal of Computerized National Identity Cards (CNICs)---Power of National Database and Registration Authority (NADRA) to cancel, impound or confiscate CNIC---Scope and procedure---Contention of petitioners was that when they approached the National Database and Registration Authority ("NADRA") either for issuance of CNICs or for renewal of the same, certain documents were demanded to be placed before NADRA, which were, accordingly, produced, however, NADRA was reluctant to issue the CNICs---Validity---In case of any doubt, NADRA did have the authority to enquire and investigate about the CNIC issued to a person---NADRA could ask the holder of a CNIC to surrender his card (section 17 of the National Database and Registration Authority Ordinance, 2000)---NADRA had the power to cancel, impound or confiscate such card by making an order in writing under its seal or by an officer authorised by it in slick behalf (section 18(1) of the National Database and Registration Authority Ordinance, 2000)---No such like order could be made, unless such person had been given a notice in writing by calling upon him to show cause as to why the order of cancellation/impounding/confiscation should not be made---Against such an order, the remedy available to the aggrieved person was that of an appeal to the Federal Government provided under S.18(3) of the National Database and Registration Authority Ordinance 2000, within 30 days of the order---Case record of the present case revealed that neither had CNICs of the petitioners been impounded/cancelled or confiscated, nor had notices under S.17 of the National Database and Registration Authority Ordinance, 2000 been issued to them for the said purposes---Cases of the petitioners had been sent to the concerned committees for the purpose of verification and no adverse orders had been passed against them so far within the purview of S.18 of the National Database and Registration Authority Ordinance, 2000, thus, the present petition being premature, was not maintainable---Even otherwise, in case of any adverse order, the aggrieved person(s)/petitioners could file an appeal before the Federal Government within the purview of S.18(3) of the National Database and Registration Authority Ordinance 2000, thus, on this ground also the constitutional petition was not maintainable---Although a number of documents, annexed with the present petition, prima facie, established the fact that the petitioners were nationals of Pakistan, however, fate of the present petition could not be decided on the basis of such documents, authenticity of which could only be determined and established before a Civil Court and it required a full fledged enquiry and scrutiny, that too, after providing full opportunity of hearing to both the parties---NADRA alleged that documents presented by the petitioners could not be construed as conclusive proof for determining status of the petitioners, because some of the documents were prepared through foul play in connivance with the officials in the Provincial Government---Thorough probe and investigation would be needed to set such controversy at rest, which could not be resolved in exercise of constitutional jurisdiction of the High Court---Constitutional petition was dismissed accordingly as being not maintainable.

Rana Aftab Ahmed Khan v. Muhammad Ajmal PLD 2010 SC 1066 and Secretary to the Government of the Punjab v. Ghulam Nabi PLD 2001 SC 415 ref

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope--- Constitutional petition filed before the High Court---Availability of alternate remedy---Effect---Constitutional jurisdiction of the High Court could not be invoked in all matters as a matter of right, rather such jurisdiction had certain circumventions/limitations, which the Court was required to keep in view, while exercising its extraordinary jurisdiction---Availability of an alternate remedy (to the petitioner) was one such limitation which barred exercise of constitutional jurisdiction by the High Court.

Rana Aftab Ahmed Khan v. Muhammad Ajmal PLD 2010 SC 1066 ref.

(c) Constitution of Pakistan-

----Art. 199---Constitutional jurisdiction of the High Court---Scope--- Constitution petition filed before the High Court---Maintainability--- Disputed questions of fact requiring an inquiry---Effect---High Court under constitutional jurisdiction should not involve itself into investigation of disputed questions of fact, which necessitated taking of evidence---Such an exercise could more appropriately be done in the ordinary civil procedure for litigation by a suit---Extraordinary jurisdiction was intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority could be established without any elaborate enquiry into complicated or disputed facts---Controversial questions of facts, adjudication on which was possible only after obtaining all types of evidence in power and possession of parties could be determined only by courts having plenary jurisdiction in the matter and on such ground constitutional petitions were not maintainable.

(d) Constitution of Pakistan--

----Art. 199---Constitutional petition filed before the High Court--- Maintainability---Pre-requisites---While invoking constitutional jurisdiction, it was mandatory for the petitioner to establish a clear legal right which should be beyond any doubt and controversy.

Barrister Adnan A. Kassi for Petitioners (in C.Ps. Nos. 871 to 889 and 896 of 2014.

Muhammad Javed Ahmed for Petitioners (in C.P.No.216 of 2015).

Azmatullah Khan Kassi for Petitioners (in C.P.No.351 of 2015).

Manzoor Ahmed Rehmani for Petitioners (in C.P. No.371 of 2015).

Zubair Naseem and Nadeem Akhtar, Law Officers for NADRA.

Dates of hearing: 21st April, 5th and 6th May, 2015.

P L D 2016 Balochistan 21

Before Mrs. Syeda Tahira Safdar and Muhammad Kamran Khan Mulakhail, JJ

HAMAYUN SHAH---Petitioner

Versus

SECRETARY HOME AND TRIBAL AFFAIRS, GOVERNMENT OF BALOCHISTAN and 4 others---Respondents

C.P. No.10 of 2015, decided on 24th November, 2015.

Prohibition of Smoking and Protection of Non-Smokers Health Ordinance (LXXIV of 2002)--

----Ss. 2(c)(g), 5 & 11---Criminal Procedure Code (V of 1898), S.144(6)---Constitution of Pakistan, Art. 18---Sheesha smoking, serving of---Restraining order---Right of free trade---Petitioner was running a restaurant and his grievance was that authorities were interfering in his lawful business--- Validity---Offering of sheesha smoking in restaurant by petitioner was contrary to the provisions of Prohibition of Smoking and Protection of Non-Smokers Health Ordinance, 2002---Legal import of tobacco would bring no change nor could entitle petitioner for its use in the referred place---Restraining order was issued by government of Balochistan in exercise of powers available under S.144(6), Cr.P.C., which had specifically empowered provincial government to make an order to such effect---Petitioner failed to point out any illegality committed by provincial government in issuance of order in question---Petitioner failed to establish that any of his fundamental rights was denied by issuance of restraining order passed by authorities---Petitioner was citizen of Pakistan who had the right to enter in any profession or occupation or to conduct any trade or business but provisions of the Art.18 of the Constitution specifically spelt the nature of profession, occupation, trade and business as lawful which was missing---High Court declined to interfere in the matter-- Constitutional petition was dismissed in circumstances.

Zafar Alam Mandokhail for Petitioner.

Abdul Latif Kakar, Asstt. A.-G. for Respondents.

Date of hearing: 5th August, 2015.

P L D 2016 Balochistan 26

Before Jamal Khan Mandokhail, J

Messrs BEST OASIS LTD.---Plaintiff/Applicant.

Versus

Messrs S.Q. CORPORATION through Proprietor---Respondent/Defendant

Admiralty Suit No.1 of 2015, decided on 18th December, 2015.

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

----Ss. 3 & 5---Civil Procedure Code (V of 1908), O. VII, Rr. 10 & 11---Suit for recovery of money---Rejection/return of plaint---Grievance of plaintiff was that defendant did not make payment of consideration amount regarding vessel purchased from plaintiff---Defendant sought rejection of plaint on the ground that admiralty jurisdiction was not applicable-Validity-Suit for recovery of amount of sale and damages for non-payment of such amount in respect of a ship did not come within the jurisdiction of High Court under the provisions of Admiralty Jurisdiction of High Courts Ordinance, 1980---Adjudication of suit would be coram non judice---When court lacked jurisdiction, then under O. VII, R.10, C.P.C., the plaint should, at any stage of the suit, be returned to plaintiff to be presented to the court having jurisdiction in the matter, instead of rejection of plaint---High Court converted application of defendant from rejection of plaint into application under O. VII, R.10, C.P.C. for return of the plaint---Application was allowed in circumstances.

Talat Waheed Khan for Applicant/Plaintiff.

Habib Tahir for Respondent/Defendant.

Date of hearing: 16th November, 2013.

P L D 2016 Balochistan 39

Before Mrs. Syeda Tahira Safdar and Muhammad Kamran Khan Mulakhail, JJ

SULEMAN MEHMOOD---Appellant

Versus

ANWARI BEGUM and others---Respondents

C.M. Appeal No.16 of 2015, decided on 24th November, 2015.

Succession Act (XXXIX of 1925)---

----Ss. 264, 270, 278, 299 & 371---Letter of administration---Territorial jurisdiction---Principle---Appellant filed application for grant of letter of administration but Trial Court at place "Q" returned the application for lack of territorial jurisdiction---Validity---Application was filed before Trial Court with assertion that deceased had permanent place of abode at place "Q" but properties owned by deceased situated in different parts of another province---District Judge at place "Q" had jurisdiction to entertain application for the purpose and to grant letter of administration---Simultaneously District Judge, in whose territorial jurisdiction the properties situated also had the jurisdiction---Trial Court without going into relevant provisions of law simply returned the application, on the basis that Court had no jurisdiction in the matter---Such action of the Trial Court was an error---High Court advised the Trial Court that before making decision should always go through law applicable in the matter pending for decision---Forum and territorial jurisdiction for courts was determined under Ss.264 & 270 of Succession Act, 1925---High Court did not put respondents on notice as they had not been served when application was returned by Trial Court---High Court set aside the order passed by Trial Court at place "Q" and remanded the case for decision afresh.

Mst. Uzma Rehman v. Public at Large PLD 2011 Kar. 108; Tariq Shafi; in the matter of 2013 MLD 129 and Vasdev v. General Public PLD 1979 Quetta 35 ref.

Muhammad Ilyas Mughal for Appellant.

Nemo for Respondents.

Date of hearing: 8th September, 2015.

P L D 2016 Balochistan 44

Before Muhammad Ejaz Swati and Mrs. Syeda Tahira Safdar, JJ

JAMAL UD DIN and 9 others---Appellants

Versus

Syed FAIZULLAH SHAH and 3 others---Respondents

R.F.A. No.84 of 2008, decided on 5th January, 2016.

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

----O. XXIII, R.2---Limitation Act (IX of 1908), Art.120---Withdrawal of suit to file a fresh suit---Limitation---Plaintiffs should be bound by law of limitation in the same manner as first suit had not been instituted---Plaintiffs had challenged mutation entries of 1967/1968 but had failed to explain the delay---Suit filed by the plaintiffs was barred by time---No evidence had been produced to prove the allegation of fraud against the defendants or any revenue officer---Impugned judgment and decree could not be sustained---Suit filed by the plaintiffs was dismissed---Appeal was allowed in circumstances.

Muhammad Saeed Bacha and another v. Late Badshah Amir and others 2011 SCMR 345; Muhammad Raz Khan v. Government of N.-W.F.P. and another PLD 1997 SC 397; PLD 2015 SC 187; 2015 SCMR 1044; 2010 SCMR 822; Amirzada Khan and others v. Ahmad Noor and others PLD 2003 SC 410; Government of Balochistan CWPP&H Department and others v. Nawabzada Mir Tariq Khan Magsi and others 2010 SCMR 115; Hakim Khan v. Nazeer Ahmed Laghmani 1992 SCMR 1832 and 1997 SCMR 1840 rel.

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

----O. XXIII, R.2---Withdrawal of suit to file a fresh suit---Cause of action---Scope---Mere withdrawal of previous suit and institution of fresh one could not be considered to be fresh cause of action.

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

----S. 42---Limitation Act (IX of 1908), Art.120---Suit for declaration---Limitation---Limitation to file a suit for declaration was six years.

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

----S. 39---Limitation Act (IX of 1908), Art.91---Suit for cancellation of instrument---Limitation---Limitation to file a suit for cancellation of instrument was three years.

(e) Limitation---

----If remedy availed was beyond limitation then delay of each and every day had to be explained.

(f) Constitution of Pakistan---

----Art. 174---Civil Procedure Code (V of 1908), S.79---Unsettled property---Suit without impleading government---Maintainability---Suit with regard to unsettled property was not maintainable in absence of impleading the Government.

Government of Balochistan CWPP&H Department and others v. Nawabzada Mir Tariq Khan Magsi and others 2010 SCMR 115 rel.

Nouroz Khan Mengal for Appellants.

Qazi Muhammad Haroon for Respondents.

Date of hearing: 2nd November, 2015.

P L D 2016 Balochistan 56

Before Muhammad Hashim Khan Kakar and Naeem Akhtar Afghan, JJ

TAHIR HUMAYUN and others---Appellants

Versus

HIGH COURT OF BALOCHISTAN through Registrar and others---Respondents

Service Appeals Nos.1 of 2002, 6, 7, 8 and 9 of 2015, decided on 25th April, 2016.

(a) Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989)---

----S. 5---Judicial officer---Ad hoc appointment and appointment on regular basis---Seniority---Determination---Procedure---Services of employees (respondents) was regularized and they were assigned seniority from the date of their initial appointment on ad hoc basis---Contention of appellant was that ad hoc service of a government employee could not be counted for the purposes of seniority or promotion to affect the rights of other employee who was regularly inducted into service prior to regularization of ad hoc employee---Validity---Service rendered by the employee on ad hoc basis prior to regularization could not be counted for the purpose of seniority but seniority should be counted from the date of substantive appointment---Ad hoc service unless regularized by the competent authority did not confer any right either for regular absorption nor same could be counted towards seniority except that it could be counted towards length of service for the purpose of pension if ultimately regularized---Appellant was appointed on regular basis prior to regularization of services of respondents (employees)---Appellant being selectee of Public Service Commission was required to rank senior to the respondents (employees) who were regularized through process of Administration Committee of High Court (Balochistan)---Administration Committee had no authority to regularize the services of respondents (employees) from the date of their initial ad hoc appointment retrospectively---Government or Administration Committee of the High Court had power to ignore consciously any section of Act or any rule that might prohibit or restrain it to do what they were attempting to do provided they limited their action to what was just and equitable---Administration Committee while regularizing services of respondents (employees) from the date of their initial ad hoc appointment had exercised its discretionary power in an arbitrary, unreasonable and capricious manner which had caused injury to the appellant---Illegal acts would remain illegal and would not become legal by efflux of time---Appellant as well as non-appealing judicial officers who were also appointed on regular basis prior to the regularization of ad hoc services of respondents (employees) were declared senior to the respondents (employees) whose ad hoc services were regularized retrospectively ---Cases of appellant and as well as non-appealing judicial officers were referred to the Administration Committee of High Court (Balochistan) for consideration of their promotion to the next grade from the date when respondents were promoted---Appeal was disposed of accordingly.

Wajahat Hussain, Assistant Director, Social Welfare, Lahore v. Province of the Punjab PLD 1991 SC 82 and The State through National Accountability Bureau, Islamabad v. Haji Nasim-ur-Rehman PLD 2005 SC 270 rel.

(b) Civil service---

----"Ad hoc appointment"---Concept and scope.

(c) Notification

----Void notification---Void notification could not be enforced.

(d) Void order/notification---

----Limitation---No limitation had been prescribed to competently and successfully challenge a void order and notification.

Senate through Chairman v. Shahiq Ahmed Khan 2016 SCMR 460 rel.

(e) Administration of justice---

----Repository of executive, judicial or quasi-judicial power was required to act in accordance with law---Any order which had been passed in violation of law could not be protected simply because the repository of such power had the power to pass such order.

Fazli Hakeem v. Secretary State and Fronteir Regions Division Islamabd 2015 SCMR 795 rel.

(f) Judgment---

----Judgment in rem---Scope---Where any law or statutory rule on being challenged was interpreted and decided one way or the other by the superior court, such interpretation should be applied by the concerned public, statutory agencies, authorities, bodies and functionaries--- Judgment of superior court was not only binding on all the subordinate courts and tribunals but also on all public and statutory functionaries.

Sikandar A. Karim v. State 1995 SCMR 387 rel.

(g) Public functionaries---

----Public functionaries were required to treat all citizens placed in similar circumstances alike---Public functionaries had to apply law, rule, regularization, notification or the policy as enunciated, interpreted and expounded by the superior courts.

(h) Estoppel--

----Principle of estoppel and limitation would not apply to illegal acts.

(i) Words and phrases--

----"Just"---Meaning

(j) Words and phrases---

----"Equitable"---Meaning.

Shams-ud-Din for Appellant.

H. Shakil Ahmed for Respondents Nos. 4 and 6.

Muhammad Qahir Shah for Respondents Nos. 7, 12 and 23.

Barrister Muhammad Amir Lehri for Respondent No.11.

Taj Muhammad Mengal for Respondents Nos. 15, 25, 26 and 27.

Gul Hassan Tareen for Respondent No.22.

Shai Haq Baloch, Assistant Advocate General (Official Respondents).

Dates of hearing: 11th September, 30th October, 2015, 25th March, 15th and 22nd April, 2016.

P L D 2016 Balochistan 69

Before Jamal Khan Mandokhail and Shakeel Ahmed Baloch, JJ

Syed ATIQ ANWAR SHERAZI---Petitioner

Versus

DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU, BALOCHISTAN---Respondent

Constitutional Petition No.1048 of 2014, decided on 25th April, 2016.

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

----S. 25---Federal Government (Finance Department) Letter No.(2) DFA (CAB)/2000 dated 6-7-2000---Amount of voluntary return and plea bargaining---Deduction of any portion of recovered amount as a share of NAB---Scope---Neither the Constitution nor National Accountability Ordinance, 1999 allowed the Federal Government or the NAB to deduct any portion of the recovered amount---Entire recovered amount on behalf of concerned Government should be deposited in its respective accounts---Any deduction out of such amount would be contrary to the provisions of Constitution and National Accountability Ordinance, 1999---No authority, department, organization or any Government was authorized to receive or collect any amount for any purpose from any person or body corporate or business entity except by enactment promulgated by Parliament or Provincial Government---Instructions and procedure provided by the Finance Department (vide notification) for deduction of 25% out of recovered amount had no statutory backing---Such deduction was contrary to the Constitution and was declared void by High Court; NAB authorities were restrained from deducting any amount from the amount recovered on account of voluntary return and plea bargaining---High Court directed that such amount be deposited in the Public Account of the Federation or in the Public Account of the Province within one month.

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

----S. 25---Constitution of Pakistan, Art.77---Federal Finance Ministry Letter No.2(2) DFA (CAB) 2000 dated 6-7-2000---Deduction of 25% out of recovered amount by NAB authorities; amount received by NAB through voluntary return and plea bargaining under the Ordinance; amount received on behalf of Bank, Financial Institutions, company, body corporate, cooperative society statutory body or Authority; amount of fine other than the amount of voluntary return and plea bargaining with assistance of court and any asset and pecuniary resources found to be disproportionate to the known sources of income of holder of public office; Scope---Instructions and Procedure provided by the Federal Finance Department for deduction of 25% out of the recovered amount had no statutory backing, therefore such deduction was contrary to Art.77 of the Constitution and was illegal---Grant of reward to the Officers/Officials and making the NAB self-sufficient with regard to funds was to be managed in accordance with the Rules of the NAB authorities and within its allocated budget, instead of deducting 25% from the amount recovered under S.25 of the National Accountability Ordinance, 1999---High Court issued directions with regard to amount recovered under S.25 of the Ordinance.

Following are the directions by the High Court with regard to amount recovered under S.25 of the National Accountability Ordinance, 1999:-

(i) That the procedure/instructions issued by the Finance Ministry for deduction of amount as NAB's share from the amount recovered on account of voluntary return and plea bargaining is void.

(ii) That the NAB authorities are restrained from deducting any amount from the amount recovered by them on account of voluntary return and plea bargaining as provided by S.25 of the Ordinance.

(iii) That the entire amount received by the NAB through voluntary return and plea bargaining as per the NAB Ordinance shall be deposited in the Public Account of the Federation or in the Public Account of the Province as the case may be, within a period of one month.

(iv) That the entire amount received by the NAB authorities on behalf of the concerned bank, financial institution, company, body corporate, cooperative society, statutory body or authority concerned shall be transferred in their respective accounts.

(v) That the entire amount of fine other than the amount of voluntary return and plea bargaining recovered under the NAB Ordinance with the assistance of Court, shall directly be deposited in the Public Account of the Federation and Public Account of the Province, or any other authority, as the case may be.

(vi) That any asset and pecuniary resources found to be disproportionate to the known sources of income of holder of public office, either in his name or in the name of any of his dependants or binamidars shall be forfeited to the concerned Government of which a person holding such public office belongs.

Munir Ahmed Kakar for Petitioner.

Ikhlaq Shah, Standing Counsel, Mumtaz Yousaf, DPG, NAB and Ameer Zaman Jogezai, Special Prosecutor NAB for Respondent

Date of hearing: 20th April, 2016.

P L D 2016 Balochistan 76

Before Muhammad Ejaz Swati, J

MUHAMMAD IBRAHIM and another----Appellants

Versus

ABDUL SALAM and 9 others----Respondents

F.A.O. No.69 of 2015, decided on 28th March, 2016.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Default in payment of rent---Bona fide need of landlord---Statement of attorney---Scope---Statement of landlord on oath was sufficient for acceptance of eviction petition---Statement of attorney should be construed as statement of principal unless contrary had been proved---Mere non-appearance of landlord would not affect his bona fide claim---Tenant was bound to pay/deposit the rent within 60 days after it had become due but, in the present case, he failed to do so---Tenant had committed wilful default in circumstances---Tenant would be liable to be ejected notwithstanding subsequent payment of arrears of rent---Landlord had choice to select any of his property for business or occupation on the ground of bona fide use and occupation---Rent Controller had passed the impugned order after considering the evidence on record---Tenant was allowed six months' time for handing over the vacant possession of demised premises to the landlord subject to payment of monthly rent---Appeal was dismissed in circumstances.

Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197; Malka Begum v. Mehr Ali Hashmi 1989 SCMR 755 and Messrs F. K. Irani & Co. v. Begum Feroze 1996 SCMR 1178 rel.

Mumtaz Hussain Baqri for Appellants.

Muhammad Ibrahim Lehri for Respondents Nos.1 to 10.

Date of hearing: 1st March, 2016.

P L D 2016 Balochistan 81

Before Muhammad Noor Meskanzai, C.J.

BOLAN MINING ENTERPRISES through Site Incharge-----Petitioner

Versus

GHOUS BAKSH and 2 others----Respondents

Civil Revision No.208 of 2010, decided on 18th April, 2016.

Civil Procedure Code (V of 1908)---

----O. VII, Rr. 11(d) & 3---Non-availability of description of suit property in the plaint---Plaint, rejection of---Scope---Res judicata, principle of---Applicability---Trial Court decreed the suit but Appellate Court rejected the plaint due to non-availability of description of suit property in the plaint---Validity---Court could reject plaint at any stage of the proceedings as contemplated by O.VII, R.11, C.P.C.---Non-compliance of O.VII, R.3, C.P.C. did not attract the penal provision of O.VII, R.11, C.P.C. nor it would provide for rejection or dismissal of suit---Plaintiff should be directed to file an amended plaint if it was pointed out at early stage that same did not contain description of suit property---If evidence available on record sufficiently identified the description of suit property then Trial Court could competently pass a decree---Description of suit property, in the present case, was not given in the plaint but evidence to such effect was available---Trial Court had specifically mentioned the Khasra number while decreeing the suit---Appellate Court had committed material irregularity while rejecting the plaint on the ground of non-availability of description of property in the plaint---If findings on the issues recorded by the Appellate Court were allowed to remain in field and plaintiff was permitted to file a fresh suit then suit would be hit by the principle of res judicata---If Appellate Court wanted to reject the plaint at the strength of O.VII, R.3, C.P.C. then it should not have decided the issues as decision on such issues would have the impact on final decision either way---Impugned judgment and decree passed by the Appellate Court were set aside and case was remanded to the Appellate Court for decision on merit within specific period---Revision was allowed in circumstances.

PLD 1965 SC 274 and PLD 1973 Quetta 24 rel.

Muhammad Riaz Ahmed for Petitioner.

Taj Muhammad Mengal for Respondents.

Date of hearing: 1st April, 2016.

P L D 2016 Balochistan 87

Before Muhammad Ejaz Swati and Mrs. Syeda Tahira Safdar, JJ

QADIR BAKHSH----Petitioner

Versus

Mst. HAZAAN and 50 others----Respondents

C.P. No.694 of 2009, decided on 7th March, 2016.

Land Reforms Regulations, 1959 (MLR 64 of 1959)---

----Para. 21---Resumption of "jagir" in favour of Provincial Government---Scope---Supreme Court while affirming the findings of High Court had held that property in dispute was "jagir" which had abolished and reverted to Government free from any encumbrance or charges with effect from 3rd October, 1959 and remanded the case to Deputy Land Commissioner or concerned authority to initiate proceedings for determining the rights/entitlement if any---Deputy Land Commissioner had directed the jagirdars to submit declaration for initiation of proceedings for determination of right/entitlement if any---Impugned orders had been passed keeping in view Para 21 of MLR 64 of 1959---No illegality had been pointed out in the impugned order---Constitution/al petition was dismissed in circumstances.

Kamaran Arshad for Petitioners.

H. Shakil Ahmed for Respondents.

Zahoor Ahmed Baloch, Asstt. A.G. for the State.

Date of hearing: 11th November, 2015.

P L D 2016 Balochistan 93

Before Muhammad Noor Meskanzai, C.J. and Jamal Khan Mandokhail, J

MUHAMMAD ABDULLAH---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 36 and 37 of 2016, decided on 18th April, 2016.

Criminal Procedure Code (V of 1898)---

----S. 426(1)(2-B)---Penal Code (XLV of 1860), S.302---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25(8)---Qatl-i-amd and act of terrorism---Suspension of sentence---Procedure---Appeal filed by the accused against conviction by the Trial Court was dismissed by High Court against which leave to appeal was granted by the Supreme Court---Contention of accused was that there was no possibility of the appeal being disposed of in near future by the Supreme Court, he was entitled for grant of bail---Validity---For suspension of sentence granting leave to appeal was one of the conditions but the sentence could only be suspended if the High Court thought it fit and discretion still rested with the High Court---Accused was required to satisfy the High Court to suspend the sentence that appeal could not be disposed of within the stipulated period; judgment sought to be suspended suffered from a legal error; convict was on bail during the appeal pending before the High Court and legal bar for suspension of sentence did not exist---Merits of the case could not be touched nor reappraisal of evidence was permitted while deciding the application under S.426(2-B), Cr.P.C.---Provisions of S.426(2-B), Cr.P.C. did not apply to the present case---Convict could not be released on bail during the pendency of appeal as contemplated by S.25 of Anti-Terrorism Act, 1997---Bar of S.25 of Anti-Terrorism Act, 1997 was fully attracted in the present case which being a special law would prevail upon S.426(2-B), Cr.P.C.---Application for suspension of sentence was dismissed in circumstances.

Atta Ullah alias Hasnain alias Hassan v. The State 2009 PCr.LJ 257 distingusihed.

Tahir Ali Baloch and Abdul Razzaq Sher for Applicants.

Mushtaq Ahmed Qazi, A.P.G. for Respondents.

Date of hearing: 7th April, 2016.

P L D 2016 Balochistan 97

Before Shakeel Ahmed Baloch, J

MUHABBATULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Quashment Petition No.393 of 2015, decided on 20th April, 2016.

Criminal Procedure Code (V of 1898)---

----Ss. 190 (1) (3), 346 & 347---Penal Code (XLV of 1860), Ss. 420, 409 & 418---Cheating and dishonestly inducing delivery of property, criminal breach of trust by public servant or by banker and forgery for the purpose of cheating---Sending case by the Judicial Magistrate to the Sessions Judge for pronouncement of judgment---Procedure---Judicial Magistrate on completion of trial of the case concluded that case of misappropriation had been proved and punishment might extend to 10 years and forwarded file to the Sessions Judge for pronouncement of judgment---Validity---Both Judicial Magistrate and Sessions Judge had concurrent jurisdiction to try the offence under S. 409, P.P.C.---If two courts had co-extensive or concurrent jurisdiction then jurisdiction of court of lower grade should be invoked in the first instance---Judicial Magistrate had rightly took cognizance of the matter initially and having concurrent jurisdiction the Trial Court had commenced with the trial of the case---Judicial Magistrate had not only proposed to the Sessions Judge to award sentence to the accused but also according to him (Judicial Magistrate) accused was entitled for greater punishment---Trial Court had committed illegality while passing such findings---Judicial Magistrate could not propose to the Sessions Judge the quantum of sentence rather after sending the file it would be legal authority of the Sessions Judge who after perusing the file or recording any evidence should form his own opinion with regard to guilt or innocence of the accused---Judicial Magistrate ought to have used the words in the impugned order that "according to his opinion the case seemed to be proved and accused deserved greater punishment"---Findings of Trial Court to the extent of proposal of sentence etc. were expunged in circumstances---If initially Judicial Magistrate had formed a view that he should himself try the case and commenced with the recording evidence but at subsequent stage even after recording evidence had formed opinion that the case should or ought to be tried by a Court of Session even then he had powers to send case for trial to the Court of Session or High Court---If Judicial Magistrate had concurrent jurisdiction to hold a trial even then he was competent to send case to the Court of Session without recording of evidence---Sessions Judge was directed to decide the case in accordance with law after forming his own opinion keeping in view the facts and circumstances of the case---Accused would remain on bail during the trial---Petition was dismissed in circumstances.

Ghulam Hussain v. State 1985 PCr.LJ 2334 and Zulfiqar Ali v. State PLD 1992 Lah. 211 ref.

PLD 2016 SC 55 and Ghulam Hussain v. State 1985 PCr.LJ 2334 rel.

Noor Jan Buledi for Petitioner.

Asad Ali Tareen, State Counsel.

Date of hearing: 12th April, 2016.

P L D 2016 Balochistan 102

Before Jamal Khan Mandokhail and Shakeel Ahmed Baloch, JJ

ABDUL MAJEED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.227 of 2009, decided on 2nd March, 2016.

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

----S. 423---Appeal--Absence of appellant or his pleader-Effect---Once an appeal was admitted for regular hearing it must be decided on merits by assigning reasons rather than dismissing the same for non-prosecution---Appellate Court after calling the record of Trial Court and perusing the same should decide appeal on merits---If appellant or his pleader failed to appear or argue the appeal it did not relieve the Appellate Court of its duty of disposing of an appeal on merits.

Muhammad Ashique Faqir v. State PLD 1970 SC 177 rel.

(b) Constitution of Pakistan---

----Art. 13---Criminal Procedure Code (V of 1898), S. 403---General Clauses Act (X of 1897), S. 26---Penal Code (XLV of 1860), Ss. 109, 275, 276, 419, 420, 468 & 471---Drugs Act (XXXI of 1976), Ss. 23 & 27---Abetment, sale of adulterated drugs, sale of drug as a different drug or preparation, cheating by personation, cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document and recovery of different types of spurious drugs---One offence punishable under two or more enactments---Conviction under one enactment---Bar of subsequent prosecution and punishment for the same offence---Scope---Accused was convicted and sentenced under Ss. 109, 275, 276, 419, 420, 468 & 471, P. P. C by the Judicial Magistrate and thereafter he was further convicted and sentenced under Ss. 23 & 27 of Drugs Act, 1976 on complaint---Contention of accused was that punishment awarded to him by the Drug Court would amount to a double jeopardy as on the same facts Judicial Magistrate had already sentenced him---Validity---If a person was charged and prosecuted under different enactments for the same offence and subsequently was convicted or acquitted of the offence under one enactment by a competent court of law then Constitution and law had prohibited subsequent prosecution and punishment of the accused for the same offence---Bar of subsequent prosecution was to avoid duplication of punishment for one and the same offence---Accused was liable to be prosecuted and punished for the offence in either of the two enactments---Once accused was convicted and sentenced by the Judicial Magistrate, there was a bar to subsequent prosecution and punishment by the Drug Court---Drug Court continued the trial despite such bar which was not warranted---Conviction awarded to the accused by the Drug Court was against the provisions of Constitution and the law---Impugned judgment passed by the Drug Court was set aside and complaint was dismissed---Appeal was allowed in circumstances.

Nazir Ahmed v. Capital City Police Officer 2011 SCMR 484 rel.

(c) Words and phrases---

----"Offence"---Meaning.

Shabbir Shah, Standing Counsel.

Date of hearing: 25th November, 2015.

PLD 2016 Supreme Court 1

Present: Anwar Zaheer Jamali, C J, Mushir Alam and Umar Ata Bandial, JJ

SHAHBAZ KHAN alias Tippu and others---Appellants

Versus

SPECIAL JUDGE ANTI-TERRORISM COURT NO.3, LAHORE and others---Respondents

Civil Appeal No.69 of 2015, decided on 15th September, 2015.

(On appeal from the judgment dated 28.08.20104 of the Lahore High Court, Lahore passed in W.P. No.20018 of 2014).

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

----S. 12---Criminal Procedure Code (V of 1898), S.173---Anti-Terrorism Court---Determining jurisdiction of Anti-Terrorism Court---Tentative assessment of prosecution material---Jurisdiction of Anti-Terrorism Court for taking congnizance and conducting trial of offences was to be initially determined on a tentative assessment of the prosecution material that was presented before a Trial Court---At the pre-trial stage the relevant record for the consideration of the said question was the police report under S.173, Cr.P.C. and the investigation materials attached thereto.

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

----Ss. 6(1)(a), 6(1)(b) & 12---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Brutal killing of unarmed persons on a public street by indiscriminate firing---Reappraisal of evidence---Anti-Terrorism Court, jurisdiction of---Motive/intention/mens rea for an offence---Natural and inevitable consequences of acts of an accused deemed to be intended by him---Accused persons acting on the instructions of co-accused killed five people on a public street---Motive for the occurrence was a property dispute between co-accused and complainant party---Accused persons contended that the murders were triggered by a private property dispute; that there was no design to intimidate or overawe the public or create sense of fear or insecurity in the society within the meaning of S.6(1)(b) of the Anti-Terrorism Act, 1997, thus, the Anti-Terrorism Court did not have jurisdiction to try the case---Anti-Terrorism Court transferred the case for trial to Sessions Court exercising ordinary criminal jurisdiction---High Court ordered trial of offence by an Anti-Terrorism Court---Validity---When wanton overt acts committed by an accused lead to horrendous consequences then the motive given in the FIR merely indicated the background---Presumption that the natural and inevitable consequences of the acts of an accused were deemed to be intended, provided a reliable touchstone for gathering the design, intention or mens rea of an assailant in the context of S.6(1)(b) of Anti-Terrorism Act, 1997---In the present case, dispute about the possession of a property exploded disproportionately to a scale depicting wanton ruthlessness and impunity in the multiple killing of victims in a public place inhabited by public residents---Motive of a domestic family property dispute was merely the spark that triggered the occurrence---When determining the design, intention and mens rea of accused persons in the present case, the principle was that they were deemed to intend the natural and inevitable consequences of their actions ---Three ingredients of the offence of "terrorism" under S.6(1)(a) & (b) of Anti-Terrorism Act, 1997 were, firstly, taking of action specified in S.6(2) of the said Act; secondly, that action was committed with design, intention and mens rea; and thirdly, it had the impact of causing intimidation, awe, fear and insecurity in the public or society---In relation to the present case firstly, the place of occurrence where five persons had been killed was spread over different spots on a public street in the locality of the disputed property---Houses lined both sides of the street where members of the public resided---Secondly, the five murders were a result of unchecked, indiscriminate and random shooting that hit the fleeing victims in front of different houses on the street---Thirdly, the persons attributed lethal firing by the prosecution were neither alleged to nor personally nurtured the stated private motive narrated in the FIR---Accused persons were gunmen on a job impervious to the consequences of their actions, and prima facie, they executed the instructions given by the co-accused---Fourthly, the occurrence took place within the sight and the earshot of the persons from the public who resided in the locality---Brutal killing of five unarmed persons on a public street would have stricken panic, fear and insecurity among the residents in the locality---All ingredients under S.6 of Anti-Terrorism Act, 1997, that constituted the offence of terrorism were prima facie available in the present case---High Court had rightly ordered trial of accused persons by the Anti-Terrorism Court---Appeal was dismissed accordingly.

(c) Criminal trial---

----Motive/intention/mens rea for an offence, determining of---Natural and inevitable consequences of a person's act deemed to have been intended by him---Rule of evidence---Applicability and scope---Consequences ensuing from actions of accused and the surrounding circumstances of a case---Relevant for determining intention or mens rea for an offence---In most cases, the nature of the offences, the manner of their commission and the surrounding circumstances demonstrated the motive given in the FIR---Where, however, offences were committed by persons with impunity disregarding the consequence or impact of their overt action, the private motive or enmity disclosed in the FIR could not be presumed to capture their true intent and purpose---In such cases, it was plain that action taken and offences committed were not instigated "solely" by the private motive alleged in the FIR---Intention. motive or mens rea referred to the state of mind of an offender---State of mind could not be proven by positive evidence or by direct proof---Intention of an accused for committing an offence was to be gathered from his overt acts and expression---Accused person must be deemed to have intended the natural and inevitable consequences of his action, thus apart from the overt acts of the accused, the injuries caused by him or consequences ensuing from his actions and the surrounding circumstances of the case were all relevant to ascertain the design, intention or mens rea that instigated the offences committed---Intention was presumed when the nature of the act committed and the circumstances in which it was committed were reasonably susceptible to one interpretation---In such event, the rule of evidence that the natural and inevitable consequences of a person's act were deemed to have been intended by him was applicable.

State v. Ataullah Khan Mangal PLD 1967 SC 78; Zahid Imran v. The State PLD 2006 SC 109; Pehlwan v. Crown 1969 SCMR 641; Jane Alam v. The State PLD 1965 SC 640 and Muhammad Mushtaq v. The State PLD 2002 SC 841 ref.

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

----Ss. 6 & 12---Anti-Terrorism Court, jurisdiction of---Acts of the accused and the surrounding circumstances of the case could be interpreted in order to ascertain whether the case fell within the ambit of the Anti-Terrorism Act, 1997.

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

----S. 23---Case transferred from Anti-Terrorism Court to court of ordinary criminal jurisdiction---Procedure---Such case would resume (before the ordinary criminal court) from the stage at which it was transferred by the Anti-Terrorism Court.

Raja Muhammad Ibrahim Satti, Sr. ASC and Ch. Irshad Ullah Chattha ASC for Appellants.

Waqar Hassan Mir, ASC for Respondent No.2.

Mudassar Khalid Abbasi, Addl. PG, Pb. and Ahmad Raza Gillani, Addl. P.G. Pb. on Court's Notice.

Date of hearing: 15.09.2015.

P L D 2016 Supreme Court 11

Present: Anwar Zaheer Jamali, Ejaz Afzal Khan and Mushir Alam, JJ

NISAR AHMED---Petitioner

Versus

The STATE and others---Respondents

Criminal Petition No.604 of 2015, decided on 8th September, 2015.

(On appeal from judgment of Lahore High Court, Multan Bench, dated 29-7-2015, passed in Criminal Miscellaneous No.4327-B of 2015).

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

----S. 497---Constitution of Pakistan, Art. 185(3)---Bail, grant of---Grounds---Non-compliance of the directions issued by the High Court (to the Trial Court) to conclude the trial expeditiously or within specified time---Non-compliance with such direction could not be considered a valid ground to grant bail to the accused---Petition for leave to appeal was dismissed accordingly and bail was refused.

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

----Ss. 200 & 497---Constitution of Pakistan, Art. 185(3)---Bail, grant of---Grounds---Filing of direct complaint---Four bail applications moved by the accused before the High Court were dismissed---Complainant in the meanwhile had also filed a direct complaint---Accused contended that filing of direct complaint by complainant had furnished a fresh ground for him to move another bail application/petition---Validity---Filing of direct complaint had no bearing as regards earlier bail refusing orders, which had attained finality, unless accused could show some fresh ground for considering his request for grant of bail---Petition for leave to appeal was dismissed accordingly and bail was refused.

Khakim Hussain Qaiser, ASC and Syed Rifaqat Husain Shah, AOR for Petitioner.

Nemo for Respondents.

Date of hearing: 8th September, 2015.

P L D 2016 Supreme Court 13

Present: Asif Saeed Khan Khosa, Gulzar Ahmed and Dost Muhammad Khan, JJ

Sheikh MUHAMMAD RAFIQUE---Appellant

Versus

MUHAMMAD YAMEEN and others---Respondents

Criminal Appeal No.115 of 2014, heard on 9th April, 2014.

(Against the judgment dated 13.03.2013 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.222 of 2011)

Appeal (Criminal)--

----Appeal, disposal of---Numerous appeals dismissed by High Court in limine on merits through a common order in the absence of appellants and their counsel---Unjust and unfair---Criminal appeal filed by appellant, in the present case, before the High Court was filed for hearing on 12-3-2013 through a regular cause list---Due to a strike by lawyers on the day said appeal along with more than one hundred other appeals were re-fixed for hearing on the next day i.e. 13-3-2013 through a supplementary cause list in the absence of the appellants therein and their counsel---On 13-3-2013 all said appeals were dismissed by a Judge-in-Chamber of the High Court in limine on merits in the absence of the appellants and their counsel through one and the same order which was omnibus and common to all the appeals decided---Legality---Such wholesale disposition of criminal appeals on merits through an omnibus and common order and that too in the absence of the appellants and their counsel, could not be approved---Such disposition of criminal appeals on the merits amounted to nothing short of smothering of justice and that too in utter violation and disregard of the law---Such manner of disposition of appeals by the Judge-in-Chamber of the High Court, was even otherwise unfair and improper, particularly when the individual and critical legal questions agitated and highlighted by the present appellant through his appeal had never been attended to by the Judge at he time of passage of the impugned order dismissing the appellant's appeal in limine in the absence of the appellant and his counsel---Impugned order passed by Judge-in-Chamber of the High Court, was set aside and the appeal of present appellant was remanded to the High Court, for a fresh hearing---Appeal was allowed accordingly.

Gouranga Mohan Sikdar v. The Collector of Import and Export and 2 others PLD 1970 SC 158 ref.

Khadim Nadeem Malik, ASC for Appellant.

Ahmad Raza Gillani, Additional Prosecutor-General, Punjab for the State.

Respondents Nos. 2, 3 and 5 in person.

Respondents No.1, 4 and 6: Nemo

Date of hearing: 09-04-2014.

P L D 2016 Supreme Court 17

Present: Asif Saeed Khan Khosa, Mushir Alam and Dost Muhammad Khan, JJ

Malik MUHAMMAD MUMTAZ QADRI---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.210 and 211 of 2015, decided on 7th October, 2015.

(Against the judgment dated 09.03.2015 passed by the Islamabad High Court, Islamabad in Criminal Appeal No.90 of 2011 and Capital Sentence Reference No.01 of 2011)

(a) Constitution of Pakistan---

----Art.178 & Third Sched.---Judge of Supreme Court, duty of---Adherence to law of the land---Judges of the Supreme Court, in terms of their calling and vocation and in accord with the oath of their office, were obligated to decide a case in accordance wit h the law of the land as it existed and not in accordance with what the law should be.

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

----Ss. 79, 295-C & 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Qatl-i-amd, act of terrorism---Reappraisal of evidence---Death sentence, confirmation of---Murder committed on basis of hearsay statements about alleged blasphemy---Murder committed without any factual or legal justification---Accused, while performing his duty as the official guard of the deceased-Provincial Governor, fired at and killed the latter---Alleged justification provided by the accused for the murder was that the deceased had committed blasphemy by calling "blasphemy law as black law", and that immediately prior to the occurrence there was a verbal exchange between the two , wherein deceased called blasphemy law as black law, which suddenly provoked the accused to murder the deceased---Trial Court sentenced the accused to death, which was confirmed by the High Court---Validity---Deepest respect and profound reverence for the Holy Prophet Muhammad (peace be upon him) was an article of faith with all Muslims---Be that as it may the issue involved in the present case was not as to whether anybody was allowed to commit blasphemy by defiling the sacred name of the Holy Prophet Muhammad (peace be upon him) or not or as to whether a person committing blasphemy could be killed by another person on his own or not, but the real question involved was as to whether or not a person could be said to be justified in killing another person on his own on the basis of an unverified impression or an unestablished perception that such other person had committed blasphemy---Accused, in the present case, admitted at every stage of the case that he, and he alone, had committed the murder of the deceased at the date, time and place alleged by the prosecution---Decision of the accused to take the law in his own hands in the present case was not based upon good faith as he never claimed that he had himself heard or read the alleged blasphemous utterances attributed to the deceased, he had never claimed that he had tried to get his impression or information about commission of the offence of blasphemy by deceased verified in any manner whatsoever---Accused person, in the present case, had acted on the basis of nothing but hearsay without getting his information ascertained, verified or investigated---If the accused had suspected deceased to have committed the offence of blasphemy then he should also have adopted the legal course---In the Holy Qur'an Almighty Allah has repeatedly warned those who start believing in hearsay without getting it ascertained, verified or investigated or conduct themselves on the basis of such hearsay---Unjustified killing of a human being has been declared by Almighty Allah as murder of the entire mankind---Regarding the alleged utterance by the deceased that blasphemy law was black law, no specific date or time of such utterances or the exact words uttered had been established on the record, the place and the city wherein deceased had statedly made such utterances were variantly described, the television channel or the programme referred to had not been named, the reporters who had prepared the newspaper reports had not been produced as witnesses, both the said newspaper reports were not duly exhibited in evidence and the said reports had never been lawfully proved---Even if the utterances attributed to the deceased were to be accepted as duly proved still all that the deceased had allegedly said conveyed an impression that, according to him, the law regarding commission of blasphemy had been promulgated by an unrepresentative military ruler and the same was a black law because in the absence of proper safeguards against its misuse it was being utilized as a vehicle of oppression against innocent people and weaker segments of the society including religious minorities---In the alleged utterances the deceased had never, directly or indirectly, made any observation about the Holy Prophet Muhammad (peace be upon him) so as to attract the definition of "blasphemy" contained in S.295-C, P.P.C.---In such circumstances, it was, difficult to accept that the alleged utterances attributed to the deceased amounted to commission of blasphemy by him and it was even more difficult to accept that such utterances could be treated by the accused to be providing provocation to him which provocation was neither grave nor sudden so as to attract any general or special exception recognized by the Pakistan Penal Code, 1860---Accused utterly failed to discharge the onus to prove that there was a verbal exchange between him and the deceased immediately prior to the occurrence, which allegedly provoked him to murder the deceased---To prove the factum of a verbal exchange accused did not apply to the court to summon the relevant witness who was accompanying the deceased at the time of the occurrence, nor did he appear before the Trial Court as his own witness by making a statement on oath under S.340(2), Cr.P.C---Accused was not able to refer to any express and existing legal provision in the entire body of laws of the country authorizing any person to kill another person on his own because such other person had, or was perceived to have, committed the offence of blasphemy---Even if due to a mistake of fact the accused entertained an impression that the deceased had committed the offence of blasphemy still there was no valid basis available with the accused to believe that his act of killing the deceased was justified by the law of the land---Even if the accused believed that his act was justified by law then such belief was based upon a mistake of law and, therefore, the provisions of S.79, P.P.C. were inapplicable to the present case---Trial Court had rightly sentenced the accused to death--- Appeal was disposed of accordingly.

Al-Qur'an Surah Al-Hujurat: Verse 6; Surah An-Nisa: Verse 94 and Surah An-Nisa: Verse 83 ref.

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

----S. 302---Qatl-i-amd---Reappraisal of evidence---Important questions to be considered by the court in a murder case---In a case of murder two questions were of paramount importance, first, was it the accused person facing the trial who had committed the murder in issue?; and second, if it was the accused person facing the trial who had committed the murder in issue then did he have any factual or legal justification for committing that murder?.

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

----S. 302(c), proviso---Qanun-e-Shahadat (10 of 1984), Art. 121---Qati-i-amd, justification for---Grave and sudden provocation---Proof---Where an accused person wanted the court to believe that some words or actions of the victim had provoked him and on the basis of such provocation he had killed the victim then in all such cases the court was to presume the absence of the circumstances being asserted by the accused person in support of his plea and it was for the accused person to prove through positive and legally admissible evidence that some provocation was actually offered to him by the victim and such provocation was grave and sudden.

(e) Administration of justice---

----No court of law could decide a question of law on the basis of a fact which itself remained not established in terms of the legal requirements.

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

----S. 79---"Act done by a person justified, or by mistake of fact believing himself justified, by law"---Scope and meaning---Section 79, P.P.C. had two parts; first, that nothing was an offence which was done by any person who was justified by law in doing it, meaning that accused person had to refer to and rely upon some express and existing legal provision which made his act justified by law---Second part of S.79, P.P.C provided that nothing was an offence which was done by any person who by reason of a mistake of fact and not by reason of a mistake of law in good faith believed himself to be justified by law in doing it---Under second part of S.79, P.P.C accused had to establish that by reason of a mistake of fact he believed in good faith that his act was justified by law and such belief that his act was justified by law was not based upon a mistake of law; establish that if there had been no mistake of fact and if the fact perceived by the accused person to exist actually existed as a fact then the act of the accused person was such that it was justified by law---Second part of S.79, P.P.C also made it clear that the accused person's belief in his act being justified by law should not be based upon a mistake of law, and that the accused person must act in good faith.

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

----S. 295-C---Blasphemy---Criticism of misapplication or misuse of law regarding blasphemy---Such criticism did not amount to "blasphemy" itself---Citizens in a democratic society had a right to contend, debate or maintain that a law had not been correctly framed by the State in terms of the mischief sought to be suppressed or that the law promulgated by the State ought to contain adequate safeguards against its misapplication or misuse by motivated persons---Seeking improvement of a man-made law in respect of a religious matter for better or proper enforcement of such law did not ipso facto amount to criticizing the religious aspect of such law---Many cases registered in respect of the offence of blasphemy contained false allegations for extraneous purposes and in the absence of adequate safeguards against misapplication or misuse of such law by motivated persons the persons falsely accused of commission of that offence suffered beyond proportion or repair---Any call coming from serious quarters for reform in the laws regarding religion related offences could only be a call for introducing safeguards against misapplication or misuse of such laws by motivated persons and such call was ordinarily not to be construed as a call against the religious aspects of the offences covered by such laws---Any call for improvement of S.295-C, P.P.C for the purpose of providing safeguards against its misuse through levelling of false allegations ought not to be considered as objectionable because the religion of Islam loathes levelling of false allegations which was a serious offence in itself.

Muhammad Mahboob alias Booba v. The State PLD 2002 Lah. 587 ref.

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

----S. 295-C---Blasphemy---False allegation regarding commission of blasphemy---State, duty of---Commission of blasphemy was abhorrent and immoral besides being a manifestation of intolerance but at the same time a false allegation regarding commission of such an offence was equally detestable besides being culpable---Religion of Islam came down heavily upon commission of blasphemy, but at the same time Islam was also very tough against those who levelled false allegations of a crime, therefore, the State had to ensure that no innocent person was compelled or constrained to face an investigation or a trial on the basis of false or trumped up allegations regarding commission of such an offence.

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

----Ss. 6(1)(b), 6(1)(c), 6(2)(a) & 7(a)---Penal Code (XLV of 1860), Ss.295-C & 302(b)---Qatl-i-amd, act of terrorism---Reappraisal of evidence---Act of terrorism---Scope---Actus reus and mens rea for committing an act of terrorism---Murder of a Provincial Governor to intimidate the public or create a sense of fear or insecurity in the society---Accused, while performing his duty as the official guard of the deceased-Provincial Governor, fired at and killed the latter---Alleged justification provided by the accused for the murder was that the deceased had committed blasphemy---Action of accused involved firing at the deceased and thereby causing his death and, thus, his actus reus fell within the ambit of S.6(2)(a) of the Anti-Terrorism Act, 1997---As regards the accused's mens rea he had himself stated in his statement before the Trial Court under S.342, Cr.P.C. that the murder of deceased was "a lesson for all the apostates, as finally they have to meet the same fate"---Such statement of the accused clearly established that he not only wanted to punish the deceased privately for the perceived or imagined blasphemy committed by him but also wanted to send a message or teach a lesson to all others in the society at large who dared to follow the deceased---In such circumstances the causing of death of deceased by the accused was surely designed to intimidate or overawe the public or a section of the public or to create a sense of fear or insecurity in the society so as to attract the requisite mens rea contemplated by S.6(1)(b) of the Anti-Terrorism Act, 1997---Apart from that it could not be seriously contested that the accused had committed the murder of deceased for the purpose of advancing a religious cause and, thus, even the mens rea contemplated by S.6(1)(c) of the Anti-Terrorism Act, 1997 stood fully attracted to the case of the accused---Action of the accused in killing the deceased and the intention, design or purpose behind such action fully attracted the definition of "terrorism" contained in S.6 of the Anti-Terrorism Act, 1997 and, therefore, he was correctly and justifiably sentenced to death by the Trial Court under S.7(a) of the Anti-Terrorism Act, 1997 for committing the offence of terrorism---Appeal was disposed of accordingly.

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

----S. 6(1)(b)---Act of terrorism---Determination as to whether an offence constituted an act of terrorism---Provisions of S.6(1)(b) of the Anti-Terrorism Act, 1997 quite clearly contemplated creation of a sense of fear or insecurity in the society as a design behind the action and it was immaterial whether that design was actually fulfilled or not and any sense of fear or insecurity was in fact created in the society as a result of the action or not---Specified action accompanied by the requisite intention, design or purpose constituted the offence of "terrorism" under S.6 of the Anti-Terrorism Act, 1997 and the actual fall out of the action had nothing to do with determination of the nature of offence.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd---Act of terrorism---Conviction and sentence---Accused found guilty of committing murder and also the offence of terrorism---Such an accused was to be convicted and sentenced separately for the offences (of murder and terrorism).

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

----Ss. 295-C & 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, act of terrorism---Reappraisal of evidence---Death sentence, confirmation of---No grounds for reduction in death sentence---Killing a person given under one's protection---Murder committed on basis of hearsay statements---Cruelty and brutality displayed by riddling victims body with bullets---Element of personal hatred---Accused, while performing his duty as the official guard of the deceased-Provincial Governor, fired at and killed the latter---Trial Court sentenced the accused to death---Accused argued that he did not deserve the death penalty by contending that the deceased had allegedly committed blasphemy; that the accused did not have any personal enmity with the deceased; that the only motivation of accused for committing the murder of deceased was religious; that the motive set up by the prosecution that different religious or political groups had threatened to kill the deceased due to his point of view in respect of various national issues, remained unproved, and that the accused had acted under the influence of some religious speakers on the basis of whose inciting, provocative and instigating speeches the accused had made up his mind to kill the deceased---Validity---Even if the accused had entertained an impression about commission of blasphemy by the deceased and even if he was motivated by any religious sentiment in such regard still the accused could not kill the deceased at a time when the accused was performing the duties of a guard of the deceased and was performing official functions, wearing an official uniform, using an official weapon and possessing officially supplied bullets---Accused claimed that he was born in a religious family and had been brought up in religious traditions; if that were so then the accused would have been aware that a person given in his protection, whatever be the credentials of such person, could not be deprived of his life by the accused himself and that committing such person's murder by the accused would offend against religious precepts or traditions---Grooming of accused in religious traditions would also have taught him to distinguish between the requirements of his job for which he was paid from the public exchequer and acting on the basis of his personal sentiments---Religious training of accused would also have guided him in the matter of discerning between hearsay and fact and he would have been conscious that, Almighty Allah has warned against believing hearsay or conducting oneself on the basis of unverified news or information---Prosecution might have remained unable to establish involvement of any religious or political group in the murder of deceased but it had certainly succeeded in proving that the accused's motivation for the murder of deceased was nothing but some of his views although the contents of such views and those views being blasphemous had never been established by the accused in accordance with the law---Prosecution in such circumstances had succeeded in proving the motive set up by it---Claim of accused that he had acted under the influence or at the behest of some religious speakers was a claim which was based upon no evidence at all---Even otherwise at the time of the present occurrence the accused was not a child of an impressionable age but was a fully grown up and trained police officer and, thus, his acting under the influence of somebody else appeared to be a contention which was difficult to accept---Police officer committing a crime was dealt with more sternly in the matter of his sentence than an ordinary person---Accused had riddled his victim's body with as many as twenty-eight bullets causing thirty-two grievous injuries which clearly showed that the he had acted cruelly and brutally in the matter and such cruelty and brutality detracted from any sympathy to be shown to him in the matter of his sentence---Statement of accused under S.342, Cr.P.C to the effect that deceased indulged in different immoral activities showed an element of personal hatred that the accused had for the deceased, which too played some part in propelling the accused to kill the deceased---Trial Court had rightly sentenced the accused to death---Appeal was disposed of accordingly.

(m) Criminal trial ---

----Sentence, reduction in---Mitigating circumstances---Ground for mitigation of sentence could not be pressed into service on the basis of something which had never been proved on the record.

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

----S. 302(b)---Qatl-i-amd---Motive, significance of---Admission of guilt---Effect---Significance of motive in a case of murder was to establish as to who would be interested in killing the person murdered and such factor was to provide corroboration to the ocular account furnished by the prosecution but where the accused person admitted killing the deceased there the primary purpose of setting up the motive stood served.

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

----S. 154---FIR, contents of---FIR was not a substantive piece of evidence.

(p) Administration of justice---

----Extra-judicial actions---Law did not permit an individual to arrogate unto himself the roles of a complainant, prosecutor, judge and executioner.

(q) Criminal trial ---

----Crime committed by a police official---Sentence---Police officer committing a crime was dealt with more sternly in the matter of his sentence than an ordinary person because an expectation was attached with a police officer that in all manner of circumstances he would conduct himself strictly in accordance with the law and under no circumstances he would take the law in his own hands.

Mian Nazir Akhtar, ASC, Khawaja Muhammad Sharif, ASC, and Ghulam Mustafa, ASC for Appellants (in Criminal Appeal No.210 of 2015).

Mian Abdul Rauf, Advocate-General, Islamabad (in Criminal Appeal No.211 of 2015).

Mian Abdul Rauf, Advocate General, Islamabad for Respondents (in Criminal Appeal No.210 of 2015).

Mian Nazir Akhtar, ASC, Khawaja Muhammad Sharif, ASC and Ghulam Mustafa, ASC for Respondents (in Criminal Appeal No.211 of 2015).

Dates of hearing: 5th, 6th and 7th October, 2015.

P L D 2016 Supreme Court 55

Present:Anwar Zaheer Jamali, C.J. and Mushir Alam, J

MUHAMMAD FAROOQ---Appellant

Versus

AHMED NAWAZ JAGIRANI and others---Respondnets

Criminal Appeal No.10-K of 2015, decided on 22nd September, 2015.

Against order dated 15-5-2015 of High Court of Sindh at Karachi, passed in Criminal Miscellaneous Application No.73 of 2015.

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

----Ss. 203 & 204---Orders passed by court under Ss.203 & 204, Cr.P.C. nature of---Judicial orders---Orders passed either under S.203, Cr.P.C. whereby a direct complaint was dismissed or under S.204, Cr.P.C. whereby the Court had taken cognizance of an offence complained of and issued warrants or summons for causing the accused to be brought or produced before the Court were judicial orders.

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

----Ss. 561-A, 249-A, 265-K, 435, 436, 437, 438 & 439---Constitution of Pakistan, Art. 199---Inherent powers of High Court under S.561-A, Cr.P.C.---Nature and scope---Exercise of jurisdiction under S.561-A, Cr.P.C. by the High Court was akin to the exercise of jurisdiction under Art.199 of the Constitution---Exercise of such jurisdiction was not to be exercised in routine and or as a matter of course merely because such jurisdiction was available and or could be exercised---Exercise of inherent jurisdiction was dependent on non-availability of alternate and efficacious remedy and or existence of some extraordinary circumstances warranting exercise of such jurisdiction by-passing such alternate remedy by the High Court---One could not be allowed to by-pass and or circumvent the ordinary remedy in normal course of the event---Remedy under S.561-A, Cr.P.C was not an alternate and or substitute for an express remedy as provided under the law in terms of S.435 to 439, Cr.P.C and or Ss.249-A or 265-K, Cr.P.C, as the case may be.

Maqbool Rehman v. State 2002 SCMR 1076 and Bashir Ahmed v. Zafar-ul-Islam PLD 2004 SC 298 ref.

(c) Jurisdiction---

----Two courts having co-extensive or concurrent jurisdiction---Propriety demanded that jurisdiction of court of the lower grade was to be invoked in the first instance.

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

----Ss. 200, 249-A & 561-A---Penal Code (XLV of 1860), Ss. 420, 467, 468, 471 & 34---Private/direct complaint, proceedings of---Quashing of proceedings by the High Court---Legality---Complainant filed a direct complaint against the accused persons in the Trial Court/Special Judge, Anti-Corruption---Statement of complainant was recorded by Trial Court and direction was given for conducting an inquiry---After perusal of inquiry report and statement of complainant, Trial Court took cognizance of the offence---High Court by way of its inherent jurisdiction under S.561-A, Cr.P.C quashed proceedings against the accused persons pending before the Trial Court---Validity---List of documents on record, in the present, case showed that prima facie case for taking cognizance by Trial Court had arisen and no exception to such cognizance could be taken by the High Court in exercise of its inherent jurisdiction---No special and or extraordinary circumstances were either pleaded or considered by the High Court, in the present case, while exercising its inherent jurisdiction under S.561-A, Cr.P.C, by-passing the ordinary remedy available to accused persons under S.249-A, Cr.P.C.---Trial Court was already seized of jurisdiction under S.249-A, Cr.P.C.---High Court proceeded on the wrong assumption that the complainant had not brought on record sufficient material to show that the offence alleged had been committed---Finding of High Court that the charge against accused persons did not contain the particulars as to time and place of the alleged offence was incorrect as the stage of framing of charge had not as yet arisen in the present case---Quashing of proceedings by the High Court was not sustainable in such circumstances and was accordingly set aside---Supreme Court directed that the Trial Court may proceed with the matter pending adjudication, in accordance with law---Appeal was allowed accordingly.

Mazhar Ali v. Ali Khan 1984 PCr.LJ 354 and Miraj Khan v. Gul Ahmad 2000 SCMR 122 distinguished.

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

----S. 200---Private/direct complaint---Burden of proof on complainant--Scope---To take cognizance of an offence in a complaint case, burden of proof in preliminary enquiry for the issuance of process and or summons as the case may be was much lighter on the complainant and he was required to establish a prima facie case, whereas, the burden of proof placed on the prosecution during regular trial was much stringent and the prosecution was required to establish and prove the case beyond reasonable doubt.

Noor Muhammad v. State PLD 2007 SC 9 ref.

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

----Ss. 200 & 561-A---Private/direct complaint---Examination of material on record---Prima facie case---Quashing of proceedings by the High Court in its inherent jurisdiction---In a complaint case, Trial Court was not required to examine the material minutely and or in depth, but merely had to see that prima facie a case had been made out to proceed further with the matter for issuance of process or summons---High Court in exercise of its inherent jurisdiction could not strangulate the trial by overstretching its jurisdiction under S.561-A, Cr.P.C. and embark upon to examine adequacy and or inadequacy of evidence, which stage arose only after charge was framed and complainant was given an opportunity to prove his case beyond reasonable doubt.

Noor Muhammad v. State PLD 2007 SC 9 ref.

Mazhar Ali B. Chohan, AOR for Appellant.

Shahadat Awan, ASC for Respondents Nos.1-7.

Akhtar Rehana, Addl. PG, Sindh for the State.

Date of hearing: 22-9-2015.

P L D 2016 Supreme Court 64

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Umar Ata Bandial, JJ

Sheikh MUHAMMAD ILYAS AHMED and others---Appellants

Versus

PAKISTAN through Secretary Ministry of Defence, Islamabad and others---Respondents

Civil Appeals Nos. 1125 and 1126 of 2014, decided on 29th October, 2015.

(On appeal from judgment of Lahore High Court, Rawalpindi Bench dated 10-4-2014, passed in RFAs Nos.144 and 145 of 2003, respectively)

Land Acquisition Act (I of 1894)---

----S. 34---Payment of interest on compensation---Award of such interest was statutory in nature, and could not be withheld.

Altaf Elahi Sheikh, Sr. ASC for Appellants.

Sohail Mehmood, DAG. and Sqd. Ldr. Farhat Rafiq for Federation.

Date of hearing: 29-10-2015.

P L D 2016 Supreme Court 65

Present: Anwar Zaheer Jamali, C J, Amir Hani Muslim and Umar Ata Bandial, JJ

MUHAMMAD ANWAR---Appellant

Versus

MUHAMMAD AKRAM and others---Respondents

Civil Appeal No.340 of 2002, decided on 28th October, 2015.

(On appeal from judgment of Lahore High Court, Multan Bench dated 8-12-1999, passed in Writ Petition No.5566 of 1999).

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

----S. 35---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---Brutal murders---Sentence---Consecutive running of sentences---Discretion of court to order consecutive running of sentences---Scope---Trial Court found accused guilty of committing qatl-i-amd of his wife, three daughters and a son in a brutal manner---Trial Court ordered that the sentences awarded to accused shall run consecutively---High Court, in its constitutional jurisdiction, ordered that different sentences awarded to accused should run concurrently instead of consecutively---Validity---Accused committed the murders in a brutal manner, and for that account, consciously the Trial Court, while awarding sentences to him, ordered that the same shall run consecutively---Discretionary power vested in the Court to direct that the awarded sentences shall run consecutively or concurrently was to be exercised in the light of the facts and circumstances of each case, keeping in view the scope of S.35, Cr.P.C., the nature and manner of occurrence and the gravity of the offence---Supreme Court observed that in such circumstances it seemed quite strange and unreasonable that the High Court had done away with the conditionality of such sentences running consecutively while exercising constitutional jurisdiction under Art.199 of the Constitution, which was equitable and discretionary in nature and not meant to give premium to a criminal for commission of such heinous crime---Appeal was allowed accordingly---Judgment of High Court was set aside.

Ali Khan Kakar v. Hammad Abbasi 2012 SCMR 334 ref.

(b) Constitution of Pakistan-

----Art. 199---Constitutional jurisdiction of High Court invoked by a person accused of a heinous crime---Such jurisdiction of High Court was discretionary and equitable in nature and not meant to give premium to a criminal for commission of a heinous crime.

Arshad Ali Chaudhry, ASC/AOR for Appellant.

Tauseef Ejaz Malik, ASC along with Respondent No.1.

Ahmed Raza Gillani, Addl.P.G, Punjab for the State.

Date of hearing: 28th October,.2015

P L D 2016 Supreme Court 70

Present: Asif Saeed Khan Khosa, Mushir Alam and Dost Muhammad Khan, JJ

NIAZ AHMED---Petitioner

Versus

HASRAT MAHMOOD and others---Respondents

Criminal Petition No.685 of 2015, decided on 4th November, 2015.

(Against the judgment dated 13.07.2015 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.307 of 2009).

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

----S. 302(b)---Constitution of Pakistan, Art.185(3)---Qatl-i-amd---Appeal against acquittal---Reappraisal of evidence---Case based on unconvincing circumstantial evidence---Occurrence took place during the night and complainant had only expressed a suspicion against the accused persons vis-s-vis their involvement in the murder---Prosecution based its case only on circumstantial evidence in the shape of last-seen evidence, motive and extra-judicial confession---Such circumstantial evidence was considered by Trial Court and High Court, and both courts concluded that prosecution remained unable to prove its case against the accused persons beyond reasonable doubt, and resultantly acquitted them---No circumstance was found in the present case to interfere in the findings of the Trial Court and High Court---Petition for leave to appeal was dismissed and_ leave to appeal was refused accordingly.

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

----Ss. 154 & 200---Rival parties---Case of cross-versions---Trial of such cases---Procedure---Different versions of same incident advanced by rival parties through cross-cases containing different sets of accused persons---Trial of such cross-cases was to be held simultaneously and side by side.

Muhammad Sadiq v. The State and another PLD 1971 SC 713; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Rashid Ahmad v. Asghar Ali and others PLD 1986 SC 37 and Mst. Rasool Bibi v. The State and another 2000 SCMR 641 ref.

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

----Ss. 154 & 200---Complainant lodging FIR and a private complaint containing the same allegations against the same set of accused persons---Trial Court in such circumstances should hold a trial in the complaint case first and the challan case was to be kept dormant awaiting the fate of the trial in the complaint case---Consolidated trial of challan case and complaint case (private complaint) was not the recommended course to be adopted by Trial Court.

Nur Elahi v. The State and others PLD 1966 SC 708; Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53; Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others 1981 SCMR 361 Mumtaz and others v. Mansoor Ahmed and another 1984 SCMR 221; Rashid Ahmad v. Asghar Ali and others PLD 1986 SC 737 and Aziz ur Rehman v. The State PLD 1987 Lah. 245 ref.

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

----Ss. 537, 154 & 200---Penal Code (XLV of 1860), S.302(b)---Constitution of Pakistan, Art.185(3)---Qatl-i-amd---Appeal against acquittal---Consolidated trial of challan case and complaint case by Trial Court --- Not the recommended course to be adopted by Trial Court---However, where such consolidated mode of trial does not occasion a failure of justice (due to the unworthy and unreliable evidence available with prosecution) and the complainant does not raise any objection against the consolidated mode of trial before Trial Court, then there was no occasion to interfere with the finding of acquittal recorded by Trial Court and High Court---Petition for leave to appeal was dismissed and leave to appeal was refused accordingly.

Sh. Ahsan-un-Din, ASC for Petitioner.

Tanvir Iqbal, ASC for Respondents Nos. 1-3.

Date of hearing: 4th November,2015.

P L D 2016 Supreme Court 73

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

ALLAH DITTA---Appellant

Versus

ALI MUHAMMAD---Respondent

Civil Appeal No.1256 of 2008, decided on 18th November, 2015.

(On appeal from the judgment dated 4-7-2008 in C.R. No.430/2003 passed by the Lahore High Court Lahore)

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

----S. 6(1)(a)---Suit for pre-emption---'Shafi sharik'---Purported pre-emptor not co-owner or co-sharer in undivided property---'Aks shajra' showed that one of the corners of suit property only touched a corner of the purported pre-emptor's land---Question as to whether the two lands were adjacent or not would be relevant for the determination of the purported pre-emptor's right as 'shafi jar' but not to ascertain whether he was a 'shafi sharik'---Purported pre-emptor could not refer to any document to show that the respondent was a co-owner or co-sharer in the corpus of the undivided immovable property wherefrom the said property had been sold---Purported pre-emptor could not be said to be 'shafi sharik' in such circumstances--- Pre-emption suit was dismissed accordingly.

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

----S. 6(1)(c)---Suit for pre-emption---'Shafi jar'---Properties not adjacent to each other---'Aks shajra' showed that one of the corners of suit property only touched a corner of the purported pre-emptors land which would not meet the requirement of the two properties being "adjacent" to each other in terms of the explanation to S.6 of the Punjab Pre-emption Act, 1991---Purported pre-emptor could not be said to be 'shafi jar' in such circumstances---Pre-emption suit was dismissed accordingly.

Muhammad Ayub v. Hazrat Mansha 2006 MLD 1001 ref.

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

----S. 6(1)(c)---Suit for pre-emption---'Shafi khalit'---'Right of passage'---Main road contingent to suit land and land belonging to purported pre-emptor---Main road which could be accessed by both suit land and land belonging to purported pre-emptor could not be categorized as a "right of passage"---Purported pre-emptor also failed to establish that there was "right of water or right of irrigation" running through the suit property bringing water to his land, therefore, purported pre-emptor had failed to establish his right as 'shafi khalit'---Purported pre-emptor claimed that his tube-well supplied water to the suit property whereas one of his witnesses contradicted him by stating that the suit property was irrigated from the tube-well of another person---Pre-emption suit was dismissed accordingly.

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

----S. 27---Suit for pre-emption---Sale price of suit land, determination of---Proof---Unsubstantiated statement by purported pre-emptor regarding actual sale price of suit land---Sale price of suit land mentioned in the mutation was Rs.190,000, whereas purported pre-emptor claimed that it was approximately Rs.150,000---Purported pre-emptor and his witness in the present case, had to first testify that the sale price of suit land was other than the one that had been shown in the mutation and then the basis thereof---Purported pre-emptor in his examination-in-chief made no mention of the sale price whereas in his cross-examination he simply stated that it was approximately Rs.150.000, but without providing the basis for his information---Both the seller of the land and the purchaser, in the present case, had testified that the price respectively received and paid for suit land was Rs.190,000 and such price was also mentioned in the sale mutation, therefore, in the absence of any cogent evidence it was not correct to conclude that the price for sale was Rs.150,000 simply on the basis of some minor contradictions in the their testimony---Informant of the sale also made no mention of the sale price---Pre-emption suit was dismissed accordingly.

Younas Khan Naul, Advocate Supreme Court for Appellant.

Ahmed Bakhsh Bharwana, Advocate Supreme Court and Nazir Ahmed Bhutta, Advocate Supreme Court for Respondent.

Date of hearing: 5th November, 2015.

P L D 2016 Supreme Court 79

Present: Mian Saqib Nisar, Iqbal Hemeedur Rahman and Maqbool Baqar, JJ

Syed HAFEEZUDDIN---Appellant

Versus

ABDUL RAZZAQ and others---Respondents

Civil Appeal No. 1086 of 2014, decided on 19th November, 2015.

(Against the judgment dated 7-8-2014 of the Election Tribunal, Karachi passed in Election Petition No.7 of 2013)

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

----Ss. 68 & 69---Grounds for declaring a person other than a returned candidate elected---Scope---Onus on runner-up candidate/any contesting candidate to prove his entitlement to be declared as the winner instead of the returned candidate---Declaration to such effect could not be made by Election Tribunal as a matter of course, and runner-up candidate/any contesting candidate must prove his entitlement to be declared returned candidate by setting out his own reasons and positive evidence to such effect.

Once any of the grounds enumerated in section 68 of Representation of the People Act, 1976, had been established through quality evidence (by the petitioner/runner-up candidate), the obvious consequence as per the law shall thus be to declare the election of returned candidate as void. While passing such order the Tribunal under section 69 of the said Act was duly empowered to declare the election petitioner/runner-up candidate or any of the contesting candidates as the returned candidate, but it may make such declaration only if a claim in such regard had been set out by them. Furthermore, such declaration shall not be made as a matter of course or a right or ipso facto rather only in the circumstances of the case where the election petitioner or the respondent of the election petition was able to substantiate and make out a case qua his entitlement to the satisfaction of the Tribunal. Such entitlement shall be dependant on the facts and circumstances of each case; the reasons set out and proof for the entitlement thereof. Thus the grant of relief to the election petitioner or any other respondent in the election petition under the provisions of section 69 of Representation of the People Act, 1976, must be proved on the strength of their own entitlement to get elected in place of the returned candidate.

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 and Dr. Sheela B. Charles v. Qaisar Ifraeem Soraya and another 1996 SCMR 1455 ref.

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

----Ss. 68, 69 & 70---Grounds for declaring a person other than a returned candidate elected---Grounds for declaring election as a whole void---Scope---While considering the parameters of S.69 of the Representation of the People Act, 1976, particularly with respect to the runner up candidate (and not any of the other candidates) and where the returned candidate had been found to be disqualified and his election had been declared as void, it was not the case that the votes of the returned candidate (who had been disqualified and whose election as a returned candidate had been declared to be void under S.68) were to be simply disregarded or discarded on the doctrine of throw away votes and the runner up was to be automatically declared as the duly elected returned candidate by virtue of having secured the next highest number of votes; rather the notoriety of the disqualification amongst the voters at the time of polling had to be examined and if the disqualification was found to be notorious (apparent or known to the public), only then could the votes of a winner of an election be thrown away, and the runner up be declared to be the duly elected returned candidate---Where the disqualification was not notorious and depended on legal argument or upon complicated facts and inferences, then the runner up could not be declared to be the duly elected returned candidate, as the possibility could not be ruled out that any of the other candidates could have won the elections, hence the election must be declared to be void as a whole and fresh elections must take place.

Rashid Ahmad Rahmani v. (1) Mirza Barkat Ali, (2) Master Fazal Elahi and (3) The Additional Commissioner, Lahore PLD 1968 SC 301; Lal Muhammad v. Muhammad Usman and others 1975 SCMR 409; Muhammad Ilyas v. The Returning Officer and others 1981 SCMR 233; Junaid Ahmad Soomro v. Haji Mehboob Ali Bhayo and others PLD 1986 SC 698; Sahibzada Tariqullah v. Haji Amanullah Khan and others PLD 1996 SC 717; Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250; Ellahi Bakhsh v. District and Sessions Judge, Rajanpur/Election Tribunal, Dera Ghazi Khan and others PLD 2003 SC 268; Mian Ahmed Saeed and others v. Election Tribunal for Kasur at Okara and 7 others 2003 SCMR 1611; Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others 2004 SCMR 1484; Bashir Ahmed Bhanban and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570; Shaukat Ali and another v. District Returning Officer and another PLD 2006 SC 78; Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369 and Chaudhry Muhammad Munir and others v. Election Tribunal, Mandi Bahauddin and others 2009 SCMR 1368 ref.

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

----Ss. 70(b), 78 & 83---'Corrupt' and 'illegal' practices---Proof---Positive evidence---No inferences---Rules of proof for the grounds challenging the election which were founded on corrupt and illegal practices were quite strict and stringent and the allegations in such regard must be absolutely proved through positive evidence without accepting any inferences and if there was any doubt, the benefit must go to the person against whom corrupt or illegal practices were being alleged.

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Muhammad Saeed and 4 others v. (1) Election Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan, (3) Ghulam Haider and (4) West Pakistan Government and others PLD 1957 SC (Pak.) 91; Mian Jamal Shah v. (1) The Member Election Commission, Government of Pakistan, Lahore, (2) The Returning Officer, Constituency of the National Assembly of Pakistan No. NW-II, Peshawar II, and (3) Khan Nasrullah Khan PLD 1966 SC 1 and Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others PLD 1973 SC 160) ref.

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

----Ss. 38(9), 68 & 83(b)---Lapses/anomalies committed by Presiding Officer of a polling station benefiting the returned candidate---No direct evidence to prove that returned candidate "obtained" or "procured" the assistance of the Presiding Officer to secure his election---No inference could be drawn in absence of positive evidence that such lapses were done in connivance or collusion with the returned candidate---Possibility existed that the lapses committed by the Presiding Officer were bona fide mistakes or due to lack of proper skill and adequate knowledge or expertise---Lapses on part of Presiding Officer could not be termed as 'illegal practices' in such circumstances---Since there was doubt with respect to proof of the allegations of illegal practice and connivance and collusion, the benefit of such doubt should be given to the returned candidate---Election of the returned candidate was not liable to be declared as void under S.68 of the Representation of the People Act, 1976.

Allegation against the Presiding Officer of a polling station was that she did not fill up the statement of count; that the runner-up candidate's name was not mentioned in the statement of count; that she signed hand-written results and provided them to the polling agents of the runner-up candidate in which the count was different from that in Form-XIV, and that statement of count pertaining to the votes cast in favour of the candidate of the National Assembly was absolutely different from the votes of the Provincial Assembly.

Perusal of evidence given by the Presiding Officer in question suggested that she admitted to overwriting on figures in Form-XIV to make corrections; admitted to writing the figure 1,600 on one page of Form-XIV of polling station in question and the figure 1,700 on the other page; admitted to the errors in calculation while attributing it to absence of a calculator and lack of sufficient light due to a power breakdown; admitted that the Form-XIV was not entirely prepared by her, in that the candidates' names were written by the Assistant Presiding Officer, but the rest including her name and signature were in her own handwriting; and that she attributed the absence of the runner-up candidate's name from the Form-XIV to the fact that she was not aware that he was contesting from the said constituency. Even if such lapses occurred, they certainly did not fall within the definition of "illegal practice" contained in section 83(b) of the Representation of the People Act, 1976, as they did not constitute "obtaining or procuring or attempting to obtain or procure the assistance of any person in the service of Pakistan to further or hinder the election of candidate". With regard to the argument that the Presiding Officer had prepared her affidavit in the returned candidate's office and did not appear as an official witness which fact indicated connivance and collusion with the returned candidate, they were mere inferences, which were neither positive nor conclusive evidence of the fact that she colluded and connived with the returned candidate, and that he "obtained" or "procured" the assistance of the Presiding Officer to secure his election as a returned candidate. Argument of runner-up candidate regarding the difference between the statements of count of National and Provincial constituencies, which purportedly reflected that Presiding Officer had committed an illegality vis-a-vis the proper count and preparation of Form-XIV, was a plain inference, not backed by sufficient evidence.

Runner-up candidate conceded that there was no evidence to directly prove that there was connivance between the returned candidate and the Presiding Officer, and that his allegations were based on inferences which should be necessarily drawn because of the conduct of the Presiding Officer.

Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284 distinguished.

Even if an inference was to be drawn, it could only be so done where there was only one possible conclusion that could be reached, warranting proof through circumstantial as opposed to direct evidence. Fact that certain lapses/anomalies were committed by the Presiding Officer of a polling would not automatically lead to the conclusion that such was done in connivance or collusion with or on the instructions of the returned candidate. There was the possibility that the lapses committed by the Presiding Officer were bona fide mistakes or due to lack of proper skill and adequate knowledge or expertise as to how to do the needful, or as a result of miscalculation of votes or lack of sufficient light due to a power breakdown. Possibility could not be ruled out that any one of the candidates in the election colluded with the election staff at one polling station and had certain violations of the election law committed such as the wrong filling up of Form-XIV and by taking premium and advantage of their own fraud ultimately used this as a tool for having the election of the returned candidate declared as void. Since there was more than one possibility as to what could have happened on the day of election vis-à-vis counting of votes and preparation of statement of count, one could not draw such inferences.

Runner-up candidate was required to produce strict positive evidence in order to prove its serious allegations of illegal practice against the returned candidate. Evidence on record clearly suggests that there was doubt with respect to proof of the allegations of illegal practice and connivance and collusion, the benefit of which should have been given to the returned candidate. To hold, in the circumstances, that the returned candidate had "obtained" or "procured" the assistance of the Presiding Officer would be against the spirit of the law and against the settled norms of justice.

Since the lapses on part of Presiding Officer did not constitute illegal practices as contemplated by the provisions of section 83 of the Representation of the People Act, 1976, the election of the returned candidate was not liable to be declared as void under section 68 of the said Act. Appeal was allowed accordingly.

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

----Ss. 38(9) & 70(a)---Grounds for declaring election as a whole void---Scope---Lapses/anomalies committed by Presiding Officer of a polling station in relation to preparation of statement of count---Such lapses/anomalies did indicate a failure on behalf of Presiding Officer to comply with the provisions of the Representation of the People Act, 1976, but it did not materially affect the election---Even if votes of the disputed polling station were excluded from the total vote count of the returned candidate, he still had winning margin---Election as whole could not be declared as void in such circumstances.

Section 70(a) of the Representation of the People Act, 1976, provided for declaration of the election as a whole void if there was a failure of any person to comply with the provisions of the said Act or the Rules, provided that the election had been materially affected by such failure. Lapses/anomalies committed by the Presiding Officer of a polling station in the present case may at best indicate a failure on her behalf to comply with the provisions of the Representation of the People Act, 1976, particularly section 38(9) which provided for preparation of statement of count by the Presiding Officer, thus the (first part of the) test that there must be a failure of any person to comply with the provisions of the Act/Rules, may be satisfied in the present case. However the second part of the test i.e. such non-compliance must have materially affected the election, was not satisfied in the present case. Even if (all the) 1400 votes of the disputed polling station were excluded from the total count of the returned candidate's votes of 15,432, reducing it to 14,032, the returned candidate would still win by a margin of 3,072 votes. Therefore, as the election would not be materially affected, there was no occasion to declare the election as a whole to be void under section 70(a) of the Representation of the People Act, 1976.

Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCMR 284 distinguished.

Afzaal Ahmed Siddiqui, Advocate Supreme Court for Appellant.

Tariq Mehmood, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1.

Date of hearing: 19th November, 2015.

P L D 2016 Supreme Court 97

Present: Mian Saqib Nisar, Gulzar Ahmad and Umar Ata Bandial,JJ

MUHAMMAD SIDDIQUE BALOCH---Appellant

Versus

JEHANGIR KHAN TAREEN and others---Respondents

Civil Appeal No.307-L of 2015, decided on 28th October, 2015.

(On appeal from the judgment/order dated 26-8-2015 of the Election Tribunal, Multan passed in Election Petition No.355 of 2013 SCP, 30/2013 ETM)

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

----Ss. 33(2)(e) & 33(3)(c), 70(a), 78, 83(1)(b) & 99(1A)(l)---Widespread violations of provisions of Representation of the People Act, 1976 by election staff materially affecting the election result---Non-signing/non-stamping of counterfoils of ballot papers by the Presiding Officers---Absence of the thumb impression of the voter on the voters' list---Suspect, dubious and bogus votes---Result of the election was materially affected for two reasons: first because of the widespread and extensive violations of the Representation of the People Act, 1976 and Rules framed thereunder by election staff on election day, and secondly because of the fact that after adjusting the disputed votes against the lead of the returned candidate, his margin of victory was eliminated to a losing difference from the tally of the runner-up candidate---However, no direct or circumstantial evidence on record proved that violations of election law committed by election staff were procured by returned candidate---Fact that the returned candidate won the election could not be presumed as proof that he procured violations of election law---Supreme Court declared that election in the constituency was void as a whole but returned candidate could not be punished for neglects or defaults by the election staff---Supreme Court directed the Election Commission of Pakistan to hold a fresh election in the constituency.

Reports submitted by District Returning Officer and Regional Election Commissioner showed that at many polling stations the counterfoils of the ballot papers cast in the election did not at their back bear the signature and/or stamp of the Presiding Officer as required under Section 33(2)(e) of the Representation of the People Act, 1976, and that there was absence of thumb impression of the voter on the voters' list.

National Database and Registration Authority (NADRA) conducted verification of election record of the constituency and submitted its report wherein it was stated that a large number of counterfoils contained bad quality finger prints that were not readable, or bore invalid or no CNIC numbers; that 22,216 counterfoils contained evidence of bogus voting out of a total number of 95,927 counterfoils that were found readable by NADRA software; that 23% of the total counterfoils read and deciphered by NADRA software contained false identities of persons who voted in the election on account of absent or invalid CNIC number or thumb impression. Said record showed that either the election staff failed to verify CNIC identity of electors or made bogus entries on the counterfoils, reflecting their indifference or otherwise an improper purpose.

Election record of roughly 25% of polling stations contained a violation of a crucial legal requirement aimed at identifying genuine voters before the issuance of ballot papers, which highlighted another serious failing and defect in the management and conduct of the election process in the constituency on the election day. Combined effect of the distinct violations of law committed in the identification of the voters highlighted in the NADRA report and in the issuance of ballot papers by unauthorized persons indicated serious flaws in the voting process that rendered no less than 25% and may be much more of the total votes cast in the election to be suspect, dubious and bogus.

Returned candidate secured a lead of 10,891 votes in the election. By adopting the straight forward numerical approach, it was patently clear that after adjusting the 22,216 disputed votes against the lead of the returned candidate, the result of the election was materially affected and his margin of victory was eliminated to a losing difference from the tally of the runner-up candidate. Equally, in the alternative, the widespread scale of the violations of election law committed by the election staff made the pervasiveness of their default to infect the election process as a whole with doubt and suspicion thereby materially affecting the election result. Consequently election in the constituency was void as a whole.

In the present case, there was no circumstantial, let alone, any direct evidence implicating the returned candidate in the commission of corrupt or illegal practices during his election. Affidavits of witnesses were produced by the runner-up candidate in aid of his allegation of corrupt or illegal practices committed by the returned candidate on the election day. However none of these affidavits nor the statements in cross-examination of the said witnesses including the runner-up candidate disclosed any fact nor nominate any person, for connecting the returned candidate with the violations of the Representation of the People Act, 1976 committed by the election staff. Equally, reports of Regional Election Commissioner and NADRA did not suggest the returned candidate's involvement in the breach of requirements under section 33 of the Representation of the People Act, 1976. Fact that the returned candidate won the election could not be presumed by the runner-up candidate as proof that the returned candidate procured violations of election law.

Supreme Court declared that election in the constituency was void as a whole but the returned candidate could not be punished for neglects or defaults by the election staff. Supreme Court directed the Election Commission to hold a fresh election in the constituency and also inquire into the cause and purpose, if any, of errant conduct by the election staff and to prosecute the responsible persons for breaches of their duties, inter alia, committed under section 91 of the Representation of the People Act, 1976.

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

----Ss. 68(1)(d), 70(b), 83(1)(b) & 99(1A)(l)---"Corrupt and illegal practices"---Procuring the assistance of any person in the service of Pakistan to further or hinder the election of a candidate---Punishment---Successful proof of the commission of the said wrong by a returned candidate not only annulled his election under S.68 (1)(d) as well as S.70(b) of the Representation of the People Act, 1976 but also disqualified him from contesting an election for a period of five years under S.99(1A)(l) of the said Act and exposed him to criminal prosecution for an offence carrying punishment of six months imprisonment.

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

----Ss. 78 & 83---"Corrupt and illegal practices"---Evidence required to prove such practices---Each ingredient of the misdemeanor of corrupt or illegal practices must be affirmatively proved by direct or circumstantial evidence---Circumstantial evidence was to be believed if all reasonable hypotheses which were consistent with the non-commission of corrupt or illegal practices had been excluded.

Muhammad Saeed v. Election Petition Tribunal, West Pakistan and others PLD 1957 SC 91; Muhammad Yusuf v.S.M.Ayub PLD 1973 SC 160 and Muhammad Afzal v. Muhammad Altaf Hussain 1986 SCMR 1736 ref.

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

----Ss. 33 & 70(a)---Ground for declaring election as a whole void---Scope---Identification of an elector before the issuance of a ballot paper---Mandatory requirement---Crucial for preventing bogus voting and ensuring a free and fair election---Widespread non-compliance of the provisions of S.33 of Representation of the People Act, 1976 which related to identification of a voter before the issuance of a ballot paper would attract the application of S.70(a) of the Act (i.e. ground for declaring election as a whole void)---Any such declaration under S.70(a) was predicated upon the satisfaction of the Election Tribunal that "the result of the election has been materially affected by reason of" non-compliance with the provisions of the Representation of the People Act, 1976 or Rules framed thereunder.

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

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

----S. 70(a)---Ground for declaring election as a whole void---Scope---Votes invalidated by failure of any person to comply with the Representation of the People Act, 1976 or relevant election rules --- Violations of the election law that had significant numerical impact on the count of an election result would fall within the ambit of S.70(a) of the Representation of the People Act, 1976---At the same time, arithmetical precision in determining the number of votes invalidated by delinquent acts committed during the election was not essential and a (Election) Tribunal in principle should consider the imperativeness of the law violated and the scale of the violation committed in order to estimate their impact on the result of the election.

(f) Constitution of Pakistan---

----Art. 218(3)---Representation of the People Act (LXXXV of 1976), Ss. 78 & 83---Denial of right of franchise---Bogus voting---Denial of a right of franchise to the electors on a widespread scale or conversely the grant of opportunity to strangers to usurp or defeat such right of franchise through bogus voting were both acts that went to the roots of the electoral process and contravened the constitutional mandate expressed in Art.218(3) of the Constitution that "elections are to be held honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against."

Jam Mashooq Ali v. Shahnawaz Junejo PLD 1996 SC 426 ref.

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

----S. 70---Ground for declaring election as a whole void---Scope---Election result---Invalid votes---Deduction of invalid votes from the lead secured by winning/returned candidate---After such deduction if the lead of winning/returned candidate still survived, then it could not be said that the result of the election was materially affected so as to declare the election as a whole void---Supreme Court approved such approach.

In cases where an estimate of the votes tainted with delinquent conduct could be made, one approach taken by the Supreme Court has been to deduct the number of tainted votes from the lead secured by a winning candidate. Where the lead significantly exceeds the number of tainted votes, the adjustment reduces such margin but the winning candidate nevertheless succeeds. Therefore, in such cases it could not be said that the result of the election had been materially affected.

Ehsanullah Reki v. Abdul Qadir Baloch 2010 SCMR 1271 and Raja Ameer Zaman v.Omer Ayub Khan 2015 SCMR 890 ref.

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

----S. 70---Ground for declaring election as a whole void---Scope---Returned/winning candidate agreeing to elections being declared void as a whole and for fresh by-election to be held in a constituency---Supreme Court observed that private consent (of retuned candidate) could not prompt a judicial direction for holding a fresh election in the constituency---Election dispute/lis involved the enforcement of public law in respect of an elected public office under the Constitution and involved the commitment of huge public funds through the Election Commission of Pakistan for financing a by-election---Outcome of such a controversy must be decided in accordance with law and not pursuant to the wishes of affected private parties.

(i) Constitution of Pakistan---

----Art. 62(1)(f)---Qualification for membership of Parliament---Sagacious, righteous, non-profligate, honest and amen---Person who was untruthful or dishonest or profligate had no place in discharging the noble task of law making and administering the affairs of State in government office---Such faults in character or disposition, if duly established, could not be treated as transient for the purpose of reposing trust and faith of the electorate and the Constitution in the holder of an elected office under the Constitution---Trusteeship attendant upon the discharge of every public office under the Constitution, whether Legislative, Executive or Judicial was a universally recognized norm, however, Constitution (of Pakistan) emphasized upon it expressly for an elected parliamentary office---Such Constitutional norm must be respected and therefore implemented.

Muhammad Saeed v. Election Petitions Tribunal, West Pakistan, and others PLD 1957 SC 91; Saeed Hassan v. Pyar Ali PLD 1976 SC 6; Muhammad Afzal v. Muhammad Altaf Hussain 1986 SCMR 1736; Abdul Ghafoor Lehri v. Returning Officer PB-29 Naseerabad-II 2013 SCMR 1271; Allah Dino Khan Bhayo v. Election Commission of Pakistan 2013 SCMR 1655; Iqbal Ahmad Langrial v. Jamshed Alam PLD 2013 SC 179 and Najeeb-ud-Din Owaisi v. Amir Yar Waran PLD 2013 SC 482 ref.

(j) Constitution of Pakistan---

----Art. 62(1)(f)---Declaration in nomination papers about Graduation qualification---Educational degree, authenticity of---No direct or circumstantial evidence brought on record to prove as false degree of graduate qualification---Evidence presented on record about falsity of graduate qualification vague, cursory and inferential---Non-examination of officials of the University and Educational Board---Effect---Finding against returned candidate to the effect that he had made a false statement/declaration in his nomination papers regarding his educational qualification was set-aside in circumstances.

Runner-up candidate alleged that returned candidate had made a false declaration in his nomination papers about his B.A/Graduation qualification. Evidence brought on record by the runner-up candidate about the falsity of the returned candidate's educational qualification was cursory, defused and inferential . No witness of the relevant University was examined by the runner-up candidate. Likewise, no witness of relevant Educational Board wherefrom the returned candidate secured his Matriculation and Intermediate was examined by the runner-up candidate. No report was available on record either by the University or Educational Board disputing, disowning or rejecting diplomas/certificates conferred by the said institutions upon the returned candidate.

Muhammad Saeed's case PLD 1957 SC 91; Muhammad Yusuf's case PLD 1973 SC 160; Saeed Hussain's case PLD 1976 SC 6 and Muhammad Afzal's case 1986 SCMR 1736 ref.

Runner-up candidate had made a vague allegation against returned candidate's educational qualifications that did not specify either in his pleadings and his evidence, the precise reason for the invalidity of the B.A. qualification.

Runner-up candidate failed to bring direct or circumstantial evidence that affirmatively proved that the returned candidate had made a false statement about his graduate qualification.

Findings given by the Election Tribunal to the effect that the returned candidate had made a false statement/declaration in his nomination papers regarding his educational qualification was based on presumption, inferences and surmises and was therefore, unsustainable in law Supreme Court set-aside such finding accordingly.

(k) Constitution of Pakistan ---

----Arts. 62 & 63---Election---Finding of fact about disqualification of a returned candidate---Such finding must be based on affirmative evidence and not on presumptions, inferences and surmises.

Muhammad Saeed's case PLD 1957 SC 91; Muhammad Yusuf's case PLD 1973 SC 160; Saeed Hussain's case PLD 1976 SC 6 and Muhammad Afzal's case 1986 SCMR 1736 ref.

(l) Constitution of Pakistan ---

----Art. 62(1)(f)---Member of Parliament, disqualification of---Sagacious, righteous, non-profligate, honest and amen---Finding of disqualification under Art.62(1)(f) of the Constitution---Evidentiary safeguard to be adopted by the Court---Since serious consequences followed a finding of disqualification under Art.62(1)(f) of the Constitution, therefore, any reasonable hypothesis available in the recorded evidence to avoid the disqualification of the returned candidate ought to be adopted by the Court of law.

M. Shahzad Shaukat, Advocate Supreme Court along with Appellant (in person).

Makhdoom Ali Khan Senior Advocate Supreme Court, Tariq Aziz, Advocate-on-Record along with Respondent No.1 (in person).

Dates of hearing: 21st, 22nd, 26th, 27th and 28th October, 2015.

P L D 2016 Supreme Court 121

Present Mian Saqib Nisar, Ijaz Ahmed Chaudhry and Qazi Faez Isa, JJ

KARACHI DOCK LABOUR BOARD---Appellant

Versus

Messrs QUALITY BUILDERS LTD.---Respondent

Civil Appeal No.305 of 2008, decided on 2nd October, 2015.

(Against the judgment dated 19-4-2006 of the High Court of Sindh, Karachi passed in H.C.A. No. 18 of 2005)

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

----S. 2(a)---Contract Act (IX of 1872), S. 10---Arbitration agreement---Contract---Arbitration agreement must qualify the test of a valid contract in terms of the law of contract.

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

----S. 5---Misreading/non-reading of facts or law by arbitrator---Power of Court to correct such wrong --- Subject to the terms of reference an arbitrator(s) was the judge on both the points of fact and law, which also included the question to determine his own jurisdiction---Where, however, the arbitrator went patently and blatantly wrong on facts, which wrong was inconceivable and incomprehensible in relation to the determination of rights of parties in dispute, such as assumption of non-existing facts or ignoring the facts duly established on the record, which in legal parlance was also called the misreading and non-reading; and especially going wrong on the points of law, the court obviously had the power in its appropriate jurisdiction to correct such a wrong.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 and Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 ref.

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

----S. 3 & First Sched. para. 1---Arbitrator, appointment of---Interpretation of arbitration clause---Arbitration clause silent as to the number of arbitrators and the manner of appointing them---Arbitration clause in the present case only mentioned referral of disputes to "arbitrator(s)"---Had the arbitration clause spoken of the appointment of an "arbitrator", there would be no scope for the application of para 1 of the First Schedule to the Arbitration Act, 1940, because a single arbitrator would be indicated by the agreement itself; had the arbitration clause provided for the appointment of "arbitrators", then the application of para 1 of the First Schedule would have been excluded because the word "arbitrators" certainly referred to more than one arbitrator--- Present case, therefore, would be governed by S.3 of Arbitration Act, 1940 and the reference [to "arbitrator(s)"]shall be presumed to have been intended to be made to a single arbitrator by virtue of para 1 of the First Schedule, necessarily to be appointed by the consent of both parties.

Mujtaba Hussain Siddiqui v. Sultan Ahmed 2005 YLR 2709; In the matter of Arbitration between Ghufran Ahmed and others PLD 1959 (W.P.) Kar. 43; Muhammad Jamil v. Iqbal Ahmed PLD 1977 Kar. 886; Government of Sindh and others v. Tausif Ali Khan 2003 CLC 180; M/s. National Small Industries Corpn Ltd. v. M/s National Metal Craft, Delhi and others AIR 1981 Delhi 189 and India Hosiery Works v. Bharat Woollen Mills Ltd. AIR 1953 Cal. 488 ref.

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

----S. 9(b)---Power of a party to appoint its arbitrator to act as sole arbitrator---Essential conditions that had to be met before a party could appoint its arbitrator to act as sole arbitrator stated.

Following are the essential conditions that had to be met before a party could appoint its arbitrator to act as "sole arbitrator":

(1) that the agreement itself provides that a reference shall be to two arbitrators;

(2) that the agreement further provides that, of the two arbitrators, one has to be appointed by each party;

(3) that one arbitrator has in fact been appointed by one of the parties, and the other party has failed to appoint an arbitrator;

(4) that the party who has appointed their arbitrator has served a notice in writing (after the appointment of their arbitrator) to the party who has failed to appoint their arbitrator; and

(5) that 15 days have passed since a notice in writing to make the appointment was served to the party who has failed to appoint their arbitrator.

First two conditions formed the basis of the last three ingredients, and were sine qua non for attracting section 9(b) of the Arbitration Act, 1940 and having resort thereto.

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

----Ss. 5 & 14---Arbitrator appointed invalidly---Award passed without jurisdiction---Conferment of jurisdiction upon the arbitrator should be strictly in line with the letter and spirit of the agreement between the parties and the express provisions of law---Any award passed by an arbitrator who was not appointed in such manner shall be invalid, having been passed by an arbitrator without jurisdiction.

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

----S. 8---Power of court to appoint arbitrator---Arbitration clause impliedly providing for the appointment of a "sole arbitrator" with the consent of both the parties---One party appointing a sole arbitrator without consent of other party and without recourse to the court, in contravention of the agreement and S.8 of Arbitration Act, 1940---Effect---Award passed by the arbitrator could not be deemed to be valid in such circumstances as the arbitrator, having not been appointed in terms of the arbitration agreement and the law, lacked the requisite jurisdiction.

Provisions of section 8 of Arbitration Act, 1940 were squarely applicable to the present case and should have been made recourse to. Section 8 of Arbitration Act, 1940 was meant to be applied to a case where the reference (in the agreement) provided for a sole arbitrator (also more than one arbitrator as the case may be) to be appointed by the consent of the parties. Arbitration clause in the present case provided, albeit impliedly, for the appointment of a sole arbitrator with the consent of both the parties. According to Section 8(2) of Arbitration Act, 1940 an application had to be made to the Court to appoint an arbitrator after hearing the parties, in the event of nonappointment within 15 clear days of the service of notice to concur in appointment, therefore the respondent-company in the present case did not have the power to appoint the arbitrator unilaterally after the appellant even failed to concur to appointment of the arbitrator; rather it was the exclusive jurisdiction of the court to make such appointment if approached by the respondent-company. No such application was ever made to the court by the respondent-company in the present case, and consequently, as the mandate of law prescribed by section 8, was not followed by the respondent-company, the award passed by the arbitrator could not be deemed to be valid as the arbitrator, having not been appointed in terms of the arbitration agreement and the law, lacked the requisite jurisdiction. Provision of section 8 of Arbitration Act, 1940 were squarely applicable to the recent case and should have been made recourse to.

Messrs National Small Industries Corpn Ltd. v. Messrs National Metal Craft, Delhi and others AIR 1981 Delhi 189; Hariram Khiaram, a firm v. Gobindram Rattan Chand, a firm PLD 1949 Sind 30; Mujtaba Hussain Siddiqui, S. L. Balmokand v. Uttamchand Brijlal AIR 1927 Sind 177; Messrs National Small Industries Corpn Ltd., Anjuman-i-Ahmadiya Ashait-i-Islam, Lahore through Secretary, Jamaat Ahmadiya, Lahore, and another v. Hafiz Ghulhm Ahmad and others PLD 1955 Lahore 23 and Muhammad Azam Muhammad Fazil & Co., Karachi v. Messrs N.A. Industries, Karachi PLD 1977 Kar. 21 ref.

(g) Coram non judice--

----Any determination made and decision given by a court or other forum performing judicial functions (or even quasi-judicial functions) having no jurisdiction was a nullity in the eyes of law.

(h) Jurisdiction ---

----Jurisdictional defect---Rules of consent, waiver, estoppel, acquiesce etc.---Parties could not confer jurisdiction upon a court or other judicial or quasi-judicial forum through consent which otherwise in law would have no jurisdiction and the same was the position regarding waiver and acquiescence qua the courts etc. which lacked jurisdiction and such being an inherent defect could not be cured on the rules of consent, waiver, estoppel, acquiesce etc.

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

----S. 9---Arbitrator, jurisdiction of---Arbitrator appointed in violation of the agreement between parties---Waiver and acquiesce, rule of---Sole arbitrator appointed by one party without consent of other party (in contravention of the agreement)---Rule of waiver and acquiesce would only apply if the other party, which had not given its consent to the appointment of arbitrator, (subsequently) expressly consented to submit to the jurisdiction of such arbitrator having no jurisdiction otherwise---Where there was clear acquiescence and waiver on part of the party aggrieved of the jurisdiction, such as participation in proceedings without any protest or objection, which conduct shall mean that they had accepted by choice the jurisdiction of the arbitrator.

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

----S. 11---Arbitrator, appointment of---Dispute between parties over legality of sole arbitrator's appointment---Participation in arbitration proceedings under protest---When the sole arbitrator had been appointed irregularly, participation in the (arbitration) proceedings (by the objecting party) under protest did not amount to consent on part of such a party and it could approach the court to set aside such appointment.

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

----Preamble---Competence or jurisdiction of an arbitrator---Kompetenz-Kompetenz (German)/Competence de la Competence (French)/ Competence Competence (English), principle of---Principle that an arbitral tribunal shall determine its own jurisdiction, and that if the question of proper constitution of an arbitral tribunal was not raised before the tribunal itself, this would constitute a waiver of the right to object which objection could not be subsequently raised for setting aside the award---Reasons for limited applicability of such principle in Pakistan stated.

Principle of Kompetenz-Kompetenz (German), Competence de la Competence (French) or Competence Competence (English), that an arbitral tribunal had the competence to determine its competence, had its roots in Germany and other international arbitral tribunals such as India. Survey of several judgments from the United Kingdom and India showed that where a party had not raised an objection with regard to the competence or jurisdiction (or lack thereof) of the arbitrator before the arbitrator himself, it would be deemed to have been waived. Courts in Pakistan had acknowledged the principle that an arbitral tribunal was a judge of both fact and law, the latter of which included the question of its own jurisdiction. However the law in Pakistan had developed somewhat differently. With respect to the English judgments wherein it was held that the parties were deemed to have waived their right to object and precluded from raising such objections if not raised before the arbitrator himself were based on a provision in the English Arbitration Act, 1996 unique to it, which specifically provided for loss of right to raise objections when not raised before the arbitrator. In Pakistan no such corresponding provision was present in the Arbitration Act, 1940, hence the law laid down in the English judgments could hardly be of any help to jurisdiction in Pakistan. Indian judgments on the subject revolved around the Indian Arbitration Act, 1996 which contained a particular provision vis-a-vis waiver with respect to non-compliance with the arbitration agreement. However it was pertinent to mention that the said provision did not pertain to non-compliance with the Act. Thus, foreign jurisdictions, like Pakistan, had retained the concept that an arbitral tribunal's decision on its jurisdiction was open to review by the courts, but the course that the law had taken in Pakistan with respect to applicability of the concept of waiver was slightly different, particularly due to variance in the respective arbitration statutes. Courts in Pakistan had not adopted wholesale the concept that if the question of proper constitution of an arbitral tribunal was not raised before the tribunal itself, this would constitute a waiver of the right to object which objection could not be subsequently raised for setting aside the award. Indeed such principle may hold true where the appointment of the arbitrator had not been made in compliance with the terms of the arbitration agreement, as the parties may by way of waiver amend the terms of their arbitration agreement. However where such appointment was made in contravention of the provisions of the Arbitration Act, 1940 then such principle had no application.

Abdul Hamid v. H. M. Qureshi PLD 1957 SC (Pak) 145 ref.

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

----Preamble---Arbitration proceedings---Doctrine of least intervention (by the court)---Applicability---Doctrine of least intervention (by the court) was a valid principle, but the court would not apply the same where there had been sheer non-compliance with the provisions of the Arbitration Act, 1940.

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

----S. 5---Objection regarding inherent jurisdiction of an arbitrator---Such objection was a point of law which could be raised at any stage.

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

----S. 15---Power of court to modify award---Scope---Notwithstanding the absence of objections filed by any party and/or the fact that parties may consent to the making the award a rule of court, the court was duty bound to examine the validity and legality of an award and it may sua sponte modify or set aside the award if the facts and dictates of justice so demanded---Court could not and certainly should not, remain dormant by merely affixing the judicial stamp on an award --- Court was not a part of an assembly line which had to churn out finished products mechanically without applying its judicial mind to the process involved.

Rashida Begum v. Ch. Muhammad Anwar and others PLD 2003 Lah. 522 ref.

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

----S. 5---Arbitrator appointed in contravention of the Arbitration Act, 1940---Application to court under S.5 of Arbitration Act, 1940 for revoking authority of such arbitrator---Maintainability---Section 5 of Arbitration Act, 1940 spoke of (revoking) the authority of an "appointed arbitrator" hence making valid conferment of authority a pre-requisite for the application of S.5---Application under S.5 of Arbitration Act, 1940 for revoking authority of an arbitrator would, thus, not be sustainable where the arbitrator was appointed in contravention of Arbitration Act, 1940 and was incompetent in law to act as an arbitrator.

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

----S. 11---Arbitrator appointed in contravention of the Arbitration Act, 1940---Application to court under S.11 of Arbitration Act, 1940 for removing such arbitrator---Maintainability---Only those arbitrators could be removed (by court under S.11 of Arbitration Act, 1940), who had been in fact appointed, and a defective appointment made in contravention of the provisions of the Arbitration Act, 1940 was no appointment, hence removal could certainly and logically not follow---Application to court under S.11 of Arbitration Act, 1940 for removing an arbitrator would, thus, not be sustainable where the arbitrator was appointed in contravention of Arbitration Act, 1940 and was incompetent in law to act as an arbitrator.

Zahid Ibrahim, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Dr. Muhammad Farogh Naseem, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent.

Date of hearing: 2nd October, 2015.

P L D 2016 Supreme Court 146

Present: Asif Saeed Khan Khosa, Mushir Alam and Manzoor Ahmad Malik, JJ

Malik MUHAMMAD MUMTAZ QADRI---Petitioner

Versus

The STATE---Respondent

Criminal Review Petitions Nos. 123 and 124 of 2015, decided on 14th December, 2015.

(Against the consolidated judgment dated 7-10-2015 passed by this Court in Criminal Appeals Nos. 210 and 211 of 2015)

(a) Constitution of Pakistan---

----Arts. 188 & 185---Bench of Supreme Court, constitution of---Number of judges on a Bench---Party to a case could not claim or demand that its case may be heard by any number of Judges of a Court desired by the party---Additionally party to a case had no say in the matter of constitution of Benches of the Court.

In the present case, the appeals filed by the applicant and the State against the judgment of the High Court, had been heard and decided by a 3-member Bench of the Supreme Court. Present review petitions against the appeals were also being heard by a 3-member Bench. Petitioner objected that present review petitions may be heard and decided by a Full Court or Larger Bench of the Supreme Court as the same required adjudication of some very important religious and legal questions. No reason was found as to why present review petitions may not be heard and decided by an equal 3-member Bench (equal to the Bench that decided the appeals under review). Apart from that, petitioner failed to identify the so-called very important religious and legal questions involved in the review petition. Application seeking constitution of Full Court or a Larger Bench to hear present review petitions was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 188---Review petition before the Supreme Court---Documents, submission of---Scope---Documents which were already available on the record of the case could not be allowed to be resubmitted (in review proceedings).

(c) Constitution of Pakistan---

----Art. 188---Review petition before the Supreme Court---Documents, submission of---Scope---Documents and other material in existence or available or known to the accused-petitioner at the time of dismissal of his appeal by the Supreme Court---Such documents and other material could not be allowed to be brought on the record of the review petition filed by accused-petitioner against dismissal of his appeal by the Supreme Court or be permitted to be made a basis of review.

(d) Constitution of Pakistan---

----Art. 188---Review petition before the Supreme Court---Documents, submission of---Scope---Document not properly and lawfully adduced in evidence and not proved according to the law before the appropriate court could not be considered or be allowed to be brought on the record of a review petition pending before the Supreme Court.

(e) Supreme Court Rules, 1980 ---

----O. X, R.1---Oral announcement of a judgment by the Supreme Court ---Written judgment subsequently passed and released by the Supreme Court carrying the (earlier) date on which the decision was orally announced---Such practice was permissible in terms of R. 1 of O. X of the Supreme Court Rules, 1980.

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

----Ss. 295-C & 338-F---Enforcement of Shari'ah Act (X of 1991), Ss.3 & 4 --- Constitution of Pakistan, Art. 188---Review petition before the Supreme Court---Murder committed by accused on basis of alleged blasphemy by the deceased---Contention of accused-petitioner that while deciding his appeal the Supreme Court should have been guided by the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet Muhammad (peace be upon him)---Validity---Such contention overlooked the fact that the petitioner had failed to discharge the onus on him to prove through legally admissible evidence the alleged commission of blasphemy by the deceased, and, thus, there did not arise any occasion for seeking guidance from the Injunctions of Islam regarding the concept of blasphemy and its punishment---Review petition was dismissed accordingly.

(g) Constitution of Pakistan ---

----Art. 188---Review jurisdiction of the Supreme Court---Scope---Review was not a rehearing of the main case---Rearguing a case fell outside the scope of review jurisdiction of the Supreme Court.

Mian Nazir Akhtar, Advocate Supreme Court assisted by Khawaja Muhammad Sharif, Advocate Supreme Court, Ghulam Mustafa, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for Petitioner.

Mian Abdul Rauf, Advocate-General, Islamabad for Respondent.

Date of hearing: 14th December, 2015.

P L D 2016 Supreme Court 151

Present Mian Saqib Nisar, Sh. Azmat Saeed and Maqbool Baqar, JJ

CIVIL PETITION NO.3186 OF 2015

(Against the judgment dated 15-10-2013 of the Lahore High Court, Multan Bench passed in W.P. No. 15116 of 2015)

GHAZANFAR ALI---Petitioner

Versus

APPELLATE AUTHORITY/ADDITIONAL DISTRICT JUDGE, SAHIWAL and others---Respondents

CIVIL PETITION NO. 3187 OF 2015

(Against the judgment dated 15-10-2015 of the Lahore High Court, Multan Bench passed in W.P. No.15117 of 2015)

SUFIYAN AKRAM and another---Petitioners

Versus

APPELLATE AUTHORITY/ADDITIONAL DISTRICT JUDGE, SAHIWAL and others---Respondents

Civil Petitions Nos.3186 and 3187 of 2015, decided on 4th November, 2015.

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

----S. 27---Qualifications and disqualifications for candidates and elected members---Interpretation---Qualifications and disqualifications imposed by law for a candidate to contest the election and even to hold office should be construed and applied strictly, and a person could only be debarred from contesting elections or holding an office if the case fell squarely within the strict scope of the qualifications and disqualifications stipulated by law.

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

----S. 27(2)(e)---Zakat and Ushr Ordinance (XVIII of 1980), Ss. 18, 21, 21-A & 23---Local bodies election---Member and Chairman of Local Zakat and Ushr Committee---Persons not in service of a statutory body---Not barred under S.27(2)(e) of Punjab Local Government Act, 2013 from contesting elections for local bodies---Two year post-resignation/retirement bar from contesting elections did not apply to Member and Chairman of the Local Zakat and Ushr Committee---Such prohibition against participation in political activities was only relatable to the period whilst a person held post of Chairman or Member , but once he resigned, such bar disappeared.---Zulikha Bibi v. Election Commission of Pakistan through Secretary and another 2015 YLR 1584; Muhammad Khan v. Amanullah and 2 others (PLD 2014 Bal. 128) set-aside.

According to section 27(2)(e) of Punjab Local Government Act, 2013, a person would not be qualified (or would be disqualified) to contest such election if he was in the service of a statutory body etc. and a period of not less than two years had elapsed since his resignation or retirement. Petitioners, who were Member and a Chairman of the Local Zakat and Ushr Committee, resigned from their posts and (immediately) filed their nomination papers to contest elections for local bodies---Nomination papers of petitioners were rejected on the basis that they were in the service of the Zakat and Ushr department, and thus were disqualified from contesting the local bodies elections as per the bar contained in section 27(2)(e) of the Punjab Local Government Act, 2013.

Zakat and Ushr department was a statutory body, however the Member and a Chairman of the Local Zakat and Ushr Committee were not persons in the service of a statutory body. Authority of appointment to the post of Member and Chairman of Local Zakar and Ushr Committee did not vest with the State, Government or statutory body, which was a predominate factor for being in the service of a statutory body. Likewise the authority of their removal did not primarily lie with the State or Government officials as such, rather laid with the Councils/Committees in tiers higher to that of the Local Committee. Further Member and Chairman of Local Zakat and Ushr Committee did not receive any salary, honorarium or any other financial benefits, Nature of the functions of the Members and Chairman were also akin to noble voluntary work, which was primarily to distribute Zakat and Ushr to deserving people of the locality; the element of nature and strength of control and supervision of authority was also not applicable because the Members and Chairman of the Local Committee did not seem to be under the control and supervision of any other body rather were assigned to follow the guidelines in discharge of their functions.

Zulikha Bibi v. Election Commission of Pakistan through Secretary and another 2015 YLR 1584; Mirza Muhammad Tufail v. District Returning Officer, and others PLD 2007 SC 16; Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32; Inayatullah v. C.C.-Cum-Chairman, District Zakat Committee and 2 others PLD 1993 SC 426; Raja Bahadur K. C. Deo Bhanj v. Raghunath Misra and others AIR 1959 SC 589 and Ch. Liaqat Ali and another v. Election Appellate Authority/District and Sessions Judge, Lahore/District Returning Officer, Lahore and 3 others 2001 YLR 953 ref.

In terms of section 23 of Zakat and Ushr Ordinance, 1980, Members and the Chairman of the Local Committee were to be considered persons "engaged in", and not "employed for" the administration of the Ordinance. Therefore, the Members and the Chairman of the Local Committee were persons who were engaged in the administration of and not employed in any statutory body. Since the Member and Chairman of the Local Committee, in the present case, had not been taken into the employment of any statutory body (as envisaged by law) therefore the question of them being "in the service of such statutory body did not arise. In such circumstances the two year post-resignation/retirement bar from contesting elections did not apply to Member/Chairman of the Local Committee. Prohibition on Member or Chairman against participation in political activities was only relatable to the period whilst a person held such post, but once he resigned, such bar disappeared

Zulikha Bibi v. Election Commission of Pakistan through Secretary and another 2015 YLR 1584 and Muhammad Khan v. Amanullah and 2 others PLD 2014 Bal. 128) set-aside.

Section 23 of the Zakat and Ushr Ordinance, 1980, provided that every person engaged in, or employed for, the administration of the Ordinance shall be deemed to be a public servant within the meaning of section 21, P.P.C, meaning thereby that Members and the Chairman of the Local Committee were public servants. However suffice to say that section 23 was a deeming clause and it was only by fiction of law that for the purposes of applicability of the P.P.C. and for the object of enabling them to perform certain functions envisaged by the P.P.C. that a legal status had been conferred upon them and that they were considered and deemed to be public servants otherwise they were not public servants at all.

Kalam Daraz Khan v. Crown (PLD 1951 Dhaka 104) and Rana Muhammad Jamil v. The Punjab Road Transport Board, Lahore and others (PLD 1957 (W.P.) Lah. 1 distinguished.

Member and Chairman of Local Zakat and Ushr Committee were not disqualified from contesting the elections of local bodies under the provisions of Section 27(2)(e) of the Punjab Local Government Act, 2013 as they did not fall within the purview of being in the service of a statutory body i.e. Local Zakat and Ushr Committee. Appeal was allowed accordingly.

(c) Words and phrases ---

----'Selection"---Definition.

(d) Employer and employee---

----Person "in the service of" of a statutory body---Meaning---Word "service" had to be construed along with its syntax---Words "in the service of" would mean "in the employment of" meaning thereby that there was a relationship of employer and employee.

Corpus Juris Secondum (79 CJS. P. 1139) ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in both cases).

Ahmad Raza, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record for Respondent No.3 (in C.P. No. 3186 of 2015).

Ahmad Raza, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate-on-Record for Respondents Nos.3 and 4 (in C.P. No.3187 of 2015).

Date of hearing: 4th November, 2015.

P L D 2016 Supreme Court 171

Present: Asif Saeed Khan Khosa and Manzoor Ahmad Malik, JJ

Malik NAZIR AHMED---Petitioner

Versus

Syed SHAMAS-UL-ABBAS and others---Respondents

Criminal Petition No.348-L of 2015, decided on 22nd December, 2015.

(Against the order dated 18-3-2015 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Miscellaneous No.517-B of 2015.)

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail, grant of---Grounds---Pre-arrest bail granted by High Court on the ground that offence under S.489-F, P.P.C. did not entail any recovery to be affected from the accused person, and if recovery was not to be affected from accused in a criminal case then he could not be refused pre-arrest bail---Legality---Such generalization/ approach adopted by the Judge-in-Chamber of the High Court could not be approved as it militated against the scheme of Criminal Procedure Code, 1898 because arrest of an accused person during investigation of a criminal case was not meant only for affecting recovery from his possession but such arrest was made for the purpose of investigating the circumstances of the case and collecting evidence and recovery, where required, was only one of the components of the investigation---While investigating an offence physical custody of an accused person may be required by the investigating agency for ascertaining and verifying the circumstances being alleged by the complainant party and even for confirmation of the circumstances of the case put forth and advanced by the accused person in his defence---Supreme Court remanded the case to the High Court for a fresh decision on the pre-arrest bail application filed by accused on the merits of the case, and directed that till a fresh decision on the matter, the accused shall remain on ad interim pre-arrest bail, which may or may not be confirmed by the High Court depending upon the final decision of the matter on merits.

Abdul Sattar v. The State and another PLD 2013 Lah. 173 disapproved.

Muhammad Ozair Chughtai, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Malik Ejaz Hussain Goredi, Advocate Supreme Court and A.H. Masood, Advocate-on-Record with Respondent No.1 in person.

Asjad Javed Ghural, Addl. Prosecutor General, Punjab for the State.

Date of hearing: 22nd December, 2015.

P L D 2016 Supreme Court 174

Present Mian Saqib Nisar, Gulzar Ahmed and Umar Ata Bandial, JJ

MUHAMMAD RAMZAN (DECEASED) through L.Rs. and others---Appellants

Versus

NASREEN FIRDOUS and others---Respondents

Civil Appeal No. 1560 of 2008, decided on 16th December, 2015.

(Against the judgment dated 12-8-2002 of the Lahore High Court, Lahore passed in C.R. No. 353 of 1991)

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

----S. 16---Suit with regards to the property situated outside Pakistan---Territorial jurisdiction of courts in Pakistan---Scope---Territorial jurisdiction of courts in Pakistan had been limited, restricted and circumscribed only to such properties which were situated within the territorial boundaries of Pakistan---Properties which fell within the purview of S.16, C.P.C were those which were situated in Pakistan and thus the courts in Pakistan shall have the sole and exclusive territorial jurisdiction in respect thereto---Properties outside Pakistan were expressly excluded from the purview of jurisdiction of Courts of Pakistan as a whole.

Premchand v. Hiralal AIR 1928 Nagpur, 295 ref.

(b) Interpretation of statutes---

----Where a word/expression had been defined in the statute, such word/expression had to be given the same meaning until and unless the assignment of such meaning would be patently in conflict with the express text of the said provision or would destroy the spirit and object of the provisions of law in which such expression/word appeared or shall lead to an absolute absurdity.

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

----Ss. 16, 17, 18 & 19---Suit to be instituted where subject-matter situated---Territorial jurisdiction of courts in Pakistan---Sections 17, 18 & 19, C.P.C. as supplemental provisions to S.16, C.P.C---Scope---Sections 17, 18 & 19, C.P.C. were basically supplemental provisions to S.16, C.P.C. and in fact and law, catered for a situation once the threshold of S.16, C.P.C. vis-à-vis the jurisdiction of courts in Pakistan was crossed; it was then that if the courts in Pakistan had jurisdiction over the subject matter, that it should be settled and determined as to which court within Pakistan shall have the jurisdiction in the given circumstances of the case to try a suit of a particular nature---For the application of Ss.17,18 & 19 C.P.C. it was essential that first the jurisdiction should vest in the Courts in Pakistan in terms of S.16, C.P.C.---Section 16, C.P.C. was not only a threshold section for the conferment of jurisdiction to the courts in Pakistan but it was the portal through which the plaintiff had to enter for the purposes of entering into the city of jurisdiction of different courts in Pakistan---Where, as per the mandate of law, such door was closed upon a plaintiff because the property, subject matter of a suit, was not within the limits of Pakistan, then such litigant was barred and precluded from invoking the jurisdiction of any other court of the country in terms of Ss.17, 18 & 19, C.P.C.

Yusuf Abbas and others v. Mst. Ismat Mustafa and others PLD 1968 Kar. 480 ref.

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

----S. 20---Suit for administration with regards to the property situated outside Pakistan---Territorial jurisdiction of courts in Pakistan---Scope---Defendants residing, carrying business or working outside Pakistan---Jurisdiction of courts in Pakistan disputed by defendants---Cause of action not wholly or partly arising in Pakistan---Effect---Section 20, C.P.C was not applicable in such circumstances and thus jurisdiction of courts in Pakistan over the property situated outside Pakistan would be barred.

In terms of section 20, C.P.C., a suit may be filed in a court within the local limits of which (a) all the defendants were actually and voluntarily residing, carrying on business or personally working for gain at the time of commencement of the suit, or (b) any of the defendants, where there were more than one, actually or voluntarily resided, or carried on business or personally worked for gain provided that in such cases leave of the court was obtained or the defendants who were not within the court's jurisdiction acquiesced or (c) where the cause of action wholly or partly arose.

Record of the present case clearly illustrated at the very least that at all times, all the main contending defendants were residing, carrying business or working outside Pakistan. Such assertion was further supported by the fact that the address provided for the defendants was that of England and it was nowhere suggested that the defendants had at any time been residents of Pakistan or carried on business in Pakistan, or worked in Pakistan. Section 20(a) C.P.C., therefore, evidently did not apply to the facts of the present case.

Considering whether the present case fell within section 20(b), C.P.C., if it was the case of the plaintiff that at least one of the defendants permanently resided, carried on business or worked in Pakistan, then, as necessitated by section 20(b), C.P.C. leave of the court had to be obtained which was not done in the present matter. Furthermore, the defendants clearly did not acquiesce in relation to jurisdiction over the property situated in England as the jurisdiction of Pakistan in relation to the property in England was firmly disputed in the written statement of the defendants.

Finally, section 20(c), C.P.C. did not help the case of the plaintiffs since the question of jurisdiction of the courts in Pakistan in relation to some of the property in Pakistan formed part of a separate cause of action than that in relation to the property situated in England. Factum of the distinct location of the properties alone gave rise to two separate causes of action.

Mst. Zainab v. Mst. Raji and others PLD 1960 SC 229; Nadeem Ghani v. United Bank Limited 2001 CLC 1904; Heman and others v. Fazal PLD 1955 Lah. 280; Dr. Abdul Ghani and others v. Ismail and others PLD 1958 Lah. 690 and Haroon Ayoob Abdul Karim v. Sulleman Ahmad and others 1983 CLC 162 ref.

Yusuf Abbas and others v. Mst. Ismat Mustafa and others PLD 1968 Kar. 480 distinguished.

Plaintiffs could not rely on section 20, C.P.C. to argue that the suit was or could competently be filed in relation to all properties, movable and immovable, situated in England.

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

----S. 20(b)---Suit with regard to the property situated outside Pakistan---Territorial jurisdiction of courts in Pakistan---Scope---Presence of a defendant within the jurisdiction (of a court in Pakistan) would not ipso facto grant jurisdiction to such court under S.20, C.P.C. when the property was situated within the territorial jurisdiction of another country.

Muhammad Sohail Siddiqui v. Mst. Parveen 2010 MLD 1433 ref

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

----S. 16---Restriction on jurisdiction of a State within its own territory---Rationale---Respect for territorial jurisdiction of another State.

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

----S. 5---Cross-border succession---Private International Law---Principles---'Lex domicilii' and 'lex situs'---Moveable/immoveable property of deceased situated in foreign country (outside Pakistan)---Deceased possessing nationality and domicile of foreign country---Since disputed property was situated in a foreign country and the deceased was also domiciled and a national of the said foreign country, thus, following the rules of lex domicilii' and lex situs, the laws of foreign country would apply and courts of foreign country would have jurisdiction over such property ---Jurisdiction of courts in Pakistan over the subject-matter property would be barred.

Cardinal rule of private international law in matters of cross-border succession was that the movable property of the deceased person was regulated by the laws of the country in which the deceased was domiciled (lex domicilii); in the present case, the law of England constituted the law of the country in which the deceased was domiciled, and he was also a national of that country. As to immovable property, the recognized rule governing real or immovable property was that such property was subject to the laws of the place within which it was situated (lex situs); again, in the present case the laws of England would be applicable and courts of situs were the courts of England since the disputed property was situated in England. Property in dispute was undoubtedly and indisputably located inside the territorial jurisdiction of England thus barring the jurisdiction of Pakistan over the subject-matter property.

Private International Law, Sixth End., p.550 ref.

Courts of Pakistan had to keep the principles of Conflict of Laws or Private International Law in mind whilst dealing with matters involving questions of cross-border succession. Such principles were based on mutual respect for and recognition of, the judicial systems and the laws of other countries.

Since the deceased and the defendants were domiciled in England, the English courts would have jurisdiction and their verdict on the matter, in respect of property situated in England should be considered final by the courts in Pakistan.

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

----S. 13---Judgment of foreign courts---Judicial comity, doctrine of---Scope---Courts in Pakistan should respect and give effect to (subject to certain exceptions), the judicial decisions of other countries on the same subject under the principle of 'judicial comity'---Foreign judgments were conclusive as to any matter thereby adjudicated upon and courts in Pakistan must recognize and enforce the same, however, before enforcing any foreign judgment, a court in Pakistan would have to ensure that it did not fall within any of the exceptions contained in S.13, C.P.C.

Mark Janis (An Introduction to International Law 327 2003 and Louise Anne Fairley v. Sajjad Ahmed Rana PLD 2007 Lah. 300 ref.

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

----S. 13(a)---When foreign judgment not conclusive---Judgment pronounced by a foreign court not having competent jurisdiction---Scope---Courts in Pakistan may not consider a foreign judgment to be conclusive if it had been pronounced by a court of incompetent jurisdiction---To ascertain whether a judgment had been pronounced by a court of competent jurisdiction, courts in Pakistan would necessarily have to examine the principles of Private and Public International Law to determine whether the subject matter of the foreign judgment fell within the jurisdiction of the foreign court---Where the judgment was found to have been pronounced in excess of the foreign court's jurisdiction in view of the parallel body of law, that is, private international law, it would be deemed to have not been pronounced by a court of competent jurisdiction rendering the judgment inconclusive.

(j) Private International law ---

----Principles of---Applicable in Pakistan---Courts in Pakistan were bound to apply the principles of Private International Law wherever necessary.

(k) Private International law---

----Judgment passed by court in Pakistan without regard to the principles of Private International Law---Such judgment may not be considered to be conclusive by foreign courts for having usurped the jurisdiction of a foreign court, even if in substance the case was rightly decided (by the court in Pakistan).

Mian Abdul Aziz, Advocate Supreme Court for Appellants.

Malik M. Tariq Rajwana, Advocate Supreme Court for Respondents Nos.1 to 8.

Khalid Anwar, Senior Advocate Supreme Court and Makhdoom Ali Khan, Senior

Advocate Supreme Court as Amici curiae.

Date of hearing: 21st October, 2015.

P L D 2016 Supreme Court 195

Present: Asif Saeed Khan Khosa, Gulzar Ahmed and Dost Muhammad Khan, JJ

KHUDA-E-NOOR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.337 of 2015, decided on 11th November, 2015.

(Against the judgment dated 25-5-2015 passed by the High Court of Balochsitan, Quetta in Criminal Revision No.32 of 2015)

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

----Ss. 6(1)(b), 6(1)(c) & 6(2)---Act of terrorism---Mens rea---Act accompanied by a 'design' or 'purpose'---Any action falling within any of the categories of cases mentioned in S.6(2) of the Anti-Terrorism Act, 1997 could not be accepted or termed as "terrorism" unless the said action was accompanied by a "design" or "purpose" specified in S.6(1)(b) or (c) of the said Act---Provisions of S.6 of the Anti-Terrorism Act, 1997 which defined "terrorism" clearly showed that the said section was divided into two main parts, i.e. the first part contained in S.6(1)(b) and (c) of the said Act dealing with the mens rea mentioning the "design" or the "purpose" behind an action and the second part falling in S.6(2) of the said Act specifying the actions which, if coupled with the mens rea (i.e. design or purpose) , would constitute the offence of "terrorism", held not to be correct law.

Gul Muhammad v. The State PLD 2012 Bal. 22, held no to be correct law.

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

----Ss. 6(1)(b), 6(1)(c) & 6(2)(g)---Honour killing "Act of terrorism"---Act of honour killing would amount to "terrorism" only if accompanied by the design or purpose contemplated in S.6(1)(b) & (c) of the Anti-Terrorism Act, 1997---Case of private motive committed in the privacy of a home with no design or purpose contemplated by S.6(1)(b) or (c) of the Anti-Terrorism Act, 1997 would not amount to an act of terrorism thus triable by a court of ordinary jurisdiction.

Accused, in the present case, with the help of his co-accused murdered his sister. During the trial the prosecution improved its case vis-a-vis the motive and it was alleged that deceased was not enjoying good moral character as she had, developed illicit relations with someone and due to such reason she had been done to death by the accused. On the basis of such factor having become available on the record the Trial Court formed an opinion that the case in hand was one of honour killing and such killing amounted to "terrorism" within the purview of section 6(2)(g) of the Anti-Terrorism Act, 1997 and, thus, the case against the accused and his co-accused was transferred to an Anti-Terrorism Court.

Held, that present case was a case of a private motive set up in the FIR and during the trial the motive set up in the FIR was changed by the prosecution and an element of honour killing was introduced but even that did not change the character of the offence which was nothing but a private offence committed in the privacy of a home with no design or purpose contemplated by section 6(1)(b) or (c) of the Anti-Terrorism Act, 1997. Allegations levelled against the accused and his co-accused in the present criminal case did not attract the jurisdiction of an Anti-Terrorism Court, thus, their case was to be tried by a court of ordinary jurisdiction.

Kamran Murtaza, Advocate Supreme Court for Appellant.

Tahir Iqbal Khattak, Additional Prosecutor-General, Balochistan for the State.

Sohail Mehmood, Deputy Attorney General for Pakistan (On Court's call).

Date of hearing: 11th November, 2015.

P L D 2016 Supreme Court 199

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim and Umar Ata Bandial, JJ

PAKISTAN RAILWAYS through AGM(Trafic), Lahore---Petitioner

Versus

Messrs FOUR BROTHERS INTERNATIONAL (PVT) LTD and others---Respondents

Civil Petitions Nos.130 and 131 of 2015, decided on 27th October, 2015.

(On appeal against the judgment dated 2-12-2014 passed by the Lahore High Court, Lahore in Civil Revision No.2577/2014 and FAO No.442/14 respectively.)

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

----S. 2(e) & Chap. II [Ss.10 to 30-C]---Agreement, rescission of---Agreement between the parties had the status of a statute and unless it was shown that any term of the agreement was violative of the law, it could not be rescinded by a party.

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

----S. 2(e)---Agreement---Implied condition---Law did not permit a party to read in an implied condition which was never agreed to by the parties at the time of entering into the agreement.

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

----S. 41(b) & Second Sched.---Contract Act (IX of 1872), S. 2(e)---Interim injunction/restraining order against recovery of amount---Scope---Court should not pass restraining order against recovery of the amounts in terms of S.41 (b) of the Arbitration Act, 1940 without examining the three ingredients for grant of injunction i.e. prima facie case, balance of convenience and irreparable loss---Unrestricted permission to one party to benefit from the agreement without discharging their obligations of payment of amounts agreed to in the agreement could not be termed as justifiable grounds for grant of injunction.

Agreement was signed between Pakistan Railways and respondent-company in terms of which the company was going to operate a business train on a certain route. In terms of the agreement the company was obliged to pay Pakistan Railways a sum of Rs.1.573 million per train journey calculated at 88% passenger/luggage capacity with the applicable normal business class fare. Agreement further stipulated that the company would invest a sum of Rs.225.786 million for value added services, which would be treated as performance guarantee/security. Disputes arose amongst the parties at the very outset of their contractual relationship as the company in violation of its commitment under the Agreement failed to deposit Rs.225.786 million as performance guarantee before the commencement of the business train. Company approached the civil court praying for referring the dispute to Arbitration along with an application under section 41(b) of the Arbitration Act, 1940 for interim relief. Civil Judge directed the parties to provide names of their respective arbitrators, but also allowed the application of the company and granted injunction restraining Pakistan Railways from recovering the amounts payable by the company in terms of the agreement.

Company had made financial commitments by accepting the terms of the agreement, thus it was bound to discharge its obligations.

Civil court, in the present case, had passed interim injunction/restraining order against recovery of the amounts in terms of section 41(b) of the Arbitration Act, 1940 without examining the three ingredients for grant of injunction i.e. prima facie case, balance of convenience and irreparable loss. Unrestricted permission to the company for plying the business train without discharging their obligations of payment of amounts agreed to in the agreement could not be termed as justifiable grounds for grant of injunction. Prima facie the company had defaulted in paying the agreed amounts towards fares besides the investment, as was evident from the record, therefore, grant of injunction of the nature to the disadvantage of Pakistan Railways was not justified.

Supreme Court vacated the interim injunction granted in favour of the company and directed both parties to nominate their respective arbitrators so that arbitration proceedings may commence.

Sardar Muhammad Aslam, Advocate Supreme Court for Petitioner (in both cases).

Aitzaz Ahsan, Senior Advocate Supreme Court and M/S. Khattak, Advocate-on-Record for Respondents No.1 (in both cases).

Date of hearing: 28th October, 2015.

P L D 2016 Supreme Court 207

Present: Gulzar Ahmed and Dost Muhammad Khan, JJ

Malik MUZAFFAR AHMED---Appellant

Versus

MAJLIS-E-ILMI SOCIETY through Muhammad Zubair---Respondent

Civil Appeal No.1208 of 2011, decided on 15th December, 2015.

(On appeal from the judgment dated 29-11-2010 passed by the Lahore High Court Lahore in Civil Revision No.29 of 2008)

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

----S. 23(1)---Khyber Pakhtunkhwa Pre-emption Act (X of 1987), S.23(1)(a)---No right of pre-emption in respect of 'sale' of waqf property or property used for charitable, religious or public purpose [section 23(1)(a) of Punjab Pre-emption Act, 1991]---Inadvertent omission on part of draftsman in not adding the word`purchase' after the word 'sale' in S.23(1) of Punjab Pre-emption Act, 1991---Word, "purchase" had been omitted from S.23(1) of Punjab Pre-emption Act, 1991 due to mistake, albeit inadvertently on the part of the drafter---Section 23(1) of Khyber Pakhtunkhwa Pre-emption Act, 1987, which was similar to S.23(1) of Punjab Pre-emption Act, 1991 did contain the word 'purchase'---Words 'purchase', thus also had to be supplied to S.23(1) of Punjab Pre-emption Act, 1991 to render the said provision of law meaningful, so to give effect to the intent of the Legislature---Accordingly, the word "purchase" must be read in the provision of S.23(1) of the Punjab Pre-emption Act, 1991 and in the head-notes appended to it.

Section 23(1) of Punjab Pre-emption Act, 1991 provided that there was no right of pre-emption in respect of 'sale' of waqf property or property used for charitable, religious or public purpose, whereas a similar provision i.e. section 23(1) of Khyber Pakhtunkhwa Pre-emption Act, 1987 provided that there was no right of pre-emption in respect of 'sale' or 'purchase' of waqf property or property used for charitable, religious or public purpose. Provision of section 23 of Punjab Pre-emption Act, 1991 suffered from absurdity, ambiguity and inadvertent omission on the part of the drafter because along with the word 'sale' the word, 'purchase' was not added.

Giving exemption from right of pre-emption to properties purchased by a charitable or religious institutions, was the clear intent and object of the Legislature because such purchased properties were used for charitable religious and public benefit and not for monetory or financial gain.

Word, "purchase" mentioned in section 23(1) of Khyber Pakhtunkhwa Pre emption Act, 1987, had been omitted from the similar provision of section 23(1) of Punjab Pre-emption Act, 1991 due to mistake, albeit inadvertently on the part of the drafter, thus, it was fully justified to supply the omission, rendering section 23(1) of Punjab Pre-emption Act, 1991 meaningful, workable and sensible, so to give effect to the intent of the Legislature. Accordingly, the word "purchase" must be read in the provision of section 23 of the Punjab Pre-emption Act, 1991 and in the head-notes appended to it.

Supreme Court directed that Provincial Government should bring necessary amendments in the provision of section 23 of the Punjab Pre-emption Act, 1991 by adding the word, 'purchase' to avoid future unnecessary litigation in such regard.

(b) Interpretation of statutes ---

----Inadvertent omission in a statute---Courts had the power to fill-up an omission/lacuna in a statute through necessary implied addition to give effect to the true meaning of the Legislature.

Where there was inadvertent omission on the part of the drafter in a statute and if interpretation on such account was placed in a way to give effect to the omission, not only would it defeat the intention of the Legislature but would also result in harmful drastic consequences.ln such a case it became imperative for the Courts to fill-up the gap and to supply the omission, so to avoid the obvious destructive effect on the true intent of the Legislature. In a case of ambiguity and absurdity or inadvertent omission, the Court had to make departure from the plain meaning of the statute and should adopt a construction, which furthered and carried the object of the Legislature into effect by resorting to drawing inference therefrom. Courts had the power to fill-up a lacuna in a statute through necessary implied addition.

In cases where there was a manifest contradiction of the apparent purposes of the enactment or the literal construction was likely to lead to a result not intended by the Legislature, the court had the power to modify the meaning of the words or to supply the obvious omission due to result of inadvertent mistake on the part of the drafter. In the cases of inadvertent legislative omissions, which defeated the very object of the whole scheme of law, the Courts had the powers to supply the omissions, making the statute purpose oriented, workable and sensible, by giving effect to the legislative intent.

Al-Jehad Trust v. The Federation of Pakistan PLD 1996 SC 324 and Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1996 SC 473 ref.

Khawaja Saeed-uz-Zafar, Advocate Supreme Court for Appellant.

Raja Muhammad Irshad, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondent.

Date of hearing: 15th December, 2015.

P L D 2016 Supreme Court 214

Present: Mian Saqib Nisar, Sh. Azmat Saeed and Manzoor Ahmad Malik, JJ

Ch. NAZIR AHMED---Appellant

Versus

ALI AHMED and another---Respondents

Civil Appeal No. 363-L of 2015, decided on 23rd December, 2015.

(Against the judgment dated 13-9-2011 of the Lahore High Court, Lahore passed in R.F.A. No. 279 of 2009)

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

----S. 69---Unregistered partnership firm---Bar on filing of suit by an existing unregistered partnership firm or its partners for enforcement of rights---Principles and exceptions.

Following are the principles provided under section 69 of Partnership Act, 1932 regarding bar on filing of suit by unregistered partnership firm or its partners for enforcement of rights;

(i) Partner of an unregistered firm cannot sue the firm or any of its partners, past or present, for enforcing a right conferred by the Partnership Act, 1932 or arising out of the contract of partnership;

(ii) Unregistered firm cannot file a suit against any third person for enforcing a right arising out of a contract;

(iii) Above two disabilities also apply to a claim of set off or any other proceeding to enforce a right arising out of contract. But they did not apply to-

-- the right to sue for dissolution or for accounts of a dissolved firm, or to realize the property of a dissolved firm; or

-- the power to realize the property of an insolvent partner;

(iv) Section 69 of Partnership Act, 1932 did not affect,-

-- firms located in areas to which the Act does not extend or which are exempt from the operation of the Act;

-- proceeding, etc. not exceeding Rs.100 in value.

Sections 69(1) & (2) of Partnership Act, 1932 place a complete bar on every proceeding initiated vide a suit by an unregistered firm and its partners. However, as expressly provided by section 69(3)(a) of Partnership Act, 1932 the above rules causing disabilities are not applicable to, and registration of a firm is not necessary in, the following cases:-

• where the suit is for the dissolution of a firm;

• where the suit is for rendition of accounts of a dissolved firm;

• where the suit is for realization of the property of a dissolved firm.

Said three exceptions should be strictly contrived and applied.

Partnership Act, 1932 placed no prohibition upon an unregistered partnership making contracts either inter se the partners or with some third party, nor forbids an unregistered partnership acquiring property or assets, all section 69 does is to make a suit instituted by an unregistered partnership to recover property or enforce rights, unenforceable and precluded.

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

----S. 69(1) & (2)--- Civil Procedure Code (V of 1908), O.VII, R.11(c)---Unregistered partnership firm---Suit for declaration (simpliciter) filed by partner of an existing unregistered partnership firm against the other partner---Such suit would be barred in terms of bar contained under S. 69 of Partnership Act, 1932, and plaint should be rejected on such account under O. VII, R. 11, C.P.C.

Registration of a firm was a condition precedent and sine qua non to the right to institute a suit by or on behalf of the firm or its partner(s) as the case may be and any suit instituted against the mandate of law shall be barred, with the obvious consequences of rejection of the plaint by the Court as per Order VII, Rule 11(c), C.P.C. which provided that "where the suit appears from the statement in the plaint to be barred by any law". Section 69 of Partnership Act, 1932, was mandatory and penal in nature, thus, the bar to the suit(s) falling within the ambit of said section was absolute and unequivocal.

Usman v. Haji Omer PLD 1966 SC 328; The Australasia Bank Ltd. v. Messrs A. Ismail Ji and Sons and others PLD 1952 Lah. 314 and Prem Lata v. Ishar Das Chaman Lal AIR 1995 SC 714 ref.

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

----S. 69---Unregistered partnership firm---Bar on filing of suit by one partner of an existing unregistered partnership firm against the other partner for enforcement of rights--- Suit for specific performance of partnership deed, rendition of accounts, cancellation of documents and permanent injunction (simpliciter) filed by partner of an existing unregistered partnership firm against the other partner---Such suit (simpliciter) would be barred in terms of bar contained under Ss. 69(1) & (2) of Partnership Act, 1932---Such suit would only be competent if the unregistered partnership firm had already been dissolved or was first sought to be dissolved, as in such eventuality it would fall within the (three) exceptions provided under S.69(3)(a) of the said Act.

Relationship between partners of a firm was fiduciary in nature making them liable to provide accounts to each other. Suit for accounts shall thus be competent by the partner(s) against the other, however with the clear limitation and qualifier that the firm should have already been dissolved and if not so, be first sought to be dissolved, because an exclusive and simple suit for the rendition of accounts while the (unregistered) partnership/firm was in existence shall not be competent in view of the absolute bar contained in section 69 of Partnership Act, 1932. Suit for rendition of accounts (simpliciter) shall not fall within any one of the three exceptions provided under sections 69(3) and (4) of the Partnership Act, 1932.

In the present case, the plaintiff-partner was seeking a declaration to the effect about the existence of the firm which meant the firm was existent; for the specific enforcement of his rights under the partnership deed and performance of other partner's/defendant's duties on that basis, as also in relation to the business of the firm, again with the clear assertion that the firm was intact, and then for the rendition of accounts and the cancellation of a certain document which the plaintiff-partner claimed to be violative of his rights under the deed and for permanent injunction. All such relief(s) sought by the plaintiff-partner were not in consonance with and did not fall strictly within the exceptions created by section 69(3)(a) of Partnership Act, 1932.

Present suit fell within the purview of the clear bar contemplated by sections 69(1) and (2) of the Partnership Act, 1932, and should have been accordingly dismissed.

Usman v. Haji Omer PLD 1966 SC 328 ref.

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

----S. 69---Unregistered partnership firm---Bar on filing of suit by one partner of an existing unregistered partnership firm against the other partner for enforcement of rights--- Exceptions--- Scope and interpretation of three exceptions to the bar on filing of suit provided under S. 69(3)(a) of Partnership Act, 1932 detailed.

Section 69(3)(a) of Partnership Act, 1932 provided three exceptions to the bar on filing of suit by unregistered partnership firm or its partners for enforcement of rights. First and second exceptions, i.e., "the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm", seemed quite simple in that where the firm had not been dissolved prior to the institution of the suit, the partner(s) may sue for the dissolution of the firm simpliciter and may not ask for any other relief such as the rendition of accounts, but it did not mean that the relief of rendition etc. as ancillary, incidental or consequential relief flowing on account of dissolution could not be sought for. Therefore a composite suit in such behalf could always be filed. But where the accounts were being sought for an existing (unregistered) firm which was not yet dissolved the suit shall be barred. Firm for which the accounts were being sought must be one which was "dissolved". Thus, the condition precedent for seeking the accounts of the (unregistered) firm was the dissolution of the firm itself prior to the institution of the suit. If however the firm was not dissolved, in such an eventuality a composite suit could be filed by any of the partner(s) to seek the dissolution of the firm and at the same time ask for the rendition of accounts.

As regards the third exception seeking enforcement of "any right or power to release the property of a dissolved firm", again the condition was the same i.e. the "dissolved firm", postulating that the firm should have been dissolved as a prerequisite for the enforcement of the right of realizing the property etc. or a composite suit should be filed.

In case of a dispute between the parties as to whether a firm had been dissolved or not, where the dissolution was not being sought by the plaintiff rather the other reliefs falling within the exceptions [under sections 69(3)(a) of Partnership Act, 1932] were sought, the court shall primarily consider and determine this aspect of the matter (i.e. the dissolution of the firm) and depending upon the positive outcome in favour of the plaintiff shall consider and grant the second (or ancillary) relief(s) of rendition of accounts, or realization of property etc. as the case may be. In order to cross the bar of section 69 of Partnership Act, 1932 when it was set out as a defence by the other side the plaintiff could always seek amendment of the plaint and ask for dissolution at the appropriate stage of the proceeding. Second/ancillary relief(s) in all the cases falling within the exceptions was subservient and was circumscribed by the dissolution of the firm in the first instance and was not an independent and separate relief(s) by itself. In case the firm was not dissolved, such ancillary relief(s) being hermetically insulated thereto could not be granted and the plaint was liable to be rejected as the suit shall be barred by law (section 69 of Partnership Act, 1932).

Muhammad Farooq Qureshi Chishti, Advocate Supreme Court for Appellant.

Alamgir Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Respondents.

Ms. Ayesha Hamid, Advocate Amicus Curiae (with the permission of the Court) on Court's call.

Date of hearing: 4th December, 2015.

P L D 2016 Supreme Court 229

Present: Mian Saqib Nisar, Sh. Azmat Saeed and Maqbool Baqar, JJ

ZAKARIA GHANI and 4 others---Petitioners

Versus

MUHAMMAD IKHLAQ MEMON and 8 others---Respondents

Civil Review Petition No. 383 of 2005 in Civil Appeal No. 670 of 2002, decided on 5th January, 2016.

(Against the judgment dated 27-6-2005 of this Court passed in Civil Appeal No. 670 of 2002)

Per Mian Saqib Nisar, J; Maqbool Baqar, J agreeing; Sh. Azmat Saeed, J, dissenting.

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

----O. XXI, Rr. 89 & 90---Sale of immoveable property in execution of a decree---Application to set aside such sale either under O. XXI, R.89 or under O. XXI, R. 90, C.P.C.---Distinction between O. XXI, R.89, C.P.C. and O. XXI, R. 90, C.P.C stated.

Great deal of difference existed between O. XXI, R. 89, C.P.C and O. XXI, R. 90, C.P.C. Under Order XXI, Rule 89 a judgment debtor was not obligated to show any legal infirmity in the order of sale. He had an unqualified right to have the sale set aside provided he complied with the conditions laid down therein, namely, that he should deposit the full decretal amount in court plus 5% to be paid to the auction purchaser. The time period for making such an application was 30 days.

Order XXI, Rule 90, C.P.C. proceeded on a different basis. In order to succeed it was mandatory for the judgment-debtor to satisfy the court, on the merits, that the sale should be set aside on the ground of a material irregularity, or fraud, in publishing or conducting it. Another condition was prescribed by means of the proviso thereto which stipulated that no sale shall be set aside on the ground of irregularity or fraud unless, upon the facts proved before the Court, it was established that the judgment-debtor had sustained substantial injury by reason of such irregularity or fraud. A mere allegation was not sufficient. It has to be established that not merely an irregularity but a material irregularity had taken place, or, in the alternative, that fraud had been perpetrated in the process of carrying out the sale. Even if these conditions were complied with the judgment-debtor must satisfy the court that he had sustained a substantial injury by reason thereof. Yet another condition was prescribed by the second proviso which stated that no application shall be entertained in terms of this provision of law unless and until the judgment debtor deposited an amount equal to 20% of the sum realized at the sale or furnish such security as the court may direct.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S. 18 [since repealed]--- Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 19(2)---Civil Procedure Code (V of 1908), O. XXI, R. 66---Sale of immoveable property in execution of a decree, procedure for---Power of Banking Court to adopt any procedure for sale of immoveable property--Banking Court in the present case ordered sale of immoveable property by directing Nazir of the Court to invite sealed bids through advertisement in the daily newspapers instead of effecting sale through public auction, in terms of O. XXI, R. 66, C.P.C.---Propriety---Banking Court was entitled [in terms of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (since repealed), and also in terms of the present banking laws, i.e. Financial Institutions (Recovery of Finances) Ordinance, 2001] to follow any procedure deemed appropriate by it to effect sale of immoveable property in execution of a decree---Once an order had been passed by the Banking Court stipulating that the sale was to be made under the Civil Procedure Code, 1908 it was open to the court to switch over to any alternative procedure.

Mumtaz-ud-Din Feroze v. Sheikh Iftikhar Adil and others PLD 2009 SC 207 ref.

(c) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O. XXVI---Review of Supreme Court judgment---Plea taken by petitioner during hearing of review petition not raised either in the review petition nor in the certificate in support thereof---Such plea, being an afterthought could not be entertained.

(d) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980 O. XXVI---Review of Supreme Court judgment---Scope---Scope of a review petition was very narrow and limited and it hardly seemed appropriate to consider a legal objection which had not been taken at any stage of the proceedings on an initiative of the Supreme Court on its own.

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

----O. XXI, Rr. 66, 89 & 90---Sale of immoveable property through court auction---Sanctity of---Supreme Court observed that sanctity of court auction could only be reaffirmed if judicial sales were only set aside if it was clearly established that there had been fraud---Mere irregularity, even if material, should not suffice unless it could be shown that material loss had been caused---Where the irregularity consisted of errors by the court, or by court officials such as the Nazir, no party should be made to suffer by reason thereof.

General impression in the market was that to purchase a property in a court auction was to purchase not property but litigation. In the normal course purchasers were interested in concluding a transaction as soon as possible and thereafter to take over possession of the property and use it for whatever purposes they had in mind. Wide spread belief was that prudent buyers should refrain from participating in court auctions of property. This lead to two deeply unfortunate consequences. On the one hand the decree holders suffered since the collateral which was being attempted to be sold was eventually sold at a price which may well be far below the market value in a private sale and thus the full decretal amount could not be recovered. Even the judgment debtors suffered. Obviously it was in judgment debtors' interest to obtain the highest possible price for their property. If, however, the negative market perception continued to prevail they also would be deprived of a fair value since very few people would be interested in purchasing their property. This therefore, was a case not merely of one party's legal rights suffering but of both parties suffering. The sanctity of judicial sales needed to be reaffirmed authoritatively and definitively in the public interest as well as in the interest of decree holders and judgment debtors. This could only be done if judicial sales were only set aside if it was clearly established that there had been fraud. Mere irregularity, even if material, should not suffice unless it could be shown that material loss had been caused. Where the irregularity consisted of errors by the court, or by court officials such as the Nazir, no party should be made to suffer by reason thereof.

Hudaybia Textile Mills Limited v. Allied Bank of Pakistan Ltd. PLD 1987 SC 512; Nanhelal and another v. Umrao Singh AIR 1931 PC 33 and American Jurisprudence (2nd Edn. Vol 47, Art.178, p.440 ref.

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

----O. XXI, Rr. 89 & 90---Sale of immoveable property in execution of a decree---Objections by judgment-debtor to set aside sale---Such objections should be raised at initial stage before executing court---Legal right which inhered in a party should be asserted and ex post facto objections should not be entertained thereafter, especially when the law provided a machinery for raising objections as set out in O. XXI, Rr. 89 & 90, C.P.C.--- Where the judgment-debtor felt that he was being harmed by some ministerial order with respect to sale of his immoveable property, which was not in accordance with law, it was his clear duty to assert the same before the court rather than waiting to raise it at the stage of appeal, or further appeal, or in review, or not at all and expect the court to do it for him---Judgment-debtor could not be allowed to do nothing and then after the passage of many years in which third party interests had been created to rely on a technical objection to delay the course of justice.

(g) Words and phrases---

----"Reserve price"---Definition.

(h) Auction--

----'Government owned property'---Sale or privatization through auction---"Reserve price"---Relevance of 'reserve price' in respect of sale/privatization of Government owned property and importance of not disclosing such reserve price to public stated.

In cases of Government owned property which was being privatized a reserve price was often fixed but was deliberately not disclosed to the public at all. The fixation of the reserve price was intended to be an internal guide to the Government in taking a decision as to whether or not to carry out a sale of the property at the highest price bid. The reason it was not disclosed to the bidders was that this may actually cause a loss to the Government. This would be because bidders would assume that if the Government, on the basis of its internal evaluation of the property, had come to a conclusion as to the actual value of the property, they would be reluctant to offer amounts substantially higher. This then was the reason why fixation of a disclosed reserve price could cause a loss to the owner of the property.

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

----O. XXI, R. 66---Sale of immoveable property in execution of decree---Court auction---'Reserve price'---Scope and significance---Court had the discretion to decide whether or not to sell judgment-debtor's property and at what price keeping in mind that it had to act fairly to both the decree holder and the judgment-debtor---Reserve price in the normal course had no special significance unless judgment-debtor had an apprehension of fraud or collusion, in which case he could ask the court to have a reserve price fixed.

In auction sales it was the Court which had to decide whether it wished to sell or not to sell judgment-debtor's property and at what price. The court in taking such decision essentially struck a balance in terms of which it was fair to both the decree holder and the judgment-debtor. It however always bore in mind the fact that, after a decree had been passed, the decree holder had a crystallized legal right to get the property sold if the judgment debtor persisted in not paying the decretal amount. A judgment-debtor could not plead that prices were abnormally low at present and if the sale was delayed for some months or years a higher price could be obtained. The court would simply ensure a fair and even playing field and then proceed to sell or dispose of property at the highest price someone was prepared to pay at the prevalent time and in those circumstances. A judgment-debtor could not object to the same because when he failed to discharge his obligation to pay the decretal amount he must suffer the consequences. Insofar as potential bidders were concerned it was obvious that the Nazir's valuation of the property was not likely to be decisive one way or the other. All bidders would unquestionably carry out their independent valuation of the property before making an investment. Thus the reserve price in the normal course had no special significance. However the position would be different in cases of manifest fraud. If, for example, an auctioneer was acting in collusion with someone and proceeded to dispose of the property at a nominal price without making the requisite publicity then most certainly the court would intervene to prevent such a fraud taking place. It was for this very reason that if a judgment debtor was apprehensive of foul play he should make a specific request in advance, or as soon as practicable thereafter, to have a reserve price fixed.

Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2 Karachi 2013 SCMR 1419 ref.

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

----O. XXI, R. 66---Sale of immoveable property in execution of decree---Proclamation of sales by public auction---Error of court in not mentioning reserve price at time of issuance of sale proclamations---Objection regarding non-mentioning of reserve price not raised by judgment-debtor before High Court or Supreme Court---Effect---Auction purchaser could not be blamed and consequently non-suited for error of court especially when judgment-debtor had not raised any objection regarding reserve price before any forum---Supreme Court noted that although the auction purchaser was not at fault in the present case, however judgment-debtor had perhaps been severely treated by the Bank (decree holder), thus taking into account the broader equities of the present case from a humanitarian perspective, the ends of justice would be met if instead of the original price, in addition to the amount already deposited in court by the auction purchaser an additional amount of Rs.1,25,00,000 (one crore and twenty five lacs) was also deposited by him--- Review petition was disposed of accordingly.

Per Sh. Azmat Saeed, J; dissenting with Mian Saqib Nisar, J.

(k) Constitution of Pakistan--

----Art. 188---Review of Supreme Court judgment---Scope---Power of review stemmed from the possibility of judicial fallibility and was exercised in exceptional circumstances in the aid of justice to avoid gross injustice and in view of the necessity to avoid perpetuating such illegality, which could not be allowed to remain on the record---Review was not synonymous with an appeal and did not include rehearing of the matter in issue nor would be warranted merely because the conclusion drawn was wrong or erroneous but was limited to eventualities where something obvious had been overlooked or where there was a glaring omission or patent mistake of fact or law, which was self-evident, manifest and floating on the surface, materially affecting the outcome of the adjudicatory process---Where such material mistake or error had resulted in injustice or an illegality, the Court should not hesitate or be reluctant to make necessary corrections to undo the injury caused thereby.

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

----O. XXI, R. 85---Sale of immoveable property in execution of a decree---Terms and conditions of sale---Payment of balance consideration---Court fixing a period of one month for deposit of balance consideration---Subsequent order of court directing auction purchaser that he may take steps in terms of O. XXI, R. 85, C.P.C.---Meaning---Such order did not mean that time period of one month for depositing balance consideration had been extended by the court in any way in terms of O. XXI, R. 85, C.P.C.---Auction purchaser in the present case failed to deposit balance consideration within the stipulated period of one month---Failure to deposit the balance consideration by an auction purchaser may result in setting aside the sale. [Minority view]

Terms and conditions for sale were advertised with the approval of the Executing Court and in accordance therewith, the balance consideration was required to be paid immediately upon confirmation of the sale by the Executing Court. The sale was confirmed vide order dated 26.02.2001. However, by the same order, auction purchaser was allowed one month's time to deposit the balance consideration. A perusal of the order dated 26.02.2001 did not disclose any conscious adjudication by the Court, for granting such indulgence of extension of time beyond the period as contemplated by the terms and conditions of the sale. Be that as it may, the time allowed to auction purchaser to deposit the balance consideration was "within one month from today". Admittedly, the said balance consideration was not deposited within one month but in fact was deposited on 30.3.2001.

Time for deposit of balance consideration was not extended by the Executing Court. Executing Court had merely stated in its order that auction purchaser may take steps in terms of Order XXI, Rule 85, C.P.C. Perusal of the Order XXI, Rule 85, C.P.C. revealed that the steps to be taken in terms thereof were to deposit the balance sale price within 15 days from the date of the sale of the property. In the present case, sale was confirmed by the Court on or before 26.02.2001. The only other steps to be taken or privilege advanced to the auction purchaser would be to take advantage of any set-off, if permitted. In such circumstances, it was very difficult to accept that in fact the period of one month to deposit the balance consideration set forth by the court in its order had been extended. Auction purchaser never argued that a prayer for extension of time had been made. There was no clear and unequivocal order passed to the effect that such time was extended for deposit of the balance consideration.

Failure to deposit the balance consideration by an auction purchaser may result in setting aside the sale.

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

----O. XXI, R. 66---Sale of immoveable property in execution of decree---'Reserve price'---Scope and significance---In sale of immovable properties under O. XXI, C.P.C., the reserve price must be fixed and the absence thereof may vitiate the entire process. [Minority view]

Lt. Col. Nawabzada Muhammad Amir Khan and others v. The Controller of Estate Duty, Government of Pakistan, Karachi and others PLD 1962 SC 335 and Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Petitioners.

Khalid Anwar, Senior Advocate Supreme Court for Respondent No.1.

Date of hearing: 3rd November, 2015.

P L D 2016 Supreme Court 269

Present: Mian Saqib Nisar, Iqbal Hameedur Rahman and Tariq Parvez, JJ

Justice RAJA JILAL-UD-DIN and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Human Rights, Government of Pakistan, Islamabad and others---Respondent

Constitutional Petitions Nos.72 and 73 of 2015, decided on 26th January, 2016.

(a) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009--

----Art. 60(8)---Constitution of Pakistan, Art. 184(3)---Gilgit-Baltistan Supreme Appellate Court---Chief Judge and Judges, office of---Fixed tenure of office---Question of public importance---Scope--­Constitutional petition under Art. 184(3) of the Constitution filed by (serving) Chief Judge and Judge of Gilgit-Baltistan Supreme Appellate Court challenging the Constitutionality of their fixed tenure of office provided under Art.60(8) of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---Maintainability-Petitioners had alleged violation of their personal rights i.e. individual Fundamental Rights---Present case did not involve any question of public importance with reference to enforcement of any of the fundamental right conferred by Chap. I of Part II of the Constitution, thus jurisdiction of the Supreme Court under Art.184(3) of the Constitution could not be invoked--- Constitutional petitions were dismissed accordingly.

Present issue related to the personal rights of the two petitioners (serving Chief Judge and Judge of Gilgit-Baltistan Supreme Appellate Court) in respect of office they were holding.

For the purpose of qualifying the test of "question of public importance", the issue involved in a matter before the Supreme Court under Article 184(3) of the Constitution must belong and should concern the public at large, the State or the nation. If the proposition/matter involved the alleged violation of the Fundamental rights of an individual or a group of individuals, how so large it might be, but had no concern and effect on the public, then it could not be termed as "question of public importance".

Abdul Wahab v. HBL 2013 SCMR 1383 ref.

Person who had been appointed as Chief Judge and Judge of the Supreme Appellate Court of Gilgit-Baltistan in terms of Article 60(5) of the Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 ("the Order"), his term of office had to be governed under Article 60(8) of the Order. In no manner such appointment would attract the original jurisdiction of Supreme Court under Article 184(3) of the Constitution because no question of public importance in the first instance and that too with reference to enforcement of any of the fundamental right conferred by Chapter I of Part. II of the Constitution was involved.

Cause of grievance of petitioners, if any, could not be specifically highlighted and brought into the purview of anyone of the fundamental rights of any of the petitioners. Even otherwise, grievance of petitioners was not a question of public importance because it would be touching upon their terms of office provided under the Order. No force was found in present petitions for invoking the jurisdiction of the Supreme Court under Article 184(3) of the Constitution. Constitutional petitions were dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Scope---Question of public importance---Scope--­Supreme Court, while invoking its jurisdiction under Art.184(3) of the Constitution was always very careful both ways i. e. efforts were made to exercise its jurisdiction wherever it found a question of law of public importance with reference to the enforcement of any of the Fundamental Rights under the Constitution, but the Court also remained careful not to exercise such jurisdiction where it found that either the question involved was not of public importance or it had no reference to the enforcement of any of the Fundamental Rights.

Al-Jehad Trust v. President of Pakistan PLD 2000 SC 84; Anwar Aziz v. Federation of Pakistan PLD 2001 SC 549 and Al-Jehad Trust v. Lahore High Court 2011 SCMR 1688 ref.

Asaf F. Vardag, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in both petitions)/

Nemo for Respondents (in both cases).

Date of hearing: 26th January, 2016.

P L D 2016 Supreme Court 276

Present Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Umar Ata Bandial, JJ

The STATE---Appellant

Versus

ANWAR SAIF ULLAH KHAN---Respondent

Criminal Appeal No.264 of 2006, decided on 20th January, 2016.

(Against the judgment dated 13-6-2002 passed by the Lahore High Court, Lahore in Criminal Appeal No.1912 of 2000)

Per Asif Saeed Khan Khosa, J; Iqbal Hameedur Rahman, J. agreeing; Umar Ata Bandial, J. dissenting. [Majority view]

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

----S. 9(a)(vi) & 14---Corruption and corrupt practices---Misuse of authority so as to gain any benefit or favour for oneself or any other person---Actus reus and Mens rea---Burden of proof---Presumption against accused accepting illegal gratification---Scope---In a case involving a charge under section 9(a)(vi) of the National Accountability Ordinance, 1999 the prosecution had to make out a reasonable case against the accused person first and then the burden of proof shifted to the accused person to rebut the presumption of guilt in terms of S.14(d) of the said Ordinance---Mere procedural irregularity in the exercise of jurisdiction may not amount to misuse of authority so as to constitute an offence under section 9(a)(vi) of the National Accountability Ordinance, 1999---Charge of misuse of authority under such law may be attracted where there was a wrong and improper exercise of authority for a purpose not intended by the law, where a person in authority acted in disregard of the law with the conscious knowledge that his act was without the authority of law, where there was a conscious misuse of authority for an illegal gain or an undue benefit and where the act was done with intent to obtain or give some advantage inconsistent with the law---Misuse of authority meant the use of authority or power in a manner contrary to law or reflecting an unreasonable departure from known precedents or custom and also that mens rea or guilty mind, in the context of misuse of authority, would require that the accused person had the knowledge that he had no authority to act in the manner he acted or that it was against the law or practice in vogue but despite that he issued the relevant instruction or passed the offending order.

Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63l Mansur-ul-Haue v. Government of Pakistan PLD 2008 SC 166; The State and others v. m. Idrees Ghauri and others 2008 SCMR 1118; Wahi Bakhsh Baloch v. The State 2014 SCMR 985; Aftab Ahmed Khan Sherpao, Ex-Chief Minister of N.-W.F.P. v. The State PLD 2001 Pesh. 80; Maj. (Retd.) Tariq Javed Afridi v. The State PLD 2002 Lah. 233 and Muhammad Hayat and 2 others v. The State PLD 2002 Pesh. 118 ref.

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

----S. 9(a)(vi) & 15---Ehtesab Ordinance(CXI of 1996), S. 3(1)(d) [since repealed]---Oil and Gas Development Corporation Ordinance (XXXVII of 1961), S.6 [since repealed]---Constitution of Pakistan, Arts. 18 & 25---Appeal against acquittal---Re-appraisal of evidence---Public Sector Corporation---Political appointments---Political patronage---Misuse and abuse of authority---Accused-Federal Minister making political appointments in a Public Sector Corporation by forcing his will upon the Chairman of the Corporation---Accused relaxing rules of the Corporation to accommodate political appointees without specifying the need for such relaxation---Improper exercise of authority for a purpose not intended by the law---Political appointments in Public Sector Corporation made against the interest of the Corporation to appease Parliamentarians could not be approved---Collaboration between Ministers and legislators and the bureaucracy for political favours in the public sector destroyed merit, which weakened the State structure and promoted injustice in the society---Accountability Court had rightly convicted and sentenced the accused under S.3(1)(d) of the Ehtesab Ordinance, 1996 [since repealed] [read with section 35 of National Accountability Ordinance, 1999] and disqualified him from contesting an election or holding a public office for a specified period in terms of S.15 of the National Accountability Ordinance, 1999---Supreme Court issued appropriate directions in such regard.

Precise allegation against the accused was that in his capacity as the Federal Minister he had misused his authority by forcing his will upon the Chairman of Oil & Gas Development Corporation ("Corporation") to get 145 persons appointed to various jobs in the Corporation to please his political friends in the Parliament, and that accused relaxed the relevant rules for such appointments.

Plea taken by accused was that there was already in existence a prevailing practice whereby the Federal Minister could grant the requisite approval for appointments after relaxation of the rules as a special case; that following a prevalent practice negated the element of mens rea/criminal intent on his part which was crucially important for transforming his actus reus into a criminal offence. Accountability Court, however, convicted the accused for an offence under S.3(1)(d) of the Ehtesab Ordinance, 1996 [since repealed] read with S.35 of the National Accountability Ordinance, 1999 and sentenced the accused to simple imprisonment for one year and a fine of Rs.50,00,000. Accountability Court also passed a consequential order under section 15 of the National Accountability Ordinance, 1999 disqualifying the respondent from contesting an election or holding a public office for a specified period. High Court acquitted accused of the charge by finding that the prosecution had failed to prove any criminal intent on his part.

Contents of the relevant summary that was moved for the offending 145 appointments showed that that the requirement vis-à-vis appointments was that of the Parliamentarians (friends of accused) and not of the Corporation; that the accused had been resisting the pressure in such regard for some time in the past because the Corporation did not need any such appointments; that a list of candidates had already been approved by the accused before it was to be sent to the Chairman of the Corporation for issuing the letters of appointment, which was nothing but discriminatory; that no selection process or consideration of qualifications or merit was involved before issuance of the letters of appointment; that it was quite evident that in the matter of such appointments the accused was motivated to please the Parliamentarians rather than looking after the interests of the Corporation; that the initiative for the appointments had come from the accused and not from the Chairman of the Corporation and also that in order to release the pressure upon him from the Parliamentarians the accused had decided to force his will upon the Competent Authority, i.e. Chairman of the Corporation in the matter of such appointments.

Perusal of note forwarded by the Chief Personnel Officer of the Corporation to the Chairman, showed that the former had highlighted that the appointments in the Corporation had to be made against advertised posts after necessary tests and interviews and that the "directives" of the accused in the matter of appointments could only be given effect to after relaxation of the rules as a special case. This clearly showed that merit and open competition had to be sacrificed and bulldozed if the wishes of the accused were to be accommodated.

Record of present case showed that the Chairman of the Corporation had put up a (resistive) note before the accused informing him that the Corporation did not need any new employee but on the same date, the accused relaxed the rules, the relevant file travelled back to the Chairman and on that very date letters of appointment were issued in favour of all the 145 candidates who had already been approved by the accused. Record of present case confirmed that the letters of appointment were also sent on the same date, not on the addresses of the appointed candidates but were sent to the Principal Staff Officer of the accused himself who was to deliver those letters of appointment to the respective Parliamentarians who had recommended the relevant candidates. For facilitating the appointment of the pre-approved candidates the accused had approved relaxation of some rules without anybody ever identifying the relevant rules being relaxed and such relaxation of rules had been approved by the accused as a special case without ever recording what was the basis or need for treating the matter as a special case.

Present case was not a case of a mere procedural irregularity on the part of the accused but was a clear case of misuse of authority by the accused, a case of a wrong and improper exercise of authority for a purpose not intended by the law, a case of a person in authority acting in disregard of the law with the conscious knowledge that his act was without the authority of law, a case where there was a conscious misuse of authority for an illegal gain or an undue benefit and a case where the authority was exercised with intent to obtain or give some advantage inconsistent with the law. Accused willfully bulldozed the regular procedure, forcing his will upon another vested with jurisdiction, approving/making appointments against the interests and requirements of the relevant institution and appeasing his political friends at the cost of overburdening the workforce and the budget of the institution he was meant to serve and protect.

Exercise of authority by the accused in making the offending appointments was nothing short of willful and deliberate circumvention of the legal intent and process amounting to abuse and misuse of authority establishing his mens rea, guilty mind and criminal intent for the purposes of the provisions of S.9(a)(vi) read with S.14(d) of the National Accountability Ordinance, 1999.In getting 145 persons appointed to various jobs in the Corporation the accused had ignored the mandate of Arts.18 and 25 of the Constitution. Prosecution had succeeded in establishing a reasonable case of misuse of authority against the accused under S.9(a)(vi) of the National Accountability Ordinance, 1999 and the accused had surely failed to rebut the presumption contemplated by section 14(d) of the said Ordinance.

Supreme Court set-aside order of acquittal passed by the High Court, and restored the conviction and sentence recorded by Accountability Court with the modification that the sentence of fine passed against the accused was remitted as the criminal case in hand was about two decades old, the accused had already undergone his entire sentence of imprisonment and the period of his disqualifications under section 15 of the National Accountability Ordinance, 1999 had also expired by now.

Supreme Court directed that the Chairman, National Accountability Bureau to bring present judgment to the notice of all the Federal and Provincial Ministers and the Secretaries of all the Federal and Provincial ministries, divisions and departments in the country who may stand warned that if they or their subordinates, in terms of the provisions of S.9(a)(vi) of the National Accountability Ordinance, 1999, misused their authority so as to gain any benefit or favour for themselves or any other person, or rendered or attempted to render or willfully failed to exercise their authority to prevent the grant or rendition of any undue benefit or favour which they could have prevented by exercising their authority then, unless the contrary was established in clear terms, criminal intent on their part, for the purposes of the provisions of S.14(d) of the National Accountability Ordinance, 1999, shall from now onwards be more readily inferred than was done by the courts in the past.

Supreme Court observed that doling out jobs in the public sector on the basis of corruption, nepotism, favouritism, lack of due process and misuse of authority had remained a bane of our society for some time; that on many occasions the Supreme Court has emphasized the importance of transparency, merit and open competition in such respect; that it must be realized and appreciated by all concerned that Ministers and legislators exerting pressure upon civil servants for political favours in the public sector and a bureaucracy ready to oblige them formed a deadly alliance and their unholy collaboration worked as a recipe for destruction of merit, weakening of the State structure and promotion of injustice in the society; that a society which allowed merit to be sacrificed at the altar of political patronage, which did nothing to prevent weakening of the State structure and which closed its eyes to injustice was doomed to self-destruct; that it was, therefore, about time that the National Accountability Bureau and the courts of the country came down heavily upon such predators of a strong, just and decent society.

In re; Abdul Jabbar Memon and others 1996 SCMR 1349; Mushtaq Ahmad Mohal v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043; Government of N.-W.F.P. through Secretary, Forest Department, Peshawar and others v. Muhammad Tufail Khan PLD 2004 SC 313; Tariq Aziz-ud-Din and others: in re 2010 SCMR 1301; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159;Contempt proceedings against Chief Secretary, Sindh and others: In the matter of 2013 SCMR 1752 and Syed Mubashir RazaJaffri and others v. Employees Old-Age Benefit Institutions [EOBI) through Presiden tof Board, Board of Trustees and others 2014 SCMR 949 ref.

(c) Constitution of Pakistan ---

----Art. 185---Appeal against acquittal---Principles and scope---Supreme Court was generally slow in interfering with a judgment of acquittal passed by a court below but at the same time it was equally true that where acquittal of an accused person by a court below had come about on the basis of considerations which did not commend themselves for approval on the legal plane, such judgment of acquittal could not be sustained and this was more so where the record of the case had not even been read by the court below correctly or properly.

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

----S. 9(a)(vi)---Political appointments---Misuse of authority---Appointment, posting, transfer or promotion of a person in a ministry, division or department---Federal/Provincial Ministers or a member of Parliament or Provincial Assembly, under the Federal and Provincial Rules and Business, had no direct role in such regard, and any interference by them in such matters would be unlawful and of no legal effect.

Under the Federal and Provincial Rules of Business a Federal Minister, a Provincial Minister or a member of the Parliament or of a Provincial Assembly had no direct role whatsoever in the matters of appointment, posting, transfer or promotion, etc. of a person in the concerned ministry, division or department. Under the said Rules of Business a Federal Minister, a Provincial Minister or a member of the Parliament or of a Provincial Assembly had no role even in the exercise of executive authority of the relevant ministry, division or department vesting in some officer of such ministry, division or department. Interference of a Minister or a member of the legislature in such matters would be without lawful authority and of no legal effect.

Administrator, Punjab Dairy and Poultry Development Board and 3 others v. A.G. Afzal 1988 SCMR 1249; Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab Lahore and others PLD 1990 SC 1070; Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others PLD 1991 SC 1118; Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287; Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad PLD 2005 SC 63; Mahmood Bakhsh, etc. v. Secretary Irrigation, Government of Punjab, Lahore and others 1986 CLC 286: Muhammad Rashid v. Azad Jammu & Kashmir Government through Chief Secretary and 20 others PLD 1987 SC(AJ&K) 60; Ch. Muhammad Zaman and others v. Azad Government of the State of J & K and others (PLD 1987 (AJ&K) 52); Masti Khan v. The State PLD 1987 Lah. 212: Muhammad Zaman and 8 others v. The Minister for Consolidation and 3 others PLD 1988 Lah. 416: Abdul Rauf v. Director, Local Government and Rural Development, Sargodha and another 1989 PLC (C.S.) 436; Ashnaghar v. Secretary Education, Government of NWFP, Peshawar and others 1989 PLC (C.S.) 439; Muhammad Ayub and 6 others v. Minister for Education, Punjab Province, Lahore and 2 others 1990 PLC (C.S.) 278: Shagufta Bibi v. Deputy Education Officer (Women). Tehsil and District Sahiwal 1990 PLC (C.S.) 345: Muhammad Afzal v. District Education Officer (Female), Rahimyar Khan and 2 others 1989 PLC (S.C.) 677; Muhammad Asif v. Secretary Government of Punjab and others 1990 PLC (S.C.) 257 and Abdul Malik and others v. Government of Balochistan through Secretary, Home and Trib al Affairs Department and others 2013 PLC (C.S.) 736 ref.

Per Umar Ata Bandial, J; disagreeing with Asif Saeed Khan Khosa, J. [Minority view]

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

----S. 9(a)(vi) & 15---Ehtesab Ordinance (CXI of 1996), S. 3(1)(d) [since repealed]---Holders of Representative Offices (Punishment for Misconduct) Order (P.P.P.O. 16 of 1977), S. 3(2)(e) [since repealed]---Oil and Gas Development Corporation Employees (Service) Regulations, 1994, Reglns. 1(3) & 1(4) [since repealed]---Oil and Gas Development Corporation Ordinance (XXXVII of 1961), S. 6 [since repealed]---Constitution of Pakistan, Art. 12---Appeal against acquittal---Re-appraisal of evidence---Public Sector Corporation---Political appointments---Temporary employees appointed in a Public Sector Corporation on the directions of accused Federal-Minister after relaxation of relevant service rules---Accused was convicted under Ehtesab Ordinance, 1996, [since repealed], which was not in force at the time of the alleged offence---Service rules/regulations of Corporation relaxed by the accused were not applicable to the temporary appointments made in the present case---Absence of actual or conscious knowledge on part of accused that temporary appointments or relaxation of rules was illegal---Conduct of accused in appointments was certainly reckless and irresponsible but not 'corrupt', 'dishonest' or 'illegal'---Neither financial loss to Corporation nor any illegal gratification/advantage received by the accused on account of temporary appointments was alleged---High Court had rightly acquitted the accused of the charge.

Allegation against the accused was that in his capacity as the Federal Minister he had misused his authority by directing the Chairman of Oil & Gas Development Corporation ("Corporation") to get 145 persons appointed to various jobs in the Corporation to please his political friends in the Parliament, and that accused relaxed the relevant service rules of the Corporation for such appointments. Accountability Court convicted the accused under S.3(1)(d) of the Ehtesab Ordinance, 1996 [since repealed] read with section 35 of the National Accountability Ordinance, 1999 and also passed a consequential order under S.15 of the National Accountability Ordinance, 1999 disqualifying the respondent from contesting an election or holding a public office for a period of ten years. High Court acquitted accused of the charge by finding that the prosecution had failed to prove any criminal intent on his part.

The Ehtesab Ordinance, 1996 was promulgated on 18.11.1996. Said Ordinance repealed, inter alia, the Holders of Representative Offices (Punishment for Misconduct) Order, 1997 [President's (Post Proclamation) Order No.16 of 1977]. Case record showed 16.10.1996 as the date when the accused approved relaxation of (service) rules and thereby allegedly committed the offence charged. Although the Accountability Court has convicted the accused for the offence committed under section 3(1)(d) of the Ehtesab Ordinance, 1996 which came into force on 18.11.1996, however under the provisions of Article 12 of the Constitution, the applicable law containing the offence constituted by the alleged delinquent acts of the accused was section 3(2)(e) of the Holders of Representative Offices (Punishment for Misconduct) Order, 1977.

Prime Minister and Cabinet of which the accused was a member was dismissed by the then President of Pakistan on 05.11.1996. Notwithstanding the fact that 'offers of appointment' were issued on 16.10.1996 in favour of 145 persons short listed by the accused's office, only 3 persons were given employment before the dismissal of the Federal Cabinet on 05.11.1996. Said three persons were granted temporary employment as was evident from their separate notifications of joining the Corporation. Importantly the Oil and Gas Development Corporation Employees (Service) Regulations, 1994 did not apply to temporary employees of the Corporation.

Prosecution, in the present case, did not allege that as a result of the disputed appointments, the accused has procured any advantage for himself. Instead, it was alleged that temporary employment for 3 persons and for 24 persons employed by mechanical act of the Chairman of the Corporation was the 'valuable thing' secured by the accused. The financial gain representing remuneration received by the said temporary employees had not been challenged as being excessive through any evidence.

Financial loss to the Corporation on account of the temporary appointments obtained by the accused was not alleged nor that he received illegal gratification or other advantage. As such the accused's act did not satisfy the threshold of being "corrupt" which was common and necessary ingredient of the offences under section 3(1)(d) of the Ehtesab Ordinance, 1996 and under section 3(2)(e) of the Holders of Representative Offices (Punishment for Misconduct) Order, 1997. Therefore, accused could not be said to have acted by corrupt means to cause the outcome of temporary appointments. Prosecution had also not alleged that the accused committed any fraudulent, devious, surreptitious, false or misleading act to obtain the disputed appointments. In fact, he acted brazenly and recklessly to disregard the reservations expressed by the Chairman of the Corporation but heeded his advice to presumptuously relax the rules without considering the need for or the result of doing so. Accused could be said to have acted most irresponsibly, perhaps haughtily, to secure his wishes because he did not even consider the reservations about overstaffing and financial burden expressed by the Chairman of the Corporation. Irrespective of the accused's audacious style and conduct, his approach was forthright and direct; he assumed responsibility on record for what he authorized, namely, appointments made after relaxation of rules. Consequently, the accused acted in a straightforward manner without being dishonest.

In the absence of the accused's conduct being corrupt or dishonest, the third element of an act constituting the offence alleged against him, namely, its illegality, could also not be presumed merely from the impunity or the audacity with which he took action for obtaining the desired appointments. Illegality of accused's actions must stem from a violation of express law governing temporary employment in the Corporation, however there was no law on temporary appointments in the present case as the Service Regulations of the Corporation did not apply to the temporary appointments. Neither under the Oil and Gas Development Corporation Ordinance, 1961, nor the Rules of Business of the Federal Government, 1973 did a Federal Minister have power to relax rules for recruitment of employees of the Corporation. Also relaxation of rules by the accused for temporary employment was meaningless as there were no service rules in the field at the relevant time. By the mirage of relaxation of unspecified and non-existent rules, the Chairman of the Corporation managed to protect himself against any fallout from such appointments, considering that the Federal Government was in the doldrums and was ousted less than three weeks thereafter. No doubt that the accused was callous and cursory in his style, but one could not blame him for trusting the suggestion of the Chairman, which was actually false. Accused was not conscious of committing any illegality by relaxing the rules because in his mind the Chairman invited him to do so. Purpose of seeking handpicked appointments as being illegal appeared to have never crossed the accused's mind.

Where an accused had followed advice of a competent authority that was actually against the law, there was no mens rea for the offence. Conscious knowledge of an accused that a particular act was illegal was necessary to make him criminally culpable for doing such act. The facts of the present case did not disclose actual or conscious knowledge of the accused that temporary appointments in the Corporation or that relaxation of rules was illegal. Weighed on the touchstone of good governance and responsible leadership, there was no doubt that the accused had acted wrongly. There was also no doubt that if the appointments made at his instance were to be challenged in a court of law, these would be struck down as political appointments. However, the fact remained that the adoption by the accused of a means suggested by the Chairman, which enjoyed past precedent and practice, namely, relaxation of rules, did not in the absence of accused's knowledge of illegality or willful commission of an illegal act amount to an offence under section 3(1)(d) of the Ehtesab Ordinance, 1996 or section 3(2)(e) of the Holders of Representative Offices (Punishment for Misconduct) Order, 1997.

The State v. M. Idrees Ghaui 2008 SCMR 1118 and Wahid Bakhsh Baloch v. The State 2014 SCMR 985 ref.

Reversal of a finding of acquittal of an accused was resorted exceptionally by an Appellate Court. Said principle was a strong additional ground available under the law to exercise restraint in relation to attaching criminal liability to the conduct of the accused in the present case. High Court had rightly acquitted accused of the charge.

Abdul Jabbar Memon's case 1996 SCMR 1349 ref.

Appeal against acquittal was dismissed accordingly with the direction that enforcement of a prescribed process was required for making temporary employment in the service regulations of autonomous State owned bodies and enterprises incorporating the principles laid down by different judicial precedents; that once there was positive law to test the legality of executive action granting temporary employment, then a reliable threshold for ascertaining criminal liability for violation thereof would become available.

Abdul Jabbar Memon's case 1996 SCMR 1349; Munawar Khan's case 1993 SCMR 1287 and Mubashir Raza Jaffri v. EOBI 2014 SCMR 949 ref.

Per Umar Ata Bandial, J.

(f) Constitution of Pakistan--

----Art. 185---Appeal against acquittal---Principles and scope---Reversal of a finding of acquittal of an accused was resorted exceptionally by an Appellate Court---Such an order was passed where the finding of the acquitting Court was found to be perverse, shocking or impossible.

Ghulam Sikandar v. Mamarraz Khan PLD 1985 SC 11 ref.

M. Bashir Kiyani, Deputy Prosecutor-General Accountability for the State.

Khawaja Harris Ahmed, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record in person for Respondent.

Dates of hearing: 8th, 13th, 14th, 20th and 21st January, 2015.

P L D 2016 Supreme Court 347

Present: Asif Saeed Khan Khosa, Mushir Alam and Sardar Tariq Masood, JJ

TARIQ MEHMOOD---Appellant

Versus

NASEER AHMED and others---Respondents

Criminal Appeal No.135 of 2013, decided on 26th January, 2016.

(Against the judgment dated 9-3-2007 passed by the Peshawar High Court, Abbottabad Bench in Criminal Revision No.27 of 2006)

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

----S. 345(1) & (2)---Compounding of offence with and without permission of court---Principles---Section 345(1), Cr.P.C. enlisted the offences which may be compounded by the specified persons without intervention of any court---Compounding in such cases took effect from the moment the compromise was completely entered into by the parties, the relevant court which was to try the offence in issue was left with no jurisdiction to refuse to give effect to such a compromise and a party to such a compromise could not resile from the compromise at any subsequent stage of the case---On the other hand S.345(2), Cr.P.C. dealt with cases in which the offences specified therein could be compounded only with the permission of the court and in all such cases any compromise arrived at between the parties on their own at any stage was not to take effect at all unless the court permitted such compromise to be given effect to and the relevant court for the purpose was the court before which prosecution for the relevant offence was pending.

Rana Awais and others v. S.H.O. Police Station People's Colony, Faisalabad and others 2001 PCr.LJ 241; Naurang Rai v. Kidar Nath and another (29 Cr.LJ 1928), In re M.S. Ponnuswamy Ayyar (AIR 1937 Mad. 825), Thunki w/o Deoman and another v. Bajirao Sitaram Dhoke AIR 1956 Nag. 161; State of U.P. v. Nanhey AIR 1968 Allahabad 394 and Muhammad Akram v. Abdul Waheed and 3 others 2005 SCMR 1342 ref.

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

----Ss. 345(2), (6), (7) & 498---Penal Code (XLV of 1860), S.302(b)---Qatl-i-amd---Compromise without permission of court---Scope---Offence falling with in the ambit of S.345(2), Cr.P.C.---Compounding of such offence at the stage of bail could not be given effect to at the stage of trial when at the stage of trial the compounding had been resiled from by legal heirs of the deceased---Neither the legal heirs of the deceased nor the Commission appointed by court appeared before Trial Court in support of the compromise, thus, no verified, valid or subsisting compromise existed before the Trial Court during the stage of trial for according the requisite permission to compound the offence in terms of the requirements of S.345(2), Cr.P.C.

Accused was granted ad interim pre-arrest bail by Trial Court. During the pendency of his pre-arrest bail application a compromise deed was executed between the legal heirs and accused wherein it had been stated that the heirs of deceased had no objection to confirmation of the accused's ad interim pre-arrest bail or to his acquittal in the main case. Trial Court appointed a Commission for recording of statements of the heirs of deceased for confirming the factum of compromise between the parties. Commission recorded a joint statement of the heirs of deceased and in that statement the heirs of the deceased maintained that they had no objection to confirmation of the appellant's ad interim pre-arrest bail or to his acquittal. Accused's ad interim pre-arrest bail was confirmed by the Trial Court. Upon completion of the investigation of the case a challan against accused was submitted before the Court of Session for trial. Application was submitted by the accused under section 345(6), Cr.P.C. seeking his acquittal in the case on the basis of the compromise already entered into by the parties at the stage of bail but the Sessions Judge, dismissed the said application because by that time the heirs of the deceased had resiled from the compromise.

Issue in the present case was whether or not compounding of a criminal offence at the stage of bail could still be given effect to at the stage of trial when at the stage of trial the compounding had been resiled from by one of the parties.

Offence involved in the present case was that under section 302, P.P.C. which fell squarely within the ambit of section 345(2), Cr.P.C. and, therefore a compromise arrived at between the parties at the stage of bail when even the Challan had not been submitted before trial Court, could not validly have been accepted as a compromise and the trial court could not have accepted any such compromise when before the trial court the heirs of the deceased were not willing to abide by the earlier agreement entered into by them with the accused. Apart from that there was no verification of the list of heirs of the deceased available before the trial court, the heirs of the deceased had not appeared before the trial court for getting their statements recorded in support of the compromise, the Commission before whom the heirs of the deceased had acknowledged the factum of compromise had not appeared before the trial court and, thus, there was no verified, valid or subsisting compromise before the trial court for according the requisite permission to compound the offence in terms of the requirements of section 345(2), Cr.P.C. If the requirements of section 345(2), Cr.P.C. did not stand fulfilled then, as expressly forbidden by section 345(7), Cr.P.C., the trial court could not have accepted the application filed by the accused for his acquittal on the basis of the claimed compromise. Appeal was dismissed accordingly.

Muhammad Akram v. Abdul Waheed and 3 others 2005 SCMR 1342 ref.

Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and others 1998 SCMR 466; Manzoor Ahmed and another v. The State and 2 others PLD 2003 Lah. 739 and Mst. Maqsooda Bibi v. Amar Javed and others 2002 PCr.LJ 713 no more holding the field.

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

----S. 345(2)---Penal Code (XLV of 1860), Ss. 304, 309 & 310---Waiver (afw) of right of qisas in Qatl-i-amd---Compounding of qisas (sulh) in Qatl-i-amd---Principles---Whether compounding of offence under S.345(2), Cr.P.C, related to compounding under S.310, P.P.C and not to waiver under S.309, P.P.C.---Provisions of Ss.309 & 310, P.P.C. were relevant only to cases of Qisas and not to cases of Ta'zir and a case was to be a case of Qisas only where the provisions of S.304, P.P.C. stood attracted, i.e. where the accused person confessed his guilt before the Trial Court or where Tazkiya-tul-shahood of the witnesses was conducted by the Trial Court before trial of the accused person as required by Art.17 of the Qanun-e-Shahadat, 1984---Both such steps required to make a case one of Qisas were relevant to a Trial Court and, thus, even waiver or compounding provided for in Ss.309 & 310 were relevant to a Trial Court and not to any stage before the case reached the Trial Court.

Zahid Rehman v. The State PLD 2015 SC 77 ref.

Mushtaq Ali Tahirkheli, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Nemo for Respondent No.1.

Mian Arshad Jan, Additional Prosecutor-General, Khyber Pakhtunkhwa for the State.

Date of hearing: 26th January, 2016.

P L D 2016 Supreme Court 358

Present: Mian Saqib Nisar, Iqbal Hameedur Rehman and Tariq Parvez, JJ

Sahabzadi MAHARUNISA and another---Appellants/Petitioners

Versus

Mst. GHULAM SUGHRAN and another---Respondents

Civil Appeals Nos. 1176 and 1177 of 2015, and Civil Petition No.1428-L of 2015.

(Against the order dated 11-6-2015 of the Lahore High Court, Bahawalpur Bench passed in C.M. Nos. 385, 388/2009 and 2051 of 2015)

(a) Words and phrases ---

----"Merge" and "merger"---Definitions.

Chambers English Dictionary 7th Edn.; Oxford English Dictionary (1933); Corpus Juris Secoundum (1936) and The Constitution of India by Prof. S.R.Bhansali ref.

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

----S.12(2)---Application under S.12(2), C.P.C, filing of---Forum---"Court which passed the final judgment, decree or order"---Principles---For all legal purposes, it was the final decree/order of the last Court in the series, even if such decree etc. be of affirmation, which had to be executed and should be considered and treated to be the final judgment/decree/order in terms of S.12(2), C.P.C. for approaching the forum---Notwithstanding the reversal or modification of the decree/order, if the decree/order of a forum below, which had been affirmed by the higher forum on merits, both on the points of the facts and the law involved therein, it shall be that decree/order, which attained the status of the final decree/order etc. within the purview of S.12(2), C.P.C.

Nasrullah Khan and others v. Mukhtar-ul-Hassan and others PLD 2013 SC 478; F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 and Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 ref.

Jeydeb Agarwala v. Baitulmal Karkhana Ltd. PLD 1965 SC 37 per incuriam.

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

----S. 12(2)---Constitution of Pakistan, Art. 185(3)---Application under S.12(2), C.P.C, filing of---Forum---"Court which passed the final judgment, decree or order"---Principles---Where the Supreme Court merely reaffirmed a judgment or order of a High Court by refusing leave to appeal the final judgment in terms of S.12(2), C.P.C. would be of the High Court and not of the Supreme Court and if the Supreme Court reversed a judgment of a High Court and recorded a finding on question of fact or law contrary to what was held by the High Court, the final judgment or order would be of the Supreme Court for the purpose of S.12(2), C.P.C.

Muhammad Yousaf through Legal Heirs and others v. Noor Din and others PLD 2002 SC 391 ref.

(d) Judgment ---

----Merger, doctrine of---Scope---Judgment of a lower forum merging into judgment of a higher forum---Doctrine of merger was applicable to the reversal and modification cases and also to all those cases in which the judgment etc. of a lower forum had been affirmed in appeal or revision by a higher forum(s) (subject to certain exceptions)

Commissioner of Income Tax, Bombay v. M/s Amritial Bhogilal and Co. AIR 1958 SC 868; Collector of Customs, Calcutta v. East India Commercial Co. Ltd. Calcutta and others AIR 1963 SC 1124; Lakshminarayan Guin and others v. Niranjan Modak [(1985) 1 SCC 270]; Kunhayammed and others v. State of Kerala and another AIR 2000 SC 2587 and Bakshi Dev Raj and another v. Sudheer Kumar AIR 2011 SC 3137 ref.

(e) Constitution of Pakistan---

----Art. 199---Merger, doctrine of---Applicability---Constitutional jurisdiction of High Court---Decision of lower forum affirmed by High Court in its writ (constitutional) jurisdiction---Doctrine of merger extend to the writ jurisdiction of the High Court(s) where the decisions of the lower fora, such as Tribunals and Special Courts etc. when challenged had been affirmed by the court in exercise of its constitutional jurisdiction.

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

----S. 12(2)---Application under S.12(2), C.P.C, filing of---Forum---"Merger, doctrine of"---Scope---Appeal/revision/writ accepted, and the judgment etc. (of lower forum) reversed, varied, modified or affirmed---Where the remedy of appeal/revision was provided against a judgment etc. or a remedy of writ was availed, the appellate/revisional/ constitutional forum recorded reasons on the consideration of the issues of law and/or fact, the judgment etc. of the subordinate court/forum would merge into the decision of the appellate court etc. irrespective of the fact that such judgment reversed, varied or affirmed the decision of the subordinate court/forum---Decision of appellate court etc. would be operative and capable of enforcement in such a case on the principle of merger---Application under S.12(2) of the C.P.C., in such circumstances, would be maintainable before the appellate/revisional/ constitutional forum (High Court, District Court, Tribunal or Special Court as the case may be).

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

----S. 12(2)---Application under S.12(2), C.P.C, filing of---Forum---"Merger, doctrine of"---Exceptions---Appeal/revision/writ not disposed of on merits but on some other grounds---Doctrine of merger did not apply, where an appeal/revision/writ had been dismissed because of non-prosecution; or lack of jurisdiction; or lack of competence/ maintainability; or was barred by law; or barred by time; or because of withdrawal of the matter by the party; or due to lack of locus standi; or where it was decided on the basis of a compromise, if the very basis of the compromise by the party to the lis or even a stranger showing prejudice to his rights was not under challenge on the ground of fraud; or it was rendered infructuous or disposed of as having borne fruit; or due to abatement; or where the writ was dismissed on the ground of availability of alternate remedy; or where the writ was dismissed on the point of laches---Said exceptions were also be attracted to the decision(s) of the Supreme Court, where applicable---Where, however a case fell within the said exceptions the forum for an application under S.12(2), C.P.C. was the one against whose decision the matter had come and been disposed of by the higher forum in a manner stated in the said exceptions.

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

----S. 12(2)---Constitution of Pakistan, Art. 185---Application under S.12(2), C.P.C, filing of---Forum---"Merger, doctrine of"---Scope and exception---Direct appeals or those after the grant of leave to appeal allowed or dismissed and the judgment etc. of the High Court(s)/Tribunals or special forums below varied, altered, reversed or affirmed by the Supreme Court---In the cases of reversal or modification of the judgment of the High Court(s), Tribunal(s) or Special Courts before the Supreme Court, or those affirmed in appeal (where the matter did not fall within the exceptions to the doctrine of merger) the judgment of the Supreme Court shall be deemed to be final for moving an appropriate application [under S. 12(2), C.P.C] on the plea of lack of jurisdiction, misrepresentation and fraud.

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

----S. 12(2)---Constitution of Pakistan, Arts. 185(3) & 212---Application under S.12(2), C.P.C, filing of---Forum---"Merger, doctrine of"---Scope---Petition(s) for leave to appeal under the Constitution declined---Where leave was declined by the Supreme Court, the judgment etc. of the lower fora would remain intact and final and would not merge into the leave refusing order for the purposes of an application under S.12(2), C.P.C. which could only be filed before the last forum i.e. the High Court(s) if the matter had been decided in the appellate/revisional/writ jurisdiction by the said court, or if the matter had come to Supreme Court directly for leave from a Tribunal/Special Court---Where, however, the petition for leave to appeal had been dismissed with detailed reasons and a thorough decision of the questions of law and fact had been made, the judgment of the High Court(s)/Tribunal would though not merge into the order of the Supreme Court, yet in order to avoid a ludicrous situation that once a question of law and fact had been elaborately and explicitly dealt with by the Supreme Court in the leave refusing order and the court below may not be in a position to adjudicate upon those points without commenting on the order/reasons of the Supreme Court and to reopen the matter, an application in the nature of S.12(2) of the C.P.C. could be filed before the Supreme Court, leaving it to the absolute discretion of Supreme Court to either decide such application itself or send the matter to the lower fora for the decision.

Nadeem Iabal Chaudhry, Advocate Supreme Court and Qazi Zia Zahid, Advocate Supreme Court for Appellants (in C.As. Nos.1176 and 1177 of 2015).

M. Ozair Chughtai, Advocate Supreme Court/AOR for Petitioners (in C.P. No.1428-L of 2015).

M. Ozair Chughtai, Advocate Supreme Court/AOR for Respondents 8 and 12 (in C.As. Nos.1176 and 1177 of 2015).

Ejaz Ahmed Chaudhry, Advocate Supreme Court for Respondents 2(xviii) and 4 (in C.As. Nos.1176 and 1177 of 2015).

Ejaz Ahmed Chaudhry, Advocate Supreme Court for Respondents 15 and 22 (in C.P. No.1428-L 2015).

Malik Muhammad Qayyum, Senior Advocate Supreme Court, Ch.Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Syed Najam-ul-Hassan Kazmi, Senior Advocate Supreme Court: Amici curiae:

Date of hearing: 19th January, 2016.

P L D 2016 Supreme Court 377

Present: Anwar Zaheer Jamali, C.J., Ejaz Afzal Khan and Mushir Alam, JJ

SHAFIQUE AHMED KHAN and others---Appellants/Petitioners

Versus

NESCOM through Chairman, Islamabad and others---Respondents

Civil Appeals Nos. 654 to 660, 330, 735, 1243 to 1259 of 2010 and Civil Petition No.305 of 2010 and Civil Appeals Nos.962, 1073, 1074, 1085 to 1087, 1135, 1139 of 2011 and 799 of 2012 and Civil Petitions Nos. 615, 819, 971, 1361, 1708, 1762, 2229 of 2010 and 887 of 2011 and 44, 710, 1128, 1129, 1146 and 1147 of 2012 and Civil Petition No.965 of 2014 and Civil Appeal No.23 of 2014, decided on 21st January, 2016.

National Command Authority Act (V of 2010)---

----Ss. 7, 9 & 15---Rules framed under Ss.7, 9 & 15 of National Command Authority Act, 2010---Said Rules were statutory in nature on all accounts and by every attribute---Said Rules had not been framed with the intervention and approval of the Federal Government, but that would not prevent them from being statutory---Rules framed under Ss.7, 9 & 15 of the National Command Authority Act, 2010 were not only broader in their area of efficacy but were also complementary to the parent statute in matters of crucial importance.

Legislature while empowering the National Command Authority (Authority) to make Rules, prescribed the terms and conditions in the parent statute (i.e. National Command Authority Act, 2010). In such regard the legislature laid down certain parameters regulating and even restricting the power of the Authority as could be gathered from the provisions contained in sections 7 and 9 of the National Command Authority Act, 2010 ("the Act").

Fact that certain Rules or Regulations were framed without the approval of the Federal Government was not the sole criteria to term them as non-statutory in nature. It was indeed their nature and area of efficacy which were determinative of their status. Rules dealing with instructions for internal control or management were treated as non-statutory while those whose area of efficacy was broader and were complementary to the parent statute in the matters of crucial importance were statutory. The Rules framed under sections 7, 9 and 15 of the Act fell in the latter category as they were not only broader in their area of efficacy but were also complementary to the parent statute in matters of crucial importance. It would rather be naïve and even myopic to equate the Rules of the Authority dealing with matters of crucial importance having so wide a scope and area of efficacy with the instructions meant for internal management and thereby depriving them of their statutory status. Although, said Rules had not been framed with the intervention and approval of the Federal Government, but that would not prevent them from being statutory. Firstly because, approval of the Federal Government was not required either under section 9 or 15 of the Act; secondly because, all those who called the shots were already part of the Authority while framing the Rules, and thirdly because, the scope and area of their efficacy not only stretched beyond the employees of the Authority but overreached many other strategic Organizations including nuclear and space related technologies systems and matters, as mentioned in sections 8 and 9 of the Act. Rules enacted and approved by members of the Authority under sections 7, 9 and 15 of the Act also did not require another approval of yet any another personage.

Legislature in its wisdom wanted to make the Authority autonomous on all accounts, but statutory status of the Rules framed under sections 7, 9 and 15 of the Act would not undermine its autonomy. Argument that the scheme of sections 9 and 21 of the Act showed that the legislature wanted to make the orders of the Authority immune from justiciability was vacuous both legally and logically as immunity of the orders of the Authority from justiciability would not only erode its autonomy, but tend to establish a reign of arbitrariness, which was a recipe for chaos and confusion. An Authority which had been established for higher objectives as provided in the Preamble and other provisions of the Act, could not thrive and flourish, if its Rules were not abided by or enforced on being violated. Unaccounted exercise of unfettered powers was dangerous and even devastating for an institution. Whether it was exercise of powers or exercise of discretion, better and more uniform results in long term could only be achieved when it was structured and streamlined. Autonomy, independence and efficacy of the Authority were better attained with statutory rather than non-statutory Rules. Effective control of Authority over its activities for maintaining secrecy of its sensitive programmes in line with the country's international legal obligations could not be affected by the statutory status of its Rules.

Rules framed under sections 7, 9 and 15 of the Act were statutory on all accounts and by every attribute.

Muhammad Zubair and others v. Federation of Pakistan through Secretary Ministry of Defence and others (Civil Petition No.1563 of 2013 decided on 26-2-2013; Rector National University of Science and Technology (NUST) Islamabad and others v. Driver Muhammad Akhtar (Civil Appeal No.495 of 2010 decided on 28th April. 2011); National Bank of Pakistan v. Manzoorul Hassan 1989 SCMR 832; Principal Cadet College, Kohat v. Muhammad Shoab Qureshi, Chairman WAPDA v. Jameel Ahmed 1993 SCMR 346 ref.

Muhammad Tariq Badr and another v. National Bank of Pakistan and another 2013 SCMR 314; Zarai Taraqiati Bank Limited v. Said Rehman 2013 SCMR 642; Pakistan Defence Officers Housing Authority and others v. Lt.-Col. Syed Jawaid Ahmed 2013 SCMR 1707; Shoua Junejo v. PIA 2012 SCMR 1681; Muhammad Nawaz v. Civil Aviation Authority and others 2011 SCMR 523; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir PLD 2011 SC 132; Abdul Rashid Khan v. Registrar Bahauddin Zakaria University, Multan 2011 SCMR 944; Pakistan International Airline Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676; State Bank of Pakistan v. Muhammad Shafi 2010 SCMR 1994; Asad Bashir v. Chairman Board of Intermediate and Secondary Education, Lahore and 2 others 2006 PLC (C.S.) 110; Pakistan Red Crescent Society v. Syed Nazir Gillani PLD 2005 SC 806; Zia Ghafoor Piracha v. Chairman, Board of Intermediate and Secondary Education, Rawalpindi 2004 SCMR 35; Muhammad Ishaq Waheed Butt v. Chairman, Bank of Punjab 2003 PLC (C.S.) 963; Pakistan International Airlines Corporation (PIAC) v. Nasir Jamal Malik 2001 SCMR 934; Ijaz Hussain Suleri v. The Registrar and another 1999 SCMR 2381; Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad v. Khalida Razi 1995 SCMR 698; Chairman WAPDA v. Jameel Ahmed 1993 SCMR 346; Raziuddin v. Chairman PIA Corpn. PLD 1992 SC 531; Karachi Development Authority v. Wali Ahmed Khan 1991 SCMR 2434; Abdul Ghaffar v. WAPDA 1990 SCMR 1462; Sindh Road Transport Corporation Chairman v. Muhammad Ali G. Khohar 1990 SCMR 1404; Principal Cadet College v. Muhammad Shoaib Qureshi PLD 1984 SC 170; Anwar Hussain v. ADBP PLD 1984 SC 194; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224 and R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146 distinguished.

For Appellants/Petitioners:

Raja Muhammad Asghar, Advocate Supreme Court (in CAs-654 to 656 of 2010).

Nemo (in CA-657/10,CPs.819 and 2229/10, CPs.971/10, 887/11, 1128, 1129, 1146, 1147/12).

Ahmer Bilal Soofi, Advocate Supreme Court (in CAs-658-659/11, 330/10, 44/12, 23/14 and CP 965/14).

Hafiz S.A. Rehman, Senior Advocate Supreme Court (in CA-735/10).

Zaheer Bashir Ansari, Advocate Supreme Court (in CAs-1243-1259/10).

Abdul Rahim Bhatti, Advocate Supreme Court (in CAs-962, 1073, 1139/11 and 799/12).

M. Shoaib Shaheen, Advocate Supreme Court (in CA. 1074/11 and CP. 1361/10).

Kh. Azhar Rasheed, Advocate Supreme Court (in CAs. 1085-1087/11).

Muhammad Ilyas Mian, Advocate Supreme Court (in CA. 1135 of 2011).

Nemo. (in CP. 615/10).

Abdur Rehman Siddiqui, Advocate Supreme Court (in CP. 1708/10).

In person (CP. 305/10).

For Respondents

Ahmer Bilal Soofi, Advocate Supreme Court (in CAs-654-657/10, 962, 1073, 1074, 1085-1087, 1135 and 1139/11, 799/12 and CPs.971/10, 887/11, 710, 1128-1129, 1146-1147/12, 1708/10, CA 735/10 and CAs 1243-1259/10).

Muhammad Ilyas Mian, Advocate Supreme Court (in CAs 658-660/10).

Shoaib Shaheen, Advocate Supreme Court (in CPs 615 and 819/10).

Nemo (in CPs.1361 and 1708/10).

Hafiz S.A. Rehman Senior Advocate Supreme Court (in CP. No.965/14).

Nemo (in CPs.887/11 and 44/12).

Nemo (in CP.2229/10 and CA. 23/14).

Abdul Raheem Bhatti, Advocate Supreme Court (in CA-330/10).

For PAEC:

Zubair Abbas, Senior Law Officer.

Ather Abbas, JE.

Suhail Akram Malik, Senior Law Officer.

Commander Retd. Muhammad Hussain Shahbaz, Legal Directorate SPD.

Alvina Alvi, NCA

Mian Sami ud Din, NCA

For Federation:

Sohail Mehmood, DAG.

Date of hearing: 2nd November, 2015 (Reserved Judgment).

P L D 2016 Supreme Court 398

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Ejaz Afzal Khan, Mushir Alam and Manzoor Ahmad Malik, JJ

ZILA COUNCIL JEHLUM through District Coordination Officer---Appellant

Versus

Messrs PAKISTAN TOBACCO COMPANY LTD. and others---Respondents

Civil Appeals Nos. 158 and 159 of 2006, decided on 11th February, 2016.

(Against the judgment dated 6-1-2003 of the Lahore High Court, Rawalpindi Bench passed in W.Ps. Nos. 542 of 1995 and 1220 of 1993).

(a) Interpretation of statutes---

----Fiscal statute---Amending statute---Retrospective effect---Principles regarding interpretation of fiscal and amending statutes and retrospective operation of laws---Maxim: Nova constitutio futuris formam imponere debet, non praeteritis,---Applicability---Scope.

Although the Legislature could legislate prospectively and retrospectively, such power was subject to certain constitutional and judicially recognised restrictions. According to the canons of construction, every statute including amendatory statutes was prima facie prospective, based on the principle of nova constitutio futuris formam imponere debet, non praeteritis which means ('a new law ought to regulate what is to follow, not the past'); unless it was given retrospective effect either expressly or by necessary implication. In other words, a statute was not to be applied retrospectively in the absence of express enactment or necessary intendment, especially where the statute was to affect vested rights, past and closed transactions or facts or events that had already occurred.

Muhammad Hussain and others v. Muhammad and others 2000 SCMR 367 ref.

Said principle(s) was also attracted to fiscal statutes which had to be construed strictly, for they tend to impose liability and were therefore burdensome (as opposed to beneficial legislation). Furthermore, it was not only the wording/text of the statute which was to be considered simpliciter in isolation, rather it had to be examined holistically by considering several factors such as, the dominant intention of the legislature which was to be gathered from the language used, the object indicated or the mischief meant to be cured, the nature of rights affected, and the circumstances under which the statute was passed.

(b) Interpretation of statutes---

----Fiscal statute---Strict interpretation---Charging section of a fiscal statute was the key and pivotal provision which imposed a fiscal liability upon a taxpayer/person, thus it should be strictly construed and applied.

(c) Interpretation of statutes---

----Past and closed transactions---Provisions of statute should not be read in a way that would lead to obliteration of rights and liabilities that had accrued as a result of past and closed transactions.

Province of East Pakistan v. Sharafatullah PLD 1970 SC 514 ref.

(d) Punjab Zila Council (Goods Exit Tax) Rules, 1990 ---

----Rr. 5(1) & 5(5)---Punjab Local Government Ordinance (VI of 1979), S. 3(1)(Ix) [since repealed]---Punjab Local Government (Fourth Amendment) Ordinance (II of 1996), S. 1(2) & Preamble [since repealed]---Punjab Local Government (Fourth Amendment) Act (I of 1996), S. 1(2) & Preamble [since repealed]---'Goods exit tax' imposed by Zila Council with retrospective effect---Amending statute given retrospective effect to impose a tax---Legality---When companies in questions stood excluded from the payment of 'goods exit tax' in terms of the un-amended provision, then any subsequent amendment in such provisions could not be used to collect such tax with retrospective effect---Past and closed transaction could not be reopened by giving retrospective effect to subsequently amended provisions---Amending statute in the present case did not provide a clear intendment or a rationale for the levy and collection of goods exit tax retrospectively---Goods exit tax could not be levied with retrospective effect in circumstances.

Respondent-companies operated manufacturing plants of cigarettes and soda ash. Zila Council had levied tax on the export of goods and animals from its territorial limits on several items including the products of the respondent-companies in accordance with Rule 5(1) read with Rule 5(5) of the Punjab Zila Council (Goods Exit Tax) Rules, 1990. Respondent-companies challenged levy of said tax in the High Court contending that, being in the urban areas, they stood excluded from the territorial ambit of the Zila Council as per the definition of 'zila' provided under the Punjab Local Government Ordinance, 1979. During the pendency of litigation before the High Court the Punjab Local Government (Fourth Amendment) Ordinance, 1996["Amendment Ordinance"] and then the Punjab Local Government (Fourth Amendment) Act, 1996 ["Amendment Act"] were promulgated respectively amending the definition of 'zila' in the Punjab Local Government Ordinance, 1979 to include urban areas for the purposes of goods exit tax. The effect of the amendment had been to bring the respondent-companies within the territorial jurisdiction of the Zila Council for the purposes of goods exit tax (it was undisputed that the respondent-companies fell within the urban areas). Said amendment had been given retrospective effect by virtue of section 1(2) of both the Amendment Ordinance and the Amendment Act.

Bare reading of the Amendment Ordinance and the Amendment Act including the preamble and particularly section 1(2) which was the section providing for retrospective effect, did not reflect a clear intendment or a rationale for the levy and collection of goods exit tax retrospectively through amendment of the definition of 'zila' so as to include urban areas.

Mere amendment of the definition of "zila" provided under section 3(1)(Ix) of the Punjab Local Government Ordinance, 1979 and inclusion of the urban areas as a part of a zila for the purposes of goods exit tax, did not express a clear intent. For expression of clear intent it would be necessary to change the relevant charging provision for the purposes of retrospective tax liability. The change made by the Amendment Ordinance and the Amendment Act was restricted to a change in the definition clause, thus, it could not be considered to reflect the requisite intendment of the legislature to impose the goods exit tax with retrospective effect.

Nagina Silk Mill, Lyallpur v. The Income Tax Officer, a-Ward Lyallpur PLD 1963 SC 322 ref.

Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905 distinguished.

In any event, as the goods of the respondent-companies had come and gone through the terminals of the Zila Council in transit over several years and such goods having passed through numerous hands and being sold to various persons including wholesalers, retailers and consumers culminating into several binding contracts prior to the amendment in the definition of 'zila', thus present case was clearly a fit case of "past and closed transaction(s)" and such transactions could not be reopened by a retrospective interpretation of the amended provisions (subject to the clear, unequivocal and explicit intention of the Legislature which was not the case in the present case). Viewed from such perspective, retrospective effect could not be given to the provisions of the amended law so as to undo all of the concluded transactions as it would amount to reopening of past and closed transactions and that would disrupt rights and liabilities that had been created in the past.

Zila Council, Sialkot through Administrator v. Abdul Ghani Proprietor Iqbal Brothers, Sialkot and others PLD 2004 SC 425, held per incuriam.

Even otherwise, it was contrary to logic as to how the respondent-companies could have conceivably collected from and thereby passed on the incidence of goods exit tax to the consumers, when it was not even levied and payable as per the law at that time (prior to the amendment) by the respondent-companies who, being in the urban areas, stood excluded from the territorial ambit of the Zila Council as per the earlier definition of 'zila'.

Goods exit tax could not be levied with retrospective effect in circumstances.

Malik Qamar Afzal, Advocate Supreme Court for Appellants (in both cases).

Farrukh Jawad Panni, Advocate Supreme Court for Respondents (in C.A.No.158/2006).

Shahid Hamid, Senior Advocate Supreme Court for Respondents (in C.A. No.159 of 2005).

Date of hearing: 11th February, 2016.

P L D 2016 Supreme Court 409

Present: Mian Saqib Nisar, A.C.J., Iqbal Hameedur Rahman and Tariq Parvez, JJ

ZAHID ZAMAN KHAN and others---Appellants

Versus

KHAN AFSAR and others---Respondents

Civil Appeal No.1471 of 2015, decided on 24th February, 2016.

(Against the judgment dated 29-6-2015 of the Peshawar High Court, Abbottabad Bench, Abbottabad passed in RFA No.30-A/2012)

(a) Suits Valuation Act (VII of 1887)---

----Preamble---Court Fees Act (VII of 1870), S. 7---Civil Procedure Code (V of 1908), O.VII, R.11---Valuation of suit, change in---Payment of court fee---Trial Court has the authority in law to change the valuation of the suit (on an objection by the defendant or of its own motion) for the purposes of court fee and jurisdiction --- Trial Court could direct the plaintiff to pay the court fee according to the valuation so determined by the court.

Two situations may arise; firstly where a suit's valuation by the plaintiff was challenged by the defendant on the basis of the relevant law, i.e. the Court Fees Act, 1870 and Suit Valuation Act 1887 , and an issue was framed and evidence recorded. Court was obliged to determine and fix the correct valuation for the purposes of court fees and jurisdiction and direct the plaintiff to make good the deficiency of the court fee. Plaintiff was bound to do so and failure would entail the consequences under Order VII, Rule 11, C.P.C. In the event that the value of the suit so determined exceeded the pecuniary jurisdiction of the court, the court shall send the matter to the District Judge for its transfer and entrustment to the court of competent jurisdiction.

1980 CLC 589 ref.

Secondly, in the cases where the defendant(s) was proceeded against ex-parte and there was no challenge to the valuation fixed in the plaint but where the court formed an impression that the suit was seemingly collusive and might have been filed to affect third party rights and/or was ostensibly undervalued, the Court was duty bound to determine and fix the value after holding such inquiry and collecting such material as may be deemed expedient by the court. Court would then direct the plaintiff to make good the deficiency of the court fee.

(b) Jurisdiction ---

----Question of jurisdiction---Law enjoined a duty upon the Court to settle questions about its jurisdiction, because subject to certain exceptions, any decision rendered by the court having no jurisdiction stood vitiated on such account alone.

Ch. Nazir Ahmed v. Abdul Karim and another PLD 1990 SC 42 ref.

(c) Khyber Pakhtunkhwa Civil Courts Ordinance (II of 1962)---

----S. 18(1)---Suits Valuation Act (VII of 1887), Preamble---Court Fees Act (VII of 1870), S. 7---Value of the suit as fixed in the plaint changed by the Trial Court---Forum of appeal---Value of suit determined by the Trial Court shall finally and exclusively be taken into account in terms of S.18(1)(a)&(b) of the Khyber Pakhtunkhwa Civil Courts Ordinance, 1962 as "the value of the original suit" for purposes of determining forum of appeal and the value initially fixed by the plaintiff shall cease to exist.

Judicial determination of the value of a suit for the purposes of court fee and jurisdiction by a judicial forum shall have precedence over the valuation made by the plaintiff and it shall be such valuation which shall be taken into account while determining the forum of appeal from a decree passed in such a suit. In other words, the judicial determination shall be the "value of the original suit" in terms of Section 18(1)(a) of the Civil Courts Ordinance, 1962.

Zaheer Gul v. Dr. Riaz Ali 2015 SCMR 1691; Babu Jan Muhammad and others v. Dr. Abdul Ghafoor and others PLD 1966 SC 461; Sana Ullah v. Muhammad Akhtar and 11 others 1979 CLC 578; Nazir Ahmad and another v. Muhammad Tahir PLD 1992 Lah. 89; Muhammad Sharif v. Nawab Din and another PLD 1957 (W.P.) Lah. 283; Suleman and others v. Pir Baksh and others 2012 CLC 1457; Ilahi Baksh v. Bilqees Begum PLD 1985 SC 393; Muhammad Nawaz v. Sher Muhammad PLD 1987 SC 284 and Abdul Majid and others v. Muhammad Walayat Khan through his Legal Heirs 1987 SCMR 1139 ref.

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

----S. 151---Inherent powers of Trial Court---Consolidation of suits---Purpose and scope---Court had the inherent power to consolidate suits and the purpose behind it was to avoid multiplicity of litigation and to prevent abuse of the process of law and court and to avoid conflicting judgments---No hard and fast rule forming the basis of consolidation could be definitive and it depended upon the facts and the points of law involved in each and every case---Where the court was persuaded that the interests of justice so demanded, consolidation could be ordered, provided no prejudice was caused to any litigant and there was no bar in the way of the courts to consolidate the suits.

PLD 2006 SC 1262 and 1981 CLC 443 ref.

(e) Administration of justice ---

----Court should proceed on the principle that "every procedure which furthered administration of justice was permissible even if there was no express provision permitting the same".

H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd. Karachi and another PLD 1969 SC 65 ref.

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

----S. 33 & O. XX, R. 6---Consolidated suits---Separate decrees---No provision existed in the C.P.C. where the court was obliged to prepare separate decrees for each of the consolidated suits, however it would be more appropriate if separate decrees were drawn up---Supreme Court directed that where two or more suits had been consolidated and disposed of through a common judgment, all Trial Courts must draw up separate decree sheets with all the material particulars as per the requirements of O. XX, C.P.C.

Siraj Din and 11 others v. Rajada 1992 SCMR 979 ref.

(g) Appeal (Civil)---

---Consolidated appeal against a consolidated judgment --- Permissible, provided that appellate forum had the pecuniary jurisdiction to hear the appeal against the decrees according to their valuation i.e. the valuation of the original suit.

(h) Suits Valuation Act (VII of 1887)--

----Preamble---Consolidated appeal against a consolidated judgment --- Permissible, provided that appellate forum had the pecuniary jurisdiction to hear the appeal against the decrees according to their valuation i.e. the valuation of the original suit.

(i) Khyber Pakhtunkhwa Civil Courts Ordinance (II of 1962)---

----S. 18---Civil Procedure Code (V of 1908), S.24---Suits Valuation Act (VII of 1887), Preamble---Consolidated suits---Trial Court passing separate decrees having different valuation---Appeal against---Forum---In consolidated suits wherein (separate) decrees passed had different valuations i.e. the one falling within the jurisdiction of the High Court and the other in the jurisdiction of the District Court, obviously no consolidated appeal could be filed---In such a situation the appellants were required in law to file two appeals according to the value of the original suit i.e. one before the District Judge and the other before the High Court---High Court, however, while exercising its power under S.24 of the C.P.C., if a case was made out within the purview of the said section, may, in order to avoid delay in the disposal of the matter and conflicting decisions, transfer the appeal filed before the District Judge to the High Court and decide the same along with the appeal which had been competently filed before the High Court.

Haji Ghulam Basit, Advocate Supreme Court for Appellants.

Abdul Rashid Awan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Najam-ul-Hassan Kazmi, Senior Advocate Supreme Court; Amicus curiae.

Date of hearing: 2nd February, 2016.

P L D 2016 Supreme Court 421

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Iqbal Hameedur Rahman, Umar Ata Bandial and Qazi Faez Isa, JJ

GOVERNMENT OF PUNJAB and others---Petitioners

Versus

AAMIR ZAHOOR-UL-HAQ and others---Respondents

Civil Review Petitions Nos. 561, 568 to 570, 600 to 604 and 607 of 2015; Civil Miscellaneous Application No.8635 of 2015 and C.M. Appeal No.125 of 2015 in CRP No.Nil/2015, decided on 8th January, 2016.

(On review of this Court's judgment dated 19-8-2015 passed in Constitutional Petition No.38 of 2015, CPLA No.250 of 2015, CMA No.1435 of 2015 in CPLA No.Nil of 2015, CPLA No.145 of 2015, C.P.No.38 of 2015, C.P.No.20 of 2015, C.P.No.21 of 2015, Constitutional Petition No.38 of 2015 and C.P. No.253 of 2015)

Per Mian Saqib Nisar, J: Anwar Zaheer Jamali, C.J., Iqbal Hameedur Rahman and Umar Ata Bandial, JJ, agreeing; Qazi Faez Isa, J dissenting.

(a) Constitution of Pakistan ---

----Art. 188---Supreme Court Rules, 1980, O. XXVI, R. 1---Civil Procedure Code (V of 1908), O. XLVII, R. 1---Review of judgment of Supreme Court---Scope---Scope of review was limited and was confined only to error apparent on the face of the record or floating on the surface of the judgment which, if noticed earlier, would have direct bearing on the conclusions drawn by the Court.

Abdul Ghafar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363 ref.

(b) Balochistan (Wildlife Protection, Preservation, Conservation and Management) Act (XV of 2014) ---

----Ss. 2(lll), 2(sss), 58, 59 & Sched. 1, Part D & Sched.III---Sindh Wildlife Protection Ordinance (V of 1972), Ss. 7, 40 & Second Sched.---Punjab Wildlife (Protection, Preservation, Conservation and Management) Act (II of 1974), First Sched. --- Khyber Pakhtunkhwa Wildlife and Biodiversity (Protection, Preservation, Conservation and Management) Act (I of 2015), Preamble---Pakistan Trade Control of Wild Fauna and Flora Act (XIV of 2012), S. 27 & Preamble---Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Appendix II---Convention on the Conservation of Migratory Species of Wild Animals (CMS), Appendix II---Red List of International Union for the Conservation of Nature and Natural Resources (IUCN)---Permanent ban on hunting of Houbara Bustard---Legality---Under all Provincial wildlife laws protected animal (such as the Houbara Bustard) were subject to change in status from protected to game animal, which could be hunted in accordance with the law---All said laws did not envisage a permanent ban on the hunting of Houbara Bustard, but allowed its hunting subject to obtaining a licence---Conservation efforts of a species could not be successful without uplifting the economic wellbeing of areas where the species was found---Amount generated by issuing licences for hunting were presumably used for the uplifting of the people of the area where the licensees hunt, thus, locals had an economic interest in conserving the species rather than indulging in illegal hunting---Judgment under review contained an apparent error on the face of the record , therefore, Supreme Court set-aside the same directed that present matter should be listed for hearing afresh---[Minority view: Scope of the dispute was enlarged in the present review proceedings, which was not permitted in review jurisdiction---After judgment under review was set-aside, it was not understandable as to why the matter was listed for "hearing afresh"---Federal and Provincial laws specifically recognized both CITES and CMS, which categorized Houbara Bustard respectively as "threatened with extinction" and whose conservation status was "unfavourable"---Code of Conduct for Hunting Houbara Bustard" was issued by the Ministry of Foreign Affairs, which had no jurisdiction to issue such Code---Judgment under review did not call upon the legislature to "legislate on a particular subject" but to resolve the prevalent contradictions within the provincial wildlife laws and their conflict with The Pakistan Trade Control of Wild Fauna and Flora Act, 2012]---Review petitions were allowed accordingly.

Balochistan (Wildlife Protection, Preservation, Conservation and Management) Act, 2014, the Sindh Wildlife Protection Ordinance, 1972, the Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974, and the Khyber Pakhtunkhwa Wildlife and Biodiversity (Protection, Preservation, Conservation and Management) Act, 2015 had the common object to protect, preserve, conserve and manage wildlife. Said laws categorized wildlife into protected and game animals. Hunting of the protected animals was prohibited whereas license was required to hunt game animals. Under these laws the governments of respective Provinces were empowered to grant exemption from hunting and capturing of any animal and they also had the power to remove any animal from the protected list and to place it in the category of game animal and vice versa. Thus under said laws even protected animals were subject to change in status and change of schedule from protected to game animal, that could be hunted, in accordance with the law. Said laws did not envisage a permanent ban on the hunting of Houbara Bustard, but allowed its hunting subject to obtaining a license.

Convention on the Conservation of Migratory Species of Wild Animals (CMS) did not cast a duty upon the Federation or the Provinces to place a ban on the hunting of the species having unfavourable conservation status. It only endeavoured for the states to enter into bilateral or multi-lateral agreements or treaties for the conservation of such (migratory) species.

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Pakistan Trade Control of Wild Fauna and Flora Act, 2012 related to stopping the trade of (endangered ) species across the borders so as not to endanger their survival any further, therefore, they were not applicable to the present controversy (which related to hunting)

Red List of International Union for the Conservation of Nature and Natural Resources (IUCN) placed Houbara Bustard in the category of "vulnerable" below "near threatened" and "least concern" categories and above "endangered", "critically endangered", "extinct in the wild" and "extinct" categories. Local communities played a pivotal role in the conservation of a species. Without the involvement of the local communities no conservation effort could be successful. Unless the economic value of saving the migratory species was raised to a level where it benefited the resident of those areas its conservation would always be in jeopardy. Considering the economic backwardness of the areas where these migratory species landed, it was very hard for conservation efforts to be successful without uplifting the economic well being of those areas. It was for such reason that trophy hunting had been a successful tool for the conservation of endangered species throughout the world. Balochistan (Wildlife Protection, Preservation, Conservation and Management) Act, 2014 accorded a statutory backing to trophy hunting by allowing limited hunting for a limited days under a license in consideration of a huge sum. It could be presumed that the amount so generated was used for the uplifting of the people of the area where the licensees hunt so that they had an economic interest in conserving the species rather than indulging in illegal hunting, poaching and trapping for personal consumption or for trade.

Provincial governments exercised discretionary power conferred by respective provincial laws to classify animals as 'protected' or 'game' species. Limitations and checks on hunting of Houbara Bustard were reflected, inter alia, in the terms and condition of hunting permits issued by the provincial governments, the creation of protected areas, the scheduling of different areas for hunting during the season and so forth. The criteria and considerations on the basis of which the provincial governments exercised their regulatory power under their respective wildlife legislation was not shown to the Court in present proceedings. Ultimately, it was the adequacy and propriety of the regulatory measures that could in a sustainable manner achieve the statutory object of protecting, preserving, conserving and managing wildlife. Statutory object applied not just to the Houbara Bustard but to all endangered, vulnerable or near threatened wildlife. Supreme Court directed that present matter should be listed for hearing afresh and the Bench hearing the present case should examine the legal propriety of the discretionary safeguards applied by the provincial governments for assessing their relevance and reasonableness for attaining the objects of wildlife legislation in respect of all vulnerable and threatened game species including the Houbara Bustard.

Per Qazi Faez Isa, J. [Minority view]

Majority judgment decided to enlarge the scope of the dispute as it wanted to examine the "objects of wildlife legislation in respect of all vulnerable and threatened game species including the Houbara Bustard". The stated objective may be otherwise commendable, but such enlargement of jurisdiction (when hearing review petitions), was not contemplated by the Constitution or the Supreme Court Rules, 1980.

Majority judgment after concluding that there was an apparent error on the face of record of the judgment under view, set-aside the same and directed that the civil petitions and the constitution petition shall be listed for "hearing afresh." If there was "an apparent error on the face of record", (in the judgment under review,) and it was "set aside" then question was as to why were the cases "listed for hearing afresh". Neither the Constitution nor the Supreme Court Rules, 1980 permitted or contemplated such course of action and for good reason. The Bench "hearing afresh" could conclude that the judgment under review did not merit a review or negate something which had been 'decided' by the majority judgment. The decision given after the "hearing afresh" would also be subject to review. Question then would be whether such review would be heard by the same Bench or yet a larger one. The judgment then under review could also be set aside and the case ordered to be reheard, as has been done by the majority judgment. As a result the legal certitude and the authoritativeness expected from the decisions of the Supreme Court would be undermined. It was also not clear whether the "hearing afresh" would include on the Bench the author of the judgment under review.

Deputy Chief of Protocol, Ministry of Foreign Affairs had issued a Code of Conduct for Hunting Houbara Bustard" ("the Code") to show that considerable care regarding over hunting of the Houbara Bustard had been taken. Said Code was issued without jurisdiction as the present matter did not fall within the domain of Ministry of Foreign Affairs, therefore, an officer of the said Ministry too had no jurisdiction to issue the said Code. Said Code also had no statutory backing of any law, rule or regulation.

Laws of Pakistan and of the provinces specifically recognize both the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and the Convention on the Conservation of Migratory Species of Wild Animals (CMS), which categorize Houbara Bustard respectively as "threatened with extinction" and whose conservation status was "unfavourable". Judgment under review had however noted that these laws were also backed by both Federal and provincial laws, however, certain provisions of the provincial wildlife laws violated/infringed the CITES, CMS and the Pakistan Trade Control of Wild Fauna and Flora Act, 2012. No anomaly was created by the judgment under review, but the anomalies were in the wildlife laws of three provinces. Therefore in the judgment under review it was stated that the provinces should amend their respective wildlife laws to make them compliant with "CITES" and "CMS" and not to permit the hunting of any species which was either threatened with extinction or categorized as vulnerable. The need to make the laws compliant with "CITES" and "CMS" was eminently justified in view of the fact that Pakistan was a signatory to "CITES" and "CMS" and as these two conventions were recognized/incorporated by laws of Pakistan.

Majority judgment stated that the judgment under review had called upon the legislature to "legislate on a particular subject". This was not the case. In the judgment under review the Supreme Court did not direct the provincial legislatures to legislate on a particular subject in a vacuum, instead to resolve the prevalent contradictions within the provincial laws and their conflict with The Pakistan Trade Control of Wild Fauna and Flora Act, 2012. If the provinces did not to make the requisite changes in their laws then the directions contained in the judgment under review would remain in the field and, "Neither the Federation nor a Province can grant license / permit to hunt the Houbara Bustard". Judgment under review provided an opportunity to the provinces to permit hunting of the Houbara Bustard provided it was no longer "threatened with extinction or categorized as vulnerable" under CITES and CMS, failing which the ban on its hunting would remain in place.

No legal or factual grounds existed for reviewing the judgment under review.

Per Mian Saqib Nisar, J: Anwar Zaheer Jamali, C.J., Iqbal Hameedur Rahman and Umar Ata Bandial, JJ, agreeing; Qazi Faez Isa, J dissenting.

(c) Constitution of Pakistan---

----Art. 184(3)---Policy realm of the Executive --- Supreme Court always showed restraint in interfering into such realm.

(d) International law---

----International treaties and Conventions---Enforceable domestically (in a country) only if incorporated in the municipal law (of that country).

Per Qazi Faez Isa, J; dissenting.

(e) Constitution of Pakistan---

----Art. 188---Supreme Court Rules, 1980, O. XXVI, R. 8---Petition for review of judgment of the Supreme Court authored by a three Member Bench---Constitution of a larger five member Bench to hear such review petition---Propriety---Larger Bench was constituted in the present case without elaborating as to what were the questions involved in the matter and why the determination thereof may require the constitution of a larger bench---No request for the constitution of a larger Bench was made in the present case---Order XXVI, Rule 8 of the Supreme Court Rules, 1980 required review petitions to be ordinarily heard by the same Bench unless there were compelling reasons for not doing so---Practice of Supreme Court was to place review petitions before a Bench of numerically the same strength of which the author judge (unless he had retired) was always a Member, though the Bench may not include the other Members of the Bench who had earlier heard the judgment under review---Larger Bench hearing a review petition would be effectively sitting as a court of appeal---Principles. [Minority view]

Judgment under review was decided by a three Member Bench. When present review petition and connected matters came up before a three Member Bench, the majority decided that, "considering the questions involved in the matter, we request the Hon'ble Chief Justice to constitute a larger bench", without elaborating what such questions were or why the determination thereof may require the constitution of a larger bench. Larger Bench of five Members was, however, constituted to hear present review petition and connected matters.

Order XXVI, Rule 8 of the Supreme Court Rules, 1980 provided that, "As far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed". Once rules as envisaged under Article 188 of the Constitution had been enacted with regard to the review jurisdiction such rules, i.e. the Supreme Court Rules, 1980 , had great sanctity. Since Order XXVI, Rule 8 clearly stated that the application for review should be posted for hearing as far as practicable before the same Bench therefore compliance was required to be made with the said provision in the present case, unless there were compelling reasons for not doing so. As one of the judges of the Supreme Court who had heard the judgment under review had retired before the review petitions were filed / heard another Judge of the Supreme Court was required to take his place. Order XXVI, Rule 8 however did not envisage the constitution of a larger Bench. It was also the consistent practice of the Supreme Court to post review petitions before Benches of the same strength as decided the judgment under review. Another practice was not to unnecessarily disrupt the normal work of the Court, therefore, review petitions were placed before a Bench of numerically the same strength of which the author judge (unless he had retired) was always a Member, though the Bench may not include the other Members of the Bench who had earlier heard the case. Since a larger Bench was specifically constituted to hear the review petition in the present case there was no justification to exclude a Member who had earlier heard the case. One of the judges of the Supreme Court, who had earlier heard the case and who was not suffering from "indisposition on account of failing health", had been excluded from the larger Bench hearing the present review petition and connected matters.

By constituting larger Benches to hear review petitions the Supreme Court was venturing into unchartered waters. When larger Benches were constituted to hear review petitions the Supreme Court would, "sit as a court of appeal" falling into the very pitfall that was to be avoided.

(f) Constitution of Pakistan---

----Art. 185(3)---Supreme Court Rules, 1980, O. XIII, R. 1---Civil petitions for leave to appeal filed before the Supreme Court---Barred by time---Condonation of delay---Grounds---Delay in filing civil petitions for leave to appeal condoned on the ground that they involved substantial questions of law of public importance which had in any case to be decided in the other (connected) petitions before the Supreme Court---Propriety---Merely because petitions on similar matters were to be heard did not mean that other time-barred petitions were automatically entertained too---Order XIII, R. 1 of the Supreme Court Rules, 1980 prescribed the period of sixty days for filing petitions for leave to appeal ---Said Rule would be made redundant if time barred petitions were entertained automatically---Additionally discretion vesting in the Supreme Court to condone delay in appropriate cases would be rendered meaningless, if the pendency of a similar matter was sufficient reason to entertain time-barred petitions.[Minority view].

Mehreen Zaibun Nisa v. Land Commissioner, Multan PLD 1975 SC 397 distinguished.

(g) Constitution of Pakistan---

--- Arts. 185(3) & 188---Civil petitions for leave to appeal filed before the Supreme Court---Barred by time---Condonation of delay---Supreme Court exercising its discretion and not condoning delay in filing of petitions---Such discretion could not be subjected to review because the exercise of such discretion was not within the ambit of review jurisdiction. [Minority view].

(h) Supreme Court Rules, 1980 ---

----O. XXVI, Rr. 4 & 6---Review petition filed before the Supreme Court---Maintainability---Review petition had not been filed by the counsel who had earlier argued the matter (i.e. judgment under review) nor the requisite certificate in terms of O. XXVI, Rr.4 & 6 of the Supreme Court Rules, 1980 of such counsel had been attached, therefore, the review petition was not maintainable and consequently was dismissed.

(i) Supreme Court Rules, 1980 ---

----O. XIII, R. 1---Review petition filed before the Supreme Court---Barred by time---Condonation of delay---Grounds---Petitioner being "unaware" of a judgment was hardly sufficient ground to condone the delay in filing the review petition against such judgment. [Minority view].

(j) Constitution of Pakistan ---

----Art. 188---Review petition filed before the Supreme Court---Maintainability --- Petitioner was not a party to the judgment (before the High Court from where present issue originated) and could not seek review of the said judgment, particularly when he was not adversely affected by it---Review petition was dismissed accordingly. [Minority view].

(k) Interpretation of Constitution ---

----Interpretation of the Constitution and the laws should be long-lasting and sustainable---Constitutional or legal provision once interpreted, explained and elucidated should not be lightly revised. [Minority view].

(l) Balochistan (Wildlife Protection, Preservation, Conservation and Management) Act (XV of 2014)---

----Ss. 2(lll), 2(sss), 58, 59 & Sched. 1, Part D & Sched.III---Sindh Wildlife Protection Ordinance (V of 1972), Ss. 7, 40 & Second Sched.---Punjab Wildlife (Protection, Preservation, Conservation and Management) Act (II of 1974), First Sched.---Khyber Pakhtunkhwa Wildlife and Biodiversity (Protection, Preservation, Conservation and Management) Act (I of 2015), Preamble---Pakistan Trade Control of Wild Fauna and Flora Act (XIV of 2012), S. 27 & Preamble---Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Appendix II---Convention on the Conservation of Migratory Species of Wild Animals (CMS), Appendix II---Constitution of Pakistan, Art. 188---Rules of Business, 1973---Permanent ban on hunting of Houbara Bustard---Review petition filed before the Supreme Court by Ministry of Foreign Affairs---Maintainability---Matters attended to in the Balochistan (Wildlife Protection, Preservation, Conservation and Management) Act, 2014, Sindh Wildlife Protection Ordinance, 1972, Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974, Khyber Pakhtunkhwa Wildlife and Biodiversity (Protection, Preservation, Conservation and Management) Act, 2015, Pakistan Trade Control of Wild Fauna and Flora Act, 2012, Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and/or the Convention on the Conservation of Migratory Species of Wild Animals (CMS) did not fall within the domain of the Ministry of Foreign Affairs --- Present review petitions were therefore filed by an unconcerned and unaffected party, i.e. the Ministry of Foreign Affairs---Such filing also transgressed the Rules of Business, 1973---Present review petitions were not maintainable and were dismissed. [Minority view].

(m) Constitution of Pakistan ---

----Arts. 184 & 185---Jurisdiction of Supreme Court---Scope---Supreme Court could issue directions to the legislature to legislate on a particular subject. [Minority view].

Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Election Commission of Pakistan v. Province of Punjab PLD 2014 SC 668; Mandi Hassan v. Muhammad Arif PLD 2015 SC 137 and Nadeem Ahmed v. Federation of Pakistan PLD 2010 SC 1165 ref.

(n) Balochistan (Wildlife Protection, Preservation, Conservation and Management) Act (XV of 2014) ---

---- Ss. 2(lll), 2(sss), 58, 59 & Sched. 1, Part D & Sched. III --- Migratory birds such as the houbara bustard --- Not a 'natural resource' of a State --- One of God's creations with a beating heart could not be described as a "natural resource". [Minority view].

Missouri v. Holland 252 U.S. 416 ref.

For Petitioners

Slaman Aslam Butt, A.G.P., Ch. Aamir Rahim, Addl. Attorney General and Nayab Hassan Gardezi, Advocate Supreme Court.

M.Waqar Rana. Addl. A.G. along with Qari Abdul Rasheed, AOR (in CRP Nos.568 to 570 of 2015).

Razzaq A. Mirza, Addl. A.G. Punjab (in CRP 561 of 2015).

Adnan Basharat, Advocate Supreme Court (in CRP 607 of 2015).

Ayaz Khan Swati, Addl. A.G. Balochistan (in CRP-601 to 603 of 2015).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court (in CRP-604 of 20-15).

Farooq H. Naek, Senior Advocate Supreme Court (in CRP 600 of 2015).

Adnan Basharat, Advocate Supreme Court (in C. Misc. Appeal 125 of 2015).

Ajmal Raza Bhatti, Advocate Supreme Court for Applicant (in CMA No.55 of 2016).

Syed Ali Zafar, Advocate Supreme Court for Respondents (in CRP 561 of 2015).

Nemo for Respondents (in CRP 569 of 2015).

Riffat Butt, Dir. Legal, Advisor M/o F.A. Naeem Cheema, DCP, M/o F.A.

Kamran Murtaza, Advocate Supreme Court for Respondents (in CRP 603 of 2015).

Dates of hearing: 6th to 8th January, 2016.

P L D 2016 Supreme Court 454

Present: Asif Saeed Khan Khosa, Sardar Tariq Masood and Tariq Parvez, JJ

ABDUL HAMEED DOGAR---Appellant

Versus

FEDERAL GOVERNMENT through Secretary, Ministry of Interior and 2 others---Respondents

Civil Appeal No.118 of 2016, decided on 26th February, 2016.

(Against the judgment dated 9-12-2015 passed by the Islamabad High Court, Islamabad in Writ Petition No.3980 of 2015)

(a) Criminal law---

----Crime---'Aider and abettor' to the crime---'Beneficiary' of crime---Distinction---Person aiding or abetting another in an act was privy to the act itself but a beneficiary takes benefit or advantage of the act after the event and he may not necessarily be a party to the act itself.

General (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585 ref.

(b) Criminal Law Amendment (Special Court) Act (XVII of 1976) ---

----Ss. 5(1) & 5(3)(a)---Criminal Procedure Code (V of 1898), S. 202---High treason, offence of---Aiders and abettors---Trial before Special Court---Special Court, jurisdiction of---Scope--- Special Court ordering fresh investigation of the case for tracing role of appellant as an aider and abettor to the crime of high treason committed by accused---Leality---Fresh investigation into the offence of high treason by associating any person with the same laid within the prerogative of the Federal Government---Special Court constituted for trying persons accused of high treason or the High Court could not name any individual to be associated with any fresh investigation for determining his role as an aider or abettor to the offence---Moreover the Supreme Court and High Court in various judgments had fixed the entire and exclusive responsibility of committing high treason upon the accused---Supreme Court set aside all references to the appellant and two others in the impugned orders of Special Court and the High Court as suspects to be associated with any fresh investigation into the offence of high treason allegedly committed by accused.

In the present case Special Court had been constituted for trial of accused, who had allegedly committed the offence of high treason by issuing a Proclamation of Emergency in the country. Special Court ordered reinvestigation of the matter to trace whether certain co-accused persons and present- appellant, who was the then Chief Justice of the Supreme Court, had aided and abetted the accused in committing offence of high treason. Constitutional petition filed by appellant against such order of Special Court was dismissed. Supreme Court observed that Federal Government had to consider the advisability or otherwise of getting a fresh investigation conducted for tracing out or identifying the aiders and abettors of the accused in the present matter. Special Court or the High Court could not require or approve a fresh investigation for such purposes.

Special Court had passed an earlier order whereby appellant was introduced in the case of high treason, but said order was set aside by the High Court. Despite setting aside of its earlier order the Special Court had reintroduced the appellant and two others as suspects in the case. After setting aside of its order the Special Court was left with no occasion whatsoever for reintroducing the appellant and two others as suspects in the case for the purposes of investigation qua their involvement in commission of the alleged offence. Conducting investigation into the matter was surely a prerogative of the Federal Government and the Special Court had no jurisdiction to direct the investigating agency to associate the appellant or any other particular person with such investigation.

There was no jurisdiction available with Special Court to direct an inquiry or investigation against a person or persons not formally complained against before the court. Apart from that an inquiry or investigation could be directed by the Special Court to be conducted before the issuance of process against the person complained against and not at a stage where the trial of the person complained against had already commenced and was nearing its conclusion, as in the present case.

Furthermore Supreme Court and High Court in various judgments had fixed the entire and exclusive responsibility of committing high treason upon the accused by stating that he had acted in his own discretion and for his own personal benefit. Supreme Court observed that as the trial of accused for the offence of high treason was presently pending before the Special Court, therefore, the present Bench of Supreme Court was restraining itself from recording its own opinions on the issue of aiders and abettors lest any opinion expressed may prejudice the case of the accused before the Special Court.

Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879; General (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585; Maulvi Iqbal Haider v. Federation of Pakistan and others (Constitution Petition No.D-454 of 2009) and Maulvi Iqbal Haider and others v. Federation of Pakistan through Secretary M/O Law and Justice and others 2013 SCMR 1683 ref

Supreme Court directed that all references to the appellant and two others in the impugned orders passed by the Special Court and the High Court respectively as suspects to be associated with any fresh investigation into the offence of high treason allegedly committed by accused were to be set aside; that the Special Court should proceed with the trial of accused with all convenient dispatch and without any unnecessary delay.

Syed Iftikhar Hussain Gilani, Senior Advocate Supreme Court for Appellant.

Salman Aslam Butt, Attorney General for Pakistan for Respondent No.1.

Farogh Nasem, Advocate Supreme Court for Respondent No.2.

Nemo for Respondent No.3.

Dates of hearing: 23rd and 24th February, 2016.

P L D 2016 Supreme Court 468

Present: Gulzar Ahmad, Umar Ata Bandial and Maqbool Baqar, JJ

ADMINISTRATOR GENERAL ZAKAT, Central Zakat Administration, Islamabad and others---Appellants

Versus

PAKISTAN INSURANCE CORPORATION through Secretary and others---Respondents

Civil Appeal No.39 of 2006, decided on 15th February, 2016.

(On appeal from the judgment/order dated 28-5-2004 passed by High Court of Sindh at Karachi in Constitutional Petition No.D-794 of 1999)

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

----Ss. 1(2), 2(xxiii) & 3(1)---Pakistan Insurance Corporation ("Corporation")---Exempt from charge and collection of Zakat---Joint reading of S.1(2) with exemption of the Federal Government under S.2(xxiii)(a) of the Zakat and Ushr Ordinance, 1980 provided that the Corporation stood exempted from the charge and collection of Zakat.

Section 1(2) of the Zakat and Ushr Ordinance, 1980 ("the Ordinance") stated that a company or other association of persons or body of individuals that had the majority of its shares owned by or its beneficial ownership held by Muslim citizens of Pakistan, was liable to the charge and collection of Zakat under the provisions of the Ordinance. Section 3(1) of the Ordinance made Zakat chargeable upon a 'Sahib-e-Nisab' who was a person owning or possessing assets not less than value equaling nisab. Under section 2(xxiii)(a) of the Ordinance, the Federal Government was excluded from the status of 'Sahib-e-Nisab'. Definition of 'Sahib-e-Nisab' under section 3(1) of the Ordinance specified only one qualification of a 'Sahib-e-Nisab' whereas section 1(2) of the Ordinance enumerated certain other attributes of a person that completed the definition of 'Sahib-e-Nisab': which were that the person must be a Muslim citizen of Pakistan or in the case of an artificial juristic person when it had its majority equity owned by Muslim citizens of Pakistan.

Majority equity ownership of the Pakistan Insurance Corporation ("Corporation") laid with the Federal Government and not with Muslim citizen of Pakistan. Federal Government was excluded from the status of 'Sahib-e-Nisab' under section 2(xxiii)(a) of the Ordinance. Majority ownership of the Corporation neither rested with Muslim citizens of Pakistan nor with a person qualifying as 'Sahib-e-Nisab'. Corporation, therefore, failed the test laid down in section 1(2) of the Ordinance. Hence Corporation stood exempted from the charge and collection of Zakat.

Bank of Punjab v. Administrator General, Central Zakat PLD 1994 Lah. 207 ref.

Abdur Rasheed Awan, DAG and Ch. Akhtar Ali Advocate-on-Record for Appellants.

Syed Aghar Hussain Sabzwari, Advocate Supreme Court for Respondent No.1.

Date of hearing: 15th February, 2016.

P L D 2016 Supreme Court 471

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

The STATE through Director ANF Peshawar---Appellant

Versus

RASHM ALI KHAN and others---Respondents

CRIMINAL APPEAL NOS.12-P, 13-P OF 2011

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 21-7-2010 passed in Criminal Appeals No.264 and 270 of 2009)

AND

CRIMINAL APPEAL NOS.17-P AND 18-P OF 2011

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 30-3-2011 passed in Criminal Appeals No.390 and 415 of 2009).

AND

CRIMINAL APPEAL NOS.7-P TO 9-P OF 2012

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 21-9-2011 passed in Criminal Appeals No.186, 190 and 244 of 2009)

Criminal Appeals Nos.12-P, 13-P, 17-P, 18-P of 2011 and 7-P to 9-P of 2012, decided on 24th February, 2016.

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

----S 9---Recovery of chars garda (narcotic) in powder form---Quantum of sentence---Approach (formula) adopted by courts for reducing sentence of a convict on the basis that quantity of recovered chars garda in powder form could be reduced in weight by 30-50% when processed, therefore, the quantity to be considered in determining the quantum of sentence would be the reduced (processed) quantity---Legality---Extending such benefit to an accused by reducing the quantity of recovered chars garda had to be rejected as being conjectural and unlawful---Nowhere in the entire scheme of the Control of Narcotic Substances Act, 1997, the Courts had been empowered to either send the recovered quantity of chars garda for processing or arbitrarily reduce its quantity without any supporting material in such behalf or any intelligible criteria or legal justification for such purpose.

Ameer Zeb v. The State PLD 2012 SC 380 ref.

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

----S. 9---Recovery of narcotic---Case involving several convicts---Quantum of sentence---Question as to whether in a case involving several convicts, the total quantity of narcotic substance recovered from their possession was to be equally distributed between them to determine the quantum of their individual sentences---Provisions of the Control of Narcotic Substances Act, 1997 did not permit the practice of equal distribution of total quantity of narcotic substance recovered from the possession of more than one convict in order to determine their individual sentences within the parameters of S.9 of the said Act---If in a case narcotic substance was recovered from the possession of more than one convict then, following the principle of their joint and collective liability, each one of them would be liable for punishment on the basis of the whole quantity of narcotic substance so recovered.

Raja M. Inam Amin Minhas, Sp. Prosecutor ANF for Appellants (in all cases).

Nemo for Respondents (in Cr.As. 12, 13/11 and 9-P/12).

Nemo for Respondents (in Cr.As 7-P, 8-P/12).

Jaffar Raza Khan, Advocate Supreme Court for Respondents (in Cr.As. 17-P, 18-P/12).

Date of hearing: 24th February, 2016.

P L D 2016 Supreme Court 478

Present: Jawwad S. Khawaja and Sarmad Jalal Osmany, JJ

MUHAMMAD YOUSAF---Petitioner

Versus

ABDUL QAYYUM---Respondent

Civil Miscellaneous Application No.5849 of 2014

(CMA for restoration of the main petition dismissed for non-prosecution on 29-9-2014)

Civil Petition No. 1 of 2014

(Against the judgment dated 2-12-2013 of the Peshawar High Court, Abbottabad Bench passed in C.R.No.418 of 2010).

Civil Miscellaneous Application No.5849 of 2014 and Civil Petition No.1 of 2014, decided on 8th December, 2014.

(a) Malicious prosecution ---

----Malicious prosecution was a tort which provided redress to those who had been prosecuted "without reasonable cause" and with "malice".

(b) Malicious prosecution ---

----Necessary ingredients---Plaintiff must prove that there was a prosecution without reasonable and probable cause, initiated by malice and the case was resolved in plaintiff's favour---Plaintiff also necessarily had to prove that damage was suffered as a result of the prosecution.

Marine Management v. Government PLD 2000 Kar. 215 ref.

(c) Malicious prosecution ---

----Necessary ingredients---Prosecution without 'reasonable and probable cause' --- Meaning.

Walayat Khan v. Abdul Usman 1990 CLC 37 and Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir 1984 CLC 325 ref.

(d) Malicious prosecution ---

----Inference of malice---False accusation through lodging of FIR---Name of accused not mentioned in the original FIR---Accused's name subsequently added to the FIR on basis of information received by complainant from a third person, who was not summoned and produced as a witness in court---Element of malice on part of complainant could be inferred in such circumstances---Suit for recovery of damages for malicious prosecution was rightly decreed.

Malice on the part of the defendant-complainant in the present case was floating on the surface of the record. There was no occasion or reasonable basis for nominating the plaintiff as an accused in the FIR. In the original FIR, the plaintiff-accused was not named but it was at a subsequent point in time that the defendant-complainant mentioned the name of the plaintiff as an accused on the basis of information given to defendant-complainant by a third person. Such information appeared to be a fabrication because the said person who could have appeared in court to testify in such regard was neither summoned nor produced by the defendant-complainant. No explanation for such material omission had been given by the defendant-complainant. Element of malice on part of defendant-complainant could be inferred in such circumstances. Suit filed by plaintiff-accused for recovery of damages for malicious prosecution was rightly decreed.

(e) Malicious prosecution ---

----Lodging of false FIR---Practice of implicating all able-bodied male family members of accused person---Societal propensity towards false accusation in FIRs could potentially be curbed through civil suits for malicious prosecution.

Mere lodging of an FIR created a public perception adverse to the reputation of the accused. Where the FIR was proved either to be false or to have been lodged without reasonable and probable cause, the circumstances of any given case may be sufficient to show that the lodging of the criminal case was malicious.

In numerous criminal cases which were initiated through filing of FIRs a wide net was cast to implicate accused persons and their family members particularly able-bodied males. This ordinarily was done to ensure that such able-bodied males were arrested and there was none left free to pursue their case in Court. After trial in many cases the accused who were nominated were acquitted. The accuser/complainant in most cases walked away without facing the consequences of a false accusation. Section 182, P.P.C. quite often was not used even if there was reasonable ground for initiating action under the said provision for prosecuting a person who has filed a false FIR. The societal propensity towards false accusation in FIRs can potentially be curbed through civil suits for malicious prosecution.

Muhammad Akram Gondal, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate on Record for Petitioner.

Muhammad Naeem Anwar, Advocate Supreme Court and Ahmed Nawaz Chaudhry, Advocate on Record for Respondents.

Date of hearing: 8th December, 2014.

P L D 2016 Supreme Court 484

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

ALI MUHAMMAD and others---Appellants

Versus

SYED BIBI and others---Respondents

Criminal Appeal No.424 of 2015, decided on 22nd February, 2016.

(On appeal from the judgment of the High Court of Balochistan, Quetta dated 20-8-2015 passed in Crl. Misc. Quashment No.42 of 2010).

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

----Ss. 154 & 561-A---Power of High Court to order registration of second FIR for the same incident---Scope---Different and conflicting stories about the occurrence---Allegations of mala fides of complainant and of distorted and collusive investigation---In such circumstances direction given by High Court for registration of another (second) FIR was justified and in accordance with law as no specific bar or prohibition was provided in law in such regard.

Complainant party-Levies Force lodged an FIR for the incident during which deceased was killed. Deceased's mother alleged that complainant-party was responsible for death of her son, and thus was unsatisfied with the contents of the FIR. Consequently she moved an application under section 22-A, Cr.P.C before the Justice of Peace for registration of second FIR for the same occurrence. Said application was dismissed. Deceased's mother filed a petition before the High Court under section 561-A, Cr.P.C, which was allowed and High Court gave directions for registration of second FIR for the same occurrence.

Perusal of contents of the earlier FIR lodged at the instance of complainant party-Levies Force, and the contents of second FIR lodged by deceased's mother, in terms of the order of the High Court, revealed two entirely different and conflicting stories about the actual occurrence. It was, thus, obvious that in case prosecution lead its evidence on the basis of contents of earlier FIR and the investigation was made on that basis, then from no stretch of imagination the grievance of deceased's mother, attributing criminal liability of whole occurrence to the complainant-party could be considered or adjudicated upon by the Court.

In such circumstances, considering the allegations of deceased's mother about mala fide of the complainant-party in the earlier FIR so as to exonerate itself from the liability of qatl-i-amd of her son, followed by distorted and collusive investigation, the impugned judgment of the High Court directing registration of another (second) FIR seemed fully justified and in accordance with law, wherein no specific bar or prohibition was provided in such regard. Impugned judgment of High Court warranted no interference.

Wajid Ali Khan Durrani and others v. Government of Sindh and others 2001 SCMR 1556 and Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others PLD 2005 SC 297 ref.

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

----S. 154---First Information Report---Information to be given by the complainant---Requirement of S.154 Cr.P.C. was to enter every information of commission of a cognizable offence, whether given orally or in writing to the officer-in-charge of the police station, which shall then be reduced into writing and signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in the form prescribed by the Provincial Government in such behalf, meaning thereby, that it was not a legal requirement for provider of such information to canvass the whole scene of occurrence of a cognizable offence giving description and details of accused, details of weapons used by them, their specific role, motive behind the occurrence, and the names of eye-witnesses etc.

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

----Ss. 154 & 561-A---Power of High Court to order registration of another (second) FIR for the same incident---Scope---Mala fide, dishonesty, ulterior motives of the police or investigating officer---Misleading the investigation or prosecution---Court had the power to order registration of another (second) FIR at any appropriate stage of the proceedings, however such power had to be exercised with extreme care and caution and not in a routine manner.

Criminal legal system proceeded on the presumption of honest, God fearing and fair police officers, impartial and honest investigation system, but this was far from reality. In such circumstances when the Courts felt that due to mala fide, dishonest, colourful and motivated acts or omissions, entire investigation of the crime has been misled or it was going to be misled and on that account the case of the prosecution was likely to fail, then they were not denuded of their powers to order recording of another (second) FIR disclosing a different version to check such nefarious design meant to save the real culprits vis-a-vis misleading the investigation/prosecution, at any appropriate stage of the proceedings. However, where need be, such powers were to be exercised with extreme care and caution and not in a routine manner so as to merely fulfill the wish of an individual who, as per his whims, was not satisfied either with the contents of earlier FIR or the direction of investigation based thereon or wanted registration of another FIR with some ulterior motive. It was more so important in the circumstances when the procedure of direct complaint under section 200 Cr.P.C. was also provided to meet such eventualities. However, there may be circumstances where registration of another FIR would be the only proper course as adopting the alternate course provided in section 200 Cr.P.C. may not be equally efficacious and effective for the aggrieved person.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court for Appellants.

Ayaz Khan Swati, Addl. A.G. Balochistan for the State.

Date of hearing: 22nd February, 2016.

P L D 2016 Supreme Court 492

Present: Anwar Zaheer Jamali, C J., Sh. Azmat Saeed and Khilji Arif Hussain, JJ

MUHAMMAD KHAN---Appellant

Versus

OBAIDULLAH JAN BABAT and others---Respondents

Civil Appeal No.384 of 2014, decided on 2nd March, 2016.

(On appeal from order dated 7-2-2014, passed by the Election Tribunal Quetta 1, in E.P. No.1 of 2013)

(a) Interpretation of statutes---

----Definition clauses in a statute---Scope---Usually, definition clauses in statutory instruments were scribed subject to the rider that the words and expressions so defined would carry the meaning ascribed to them where the context and the subject so permitted---However, where the defined meaning being employed resulted in an obvious anomaly or absurdity, it was not permissible to mechanically and mindlessly inflict such meaning regardless of repugnancy to the context or the subject, or to the words or expressions in the provision sought to be interpreted.

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

----S. 2(iv)---"Candidate"---Meaning---Expression "candidate" did not in all events and in each and every provision of the Representation of the People Act, 1976 carry the meaning that was attributed to it in S.2(iv) of the said Act; it must necessarily be interpreted with reference to the context in which it was employed in each and every provision of the Act so as to avoid an anomaly or absurdity---Expression "candidate" must be construed after contextualizing the same with regard to the subject of the provision in the Representation of the People Act, 1976.

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

----Ss. 2(iv) & 14---"Candidate"---Meaning---Expression "candidate" occurring in provisions of the Representation of the People Act, 1976 pertaining to the electoral process subsequent to the publication of the list of the contesting candidates and printing of their names and symbols on the ballot papers---In the absence of clear and unequivocal statement to the contrary, said expression would tend to mean a 'contesting candidate' and not a 'candidate', whose nomination papers had been rejected.

(d) Words and phrases ---

----"Such"---Meaning and connotation.

West's Legal Dictionary 2010 Edn.; Words and Phrases Permanent Edn. and Black's Law Dictionary Fifth Edn. ref.

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

----Ss. 66 & 69---Expression "petitioner" used in Ss. 66 & 69 of the Representation of the People Act, 1976---Meaning---Said expression meant a person having identical attributes and characteristics of a contesting candidate, i.e. a validly nominated candidate, who had neither withdrawn nor retired from the election process.

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

----Ss. 2(iv), 14 & 52(1)---Election petition, filing of---Locus standi of petitioner---Nomination papers, rejection of---Election petition filed by a candidate whose nomination papers were rejected---Maintainability---Any candidate whose nomination papers had been rejected could not maintain an election petition before the Election Tribunal under S.52 of the Representation of the People Act, 1976---Meaning of expressions "candidate" and "petitioner" used in S.52 of the Representation of the People Act, 1976 was limited to "a contesting candidate" and did not include a candidate whose nomination papers had been rejected---Only a validly nominated candidate who had neither withdrawn nor retired from the elections i.e. a contesting candidate could file or maintain an election petition under S.52 of the Representation of the People Act, 1976.

Muhammad Akram Sheikh, Senior Advocate Supreme Court along with Barrister Sajeel Sheryar, Ch. Hasan Murtaza Mann and Miss. Sundas Hurain, Advocates for Appellant.

Tariq Mehmood, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate on Record for Respondents.

Dates of hearing: 20th and 26th January, 2016.

P L D 2016 Supreme Court 514

Present: Mian Saqib Nisar, Umar Ata Bandial and Maqbool Baqar, JJ

DILAWAR HUSSAIN and others---Appellants

Versus

PROVINCE OF SINDH and others---Respondents

Civil Appeals Nos. 939/2004, 144-K, 145-K of 2009, HRC Nos. 20691-S of 2013 and 48247-S of 2013.

(On appeal from the judgment dated 29-10-2002 and 4-10-2006, respectively passed by High Court of Sindh, Karachi and High Court of Sindh, Hyderabad Circuit passed in HCA No.114/1993, Const. Ps.D-219 and 337 of 2004)

(a) Interpretation of Constitution ---

----Purposive approach---Provisions of the Constitution could be interpreted using the purposive approach to achieve the intent of the legislature.

The Judge in a Democracy by Aharon Barak; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6; Province of Sindh through Chief Secretary and others v. MQM through Deputy Convener and others PLD 2014 SC 531;

Dr. Raja Aamer Zaman v. Omar Ayub Khan and others 2015 SCMR 1303 and Reference No.1 of 2012 (PLD 2013 SC 279) ref.

(b) Interpretation of statutes---

----"Amended provision" in a statute---While interpreting such a provision, the object and purpose of the amendment must necessarily be looked into.

Federation of Pakistan through Ministry of Finance and others v. Messrs Noori Trading Corporation (Private) Limited and 14 others 1992 SCMR 710 ref.

(c) Interpretation of statutes---

----"Cardinal rule of construction of statute"---Scope---Cardinal rule of construction of statute entailed two features; first, meaning; and, second, object and purpose---"Meaning" referred to what the precise words of the statute [or its particular provision(s)] denoted whereas "object and purpose" referred to the reason, rationale, objective, aim, underlying principle, or raison d'être of the statute---Such interpretative approach, thus, necessarily combined both the literal and purposive approach in discerning the legislative intent---Intention of the legislature was discovered, determined and understood by bearing in mind the meaning of the words used in the statute, while taking into consideration the purpose and object of the statute and also the mischief which the statute sought to curb.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254; Oliver Ashworth (Holding) Ltd. v. Ballard (Kent) Ltd. [1999] 2 All ER 791; AIR 2007 SC 1563 and AIR 2001 SC 724 ref.

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

----S. 28-A (since repealed)---Additional compensation---Interpretation and scope---Section 28-A (since repealed) of the Land Acquisition Act, 1894 had to be interpreted narrowly---Land owner shall not be entitled to receive additional compensation under S.28-A (since repealed) for the amount already received---Section 28-A (since repealed) would only be attracted to those cases where some amount remained unpaid/outstanding on account of delay by the acquiring authority.

Section 28-A (since repealed) of the Land Acquisition Act, 1894 was not a provision simpliciter which could be said to provide compensation to the persons whose land had been acquired as compulsory charges or interest; rather said enactment prescribed an inducement to compel the acquiring agency to make prompt payment of the amount of compensation assessed. Section 28-A (since repealed) did not provide an additional premium for the benefit of the land owner. Obviously as an "inducing" provision it had to be given a narrow effect; it was to be limited to the extent of the amount which had not so far been paid to the land owners (i.e. only payable on the outstanding amount). In such context, various scenarios may arise, for instance, where the amount of compensation had been assessed by the Land Acquisition Collector but payment was not made within reasonable time on that assessment; the land owner shall be entitled to compensation at the rate provided under Section 28-A (since repealed) from the date of issuance of the notification under section 4 of the Land Acquisition Act, 1894 till the final payment was made. On the other hand, where partial payment was made promptly and some amount was left outstanding; in such eventuality, compensation would only co-relate to the amount unpaid--- However, such amount shall not ipso jure be given to the land owner from the date of notification till the date of payment of the balance amount on the entire amount including the portion which had been received by him.

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

----S. 28-A (since repealed)---Constitution of Pakistan, Art, 199---Additional compensation---Past and closed transaction---Land of respondents was acquired and award was passed by the Land Acquisition Collector---Being satisfied with the compensation so granted , respondents accepted the same and did not challenge it---However after a lapse of 14 years the respondents filed a Constitutional petition before the High Court seeking additional compensation in terms of S.28-A (now repealed) of the Land Acquisition Act, 1894---Doctrine of past and closed transaction was squarely applicable to the case of respondents, who had already accepted the amount of compensation awarded by Land Acquisition Collector and only challenged the same 14 years later by filing a Constitutional petition before the High Court---Respondents could not have been granted any relief by the High Court in its Constitutional jurisdiction.

Pakistan International Airlines Corporation v. Aziz-ur-Rehman Chaudhry and another 2016 SCMR 14; Waris v. Muhammad Sarwar 2014 SCMR 1025 and Trustees of the Port of Karachi v. Organization of Karachi Port Trust Workers and others 2013 SCMR 238 ref.

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

----S. 28-A (since repealed)---Constitution of Pakistan, Art, 199---Additional compensation---Constitutional petition before the High Court, filing of---Rule of laches---Land owners seeking additional compensation in terms of S.28-A (now repealed) of the Land Acquisition Act, 1894, fourteen (14) years after the passing of award by the Collector---Rule of laches was applicable in the present case---Land owners kept silent and slept over their rights for over fourteen years without any explanation whereafter they decided to invoke the Constitutional jurisdiction of the High Court.

If the respondents/land owners thought they were entitled to the additional amount of compensation as per section 28-A (since repealed) they should have moved the Collector to give them such compensation and this could have been done within the time prescribed by law, and if not so prescribed, then within a reasonable period of time. Likewise, the respondents could also have invoked the plenary jurisdiction of the civil court for the recovery of that amount within the prescribed period of limitation. Further, if they were not advised to file a civil suit they could have directly invoked the Constitutional jurisdiction of the High Court within reasonable time if it was so permissible under the law. None of this was done. In fact, the respondents kept silent and slept over their rights for over fourteen years whereafter they decided to invoke the constitutional jurisdiction of the High Court directly which was discretionary in nature. Rule of laches was duly attracted to the matter in hand because the respondents had been unable to explain as to what steps they took to ascertain and agitate their right on the basis of the Section 28-A (since repealed) before the competent authority before the filing of the Constitutional petition.

S. Sharif Ahmed Hashmi v. The Chairman, Screening Committee, Lahore and another 1980 SCMR 711 ref.

Syed Shahenshah Hussain, Advocate Supreme Court for Appellants (in C.A. No.939 of 2004).

Adnan Karim, Addl. A.G. Sindh., Khair Muhammad, AC Sanghar for Appellants (in C.As.144 and 145 of 2009).

Ghulam Mohiuddin Qureshi, Advocate Supreme Court, Mazhar Ali B.Chohan, Advocate-on-Record for Respondents (in C.As. 144-K and 145-K of 2009).

Adnan Karim, Addl. A.G. Sindh., Abdul Ghaffar Sheikh, AC Korangi and Muhammad Ibrahim Junejo, Mukhtiarkar (in C.A. No.939 of 2004).

Date of hearing: 14th January, 2004.

P L D 2016 Supreme Court 534

Present: Anwar Zaheer Jamali, C.J.; Mian Saqib Nisar, Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

Civil Appeal No.1072/2005

CHAIRMAN, PAKISTAN RAILWAY, GOVERNMENT OF PAKISTAN, ISLAMABAD and others---Appellants

Versus

SHAH JEHAN SHAH---Respondent

(On appeal against the judgment dated 29-12-2003 passed by the Federal Service Tribunal, Islamabad in Appeal No. 6(P)/CS/2003)

Civil Appeal No.686/2012

Mst. ROBINA SHAHEEN---Appellant

Versus

DIRECTOR EDUCATION (E&SC) KHYBER PAKHTUNKHWA and others---Respondent

(On appeal against the judgment dated 9-4-2012 passed by the KPK Service Tribunal, Peshawar, in Appeal No.1539/2009).

Civil Appeals Nos. 1072 of 2005 and 686 of 2012, decided on 14th April, 2016.

(a) Interpretation of statues ---

----When a word had not been defined in the statute, its ordinary dictionary meaning was to be looked at.

(b) Words and phrases ---

----"Count"---Definition.

Chambers 21st Dictionary and Oxford Advanced Learner's Dictionary of Current English 7th Edn. ref.

(c) Civil Service Regulations (CSR)---

----Art. 371-A---Pensionary benefits---Government servants rendering temporary service in a temporary establishment for more than five years---Entitlement to grant of pensionary benefits within the meaning of Art.371-A of the Civil Service Regulations (CSR)---Scope--­Article 371-A of the Civil Service Regulations (CSR) would not ipso facto or simpliciter allow government servants rendering temporary service in a temporary establishment for more than five years to be entitled to grant of pension, rather such period would only be counted towards such government servants' pension if otherwise entitled to pension. Mir Ahmad Khan v. Secretary to Government and others (1997 SCMR 1477) declared to be per incuriam]

Service rendered for more than five years as contemplated by Article 371-A of the Civil Service Regulations (CSR) would only be added, included, or taken into account for the purposes of pensionary benefits, and not make such government servant qualify for pension per se. Article 371-A of Civil Service Regulations (CSR) by itself did not provide for the entitlement for the purposes of pension, rather, it was restricted to the counting of the period of a minimum of five years which had been rendered by the temporary employee that once he was appointed on a permanent basis, such period (of five years) shall be taken into account for the object of calculating his entitlement to pension with respect to the requisite minimum period under the law.

Mir Ahmad Khan v. Secretary to Government and others 1997 SCMR 1477 declared to be per incuriam

Article 371-A cannot be used as a tool to bypass the conditions for qualifying service of pensionary benefits, and such government servant had to fulfill the minimum number of years for grant of pension. This was due to the use of the word "count" as opposed to "qualify" or "eligible" in Article 371-A of the Civil Service Regulations (CSR).

It was absurd, ludicrous and inconceivable that a government servant, who was in regular employment, would become entitled to pension after serving the minimum years of qualifying service as prescribed by the law, whereas while interpreting Article 371-A of the Civil Service Regulations (CSR), a government servant who had served as a temporary employee could be given preference over a regular employee, and after a minimum service of only five years would automatically become entitled to pension. Holding so would be against the object and spirit of the concept of pension.

PLD 2013 SC 829 ref.

(d) Civil Service Regulations (CSR)---

---Art. 371-A---Pensionary benefits---Government servants rendering temporary service in a temporary establishment---"Temporary establishment"---Meaning---Temporary establishment could be said to mean an organisation or institution which was not permanent, rather effective for a certain period only.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants (in C.A. No.1072 of 2005).

Riaz Sherpao, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Appellant (in C.A.No.686 of 2012).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondent (in C.A. No.1072 of 2005).

Ijaz Anwar, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.5 (in C.A.No.686 of 2012).

Waqar Ahmed Khan, Addl. A.G. (on behalf of Khyber Pakhtunkhwa).

Dates of hearing: 14th and 15th March, 2016.

P L D 2016 Supreme Court 545

Present: Mian Saqib Nisar, Iqbal Hameedur Rahman and Tariq Parvez, JJ

COMMISSIONER OF INCOME TAX LEGAL DIVISION, LAHORE and others---Appellants

Versus

KHURSHID AHMAD and others---Respondents

Civil Appeals Nos. 1084 to 1098 of 2008, 1481 to 1529 of 2009, 254 and 255 of 2011, 310, 2012, 1235 to 1270 of 2015 and Civil Petitions Nos. 2595 and 2596 of 2009, decided on 5th April, 2016.

(Against the judgments dated 10.4.2008, 27.5.2009, 17.2.2009, 31.3.2010, 24.12.2014, 19.11.2014, 27.5.2009 of the Lahore High Court, Lahore passed in PTR Nos.12, 13, 14, 15 & 16/2004, ITAs Nos. 242, 246 & 601/1999, 268 & 806/2000, 294, 295 & 296/1999, 49/2000, 82/2002, PTR Nos.402/2003, 117/2000, 403 & 404/2003, 216 & 217/2005, 59, 60, 153, 154, 155, 156, 187, 188, 246 & 588/2006, 589, 19, 20, 67, 86, 88, 87, 89, 90, 234, 277, 278, 295, 401, 515, 516 & 621/2007, W.P.No.1654/2009, PTR No.7991/2002, W.Ps. Nos.8317, 10124 & 10125/2002, PTR Nos.91/2007, 103/2005, 194, 195, 236 & 247/2006, 373, 417, 319, 400, 326 & 327/2007, ITA No.357/1998, PTR Nos.303/2014, 1947, 467, 468, 469, 470, 471, 152, 557, 558, 559, 560, 561, 372, 242, 448, 446, 447, 376, 377, 378, 379 & 380/2012, 202, 324 & 203/2013, 381, 382, 383, 384, 205, 213, 363, 364, 393 & 159/2012 and W.Ps.Nos.17139 and 17659/2008)

(a) Interpretation of statutes--

----Explanation' appended to a section of an enactment/statute---Scope and function---Such explanation stipulates the meaning of a word, term, or phrase, and becomes part and parcel of the enactment---Function of such an explanation is to clear the ambiguity and explain the meanings of the words used in the section to which it is appended---Such explanation is an intrinsic aid available to the reader to understand and appreciate the statute and particularly the section to which such explanation has been affixed.

Naveed Textile Mills Ltd. v. Assistant Collector (Appraising) Custom House, Karachi and others PLD 1984 SC 92 and Chief Adminsitrator of Auqaf, Punjab, Lahore v. Koura alias Karam Ilahi and another PLD 1991 SC 596 ref.

(b) Interpretation of statutes---

----Declaratory statutes/provisions---Scope---Purpose of declaratory provisions or declaratory statutes was to remove doubts which existed, or may exist, in the meaning or effect of a provision or statute, as the case may be.

(c) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----S. 80D ---Minimum tax liability---Turnover from all sources' andaggregate of declared turnover' (as used in S.80D of the Income Tax Ordinance, 1979)---Meaning and interpretation---Said phrases were to be necessarily read in conjunction with the explanation to S. 80D(2) of the Income Tax Ordinance of 1979 for the purposes of determination of minimum tax liability-Word 'turnover' specifically defined in S. 80D of the Income Tax Ordinance 1979 could not be interpreted in a way so as to widen or enlarge the scope of the said section by interpreting `turnover' to include income from 'all sources'.

(d) Interpretation of statutes---

----Where the legislature defined, in the same statute, the meaning of a word used therein, such definition most authoritatively expressed its intent --- Such definition and construction was binding on the courts.

Interpretation of Statutes 11th Edn. by N.S. Bindra ref.

(e) Interpretation of statutes---

----Words defined in a statute---When a word had been defined (in a statute) to give it a specific meaning, such definition was prima facie restrictive and exhaustive.

Vanguard Fire and General Insurance Co. Ltd. Madras v. Fraster and Ross AIR 1960 SC 971 ref.

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

---S. 113 [as it existed prior to its omission by the Finance Act (I of 2008]-Minimum tax liability---"Turnover"---Meaning---Phrase `turnover from all sources' used in S.113(1) of the Income Tax Ordinance, 2001 [as it existed prior to its omission by the Finance Act, 20128] was to be read in conjunction with the meaning of 'turnover' provided in S.113(3), which was exhaustive in nature and nothing further could be added thereto---Phrase 'turnover', thus, did not cover all sources under various heads of income.

Upon a plain reading of the definition of 'turnover' provided in section 113(3) of the Income Tax Ordinance of 2001 it was manifest that turnover meant: (i) gross receipts derived from the sale of goods; (ii) gross fees for the rendering of services or giving benefits including commissions; (iii) gross receipts from the execution of contracts; and (iv) the company's share of the amounts stated above of any association of persons of which the company was a member. Meaning in the said subsection had been assigned to the word 'turnover' used in section 113 and therefore the phrase 'turnover from all sources' in S.113(1) was to be read in conjunction with such definition [provided in S.113(3)] which was exhaustive in nature and nothing further could be added thereto. Phrase 'turnover', thus, does not cover all sources under various heads of income.

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

----S. 113 [as it existed prior to its omission by the Finance Act (I of 2008]-Income Tax Ordinance (XXXI of 1979) [since repealed], S.80D---Minimum tax liability---Scope---Aggregate of the declared turnover as defined in S.80D of the Income Tax Ordinance, 1979 from the sale of goods, rendering, giving or supplying of services or benefits or execution of contracts had to be taken into account for determining the minimum tax liability of 0.5% of the turnover---If no tax, for whatever reason, was payable/paid, then the amount worked out at the rate of 0.5% of the turnover would be the minimum tax payable---If the tax payable/paid was less than 0.5% of the turnover, then the minimum tax payable would be the difference/balance between the tax payable/paid and 0.5% of the turnover---Similar analysis would apply to S.113 of the Income Tax Ordinance of 2001[as it existed prior to its omission by the Finance Act, 2008], where the aggregate of the taxpayer's turnover from the sale of goods, rendering of services or giving of benefits including commissions and the execution of contracts had to be taken into account in order to determine the minimum liability of 0.5% of the turnover for each tax year (or 1% of the turnover for each tax year, depending on the tax year involved, as S.113 was subsequently amended vide Finance Act, 2013 and the percentage of minimum liability prescribed therein was increased to 1%).

(h) Interpretation of statutes---

----Fiscal or taxing statute---Strict and literal approach was to be adopted while interpreting fiscal or taxing statute---Court could not read into or impute something when the provisions of a taxing or fiscal statute were clear.

Pearl Continental Hotel and another v. Government of N.-W.F.P. and others PLD 2010 SC 1004; Star Textile Ltd. and 5 others v. Government of Sindh through Secretary Excise and Taxation Department, Sindh Secretariat, Karachi and 3 others 2002 SCMR 356; Aslam Industries Ltd., Khanpur v. Pakistan Edible Corporation of Pakistan and others 1993 SCMR 683; Messrs Mehran Associates Limited v. The Commissioner of Income Tax, Karachi 1993 SCMR 274; A & B Food Industries Limited v. Commission of Income-Tax/Sales, Karachi 1992 SCMR 663; Collector of Customs (Preventative) and 2 others v. Muhammad Mahfooz PLD 1991 SC 630 and Messrs Hirjina and Co. (Pakistan) Ltd. Karachi v. Commissioner of Sales Tax Central, Karachi 1971 PTD 200 ref.

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

----Ss. 113 [as it existed prior to its omission by the Finance Act (I of 2008] & 169---Income Tax Ordinance (XXXI of 1979) [since repealed], S.80D---Minimum tax liability-Turnover, calculation of---Receipt of income subject to 'Presumptive Tax'---Nothing in the wording of S.80D of Income Tax Ordinance, 1979 and S.113 of the Income Tax Ordinance, 2001 suggested that for the purposes of calculating the turnover for the said sections receipts of income subject to the Presumptive Tax Regime were excluded---Minimum tax payable under S.80D of the Income Tax Ordinance, 2001 was leviable on the aggregate of declared turnover from all sources including receipts covered by Ss. 80C & 80CC of the Income Tax Ordinance, 1979 --­Minimum tax payable under S. 113 of the Income Tax Ordinance, 2001 was leviable on the aggregate turnover from all sources including receipts and tax under the Presumptive Tax Regime of the Income Tax Ordinance, 2001---Legislature did not intend that tax already paid/payable in respect of deemed income which was assessed as final discharge of the tax liability under S.169 of the Income Tax Ordinance, 2001 or under any other provision of the said Ordinance would be excluded from the purview of 'tax payable or paid', because the Legislature did not expressly provide so.

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

----S. 113 [as it existed prior to its omission by the Finance Act (I of 2008]-Income Tax Ordinance (XXXI of 1979) [since repealed], S.80D-Minimum tax liability-Turnover, calculation of---Exclusion of amounts treated as deemed income and assessed as or covered by final discharge of tax liability for which tax was separately paid/payable from the term 'turnover' could not be implied in the provisions of S.80D if the income Tax Ordinance, 1979 and S.113 of the Income Tax Ordinance, 2001, as the same had not been so expressed.

(k) Interpretation of statutes--

--Taxing statute---No equitable construction of taxing statutes.

Understanding Statutes (2008 Edn.) by S.M. Zafar and Star Textile Ltd. and 5 others v. Government of Sindh through Secretary Excise and Taxation Department Sindh Secretariat, Karachi and 3 others 2002 SCMR 356 ref.

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

----Ss. 113 [as it existed prior to its omission by the Finance Act (I of 2008] & 115(4)---Income Tax Ordinance (XXXI of 1979) [since repealed], Ss.80D & 143B---Minimum tax liability---Turnover, calculation of-Presumptive Tax'---Filing of a statement---Mere filing of a statement under S.143B of the Income Tax Ordinance, 1979 (as opposed to a return under S.55 which was for the Normal Tax Regime) for income falling under the Presumptive Tax Regime (i.e. Ss. 80C, 80CC etc.) was not a reason to bring it out of the definition of `turnover' when the law, i.e. the explanation to S. 80D(2), expressly provided otherwise---Same applied to the corresponding provisions of the Income Tax Ordinance, 2001, in that mere filing of a statement under S.115(4) of the Income Tax Ordinance, 2001, which (section) was pari materia to S.143B of the Income Tax Ordinance, 1979, did not mean that the income contained in such statement would automatically fall outside the scope of 'turnover' provided by S.113 of the Income Tax Ordinance, 2001---If such income falling under the Presumptive Tax Regimes of both the Ordinances was to be excluded from the ambit of 'turnover' as provided in S.80D of the Income Tax Ordinance, 1979 and S.113 of the Income Tax Ordinance, 2001 the Legislature would have explicitly mentioned it.

(m) Interpretation of statutes---

----Schedule to a statute---Schedule to a statute could be used as an intrinsic aid to interpret the statute's provisions---Schedule was as much a part of the statute, and was as much an enactment as any other part.

(n) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----Ss. 50(4)(a), 80C(2)(a)(i) & First Sched., Part 1, Section E, clause (i) ---Presumptive tax---Services rendered' pursuant toexecution of a contract'---Services rendered necessarily flowed from execution of a contract, but execution of a contract would not necessarily result in rendering of services---In other words, where services were being rendered, prior execution of a contract would not per se attract the Presumptive Tax under S.80C of the Income Tax Ordinance, 1979, rather it would be excluded by virtue of the exception in S.80C(2)(a)(i) of the said Ordinance---Income derived from 'services rendered', thus, was not subject to the Presumptive Tax Regime of S.80C of the Income Tax Ordinance, 1979, which stood specifically excluded from said section.

(o) Income Tax Ordinance (XXXI of 1979) [since repealed]---

----S. 50(4)(a)---Cash purchase and/or purchase of raw material---No deduction of tax at source---On-the-spot cash purchases or sales by vendors to walk-in-customers did not fall within the purview of 'supply of goods' as envisaged by S.50(4)(a) of the Income Tax Ordinance, 1979, and thus were not subject to withholding (deduction of tax at source) provisions.

Cash purchase and/or purchase of raw material did not fall within the purview of 'supply of goods' as envisaged by S.50(4)(a) of the Income Tax Ordinance, 1979. Sales by sellers/vendors to their walk-in customers or on-the-spot cash purchases were not to be included within the purview of 'supply of goods', thereby subjecting such walk-in/on­-the-spot cash purchases to the withholding provisions. Section 50(4)(a) of the Income Tax Ordinance, 1979 could in no way be said to be designed to levy such a tax on consumers for payments made on the spot or window purchases. 'Supply of goods' as mentioned in S.50(4) of the Income Tax Ordinance, 2001 could not be extended to include 'sale of goods' by sellers/vendors at their retail outlets to walk-in customers.

Commissioner of Income Tax/Wealth Tax v. Messrs Ellcot Spinning Mills Ltd. 2008 PTD 1401 ref.

Messrs Bilz (Pvt.) Ltd. v. Deputy Commissioner of Income Tax, Multan and another 2002 PTD 1 distinguished.

(p) Interpretation of statutes ---

----Terms in a statute---`Ordinary meaning' and 'technical meaning'---Context of the term---Where an enactment used a term which had both an ordinary and a technical meaning, the question as to which meaning the term was intended to have was determined by the context---If the context was technical, the presumption was that the technical meaning of the term was intended to be used; otherwise the ordinary meaning was taken as meant---Secondly, words used in a statute relating to a particular trade, business or transaction were to be construed as having the meaning which everybody conversant with that trade, business or transaction knew and understood.

Messrs Asbestos Cement Industries Ltd. v. Lahore Municipal Corporation and others 1994 SCMR 262 ref.

(q) Words and phrases ---

----"Supply"---Meaning.

Concise Oxford English Dictionary (11th Edn.); Chambers 21st Century Dictionary (1999 Edn.) and Combridge Dictionaries Online ref.

(r) Words and phrases --­-

---"Sale"---Definition.

Chambers 21st Century Dictionary (1999 'Edn.) and Concise Oxford English Dictionary (11th Edn.) ref.

(s) Words and phrases ---

----"Supply" and "sale"---Distinction stated.

Sarfraz Ahmed Cheema, Advocate Supreme Court for Appellants (in C.As. 1485, 1486, 1489 to 1492, 1495, 1503, 1515 and 1525 of 2009).

Ibrar Ahmed, Advocate Supreme Court for Appellants (in C.As. 1235 to 1249, 1258, 1259 and 1270/15, 1488, 1507 and 1520 of 2009.

Muhammad Nawaz Waseer, Advocate Supreme Court for Appellants (in C.As. 1250 to 1257/2015 and 1496 to 1499 of 2009).

Muhammad Aamir Malik, Advocate Supreme Court for Appellants (C.As. 1501, 1502, 1493 to 1495 and 1527/2009 and 1084 and 1089 of 2008).

Dr. Ishtiaq Ahmed, Commissioner Inland Revenue, Muhammad Iqbal Bhawana, Chief Legal FBR and Habib Qureshi, Advocate Supreme Court for Appellants.

Salman Akram Raja, Advocate Supreme Court for Respondents (in C.A. 1089 of 2008).

M. Iqbal Hashmi, Advocate Supreme Court for Respondents (in C.As.1493, 1494/2009 and 1235/2015).

M. Ajmal Khan, Advocate Supreme Court for Respondents (in C.As. 1507, 1521 and 1527 of 2009).

Dr. Ikramul Hag, Advocate Supreme Court (On Court's Call).

Dates of hearing: 26th and 27th January, 2016.

P L D 2016 Supreme Court 570

Present: Anwar Zaheed Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

Civil Appeal No.870 of 2014

(On appeal from judgment of High Court of Sindh, Karachi dated 12-6-2014, passed in C.P.No.B-2072 of 2014)

C.M.A. No.1099 of 2016

(Application by respondent No.1 to grant one-time permission to go abroad).

C.M.As. Nos. 3545, 3557 and 5173 of 2014

(Applications for impleadment).

FEDERATION OF PAKISTAN through Secretary, M/O Interior---Appellant

Versus

General (R) PERVEZ MUSHARRAF and others---Respondents

Civil Appeal No.870 of 2014, C.M.A. No.1099 of 2016 and C.M.As. Nos. 3545, 3557 and 5173 of 2014, decided on 16th March, 2016.

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

----S. 2---Constitution of Pakistan, Arts. 6 & 15--- Offence of High treason --- Name of accused placed on Exit Control List on basis of an interim order of the Supreme Court---Passing of final order/judgment in the proceedings---Whether interim order would merge into the final order/judgment OR it would remain independent and continue restrictions on the accused's travel abroad ---Perusal of interim order showed that its purpose was to ensure that name of accused was placed in the Exit Control List forthwith as an interim arrangement during the course of that day of the hearing---Petitions in relation to the matter were finally disposed of without any further directions by the Supreme Court to keep the interim order alive/intact---Final order disposing of all the petitions, was passed by the Supreme Court without extending any protection to the interim order, which stood merged into the final order and lost its efficacy and operation forthwith --- Besides letter issued by Ministry of Interior placing the name of accused in the Exit Control List was issued three days prior to the interim order passed by the Supreme Court---Furthermore when the High Court gave directions to remove name of accused from Exit Control List, it exercised precaution, by suspending the operation of such direction for a period of 15 days to enable the Federal Government and other concerned parties to avail any other appropriate remedy before the Supreme Court---However the Federal Government took no independent stance/decision in the matter---High Court had correctly granted requisite relief to the accused by striking down the memorandum No.12/74/2013-ECL dated 5.4.2013, issued by the Ministry of Interior---Supreme Court observed that fundamental right of freedom of movement could not be abridged or denied arbitrarily on mere liking or disliking, without any lawful justification for such purpose.

Accused was facing proceedings in courts relating to different criminal cases registered against him. Federal Government included name of accused in the Exit Control List vide letter No.12/74/2013 ECL, dated 5.4.2013 issued by the Ministry of Interior. Federal Government argued that it placed the name of accused in Exit Control List solely on the basis of a direction contained in an interim order passed by the Supreme Court dated 8.4.2012. Petitions regarding the matter were finally disposed of by the Supreme Court vide judgment dated 3.7.2013. Federal Government contended that interim order passed in the proceedings, issuing direction to the Federal Government for placement of name of accused in Exit Control List, would not, ipso facto, stand vacated upon final disposal of the petition, unless specifically so ordered by the Court.

Perusal of the interim order dated 8.4.2013, revealed that it was passed in a Civil Petition and four other connected petitions, filed by different parties against the accused, as an ad-interim arrangement before even issuing notices of such proceedings to him. It could be seen from the language and tenor of the interim order that its purpose was to ensure the name of accused in the Exit Control List forthwith as an interim arrangement during the course of that day. Therefore, the proceedings were held on several dates of hearing after due notice to accused and as a result, the petition was disposed of in terms of an undertaking given by the Federal Government, without any further directions (by the Supreme Court) to keep the ad-interim order dated 8.4.2013 alive/intact. The moment final order dated 3.7.2013, disposing of all the five connected petitions, was passed by the Supreme Court without extending any protection to the ad-interim order dated 8.4.2013, the same stood merged into the final order and lost its efficacy and operation forthwith.

Letter by the Ministry of Interior placing the name of accused in the Exit Control List was issued on 5.4.2013 i.e. three days before the ad-interim order passed by the Supreme and it also did not contain any reference to directions of either the High Court or the Supreme Court in such regard. Thus, it could not be said that it was the interim order of the Supreme Court dated 8.4.2013, which formed basis of placing name of accused in the Exit Control List or that the Federal Government needed further instructions from the Supreme Court in such regard. In such circumstances it was incorrect on part of the Federal Government to claim that letter dated 5.4.2013 vide which name of accused was placed on the Exit Control List, could not be withdrawn unless the interim order dated 8.4.2013 was modified or withdrawn by the Supreme Court.

When considering the question of inclusion or retaining the name of accused in the Exit Control List, thereby restricting his freedom of moment, the court could not lose sight of the fact that under Article 15 of the Constitution freedom of movement was one of the fundamental rights guaranteed to every citizen of the country, which could not be abridged or denied arbitrarily on mere liking or disliking, without any lawful justification for such purpose.

Exit from Pakistan (Control) Ordinance, 1981, read with Exit from Pakistan (Control), Rules, 2010, provided a complete mechanism to restrict the movement of any person from going abroad, where there was lawful and valid justification for such purpose. But in the present case such option had not been exercised as yet by the Federal Government upon independent application of mind to the case of accused or by the Special Court constituted under Article 6 of the Constitution or the other Courts of law where accused was facing proceedings relating to different criminal cases registered against him. Accused was facing trial before different criminal Courts/Special Court for the charged offences, which were competent to regulate all issues in regard to his custody.

High Court in its impugned judgment rightly struck down the letter of the Ministry of Interior by which name of accused was placed on the Exit Control List, however mindful of the sensitive nature and political hype of the issue, as an abundant precaution, the High Court suspended the operation of its judgment for a period of 15 days to enable the Federal Government and other concerned parties to the petitions to avail any other appropriate remedy, including their right to challenge the judgment of High Court before the Supreme Court. Still the Federal Government took no independent stance/decision in the matter, except following the remedy of challenging the judgment of High Court through present appeal, which, was devoid of merits. High court had correctly granted requisite relief to the accused by striking down the memorandum No.12/74/2013-ECL dated 05.4.2013, issued by the Ministry of Interior.

(b) Words and phrases ---

----'Ad-interim' and 'interim'---Definition.

Black's Law Dictionary 9th Edn. ref.

Salman Aslam Butt, Attorney General for Pakistan and Muhammad Waqar Rana, Addl. Attorney General for Appellants.

Tariq Asad, Advocate Supreme Court (CMA-3545/14), Inam-ur-Rahim, Advocate Supreme Court (CMA-5173/14) and Sh. Ahsan-ud-Din, Advocate Supreme Court (CMA-3557/14) for Applicants.

Dr. Muhammad Farough Naseem, Advocate Supreme Court Assisted by Faisal Fareed Hussain Advocate for Respondent No.1.

Qaiser Masood, Addl. Dir, Law and Malik Javed, Asstt. Dir, Law for FIA.

Date of hearing: 16th March, 2015.

P L D 2016 Supreme Court 581

Present: Anwar Zaheer Jamali, C.J. Mian Saqib Nisar, Ejaz Afzal Khan, Mushir Alam and Manzoor Ahmad Malik JJ

YOUNAS ABBAS and others---Petitioner/Appellants

Versus

ADDITIONAL SESSIONS JUDGE, CHAKWAL and others---Respondents

Civil Appeals Nos. 1491 of 2013, 63-L and 64-L/14, Civil Petitions Nos.1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 736/14, 1155-L/13, 1483-L/14, 1524-L/14, 1535-L/14, 928-L/14, 719-L/14, 1053-L/14, 1112-L/14, 1338-L/14, 1429-L/14, Criminal Petitions Nos.74-P/12, 62-Q/13, 30-Q/14, 49-Q/14, Civil Petitions Nos. 1325/14, 1831-L/14, 1727-L/14, 1732-L/14, 1861-L/14, 1883-L/14, 1921-L/14, 1958-L/14, 2116-L/14, 2161-L/14, 2213-L/14, 102-L/15, 249-L/15, 598-L/15, 908-L/15, 1139-L/15, 1197-L/15, 544-L/15, 1431-L/15, 1434-L/15, 937-L/15, 2202-L/15, 2270-L/15, 2276-L/15, 2380-L/15, 2489-L/15, 2585-L/15, 2580-L/15, 2552-L/15, 2715-L/15, 2776-L/15, 2939-L/15, 24-L/16, 1716-L/15, 2150-L/15, 1179-L/15, 1180-L/15, 1923-L/15, C.M.A. 13/16 in C.Ps. 2852-L/15, 1966-L of 2015.

(On appeal against the judgments/orders dated 01.10.2013, 3.10.2013, 23.10.2013, 17.6.2010, 16.06.2014, 25.06.2013, 25.01.2012, 03.04.2014, 30.04.2012, 9.10.2013, 27.06.2014, 16.12.2013, 11.02.2014, 27.5.2013, 19.9.2011, 17.03.2015, 10.06.2015, 11.11.2015, 12.5.2014, 30.10.2014, 24.6.2014, 28.10.2014, 29.4.2014, 7.7.2014, 3.7.2014, 19.6.2014, 6.6.2014, 18.8.2014, 10.4.2014, 28.5.2014, 28.10.2014, 19.11.2014, 24.11.2014, 17.10.2014, 07.11.2014, 21.10.2014, 10.12.2014, 11.12.2014, 25.3.2015, 6.4.2015, 29.4.2015, 21.4.2015, 4.2.2015, 6.4.2015, 10.08.2015, 13.7.2015, 15.9.2015, 5.10.2015, 7.9.2015, 14.10.2015, 13.10.2015, 06.10.2015, 14.10.2015, 18.11.2015, 9.11.2015, 29.7.2015, 8.6.2015, 21.04.2015, 21.4.2015, 30.07.2015 and 20.06.2014 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, Lahore High Court, Lahore, Lahore High Court, Multan Bench, Multan, Lahore High Court, Bahawalpur Bench, Bahawalpur, Peshawar High Court, Peshawar, Peshawar High Court, Circuit Bench, Abbottabad, Islamabad High Court, Islamabad and High Court of Balochistan, Quetta, passed in I.C.As. Nos. 248 of 2010, 764 of 2013, ICA. No.1081 of 2013 in W.P. No. 7519/13, C.P. 1012-L of 2007, in ICA. 597 of 2014 in W.P. No. 25865 of 2013, ICA. 273 of 2013 in W.P. No. 1834 of 2013, in ICA. 500/12, W.P. No. 2141 of 2014, W.P. No. 8962 of 2014, Cr. M. Q. No. 17 of 2011, Crl. Quashment No. 331 of 2013, Crl. Quashment P. No. S-10/2014, ICA. No. 1069 of 2013, W.P. No. 27381 of 2013, W.P. No. 12961 of 2013, ICA. No. 548 of 2011, W.P. No.7535 of 2015, W. P. No. 2586 of 2015, ICA. 1453 of 2015, W.P. 2582 of 2014, ICA. 375 of 2014 in W.P. No. 12333/2014, ICA. 649 of 2014 in W.P. No. 7740 of 2014, ICA. 650 of 2014 in W.P. No. 6167 of 2014, W.P. No. 26388 of 2014, W.P. No. 689-A of 2013, W.P. No.19650 of 2014, W.P. No. 19430 of 2014, W.P. No. 26486 of 2013, W.P. No. 15114 of 2014, W.P. No. 18823 of 2014, W.P. No.9725 of 2014, W.P. No. 12456 of 2014, W.P. No. 12226 of 2014, W.P. No.25281 of 2013, W.P. No. 25919 of 2014, W.P. No. 24246 of 2014, W.P. No. 8035 of 2014-BWP., W.P. No. 12096 of 2014, W.P. No.18644 of 2014, W. P. No. 24487 of 2014, W. P. No. 8291 of 2015, ICA. 482 of 2015 in W.P. No. 2587 of 2015, W. P. No. 6380 of 2014, W.P. No. 24714 of 2012, W.P. No. 25441 of 2014, W.P. No.26288 of 2014, W.P. No. 16360 of 2014, ICA. No. 963 of 2015, ICA. No. 1133 of 2015, W.P. No. 19339 of 2015, W.P. No. 28009 of 2011, W.P. No.12563 of 2015, ICA. No. 552 of 2015, ICA. No. 541 of 2013, ICA. 1317 of 2015 in W.P. No. 27919 of 2015, W.P. No.10832 of 2013, W.P. No. 29557 of 2014, ICA. 1481 of 2015, W.P. No. 22491 of 2015, ICA. No. 70 of 2015-BWP., W.P. No. 10468 of 2014, W.P. No. 34323 of 2014, ICA. No. 639 of 2015 and Writ Petition No. 1194 of 2014).

Per Ejaz Afzal Khan, J; Anwar Zaheer Jamali, CJ, Mian Saqib Nisar and Mushir Alam, JJ agreeing; Manzoor Ahmad Malik, J agreeing with his own reasons.

(a) Law---

----Concept---Law was a set of commands of the sovereign---Law could endure and stay efficacious if it was not abstract and socially unrelated; it became all the more enduring and efficacious if it pulsated from the soil and reflected indigenous conditions around---Law, thus, evolved not only catered for what people needed for their peaceful co-existence but also endured till the time the conditions around changed --- On the contrary a law which was a patchwork of imported patches could neither cater for the legitimate needs of the people nor stay efficacious because of its feeble basis and frequent violation.

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

----Ss. 22-A (6) & 25---Functions performed by Ex-officio Justice of Peace under S.22-A(6), Cr.P.C---Such functions being quasi-judicial in nature could not be termed as executive, administrative or ministerial---Said functions were complementary to those of the police and thus did not amount to interference in the investigative domain of the police---Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 and Muhammad Ali v. Additional I.G. PLD 2015 SC 753 dissented from.

Functions performed by the Ex-officio Justice of Peace were not executive, administrative or ministerial inasmuch as he did not carry out, manage or deal with things mechanically. Such functions as described in clauses (i), (ii) and (iii) of section 22-A(6), Cr.P.C., were quasi-judicial as Ex-officio Justice of Peace entertained applications, examined the record, heard the parties, passed orders and issued directions with due application of mind. Every lis before him demanded discretion and judgment. Functions so performed could not be termed as executive, administrative or ministerial on any account.

Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 and Muhammad Ali v. Additional I.G. PLD 2015 SC 753 dissented from.

Functions performed by Ex-officio Justice of Peace under section 22-A(6), Cr.P.C were complementary to those of the police and thus did not amount to interference in the investigative domain of the police.

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

----Ss. 22-A (6) & 25---Powers exercised by Ex-officio Justice of Peace under S.22-A(6), Cr.P.C.---Issuing appropriate directions for registration of FIR or transfer of investigation or to check the neglect, failure or excesses committed by the police authorities---Remedy for persons having no means and resources---Brief account as to how powers exercised by the Ex-officio Justice of Peace under S.22-A(6), Cr.P.C advanced dispensation of justice and provided remedy to those facing economic constraints and compulsions.

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

----Ss. 22-A(6) & 25---Constitution of Pakistan, Arts. 184(3) & 199---Orders passed, directions issued and actions taken by the Ex-officio Justice of Peace under S.22-A(6), Cr.P.C in excess of his powers---Such orders, directions or actions could be quashed through judicial review ( by the superior courts).

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

----Ss. 22-A (6) & 25---Constitution of Pakistan, Art. 199---Powers exercised by Ex-officio Justice of Peace under S.22-A(6), Cr.P.C.---Scope---Parameters laid down for the jurisdiction of High Courts to issue a writ were equally applicable to the Ex-officio Justice of Peace exercising almost similar powers under S.22-A(6), Cr.P.C.

Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabd and 2 others 1994 SCMR 2142; Anwar Ahmed Khan v. The State 1996 SCMR 24; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Saeed Hussain Shah. v. The State 1996 SCMR 504; Raja Rustam Ali Khan. v. Muhammad Hanif and 6 others 1997 SCMR 2008; Muhammad Saeed Azhar v. Martial Law Administrator, Punjab and others 1979 SCMR 484; Mazhar Naeem Qureshi v. The State 1999 SCMR 828; Ajmeel Khan v. Abdur Rahim and others PLD 2009 SC 102; Hayatullah Khan and another v. Muhammad Khan and others 2011 SCMR 1354; Muhammad Ali v. Additional I.G. Faisalabad and others PLD 2014 SC 753; and S. N. Sharma v. Bipen Kumar Tiwari and others AIR 1970 SC 786; Muhammad Latif, ASI, Police Station Sadar, Sheikhupura v. Sharifan Bibi and another 1998 SCMR 666; Nasrullah Khan v. Manzoor Hussain and others 2004 SCMR 885 and Muhammad Ali v. Additional I.G. Faisalabad and others PLD 2014 SC 753 ref.

(f) Constitution of Pakistan ---

----Art. 175 & Part II, Chap. 1 [Arts.8-28]---Vires of law---Provision of law could be declared ultra vires if it was violative of the provisions of the Constitution which guaranteed fundamental rights, independence of judiciary or its separation from the executive.

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

----Ss. 22-A (6) & 25---Constitution of Pakistan, Art. 175 & Part II, Chap. 1 [Arts. 8-28]---Provisions of Ss.22-A(6) & 25, Cr.P.C, vires of---Said provisions were not ultra vires the Constitution as they did not violate the provisions of the Constitution which guaranteed fundamental rights, independence of judiciary or its separation from the executive.

Provisions of sections 22-A(6) and 25, Cr.P.C did not infringe any of the fundamental rights guaranteed by the Constitution; they on the contrary, not only facilitated their enforcement but also guarded against their infringement by providing expeditious and inexpensive justice to the people at their doorstep. Provisions of sections 22-A(6) and 25, Cr.P.C did not even remotely impinge upon the independence of judiciary nor did they militate against the concept of its separation from the executive. When the Ex-officio Justice of Peace passed orders, issued directions, or took actions under the aegis of judiciary rather than the executive, he instead of going under the thumb of the executive, in fact, brought the executive under the thumb of law. Vires of provisions of sections 22-A(6) and 25, Cr.P.C could not be questioned even on the yardstick of the legislative competence as there was no defect found in them in such regard.

Per Manzoor Ahmad Malik, J agreeing with the majority opinion with his own reasons.

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

----Ss. 22-A (6) & 25---Police Order [22 of 2002]---Powers exercised by Ex-officio Justice of Peace under S.22-A(6), Cr.P.C --- Issuing appropriate directions for registration of FIR or transfer of investigation---Such powers exercised by the Ex-officio Justice of Peace should not be unbridled or open-ended; they must be defined, structured and its contour delineated to obviate misuse by influential and unscrupulous elements---Parameters within which the Ex-officio Justice of Peace should exercise his powers under S.22-A(6), Cr.P.C. when issuing directions for registration of FIR or transfer of investigation stated.

Ex-officio Justice of Peace should exercise his powers under section 22-A(6), Cr.P.C. within certain parameters when issuing a direction for registration of FIR or transfer of investigation.

The ex-officio Justice of the Peace, before issuance of a direction on a complaint for the non-registration of a criminal case under section 22-A(6)(i), Cr.P.C must satisfy himself that sufficient material was available on the record, such as application to the concerned SHO for registration of the criminal case and on his refusal or reluctance, complaint to the higher police officers i.e. DPO, RPO etc., to show that the aggrieved person, before invoking the powers of Ex-officio Justice of the Peace, had recourse to the highups in the police hierarchy.

So far as transfer of investigation of a criminal case from one police officer to another police officer was concerned, a complete mechanism had been provided in the Police Order, 2002. However, section 22-A(6)(ii), Cr.P.C. had given powers to the Ex-officio Justice of the Pace to issue appropriate direction to the concerned police authorities for the transfer of investigation of a case from one police officer to another, but it did not prescribe a criterion or mechanism in so many words as to what might be the standard or what reasons should prevail with the Ex-officio Justice of the Peace while issuing such direction. To issue a direction regarding transfer of investigation by ex-officio Justice of the Peace without taking into consideration the attending circumstances of the case may be counter-productive and may defeat the purpose of the mechanism as provided in the Police Order, 2002, thus it may result in unnecessary interference with the working of an agency. Therefore, it would be appropriate for the Ex- officio Justice of the Peace, before issuance of any direction regarding the change of investigation, to satisfy himself from the available record that the grievance of the aggrieved person (who had filed the application for this purpose) had not been redressed by the Police Officers/authorities as provided in the Police Order, 2002.

Muhammad Shahid Kamal, Advocate Supreme Court for Appellants (in C.A.No.1491 of 2013).

Sh. Zamir Hussain Senior Advocate Supreme Court for Respondents Nos. 4 and 7 (in C.A.No.1491 of 2013).

Mian Shafaqat Jan, Advocate Supreme Court for Respondents Nos. 5 and 6 (in C.A.No.1491 of 2013).

Nemo for Appellants (in C.A.No.63-L of 2014)

For Respondents Nos. 1, 2 and 3 not represented (in C.A.No.63-L of 2014).

Aziz A. Malik Advocate Supreme Court for Appellants (in C.A.No.64-L of 2014).

For Respondents Nos. 2-3, 6-9 not represented (in C.A.No.64-L of 2014).

Aftab Ahmad Bajwa, Advocate Supreme Court for Respondent Nos.4-5 (in C.A.No.64-L of 2014)

Nemo for Petitioners (in C.P.No.1945-L of 2011).

For Respondents not represented (in C.P.No.1945-L of 2011).

Nemo for Petitioners (in C.P.No.933-L of 2013).

For Respondents not represented (in C.P.No.933-L of 2013).

Nemo for Petitioners (in C.P.No.1840-L of 2013).

For Respondents not represented (in C.P.No.1840-L of 2013).

Nemo for Petitioners (in C.P.No.372-L of 2014).

For Respondents not represented (in C.P.No.372-L of 2014).

Nemo for Petitioners (in C.P.No.589-L of 2014).

For Respondents not represented (in C.P.No.589-L of 2014).

Nemo for Petitioners (in C.P.No.736-L of 2014).

For Respondents not represented (in C.P.No.736-L of 2014).

Nemo for Petitioners (in C.P.No.1155-L of 2013).

For Respondents not represented (in C.P.No.1155-L of 2013).

Nemo for Petitioners (in Crl.P.No.74-P of 2012).

For Respondents not represented (in Crl.P.No.74-P of 2012).

Nemo for Petitioners (in Crl.P.No.62-Q of 2013).

For Respondents not represented (in Crl.Q.No.62-Q of 2013).

Zahoorul Haq Chisthti, Advocate Supreme Court for Petitioner (in Crl.P.No.30-Q of 2014)

For Respondents not represented (in Crl.P.No.30-Q of 2014).

Nemo for Petitioners (in Crl.P.No.1483-L of 2014).

For Respondents not represented (in Crl.P.No.1483-L of 2014).

Nemo for Petitioners (in C.Ps.Nos.1524-L and 1535-K of 2014.).

For Respondents not represented (in C.Ps. Nos.1524-L and 1535-L of 2014).

Salim Khan Cheechi, Advocate Supreme Court for Petitioners (in C.P.No.928-L of 2014).

For Respondents not represented (in C.P.No.928-L of 2014).

Nemo for Petitioners (in C.P.No.719-L of 2014).

For Respondents not represented (in C.P.No.719-L of 2014).

Rana Aftab Ahmad Bajwa, Advocate Supreme Court for Petitioners (in C.P.No.1053-L of 2014).

For Respondents not represented (in C.P.No.1053-L of 2014).

Nemo for Petitioners (in C.P.No.1112-L of 2014).

For Respondents not represented (in C.P.No.1112-L of 2014).

Nemo for Petitioners (in C.A.No.1338-L of 2014).

For Respondents not represented (in C.P.No.1338-L of 2014).

Malik Jawad Khalid, Advocate Supreme Court for Petitioners (in C.P.No.1325-L of 2014).

For Respondents not represented (in C.P.No.1325-L of 2014).

Nemo for Petitioners (in C.P.No.1831-L of 2014).

For Respondents not represented (in C.P.No.1831-L of 2014).

Nemo for Petitioners (in C.Ps.Nos.1727 and 1732-L of 2014).

For Respondents not represented (in C.Ps.Nos.1727 and 1732 of 2014).

Nemo for Petitioners (in C.P. 1861-L of 2014).

For Respondents not represented (in C.P.No.1861-L of 2014).

Nemo for Petitioners (in C.P.No.1883-L of 2014).

For Respondents not represented (in C.P.No.1883-L of 2014).

Nemo for Petitioners (in C.P.No.1921-L of 2014).

For Respondents not represented (in C.P.No.1921-L of 2014).

Nemo for Petitioners (in C.P.No.1958-L of 2014).

For Respondents not represented (in C.P.No.1958-L of 2014).

Nemo for Petitioners (in C.P.No.2116-L of 2014).

For Respondents not represented (in C.P.No.2116-L of 2014).

Nemo for Petitioners (in C.P.No.2161-L of 2014).

For Respondents not represented (in C.P.No.2161-L of 2014).

Zafar Mehmood Chaudhry, Advocate Supreme Court for Petitioners (in C.P.No.2213-L of 2014).

Javed A. Khan Advocate Supreme Court for Respondent No.2 (in C.P.No.2213-L of 2014).

Syed Nisar Ali Shah, Advocate Supreme Court for Petitioners (in C.P.No.102-L of 2015).

For Respondents not represented (in C.P.No.102-L of 2014).

Nemo for Petitioners (in C.P.No.598-L of 2015).

For Respondents not represented (in C.P.No.598-L of 2015).

Sahir Mahmood Bhatti, Advocate Supreme Court for Petitioners (in C.P.No.908-L of 2015).

M. Zahid Rana, Advocate Supreme for Respondent No.3 (in C.P.No.908-L of 2015).

Irshad Ahmed Cheema, Advocate Supreme Court for Petitioners (in C.P.No.1139-L of 2015).

For Respondents not represented (in C.P.No.1139-L of 2015).

Nemo for Petitioners (in C.P.No.1197-L of 2015).

For Respondents not represented (in C.P.No.1197-L of 2015).

Nemo for Petitioners (in C.P.No.544-L of 2015).

Respondents not represented (in C.P.No.544-L of 2015).

Nemo for Petitioners (in C.P.No.1431-L of 2015).

Respondents not represented (in C.P.No.1431-L of 2015).

Munir Ahmad Bhatti, Advocate Supreme Court for Petitioners (in C.P.No.1434-L of 2015).

For Respondents not represented (in C.P.No.1434-L of 2015).

Mian Muhammad Aslam, Advocate Supreme Court for Petitioners (in C.P.No.937-L of 2015).

For Respondents not represented (in C.P.No.937-L of 2015).

M. Sohail Dar, Advocate Supreme Court for Petitioners (in C.P.No.2202-L of 2015).

For Respondents not represented (in C.P.No.2202-L of 2015).

Mrs. Kausar Iqbal Bhatti, Advocate Supreme Court for Petitioners (in C.P.No.2270-L of 2015).

For Respondents not represented (in C.P.No.2270-L of 2015).

Nemo for Petitioners (in C.P.No.2276-L of 2015).

For Respondents not represented (in C.P.No.2276-L of 2015).

Petitioners in person (in C.P.No.2380-L of 2015).

For Respondents not represented (in C.P.No.2380-L of 2015).

Saiful Malook, Advocate Supreme Court for Petitioners (in C.P.No.2489-L of 2015).

For Respondents not represented (in C.P.No.2489-L of 2015).

Nemo for Petitioners (in C.P.No.2585-L of 2015).

For Respondents not represented (in C.P.No.2585-L of 2015).

Nemo for Petitioners (in C.P.No.2580-L of 2015).

For Respondents not represented (in C.P.No.2580-L of 2015).

Petitioners in person (in C.P.No.2552-L of 2015).

For Respondents not represented (in C.P.No.2552-L of 2015).

Petitioners in person (in C.P.No.2715-L of 2015).

Respondents not represented (in C.P.No.2715-L of 2015).

Salim Khan Chechi, Advocate Supreme Court for Petitioners (in C.P.No.2776-L of 2015).

For Respondents not represented (in C.P.No.2776-L of 2015).

Petitioners in person (in C.P.No.2939-L of 2015).

For Respondents not represented (in C.P.No.2939-L of 2015).

Petitioners in person (in C.P.No.24-L of 2016).

For Respondents not represented (in C.P.No.24-L of 2016).

Nemo for Petitioners (in C.P.No.1716-L of 2015).

For Respondents not represented (in C.P.No.1716-L of 2015).

Nemo for Petitioners (in C.P.No.2150-L of 2015).

For Respondents not represented (in C.P.No.2150-L of 2015).

Nemo for Petitioners (in C.Ps.Nos.1179-L of 2015 and No.1180-L of 2015).

For Respondents not represented (in C.Ps.Nos.1179-L and 1180-L of 2015).

Nemo for Petitioners (in C.P.No.1923-L of 2015).

For Respondents not represented (in C.P.No.1923-L of 2015).

Ahmad Nawaz Chaudhry, Advocate-on-Record for Applicant/P: (in C.M.A. No.13 of 2016 in C.P. No.2852-L of 2015).

For Respondents not represented (in C.M.A. No.13 of 2016 in C.P. No.2852-L of 2015)

Muhammad Sohail Dar, Advocate Supreme Court for Petitioners (in C.P.No.1966-L of 2015).

For Respondents not represented (in C.P.No.1966-L of 2015).

On Court's Call:

Razzaq A. Mirza, Addl. A.G. for Province of Punjab.

Abdul Jabbar Qureshi, Asstt. A.G. for Province of Sindh.

Waqar Ahmed Khan, Addl. A.G. for Province of Khyber Pakhtunkhwa.

Ayaz Swati, Addl. A.G. for Province of Balochistan.

Amicus Curiae:

Kh. Haris Ahmed, Senior Advocate Supreme Court.

Date of hearing: 12th February, 2016 (Judgment Reserved).

P L D 2016 Supreme Court 604

Present: Ejaz Afzal Khan and Sardar Tariq Masood, JJ

Messrs LAFARGE PAKISTAN CEMENT COMPANY---Appellant

Versus

DISTRICT COLLECTOR, CHAKWAL and others---Respondents

Civil Appeals Nos. 613 and 614 of 2014, decided on 5th May, 2016.

(Against the judgment dated 31-10-2013 in W.P. No.2545 of 2000 and C.R.No.566-D of 2000 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

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

----First Sched. Arts. 15 & 40---Loan secured by company by mortgaging land---Mortgage deed---Payment of stamp duty---Rate---Possession of land not given to lender (mortgagee)---Where possession of land was not given or agreed to be given (to the mortgagee), the stamp-duty shall be charged on the amount secured by such (mortgage) deed as was provided by Art.15 of the First Schedule of Stamp Act, 1899---Possession of land, in the present case, had not been given to the mortgagee---Words used in the agreement between the parties that "the mortgagor shall not without the prior written consent of the lender part with possession of the mortgage property" unmistakably showed that possession had not been given to the lender---Lender's right to sell the mortgaged property without intervention of the Court would accrue only, if the mortgagor defaulted in payment of mortgage money and not otherwise---Case of appellant company was, thus, covered by Art.15 and not Art.40(a) of the First Schedule of the Stamp Act, 1899 --- Stamp duty had to be charged accordingly.

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

----Ss. 33, 38 & 48 & Chap. IV---Examination and impounding of instruments---Recovery of duties and penalties---Plea raised by appellant-company was that Collector under S.48 of the Stamp Act, 1899 could recover the duties, penalties and other sums required to be paid under Chapter IV of the Stamp Act, 1899 (only) if the instrument had been produced in evidence and impounded on account of being deficiently stamped in view of the provisions contained in Ss.33 & 38 of the Stamp Act, 1899---Validity---Reading of S.33 of the Stamp Act, 1899 showed that every person incharge of a public office except an officer of police, before whom any instrument chargeable with duty was 'produced' or 'comes in the performance of his functions' shall, if it in his opinion was not duly stamped, impound the same---Words "produced or comes in the performance of his functions" used in the said section envisaged two different occasions; one arose when the instrument was produced before the person having authority to receive evidence; the other arose when the instrument comes in the performance of his functions---Plea raised by appellant-company would have been tenable had the words "or comes in the performance of his functions" not been there in S.33 of the Stamp Act, 1899---Plea was rejected accordingly.

Hanuman Prasad. v. The State of Rajasthan AIR 1958 Rajasthan 291; Thakar Das and others v. The Crown AIR 1932 Lah. 495; Dairy Farm v. Emperor AIR 1942 Lah. 257; Chandrahasji Maharaj v. Chief Controlling Revenue Authority AIR 1986 Madhya Pradesh 132; Lala Uttam Chand v. Perman Nand and others AIR 1942 Lah. 265; Abdur Rehman v. Raabia Bibi PLD 1984 Lah. 407 and Imtiaz Rafi Butt. v. The Lahore Development Authority PLD 1996 Lah. 663 distinguished.

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

----S. 48 & First Sched. Arts. 15 & 40---Mortgage deed---Stamp duty, evasion of---Penalty imposed by District Collector---Reduction in amount of penalty---Scope---District Collector had calculated liability against the appellant-company with respect to stamp duty along with additional sum equal to five times of the purported payable stamp duty as penalty---Plea of appellant-company was that nothing on the record showed that it had wilfully under-stamped the mortgage deed to evade the payment of the proper stamp-duty, therefore, it could not be subjected to any penalty---Validity---Such plea did not deserve unqualified acceptance when provisions contained in Arts.40 & 15 of the First Schedule of the Stamp Act, 1899 being clear and unambiguous did not admit of more than one interpretation---However, in the circumstances of the present case, five times penalty was too harsh and two times penalty of the deficient portion of the duty would be sufficient to meet the ends of justice---Appeal was disposed of accordingly.

Smt. Kamla Devi v. The Chief Controlling Revenue Authority, Delhi AIR 1966 Punjab 293 and Messrs Humayun Ltd. v. Pakistan and others PLD 1991 SC 963 distinguished.

Waseem Sajjad, Senior Advocate Supreme Court for Appellant.

Mudassar Khalid Abbasi, A.A.G., Punjab with Syed Naveed Alam, A.C. Kalar Kahar for Respondents.

Decided on 5th May, 2016.

P L D 2016 Supreme Court 613

Present: Mushir Alam and Dost Muhammad Khan, JJ

Mst. YASMEEN BIBI---Petitioner in both

Versus

MUHAMMAD GHAZANFAR KHAN and others---Respondents in both

Civil Petitions Nos. 357 and 358 of 2016, decided on 28th April, 2016.

(On appeal from the judgment dated 3-12-2015 passed by the Lahore High Court, Multan Bench, Multan in W.P.No.7117 of 2011).

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

----S. 5, Sched.---Family Court, jurisdiction of---Undertaking given in the "Nikah Nama" that certain property/land shall be transferred in the name of the wife and she would be exclusive owner of the same---Such an undertaking could be construed as a part of dower or a gift to wife in consideration of marriage therefore, it would fall within the exclusive domain of the Family Court to pass a decree in relation to such property/land.

(b) Family Court Rules, 1965 ---

----R. 6---Family Courts Act (XXXV of 1964), S. 17 --- Civil Procedure Code (V of 1908), Ss. 16 to 20---Family Court---Territorial jurisdiction---"Court within the local limits of which the wife ordinarily resides"---Family Court alone had exclusive jurisdiction to deal with all the matrimonial disputes, whatever their nature, irrespective of territorial jurisdiction, provided that the Family Court where the wife resides shall have the jurisdiction to entertain such suits/claims---Provisions of Ss.16 to 20, C.P.C. stood excluded from the proceedings before the Family Court, thus, the question of its territorial jurisdiction would never arise, provided that the Family Court where the wife resides, shall have the exclusive jurisdiction over all such matters.

(c) Constitution of Pakistan ---

----Art. 185(3)---Supreme Court Rules, 1980, O. XIII, R. 1---Family Courts Act (XXXV of 1964), S. 5, Sched.---Petition for leave to appeal---Barred by time---Condonation of delay---Petitions raising matters of public importance---Petitions for leave to appeal, in the present case, were barred by 2 and 4 days respectively, however, keeping in view the important law points of public importance involved therein including right to dower, dowry articles and maintenance, which could not be lightly ignored, the delay of 2 and 4 days respectively, in filing petitions was condoned.

Muhammad Waseem Shahab, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Saleem Ullah Ranazai, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Respondents.

Date of hearing: 28th April, 2016.

P L D 2016 Supreme Court 620

Present: Gulzar Ahmed, Dost Muhammad Khan and Qazi Faez Isa, JJ`

The STATE through Chairman NAB and others---Appellants

Versus

MUHAMMAD ASIF SAIGOL and others---Respondents

Criminal Appeals Nos. 274 to 279 of 2006 along with Criminal Petitions Nos.78-L and 79-L of 2004, decided on 4th May, 2016.

(On appeal from the judgment dated 8-7-2003 in Cr. Appeals Nos.1092/2001, 1075/2002 and 29/2002 passed by the Lahore High Court, Lahore).

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

----Ss. 5(r) & 9(a)(viii) [as inserted by National Accountability Bureau (Amendment) Ordinance (IV of 2000)]---Phrase "willful default" used in S.5(r) of National Accountability Ordinance, 1999 (as amended)---Retrospective effect---Scope---Phrase wilful default was statutorily defined for the first time on 3rd February 2000, by National Accountability Bureau (Amendment) Ordinance, 2000, therefore, it was from such date that it was to be given effect as per the definition---Neither S.5(r) nor the National Accountability Bureau (Amendment) Ordinance, 2000, through which it was inserted, had stipulated that it will be applied retrospectively---No reason existed for the court to give the phrase "wilful default", as it came to be subsequently defined, retrospective effect from the date that the National Accountability Ordinance, 1999 was promulgated.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 distinguished.

(b) Words and phrases---

----"Wilful default"---Definition and meaning.

Ismail Dossa v. Monopoly Control Authority PLD 1984 Kar. 315; Federation of Pakistan v. Hasham Ali Shah PLD 1954 Lah. 769; Arsalan Hafeez v. Election Tribunal PLD 2003 SC 355; Saadat Pervez Sayan v. Chief Secretary, Government of Punjab 2003 PLC (C.S.) 1277; S. Sunaram v. V.R. Pattabhiraman AIR 1985 SC 582; The Queen v. Senior ([1899] IQB 283 and Pak-American Fertilizers Ltd. v. Industrial Court PLD 1966 (W.P.) Lah. 822 ref.

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

----Ss. 5(r) & 9(a)(viii) [as inserted by National Accountability Bureau (Amendment) Ordinance (IV of 2000)] --- "Willful default" --- Whether accused had committed 'wilful default' by not repaying the finance facilities --- Cases against accused and his companies were filed before clause (r) was inserted into S.5 of the National Accountability Ordinance, 1999---To constitute the offence of "wilful default" at that time (i.e. before insertion of clause (r) into S.5) the prosecution, in addition to establishing the subsistence of a default, had to also prove that the default was wilful i.e. there was a deliberate and calculated refusal to pay---Mere inability to pay did not constitute the offence of 'wilful default'---Prosecution, in the present case, failed to establish that the default was "wilful"---Cases against accused were of simple default therefore the National Accountability Ordinance, 1999 was not applicable---Convictions of accused were set-aside and he was acquitted of the charges.

Offence of wilful default for the purposes of present case was required to be considered in the light of the law at the relevant time, i.e. before the insertion of clause (r) into section 5 of the National Accountability Ordinance, 1999. At that juncture to constitute the offence of wilful default the prosecution, in addition to establishing the subsistence of a default, had to also prove that the default was wilful. In order to constitute a wilful default, there must be a deliberate and calculated refusal to pay, i.e. a conscious and intentional act. Mere inability to pay did not constitute the offence of wilful default. Prosecution in the present case, however, made no attempt to establish that the default was wilful.

Complaints filed against the accused set out in considerable detail when the financial facilities were provided to the Companies, the agreements executed in this regard and the failure of the Companies (belonging to the accused) to honour their commitments, however, significantly not a word was stated with regard to how or why any loan/financial facility was 'wilfully' not repaid or how it was misused or diverted. It was also not alleged that the Companies and/or the accused had the requisite monies to settle the outstanding dues but wilfully did not do so. Cases against accused were of simple default for which recourse may be had to the statutes that have from time to time been enacted for such purpose, instead of resorting to the National Accountability Ordinance, 1999. Moreover the accused was not at the helm of affairs of the companies during the relevant time.

Since the element of wilful was absent, accused could not be convicted for the offence of wilful default. Prosecution had failed to establish that accused had committed the offence of wilful default, therefore, his convictions were set aside and he was acquitted of the charges.

Muhammad Akbar Tarrar, Additional Prosecutor General (NAB) and M.S.Khattak, Advocate on Record for the State (NAB).

Aitzaz Ahsan, Senior Advocate Supreme Court for Muhammad Asif Saigol (in person) and Companies.

Date of hearing: 7th April, 2016

P L D 2016 Supreme Court 637

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

Dr. ZAHID JAVED---Petitioner

Versus

Dr. TAHIR RIAZ CHAUDHARY and others---Respondents

Civil Appeal No.359 of 2013, decided on 3rd March, 2016.

(On appeal from judgment dated 15-1-2013 of the Lahore High Court, Lahore passed in W.P. No.1691 of 2012).

Per Amir Hani Muslim, J; Anwar Zaheer Jamali, C.J., Iqbal Hameedur Rehman and Khilji Arif Hussain, JJ, agreeing; Mian Saqib Nisar, J. dissenting.

(a) University of the Punjab Act (IX of 1973)---

----Ss. 11(8) & 11-A---Constitution of Pakistan, Arts. 105 & 10A---Provincial Governor in his capacity as Chancellor of the University---Revisional powers---Scope---Whether Chancellor bound to act on advice of Chief Minister---Revisional powers of the Chancellor in terms of S.11-A of the University of the Punjab Act, 1975 were quasi-judicial in nature---Quasi-judicial power could not be delegated and was to be exercised by the persona designata---Persona designata was required to act personally and not on the basis of any advice by any other person or authority, therefore, S.11-A of the University of the Punjab Act, 1973 or other provisions of the said statute under which Chancellor exercised revisional or appellate powers, were independent and did not make it obligatory on him to seek and/or act on the advice of the Chief Minister in terms of S.11(8) of the said Act---[Per Khilji Arif Hussain, J: Words "of his own motion or otherwise" appearing in S.11-A of the Act were used by the Legislature intentionally to bestow quasi-judicial authority upon the Chancellor, which authority had to be exercised by the Chancellor without any advice from the Chief Minister]---[Per Mian Saqib Nisar, J (Minority view): Revisional powers of Chancellor under S.11-A of the University of the Punjab Act, 1973 was not of a quasi-judicial nature but an executive supervisory power, which was administrative in nature---Provisions of the University of the Punjab Act, 1973, did not provide for any exception that allowed the Governor to act otherwise than in accordance with the advice of the Chief Minister---Education had become a Provincial subject after the Eighteenth Amendment to the Constitution, therefore the Governor, who was a Federal Appointee, could not be empowered with sole discretion while exercising revisional powers to interfere in Provincial autonomy---Chancellor, while exercising revisional powers under S.11-A of the Act was bound by the advice of the Chief Minister in view of S.11(8) of the Act]---Supreme Court approved the principles enunciated in the cases of University of Punjab v. Sardar Ali (1992 SCMR 1093) and Federation of Pakistan v. Muhammad Tariq Pirzada (1999 SCMR 2189), while the conflicting view in the case of Rana Aamer Raza Ashfaq v. Dr. Minhaj Ahmad Khan (2012 SCMR 6) was declared to be not good law.

Mere reference to Article 105 of the Constitution in section 11(8) of the University of the Punjab Act, 1973 did not take away the revisional powers of the Chancellor conferred on him under Section 11-A of the said Act. Section 11 (8) provided that "the Chancellor shall act and be bound in the same manner as the Governor of a Province acts and is bound under Article 105 of the Constitution". This clearly manifested that the restriction was relatable to the function of the Chancellor whereas section 11-A empowered the Chancellor to exercise his discretion, when he heard a revision and or appeal. Chancellor, who was persona designata under the University of the Punjab Act, 1973, was conferred power but in a different capacity which could not be termed identical to that of the office of the Governor.

While the restriction envisaged in Section 11 (8) of the University of the Punjab Act, 1973 was relatable to functions, section 11-A referred to powers of the Chancellor. Thus the restrictions envisaged in section 11 (8) would be applicable to cases where functions were discharged by the Chancellor, but would not extend in cases of exercise of powers conferred on him such as was the case under section 11-A of the said Act.

Revisional powers of the Chancellor in terms of Section 11-A of the University of the Punjab Act, 1975 were quasi-judicial in nature. Quasi-judicial powers could not be delegated and were to be exercised by the persona designata mentioned in the statute. Persona designata was required to act personally and not on the basis of any advice by any other person or authority.

If the powers conferring discretion to the Chancellor under Section 11-A of the University of the Punjab Act, 1973 were restricted in the manner that the Chancellor shall seek advice of the Government, after hearing the party and before deciding the revision, this by itself would be violative of Article 10-A of the Constitution and against all the natural norms established in the legal parlance.

Rana Aamer Raza Ashfaq v. Dr. Minhaj Ahmad Khan 2012 SCMR 6 declared to be not good law.

University of Punjab v. Sardar Ali 1992 SCMR 1093 ref.

Section 11-A of the University of the Punjab Act, 1973 or the other provisions of the said statute under which Chancellor exercised revisional or appellate powers, were independent and did not make it obligatory on him to seek and/or act on the advice of the Chief Minister in terms of section 11(8) of the said Act.

University of Punjab v. Sardar Ali 1992 SCMR 1093 and Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189 approved.

Rana Aamer Raza Ashfaq v. Dr. Minhaj Ahmad Khan 2012 SCMR 6 declared to be not good law.

Per Khilji Arif Hussain, J, agreeing: When one compared the power conferred upon the Chancellor under section 11 of the University of the Punjab Act, 1973 with revisional power conferred under section 11-A, there was an apparent distinction in exercise of such powers. Power under section 11 in view of subsection 8 had to be exercised by the Chancellor on the advice of the Chief Minister as required under Article 105 of the Constitution whereas revisional powers were conferred on the Chancellor by the Legislature under section 11-A, with the intention, that such powers would be exercised by the Chancellor without the advice of the Chief Minister. Such intention was manifest from the words "of his own motion or otherwise" used by the Legislature in section 11-A of the Act. Said words were used by the Legislature intentionally to bestow quasi-judicial authority upon the Chancellor, which authority had to be exercised without any advice from the Chief Minister.

Discretionary power of the Chancellor under section 11-A of the Act was in line with the discretionary powers given to the Governor in various Articles of the Constitution, where the Governor had to act in his own discretion without any advice from the Chief Minister.

Per Mian Saqib Nisar, J, dissenting [Minority view]: Provincial Governor, who was a member of the executive, as persona designata, would be exercising administrative powers of a Chancellor, when deciding matters under the provisions of section 11-A of the University of the Punjab Act, 1973. Duties and powers of the Chancellor were not conferred upon the Governor, but upon the person who happened to occupy the office of Governor. The Chancellor did not perform his functions or act in exercise of powers available to him as Governor under the Constitution and was not bound by the advice of the Chief Minister as per Article 105 of the Constitution, rather since the appointment of the Chancellor was statutory, the functions and powers would be controlled by the statute, and the Chancellor would be bound by the advice of the Chief Minister as per section 11(8) of the University of the Punjab Act, 1973.

Only for the reason that the power of the Chancellor as per section 11-A University of the Punjab Act, 1973, had been described to be a revisional power, did not make him a judicial/quasi-judicial authority. Power of revision under Section 11-A was not of a quasi-judicial nature but an executive supervisory power, which was administrative in nature.

Section 11-A of the University of the Punjab Act, 1973 did not provide that the revisional power so exercised by the Chancellor shall be in his "discretion"; it also does not provide a specific exclusion that whilst exercising the revisional power the Governor shall not be bound by the advice of the Chief Minister. Section 11(8) of the University of the Punjab Act, 1973, controlled section 11-A of the said Act. Provisions of the University of the Punjab Act, 1973, did not provide for any exception that allowed the Governor to act otherwise than in accordance with the advice of the Chief Minister. If there was meant to be an exception to the general rule of being bound by the advice of the Chief Minister, then such an exception would/should have been expressly mentioned in the statute. Any interpretation to the effect that whilst exercising his powers of revision under section 11-A of the University of the Punjab Act, 1973 the Governor was to act on his own without the advice of the Chief Minster would defeat the mandate of the clear provisions of Section 11(8) of the said Act.

Section 11-A was inserted by the University of the Punjab (Amendment) Ordinance, 1982, approximately nine years after the promulgation of the of the University of the Punjab Act, 1973; had the Legislature so wanted, it could have framed the section11-A as a non obstante clause, but this was not done, making it patently clear that the intention of the Legislature was to render section 11-A subject to the already existing section 11(8) of the Act.

Interpreting sections 11(8) and 11-A of the Act in such a way so as to empower the Chancellor with the sole discretion whilst exercising revisional powers would essentially result in the Federation interfering with Provincial autonomy. Governor was for all constitutional intents and purposes, a Federal appointee and a representative of the Federation in the respective Province. Since the Eighteenth Amendment to the Constitution, education had become a Provincial subject, thus no interpretation could be placed upon the of the University of the Punjab Act, 1973 which did violence to the Constitutional scheme and the Federation could not be allowed to interfere and impinge upon the autonomy of the Province.

Rana Aamer Raza Ashfaq v. Dr. Minhaj Ahmad Khan 2012 SCMR 6 ref.

Chancellor was bound by the advice of the Chief Minister in view of section 11(8) of the of the University of the Punjab Act, 1973, and the said section governed the (revisional) powers exercised by the Chancellor under section 11-A of the Act. [p. 669] Z

Per Amir Hani Muslim, J; Anwar Zaheer Jamali, C.J., Iqbal Hameedur Rehman and Khilji Arif Hussain, JJ, agreeing; Mian Saqib Nisar, J dissenting.

(b) Words and phrases---

----"Function"---Definition and meaning.

Words and Phrases (Permanent Edition-17-A) ref.

(c) Words and phrases---

----"Power"---Definition and meaning.

Words and Phrases (Permanent Edition-33) ref.

(d) Words and phrases---

----"Quasi"---Definition.

(e) Quasi-judicial power---

----Scope---Quasi judicial power was one imposed on an officer or an authority involving the exercise of discretion, judicial in its nature, in connection with, and as incidental to, the administration of matters assigned or entrusted to such officer or authority---Quasi-judicial power was not necessarily judicial, but one in the discharge of which there was an element of judgment and discretion; more specifically, a power conferred or imposed on an officer or an authority involving the exercise of discretion, and as incidental to the administration of matters assigned or entrusted to such officer or authority---Quasi-judicial powers could not be delegated and were to be exercised by the persona designata mentioned in the statute---Such powers, functions or duties could neither be delegated to any other person or authority nor could be exercised on the recommendation of any other authority or person.

(f) Quasi-judicial act--

----Scope---Quasi judicial act was usually not one of a judicial tribunal, but of a public authority or officer, which was presumably the product or result of investigation, consideration, and human judgment, based on evidentiary facts of some sort in a matter within the discretionary power of such authority or officer.

(g) Constitution of Pakistan---

----Arts. 101(5) & 105(1)---Provincial Governor, functions of---Scope---Functions of Governor in terms of Art.105(1) of the Constitution were distinct from the functions of the Governor, which he had to discharge in terms of Art.101(5) of the Constitution --- Both said provisions of the Constitution were independent of each other and mutually exclusive.

Per Mian Saqib Nisar, J; dissenting with Amir Hani Muslim, J. [Minority view]

(h) Constitution of Pakistan---

----Art. 45---President's power to grant pardon---Executive function---Article 45 of the Constitution, whereby the President was empowered to grant pardon, was not a judicial/quasi-judicial function, rather it was the exercise of a prerogative conferred upon the Head of State by the Constitution, on the advice of the Government, to pardon a person or commute a sentence etc., and so ultimately it was an executive function.

(i) Ombudsman---

----Office of Ombudsman---Functions of the Ombudsman were not of a judicial nature, and he essentially performed an executive function. [Minority view].

Per Khilji Arif Hussain, J; agreeing with Amir Hani Muslim, J. [Majority view]

(j) Interpretation of statutes---

----When language of the statute was plain and unambiguous, then the Court must give effect to each word used in the statute and it would not be open to the Courts to adopt a hypothetical construction on the ground that such construction was more consistent with the alleged object and policy of the Act.

(k) Interpretation of statutes ---

----'Casus omissus'---Scope---When language of a provision was plain and unambiguous the question of supplying casus omissus did not arise.

(l) Interpretation of statutes---

----Court can interpret a law but cannot legislate.

(m) Interpretation of statutes ---

----Words used by the legislature must be construed according to its plain natural meaning---Legislature never used redundant or surplus words/phrases.

(n) Interpretation of statutes---

----Natural and ordinary meaning of words should not be departed from unless it could be shown that the legal context in which the words were used required a different meaning---Words of a statute were first understood in their natural, ordinary or popular sense and phrases and sentences were constructed according to their grammatical meaning, unless it led to some absurdity or there was something in the context or in the object of the statute.

Sardar Muhammad Aslam, Advocate Supreme Court and Raja Muhammad Afsar, Advocate-on-Record for Petitioner.

Abdul Rehman Siddiqui, Advocate Supreme Court for Respondent No.1.

Tahir Munir Malik, Advocate Supreme Court for Respondent No.2.

Nemo for Respondent No.3.

Nisar Durrani, A.G. Sindh, Ayaz Swati, Addl. A.G. Balochistan, Razzaq A Mirza, Addl. A.G. Punjab, Abdul Latif Yousafzai, A.G. Khyber Pakhtunkhwa, Mian Muhammad Rauf, A.G. Islamabad, Muhammad Waqar Rana, Addl. Attorney General for Pakistan (On Court's Notice).

Makhdoom Ali Khan, Advocate Supreme Court and Kh. Haris Ahmad, Senior Advocate Supreme Court, Amici Curie.

Date of hearing: 3rd March, 2016.

P L D 2016 Supreme Court 676

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

FEDERATION OF PAKISTAN through Secretary, Ministry of National Food Security and Research, Islamabad---Petitioner

Versus

AGRITECH LIMITED and others---Respondents

Civil Petition No.1067 of 2016, decided on 6th June, 2016.

(Against the judgment dated 23-12-2015 of the Peshawar High Court, Peshawar passed in Writ Petition no.3982-P/2015).

(a) Constitution of Pakistan--

----Art. 185(3)---Supreme Court Rules, 1980, O. XIII, R. 1---Petition for leave to appeal filed by department of Federal Government---Delay of 19 days in filing such petition---Condonation of delay not allowed---Plea on behalf of Federal Government that delay in filing the petition was neither wilful nor deliberate; that the competent authority/ Secretary of the Department had retired and the post remained vacant till when the present Secretary took over the charge and issued the direction to file the present petition after examining the relevant record---Validity---Application for condonation of delay did not provide any reasonable ground justifying the delay to be condoned---Working of the Federal Government neither stopped, nor should stop, upon the retirement of a Secretary of a Government department---If at all the successor had not been appointed the petition could have been filed by the person holding charge of the office---In any event, since the post of the Secretary had been filled after about a month there was more than sufficient time for the Government to approach the Supreme Court---Present case therefore was not a case wherein it would be appropriate to exercise discretion to condone the delay---Consequently, the application seeking to condone the delay in filing the petition was dismissed.

Government of Punjab v. Muhammad Rafique Shah 2013 SCMR 1468 distinguished.

(b) Pakistan Standards and Quality Control Authority Act (VI of 1996)--

----S. 8---Federal Government Notification No. F.1-11/2012/DFSC-II/Fertilizer, dated 15-10-2015---Federal Government Notification No.F.1-11/2012/ DFSC-11/Fertilizer dated 3-11-2015---Fertilizer manufacturers/importers ---Subsidy provided through a notification---Non-intelligible criteria in the notification having no rational nexus to the very object of the subsidy scheme---Company manufactured a certain fertilizer by using locally mined rock containing phosphate---Government issued a notification whereby subsidy was provided to companies producing/importing fertilizer which was made by using 'imported rock', phosphorous content of which was not less than 18%---Legality---Litmus test for qualifying for the subsidy through the impugned notification was the 18% phosphorous content in the fertilizers and not whether a manufacturer of fertilizer used an imported rock or a domestic rock---Classification made between fertilizer made from imported rock and fertilizer made from domestic rock did not constitute intelligible differentia having rational nexus to the very object of the subsidy scheme---Criteria (for providing subsidy) that could be quantified should be quantified and it must be objective and reasonable---Supreme Court directed that if a fertilizer contained 18% phosphorous content, then there should be no legal justification to deny the manufacturer the subsidy as per the impugned notification.

Company, a fertilizer manufacturer had alleged that merely because fertilizer was manufactured by using 'imported rock' or that fertilizer was imported in its finished form did not constitute intelligible criteria, entitling receipt of the subsidy to the exclusion of others; that stipulation in the notification that fertilizer had to be manufactured by using imported rock did not stand to reason and this was done simply to exclude those manufacturers of fertilizer who were utilizing local rock; and that by utilizing locally mined phosphorous rock the company was producing fertilizer the phosphate content whereof was 18 per cent. therefore, it was also entitled to the subsidy provided to other manufacturers.

High Court had rightly observed that the phrase 'imported rock' used in the notification went unexplained. Had it been some particular 'imported rock' from a particular country or countries with their names duly mentioned in the notification, then, of course, it could be understandable that some country or countries had rocks or reserves containing phosphate content of high value and quality and which was not available anywhere in Pakistan.

However, it appeared that the impugned notification was issued in a rather hurried manner without caring for the impending questions and queries, which raised eyebrows about the bona fide of the impugned notification. Benchmark or the ultimate threshold while evaluating the value and quality of fertilizer was its 18% phosphorous content and certainly not the mere use of 'imported rock' from some unspecified country.

Litmus test or the sine qua non for qualifying for the subsidy through the impugned notification should be the 18% phosphorous content in the fertilizers. Whether a manufacturer of fertilizer used an imported rock or a domestic rock, it was the end product which is to be examined and analyzed in order to meet the requisite 18% phosphorous content.

Classification made between fertilizer made from imported rock and fertilizer made from domestic rock did not constitute intelligible differentia having rational nexus to the very object of the subsidy scheme announced by the Government. Supreme Court directed that all those wanting to avail the subsidy mentioned in the notification must have their fertilizer subjected to undergo the requisite test by Pakistan Standards and Quality Control Authority Standards Development Center (Chemical Division) and if a product or a fertilizer met the standards of the said authority and possessed 18% phosphorous content, then there should be no legal justification to deny the manufacturer the subsidy as per the impugned notification.

For the Petitioner:

Sajid Ilyas Bhatti, Deputy Attorney General for Pakistan.

Syed Rifaqat Hussain Shah, Advocate-on-Record.

Abid Javed, Secretary, Ministry of National Food Security and Research, Islamabad.

Imtiaz Ali Gopang, Deputy Food Security Commissioner.

Abdul Samad, Research Officer.

For the Respondents:

Salman Akram Raja, Advocate Supreme Court.

Mehmood A. Sheikh, Advocate-on-Record (absent).

On Court Notice:

Ashtar Ausaf Ali, Attorney General for Pakistan.

Dates of Hearing: 24th, 25th, 26th and 27th May 2016.

P L D 2016 Supreme Court 689

Present: Anwar Zaheer Jamali, C.J., Sh. Azmat Saeed and Faisal Arab, JJ

Ch. MUHAMMAD YOUSAF KASELIA---Appellant

Versus

PEER GHULAM MOHY-UD-DIN CHISHTI and others---Respondents

Civil Appeal No.321-L of 2014, decided on 16th May, 2016.

(On appeal against the judgment dated 30-9-2014 passed by the Election Tribunal, Multan in Election Petition No.179/2013 ECP, 13/2013 ETM).

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

----S. 12(2)(c)---Nomination form---Non-disclosure of Bank loan---Effect---Contesting candidate must disclose his assets and liabilities in his nomination form---Disclosure of liabilities was more important than disclosure of assets---Non-disclosure of any liability was to be met with penal action ---Returned candidate, in his nomination form, had not made any disclosure of Bank loan under his liabilities---Financial liability of Rs.70 million was incurred and secured by creating mortgage on immovable property owned by the returned candidate---Admittedly, the returned candidate was one of the signatories to the mortgage deed but he failed to disclose said liability, incurred upon himself in his nomination form---Fact that financial obligation had not yet become due was not relevant, as liability was created the moment a person took upon himself the obligation to settle the same in future---Election Tribunal had rightly declared the election of returned candidate as void---Appeal was dismissed accordingly.

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

----S. 12(2)(c) & (f)---Nomination form---Non-disclosure of financial liability/Bank loan---Whether candidate was bound to disclose only those financial liabilities/Bank loans in his nomination form that had become due---Financial liability could not be equated with default committed with regard to any financial obligation---Financial liability was incurred the moment an obligation was created to discharge the same, which by efflux of time either had already become due or was to fall due sometime in future---Irrespective of any default relating to a financial obligation, liability got created the moment a person took upon himself the obligation to settle the same in future, thus, the same had to be disclosed in the nomination form.

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

----S. 50---Election for seat of Provincial Assembly---Election campaign expenses --- Returned candidate spending Rs.30,500 over and above the permissible limit for election campaign expenses---Such amount was not significant enough to be made basis for declaring returned candidate's election as void---Appeal was dismissed accordingly.

Muhammad Shahzad Shaukat, Advocate Supreme Court and Barrister Jehanzeb Raheem, Advocate Supreme Court for Appellant.

Syed Najmul Hassan Kazmi, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1

Ex parte for Respondents Nos.2-4.

Date of hearing: 16th May, 2016.

P L D 2016 Supreme Court 692

Present: Mian Saqib Nisar, Umar Ata Bandial, and Maqbool Baqar, JJ

PAKISTAN BROADCASTERS ASSOCIATION and others---Appellants

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY and others---Respondents

Civil Appeal No.1-K of 2016, decided on 13th June, 2016.

(Against the judgment dated 7-7-2014 of the High Court of Sindh, Karachi passed in C.P. No.D-1872 of 2010).

(a) Constitution of Pakistan ---

----Art. 19---Freedom of speech---Scope and significance---Freedom of speech went to the very heart of a natural right of a civilized society to impart and acquire information about their common interests; it helped an individual in self accomplishment, and led to discovery of truth; it strengthened and enlarged the capacity of an individual to participate in decision making, and provided a mechanism to facilitate achieving a reasonable balance between stability and social change.

(b) Constitution of Pakistan ---

----Art. 19---Freedom of media---Significance---Concept of freedom of media was based on the premise that the widest possible dissemination of information from diverse and antagonistic sources was sine qua non to the welfare of the people---Such freedom was the foundation of a free government of a free people---Any attempt to impede, stifle or contravene such right would certainly fall foul of the freedom guaranteed under Art.19 of the Constitution.

(c) Constitution of Pakistan ---

----Part. II, Chap. 1 [Arts. 8 to 28]---Fundamental Rights, regulation of---"Reasonable restrictions"---Scope---Legislative powers conferred on the State functionaries could be exercised only to regulate Fundamental Rights through reasonable restrictions, and that too only as may be mandated by law and not otherwise---Authority wielding statutory powers conferred on it must act reasonably and within the scope of the powers so conferred---"Reasonableness" in such context could not be defined with precision; it was neither possible nor advisable to prescribe any abstract standard of universal application of reasonableness, however, factors such as the nature of the right infringed, duration and extent of the restriction, the causes and circumstances prompting the restriction, and the manner as well as the purpose for which the restrictions were imposed were to be considered---Extent of the malice sought to be prevented and/or remedied, and the disproportion of the restriction may also be examined in the context of reasonableness or otherwise of the imposition---"Reasonable" implied intelligent care and deliberation, i.e. the choice of course that reason dictated---For an action to be qualified as reasonable, it must also be just, right and fair, and should neither be arbitrary nor fanciful or oppressive.

(d) Constitution of Pakistan ---

----Art. 19---Freedom of expression/speech, restrictions on---Reasonableness---Constitution provided for reasonable restrictions on the right to free speech---State could regulate the right to speech when it came in conflict with the rights of other individuals, or other societal interests---No one could be forced to listen or watch that he may not like to, and one could not be invaded with unsolicited interruptions while watching or listening to something of interest---Equilibrium had to be maintained by placing reasonable restriction on freedom of expression in the maintenance of "public order"---Supreme Court observed that Government should strike a just and reasonable balance between the need for ensuring the people's right of freedom of speech and expression on the one hand and the need to impose social control on the business of publication and broadcasting.

In examining the reasonableness of any restriction on the right to freedom of expression it should essentially be kept in mind as to whether in purporting to exercise freedom of expression one was infringing upon the right of freedom of expression of others, and also violating their right to live a nuisance free life, and as to whether one's right to time and space was being violated. No one could be forced to listen or watch that he may not like to, and one could not be invaded with unsolicited interruptions while eagerly watching or listening to something of his interest. State was not supposed to remain oblivious of such violation/invasions and could not detract from its obligation to regulate the right to speech when it came in conflict with the right of the viewers or listeners. Constitution, though secured the right to free speech, but had not left the same unchecked, and had provided for reasonable restriction as postulated under Article 19 of the Constitution. State had a compelling interest in regulating the right to speech when it came in conflict with the rights of other individuals, or other societal interests.

In a civilized and democratic society, restrictions and duties co-existed in order to protect and preserve the right to speech. It was thus inevitable to maintain equilibrium by placing reasonable restriction on freedom of expression in the maintenance of "public order". Unless the restriction struck a proper balance between the freedom of expression guaranteed by Article 19 of the Constitution and the social control permitted thereby, it must be held to lack the attributes of reasonableness. Government should therefore strike a just and reasonable balance between the need for ensuring the people's right of freedom of speech and expression on the one hand and the need to impose social control on the business of publication and broadcasting.

(e) Constitution of Pakistan---

----Art. 19---Freedom of expression, restrictions on---Grounds---Freedom of expression being a natural fundamental right could not be suppressed unless the same was being exploited and/or was causing danger to, or in it laid the imminent potential of hurting public interest, or putting it at stake directly---Anticipated danger should not be remote, conjectural or far-fetched; it should rather have proximate and direct nexus with the expression.

(f) Pakistan Electronic Media Regulatory Authority Rules, 2009 ---

----R. 15(3)---Constitution of Pakistan, Arts. 18 & 19---Satellite TV channels---Advertisement content---Excessive advertisement breaks during the broadcast of programmes---Lack of continuity in programming and reduction of quality of viewing experience---Pakistan Electronic Media Regulatory Authority ("PEMRA") inserted a clause in licence agreements of broadcasters that restricted the maximum period of an advertisement break during prime time, and also enforced R.15(3) of Pakistan Electronic Media Regulatory Authority Rules, 2009 which set a minimum time duration between two successive advertisement breaks---Legality---Commercial speech could be regulated by the State---No one could be forced to listen or watch that he may not like to, and one could not be invaded with unsolicited interruptions while eagerly watching or listening to something of his interest---Viewers watched television in expectation of content feeds and not advertisements---Broadcasters attempted to lengthen commercial breaks by putting more advertisements to maximize revenue irrespective of whether the viewer was willing or not---Frequency and volume of advertising caused lack of continuity in programming and significantly reduced the quality of viewing experience---Duration of advertisement was inversely proportional to the quality of the viewing experience---State was obliged to regulate the right to speech when it came in conflict with the right of the viewers or listeners---Rule 15(3) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 and the impugned clause in the licences of broadcasters merely regulated duration of advertisements broadcast by television channels, and the spacing between advertisements slots and programme contents; the same neither prohibited/restricted the contents of any broadcast, nor were invasive on the right to free speech and freedom of expression---Said Rule and clause were also in conformity with the Art.18 of the Constitution, which protected the right to conduct a lawful business, but also made it permissible to regulate any trade or profession by a licensing system---Duration of advertisement breaks proposed by broadcasters during present proceedings were overwhelmingly in compliance with R.15(3) and the impugned clause ---High Court had rightly upheld the legality and propriety of R.15(3) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 and the impugned clause---Appeal filed by broadcasters was dismissed accordingly.

Rule 15(3) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 provided that during a regular programme a continuous break for advertising shall not exceed three minutes and duration between two such successive breaks shall not be less than fifteen minutes. Pakistan Electronic Media Regulatory Authority ("PEMRA") sent notices to various satellite TV channels requiring them to broadcast advertisements in compliance with the said Rule. Satellite TV channels challenged vires of Rule 15(3) and also clause ("impugned clause) inserted by PEMRA in their licences which stated that "the maximum period of an advertisement break during Prime Time, that is, between 1900 to 2200 hours Pakistan Standard Time, shall not be more than 2 minutes to a minimum of ten minutes of programme.

Even (non-commercial) core free speech, which propagated social, political or economic ideas, promoted literature or human thought, was subject to reasonable restrictions contemplated under Article 19 of the Constitution. Advertisements/commercial speech (on Satellite TV channels) where the object and purpose was restricted to mere promotion of sales of goods and services, or stimulation of purchase thereof, and where the acquisition of the article to be sold constituted the only inducement to its viewer, the same did not receive the same protection as social or political speeches and was subject to higher degree of regulations than non-commercial speech.

Central Hudson Gas and Electric Corporation v. Public Service Commission of New Yord, 447 US 557, 564; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc, 425 US 748, 96S. CT 1817, 48 L. Ed. 2nd 346(1976); Board of Trustees of State University of New York v. Fox, 492 US 469 and Metro Media Inc. v. City of San Diego, 459 US 490 ref.

No one could be forced to listen or watch that he may not like to, and one could not be invaded with unsolicited interruptions while eagerly watching or listening to something of his interest. State was not supposed to remain oblivious of such violation/invasions and could not detract from its obligation to regulate the right to speech when it came in conflict with the right of the viewers or listeners.

Rule 15(3) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 and the impugned clause in the licences merely regulated duration of advertisements broadcast by television channels, and the spacing between advertisements slots and programme contents. The same in no way prohibited or even restricts the contents of any broadcast, nor even related to such content, either commercial or otherwise, and therefore in no way could be described as being invasive on the right to free speech and freedom of expression. On the contrary they protected time and space for core free speech and public discourse, and thus facilitated and secured propagation of social, political and economic ideas and furtherance of literature and human thought, and also the transmission of entertainment. Rule 15(3) of the PEMRA Rules, 2009 also protected and safeguarded the viewer's right to optimum viewing experience and quality programme from being infringed, as the duration of advertisement was inversely proportional to the quality of the viewing experience. Presently content feeds on television were interspersed with advertisements, often repeated several times. Broadcasters attempted to lengthen commercial breaks by putting more advertisement to maximize revenue irrespective of whether the viewer was willing or unwilling. This frequency and volume of advertising caused lack of continuity in programming and significantly reduced the quality of viewing experience. The duration of advertisement, their placement, either with or in between programmes, and the frequency of their occurrence were closely linked to the quality of consumers viewing experience.

Viewers watched television in expectation of content feeds and not advertisement. They had no option of skipping advertisements, which adversely affected the quality of transmission. Viewers wanted to enjoy the programme content and paid for it to the cable operators and bore the cost of their television set and other necessary gadgets; they also paid for the electricity consumed in watching TV and took out time for watching programme of their interest, but were exposed to advertisements.

Rule 15(3) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 and the impugned clause in the licences were also in conformity with the provision of Article 18 of the Constitution, which protected the right to conduct a lawful business, but also made it permissible to regulate any trade or profession by a licensing system.

Broadcasters main emphasis was that limiting the duration of advertisement breaks would result in revenue losses for them and as their only source of income was advertisement fee, as such it would make the sustenance of their business almost impossible. However it was to be noted that time restriction under challenge imposed by Rule 15(3) of PEMRA Rules, 2009 had been in vogue since the year 2002, firstly by PEMRA Rules, 2002 and thereafter under the present Rules of 2009 and therefore it could not be said that while preparing their feasibility and evaluating the viability of their business the broadcasters would not have taken into account the impugned time restriction and especially when, they had themselves proposed the duration of advertisement breaks, which were overwhelmingly in compliance with the Rule 15(3) and the impugned clause. In any event, a statutory requirement [Rule 15(3)] and contractual obligation (impugned clause) could not be made subservient to the commercial interest of a business enterprise. High Court had rightly upheld the legality and propriety of Rule 15(3) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 and the impugned clause. Appeal filed by broadcasters was dismissed accordingly.

(g) Pakistan Electronic Media Regulatory Authority Rules, 2009 ---

----R. 15(3)---Constitution of Pakistan, Art. 19---Satellite TV channels---Advertisement content---Excessive advertisement breaks during the broadcast of programmes---Pakistan Electronic Media Regulatory Authority ("PEMRA") inserted a clause in licence agreement of broadcasters that restricted the maximum period of an advertisement break during prime time, and also enforced R.15(3) of Pakistan Electronic Media Regulatory Authority Rules, 2009 which set a minimum time duration between two successive advertisement breaks---Broadcasters of TV channels objected that they were not being treated fairly as unlike TV channels the print media/newspapers were free to print and publish as many advertisements as they wished---Validity---Newspapers and TV channels were two different mediums---Unlike newspapers, TV channels for their transmission had to use airwaves which constituted public property, whereas the right guaranteed by Art.19 of the Constitution though secured right to receive and disseminate information but did not guarantee use of public property, which could be availed only if the law permitted and to the extent and in the manner prescribed thereby---Since there was a paucity of airwaves/frequencies, it was imperative for the State to ensure that the same were used in the best public interest, and the interest of the viewers/listeners being paramount, had precedence over the interest of broadcasters---Reader or a subscriber of a newspaper had a choice to either read or ignore any or all the advertisements the newspaper may carry, whereas a television viewer did not have such a choice; viewer was in fact a captive audience and had the choice to either watch the advertisement which intruded into his viewing pleasure and caused disruption, or to switch off the television---Television viewers in the country, more often than not, did not even get a respite by switching over to some other channel as, and perhaps by design, almost all the channels had synchronized transmission of advertisements, and therefore viewer could not avoid watching advertisements by even switching to another channel---Supreme Court observed that increasing the duration of advertisements (in programmes) may therefore cause depletion in the number of viewers, adversely impacting the amount of revenue generated per viewer---High Court had rightly upheld the legality and propriety of R.15(3) of the Pakistan Electronic Media Regulatory Authority Rules, 2009 and the impugned clause---Objection raised by broadcasters was dismissed accordingly.

Khalid Javed Khan, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record (absent) for Appellants.

Muhammad Hanif Kashmiri, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate on Record for Respondnets.

M. Aslam Butt, D.A.G. (on Court Notice).

Date of hearing: 15th January, 2016.

P L D 2016 Supreme Court 712

Present: Mian Saqib Nisar, A C J., Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

GHULAM QADIR and others---Appellants

Versus

Sh. ABDUL WADOOD and others---Respondents

Civil Appeals Nos.510, 934/2012, 1247/2014 and 509/2006, heard on 28th April, 2016.

(Against the judgment dated 9-2-2005, 23-10-2009, 9-3-2012 and 1-9-2014 of the Lahore High Court Lahore, Lahore High Court Rawalpindi Bench, Peshawar High Court Peshawar and Lahore High Court Lahore passed in C.Rs. Nos. 1274/1998, 87/1998, 91/2000 and 405/2000, respectively).

(a) Appeal ---

----Scope and nature---Appeal was the recourse adopted by a person to a superior court vested with the jurisdiction to reconsider a decision of a subordinate court, with the aim of attaining a reversal/modification of such decision---Appeal was not merely a matter of procedure but a substantive right; it was the continuation of a suit and during appellate proceedings the entire matter stood reopened---Jurisdiction of an appellate court could be invoked by a person who believed that the subordinate court had erred in law or in fact whilst passing the judgment/order under appeal.

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

----S. 115---Revisional court, function of---Matter of revision was not a mere privilege afforded to the aggrieved person but also a right, however revisional power remained discretionary---Function of the revisional court was to ensure the proper administration of justice through the proper exercise of jurisdiction, procedural accuracy, correctness of the decision and legality thereof by the subordinate court ---If the revisional court was satisfied that the subordinate court had not erred in such regard and the decision was sound in law, then it would not reverse or modify the decision solely on the basis that the subordinate court could have reached a different conclusion on merits.

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

----Ss. 115 & 151 & O. IX, Rr. 8 & 9---Revision filed by a petitioner under S.115, C.P.C admitted to regular hearing---Dismissal for non-prosecution---Legality---Maxim 'vigilantibus et non dormientibus jura subveniunt'---Civil revision once admitted to regular hearing could be dismissed for non-prosecution---Supervisory jurisdiction of revisional court did not mean that the court could not dismiss a civil revision for non-prosecution---Revisional court was not to exercise its discretion in favour of those who slept over their rights---Where the revisional court had taken up the matter at the behest of a petitioner, the court had the power to dismiss the civil revision for non-prosecution even after it has been admitted to regular hearing, and was not bound to decide the same on merits---However, the revisional court was not to dismiss a revision petition for non-prosecution but to decide it on merits only where the court had taken cognizance of the matter of its own suo motu powers.

Revisional court should not be compelled to decide a civil revision on merits in the absence of either party(ies) just because it had been admitted to regular hearing. Court should not be rendered a slave to a person who filed a revision petition and subsequently choose not to appear before the revisional court due to disinterest or ignorance/indolence, and neither should such person be awarded a premium/privilege in such regard, as this would result in (possible) injustice to the contesting party. Adopting such a course would inevitably result in an undesirable increase in the caseload of the (overburdened) courts as numerous revision petitions would remain pending. Courts must consider the competing interests of both parties in the light of the principles of proportionality and balancing. Dismissing a revision petition due to non-appearance of the petitioner(s) was a clear manifestation of the act of balancing by the revisional court in performance of its judicial and discretionary functions. The dismissal could always be challenged by the petitioner subject to him establishing "sufficient cause" for his (or his counsel's) non-appearance on the date his case was dismissed for non-prosecution. The revisional court in exercise of its inherent jurisdiction may restore the petition.

Muhammad Sadiq v. Mst. Bashiran and 9 others (PLD 2000 SC 820) held to be not good law

Admission of a civil revision petition was analogous to a leave granting order of the Supreme Court which meant that there was a point(s) which needed consideration and if the appellant did not appear after leave was granted, it (appeal) could be dismissed for non-prosecution and not necessarily on merits. The same reasoning applied to civil revisions, supervisory jurisdiction of revisional court did not mean that the court could not dismiss a civil revision for non-prosecution.

Civil Procedure Code, 1908 contained no bar to prevent the revisional court from dismissing a civil revision for non-prosecution. Revisional court could regulate admission, dismissal for non-prosecution and restoration thereof in the same manner as the trial and appellate courts did, by virtue of its (revisional court's) inherent powers under Section 151 of the C.P.C.

Revisional court could follow the procedure(s) provided in Order IX, Rules 8 and 9, C.P.C which pertained to (dismissal for non-prosecution and restoration of) suits, for the regulation of its own revisional jurisdiction.

Where a person brought a matter to the notice of the revisional court under the first proviso to Section 115(1), C.P.C, it was essentially adversarial litigation and in that eventuality, although the court was still acting in its supervisory jurisdiction, the revision could certainly be dismissed for non-prosecution. To hold otherwise would be incorrect for several reasons. Firstly, it would lead to the absurd situation where a person having once invoked the revisional jurisdiction of the court by filing a civil revision subsequently admitted to regular hearing, would be unable to withdraw such revision. Besides, it would negate the very purpose and mandate of the first proviso to Section 115(1), C.P.C. under which any person could file a revision application. On the basis of such reasoning, revisional courts would not be able to dismiss revision petitions rendered infructuous in light of a compromise entered into between the parties. Secondly, such an interpretation presumed the provisions of Section 115, C.P.C., which employed the word "may", were mandatory thereby reading into the statute something which was not there. Thirdly, it would render superfluous the legal maxim 'vigilantibus et non dormientibus jura subveniunt', meaning that law aided the vigilant, not the indolent. Revisional court should only exercise its discretion in favour of those who conscientiously pursued their rights and not those who slept over them which conduct would indubitably disentitle such persons to discretionary relief.

Revisional court however was not to dismiss a revision petition for non-prosecution but to decide it on merits only where the court had taken cognizance of the matter of its own suo motu powers. When the revisional court decided to take up a matter suo motu, it should have necessarily done so by a conscious application of judicial mind and a thorough examination of the record.

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

----Ss. 115, 151 & 107---Civil revision filed under S.115, C.P.C.---Dismissal for non-prosecution---Restoration of revision petition---Scope---Civil Procedure Code, 1908 did not contain any specific provisions for the dismissal and for the restoration of a civil revision, therefore, the same (civil revision) could both be dismissed and restored by the court while exercising its inherent powers under S.151, C.P.C and resort may also be made to S.107, C.P.C.

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

----Ss. 115 & 151---Limitation Act (IX of 1908), S. 5 & Art. 181---Civil revision filed under S.115, C.P.C dismissed for non-prosecution---Application seeking restoration of revision petition in exercise of inherent powers of the court---Limitation---Limitation Act, 1908 did not contain any specific Article which would prescribe the limitation period for the exercise of such inherent power of the court, therefore the residuary Art.181 of the Limitation Act, 1908 shall be attracted---For allowing or refusing such an application the rule of "sufficient cause" as envisaged by S.5 of the Limitation Act, 1908 and its principles shall be attracted, regardless of whether such section was applicable or not.

Mandi Hassan alias Mehdi Hussain and another v. Muhammad Arif PLD 2015 SC 137 ref.

Allah Bachai and others v. Fida Hussain and others 2004 SCMR 615 held to be per incuriam

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

----Ss. 115 & 151---Limitation Act (IX of 1908), S. 5 & Art. 181 --- Civil revision filed under S. 115, C.P.C. dismissed for non-prosecution---Application seeking restoration of revision petition also dismissed for non-prosecution---Application seeking restoration of such an application for restoration---Limitation---Residuary Art.181 of the Limitation Act, 1908 shall be attracted in the case of such an application---For allowing or refusing such an application the rule of "sufficient cause" as envisaged by S.5 of the Limitation Act, 1908 and its principles shall be attracted, regardless of whether such section was applicable or not.

Mandi Hassan alias Mehdi Hussain and another v. Muhammad Arif PLD 2015 SC 137 ref.

Allah Bachai and others v. Fida Hussain and others 2004 SCMR 615 held to be per incuriam.

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

----Preamble---Limitation was a part of positive law, which has to be construed and applied as per the settled principles; it had to be given due effect as per the mandate of law---Limitation was not a mere technicality of form.

(h) Constitution of Pakistan ---

----Art. 185(3)---Supreme Court---Order refusing grant of leave to appeal---Not an enunciation of law by the Supreme Court.

Mujeeb ur Rehman, Advocate Supreme Court for Appellants (in C.A.No.510 of 2012).

Niaz Wali Khan Advocate Supreme Court for Appellant (in C.A.No.934 of 2012).

Gulzarin Kiyani Senior Advocate Supreme Court for Appellants (in C.A.No.1247 of 2012)

Nemo for Appellant (in C.A. No.509 of 2006).

Gulzarin Kiyani, Senior Advocate Supreme Court and Muhammad Munir Peracha, Advocate Supreme Court for Respondents (in C.A.No.510 of 2012)

Nemo for Respondents (in C.A. No.934 of 2012).

Muhammad Bashir Malik, Advocate Supreme Court for Respondents (in C.A.No.1247 of 2014).

Ex parte for Respondents (in C.A.No.509 of 2006).

Syed Najam-ul-Hassan Kazmi, Senior Advocate Supreme Court: Amicus Curiae.

Date of hearing: 28th April, 2016.

P L D 2016 Supreme Court 730

Present: Anwar Zaheer Jamali, C.J. and Maqbool Baqar and Faisal Arab, JJ

COMBIND INVESTMENT (PVT.) LTD.---Appellants

Versus

WALI BHAI and others---Respondents

Civil Appeal No.79-K of 2015, decided on 2nd June, 2016.

(Against the judgment dated 14-11-2014 of the High Court of Sindh, Karachi passed in C.P.No.S-411 of 2012).

Per Anwar Zaheer Jamali, CJ; Faisal Arab, J [Referee Judge] agreeing, dissenting with Maqbool Baqar, J. [Majority view]

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

----Ss. 2(h), 3 & 15(2) (iii) (b)---Hotel premises---Applicability of Sindh Rented Premises Ordinance, 1979---Rent Controller, jurisdiction of---Premises let out to tenant for commercial/residential purposes---Tenant using the premises for running a hotel---Whether tenant wrong/unauthorized user of premises---Whether jurisdiction of Rent Controller ousted---Rented premises, in the present case, which was being unilaterally used by the tenant as a hotel, did not fall within the meaning of "hotel" as used in S.2(h) of Sindh Rented Premises Ordinance, 1979---Written lease agreements executed between the parties proved that at no point in time the demised premises was ever let out to the tenant as a "hotel"---Rented premises was let out for the purpose of business/residential use, however the subsequent change in its use for running a hotel by the tenant, that too unilaterally, would not take away the jurisdiction of the Rent Controller---Provisions of the Sindh Rented Premises Ordinance, 1979 were thus duly applicable to the present case---Tenant had himself submitted to the jurisdiction of the Rent Controller by filing an application for deposit of rent before the Rent Controller---Tenant was, thus, estopped from his conduct to challenge the jurisdiction of the Rent Controller---[Per Faisal Arab, J: Tenant by pleading that rental premises on account of its use as a hotel was excluded from the provisions of Sindh Rented Premises Ordinance, 1979 , was denying himself the protection of rent laws, and was relegating his status from a tenant to a mere licensee---Tenant had acquired interest in the premises on monthly rental basis in his capacity as tenant, thus his status could not be converted to that of a licensee---Only legal remedy to seek eviction of tenant was to file an eviction application under the provisions of Sindh Rented Premises Ordinance, 1979]---[Per Maqbool Baqar, J. (Minority view): Premises was leased out to the tenant for "business/residential' purposes---Running a hotel fell within the definition of a business---Premises, in question, was being constructed by its original owner as a hotel, but it could not be completed---At the time of its demise to the tenant, the premises consisted of an incomplete bare structure, and the current owner/landlord never objected to the construction by the tenant, rather allowed the tenant to continue to carry out construction to suit his requirements---Current owner had not claimed that the hotel was being run by the tenant in a clandestine manner---At no point in time, the original or current owner of the demised premises, objected to the hotel being housed and run in the demised premises---Fact that for about forty years, the owners of a fairly large four storied commercial building, situated on a major main road, in an important commercial area of a large city would not know of the same being used by the tenant for housing and running a hotel was wholly inconceivable---Premises was registered/mentioned as a hotel with the various government departments, institutions and the gas supply company, and 'Hotel Tax' was being paid in respect of the same---High Court had rightly held that since the demise premises was a hotel premises, neither the Sindh Rented Premises Ordinance, 1979 applied nor the Rent Controller had the jurisdiction to entertain and decide the ejectment proceedings in respect thereof]---Supreme Court held that Rent Controller had the jurisdiction to entertain and decide the ejectment proceedings in the present case---Eviction order passed by Rent Controller was restored accordingly.

Per Anwar Zaheer Jamali, C.J. (Majority view)--

Rent Controller ordered eviction of the tenant and held that the rented premises was rented out to the tenant for business/residential purpose and not for running a "hotel" and the subsequent conversion of the building for hotel use, unilaterally by the tenant did not alter the nature of premises so as to exclude the same from the provisions of Sindh Rented Premises Ordinance, 1979. High Court set aside the ejectment order on the ground that since the demise premises was a hotel premises, neither the Sindh Rented Premises Ordinance, 1979 applied nor the Rent Controller had the jurisdiction to entertain and decide the ejectment proceedings in respect thereof.

Phrase "premises…. does not include a hotel" as used in section 2(h) of the Sindh Rented Premises Ordinance, 1979 was only meant to exclude from the purview of the Ordinance, the dealings between the proprietor/manager of the hotel business and the customer who hired a room in the hotel. Said phrase did not aim to exclude or cease the relationship of landlord and tenant that was created between the owner of the (hotel) building and its tenant, who was running the hotel business, as was the case in the present matter. Thus rented premises in the present case which was being unilaterally used by the tenant as a hotel did not fall within the meaning of "hotel" as used in section 2(h) of Sindh Rented Premises Ordinance, 1979.

Written lease agreements executed between the parties proved that at no point in time the demised premises was ever let out to the tenant as a hotel.

Admittedly, when the rented premises were initially let out by the original owner to the tenant, it was an incomplete building and the first lease agreement only mentioned commercial/residential use of premises. In case the rented premises were let out as hotel, such fact could have been specifically incorporated in the lease agreements or there could have been some reference of such nature in it, which was not so in the present case.

Once rented premises was let out for the purpose of business/residential use, it could not be assumed that the subsequent change in its use for running a hotel by the tenant, that too unilaterally, would take away the jurisdiction of the Rent Controller in the matter. Thus, the Rent Controller had jurisdiction in the present matter to decide the case as the rented-premises were located in the urban area and by virtue of section 3, read with section 2(h), the provisions of the Sindh Rented Premises Ordinance, 1979 were duly applicable to the present case.

Mere fact that there was inaction on behalf of the original and current owners when rented premises was used as a hotel or they did not seek ejectment of the tenant on the ground of change of use of rented premises, or that a letter sent by the original owner to the tenant made reference to rented premises as a "hotel", would not be sufficient to record a conclusion about the ouster of jurisdiction of Rent Controller.

Tenant had himself submitted to the jurisdiction of the Rent Controller by filing an application for deposit of rent before the Rent Controller; and followed such practice even during the pendency of ejectment proceedings. Tenant was, thus, also estopped from his conduct to challenge the jurisdiction of the Rent Controller on the plea that he had been carrying on hotel business in the rented premises, as his hotel business had nothing to do with his status as tenant of the current owner in respect of rented premises.

Per Faisal Arab, J (Majority view): Tenant under a written agreement of tenancy obtained the premises in question on monthly rental basis and was enjoying its exclusive occupation for the past 42 years. Tenant by pleading that since the rented premises was a hotel, therefore, in terms of section 2(h) the provisions of the Sindh Rented Premises Ordinance, 1979 were not applicable, was in fact stating that he was occupying the premises in question as a licensee. This amounted to saying that the current owner/landlord could deny him the enjoyment of the premises in question in the same manner in which a proprietor of a hotel could deny to his guests. Status of tenant, in the present case, could not be converted to that of a guest of a hotel. Only legal remedy to seek eviction of tenant that was available to the current owner of the premises was to file eviction application under the provisions of Sindh Rented Premises Ordinance, 1979.

[Per Maqbool Baqar, J. (Minority view): Purpose for which the premises was leased out by the original owner had been broadly described in the lease agreements/deeds as "business/residential". Nature of the business permissible in the premises had not been restricted by specifying any category of business. Certainly running of a hotel could by no means be described as an engagement/activity other than a business engagement/activity, and could by no stretch of imagination be said to be an occupation not falling within the definition of the word business.

Perusal of the lease agreements/deeds clearly revealed that at the time of its demise to the tenant, the premises consisted of a bare structure, containing ground plus mezzanine, and three upper floors, and the same was built into a hotel by the tenant by constructing rooms with attached baths in the mezzanine and the upper three floors within the knowledge, and with the consent and approval of the original owner. Undisputedly the premises was being constructed by its original owner as a hotel. With so many rooms constructed with attached baths in the four floors of the demised premises, which admittedly was a commercial premises, the premises could hardly be more suitably used for any purpose other than a hotel. Original owner never objected to the construction and/or to its nature, he rather allowed the tenant to continue to carryout construction to suit his requirements.

Through a letter the original owner permitted the tenant to make amendments, alteration, or addition to the demise premises, with the approval of the relevant Development Authority. Significantly the address of the tenant, as mentioned in the said letter described the demised premises as a 'hotel'.

Tenant's witness during his evidence produced seventeen bills paid by the tenant for the gas consumed at the hotel; twenty three receipts of payment made by the tenant to the Provincial Employees Social Security institution towards social security contribution on behalf of the hotel; fifteen paid challans of "tax on hotel" paid to Excise and Taxation department in respect of the hotel, and challans of the property tax paid in respect of demised premises on behalf of owner, describing the demised property as a hotel.

At no point in time, the original owner of the demised premises, or after his death the present owner, objected to the hotel being housed and run in the demised premises. Had the tenant indulged in the wrong/unauthorized user of the building, in breach of the lease agreements/deeds, the owners would certainly have objected to the same. Present owner had not even alleged that it remained unaware of the premises being used for a hotel. Indeed in the fact and circumstances of the case, it would have been preposterous to plead so, as it was wholly inconceivable that for about forty years, the owners of a fairly large four storied commercial building, situated on a major main road, in an important commercial area of a large city would not know of the same being used by the tenant for housing and running a hotel.

Current owner sent a notice to the tenant to intimate the change in the ownership of the demised premises, wherein the issue of insufficient monthly rent and vacation of premises was raised but misuse and/or conversion of the user of the premises was not mentioned in the said notice. Tenant in response to the eviction notice had clearly stated that since the very beginning the demised premises was being used by him for housing and running a hotel, but the current owner in his eviction application did not invoke the ground of unauthorized conversion of user. Current owner did not even mention as to for what purpose the premises was leased out, and/or was being used, and it was only through the affidavit in evidence of a witness that unilateral conversion of the user of the premises by the tenant was alleged, which was not permissible under the law. Order passed by High Court did not call for any interference.

Per Maqbool Baqar, J.

(b) Pleadings ---

----Evidence beyond scope of pleadings---None of the parties to a judicial proceeding could be allowed to adduce evidence in support of a contention not pleaded by it and the decision of a case could not rest on such evidence.

Per Anwar Zaheer Jamali, C J; disagreeing with Maqbool Baqar, J, [Majority view].

(c) Interpretation of statutes ---

----Harmonious construction, principle of---Scope---In a situation when there was some ambiguity and it was difficult to understand the true import and meaning of a word, defined in the statute itself, principle of harmonious construction would apply to avoid any mutually destructive or conflicting conclusion---For such purpose, one proper course available would be to read such definition along with definitions of other related words given in the statute on the subject, having nexus to it---If still the ambiguity was not removed, then the statute be read as a whole in order to find a pragmatic and correct meaning of the definition, which coincided with the spirit of the statute.

(d) Words and phrases---

----"Hotel"---Definition.

Black's Law Dictionary; Stroud's Judicial Dictionary and Hallsbury's Laws of England ref.

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

----S. 2(h)---Premises---Phrase "premises…. does not include a hotel" as used in S. 2(h) of the Sindh Rented Premises Ordinance, 1979---Meaning---Said phrase was only meant to exclude from the purview of the Ordinance, the dealings between the proprietor/manager of the hotel business and the customer who hired a room in the hotel so that such customer may not take any undue advantage of the provisions of the Ordinance by seeking its applicability---Said phrase did not aim to exclude or cease the relationship of landlord and tenant that was created between the owner of the (hotel) building and its tenant, who was running the hotel business.

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

----Ss. 2(h), 3 & 15 ---Ejectment petition --- Maintainability --- For the purpose of maintainability (of an ejectment petition), status of rented premises at the time when it was let, would determine whether or not the parties would be governed by the provisions of the Sindh Rented Premises Ordinance, 1979 or otherwise.

Noor Muhammad Khan v. Muhammad Ali Khan PLD 1973 SC 218 and Atta Muhammad and another v. Mir Ahmad and another 2003 SCMR 722 ref.

(g) Estoppel---

----Scope---Where the principle of estoppel was pressed into service on the basis of some admitted/undisputed facts of the case, a party was bound by its pleadings and conduct---Hence, at any later stage,it could not turn around to wriggle out from the consequence of such admission and conduct of submitting to the jurisdiction of such authority.

Per Faisal Arab, J [Referee Judge] ; agreeing with Anwar Zaheer Jamali, J [Majority view]

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

----S. 2(h)---Premises obtained by tenant on rent utilized for running a hotel business---Whether such 'hotel' premises would stand excluded from the definition of premises in terms of S. 2(h) of the Sindh Rented Premises Ordinance, 1979---Hotel guest was merely a licensee and not a tenant that enjoyed protection under rent law---Nature of a hotel business necessitated exclusion of 'hotel' from the application of rent laws; this was the only reason to exclude the term 'hotel' from the definition of premises under S. 2(h) of the Sindh Rented Premises Ordinance, 1979---Such exclusion was never intended to be applied to a premises that was obtained by a person on rent in which he subsequently established a 'hotel' as his business---If exclusion was also applied to such premises then that would amount to treating the person who ran his hotel business in a rented premises to be merely a licensee of the landlord, depriving him the protection of his tenancy rights---Such an interpretation would cause insecurity amongst all operators of hotel business established in rented premises and would contribute towards defeating the purpose of protecting tenancy rights under the rent laws---Section 2(h) of the Sindh Rented Premises Ordinance, 1979 was never intended to achieve such an object.

Moin Azhar Siddiqui, Advocate Supreme Court for Appellant.

Mushtaq A. Memon, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.1.

Date of hearing: 29th December, 2015.

P L D 2016 Supreme Court 763

Present: Anwar Zaheer Jamali, CJ, Amir Hani Muslim and Faisal Arab, JJ

HAFEEZ UR REHMAN---Appellant

Versus

JUDGE ACCOUNTABILITY COURT NO.2 and another---Respondents

Civil Appeal No.1022 of 2012, decided on 6th June, 2016.

(On appeal against the judgment dated 1-7-2010 passed by the High Court of Balochistan, Quetta in C.P. No.209 of 2009).

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Criminal Procedure Code (V of 1898), Ss. 403(1) & (2)---Person once convicted not to be tried for the same offence---Scope---Separate and distinct offences---Approval given by accused-government official for purchase of vehicles and Mine Rescue Equipment caused loss to the public exchequer---National Accountability Bureau ("NAB") filed 'first reference' against the accused, charging him for causing financial loss to the public exchequer in the purchase of vehicles---Accused was tried and convicted by the Accountability Court and thereafter served out his sentence---Subsequently NAB filed 'second reference' against the accused charging him for causing loss to the exchequer for authorizing purchase of Mine Rescue Equipment at exorbitant rates---Accused contended that once he was tried for an offence in the 'first reference' he could not be again tried in the 'second reference' as in both the cases one time approval was granted by the accused for the purchase of the vehicles as well as of Mine Rescue Equipment---Validity---Section 403(1), Cr.P.C. barred the prosecution to try an accused for an offence for which he had either been convicted in an earlier trial but such prohibition was not extendable in a trial, where the offence in the earlier case was distinct from the offence with which an accused was charged in a subsequent case---Section 403(2), Cr.P.C. provided that a person convicted for any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him in the former trial---In the present case, the offence with which the accused was charged in the 'first reference 'was that he in connivance with a co-accused sanctioned purchase of vehicles at the rate of Rs.1,750,000/- per vehicle which was available in the market for Rs. 850,000/- each thereby caused loss to the public exchequer to the extent of Rs.5,323,722/- whereas in the 'second reference' the allegation against the accused was that he enhanced the rates of various items of Mines Rescue Equipment that were even well beyond the rates fixed in PC-I thereby caused loss of Rs.34.375 million to the exchequer---Offences in both the references clearly appeared to be distinct and separate---Provisions of S.403(2) Cr.P.C, were fully attracted to the present case---Appeal was dismissed accordingly.

State v. Remesh M. Udeshi PLD 2003 SC 891 distinguished.

Wasim Sajjad, Senior Advocate Supreme Court for Appellant.

Nasir Mehmood Mughal, Special Prosecutor, NAB for Respondents.

Abdur Rasheed Awan, DAG for the Federation.

Date of hearing: 6th June, 2016.

P L D 2016 Supreme Court 767

Present: Asif Saeed Khan Khosa, Tariq Parvez and Dr. Muhammad Khalid Masud, JJ

AMJAD ALI---Appellant

Versus

FEDERAL SHARIAT COURT through Registrar---Respondents.

Civil Shariat Appeals Nos. 1 and 2 of 2014, decide don 28th June, 2016.

(Against the judgment dated 10-2-2014 passed by the Federal Shariat Court, Islamabad in Service Appeals Nos. 1 and 2 of 2013)

Constitution of Pakistan--

----Arts. 203(2B) & 212---Employees of Federal Shariat Court---Order/judgment passed by Federal Shariat Court in service matters of its employees---Appeal before the Supreme Court---Maintainability---In terms of Art. 203-F & 212(3) of the Constitution, no appeal or petition for leave to appeal laid before the Supreme Court against a judgment or order passed by the Federal Shariat Court in service matters of its employees.

In terms of Article 203-F of the Constitution no appeal laid before the Supreme Court against a judgment or order passed by the Federal Shariat Court in service matters of its employees. Similarly the matter of leave to appeal contemplated by the provisions of Article 203-F(2B) of the Constitution was also not relevant to the judgments or orders of the Federal Shariat Court passed in the service matters of its employees.

No administrative court or tribunal was established for administrative matters of the employees of the Federal Shariat Court which could be said to fall within any of the clauses of Article 212(1) of the Constitution. From a judgment or order passed in a service appeal by the Federal Shariat Court no appeal or petition for leave to appeal laid before the Supreme Court even by invoking Art.212(3) of the Constitution.

Appellant in person (in both cases).

Abdul Rasheed Awan, Deputy Attorney-General for Pakistan.

Qari Abdul Rashid, Advocate-on-Record (in both cases).

Date of hearing: 28th June, 2016.

P L D 2016 Supreme Court 769

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim, Sh. Azmat Saeed, Manzoor Ahmad Malik and Faisal Arab, JJ

Mst. GULSHAN BIBI and others---Petitioners

Versus

MUHAMMAD SADIQ and others---Respondents

Civil Petition No. 41 of 2008 and Civil Appeals Nos.2054 of 2007 and 1208 of 2015.

(On appeal against the judgments dated 15-1-2008, 19-1-2007 and 17-6-2014 passed by the Lahore High Court, Lahore and Multan Benches in Writ Petitions Nos. 9357/2007, 11952/2006 and 11963/2010).

(a) Legislation---

----Special law enacted to curb a crime---Scope and applicability---Category of persons who could be prosecuted---Legislature while enacting a special law for awarding punishment for a crime, in its wisdom, may or may not describe any particular category of persons who could be prosecuted---Where a special law after making a particular act an offence also described the category of persons who could be prosecuted then unless such person fell within the described category, he could not be prosecuted---Where the special law only described the offence or a set of offences and sought to punish any person and every person who was found to have committed the described offence then terms like anyone', 'any person'whoever' and 'whosoever' were used for the offenders in order to include all offenders without any distinction---In such a case, the offender may belong to any class of offenders, he as an accused could be prosecuted under such law.

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

----S. 3---Illegal possession of property---Complaint under Illegal Dispossession Act, 2005---Pre-condition---Nature of accused---Any person who illegally dispossessed, grabbed, controlled or occupied property of a lawful owner or occupier shall be liable for prosecution under the provisions of the Illegal Dispossession Act, 2005---For prosecuting an accused under the said Act, the complainant did not have to first establish that the accused possessed the credentials or antecedents of being a professional land grabber or member of a Qabza Group---All that the Court had to see was whether the accused nominated in the complaint had entered into or upon the property in dispute in order to dispossess, grab, control, or occupy it without any lawful authority---[Muhammad Akram v. Muhammad Yousaf (2009 SCMR 1066), Mumtaz Hussain v. Dr. Nasir Khan (2010 SCMR 1254) and Shahabuddin v. The State (PLD 2010 SC 725) held to be good law]---[Bashir Ahmad v. Additional Sessions Judge (PLD 2010 SC 661) and Habibullah v. Abdul Manan (2012 SCMR 1533) declared to be not good law].

Question in the present case was whether anyone who committed the offence described in section 3 of the Illegal Dispossession Act, 2005 could be prosecuted or only those persons could be prosecuted who held the credentials and antecedents of a 'land grabber' or 'Qabza Mafia'.

Illegal Dispossession Act, 2005 had defined the offence but had not categorized any class of offenders who only could be prosecuted for committing the defined offence.

Reading of section 3(1) the Illegal Dispossession Act, 2005 shows that terms like dispossess, grab, control or occupy had been used which clearly meant that illegal dispossession in all forms had been made an offence and by the use of the terms 'no one' and 'whoever' in sections 3(1) & (2) , anyone and everyone who committed such an offence was made liable for punishment. The very use of the terms like 'no one' and 'whoever' were clearly intended to convey the widest possible meaning for the offenders. Thus without any distinction any person who illegally dispossessed, grabbed, controlled or occupied property of a lawful owner or occupier shall be liable for prosecution under the provisions of the Illegal Dispossession Act, 2005.

Section 3(1) of the Illegal Dispossession Act, 2005, by using the terms 'anyone' and 'whoever' for the offenders clearly warned all persons from committing the offence described therein and when found guilty by the court were to be punished without attaching any condition whatsoever as to the maintainability of the complaint. So all that the Court had to see was whether the accused nominated in the complaint has entered into or upon the property in dispute in order to dispossess, grab, control, or occupy it without any lawful authority. Nothing else was required to be established by the complainant as no precondition had been attached under any provision of the said Act which conveyed the command of the legislature that only such accused would be prosecuted who held the credentials and antecedents of 'land grabbers' or Qabza Group'.

Muhammad Akram v. Muhammad Yousaf 2009 SCMR 1066; Mumtaz Hussain v. Dr. Nasir Khan 2010 SCMR 1254 and Shahabuddin v. The State PLD 2010 SC 725 held to be good law

Bashir Ahmad v. Additional Sessions Judge PLD 2010 SC 661 and Habibullah v. Abdul Manan 2012 SCMR 1533 declared as not good law

From the mere use of the term 'property grabbers' in the Preamble to the Illegal Dispossession Act, 2005 one could not reach the conclusion that the legislature intended that a complainant must first establish that the accused possesses the credentials or antecedents of being a professional land grabber or member of a Qabza Group in order to maintain his complaint under the said Act. The term 'property grabber' could be construed to refer to anyone who had committed the act of grabbing someone's property illegally. Limiting the scope and application of the provisions of the main enactment to a particular class of offenders and that too on the basis of a term used in the Preamble would deflect the court to go into issues which were not subject matter of the complaint that was before it.

Muhammad Akram v. Muhammad Yousaf 2009 SCMR 1066; Mumtaz Hussain v. Dr. Nasir Khan 2010 SCMR 1254 and Shahabuddin v. The State PLD 2010 SC 725 held to be good law

Bashir Ahmad v. Additional Sessions Judge PLD 2010 SC 661 and Habibullah v. Abdul Manan 2012 SCMR 1533 declared as not good law

(c) Interpretation of statutes ---

----Preamble, reliance upon---Scope---Where the language of the substantive provision of an enactment was clear and not open to any doubt then the Preamble could not be used to curtail or enlarge its scope --- Where the enactment was clear and unambiguous, the Preamble could not be used to undermine the clear meaning of the provisions of the Act or give it a different meaning---Only where the object or meaning of an enactment was not clear, the Preamble may be resorted to in order to explain it---So the Preamble was to be resorted only to explain and give meaning to any provision of the enactment where its language was open to doubt or was ambiguous or susceptible to more than one meaning.

(d) Interpretation of statutes---

----Legislative history, reliance upon---Scope---Reference to Legislative history was permissible only as an aid to construction of legislation which was ambiguous or obscure or the literal meaning of which led to an absurdity i.e. from the text of a statute, the court was unable to decipher the real intent of the legislature---Where the text was clear and there existed no ambiguity, resort to the legislative history may actually be counter-productive because such history contained sporadic accounts and arguments made by the Parliamentarians and the final outcome of debates and arguments made in the Parliament could be much different---Real intention of the Parliament was to be first and foremost ascertained from the provisions of the enactment itself and frequent resort to the legislative history was not warranted.

Pepper v. Hart [1992] 3 WLR 1032 ref.

Muhammad Aslam Zar, Advocate Supreme Court and Sardar Abdul Razzaq Khan, Advocate Supreme Court for Petitioners (in Civil Petition No.41 of 2008).

Nemo for Respondents (in Civil Petition No.41 of 2008).

Sajid Ilyas Bhatti, D.A.G. for Appellants (in Civil Appeal No.2054 of 2007).

Ex parte for Respondents Nos. 1-6, 9-10 (in Civil Appeal No.2054 of 2007).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellant (in Civil Appeal No.1208 of 2015.).

Nemo for Respondents (in Civil Appeal No.1208 of 2015.).

Sajid Ilyas Bhatti, D.A.G. for Federation.

Mudassar Khalid Abbasi, A.A.G. for Government of Punjab.

Sarwar Khan, Addl. A.G. and Abdul Jabbar Qureshi, A.A.G. for Government of Sindh.

Date of hearing: 15th June, 2016.

P L D 2016 Supreme Court 778

Present: Ejaz Afzal Khan and Qazi Faez Isa, JJ

TARIQ KHAN MAZARI and 3 others---Appellants

Versus

GOVERNMENT OF PUNJAB through Secretary Industries and 3 others---Respondents

Civil Appeals Nos.1242 to 1245 of 2013, decided on 25th July, 2016.

(On appeal from the judgment dated 26-2-2013 passed in Writ Petitions Nos. 5992 of 2010, 8870 of 2010, 8873 of 2010, 4162 of 2010 and 31331 of 2012 passed by the Lahore High Court, Lahore).

(a) Punjab Industries (Control on Establishment and Enlargement) Act, 1963--

----Ss. 3 & 11---Constitution of Pakistan, Art. 18---Restrictions on establishment/enlargement of sugar industry---Constitutionality---Notification was issued by the Provincial Government under Ss. 3 & 11 of the Punjab Industries (Control on Establishment and Enlargement) Act, 1963 imposing a complete ban on the setting up of new sugar mills and enlarging the installed capacity of existing sugar mills in the province---Said notification was within the executive authority of the Provincial Government---Decision of the Provincial Government, disallowing the setting up of new sugar mills and expanding the capacity of existing ones, was taken after considerable deliberations and was in conformity with the advice of experts of the relevant departments---Factors taken into consideration in coming to such a decision, included various ecological/environmental, agricultural, industrial and financial ones---Current statistics and data on the subject of sugar industry disclosed excessive sugarcane production and a deficit cotton crop which was adversely affecting the cotton ginning and textile industry with negative financial consequences---Such state of affairs were prejudicial to the national interest---Had the Provincial Government not imposed the restrictions it would have further devastated the environment and food security as well as undermined the economy---Provincial Government's decision to stop the expansion of the sugar business did not offend Art.18 of the Constitution as the freedom of trade, business or profession was subject to such qualifications that had been prescribed by law---Madina Sugar Mills v. Secretary Ministry of Industries and others PLD 2001 Lah. 506 approved.

Section 3 of the Punjab Industries (Control on Establishment and Enlargement) Act, 1963 stated that prior permission in writing of the Government was to be obtained before establishing or enlarging any industrial undertaking. Proviso to section 3 however stated that an application seeking permission shall not be rejected without giving an opportunity of showing cause against it or unless the Government was satisfied, on the basis of information available to it that the grant of permission would be prejudicial to the national interest, or injurious to health or a source of nuisance for, the residents of the local area in which it was to be set up or enlarged. However, the Government may, in exercise of powers under section 11 of the said Act exempt any industrial undertaking or class of industrial undertakings from all or any provision of the Act.

Decision of the Provincial Government, disallowing the setting up of new sugar mills and expanding the capacity of existing ones, was taken after considerable deliberations and was in conformity with the advice of experts of the relevant departments, including Agriculture, Food and Industries. The decision of the Provincial Government was also in accordance with the views of the Federal Government. The factors taken into consideration in coming to such a decision, included various ecological/environmental, agricultural, industrial and financial ones. Some of the factors were that the province had an arid climate whereas sugarcane was best grown in tropical zones; that sugarcane consumed far more water than other crops; that the water required for growing sugarcane in non-perennial irrigation canal areas was made up by tapping into groundwater/aquifers inducing water scarcity by depleting aquifers; that sugarcane stubble remained rooted in the soil after it had been cut therefore the second (wheat) crop could not be grown on such land whereas it could be grown on the land from which cotton was harvested; that sugarcane adversely affected food security; that sugarcane substituted cotton and wheat; that existing sugar mills had underutilized capacity; that textile industry was being starved of locally available cotton; that cotton bales were imported by using scarce foreign exchange; that textiles were a major foreign exchange earner; and that international price of sugar was cheaper than the local price therefore sugar did not have export potential.

Current statistics and data on the subject of sugar industry disclosed excessive sugarcane production and a deficit cotton crop which was adversely affecting the cotton ginning and textile industry with negative financial consequences. Situation that had prevailed prior to the ban being imposed appeared to have been further aggravated (as disclosed by latest statistics on the subject), therefore, not only had the ban been justified but also its continuance was imperative.

Provincial Government had inquired into the matter and there was considerable information available with it for concluding that permitting the establishment of new sugar mills or permitting the expansion of existing ones was prejudicial to the national interest. The Provincial Government therefore took the decision to prohibit both new sugar mills and the expansion of existing ones and issued the impugned notification. The decision of the Provincial Government was/is in the public and national interest. Impugned notification was undoubtedly within the executive authority of the Provincial Government

Madina Sugar Mills v. Secretary Ministry of Industries and others PLD 2001 Lah. 506 held to be correct law.

Decision to impose the ban was not to benefit or punish anyone but to ensure the organized and planned growth of the industry, even though by imposing a ban the existing sugar mills may have obtained an advantage of reduced competition. The decision to impose the ban was taken after long deliberations and on the advice of experts and no malice, mala fide or ulterior motive of the Provincial Government in taking the decision was shown. On the contrary, if the Provincial Government had not finally acted it would have further devastated the environment and food security as well as undermining the economy.

When the Provincial Government stopped the expansion of the sugar business it did not offend Article 18 of the Constitution (freedom of trade, business or profession) since the rights guaranteed thereunder were subject to such qualifications that had been prescribed by law.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Notification issued by the Government---Such notification would not be immune from a challenge if it could be demonstrated that it was issued for mala fide or for ulterior purposes or was against the public or national interest.

Khawaja Muhammad Farooq, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. Nos. 1242 and 1244 of 2013).

Noor Muhammad Chandia, Advocate Supreme Court and Ch. Muhammad Anwar Khan, Advocate-on-Record (absent) for Appellant (in C.As. Nos. 1243 of 2013).

Haq Nawaz Chattha, Advocate Supreme Court for Appellant (in C.A.No. 1245 of 2013).

Mudassar Khalid Abbasi, Asstt. Advocate General Punjab, Rao Muhammad Yousaf Khan, Advocate-on-Record (absent) for Respondnets Nos. 1 and 3.

Sikandar Bashir Mohmand, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record (absent) for Respondent No.4.

Sohail Mehmood, D.A.G. (on Court Notice.)

Aitzaz Ahsan, Senior Advocate Supreme Court and Salman Akram Raja, Advocate Supreme Court (In Attendance).

Dates of hearing: 22nd and 23rd June, 2016.

P L D 2016 Supreme Court 808

Present: Mian Saqib Nisar, Iqbal Hameedur Rahman and Maqbool Baqar, JJ

Messrs MUSTAFA IMPEX, KARACHI and others---Appellants

Versus

The GOVERNMENT OF PAKISTAN through Secretary Finance, Islamabad and others---Respondents

Civil Appeals Nos.1428 to 1436 of 2016, decided on 18th August, 2016.

(Against the order dated 9-3-2016 of the Islamabad High Court, Islamabad passed in ICAs. Nos.204, 205, 210/2014 and 793 of 2013, W.Ps. Nos. 3025 to 3027 of 2014 and ICAs. Nos. 201 and 202 of 2014).

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

----S. 3(8ab)---"Federal Government"---Concept of the term 'Federal Government" in relation to five different phases before and after creation of Pakistan stated.

(b) Constitution of Pakistan---

----Art. 99---Constitution (Eighteenth Amendment) Act (X of 2010), S.31---Conduct of business of Federal Government---Scope---Changes made in Art.99 of the Constitution through the Constitution (Eighteenth Amendment) Act, 2010 elaborated.

Two important changes which have been made in Article 99 of the Constitution by the Constitution (Eighteenth Amendment) Act, 2010 were that;

(i) the power of delegation to officers and subordinate authorities had been taken away, and

(ii) the making of rules had been made mandatory.

Two significant inferences followed from such changes.

(i) The executive power of the Federal Government had now been channelized and the exercise thereof was to be through the mandatory modality of Rules of Business. These Rules were therefore binding on the Government and a violation of the terms thereof could be fatal to the exercise of executive power.

(ii) Whereas originally the Federal Government had the power to delegate any of its functions to officers or authorities i.e. it would have been possible to delegate functions pertaining to fiscal matters to the Finance Ministry; this was no longer possible.

(c) Rules of Business, 1973 ---

----R. 16---Cases to be brought before Cabinet---Discretionary power of the Prime Minister---Scope---In terms of R.16 of the Rules of Business, 1973, the Prime Minister had been given discretionary power in the matter of cases brought before the Cabinet, however exercise thereof was circumscribed by certain conditions; first, that there must be a conscious application of mind by the Prime Minister to the existing circumstances justifying the need for such departure through passing of a reasoned and formal order prior to the action taken, and, second, determining whether the constitutional provisions justified such a departure.

(d) Constitution of Pakistan---

----Art. 91---Rules of Business, 1973, Rr. 16, 17, 18, 20---Decision making by the Prime minister---Consultation with the Cabinet---Cabinet being the supreme body of the Executive, with a high constitutional status, could not and ought not to be treated as a mere rubber stamp for decision making by the Prime Minister---Constitution envisaged a parliamentary form of Government which was based on decision making by the Cabinet---To turn the Cabinet into a rubber stamp in pursuit of decision making by the Prime Minister to the exclusion of his Cabinet would violate the letter and spirit of the Constitution, as it would reduce a cabinet form of government into a prime ministerial one which was a concept alien to the Constitution.

(e) Rules of Business, 1973 ---

----Rr. 2 & 27 & Part E---Concept of "business of Government"---Scope---'Executive' and 'legislative' matters---Word "business" was defined in terms of R.2 of the Rules of Business, 1973 to mean all work done by the Federal Government---Concept of 'business of Government' included not merely executive matters but also those which pertained to legislation.

(f) Constitution of Pakistan---

----Art. 99(3)---Rules of Business, 1973---Nature of---Mandatory and binding on the Government---Authority to frame rules was normally conferred by an Act of Parliament---In the case of the Rules of Business, 1973 such authority flowed from the Constitution itself [Article 99(3)]---Federal Government did not have the discretion to not follow the provisions of the Rules of Business, 1973---Following the Rules of Business, 1973 was mandatory and binding on the Government and a failure to follow them would lead to an order lacking any legal validity---Framer of rules was as much bound by the content thereof as anyone else was subject thereto---Constitutionally mandated rules (such as the Rules of Business, 1973) were closely intertwined with the concept of good governance for and in the public interest---Allowing a departure therefrom would be detrimental to open and transparent forms of governance---To allow the Executive to depart from the language of the Rules of Business, 1973 in its discretion, would be to permit, and legitimize, unconstitutional executive actions.

Ahmad Nawaz Shah, Senior Intelligence Officer, Director General, Intelligence and Investigation (Customs and Excise), Islamabad v. Chairman, Central Board of Revenue, Islamabad and 10 others 2002 SCMR 560 ref.

(g) Rules under a statute---

----Mandatory and binding in nature---Rules were framed to achieve a certain objective and to achieve this within the channels relating to the devolution and flow of statutory authority---In the absence of compelling reasons to the contrary all rules were, and should be considered to be mandatory and binding---Burden of proof laid on anyone asserting that the rules in question were directory and not mandatory---Such persons must establish that there was a sound and powerful reason why the rules should not be considered mandatory and binding---Said principle applied with redoubled force, for and in relation to two sets of rules; firstly, constitutionally mandated rules e.g the Rules of Business, 1973 and secondly, rules framed under fiscal enactments.

(h) Rules under a statute---

----Mandatory and binding in nature---Government department violating explicit provisions of certain rules (framed under a statute)---Condonation of such violation---Scope---In each and every case the presumption of law would be that the rules were mandatory and should be observed and followed---Only if a compelling public interest was established as a reason for non-compliance with the rules i.e. other than inadvertence, or negligence, or incompetence then, and only then, could the court consider whether or not to condone the breach in the observance of the rules.

(i) Constitution of Pakistan ---

----Arts. 41, 48 & 90---"Federal Government"---Concept and scope---President was not part of Federal Government; he was the Head of the State---Federal Government consisted of the Prime Minister and the Federal Ministers (i.e. the Cabinet) and not the President.

(j) Rules of Business, 1973---

----Rr. 2 & 27---Concept of "business of Government"---'Executive' and 'legislative' matters---Separation of powers between the "Executive" and "Legislature"---Scope---Concept of 'business of Government' included not merely executive matters but also those which pertained to legislation---Rule 27 of the Rules of Business, 1973 stipulated that the Division concerned shall be responsible for determining the contents of the proposed legislation and for consultation with other Divisions---All this was part of the legislative business which was governed by the Rules of Business, 1973, however, once the proposed legislation was finalized and then placed before the House (Parliament), the powers of the Executive, as such, came to an end; the legislature took over---Although the Rules of Business, 1973 covered legislative work, but said Rules did not confer power on the Executive to enact legislative measures---All statutory rules, including those of a fiscal nature, were subordinate legislation---Power to enact subordinate legislation had to be conferred by substantive law; the Rules of Business, 1973 which merely regulated procedural modalities, could not conceivably do so.

(k) Rules of Business, 1973 ---

----R. 7(2) & Sched. IV---Power of Secretary of a Division to authenticate by signature all orders and other instruments made, or executed, in the name of President---Such power was a purely formal power---Exercise of such power established the genuineness of the document, it did not confer the statutory power to issue such a document.

(l) Constitution of Pakistan---

----Art. 97---Extent of executive authority of the Federation---Scope---Use of the phrase "subject to the constitution" in Art.97 of the Constitution---Connotation---Said phrase indicated that the executive authority of the Federation, as exercised by the Federal Government, was subordinated to the constitutional schema in relation to the conferment of constitutional powers and responsibility on the three organs of the State.

(m) Constitution of Pakistan ---

----Art. 98---Parliament conferring functions on subordinate authorities on the recommendation of the Federal Government---Scope---Designated functions could only be conferred on officers or authorities who were subordinate to the Federal Government; they could not be conferred on private entities or companies.

(n) Legislation---

----Subordinate legislation---Fiscal notifications---Regulation and issuance of fiscal notifications was in the nature of subordinate legislation

(o) Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---

---- S. 2 (fa)---Constitution of Pakistan, Art. 90---Definition of "Federal Government" as given under S.2(fa) of the Pakistan Telecommunication (Re-Organization) Act, 1996---Vires---In terms of Article 90 of the Constitution "Federal Government" meant the Prime Minister and the Ministers---Whereas S.2(fa) of the Pakistan Telecommunication (Re-Organization) Act, 1996 defined the "Federal Government" as being the Ministry of Information Technology and Telecommunication for purposes of the said Act---Constitutionality---Statutory definition must yield before the provisions of the Constitution---Statutory definition of "Federal Government" provided under the Pakistan Telecommunication (Re-Organization) Act, 1996 was, thus, clearly violative of Art.90 of the Constitution and, therefore, was ultra vires and a nullity.

(p) Constitution of Pakistan---

----Art. 89 --- Power of the President to promulgate Ordinance --- Nature of such power was legislative, since it contemplated a change, or alteration, in the corpus of laws in the country; it was not quasi-legislative power.

(q) Words and phrases---

----"Government"---Connotation---Word "government", in its normal connotation, was equivalent to the term "Executive".

(r) Constitution of Pakistan---

----Art. 91---"Cabinet"---Scope---Cabinet was a composite concept and its components were the Prime Minister and the Federal Ministers.

(s) Rules of Business, 1973 ---

----R. 16(2)---Constitution of Pakistan, Art. 91---Power of Prime Minister to by-pass the Cabinet---Vires of---Prime Minister could not exercise the powers of the Cabinet by himself---Prime Minister executed policy decisions, he did not take them by himself---Rule 16(2) of the Rules of Business, 1973 which enabled the Prime Minister to dispose of matters by by-passing the Cabinet was, thus, ultra vires (the Constitution).

Prime Minster was the head of the Cabinet. He was the single most important person in the Cabinet, but he did not stand in the position of the Cabinet. He was neither a substitute nor a surrogate for the Cabinet. He could not exercise its powers by himself. The reason that he could not stand in the position of the Cabinet was because the Cabinet was, in fact, the Federal Government. Treating the office of the Prime Minister as being equivalent to that of the Cabinet,would mean that the Prime Minister, by himself, as a single individual, would become the Federal Government. This was simply inconceivable.

Function of the Chief Executive (Prime Minister) was to execute and implement the policy decisions taken by Cabinet i.e. the Federal Government. Chief Executive executed policy decisions; he did not take them by himself. The Prime Minister could not take decisions by himself, or by supplanting or ignoring the Cabinet because the power to take decisions was vested with the Federal Government i.e. the Cabinet, and unilateral decisions taken by him would be a usurpation of power.

Decisions of the Federal Government were the decisions of the Cabinet and not of the Prime Minister. Any decisions taken by the Prime Minister on his own initiative lacked the authority of the law or the Constitution.

Rule 16(2) which enabled the Prime Minister to dispose of matters by by-passing the Cabinet was, thus, ultra vires (the Constitution).

(t) Constitution of Pakistan---

----Arts. 82(3), 83, 84, 86 & 91---Prime Minister---Discretionary governmental spending/expenditure---Authorization by Cabinet --- Any discretionary spending at the initiative of the Prime Minister alone was manifestly unconstitutional and contrary to law---Prime Minister could not make fiscal changes on his own and nor could he engage in discretionary spending by himself---In all such cases the prior decision of the Cabinet was required, since it was unambigiously that body alone which was the Federal Government---Ex post facto approval (of expenditure) by the Cabinet would not suffice since money once spent could not be unspent---All discretionary spending without the prior approval of the Cabinet was contrary to law and would make the Prime Minister personally responsible for such action.

Action against distribution of development funds by Ex-Prime Minister Raja Pervaiz Ashraf (PLD 2014 SC 131) ref.

(u) Constitution of Pakistan---

----Arts. 89 & 91---Power of President to promulgate Ordinance---Scope---Prior approval of the Cabinet---Ordinance making power could only be exercised after a prior consideration by the Cabinet---Ordinance issued without the prior approval of the Cabinet was not valid.

(v) Constitution of Pakistan ---

----Arts. 70 & 91---Introduction of Bill in Parliament---Approval by Cabinet---No bill could be moved in Parliament on behalf of the Federal Government without having been approved in advance by the Cabinet---Cabinet had to be given a reasonable opportunity to consider, deliberate on and take decisions in relation to all proposed legislation, including a Finance Bill or an Ordinance or an Act---Actions by the Prime Minister on his own, in such regard, were not valid and would be ultra vires the Constitution.

(w) Constitution of Pakistan

----Arts. 77, 90 & 98---Rules of Business, 1973, Rr.3(3), 4(2), 16 & 27---Sales Tax Act (VII of 1990), Ss. 3(2)(b), 3(6), 4(c), 8(1)(b), 13(2)(a) & 71---Exemption from sales tax, withdrawal/modification of---Notifications issued on the basis of the approval of the Secretary and the Advisor of the relevant Division---Constitutionality---Secretary or Advisor did not have any power to make subordinate or delegated legislation---Such power had been conferred solely and exclusively on the Federal Government in terms of S.3 of the Sales Tax Act, 1990---Neither the constitutional provisions, nor the Rules of Business, 1973 conferred power on a Secretary or head of a Division, to be treated as the Federal Government---Secretary of the Revenue Division was not empowered under R.4(2) read with R.3(3) of the Rules of Business, 1973 to issue notifications pertaining to modifications of tax merely because the subject fell within the scope of his responsibilities---Although the Rules of Business, 1973 covered legislative work, but said Rules did not confer power on the Executive to enact legislative measures---Rules of Business, 1973 neither conferred a power to make fiscal changes, nor could they, on any meaningful interpretation of the Constitution, conceivably confer such a power---Parliament could confer functions on subordinate authorities on the recommendation of the Federal Government, in terms of Art.98 of the Constitution, however said provision did not contemplate the transfer of legislative powers of any nature whatsoever to subordinate officials---Levy of tax was the function of Parliament---Giving such function/power to the Executive per se, would amount to a negation of the doctrine of parliamentary supremacy and the doctrine of separation of powers---Breach of R.16 of the Rules of Business, 1973 by the Government in issuing the notifications for withdrawal/modification of exemption from sales tax was fatal to the case of the Government---Consequently the impugned notifications were declared ultra vires and were struck down---Appeal was allowed accordingly.

Article 77 of the Constitution only enabled the levy of tax under law. Levy of a tax inevitably implied a restriction of a citizen's right to property. Payments of tax amounted to a corresponding deprivation of property and, since the right to property was a fundamental right, this could only be done by means of strict compliance with the law. Breach of Rule 16 of the Rules of Business, 1973 by the Government in issuing the notifications for withdrawal/modification of exemption from sales tax was fatal to the case of the Government.

Concept of 'business of Government' included not merely executive matters but also those which pertained to legislation. Rule 27 of the Rules of Business, 1973 stipulated that the Division concerned shall be responsible for determining the contents of the proposed legislation and for consultation with other Divisions. All this was part of the legislative business which was governed by the Rules of Business, 1973, however, once the proposed legislation was finalized and then placed before the House (Parliament), the powers of the Executive, as such, came to an end; the legislature took over. Although the Rules of Business, 1973 covered legislative work, but said Rules did not confer power on the Executive to enact legislative measures. All statutory rules, including those of a fiscal nature, were subordinate legislation. Power to enact subordinate legislation had to be conferred by substantive law; the Rules of Business, 1973 which merely regulated procedural modalities, could not conceivably do so.

Chairman, Federal Board of Revenue (FBR), who was the ex officio Secretary of the Revenue Division was not empowered under Rule 4(2) read with Rule 3(3) of the Rules of Business, 1973 to issue notifications pertaining to modifications of tax merely because the subject fell within the scope of his responsibilities. Mere fact that a certain Division was going to deal with a specified subject in terms of the Rule of Business, 1973, did not confer any extra, or additional, constitutional or statutory powers on the said Division. The conferment of power, the exercise of power and the formal notification of the exercise of power were all independent (albeit interlinked) concepts. Chairman FBR, in his capacity as Secretary to the Revenue Division could no doubt make proposals pertaining to modification of tax policy. He could either directly, or through his subordinate officials, process proposals. However, the Chairman's power did not extend any further. The power to make fiscal changes was a substantive power, and moreover, one of great constitutional importance. The Rules of Business, 1973 neither conferred such a power, and nor could they, on any meaningful interpretation of the Constitution, conceivably confer such a power. If the Rules of Business, 1973 were to be amended to purportedly confer such a power, the amendment would be clearly ultra vires.

Neither the Secretary, nor the Advisor, had any power to make subordinate or delegated legislation. This power had been conferred solely and exclusively on the Federal Government in terms of section 3 of the Sales Tax Act, 1990. Indeed it could not have been conferred on any other subordinate authority, or body, without violating the Constitution.

Certain powers had been conferred on the Federal Government under the Sales Tax Act, 1990. The conferment of such a power on any other authority would be clearly unconstitutional. It was up to the Federal Government to allocate, through the modality of the Rules of Business, 1973 which of the different Divisions was to deal with the matter. But this did not mean that the Revenue Division had been transformed into the Federal Government. Secretary of the Revenue Division had full power and authority to process a case relating to fiscal matters. Once he had processed it, he then had to forward it, in accordance with the normal constitutional channels, to the Federal Government, for decision. In other words, the decision would then be taken by the Cabinet comprising of the Prime Minister and the Ministers. The mere fact that the Secretary of the Revenue Division had processed the case did not elevate his status to that of the Federal Government. Neither the constitutional provisions, nor the Rules of Business, 1973 conferred power on a Secretary or head of a Division, to be treated as the Federal Government.

Article 98 of the Constitution provided that the Parliament could confer functions on subordinate authorities on the recommendation of the Federal Government, however said provision did not contemplate the transfer of legislative powers of any nature whatsoever to subordinate officials. All it permitted was the discharge of certain functions by designated officials. The transfer of legislative powers would be a clear cut violation of the structure of the Constitution and the concept of separation of powers.

Levy of tax was the function of Parliament under Article 77 of the Constitution. Such powers, if given to the Executive per se, would amount to a negation of the doctrine of parliamentary supremacy and the doctrine of separation of powers.

Secretary, a Minister or the Prime Minister were not the Federal Government and the exercise, or purported exercise, of a statutory power exercisable by the Federal Government by any of them, especially, in relation to fiscal matters, was constitutionally invalid and a nullity in the eyes of the law.

Fiscal notifications enhancing the levy of tax issued by the Secretary, Revenue Division, or the Minister, were ultra vires. Consequently the impugned notifications were declared ultra vires and were struck down. Appeal was allowed accordingly.

Mian Muhammad Athar, Advocate Supreme Court and Shafqat Mahmood Chohan Advocate Supreme Court for Petitioners (in CAs. Nos.1428 to 1434 and 1436 of 2016).

Farhat Nawaz Lodhi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner (in C.P. No.1435 of 2016).

Sh. Izhar-ul-Haq, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (for Respondent No.3 in C.As. 1428 and 1430 of 2016 and Respondent No.2 in C.As. Nos. 1429, 1431, 1432 and 1433/2016).

Raja Muhammad Iqbal, Advocate Supreme Court (for Respondents Nos.5 and 6 (in C.As. 1428 and 1430/2016) and Respondents Nos.4 and 5 (in C.As.1429 and 1431 of 2016).

Ms. Misbah Gulnar Sharif, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (for Respondent No.4 in C.As 1428, 1430 and 1433 of 2016 and Respondent No.3 in C.As. 1429, 1431, 1435 and 1436 of 2016).

Khalil Dogar, Advocate Supreme Court (for Respondent No.7 in C.As. 1432 and 1434/2016 and Respondent No.6 in C.A. 1433/2016).

Ch. Muhammad Zafar Iqbal, Advocate Supreme Court (for Respondent No.7 (in C.As.1429 and 1431/2016), Respondent No.8 (in C.As. 1428, 1430 and 1433/2016), Respondent No.4 (in C.As. 1432 and 1434/2016).

Muhammad Waqar Rana, Additional Attorney General, Abid Hussain Channa, S.O.M/o Finance and Sajid Javed, Legal Assistant M/o Finance (On Court's call).

Syed Ali Zafar, Advocate Supreme Court (Amicus Curiae).

Dates of hearing: 23rd and 24th May, 2016.

P L D 2016 Supreme Court 872

Present: Anwar Zaheer Jamali,. C.J., Mian Saqib Nisar, Ejaz Afzal Khan, Mushir Alam and Manzoor Ahmad Malik, JJ

KHUSHI MUHAMMAD through L.Rs. and others---Appellants

Versus

Mst. FAZAL BIBI and others---Respondents

Civil Appeals Nos. 2564/2001, 2658/2006, 1670/2008, 60-L/2013, 280-L/2013, 60/2014, 965/2014 and 218/2015, decided on 16th August, 2016.

(On appeal from the judgment dated 25-6-2001/27-8-2002/ 2-6-2008/17-12-2012/23-10-2013/7-4-2014/3-10-2014 of the Lahore High Court/Peshawar High Court, Peshawar/Lahore High Court, Multan Bench/Peshawar High Court, D.I. Khan Bench/Lahore High Court Lahore/Peshawar High Court, D.I. Khan Bench passed in C.R. No.1611/2000, R.F.A. No.29/1996, R.F.A. No.230/2005, R.S.A. No.4/1996, R.F.A. No. 185/2011, R.F.A. No. 4/2014 and C.R. No.124-D/2014).

Per Mian Saqib Nisar, J; Anwar Zaheer Jamali, C J, Mushir Alam and Manzoor Ahmad Malik, JJ agreeing; Ejaz Afzal Khan, J disagreeing only with the finding that "principle of actus curiae neminem gravabit had no application where a litigant approached a wrong forum and such appeal was entertained by the staff of the court or by the court or even admitted to regular hearing."

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

----Ss. 3 & 5 & Preamble---Law of limitation, interpretation of---Salient features of interpretation of the law of limitation listed.

Following are the salient features which have been settled by the superior Courts for the purposes of interpretation of the law of limitation;

(i) The law of limitation was a statute of repose, designed to quieten title and to bar stale and water-logged disputes and was to be strictly complied with. Statutes of limitation by their very nature were strict and inflexible. Law of limitation does not confer a right; it only regulates the rights of the parties. Such a regulatory enactment could not be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies were fully complied with in letter and spirit. There was no scope in law of limitation for any equitable or ethical construction. Justice, equity and good conscience did not override the law of limitation. Object of law of limitation was to prevent stale demands and so it ought to be construed strictly;

2016 PLC (CS) 195; 2010 PLC (Labour) 104; 2007 SCMR 1446; 2003 YLR 1837; PLD 2004 AJ&K 38; PLD 2005 Lah 129; PLD 1958 (WP) Lah 936; PLD 2005 Lah 129; 2013 CLC 403; 2003 YLR 1837 and PLD 1962 (WP) Dacca 381 ref

(ii) The hurdles of limitation could not be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the court. Ignorance, negligence, mistake or hardship did not save limitation, nor does poverty of the parties;

AIR 1940 Rang 276 (FB); PLD 2003 SC 628; 2002 PLC (CS) 526; 2002 PLC (CS) 474; PLD 2002 SC 101; 1998 PLC (CS) 1007; 1988 SCMR 1354 and 1987 PLC (CS) 200 ref.

(iii) It was salutary to construe exceptions or exemptions to a provision in a statute of limitation rather liberally while a strict construction was enjoined as regards the main provision. For when such a provision was set up as a defence to an action, it had to be clearly seen if the case came strictly within the ambit of the provision;

25 Cal 496, 503 ref.

(iv) There was absolutely no room for the exercise of any imagined judicial discretion vis-à-vis interpretation of a provision, whatever hardship may result from following strictly the statutory provision. There was no scope for any equity. The court could not claim any special inherent equity jurisdiction;

AIR 1935 All 323 ref.

(v) Statute of limitation instead of being viewed in an unfavourable light, as an unjust and discreditable defence, should receive such support from courts of justice as would have made it what it was intended to be, a statute of repose. Plea of limitation could not be deemed as an unjust or discreditable defence. There was nothing morally wrong and there was no disparagement to the party pleading it. It was not a mere technical plea as it was based on sound public policy and no one should be deprived of the right he had gained by the law. It was indeed often a righteous defence. The court had to only see if the defence was good in law and not if it was moral or conscientious;

48 Cal 110 (PC); AIR 1933 PC 230; 54 All 1067 (PC); AIR 1935 All 323 and 56 Cal 575 ref.

(vi) The intention of the law of limitation was not to give a right where there was not one, but to interpose a bar after a certain period to a suit to enforce an existing right.

21 Cal 8, 18 (PC) ref.

(vii) The law of limitation was an artificial mode conceived to terminate justiciable disputes. It therefore had to be construed strictly with a leaning to benefit the suitor;

AIR 1966 Pat 1 (FB) ref.

(viii) Reading of the Preamble and Section 5 of the Limitation Act, 1908 showed that the fundamental principle was to induce the claimants to be prompt in claiming rights. Unexplained delay or laches on the part of those who were expected to be aware and conscious of the legal position and who had facilities for proper legal assistance could hardly be encouraged or countenanced.

AIR 1966 Raj 213 ref.

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

----S. 14---Appeal filed before wrong forum---Exclusion of time of proceeding bona fide in Court without jurisdiction---Application of S.14 of the Limitation Act, 1908 was restricted to suits only and had no direct and independent application to cases where an appeal had been filed before a wrong forum.

From the word the "suit" which appeared in section 14 of the Limitation Act, 1908, it was abundantly clear that the said section applied to suits and there was no mention of appeal or revision etc. Section 14 of the Limitation Act, 1908 was exclusively and solely restricted to suits and suits alone. If it was taken to apply to appeals also, this would tantamount to reading into the section the word "appeal" which did not appear in the said section and such a reading would be contrary to the definition of the word "suit" in the statute. Express provisions of law could not be defeated by resorting to any rule of interpretation which would have the convoluted effect of rendering an appeal a continuation of the suit for the purposes of attracting the application of section 14 of the Limitation Act, 1908.

(c) Interpretation of statutes ---

----Rule of casus omissus---Scope --- In terms of the said rule the courts were not entitled to read words into an Act of Parliament unless clear reasons for it were found within the four corners of the Act itself.

(1910) 79 LJKB 955 and AIR 1980 SC 485 and Dr. Syed Sibtain Raza Naqvi v. Hydrocarbon Development and others 2012 SCMR 377 ref.

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

----Ss. 5 & 14---Appeal filed before wrong forum---Condonation of delay---Sufficient cause---Whether the principles of S.14 of the Limitation Act, 1908 could be resorted to for the purposes of determining sufficient cause under S.5 of the said Act---For the purposes of determining whether in a given case sufficient cause had been made out for condonation of delay when an appeal had been filed before a wrong forum, there did not seem to be any bar in law that the conditions or the limitation prescribed by S.14 could not be looked into---However, the conditions laid down in S.14 must be satisfied and established on the record---Term 'sufficient cause' had to be given the widest possible amplitude and in so doing the conditions/principles of S.14 of the Limitation Act, 1908 could not be left out.

For the purposes of determining whether in a given case sufficient cause had been made out for condonation of delay when an appeal had been filed before a wrong forum, no hard and fast rule could be laid down; there could not and should not be a simple test for determining the same. The establishing of sufficient cause was not amenable to mathematical formulae. Courts were called upon in individual cases to apply their judicial faculties to the facts placed before them and weigh the same in order to decide whether that ephemeral threshold had been crossed which meant that the appellant had convincingly established sufficient cause for condonation of delay. It would be unwise and unadvisable to state for all times to come that what may or may not constitute a sufficient cause; each case ought to be decided on its own merits vis-à-vis the plea of sufficient cause.

For the purposes of determining whether in a given case sufficient cause had been made out when an appeal had been filed before a wrong forum, there did not seem to be any bar in law that the conditions or the limitation prescribed by section 14 of the Limitation Act, 1908 could not be looked into. However the conditions laid down in section 14 must be satisfied and established on the record.

Term sufficient cause had to be given the widest possible amplitude and in so doing the conditions/principles of section 14 of the Limitation Act, 1908 could not be left out.

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

----Ss. 5 & 14---Institution or pendency of an appeal before a wrong forum i.e. one lacking jurisdiction, on the wrong advice of the counsel---Condonation of delay---Good faith and due diligence of appellant---Mistaken advice of counsel did not automatically and per se constitute a sufficient cause for condonation of delay as a matter of course and routine, rather, the appellant had to specify the reasons with clarity and precision which prevailed with the counsel and led him to commit the mistake and such application must also be supported by an affidavit---Mere incompetence of the counsel, inadvertence, negligence or ignorance of law attributable to him and/or overlooking of the record by the counsel could not constitute sufficient cause ipso facto, but the factor(s) which misled the legal counsel, including any ambiguity in the law, causing him to file the appeal before the wrong forum must be indicated---Appellant had to establish that due to some honest, bona fide and genuine ambiguity in the law or in fact, a party or his counsel was led astray in terms of approaching a wrong forum.

Question as to whether the institution and the pendency of the appeal on the wrong advice of the counsel before a wrong forum i.e. one lacking jurisdiction constituted a sufficient cause for condonation of delay in terms of section 5 of the Limitation Act, 1908, it could neither be held that condonation was absolutely ruled out in such a situation nor that the appellant shall be entitled to condonation as a matter of course and right, rather the Court must look into the facts and circumstances of each case as to whether sufficient cause had been made out.

Person seeking condonation of delay must establish sufficient cause. Time spent pursuing an appeal before a wrong forum, in good faith and with due diligence ought to constitute sufficient cause for condonation of delay. But the act of approaching a wrong forum must be accounted for: it should be established that due to some honest, bona fide and genuine ambiguity in the law or in fact, a party or his counsel was led astray in terms of approaching a wrong forum. Mere incompetence of the counsel, inadvertence, negligence or ignorance of law attributable to him and/or overlooking of the record by the counsel could not constitute sufficient cause ipso facto, but the factor(s) which misled the legal counsel, including any ambiguity in the law, causing him to file the appeal before the wrong forum must be indicated. Mere wrong advice of counsel was not an adequate ground per se to constitute sufficient cause because if such rule was accepted, the rule that ignorance of law was no excuse would stand violated. Besides, the factors which caused ambiguity and misled the appellant (or his counsel as the case may be) had to be stated with clarity and precision in the application for condonation of delay and proved on the record.

Poor advice by a counsel may well cause hardship to a litigant and compromise his ability to seek redress in law. But hardship caused to a person on account of poor advice of counsel did not constitute a sufficient cause for condonation of delay per se. Courts must insist that applications for condonation of delay must specify with particularity as to what factors misled the counsel and gave him cause to form his unfortunate opinion with respect to the (wrong) forum adopted and thereafter the said factors must be proved on record. It is then for the court to decide if, on the basis of such factors, sufficient cause had been made out or not.

There may be instances where there was a different period of limitation applicable to different fora of appeal, and an appellant whose appeal was time barred before an appropriate forum may instead deliberately approach another forum (knowing it to be the wrong forum) in order to lay claim that time spent before a wrong forum ought to be condoned on account of the fact that appellant had approached it (forum) on the advice of counsel. All Courts must keep such considerations in mind when deciding whether or not delay caused by virtue of alleged wrong advice by counsel should be condoned.

(f) Administration of justice ---

----'Actus curiae neminem gravabit' ("an act of the court shall prejudice no man"), principle of---Scope---[Per Mian Saqib Nisar, J]: Said principle was founded upon justice and good sense, and afforded a safe and certain guide for the administration of law and justice; it was meant to promote and ensure that the ends of justice were met; it prescribed that no harm and injury to the rights and the interest of the litigants before the court shall be caused by the act or omission of the court---Said principle of administration of justice was meant for the benefit of both sides of litigants before the court and it would be illogical to conceive that the rule would or should be applied for the advantage of one litigant to the prejudice and disadvantage of the other---Court had the duty to act as a neutral arbiter between the parties and to provide justice to them through strict adherence to law and keeping in mind the facts of each case---[Per Ejaz Afzal Khan, J]: Principle of "actus curiae neminem gravabit" had been founded upon the principles of justice and good conscience---Rationale behind said principle was to undo the wrong or prejudice caused to a party by the act of the court---Said principle was applied to undo an injury or injustice caused to a party by an act of the court or by the laches or mistakes of its officers; it was also applied to restore what had been delayed or denied to a party by the act of the court or negligence of the persons manning and managing it.

Robert Mitchell. v. A. M. Overman (103 U.S. 64-65) ref.

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

----Ss. 5 & 14---Appeal entertained by the staff of the court or the court itself which had no pecuniary jurisdiction---Appeal ultimately returned to the appellant or dismissed---Whether such appellant was protected from the bar of limitation and/or it constituted a sufficient cause for the condonation of delay---'Actus curiae neminem gravabit' ("an act of the court shall prejudice no man"), principle of---Applicability---Per Mian Saqib Nisar, J (Majority view): Principle of actus curiae neminem gravabit had no application where a litigant approached a wrong forum and such appeal was entertained by the staff of the court or by the court or even admitted to regular hearing---No condonation of delay could thus be availed by the appellant on the basis of said principle---Per Ejaz Afzal Khan, J (Minority view): If mistaken view of a counsel in filing an appeal or suit before the wrong forum could constitute a sufficient cause for the condonation of delay, it was not understandable why the same should not apply to a mistaken view of the court entertaining the appeal or the suit---Treating the two situations differently simply because one found expression in the act of the counsel and the other found expression in the act of the court would be unjust, unfair and unreasonable---Latter situation i.e. mistaken view of the court in entertaining the appeal or the suit deserved all the more allowance firstly because the court entertaining the appeal or the suit did not care to know that it laid outside its jurisdiction; secondly because it sat over it for months instead of returning it for being presented in the court of competent jurisdiction and thirdly because the appellant or the plaintiff went out of limitation on account of the said act of the Court---Excluding the principle of "actus curiae neminem gravabit" from the purview of Ss. 5 & 14 of the Limitation Act, 1908 would amount to excluding a vital part of the jurisprudence which had grown over centuries and earned recognition of the courts---Appellants going out of limitation on account of the act of the court were entitled to extension of time---His Lordship Ejaz Afzal Khan, J observed that the Clerk of the court while receiving appeal in the office and the District Judge hearing an appeal in motion shall ensure that it was presented in a competent forum and in case it was otherwise he shall immediately return it for being presented in the court of competent jurisdiction.

Consolidated Engineering Enterprises. v. Principal Secretary, Irrigation Department and others (2008) 7 SCC 167; J. Kumaradasan Nair and another v. IRIC Sohan and others AIR 2009 SC 1333; Rodger. v. The Comptoir d' Escompte de Paris (1871) 3 P.C. 465; Jai Berham and others v. Kedar Nath Marwari and others AIR 1922 PC 269; East Suffolk Rivers Catchment Board v. Kent and another 1941 AC 74; Pulteney v. Warren (1801) 6 Ves.73, 92; Parker v. Ellis 362 U.S. 574; Sough Eastern Coalfields Ltd. v. State of M. P. and others AIR 2003 SC 4482; Amarjeet Singh and others v. Devi Ratan and others AIR 2010 SC 3676; Hidayatullah v. Murad A. Khan PLD 1972 SC 69; Hari Ram v. Akbar Hussain ILR 29 All. 749; Rashad Ehsan and others v. Bashir Ahmad and another PLD 1989 SC 146; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Syed Haji Abdul Wahid and another v. Syed Sirjuddin 1998 SCMR 2296; Karachi Electric Supply Corporation Ltd. v. Lawari and 4 others PLD 2000 SC 94 and Mst. Bas Khana and others v. Muhammad Raees Khan and others PLD 2005 Pesh. 214 ref.

Per Mian Saqib Nisar, J

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

----Ss. 3 & 5---Discretion exercised by the courts below in condoning delay---Interference by higher forum---Principles---Discretion exercised by a court below was not open to interference by a higher court unless it had been exercised arbitrarily---In the exercise of its discretionary power the court (below) was not empowered to act upon whim and caprice, rather the discretion of the court was circumscribed by the law, recognized norms of justice, fairplay, equity, logic, rationality and reasonableness---Where the court (below) had passed an order in exercise of its discretion by condoning the delay, on the basis of sufficient cause which had been made out, it did not behove a superior court to interfere in the matter---However where the exercise of discretion was unbridled, arbitrary and perverse, it did not render it immune to the scrutiny and correction by the superior court---Where no sufficient cause on record had been made out yet the discretion for the condonation of delay was exercised subjectively and whimsically (by the lower court) it was the duty of the superior court to rectify the defect in the exercise of discretion---Such duty was duly mandated by the provisions of S.3 of the Limitation Act, 1908.

Muhammad Bashir v. Province of Punjab through Collector of District Gujrat and others 2003 SCMR 83 and The Province of East Pakistan v. Muhammad Hossain Mia PLD 1965 SC 1 ref.

(i) Punjab Pre-emption Act (I of 1913) [since repealed]

----S. 21---Limitation Act (IX of 1908), Ss. 5 & 14---Suit for pre-emption---Appeal filed by counsel before the wrong forum i.e. one lacking pecuniary jurisdiction---Whether lack of pecuniary jurisdiction by court sufficient cause for condonation of delay---No reason existed for the counsel of the appellant (pre-emptor) whilst filing the appeal, to be misled by any fact or the law because the jurisdictional value was clearly mentioned in the plaint by the pre-emptor---Such value was also clearly reflected in the decree passed by the Trial Court, whereby the suit of the pre-emptor was dismissed---Appeal should thus have not been filed before the District Court, but before the High Court, as at the relevant point of time, it was the High Court which had the pecuniary jurisdiction to hear the appeal on account of the jurisdictional value fixed in the plaint and decree sheet---Record showed that an objection was raised by the vendees/defendants about the incorrect valuation and that was the most opportune moment for the pre-emptor having been put to notice about his so-called inadvertent incorrect valuation to ratify the said mistake but instead the pre-emptor joined the issue---No attempt was ever made by the pre-emptor during the course of trial to correct the valuation by seeking an amendment in the plaint---Trial Court retained the value of the suit filed by the pre-emptor, which valuation squarely and duly appeared in the decree sheet; it was thus on the basis of the valuation of the suit fixed by the pre-emptor in the plaint itself and reflected in the decree which had to determine the forum of appeal---At the time of passing the decree there was no ambiguity which could mislead the pre-emptor's counsel into filing the appeal before the District Court---Inadvertence, negligence, mistake simpliciter (albeit bona fide) etc. of the counsel did not constitute a sufficient cause for condonation of delay---Pre-emptor had not been able to make out a case beyond mere inadvertence---In the present case, condonation of delay had been granted to the pre-emptor by both the courts below on the basis of arbitrary and whimsical reasons---Such exercise of discretion being against settled principles could always be interfered with---Supreme Court dismissed the appeal of the pre-emptor before the District Court for being barred by time.

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

----Ss. 8 & 42---Limitation Act (IX of 1908), Ss. 5 & 14 --- Suit for declaration and possession---Appeal filed by counsel before the wrong forum i.e. one lacking pecuniary jurisdiction---Whether sufficient cause for condonation of delay---Contention of appellant that due to the inadvertent mistake of his counsel the appeal had been filed before the District Court (wrong forum) instead of the High Court---Validity---Such mistaken advice of a counsel, even if unintentional, simpliciter did not constitute a sufficient cause in terms of S. 5 of the Limitation Act, 1908, instead there had to be cogent reasons, clearly spelt out and proved on the record, for such purpose---Mere pendency of an appeal before the wrong forum especially when no sufficient cause had been made out shall not be a ground per se or simpliciter for condonation of delay---Application for condonation of delay filed in the present case contained a mere narration of the facts leading up to the filing of the appeal before the wrong forum (District Court), and there were no plausible reasons or justifications given for the filing of such appeal before the wrong forum, apart from a feeble assertion that "the delay for filing the Regular First Appeal was not intentional" on the part of the appellant---Besides case record showed that the memorandum of appeal was ordered to be returned on 23.6.1994 but the appellant never approached the District Court (wrong forum) for receiving the same within reasonable time rather, after considerable lapse of time of about 18 months, it was received on 2.1.1996---No explanation was provided for such delay, i.e. 18 months and 10 days---Appellant had never claimed that after the order of return of the memorandum of appeal he approached the District Court (wrong forum) promptly and it was the (District) Court which delayed the return of the memorandum of appeal ---No sufficient cause for delay in filing the appeal had been made out in the present case---Appeal was dismissed accordingly.

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

----Ss. 5 & 14---Appeal, filing of---Condonation of delay---Sufficient cause---Appellant correctly filing appeal before the High Court---High Court returning the appeal and compelling appellant to file his appeal before the District Court (wrong forum), which under law had no jurisdiction---Such order of the High Court was bad in law---Appellant was a victim of an act of the court, which was sufficient cause for condoning delay in filing the appeal.

Pre-emptor, in the present case, had valued the suit property at Rs.500,000 in the plaint and specifically mentioned the said amount as the value of the suit for the purposes of court fee and pecuniary jurisdiction. Such valuation was categorically denied by the vendee through her written statement asserting it to be Rs.2,500,000. In light of such divergent pleas the Trial Court framed an issue in that "What is the market value of the suit property?". On the said issue Trial Court fixed Rs.25,00,000/- as market value of the suit property. Keeping in view such finding of the trial court, which determination was duly reflected in the decree sheet as well, the vendee (appellant) filed an appeal before the High Court, instead of the District Court. High Court ordered return of appeal for filing the same before the proper forum on the basis that valuation of suit for the purpose of court fee and jurisdiction was given as Rs.500,000 in the plaint.

Vendee was justified in considering that the value of the suit for the purposes of jurisdiction had been changed/modified (from Rs.500,000 to Rs.25,00,000) by the trial court, thus leading him to prefer an appeal before the High Court. High Court remained oblivious that in a suit for pre-emption of a house (urban property) the value of the suit for the purposes of jurisdiction was the sale consideration of the suit property; thus as per the finding of the trial court, when it was held that the sale consideration was Rs.2,500,000/- this modified the jurisdictional value automatically.

The market value of the suit property at Rs.2,500,000/- had been clearly indicated in the decree sheet prepared by the trial court, thus for all intents and purposes the said amount became the changed value for the purposes of jurisdiction of the forum of appeal. Vendee had rightly filed the appeal before the High Court and the order of the High Court returning the appeal was bad in law. In such manner the vendee had been compelled to file his appeal before the District Court (wrong forum) which had no jurisdiction on account of the increase in the sale price of the property by the trial court. Vendee was a victim of the act of the court which was sufficient cause for condonation of delay in filing his appeal.

(l) Interpretation of statutes--

----Law of limitation---Salient features of interpretation of law of limitation enumerated.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant (in C.A. No.2564 of 2001).

Malik Muhammad Qayyum, Senior Advocate Supreme Court, Mian Hamid Farooq, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents.

Khurram Raza Chaudhry, Advocate Supreme Court for Appellant (in C.A.No.2658 of 2006).

Nemo for Respondent No.12 (in C.A.No.2658 of 2006).

Waqar Ahmed Sheikh, Advocate Supreme Court, Gulzar Hussain, Asstt. Director (Hort.) PHA and Muhammad Tariq Nazir, Asstt. Law, PHA for Respondent No.16 (in C.A.No.2658 of 2006).

L.Rs. of Respondents Nos. 1, 10 and 11: Ex parte.

L.Rs. of Respondents Nos. 2-9, 13-15: Ex parte.

Mian Muhibullah Kakakhel, Senior Advocate Supreme Court for Appellant (in C.A.No.1670 of 2008).

Abdul Sattar Khan, Advocate Supreme Court for Respondents (in C.A.No.1670 of 2008).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Appellant ((in C.A.No.60-L of 2013).

Ch. Nusrat Javed Bajwa, Advocate Supreme Court for Respondent(s) (in C.A.No.60-L of 2013). (Resp. Nos. 1-3(i-vi), 4(A-D), 7(iv-viii), 10, 19, 24, 48, 54(A-C), 55, 56(ii-v), 57-65).

Zahid Hussain Khan, Advocate Supreme Court for Respondent No.7(i-iii).

Ch. Nusrat Jabved Bajwa, Advocate Supreme Court for Appellant (in C.A.No.280-L of 2013).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Respondents Nos.1 to 4 (in C.A.No.280-L of 2013).

Nemo for L.Rs. of Resp. No.5.

Muhammad Munir Peracha, Advocate Supreme Court for Appellant (in C.A.No.60 of 2014).

Gulzarin Kiyani, Senior Advocate Supreme Court for Respondents Nos.1-2 (in C.A.No.60 of 2014).

Nemo for Respondent No.3 (in C.A.No.60 of 2014).

Sardar Muhammad Aslam, Advocate Supreme Court for Appellant (in C.A.No.965 of 2014)

Ch. Muhammad Munir Akhtar Minhas, Advocate Supreme Court for Respondents (in C.A.No.965 of 2014).

Gulzarin Kiyani, Senior Advocate Supreme Court for Appellant (in C.A.No.218 of 2015).

Syed Mastan Ali Shah Zaidi, Advocate Supreme Court for Respondents (in C.A.No.218 of 2015).

Dates of hearing: 8th, 9th and 10th February, 2016.

P L D 2016 Supreme Court 940

Present: Amir Hani Muslim, Ejaz Afzal Khan and Tariq Parvez, JJ

PESHAWAR ELECTRIC SUPPLY COMPANY LTD.---Petitioner

Versus

WAFAQI MOHTASIB (OMBUDSMAN) ISLAMABAD and others---Respondents

Civil Petition No.701 of 2016, decided on 25th July, 2016.

(On appeal against the judgment dated 412-2015 passed by the Peshawar High Court, Peshawar, in Writ Petition No.1796-P of 2015)

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

----Art. 9---Wafaqi Mohtasib, powers of---Matters of appointment and recruitment in a public sector company---Appointment and/or recruitment in a public sector company was an executive function and such function could not be performed by the Wafaqi Mohtasib under Art.9 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman)Order 1983, which excluded his jurisdiction to entertain a complaint of such nature.

Certain persons filed applications before the Wafaqi Mohtasib (Ombudsman) for a direction to the concerned Electric Supply Company to appoint them in the company after relaxing the conditions for the 20% quota, reserved for the children of WAPDA deceased or retired employees, and employees who died during service. Thereafter, the Wafaqi Mohtasib made recommendations for their appointments after relaxing the prescribed conditions. Not only that, the Wafaqi Mohtasib also issued notices to the Electric Supply Company for implementation of such recommendations. Contention of Electric Supply Company was that neither the Wafaqi Mohtasib had the power to order and recommend any appointment in a public sector company, nor could he implement the recruitment policy of the company, in view of bar contained under Article 9 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 ("the Order") Appointment and or recruitment in a public sector company like the Electric Supply Company in the present case was an executive function and such function could not be performed by the Wafaqi Mohtasib under Article 9 of the Order which excluded his jurisdiction to entertain a complaint of the nature.

Jurisdiction of Wafaqi Mohtasib was limited as provided under Article 9 of the Order and he could not order and or recommend appointment of a person in the Electric Supply Company, which power rested with the executive authorities.

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

----Arts. 9 & 32---Constitution of Pakistan, Art. 199---Order passed by Wafaqi Mohtasib without jurisdiction---Constitutional jurisdiction of High Court---Scope---Where an order was passed by Wafaqi Mohtasib without jurisdiction, the High Court could always in exercise of its constitutional jurisdiction rectify such error---Alternate remedy provided under Art.32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 ('the Order") could not restrict the constitutional jurisdiction of the High Court once it came to the conclusion that the order of the Wafaqi Mohtasib was outside the domain of Art.9 of the Order---Where the order of the Wafaqi Mohtasib, on the face of it, was against the language of Art.9 of the Order or without jurisdiction, the High Court could exercise its constitutional jurisdiction so as to prevent injustice done to an aggrieved.

Abdul Rauf Rohaila, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Hafiz Ahsan-ud-Din Khattak, Advocate-on-Record and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 1 and 2.

Rana Waqar Ahmed, Addl. AG (On Court Notice)

Date of hearing: 25th July, 2016.

P L D 2016 Supreme Court 944

Present: Mian Saqib Nisar and Khilji Arif Hussain, JJ

NADEEM SHAFI---Petitioner

Versus

TARIQ SHUJA BUTT and others---Respondents

Civil Petition No.1-L of 2016, decided on 2nd August, 2016.

(Against the order dated 29-10-2015 of the Lahore High Court, Lahore passed in W.P.No.31940 of 2015).

Punjab Local Governments (Conduct of Elections) Rules, 2013--

----Rr. 12(2), 14(3)(b) & 14(7)---Election for general councillor---Nomination papers---Proposer/seconder of a candidate not a voter from the constituency from which the candidate was contesting---Such defect was of a substantial nature---Returning Officer and the Appellate authority were barred from correcting a defect of such substantial nature---Rule 14(7) of the Punjab Local Governments (Conduct of Elections) Rules, 2013 did not allow substitution of proposer or seconder who was found to be unqualified to subscribe to a nomination paper---Proposer and seconder must therefore be from the same ward of the union council from where the candidate for election as general member of the union council was to be nominated.

Provisions of Rule 12(2) of the Punjab Local Governments (Conduct of Elections) Rules, 2013 were mandatory. Only qualification for a proposer and/or seconder was that they were a voter of the constituency. Any defect with respect to such qualification would go to the heart of the qualification of such proposer and/or seconder to subscribe to the nomination papers and the same would be liable for rejection under Rule 14(3)(b) of the Punjab Local Governments (Conduct of Elections) Rules, 2013. If the proposer and/or seconder were not voters of the constituency from which a candidate was contesting, it would be tantamount to no nomination at all and thus a defect of a substantial nature.

Rule 14(7) of the Punjab Local Governments (Conduct of Elections) Rules, 2013 only empowered a Returning Officer to allow a defect other than one of a substantial nature to be remedied. Returning Officer and the Appellate authority were barred from correcting a defect of a substantial nature. Rule 14(7) did not envisage substitution of the name of the disqualified proposer and/or seconder. Returning Officer had no lawful authority to allow an altogether new person to be replaced as a seconder or proposer for a person who was absolutely disqualified or ineligible to propose or second.Proposer and seconder must therefore be from the same ward of the union council from where the candidate for election as general member of the union council was to be nominated.

Mudassar Qayyum Nahra v. Election Tribunal, Punjab, Lahore 2003 MLD 1089 ref.

Petitioner in person.

Naveed Ahmad Ahmad Khawaja, Advocate Supreme Court for Respondent No.1.

Ms. Ayesha Hamid, Advocate Supreme Court: Amicus Curiae.

Date of hearing: 2nd August, 2016.

P L D 2016 Supreme Court 951

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Ejaz Afzal Khan and Mushir Alam, JJ

KASHIF ALI---Petitioner

Versus

The JUDGE, ANTI-TERRORISM, COURT NO.II, LAHORE and others---Respondents

Civil Petition No.2067 of 2010, decided on 15th February, 2016.

(On appeal from judgment dated 16-8-2010, passed by the Lahore High Court Lahore, passed in W.P. No.16742 of 2010).

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

----S. 6---"Terrorism"---Scope---To determine the question as to whether an offence fell within the meaning of "terrorism"---It would be essential to have a glance over the allegations levelled in the FIR, the material collected by the Investigating agency and the surrounding circumstances, depicting the commission of offence---Whether a particular act was an act of terrorism or not, the motivation, object, design or purpose behind the act had to be seen---Term "design" as used in S.6 of the Anti-Terrorism Act, 1997, which had given a wider scope to the jurisdiction of the Anti-Terrorism Courts excluded the intent or motive of the accused---Motive and intent had lost their relevance in a case under S.6(2) of the Anti-Terrorism Act, 1997---What was essential to attract the mischief of said section was the object for which the act was designed.

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

---S.6---Term "design" as used in S.6---Definition.

Act is done "designedly" when done by design, on purpose, intentionally; "design" is plan or scheme conceived in mind and intended for subsequent execution, preliminary conception of idea to be carried into effect by action, contrivance in accordance with pre-conceived plan; and "to design" is to form plan or scheme of, conceive and arrange in mind, originate mentally, plan out, contrive.

Words and Phrases, Permanent Edition--Vol.12 ref.

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

----Ss. 6 & 23---Penal Code (XLV of 1860), Ss. 302, 324 & 34---"Terrorism"---Scope---Target killing of a rival candidate for election of Provincial Assembly---Whether such offence fell within the meaning of "terrorism"---Transfer of case to Anti-Terrorism Court---FIR stated that the accused party chased the complainant party in order to execute the murderous plan conceived in their minds; it was a pre-planned scheme and to execute the same, the accused party chased the vehicles of the deceased and opened fire due to which four persons lost their lives and several others sustained firearm injuries---Accused persons conceived a plan in their mind prior to the occurrence to disrupt the electoral process by eliminating the deceased-candidate and his companions, and subsequently executed it---Target killing was aimed to give a message to the voters and supporters of the deceased, the effect of which was to create a sense of fear or insecurity in the voters and general public, as provided in S. 6 of the Anti-Terrorism Act, 1997---Place of occurrence was a public place and supporters and voters were around with their cars---Furthermore, the contents of the FIR reflected that the crowd present during the occurrence started fleeing from the place due to the terror created by indiscriminate firing---Contention of the accused party that the incident was a result of personal enmity would not exclude the case from the mischief of S. 6(2) of the Anti-Terrorism Act, 1997, because the manner in which the incident had taken place and the time of occurrence should be taken note of, the effect of which was to strike terror in the supporters/voters and general public---Personal enmity between the deceased and the accused side could have been settled on any day and it was intriguing as to why the accused persons chose the particular night before the dawn of the day of elections to settle their score with a popular running candidate/deceased in the elections by eliminating him---Sudden murder of the deceased, on the night before the election day, not just with a single bullet but with indiscriminate firing on him and his companions was something that had to be all over the news and media channels for weeks to come---Voters were mentally disturbed to know that on the day of the polling their chosen candidate was no longer alive, which was a foreseeable and inevitable impact of the action by the accused persons---Present incident was not a sudden reaction to a provocation but a premeditated act, where accused persons found out the precise location of the deceased- candidate on the very busy night before the election day, and got him murdered---Accused persons had sent a message to the general public conveying the lethal consequences of any opposition to them---Supreme Court converted the petition into appeal and transferred the present case to the concerned Anti-Terrorism Court for further proceedings in accordance with law---Appeal was allowed accordingly---Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 1004 Lah. 199 overruled.

Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala PLD 1004 Lah. 199 overruled.

Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530 held to be correct law.

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

----S. 161---Supplementary statement recorded by prosecution witness after more than a month of the occurrence---Such statement had no legal value and was inadmissible in evidence and could not be used to contradict the contents of the FIR---Supplementary statement recorded subsequently to the FIR could be viewed as improvements made to the witness's statement.

Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Amir Zaman v. Mehboob and others 1998 SCMR 685; Zulfiqar Hussain v. The State 2011 SCMR 379, Abid Ali v. The State 2011 SCMR 161 and Tahir Abbas v. The State 2003 SCMR 426 ref.

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

----Ss. 6 & 12---Anti-Terrorism Court, jurisdiction of---Where the action of an accused results in striking terror, or creating fear, panic sensation, helplessness and sense of insecurity among the people in a particular vicinity it amounted to terror and such an action squarely fell within the ambit of S. 6 of the Anti-Terrorism Act, 1997 and shall be tried by the Special Court constituted for such a purpose---Courts were only required to see whether the terrorist act was such that it would have the tendency to create sense of fear or insecurity in the minds of the people or any section of the society, as well as the psychological impact created on the mind of the society.

Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530 and State through Advocate General v. Muhammad Shafiq PLD 2003 SC 224 ref.

Sardar Muhammad Aslam, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.

Aitzaz Ahsan, Senior Advocate Supreme Court along with Gohar Ali, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.2.

Ahmed Raza Gillani, Addl. P.G. Punjab for Respondent No.3.

P L D 2016 Supreme Court 961

Present: Amir Hani Muslim, Mushir Alam and Dost Muhammad Khan, JJ

Ch. MUHAMMAD AKRAM---Petitioner

Versus

REGISTRAR, ISLAMABAD HIGH COURT and others---Respondents

Constitutional Petition No.3 of 2014 and C.M.A. No.8540 of 2015, decided on 26th September, 2016.

(a) Constitution of Pakistan ---

----Art. 184(3) & Chap. 1, Pt. II---Constitutional petition before the Supreme Court---Maintainability---Pre-requisites---Once the Supreme Court had satisfied itself that the matter in hand was one that affected , the public at large and involved the infringement of Fundamental Rights protected under the Constitution, there remained no bar on its competence to entertain a petition under Art.184(3) of the Constitution.

(b) Constitution of Pakistan ---

----Art. 184(3)---Constitutional petition before the Supreme Court--­Pre-requisites---Matter of "public importance"---Meaning---Matter was of "public importance" if it directly and vitally concerned the general interest of the community or public at large, as opposed to the particular interest of an individual.

Watan Party v. Federation of Pakistan PLD 2012 SC 292 ref.

(c) Islamabad High Court Establishment (Appointment and Conditions of Service) Rules, 2011 ---

----Rr 4, 8, 16 & 18---Constitution of Pakistan, Arts. 4, 18 & 184(3)--­Constitutional petition before the Supreme Court challenging the appointments and absorptions made in the Islamabad High Court by the Chief Justice/Administration Committee of the Court-- Maintainability-Matter of public importance involving enforcement of Fundamental Rights of the citizens---Appointments in the Islamabad High Court made in colourful exercise of power or by bypassing the transparent process of recruitment provided under the relevant service Rules, would have far reaching undulate effects on the public at large---Exercise of power in a manner that resulted in depriving meritorious citizens from the opportunity of competing for public offices, was beyond a shadow of doubt a matter of "public importance"---Such an unlawful exercise of power was also an abrogation of the Fundamental Rights guaranteed under Art.18 of the Constitution, which protected an individual's right to enter upon a lawful profession or occupation---Right conferred under Art.18 had to be read with Art. 4 of the Constitution which provided every citizen the right to be dealt with in accordance with the law---Issue raised in the present petition attracted a question of public importance, which had a direct bearing on the Fundamental Rights of the citizens, therefore, it was competent as the appointments to the public office made by an authority could be challenged through a petition even in the nature of a writ of quo-warranto so that no one could claim immunity from its scrutiny under the garb of any constitutional provision---Constitutional petition was held to be maintainable accordingly.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 and Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

(d) Constitution of Pakistan ---

----Arts. 192, 199(5), 208 & 184(3)--- `Judicial' and 'administrative' powers of the High Court---Distinction---Orders passed by the Chief Justice/Administration Committee of the High Court in making appointments and absorptions of officers of the High Court--- Whether such orders could be challenged under Art.199(5) or 184(3) of the Constitution---Plain reading of Art.199(5) of the Constitution led to the conclusion that by excluding a High Court and Supreme Court from the definition of 'person', the framers of Constitution envisaged judicial jurisdiction and not the extraneous administrative/ executive/ consultative matters pertaining to the Establishment of the Courts---Judge acted in two different domains; one, when he performed judicial functions under Art.199 of the Constitution and, second, when he performed Administrative/executive/consultative functions under the Rules (framed under Art.208 of the Constitution) which could not be mixed with each other---Parameters of judicial powers exercised by a judge under the provisions of the Constitution were distinct from the non judicial powers he exercised under the Rules framed under the provision of the Constitution [Asif Saeed v. Registrar Lahore High Court (PLD 1999 Lahore 350) and Muhammad Iqbal and others v. Lahore High Court through Registrar and others (2010 SCMR 632) held to be per incuriam and not good law]

Constitution conferred judicial powers (jurisdiction) on the High Court only under Article 199 of the Constitution and the administrative, consultative or executive powers were conferred on the High Court by virtue of the rules framed under Article 208 of the Constitution.

Article 199(5) of the Constitution excluded a High Court from the definition of 'person'. Definition of High Court provided under Article 192, did not include the Registrar or any other officer of a High Court Establishment, who was appointed by the Chief Justice of the High Court or the Administration Committee under the relevant Rules. Executive/ administrative/consultative powers conferred on the Chief Justice of the High Court or an Administration Committee were drawn from the relevant Rules; whereas the judicial powers (jurisdiction) conferred upon the High Court and exercised by the judges were embedded in Article 199 itself; hence, both the powers were different and unparalleled.

Asif Saeed v. Registrar Lahore High Court PLD 1999 Lah. 350 and Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632 per incuriam and not good law.

(e) Constitution of Pakistan---

----Arts. 199(5) & 208--Constitutional petition challenging appointments and absorptions made in the High Court by the Chief Justice/Administration Committee of the Court---Maintainability--- Provisions of Art.199(5) of the Constitution would bar a writ against a High Court if the issue was relatable to judicial order or judgment; whereas a writ may lie against an administrative/consultative/executive order passed by the Chief Justice or the Administration Committee, involving any violation of the Rules framed under Art.208, causing infringement of the fundamental rights of a citizen---Judicial powers and the powers which were administrative/consultative/executive in nature should not be mixed to deny remedy to an aggrieved person in a case where codal formalities or eligibility or other mandatory requirements had been blatantly disregarded with respect to appointments and absorptions made in the High Court.

(f) Words and phrases --­-

---"Just"---Definition.

Corpus Juris Secundum, Vol. L and Words and Phrases, Permanent Edn. Vol.23-A ref.

(g) Words and phrases

----"Equitable"---Interpretation.

Words and Phrases, Permanent Edn. Vol. 15 ref.

(h) Words and phrases

----" Undue "---Definition.

Words and Phrases, Permanent End. Vol. 43 ref.

(i) Islamabad High Court Establishment (Appointment and Conditions of Service), Rules 2011 ---

----Rr. 4, 8, 10, 15, 16 & 18---High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules, 1873, R. 26 [High Court (Lahore) Rules and Orders Vol. V, Chap. 10, Part C]---Constitution of Pakistan, Arts. 18, 208 & 184(3)---Constitutional petition before the Supreme Court challenging the appointments and absorptions made in the Islamabad High Court by the Chief Justice/Administration Committee of the Court---Power of Chief Justice of the High Court to relax the service Rules in matters of appointment and absorption of officers of the High Court---Scope---Rule 16 of Islamabad High Court Establishment (Appointment and Conditions of Service) Rules, 2011 and R.26 of Lahore High Court Establishment (Appointment and Conditions of Service) Rules, 1973 could not be interpreted in such a manner as to bestow an absolute power upon the Chief Justice of the High Court to deal with the case of a person/employee in a manner he liked---Chief Justice of the High Court could exercise powers under the said Rules only in a manner that may not cause injustice or prejudice to any individual/ employee---Chief Justice of the High Court, in the present case, exercised his power of relaxation of relevant Rules to alter the eligibility and qualification for appointment as well as promotion of officers of the High Court---Provisions of Rules that provided for a mandatory competitive test for the appointment of employees were not followed, nor any advertisement was made to invite applications of eligible candidates---Number of meritorious and eligible candidates had been deprived of their Fundamental Right to seek employment through a competitive examination as provided under Art.I8 of the Constitution---Infirmities in the appointments made by the Chief Justice/Administration Committee of the Islamabad High Court were incurable despite the power of relaxation of service Rules conferred on the Chief Justice of the (Islamabad) High Court---Chief Justice and/or the Administration Committee of Islamabad High Court had made appointments in complete disregard of the mandate given by the service Rules and by dispensing with the coda[ formalities and mandatory requirements including competitive process---Supreme Court, held that all such appointments of employees were a nullity in the eyes of law and should be de-notified and gave relevant directions in such regard.

Absolute power to relax a certain service Rule had not been conferred on the Chief Justice of the High Court and such power was limited only to be exercised where it did not encroach upon the statutory rights of the other persons or employees. Rule 16 of Islamabad High Court Establishment (Appointment and Conditions of Service) Rules, 2011 and Rule 26 of Lahore High Court Establishment (Appointment and Conditions of Service) Rules could not be interpreted in such a manner as to bestow an absolute power upon the Chief Justice of the High Court to deal with the case of a person/employee in a manner he liked. Chief Justice of the High Court could exercise powers under the said Rules only in a manner that may not cause injustice or prejudice to any individual/employee.

Ali Azhar Khan Baloch v. Province of Sindh 2015 SCMR 456; Peer Mukarram-ul-Haq v. Federation of Pakistan 2014 SCMR 1457 and Muhammad Iqbal Khokhar v. Government of Punjab PLD 1991 SC 35 ref.

In the present case the Chief Justice of (Islamabad) High Court had exercised a power beyond the scope of the Service Rules and relaxed them under the garb of "relaxation of Rules" which could not be permitted in any circumstances, especially when it impinged upon the statutory rights of the citizens and other employees of the High Court. Rules could only be relaxed if the rules permitted their relaxation, and the conditions stipulated for relaxation were strictly met. Admittedly, the conditions for relaxation of the relevant Rules, which were "just and equitable" and "undue hardship", had not been met in relaxing the Rules for making appointments and absorptions in the (Islamabad) High Court.

Chief Justice of the High Court had exercised powers under Rule 26 of the Lahore High Court Establishment (Appointment and Conditions of Service) Rules and under Rule 16 of the Islamabad High Court Establishment (Appointments and Conditions of Service), 2011 to alter the eligibility and qualification for appointment as well as promotion within the Establishment of Islamabad High Court. Provisions of Rules that provided for a mandatory competitive test for the appointment of employees in the Islamabad High Court Establishment were not followed, nor any advertisement was made to invite applications of eligible candidates. Number of Meritorious and eligible candidates had been deprived of their Fundamental Right to seek employment through a competitive examination as provided under Article 18 of the Constitution.

Numerous infirmities were apparent in the appointments made by the Chief Justice/Administration Committee of the Islamabad High Court, and such infirmities were incurable by the Chief Justice under the powers conferred on him under Rule 16 of Islamabad High Court Establishment (Appointment and Conditions of Service) Rules, 2011 and Rule 26 of Lahore High Court Establishment (Appointment and Conditions of Service) Rules. Chief Justice and/or the Administration Committee of Islamabad High Court had made appointments in complete disregard of the mandate given by the service Rules and by dispensing with the codal formalities and mandatory requirements including competitive process. Such appointments were a nullity in the eyes of law and could not be sanctified by the Chief Justice or the Administration Committee of the Islamabad High Court.

Supreme Court observed that if the competent authority itself started cherry picking by deliberately ignoring and overlooking meritorious candidates in appointment exercising its powers under Rule 16 of Islamabad High Court Establishment (Appointment and Conditions of Service) Rules, 2011 and Rule 26 of Lahore High Court Establishment (Appointment and Conditions of Service) Rules, then the image of the institution (of judiciary) would be tainted beyond repair, and such practice may lead to distrust of the public in the judicial institution of the country.

Supreme Court directed that any person appointed on contract basis against a permanent vacancy or against a promotion post in the Islamabad High Court was violative of the spirit of the service Rules and untenable, and should be de-notified; that any appointments made on the basis of deputation without observing the required codal formalities under the Rules and absorption of the deputationist thereafter against a permanent post or promotion post, in complete disregard of the eligibility or qualification required for initial appointment should also be de-notified; that initial appointments made against a permanent post without following the required procedure as provided in the Rules, particularly the provisions related to the advertisement of posts, eligibility and competitive examination, were also to be de-notified; that appointments whether by way of initial appointment, deputation, contract or absorption in the grades/scales higher than the grades/scales in which such employees were serving before their induction in the Establishment were to be de-notified; that except those employees who had been recruited from the Establishments of different High Courts, in the same scale in which they were serving or were given one-step promotion within the same cadre, all other appointments by way of absorptions were without lawful authority and hence were to be de-notified; that employees absorbed without observing codal formalities were to be repatriated back to their parent departments, including the private sector, and the question of termination of lien of their service would not come in their way as their deputation or appointment by way of absorption was nullity in the eyes of law, and they would also be entitled to their seniority with their batchmates in their parent departments ; that a Committee (comprised of Senior Pusine Judge and two senior most Judges next to him) should examine the cases of all appointments of employees made in the Islamabad High Court from 2011 onwards in violation of the Rules and findings recorded in the present proceedings, and order their de-notification accordingly, and that fresh recruitment in place of the de-notified employees should be initiated simultaneously in accordance with the service Rules. Constitutional petition was allowed accordingly.

Arif Chaudhry, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

M. Shahzad Shoukat, Advocate Supreme Court for Respondent No.l.

Syed Iftikahr Hussain Gillani, Senior Advocate Supreme Court for Respondents Nos. 3-22, 24-29, 31-76.

Kh. Azhar Rasheed, Advocate Supreme Court for Respondent No.23.

Muhammad Munir Paracha, Advocate Supreme Court for Respondent No.30.

Sohail Mehmood, D.A.G. and Mian Abdul Rauf, A.G., Islamabad for Federation.

Appellant in person, Anees Jillani, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Appellant (in C.M.A. No.8540 of 2015.

P L D 2016 Supreme Court 995

Present: Anwar Zaheer Jamali, C.J., Mian Saqib Nisar, Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

SHAHIDA BIBI and others---Appellants

Versus

HABIB BANK LIMITED and others---Respondents

Civil Appeal No. 280-L of 2009, decided on 29th September, 2016.

(Against the judgment dated 16-4-2009 of the Lahore High Court, Lahore passed in E.F.A. No. 489 of 1999)

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

----S. 6---Repeal of an Act---Effect---Any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall in so far as it was not inconsistent with the provisions of new Act, be deemed to have been done or taken under the corresponding provisions of the new Act---Litigant was provided protection with respect to any right, privilege, obligation or liability acquired or accrued under any enactment repealed.

(b) Interpretation of statutes---

----Retrospective effect---Scope---Unless the Legislature enacted a new law to be specifically retrospective, and that too with great particularity of language, the courts were not to assume retrospectivity.

(c) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997) [since repealed]---

----Ss. 7(7), 18 & 28---Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance (XXV of 1997), S.12 [since repealed]---Banking Tribunals Ordinance (LVIII of 1984), S. 11 [since repealed]---Execution proceedings instituted under the Banking Tribunals Ordinance, 1984, transferred to the Banking Court established under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997, and then the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997---Retrospective effect---Scope---Section 28 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, which was a repealing section, did not indicate that the Legislature meant for said Act to be applied with retrospective effect---Question of retrospective application of the provisions of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997 and Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, to the execution proceedings, in the present case, did not therefore arise---In the absence of any saving clause, the relevant provisions of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997 [and then the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997] were to apply on the date of transfer of such execution proceedings and thereafter---Banking Court was not required to proceed de novo, rather from the stage which the proceedings had reached immediately prior to the transfer as envisaged by S. 7(7) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997---Appeal was dismissed accordingly.

(d) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997) [since repealed]---

----S. 18---Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance (XXV of 1997), S. 12 [since repealed]---Property mortgaged with Bank---Execution proceedings---Sale of property by Bank without intervention of the court---Procedure---Sale by private treaty---Sale by sealed tenders---Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997 clearly permitted for sale by way of private treaty, subject to the written notice of option to purchase being provided to the judgment debtor, however such provision only came into effect from the date of promulgation of the 1997 Ordinance till its repeal, i.e. from 4.2.1997 to 31.5.1997---On the other hand the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 allowed a banking company to sell the mortgaged property by sealed tenders, thereby implying that sale by private treaty was no longer permissible under the said Act (such situation prevailing from 31.5.1997 onwards till the said Act was repealed).

Section 12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997 dealt with execution of decrees and provided that where a banking company was a mortgagee of any property belonging to the judgment-debtor, the banking company may sell such property without the intervention of the Banking Court either by public auction or by private treaty to any person or purchase such property on its own account. Further, where the banking company wished to sell the property by private treaty or to purchase it on its own account it was to, before concluding the sale, give to the judgment debtor an option by a notice in writing for purchasing or redeeming such property at the price at which the banking company proposed to sell or purchase within such period as the banking company may specify in such notice which was not, in any case, to be less than seven days. Therefore the 1997 Ordinance clearly permitted for sale by way of private treaty, subject to the written notice of option to purchase being provided to the judgment debtor. However these provisions only came into effect from the date of promulgation of the 1997 Ordinance till its repeal, i.e. from 4.2.1997 to 31.5.1997, after which the relevant provisions of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 came into force.

Provisions governing execution of decree under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 were contained in section 18 of the said Act, which provided that in cases of mortgaged property a banking company could sell the same with or without the intervention of the Banking Court by inviting sealed tenders in which case the banking company was to invite offers through advertisements in one English and one Urdu newspaper having a wide circulation in the city in which the sale was to take place giving not less than thirty days' time for submission of offers, provided that before conclusion of the sale the judgment-debtor was to be given an opportunity to purchase the property at a matching price to be paid in cash within a period of thirty days. There was a clear departure in the wording of section 18 of the 1997 Act from that of section 12 of the 1997 Ordinance, the former allowing a banking company to sell the mortgaged property by sealed tenders, and the latter by private treaty, thereby implying that sale by private treaty was no longer permissible under the 1997 Act. This remained the situation prevailing from 31.5.1997 onwards (till the said Act was repealed.

(e) Banking Tribunals Ordinance (LVIII of 1984) [since repealed]---

----S. 11(3)---Property mortgaged with Bank---Execution proceedings---Sale of property by Bank through private treaty/negotiation with auction bidder without intervention of the court---Judgment-debtor not given option to purchase through a notice---Effect---Section 11(3) of the Banking Tribunals Ordinance, 1984 required the Bank (decree holder) in case of sale through private negotiation to give to the judgment-debtor, by a notice, the option to purchase or redeem the property, as the case may be, at the same price within such time as the banking company may supply in such notice---Such option, which was a right conferred upon the judgment-debtor, was never afforded to him in the present case, therefore, the sale was not made as per the law and could not be sustained---Appeal was dismissed accordingly.

(f) Administration of justice---

----Where law required an act to be done in a particular manner it had to be done in that manner alone and such dictate of law could not be termed a mere technicality.

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

----O. XXI, R. 66---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 19---Sale of judgment debtor's property by court---Public auction---Alternate modes of sale---Duty of court---Scope---In execution proceedings the court of law must always proceed to employ the principles of 'balancing' and 'proportionality' in order to accomplish a state of affairs where the rights of both the decree-holder and those of the judgment-debtor were secured---Similarly court must be conscious of protecting a third party such as the auction purchaser---Court held the rights of every litigant equally dear---Ideal manner of sale of the judgment-debtor's property was indeed through public auction, but sale(s) of property in execution proceedings were essentially distress sales and the circumstances were far from ideal, therefore the legislature in its wisdom had allowed alternative means of sale---Court may depart from a preferred mode of sale if the circumstances warranted such departure, but when it did depart therefrom it must be through a conscious application of mind because it must itself be convinced that a less "ideal" mode of sale was necessitated by the circumstances prevailing and these must be set out in order to reassure all the parties that the sale proceedings were open and transparent and the court was conscious of its solemn duty---Executing Court should not give its "tacit consent" to a new/different mode of sale as it would not meet the standard of openness required of the executing court.

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

----O. XXI, R. 66---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S. 19--- Sale of judgment-debtor's property by Executing court---Public auction---Alternate modes of sale---Executing Court adopted public auction as the mode of selling judgment-debtor's property---Whether having once adopted a mode of execution as set out in the Civil Procedure Code, 1908, an Executing court could deviate therefrom and adopt an alternative means of sale---Executing court may indeed adopt a different method of sale if required, the only proviso being that such change in course must be after due application of mind by assigning justifiable reasons---To hold otherwise was to shackle the court in an undesirable manner and hold it hostage to its own earlier orders. [Muhammad Attique v. Jami Limited and others PLD 2010 SC 993 held to be "correct law"---Mst. Asma Zafarul Hassan v. Messrs United Bank Ltd. and another 1981 SCMR 108 and National Bank of Pakistan v. Paradise Trading Company 2015 CLD 366 held to be "per incuriam and not correct law"].

Muhammad Attique v. Jami Limited and others PLD 2010 SC 993 held to be correct law.

Mst. Asma Zafarul Hassan v. Messrs United Bank Ltd. and another 1981 SCMR 108 and National Bank of Pakistan v. Paradise Trading Company 2015 CLD 366 held to be per incuriam and not correct law.

Mian Muhammad Nawaz, Advocate Supreme Court and Raja Muhammad Sabir, Advocate Supreme Court for Appellants.

Muhammad Shuja Baba, Advocate Supreme Court for Respondent No.1.

Shahid Ikram Siddiqui, Advocate Supreme Court for Respondents Nos. 2 - 3.

P L D 2016 Supreme Court (AJ&K) 36

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Masood Ahmed Sheikh, JJ

PRESIDENTIAL REFERENCE NO.1 OF 2015: In the matter of

Presidential Reference No.1 of 2015, decided on 21st October, 2015.

(a) Chief Election Commissioner (Terms and Conditions) Act (IV of 2000)---

----Ss. 3, 5 & 7---Chief Election Commissioner (Terms and Conditions) Act (II of 1992)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 46-A, 43 & 50---Chief Election Commissioner---Terms as to appointment/reappointment---Principles---Serving Judge of the High Court, in addition to his function (as judge Azad Jammu and Kashmir High Court), was appointed as Chief Election Commissioner of Azad Jammu and Kashmir, who retired (as Judge of the High Court), but before expiry of the three years period of his office of the Chief Election Commissioner---Chairman of Azad Jammu and Kashmir Council, while acting under S.50 of Azad Jammu and Kashmir Interim Constitution Act, 1974 read with Ss.3 & 5 of Chief Election Commissioner (Terms and Conditions) Act, 2000, advised the President of Azad Jammu and Kashmir for reappointment of said Judge as Chief Election Commissioner for the remaining period of his term of three years' period---Question of law before the Supreme Court was as to whether a person, who remained the Chief Election Commissioner for some period, after ceasing of functioning as such, could be reappointed for the remaining period---Section 5 of Chief Election Commissioner (Terms and Conditions) Act, 2000 clearly provided that the Chief Election Commissioner would hold the office for a term of three years and under S.5(1), proviso of the Act, if a Judge of the High Court or Supreme Court, in addition to his duties as a Judge, was appointed as Chief Election Commissioner, then, he, on his retirement as the Judge, would also cease to function as Chief Election Commissioner and would not be entitled to continue as the Chief Election Commissioner for three years---Section 7(2), proviso, of Chief Election Commissioner (Terms and Conditions) Act, 2000, however, provided that if a serving Judge was appointed as Chief Election Commissioner and the term of the office of Chief Election Commissioner (three years) had expired, then, he would continue to function as the Judge of High Court---Said provisos had an overriding effect on the main provisions, and the same made abundantly clear that there was no concept of "reappointment" of the Chief Election Commissioner for the remaining period of his retirement as Judge.

Messrs Ashraf and Akbar and another v. Kh. Abdul Khaliq and others 1995 SCR 196 ref.

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

----Ss. 43 (7) & (8), 46-A & 50----Chief Election Commissioner (Terms and Conditions) Act (IV of 2000), Ss. 3, 5 & 7---Chief Election Commissioner (Terms and Conditions) Act (II of 1992)---Chief Election Commissioner---Appointment of serving High Court Judge as Chief Election Commissioner---Permissibility---Office of profit---Determination---Question of law before the Supreme Court was that whether a serving Judge of the Azad Jammu and Kashmir High Court could be appointed as Chief Election Commissioner---Section 43(7)(a) of Azad Jammu and Kashmir Interim Constitution Act, 1974 specifically debarred a Judge of High Court from holding an office of profit in the service of Azad Jammu and Kashmir, if his remuneration was thereby increased---Judge of the High Court might be appointed as Chief Election Commissioner in the light of the provisions contained in Chief Election Commissioner (Terms and Conditions) Act, 1992 and Chief Election Commissioner (Terms and Conditions) Act, 2000---Said provisions provided that if a serving Judge was appointed as Chief Election Commissioner, then he would not receive his remuneration in addition to the salary that he was already receiving---Embargo was imposed on appointment of Judge of High Court for holding the office of profit in the service of Azad Jammu and Kashmir with the condition that 'if his remuneration is thereby increased', and the embargo was qualified with the word 'if'---Section 43(7)(b) of Azad Jammu and Kashmir Interim Constitution Act, 1974 did not relate to the office of profit in the service of Azad Jammu and Kashmir, but the same related to any other position like a sitting Judge of the High Court could not hold the office which carried the right to remuneration---Section 43(7)(b) of Azad Jammu and Kashmir Interim Constitution Act, 1974, therefore, did not relate to the office of Chief Election Commissioner, as the same did not relate to the service of Azad Jammu and Kashmir---Supreme Court held that a sitting Judge of the High Court could validly be appointed as Chief Election Commissioner.

Syed Mumtaz Hussain Naqvi and 9 others v. Raja Muhammad Farooq Haider Khan and 4 others 2014 SCR 43 ref.

(c) Chief Election Commissioner (Terms and Conditions) Act (IV of 2000)---

----Ss. 7 (2), 5 & 3----Chief Election Commissioner (Terms and Conditions) Act (II of 1992), Preamble---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.46-A, 43 & 50---Chief Election Commissioner---Terms of office---Question of law before the Supreme Court was that whether in terms of S.7(2) of Chief Election Commissioner (Terms and Conditions) Act, 2000, a retired Judge, who had held office of the Chief Election Commissioner, in addition to his office as Judge of the High Court, was eligible for reappointment as the Chief Election Commissioner before expiry of two years from the date of his ceasing to function as the Chief Election Commissioner---Section 7(2) of Chief Election Commissioner (Terms and Conditions) Act, 2000 debarred a person, who had held the office of Chief Election Commissioner, from holding any office of profit in service of Azad Jammu and Kashmir before expiration of two years from the date he had ceased to hold the office of the Chief Election Commissioner---Office of the Chief Election Commissioner was an 'office of profit' in the service of Azad Jammu and Kashmir.

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

----Ss. 2, 7, 19, 21, 31, 42-D, 46-A, 50 & 50-A & Third Sched.----Chief Election Commissioner (Terms and Conditions) Act (IV of 2000) Ss.3, 5 & 7 ---Chief Election Commissioner (Terms and Conditions) Act (II of 1992), Preamble---Chief Election Commissioner---Terms of appointment/reappointment ---Legislative Assembly/Azad Jammu and Kashmir Council---Powers of legislation---Scope---Council Legislative List---Scope---'Prescribed'---Connotation---Executive authority of Government---Extent---Review of judgment or order by the Supreme Court---Scope---Auditor General---Doctrine of pith and substance, application of---Question of law before the Supreme Court was that whether the two enactments regarding the subject of Chief Election Commissioner, Chief Election Commissioner (Terms and Conditions) Act, 1992 and Chief Election Commissioner (Terms and Conditions) Act, 2000, existed simultaneously, and under S.31(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974, the subject of Chief Election Commissioner was not mentioned in the Council Legislative List; in such situation, whether the Azad Jammu and Kashmir Council, or Legislative Assembly, was competent to make laws on the subject---Contention was raised that Chief Election Commissioner (Terms and Conditions) Act, 2000 had occupied the field for fifteen years and appointments of Chief Election Commissioner were being made thereunder, and that the Government had, therefore, surrendered its authority before the Council in that regard, and that Chief Election Commissioner (Terms and Conditions) Act,1992 had, therefore, stood repealed under the doctrine of implied repeal---Validity---Under the scheme of Azad Jammu and Kashmir Interim Constitution Act, 1974, Azad Jammu and Kashmir Legislative Assembly had legislative authority over the subject matters, topics and activities not enumerated in the Council Legislative List---Council Legislative List was not conclusive and entry No. 51 therein had been entered for covering the matters which were in the legislative competence of the Council but which were not enumerated in the Council Legislative List---Mere absence of a specific matter in the Council Legislative List did not debar the Council from legislation in the matter, if otherwise the same fell within the legislative competence of the Council according to the scheme and spirit of Azad Jammu and Kashmir Interim Constitution Act, 1974---For determining the legislative competence in respect of the matters not enumerated in the Council Legislative List, the pith and substance of the matter had to be considered, for which history of Chief Election Commissioner had to be resorted to---Legislative powers under S.31 of Azad Jammu and Kashmir Interim Constitution Act, 1974 were divided into three parts: one part was to be performed by the Government of Pakistan under S.31(3), and neither the Council nor the Assembly had power to make any law concerning the matters enumerated in S.31(3)---Section 31(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974 provided that the Council would have exclusive powers to make laws with respect to any other matter incorporated in the Council Legislative List---In respect of the residuary matters, S.31(2)(b) of the Constitution Act, 1974 provided that the Assembly would, and the Council would not, have the power to make laws with respect to any matter not enumerated in the Council Legislative List---Legislative powers of the Assembly and the Council were, however, subject to S.31(3) of the Azad Jammu and Kashmir Interim Constitution Act, 1974---Section 50 of Azad Jammu and Kashmir Interim Constitution Act, 1974 provided for Chief Election Commissioner and that the terms and conditions of the same might be prescribed, and the word 'prescribed', in terms of S.2 of the Constitution Act, 1974, was defined as 'prescribed by law or rules made thereunder'---Azad Jammu and Kashmir Legislative Assembly, for determining the terms and conditions of Chief Election Commissioner, had passed Chief Election Commissioner (Terms and Conditions) Act, 1992, which was already in field---Azad Jammu and Kashmir Council had also enacted Chief Election Commissioner (Terms and Conditions) Act, 2000 for the same purposes---Section 50 of Azad Jammu and Kashmir Interim Constitution Act, 1974 provided that Chief Election Commissioner would be appointed by the President of Azad Jammu and Kashmir on the advice of the Council, but the same had neither provided as to who had the legislative competence, nor the appointment of Chief Election Commissioner appeared in the Council Legislative List---Under Azad Jammu and Kashmir Interim Constitution Act, 1974, not only the Chief Election Commissioner but the appointments in other offices were made on the advice of the Council, but the Council had no executive authority over those offices---Mere power to issue advice could not confer Legislative Authority in the Council---Major functions of Chief Election Commissioner, except elections to the Council, related to the matters falling in the legislative competence of Azad Jammu and Kashmir Legislative Assembly---In view of Ss. 19, 21, 31, 50, 50-A & 42-D of Azad Jammu and Kashmir Interim Constitution Act, 1974, matters of Chief Election Commissioner, therefore, did not fall in the legislative competence of Azad Jammu and Kashmir Council, and the same being a residuary matter, the Legislative Assembly was competent to legislate for same.

Syed Mumtaz Hussain Naqvi and 9 others v. Raja Muhammad Farooq Haider Khan and 4 others 2014 SCR 43; Tahir Mehmood and 3 others v. Khalid Sharif and 9 others PLD 2007 SC (AJ&K) 119; Khalid Mehmood Butt and another v. Managing Director, AKLASC & 4 others 2004 CLC 937; Raja Muhammad Sohrab v. AJ&K Government and 6 others 2002 PLC(CS) 1138; Sardar Abdul Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164; Ch. Muhammad Siddique and another v. Deputy Collector Excise and Taxation and others 1992 SCR 110; Federation of Pakistan v. Malik Muhammad Miskeen and others PLD 1995 SC(AJ&K) 1; Tanveer Hussain v. Divisional Superintendent, Pakistan Railways and 2 others PLD 2006 SC 249; Justice (R) Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Council and others (Writ Petition No.24 of 2001, decided on 28-2-2001); Shahid Nabi Malik v. Chief Election Commissioner, Islamabad and 7 others 1997 PSC 10 and Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmed Khan and another 2012 SCMR 6 ref.

Shamas Textile Mills Ltd. and others v. The Province of Punjab and 2 others 1999 SCMR 1477 and Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate Muzaffarabad and others PLD 2012 SC(AJ&K) 42 rel.

(e) Azad Jammu and Kashmir Rules of Business (1984)----

----Rr. 2(ix-a), 4, 6, 7(b), 8, 10, 11 (1) & (4) & Sched. V(12)(c) ---Law Department Manual, 1984---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 46-A---Reference to Supreme Court---Procedure and maintainability---Notification, issuance of---Requirements---Objections were raised that present Reference was not competent for the reasons that under R. 10 of Rules of Business, 1984, sanction of the President in filing the Reference had not been notified, and that the same had been filed in violation of R.11(1) & (4) and Schedule V (12) (c) of Rules of Business, 1984, as the Secretary Law had not initiated any summary for referring the matter to the Supreme Court, and that in violation of R.7(b) of Rules of Business, 1984, the summary had not been routed back through the Chief Secretary---Validity---Section 46-A of Azad Jammu and Kashmir Interim Constitution Act, 1974 provided that if the Chairman of Azad Jammu and Kashmir Council or the President desired to obtain the opinion of the Supreme Court of Azad Jammu and Kashmir on any question of law, which he considered to be of public importance, he might refer the question to the Supreme Court for consideration and opinion---Question referred to the Supreme Court by the President was neither an appeal nor a petition for leave to appeal---Provisions of Azad Jammu and Kashmir Rules of Business, 1984 regarding filing of appeal or the petition for leave to appeal, when read along with Law Department Manual, 1984, made that obligatory for the Authority to issue a notification for filing the same, and without a formal notification and appointment of the counsel, the appeal or petition for leave to appeal was not competent---Provisions of the Law Department Manual, 1984 were not attracted while filing Reference by the Chairman of the Council or the President, as constitutional provision of S.46-A provided self-explanatory method for filing the Reference---Under R.7(b) of Rules of Business, 1984 , all the cases submitted to the Prime Minister or the President for orders would be routed back through the Chief Secretary and all the orders of the Government had to be notified, and the cases, where after the approval of the President and the Prime Minister, the formal order was required by a Department, the file was sent back to the Department through the Chief Secretary for formal notification---Prime Minister, in the present case, had advised the President, who filed the Reference for seeking the opinion of the Supreme Court on the formulated points---Filing of the Reference to the Supreme Court, therefore, did not require formal notification in circumstances.

(f) Words and phrases----

----'Remuneration'----Meaning.

Dictionaries ref.

Abdul Rasheed Abbasi, Advocate along with Mansoor Pervaiz Khan, Advocate-General, Ch. Shaukat Aziz and Sardar M. R. Khan, Additional Advocates-General for the Referring: Authority/President and AJ&K Legislative Assembly.

Raja Muhammad Hanif Khan and Sadaqat Hussain Raja, Advocates for AJ&K Council.

K.D. Khan and Raja Amjad Ali Khan, Advocates (for Ch. Anwaarul Haque, former Speaker AJ&K Legislative Assembly) for Interveners.

Dates of hearing: 12th and 13th October, 2015.

OPINION

MOHAMMAD AZAM KHAN, CJ.--The President of Azad Jammu and Kashmir in exercise of powers under Section 46-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as Act, 1974) has made a reference for opinion of the Court in the following circumstances:-

The Chairman, Azad Jammu and Kashmir Council (hereinafter to be referred as the Council), Prime Minister of Pakistan, while acting under Section 50 of Act, 1974 read with Sections 3 and 5 of the Chief Election Commissioner (Terms and Conditions) Act, 2000 (hereinafter to be referred as Act, 2000), advised for the appointment of Mr. Justice (R) Munir Ahmed Chaudhary as Chief Election Commissioner of Azad Jammu and Kashmir for a period of one year and 17 days i.e. the remaining period of his previous term of three years. Mr. Justice (R) Munir Ahmed Chaudhary, being a judge of the High Court, was appointed as Chief Election Commissioner in addition to the functions as judge Azad Jammu and Kashmir High Court, vide notification No.LD/AD/461-76/2013, dated 27th April, 2013. On 14th April, 2015 he stood retired as judge of the High Court. Under the first proviso to Section 5(1) of Act, 2000, if a judge of the Supreme Court or the High Court is appointed as Chief Election Commissioner, in addition to his functions as a judge, he shall, on retirement, cease to function as the Chief Election Commissioner. His period as Chief Election Commissioner comes to one year, 11 months and 17 days. In the light of the provisions of Act, 2000, the term of the office of Chief Election Commissioner is fixed as three years. It is provided in Section 7(2) of Act, 2000 that a person, who is holding the office of Chief Election Commissioner, shall not hold any office of profit in the service of Azad Jammu and Kashmir till the expiry of a period of two years, from the date on which he has ceased to hold that office. After receiving the advice, the President referred the following questions to the Court for opinion:-

"i) There are two Acts in the field one passed by the Assembly as Act, 1992, and the other one passed by the Council as Act, 2000, as mentioned above. Under Section 31(2) of the Interim Constitution Act, 1974, the subject of Chief Election Commissioner is not enumerated in the Council Legislative List and such matter comes in legislative purview of the Assembly. So in the present situation which authority is competent to make law on the subject? Council or Assembly.

ii) Under Section 43(7) of the Interim Constitution Act, 1974, Judge High Court is not entitled to hold any other office of profit in the service of Azad Jammu and Kashmir if his remuneration is thereby increased or he cannot occupy any other position carrying the right to remuneration for rendering any service. In this context whether a serving judge of High Court can be appointed as Chief Election Commissioner?

iii) If a serving judge of High Court is appointed as Chief Election Commissioner in addition to his duties as judge High Court and he has ceased to function in term of Section 5 of Act, 2000, whether any term is left after ceasing to function as Chief Election Commissioner on retirement as judge High Court and if any term is available, whether that can be given in parts?

(iv) Whether in term of Section 7(2) of Act, 2000, a retired judge, who has held office of Chief Election Commissioner in addition to his office as judge High Court, is eligible for re-appointment as Chief Election Commissioner before expiry of two years from date of his ceasing to function as Chief Election Commissioner?"

As the opinion was sought on the question whether the Azad Jammu and Kashmir Legislative Assembly or the Azad Jammu and Kashmir Council is competent to legislate in respect of the terms and conditions of the Chief Election Commissioner, a notice was issued to the Secretary Azad Jammu and Kashmir Legislative Assembly and the Azad Jammu and Kashmir Council as well as the public at large to file the statement of facts. The statements of facts were filed on behalf of Azad Jammu and Kashmir Council, the President, Secretary Azad Jammu and Kashmir Legislative Assembly, Ch. Anwaarul Haque, a former Speaker of the Azad Jammu and Kashmir Legislative Assembly and Mr. K. D. Khan, an advocate of this Court.

1. At the outset, Raja Muhammad Hanif Khan, advocate, representing the Council, raised a preliminary objection on maintainability of the reference on the ground that the reference has been made by the President in violation of sub-rules (1) and (4) of Rule 11 and Schedule V(12)(c) of the Rules of Business, 1985. The Secretary Law, Justice, Parliamentary Affairs and the Human Rights Department, Azad Government of the State of Jammu and Kashmir, initiated the summary for sending back the advice to the Chairman Azad Jammu and Kashmir Council for revisiting the same on the ground that there is no concept of appointment of the Chief Election Commissioner for the remaining period which is fixed for the tenure of the office of Chief Election Commissioner. The learned counsel submitted that no summary was initiated for referring the matter to the Court, therefore, the reference is not competently filed. The learned counsel submitted that in the light of the provisions contained in Rule 7(b) of the Rules of Business, 1985, the summary was to be routed back through the Chief Secretary. The said summary was not routed back and was not sent to the Chief Secretary, therefore, without the signature of the Chief Secretary, the reference was not competently filed. The learned counsel made another objection on the maintainability of the reference that under Rule 10 of the Azad Jammu and Kashmir Rules of Business, 1985, the sanction of the President in every matter is to be notified. The sanction of the President for filing the reference was not notified, therefore, the reference was not competently filed. The learned counsel referred to and relied upon the case reported as Syed Mumtaz Hussain Naqvi and 9 others v. Raja Muhammad Farooq Haider Khan and 4 others [2014 SCR 43].

2. Mr. Abdul Rasheed Abbasi, advocate, while arguing on behalf of the referring authority and the Azad Jammu and Kashmir Legislative Assembly, submitted that the organization of the Department is provided in Rule 4(1) of the Rules of Business, 1985. The Secretary of the Department submitted the summary to the Minister. The Minister Law, Justice, Parliamentary Affairs and Human Rights Department, apart from the points raised before him, formulated further points and opined that the matter be sent to the Prime Minister for advising the President for seeking the opinion of the Supreme Court under Section 46-A of Act, 1974. It is not the intention of the Rules of Business, 1985, that the Minister, Law, Justice, Parliamentary Affairs and Human Rights Department, in all circumstances, shall follow the summary. On the advice of the Prime Minister the summary was sent to the President for his approval. The learned counsel submitted that routing back the summary under Rule 7(b) of the Rules of Business, 1985, relates only to those matters where a formal order has to be issued. In the matter in hand, it is the sole prerogative of the President to refer the matter, therefore, the formal notification was not required. It is only the President, who may invoke the advisory jurisdiction of the Court. The learned counsel submitted that in the light of Rule 10 of the Rules of Business, 1985, the executive orders of the Government have to be notified. The reference under Section 46-A of Act, 1974 is not an executive order of the Government. The learned counsel submitted that the Court in its order dated 16th September 2015 has held that legal questions of public importance have been referred to the Court for opinion, therefore, the Court entertained the same.

3. We have carefully perused the preliminary objection raised by Raja Muhammad Hanif Khan, advocate, representing the Council.

4. The advisory jurisdiction under Section 46-A of Act, 1974 is vested in the Court, as under:-

"46-A. Advisory jurisdiction.- (1) If, at any time , the Chairman of the Council or the President desires to obtain the opinion of the Supreme Court of Azad Jammu and Kashmir on any question of law which he considers of public importance, he may refer the question to the Supreme Court of Azad Jammu and Kashmir for consideration.

(2) The Supreme Court of Azad Jammu and Kashmir shall consider a question so referred and report its opinion on the question to the Chairman of the Council or, as the case may be, the President."

A bare reading of Section 46-A of Act, 1974 speaks that if the Chairman, Azad Jammu and Kashmir Council or the President desires to obtain the opinion of the Supreme Court of Azad Jammu and Kashmir on any question of law, which he considers to be of public importance, he may refer the question to the Supreme Court for consideration and opinion. The question referred to the Supreme Court by the President is neither an appeal nor a petition for leave to appeal. The provisions of the Rules of Business, 1985, regrind filing of an appeal or the petition for leave to appeal, when read along with the Law Department Manual, 1984, make it obligatory for the authority to issue a notification for filing the same. Without a formal notification and appointment of the counsel, the appeal or petition for leave to appeal, as the case may be, is not competent. The provisions of Law Department Manual, 1984, are not attracted while filing reference by the Chairman of the Council or the President, as constitutional provision of Section 46-A provides self-explanatory method of filing the reference.

1. Raja Muhammad Hanif Khan, advocate, has laid much stress on the point that the Secretary Law, Justice, Parliamentary Affairs and Human Rights Department has not initiated the summary for filing the reference. We have carefully perused the summary initiated by the Secretary Law. The Secretary, after detailed narration of facts, apprised that Mr. Justice (R) Munir Ahmed Chaudhary, a serving judge of the High Court, was appointed as the Chief Election Commissioner. After reaching the age of superannuation, he was retired from his office and on his retirement, he ceased to be the Chief Election Commissioner of Azad Jammu and Kashmir w.e.f. 14th April, 2015. In the light of the provisions contained in proviso to Section 5(1) of Act, 2000, a judge of the Supreme Court or the High Court, who is appointed as Chief Election Commissioner in addition to the functions as a judge, he shall, on retirement as judge of the Supreme Court or the High Court, as the case may be, cease to function as Chief Election Commissioner and in the light of Section 7(2) of Act, 2000, a person who is holding the office of Chief Election Commissioner, shall not hold any office of profit in the service of Azad Jammu and Kashmir before expiry of two years, after he ceases to hold that office. Mr. Justice (R) Munir Ahmed Chaudhary cannot be appointed as Chief Election Commissioner again till 13th April, 2017, i.e. till the expiry of the period of two years. He requested the Minister Law, Justice, Parliamentary Affairs and Human Rights Department, that the matter may be referred to the President through the Prime Minister for review of the advice on these grounds. After perusal of the summary, the Minister Law pointed out that presently two Acts relating to the terms and conditions of Chief Election Commissioner; one made by the Azad Jammu and Kashmir Legislative Assembly in the year 1992 and the other made by the Azad Jammu and Kashmir Council in the year 2000, are holding the field. Which one out of the two forums is competent to legislate upon the terms and conditions of the Chief Election Commissioner and also that in the light of the provisions contained in Section 43(7) of Act, 1974, a judge of the High Court is not entitled to hold any office of profit in the service of Azad Jammu and Kashmir if remuneration is thereby increased or any other office carrying along with the right of remuneration for rendering any service. He requested the Prime Minister that the President be advised to refer the matter to the Supreme Court for seeking the opinion.

2. The "Department" is defined in Rule 2(ix-a) of the Rules of Business, 1985, which means a self-contained administrative unit in the Secretariat, responsible for the conduct of business of the Government in a distinct and specified sphere and declared as such by the Government. The organization of the Department, as provided in Rule 4 of the Rules of Business, 1985, provides that a Department shall consist of a Minister, a Secretary and of such other officials as the Government may determine and under Rule 6 of the Rules of Business, 1985, the Minister shall be responsible for policy matters and for conducting the business of his Department and he has to submit the cases to the Prime Minister as required by the provisions of these Rules. Under Rule 8 of the Rules of Business, 1985, a Secretary has to assist the Minister in formulation of policies and bring to the notice of the Minister the cases which are required to be submitted to the Prime Minister under the Rules. He has to execute the sanctioned policies. He is responsible to the Minister for proper conduct of the business of the Department. It is the duty of the Secretary that whenever any order made by the Minister, appears to involve a departure from the rules, regulations or Government policy, resubmit the case to the Minister. Under sub-rule (2) of Rule 8 of the Rules of Business, 1985, the Secretary, while resubmitting the case to the Minister, shall suggest a definite line of action. The Secretary has initiated the matter that in his opinion, the appointment of Mr.Justice (R) Munir Ahmed Chaudhary appears to be against the provisions contained in Section 5 and Section 7 of Act, 2000. The Minister thought that the interpretation of legislative powers of the Council and the Azad Jammu and Kashmir Legislative Assembly under Section 31 of Act, 1974, the interpretation of the provisions of Section 43(7) of Act, 1974 and the provisions of Act, 2000 are involved, therefore, it is appropriate that the President be advised to seek the opinion from the Supreme Court and referred the case to the Prime Minister. In this context, the argument of Raja Muhammad Hanif Khan, advocate, appears to be misconceived.

3. We agree with the argument of Raja Muhammad Hanif Khan, advocate, that under Rule 7(b) of the Rules of Business, 1985, all the cases submitted to the Prime Minister or the President for orders shall be routed back through the Chief Secretary and all the orders of the Government have to be notified. The cases where after the approval of the President and the Prime Minister, the formal order is required by a Department, the file is sent back to the Department through the Chief Secretary for formal notification. The filing of reference in the Supreme Court doesn't require a formal notification. The Prime Minister advised the President and the President filed a reference for seeking the opinion of the Court on the formulated points. The objection on the maintainability of the reference is devoid of any force, hence is repelled.

4. Mr. Abdul Rasheed Abbasi, advocate, while arguing on behalf of the referring authority, the President of Azad Jammu and Kashmir, and the Azad Jammu and Kashmir Legislative Assembly, submitted that the legislative powers of the Council and the AJ&K Legislative Assembly are contained in Section 31 of Act, 1974. He submitted that the Council and the Legislative Assembly have powers to make laws for the territories of Azad Jammu and Kashmir, for all the State subjects wherever they are or they may be. Under subsection (2) of Section 31 of Act, 1974 the Council is vested with the powers to legislate in the matters falling in the Council Legislative List set out in third schedule and in the residuary matters, the Council shall not and the Assembly shall have powers to make laws. He submitted that under Section 50 of Act, 1974, the Chief Election Commissioner shall be appointed by the President on the advice of the Council on such terms and conditions, as may be prescribed. The word "prescribed" is defined in Section 2 of Act, 1974 as "prescribed by law or rules made thereunder." The matter of appointment and terms and conditions of the Chief Election Commissioner does not fall in the Council Legislative List. It is a residuary matter and only the Azad Jammu and Kashmir Legislative Assembly is competent to legislate in the matter. The Legislative Assembly competently made the Chief Election Commissioner (Terms and Conditions) Act, 1992 and appointments of the Chief Election Commissioner were made on the advice of the Council under this Act in the year 1992 and 1997. Later on, the Council passed Act, 2000 on the same subject in the year 2000. The learned counsel submitted that subsection (2) of Section 31 of Act, 1974 categorically lays down that the Council has legislative competence only in the matters enumerated in the Council Legislative List falling in the third schedule and clause (b) of subsection (2) of Section 31 of Act, 1974 further prohibits the Council from legislating on any residuary matter. The matter of appointment and terms and conditions of the Chief Election Commissioner exclusively falls in the residuary matter and it is only the Azad Jammu and Kashmir Legislative Assembly which is competent to legislate in the matter. The Council is not competent to legislate in the matter.

The learned counsel argued that in the statement of facts filed by the learned counsel for the Council, the reliance has been placed on entry No.51 enumerated in the Council Legislative List. The matter of appointment, terms and conditions of the Chief Election Commissioner is not within its legislative competence because it does not fall in the list. On second part of entry No.51, regarding the matters relating to the Council, he submitted that entry No.51 enumerated in the third schedule of Act, 1974 means the subjects which are not only covered by schedule but are entered in the Constitution, such like example is Section 50-A of Act, 1974, which provides that the Auditor-General shall be appointed by the Council and the Council has powers to make law for appointment, terms and conditions of the Auditor-General. The appointment of the Auditor-General is not mentioned in the Council Legislative List. The learned counsel submitted that entry No.25 of third schedule of Act, 1974 provides for the elections to the Council and not the Chief Election Commissioner. The Assembly and the Council are two separate entities. The learned counsel made a comparison of Sections 50 and 50-A of Act, 1974 and submitted that the Council is not empowered to legislate upon the terms and conditions of the Chief Election Commissioner. The learned counsel referred to and relied upon the cases reported as Syed Mumtaz Hussain Naqvi and 9 others v. Raja Muhammad Farooq Haider Khan and 4 others [2014 SCR 43], Reference No.01 of 2012 [PLD 2013 SC 279], Abdul Hameed Khan v. Azad Government and others [2009 SCR 400] and Tahir Mehmood and 3 others v. Khalid Sharif and 9 others [PLD 2007 SC(AJ&K) 119].

The learned counsel further submitted that the provisions of the Constitution shall be read as an organic whole. He further submitted that the words "….relates to the Council" appearing in entry No.51 of the third schedule of Act, 1974 cannot enlarge the scope of schedule as compared to clear statutory provisions as laid down in the Section. By giving powers for issuing advice to the Council, does not empower the Council for legislation in the matter. Harmonious interpretation of the law is to be made. The learned counsel referred to and relied upon the cases reported as Tahir Mehmood and 3 others v. Khalid Sharif and 9 others [PLD 2007 SC (AJ&K) 119], Khalid Mehmood Butt and another v. Managing Director, AKLASC and 4 others [2004 CLC 937] and Raja Muhammad Sohrab v. AJ&K Government and 6 others [2002 PLC (C.S.) 1138].

In the alternative, the learned counsel submitted that the word "or" appearing in Section 51 of Act, 1974 may be read as "and". He referred to and relied upon the case reported as Sardar Abdul Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others [1991 SCMR 2164] and submitted that when there is a dispute between Section 31 and the schedule to Section 31 of Act, 1974, Section 31 shall prevail. He referred to Crawford 1998th Edition, page 43. The learned counsel further submitted that ejusdem generis rule is applicable in the matter. He referred to Maxwell on Interpretation of Statutes, page 889 and Crawford, page 237. The learned counsel also referred to the Constitution of the Islamic Republic of Pakistan, 1973, by Justice Muhammad Munir, Vol. I, Page 99, 1996th Edition. The learned counsel submitted that exception shall be strictly construed. Entry No.51 of the third schedule be accepted as an exception. The learned counsel referred to and relied upon the case reported as Ch. Muhammad Siddique and another v. Deputy Collector Excise and Taxation and others [1992 SCR 110]. The learned counsel referred to the Rules of Business of Azad Jammu and Kashmir Council, 1983 and entry Nos.18 and 19, which provide for the appointment of Chief Election Commissioner and the Auditor-General and submitted that these rules provide the cases to be sent to the Chairman AJ&K Council for orders including the appointment of the Chief Election Commissioner and the Auditor-General. The learned counsel in support of the argument, submitted that the Azad Jammu and Kashmir Rules of Business, 1985, provides that the Chief Election Commissioner is a special institution of the Law, Justice, Parliamentary Affairs and Human Rights Department. The executive authority in respect of the Chief Election Commissioner vests in the Government. The pay, budget and other matters are provided by the Azad Jammu and Kashmir Government and not the Council, therefore, it is only the Azad Jammu and Kashmir Legislative Assembly, which has power to legislate in the matter. The learned counsel referred to Section 21 of Act, 1974 and argued that the executive authority of the Government shall extended to the matters which fall exclusively in the legislative competence of the Assembly. The learned counsel submitted that there are two laws in respect of the appointment and terms and conditions of the Chief Election Commissioner; one made by the Assembly in the year 1992 and the other by the Council made on the same subject in the year 2000. It does not amount to surrendering the authority before the Council Act, 1992 was not repealed. He submitted that for determining the legislative competence of the Council and the Assembly, the pith and substance of the Act is to be looked into. When the executive authority is being exercised by the Government, after promulgation of Act, 1974, the legislative competence also vests in the Azad Jammu and Kashmir Legislative Assembly.

On point No.ii, the learned counsel submitted that a serving judge of the High Court can validly be appointed as Chief Election Commissioner. Clause (a) of subsection (7) of Section 43 of Act, 1974, provides that a judge of the High Court shall not hold any other office of profit in the service of Azad Jammu and Kashmir, if his remuneration is thereby increased. The learned counsel submitted that prohibition is subject to the condition that if his remuneration is thereby increased and in Act, 1992 and Act, 2000, it is laid down that a judge shall not receive the pay of two offices. Clause (b) of subsection (7) of Section 43 of Act, 1974 does not relate to the service of Azad Jammu and Kashmir. There is difference between clauses (a) and (b). In clause (a) of subsection (7) of Section 43 of Act, 1974 the prohibition is to the effect that a judge shall not hold any office of profit in the service of Azad Jammu and Kashmir if his remuneration is thereby increased but clause (b) relates to any other position carrying the right to remuneration. This clause deals with any other office, not the service of Azad Jammu and Kashmir and provides that there is a right to remuneration with the post. The office of Chief Election Commissioner is a part of the service of Azad Jammu and Kashmir and a judge while acting as Chief Election Commissioner shall not receive the additional salary for the said post, therefore, a judge of the High Court can validly be appointed as Chief Election Commissioner. The learned counsel submitted that in Act, 2000, the word used is "shall not hold any office" while performing the functions of Chief Election Commissioner. By holding the office it means permanently holding the post and in Section 5 of Act, 2000, in proviso, the word has been used as "function". A serving judge of the High Court can validly be appointed as Chief Election Commissioner. The learned counsel referred to and relied upon the case reported as Bostan Chaudhary v. Audit and Accounts Department and 6 others [2011 SCR 279] for definition of the word "if".

On point No.iii, whether a judge of the High Court, who was also acting as the Chief Election Commissioner and served as Chief Election Commissioner for some time after retirement as a judge of the High Court, can be appointed as Chief Election Commissioner for the remaining period fixed for the office of Chief Election Commissioner, the learned counsel submitted that the tenure of the office of the Chief Election Commissioner under Section 5 is fixed as three years. The proviso attached to Section 5(1) of Act, 2000 is to the effect that if a judge of the Supreme Court or the High Court is appointed as Chief Election Commissioner, in addition to the functions as a judge, he shall, on retirement as a judge of the Supreme Court or the High Court, as the case may be, shall also cease to function as Chief Election Commissioner. This proviso shall be read with the proviso to Section 7 of the Act. The proviso to Section 5 of Act, 2000 has overriding effect that if a person is appointed as Chief Election Commissioner in addition to his duties as judge of the Supreme Court or the High Court, as the case may be, when the judge retires, he ceases to be the Chief Election Commissioner. The appointment of the Chief Election Commissioner under this provision, when read with proviso to Section 7 of Act, 2000, makes it clear that if a serving judge is appointed as Chief Election Commissioner and his term expires before expiry of three years, then the Chief Election Commissioner ceases to hold the office and if he retires as judge of the Supreme Court or the High Court, as the case may be, he also ceases to function as Chief Election Commissioner.

On point No.iv, whether in terms of Section 7(2) of Act, 2000, a retired judge, who has held the office of Chief Election Commissioner in addition to his office as a judge of High Court, is eligible for re-appointment as Chief Election Commissioner before expiry of two years from the date of his ceasing to function as Chief Election Commissioner, the learned counsel submitted that Section 7(2) of Act, 2000 categorically debars a Chief Election Commissioner to hold any other office of profit in the service of Azad Jammu and Kashmir before expiry of two years' period from the date of on which he ceased to hold that office. The office of Chief Election Commissioner falls in the service of Azad Jammu and Kashmir, therefore, a person, who has held the office of Chief Election Commissioner, even for a shorter period, cannot be appointed as Chief Election Commissioner unless the period of two years has elapsed. An exception has been created in Section 43(8) of Act, 1974 that a judge of the High Court shall not hold the office of profit in the service of Azad Jammu and Kashmir after retirement before expiry of two years except the office of Chief Election Commissioner or the office of Chairman or Member, Public Service Commission. An exception has been created for a judge. No exception has been created for the Chief Election Commissioner.

1. Raja Muhammad Hanif Khan, advocate, representing the Council, submitted that the Chief Election Commissioner is appointed under Section 50 of Act, 1974, which provides that the terms and conditions of the Chief Election Commissioner may be prescribed. The learned counsel submitted that the Chief Election Commissioner is appointed by the President on the advice of the Council and throughout right from 1974 the Chief Election Commissioner is being appointed on the advice of the Council. The word 'advice' is of much significance. The advice is an executive act and the authority, which performs the executive act, has powers to legislate under Sections 21 and 31 of Act, 1974. The Azad Jammu and Kashmir Legislative Assembly made Act, 1992 for appointment, terms and conditions of the Chief Election Commissioner. Since the functions relating to the Chief Election Commissioner are of such nature, which require impartiality, therefore, the Council legislated Act, 2000 for appointment, terms and conditions of the Chief Election Commissioner. The learned counsel submitted that the Constitution shall be read as an organic whole and when we look into the whole scheme of the Constitution, it becomes crystal clear that the authority, which exercises the executive act, has powers to legislate in that matter. Since the Council has powers to issue advice for appointment of the Chief Election Commissioner under Section 50 of Act, 1974, it has the legislative authority and entry No.51 of Third Schedule clearly empowers the Council to legislate in the matter. Entry No.51 gives powers to the Council for legislation in respect of the matters "which under the Act are within the legislative competence of the Council or relates to the Council". The matter of appointment or issuance of advice relates to the Council, therefore, it is the Council, which has powers to legislate in the matter. The learned counsel referred to the Azad Jammu and Kashmir Council Rules of Business, 1983, Schedule V, Entry Nos.18 and 19 and submitted that the appointment of Chief Election Commissioner and the Auditor-General of Azad Jammu and Kashmir falls in the competence of the Council. The learned counsel referred to and relied upon the cases reported as Syed Mumtaz Hussain Naqvi and 9 others v. Raja Muhammad Farooq Haider Khan and 4 others [2014 SCR 43] and Dossani Travels Pvt. Ltd. v. Messrs Travels Shop (Pvt.) Ltd. and others [PLD 2014 SC 1].

The learned counsel submitted that entry in the schedule is to be considered final. The learned counsel submitted that entry No.51 of third schedule of Act, 1974 be read with Entry No.52, which says that the matters incidental or ancillary to any of the matters enumerated in the Council Legislative List shall fall in exclusive legislative competence of the Council. The learned counsel referred to and relied upon the case reported as Federation of Pakistan v. Malik Muhammad Miskeen and others [PLD 1995 SC(AJ&K) 1]. The learned counsel further submitted that Act, 1992 made by the Azad Jammu and Kashmir Legislative Assembly has impliedly been repealed after the enforcement of Act, 2000 by the doctrine of implied repeal. Only Act, 2000 is a valid piece of legislation and the Assembly has no power to legislate in the matter. The learned counsel referred to and relied upon the case reported as Tanveer Hussain v. Divisional Superintendent, Pakistan Railways and 2 others [PLD 2006 SC 249]. The learned counsel referred to and relied upon the judgment of the Azad Jammu and Kashmir High Court delivered in the case titled Justice (R) Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Council and others (Writ Petition No.24/2001, decided on 28.2.2001) and submitted that the Azad Jammu and Kashmir Government has accepted the version of the Council that the Council has legislative authority in the matters of the appointment of the Chief Election Commissioner. After accepting the same, the Government cannot turnaround. In fact, in the guise of this reference, the Government has filed an appeal from the judgment of the High Court delivered in 2001 with mala fide intention.

The learned counsel on point No.ii concurred with the opinion of Mr. Abdul Rasheed Abbasi, advocate, and submitted that a sitting judge of the High Court can be appointed as Chief Election Commissioner.

On point No.iii, the learned counsel submitted that proviso to section 5 of Act, 2000 is ultra vires the constitution but in presence of this proviso there is no concept of appointment of the Chief Election Commissioner for the remaining period. In the light of the proviso, a person, who is appointed as Chief Election Commissioner in addition to his functions as a judge of the Supreme Court or the High Court, as the case may be, ceases to be the Chief Election Commissioner, when he retires as a judge.

On point No.iv, the learned counsel submitted that in the light of the provisions contained in Section 7(2) of Act, 2000, a person, who has held the office of the Chief Election Commissioner, cannot be appointed as Chief Election Commissioner again, before the expiry of two years from the date, he ceases to hold that office. There is no other view but this provision is also ultra vires the constitution. On query by the Court that Act, 2000 is made by the Azad Jammu and Kashmir Council, the appointment order is also being made by the Council in the light of this provision, how can the Council say that the proviso to section 5 and section 7(2) of Act, 2000 is ultra vires the constitution, the learned counsel submitted that it is correct that the law is made by the Council but the fact of the matter is that the provisions are against the basic spirit of the constitution, therefore, these are ultra vires the constitution.

1. Mr. K.D. Khan, an advocate of this Court, who has filed the statement of facts voluntarily, submitted that the provisions contained in Section 31 of Act 1974, provide that subject to the succeeding provisions of this section, the Assembly and the Council shall have power to legislate for the territories of Azad Jammu and Kashmir and for the State subjects wherever they may be, and succeeding section 50 of Act, 1974 provides for appointment of the Chief Election Commissioner. Initially the Chief Election Commissioner was provided to be appointed without the advice of the Council but in the year 1975, the section was amended and it was provided that the Chief Election Commissioner shall be appointed on the advice of the Council and advice is an executive act, therefore, by exercising the executive authority, the right to legislate in respect of the terms and conditions of Chief Election Commissioner vests in the Azad Jammu and Kashmir Council and the Assembly is not competent to legislate in the matter. The learned counsel submitted that Act, 1992 has impliedly been repealed by promulgation of Act, 2000. It is only the Council which has the authority to legislate in the matter. The learned counsel referred to and relied upon the case reported as Shahid Nabi Malik v. Chief Election Commissioner, Islamabad and 7 others [1997 PSC 10] and Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmed Khan and another [2012 SCMR 6]. The learned counsel further submitted that the schedule is an extension of the section and the schedule shall be read as part of that Section. Section 50 of Act, 1974 and the schedule when read together, leave no doubt that it is only the Council which has power to legislate in the matter.

2. Raja Amjad Ali Khan, advocate, representing Ch. Anwaarul Haque, a former speaker of the Azad Jammu and Kashmir Legislative Assembly, submitted that the reference made by the President under Section 46-A of Act, 1974 is not an appeal or the petition for leave to appeal. The President and the Chairman, Azad Jammu and Kashmir Council has exclusive powers under Section 46-A of Act, 1974 to seek the opinion of the Supreme Court on any question of law of public importance. No objection can be raised by anybody on the reference because there is no concept of parties in the reference. The learned counsel while attending point No.i submitted that under Section 31(2) of Act, 1974, the Council has exclusive powers to make laws enumerated in the Council Legislative List set out in the third schedule. In the said matters, it is only the Council which can legislate and the Assembly has nothing to do with such matters as in clause (b) of Section 31(2) of Act, 1974 it has categorically been laid down that in the residuary matters, the Assembly shall and the Council shall not have powers to make laws in respect of the matters not enumerated in the Council Legislative List. A restriction has been imposed on the legislative powers of the Council in clause (b) of subsection (2) of Section 31 of Act, 1974. The matter of appointment, terms and conditions of the Chief Election Commissioner is not included in the Council Legislative list. The Council has powers to legislate in the matters, which are clearly provided in the Council Legislative List. The learned counsel submitted that the argument of Raja Muhammad Hanif Khan, advocate, that the Azad Government of the State of Jammu and Kashmir has surrendered its right of legislation before the High Court that the Council is competent to legislate in the matter, has no force as the jurisdiction cannot be conferred by consent. The Azad Jammu and Kashmir Legislative Assembly was not party in the said writ petition and the judgment of the High Court is not binding on this Court. The said judgment was delivered without filing of written statement by the Government. It has no value. The learned counsel submitted that the deciding factor for the legislative purpose is the Council Legislative List and entry No.51 incorporated in the Council Legislative List relates to the matters falling within the Council legislative competence. For interpreting the said entry, it cannot be said that a matter distant to the Council can fall in the Council Legislative List. The learned counsel placed on record a copy of the letter written by Sardar Muhammad Ibrahim Khan, President of Azad Jammu and Kashmir, addressed to the Minister Kashmir Affairs on 27th November, 2000, whereby the President has shown serious reservations on the promulgation of Act, 2000. The learned counsel submitted that by reading of the whole of Act, 1974, the constitutional provisions, i.e. Sections 19, 21 and 31 and the schedule of Act, 1974, it becomes crystal clear that only the Azad Jammu and Kashmir Legislative Assembly has competence to make laws for appointment, terms and conditions of the Chief Election Commissioner. The Council has no jurisdiction in the matter.

On point No.ii, the learned counsel submitted that in the light of the provisions contained in Section 43(7)(b) of Act, 1974, a judge of the High Court cannot be appointed against a post in addition to his own duties where right of remuneration is attached. The post of Chief Election Commissioner is a full time salaried office. The right to remuneration is attached, therefore, a serving judge of the High Court cannot be appointed as Chief Election Commissioner.

On point No.iii, the learned counsel submitted that the proviso to Section 5 of Act, 2000, makes it clear that there is no concept of appointment of Chief Election Commissioner for the remaining period. If a serving judge of the High Court or the Supreme Court is appointed as Chief Election Commissioner in addition to his own office, he will serve till he remains in service or till expiry of a period of three years and if the judge retires before that period, he shall also cease to function as Chief Election Commissioner. This can be deduced from the proviso to Section 7 of Act, 2000, which also says that if a judge is appointed as Chief Election Commissioner, his tenure shall be three years and when a period of three years expires, the judge shall continue to serve as judge of the High Court or the Supreme Court, as the case may be.

On point No.iv the learned counsel submitted that subsection (2) of Section 7 of Act, 2000 places an embargo on appointment of a person, who has held the office of Chief Election Commissioner against any post in the service of Azad Jammu and Kashmir before expiry of two years from the date he ceased to hold that office. He submitted that under Section 43(8) of Act, 1974, an exception has been created for the judge of the High Court that he may be appointed as Chief Election Commissioner, Chairman or Member of the Public Service Commission before the expiry of two years but in other offices, he cannot be appointed till expiry of two years and no such exception is found in Act, 2000 for appointment against other offices. The provisions of Act, 2000 are unambiguous and a person who remained Chief Election Commissioner, cannot be appointed again as Chief Election Commissioner before the expiry of two years from the date he ceases to hold that office.

1. Mr. Sadaqat Hussain Raja, advocate, counsel for the Azad Jammu and Kashmir Council, submitted that the reference has been filed with mala fide intention. It is in fact an appeal against the judgment of the High Court delivered in Mr. Justice (R) Muhammad Siddique Farooqi's case (supra). The questions formulated are person related. Mr.Justice (R) Munir Ahmed Chaudhary remained a judge of the High Court and also remained Chief Election Commissioner for a period of one year, 11 months and 17 days till he reached the age of superannuation and retired as a judge of High Court. All the questions have been formulated only to debar him from being appointed as Chief Election Commissioner.

2. We have perused the terms of reference and heard the counsel for the referring authority, the Azad Jammu and Kashmir Legislative Assembly, the Council and the interveners.

Point No.i:

"i) There are two Acts in the field one passed by the Assembly as Act, 1992, and the other one passed by the Council as Act, 2000, as mentioned above. Under Section 31(2) of the Interim Constitution Act, 1974, the subject of Chief Election Commissioner is not enumerated in the Council Legislative List and such matter comes in legislative purview of the Assembly. So in the present situation which authority is competent to make law on the subject? Council or Assembly."

1. The people of the State of Jammu and Kashmir waged a movement for independence from the Dogra Regime in the early decades of 20th century. At the time of cessation of British sovereignty, two independent States i.e. India and Pakistan were created. Kashmir was the biggest amongst 563 princely States of India. The Princely States were given option to join either of the newly created countries. The people of Kashmir waged the war of liberation from the yoke of Dogra regime. In the result of this struggle, the parts of the State namely Gilgit Baltistan and Azad Jammu and Kashmir were liberated. The Government of the Azad State of Jammu and Kashmir was formed on 24th October, 1947. India took the matter to the United Nations. The ceasefire took place and in the result of deliberations in the United Nations, India committed that Kashmiris will be given the right to self-determination to decide their future through independent plebiscite and in this background, the United Nations passed the resolutions. In the light of UNCIP resolutions, the affairs of the territories under the control of Azad Jammu and Kashmir Government and Gilgit Baltistan are being run by the Government of Pakistan. Initially, the Azad Jammu and Kashmir Government was run through the Rules of Business, 1950. The Azad Jammu and Kashmir Presidential Elections Act, 1960 was enforced in Azad Jammu and Kashmir on 16th December, 1960, which provided an Election Commissioner for Presidential Elections and the Chief Advisor to the Azad Government of the State of Jammu and Kashmir or a person nominated by him was to be appointed as the Election Commissioner. It is worth mentioning here that under the Rules of Business of the Government of Azad Jammu and Kashmir in 1950, 1952 and 1956, the Joint Secretary, Ministry of the Kashmir Affairs remained the Chief Advisor of the Azad Government of the State of Jammu and Kashmir. In the year 1964, Act IV of 1964 by the name of Azad Jammu and Kashmir Government Act, 1964 was enforced, which provided a State Council consisting of eight members. Thereafter, on 17th September 1968, Act, 1964 was repealed and the Azad Jammu and Kashmir Government Act, 1968 was enforced. The State Council members were to be elected in the prescribed manner by the members of the Union Council, Union Committee and the Town Committee in Azad Jammu and Kashmir elected under the Basic Democracies Act, 1960. Later on, the Azad Jammu and Kashmir Government Act, 1970 (Act I of 1970) was enacted on 5th September 1970 and the Azad Jammu and Kashmir Government Act, 1968 along with the rules made thereunder, was repealed. For the first time the Legislative Assembly was provided with the legislative powers. There is no mention of the Chief Election Commissioner in Act, 1970, however, under the provisions of Section 27 of Act, 1970, the appointment of Election Commissioner is prescribed. The Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, was promulgated by the President under Section 7 of the Azad Jammu and Kashmir Government Act, 1968. Section 4 of the said Ordinance provides the Election Commissioner, which is reproduced as under:-

"4. Election Commissioner.---(1) For the purpose of this Ordinance, the Government shall appoint a person to be the Election Commissioner.

(2) The person performing the functions of Election Commissioner immediately before the commencement of this Ordinance shall be deemed to be the Election Commissioner appointed under subsection (1)."

The Presidential elections and elections to the Azad Jammu and Kashmir Legislative Assembly under the provisions of the Azad Jammu and Kashmir Government Act, 1970, were conducted by the Election Commissioner appointed under the Electoral Rolls Ordinance, 1970. Later on through an agreement between the leadership of the Azad Jammu and Kashmir and the Government of Pakistan, the Government of Pakistan in the discharge of its responsibilities under the UNCIP resolutions, approved the proposed repeal and reenactment of the Azad Jammu and Kashmir Government Act, 1970 to provide for the Government and administration of the territories of Azad Jammu and Kashmir and authorized the President of Azad Jammu and Kashmir to introduce the bill of Azad Jammu and Kashmir Interim Constitution Act, 1974 (Act VIII of 1974) in the Azad Jammu and Kashmir Legislative Assembly. The Azad Jammu and Kashmir Legislative Assembly passed the Azad Jammu and Kashmir Interim Constitution Act, 1974 to provide for the better Government and administration of Azad Jammu and Kashmir. Section 50 of Act, 1974 provides for the Chief Election Commissioner.

The appointment of Election Commissioner under the Azad Jammu and Kashmir Government Act, 1970, was validated. Initially in Act, 1974, it was provided that the Chief Election Commissioner shall be appointed by the President but later on an amendment was introduced in 1975 and the appointment of the Chief Election Commissioner was to be made by the President on the advice of the Council. Section 50 of Act, 1974 provides that the terms and conditions of the Chief Election Commissioner may be prescribed. Section 2 of Act, 1974 defines the word "prescribed" as "prescribed by law or rules made thereunder". From 1974, onwards, no law prescribing the terms and conditions of the Chief Election Commissioner was made. For the first time the President of Azad Jammu and Kashmir promulgated an ordinance for determining the terms and conditions of the Chief Election Commissioner and Chief Election Commissioner (Terms and Conditions) Act, 1992 was passed by the Azad Jammu and Kashmir Legislative Assembly. For proper appreciation we deem it necessary to reproduce the same, which is as under:-

"Azad Government of the State of Jammu and Kashmir, Law and Parliamentary Affairs Department, 'Muzaffarabad'

Dated the 29th June, 1992

No.638-42/LD/Leg/92. The following Act of the Assembly received the assent of the President on 24th June, 1992 is hereby published for general information:

(Act II of 1992)

AN

ACT

To provide for law relating to the terms and conditions of the Chief Election Commissioner

WHEREAS it is expedient to provide for law relating to the terms and conditions of the Chief Election Commissioner, in the manner hereinafter appearing;

It is hereby enacted as follows:-

1. .

2. .

3. Chief Election Commissioner.-(1) There shall be a Chief Election Commissioner.

(2) The person appointed as Chief Election Commissioner and functioning as such immediately before the commencement of this Act shall be deemed to have been appointed on the same terms and conditions as are hereinafter specified in this Act from such commencement.

(3) No person shall be appointed to be Chief Election Commissioner unless he is, or has been, a judge of the Supreme Court or is, or has been a judge of the High Court.

Explanation:- In this subsection Judge means a Judge of the Supreme Court or the High Court;

Provided that a person who is a Judge of the High Court or Supreme Court is appointed as Chief Election Commissioner, he in addition to his functioning as Chief Election Commissioner may if so required by the President, perform the functions of the judge of that Court.

1. Salary, Allowances and Privileges of Chief Election Commissioner.- If a person who is a Judge of the High Court or the Supreme Court is appointed as a Chief Election Commissioner, his terms and conditions as to the salary, allowances, privileges and rights in respect of leave of absence shall be the same as are applicable to a Judge of High Court or the Supreme Court, as the case may be;

Provided that if a retired Judge or a retiring Judge is appointed as Chief Election Commissioner, he shall be entitled, in addition to his pension, to the same salary, privileges, allowances and rights in respect of leave of absence as are admissible to him before retirement.

1. Term of Office of Chief Election Commissioner.-(1) The Chief Election Commissioner, shall, subject to this Section, hold his office for a term of five years from the day he enters upon his office;

Provided further that a person appointed as Chief Election Commissioner and functioning as such immediately before the commencement of this Act shall be deemed to have entered upon his office from the commencement of this Act.

(2) The Chief Election Commissioner shall not be removed from office except in the manner prescribed by law for the removal from office of a judge of the Supreme Court or the High Court, as the case may be, and in the application of law for the purposes of this Section any reference in that law, to a judge shall be construed as a reference to the Chief Election Commissioner.

(3) The terms and conditions of the service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.

(4) The Chief Election Commissioner may, by writing under his hand-addressed to the President, resign his office."

Later on two amendments were introduced in Act, 1992.

The amendments are reproduced as under:-

Amendment made on 15th July, 1992.

"1.

1. Amendment of Section 3, Act II of 1992:- In the Chief Election Commissioner (Terms and Conditions) Act, 1992 (Act II of 1992) in Section 3, in proviso to subsection (3), for the words and comma "may if so required by the President," the words "shall also", shall be substituted."

Amendment made on 28th April, 1995

"1.

1. Amendment of Section 4, Act II of 1992.- In the Chief Election Commissioner (Terms and Conditions) Act, 1992 (Act II of 1992) in Section 4, for the proviso the following shall be substituted, namely:-

"Provided that if a retired judge or a retiring judge is appointed as Chief Election Commissioner, he shall be entitled, in addition to his pension, to the same salary, privileges, allowances and rights in respect of leave of absence as are admissible from time to time to a judge of the High Court or Supreme Court, as the case may be."

1. "

2. In pursuance of Act, 1992, in the year 1992, Mr. Justice (R) Sardar Muhammad Ashraf Khan, a judge of the Supreme Court, was appointed as Chief Election Commissioner on 8th September 1993 w.e.f. 29th June 1992, who was already acting as Chief Election Commissioner and he remained as Chief Election Commissioner up to 17th April 1999. Mr. Justice (R) Muhammad Siddique Farooqi, a serving judge of the High Court, was appointed as Chief Election Commissioner on 13th March 1999 on the advice of the Council.

3. The Azad Jammu and Kashmir Council enacted the Chief Election Commissioner (Terms and Conditions) Act, 2000 (Act IV of 2000) for providing the terms and conditions of the Chief Election Commissioner. In the light of 2nd proviso to subsection (1) of Section 5 of Act, 2000, it was provided that the person functioning as Chief Election Commissioner before commencement of Act shall cease to hold the office on such commencement.

4. The whole controversy revolves around Sections 31 and 50 of Act, 1974 and provisions contained in Act, 2000, therefore, we deem it necessary to reproduce the relevant provisions of Act, 1974, which are as under:-

"31. Legislative Power.-(1) Subject to the succeeding provisions of this section, both the Council and the Assembly shall have the power to make laws-

(a) For the territories of Azad Jammu and Kashmir.

(b) For all State Subjects wherever they may be; and

(c) For the officers of the Council or as the case may be the Government, wherever they may be.

1. Subject to subsection (3).

(a) the Council shall have exclusive power to make laws with respect to any matter in the Council Legislative list set out in the Third Schedule, hereinafter referred to as the Council Legislative List; and

(b) the Assembly shall, and the Council shall not, have power to make laws with respect to any matter not enumerated in the Council Legislative List.

(3) Neither the Council nor the Assembly shall have the power to make any law concerning-

(a) the responsibilities of the Government of Pakistan under the UNCIP Resolutions;

(b) the defence and security of Azad Jammu and Kashmir;

(c) the current coin or the issue of the bills, notes or other paper currency; or

(d) the external affairs of Azad Jammu and Kashmir including foreign trade and foreign aid.

(4) No tax shall be levied for the purposes of the territories of Azad Jammu and Kashmir except by or under the authority of an Act of the Council or the Assembly.

(5) No law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah and all existing laws shall be brought in conformity with the Holy Quran and Sunnah."

"50. Chief Election Commissioner.- (1) There shall be a Chief Election Commissioner appointed by the President on the advice of the Council on such terms and conditions as may be prescribed.

(2) The person appointed as Chief Election Commissioner under the Azad Jammu and Kashmir Government Act, 1970 or deemed to have been so appointed and functioning as such immediately before the commencement of this Act shall be deemed to have been appointed as Chief Election Commissioner under sub-section (1) on the same terms and conditions of service as are applicable to him immediately before such commencement."

1. The Azad Jammu and Kashmir is being run under the Azad Jammu and Kashmir Interim Constitution Act, 1974 and Government of Pakistan is performing the responsibilities in the light of UNCIP Resolutions. The legislative powers under sections 31 of Act, 1974, are divided into three parts. One part is to be performed by the Government of Pakistan under subsection (3) of section 31 of Act, 1974. Neither the Council, nor the Assembly has power to make any law concerning the matters enumerated in subsection (3) of section 31.

Apart from the matters enumerated in subsection (3) of Act, 1974, both; the Council and the Assembly, have powers to make laws for the territories of the Azad Jammu and Kashmir, the State Subjects wherever they may be; and for the officers of Council or as the case may be, the Government, wherever they may be. Subsection (2) of section 31 of Act, 1974 provides that the Council shall have exclusive powers to make laws with respect to any other matters incorporated in the Council Legislative List, set out in the third Schedule and in respect of the residuary matters, it is laid down in clause "b" of subsection (2) of Section 31 that the Assembly shall and the Council shall not have the power to make laws with respect to any matter not enumerated in the Council Legislative List. What transpires from the plain reading of section 31 of Act, 1974 that both; the Council and Assembly have the power to make laws for the territories of the Azad Jammu and Kashmir, the State Subjects and the officers of the Council or the Government, wherever they may be. The legislative powers of Assembly and Council are subject to subsection (3) of section 31 of Act, 1974, in respect of the matters concerning the Government of Pakistan, i.e. (a) the responsibilities of the Government of Pakistan under the UNCIP Resolutions; (b) the defense and security of Azad Jammu and Kashmir; (c) the current coin or the issue of the bills, notes or other paper currency; or (d) the external affairs of Azad Jammu and Kashmir including foreign trade and foreign aid. Subsection (4) of section 31 of Act, 1974, confers powers both in the Council and the Assembly for levying the tax for the territories of the Azad Jammu and Kashmir. Similar provisions are found in the Constitution of Islamic Republic of Pakistan, 1973. Initially, there were two Legislative List set out under Article 142; the Federal Legislative List, the Concurrent Legislative List and the residuary matters were in the competence of the Provincial Assemblies. Through 18th amendment, the Concurrent Legislative List has been abolished and there is only Federal Legislative List, the remaining matters fall within the legislative competence of the Provincial Assemblies.

1. Before resolving the matter in the light of section 31 of Act, 1974, we deem it expedient to consider the provisions contained in section 19 of Act, 1974, which relates to the extent of the executive authority of the Government and section 21 which relates to the executive authority of the Azad Jammu and Kashmir Council. Section 19 is reproduced as under:-

"19. Extent of executive authority of Government.--(1) Subject to this Act, the executive authority of the Government shall extend to the matters with respect to which the Assembly has power to make laws.

(2) The executive authority of the Government shall be so exercised as :-

(a) not to impede or prejudice the responsibilities of the Government of Pakistan in relation to the matters specified in subsection (3) of section 31; and

(b) to secure compliance with the laws made by the Council.

(3) Notwithstanding anything contained in this Act, the Government may with the consent of the Council, entrust, either conditionally or unconditionally, to the Council, or to its officers functions in relation to any matter which the executive authority of the Government extends."

A plain reading of section 19 of Act, 1974, shows that the executive authority of the Government shall extend and the Government shall exercise its executive authority to the matters with respect to which the Assembly has power to make laws. While exercising the executive authority, the Government shall not impede or prejudice the responsibilities of Government of Pakistan in relation to the matters specified in subsection (3) of section 31 of Act, 1974 and shall also make compliance with the laws made by the Council. It is further laid down that the Azad Government of the State of Jammu and Kashmir may, with the consent of the Council, entrust, to the Council or its officers, the functions in relation to any matter to which the executive authority of the Government extends.

1. The Azad Jammu and Kashmir Council is constituted under section 21 of Act, 1974. The same is reproduced as under:-

2. Azad Jammu and Kashmir Council.--(1) There shall be an Azad Jammu and Kashmir Council consisting of .-

(a) the Prime Minister of Pakistan;

(b) the President;

(c) five members to be nominated by the Prime Minister of Pakistan from time to time amongst Federal Minster and members of parliament;

(d) the Prime Minister of Azad Jammu and Kashmir or a person nominated by him; and

(e) six members to be elected by the Assembly from amongst State Subjects in accordance with the system of proportional representation by means of the single transferable Vote.

(2) The Prime Minister of Pakistan shall be the Chairman of the Council.

(3) The President shall be the Vice Chairman of the Council.

(3-A) The Federal Minister of State for Kashmir Affairs and Northern Affairs shall be an ex-officio member of the Council.

4

5.

6.

1. The executive authority of the Council shall extend to all matters with respect to which the Council has power to make laws and shall be exercised, in the name of the Council, by the Chairman who may act either directly or through the Secretariat of the Council of which a Federal Minister nominated by the Chairman from amongst the members of the Council and not more than three advisors appointed by the Chairman shall be in-charge:

Provided that the Council may direct that, in respect of such matter as it may specify, its authority shall be exercisable by the Vice Chairman of the Council, subject to such condition, if any, as the Council may specify."

1. ..

2. ..

10 .……………………………….

11.

1. .

2. .…..

3. .."

Subsection (7) of Section 21 of Act, 1974 makes it clear that the executive authority of the Council shall extend to all the matters with respect to which the Council has power to make laws. It is worth mentioning that the Azad Jammu and Kashmir Council is not only a legislative body but it also exercises the executive authority in the matters which fall in its legislative competence. Subsection (2) of section 31 of Act, 1974, refers the Council Legislative List, set out in the third Schedule. There are 52 items entered in the Council Legislative List in respect of which, the Council has the exclusive power to make laws. Whether, all the matters which are not enumerated in the Council Legislative List, fall in the legislative competence of the Legislative Assembly, the subject matter, topics or nature of activities on which the legislative structure for making laws, have to be looked into. Although, this question has been for the first time raised before this Court but the matter of legislative competence came under consideration of the Supreme Court of Pakistan in a number of cases. Articles 141, 142 and 143 of the Constitution of Islamic Republic of Pakistan 1973, (hereinafter to be referred as the Constitution of Pakistan, 1973), deal with the Federal and Provincial legislation. In the Constitution of Pakistan, 1973, initially there were two lists, Federal Legislative List and the Concurrent Legislative List. There are two parts of Federal Legislative List. Under Article 142 of the Constitution of Pakistan, 1973, the Majlis-e-Shoora has exclusive jurisdiction to legislate in the matters enumerated in the Forth Schedule, while both; the Majlis-e-Shoora and Provincial Assemblies had jurisdiction in the matters enumerated in the Concurrent Legislative List and the residuary matters were left with the Provincial Assemblies. Article 143, provides the situation where there is dispute in respect with the inconsistency between the Federal and Provincial Legislative Lists. No such provision is contained in the Act, 1974.

1. The scope of distribution of legislative powers under Articles 141, 142 and 143 of the Constitution of Pakistan, 1973, came under consideration of the Supreme Court of Pakistan in the case reported as Shamas Textile Mills Ltd. and others vs. The Province of Punjab and 2 others [1999 SCMR 1477], wherein it was observed as under:-

"It may be reiterated that under Article 141 (ibid) Majlis-e-Shoora (Parliament) may make laws for the whole or any part of Pakistan and a Provincial Assembly may make laws for the province or any part thereof. Under Article 142 (Ibid) Majlis-e-Shoora (Parliament) has exclusive powers to make laws with respect to any matter in the Federal Legislative List and Majlis-e-Shoora (Parliament) and a Provincial Assembly also have powers to make laws with respect to any matter in the Concurrent List. Under Clause (c) of Article 142 (ibid) a Provincial Assembly shall and Majlis-e-Shoora (Parliament) shall not have power to make laws with respect to any matter"… not enumerated in either the Federal Legislative List or the Concurrent Legislative List……"

22(sic). From the scheme of the Constitution, i.e. Act, 1974, it appears that the Azad Jammu and Kashmir Legislative Assembly has legislative authority over the subject matters, topics and activities not enumerated in the Council Legislative List. Is the Council Legislative List conclusive and it covers all the matters which fall in the legislative competence of the Council?, had the case been so then there was no need to incorporate entry No.51 which provides that "the matters which under the Act are within the legislative competence of the Council or related to the Council". It appears that the Council Legislative List is not conclusive and entry No.51 is entered for covering the matters which are in the legislative competence of the Council but are not enumerated in the Council Legislative List. One of such like example is section 50-A of Act, 1974, relating to the Auditor General. Section 50-A of Act, 1974 is reproduced as under:-

"50-A. Auditor General.--(1) There shall be an Auditor-General of Azad Jammu and Kashmir who shall be appointed by the President on the advice of the Council.

(2) Before entering upon office, the Auditor-General shall make before the Chief Justice of Azad Jammu and Kashmir oath in the form set out in the First Schedule.

(3) The terms and conditions of service, including the terms of office, of the Auditor-General shall be determined by Act of the Council and, until so determined by rules made by the Council.

(4) …………………………………..

(5) ………………………………….

(6) ………………………………….."

Subsection (3) of section 50-A of Act, 1974 in clear terms provides that the terms and conditions of service including the terms of office of Auditor General shall be determined by the Act of the Council. The section confers powers for legislation relating to the terms and conditions of Auditor General in the Council but it is not entered in the Council Legislative List. Mere absence of a specific matter in the Council Legislative List does not debar the Council from legislation in the matter, if otherwise the matter falls within the legislative competence of the Council according to the scheme and spirit of Act, 1974. For determining the legislative competence in respect of the matters not enumerated in the Council Legislative List, we have to consider the pith and substance of the matter. For determining the pith and substance of law relating to the Chief Election Commissioner, we have to resort back to the history of Election Commissioner. As has been observed hereinabove that the office of Election Commissioner was for the first time provided under the Azad Jammu and Kashmir Government Act, 1970 and section 4 of the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, provided for appointment of the Election Commissioner. On the enforcement of Act, 1974 under section 50, it was provided that the Chief Election Commissioner shall be appointed by the President on the advice of the Council. It was also provided that the terms and conditions of appointment of Chief Election Commissioner may be prescribed. Under section 50 of Act, 1974, like section 50-A, it is not provided that as to who has the legislative competence, nor the appointment of Chief Election Commissioner appears in the Council Legislative List. From 1974 till 1992, no law was made in respect of the terms and conditions of Chief Election Commissioner and without prescribing any mode, the Chief Election Commissioners were appointed. For the first time, law relating to the Chief Election Commissioner, the Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) Act, 1992 was passed by the Azad Jammu and Kashmir Legislative Assembly which still exists on the Statute Book. In the light of the said Act, Justice (R) Sardar Muhammad Ashraf Khan was appointed as Chief Election Commissioner and thereafter Justice (R) Muhammad Siddique Farooqi was appointed as Chief Election Commissioner. Thereafter, Act, 2000 was passed by the Azad Jammu & Kashmir Council for providing the appointment (terms and conditions) of Chief Election Commissioner.

1. It was vehemently contended by Raja Muhammad Hanif Khan, Advocate that entry No. 51 when read with entry No. 52 makes it clear that the Council has power to legislate for terms and conditions of the Chief Election Commissioner and since the Chief Election Commissioner is appointed on the advice of the Council and the issuance of advice is an executive function, therefore, the legislation in respect of the terms and conditions of Chief Election Commissioner is a matter which relates to the Council. His argument is that the entries in the Schedule when read with other provisions of Constitution, i.e. sections 19 and 31 of Act, 1974, make it clear that it is only the Council which has power to make law for terms and conditions of Chief Election Commissioner. The argument appears to be misconceived. We respectfully agree with the rule of law laid down in the cases titled Syed Mumtaz Hussain Naqvi and 9 others v. Raja Muhammad Farooq Haider Khan and 4 others [2014 SCR 43] and Dossani Travels Pvt. Ltd. v. Messrs Travels Shop (Pvt.) Ltd. and others [PLD 2014 SC 1], that the Constitution shall be read as an organic whole and while interpreting the Constitution, the whole scheme of the Constitution has to be considered. In the Act, 1974 not only the Chief Election Commissioner but the appointments in the other offices are made on the advice of the Council which include the appointment of Chief Justice and Judges of the Azad Jammu and Kashmir Supreme Court, the Chief Justice and Judges of the Azad Jammu and Kashmir High Court and the Auditor General. Under section 42-D of Act, 1974, the Assembly and the Council; both are empowered to legislate in respect of the powers of the review of the Supreme Court but the matter is not enumerated in the Council Legislative List. The Council has no executive authority over these offices. The pith and substance is material for determining the legislative ambit. The functions of Chief Election Commissioner are to prepare the electoral rolls under the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, conducting elections to the Azad Jammu and Kashmir Legislative Assembly under Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. The elections to the Azad Jammu and Kashmir Council find mention in entry No. 25 in the Council Legislative List appearing in the third schedule. The Azad Jammu and Kashmir Government is exercising authority in respect of the matters relating to the Chief Election Commissioner, budget, budgetary provisions of Chief Election Commissioner, are provided by the Azad Jammu and Kashmir Government. The staff is managed by the Azad Jammu and Kashmir Government and all the expenses for preparation of voter lists and the general elections are borne by the Azad Jammu and Kashmir Government. Thus, it is clear that the major functions of the Chief Election Commissioner, except elections to the Council, relate to the matters falling in the legislative competence of Azad Jammu and Kashmir Legislative Assembly.

2. The Act, 1974 has unique character unlike the Constitution of Pakistan, 1973. The Judges and Chief Justice of the Supreme Court and High Court are appointed by the President on the advice of the Council. In the Constitution of Pakistan, 1973, there is a specific prohibition that only Majlis-e-Shoora shall make laws for conferring jurisdiction upon the Supreme Court but jurisdiction is conferred upon the Supreme Court of Azad Jammu and Kashmir by the Legislative Assembly. For example, under the provisions of Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act, 1974, the Azad Jammu and Kashmir Family Courts Act, 1993, and the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970, a right has been provided to file appeal to the Supreme Court. Mere power to issue advice cannot confer Legislative Authority in the Council. Here it may be observed that the advice cannot be issued on its own or in vacuum. The advice can be issued whenever the appointing authority seeks the advice. This Court in the case reported as Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate Muzaffarabad and others [PLD 2012 SC (AJ&K) 42] has observed as under:

"33. The phraseology employed in section 43(2-A) of the Act, 1974 when analyzed in the light of referred authorities, denotes that before issuing the appointment order, the President has to consult the two Chief Justices and seek advice from the Council…."

In the referred case it was further observed as under:-

"35. The process of appointment of a Judge in the High Court has to be initiated by the Chief Justice of the High Court when the President seeks panels for the purpose of consultation. The Chief Justice shall immediately send the panel of eligible persons to the President who shall send the same to the Chief Justice of Azad Jammu and Kashmir and after seeking the panel from him, seek the advice from the Council for issuing the appointment orders."

1. The argument of Raja Muhammad Hanif Khan, Advocate, counsel for the Council, that Act, 2000 is occupying the field for the last more than 15 years and the appointments of Chief Election Commissioner are being made in the light of said Act and the Azad Government has surrendered its authority before the Council in the matter, therefore, it is estopped to turnaround and claim that the Council has no legislative competence in the matter. The Azad Jammu and Kashmir Legislative Assembly passed the Act, 1992 in relation to the terms and conditions of Chief Election Commissioner. The said Act still holds the field. The appointments were made in the light of said Act. In presence of such Act, the Azad Jammu and Kashmir Council passed the Act, 2000 on the same subject. In the Constitution of Pakistan, 1973, under Article 143, if there are two Acts on the same subject, one passed by the Majlis-e-Shoora and the other by the Provincial Assembly, the Act of Majlis-e-Shoora shall prevail and the Act passed by the Provincial Assembly shall give way but neither is such like provision in Act, 1974, nor the Council has such superior controlling authority like the Majlis-e-Shoora. It does not need any authority that there is no estoppel against law. We have also considered the case titled Justice Rtd. Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Council and others (Writ Petition No.24/2001, decided on 28.02.2001). In the said case, the petitioner challenged the vires of Act, 2000 but later on, he requested for withdrawal of the writ petition. The High Court instead of allowing him to withdraw the writ petition decided the same only after hearing the counsel for Council. It is worth mentioning that the Azad Jammu and Kashmir Legislative Assembly was not a party in the said writ petition. No written statement was filed on behalf of the Azad Jammu and Kashmir Government. The High Court observed that ex-parte proceedings have been ordered against the Government. Later on, the High Court ordered the Secretary Law, Justice, Parliamentary Affairs and Human Rights Department of the Azad Government of the State of Jammu and Kashmir to file written statement. The written statement was filed by the same Advocate who filed the written statement on behalf of the Council. The High Court while relying upon entries Nos. 51 and 52 of the Council Legislative List set out in the third Schedule of Act, 1974, observed that the advice appearing in section 50 of Act, 1974, when read with entries Nos. 51 and 52, makes it clear that the Council is competent to legislate in the matter and observed that the Government has filed the written statement and admitted that the Council is competent to legislate law in the matters. The High Court also observed that the advice of Chairman, Azad Jammu and Kashmir Council is binding under section 7 of Act, 1974.

Section 7 of Act, 1974, relates to the advice of the Prime Minister of Azad Jammu and Kashmir and not the Chairman Azad Jammu and Kashmir Council. We are unable to endorse the view expressed by the High Court in Muhammad Siddique Farooqi's case.

The contention of Mr. Abdul Rashid Abbasi, Advocate that word "or" appearing in entry No. 51 of third Schedule may be read as "and" but we do not need it necessary to resolve the same, however, from the combined reading of sections 19, 21, 31, 50, 50-A and 42-D of Act, 1974 and while considering the pith and substance of the matter, we have drawn the conclusion that the matter does not fall in the legislative competence of the Azad Jammu and Kashmir Council. It is a residuary matter and the Azad Jammu and Kashmir Legislative Assembly is competent to legislate for the appointment (Terms and Conditions) of Chief Election Commissioner, as is the requirement of section 50 of Act, 1974.

Point No.ii:

"Under Section 43(7) of the Interim Constitution Act, 1974, Judge High Court is not entitled to hold any other office of profit in the service of Azad Jammu and Kashmir if his remuneration is thereby increased or he cannot occupy any other position carrying the right to remuneration for rendering any service. In this context whether a serving Judge of the High Court can be appointed as Chief Election Commissioner?"

1. Mr. Abdul Rashid Abbasi and Raja Muhammad Hanif Khan, Advocates, appearing on behalf of the referring authority and the Council, submitted that a serving Judge of the High Court may validly be appointed as Chief Election Commissioner. For proper appreciation, we deem it proper to reproduce subsections (7) and (8) of section 43 of Act, 1974, which read as follows:

"43. (1)

(2)

(3)

(4)

(5)

(6)

(7) A judge of the High Court shall not:

(a) hold any other office of profit in the service of Azad Jammu and Kashmir if his remuneration is thereby increased; or

(b) occupy any other position carrying the right to remuneration for the rendering of services, but this subsection shall not be construed as preventing a Judge from holding or managing private property.

(8) A person who has held office as a Judge of the High Court shall not hold any office of profit in the service of Azad Jammu and Kashmir not being a judicial or quasi-judicial office or office of the Chief Election Commissioner or of Chairman or Member of the Public Service Commission, before the expiration of two years after he ceased to hold that office.

(9) ………………………………….…………"

A perusal of clause (a) of subsection (7) specifically debars a Judge of High Court from holding the office of profit in the service of Azad Jammu and Kashmir, if his remuneration is thereby increased. A Judge of the High Court may be appointed as Chief Election Commissioner in the light of the provisions contained in Act, 1992 and Act, 2000, both passed by the Azad Jammu and Kashmir Legislative Assembly and Azad Jammu and Kashmir Council, respectively. It is provided that if a serving Judge is appointed as Chief Election Commissioner, he will not receive his remuneration in addition to the salary, he is already receiving. The phraseology imposed an embargo on appointment of Judge of High Court for holding the office of profit in the service of Azad Jammu and Kashmir with the condition "if his remuneration is thereby increased." The embargo is qualified with the word "if". What appears after the word, "if", that his remuneration is thereby increased. According to the Black's Law Dictionary (Eighth Edition), the meanings of the remuneration are:-

"(1). Payment, compensation, (2). The act of paying or compensating."

In the Law Terms and Phrases, dictionary the meanings of remuneration are as follows:-

"If a man gives his services, whatever consideration he gets for giving his services seems to me a remuneration for them. Consequently, I think if a person was in receipt of a payment, or in receipt of a percentage, or any kind of payment which would not be actual money payment, the amount he would receive annually in respect of this would be remuneration."

1. Under the constitutional provisions it is provided that a Judge of the High Court in addition to his salary, if receives the salary as Chief Election Commissioner, then his appointment cannot be made, but if the law provides that the Chief Election Commissioner shall receive only one salary then a serving Judge of the High Court may be appointed as Chief Election Commissioner. Clause (b) of subsection (7) of section 43 of Act, 1974, does not relate to the office of profit in the service of Azad Jammu and Kashmir. It relates to any other position like a sitting Judge of the High Court cannot hold the office of Director of a Company which carries the right of remuneration. Clause (b) of subsection (7) of section 43 of Act, 1974, does not relate to the office of Chief Election Commissioner because it does not relate to the service of Azad Jammu and Kashmir. A sitting Judge of the High Court can validly be appointed as Chief Election Commissioner. Similar is the position in the provisions relating to Chief Election Commissioner in the Constitution of Islamic Republic of Pakistan where a Judge of the High Court or Supreme Court or a person qualified to be appointed as Judge of the Supreme Court or the High Court may be appointed as Chief Election Commissioner.

Point No.iii:

"If a serving Judge of High Court is appointed as Chief Election Commissioner in addition to his duties as Judge High Court and he has ceased to function in term of Section 5 of Act, 2000. Whether any term is left after ceasing to function as Chief Election Commissioner on retirement as Judge High Court and if any term is available, whether that can be given in parts?

1. Raja Muhammad Hanif Khan and Mr. Abdul Rashid Abbasi, Advocates, counsel for the referring authority and the Azad Jammu and Kashmir Council, submitted that there is no concept of appointment of the Chief Election Commissioner for the remaining period and Chief Election Commissioner cannot be appointed for the remaining period. Raja Muhammad Hanif Khan, Advocate, submitted that there is no concept of appointment for the remaining period. The proviso to section 5 of the Act, 2000 is ultra vires the Constitution. Section 5 of the Act, 2000 is reproduce as under:-

"5. Term of office of Chief Election Commissioner- (1) The Chief Election Commissioner shall hold office for a term for three years from the day he enters upon his office and the term of Chief Election Commissioner shall be extendable for a further period of one year on the advice of the Council:

Provided that when a judge of the High Court or a Judge of the Supreme Court is appointed as the Chief Election Commissioner, in addition to his functions as a Judge, he shall on his retirement as the Judge of the High Court or the Supreme Court as the case may be, shall also cease to function as Chief Election Commissioner:

Provided further that the person holding the office as Chief Election Commissioner and functioning as such immediately before the commencement of this Act shall cease to hold office on such commencement.

(2) ……………………………..

(3) …………………………….

(4) …………………………….."

From plain reading of section 5 of Act, 2000, it is clear that the Chief Election Commissioner shall hold the office for a term of three years and proviso to subsection (1) of Section 5 says that if a Judge of the High Court or Supreme Court is appointed as Chief Election Commissioner in addition to his functions as a Judge, he shall on his retirement cease to function as Chief Election Commissioner. When a serving Judge is appointed once in addition to his duties as a Judge and he reaches the age of superannuation before expiry of period of three years, at his retirement he is not entitled to continue as Chief Election Commissioner for three years. Under the proviso to subsection (2) of section 7 of Act, 2000, if a serving Judge is appointed as Chief Election Commissioner and the term of office of Chief Election Commissioner is expired, he will continue to function as Judge of the said Court. The proviso has overriding effect on the main provision. The effect of proviso was considered by this Court in the case reported as M/s Ashraf and Akbar and another v. Kh. Abdul Khaliq and others [1995 SCR 196], whereby it was observed as under:-

"..... A proviso by its very nature has overriding effect if its contents are inconsistent with the main provision to which a proviso is attached. Legislature does not employ words like "notwithstanding contained to the contrary" to demonstrate its overriding nature unless it is designed to override provisions which do not immediately precede a proviso and are contained elsewhere. ……. "

The effect of proviso is that if a serving Judge of the High Court or Supreme Court is appointed as Chief Election Commissioner for a period of three years and if his service remains more than three years, then he will remain Chief Election Commissioner for three years and if his service remains less than three years and retires from the office of Judge of the High Court or the Supreme Court, he will cease to function as Chief Election Commissioner. Both; the provisos i.e. attached with section 5 and section 7 of Act, 2000 make it abundantly clear that there is no concept of reappointment of the Chief Election Commissioner for the remaining period.

Point No.iv:

"Whether in term of Section 7(2) of the Act, 2000, a retired Judge, who has held office of Chief Election Commissioner in addition to his office as Judge High Court, is eligible for re-appointment as Chief Election Commissioner before expiry of two years from date of his ceasing to function as Chief Election Commissioner?

1. Mr. Abdul Rashid Abbasi and Raja Muhammad Hanif Khan, Advocates, submitted that a person who has held the office of Chief Election Commissioner shall not hold any post or office of profit in the service of Azad Jammu and Kashmir before expiration of two years if he has ceased to hold that office. Raja Muhammad Hanif Khan, Advocate, contended that the provisos attached to sections 5 and 7 of Act, 2000 are ultra vires the Constitution. Mr. Abdul Rashid Abbasi, strengthen his argument while referring to subsection (8) of section 43 of Act, 1974 and submitted that an exception has been created for the Judge of High Court. A prohibition is imposed on the judge of the High Court that he shall not hold any office of profit in the service of Azad Jammu and Kashmir till the expiry of a period of two years but an exception has been created for the judge that he may be appointed as Chief Election Commissioner or Chairman or Member of Public Service Commission, when he ceases to be a Judge of High Court. No such exception for the Chief Election Commissioner has been provided in Act, 2000 or in the Constitution. Clause (a) of section 7 of Act, 2000, specifically imposes a condition on the Chief Election Commissioner that he will not hold the office of profit in the service of Azad Jammu and Kashmir. Subsection (2) of section 7 of Act, 2000 debars a person who has held the office of Chief Election Commissioner that he shall not hold any office of profit in service of Azad Jammu and Kashmir before the expiration of two years from the date he ceases to hold the office of Chief Election Commissioner. The office of Chief Election Commissioner is an office of profit in the service of Azad Jammu and Kashmir. The language of subsection (2) is clear. The plain meaning has to be assigned while interpreting the statutory provisions. A person who has held the office of Chief Election Commissioner cannot be reappointed as Chief Election Commissioner before the expiry of 2 years from the date, he ceases to hold the office of Chief Election Commissioner.

On having dilated upon the questions referred to by the President of Azad Jammu and Kashmir and detailed reasons recorded hereinabove, our opinion is as follows:-

Question No.i: The matter of terms and conditions of the Chief Election Commissioner is within the legislative competence of the Azad Jammu and Kashmir Legislative Assembly.

Question No.ii: A serving judge of the High Court can be appointed as Chief Election Commissioner.

P L D 2016 Supreme Court (AJ&K) 77

Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Masood A. Sheikh, JJ

Civil Appeal No.7 of 2016

AZAD JAMMU AND KASHMIR COUNCIL through Secretary---Appellant

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and others---Respondents

(On appeal from the judgment of the High Court dated 12-1-2016 in Writ Petition No.2740 of 2015)

Civil Appeal No. 8 of 2016

Chaudhary TARIQ FAROOQ, Member/Deputy Opposition Leader Legislative Assembly of AJ&K and 2 others---Appellants

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and others---Respondents

(On appeal from the judgment of the High Court dated 12-1-2016 in Writ Petition No.2740 of 2015)

Civil Appeal No. 11 of 2016

AZAD GOVERNMENT OF THE STATE OF J&K through Prime Minister and 3 others---Appelolants

Versus

Ch. TARIQ FAROOQ, Member/Deputy Opposition Leader Legislative Assembly of AJ&K and others---Respondents

(On appeal from the judgment of the High Court dated 12-1-2016 in Writ Petition No.2740 of 2015)

Civil Appeals Nos. 7, 8 and 11 of 2016, decided on 9th February, 2016.

(a) Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) Act (II of 1992) [As amended under Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) (Amendment) Ordinance (XIX of 2015)]----

----Ss. 6-A, 3 & 5----Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 3-A, 7, 21 (7), 42, 43, 50 & 50-A---Azad Jammu and Kashmir Rules of Business (1985)---Azad Jammu and Kashmir Council Rules of Business (1983)---Acting Chief Election Commissioner, appointment of---Constitutionality/Permissibility---Advice of Chairman of Azad Jammu and Kashmir Council, binding effect of---Chairman Azad Jammu and Kashmir Council issued advice for appointment of the Chief Justice of the High Court as Chief Election Commissioner, on which the President asked the Council to reconsider said advice, as the name of the Chief Justice was not in the panel sent by the President for advice for appointment of Chief Election Commissioner; however, the President, later on, ordered for appointment of the Chief Justice of the High Court as Acting Chief Election Commissioner under S. 6-A of Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) Act, 1992 [As amended by Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) (Amendment) Ordinance (XIX of 2015)]---High Court, declared S. 6-A of the Act ultra vires the Constitution Act and setting aside the Notification of appointment of the Acting Chief Election Commissioner, directed the Government to send the panel of qualified persons to the Council for appointment of Chief Election Commissioner after consultation with the Leader of the House and the Leader of the Opposition and to suitably amend the Constitution Act---Questions before the Supreme Court were whether the advice issued by the Chairman of Azad Jammu and Kashmir Council was valid or not, whether appointment of the Acting Chief Election Commissioner under S. 6-A of the Act without the advice of Chairman of the Council was constitutionally permissible/valid, and whether S. 6-A of the Act, had created new office of Acting Chief Election Commissioner---Supreme Court, modifying impugned judgment of the High Court, declared provisions of S. 6-A of the Act, and the appointment of Acting Chief Election Commissioner made thereunder, as ultra vires the provisions of S. 50 of the Constitution Act: and observed that no new office had been created under S.6-A of the Act; rather a stop-gap-arrangement had been provided when the office of Chief Election Commissioner was vacant---Legislative Assembly, however, had no power to make any law which was against the clear provisions of the Constitution Act---Chief Election Commissioner had to be appointed on the advice of the Council, and when the office of Chief Election Commissioner was vacant, the Acting Chief Election Commissioner could only be appointed on advice of the Council---Stop-gap-arrangement could only be made in the light of S.50 of the Constitution Act---Mode of appointment of Acting Chief Election Commissioner was, therefore, repugnant to, and ultra vires, the provisions of S.50 of the Constitution Act---Section 6-A of the Act to the extent of appointment of Acting Chief Election Commissioner was, although valid law, but portion thereof, which provided that appointment of acting Chief Election Commissioner after consultation with Chief Justice of Azad Jammu and Kashmir (without advice of the Council), was not a valid law---Impugned judgment of the High Court to that extent was amended by the Supreme Court---Advice for appointment of Chief Election Commissioner under Ss.50 & 21(7) of the Constitution Act read with Ss.3 & 5 of Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) Act, 1992 (As amended by Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) (Amendment) Ordinance (XIX of 2015)], had validly been issued, which was still in existence; therefore, the Acting Chief Election Commissioner could not have been appointed---Section 6-A of the Act, having been declared ultra vires the Constitution Act, the appointment order for Acting Election Commissioner was also not valid---Principles.

Per Mohammad Azam Khan, C J; Ch. Muhammad Ibrahim Zia and Saeed Akram Khan, JJ agreeing on different reasons.

Section 50 of Azad Jammu and Kashmir Interim Constitution Act, 1974 provided that President would appoint Chief Election Commissioner on the advice of Azad Jammu and Kashmir Council; whereas, under section 6-A of the Act, the Acting Chief Election Commissioner had to be appointed by the President with consultation of Chief Justice of Azad Jammu and Kashmir and the advice of the Council had not been provided.

Scheme of the Azad Jammu and Kashmir Interim Constitution Act, 1974 provided mode of exercise of powers by the President on various types of advices. Word 'advice' had been used in sections 42, 43, 50 and 50-A of Azad Jammu and Kashmir Interim Constitution Act, 1974, and a combined reading of the same showed that under section 7 of the Constitution Act, the President had to act on, and in accordance with, the advice of the Prime Minister, and such advice would be binding on him subject to the contrary provided in the Constitution Act. Provisions of the Constitution Act, being applicable to all sub-constitutional laws, the President had to act on advice even in those matters which were not mentioned in the Constitution Act; however, an express provision to the contrary made in the Constitution Act itself formed an exception to said rule.

Sardar Muhammad Ayub Khan v. Secretary S&GAD and 4 others 2000 YLR 2868; Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 and Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and others v. Federation of Pakistan and others PLD 1997 SC 84 rel.

In the matters of the appointment of Judge of the Supreme Court, Judge of the High Court, Chief Justice of the High Court, where the President had to appoint Judge on the advice of the Council and consultation with the Chief Justice of Azad Jammu and Kashmir, advice could not be issued outside the panel of the eligible persons proposed by the Chief Justices. However, as no concept of consultation existed regarding appointment of Chief Justice of Azad Jammu and Kashmir, Chief Election Commissioner and Auditor General, therefore, while issuing advice for appointment of Chief Election Commissioner, the advice had to be tendered by the Azad Jammu and Kashmir Council (only) from the panel suggested by the President.

Mode of initiation of the process for appointment of Chief Election Commissioner was neither prescribed in Azad Jammu and Kashmir Rules of Business, 1985 nor in Azad Jammu and Kashmir Council Rules of Business, 1983. Entry No. 20 had provided appointment of Chief Election Commissioner, his leave, removal and related matters. Rule 11(1) of Rule of Business had provided that no order would be issued without approval of the President in the cases enumerated in Schedule 5. Schedule 5 of Azad Jammu and Kashmir Council Rules of Business, 1983 provided the cases which had to be submitted to the Prime Minister of Pakistan/Chairman of the Council for orders, and Entry 18 of said Schedule was related to the Chief Election Commissioner. Combined reading of Entry 18 of Schedule 5 and Entry No.20 had showed that procedure for initiation of process was not provided in both the Rules, and it was provided that the file would be placed before the Chairman of the Council for appointment of Chief Election Commissioner and orders for appointment of Chief Election Commissioner would not be issued without approval of the President.

Rule of law laid down in Muhammad Younas Tahir's Case (PLD 2012 SC (AJ&K) 42) was not applicable in the case of Chief Election Commissioner. In absence of the concept of consultation, seeking of advice by the President meant that the office of the President would intimate the Council that office of Chief Election Commissioner being vacant, the advice of eligible persons be issued, and a panel might be proposed in that regard but that was not mandatory to issue advice from the said panel.

Section 7 of Azad Jammu and Kashmir Interim Constitution Act, 1974 provided that advice of the Prime Minister would be binding on the President. Words 'such advice shall be binding on him' although had not been used in sections 42, 43, 50 and 50-A of the Constitution Act, but where same words and phrases had been used in more than one provision in relation to the same subject matter, and meaning was clear in one provision and in the other provisions the same had some ambiguity, then the same meaning would be given to the latter provisions as given to the former. Advice of the Council would be binding on the President if the same was in accordance with law and the Constitution Act, and if the advice was against the provisions of the Constitution Act, the same could not be implemented.

Understanding Statute Edn. 2008, p.635 and Interpretation of Statutes, Edn.10, p.522 rel.

Advice of Chairman of the Council for appointment of the Chief Justice of the High Court as Chief Election Commissioner, who was qualified for the appointment in terms of section 3-A of Azad Jammu and Kashmir Interim Constitution Act, 1974, had been validly issued in terms of section 50 of the Constitution Act, and as such, the same had to be implemented by the President in letter and spirit, as the President had no power to refuse to issue order upon the validly issued advice.

No new office had been created under section 6-A of the Act; rather a stop-gap-arrangement had been provided when the office of Chief Election Commissioner was vacant. Legislative Assembly, however, had no power to make any law which was against the clear provisions of the Constitution Act. Chief Election Commissioner had to be appointed on the advice of the Council, and when the office of Chief Election Commissioner was vacant, the Acting Chief Election Commissioner could only be appointed on advice of the Council. Stop-gap-arrangement could only be made in the light of section 50 of the Constitution Act. Mode of appointment of Acting Chief Election Commissioner was, therefore, repugnant to, and ultra vires, the provisions of section 50 of the Constitution Act. Section 6-A of the Act to the extent of appointment of Acting Chief Election Commissioner was, although valid law, but portion thereof, which provided that appointment of Acting Chief Election Commissioner after consultation with Chief Justice of Azad Jammu and Kashmir (without advice of the Council), was not a valid law. Impugned judgment of the High Court to that extent was amended by Supreme Court.

Ghulam Mustafa Mughal and others v. Azad Government and others 1992 MLD 2083 rel.

Advice for appointment of Chief Election Commissioner under sections 50 and 21(7) of the Constitution Act read with sections 3 and 5 of Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) Act, 1992 [As amended by Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) (Amendment) Ordinance (XIX of 2015)], had validly been issued, which was still in existence; therefore, the Acting Chief Election Commissioner could not have been appointed. Section 6-A of the Act, having been declared ultra vires of the Constitution Act, the appointment order for Acting Election Commissioner was also not valid.

Younis Tahir's case PLD 2012 SC (AJ&K) 42; PLD 1996 SC 324; PLD 1997 SC 84; PLD 2011 SC 265; Shahid Orakazi and another v. Pakistan through Secretary Law, Ministry of Law Islamabad and another PLD 2011 SC 365; 2014 SCR 43; PLD 1994 SC 324; 2000 YLR 2868 and Corpus Juris Second Volume ref.

District Bar Accession, Rawalpindi and others v. Federal of Pakistan and others PLD 2015 SC 401 distinguished.

Per Ch. Muhammad Ibrahim Zia, J, Saeed Akram Khan, J agreeing.

Section 6-A of the Act had been incorporated to meet the eventuality of the vacancy of already existing office; therefore, the conclusion drawn by the High Court that section 6-A of the Act amounted to creation of new office was misconceived and not correct appreciation.

Phrase 'terms and conditions' had neither been defined in the Constitution Act, nor in the Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) Act, 1992; therefore, ordinary meaning of the phrase had to be adopted. No ambiguity existed regarding the word 'term'; however, the word 'condition', in the facts and context of the case, was relevant. According to the ordinary dictionary meaning, happening of uncertain event and happening of something in future were included in the meaning and scope of the word 'condition'. Meeting the eventuality of temporary occurrence of vacancy in the office of Chief Election Commissioner fell within the scope of prescribing the 'condition' which was within the competence of Azad Jammu and Kashmir Legislative Assembly, as the same was in the case of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. All said situations were administrative arrangements to meet the eventualities of vacant posts as stop-gap-arrangement, which had neither been considered as creation of new office nor a new induction. Impugned findings of the High Court were, therefore, not sustainable.

Office of Chief Election Commissioner was of extraordinary importance. Nature and spirit of functions and duties of Chief Election Commissioner ruled out the vacancy of that office. Addition of section 6-A of the Act through amendment providing appointment of Acting Chief Election Commissioner, therefore, appeared to be an appropriate and proper legislative step for removing the flaw and meeting the eventuality.

Under the scheme of the Constitution Act or subordinate laws for acting appointment against an office, ordinarily the persons who were already appointed by the competent authority in the prescribed manner and holding the office were considered to be eligible and suitable and no direct or new induction was permissible. Under section 6-A of the Act, there was a chance that a person who was not appointed by competent authority or holding the post according to the Constitutional provisions could be appointed as Acting Chief Election Commissioner. Person, who was eligible to be appointed as Chief Election Commissioner, as mentioned in section 3 of Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) Act, 1992 [As amended by Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) (Amendment) Ordinance, 2015], was one who was or had been a Judge of the Supreme Court or Judge of the High Court, which meant that person presently holding any post of Judge was also eligible for appointment as Chief Election Commissioner. Application of the provisions of section 6-A of the Act, therefore, offended the spirit of section 50 of the Constitution Act. Section 6-A of the Act, which provided that any eligible person could be appointed as Chief Election Commissioner, was partially not valid, and the same should have been suitably amended to exclude the chance of direct appointment of person, who was not holding the office on the basis of appointment made on advice of Azad Jammu and Kashmir Council.

Bashir Ahmed Mughal v. Azad Government and others 2014 SCR 1258 rel.

Before initiation of the process for appointment of the Acting Chief Election Commissioner, an advice had already been issued by the Chairman of the Council in terms of section 50 of the Constitution Act for appointment of Chief Election Commissioner, which had to culminate into a formal appointment notification. Process for appointment of Chief Election Commissioner, which was almost near completion, ruled out the initiation of the process for appointment of Acting Chief Election Commissioner, as after issuance of the advice by the Chairman of the Council, the eventuality and vacancy for the acting appointment had vanished. Process initiated for the impugned acting appointment and issuance of the impugned Notification were, therefore, illegal.

No consistent practice existed since enforcement of Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) Act, 1992, as appointment of Chief Election Commissioner was necessarily initiated or made on the basis of panel sent by Azad Jammu and Kashmir Council or the President. Advice issued by the Council, therefore, was valid and had the force of law. Concerned authority might provide through a statutory provisions the manner and procedure for initiation of the process of filling in the vacancy in the office of Chief Election Commissioner.

No provision existed in the laws enforced in Azad Jammu and Kashmir for drawing the panel (for appointment of Chief Election Commissioner) in consultation with the Leader of the Opposition of the Assembly. Direction of the High Court in that regard was, therefore, unnecessary.

High Court had drawn the inference from the opinion given by the Supreme Court in Presidential Reference No. 1 of 2015, previously decided in the case titled 'Muhammad Younas Tahir and another v. Shaukat Aziz and others [PLD 2012 SC (AJ&K) 42], which was in the context of the procedure and process of appointment of Judge of the High Court. Said judgment, in that context, appeared to be obiter dictum and did not amount to ratio decidendi in the matter of the Reference under section 46-A of the Constitution Act. Advisory jurisdiction under section 42-A of the Constitution Act was confined only to the question referred. In said Presidential Reference, neither the question as to issuance of advice for appointment of Chief Election Commissioner had been referred nor had any report or opinion in that regard been given by the Supreme Court. Material difference existed in the appointment of the Judge of the High Court and Chief Election Commissioner. High Court, therefore, had drawn improper inference from the observation of the Supreme Court.

Term 'advice' was not defined in the Constitution Act and the same had been used in different sections of the Constitution Act, and in each section the term had its peculiar connotation and scope according to the context of relevant section and the whole scheme of the Constitution Act; therefore, that was not necessary that in the Constitution Act, whenever advice was required, the advice could only be given when the same was sought. Scope of word 'advice' might be directory or mandatory, but the same had to be determined according to the spirit and context of relevant law.

Word 'advice' was capable of multi-dimensional meaning. For determination of the status of advice the multi-dimensional aspects had to be appreciated and no uniform or universal one word definition could have been assigned thereto. Not only the statutory provision dealing with the specific proposition had to be interpreted while keeping in view the overall scheme and spirit of the statute, but all other possible aspects had also to be considered for determination of the status and scope of the term 'advice'. Seeking of advice was also not a universal requirement. Advice could even be given without the same having been sought, especially, when the person giving the advice was in authoritative and commanding position. Seeking advice also depended upon the interpretation of relevant statutory provisions in specific context and circumstances.

(b) Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) Act (II of 1992) [As amended under Azad Jammu and Kashmir Chief Election Commissioner (Terms and Conditions) (Amendment) Ordinance (XIX of 2015)]----

----S. 6-A----Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Acting Chief Election Commissioner, appointment of---Writ petition---Maintainability---Locus standi/aggrieved person---Respondents raised the objection that the petitioner, being not an aggrieved person, had no locus standi to file writ petition---Validity---Every State subject, whenever, the Legislature made a law which was against the provisions of the Constitution Act, had a right to challenge the law by way of filing writ petition---Petitioner included the sitting members of the Legislative Assembly, Deputy Leader of Opposition and advocate/member of Azad Jammu and Kashmir Bar Council, who had the right to challenge the law and maintain the writ petition.

Azad Jammu and Kashmir Government v. Muhammad Younas Tahir and others 1995 SCR 341 rel.

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

----Preamble---Azad Jammu and Kashmir---System of Governance.

(d) Words and phrases----

----"Advice"---Definition and scope.

Black's Law Dictionary with pronunciation, Fifth Edn. p.50; Law Terms and Phrases Judicially Interpreted with Legal Maxims and Foregin Legal Words and Phrases in ordinary usage by Sardar Muhammad Iqbal khan Mokal, P.50; Chambers 21st Century Dictionary, p.19; New Internaitonal Webster's Comprehensive Dictionary of English Language Encyclopedic Edn., p.22 rel.

(e) Words and phrases----

----"Condition"---Definition and scope.

Black's Law Dictionary with pronunciation, Fifth Edn. p.265; Law Terms and phrases Judicially Interpreted with Legal Maxims and Foregin Legal Words and Phrases in ordinary usage by Sardar Muhammad Iqbal Khan Mokal, p.230; Chambers Dictionary 10th Edn. p.318 and New International Webster's Comprehensive Dictionary of the English Language Encyclopedic Edn. p.272 rel.

(f) Interpretation of statutes----

----Court has to interpret the enforced laws and not to legislate---No word can be omitted or added in a statute by the court; rather the court is duty bound to interpret the law as it is and not as it should be.

Sadaqat Hussian Raja and Raja Khalid Mehmood Khan for Appellant (in Civil Appeal No.7 of 2016)

Mansoor Pervaiz Khan, Advocate-General, Ch. Shaukat Aziz, Additional Advocate-General, Raja Muhammad Hanif Khan, Raja Inamullah Khan and Barrister Humayun Nawaz Khan for Respondents (in Civil Appeal No.7 of 2016).

Raja Muhammad Hanif Khan and Raja Inamullah Khan for Appellants (in Civil Appeal No.8 of 2016).

Mansoor Pervaiz Khan, Advocate-General, Ch. Shoukat Aziz, Additional Advocate-General, Sadaqat Hussian Raja and Raja Khalid Mehmood Khan for Respondents (in Civil Appeal No.8 of 2016).

Mansoor Pervaiz Khan, Advocate-General and Barrister Humayun Nawaz Khan for Appellants (in Civil Appeal No.11 of 2016).

Sadaqat Hussain Raja and Raja Khalid Mehmood Khan for Respondents (in Civil Appeal No.11 of 2016).

Date of hearing: 25th January, 2016.