PLD 2018 Judgments

P L D 2018 Federal Shariat Court 1

Present Sh. Najam-ul-Hasan, C.J., Allama Dr. Fida Muhammad Khan and Mehmood Maqbool Bajwa, JJ

MUHAMMAD HASSAN---Petitioner

Versus

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

Shariat Petition No. 01/K of 2017, decided on 27th September, 2017.

(a) Constitution of Pakistan---

----Arts. 203-B(c) & 203-D---Powers, jurisdiction and functions of the Federal Shariat Court---Principles.

Following are the principles in relation to the powers, jurisdiction and functions of the Federal Shariat Court:

(i) The Federal Shariat Court had the power and jurisdiction to examine any law except the Constitution, Procedural Law and Muslim Personal Law. Therefore, any provision pertaining to Muslim Personal Law, unless it was unanimously held against the Injunctions of Islam by all Muslim sects, could not be examined and decided by the Federal Shairat Court. Moreover, whenever, the Court exercised such jurisdiction, it could examine the impugned law only on the touchstone of Holy Qur'an and Sunnah of Holy Prophet and not merely on the basis of any juristic opinion or Fatwa by any scholar belonging to any school of thought.

(ii) Federal Shariat Court had to deliver its judgment regarding the impugned law or its provision with effect from some prospective date in the future as provided under Article 203-D(2)(b) of the Constitution.

(iii) Federal Shariat Court could not fill up any gap nor add explanation to the existing text of a statutory law just for the purpose of improving its phraseology or clarification of its meaning as that was the function of the Parliament.

(iv) Nowhere had the Constitution provided grant of relief, in personam in Shariah Petitions, to any one in personal cases which had direct or indirect bearings on the law impugned before the Federal Shariat Court.

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

----S. 8---Khula---Pre-requisites---Return of dower---Dissolution of marriage by way of Khula was always and invariably subject to return of dower, unless waived off by the husband as a matter of grace.

Shariat Petitions bearing No.3/L of 2005 Saleem Ahmed v. Government of Pakistan; Sh. P. No.2/L/2006 Muhammad Suleman Yahya v. Federation of Pakistan; Sh. P. No.1/K of 2007 S. Mohiuddin M. Bukhari v. Federation of Pakistan; Sh. P. No. 2/K of 2007 Sheraz Akram v. Federation of Pakistan; Sh.P.No.3/K of 2007 S. Madanad Mouzzam Bukhari v. Federation of Pakistan and Sh. P. No.1/1 of 2007 Ibad-ur-Rehman Lodhi Advocate v. Secretary M/o Law, Justice and Parliamentary Affairs Islamabad ref.

Mrs. Hawa Ladhani Amir for Petitioner.

P L D 2018 Federal Shariat Court 6

Present: Sh. Najam ul Hasan, C.J., Dr. Fida Muhammad Khan and Mehmood Maqbool Bajwa, JJ

FIAZ AHMED and another---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.30/I and Criminal Referene No.1-L of 2017 L/W, decided on 20th February, 2018.

(a) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)---

----S. 7---Punishment of Qazf liable to hadd---Purpose---According to the Injunctions of Islam, the dignity and self-respect of every man was inviolable in all circumstances---Anyone who made an imputation of zina directly or indirectly, against any person but failed to produce in support thereof, four witnesses before the Court, became liable to the punishment of Qazf---Intention of said command was to impose a complete ban on allegations about the people's unlawful connections and illicit relationships, because it gave birth to innumerable evils---Imperceptibly it created and spreads an immoral atmosphere---Person against whom such allegations were made felt absolutely helpless to defend himself and thus along with his whole family he/she suffered a lot of humiliation---Even if the accuser was an eye-witness of such an immoral act, but did not have the requisite proof, he should not spread it and let the filth remain confined to the place where it was observed---However, if the accuser had the requisite number of witnesses, he should abstain from publicizing the matter in society and should bring it to the notice of concerned authorities and get the criminals duly punished by the court of law.

(b) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)---

----S. 3---"Qazf"---Scope and meaning---"Qazf" did not imply any other accusation except the specific accusation of zina---False accusation of zina had been termed qazf, and, therefore, the ingredients of said Injunction were not extended to cover cases of other accusations like that of theft, drinking, cheating etc.

(c) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)---

----S. 3---Qazf---Scope---Law on 'qazf' was not confined to an accusation in respect of women only, but also applied to an accusation made by a female accuser in respect of a man.

(d) Islamic Jurisprudence---

----Crime and punishment--- Punishment for violating the rights of Allah ("Hadd')---Punishments for violating the rights of individuals/ public at large ("Taazir")---Compromise/pardon---Scope---Penalty for an offence against the right of Allah could not be waived off or commuted after due trial and conviction, however, the penalty for an offence against the right of an individual only, subject to various conditions, could be commuted---Violation of right of Allah could not be pardoned.

(e) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)---

----S. 7---Qazf liable to hadd---Compromise/pardon between complainant and accused---Permissibility---Offence of 'qazf' was a crime where the right of individual was predominant, and pardon may be granted to the accused by the complainant---Offence of 'qazf liable to hadd' was to be based on the statement of the complainant who had been accused of the commission of offence, hence, if he/she granted pardon or waived off his or her right, at any stage, the sentence of 'qazf' was to be warded off.

Ch.Mumtaz Ali Hanjra for Appellant.

Ch. Muhammad Sarwar Sidhu, Additional Prosecutor General, Punjab for the State.

P L D 2018 High Court (AJ&K) 15

Before Mohammad Sheraz Kayani, J

KHALID MEHMOOD KHAN and 13 others---Petitioners

Versus

BOARD OF REVENUE, AZAD JAMMU AND KASHMIR MUZAFFARABAD and 21 others---Respondents

Writ Petition No. 102 of 2011, decided on 13th October, 2017.

(a) Azad Jammu and Kashmir Land Reforms Act (IV of 1960)---

----S. 25---'Co-sharers' in Shamilat-e-deh---Scope---New occupancy tenants who had acquired the rights of ownership under the Land Reforms Act, 1960---Entitlement---Only the old owners were entitled in the old Shamilat-e-deh land according to their proportionate shares in the holding---New owners, who acquired the proprietary rights under the Land Reforms Act, 1960 were not co-sharers in the old Shamilat-e-deh land, however, any person who had purchased a land from an old owner with share of Shamilat-e-deh land, definitely would be entitled for the Shamilat-e-deh land according to his proportionate share of the purchased land.

(b) Azad Jammu and Kashmir Land Reforms Act (IV of 1960)---

----S. 25-A [since declared repugnant to Injunctions of Islam]---'Co-sharers' in Shamilat-e-deh---After S. 25-A of the Land Reforms Act, 1960 was declared repugnant to Injunctions of Islam, new owners, who acquired proprietary rights under the Land Reforms Act, 1960 were held to be not co-sharers in the old Shamilat-e-deh land---High Court (AJ&K) declared that when S. 25-A of the Land Reforms Act, 1960 was no more a part of the statute book, then any entry made in pursuance of that law in the revenue record shall be deemed to be null and void---Writ petition was allowed accordingly.

Said Akbar and 11 others v. Muhammad Shakoor and 2 others 2017 SCR 108 and Azad Government through Advocate General v. Raja Waleed Khan Civil Appeal No.30/1991, decided on 12.11.1992 ref.

(c) Land Revenue Act (XVII of 1967)---

----S. 39---Entries in the revenue record---Scope---Such enteries themselves did not confer any right of ownership, when the same were found contrary to law having no statutory backing.

Raja Khalid Mehmood and Raja Hassan Akhtar for Petitioners.

P L D 2018 High Court (AJ&K) 22

Before Muhammad Sheraz Kiani, J

Raja IMTIAZ AHMED KHAN---Appellant

Versus

MUHAMMAD MAHROOF and 2 others---Respondents

Civil Appeal No.66 of 2016, decided on 23rd January, 2018.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), S. 39---Land sold by co-sharer---Sale deed, cancellation of---Jurisdiction of civil Court---Plaint, rejection of---Scope---Contention of plaintiff was that defendant/vendor being not in possession of the suit land was not entitled to transfet the same---Trial Court rejected the plaint but Appellate Court remanded the case for decision on merits after recording evidence---Validity---If a co-sharer was in possession of a particular survey number then he could alienate that specific survey number validly provided it did not exceed his share in the khewat---If co-sharer was not in possession of a particular survey number then he could transfer from that particular survey his share but not the land of whole survey number---Whether defendant/vendor was in possession of suit land was a question of fact which could be determined after recording evidence of the parties---Trial Court was not competent to reject plaint in circumstances---If it was found that defendant/vendor was not in possession of whole suit land then questioned sale deed could be set aside to the extent of land beyond his share in that particular survey number---Present matter was not a case for cancellation of 'Tateema plan' only but it was for setting aside the sale deed---Civil Court could set aside the sale deed in circumstances---If vendor had sold the land without specification of a single survey number then there might have been no illegality but to transfer that land which was or might be in possession of other co-sharer was not justified in law---Appellate Court had rightly remanded the case for resolving the controversy on merits after recording evidence---No illegality and perversity had been pointed out in the impugned judgment and decree passed by the Appellate Court---Appeal was dismissed in circumstances.

Raja Ishtiaq Ahmed Khan for Appellant.

P L D 2018 High Court (AJ&K) 25

Before M. Tabassum Aftab Alvi, C.J., Azhar Saleem Babar and Muhammad Sheraz Kiani, JJ

SABA YASIR and another---Petitioners

Versus

SENIOR CIVIL JUDGE, MUZAFFARABAD and others---Peitioners

Writ Petitions Nos.161 of 2013 and 3114 of 2016, decided on 5th July, 2018.

(a) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----Ss. 13 & 17---Civil Procedure Code (V of 1908), Ss. 46, 13, 14 & 2 (5)(6)---Family Courts Act (XXXV of 1964), S. 5, Sched. & S.13---Suit for recovery of maintenance allowance and dower---Execution of decree of Pakistan (foreign) Court in Azad Jammu and Kashmir---Scope---Suit was filed before Family Court in Pakistan which was contested by the defendant-husband and was decreed---Wife-decree-holder moved application before Family Court for sending precept to Family Court in Azad Jammu and Kashmir for execution of said decree which was allowed---Family Court in Azad Jammu and Kashmir returned the said execution petition with the observation that decree passed by Foreign Courts could not be executed in Azad Jammu and Kashmir---Validity---No procedure for execution of a foreign decree had been provided in S. 13 of Azad Jammu and Kashmir Family Courts Act, 1993---Family Court could exercise inherent powers in such circumstances in the interest of justice---Decree passed by the Family Court was to be executed either by the Court passing it or by any other Civil Court as directed by District Judge---Powers to execute said judgment/decree provided in Civil Procedure Code, 1908 in such situation could be followed by the Family Court---Court upon application of decree-holder might issue precept to any other Court which was competent to execute such decree---Precept, in the present case, was sent to District Judge in Pakistan in order to forward the same to the concerned Court at Muzaffarabad---District Judge had been empowered to direct any other civil Court for execution of a decree---District Judge in Pakistan while sending precept to the District Judge in Azad Jammu and Kashmir followed the relevant law and did not commit any illegality---Courts in Pakistan were foreign Courts and Azad Jammu and Kashmir was a foreign territory---Judgments/decrees passed by Pakistan Courts could be executed in Azad Jammu and Kashmir under S.13 of Civil Procedure Code, 1908---Foreign decree could be executed when defendant appeared in foreign Court and pleaded to the merits of case and submitted to the jurisdiction of said Court voluntarily---Judgment-debtor, in the present case, appeared before the foreign Court voluntarily---Defendant now could not be allowed to turn around and impeach the judgment and decree on the ground of incompetency of the Court passing it when same was sought to be enforced in another country---Impugned order passed by the Family Court in Azad Jammu and Kashmir was set aside and it was directed to continue the proceedings of execution of decree---Writ petition was allowed accordingly.

Karim Haider Shah and another v. Raja Khanizaman Khan and another PLD 1954 AJ&K 1; Lakhpat Rai Sharma v. Atma Singh AIR 1962 Punjab 228; Mst. Maryam Bibi and others v. Muhammad Iqbal and others PLD 1976 AJ&K 9; Dr. Padmini Mishra v. Dr. Ramesh Chandra Mishra AIR 1991 Orissa 263; Nasir Pervaiz v. Shazia Qayyum and 2 others 2001 CLC (SC AJK) 1072; Muhammad Sadiq v. Dr. Sabira Sultana 2002 SCMR 1950; Akhtar Ali Said Bcha v. Mst. Naheed Bibi PLD 2003 Pesh. 63; Abdul Khaliq v. Sidra Khaliq and 3 others 2014 SCR 280; Abdul Ghani v. Haji Saley Muhammad PLD 1960 Kar. 594; Mst.. Maryam Bibi and others v. Muhammad Iqbal and others PLD 1976 AJ&K 9; Tariq Mahmood v. Mst. Zarda Begum and another 1995 CLC 1102 and Grosvenor Casino Limited, Shahram-E-Kamal Ataturk, Karachi v. Abdul Malik Badruddin 1997 SCMR 323 ref.

Chormal Balchand Firm, Chowrahat v. Kasuri Chand Seraoji and another AIR 1938 Cal. 511; Shaliq Ram v. Firm Daulat Ram AIR 1967 SC 739; Robeena Fazil v. Yasin Khan 2005 SCR 37; Mst. Saima Tabassum v.Syed Sher Shah and 3 others 2016 MLD 1430; Noor Hussain v. The State PLD 1966 SC 88; Commission Income Tax AJ&K, Muzaffarabad v. Messrs Haji Ali Khan and Co. Forest Lessee Havelian PLD 1985 SC (AJK) 62; Mian Nazir Ahmad v. Abdur Rashid Qaureshi 1986 CLC (AJ&K) 1309 and Hasham Issaq v. Karachi Gas Company Ltd. PLD 1969 Kar. 109 rel.

Muhammad Siddique Rathore v. Muhammad Muzaffar Khan PLD 2005 (AJ&K) 1 per incuram

(b) Azad Jammu and Kashmir Family Courts Act (XI of 1993)---

----Ss. 13 & 17---Civil Procedure Code (V of 1908), Ss. 46, 13 (b) (f), 14 & 2(5) (6)---Family Courts Act (XXXV of 1964), S.5, Sched. & S.13---Suit for recovery of maintenance allowance---Ex-parte decree passed by Pakistan Court---Execution of said foreign decree in Azad Jammu and Kashmir---Scope---Suit was decreed ex-parte by Family Court in Pakistan and decree was sent to Family Court Azad Jammu and Kashmir for hearing and its disposal---Family Court Azad Jammu and Kashmir directed the judgment-debtor to deposit surety bond---Plea of judgment-debtor was that ex-parte decree of maintenance allowance passed by Family Court in Pakistan was not executable in Azad Jammu and Kashmir as same would be hit by exception (b) & (f) of S.13, C.P.C.---Validity---No procedure for execution of a foreign decree had been provided in S.13 of Azad Jammu and Kashmir Family Courts Act, 1993---Family Court could exercise inherent powers in such circumstances in the interest of justice---Decree passed by the Family Court was to be executed either by the Court passing it or by any other Civil Court as directed by the District Judge---Powers to execute said judgment/decree provided in Civil Procedure Code, 1908 in such situation could be followed by the Family Court---Court upon application of decree-holder could issue precept to any other Court which was competent to execute such decree---Precept in the present case was sent to District Judge in Pakistan in order to forward the same to the concerned Court at Muzaffarabad---District Judge had been empowered to direct any other civil Court for execution of a decree---District Judge in Pakistan while sending precept to the District Judge Azad Jammu and Kashmir followed the relevant law and did not commit any illegality---Courts in Pakistan were foreign Courts and Azad Jammu and Kashmir was a foreign territory---Judgments/decrees passed by Pakistan Courts could be executed in Azad Jammu and Kashmir under S.13 of Civil Procedure Code, 1908---Where any of the provisions (a) to (f) of S.13, C.P.C. were attracted in the case then judgment/decree passed by a foreign Court would not be executed---Judgment in the present case had not been passed on merits to the case which was against the principles of natural justice---Foreign judgment in circumstances was not conclusive to be executed---Ex-parte judgment passed by foreign Court was not to be executed in Azad Jammu and Kashmir---Family Court in Azad Jammu and Kashmir was restrained to execute an ex-parte decree of maintenance allowance passed by a foreign Court---Wife-decree-holder might file suit on the basis of said decree before Family Court in Azad Jammu and Kashmir---Writ petition was allowed accordingly.

Fayyaz Ahmad Janjua for Petitioners.

Chaudhary Shaukat Aziz for Petitioners.

Sardar M.R. Khan for Respondent No.3 (in Writ Petitin No.161 of 2013).

P L D 2018 Islamabad 1

Before Miangul Hassan Aurangzeb, J

FEDERATION OF PAKISTAN through D.G. National Training Bureau---Petitioner

Versus

Messrs JAMES CONSTRUCTION COMPANY (PVT) Ltd.---Respondent

C.R. No. 88 of 2016, decided on 16th August, 2017.

(a) Arbitration---

----Proceedings---Principles of natural justice---Applicability---Arbitrator is not bound by technical rules of procedure but he cannot ignore rules of natural justice---Thread of natural justice should run through entire arbitration proceedings--- Principles of natural justice require that a party who is to be prejudiced by an order of arbitrator should be heard first.

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

----S. 11 (2)---"Misconduct"---Connotation---Misconduct for purposes of Arbitration Act, 1940 is legal misconduct and is not moral turpitude, dishonesty or any immoral or unethical conduct---Misconduct not amounting to moral turpitude is called 'legal misconduct' and has a very wide meaning---Legal misconduct means misconduct in judicial sense arising from some honest though erroneous breach and neglect of duty and responsibility on part of arbitrator causing miscarriage of justice; there may be ample misconduct in a legal sense to make the court set aside award even when there is no ground to impute slightest improper motive to arbitrator---Misconduct includes failure to perform essential duties which are cast on an arbitrator; it also includes any irregularity of action which is not consonant with general principles of equity and good conscience which ought to govern conduct of an arbitrator.

Pakistan Steel Mills Corporation, Karachi v. Messrs Mustafa Sons (Pvt.) Ltd., Karachi PLD 2033 SC 301 and Lodon Export Corporation Ltd. v. Jubillee Coffee Roasting Company Ltd., (1958) 1 WLR 661 = (1958) 2 All ER 411 rel.

(c) Arbitration---

----Deriving of jurisdiction by arbitrator---Scope--- Court of law derives jurisdiction from statute, arbitrator derives jurisdiction from agreement---Agreement may be altered by course of conduct---Arbitration is a creature of contract and consent can confer jurisdiction; it is a private procedure established by an agreement between parties--- Parties to such an agreement can vary, amend or waive, either expressly or impliedly by conduct, procedure established by agreement.

(d) Waiver---

----Scope---Intentional relinquishment of a known right or voluntary relinquishment or abandonment of a known existing legal right constitutes waiver.

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

----S. 20---Appointment of arbitrator---Non-compliance of a pre-condition---Effect---Where dispute resolution mechanism enshrined in contract provides for disputes between parties to contract to be referred to engineer/consultant before they can be referred to arbitration and one of the parties to contract without exhausting pre-condition of reference to engineer/consultant files application under S.20 of Arbitration Act, 1940 seeking for appointment of arbitrator and a reference of dispute to arbitration, court generally turns down such application as premature.

Board of Intermediate and Secondary Education v. Fine Start and Company 1993 SCMR 530; Hanover Contractors v. Pakistan Defence Officers Housing Society 2002 CLC 1880; Sanad Associates v. General Manager Telephone and Telegraph 1989 CLC 386; Ayaz Builders v. Board of Trustees of the Karachi Port Trust and another 2008 CLC 726; WAPDA v. S. H. Haq Noor and Co. 2008 MLD 1606; Pak. U.K. [Associates] (Pvt.) Ltd. v. The Hashemite Kingdom of Jordan 2017 CLC 599 and Smith v. Martin ([1925] 1 K.B. 745 rel.

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

----Ss. 11, 12 & 20---Arbitration---Replacement of arbitrator--- Principle---Matter was referred to arbitral tribunal comprising of two members appointed with consent of parties---Trial Court, on application under Ss.11 & 12 of Arbitration Act, 1940, removed arbitral tribunal and appointed a sole arbitrator---Validity---Where an arbitrator appointed by a party was removed under S. 11 of Arbitration Act, 1940, court was not bound to ask that party whose nominee had been removed to nominate another person to replace removed arbitrator---Court was also not bound to appoint nominee of party to replace removed arbitrator---Court could ask the party whose nominee had been removed to suggest names of suitable persons so as to enable the court to fill up vacancy caused by order of removal of an arbitrator---Court had to make the final choice for appointment of arbitrator---Court in appointing a sole arbitrator after removing two member arbitral tribunal, was not bound to appoint a retired Judge of the Supreme Court at instance of party---No infirmity existed in order of the Trial Court appointing sole arbitrator and fixing his fee which both parties to dispute were bound to pay---Two membered arbitral tribunal was correctly removed by Trial Court and sole arbitrator was correctly appointed in exercise of powers conferred under S.12(2)(a) of Arbitration Act, 1940---Revision was dismissed in circumstances.

A.M. Associates v. Government of Khyber Pakhtunkhwa PLD 2015 SC 21; Muhammad Sharif v. Rose Deen 2015 MLD 1804; Sheodutt v. Pandit Vishnudutta AIR 1955 Nag. 116; Chhaganlal Asaram v. Jeevanlal Gangabisan AIR 1954 Nag. 263; Dhooli Atchayya v. Dhoodi Peddenti AIR 1928 Mad. 983; Fazalally Jivaji Raja v. Khimji Poonji & Co.AIR 1934 Bom. 473 and R v. Sussex Justices, Ex parte MeCarthy (1924) 1 KB 256 = (1923) All ER 233 ref.

Ahsan Mehmood Satti, DA.G. along with Arifullah, Director, NTB for Petitioner.

Zahoor Ali Nasir Tagga for Respondent.

P L D 2018 Islamabad 20

Before Aamar Farooq, J

LAHORE ELECTRIC SUPPLY COMPANY LIMIED (LESCO) and others---Petitioners

Versus

NATIONAL ELECTRIC POWER REGULATORY AUTHORITY and others---Respondents

Writ Petitions Nos. 2271, 2727, 3037, 2854, 3148, 3063, 3023, 4013, 3752 and 3024 of 2016, decided on 22nd June, 2017.

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

----S. 31(4), second proviso---Word 'anew' in S.31(4), proviso of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Scope---Redetermination of tariff---Principle---Word 'anew' shows that when petition for redetermination of tariff is made, the matter has to be decided afresh, as if no previous position on the same has been rendered.

(b) Quasi Judicial proceedings---

----Scope---Even in proceedings which are of quasi judicial nature, the dictates of natural justice demand that any motion for postponement should be allowed.

High Flying Solar Development Pakistan Limited v. NEPRA 2016 CLC 1805 rel.

(c) Interpretation of statutes---

----Time bound proceedings---Scope---Where time is prescribed to conclude proceedings and no consequence is provided for failure to do so, such time period is taken as directory and not mandatory.

(d) Constitution of Pakistan---

----Art. 154(7)---Council of Common Interests---Power and authority---Council of Common Interests has to regulate and formulate policies for Federation in relation to a number of subjects including electricity and regulatory bodies---Decision of Council of Common Interests has binding/obligatory effect unless the same is modified by the Parliament as provided in Art. 154(7) of the Constitution.

Watan Party v. Federation of Pakistan PLD 2006 SC 697; Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others (ICA No.1766-2016); Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 and Water and Power Development Authority through Director Services and Estates v. Excise and Taxation Department, Government of Punjab through Director General and 4 others 2017 PTD 517 rel.

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

----Ss. 7(6) & 31 (4)---Redetermination of tariff---Failure to provide opportunity of hearing--- Petitioners were power distribution companies (Discos) and were aggrieved of the National Electric Power Regulatory Authority (NEPRA) with regard to proceedings for redetermination of tariff--- Plea raised by petitioners was that they were not provided opportunity of hearing at the time of review of tariff---Contention of the Authority was that opportunity of hearing was granted to petitioners but they did not avail the same and requested for adjournment / postponement time and again---Validity---National Electric Power Regulatory Authority, under the provisions of S.7 (6) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, had to keep in view the guidelines issued by Federal Government from time to time and to keep balance as much practicable while making decisions or passing orders otherwise---Such guidelines were not per se binding but also could not be ignored by the Authority---If the guidelines were inconsistent with Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, those would not be followed at all, however, if those were not inconsistent, the same were to be applied and followed in order to balance the interests of consumer and electric supplier companies---Authority did not provide adequate opportunity to Federal Government as well as petitioners, which it should have, as they were stakeholders in fixation/redetermination of tariff---High Court directed the Authority to provide opportunity of hearing to Federal Government as well as Distribution Companies while adjudicating/deciding redetermination petitions filed before the Authority and set aside redetermination order already passed by the Authority---High Court directed petitioners / Federal Government not to obtain adjournments/postponements and to facilitate the Authority to decide the matter within the time frame provided in proviso to S.31(4) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Constitutional petitions were allowed accordingly.

Case-law referred.

Syed Ahmad Hassan Shah, Munawar-us-Salam and Adil Bandyal, Barrister Malik Kashif Rafique Rajwana, Barrister Muhammad Hassan Alam and Rao Qasim for Petitioners.

Hafiz Naeem, Muhammad Arshad Majeed Malik, Nouman Munir Peracha and Raja Khalid Mahmood Khan, DAG for Respondents.

P L D 2018 Islamabad 51

Before Mohsin Akhtar Kayani, J

SUI NORTHERN GAS PIPELINE LIMITED, (SNGPL) through General Manager---Petitioner

Versus

DIRECTOR (LEGAL), PRESIDENT SECRETARIAT (PUBLIC), AIWAN-E-SADAR ISLAMABAD and 2 others---Respondents

Writ Petition No. 239 of 2017, decided on 30th October, 2017.

(a) Interpretation of statutes---

----Special law (on a subject) excluded application of general law.

Capt. (Retd.) Nayyar Islam v. Judge, Accountability Court No.III and others 2012 SCMR 669; Attaullah Khan and others v. Samiullah and others 2007 SCMR 298 and Ismaeel v. The State 2010 SCMR 27 ref.

(b) Interpretation of statutes---

----Two special laws on the same subject---When two special laws dealt with a similar situation, then question of jurisdiction had to be seen in the light of its nature, object, scope and remedial portion provided therein in ordinary meaning to understand its true legislative intent.

(c) Jurisdiction---

----When two special laws dealt with a similar situation, then question of jurisdiction had to be seen in the light of its nature, object, scope and remedial portion provided therein in ordinary meaning to understand its true legislative intent.

(d) Interpretation of statutes---

----When the plain and simple meaning of a provision of law was clearly understandable without any ambiguity then nothing was to be presumed or imported from outside.

The State v. Syed Ali Baqar Naqvi and others 2014 SCMR 671 ref.

(e) Interpretation of statutes---

----Special law---In construing and interpreting a special law, the court had to look at the reasons and background, which influenced the mind of the legislature in enacting the special law and the history of events, which had occurred preceding the enactment of the special law.

(f) Interpretation of statutes---

----Intent of legislature---In construing and interpreting a statute, the fundamental principle was to discover the true intent of the legislature enacting a particular law to meet a particular situation and to confront a specific emerging threat or situation.

Waris Ali and 5 others v. The State 2017 SCMR 1572 ref.

(g) Interpretation of statutes---

----Conflict between two special laws containing overriding clauses---Generally statute later in time would prevail over the statute prior in time.

Syed Mushahid Shah v. Federal Investment Agency and others 2017 SCMR 1218 ref.

(h) Interpretation of statutes---

----Two special enactments (on the same subject) containing provisions, which gave overriding effect to the provisions contained therein---In such a case court was required to consider 'purpose' and the 'policy' underlying the two acts and the clear intendment conveyed by the language of the relevant provisions.

Employees Provident Fund Commissioner v. O. L. of Esskay Pharmaceuticals Limited AIR 2012 SC 11 and Shri Ramah Narain v. The Simla Banking and Industrial Co., Ltd. 1956 SCR 603 ref.

(i) Gas (Theft Control and Recovery) Act (XI of 2016)---

----Ss. 2(o), 2(s), 3 & 4---Establishment of the Office of Wafaqi Mohtasib Order (P.O. No. 1 of 1983), Art. 9---Federal Ombudsman Institutional Reforms Act (XIV of 2013), Ss. 18 & 24---Matter relating to theft of gas and disputed gas bill---Federal Ombudsman, jurisdiction of---Scope---After promulgation of Gas (Theft Control and Recovery) Act, 2016, special jurisdiction had been vested in Gas Utility Courts to deal with a complaint between a consumer and a gas supply company---Federal Ombudsman and President of the country no longer had any authority to adjudicate upon such a matter under the Federal Ombudsman Institutional Reforms Act, 2013---Enactment of special legislation i.e. Gas (Theft Control and Recovery) Act, 2016 excluded the application of general law i.e Federal Ombudsman Institutional Reforms Act, 2013---Gas (Theft Control and Recovery) Act, 2016, fulfilled the purposes and special needs of the time keeping in view the disputes amongst the consumers and gas supplying company---Gas (Theft Control and Recovery) Act, 2016 provided a proper mechanism, through which a dispute could be resolved after recording of evidence, whereas under the Federal Ombudsman Institutional Reforms Act, 2013, the Federal Ombudsman could not record evidence and could not allow the parties to lead their evidence.

Ch. Hafeez Ullah Yaqub and Ms. Zaitoon Hafeez for Petitioner.

Haseeb Muhammad Ch., Deputy Attorney General, Saima Naqvi, Standing Counsel, Yaser Aman Khan and Muhammad Ashraf, Advisor Planning and Projects, Islamabad for Respondents.

P L D 2018 Islamabad 62

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

IMRAN MOHSIN---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 2 others---Respondents

Writ Petition No.2267 of 2017, decided on 25th October, 2017.

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

----S. 9(a) & (b)---Criminal Procedure Code (V of 1898), S.497, third proviso---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Delay in conclusion of trial---Case of hardship---Scope---Petitioner was in custody for 27 months without conclusion of trial---Validity---While exercising powers under Art.199 of the Constitution in cases wherein bail was sought in proceedings under National Accountability Ordinance, 1999, broader principles of S.497, Cr.P.C. could be pressed in hardship cases to provide relief to an accused person who had been incarcerated for an unreasonable period due to delay in conclusion of trial---Broad principles of third provisio to S.497, Cr.P.C. and exceptions mentioned therein, could be taken into consideration---Trial, in the present case, was suspended because a judicial officer was not posted to preside over the Accountability Court---Request for adjournment was made only once by the accused and no other act of omission of his counsel led to delay in conclusion of trial---Case of hardship in context of National Accountability Ordinance, 1999 was made out---Bail was allowed in circumstances.

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

----S.497---Bail---Principles and law summarized.

Nazir Hussain v. Zia ul Haq and others 1983 SCMR 72; Sher Ali alias Sheri v. The State 1998 SCMR 190; Akhtar Abbas v. State PLD 1982 SC 424; Moundar and others v. The State PLD 1990 SC 934; Abdul Rashid v. The State 1998 SCMR 897; Zahid Hussain Shah v. The State PLD 1995 SC 49 and Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358 rel.

Adnan Shuja Butt and Sohail Warriach for Petitioner.

Adnan Tahir, Prosecutor, NAB and M.Ghufran, A.D./I.O. NAB for Respondents.

P L D 2018 Islamabad 68

Before Athar Minallah, J

Malik BASHIR AHMAD and 4 others---Petitioners

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Secretary Cabinet Division and 6 others---Respondents

Writ Petition No.308 of 2016, decided on 23rd October, 2017.

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

----S. 22---Land Acquisition Act (I of 1894), Ss. 4 & 17---Acquisition of land---Capital Territory---Special and general law---Applicability---Capital Development Authority Ordinance, 1960 is a self-contained and comprehensive law in respect of acquisition of land within Islamabad Capital Territory---Land Acquisition Act, 1894 is general law and its provisions are in conflict with special law, i.e., Capital Development Authority Ordinance, 1960---When provisions of a general law and special law are in conflict, latter prevails---As long as declaration made by legislature in S.22 of Capital Development Authority Ordinance, 1960 remains enforced, notice under S.4 of Land Acquisition Act, 1894 would be invalid, having no legal effect.

[Case-law referred].

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

----S. 4---Acquisition of land---'Public purpose'---Determination---Duty of court---Scope---Government is best judge as to whether 'public purpose' is served---Courts have jurisdiction and Constitutional duty and obligation to determine matter whenever an aggrieved person has raised a challenge, complaining that his or her fundamental rights are being infringed---Determination depends on facts and circumstances of each case---Duty of court to closely examine such facts and circumstances, particularly when it is not a case of acquiring land for construction of public school, hospital, road or such other project which is exclusively for benefit, welfare and use of general public---No precise definition of expression 'public purpose' existed Financial benefit for a few individuals at cost of land owned and vested in the State cannot be treated as a 'public purpose'.

[Case-law referred].

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

----S. 22--- Land Acquisition Act (I of 1894), Ss. 4 & 17---Acquisition of land---Executive authorities, duties of---Scope---Executive authorities are in position of fiduciaries in that they hold property vested in government as trustees---Duty of executive authorities to act solely in interest of beneficiaries, i.e., the people---While exercising executive authority of Federation in relation to sale or disposition of property vested in and owned by government, highest standards of transparency must be ensured, otherwise, it would tantamount to breach of fiduciary duty as trustee---Transparency is paramount in disposition of sale of property which vests in government---If such property is intended to be disposed of or sold in a non-transparent manner then it requires an express authority and power in such regard through an Act of appropriate legislature.

(d) Constitution of Pakistan

----Arts. 23 & 24--- Right to hold property and protection of property rights---Scope---Fundamental rights guaranteed under Arts. 23 & 24 of the Constitution are inalienable rights of every citizen---Such Constitutional guarantees are subject to legitimate exercise of power of eminent domain of State---Public functionaries are under an obligation to ensure that their actions are based on just decision since improper exercise of power of forcibly taking a citizen's property is an infringement of his or her Constitutional right to own, possess and enjoy his or her property---Any unlawful deprivation of property also entails a violation of right of liberty---Unauthorized actions of executive erodes rule of law.

[Case-law referred].

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

----Ss. 5 & 22---Land Acquisition Act (I of 1894), Ss. 4 & 17---Constitution of Pakistan, Art. 25---Land acquisition---Discrimination---'Public purpose'--- Requirement--- Scope--- Islamabad Capital Territory---Petitioners were landowners and they assailed notification under provisions of Land Acquisition Act,1894 on grounds that their land could not be acquired by Federal Government Employees Housing Foundation to benefit a class of people---Validity---Federal Government directly or indirectly was not vested with power and jurisdiction under Capital Development Authority Ordinance, 1960 to transgress its role in matters relating to development, town planning or housing beyond what was expressly provided under S.5 of Capital Development Authority Ordinance, 1960---Through the Foundation, personal financial interests of Federal Government servants were created in matters relating to development, town planning and housing in area where Capital Development Authority Ordinance, 1960 was enforced---Such had not only given rise to conflict of interest but violated and defeated intent of legislature as expressly provided under S. 5 of Capital Development Authority Ordinance, 1960---High Court declared that any indulgence, direct or indirect, of Federal Government or through the Foundation in matters relating to development, town planning or housing otherwise than as provided under S. 5 of Capital Development Authority Ordinance, 1960 was ultra vires, illegal and void---Federal Government Employees Housing Foundation and its role in matters relating to development, town planning or housing in areas where Capital Development Authority Ordinance, 1960 was enforced was illegal, void and without lawful authority---Land within Islamabad Capital Territory could only be acquired under Capital Development Authority Ordinance, 1960 and regulations made thereunder---Even under Land Acquisition Act, 1894 object for which land was being acquired did not meet stringent requirements of 'public purpose'---State had no obligation to provide land in shape of largess but if it was, then must be available to every citizen and on same terms---Arbitrary disposal of land as state largess was by definition a violation of right to be treated equally---High Court set aside acquisition notices and also declared acquisition proceedings, all actions and orders relating to acquiring land for Foundation as illegal, void, without jurisdiction and legal effect---Constitutional petition was allowed in circumstances.

[Case-law referred].

Hasan Murtaza Mann, Abdul Latif and Wajid Ali Shah Gillani for Petitioners in their respective petitions.

Mansoor Ahmed for Respondent No.4/Federal Government Employees Housing Foundation, Islamabad for Respondents.

Muhammad Nazir Jawad and Ch. Asghar Ali for Respondents/CDA.

Mian Abdul Rauf, Advocate-General, Islamabad.

Khawaja Muhammad Imtiaz, A.A.G.

Ms. Rabia Aurangzeb, Additional Land Collector.

Malik Zafar Abbas, Director Law, FGEHF.

P L D 2018 Islamabad 108

Before Shaukat Aziz Siddiqui, J

KAREEM KHAN---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE ICT ISLAMABAD and 3 others---Respondents

Writ Petition No.1584-Q of 2015, decided on 15th January, 2018.

Police Rules, 1934---

----R. 25.8---High Court (Lahore) Rules and Orders, Vol. III, Chapt. 26, R.3---Transfer of case FIR to another district---Scope---Drone attack in Federally Administered Tribal Area (FATA) was conducted by a foreign intelligence agency---Petitioner's son and brother died in the drone attack---First Information Report (FIR) for the occurrence was registered in Islamabad Capital Territory against the Station Chief of the foreign intelligence agency ("the accused")---Investigation of said FIR was subsequently transferred from Islamabad Capital Territory to Federally Administered Tribal Area (FATA) on the basis that occurrence took place in FATA, and all the witnesses were also present there---Propriety---For taking a decision regarding transfer of a case from one district/police station to another sub-rule (1) of R.25.8 of Police Rules, 1934, had direct relevance, perusal of which clearly depicted that for taking any such decision the first thing which was to be kept in mind was the investigation of the very case, whether it could effectively be carried out at that district where the case was to be transferred as compared to the district/police station where it had been registered---When the present case was passed through the said test it was quite obvious that the impugned decision to transfer the case from Islamabad Capital Territory to FATA was not supported by any such ground as admittedly there was no proper infrastructure available at FATA required to properly investigate the matter and no investigating agency or an institution like police was working there---Moreover, it was also an admitted fact that the drone attacks in the areas of FATA were being controlled and administered by a foreign intelligence agency which ran its affairs from Islamabad Capital Territory---In addition to that, present matter was of sensitive nature which was directly linked with the affairs of the Federal Government as during the investigation support of the Federal Government shall be required at each and every stage whether for procuring attendance of the accused or other witnesses---Furthermore, as the accused was currently out of Pakistan thus tracing his location and his arrest shall have to be made through International Criminal Police Commission (INTERPOL) which department operated in its member countries through National Central Bureaus (NCBs) which was also its coordinating body and in Pakistan NCB was attached with Federal Investigation Agency, which office was also located in Islamabad Capital Territory---For making any foreigner part of the investigation or for arresting such accused correspondence was always made through the Federal Government, meaning thereby that at each and every stage of the investigation role of Federal Government could not be denied---Besides joint reading of sub-rule (2) of R.25.8 of the Police Rules, 1934 and R. 3 of Chapter 26,Vol.III of the High Court (Lahore) Rules and Orders, entailed presence of public convenience while making such transfer of case FIR, which was also not the case in the present matter as transfer made in the present case did not make it convenient either for complainant or witnesses to join investigation at FATA---Local witnesses who were living in different areas of the country as Internally Displaced Persons would also not be able to join the investigation of the present matter in FATA---Complainant himself was residing with his family in Islamabad Capital Territory and it would also not be possible for him to visit FATA frequently where the incident took place due to an ongoing army operation in the area---High Court set aside the impugned order through which Chief Commissioner transferred case FIR registered in Islamabad Capital Territory to the concerned police station in FATA---Constitutional petition was allowed accordingly.

Mirza Shahzad Akbar for Petitioner.

Arshad Mehmood Kiyani, DAG., Mian Abdul Rauf, Advocate-General, ICT., Mirvais Niaz, D.I.G., Sajid Mehmood Kiyani, SSP (Operations), Azhar Hussain Shah, DSP (Legal), M. Nawaz Bhatti, Inspector and Anees, Inspector for Respondents.

P L D 2018 Islamabad 115

Before Miangul Hassan Aurangzeb and Athar Minallah, JJ

PAKISTAN REAL ESTATE INVESTMENT AND MANAGEMENT COMPANY (PVT) Ltd.---Appellant

Versus

SOHAIL A. KHAN, ASSOCIATES-ASSIGN JV through Authorized Representative and another---Respondents

F.A.O. No.165 of 2015, decided on 30th January, 2018.

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

----S. 20---Application to file in court arbitration agreement---Locus standi of party to file such an application---Scope---Only a party to an arbitration agreement could file an application for referral of contractual disputes with the contracting party to arbitration with the intervention of the Court---Person who was not a party to the arbitration agreement could not take advantage of such an agreement or take steps for its enforcement.

Pakistan through Secretary, Ministry of Religious Affairs v. Dallah Real Estate and Tourism Holding Company 2003 CLC 1411 and Medhi K. Lavji v. Province of Sindh 2010 MLD 561 ref.

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

----S. 20---Application to file in Court arbitration agreement---Territorial jurisdiction of a court to entertain such an application---Scope---Contract between parties was executed at city "K", whereas the application under S. 20 of Arbitration Act, 1940 was filed in civil court of city "I"---Legality---Contract between the parties did not obligate the parties to file legal proceedings in a certain court---Furthermore consultancy services under the contract were to be performed at city "I"---Objection with regard to the territorial jurisdiction of the civil court at city "I" to entertain the application under S. 20 of Arbitration Act, 1940 was rejected accordingly.

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

----S. 20---Application to file in Court arbitration agreement---Allegation of fraud---Question as to whether allegation of fraud was sufficient for court to refuse reference to arbitration---Bare and unsubstantiated allegations of fraud made by a party in order to resist a reference to arbitration had to be discouraged by court---Every allegation imputing some sort of dishonesty or fraud would not be "sufficient cause" to refuse reference to arbitration---Only in cases where serious allegations of fraud were made against a party or an arbitration agreement in a criminal complaint, and such a party was charged with fraud and desirous that the matter should be tried in an open court, that the court could decline to refer a dispute which was also the subject matter of the criminal charge to arbitration---Simple allegations of fraud or even the filing of a criminal complaint without the framing of a charge by a court of competent jurisdiction, could not be held to be 'sufficient cause' for refusing a reference to arbitration.

Haji Soomar Haji Hajjan v. Muhammad Amin Muhammad Bashir Ltd. 1981 SCMR 129; Sir E. Haroon Jaffar and Sons Ltd. v. Haji E. Dossa and Sons PLD 1956 Sindh 4; Aswan Tentage and Canvas Mills Limited v. M.A. Razzaq and Company 1993 MLD 243; Syed Muddasar Shah v. Managing Director, N.-W.F.P. Forest Development Corporation 1999 MLD 736; Government of Sindh v. Tausif Ali Khan 2003 CLC 180; Nilofar Saqib v. Siaban Builders and Developers 2011 CLC 157 = 2011 CLD 341; Abdul Kadir Shamsuddin Bubre v. Madhav Prabhakar AIR 1962 SC 406 and Russel v. Russel (1880) LR 14 Ch D 471 ref.

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

----S. 3 & First Sched. Para 1---Appointment of arbitrators by court---Agreement between parties silent as to number of arbitrators---Paragraph 1 of the First Sched. to the Arbitration Act, 1940 ("the Act") provided that unless otherwise expressly provided, the reference shall be to a sole Arbitrator---Perusal of the arbitration agreement, in the present case, showed that the same was silent as to the number of Arbitrators who were to adjudicate upon dispute between the parties to the said agreement---In terms of S.3 read with Para.1 of the First Sched. to the Act, the reference, therefore, was to be made to a sole Arbitrator---Consequently, the impugned order of the civil court whereby the matter in dispute between the parties to the agreement had been referred to a two member Arbitral Tribunal, was not sustainable---High Court modified the order of the civil court and appointed a sole arbitrator with the direction that the arbitrator shall fix his own fees, which shall be paid by the parties to the arbitration agreement in equal proportion---Appeal was dismissed accordingly.

Mujtaba Hussain Siddiqui v. Sultan Ahmad 2005 YLR 2709; Government of Sindh v. Tausif Ali Khan 2003 CLC 180 and Mohammad Jamil v. Iqbal Ahmad PLD 1977 Kar. 886 ref.

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

----S. 39---Appeal filed before the High Court---Powers of the High Court---Scope---Since an appeal under S.39 of the Arbitration Act, 1940 was a continuation of the proceedings before the Trial Court, the appellate Court (High Court) had ample power to pass an order which the Trial Court could have passed or ought to have passed---Appellate Court while hearing an appeal exercised the same jurisdiction which was vested in the Trial Court, and the lis became open without any restriction placed by the order or judgment appealed against.

Khurram Mahmood Qaureshi for Appellant.

Rizwan Shabbir and Asim Shafi for Respondents.

Abdul Ahad Memon, Deputy Director EOBI.

P L D 2018 Islamabad 127

Before Miangul Hassan Aurangzeb, J

Dr. FARZANA BARI---Petitioner

Versus

MINISTRY OF LAW, JUSTICE AND HUMAN RIGHTS through Secretary and 3 others---Respondents

Writ Petition No.3766 of 2016, decided on 8th February, 2018.

(a) Constitution of Pakistan---

----Art. 199---"Writs of habeas corpus" and "quo warranto" distinguished from Writs of mandamus, certiorari and prohibition---Writs of habeas corpus and quo warranto stood on a different footing from other writs like writs of mandamus, certiorari and prohibition---Insofar as writs of mandamus, certiorari and prohibition were concerned, it was necessary that the right sought to be enforced should ordinarily be a personal or individual right of the individual petitioner---Said rule had been relaxed or modified in case of writs of habeas corpus and quo warranto---So far as the writ of quo warranto was concerned, any member of the public could sue if he had no private interest to serve and that it was for the public advantage---Petitioner need not be an aggrieved person to maintain a writ of quo warranto.

Hafiz Hamdullah v. Saifullah Khan PLD 2007 SC 52 and Dr. Azim-ur-Rehman Meo v. Government of Sindh 2004 SCMR 1299 ref.

(b) Constitution of Pakistan---

----Art. 199---Writ of quo warranto---Appointment of Chairperson of a statutory body challenged by an unsuccessful candidate for the post through a Constitutional petition before the High Court---Maintainability---Where there were any violations of rules or statutes in making the appointment of the Chairperson of a statutory body, any body could point out such illegalities and approach the Court for the issuance of writ of quo warranto.

Nazar Aslam v. Federal Government and 6 others 2013 PLC (C.S.) 974; M.U.A. Khan v. Rana Muhammad Sultan PLD 1974 SC 228; Al-Jahad Trust through Raees-ul-Mujahidin Habibul Wahabul Khairi v. Federation of Pakistan PLD 1996 SC 324; Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Captain Retired Muhammad Naseem Ejazi v. Province of Punjab 2000 SCMR 1720 ref.

Mudassar Hassan Rana v. The Federal Government 2017 PLC (C.S.) 1342; Muhammad Shahid Akram v. Government of Punjab 2016 PLC (C.S.) 1335, and Barrister Sardar Muhammad v. Federation of Pakistan 2013 PLC (C.S.), 625 dissesnted from.

(c) National Commission on the Status of Women Act (VIII of 2012)---

----S. 4---Chairperson of the National Commission on the Status of Women ("the Commission"), appointment of---Procedural irregularities in appointment---Incumbent Chairperson of the Commission after completing her three-year term was reappointed to the same post by way of impugned notification; held, that credentials of the candidates for the post were scrutinized by the concerned Ministry, which had devised a grading system where marks were allocated to each candidate under different heads---Section 4 of the National Commission on the Status of Women Act, 2012 ("the Act") only required the concerned Ministry to submit the list of suitable persons before the Prime Minister and Leader of the Opposition after proper scrutiny---Law did not require the concerned Ministry to give grades or marks to the candidates, therefore, any such grading or marks given to the candidates by the concerned Ministry was an exercise not required by the statute---Summary prepared by the concerned Ministry containing names of candidates was subsequently lost in the Prime Minister's office, thus, the Prime Minister constituted a seven-member committee to immediately resubmit the summary or initiate a fresh summary---Said seven-member committee changed the criteria originally devised by the concerned Ministry for determining the suitability of the candidates, and on the basis of the changed criteria/grading formula, re-assessed the candidates---Names suggested by the said committee were with a recommendation to the Prime Minister to consider the nominees, in order of ranking, whereas those forwarded previously by the concerned Ministry contained no such recommendation---Even otherwise S.4 of the Act did not empower the Prime Minister to constitute a committee comprising of his chosen persons to make recommendations for the appointment of the Chairperson of the Commission, therefore, the proceedings of the seven-member committee culminating in the recommendations for the appointment of the incumbent Chairperson, were coram non judice and void ab-initio---Prime Minister instead of considering and applying his mind to the list of suitable persons along with their qualifications, experience and CVs sent by the concerned Ministry, and then carrying out meaningful consultation with the Leader of the Opposition so as to select three names out of the said list for onward submission to the Parliamentary Committee, decided to constitute a seven-member committee of his own choosing and referred the matter back to the concerned Ministry to resubmit a summary with the recommendations of the said committee---Consultative process between the Prime Minister and the Leader of the Opposition contemplated under S.4 (2) of the Act could not be held to be meaningful or purposeful when the Prime Minister's mind was impregnated with the recommendations of the seven-member committee---Furthermore the notification for the constitution of the seven-member committee showed that it had been constituted by the Prime Minister for making recommendations for the appointment of Members of the Commission and not the Chairperson---Appointment of incumbent Chairperson of the Commission was set-aside by the High Court in circumstances with the directions that in the matter of appointment of the Chairperson of the Commission the Prime Minister shall take into consideration the concerned Ministry's earlier summary and the accompanying material in carrying out the consultative process with the Leader of the Opposition as envisaged by S. 4(2) of the Act; that all acts performed and decisions taken by the incumbent Chairperson were saved under the de facto doctrine, and that the incumbent Chairperson should be considered along with the other contestants already found suitable by the concerned Ministry for the position of the Chairperson of the Commission---Constitutional petition was allowed accordingly.

(d) Constitution of Pakistan---

----Art. 199---Writ of quo warranto---Scope and pre-requisites---Writ of quo warranto was issued in a case to determine the right of a person holding an office and directing him to disclose under what authority he was holding that office---Purpose of the writ of quo warranto was to ensure that a public office was occupied by an authorized person only---Two conditions which were essential for the issuance of a writ of quo warranto were that the appointment under challenge must be to a public office; and that the said appointment should have been made without the authority of law or in other words contrary to the relevant statutory provisions---In order for a writ of quo warranto to be issued, the office in question must be held in contravention of law; a case of a simple irregularity would not attract quo warranto.

Dr. Kamal Hossain v. Muhammad Sirajul Islam PLD 1969 SC 42 and Muhammad Rafique v. Muhammad Parvaiz 2005 SCMR 1829 ref.

(e) Public office---

----Offices created under the Constitution or specific statutes were deemed to be "public offices".

(f) Interpretation of statutes---

----Provisions of an executive fiat could not override the provisions of the statute.

M. Shoiab Razzaq for Petitioner.

Afnan Karim Kundi, Addl. Attorney General, Salman Akram Raja and Asad Ullah Ladha for Respondent No.4.

P L D 2018 Islamabad 148

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

Mian MUHAMMAD NAWAZ SHARIF---Petitoiner

Versus

THE STATE through Chairman, NAB and another---Respondents

Writ Petition No.499 of 2018, heard on 8th February, 2018.

National Accountability Ordinance (XVIII of 1999)---

----S. 17(a)---Criminal Procedure Code (V of 1898), S.353---Qanun-e-Shahadat (10 of 1984), Art.164---Constitution of Pakistan, Art.10-A---Recording of evidence through video link---Fair trial, right of---Petitioners were accused facing trial and they contended that their right to fair trial would be compromised if prosecution witnesses were examined in absence of their authorized attorney/counsel---Validity---Every accused had a right to a fiar trial and the same could not be denied; it was in consonance with the "right to a fair trial" to allow access to authorized attorney/counsel or representative of accused persons so that prosecution witnesses would be examined and their testimonies were recorded in presence of the latter---High Court directed the High Commissioner of Pakistn of the concerned country to allow an authorized attorney/counsel or representative of accused persons to attend proceedings as an observer when prosecution witnesses in question were examined on video link/skype etc. pursuant to order passed by Trial Court---Constitutional petition was allowed in circumstances.

Saad M. Hashmi and Muhammad Amjad Pervaiz for Petitioners.

Sardar Muzaffar Ali Khan, ADPG, NAB, Muhammad Afzal Qureshi, Special Prosecutor, NAB for Respondents.

P L D 2018 Islamabad 150

Before Miangul Hassan Aurangzeb, J

Messrs S.I.S. CORPORATION (PVT) LTD.---Petitioner

Versus

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

Writ Petition No.4650 of 2016, decided on 29th September, 2017.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternate and efficacious remedy---Scope---Where an alternative and equally efficacious remedy is available to a litigant, he should pursue that remedy and may not invoke special jurisdiction of High Court of issuance of a prerogative writ---Where it is open to aggrieved petitioner to move another Court or a Tribunal for obtaining redress in manner provided by a statute, High Court normally does not entertain a petition under Art.199 of the Constitution and leaves the petitioner to resort to the machinery set up by the statute for redressal of his grievances---Question whether alternative remedy is equally efficacious or adequate or not is a question of fact to be decided in each case and onus lies on petitioner to show that it is not adequate---Existence of an alternative remedy is not an absolute bar to filing petition under Art.199 of the Constitution but it is a factor to be taken into consideration by High Court while entertaining a Constitutional petition.

Case-law referred.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Writ of mandamus, refusal of---Pre-conditions---To decline grant of mandamus by the High Court the remedy provided under statue to petitioner must be specific, adequate, equally convenient, beneficial and effective---Inadequacy and not the absence of alternative remedy determines as to whether a Constitutional petition was to entertained.

Case-law referred.

(c) Public Procurement Rules, 2004---

----R. 48---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Grievance Redressal Committee, non-forming of---Effect---Where there was no Grievance Redressal Committee constituted by procuring agency, when bidder's grievance had arisen, bidder could not be faulted for invoking jurisdiction of High Court under Art. 199 of the Constitution.

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

----Art. 95---Civil Procedure Code (V of 1908), O. XXIX, R.1---Power of attorney---Company incorporated abroad---Scope---When a company incorporated abroad, having a place of its business in Pakistan, has to invoke jurisdiction of Court in Pakistan on an emergent basis, in such circumstances, asking such foreign entity to have a power of attorney or a Board resolution notarized and attested in foreign country and then file such document along with petition or suit instituted in Pakistan would be unreasonable and inequitable---As long as the pleadings showed that legal proceedings are being instituted with proper authorization/authority and that during proceedings such authorization/authority, obtained prior to the institution of proceedings but notarized and consularized subsequently, is brought on record, such proceedings cannot be considered to have been wrongfully instituted.

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

----Art. 95---Power of attorney---Presumption---Power of attorney is to be construed strictly in accordance with its contents and nothing which was not expressly provided therein could be read into it---Power of attorney is not open to liberal interpretation---For a power of attorney to sustain presumption under Art. 95 of Qanun-e-Shahadat, 1984, execution of the same has to be authenticated by Pakistani Diplomatic Mission in the country where the power of attorney is executed.

Case-law referred.

(f) Public Procurement Rules, 2004---

----Rr.35, 36 & 48---Constitution of Pakistan, Art. 199---Constitutional petition---Aggrieved party---Scope---Petitioner was local agent of a foreign company which took part in bidding process---Non-impleading principal company---Petitioner was aggrieved of result of bidding and assailed the same before High Court in its Constitutional jurisdiction without impleading the principal foreign company as party to the petition---Plea raised by petitioner was that in the event the contract was awarded to foreign company, petitioner was to perform certain obligations under the contract---Validity---Petitioner could not be allowed to plead the case of foreign company which was one of the three bidders and which was not before the High Court as party to the lis---Plea raised by petitioner was far-fetched an idea to consider it as an aggrieved party---Petitioner was local agent of the foreign company and was not a 'bidder' and therefore, had no locus standi to file constitutional petition---Foreign company did not challenge the award of marks in evaluation process carried out by the authorities, as the company was a necessary party to the Constitutional petition but was not impleaded as a party---Petitioner (agent of company) was not able to establish its claim for relief prayed for as the process culminating in award of highest marks to respondent in bid evaluation process conducted by Bid Evaluation Committee constituted by authorities was not illegal, irrational or procedurally improper---High Court in exercise of Constitutional jurisdiction declined to interfere in the bidding process---Constitutional petition was dismissed in circumstances.

Case-law referred.

(g) Tender---

----Judicial review---Scope---Administrative action---Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides---Terms of invitation to tender are not open to judicial scrutiny and Court cannot whittle down terms of tender unless they are wholly arbitrary, discriminatory or actuated by malice.

Case-law referred.

(h) Pleadings---

----Case beyond pleadings---Scope---Party cannot be permitted to make out a case beyond its pleadings.

(i) Constitution of Pakistan---

----Art. 199---Administrative action---Judicial review--- Role of High Court---Scope---High Court while exercising its powers of judicial review of administrative action, does not sit as Court of appeal but only reviews manner in which decision in question has arrived at---Judicial review is concerned with reviewing not merits of decision which is challenged in a petition but decision making process.

Case-law referred.

Asma Jahangir, Khurram M. Hashmi and Salman Afirdi for Petitioner.

Ms. Sitwat Jahangir, Assistant Attorney-General.

Babar Sattar for Respondnets Nos. 2 to 7.

Mansoor Hassan Khan, and Saqib Majeed for Respondent No.9.

Zulfiqar Khalid Muluka for Respondent No.10.

P L D 2018 Islamabad 182

Before Mohsin Akhtar Kayani, J

Sheikh AHSAN-UD-DIN and 2 others---Petitioners

Versus

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

Writ Petitions Nos.3791 of 2018, 4761 of 2013, 2228 of 2016, 1979, 1055 of 2017 and Crl. Org. No.176-W of 2017, decided on 9th March, 2018.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Locus standi of petitioner---"Aggrieved person"---Principles.

Following are the principles relating to an 'aggrieved person' who seeks to invoke the Constitutional jurisdiction of the High Court:

(i) Aggrieved person was a sine qua non for invoking writ jurisdiction of High Court and petitioner had to establish direct or indirect injury caused to him and substantial interest in the subject matter of the proceedings for invoking the jurisdiction.

(ii) "Aggrieved party" had not been defined in the Constitution and it depended upon circumstances of each case for invoking jurisdiction of (the High Court) under Article 199(2) of the Constitution.

(iii) Article 199(1)(a) of the Constitution, could be invoked by an aggrieved person, which denoted a person who had suffered a legal grievance, against whom the decision had been pronounced which had wrongly deprived him or wrongly refused to him something which he was legally entitled to.

(iv) Aggrieved person must claim a right with reference to subject matter of writ petition and the right had to be claimed as a Fundamental Right.

(v) Person invoking Constitutional jurisdiction under Article 199 of the Constitution had to establish that any of his legal or Fundamental Rights guaranteed under the Constitution had been violated and resulted into a legal loss.

(vi) Right which was the foundation of an application/petition under Article 199 of the Constitution was a personal and individual right and such right may be a statutory right or right recognized by law, whereas a person or a party could be said to be aggrieved when he was denied of a legal right by someone who had a legal duty to perform relating to that right.

(vii) Aggrieved person had to demonstrate that relief sought was one which he was legally entitled to seek under any provision of law, rules or regulations and no other forum or remedies were available to him.

(viii) Taxpayers had a right to inquire from the authorities as to how a right of life and liberty could be denied to them.

(ix) Burden of proof was upon the petitioner to demonstrate as to which of his Fundamental Rights had been infringed upon to maintain the petition under Article 199 of the Constitution.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199---Public interest litigation---Locus standi of petitioner---Question of public importance---Principles.

Following are the principles relating to 'locus standi' of petitioner and 'question of public importance' with reference to public interest litigation:

(i) In cases of public interest litigation, the rule on locus standi of petitioner had to be relaxed in order to include a person who bona fidely made an application for the violation of any Constitutional right of a determined class of persons, whose grievances had gone unnoticed and un-redressed.

(ii) While considering the guarantees of Fundamental Rights the approach of the court should not be narrow but elastic enough to march with the changing times and guided by the object for which Fundamental Rights were embodied in the Constitution.

(iii) Remedies under Articles 199 and 184(3) of the Constitution available in the High Courts and Supreme Court, respectively, were concurrent in nature and question of locus standi was relevant in the High Court but not in the Supreme Court.

(iv) Violation of any judgment of the superior Courts by the State organizations was considered to be substantially detrimental to the administration of justice and amounted to defying principles of independence of judiciary and trichotomy of powers and also constituted a violation of the due process clause under Article 10-A of the Constitution. In such circumstances anyone could agitate the matter before the Court.

(v) To safeguard public property the matter could be agitated if the same was of public importance and related to enforcement of any Fundamental Right.

(vi) Question of public importance had to be determined by the Court with reference to facts and circumstances of each case.

(vii) In case of public interest litigation, one could agitate the relief on his behalf and public against various functionaries, where they had failed to perform their duties relating to welfare of public at large which they were bound to perform under the law, and the petitioner's bona fide in that respect was also established.

(c) Supreme Court Judges (Leave, Pension and Privileges) Order (P.O No.2 of 1997)---

----Para. 25(1)(e) [as amended by the Supreme Court Judges (Leave, Pension and Privileges) (Amendment) Order (3 of 2016)]---Constitution of Pakistan , Art. 199---Security for former Chief Justice of the Supreme Court---Constitutional petition seeking provision of a 'bullet proof' vehicle and 'jammer vehicle' along with security personnel for former Chief Justice of the Supreme Court---Locus standi of petitioners---'Aggrieved persons' within the meaning of Art.199 of the Constitution---Scope---Petitioners, who were members of the Supreme Court Bar Association, did not fall within the definition of 'aggrieved persons' as there was no Fundamental Right expressed by them in their arguments nor the same was demonstrated on record as to how they could claim rights on behalf of former Chief Justice of the Supreme Court for providing him a bullet proof and jammer vehicles, especially when the former Chief Justice himself had not expressed such thought till date---Even otherwise, from the date of filing of present Constitutional petitions, not a single incident had been referred where any threat had been extended to the former Chief Justice---Internal reports of Ministry of Interior requisitioned by the High Court also showed that no threat was reported to the former Chief Justice---Furthermore provision for security at residences of former Judges of the Supreme Court had already been provided in terms of para.25(1)(e) of the Supreme Court Judges (Leave, Pension and Privileges) Order, 1997 [as amended by the Supreme Court Judges (Leave, Pension and Privileges) (Amendment) Order, 2016]---Report submitted by the Federal Government showing the number of security and other personnel deployed at residences of former Chief Justices and Judges of the Supreme Court showed that the applicable law had not been followed in letter and spirit---Petitioners had no locus standi to file present constitutional petitions as they were not aggrieved persons and neither any personal right or Fundamental Right of theirs had been infringed---Constitutional petitions were dismissed in circumstacnes.

(d) Constitution of Pakistan---

----Art. 207(3)(a)---Retired Judge of the Supreme Court---Restriction on legal practice---Scope---Such restriction/embargo was only with reference to professional practice/earning as an advocate after retirement, whereas there was no restriction on a former Judge of the Supreme Court (to bring before the courts) any issues pertaining to his personal rights.

(e) Administration of justice---

----Where law required doing things in a particular manner, such things had to be done in that manner and all other modes stood excluded.

(f) Supreme Court Judges (Leave, Pension and Privileges) Order (P.O No.2 of 1997)---

----Para. 25(1)(e) [as amended by the Supreme Court Judges (Leave, Pension and Privileges) (Amendment) Order (3 of 2016)]---Rules for the Use of Staff Cars, 1980, R. 24(2)(a)---Constitution of Pakistan, Art. 199---Security for former Chief Justice of the Supreme Court---"Vulnerable dignitary"---Scope---Constitutional petition seeking provision of a 'bullet proof' vehicle and 'jammer vehicle' along with security personnel for former Chief Justice of the Supreme Court---Maintainability---Plea of petitioners that former Chief Justice should be provided a protected (bullet proof) car as a 'vulnerable dignitary' as provided under R. 24(2)(a) of the Rules for the Use of Staff Cars, 1980; held, that unless any potential risk had been measured, calculated or reported by any law enforcement agencies, the case of any individual may not fall within the definition of "vulnerable dignitary"---Said requirement regarding risk factors was a question of fact which could not be adjudicated in Constitutional jurisdiction of the High Court---High Court observed that the Ministry of Interior was the competent authority to review all cases wherein protected vehicles had been provided to vulnerable dignitaries under the rules and they were bound to annually review all such cases after requisitioning report from the law enforcement agencies; that if the Ministry of Interior felt satisfied, it had to withdraw such facility otherwise it would cause loss to public exchequer and in such circumstances the concerned officials of the Ministry of Interior would be responsible to bear such loss---Constitutional petitions were dismissed in circumstacnes.

(g) Supreme Court Judges (Leave, Pension and Privileges) Order (P.O No.2 of 1997)---

----Preamble---Retired Judges of the Supreme Court---Privileges upon retirement---Former judges of the Supreme Court were entitled to only those rights and privileges as guaranteed under the Supreme Court Judges (Leave, Pension and Privileges) Order, 1997---Anything contrary to the said Order of 1997 had no legal effect---Prime Minister could not announce/pass any order concerning privileges for former Judges of the Supreme Court nor was any retired Judge entitled to receive benefits under such an order.

Petitioner No.1 in person.

Sh. Ahsan-ud-Din and Mohiuddin Amir Mughal for Petitioners Nos.2 and 3 (in W.P. No.4761 of 2013).

Petitioner-in-person in W.P. No.2228/2016, W.P. No.1055/ 2017, W.P. No.1979/2017, and Crl. Org. No.176-W-2017.

Haseeb Muhammad Ch., D.A.G. and Raja Khalid Mehmood, D.A.G. for Respondents.

Muhammad Arshad Ali Siddiqui, S.O.(G), Ministry of Law, Islamabad.

Muhammad Khalid, S.O. (C.P.C.) Cabinet Division, Islamabad.

Malik Usman Ahmad, S.O. (Security-I) Ministry of Interior, Islamabad.

P L D 2018 Islamabad 214

Before Athar Minallah, Aamer Farooq and Mohsin Akhtar Kayani, JJ

MUHAMMAD USMAN DAR---Petitioner

Versus

KHAWAJA MOHAMMAD ASIF and others---Respondents

Writ Petition No.2907 of 2017, decided on 26th April, 2018.

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

----Ss. 12(2) & 99(1)(f)---Constitution of Pakistan, Art.62(1)(f)---Qualification for membership of Majlis-e-Shoora (Parliament)---Test for ascertaining whether an error or non-disclosure by a candidate in a nomination paper would attract the consequences flowing from failing to meet the conditions prescribed under Art.62(1)(f) of the Constitution and S.99(1)(f) of the Representation of the People Act, 1976---Said test was not a test of strict liability because presence of intent was not precluded---Element of some design, intention, scheme, impropriety or benefit to be gained in non-disclosing or misrepresenting the prescribed information had to be present---True and forthright disclosure of material information prescribed under the law would not attract the mischief contemplated under Art.62(1)(f) of the Constitution---Likewise a non-disclosure sans an element of design, scheme or intent would also not make a candidature open to be questioned if it could be shown that it was a bona fide error and that there was no intention to gain any benefit by withholding such information from the constituents---Scrutiny for the purposes of Art.62(1)(f) of the Constitution was not based on moralistic or subjective criterion---Said condition did not contemplate perfection but in simple words required a person to be honest, reliable and trustworthy.

Mian Muhammad Nawaz Sharif v. Imran Ahmed Khan Niazi PLD 2018 SC 1; Mohammad Hanif Abbasi v. Imran Khan Niazi PLD 2018 SC 189 and Sheikh Muhammad Akram v. Abdul Ghafoor 2016 SCMR 733 ref.

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

----Ss. 12(2) & 99(1)(f)---Constitution of Pakistan, Art. 62(1)(f)---Qualification for membership of Majlis-e-Shoora (Parliament)---Member of the National Assembly---Non-disclosure of foreign full-time employment and salary received thereunder in nomination papers for contesting elections---Deliberate and willful non-disclosure---Conflict of interest---Respondent, who was a Member of the National Assembly and a Federal Minister, had executed, from time to time, three separate employment contracts with a company incorporated and governed under the laws of a foreign country---Pursuant to the said three employment contracts, the respondent was granted an "Iqama" i.e. residence visa for the foreign country---When respondent had signed and submitted the nomination papers for the General elections in the year 2013, his first employment contract was valid and subsisting, pursuant whereof salary or 'wage' per month was being paid by the company, incorporated and governed under the laws of another sovereign country---Reading of the express terms and language incorporated and used in the said employment contract unambiguously showed that it was for employment on a full time basis, but in his nomination papers the respondent had declared his occupation as 'business' only---Besides influencing the minds of the constituents, serious questions regarding conflict of interest would have been raised if disclosure regarding the nature of the employment and the terms and conditions had been made by the respondent in his nomination papers---Respondent could not show a single document to even remotely suggest that the income as salary received from the employer pursuant to his first employment contract had been declared in the nomination papers---Respondent had deliberately and wilfully not disclosed his status as an employee of the foreign company, nor receiving of the salary per month pursuant thereto, despite having been expressly put to challenge by the other contesting candidates---Validity of 'Iqama', working as an employee of the foreign company and receiving a substantial salary without being physically present, under the employment contract were some of the benefits gained by the respondent from the non-disclosure---Such non-disclosure was not a bona fide and honest omission and hence established lack of honesty---Respondent had also not disclosed a Bank account maintained in the foreign country in connection with his employment---Stance of the respondent and company that the employment contracts had been executed merely to fulfil the requirements of the laws of the foreign country, further weakened respondent's case, because the respondent was admitting that he had executed a false contract with the intent of deceiving the laws of another sovereign State---Such stance was taken by a person who had the privilege of being elected many times as Member of the Majlis-e-Shoora (Parliament) and had held the portfolios of Minister for Defense and subsequently Foreign Affairs as member of the Federal Cabinet---Non-disclosure of foreign employment as occupation and receiving a monthly salary, attracted the consequences flowing from the non-fulfilment of the conditions described under Art.62(1)(f) of the Constitution, read with S.99(1)(f) of the Representation of the People Act, 1976---High Court declared that the respondent was not qualified to contest the General Election of 2013 as he did not fulfil the conditions described under Art.62(1)(f) of the Constitution, read with S.99(1)(f) of the Representation of the People Act, 1976---High Court directed that copy of present judgment should be sent to the Election Commission for de-notifying the respondent as Member of the National Assembly---Constitutional petition was allowed accordingly.

(c) Contract---

----Interpretation---Principles---Contract had to be strictly and literally construed without deviating from or implying in a contract something inconsistent with its express terms---Stipulation not expressed in a contract could not be implied --- While construing a contract the words were to be taken in their literal, plain and ordinary meaning --- Intent had to be gathered from the document as a whole and all parts of the deed (contract) must be examined and read together.

House Building Finance Corporation v. Shahinshah Hamayun Corporation House Building Society 1992 SCMR 19 ref.

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

----S. 12(2)---Constitution of Pakistan, Art. 62(1)(f)---Income Tax Ordinance (XLIX of 2001), S. 111(4)---Qualification for membership of Majlis-e-Shoora (Parliament)---Non-disclosure of salary received from a company located in a foreign country in nomination papers for contesting elections---Immunity under S.111(4) of the Income Tax Ordinance, 2001---Scope---For the purposes of Art.62(1)(f) of the Constitution a candidate could not take a plea on the basis of S.111(4) of the Income Tax Ordinance, 2001 because the immunity thereunder was for tax purposes and could not be used to defeat the legal obligations under S.12 of the Representation of the People Act, 1976.

(e) Constitution of Pakistan ---

----Arts. 62 & 199(1)(b)(ii)---Constitutional jurisdiction of the High Court---Scope---Qualification of a candidate for membership of Majlis-e-Shoora (Parliament)---Such qualification could be challenged before the High Court under Art.199(1)(b)(ii) of the Constitution if it had been overlooked, illegally condoned or went unquestioned on the nomination day or before the Election Tribunal---Such jurisdiction could be exercised if the facts could be determined without recording of evidence and when intricate disputed questions were not involved.

Sikandar Bashir Mohmand, Advocate Supreme Court, Mustafa Aftab A. Sherpao, Advocate Supreme Court and Syed Zulqarnain Safdar for Petitioner.

Rashdeen Nawaz Kusuri, Advocate Supreme Court, Nadeem Yousaf Rana, Assad Ullah Waghra and Ch. Najam ul Hassan for Respondents.

P L D 2018 Islamabad 243

Before Athar Minallah, J

CM PAK LIMITED---Appellant'

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY---Respondent

F.A.O. No.42 of 2016, decided on 26th February, 2018.

(a) Interpretation of statutes---

----Redundancy, principle of---Scope---In order to discover intention of legislature, statute is to be read as a whole---Provision which is being interpreted has to be compared with other parts of statute---If language is clear and meaning is plain then court is required to give effect to legislative intent regardless of consequences---Redundancy cannot be attributed to legislature---Every part and word of statute has to be given effect--- Interpretation which renders any part of statute redundant, has to be avoided.

(b) Pakistan Telecommunication Reorganization Act (XVII of 1996)---

----Ss. 7, 8, 23(2)(c)(ii) & 54(3)---Cellular service, suspension of---Law and order situation---Preconditions---Federal Government, powers of---Appellants were license holders to provide cellular services who were aggrieved of order passed by Pakistan Telecommunication Authority to suspend services on grounds of law and order situation---Validity---Pakistan Telecommunication Authority was not vested with power under S.54(2) of Pakistan Telecommunication Reorganization Act, 1996 to cause suspension of mobile cellular service---Such provision could only be invoked in eventualities described therein, i.e., (i) war or (ii) hostilities against Pakistan by any foreign power or (iii) internal aggression or (iv) defense or security of Pakistan---Apprehensions relating to public safety, law and order or happening of an untoward incident, could not attract S.54(2) of Pakistan Telecommunication Reorganization Act, 1996---High Court set aside actions, orders and directives issued by Federal Government or Pakistan Telecommunication Authority as same were inconsistent with provisions of S.54(3) of Pakistan Telecommunication Reorganization Act, 1996 which were illegal, ultra vires and without lawful authority and jurisdiction---Federal Government or Pakistan Telecommunication Authority was not vested with power or jurisdiction to suspend or cause suspension of mobile cellular services or operations on grounds of national security except as provided under S.54(3) of Pakistan Telecommunication Reorganization Act, 1996---Appeal was dismissed in circumstances.

Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872; Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995; Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086 and Mustafa Impex,Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 ref.

Mian Shafaqat Jan, Umer Ijaz Gillani Ibrar Bashir and Hadiya Aziz for Petitioner.

Barrister Munawar Iqbal Duggal, for PTA and Israr ul Haq, Assistant Attorney General for Respondent.

P L D 2018 Islamabad 251

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

INAM-UL-RAHIEM---Petitioner

Versus

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

Writ Petition No.50 of 2014, decided on 8th February, 2018.

(a) Criminal trial---

----Absconder---Entitlement to relief---Scope---Person who is fugitive from law and who does not surrender to process of justice is neither entitled to any relief nor can a power of attorney executed by him in favour of a counsel can be accepted, except under exceptional circumstances.

Hayat Bakhsh and others v. The State PLD 1981 SC 265; Chan Shah v. The Crown PLD 1956 FC 43; Mohtarma Benazir Bhutto, M.N.A. Leader of the Oppostion Bilawal House, Karachi v. The State through Chief Ehtesab Commissioner 1999 SCMR 1619 and The State through National Accountability Bureau, Islamabad v. Haji Nasim-ur-Rehman PLD 2005 SC 270 rel.

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

----Ss. 5(m) & 18(c)---Ex-Army Chief and President of Pakistan---Initiation of inquiry/investigation---Grievance of petitioner was that National Accountability Bureau declined to initiate inquiry/ investigation against ex-Army Chief who also remained the President of Pakistan---Validity---Member of Armed Forces who had been President of Pakistan could not claim immunity or exemption from being subjected to National Accountability Ordinance, 1999---Member of Armed Forces, after retirement or resignation was also exposed to being proceeded against under National Accountability Ordinance, 1999, as immunity in such eventuality had come to an end---Any interpretation otherwise would render S.5(m) (i) and (vi) of National Accountability Ordinance, 1999, as redundant---National Accountability Bureau was vested with power and jurisdiction to consider complaint of petitioner and after such consideration if it was of the opinion that an offence under National Accountability Ordinance, 1999, was prima facie made out, then it was its duty to proceed to inquire, investigate and take all other steps mandated under National Accountability Ordinance, 1999---Across the board accountability was an onerous statutory obligation of National Accountability Bureau under the mandate of National Accountability Ordinance, 1999---Public trust and confidence was hallmark of effective and result oriented accountability---Bureau was to consider every information or complaint laid before it by a citizen and then to fulfil its statutory obligations by proceeding under National Accountability Ordinance, 1999, in a fair and transparent manner without fear and favour---Constitutional petition was disposed of accordingly.

Abdul Aziz Memon and others v. The State and others PLD 2013 SC 594 rel.

(c) Interpretation of statutes---

----Redundancy---Scope---Duty of Court---Redundancy cannot be attributed to legislature and every word and part of statute must be given effect---Courts always presume that every word and expression used by legislature has a purpose and intent---Courts cannot assume role of legislature by addition or substitution of words in a statute.

Laiq Khan Swati along with Petitioner for Petitioner.

Raza Bashir, Senior Prosecutor, NAB for Respondents.

P L D 2018 Islamabad 258

Before Athar Minallah and Miangul Hassan Aurangzeb JJ

MUHAMMAD SHAHID---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Government of Pakistan, Islamabad and another---Respondents

I.C.A. No.359 of 2016 in W.P. No.1611 of 2016, decided on 17th May, 2018.

(a) Extradition Act (XXI of 1972) ---

----Ss. 4 & 8---Extradition proceedings---Non-treaty State---Order of Magisterial enquiry---Government of foreign country (United Kingdom), made a request to Pakistan for the appellant's extradition for his trial on the charge of murdering eight persons in the foreign country---Appellant was arrested in Pakistan, and the enquiry Magistrate found that there was a prima facie case against the appellant warranting his extradition to the foreign country under the provisions of the Extradition Act, 1972---Appellant challenged said order by way of Constitutional petition before the High Court, which was dismissed---Held, that an extradition treaty had not been executed between Pakistan and the foreign country in question (United Kingdom)---When there was no extradition treaty between Pakistan and the foreign State, the provisions of the Extradition Act, 1972 could be made applicable for the return of persons to such a non-treaty State provided the requirements of S. 4 of the Extradition Act, 1972 were fulfilled---In the present case, the enquiry Magistrate requested the Ministry of Interior to issue a notification under S. 4 of the Extradition Act, 1972 along with the nomination of an enquiry Magistrate to conduct an enquiry under S. 7 of the said Act---Ministry of Interior did issue a notification directing that the provisions of the said Act shall have effect in relation to the foreign country with respect to the extradition of the appellant who was wanted on charges of multiple murders---Although the enquiry Magistrate was appointed three days prior to the issuance of the notification under S. 4, but this by itself did not render the entire proceedings before the enquiry Magistrate, coram non judice or unlawful---At best, this was an irregularity which stood cured when the notification under S. 4 was issued---Number of documents were exhibited in the proceedings before the enquiry Magistrate, including the statement of the investigating officer of the case---In said statement, the appellant had been specifically implicated for conspiracy to commit arson with intent to endanger life and murder of eight persons---Investigating officer had also made mention of a confession made by the appellant to a woman about his involvement in the said offence---Additionally the appellant was also implicated by a witness in the case---Said statements were enough to show a prima facie case of the appellant's involvement in the offence that he was charged with in the foreign country---Constitutional petition filed by the appellant against his extradition had been rightly dismissed---Intra court appeal was dismissed accordingly.

(b) Extradition Act (XXI of 1972)---

----Ss. 4 & 7---Extradition proceedings---Non-treaty State---Order of Magisterial enquiry---Extradition of a person in Pakistan to a foreign State (whether or not an extradition treaty had been executed between Pakistan and such a State) could not take place outside the provisions of the Extradition Act, 1972 which were required to be strictly construed---Provisions of the Extradition Act, 1972 could be made applicable for the extradition of a person in Pakistan to a non-treaty State only after a notification in terms of S. 4 of the said Act---Neither could the Federal Government issue an order to a Magistrate of First Class to enquire into the case under S.7 nor could such a Magistrate summon or arrest a fugitive offender, without there being a notification under S. 4 of the Extradition Act, 1972---Where no notification in terms of S. 4 had been issued by the Federal Government, any proceedings taken with respect to the extradition of a person to a non-treaty State by an enquiry Magistrate nominated by the Federal Government in terms of S. 7, would be coram non judice and without lawful authority.

Ahtabar Gul and another v. The State and another PLD 2014 Pesh. 10 and Mohammad Asim Malik v. Anwar Jalil PLD 1989 Lah. 279 ref.

(c) Constitution of Pakistan---

----Art. 15---Extradition Act (XXI of 1972), Ss. 5 & 6---Freedom of movement, etc.---Scope---Fugitive---Extradition proceedings---Article 15 of the Constitution was never intended to afford protection against extradition to citizens who were accused of serious crimes in other (foreign) countries.

Nasrullah Khan Henjra v. Government of Pakistan, Ministry of Interior and Narcotics Control, Islamabad PLD 1994 SC 23 ref.

(d) Constitution of Pakistan---

----Art. 199---Writ of certiorari, issuance of---Scope---(Writ of) certiorari was only available to quash a decision for an error of law if the error appeared on the face of the record---Certiorari would also be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acted without jurisdiction or in excess of it, or failed to exercise it---Certiorari would also be issued when a Court or a Tribunal acted illegally in exercise of its undoubted jurisdiction, as when it decided without giving an opportunity of hearing to the parties to be heard, or violated the principles of natural justice---Court issuing a writ of certiorari acted in exercise of a supervisory and not appellate jurisdiction---One consequence of such jurisdiction was that the High Court would not review the findings of fact reached by the inferior Court or a Tribunal, even if an alternative or a different view was possible.

Malik Qamar Afzal and Barrister Masroor Shah for Appellant.

Khawaja Muhammad Imtiaz, Deputy Attorney General for Respondent No.1.

P L D 2018 Islamabad 274

Before Miangul Hassan Aurangzeb, J

Prof. JAWAID MOHSIN MALIK and 7 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Federal Education and Professional Training, Islamabad and 4 others---Respondents

Writ Petition No.3718 of 2017, decided on 9th April, 2018.

Federal Supervision of Curricula, Textbooks, Maintenance of Standards of Education Act (X of 1976)---

----S. 3---National Book Foundation Act (XIX of 1972), S. 6---Textbooks, development of---Responsibility---Petitioners were authors of National Book Foundation who assailed tender notice/advertisement published by Federal Government inviting applications from publishers for their pre-qualifications for development of textbooks---Plea raised by petitioners was that it was jurisdiction of the National Book Foundation to get textbooks published---Validity---Responsibility for preparation of curricula and manuscripts of textbooks was with Curriculum Wing and same was under administrative control of Federal Government and did not have a legal personality of its own---National Book Foundation was not prevented from participating in competitive process in response to tender notice---National Book Foundation was not petitioner before High Court and petitioners were affiliated with National Book Foundation who had authored textbooks as per old curriculum---Neither National Book Foundation nor petitioners participated in competitive process in response to tender notice therefore, they did not have locus standi to challenge the same---Neither National Book Foundation Act, 1972 nor Federal Supervision of Curricula, Textbooks, Maintenance of Standards of Education Act, 1976 were Provincial statutes to extent of their applicability to Islamabad Capital Territory therefore, power to issue tender notice in question did not vest in Chief Commissioner Islamabad Capital Territory---Curriculum Wing was competent to prepare or caused to prepare curricula and manuscripts of textbooks under S. 3(2)(a) of Federal Supervision of Curricula, Textbooks, Maintenance of Standards of Education Act, 1976---High Court declined to interfere in tender notice in question---Constitutional petition was dismissed in circumstances.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary, Finance and others PLD 2016 SC 808; Ahmad Nawaz Shah v. Chairman Central Board of Revenue and others 2002 SCMR 560 and Karamat Ali and others v. Federation of Pakistan through Secrertary, Ministry of Interior and others PLD 2018 Sindh 8 ref.

G.M. Chaudhary for Petitioners.

Afnan Karim Kundi, Additional-Attorney General and Ch. Kamil Hayat and Hassan Javed for Federation/Respondents.

Rehan Seerat for Respondent No.5.

P L D 2018 Islamabad 285

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

ARY MEDIA COMMUNICATIONS---Applicant

Versus

GOVERNMENT OF PAKISTAN through Secretary Cabinet Division, Islamabad and 4 others---Respondents

I.C.A. No.234 in W.P. No.4098 of 2018, decided on 23rd May, 2018.

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

----Ss, 4, 19(5), 26, 27 & 39---Constitution of Pakistan, Arts. 2A, 19 & 31---Functions of the Pakistan Electronic Media Regulatory Authorty ("PEMRA")---Freedom of speech---Islamic Way of Life---Regulations of electronic media by PEMRA---Code of Conduct for Electronic Media issued by PEMRA---Obligation and power of PEMRA to ensure maintenance of principles of Islamic Way of Life and moral decency in broadcasts by electronic media---Scope---Comprehensive regulatory network existed under the umbrella of Pakistan Electronic Media Regulatory Authority as well as the Council of Complaints to ensure that concept of the Islamic Way of Life and maintenance of moral standards as enshirined in the Objectives Resolution as well as Arts.19 & 31 of the Constitution were duly protected and adhered to---Principles laid down in the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 as well as the Rules and Regulations and Licences thereunder were primarily for ensuring adherence to the Islamic Way of Life and concept of decency in society---Under the law, vast powers were provided to PEMRA to take action against any licensee which violated terms of its licence, Rules or Regulations framed under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 as well as directives issued by PEMRA.

2018 SCMR 211; PLD 2016 Isl. 53; 2017 YLR 1195; 2003 YLR 1234; Guoranja Mohan Sikdar v. Controller of Import and Export PLD 1970 SC 158; Shabnam Irshad Ahmed v. Muhammad Munir 2017 PLC(C.S,) 1263 and Independence Media Corporation Pvt. Ltd. v. PEMRA PLD 2017 Sindh 2009 ref.

The State v. Zia ur Rehman PLD 1973 SC 49; Muqaddimah by Ibn-e-Khaldun; Dossani Travels Pvt. Ltd. and others v. Messers Travels Shop Pvt. Ltd. and others PLD 2014 SC 1; Messrs Dewan Petroleum Pvt. Ltd. v. Executive Director, SECP and another 2017 CLD 1237 and Shabnam Arshad Ahmed v. Muhammad Munir 2017 PLC(C.S.)1263 rel.

Syed Ali Zafar for Appellant (in ICA No.235 of 2018).

Faisal Fareed Hussain and Ehtasham Alam for the Appellants (in ICA No.234 of 2018).

P L D 2018 Islamabad 300

Before Aamer Farooq, J

Dr. FAROOQ SATTAR---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Writ Petition No.1187 of 2018, decided on 11th June, 2018.

(a) Elections Act (XXXIII of 2017)---

----Ss. 4 & 209---Election Rules, 2017, Rr. 157 & 158---Party Head, removal of---Procedure---Petitioner was party Head of a political party who was aggrieved of notification issued by Election Commisison of Pakistan notifying removal of petitioner a party Head---Validity---Meeting was convened and same was attended by 35/33 members of Central Coordination Committee out of whom 27 members voted for removal of petitioner---Such act was within mandate of Constitution of the party especially when there was nothing contrary to the same---Requisite number of members required for removal of the Convener attended the meeting and respondents had admitted that notice of meeting was given and same was attended by Members of Central Coordination Committee who passed resolution removing the petitioner as party Head---Election Commisison of Pakistan, after satisfying itself and examining referred documents righly concluded that convener of the political party was changed---Political party was a voluntary group with its Constitution as contract inter se members---Position of a political party was similar to a company which was managed by Board of Directors---While adjudicating petition under Art.199 of the Constitution against decision passed by executive authority or quasi-judicial body, High Court generally would not interfere in findings of facts of the case---High Court, in circumstances, decline to substitute its opinion on question of fact with opinion formed by election authority or a Tribunal of competent jurisdiction---Constitutional petition was dismissed in circumstances.

Lt. Gen. (R) Salauddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 and Karachi Shipyard and Engineering Works Ltd. v. Abdul Gaffar 1993 SCMR 511 rel.

Sumaira Malik v. Election Commission of Pakistan and others 2018 YLR 104; Dr. Raja Aamer Zaman v. Omar Ayub and others 2015 SCMR 1303; Sardar Bahadur Khan Bangulzai and others v. Sardar Attaullah Khan Mengal and another 1999 SCMR 1921; Awais Younus v. Federation of Pakistan PLD 2016 Lah. 1; Lt. Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735; Muhammad Aslam Bhootani v. Deputy Speaker, Balochistan Provincial Assembly and 2 others PLD 2013 Bal. 66; Samar Singh v. Kedar Nath Alias K.N. Singh AIR 1987 SC 1926; Muhammad Hanif Abbasi v. Imran Khan Niazi and others (C.P. No. 35 of 2016); Syed Khurram Abbas Bukhari and others v. Election Commission of Pakistan and others PLD 2017 Lah. 470; Muhammad Ashraf v. Election Commission and others 2017 MLD 1209; Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663; California Democratic Party ET Al. v. Jones, Secretary of State of California, ET Al.(sic) Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 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; United Liner Agencies of Pakistan (Pvt.) Ltd., Karachi and 4 others v. Miss Mahenau Agha and 8 others 2003 SCMR 132; Messrs Kingsway Capital LLP and another v. Murree Brewery Co. Ltd. and 10 others 2017 CLD 587; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Pak Turk Enterprises (Pvt.) Ltd. v. Turk Hava Yollari 2015 CLC 1; Nadeem Ahmed, Advocate and others v. Federation of Pakistan and others PLD 2010 SC 1165; Muhammad Imran v. Pakistan Electronic Media Regulatory Authority 2005 CLC 880; Muhammad Hussain v. Additional Deputy Commissioner 1986 CLC 816; Dewan Cement Ltd. v. Federation of Pakistan 2013 PTD 446; Khawar M. Butt and another v. Abdullah H. Habib and 2 others 1985 MLD 1193; M/o IPC through Secretary and others v. Arbab Altaf Hussain and others 2014 SCMR 1573; Attaullah Mengal v. Chief Election Commissioner 1999 CLC 1460; Dr. M. Mohan Babu v. Chief Election Commissioner AIR 1999 AP 405; Watan Party v. Federation of Pakistan PLD 2012 SC 681; Kanhiya Lal Omar v. R.K, Trivedi AIR 1986 SC 111; Javed Akhtar v. Returning Officer 2004 YLR 1459; Pakistan Lawyer's Forum v. General Pervez Musharraf 2000 SCMR 897; Ahmed Khan v. Jewan PLD 2002 SC 655; Hakim Deen v. The State PLD 2006 AJK 43; M. Ijaz Chaudhry v. Mumtaz Tarar 2016 SCMR 1; Abdullah Malik v. Ministry of Information (PLD 2017 Lah. 273), Sabar Ali Sajid v. M. Maqsood PLD 2006 Lah.607; The Election Commissioner v. P. Kakkan (1971 ILR 2 Madras 80), Abbas Khaleeli v. Saifuddin Valika PLD 1969 Kar.692; Jahangir Mughal v. Karachi Gymkhana 2012 CLC 1829; Muhammad Fikree v. Fikree Development Corporation Limited 1992 MLD 668; Ram Parsad Somani v. The Bank of Rajasthan Limited (2002 (1) WLN 153 Rajasthan High Court); Karachi Shipyard and Engineering Words Ltd, v. Abdul Gaffar 1993 SCMR 511; The Election Commissioner v. P. Kakkan (1971 ILR 2 Madras 80), Abbas Khaleeli v. Saifuddin Valika PLD 1969 Kar. 692; Jahangir Mughal v. Karachi Gymkhana 2012 CLC 1829; Zulfiqar Ahmed Bhutta v. Federation of Pakistan C.Ps. Nos.37 to 45/2017; M/s Srinivasa Rice Mills v. Employees State Insurance Corporation (Appeal No.4774/2006); Election Commisisoner v. P. Kakkan (Writ Appeals Nos.327 and 345 of 1970);Baba (Pt) Nand Kishore Mishra and others v. Dinesh Chandra Tyagi and others [CS(OS) 745/2014; Sohail Butt v. DIG 2011 SCMR 698; Ahmed Fahim Mughal v. Muhammad Saleem Khan PLD 1990 Kar. 474 and Malik Ameer Haider Sangha and another v. Mrs. Sumaira Malik and others (Civil Petition No.3122/2017) ref.

(b) Administration of justice---

----What is not prohibited is permissible.

Masud Humayun v. FPSC 2016 PLC (CS) 1091 rel.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Role of High Court under Art.199 of the Constitution, while examining order/decision by executive authority or quasi-judicial body is to see whether there is any error of law or jurisdictional defect.

Babar Sattar and Ms. Zainab Janjua for Petitioner.

Dr. Muhammad Farogh Naseem, Dr. Muhammad Ali Saif, Imran Farooq, Irshad Ali and Malik Mujtaba Ahmed Addl. D.G. Election Commisison of Pakistan for Respondents.

P L D 2018 Islamabad 323

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

HAJJ ORGANIZERS ASSOCIATION OF PAKISTAN through Authorized Officer and 8 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Religious Affairs and Interfaith Harmony and 7 others---Respondents

Writ Petition No.875 of 2018, heard on 15th March, 2018.

(a) Constitution of Pakistan--

----Art. 199---Constitutional petition---Policy matter---Hajj quota, allocation of---Principle---Generally, Courts refrain from interfering in policy making domain of the Executive---Allocation of Hajj quota falls within the ambit of "policy making" authority of the Executive---Interference by High Court can only be justified if the policy suffers from illegality or it is based on mala fide.

(b) Constitution of Pakistan--

----Art. 199---Constitutional petition---Policy matter---Hajj quota, allocation of---Petitioners were existing and new private Hajj Group Organizations (HGOs) and they were aggrieved of allocation of quota for Hajj---Plea raised by authorities was that New Hajj Group Organisations (N-HGOs) were being assessed by a Committee which had been specifically constituted for such purpose---Validity---Arrangements of Hajj were time bound and petitioners who fell under the category of N-HGOs were justified in urging that their cases be processed at the earliest so that they could also benefit under Hajj Policy and Plan for year 2018---High Court directed that the Federal Government to formulate a policy and criteria in consultation with the Committee constituted by Supreme Court; that the Committee to formulate criteria for enrollment/registration of new applicants at HGOs; that Committee was to conclude its proceedings and forward prescribed criteria to relevant ministries of Federal Government, within three months; that concerned ministries of Federal Government to invite applications through publication in daily newspapers and the same would be processed according to the prescribed criteria, prerferably within three months from the last date fixed for submission of applications and that quota of 40% earmarked by the Committee for private HGOs would be distributed among old and new categories in a transparent manner and Ministry of Religious Affairs of Federal Government was to resolve disputes and grievances relating to allocation of quota inter se private Hajj Group Organizers by affording aggrieved persons an opportunity of hearing and through speaking orders---Constitutinal petition was disposed of accordingly.

Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963; The Federation of Pakistan through Ministry of Religious Affairs, Islamabad and others v. Muhammad Arif Idrees and others Civil Petitions Nos. 1270, 1308, 1309 of 2014; Hajj Organizers Association of Pakistan and others v. Federation of Pakistan, through Secretary M/o Religious Affairs and Interfaith Harmony, Islamabad and another Civil Petitions Nos. 1180, 1265 and 1297 of 2016; Hajj Organizers Association of Pakistan v. Messrs Kalf Ind/(Pvt. Ltd) and others Intra Court Appeals Nos.10 to 17 of 2017; Muhammad Arif Idrees and others v. Sohail Aamir and others 2017 SCMR 1379 and Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance and others PLD 2016 SC 808 ref.

Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt) Ltd. and others PLD 2014 SC 1 fol.

Abid S. Zuberi, Ayan Mustafa Memon, Saif Sohail Younas, Syed Javed Akbar Shah, Asghar Siddique, Malik Ghulam Sabir, Faiz Rasool, Raja Muqsit Nawaz, Mohammad Yasir, Salman Akram Raja, Faraaz Ansar, M. Nisar, Qazi Sheryar Iqbal, Hasan Rashid Qamar, Malik Waqar Mehmood Awan, Niaz Ullah Khan Niazi, Saadia Noreen Malik, M. Ikram Chaudhry, Mohammad Akram Gondal, Ch. Zubair Mehmood Gujjar, Hamood ur Rehman Awan, Qari Abdul Rasheed, Sardar Liaqat Hussain, Zeeshan Ali Khursheed, Mrs. Surriya Maryam Khaleeq, Shahzad Ali Rana and Riaz Hussain Azam Bopara, Dr. M. Aslam Khan and Ms. Yasmin Haider, Advocates/learned counsel for the Petitioners in their respective petitions.

Afnan Karim Kundi, Additional Attorney General, Arshad Kiayani, Deputy Attorney General, Shabbir Abbasi, Assistant Attorney General for Respondents.

Syed Farhan Shah for Respondent.

Mohammad Aftab, Addl. Secretary, M/o Religious Affairs for Respondent.

P L D 2018 Islamabad 341

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

Mst. MAROOF BEGUM AHMED and another---Appellant

Versus

IJAZ-UL-HAQ through Attorney and another---Respondents

R.F.A. No.138 of 2014, decided on 11th July, 2018.

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

---S. 12---Limitation Act (IX of 1908), S. 22 & Art. 113---Civil Procedure Code (V of 1908), O.I, Rr. 9 & 10---Suit for specific performance of agreement to sell---Substitution of new defendant---Limitation---Commencement of---Necessary party---Non-joinder of necessary party---Effect---Agreement to sell was executed through attorney and suit was filed against him without impleadment of owner of suit property---Plaintiff during pendency of suit filed an application for impleadment of owner of suit land which was accepted---Trial Court decreed the suit subject to payment of remaining sale consideration within a period of ten days---Contention of defendants was that suit being time barred was liable to be dismissed---Validity---When a wrong defendant was sued and a right defendant was afterwards added or substituted then suit would be deemed to have been instituted when application for impleadment was filed---If a necessary party was not impleaded then suit would be bad for non-joinder---Addition of such a party after the period of limitation would necessitate the dismissal of suit---Owner of a property who executed an agreement to sell her property or on whose behalf such an agreement was executed was a necessary party to a suit for specific performance---Newly added defendant was owner of suit property and was a necessary party---Said defendant should have been made a party to the suit when it was instituted---Plaintiff could not enforce his rights against substituted defendant by suing her attorney only---Plaintiff being dominus litis might choose the persons against whom he wished to litigate---Present suit was filed on 18-02-2003 and owner of suit property was substituted on 11.10.2007---Suit would be deemed to have been instituted on 11.10.2007 when application for impleadment of owner of suit property was moved---Present suit against substituted defendant was barred by time---Court was to decide the question of limitation first and thereafter proceed to decide the matter on merits---Court was bound to notice the question of limitation irrespective of the fact whether it was agitated or not---Time barred suit should be dismissed even if nobody had pointed out such lacuna---If proceedings brought before a Court were barred by time then court could not assume jurisdiction unless delay was condoned---Relief of specific performance to which plaintiff claimed to be entitled was subject to law of limitation---Vested rights had been created in favour of newly added defendant due to the expiry of limitation period for filing of a suit for specific performance---Three years limitation period had been provided for such suit---Agreement to sell in the present case was executed on 18.12.2002 and parties had fixed 18.03.2003 as the date for its performance---Limitation period for filing of a suit for specific performance of said agreement would come to an end on 18.02.2006---Plaintiff had filed an application for impleadment of owner of suit property/vendor as a party to the suit on 11.10.2007---Suit against the said defendant was time-barred---Nothing was on record that plaintiff was in a position to pay the entire balance sale consideration for the suit property on 18.03.2003---Plaintiff even before institution of suit did not issue any notice to the defendants requiring them to perform their obligation under the alleged agreement to sell---Plaintiff was not bona fide in filing the present suit and was not entitled for discretionary relief of specific performance---Impugned judgment and decree passed by the Trial Court were set aside---Plaintiff had paid an earnest sale price of suit land to the defendant on 18.12.2002---Defendant had not issued any notice to the plaintiff requiring to pay the balance sale consideration by 18-03-2003 or to put him on notice that the failure in payment of the balance sale consideration by the said date would result in the forfeiture of earnest money---Value of real estate had increased many folds---Defendant was to compensate the plaintiff by paying an amount equal to the prevalent value of quantity of gold which could be purchased with the said earnest money on 18-12-2002---Appeal was allowed accordingly.

Hayat v. Amir PLD 1982 SC 167; Waseem Haroon v. Abdul Shakoor Tabbani 2006 MLD 605; Muhammad Sami v. Additional District Judge, Sargodha 2007 SCMR 621; Commissioner of Income Tax, Companies Zone IV, Karachi v. Kakim Ali Zardari 2006 SCMR 170; Haji Ghulam Rasul v. Government of the Punjab 2003 SCMR 1815; Hakim Muhammad Buta v. Habib Ahmad PLD 1985 SC 153; Fazal Muhammad v. Nabi Bakhsh 1969 SCMR 531; Ahsan Ali v. District Judge PLD 1969 SC 167; Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 153; Chand Oil Mils v. Muhammaad Zakria and Co. PLD 1958 (W.P.) Kar. 510; Shahnawaz Shah v. Younis-ur-Rehman 2002 CLC 418; Muhammad Aslam v. Muhammad Haq 2002 CLC 1875; Dilawar Ali Khan v. Zohra Javaid 1997 CLC 152; National Insurance Corporation v. Kuwait National Petroleum Co. 1988 MLD 1024 and Haji Zahoor-ud-Din v. Khalid Latif (2016 MLD 1623 rel.

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

----O. I, R. 10---'Necessary party'---Scope---Owner of suit property, agreement to sell having been executed on her behalf, was a necessary party, as regards the suit for specific performance.

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

----S. 12---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of contract---Limitation, commencement of---Three years limitation period had been provided for a suit for specific performance of an agreement---Said limitation period was to commence from the date fixed for the performance of agreement or if no date was fixed then from the date when plaintiff had noticed that performance was refused.

(d) Limitation---

----Court was to decide the question of limitation first and thereafter proceed to decide the matter on merits---Court was bound to notice the question of limitation irrespective of the fact whether it was agitated or not---Time-barred suit was to be dismissed even if nobody had pointed out such lacuna---If proceedings brought before a Court were barred by time then court could not assume jurisdiction unless delay was condoned.

(e) Power-of-attorney---

----Attorney could not be held to be personally liable for the principal's debts unless there was specific provision to that effect in the power of attorney.

Zulfiqar Ali Abbasi, Usama Malik and Shahid Munir for Appellants.

Ch. Mushtaq Hussain for Respondent No.1.

P L D 2018 Islamabad 355

Before Aamer Farooq, J

MUHAMMAD IDREES and another---Petitioner

Versus

COLONEL JOSEPH EMMANUEL and others---Respondents

Writ Petitions Nos.1386 and 1385 of 2018, decided on 11th May, 2018.

(a) Diplomatic Immunities and Consular Privileges Act (IX of 1972)---

----Ss. 2(1), 3 & Sched.-I--- Vienna Convention on Diplomatic Relations, 1961---Diplomatic Immunity---Scope and extent---Articles of Vienna Convention on Diplomatic Relations, mentioned in Sched.-I to Diplomatic Immunities and Consular Privileges Act, 1972, have the force of law in Pakistan---Privileges and immunities, under S. 3 of Diplomatic Immunities and Consular Privileges Act, 1972 can be modified and even withdrawn by Federal Government---Diplomatic Agent is not to be arrested or detained and his 'person' is inviolable, who enjoys 'immunity' from criminal jurisdiction of receiving State as well as civil and administrative jurisdiction---Three exceptions existed; 'diplomatic agent' is not obliged to give evidence however, immunity of a 'diplomatic agent' is in respect of jurisdiction of receiving State and does not exempt him from jurisdiction of sending State---If there is a civil claim against him or he is to be tried for a criminal offence in receiving State, which is not possible due to immunity, he can still be tried in the sending State, i.e., country on whose behalf he is acting as 'diplomatic agent'---Immunity provided to 'diplomatic Agent' from jurisdiction, may be waived by sending State however, waiver must be express--- Immunity enjoyed by a 'diplomatic Agent' is also enjoyed by his family---Immunities and privileges are enjoyed by a person entitled to enjoy the same when he or she enters territory of receiving State to take up his/her post and if already in its territory from the moment when his appointment is notified to Ministry of Foreign Affairs or any such other Ministry, immunities and privileges end at the moment, the person leaves the country.

Dickinson v. Del Solar [1930] 1 K.B. 376; Empson v. Smith 1 Q.B. 426 (1996) and A.N. Qureshi v. Union of Soviet Socialist Republic PLD 1981 SC 377 ref.

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

----S. 3---Exit from Pakistan (Control) Rules, 2010, R. 2---Diplomatic Immunities and Consular Privileges Act (IX of 1972), Ss. 2(1), 3 & Sched.-I---Vienna Convention on Diplomatic Relations, 1961---Constitution of Pakistan, Art. 199---Constitutional petition---Diplomatic immunity---Criminal trial---Exit Control List---Petitioner was father of deceased who lost life in a car accident done by respondent who was a foreign citizen---Petitioner was aggrieved of not placing name of respondent in Exit Control List---Contention of authorities was that respondent was a 'Diplomatic Agent' and that he enjoyed diplomatic immunity---Validity---Immunity from trial and punishment was not absolute and was only with respect to courts of receiving State and 'diplomatic agent' could be tried for the offence in his country---No 'bar or immunity' existed regarding investigation of criminal offence---'Diplomatic Agent' could be interviewed by investigating agency in receiving State, however, immunity existed from arrest and detention---Diplomatic Agent was to be treated with dignity and these aspects had to be kept in view while conducting investigation of the matter---Courts generally refrained from entering domain of Executive and take decisions on its behalf---In exercise of jurisdiction under Art.199 of the Constitution, courts could examine validity of executive decisions on touchstone of accepted parameters---Federal Government, under provisions of Exit from Pakistan (Control) Rules, 2010 could place name of any person on Exit Control List on orders of the High Court---Matter, in the present case, was already pending before competent authority, i.e., Federal Government and it was just and proper that issue of placement of name of respondent in the Exist Control List be decided by it---High Court directed the Federal Government to decide application for placement of name of respondent on Exit Control List in accordance with law---Constitutional petition was disposed of accordingly.

A.N. Qureshi v. Union of Soviet Socialist Republic PLD 1981 SC 377; Prime Minister's Inspection Team, National Highway Authority v. Zaheer Mirza 2011 SCMR 371; Ghulam Muhammad v. United States Agency for International Development (US Aid) Mission, Islamabad and another 1986 SCMR 907 and Abdul Latif v. Inspector General Police, and others 1999 PCr.LJ 1357 ref.

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

----S. 2(1)(2)(3)---Exit from Pakistan (Control) Rules, 2010, R. 2---Exit Control List, placing of name---Scope---Use of words 'any person' in Exit from Pakistan (Control) Ordinance, 1981 and Exit from Pakistan (Control) Rules, 2010 means that it is not confined only to citizens/nationals of Pakistan but any person, who is within Pakistan and his case falls within parameters laid down in R. 2 of Exit from Pakistan (Control) Rules, 2010---Under Exit from Pakistan (Control) Rules, 2010, R. 2, name of a person cannot be placed in Exit Control List unless special grounds are furnished by relevant home departments.

Mirza Shahzad Akbar for Petitioner (in W.P.No.1386 of 2018).

Raja Khalid Mahmood Khan, DAG.

Malik Awais Haider, State Counsel.

Abrar Hashmi, D.G. (State Protocol), Ministry of Foreign Affairs and Khalid Mahmood, Inspector for Respondents.

Petitional in person (in W.P.No.1385 of 2018).

Raja Khalid Mahmood Khan, DAG, Malik Awais Haider, State Counsel Abrar Hashmi, D.G. (State Protocol), Ministry of Foreign Affairs and Khalid Mahmood, Inspector for Respondents (in W.P. No.1385 of 2018).

P L D 2018 Islamabad 372

Before Mohsin Akhtar Kayani, J

SHIFA INTERNATIONAL HOSPITALS LTD. and others---Appellants

Versus

Mst. HAJIRA BIBI and others---Respondents

Criminal Appeal No.176 of 2017, decided on 20th April, 2018.

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

----Ss. 2(c) & (e), 8 & 8-A---Pakistan Medical and Dental Council Ordinance (XXXII of 1962), S. 31(4)---Pakistan Medical and Dental Council Regulation, 2008, Reglns. 19 & 30---Complaint---Maintainability---Terms 'consumer' and 'services'---Scope---Appellant was a hospital and was aggrieved of complaint filed by patient under Islamabad Consumers Protection Act, 1995---Plea raised by appellant was that complaint before Trial Court was not maintainable and remedy had been provided under Pakistan Medical and Dental Council Ordinance, 1962---Validity---Where consumer under Islamabad Consumers Protection Act, 1995 availed medical services after paying consideration, as such the same fell within definition of 'consumer' as defined in S.2(c) of Islamabad Consumer Protection Act, 1995---Such 'services' provided by appellant fell within definition of S. 2(e) of Islamabad Consumer Protection Act, 1995---Only difference in both special laws i.e., Islamabad Consumer Protection Act, 1995 and Pakistan Medical and Dental Council Ordinance, 1962 as well as Pakistan Medical and Dental Council Regulation, 2008 was of compensation which could only be given under consumer law whereas Pakistan Medical and Dental Council laws were silent to that extent---Trial Court could entertain complaint of any consumer, if it had come to prima facie view that a case of medical negligence of any doctor came on record, then matter could be sent to Medical and Dental Council authorities for their opinion with time limitation---Pakistan Medical and Dental Council after adopting their own procedure could submit their report to Trial Court whereafter complaint under Islamabad Consumer Protection Act, 1995 could be processed for purpose of compensation---Complaint was maintainable in circumstances.

Dr. Shamshad Hussain Syed v. District Consumer Court, Lahore PLD 2010 Lah. 214 rel.

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

----Preamble--- Object, scope and purpose of the Act: To promote and protect interest of consumers and to protect society and individuals from exploitation---Such like enactments must be given purposive interpretation keeping in view basic intent of statute and without transgressing its objects and scope.

Muhammad Farooq Khan v. Excel-Labs and another PLD 2015 Isl. 81 rel.

(c) Interpretation of statutes---

----Special and general laws---Applicability---Special law has precedence over general law and when two special laws are inconsistent with any provision/situation, one which is later in time prevails over the earlier.

Muhammad Saleem v. The State and another 2002 PCr.LJ 216 rel.

(d) Interpretation of statutes---

----Two special laws--- Duty of court--- While interpreting two special laws, courts have to see other factors including object, purpose and policy of both statutes as well as intention of legislature in order to determine which of the two special laws prevail and is applicable.

Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 CLD 1198 rel.

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

----Ss. 8, 8-A & 10---Criminal Procedure Code (V of 1898), Ss.410, 417 & 439---Appeal against interlocutory order---Maintainability---Patient filed complaint against hospital for professional negligence---Hospital raised objection to maintainability of complaint but same was dismissed by Trial Court---Validity---All interim/interlocutory orders were not appealable as scheme of Islamabad Consumers Protection Act, 1995 was based on summary procedure for early determination of consumer complaint and true intent of legislature had to be applied in same manner---Appeal under S. 10 of Islamabad Consumers Protection Act, 1995 was only maintainable against order of authority which was final in its nature after conclusion of proceedings---Procedure under S.8 of Islamabad Consumers Protection Act, 1995 for disposal of complaint dealt with examination of complainant and concept of opportunity of being heard, described complete mechanism of determination of real issue---Prior to such procedure, every order was to be considered interlocutory which could not be challenged in appeal, otherwise mandate and intention of legislature would stand frustrated---Revisional powers to High Court were not provided under Islamabad Consumers Protection Act, 1995 which could cover such kind of eventuality---When legislature did not provide such provision to cover interim orders then intent was to be applied in strict manner---Appeal was dismissed in circumstances.

Zaheer Bashir Ansari for Appellants.

P L D 2018 Islamabad 379

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

MUHAMMAD AHMED KHAN and others---Appellants

Versus

Mst. NASHID ANUM SHAHID and others---Respondents

R.F.A. No.219 of 2016, decided on 11th July, 2018.

(a) Islamic law---

----Inheritance---Sunni fiqha---Order of succession---Sharers---Residuaries---Classes of residuaries---Conversion of sharers into residuaries---Principles.

Order of succession has been divided into three categories i.e. Zav-ul-Furuz, the Asabah and Zav-ul-Arham. First category is that of the sharers who are entitled to receive a fixed share in the prescribed order of preference and mode of succession, while second category i.e. Asabah are known as residuaries and they are those relatives who inherit what remains of the legacy/estate after shares of the sharers have been distributed; when there are no sharers, then the residuaries take the entire inheritance. In the absence of the residuaries, the residue after distribution of shares amongst the entitled sharers, again devolves upon the latter (sharers) in accordance with their prescribed shares. Third category of Zav-ul-Arham is that of distant kindred who are neither sharers nor residuaries of the deceased. Basis of inheritance is through Sabab i.e. marriage, for example husband and wife, Nasab and Wala. There are twelve sharers i.e. husband or wife as the case may be, father, mother, true grandfather, true grandmother, uterine brother, daughter, son's daughter, full/real sister, consanguine sister and uterine sister. Out of these sharers eight are expressly mentioned in the Holy Quran. Sharers who are converted into residuaries are father, true grandfather, mother, daughter, son's daughter, full sister and consanguine sister. General rules which determine the conversion of sharers into residuaries are, firstly, that a female sharer is excluded from inheriting as a sharer and is converted into a residuary by one or more male residuaries of the same degree and consanguine relationship to the deceased and secondly, that the father and true grandfather are converted into residuaries in default of any descendants of the class of sharers or residuaries; they inherit as residuaries in the absence of children. Some relationships, which are sharers under prescribed circumstances, may also become entitled to inherit as residuaries. Full or real sister inherits as a sharer in the absence of a full brother, daughter or son's daughter and if there are no other excluders. Full sister inherits as a residuary when there is a full brother or a daughter or son's daughter and no excluder. Four classes of residuaries exist: firstly, the offspring of the deceased such as son or daughter, secondly, the father and a true grandfather, thirdly, the offspring of the father of the deceased i.e. brothers and sisters and lastly, the offspring of the true grandfather i.e. paternal uncle and their male descendants. Fundamental principle is that each class must be exhausted before the next and thus, as a corollary the latter stands excluded. Full/real sister, if not excluded by any other relation and in the absence of any other persons entitled to inherit as a residuary belonging to the higher categories, would therefore, become entitled to the residue and thus excludes a relation of the deceased who falls in the lower or the last category.

Waris Ali and others v. Rasoolan Bibi PLD 2014 SC 779; Dhuman and others v. Ghulam Sarwar and others 1985 SCMR 947;Qazi Fazal Ahmad and others v. Riaz ur Rahim and others 2004 SCMR 432; Mir Sahib Jan v. Janan 2011 SCMR 27; Abdul Sattar v. Mst. Naheed Akhtar through her uncle Muhammad Hadayat and another 2011 CLC 1398 and Saad Ullah and others v. Mst. Gul Banda and others 2014 SCMR 1205 rel.

(b) Islamic law---

----Inheritance---Person dying issueless---Opening of inheritance ---Order of succession---Residuaries---Full sisters taking precedence over residuaries---Scope---Deceased was issueless and left behind a widow and three full/real sisters---No relation of deceased could exclude a full/real sister as sharer and entitled to inherit as a residuary---Paternal uncles belong to the last category i.e. the descendants of the grandfather while the full sisters belong to the higher category i.e. descendants of the father of the deceased---Paternal uncles stood excluded from inheriting as residuaries out of the legacy of the deceased by the full/real sisters---No legal infirmity having been pointed out in the impugned judgment of Trial Court appeal was dismissed accordingly.

Waris Ali and others v. Rasoolan Bibi PLD 2014 SC 779; Dhuman and others v. Ghulam Sarwar and others 1985 SCMR 947;Qazi Fazal Ahmad and others v. Riaz ur Rahim and others 2004 SCMR 432; Mir Sahib Jan v. Janan 2011 SCMR 27; Abdul Sattar v. Mst. Naheed Akhtar through her uncle Muhammad Hadayat and another 2011 CLC 1398 and Saad Ullah and others v. Mst. Gul Banda and others 2014 SCMR 1205 rel.

Syed Khurram Shahzad for Appellants.

Muhammad Wajid Hussain Mughal and Syeda Rida-e-Batool for CDS for Respondents.

P L D 2018 Islamabad 385

Before Muhammad Anwar Khan Kasi, C J

MUHAMMAD SAFEER---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE (WEST) ISLAMABAD and others---Respondents

Criminal Revision No.69 of 2017, decided on 3rd September, 2018.

(a) Child Marriage Restraint Act (XIX of 1929)---

----Ss. 5 & 9---Islamabad Capital Territory Local Government Ordinance (CXVII of 2002), Ss.8(b) & 153---Solemnizing a child marriage---Union Councils not established due to non-holding of Local Government elections---Trial Court, jurisdiction of---Plea of accused that Trial Court did not have jurisdiction to take cognizance of the present case as under S. 9 of the Child Marriage Restraint Act, 1929, no Court could take cognizance of any offence under the Act except on complaint made by the Union Council, or by such authority, as the Provincial Government may in such behalf prescribe---Validity---Incident took place at a time when the Islamabad Capital Territory Local Government Ordinance, 2002 was in vogue and the institution of Union Council was not established due to non-holding of Local Government elections, and an interim authority was empowered by Federal Government to perform functions of the Local Government---Administrator [subsequently designated as Chief Commissioner] exercised the powers and duties conferred or imposed on the Provincial Government under any law for the time being enforced in the Islamabad Capital Territory vide a Presidential Notification dated 31.12.1980---Chief Commissioner had designated Administrators comprising of Assistant Commissioners of the Territory to perform functions of Local Government, therefore, the order passed by the Trial Court did not suffer from any illegality and cognizance was rightly taken in the circumstances---Petition was disposed of accordingly.

(b) Child Marriage Restraint Act (XIX of 1929)---

----Ss. 5 & 10---Criminal Procedure Code (V of 1898), S. 202---Solemnizing a child marriage---Summoning of accused---Procedure---Plea of accused that under S. 10 of the Child Marriage Restraint Act, 1929, it was mandatory for the Trial Court to have conducted a preliminary inquiry under S. 202 of the Code of Criminal Procedure but in the present case said requirement was ignored and instead the accused were summoned mechanically without recording statement of the complainant---Validity---Purpose of inquiry under S. 202, Cr.P.C was to see as to whether sufficient material was available to put the accused on trial---Admittedly the Nikahnama in the present case and its veracity had never been disputed at any stage which showed the age of the bridegroom as less than 18 years making the complaint sufficiently credible for summoning the accused---Nikahnama sufficiently establish a prima facie case against accused persons---Petition was disposed of accordingly.

Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105 ref.

(c) Administration of justice---

----Procedural error during trial---Even where some procedural error had crept in the mode of trial, same did not render the judgment void unless it was proved that some serious miscarriage of justice had occurred.

Shahzada and others v. Malik Shamsuddin and another PLD 1977 SC 384 ref.

(d) Child Marriage Restraint Act (XIX of 1929)---

----S. 5---Solemnizing a child marriage---Application for medical examination of bridegroom to ascertain actual age, rejection of---Report submitted by the National Database and Registration Authority, proved that the bridegroom's actual date of birth was the same as that mentioned on the Nikahnama, therefore, medical examination was not justifiable and the application was rightly turned down by the Trial Court---Petition was disposed of accordingly.

(e) Child Marriage Restraint Act (XIX of 1929)---

----Ss. 4, 5 & 6---Child marriage---Minor bride/bridegroom---Child Marriage Restraint Act, 1929 provided punishment for three categories i.e. the contracting party, promoter of the (child) marriage and guardians/parents of the child---Said Act, however , did not hold a minor (who had contacted the marriage) liable for punishment.

Ms. Shahina Shahab-ud-Din for Petitioner.

Zahir Ayub Rathore for Respondent No.3.

Respondents Nos. 4 to 6 (Muhammad Rasheed, Sarfraz Khan and Haji Shafiq) (in Person).

Barrister Ahsan Jamal Peerzada, State Counsel with Ashfaq ASI for Respondent No.7.

P L D 2018 Sindh 1

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

NOMAN JUNEJO through Authorised Attorney and another---Petitioners

Versus

FEDERAL INVESTIGATION AGENCY through Director General and 3 others---Respondents

Constitutional Petition No.D-4002 of 2013, decided on 6th February, 2015.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternate remedy---Scope---Quashing of FIR/proceedings---Charges of corruption, corrupt practices and money laundering---Petitioners sought quashing of FIR lodged against them, under various provisions on allegations of corruption and money laundering, and to restrain authorities from investigation and further steps in pursuance of said FIR---Validity---Held, throwing out FIR which was largely based on documentary evidence without giving opportunity to prosecution to prove its allegations by adducing evidence would be an improper exercise of powers of High Court under Art.199 of the Constitution---Petitioners, in the present case, could not demonstrate sufficient grounds to attract quashment of FIR and if investigation was restrained, same would tantamount to acting against law---Quashing of FIR under the Constitutional jurisdiction of High Court would create chaos for a summary disposal of case which may culminate into injustice---High Court could not interfere in the investigation and if prima facie offence had been committed, ordinary course of trial should not be allowed to be deflected by resort to Constitutional jurisdiction of High Court and alternate remedies provided in the Cr.P.C. were available to the petitioners---Constitutional petition was dismissed, in circumstances.

1991 SCMR 322; 1992 PCr.LJ 72; 1992 PCr.LJ 58; 1999 PCr.LJ 191; 2003 YLR 1915; PLD 2004 Lah. 65; PLD 2007 Kar. 127; 2009 SCMR 299; 2012 SCMR 1137; 2012 SCMR 1273; 2013 YLR 2230; 2014 YLR 2532 and 2014 PCr.LJ 396 ref.

Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Power of Attorney---Scope---Filing of Constitutional petition by persons living abroad through attorney for quashing of FIR---Validity---Filing of Constitutional petition through attorney seeking equitable and extraordinary relief of quashing of FIR by persons living abroad was alien to law.

Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276 rel.

(c) Constitution of Pakistan---

----Art. 199---Extraordinary and discretionary relief under Art.199 of the Constitution---"Law" and "equity"---Scope---When there existed a conflict between "law" and "equity", it was the "law" which was to prevail and "equity" could only supplement the law when a gap existed, but could not supplant the law.

Shah Sadiq v. Muhammad Ashiq 2006 SCMR 276 rel.

Syed Roshan Shah and Umair Kazi for Petitioners.

Ziaul Haq Makhdoom, DAG along with Syed Israr Ali, Additional Director, FIA and Adnan Dilawar, I.O.

P L D 2018 Sindh 8

Before Munib Akhtar and Arshad Hussain Khan, JJ

KARAMAT ALI and others---Petitioners

Versus

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

Constitutional Petitions Nos. D-7097 of 2016 and D-131 of 2017, decided on 7th September, 2017.

(a) Constitution of Pakistan---

----Pt. V, Ch. 1 [Arts. 141 - 144]---Distribution of Legislative powers---Martial Law---Laws made at a time when Constitution was held in abeyance---Scope---Martial Law had seriously disruptive and distorting effect on constitutional law and principles, and it disturbed the distribution of legislative power between the Federal and Provincial legislatures---Example (of a statute or law) from a time when the Constitution was in abeyance and the country under Martial Law was not a good example for how the federal nature and structure of the Constitution was to work in normal circumstances.

(b) Constitution of Pakistan---

----Arts. 142 & 143---Distribution of Legislative powers between the Federation and Provinces---Scope---Provincial law seeking to amend a federal law made in relation to a concurrent legislative field (or an existing law relatable to such a competence) was ipso facto void. Rashid and Company v. Punjab Government and another 1995 CLC 1914 and Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 dissented from.

Muhammad Kamran Mullahkhail v. Government of Balochistan and others PLD 2012 Bal. 57 ref.

Chief Secretary to the Government of East Pakistan v. Moslem-ud-Din Sikdar and another PLD 1957 SC 1 distinguished.

Rashid and Company v. Punjab Government and another 1995 CLC 1914 and Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 dissented from.

Shamas Textile Mills Ltd. and others v. Province of Punjab and others 1999 SCMR 1477 not followed.

(c) Legislation---

----Amending statute (statute that did nothing other than make changes in some other law)---Nature---Changes made by such amending statute were immediately incorporated into the law(s) being amended and became an integral part of the latter---Amending law therefore ceased to have any independent existence immediately on enactment---All that remained was an empty shell or husk; the substance was incorporated at once into the text of the law(s) being amended.

(d) Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act (XXII of 2011)---

----Ss. 2 & 3---Police Act (V of 1861), Preamble---Police Order [22 of 2002], Preamble---Constitution of Pakistan, Art. 142---Legislative competence over laws relating to "police"---Exclusive Provincial domain---Police Order, 2002 was in the exclusive provincial domain, therefore, the Provincial Assemblies could alter, repeal or amend the said Order, if they chose to do so---Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011 ("Repeal and Revival Act"), whereby the Police Order, 2002 was repealed and the Police Act, 1861 was revived, was within the legislative power of the Provincial (Sindh) Assembly---'Repeal and Revival Act' was intra vires the Constitution---Law currently in force in the Province (of Sindh) was the Police Act, 1861, as so revived and restored, and not the Police Order, 2002.

Pakistan International Freight Forwarders v. Province of Sindh and another 2017 PTD 1 and Inspector-General of Police Punjab and others v. Mushtaq Ahmed Warraich and others PLD 1985 SC 159 ref.

(e) Constitution of Pakistan---

----Art. 199(1)(c)---Directions given by the High Court in its constitutional jurisdiction---Scope---High Court, in exercise of its jurisdiction under Art. 199(1)(c) of the Constitution could not issue directions that were essentially legislative in nature and required the Provincial Government to enact appropriate legislation in respect of any matter, regardless of whether the directions were couched in general terms or reflected (at any level of detail) the recommendations of a Law Reform Commission set up by the Court.

Prakash Singh and others v. Union of India and others (2006) 8 SCC 1, held not persuasive enough to be followed.

(f) Constitution of Pakistan---

----Arts. 8(3)(a) & 199---Laws inconsistent with or in derogation of fundamental rights to be void---Exception---Scope and purpose of Art.8(3)(a) of the Constitution---Article 8(3)(a) of the Constitution, firstly, applied only to a person who was a member of the Armed Forces, the police or a force charged with the maintenance of public order; secondly, it applied to such person only in his capacity as member of any of the three types of forces; and, thirdly, it operated in respect of a law, as that law applied to such person and had the purpose of ensuring the proper discharge of duty or the maintenance of discipline---Purpose of Art. 8(3)(a) was limited only to preclude a member of any of the three types of forces from claiming that a law that applied to him as such member, and operated in relation to the proper discharge of his duties or the maintenance of discipline, violated his fundamental rights---Where, however, the citizens of a province sought to enforce their own fundamental rights as ordinary citizens of the country due to alleged failure of policing in the province; where their grievance was not against (or on account or for the benefit of) a particular member of the police or even a class or category or part of the force, but rather against the police force as a whole, and, where the citizens were not concerned with whether the members of the police force, in their capacity as such, were or were not entitled to fundamental rights, Art.8(3)(a) of the Constitution would not apply.

(g) Constitution of Pakistan---

----Arts. 189 & 185(3)---Leave refusing order of the Supreme Court---Such order was not law enunciated by the Supreme Court.

Squibb Pakistan (Pvt.) Ltd. v. Commissioner of Income Tax and others 2017 SCMR 1006 ref.

(h) Constitution of Pakistan---

----Art. 139(3)---Sindh Government Rules of Business, 1986---Said Rules framed under Art. 139 of the Constitution were binding and had the force of law---Provincial (Sindh) Government could not disregard a provision in the said Rules or apply it at its own pleasure.

(i) Police Act (V of 1861)---

----S. 4---Sindh Government Rules of Business, 1986, R. 35 (ii), Sched.I, Entry No. 14, & Sched. IX, Entry No. 2---Inspector General of Police (Sindh)---Removal from service by 'Provincial Government' before end of tenure stipulated in the Sindh Government Rules of Business, 1986---Procedure---Tenure for office of Inspector General Police (Sindh) provided in the Sindh Government Rules of Business, 1986 had mandatory and binding effect, thus, it could not be disregarded, disobeyed or flouted by the Provincial Government---Such term, however, was subject to exceptional circumstances and compelling reasons that may allow for the tenure to be curtailed---Said reasons had to be recorded in writing and were judicially reviewable---Exceptional circumstances and compelling reasons, if any, were precisely that, exceptional and compelling---Norm must be strict adherence to the tenure as provided in the Rules---Where the Provincial Government (meaning the Provincial Cabinet) sought to surrender the incumbent Inspector General of Police to the Federation or otherwise remove him from the post, then the decision must be taken at a duly convened meeting of the (Provincial) Cabinet, and the agenda circulated for the same, which must set out the compelling reasons for which it was proposed to remove him---Decision at the Provincial end had to be taken by the Provincial Cabinet, and it did not suffice, and indeed was contrary to law, for the decision to be taken elsewhere in the executive branch and then to be simply endorsed or approved by the Cabinet---Proper notice must be given to the incumbent Inspector General and the relevant papers provided to him so that he could make a representation and, if he so desired, attend the Cabinet meeting to explain his position---If the decision was taken to remove or surrender the incumbent then the reasons for the same must be fully and duly recorded in the minutes of the meeting---Decision, along with the relevant record, must be transmitted to the Federal Government to which also the incumbent may make representations---Federal Government must properly apply its mind to the situation, and if it disagreed with the Provincial Government, namely that the stated circumstances or reasons were not compelling, then the incumbent could not be removed or surrendered to the Federation---Only if the Federal Government concluded that the circumstances or reasons were compelling that the incumbent could be removed and/or surrendered to the Federation---Such entire exercise would be subject to judicial review---Furthermore, while such exercise was being carried out, neither the Provincial nor the Federal Government (either unilaterally or even acting together) could remove, surrender, recall or replace the incumbent Inspector General, whether by way of an "interim" measure or otherwise---Any replacement of the Inspector General would not follow automatically at the behest or desire of the Provincial Government because once the post was vacated it must then be filled in as a collaborative effort.

Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195 and Haider Ali and another v. DPO Chakwal and others 2015 SCMR 1724 ref.

(j) Police Act (V of 1861)---

----S. 4---Sindh Government Rules of Business, 1986, R. 35 (ii), Sched.I, Entry No. 14, & Sched. IX, Entry No. 2---Inspector General of Police (Sindh)---Removal from service by 'Federal Government' before end of tenure stipulated in the Sindh Government Rules of Business, 1986---Procedure---Tenure for office of Inspector General Police (Sindh) provided in the Sindh Government Rules of Business, 1986 must be adhered to subject to exceptional circumstances and compelling reasons that may allow for the tenure to be curtailed---Where the Federal Government sought to recall its officer or replace him with another while the term had not expired, then that decision must be taken by the Federal Cabinet, in order to show proper regard and respect for provincial law---Decision must be taken at a duly convened meeting of the Federal Cabinet, and the agenda circulated for the same, which must set out the compelling reasons for which it was proposed to recall the incumbent and/or replace him with another officer---Proper notice must be given to the incumbent Inspector General and the relevant papers provided to him so that he could make a representation and, if he so indicated, he must be invited to attend the meeting of the Federal Cabinet to explain his position---If the decision was taken to recall the incumbent and/or replace him with another (the reasons for which must be fully and duly recorded in the minutes of the meeting), then it must be transmitted along with the relevant record to the Provincial Government to which also the incumbent may make representations---Provincial Government (i.e. the Provincial Cabinet) must properly apply its mind to the situation at a duly convened meeting to which the incumbent must be invited---If the Provincial Cabinet disagreed with the Federal Government, namely that the stated circumstances or reasons were not compelling, then the incumbent could not be recalled by the Federal Government and/or replaced by another officer---Only if the Provincial Government concluded that the circumstances or reasons were compelling that the incumbent could then be recalled and/or replaced by the Federal Government---Such entire exercise would be subject to judicial review---Furthermore, while the exercise was being carried out, neither the Federal nor the Provincial Government (either unilaterally or even acting together) could remove, surrender, recall or replace the incumbent, whether by way of an "interim" measure or otherwise---Any replacement would not follow automatically at the behest or desire of the Federal Government because once the post was vacated it must then be filled in as a collaborative effort.

(k) Police Act (V of 1861)---

----S. 4---Sindh Government Rules of Business, 1986, Sched. I, Entry No. 14---Inspector General of Police (Sindh), appointment of---Procedure---Statutory power to appoint the Inspector General (Sindh) vested in the Provincial (Sindh) Government, i.e. Provincial Cabinet in terms of S. 4 of the Police Act, 1861---Decision of appointment must be that of the Provincial Cabinet---In the appointment of the Inspector General the real question was not whether it was the Federal or the Provincial Government that was to prevail---Such an exercise always had to be a collaborative effort---Question as to whether the Federal Government initiated the exercise of appointment (i.e. made recommendation) for consideration by the Provincial (Sindh) Government or vice versa, was immaterial---Both Federal and Provincial (Sindh) Governments must act together to ensure that the best possible officer was selected from the available pool---Officer selected must meet the federal requirements of the Police Service (of Pakistan), including the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 and any other rules and regulations---Further the requirements of provincial law as regards appointments and the law laid down from time to time in the Supreme Court and other, bindingly applicable, decisions must also be adhered to---Officer who could serve for the full tenure must be selected, however, the officers in the available pool may be such that the more senior officers may not be able to complete the tenure before retirement---Such a situation may therefore amount to an exceptional circumstance, in which a more senior officer may be appointed even though he would not be able to complete the term before retirement, but this could only be done if the officer was able to serve not less than three-quarters of the term.

(l) Police Act (V of 1861)---

----S. 4---Sindh Government Rules of Business, 1986, Sched. I, Entry No.14, & Sched. IX, Entry No. 2---Inspector General of Police (Sindh)---Post falling vacant due to an emergent situation---Interim or stopgap appointment---Scope---Occasionally an emergent situation may arise, and the post of Inspector General may fall vacant on account of circumstances not reasonably foreseeable, which require immediate remedial action to be taken---Where an emergent situation did arise, then the Federal and Provincial Governments (i.e. the Provincial Cabinet) must act together to appoint an officer to hold the post by way of an interim or stopgap measure---Appropriate action, however, must immediately and simultaneously be initiated to make a permanent appointment---In case no permanent appointment was made within 21 days, then the post of Inspector General shall be deemed to have become vacant, and the officer in temporary charge would not be able to act as such---Retirement of an incumbent in office would not be an emergent situation because the retirement date of a civil servant was known well in advance and proper action could, and must, be taken in a timely manner to fill the post.

(m) Constitution of Pakistan---

----Art. 199(1)(c) & Pt. II, Chap. 1 [Arts. 8 - 28]---Powers of High Court under Art. 199(1)(c) of the Constitution to interpret a statute so as to enforce Fundamental Rights---Scope---Article 199(1)(c) of the Constitution allowed for the possibility of a statute, whose meaning was otherwise clear in terms of standard model interpretation, to be interpreted by the High Court in some other manner so as to enforce Fundamental Rights---Such power of interpretation was subject to only two limitations; first, that the meaning should go with the grain of the legislation and be compatible with the underlying thrust of the legislation being construed, and an interpretation should not be adopted which was inconsistent with a fundamental or cardinal feature of the legislation since this would cross the boundary between interpretation and amendment; and, secondly the exercise of the interpretative obligation could not require the courts to make decisions for which they were not equipped or give rise to important practical repercussions which the court was not equipped to evaluate.

Ghaidan v. Mendoza [2004] UKHL 30, [2004] 3 All ER 411 and Sheldrake v. DPP [2004] UKHL 43, [2005] 1 All ER 237 ref.

(n) Police Act (V of 1861)---

----Preamble---Constitution of Pakistan, Arts. 9, 10, 14(2), 15, 16 & 199(1)(c)---Powers of High Court under Art. 199(1)(c) of the Constitution to interpret a statute---Scope---Interpretation of the Police Act, 1861 to ensure enforcement of Fundamental Rights of the citizens of the Province (Sindh)---Poor state of policing in the Province (Sindh) could not be denied---Effective, efficient and functional police force was a sine qua non for the proper enforcement of Fundamental Rights---In a general sense, Fundamental Rights were best enjoyed in an environment where the rule of law was respected and properly enforced, and the rule of law was in essential part dependent on the law and order situation, which in turn depended on effective policing---Rights such as the right to life and liberty, protection against arrest and detention, prohibition on the use of torture for the purpose of extracting evidence, right to free movement, freedom of assembly, etc. were directly dependent on a police force that was properly responsive to the rule of law---Where the police force was so inept, demoralized or reduced to such a level of incompetence, or its operations were organized and run in such a manner, that it could not perform its essential functions and duties, then clearly many Fundamental Rights were effectively denied to the citizens---In appropriate circumstances, therefore, it may be necessary to make orders and give directions in respect of policing and the police force in terms of Art. 199 of the Constitution, and in particular under clause (1)(c), to ensure the proper enforcement of Fundamental Rights---Such orders and/or directions were appropriate and necessary in respect of the police in (Sindh) Province in order to ensure the proper enforcement of Fundamental Rights.

Watan Party and another v. Federation of Pakistan PLD 2011 SC 997; Ghaidan v. Mendoza [2004] UKHL 30, [2004] 3 All ER 411 and Sheldrake v. DPP [2004] UKHL 43, [2005] 1 All ER 237 ref.

(o) Police Act (V of 1861)---

----Ss. 3, 4 & 12---Constitution of Pakistan Arts. 9, 10, 14(2), 15, 16 & 199---Sindh Government Rules of Business, 1986, Sched. I, Entry No.14---Constitutional petition before High Court seeking redressal of the problems relating to the police force, policing, and the law and order situation in Sindh Province---Directions issued by the High Court to address the issue of poor state of policing in the (Sindh) Province, to restore the law and order situation in the Province, and ensure the proper enforcement of Fundamental Rights.

High Court issued the following directions to address the issues of state of policing in the Province (Sindh), to restore the law and order situation in the province, and ensure the proper enforcement of Fundamental Rights:

(i) Statutory power of the Provincial Cabinet under section 3 of the Police Act, 1861 to "superintend" the police force in the Province (Sindh) must be regarded as limited to taking decisions of high policy only without (directly or indirectly) impacting on, compromising, affecting, negating, eroding or otherwise curtailing or reducing the force's autonomy of command and independence of operation. Furthermore, the views of the police hierarchy, acting through the Inspector General, must be taken, and the Inspector General must be invited to attend the Provincial Cabinet meeting at which the high policy was to be formulated. Inspector General must likewise be invited to attend all Cabinet meetings in which one or more agenda items related directly or indirectly to law and order, or state security, or policing or the police force so that the views of the police hierarchy could be obtained. He could not be side-lined. The Inspector General may comment in writing on any proposed policy, and if the Cabinet decided on a policy inconsistent with the views expressed by the Inspector General, then the reasons for the disagreement must be properly recorded and minuted. Furthermore, any high policy that was formulated could only be implemented through the police hierarchy acting through the Inspector General in an autonomous manner, on its own independent assessment of what needed to be done to best achieve the goals of the policy. The objective of autonomy of command and independence of performance could not be nullified in the guise of enforcing or giving effect to a policy decision. Additionally, if there was any reasonable difference or disagreement as to whether any proposed action or matter was one of high policy or not, then it must be resolved in favour of the police force, i.e., regarded as not being high policy and hence outside the scope of section 3 of the Police Act, 1861. Difference between policy simpliciter and high policy must be recognized, maintained and given due effect. Matters of policy simpliciter were to be dealt with by the police hierarchy itself acting through the Inspector General in terms of sections 4 and 12 of the Police Act, 1861.

(ii) Police hierarchy, acting through the Inspector General must have control over its own affairs as regards its operations and command. There could be no interference, direct or indirect, in the operational affairs of the force nor could anything be done to affect the autonomy of command. No authority or body, or the Provincial Government itself (including any minister of whatever rank), could issue any order, direction, instruction, guideline, circular or notification that impacted on, compromised, affected, negated, eroded or otherwise curtailed or reduced the force's autonomy of command and independence of operation. The control of the police force must lie where it was placed in terms of section 4 of the Police Act, 1861 : the police hierarchy acting through the Inspector General. Any attempt therefore to side line or marginalize the Inspector General or to circumvent him or to otherwise curtail his powers directly or indirectly (by, e.g., holding meetings with police officers to which the Inspector General was not invited) would be contrary to law and of no legal effect. It could, among other things, expose any police officer concerned to appropriate disciplinary proceedings, whether by way of misconduct or otherwise. Furthermore, in terms of the second paragraph of section 4 of the Police Act, 1861, the vesting of the administration of the police in a district in a District Superintendent and Assistant District Superintendents (and also Senior Superintendents) was not to the exclusion of the Inspector General, but subject to his overall, direct and exclusive command and control.

(iii) Power vested in the Inspector General in terms of section 12 of the Police Act, 1861 to make rules and frame orders for the "organization", "classification" and "distribution" of the police force and to ensure that the said force was rendered "efficient in the discharge of its duties", was broad enough to vest in him the powers of transfers and postings throughout the police force and the entire hierarchy at all levels, including Police Service of Pakistan (PSP) officers. Power of postings and transfers could not be exercised elsewhere in the executive branch, whether the Provincial Government or any authority or body (including any minister of whatever rank). It must vest only in the Inspector General.

(iv) Police Act, 1861 being special law, and any rules framed under it, trumped those of the law generally applicable to civil servants and any rules framed under the latter.

Inspector-General of Police Punjab and others v. Mushtaq Ahmed Warraich and others PLD 1985 SC 159 ref.

(v) The Inspector General shall, within 30 days, frame draft rules under section 12 of the Police Act, 1861, setting out the manner in which he (and/or the police hierarchy acting through him) was to exercise the power of transfers and postings in the police force at all levels (including PSP officers serving in the Province of Sindh). The rules must be framed in such manner as ensured autonomy of command and independence of operation. The rules must be transparent in form and reality, and fair in operation and effect. They must also inter alia, set out the period or term that was ordinarily to be served at any level/post. Draft rules shall be transmitted to the Provincial Government (meaning the Provincial Cabinet) and also, to ensure transparency, posted simultaneously and prominently on the website of the Sindh Police (i.e., on the home page). The Provincial Cabinet must consider the draft rules at its next meeting or a meeting specifically called for such purpose within 15 days (whichever was earlier). The agenda for the meeting must be circulated in advance and the Inspector General must be invited to attend the meeting. If the rules were approved as proposed, then the same shall take effect in terms of section 12 of the Police Act, 1861 from the date of the Cabinet meeting. If any changes, modifications or amendments were made, which were concurred to in writing by the Inspector General, the same result would follow. If the rules were not considered or approved by the Provincial Cabinet or changes, modifications or amendments were made therein which were not accepted by the Inspector General, then the entire exercise would have to be repeated. The exercise shall be subject to judicial review. Till such time as the rules were framed and approved, the power of transfers and postings in the police force, at all levels and including that of PSP officers, shall be exercised only by the Inspector General, and any orders issued by him in such regard shall be self-executing. Impugned order/notification issued by the Provincial Government in relation to postings and transfers (of police officers), was quashed as being contrary to law and of no legal effect. All other such orders, notifications, circulars etc. were likewise quashed and declared to be of no legal effect.

Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195 ref.

(vi) Rule-making power of the Provincial Government under section 46(2) of the Police Act, 1861, to regulate the procedure to be followed by police-officers in the discharge of any duty imposed on them by or under the Act and generally, for giving effect to the provisions of the Act, could not be exercised in such manner as was inconsistent with or which negated, contradicted or impacted on anything in relation to the other provisions of the Police Act, 1861. Any proposed rules must first be circulated in draft, and must be considered at a duly called meeting of the Provincial Cabinet for which the agenda was circulated in advance. Any rules finally framed must have the concurrence of the Inspector General. In any case, the rule-making power could not be exercised at all in relation to any matter that came within the scope of section 12 of the Act. Furthermore, and more generally, the rule-making power could not be exercised in relation to any other provision of the Act in such manner as impacted on, compromised, affected, negated, eroded or otherwise curtailed or reduced the autonomy of command and independence of operation of the police force. Said principle shall also apply mutatis mutandis in relation to any other provision of the Police Act, 1861 that conferred any statutory powers on the Provincial Government, whether to be exercised by the making of rules or otherwise. More specifically in section 2 of the Police Act, 1861, in the second paragraph, the reference to "all other conditions of service of members of the subordinate ranks" must be construed and applied subject to the directions given in the present judgment and subject to the concurrence of the Inspector General. Furthermore, a matter that may come within the rubric of "conditions of service" would not be within the scope of section 2 of the Act if it also fell within the scope of section 12. In section 5(3), the decision to be taken by the Provincial Cabinet must be taken after the views of the Inspector General have been obtained and, again, without prejudice to the autonomy of command and independence of operation of the police force.

(vii) History of repeated, abrupt and swift turnover in officers who held the post of Inspector General, by the Provincial (Sindh) Government, without any apparent cause or reason was flagrant breach of the law and could not be countenanced or allowed to continue. This problem had a seriously negative and indeed deleterious effect on the performance, efficacy and efficiency of the police force. Police force must have autonomy of command and independence of operation. If at any time the Provincial Government (meaning the Provincial Cabinet) amended or altered the Sindh Government Rules of Business, 1986 in relation to the term or tenure of the Inspector General, such term could not under any circumstances be reduced to less than three years. Furthermore, no authority or body could be given any power to curtail, reduce, suspend or otherwise dispense with the stipulated term. However, any such change, if ever made, shall apply also to the incumbent for the time being of the post of Inspector General.

Faisal Siddique for Petitioners.

Zameer Ghumro, Advocate-General Sindh and Mustafa Mahesar, AAG for the Province.

Salman Talibuddin, Additional Attorney-General and Asim Mansoor Khan, DAG for the Federation.

Shahab Usto for Respondent No.7 (in Constitutional Petition No.D-7097 of 2016).

P L D 2018 Sindh 122

Before Nazar Akbar, J

ABDUL SATTAR MANDOKHEL through Attorney and Executive Director---Plaintiff

Versus

Messrs KARACHI MUNICIPAL CORPORATION through Administrator---Defendant

Suit No.1553 of 2012, decided on 6th September, 2017.

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

----Preamble---Constitution of Pakistan, Art. 10-A---Non-appearing of counsel---Code of Conduct, violation of---Scope---Responsibility of Institutions/departments engaging counsel---Scope---Non-attending the court by the counsel amounted to breach of the Code of Conduct of Counsel towards client---Court issued notices to non-appearing counsel through Provincial Bar Council purpose, being to ensure that Bar Council be aware of the conduct of its members---High Court observed that in number of cases, despite orders of the Court no action had been taken by the institutions like City Development Authority and Municipal Corporation against delinquent counsel---Such conduct of the counsel in most of the cases could not be considered as an oversight or mistake rather, to say the least, their wilful absence facilitated the Court in passing adverse order against their clients---When huge public money was involved, court, in absence of counsel was to be more careful---Different counsel, in the present case, had filed power of attorney on behalf of the institution but they have appeared hardly on five dates out of more than twenty dates of hearing---Not only in the present case, but in many other cases, High Court had reported the matter of such conduct of counsel to the Provincial Bar Council for action---Such absence of counsel was not only violation of conduct of lawyers provided under the Legal Practitioners and Bar Councils Act, 1973 but it was also against the constitutional guarantee for fair trial envisaged under Art.10-A of the Constitution---High Court further observed that court alone could not guarantee "fair trial" and for quality judgment from the court, the litigant and counsel both had to honestly contribute---High Court issued notice to the Principal Law Officer of the Institution for next date of hearing with complete report of cases decided for or against the Institution since 1-1-2017 till date along with reports from the audit and accounts department that how much public money had been utilized by the Institution in litigation in the name of professional fee of counsel and other miscellaneous expenses---All that was necessary to check the possibility of collusion of legal department of the Institution and the counsel and the litigants who sue the Institution or other semi government institutions for recovery of money---Copy of the present order was directed by High Court to be sent to Head of the Institution so that any remedial measures could be taken by them---Case was adjourned accordingly.

Revision Application No.12 of 2001 ref.

Muhammad Masood Khan for Plaintiff.

Nemo for Defendant.

P L D 2018 Sindh 126

Before Nazar Akbar, J

Mrs. NAJMA SULTAN---Petitioner

Versus

BANK ISLAMIC---Respondent

S.M.A No.223 of 2017, decided on 13th September, 2017.

Succession Act (XXXIX of 1925)--

----Ss. 278 & 372---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Succession certificate---Interim injunction, grant of---Bank account not belonging to deceased---Legal heirs of deceased filed application to restrain account holder from the operation of Bank account in question which was neither in the name of deceased nor the account holders were amongst legal heirs of the deceased---Validity---Inclusion of names of holders of account in succession petition was against the mandate of S. 372(1) of Succession Act, 1925---Bank account which was not operated by deceased could not be part of debts and securities of deceased---Court, in succession matters, was not supposed to declare that Bank account of a third party was an account of deceased without recording of evidence---Only the legal heirs of deceased could be made party in succession matters and that too if they had no dispute even inter se---Interim injunction was refused in circumstance.

Muhammad Shahid for Plaintiff.

Syed Sarfaraz Ahmed, Branch Manger, Bank Islami Gulshan-e-Iqbal Branch Karachi.

P L D 2018 Sindh 129

Before Muhammad Junaid Ghaffar, J

Khawaja RASHIDULLAH and another---Deceased.

Versus

Khawaja FARIDULLAH---Petitioner

Succession Miscellaneous Application No.11 of 2015, decided on 23rd October, 2017.

Succession Act (XXXIX of 1925)---

----S. 278---Muslim Family Laws Ordinance (VII of 1961), S.4---Succession Certificate---Children of pre-deceased brother and sister---Office sought approval of High Court to distribute shares among legal heirs excluding three applicants who were children of pre-deceased brother and sister of deceased---Validity---Provision of S.4 of Muslim Family Laws Ordinance, 1961, was specific to predeceased sons and daughters of a deceased and could not be stretched in any manner---Matter was to be strictly governed by law as it was a matter of inheritance amongst Muslims---Provisions were well defined and no ambiguity was left so as to adopt any analogy---Children of predeceased brother and sister fell under the category of distant kindred, who could only inherit a share when there were no sharers and residuaries---In the present case, there were brothers and sisters who survived the deceased as sharers and residuaries and therefore, there could not be any share of distant kindred---Legal heirs of predeceased brother and sister of deceased listed as applicants were not entitled for any share as inheritance---High Court directed to distribute shares amongst remaining legal heirs and approved the report of office---Application was allowed accordingly.

Rasoolan Bibi v. Waris Ali and others 2007 MLD 33; Qamarul Bashir v. Muhammad Ghous Khan and another 2007 MLD 800; Syed Sabial Hassan Khusro v. Asad Mustafa and 6 others 2016 MLD 266; Allah Rakha v. Federation of Pakistan PLD 2000 FSC 1 and Mst. Fazeelat Jan and others v. Sikandar PLD 2003 SC 475 ref.

Muhammad Ishaque Memon for Petitioner.

Qamar Riaz Virk for Objector.

P L D 2018 Sindh 136

Before Muhammad Ali Mazhar, J

SPECTRE CONSULTING LIMITED through Attorney---Plaintiffs

Versus

MT "EVERRICH" 6 through Master and others---Defendants

Admiralty Suit No.5 of 2017,decided on 12th October, 2017.

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

----S. 5---Jurisdiction of Court---Action "in personam" and "in rem"---Distinction--- Distinguishing feature of action in rem has always been ability of maritime claim to proceed against ship directly, which is regarded as the defendant, the ship being personified---Whereas action in personam in Admiralty jurisdiction is of the same nature as ordinarily common law action commences by summons served on a defendant which is a person, natural or juridical and not thing (res)---If technical object of suit is to establish a claim against some particular person or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defence, the action is in personam although it may concern right to or possession of a tangible thing.

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

----Ss. 3(2)(h) & 5--- Merchant Shipping Act (XXI of 1923), S. 214---Sindh Chief Court Rules (O.S.), R. 731---Civil Procedure Code (V of 1908), S.94 & O.XXXIX, Rr.1 & 2---Admiralty suit---Interim injunction, grant of---Mareva Injunction---Scope---Arrest of vessel---Principle---Plaintiff sought recovery of USD 874,161/- against charterer of vessel in question and order restraining the vessel from discharge of cargo till adequate surety was furnished---Validity---Dominance and peripheries of S.3(2)(h) of Admiralty Jurisdiction of High Courts Ordinance, 1980, were not unbridled and emancipated so that any person could bring any claim against the other---Word 'any agreement' had to be given a wide meaning but the same could not be stretched nor overextended in every case but it was contingent and depending upon circumstances of each case independently so as to bring case within the jurisdiction---Plaintiff failed to establish any probable and persuasive right to grant any injunctive order under O.XXXIX, Rr. 1 & 2, C.P.C. read with S. 94, C.P.C. in the variety and diversity of Mareva Injunction nor plaintiff was entitled to the relief of attachment of cargo shipped to defendant---Plaintiff did not move application under R.731 of Sindh Chief Court Rules (O.S.) but under O.XXXIX, Rr.1 & 2, C.P.C.; there was a marked distinction in significance and characteristics of both the provisions, the former could come to rescue in an urgent situation to cause arrest of vessel moored / anchored within territorial waters with or without condition of furnishing surety for further things to be decided then whereas in the latter situation some indispensable components and dynamics were to be satisfied such as the phrases "prima facie case, balance of convenience and irreparable injury"--- Interim injunction was declined in circumstances.

Balagamwala Oil Mills (Pvt.) Ltd v. Shakarchi Trading A.G. and others PLD 1990 Kar. 1; Compagnie Continentale (France) S. A. v. Pakistan National Shipping Corporation and others PLD 1986 Kar. 447. C.V. Lemon Bay and others v. Sadruddin and others 2012 SCMR 1267 Mitsui and Co. Ltd. and another v. Flota Mercante Grancolombiana S.A. [1988] 1WLR 1145; The "Lloyd Pacifico. [1995] Vol.1 Q.B.54; Messrs Masoomi Enterprises Pakistan (Pvt.) Limited and others v. Messrs Ping Tan Fishery Company and 5 others 2002 CLD 936. Jaffer Brothers (Pvt.) Limited v. M.V. Eurobulker II 2002 CLD 926 and Al-Tamash Medical Society v. Dr. Anwar Ye Bin Ju and others 2017 MLD 785 ref.

Shaiq Usmani, Manzar Bashir Memon and Ms. Asmara Parveen for Plaintiff.

Aga Zafar Ahmed for Defendants Nos. 1 and 2.

Mayhar Kazi for Defendants Nos. 3 and 5.

Shahnawaz Mangrio, Deputy Manager (Legal), Port Qasim Authority.

P L D 2018 Sindh 151

Before Munib Akhtar and Yousuf Ali Sayeed, JJ

Syed ARIF ALI and another---Appellants

Versus

ZEENAT HANIF SIDDIQUI and 2 others---Respondents

H.C.A. No.20 of 2015, decided on 26th April, 2017.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120--Suit for declaration, cancellation and permanent injunction---Cancellation of gift---Onus to prove---Plaintiffs assailed gift transaction executed in favour of defendants by deceased father of both the parties---Single Judge of High Court decreed the suit in favor of plaintiffs---Validity---Person who had attacked a complicated transaction as sham, bogus or fictitious must prove the same---Single Judge of High Court had wrongly lay burden of proof on defendants to establish that gift was; (i) bona fide; (ii) deceased had divested himself from all rights of ownership and dominion over the subject property; and (iii) there had been delivery of possession---Burden lay squarely on plaintiffs to demonstrate that gift was a sham transaction as alleged and same was only for purposes of income tax and some administrative purposes---Such claim of plaintiffs, bereft of any elucidation as to what such assertion connoted, could not of itself serve to shift burden on defendants, specially when unsupported by evidence duly admissible and admitted in accordance with law--- Division Bench of High Court set aside judgment and decree passed by the Single Judge of High Court as it suffered from material infirmities which went to the root of the matter---Intra-court appeal was allowed in circumstances.

Muhammad Sharif and 2 others v. Mst. Aisha Bibi 1994 MLD 677; Qutab Din and 4 others v. Mst. Rahim Bibi 1989 SCMR 727 and Ghulam Zainib and another v. Said Rasool and 8 others 2004 CLC 33 ref.

Ms. Lali Tabassum for Appellant.

Ms. Kausar Amin for Respondents.

P L D 2018 Sindh 163

Before Nadeem Akhtar, J

ABDUL QADIR MEMON---Applicant

Versus

SHAHID UMAR---Respondent

Civil Revision Application No.S-80 of 2017, decided on 2nd January, 2018.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1 & 2, Appendix-B, Form No.4---Suit for recovery of money---Summary proceedings---Issuance of notice or summons---Scope---Defendant was aggrieved of ex-parte order passed against him by Trial Court under O.XXXVII, C.P.C.---Plea raised by defendant was that process in shape of notice issued by Trial Court was not proper service as directed by C.P.C.---Validity---Upon institution of suit, Court was duty bound to issue summons to defendant calling upon him to answer, on the date specified in the summons, the claim made by plaintiff in his suit---Notice could be issued to defendant at any subsequent stage of suit and for the purpose specified therein or in respect of applications filed by plaintiff or other defendants in a pending suit but not upon institution of suit to answer claim of plaintiff---Summons in prescribed Form No.4 of Appendix-B to O.XXXVII, R.2(1),C.P.C. was not issued at all---No publication in newspaper was made in respect of the suit---Entire proceedings and ex-parte order passed against defendant were illegal and liable to be set aside---High Court set aside order in question---Revision was allowed in circumstances.

Abdul Qadir Shaikh for Applicant.

Yousuf Ali for Respondent.

Date of hearing: 18th December, 2017.

JUDGDMENT

NADEEM AKHTAR, J.---This Civil Revision Application is directed against the order passed on 16.09.2017 by the learned 1st Additional District Judge in the respondent's Summary Suit No.03/2016 whereby application filed by the applicant for recalling the ex-parte order passed against him on 22.12.2016 was dismissed. The main questions involved in the present matter are whether a notice can be issued instead of summons in a Summary suit to the defendant to answer the claim of the plaintiff, whether summons in a Summary Suit under Order XXXVII C.P.C. can be issued in a form other than the form specifically prescribed in Rule 2 of Order XXXVII, C.P.C., and whether an ex-parte order against the defendant can be passed by the trial Court after issuance of only a notice and without issuing summons in the prescribed form.

1. Relevant facts of the case are that Summary Suit No.03/2016 was filed by the respondent against the applicant under Order XXXVII C.P.C. for recovery of Rs.6,500,000.00. Vide order dated 07.12.2016, service upon the applicant was held good by the trial Court and it was ordered that the Suit shall proceed against him ex-parte. On 04.05.2017, the applicant filed two applications, one for recalling the aforesaid ex-parte order and the other under Order XXXVII, Rule 3, C.P.C. seeking leave to appear and defend the Suit. Vide impugned order dated 16.09.2017, the application filed by the applicant for recalling the ex-parte order was dismissed. It is stated that the application filed by the applicant for leave to appear and defend the Suit is still pending before the learned trial Court.

2. Mr. Abdul Qadir Shaikh, learned counsel for the applicant, contended that the applicant was never served in a proper manner through summons in the prescribed Form No.4 of Appendix B of the Code of Civil Procedure. 1908. In addition to this, it was contended by him that the notice published in the newspaper was in respect of a Family Suit and not the subject Summary Suit. It was urged by him that since the notice was defective and service upon the applicant was not effected in a proper manner in accordance with law, the ex-parte order as well as the impugned order refusing to set aside the ex-parte order are bad in law. It was further urged by him that the impugned order is liable to be set aside and the application filed by the applicant seeking leave to appear and defend the Suit, which application is still pending before the trial Court, should be decided by the learned trial Court on merits.

3. On the other hand, Mr. Yousuf Ali, learned counsel for the respondent, contended that the applicant, despite being fully aware of the proceedings, deliberately avoided to appear before the trial Court within the prescribed period of limitation. Regarding the mistake in the publication of notice in newspaper, he submitted that such defect is liable to be ignored as there was no such mistake in the notices issued through other modes. He prayed for dismissal of this revision application.

4. Vide order dated 27.11.2017 passed in the present proceedings, R&P of the above mentioned Suit was called from the learned trial Court. I have heard learned counsel for the applicant and respondent at length and have examined the material available on record, particularly R&P of the Suit, with their assistance. Record reveals that vide order dated 22.08.2016, learned trial Court admitted the Suit with direction to register the same and to issue "notice" to the defendant (present applicant) ; since notice issued through the bailiff had returned unserved, notice was ordered to be repeated on 08.09.2016 ; on 30.09.2016, notice was once again ordered to be repeated, but this time through registered post A/D as well; on 20.10.2016, application for substituted service filed by the plaintiff respondent under Order V, Rule 20, C.P.C. was allowed by the learned trial Court by ordering publication of notice in the newspaper; on 16.11.2016, publication was once again ordered ; service upon the defendant/applicant was held good on 25.11.2016 in view of publication of notice in newspaper; and, vide order dated 07.12.2016, the applicant was declared ex-parte.

5. Order V of C.P.C. deals with the requirements and procedure for issuance and service of summons. Under Rule 1 of Order V, C.P.C., when a Suit is duly instituted summonses are to be issued to the defendant to appear and answer the claim on the day specified therein, but summonses are not issued when the defendant appears at the presentation of the plaint and admits the claim of the plaintiff; and under Rule 2 of Order V, C.P.C., every summons must be accompanied by a copy of the plaint. Rules 3, 5, 6, 7 and 8 of Order V, C.P.C. deal, respectively, with issuance of summons for personal appearance of the defendant on the day specified therein, for settlement of issues or for final disposal, for fixing the day for the appearance of the defendant, for requiring the defendant to produce all documents in his possession and power upon which he intends to rely in support of his case, and to produce his witnesses for final disposal of the Suit. The forms in which summonses are issued at different stages of the Suit are prescribed in Appendix B of C.P.C.

6. The procedure of institution and trial of Suits is prescribed in and is governed only by the Code of Civil Procedure, 1908, ('the Code'), and as observed in the preceding paragraph, the Code provides that when a Suit is duly instituted summons are to be issued to the defendant to appear and answer the claim on the day specified therein. Thus, under the Code, summons is the only mode and source through which the defendant becomes aware, inter alia, about the nature of the Suit filed against him, the allegations and claim made therein against him, details of the person (plaintiff) who has made such allegations and claim against him, details of the court where the Suit is instituted, and the date on which he is required to appear before the court in order to defend himself; and, once the defendant acquires knowledge of all the above, only then is he able to defend the Suit in a proper manner as prescribed in the Code. It must be kept in mind that there is no concept of issuing notice to the defendant in a Suit to answer the claim of the plaintiff, and for this purpose only summonses are issued in the form prescribed in the Code itself. Upon institution of a Suit, the Court is duty-bound to issue summons to the defendant calling upon him to answer, on the date specified in the summons, the claim made by the plaintiff in his Suit. However, it may be observed that notice can be issued to the defendant at any subsequent stage of the Suit and for the purpose specified therein or in respect of applications filed by the plaintiff or other defendants in a pending Suit, but not upon institution of the Suit to answer the claim of the plaintiff.

7. Coming back to the present case, perusal of its R&P shows that upon admission of the Suit instead of passing an order for issuance of summons, an order was passed by the learned trial Court on 22.08.2016 for issuance of notice to the defendant (present applicant), and in pursuance of such order notice was issued to the applicant in the following terms:

"To the above named respondent.

Whereas, the advocate for plaintiff has filed summary Suit for recovery of an amount of Rs.65,00,000/- (sixty five lacs) under Order 37 rule 6 and Order 38 rule 5 read with Section 151 C.P.C.-1908 before this Court and same is fixed for hearing on 08.09.2016 at 08:00 A.M.

You are hereby given notice to appear in person or through an advocate or agent duly authorized before this Court on 08.09.2016 at 08:00 A.M., and to file your objection if any. In case of your failure without sufficient cause the above matter will be heard and decided in your absence according to law. (Copy attached herewith).

Given under my hand and seal of this Court this 24th day of August, 2016.

Order

Reader

Additional District Judge (Hudood) Sukkur"

(Emphasis added)

1. It is evident from the above notice that although it was mentioned therein that a summary Suit had been filed against the applicant/defendant, but he was called upon to the objections instead of an application for leave to appear and defend the Suit as specifically provided for in Rule 2(2) of Order XXXVII of the Code. Since the Suit in the present case was filed under Order XXXVII of the Code, summons therein were to be issued only in Form No.4. of Appendix B as specifically provided for in Rule 2 of Order XXXVII C.P.C., which reads as under:

"2. Institution of summary suits upon bills of exchange. etc.

(1) All Suits upon bills of exchange, hundis or promissory notes, may, in case the plaintiff desires to proceed thereunder, be instituted by presenting a plaint in the form prescribed ; but the summons shall be in Form No.4 in Appendix B or in such other form as may be from time to time prescribed.

(2) In any case in which the plaint and summons are in such forms respectively the defendant shall not appear or defend the Suit unless he obtains leave from a judge as hereinafter provided so to appear and defend ; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree ........"

1. A bare reading of Rule 2(1) of Order XXXVII of the Code shows that the requirement of issuance of summons in a Suit under Order XXXVII of the Code in Form No.4 of Appendix-B is mandatory because of the word "shall" used in the said Rule. Moreover, non-filing of application for leave to appear and defend by the defendant within the statutory period of ten days stipulated in the summons entails an adverse consequence against him. The contents and language of the said Form No.4 are of extreme importance, therefore, the same is reproduced below for convenience and ready reference:

"No.4. SUMMONS IN SUMMARY SUIT

ON NEGOTIABLE INSTRUMENT (O.XXXVII, R.2)

(Title)

To

[Name, description and place of residence]

WHEREAS ……. has instituted a Suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for Rs……, balance of principal and interest due to him as the .... of a.... of which a copy is hereto annexed, you are hereby summoned to obtain leave from the Court within ten days from the service hereof to appear and defend the Suit and within such time to cause an appearance to be entered for you. In default whereof the plaintiff will be entitled at any time after the expiration of such ten days to obtain a decree for any sum not exceeding the sum of Rs …. and the sum of Rs .... for costs together with such interest, if any, from the date of the institution of the Suit as the Court may order.

Leave to appear may be obtained on an application to the Court supported by affidavit or declaration showing that there is a defence to the Suit on the merits, or that it is reasonable that you should be allowed to appear in the Suit.

GIVEN under my hand and the seal of the Court, this…… Day of……. 19....

Judge"

(Emphasis added)

1. Through the summons in the above-quoted Form No.4 prescribed in Appendix-B of the Code specifically for Suits filed under Order XXXVII of the Code, the defendant in such Suit is "summoned" to cause appearance in order to obtain leave from the Court within ten days from service to appear and defend the Suit by means of an application supported by an affidavit and showing that there is a defence to the Suit on merits; and, the defendant is also put on notice that in case of his default/failure, the plaintiff will become entitled to a decree. In case summonses are not issued in the said prescribed form or are not issued at all, the defendant will be totally unaware about the claim made against him by the plaintiff, the mode in and the time within which he has to defend himself and the consequences of not defending the Suit in the prescribed manner and within the prescribed limitation. Any such omission in issuing the summons or deficiency therein shall cause extreme prejudice and hardship to the defendant, and any adverse order or decree against him in such circumstances will be bad in law.

P L D 2018 Sindh 169

Before Fahim Ahmed Siddiqui, J

GHULAM ASGHAR GADEHI and others---Applicants

Versus

SENIOR SUPERINTENDENT OF POLICE, DADU and 4 others---Respondents

Criminal Miscellaneous Application No.S-320 of 2017, decided on 29th January, 2018.

(a) Prevention of Cruelty to Animals Act (XI of 1890)---

----Ss. 3(a) & 6-C---Prevention of Cruelty to Animals Rules, 1961, R.3---Cruelty to animals---Animal cart racing and fights involving animals---Gambling on such races and fights---Local police stopped the practice of animal cart races and animal fights in the area concerned on the basis that such events were actually used for gambling---Applicants contended that bull and donkey cart racing and fights between animals were cultural games which should be promoted, therefore, the local police should allow them to continue; held, that bull cart racing, donkey cart racing, bullfights, ram fights, dogfights and cockfights etc. were common customary games in some areas of the Province, but behind the curtain of such customary funfare, a planned business of gambling flourished---Besides all such events involved beating, flogging and torturing animals, which amounted to cruelty in terms of Prevention of Cruelty to Animals Act, 1890---Such cruelty had an adverse effect on cultural and moral values and was potentially harmful for our society, if carried out in presence of children---High Court directed that the Provincial Government should ensure that the Prevention of Cruelty to Animals Act, 1890 was implemented in letter and spirit; that Provincial Government should make functional the Society for Prevention of Cruelty to Animals and/or recognize any NGO working for welfare of animals in terms of the Prevention of Cruelty to Animals Rules, 1961; that the Provincial Chief Secretary should form a committee comprising of experts and representative of NGOs working for animals' welfare and prevention of cruelty for suggesting improvements in existing legislation so as to eliminate cruelty against animals and place such report/suggestions before the legislature for consideration; that all the authorities of the Provincial Government should take immediate steps to ban all types of privately and illegally organized animal cart racings and all sorts of customary games in the Province causing cruelty to animals, and that the concerned police officials should ensure prevention of cruelty to animals in the guise of bull cart racing, oxen cart racing, donkey cart racing, bull fights, ram fights, dog fights and cock fights etc.---Application was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 5---Loyalty to State---Obedience to laws of the land---Any popular sentiment real or contrived should not be used as an excuse to avoid inviolable obligation to obey all laws of the land.

Imran Ahmed Khan Niazi's case PLD 2017 SC 265 ref.

(c) Custom---

----What one could not obtain legally, the same could not be obtained indirectly even in the name of a custom or an old practice.

Habibullah G. Ghouri for Applicants.

Sardar Ali Shah, D.P.G. for the State.

P L D 2018 Sindh 174

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

Syed ALI RAZA---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary and another---Respondents

Constitutional Petitions Nos.D-2025, D-3274, D-2095, D-3318, D-2832, D-2158, D-2366, D-2759 and D-3461 of 2017, decided on 27th September, 2017.

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

----Preamble & Ss.16(a), 18(g)---Reference---Large number (sixty) of accused---Effect---Trial in such cases is never ending and it may end in the death of most of the accused before judgment is announced---One of the objects and purposes of National Accountability Ordinance, 1999, as set out in its Preamble and made specifically clear in S.16(a), is that trials must be expeditious---By putting (sixty) persons in a Reference, object of the legislation is defeated.

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

----Ss.9(a)(vi) & 9(b)---Constitution of Pakistan, Art.199---Constitutional petition---Pre-arrest bail, refusal of---Mala fide---Proof---Petitioner was ex-president of a Bank and was accused of misusing his authority and causing loss to the Bank in the transactions conducted by co-accused posted abroad---Validity---Petitioner had misused his authority/failed to exercise his authority for mala fide reasons in allowing two officials to remain posted abroad beyond the period provided in the Bank's overseas policy in order to shield them from potential criminal liability or disciplinary proceedings---Petitioner did not take any action against such postings when the same had come to his attention---Under overseas posting policy, before an extension could be granted, the extendees had to first return to Pakistan before they could be extended which they failed to do and thus their extension was illegal---No material was available to suggest that National Accountability Bureau acted in mala fide manner against petitioner which was a pre-condition for the grant of pre-arrest bail---Pre-arrest bail was declined in circumstances.

[Case-law referred]

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

----Ss. 9(a)(vi) & 9(b)---Constitution of Pakistan, Art.199---Constitutional petition---Pre-arrest bail, confirmation of---Principle of consistency---Mala fide---Proof---Petitioners were accused of committing misuse of authority and causing loss to the Bank---Plea raised by both the accused was that they were junior officers and they had acted upon the "Non-involvement certificate" issued by previous President of the Bank---Validity---Tinges of mala fide were present and NAB failed to include in the Reference the then President of the Bank who had given the "Non-involvement certificate" which petitioners had acted upon and without which no post-retirement service benefits could have been given to co-accused---Petitioners had nothing to do with re-hiring of co-accused which was apparently done so that he could face disciplinary proceedings although it was strongly objected to by the State Bank of Pakistan---Tinge of mala fide on the part of NAB existed and it was an off shoot case which had nothing to do with huge losses sustained by overseas operations through its lending operations---Relatively minor loss to the Bank was attributed to the petitioners, which could be recovered from the co-accused and there was complete lack of material to show any connivance with any of the other accused in major overseas operations scam---Pre-arrest bail was confirmed in circumstances.

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

----S. 9(b)---Criminal Procedure Code (V of 1898), S.497---Bail, refusal of---Principle---Key consideration in refusing to grant post-arrest bail is whether there are reasonable grounds to connect accused persons to the offence if the offence falls within the prohibitory clause of S.497, Cr.P.C.

[Case-law referred]

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

----S. 24---Discretion, exercise of---Principle---Discretion must be exercised reasonably and not arbitrarily or on whimsical grounds.

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

----Ss. 9(a)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, refusal of---Misuse of authority and causing loss to the Bank---Petitioners were employees of the Bank and were arrested by NAB on the allegations of misuse of their authority and causing loss to the Bank---Validity---Actions of both the petitioners in allowing extensions to co-accused in complete violation of overseas posting policy amounted to complete misuse/failure to exercise authority which contributed to colossal loss in millions of US Dollars to the Bank---On receipt of letter from the Bank official addressed to one of the petitioners (the President of the Bank) setting out grave illegalities committed by co-accused in a foreign country operations and being aware of the same, he did not take any action in the matter---Sufficient material existed on record to connect both the petitioners to the offence for which they were charged---Bail was refused in circumstances.

For Petitioners

Haider Waheed (in C.P. No.D-2025 of 2017).

Syed Mahmood Alam Rizvi (in C.P. No.D-3274 of 2017).

Muhammad Azam Chughtai (in C.P. No.D-2095 of 2017).

Syed Mahmood Alam Rizvi (in C.P. No.D-3318 of 2017).

Shahab Sarki (in C.P. No.D-2832 of 2017).

Ali Almani (in C.P. No.D-2158 of 2017).

Jaffar Raza (in C.P. No.D-2366 of 2017).

Azeem Farooqui (in C.P. No.D-2759 of 2017).

Ghulam M. Dars (in C.P. No.D-3461 of 2017).

For Respondents

Yasir Siddiq, Special Prosecutor, NAB.

P L D 2018 Sindh 199

Before Munib Akhtar and Abdul Maalik Gaddi, JJ

DIGRI SUGAR MILLS LIMITED and 2 others---Appellants

Versus

Mian KAMRAN ILAHI through Legal Heirs and another---Respondents

High Court Appeal No.78 of 2014, decided on 19th June, 2017.

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

----S. 182--- Principal and agent---Relationship---Scope---Agreements existed between parties according to which plaintiffs were to facilitate sale of goods on behalf of defendant in the market---Effect---Term 'agent' under S. 182 of Contract Act, 1872 was a person employed to do any act for another or to represent another in dealings with third person and person for whom such act was done or who was so represented was called 'principal'---Agreements provided that plaintiffs would facilitate sale of sugar on behalf of defendant company in market on due dates (dates on which delivery orders could be presented) at market rates or price---Such facilitation was to be regarded as authority for plaintiffs to represent defendant company in its dealings with third persons for sale of sugar---Such clauses of agreement had brought relationship between the parties within the scope of S.182 of Contract Act, 1872 and there was an "agency" between the parties.

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

----S. 202---Interest of agent---Scope---Nothing existed in S.202 of Contract Act, 1872 that requires that interest that agent "himself" must have, should necessarily exist at the very inception or moment "agency" is created.

(c) Sale of Goods Act (III of 1930)---

----Ss.2(4), 4 & 58---Contract Act (IX of 1872), S.202---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Future goods---Agency with interest---Plaintiffs specific performance of six agreements between the parties on the basis of which plaintiffs were holding to facilitate sales of sugar on behalf of defendant company in market on due dates (dates on which delivery orders could be presented) at market rates or price---Single Judge of High Court issued interim injunction in favour of plaintiffs---Validity---Contracts were those entered into by plaintiffs while acting as agents and they had no personal liability on such score---If plaintiffs were entered into contracts without disclosing that they acted for a principal, then they were prima facie in breach of the clause of agreement, which provided that all sales would be between the seller and market and the investor would only facilitate the sale---Plaintiffs entered into contracts only as agents and not otherwise---If plaintiffs incurred any personal liability by not disclosing name of their principal (i.e. the defendant company) then they had acted recklessly, in disregard of their contractual commitments and had only themselves to blame for any predicament---Pecuniary compensation could be an adequate relief and plaintiffs were not entitled to specific performance of the agency coupled with an interest and were also not entitled to any injunctive relief---Single Judge of High Court failed to advert to any of such matters or aspects and had erred materially in granting interim injunction in favour of plaintiffs---Division Bench of High Court set aside order passed by the Single Judge of High Court---Intra court appeal was allowed in circumstances.

Re Wait [1927] 1 Ch. 606 and Fospac (Pvt) Ltd. v. Fosrock International and another PLD 2011 Kar. 362 ref.

Ijaz Ahmed Zahid for Appellants.

Haider Waheed and Ahmed Masood for Respondents.

P L D 2018 Sindh 222

Before Muhammad Ali Mazhar, J

ROCHE PAKISTAN LIMITED through Authorized Attorney---Plaintiff

Versus

PAKISTAN through Secretary and 3 others---Defendants

Suit No.2161 and C.M.A. No.14255 of 2016, decided on 12th October, 2017.

(a) Drug Regulatory Authority of Pakistan Act (XXI of 2012)---

----S. 3---Drug Regulatory Authority of Pakistan (DRAP), establishment of--- Object and Scope--- DRAP has been established to provide for effective coordination and enforcement of Drugs Act, 1976 and to bring harmony in inter-provincial trade and commerce of therapeutic goods.

(b) Drug Regulatory Authority of Pakistan Act (XXI of 2012)---

----S. 7, Sched. Paras. 1 & 6---Drugs Act (XXXI of 1976), S. 7---Specific Relief Act (I of 1877), Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration and injunction--- Interim injunction, grant of---Registration of drugs---Plaintiff company sought quashing of decision of DRAP to register 'Reditux' injection as a similar bio-therapeutic product was ultra vires the World Health Organization (WHO) Guidelines and Drug Regulatory Authority of Pakistan Act, 2012---Plaintiff sought prohibition order against authorities to issue letter of registration to defendant---Validity---Question of public admittance at large to Life Saving Drugs presupposed vast magnitude---Inimical effect on such access due to grant of injunction would cause disadvantages manifold to larger public interest---Same injection was being vended in several other countries and in Pakistan, it would be marketed on import and not through a license to manufacture---Such was not intention of legislature that for each import and on each moment in time separate exercise should be carried out by DRAP to match bioequivalence or bio-similarity under WHO Guidelines---Research reports and dossier submitted by originator could serve the purpose which had already been considered by the experts---Responsibility of issuing license to manufacture and/or registration of drugs was entrusted and devolved on DRAP---While according license or registration to any drug it was inherent and intrinsic responsibility of authorities to ensure best satisfaction with conscientiousness and trustworthiness and if something was found wrong, then naturally DRAP was required to act in furtherance of correction and ratification---Experts had recommended 'Reditux' generic bio-similar injection to be approved so that a cost effective alternate brand of drug could become available for patients; provided literature showed that preparations were safe; trials had been conducted in country of origin with satisfactory outcome; clinical trials conducted in country of origin indicated that preparations were efficacious---Material provided on record also indicated that preparations were comparable to published literature for innovator 'Rituximab'---Chronology translated and deciphered that after due satisfaction and vetting of experts' reports, DRAP decided to accord registration---Any party seeking aid of Court by way of injunction must, as a rule, should have satisfied the Court that interference was necessary to protect from species of injury which Court called irreparable before legal right could be established on trial---In technical sense, with question of granting or withholding preventive equitable aid, an injury was said to be irreparable either because no legal remedy could furnish full compensation or adequate redress or owing to inherent ineffectiveness of such legal remedy---High Court declined to interfere in the matter--- Application was dismissed in circumstances.

Messrs Alfalah Medicos and another v. Government of Punjab and others PLD 207 Lah. 124; Golden Oraphies (Pvt.) Ltd. and others v. Director of Vigilance, Central Excise, Customs and Sales Tax and others 1993 SCMR 1635; Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305; Ihsan-ur-Rehman v. Mst. Najma Parveen PLD 1986 SC 14; F.Hoffmann-La Roche Ltd. and another v. Gipla Limited 148 (2008) DLT 598, MIPR 2008 (2) 35; Brawn Laboratories Ltd. v. Rhone Poulenc Rorer S.A. and another 1999 IIIAD Delhi 849, 79 (1999) DLT 507, 1999 (49) DRJ 630 and Al-Tamash Medical Society v. Dr. Anwar Ye Bin Ju and others 2017 MLD 785 ref.

Hyder Ali Khan for Plaintiff.

Faisal Siddiqi for Defendant No.4.

Salman Talibuddin, Additional Attorney General assisted by Ms. Alizeh Bashir.

Masood Hussain Khan, Assistant Attorney General.

P L D 2018 Sindh 249

Before Adnan Iqbal Chaudhry, J

LETTER OF ADMINISTRATION AND SUCCESSION CERTIFICATE IN RESPECT OF MOVEABLE AND IMMOVEABLE PROPERTIES OF DECEASED JASIM RASOOL: In the matter of

S.M.A. No.312 of 2017, decided on 5th March, 2018.

Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Letter of Administration and Succession certificate, issuance of---Minor legal heir---Bank account---Share of minor retained by Nazir of the Court---Petitioner (widow of the deceased) had applied for grant of Letter of Administration and Succession Certificate in respect of moveable and immoveable properties left by her deceased-husband---High Court directed that Letter of Administration should be issued to the petitioner as per the relevant rules for effecting mutation of the immovable properties of the deceased; that as regards the prayer for a Succession Certificate for the Bank accounts, one of the legal heirs was a minor, therefore, the Nazir of the High Court should administer the Bank accounts of the deceased by calling for / collecting the relevant Bank balances by distributing the share therein of the adult legal heirs directly to them, and by retaining the share of the minor legal heir until further orders; that for such assignment, the fee of the Nazir (fixed at Rs.15,000) should be deducted from the Bank balances before distribution---Application was granted accordingly.

Allah Warayo Khan for Petitioner.

P L D 2018 Sindh 251

Before Muhammad Shafi Siddiqui, J

LIAQUAT ALI---Appellant

Versus

Mst. HUMA FAIZ and another---Respondents

Miscellaneous Appeal No.39 of 2016, decided on 8th January, 2018.

Succession Act (XXXIX of 1925)---

----Ss. 283, 284, 299 & 372---Succession certificate---Provident fund, gratuity, group insurance, salary dues, leave encashment, benevolent fund and welfare grant--- Deceased was issueless and survived by his widow, two sisters and two brothers--- Appellant was one of the brothers of deceased who sought succession certificate---Trial Court issued succession certificate in favour of widow and excluded the appellant---Validity---Trial Court had rightly concluded that appellant was not entitled for succession certificate---Widow of deceased was also not entitled for grant of succession certificate in her favour on grounds that funds in question were never considered as assets of deceased for which succession certificate could be granted---Grant of succession certificate in favour of widow would mean that assets were liable to be distributed among all legal heirs, which was incorrect---Widow was nominee and entitled for such funds, i.e., provident fund, gratuity, group insurance, welfare funds and benevolent fund without having any recourse of obtaining a succession certificate---Succession certificate was granted for its distribution to legal heirs for salary dues and leave encashment---High Court directed authorities to deposit amounts of salary and leave encashment with court officials who would distribute same amount among legal heirs as per their entitlement--- Amount of concerned provident fund, gratuity, group insurance, welfare funds and benevolent fund would be released by authorities to widow of deceased as required under law after due verification and satisfaction as succession certificate for release of such amount was not required---Appeal was disposed of accordingly.

Federal Government v. Public at Large PLD 1991 SC 731 and Late Javed Iqbal Ghaznavi's case PLD 2010 Kar. 153 rel.

Muhammad Ramzan for Appellant.

Sajjad Hussain for Respondent No.1.

Ms. Naheed Parveen, Deputy Attorney General for Respondent No.2.

P L D 2018 Sindh 256

Before Mohammad Karim Khan Agha and Mahmood A. Khan, JJ

RAJIB ALI SHAH---Petitioner

Versus

CHAIRMAN NAB and others---Respondents

Constitutional Petition No.D-2741 of 2016, decided on 8th March, 2017.

National Accountability Ordinance (XVIII of 1999)---

----S. 16(a)---Accountability Court---Pecuniary jurisdiction---Scope---Conclusion of trial---Pecuniary value being less than Rs.100 million---Petitioner sought transfer of their cases from Accountability Courts to other courts having jurisdiction due to low monetary value involved in their cases---Validity---Petitioners failed to produce any stay order issued by superior Courts preventing Accountability Courts from proceeding with National Accountability Bureau references filed before them---Accused were behind the bars while their cases had been stayed---Requirement of Preamble and S.16(a) of National Accountability Ordinance, 1999 provided for expeditious trials---Many trials before Accountability Courts had come to a grinding halt and were not serving interests of justice---High Court lifted/withdrew interim restraining/stay order in connection with any of proceedings related to petitions and directed to continue proceedings including hearing of final arguments and announcements of judgments by Accountability Courts and to proceed with any such references pending before court---Constitutional petition was disposed of accordingly.

Amjad Hussain v. Chairman NAB 2017 YLR 1 and Abdul Aziz Memon v. NAB PLD 2013 SC 594 rel.

Dareshani Ali Haider 'Ada', for Petitioners (in C.P.No.D-2741/2016 and C.P.No.D-121/2017).

Qamabar Ali Solangi for Petitioners ((in C.P.No.D-3783/2016).

Iftikhar Ali Arain and Zulfiqar Ali Sangi for Petitioners (in C.P.No.D-4718/2016).

Zulfiqar Ali Sangi for Petitioners (in C.P.No.D-183/2017).

Mehfooz Ahmed Awan for Petitioner (in C.P.No.D-140/2017).

Shafqat Raheem Rajput for Petitioner (in C.P.No.D-294/2017).

Mumtaz Ali Jahangir Lashari for Petitioners ((in C.P.No.D-406/2017).

Bakhshan Khan Mahar for Petitioners (in C.P.No.D-441/2017).

Ghulam Shabeer Shar for Petitioners (in C.P.No.D-4946/2016).

Muhammad Zubair Malak, A.D.P.G.A. NAB Sukkur and Abdul Majeed Memon, Special Prosecutor NAB (Sukkur).

Nisar Ahmed G. Abro, D.A.G.

P L D 2018 Sindh 263

Before Munib Akhtar and Zulfiqar Ahmad Khan, JJ

Nawab GHAIBI SARDAR KHAN CHANDIO---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and 2 others---Respondents

Constitutional Petition No.D-3281 of 2015, decided on 11th September, 2017.

Constitution of Pakistan---

----Arts. 62(f) & 63(2)(3)---Disqualification of Member of Parliament---Phrase 'declaration to the contrary by a court of law' occurring in Art.62(f) of the Constitution---Scope---Direct complaint to Election Commission---Scope---Petitioner was a returned candidate and he was aggrieved of proceedings initiated against him by Election Commission on direct complaint of respondent---Validity---Election Commission itself could not make a declaration to the effect that a legislator did not satisfy one or more of the requirements of clause (f) of Art.62 of the Constitution---Even if the matter was properly fixed before Election Commission in terms of Art. 63(2) and (3) of the Constitution, if the ground taken for disqualification was that the legislator had failed to meet the requirements of Art. 62(1)(f) of the Constitution but there was no declaration to such effect by a Court of law, proceedings must necessarily fail---Reference to Election Commission must be dismissed even if it was satisfied that on merits of the case before it, the legislator did not meet requirements of clause (f) of Art. 62 of the Constitution---In absence of such declaration, Election Commission was bound to dismiss the Reference---High Court quashed the complaint filed by respondent and all proceedings taken, actions done and notices issued by Election Commission arising out of or in relation thereto---Constitutional petition was allowed in circumstances.

Bashir Ahmed Halepota v. Eection Commission of Pakistan and others C.P. No.D-7199 of 2016; Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828; Najeeb ud Din Owasi and another v. Amir Yar Waran and others PLD 2013 SC 482; Allah Dino Khan Bhayo v. Election Commission of Pakistan and others 2013 SCMR 1655; Squib Pakistan (Pvt) Ltd. and another v. Commissioner of Income Tax and another 2017 SCMR 1005; Shabbir Ahmed Bijrani v. Election Commission of Pakistan and others 2016 CLC Notes 137 and Imran Ahmed Khan and others v. Mian Muhammad Nawaz Sharif and others C.P. No.29 of 2016) ref.

Abid Zuberi and Ayan Mustafa Memon along with Hidayatullah Mangrio for Petitioner.

Mureed Ali Shah for Respondent No.3.

Asim Mansoor Khan, D.A.G.

Abdullah Hanjrah, Law Officer, Election Commission of Pakistan.

P L D 2018 Sindh 274

Before Muhammad Ali Mazhar and Abdul Malik Gaddi, JJ

HUSSAIN DEVELOPERS---Petitioner

Versus

1ST SENIOR CIVIL JUDGE, KARACHI-SOUTH and 2 others---Respondents

Constitutional Petition No.D-206 of 2008, decided on 26th December, 2017.

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

----O. XII, R.6---Admission--- Scope--- Admission in written statement can be in respect of entire claim or even for a part of claim for which decree can be passed separately---Either party is enabled at any stage of suit to obtain judgment or an appropriate order---Wide discretion has been conferred under O. XII, R. 6, C.P.C. on Court and the Court may, at any stage of suit, on application of any party, without determination of any other question, make such order giving such judgment as it may think fit on the basis of admission of fact made in pleadings or otherwise--- Judgment on admission is not a matter of right but is in discretion of Court if a case involves questions which cannot be conveniently disposed of on a motion under O. XII, R. 6, C.P.C.---Court may in exercise of its discretion refuse the motion---Admission before Court, under O.XII, R.6, C.P.C., must be clear, unambiguous, unconditional or unequivocal.

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

----S.115 & O. XII, R. 6---Specific Relief Act (I of 1877), S.12---Amendment of decree--- Scope--- On the basis of admission made by defendant in its written statement, Trial Court passed decree in favour of plaintiff---Lower Appellate Court in exercise of revisional jurisdiction not only maintained judgment and decree passed by Trial Court but also modified the decree by imposing new conditions in it---Validity---Court in its revisional jurisdiction could not travel beyond the scope of S.115 C.P.C. and could not go into the matters not relevant for the purposes of testing jurisdictional error committed by Court below---Revision was a matter between superior Court and subordinate Court regarding the matter in exercise of jurisdiction---Appeal was a substantive right whereas revisional jurisdiction was discretionary---Appellate Court could exercise all powers of Trial Court, whereas revisional jurisdiction was a part of general appellate jurisdiction---While affirming order passed by Trial Court, revisional Court added some further relief and directions which were unwarranted and not commensurate to revisional jurisdiction exercised by revisional Court---High Court modified and annulled order passed by Lower Appellate Court to the extent of modification of decree passed by Trial Court---Constitutional petition was dismissed accordingly.

Macdonald Layton and Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co. and others 1996 SCMR 696; Federation of Pakistan and others v. Ally Brothers and Company (Pak.) Ltd and another 2001 MLD 1615 and Kassamali Alibhoy v. Shaikh Abdul Sattar PLD 1966 (W.P.) Kar. 75 ref.

Mehar Khan for Petitioner.

Ishtiaq A. Memon for Respondent No.3.

Ms. Nasreen Sehto, State Counsel.

Respondent No.3 is also present.

P L D 2018 Sindh 285

Before Aziz-ur-Rehman, J

TRADING CORPORATION OF PAKISTAN---Plaintiff

Versus

Messrs RAHAT AND COMPANY---Defendant

Suit No.196 of 1996, decided on 18th January, 2017.

Civil Procedure Code (V of 1908)---

----O. VI, Rr. 14, 15, O.XIV R.5 & O.XXIX, R.1---Suit by Corporation---Signing of pleadings---Legal issue---Suit for recovery of money was filed by a Corporation---Defendant raised the plea that suit was filed without authorization of Board of Directors of the Corporation and was not maintainable---Validity---Objection of defendant regarding lack of authority of person who signed plaint was not only an afterthought, highly technical, remote but was irrelevant after merger of the plaintiff Corporation into another Corporation and filing of amended plaint duly signed, verified and filed by an official of the Corporation to which the plaintiff Corporation merged---Official of Corporation to which it was merged, under the resolution of its Board of Directors, was duly authorized to do the needful---High Court declined to dismiss the suit merely for want of said authorization and that too after filing of amended plaint---Suit was maintainable in circumstances.

Ghulam Hyder Shaikh for Plaintiff.

H.A. Rehmani along with Ms. Naheed Akhtar for Defendant.

P L D 2018 Sindh 303

Before Muhammad Ali Mazhar, J

SINOTEC CO. LIMITED through Authorized Person---Plaintiff

Versus

PROVINCE OF SINDH through Secretary Sindh and 5 others---Defendants

Suit No.491 of 2017, decided on 15th September, 2017.

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

----Ss. 42 & 54---Sindh Public Procurement Rules, 2010, Rr. 4 & 13---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2--- Suit for declaration and injunction---Application for grant of interim injunction---Plaintiff company assailed acceptance of financial bid of defendant for award of tender on the grounds of being in violation of Sindh Public Procurement Rules, 2010---Validity---Plaintiff company had approached the Court with a strange aspiration and entirety that despite submitting higher bid than defendant, it should have been awarded contract which claim was totally unwarranted and unjustified---Plaintiff company neither could dictate nor give orders to competent authority to accept its bid and award contract in its favour, no matter the bid was higher than the bid submitted by defendant, nor could claim any vested right in such regard---Documents available on record unequivocally elucidated and expounded that entire proceedings were conducted assiduously with fairness and transparency---Plaintiff company could not make out any prima facie case as neither balance of convenience laid in its favour nor any question of irreparable injury had arisen--- Injunction was a writ framed according to circumstances of case commanding an act which Court had regarded as essential to justice or restraining an act which it esteemed contrary to equity and good conscience---High Court declined to issue any injunction in favour of plaintiff---Application was dismissed in circumstances.

Al-Tamash Medical Society v. Dr. Anwar Ye Bin Ju 2017 MLD 785; Sayyid Yousaf Hussain Shirazi v. Pakistan Defence Officers' Housing Authority 2010 MLD 1267 and Nassemul Haq v. Raes Aftab Ali Lashari 2015 YLR 550 rel.

Patel Engineering Ltd. and another v. National Highways Authority of India and others AIR 2005 Delhi 298; Messrs Driplex Water Engineering Limited v. The Punjab State Electricity Board and another AIR 1991 Punjab and Haryana 38; Hitech Audio Systems Pvt. Ltd. v. The State of Maharashtra and others 2016(3) Bom CR 552, [2016] 135 SCL 122 (Bom.); Lanco Constructions Ltd. v. Government of A.P. Irrigation 1999 (4) ALD 5, 1999 (4) ALT 176; Ramana Dayaram Shetty v. International Airport Authority of India and others (1979) 3 SCC 489; Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676; Habibullah Energy Limited v. WAPDA and others PLD 2014 SC 47; Messrs Power Construction of China Ltd. v. Pakistan Water and Power Development Authority and others PLD 2017 SC 83; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt) Ltd. and others PLD 2014 SC 1 and Suo Motu Case No.25 of 2009 (2011 SCMR 1743) ref.

(b) Constitution of Pakistan---

----Art. 199--- Judicial review--- Principle--- In absence of some un-rebuttable material on record regarding mala fides, High Court does not annul order of executive authority which otherwise does not reflect any illegality or jurisdictional defect.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction---Principle---Injunction is an equitable relief based on well-known equitable principles---Relief being wholly equitable in nature, party invoking jurisdiction had to show that it was not at fault---Phrase 'Prima facie case' in its plain language signifies a triable case where some substantial question is to be investigated or some serious questions are to be tried---Phrase 'Prima facie case' needs not to be confused with 'Prima facie title'---Before granting injunction Court is bound to consider probability of plaintiff succeeding in suit---All presumptions and ambiguities are taken against party seeking to obtain temporary injunction---Balance of convenience and inconvenience being in favour of defendant i.e. greater damage would arise to defendant by granting injunction in event of its turning out afterwards to be wrongly provided than to plaintiff from withholding it, in event of legal right proving to be in his favour, injunction may not be granted---Party which seeks aid of Court by way of injunction must as a rule, satisfy Court that interference is necessary to protect from species of injury which Court calls `irreparable' before legal right can be established on trial---In technical sense with question of granting or withholding preventive equitable aid, an injury is said to be irreparable either because no legal remedy furnishes full compensation or adequate redress or owing to inherent ineffectiveness of such legal remedy.

Kashif Sarwar Paracha for Plaintiff.

Ms. Chen Wan, Representative of the Plaintiff.

Chris Hall, (Chief resident Engineer, Project Implementation Consultants).

Shafqat Hussain Wadho, P.D., S.B.I. Project along with Abdul Razzaque Memon and Dr. Ali Asghar Mahessar.

Irfan Ahmed Qureshi for Defendant No.3.

M. Anas Makhdoom and Ahmed Farhaj for Defendant No.6.

Ziauddin A. Junejo, Addl. A.G. Sindh.

P L D 2018 Sindh 325

Before Nadeem Akhtar, J

Mst. AMINA KHATOON and 5 others---Appellants

Versus

Mst. NIGHAT JABEEN and another---Respondents

Succession Miscellaneous Appeal No.S-03 and C.M.A. No.480 of 2017, decided on 9th February, 2018.

Succession Act (XXXIX of 1925)---

----Ss. 370, 372 & 384---Stepbrother of deceased, entitlement of---Appellant sought succession certificate for assets left by her deceased husband---Grievance of appellant was that stepbrother of her deceased husband could not be arrayed in list of legal heirs under Hanafi law of inheritance---Validity---According to Hanafi law, in the first instance, property of deceased was to go to sharers and if estate was not exhausted by sharers, it was to go to residuaries and if there was no sharer and/or residuary, property was to be distributed among distant kindred---Heirs nearer in degree excluded more remote---Stepbrother of deceased was neither a sharer nor a residuary and he had no right to inherit from estate of deceased---High Court set aside order passed by Trial Court to the extent of inclusion of name of stepbrother of deceased in list of legal heirs---Appeal was allowed accordingly.

Nisar Ahmed Bhanbhro for Appellants.

Mst. Nighat Jabeen Respondent No.1 (present in person).

P L D 2018 Sindh 327

Before Muhammad Ali Mazhar, J

Syed FARUKH MAZHAR---Plaintiff

Versus

SGS HEADQUARTERS and others---Defendants

Suit No.750 of 2016 and C.M.A. No.13637 of 2017, decided on 23rd February, 2018.

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

----Preamble---Procedural law---Object, scope and purpose---"Substantive law" and "law of procedure"---Distinction---Provisions of Code of Civil Procedure, 1908, were to be considered liberally and as far as possible, technical objections should not be allowed to defeat substantial justice---Technical construction of sections that leaves no room for reasonable elasticity of interpretation was to be guarded against---Code of Civil Procedure, 1908 is a body of general law, designed to facilitate justice and it should not be treated as an enactment providing for punishment and penalties---Law of justice should be so constructed as to render justice where reasonably possible---Construction which reduces the statute to a futility has to be avoided---Statute or any enacting provision therein must be so construed as to make it effective and operative---Rules framed in Code of Civil Procedure, 1908, are for advancement of justice and should not, as far as possible, be allowed to operate so as to defeat the ends of justice---Distinction between "substantive law" and "law of procedure" is very narrow one but for the purposes of jurisprudence a distinction is made particularly from the point of view of administration of justice---Procedure is mere machinery and its object is to facilitate and not to obstruct administration of justice.

Narsingh Das v. Mangal Dubey and others (1883) ILR 5All 163 and Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 rel.

(b) Interpretation of statutes---

----"Substantive" or "procedural" law---Determination---Statute can be either substantive or procedural; substantive law defines rights while procedural law deals mainly with procedure or remedies.

(c) Interpretation of statutes---

----Change in law---Scope---Law must not become stagnant or archaic while society moves forward---Law must be accessible, intelligible and must change with times responding to realities of modern life.

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

----S. 151, O.X, R.1-A & O.XXVI, R.4---Suit for declaration and injunction---Local Commissioner---Recording of evidence---Plaintiff sought appointment of Local Commissioner to record evidence as it would not cause prejudice to any party---Validity---Parties could appear before Local Commissioner on given date and time with their convenience and evidence was recorded in congenial environment rather than recording evidence in Court with a heavy board where above and beyond the cases fixed for evidence, a large amount of different cases were also being fixed daily with diverse stages---Purpose of residuary S.151. C.P.C. was to tackle and handle some particular situations where dispensation of justice could be done effectively---Parties could bear cost for their respective witnesses subject to its adjustment at the time of final determination of the lis and such arrangement was fair and suitable---High Court appointed an advocate as Local Commissioner to record evidence of parties and directed the parties to file their affidavits in evidence along with documents, if any---Application was allowed accordingly.

Iqbal M. Hamzah v. Gillette Pakistan Ltd. 2011 YLR 277; Mrs. Badar Rahim v. Hammad Asif Dosslani and another 2009 CLC 459; Ishtiaq Ahmed's case 2016 SMCR 943; New Jubilee Insurance Company v. National Bank of Pakistan PLD 1999 SC 1126; Suo Motu Case No.l4 of 2010 PLD 2012 SC 553; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 405; National Bank of Pakistan v. Younus Habib and another HCA No.230 of 2014; Messrs United Bank Limited v. Messrs Plastic Pack (Pvt.) Ltd. and others 2012 CLC 229 and Falah-ul-Momineen Trust v. V.P. Abdullah PLD 1970 Kar. 179 ref.

Khawaja Shams-ul-Islam, Imran Taj and Shahzad Mehmood for Plaintiffs.

Mansoor Ahmed Shaikh and Jawaid Raza for Defendants.

PP L D 2018 Sindh 339

Before Muhammad Ali Mazhar and Abdul Maalik Gaddi, JJ

Dr. (Mrs.) ANWAR MANGI---Appellant

Versus

Messrs PAK COMMODITIES INTERNATIONAL and 2 others---Respondents

High Court Appeal No.301 of 1998 and C.M.As. Nos.1654 of 1998 and 1656 of 1999, decided on 16th May, 2017.

Civil Procedure Code (V of 1908)-

----O. XXXVIII, R.5 & O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S.56---Attachment before judgment---Scope---Suit for recovery of money and permanent injunction was filed by plaintiffs and Single Judge of High Court passed direction to attach property of defendant before passing of any judgment---Validity---Object of attachment before judgment was to prevent an attempt on part of defendant of defeating realization of decree which was to be ultimately passed against him---Such was a preventive and not a punitive action---Attachment could be ordered, if court was satisfied that defendant was about to dispose of whole or any part of his property with intent to obstruct or delay execution of decree, with or without application as court had to consider/see substance of case to meet the ends of justice---Agreement between defendants was on record and same was not disputed by the parties---Order passed by Single Judge of High Court was in accordance with law and equity---Division Bench of High Court declined to interfere as there was no perversity, illegality and incorrectness---Intra-court appeal was dismissed in circumstances.

Messrs H. Nizam Din and Sons Ltd, Karachi v. M.V. Oroomee and 4 others PLD 1977 Kar. 722; Associated Drillers Ltd., Karachi v. Messrs Dirk Verstoop B. V., Karachi PLD 1979 Kar. 734; Messrs D.H.L. International Ltd. v Messrs N.T.C. Ltd. 1982 CLC 1360; Farhat Imrana v. Etimad (Pvt.) Ltd. 2015 YLR 2674; Farida Saeed v. Khurram Zafar 2016 CLC 251; Ali Ahmed alias Ali Ahmed Mia v. The State PLD 1962 SC 102; S.M. Zaheer v. Pirzada Syed Fazal Ali Ajmeri 1974 SCMR 490 and Haji Muhammad Khan and 2 others v. Islamic Republic of Pakistan and 2 others 1992 SCMR 2439 ref.

Jam Zeeshan Ali for Appellant.

K.A. Wahab for Respondent No.1.

Nemo for Respondents Nos.2 and 3 though served.

P L D 2018 Sindh 346

Before Munib Akhtar and Yousuf Ali Sayeed, JJ

BASHIR AHMED HALEPOTO---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, through Chief Election Commission, Islamabad and 2 others---Respondents

Constitutional Petition No.7199 of 2016, decided on 22nd May, 2017.

Sindh Local Government Act (XLII of 2013)--

----Ss. 55, 58 & 59---Sindh Local Councils (Election) Rules, 2015, R.26---Code of Conduct, violation of---Petitioner was Member Provincial Assembly and he was disqualified by Election Commission from membership on grounds that during local bodies elections, he violated Code of Conduct---Validity---If Election Commission was satisfied on facts and circumstances that petitioner had committed any offence, Commission could initiate a criminal prosecution by filing complaint in court of competent jurisdiction---Election Commission itself could not take cognizance of such offence and punish petitioner (or any other person for that matter) for any such breach or violation---If and to extent of any act that came within scope of any provision of Sindh Local Government Act, 2013 and was also violation of Code of Conduct, then Election Commission would have jurisdiction to try concerned person for contempt of court---Election Commission had only sought to disqualify petitioner, order in question must necessarily be set aside as Commission had no jurisdiction in such regard---High Court set aside notifications and orders issued by Election Commission---Constitutional petition was allowed accordingly.

Syeda Waheeda Shah v. Election Commission of Pakistan and others PLD 2013 Sindh 117 ref.

Jhamat Jethanand and Haq Nawaz Talpur for Petitioner.

Muhammad Mansoor Mir for Respondent No.3.

Abdul Jabbar Qureshi, A.A.G.

Abdullah Hanjrah, Law Officer Election Commission of Pakistan.

P L D 2018 Sindh 360

Before Muhammad Faisal Kamal Alam, J

MOHAMMAD SARWAR---Plaintiff

Versus

GOVERNMENT OF SINDH through Secretary and others---Respondents

Suit No.74 of 1991, decided on 23rd June, 2017.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Suit for recovery of compensation amount---Custodial death---Acquittal in criminal case---Effect---Vicarious liability---Quantum of damages---Determination of---Procedure---Deceased died in the custody of police officials---Contention of the police was that deceased died due to cardiac arrest---Validity---None of the police officials entered the witness box to defend the claim against them---Written statement filed by the police officials had lost its evidentiary value as contents whereof were never proved in the evidence---Deceased died while he was in the custody of police officials---Plaintiff was to prove the factum of incident only---Burden would shift on the police officials to disprove the causation if they wanted to succeed in the claim against the plaintiff---Present case did fall within the purview of Fatal Accidents Act, 1855---Prosecution in a criminal case was to prove beyond reasonable doubt the guilt of accused but in civil proceedings the matter had to be decided on the basis of preponderance of probabilities---Acquittal of (private) defendants in the criminal case did not have any adverse bearing on the present lis---Police official were liable to compensate the plaintiff by applying the rule of vicarious liability---Where damages were sought for the personalized acts of defendants, the proceedings would abate on the death of defendants---Deceased had not died a natural death but same was caused by the wrongful acts of police officials (defendants)---Pleadings of plaintiff with regard to deceased's life expectancy, running of business, monthly earning and other credentials had neither been questioned nor rebutted in the evidence---Plaintiff was never cross-examined in the present case---Plaintiff had claimed Rs.50,00,000/- towards damages and compensation---Claim of plaintiff with regard to quantum of damages was also unchallenged---Life expectancy of seventy five years in plaintiff's family had been proved---Deceased might also have lived for another fifty years approximately---Claim of awarding damages of Rs.50,00,000/- was justified---Master/employer in the claims with regard to tortuous liabilities would be liable for the wrongful acts of his employees/servants---Provincial Government and Inspector General of Police were liable to compensate the plaintiff besides other defendants---Defendants (Police officials) were liable to pay the damages/compensation of Rs.50,00,000/- together with 10% markup from the date of institution of suit till realization of the amount to the plaintiff and his wife i.e. parent of the deceased jointly and severally---Once Provincial Government and police officials (defendants) had acquired knowledge with regard to the incident, they should have compensated the family of the deceased---High Court observed that State should dispense justice---Public functionaries had failed to discharge their function in accordance with the constitutional mandate---Suit was decreed against the defendants jointly and severally in circumstances.

Islamic Republic of Pakistan through Secretary, Ministry of Defence, Islamabad and others v. Mst. Farzana Shabbir and others 2010 MLD 54; National Logistics Cell v. Abdul Qayyum Khan 2009 MLD 948; Mushtari v. Islamic Republic of Pakistan through Secretary, Ministry of Planning and Development, Islamabad and 2 others 2006 MLD 19; Haji Abdul Razaque v. Pakistan 2005 MLD 114; Aijaz and others v. Karachi Transport Corporation 2004 MLD 491; Mst. Sabira Khatoon and others v. Muhammad Akram Siddiqui and others 2003 MLD 39; Shamim Akhtar v. Muhammad Arif Baloch 2001 YLR 821; Shaukat Ali v. KESC 2001 MLD 1845; Mst. Nusrat Irfana v. Federal Government of Pakistan 2001 CLC 928; Ashiq Masih v. Abbot Laboratories Pakistan Ltd. 2001 CLC 913; Roshan Bai v. Pakistan Steel Mills Corporation 2000 CLC 111; Bibi Khaida v. Government of Sindh 2000 CLC 381; Anisur Rehman v. Government of Sindh 1997 CLC 615; Mst. Sakina v. National Logistic Cell 1995 MLD 633; Pakistan Steel Mills Corporation v. Malik Abdul Habib 1993 SCMR 848; Kazi Arifuddin v. Government of Pakistan PLD 1991 Kar. 291; Hayat Services (Pakistan) Ltd. v. Kandan 1989 CLC 2153; Spin Gul v. Ikramul Haq 1987 MLD 2402; Abdul Haque v. Pakistan Railways Telecomunication Department 1987 MLD 898; Mrs. Nimmi Francis v. Muhammad Saeed Qureshi 1982 CLC 1703; Mst. Zebunnisa v. Sindh Road Transport Corporation 1982 CLC 1228; D.K. Basu v. State of W.B. AIR 1997 SC 610; Inder Singh v. State of Punjab AIR 1995 SC 1949; Bhagwan Sindh v. State of Punjab AIR 1992 SC 1689 ref.

Punjab Road Transport Corporation v. Zahid Afzal and others 2006 SCMR 207; Esteshamuddin Qureshi v. Pakistan Steel Mills Corporation 2004 MLD 361; Chairman Railway Board v. Chandrima Das AIR 2000 SC 988; Saheli a Women's Resources Centre v. Commissioner of Police Delhi AIR 1990 SC 513; Mir Shakeelur Rehman and others v. Yahya Bakhtiar and others PLD 2010 SC 1612; A. Majid Sama v. The Asbestos Cement Industries, Ltd. and another 1996 MLD 803; Mst. Zainab Bibi and others v. Mst. Bilqus Bibi and others PLD 1981 SC 56; Hakim Khan and 3 others v. Government of Pakistan PLD 1992 SC 595; Karachi Transport Corporation v. Muhammad Hanif 2009 SCMR 1005; 2003 SCMR 1140 and Surah 38 Verse 26 (of Holy Quran) rel.

Farrukh Usman and Aamir Maqsood for Plaintiffs.

Syed Aal-e-Maqbool Rizvi, Additional Advocate-General along with Inspector Mian Raza, DSP (Legal) and SIP Muhammad Anwar, P.S. Saddar, Karachi for Defendants.

Mst. Naheed Akhtar, State Counsel.

P L D 2018 Sindh 377

Before Muhammad Shafi Siddiqui, J

SCHERAZADE JAMALI---Petitioner

Versus

HISHAM GILLANI and others---Respondents

Constitutional Petition No.S-4 of 2017, decided on 27th March, 2018.

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

----S. 9---Jurisdiction of Guardian Court (Trial Court)---Acquiescence to the jurisdiction of Court---Scope---Plea of mother that Guardian Court (Trial Court) had no territorial jurisdiction as the ward was not ordinarily residing within the jurisdiction of the Court; that ward was a foreign national by birth and before coming to Pakistan was permanently and ordinarily residing in another foreign country, hence, the jurisdiction of Trial Court did not extend over the ward as he was only in Pakistan for a visit and shall not be subjected to the laws of Pakistan---Validity---When the father surrendered to the jurisdiction of the Trial Court by moving an application for permanent custody of ward, it was promptly responded and replied by filing written statement and jurisdiction was conceded by the mother---Perusal of written statement showed that the mother who was now attempting to challenge the jurisdiction, had actually acquiesced to the jurisdiction of Trial Court---In the written statement the mother stated that the child was residing in city "K" in Pakistan, and that she did not forcefully remove the ward---Once the mother had acquiesced to the jurisdiction, she could not approbate and reprobate at the same time.

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

----S. 9---Jurisdiction of Guardian Court (Trial Court)---Scope---Ordinary residence of ward---Question of jurisdiction even if made dependent on ordinary residence of ward, it may not be a pure question of law that could be assailed at any forum or at any time---Such question had to be specifically pleaded so that the facts in such regard were brought to the notice of the Court---Question of jurisdiction was, thus, not a simple question of law rather a mixed question of law and facts which required determination through evidence.

Mst. Samina Saeed v. Nayyer Nazir and others 1982 CLC 799; Khalid Mehmood v. Mst. Ruqia and another 1999 CLC 1137; Muhammad Shafqat v. Additional District Judge, Talagang and others 2004 YLR 325 and Asif Mowjee v. Mst. Fatema A. Mowjee and another PLD 1987 Kar. 239 ref.

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

----S. 9---Objection regarding jurisdiction of Guardian Court --- Such objection had to be taken/pleaded at the earliest.

Muhammad Sadiq v. Nazar Muhammad and others 1995 SCMR 907 and Chaudhry Ghulam Nabi v. Mirza Javaid Iqbal 1994 SCMR 1893 ref.

(d) Family Courts Rules, 1965---

----R. 6(b)---Family Court---Territorial jurisdiction---Scope---Court within the local limits of which the 'parties' reside or last resided together---'Parties'---Meaning---Word 'parties' included 'party'---Limited meaning to the word "parties" could not be given---Court would have jurisdiction, if any of the party or both parties resided within its local limits.

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

----S. 17---Restriction on movement of ward/minor---Direction by Trial Court not to remove the minor from the jurisdiction of the Court---Legality---Welfare of minor---Scope---While dismissing the application of father for permanent custody the Trial Court directed both the parties not to remove the ward from the jurisdiction of the Court and to deposit the passport of minor---Appellate Court upheld the order of Trial Court on the basis that if the minor was removed from the jurisdiction of the Trial Court, the father would be deprived of visitation rights and would be seriously prejudiced; held, that visiting rights of father was only a part that played a role in the welfare and well-being of the child but it did not form the entire ingredient or composition in the upbringing and grooming of a child---Minor belonged to a family which could afford a better upbringing, education and environment either in Pakistan or anywhere in the world---Courts below should not have seen welfare of the minor only from the angle that the father would miss his opportunity to see his child but it also had to be seen whether a ward who was capable of studying abroad, in case opportunities were available to him, should be deprived on account of the fact that father must not miss his visiting opportunities---Every child has its own peculiar circumstances and his welfare demands may vary---Restriction on movement, in the present case, appeared to be a tool to settle score with the mother but it would not serve the welfare of the minor---High Court set-aside the restriction on movement of the ward and directed that the passport should be returned to the ward; that the ward was at liberty to travel and to be admitted in any best available educational institution, be it in Pakistan or foreign country as desired by the mother, however the selection of the institution shall be subject to approval and permission of the father; that the father shall not be unreasonable in issuing no objection to the admission of the ward to any school, college or university; that any movement of the ward away from the foreign country where the mother desired to take the child for educational benefit or change of school and college etc, within or outside the foreign country, shall be subject to permission of father, however he shall not be unreasonable in considering such request of change of institute and should not withhold such permission in case it was meant for the welfare of the ward; that the father was at liberty to visit the ward at least once in 15 days and/or as many days as agreed between the parents; that insofar as the winter or summer vacations were concerned, father had a right to be with his son and father may travel to him, if he so desired to spend vacation for any period, which may not exceed 30 days during summer vacation and 15 days during winter vacations, or the parties may set a schedule annually on such terms and conditions as they deemed fit and proper---Constitutional petition was disposed of accordingly.

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

----S. 17---Welfare of minor---Scope---Welfare of the minor included his material, intellectual, moral and spiritual well-being---Court was duty bound to take care of the ward's welfare and should ensure that the litigating parents were not settling their own score or satisfying their vanity.

Sameer Ghazanfar for Petitioner.

Shahan Karimi for Respondent No.1.

P L D 2018 Sindh 391

Before Munib Akhtar and Omar Sial, JJ

NAILA MAQBOOL LAGHARI through next of kin, Maqbool Ahmed and 136 others---Petitioners

Versus

GOVERNMENT OF SINDH---Respondent

Constitutional Petition No.D-7826 of 2017 and connected petitions, decided on 5th December, 2017.

(a) Constitution of Pakistan---

----Arts. 97 & 137---Executive authority---Federation and Provinces--- Scope---Key provision as regards executive authority is Art.97 of the Constitution, which relates to the Federation and Art. 137 of the Constitution, applies to the Provinces---Both setout the basic rule in identical language: executive authority extends to those matters in respect of which relevant legislature has power to make laws---If a legislative competence (or field or entry) falls exclusively in Federal domain, then executive authority in relation thereto lies only with the Federation (and, since Parliament can make laws for the whole of Pakistan and also with extra-territorial effect, the executive authority of Federation operates accordingly)---On the other hand if a legislative competence (or field or entry) falls exclusively in the provincial domain, then the executive authority 'in relation thereto lies only with the Provinces.

Pakistan International Freight Forwards Association v. Province of Sindh and another 2017 PTD 1; Dr. Nadeem Rizvi and others v. Federation of Pakistan and others PLD 2017 Sindh 347 and Karamat Ali and others v. Federation of Pakistan and others C.P. No.D-7097/2016 rel.

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

----S. 33 (2)---MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016, Reglns. 3, 4 & 9---Constitution of Pakistan, Arts.97 & 137---Constitution (Eighteenth Amendment) Act (X of 2010), Preamble---Federal or Provincial Authority---Medical profession and education---Scope---Legislative competence has been shifted under the Eighteenth Constitutional Amendment, to Federal List and is now exclusively in Federal domain---No change has been effected in Pakistan Medical and Dental Council Ordinance, 1962, it was previously a Federal law and continues to remain so but executive authority in relation to legislative competence has drastically altered---Competence now being exclusively Federal, the provincial executive authority in relation thereto has ceased to exist and disappeared---Competence ceased to be concurrent, therefore, Federal executive authority, which previously was constrained by and applied only in terms of, the proviso to Art. 97 of the Constitution, now applies in full and of its own accord.

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

----S. 33 (2)---MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016, Regln. 9 (3) & (15)---Constitution of Pakistan, Art.199---Constitutional petition---Medical education---Provincial Authority---Scope---Petitioners were candidates who appeared in entry test for admission in MBBS and they were aggrieved of notification issued by Provincial Government cancelling results of admission test and directing to hold the tests afresh---Validity---Role and duty of provincial department in terms of Regln.9 (2) of MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016, was only ministerial and that of Provincial Government in terms of Regln. 9 (15) of MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016, was essentially facilitative so that, e.g. it was obliged to provide and marshal resources that could be required for the conduct of the test in the manner as required by MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016--- Provisions of Reglns. 9(2) & (15) of MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016, could not be expanded and equating jurisdiction of Provincial Government with that of the Admission Board or Provincial Committee, and anything contrary to the same would amount to misreading and misapplication of MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016---Provision of Regln. 5 of MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016, required each institution to set up an 'Institutional Admission Committee', and provision of Regln. 5(3) of MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016, required such Committee to report any 'discrepancy or irregularity' to Provincial Committee---If at all any question, challenge or issue had arisen as regards the admission test then neither Provincial Government nor Chief Minister had any jurisdiction in the matter---Chairperson of the Provincial Committee was though Provincial Health Secretary who sought to hold the test but that did not mean that Provincial Government as a whole or even the Health department stood empowered with regard to the admission test---Health Secretary acted only as a constituent member of provincial committee and not otherwise---Grant of relief under Art.199 of the Constitution was ultimately discretionary and equitable in nature---Competing claims by two sets of candidates one seeking to have the test upheld and the other in favour of its cancellation were on record---Held, it was more appropriate to uphold the test rather than to allow its cancellation to stand---High Court set aside notification in question as the same was without jurisdiction and could not stand and the same was quashed---Constitutional petition was allowed accordingly.

Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others PLD 2017 Lah. 489; Punjab College of Law v. University of Punjab and others PLD 2017 Lah. 830; Chairman All India Rec. Board and another v. K. Shyam Kumar and others (2010) 6 SCC 614 and Sanchit Bansal and another v. The Joint Admission Board and others AIR 2012 SC 214 ref.

Anwar Mansoor Khan along with Muhammad Ali Talpur, Sajjad Ahmed Chandio, Ghulam Asghar Pathan, Mian Mohsin Raza Arain, Zahid Farooq Mazari, Qadir Hussain Khan, A. Khursheed Khan and Imtiaz Ali for Petitioners.

Ghulam Shabbir Shah, AAG along with Fazlullah Pechuho, Secretary and Ijaz Ahmed Mahesar, Special Secretary Health Department, Government of Sindh.

P L D 2018 Sindh 414

Before Muhammad Ali Mazhar, J

AROMA TRAVEL SERVICES (PVT.) LTD. through Director and 4 others---Plaintiffs

Versus

FAISAL AL ABDULLAH AL FAISAL AL-SAUD and 20 others---Defendants

Suit No.843 of 2015, decided on 3rd April, 2018.

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

----Ss. 3 & 4---New York Convention, 1958, Art. II(2)---Reference to Arbitration---Stay of proceedings---Pre-conditions---Provision of Art.II(2) of New York Convention, 1958, has wide-ranging tentacles which Court has to weigh up and explore before referring a party to arbitration: Whether there is an agreement to an arbitral clause; or an arbitration agreement signed by parties; or any such agreement / understanding reflected in exchange of letters or telegrams in a defined legal relationship.

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

----S. 10---Oral contract---Enforcement---Principle---Oral contract is not excluded by S. 10 of Contract Act, 1872, from being enforced---In case of an oral contract, clearest and more satisfactory evidence is demanded by Court.

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

----S. 12---Contract Act (IX of 1872), S.10---Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act (XVII of 2011), Ss. 3 & 4---New York Convention, 1958, Art.II(2)---Suit for specific performance of agreement---Stay of proceedings---Reference to Arbitration---Defendant sought stay of proceedings and referring the matter to arbitration----Validity---Nothing was put in writing and infrastructure of whole suit was based on oral understanding and promises---Referring such matter to Arbitrator was nothing but a futile and pathetic exercise with wastage of time---High Court declined to send blank/unsigned agreements for arbitration leaving question to be decided for arbitration first by Arbitrator the effect of aftermath of non-signing of agreement and for such limited purpose Arbitrator would assemble parties to examine providence of draft agreements which were inoperative and incapable of being performed---In case of valid and binding contract, parties must honour their bargain to invoke a particular forum by mutual agreement---High Court declined to refer the matter to Arbitrator not on the basis of its own discretion rather than the circumstances did not reflect to invoke arbitration or honour the forum selection clause on the strength of unsigned agreements---Application was dismissed in circumstances.

Far Eastern Impex (Pvt.) Ltd. v. Quest International Nederland BV 2009 CLD 153; Cummins Sales and Service (Pakistan) Ltd. v. Cummins Middle East FZE 2013 CLD 291; Travel Automation (Pvt.) Ltd. v. Abacuses International (Pvt.) Ltd. 2006 CLD 497; Hashmi Can Company v. Hysong Corporation of Karachi PLD 1999 Kar. 25; Ralli Brothers v. Muhammad Amin Muhammad Bashir Ltd. 1987 CLC 83; Hub Power Co. v. Wapda PLD 2000 SC 841; Lahore Stock Exchange Ltd. v. Fredrick J. Whyte Croup PLD 1990 SC 48; M.A. Khan & Co. v. Pakistan Railways Employees' Housing Society Ltd. 1996 CLC 45; M.A. Chowdhury v. Mitsui Lines Ltd. PLD 1970 SC 373; Scherk v. Alberto-Culver Co. 417 US 506 SC (1974); Bremen v. Zapata Off-Shore Co. 407 US 1 SC (1972); Masood Asif and others v. UBL 2001 CLC 479; Raziq International Ltd. v. Panalpina Ltd. PLD 2014 Sindh 175; Global Quality Foods Pvt. Ltd. v. Hardee's Food Systems PLD 2016 Kar. 169; Redtone Telecommunications Pakistan (Pvt.) Ltd. v. FOP PLD 2014 Sindh 601; Light Industries (Pvt.) Ltd. v. ZSK Stickmaschinen GMBH 2007 CLD 1324; Light Industries (Pvt.) Ltd. v. ZSK Stickmaschinen GMBH 2009 CLD 1340; CGM v. Hussain Akbar 2002 CLD 1528 and 2017 YLR 1579 ref.

Khawaja Shams-ul-Islam for Plaintiffs along with Shahzad Mehmood, Imran Taj, Khalid Iqbal and Muhammad Khoso for Plaintiffs.

Mohammad Akram Sheikh for Defendants Nos. 1 and 2 along with Saim Hashmi, Abid Naseem, Jam Asif Mehmood and Ms. Mariam.

Masood Anwar Ausaf for Defendant No.16

Rehman Aziz Malik for Defendant No.5.

Imtiaz Ahmed Mahar for Defendants Nos. 3 and 21.

Waqar Ahmed for Defendant No.19.

P L D 2018 Sindh 431

Before Fahim Ahmed Siddiqui, J

GOVERNMENT OF SINDH through Secretary Education---Applicant

Versus

Begum AISHA AHMED IBRAHIM BAWANI and another---Respondents

Civil Revision Application No.44 of 2012, decided on 28th August, 2017.

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

----Ss. 105 & 107---Sindh Rented Premises Ordinance (XVII of 1979), S.15---Lease and rented premises---Recovery of possession---Distinction---Difference between Transfer of Property Act, 1882, and Sindh Rented Premises Ordinance, 1979 is the procedure of recovering possession--- In the matter of lease, period of lease is necessary because during continuance of lease the transferor or owner cannot recover possession of premises except under a decree of Court while under the Ordinance, landlord becomes entitled to recover possession only on fulfilment of conditions laid down in relevant sections of the Ordinance even during the period of tenancy---Under a leasehold right, lessee enjoys right of ownership for a certain period and the same is extendable even after expiry of the period of lease.

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

----S. 42---Declaration, seeking of---Scope---Right to seek declaration is necessary only if there is a denial to a status.

(c) Interpretation of statutes---

----Words used in a statute---Redundancy, principle of---Applicability---No word used by lawmaker, is either redundant but deliberation is attached thereto---Legislature chooses words knowing meaning thereof, so as to describe 'object and intention' thereof---Use of a particular word is always illustrative of intention of Legislature who chooses a particular word out of available words---Normally ordinary meaning thereof (particular word) is to be taken.

Hasnat Ahmed Khan v. Institution Officer 2010 SCMR 354 and Mian Umar Ikram-ul-Haque v. Dr. Shahida Hasnain and another 2016 SCMR 2186 rel.

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

----S. 8---Transfer of Property Act (IV of 1882), S. 105---Easements Act (V of 1882), Ss.60 & 63---Suit for recovery of possession of immovable property---Notice to licensee---Scope---Suit property was an educational institution being run by plaintiff Trust on a land leased out in its name---Provincial Government under Privately Managed Schools and Colleges (Take-Over) Regulation, 1972, took over the administrative control of the educational institutions---Plaintiff Trust sought recovery of possession on the plea that in one portion of the building, the trust had been running an academy, even after it was taken over by the Provincial Government---Suit was concurrently decreed in favour of plaintiff Trust by Trial Court as well as Lower Appellate Court---Plea raised by defendant was that no notice was issued by plaintiff with regard to revocation of licence---Validity--- Status of defendant in suit property was not more than a licensee, which stood revoked, as the licence not having become irrevocable---Trial Court had not erred in decreeing the suit of plaintiff---Limitation started from the time when plaintiff decided to revoke the licence and issued such notices of revocation---Provision of S.63 of Easements Act, 1882, was clear in its purpose whereby only reasonable time was to be given which too for removal of any goods which had been allowed to place on such property---Purpose of notice was not a condition to exercise right of revocation but to provide an opportunity for removal of goods---Even if the notice was not served upon defendant properly, even then the licence became revoked when the suit was filed by plaintiff before Court of first instance---As soon as the notice of suit was served, licence of using the property had become revoked or annulled and defendant was bound to act accordingly---High Court declined to interfere in concurrent judgments and decrees passed by two Courts below---Revision was dismissed in circumstances.

1987 SCMR 997; AIR (36) 1949 PC 61; Noor Muhammad v. Mst. Sardar Khatun and others PLD 1951 Sindh 1; Board of Foreign Missions of the Presbyterian Church v. The Government of Punjab 1987 SCMR 1197; Government of Balochistan v. Juma Khan PLD 1993 Kar. 216; Abdul Rasheed v. Director General Post Offices, Islamabad and others 2009 SCMR 1435; Shah Muhammad v. Ghulam and another PlD 1970 SC 196 and Dr. Muhammad Shahid Mian and another v. Faiz-ur-Rehman Faizi PLD 2011 SC 676 ref.

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

----Art.114---Estoppel and waiver, principle of---Applicability---Whenever one is aggrieved of a fact, he has a right rather a duty to object thereto to safeguard his right---If such person does not object thereto to safeguard his right, then waiver or estoppel may arise.

Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 rel.

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

----S. 92---Permission of Advocate General---Scope---Provision of S. 92 C.P.C. pertains to internal affairs and management of a Trust as such no permission is required to sue an outsider.

Ram Ghulam and another v. Shyam Sarup and others AIR 1934 All. 1 rel.

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

----O.XXXI, R.1---Suit by or against Trust---Necessary parties---If suit is filed against Trust, then all trustees must be shown as defendants--- In case of filing a suit by Trust, since other trustees can authorize one trustee to act on their behalf, that suit can be maintained even without presence of all trustees as plaintiffs.

Ram Ghulam and another v. Shyam Sarup and others AIR 1934 All. 1 and Anjuman-e-Himayat-e-Islam, Lahore v. Dr. Syed Farooq Hassan PLD 2007 SC 352 rel.

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

----S.3---Limitation---Void judgment and decree---Effect---Even if judgment and decree is void, the same has to be challenged within the stipulated period of time from the date of knowledge or at least within a reasonable time.

Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587 rel.

Ale Maqbool, Addl.A.G. and Ziauddin Junejo, AAG for Applicant.

Shabbir Ahmed Saikh for Respondents.

P L D 2018 Sindh 448

Before Munib Akhtar and Omar Sial, JJ

Messrs AZFAR LABORATORIES PRIVATE LIMITED through Directors and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of National Health Services and 4 others---Respondents

Constitutional Petition D-2329 of 2017, decided on 26th February, 2018.

(a) Constitution of Pakistan---

----Arts. 142 (b) & 144---Constitution (Eighteenth Amendment) Act (X of 2010), Preamble---Legislative powers---Scope---Provisions of Constitution (Eighteenth Amendment) Act, 2010, omitted Concurrent List but still left three competences as concurrent: criminal law, criminal procedure and evidence--- Some of the entries from Concurrent List were shifted to Federal List and changes were also made to some of the entries otherwise to be found in the latter; there are (a) enumerated competences set out in Federal List, which are exclusive to the Federation; (b) three enumerated competences which are concurrent; and (c) a whole host of non-enumerated competences which are exclusive to the Provinces---Parliament, in ordinary course can only make laws in respect of the competences on Federal List and the three which are still concurrent (There are also certain legislative powers expressly conferred on Parliament under various Articles of the Constitution)---Federation, in certain exceptional circumstances, can also acquire power to make laws in respect of non-enumerated competences exclusive to the Provinces---One of such instances has been set out in Art. 144 of the Constitution.

(b) Constitution of Pakistan---

----Art. 141---Legislative power---Extent---In matters relating to legislative competences a broad approach is preferable.

(c) Constitution of Pakistan---

----Art. 144---Power of Parliament---Object, purpose and scope---One principal purpose behind Art.144 of the Constitution is to ensure that there is one law that seamlessly applies across provincial boundaries as a unified whole.

(d) Constitution of Pakistan---

----Arts.144 & 199---Drug Regulatory Authority Act (XXI of 2012), Ss.32 & 40---Alternative Medicines and Health Products (Enlistment) Rules, 2014---Legislative Powers---Parliament legislating for Provinces---Principle---Petitioners were aggrieved of applicability of Drug Regulatory Authority Act, 2012, on various products as manufactured, sold, used or imported by them and assailed the legislative competence of Parliament after Constitution (Eighteenth Amendment) Act, 2010---Validity---Parliament was to apply maximlist approach---Law enacted by Parliament under Art. 144 of the Constitution could at any time be amended or repealed by Provincial Assembly in relation to its own Province---If an Assembly, that had passed a resolution that was in scope apparently less than the one couched in the broadest terms, was dissatisfied with the law enacted by Parliament, it could at any time take necessary action either by amending the law to tailor it to its own resolution or repealing it altogether---Parliament was competent to enact Drug Regulatory Authority Act, 2012, it could have repealed Drugs Act, 1976, as in force in all Provinces---Parliament had chosen not to do so and by S.32 of Drug Regulatory Authority Act, 2012, it was specifically provided that it was in addition to and not in derogation of Drugs Act, 1976---Such provision and the continued existence of Drugs Act, 1976, could be taken to mean that Drug Regulatory Authority Act, 2012, itself could not be enforced or given effect in all Provinces on its own terms as therein provided---Neither Parliament's competence under Art.144 of the Constitution nor the manifestation of the same in the shape of Drug Regulatory Authority Act, 2012, was so circumscribed---Drug Regulatory Authority Act, 2012, was the controlling statute, operating seamlessly as one unified law that had applied trans-provincially across all Provincial boundaries and not Drugs Act, 1976, operating in each Province as territorial bound provincial legislation---High Court directed the authorities to give hearing to petitioners in respect of each product or substance as to whether the product/substance had come within the scope of Alternative Medicines and Health Products (Enlistment) Rules, 2014, or Drug Regulatory Authority Act, 2012, especially with reference to the definitions---Constitutional petition was disposed of accordingly.

Pakistan International Freight Forwarders Association v. Province of Sindh and others 2017 PTD 1 and C.P. D-1313/2013 ref.

(e) Alternative Medicines and Health Products (Enlistment) Rules, 2014---

----Sindh Pure Food Ordinance, 1960 (VII of 1960), S. 2 (9)---"Food supplements"---Scope---Food supplements etc. as defined in Alternative Medicines and Health Products (Enlistment) Rules, 2014, come within the meaning of 'drug' as used in Drug Regulatory Authority Act, 2012---If any product comes within the definition contained in Alternative Medicines and Health Products (Enlistment) Rules, 2014, then the same falls outside the ambit of Sindh Pure Food Ordinance, 1960.

Munir A. Malik, Atif Chaudhry, Agha Faisal, Ms. Amber Lakhani, Ms. Sathi M. Ishaq, Ms. Zara Vayani, Khalid Mehmood Siddiqui, Sameer Chazanfar, Ms. Saify Ali Khan and Ms. Rozina Issa, for Petitioners.

Salman Talibuddin, Additioal Attorney General along with Ms. Alizeh Bashir and Asim Mansoor Khan, DAG for Respondent.

Shabbir Hussain Shah, Additional Advocate General Sindh along with Ms. Maryam Atta Malik for Respondent.

Sohail Muzaffar, Kafil A. Abbasi, Kashif Nazir, Ghulam Hyder Shaikh, Ms. Masooda Siraj for Departmental Respondents.

P L D 2018 Sindh 483

Before Muhammad Faisal Kamal Alam, J

DIAMOND WELD RODS (PVT.) LTD.---Plaintiff

Versus

Messrs STAL CO. GmbH and others---Defendants

Suit No. 139 of 2007, decided on 29th January, 2018.

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

----Ss. 47 & 48---Civil Procedure Code (V of 1908), O.VII, R.2 & O.XXXIX, Rr.1 & 2---Suit for recovery of money and injunction---Freight, payment of---Grievance of plaintiff company against shipping company was that due to local shipping agent, a delay was caused in unloading product from vessel and it resulted in incurring of demurrage and other avoidable expenses/charges---Validity---Document produced by plaintiff as Bill of Lading was though not forged but it did not fulfil requirement of Bill of Lading and same could be considered as such--- Bill of Lading produced by shipping company was genuine as it fulfilled its statutory requirements---Plaintiff was required to pay freight to shipping company as Bill of Lading clearly mentioned that 'freight to be collected at destination port'---Such legal and factual position was backed by Ss. 47 & 48 of Karachi Port Trust Act, 1886 and goods could not be removed from public warehouse or sheds until freight in respect thereof was paid either to master or owner of vessel--- Suit was decreed accordingly.

A.P. Moller v. Taxation Officer of Income Tax 2011 PTD 1460 rel.

Shahanshah Hussain and S. Arshad Ali for Plaintiff.

Aga Zafar Ahmed for Defendant No.2.

Nemo for Defendants Nos. 1,3 and 4.

P L D 2018 Sindh 492

Before Muhammad Ali Mazhar, J

Ms. KHUSHNUM HORMAZD

MUNCHERJI---Plaintiff

Versus

HORMAZD RUSI MUNCHERJI---Defendent

Divorce Petition No.1 of 2018, decided on 6th April, 2018.

Parsi Marriage and Divorce Act (III of 1936) ---

----Ss. 24 &32(g)---Dissolution of marriage---Grounds---Desertion by husband---Wife had applied for divorce on the ground that the husband had deserted her for last seven years---Both the husband and the wife came to an understanding that their marriage may be dissolved as they no longer wished to remain in matrimonial tie---Delegates appointed by consent of both parties also unanimously expressed their opinion that the marriage may be dissolved on the ground of desertion---Husband and wife both decided to have the joint custody of their daughter hence no order in such regard was required to be passed keeping in view the consensus between the parties --- Marriage between the parties was dissolved accordingly.

Khawja Shoaib Mansoor for Plaintiff.

Hormazd Rusi Muncherji, defendant appeared in person.

P L D 2018 Sindh 498

Before Munib Akhtar and Arshad Hussain Khan, JJ

SHAHRUKH SHAKEEL KHAN and 2 others---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary, Government of Sindh and 4 others---Respondents

Constitutional Petition No.D-5812 of 2015 and connected petitions, decided on 5th March, 2018.

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

----S. 6---Implied repeal---Presumption---Principle of implied repeal recognizes that while it is to be presumed that when enacting a law, legislature was aware of existing state of statute book, it may yet make a law that comes in conflict with earlier legislation---Presumption exists against implied repeal and burden of establishing that same has come about was on the party asserting such repeal---Such is a burden not lightly discharged; it is for party claiming that prior law has been impliedly repealed or overridden to show one or more particular provisions of earlier legislation that is said to conflict with specific provision of latter.

Muhammad Arif v. Muhammad Kawshar Ali PLD 1969 SC 435 ref.

(b) Constitution of Pakistan---

----Art. 18---Freedom of trade, business, or profession---School---Fee structure, regulation of---Scope---Business of running a school cannot be regulated so as to impose such a restraint on an increase in fees that can be charged i.e., on output price---School fees cannot be regulated at all---Constitutionally permissible regulation has to recognize that school have a right to some periodic increase in fees that they can charge; rather than placing a cap as maximum permissible limit, proper regulatory regime allows for a minimum periodic increase to which schools can be entitled plus a right to obtain an increase greater than minimum if a case for such can be properly made out and justified.

(c) Sindh Private Medical Educational Institutions (Regulation and Control) Ordinance (V of 2001)---

-----Ss. 6, 10(2) & 15---Sindh Private Medical Educational Institutions (Regulation and Control) Rules, 2005, R. 7(3)---Constitution of Pakistan, Art. 18---Private school---Increase in fee---Principle---Dispute was with regards to increase of fee by private schools---Validity---Schools could be regulated in terms of second condition of Art.18 of the Constitution and provisions of Sindh Private Medical Educational Institutions (Regulation and Control) Ordinance, 2001 as well as Sindh Private Educational Institutions (Regulation and Control) Rules, 2005 set up a regulatory regime that was a licensing system within meaning of such condition---Fees that schools could charge and salaries etc., payable by them to staff (i.e., their output and input prices) and any changes or increases therein could be regulated in terms of second condition of Art.18 of the Constitution---High Court quashed provisions of R.7(3) of Sindh Private Medical Educational Institutions (Regulation and Control) Rules, 2005 and declared same to be of no legal effect---High Court restrained the authorities from giving effect to provisions of R. 7(3) of Sindh Private Medical Educational Institutions (Regulation and Control) Rules, 2005---If at all Provincial Government wanted to regulate increase in school fees it must do so in a constitutionally permissible manner---With quashing of R.7(3) of Sindh Private Medical Educational Institutions (Regulation and Control) Rules, 2005, unless proper Rules were framed in such regard there was no regulation for purposes of increase in school fees---Constitutional petition was disposed of accordingly.

Shahrukh Shakeel v. Province of Sindh and others PLD 2017 Sindh 198; Mustafa Impex and others v. Government of Pakistan and others PLD 2016 SC 808; Harishankar Bagla and another v. State of Madhya Pradesh AIR 1954 SC 465; Muhammad Arif v. Muhammad Kawshar Ali PLD 1969 SC 435; East and West Steamship Company v. Pakistan and others PLD 1958 SC 41; Arshad Mehmood v. Government of Punjab and others PLD 2005 SC 193; Pakistan Broadcasters Association v. Pakistan Electronic Media Regulatory Authority and others PLD 2016 SC 692; PLD 2014 Sindh 630; T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697, Modern School v. Union of India AIR 2004 SC 2236, P.A. Inamdar v. Maharashtra (2005) 6 SCC 537, Action Committee Un-Aided Private Schools and others v. Director of Delhi Eduction and others (2009) 10 SCC 1, Modern Dental College v. State of Madhya Pradesh (2010) 14 SCC 186; Modern Dental College v. State of Madhya Pradesh (2016) 7 SCC 353 and Karamat Ali and others v. Federation of Pakistan and others PLD 2018 Sindh 8 ref.

Kamal Azfar, Ms. Asma Jahangir, Dr. Farogh Naseem, Faisal Naqvi, Kazim Hasan, Asad Shakeel, Dhani Bux Malik, Khalid Mehmood Siddiqui, Sardar Azmat Hussain, Ms. Pooja Kalpana, Shahan Karami Jam Asif Mehmood, Saim Hashmi, Bahzad Haider, Abid Naseem, Omar Pirzada, Abdur Rehman, Noman Jamali, Khalid Mehmood Siddiqui, Ghulam Rasool Korai, Saadat Yar Khan, Jahanzeb Mari and Musadic Liskani Counsel for respective parties.

Miran Muhammad Shah, Mustafa Mahesar and Shabbir Hussain Shah, Additional Advocate General Sindh Counsel for official respondents.

P L D 2018 Sindh 529

Before Adnan Iqbal Chaudhry, J

MUHAMMAD AFZAL---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary and others---Defendants

Suit No.Nil of 2018, decided on 19th March, 2018.

(a) Interpretation of statutes---

----Publication of a statute in official gazette---Scope---No hard and fast rule of universal application can be laid down on effect of non-publication of rules/regulations in official gazette---Language employed in a particular statute, nature, intent and scope of rules/regulations, actions already taken thereunder, rights/liabilities effected/created thereby, indicate whether requirement of a publication in official gazette is to be treated as mandatory or directory--- Where a statute requires that rules/regulations should be notified by way of publication in official gazette but it does not go on to provide for a consequence of such non-publication, then such provision is to be interpreted as directory and not mandatory.

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

----S. 20-A---Sindh General Clauses Act (VI of 1956), S. 19-A---Publication in official gazette---Principle---Where parent statute does not require rules/regulations to be published in official gazette, then S.19-A of Sindh General Clauses Act, 1956 and S. 20-A of General Clauses Act, 1897 (until provisions provide a consequence for non-publication) do not per se make publication in official gazette mandatory---Nature, intent and scope of rules/regulations, actions already taken thereunder, rights/liabilities, effected/created thereby are also the factors in determining consequences of non-publication.

Saghir Ahmed v. Province of Punjab PLD 2004 SC 261; Printek (Pvt.) Ltd. v. Shahid Nabi Malik 2011 YLR 2941 and Ummatullah v. Province of Sindh PLD 2010 Kar. 236 rel.

(c) Sports (Development and Control) Ordinance (XVI of 1962)---

----S. 5---Pakistan Cricket Board Elections Regulations, 2015, Regln.10(a)---Notification of Regulation in official gazette---Scope---Regulation making power of Pakistan Cricket Board stems from S. 5 of Sports (Development and Control) Ordinance, 1962 which does not stipulate that such regulations should be notified or there should be notification in official gazette---Provision under which Pakistan Cricket Board Elections Regulations, 2015 are made does not require publication in official gazette.

(d) Pakistan Cricket Board Elections Regulations, 2015---

----Regln.10(a)---Pakistan Citizenship Act (II of 1951), S. 14---Notification No.SRO 581(I)/2002 dated 29-08-2002---Suit for declaration and injunction---Dual nationality---Election to Cricket Association---Plaintiff assailed candidature of defendant for election of Cricket Association---Plea raised by plaintiff was that defendant was a foreign national and could not participate in elections---Validity---By virtue of Notification No.SRO No.581(I)/2002 dated 29-08-2002 issued under S. 14(3) of Pakistan Citizenship Act, 1951 defendant did not cease to be Pakistani citizen despite being a dual citizen of a foreign country---Defendant did not become ineligible under Regln.10(a) of Pakistan Cricket Board Elections Regulations, 2015 to contest election of Cricket Association---High Court declined to interfere in the matter--- Suit was dismissed in circumstances.

Zahid Iqbal v. Hafiz Muhammad Adnan 2016 SCMR 430; Karachi Metropolitan Corp. v. S.N.H. Industries 1997 SCMR 1228 and Umar Ahmed Ghumman v. Government of Pakistan PLD 2002 Lah. 521 ref.

Muhammad Ali Lakhani and Mujtaba Raza for Plaintiff.

Furqan Ali for Defendant No.2.

Tanveer Ashraf for Defendant No.3.

Masood Ghani for Defendant No.5.

P L D 2018 Sindh 552

Before Muhammad Junaid Ghaffar, J

MUHAMMAD ALI TABBA and others---Plaintiffs

Versus

ETIHAD AIRWAYS through Chief Executive Officer and others---Defendants

Suit No.1587 of 2008 and C.M.As. Nos. 14129, 14130, 14131 and 14132 of 2013 decided on 29th January, 2018.

Carriage by Air Act (IV of 2012)---

----S. 3---Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention), Arts. 17 & 25---Civil Procedure Code (V of 1908), O. VII, R. 11 & O. VI, R. 17---Breach of contract of carriage by air---Suit for recovery of damages---Plaint, rejection of---Scope---Plaintiff claimed damages on the ground of mental anguish, shock and physical torture due to alleged non-functional passenger seats---Contention of defendant-Airline was that it was only liable for damages sustained in case of death or bodily injury of the passenger---Validity---Objection with regard to maintainability of suit should be raised at the very first instance---No such objection was raised by the defendant-Airline while submitting written statement or application for amendment of the same---Defendant had apologized for the incident and had offered for compensation which was rejected by the plaintiff being too meagre---Only quantum of compensation, therefore, was in dispute---If suit was barred in law then Court must reject the plaint---If plaint was not rejected in terms of O. VII, R. 11, C.P.C. even then suit could be dismissed as not maintainable for a possible host of reasons---Court after appraisal of evidence could conclude whether damage caused was to be termed as wilful misconduct or the carrier was entitled for availing the benefit of Art.17 of the Montreal Convention for excluding or limiting the liability---Application for rejection of plaint was dismissed in circumstances.

Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707; Metal Construction of Greece S.A. (MEKTA S.A.) Athens through Attorney v. Owners of the Vessel m.v. Lady Rea 2013 CLD 1829; Nazir Hussain and others v. A. C. and others 2002 YLR 3484; Fariduddin and another v. Mehboob Ali 1994 SCMR 1485; Abdul Latif v. Chairman, Board of Intermediate Secondary Education, Sukkur 1986 CLC 1908; Eastern Airlines, Inc. v. Floyd Et Al., 499 U.S. (1991; Air France v. SAKS (470 U.S. 392 (1985); InterGlobe Aviation Ltd v. N. Satchidanand2018 SCMR 1166; Dr. Naheed Fatima and 3 others v. Messrs Pakistan International Air Corporation (PIAC) through Chairman and another PLD 2011 Kar. 514 and Arif Majeed Malik and others v. Board of Govenors Karachi Grammar School SBLR 2014 Sindh 333 ref.

Husserl v.Swiss Air Trans. Co., [388 F. Supp.1238, 1252-53 (S.D.N.Y., 1975; Rosman v. Trans World Airlines, Inc. [314 N.E.2d 848, 854-57 (N.Y.1974)]; Eastern Airlines, Inc, v. Floyd [499 U.S. 530 (1991)] and Dr. Pro. Haroon Ahmed v. British Airways PLD 2004 Kar. 439 rel.

Khawaja Shamsul Islam for Plaintiffs.

Jawad A. Sarwana for Defendants

P L D 2018 Sindh 564

Before Adnan Iqbal Chaudhry, J

Mst. JAMILA NAHEED---Petitioner

Versus

Mrs. SAMINA QASIM---Objector

S.M.A. No. 46 of 1998, decided on 19th March, 2018.

Succession Act (XXXIX of 1925)---

----S. 263---Powers of Attorney Act (VII of 1882), S.2---Revoking Letters of Administration for just cause--- Execution under power-of-attorney---Scope---Applicant was objector to Letters of Administration and claimed that shop in question was not included in the estate of deceased as sub-lease in her favour was executed by deceased through attorney appointed for the purpose---Objector sought revoking of Letters of Administration to the extent of shop in question---Validity---Contents of power of attorney revealed that the principal (deceased owner of estate) had already agreed with objector to sell shop in question to her---Power of attorney was only instruction to his agent to convey the same to the objector and leaving no discretion or judgment to be exercised by the agent---Power of attorney had not authorized the attorney to sell immovable property, rather it was power of attorney that authorized the attorney to execute sub-lease of immovable property in favour of objector and to present such sub-lease to Sub-Registrar for registration-- High Court revoked Letters of Administration granted to petitioner to the extent of shop in question--- Application was allowed in circumstances.

Nemo for Petitioner.

Dildar Sheikh for the Objector.

P L D 2018 Sindh 569

Before Muhammad Ali Mazhar, J

CRESS LPG (PVT) LTD. through Authorised Representative---Plaintiff

Versus

M.T. MARIA III through Master/Chief Engineer/Chief Officer and others---Defendants

Admiralty Suit No.1 of 2018, decided on 13th April, 2018.

(a) Carriage of Goods by Sea Act (XXVI of 1925)---

----Sched.---Bill of Lading---Scope---Under modern conditions, bill of lading is usually signed by loading broker but sometimes by master, acknowledging quantity and condition of goods when put on board---Precise effect of such acknowledgment is most important in view of rule of law that ship must deliver 'what she received as she received it, unless relieved by expected perils'---For many purposes possession of bill of lading is equivalent in law to possession of goods---Bill of lading enables holder to obtain delivery of goods at port of destination and during transition it enables him to deliver goods by merely transferring bill of lading---Bill of lading contains (i) consigners and consignee's name, (ii) names of ports of departure and destination, (iii) name of vessel, (iv) dates of departure and arrival, (v) itemized list of goods being transported with number of packages and kind of packaging, (vi) marks and numbers on packages, (vii) weight and/or volume of cargo, (viii) freight rate and amount---Bill of lading serves as proof of ownership (title) of cargo and may be issued either in negotiable or non-negotiable form; in negotiable form it is commonly used in letter of credit transactions and may be bought, sold, traded or used as security for borrowing money---Bill of lading is required in all claims for compensation for any damage, delay or loss; and for resolution of disputes regarding ownership of cargo---Rights, responsibilities and liabilities of carrier and shipper under a bill of lading are governed generally either by older Hague Rules or by more recent Hague-Visby Rules---Bills of lading are one of three crucial documents used in international trade to ensure exporters receive payment and importers receive merchandise---Bill of lading is a writing signed on behalf of owner of ship in which goods are embarked, acknowledging receipt of goods and undertaking to deliver them at end of voyage, subject to such conditions as may be mentioned in bill of lading.

Bramwell in Sewell v. Burdick (1884), 10 App. Cas. at p.105; The Ardennes (Owner of Cargo) v. The Ardennes (Owners), [1950] 2 All ER 517; [1951] 1 K.B.55; Rodocanachi v. Milburn (1886), 18 Q.B.D.67; Bradley v. Federal Steam, etc., Co. (1927), 137 L.T. 266, at p.267; Horst v. Biddell Bors, Erichsen v. Barkworth (1858), 3 H. & N.894, [1912] A.C.18 and The Manual of Ports, Shipping & Admiralty Law by Mohammad Ahsan Ghani Siddiqui rel.

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

----Ss. 3(2) & 4(4)---Sindh Chief Court Rules (O.S.), R. 731---Suit for recovery against vessel and its owner---Arrest of vessel---Plaintiff relied upon bill of lading and sought arrest of vessel for failure to deliver goods---Validity---Bill of lading issued by owner of vessel was not honoured due to alleged non-payment issue whereas plaintiff had fostered plea that entire payment was made---Due to diminishing value and quantity of cargo by flux of time plaintiff claimed actual cost with damages---Principal place of business of all defendants was beyond territorial jurisdiction of High Court and as soon as vessel left, it would be troublesome for plaintiff to salvage and recuperate it's alleged claim---High Court directed owner of vessel to furnish surety equivalent to value of cargo to satisfaction of court and same would remain intact till final adjudication of lis and that on furnishing surety/bank guarantee arrest order would deem to have been recalled and port authorities could allow the vessel to sail---Application was allowed accordingly.

2013 CLD 1829; Messrs V.N. Lakhani and Company v. m.v. Lakatoi Express and others PLD 1994 SC 894; Messrs Arshad Corporation (Pvt) Ltd. v. The Ship Maersk Astro and others PLD 1988 Kar. 515; Jaffer Brothers (Pvt.) Limited v. M.V. Eurobulker II 2002 CLD 926 and Messrs Sun Line Agencies Ltd. v. M.V. Psilorits and others 1984 CLC 1553 ref.

Spectre Consulting Limited v. MT Everrich 6 PLD 2018 Sindh 136 rel.

Mohammad Mansoor Mir for Plaintiff.

Aga Zafar Ahmed for Defendants Nos.1 to 3.

Omair Nisar for Defendant No.4.

Nemo for Defendant No.5.

P L D 2018 Sindh 581

Before Aqeel Ahmed Abbasi and Aziz-ur-Rehman, JJ

SZABIST (Shaheed Zulfiqar Ali Bhutto Institute of Science and Technology) through Authorized Representative---Petitioner

Versus

FEDERAL OMBUDSMAN/OMBUDSPERSON through Registrar and 3 others---Respondents

Constitutional Petition No.D-1725 of 2017, decided on 11th January, 2018.

Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----Ss. 6 & 7(1)---Appeal against major penalty---Federal/Provincial Ombudsman for Protection against Harassment of Women at Workplace, jurisdiction of---Scope---Educational institution imposed major penalty of dismissal from service upon the accused/appellant---Appellant filed two separate appeals against his dismissal order, one before the Provincial Ombudsman for Protection against Harassment of Women at Workplace, and the other before the Federal Ombudsman for Protection against Harassment of Women at Workplace---Federal Ombudsman set aside the recommendations/report of the inquiry committee and the dismissal order of the appellant---Legality---Appellant against the one and same decision passed by the competent authority of the educational institution, opted to file two appeals, one before the Provincial Ombudsman and another before the Federal Ombudsman, which exercise was not permissible under law---Besides the complainant and the accused/appellant were based/residing at the Provincial capital, as such, the Federal Ombudsman had no jurisdiction in the matter to entertain the appeal filed by the appellant---Impugned order passed by the Federal Ombudsman in appeal, by assuming jurisdiction in the subject-matter, was un-constitutional, illegal and passed without jurisdiction, thereby the same was set aside---High Court directed that the appeal filed by appellant before the Provincial Ombudsman for Protection against Harassment of Women at Workplace be deemed and treated as pending---Constitutional petition was allowed accordingly.

Salim Javed Baig and others v. Federal Ombudsman and others PLD 2017 Lah. 433 ref.

Ravi R. Pinjani for Petitioner.

Salman Talibuddin, Addl. Attorney General for Pakistan for Respondent No.1.

Respondent No.2 (in person).

Ghulam Shabbir Shah, Addl. Advocate-General Sindh for Respondent No.4.

P L D 2018 Sindh 592

Before Adnan Iqbal Chaudhry, J

PETITION FOR PROBATE OF THE WILL OF THE LATE MRS. VERA COWASJEE RUSTOM FAKIRJEE COWASJEE: In the matter of

Succession Miscellaneous Application No.252 of 2017, and C.M.As. Nos. 102, 105 and 590 of 2018, decided on 22nd May, 2018.

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

----Ss. 230 & 263---Renunciation of executorship of a will---Principles---Section 230 of the Succession Act, 1925 catered to a renunciation made by an executor prior to the grant of the probate, while a renunciation made after the grant of the probate could be dealt as a revocation under S.263 of the Succession Act, 1925---Renunciation under S.230 of the Succession Act, 1925 did not take effect automatically on the making of the renunciation, but it was subject to the order of the Court---While invoking S.230 an executor had to, in the very least, make a disclosure of the extent to which he had dealt with the estate and what part of the will remained unexecuted by him, so as to enable the Court to determine as to how the renunciation would affect the execution of the will and to pass orders accordingly.

Swami Turiananda v. Radha Kanta Pal PLD 1955 FC 145 ref.

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

----S. 311---Renunciation of executorship of a will---'Several executors'---Question as to whether an executor acting singly was a competent executor when all others had renounced their executorship---Testator by a 'will' dated 04-06-2009 nominated the petitioners and one other person "A" as executors of the estate that she had held in her own right---By a 'codicil' dated 05-06-2009 the testator nominated the petitioners (only) as executors of the estate that she had inherited from her brother---Out of the five executors appointed by the testator (including the petitioners and person "A"), only one of the petitioners was willing to carry on duties as an executor---From the text of the will and the codicil it appeared that though the testator intended a division of labour, she did not intend any member of the team of executors to be excluded from any part of the assignment---In such circumstances all executors could be treated as several executors for the entire estate of the testator---Consequently, any one of executors acting singly would be competent to act as executor of the will and codicil in terms of S.311 of the Succession Act, 1925---When any executer was allowed to renounce his executorship, the remaining executors, as long as there remained one, could be granted probate of the will and the codicil subject to the proof of the said documents.

Barrister Abdur Rehman, Petitioner No.2, and Advocate for the other Petitioners.

P L D 2018 Sindh 596

Before Muhammad Ali Mazhar and Omar Sial, JJ

Syed TAHIR HUSSAIN SHAH and 6 others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

C.Ps. Nos.D-3836, D-3989, D-3927, D-3990, D-4030, D-4031 and D-4032 of 2018, decided on 6th July, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 20, 21 & 19---Elections Rules, 2017, R.10(5)---Delimitation of constituencies---Principles---Representation against delimitation done by the Election Commission---Proposal for delimitation put forth by aggrieved person---Scope---Mechanism and course of action was laid down under the law, for an aggrieved person to file proposal in form of a representation at the stage of preliminary delimitation and on filing of such representation(s), it was the responsibility and obligation of the Election Commission to decide the same in accordance with law---Law did not allow that whatever proposal placed by a voter or objector was to be accepted by the Election Commission in letter and spirit in all circumstances as a vested right---Contesting elections and right of franchise was a Fundamental Right but to contest election on basis of delimitation at one's own philosophy and aspiration was not a Fundamental right.

M.Q.M. and others v. Province of Sindh 2014 CLC 335 and Arshad Mehmood v. Commissioner-Delimitation Authority, Gujranwala and others PLD 2014 Lah. 221 distinguished.

Federation of Pakistan and others v. Haji Muhammad Saifullah Khan PLD 1989 SC 166 rel.

Asfandyar for Petitioner (in C.P.No.D-3836 of 2018).

Ali Almani, Jam Zeeshan Ali and Sami ur Rehman Khan for Petitioner in C.Ps. Nos.D-3989 and D-3990 of 2018 and Intervener in C.P. No.D-3836 of 2018).

Abdul Jabbar Belai for Petitioners (in C.P. No.D-3927 of 2018).

Sikandar Ali Junejo for Petitioner in C.Ps. Nos.D-4030, D-4031 and D-4032 of 2018 and Intervener in C.P. No.D-3836 of 2018.

Mukesh Kumar Karara for the Interveners in C.Ps. Nos.D-3836, D-3927, D-4030, D-4031 and D-4032 of 2018.

Salahuddin Khan Gandapur for the Election Commission of Pakistan

Shaikh Liaqat Hussain DAG.

Jawwad Dero, Additional Advocate-General.

Ms. Rukhsana Mehnaz Durrani, State Counsel.

Imtiaz Ahmed Kalhoro, District Election Commissioner, Hyderabad.

Muhammad Yousuf, District Election Commissioner, Karachi Central/Member Delimitation Committee, Sindh.

P L D 2018 Sindh 603

Before Muhammad Ali Mazhar and Agha Faisal, JJ

MIR SHABBIR ALI KHAN BIJARINI and 3 others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.Ps. Nos. D-1310, D-811, D-844 and D-845 of 2018, decided on 10th July, 2018.

(a) Elections Act (XXXIII of 2017)---

----Ss. 239, 19 & 20---Elections Rules, 2017, Rr. 8, provisos, 7 & 9---Delimitation of constituencies---Principles---Determination of quota---Configuration of quota---Share of a particular district vis-à-vis population---Variation in population in different constituencies---Scope---Petitioners impugned first proviso to R.8(2) of the Elections Rules, 2017 whereby for determination of quota for delimitation, Election Commission of Pakistan ("ECP") was to divide total population of district with quota per seat of the Provincial Assembly; provided that a fraction of more than 0.5 may be counted as one seat and a fraction of less than 0.5 may be ignored---Contention of petitioners, inter alia, was that such determination went against principles of delimitation given in the Elections Act, 2017---Validity---Section 20 of Elections Act, 2017 accentuated that population of a constituency shall not ordinarily exceed 10% for delimitation and in case it was exceeded, Election Commission would record reasons in its delimitation order and the impugned proviso only exemplified and differentiated that a fraction of more than 0.5 may be counted as one seat---No direct clash of the impugned proviso existed with R.8 of the Elections Rules, 2017 and second proviso to R.8 of the Elections Rules, 2017 further provided that the Election Commission may deviate from the principle laid down in the impugned proviso---Equal population in all constituencies was not possible practically and in order to meet exigency and emergent situations, Legislature had devised principles of delimitation with some permissible limits and variations in population in all constituencies subject to providing of reasons---No illegality therefore existed in the impugned proviso---Constitutional petitions were dismissed, in circumstances.

PLD 2001 SC 607; PLD 1996 SC 632; PLD 1972 SC 139; PLD 1989 SC 26; Pakistan through Secretary Finance, Islamabad and others v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar and others 2003 SCMR 370; Khawaja Ahmad Hassaan vs. Government of Punjab and others 2005 SCMR 186; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642; Suo Motu Case No. 11 of 2011. (Action taken on the news clipping regarding scandal of billions of rupees of National Police Foundation Land) PLD 2014 SC 389; M.Q.M. and others v. Province of Sindh and others 2014 CLC 335; Arshad Mehmood v. Commissioner-Delimitation Authority, Gujranawala and others PLD 2014 Lah. 221; Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others PLD 2014 SC 531; Sue Evenwel, ET AL v. Greg Abbott, Governor of Texas ET AL 2015 SCMR 1152; Kirkpatrick v. Preisler [394 US 526 (1969)]; Reynolds v. Sims [377 US 533]; Wesberry v Sanders [376 US 1]; State of Madhya Pradesh and others v. Devilal AIR 1986 SC 434; Association of Resident of Mhow (ROM) v. Delimitation Commission of India AIR 2009 SC 3278; Abdul Qadir Patel v. Chief Election Commissioner and 2 others 2013 CLC 1712; Pakistan Peoples Party v. Government of Punjab and others PLD 2014 Lah. 330; Ghulam Mustafa and others v. Commissioner/Delimitation Authority, D.G. Khan Division, Dera Ghazi Khan and others 2014 YLR 1583; Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and others v. Federation of Pakistan and 2 others PLD 2012 SC 681; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 and Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166 ref.

M.Q.M. and others v. Province of Sindh and others 2014 CLC 335; Arshad Mehmood v. Commissioner-Delimitation Authority, Gujranwala and others PLD 2014 Lah. 221; Sue Evenwel's case 2015 SCMR 1152; Kirkpatrick v. Preisler [394 US 526 and Reynolds v. Sims [377 US 533] distinguished.

Wesberry v. Sanders 376 US 1; Abdul Qadir Patel v. Chief Election Commissioner 2013 CLC 1712; Federation of Pakistan and others v. Haji Muhammad Saifullah Khan PLD 1989 SC 166; Ghulam Mustafa v. Commissioner/Delimitation Authority, D.G. Khan 2014 YLR 1583 and Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681 rel.

(b) Words and phrases---

----"Ultra vires" and "intra vires", meanings and concept of---Ultra vires was a Latin phrase which meant "beyond and powers" and if an act entailed legal authority and was done with such authority, it could be called "intra vires" which meant within precincts of powers---Act or action carried out shorn of authority was ultra vires and may be acknowledged as illegal.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Judicial review of delegated/subordinate legislation/Rules---Scrutiny of Constitutionality of such legislation by the High Court under Art.199 of the Constitution---Principles---delegated legislation/Rules beyond powers conferred by parent statute---Delegated/subordinate legislation enacted with mala fide, ulterior motives or in an arbitrary manner---Principles of judicial review of such legislation, enumerated.

Following are principles for judicial review of subordinate legislation/Rules:--

(i) This is a settled principle that a statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section contemplates, the rule must yield to the statute.

(ii) The authority of executive to make rules and regulations in order to effectuate the intention and policy of the Legislature, must be exercised within the limits of mandate given to the rule making authority and the rules framed under an enactment must be consistent with the provisions of said enactment.

(iii) The rules framed under a statute if are inconsistent with the provisions of the statute and defeat the intention of Legislature expressed in the main statute, same shall be invalid.

(iv) The rule making authority cannot clothe itself with power which is not given to it under the statutes and thus the rules made under a statute, neither enlarge the scope of Act nor can go beyond the Act and must not be in conflict with the provisions of statute or repugnant to any other law in force.

(v) Rules must be read together with the Act under which they are made, cannot repeal or contradict express provisions in the Acts from which they derive their authority, and if the Act is plain, the rule must be interpreted so as to be reconciled with it, or, if it cannot be reconciled, the rule must give way to the plain terms of the Act.

(vi) If the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then those provisions must be regarded as ultra vires of the statute and cannot be given effect to.

(vii) The "rules' and "regulations" framed under any Act are meant to regulate and limit the statutory authority.

(viii) Rules and regulations being forms of subordinate legislation do not have substantial difference as power to frame them is rooted in the statute.

(ix) Statuary bodies are invariably authorized under the Act to make or adopt rules and regulations not inconsistent with the Act, with respect to such matters which fall within their lawful domain to carry out the purpose of the Act.

(x) Rulemaking body cannot frame rules in conflict with or in derogation of the substantive provisions of the law or statute, under which the rules are framed.

(xi) Rules cannot go beyond the scope of the Act. No rule can be made which is inconsistent with the parent statute, whereas, no regulation can be framed which is inconsistent with the parent statute or the rules made thereunder.

(xii) If a statute is ex facie discriminatory or capable of discriminatory application or violated any provision of the Constitution, it may be declared void ab initio since its inception.

(xiii) When a right is safeguarded by a Constitutional guarantee is called 'fundamental right' because by doing so it has been placed beyond the power of any organ of State, whether, Executive or Legislative to act in violation of it. Such a right cannot be taken away, suspended or abridged.

(xiv) The fundamental rights are natural rights which are personal to the individual as a citizen of a free and civilized community.

(xv) The essential characteristic of fundamental rights is that they impose limitations, express or implied, on public authorities, interfering with their exercise. It is the duty of the Court to protect Fundamental Rights granted in the Constitution.

Pakistan through Secretary Finance, Islamabad and others v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar and others 2003 SCMR 370; Khawaja Ahmad Hassan v. Government of Punjab and others 2005 SCMR 186; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642; Suo Motu Case No.11 of 2011. (Action taken on the news clipping regarding scandal. of billions of rupees of National Police Foundation Land) PLD 2014 SC 389 and M.Q.M. and others v. Province of Sindh and others 2014 CLC 335 rel.

(d) Elections Act (XXXIII of 2017)---

----S. 236---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Bar on jurisdiction of courts under the ouster clause of S.236 of the Elections Act, 2017---Applicability on the Constitutional jurisdiction of High Court---Scope---Ouster clause contained in S.236 of the Elections Act, 2017 could not bar the Constitutional jurisdiction of High Court under Art.199 of the Constitution---Provision barring jurisdiction of courts contained in a sub-constitutional enactment, howsoever expressly and widely worded, could not affect or take away the jurisdiction of superior courts under the Constitution---High Court, having right to interpret the law, would in each given case decide on the precise nature of an ouster clause keeping in mind principles of consistency.

Mrs. Shahida Zahir Abbasi and others v. President of Pakistan and others PLD 1996 SC 632 and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 rel.

Rafiq Ahmed Kalwar for Petitioners (in C.Ps. Nos. D-811, 844 and 845 of 2018).

Haq Nawaz Talpur for Petitioner (in C.P.No.D-1310 of 2018).

Asim Mansoor, DAG.

Malik Qamar Afzal for Election Commission of Pakistan.

Abdullah Hanjra, Law Officer, Election Commission, Zaheer Ahmed Sahito, District Election Commissioner, Kashmore, Sain Bux Channar, Director, Headquarter, Election Commission, Rasheed Ahmed Bhatti, Joint Provincial Commissioner, Sindh and Muhammad Yousuf District Election Commissioner, Karachi Central.

Masood Ahmed Qureshi, Deputy Director, Headquarter, Election Commissionand Syed Nadeem Haider, Regional Electioon Commissioner, Shaheed Benazirabad.

Ghulam Shabbir Shah, Addl. A.G. Assisted by Hasnain Shah, Ms. Nadia Afzal and Ms. Sabeen.

Rukhsana Mehnaz Durrani, State Counsel.

P L D 2018 Sindh 623

Before Nadeem Akhtar and Muhammad Faisal Kamal Alam, JJ

MUHAMMAD MEHBOOB---Petitioner

Versus

PROVINCE OF SINDH through Secretary Home Department, Karachi and 3 others---Respondents

Constitutional Petitions Nos.D-1007, D-1008, D-1009, D-1010, D-1011, D-1012, D-1013, D-1018, D-1022, D-1032, D-1034, D-1035, D-1037, D-1038, D-1058, D-1063, D-1064, D-1065, D-1070, D-1078, D-1079, D-1083 and D-1084 of 2018, decided on 28th May, 2018.

Ehtram-e-Ramzan Ordinance (XXIII of 1981)---

----S.5---Ehtram-e-Ramzan Rules, 1981, Rr.3 & 4---Ehtram-e- Ramzan---Permission to serve food---Petitioners were owners of hotels/restaurants on highways and sought exemption from provisions of Ehtram-e-Ramzan Ordinance, 1981, to serve food to passengers etc.---Validity---Despite prohibition, certain places were exempted from such prohibition in order to facilitate only such persons who were unable to fast due to some temporary or permanent disability, such as illness, or due to some personal reasons or hardship, such as travelling or who were not under an obligation to fast, such as children of tender age going to primary schools or montessories who had not attained the age of puberty---Only canteens or kitchens in hospitals serving food to patients; restaurants; canteens; stalls; dining cars etc. within the premises of railway stations, airports, seaports or bus stands or inside trains or aircrafts, serving food etc. to travellers having valid travel tickets or permits and kitchens or canteens meant for children in primary schools were allowed to operate during fasting hours of the holy month of Ramzan---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Kamran Haider Abbasi for Petitioners (in C.Ps.Nos.D-1007, 1008, 1009, 1010, 1011 and 1022 of 2018).

Hatim Sakhi Rajper for Petitioners (in C.Ps. Nos.D-1012, 1013 of 2018).

Shaikh Amanullah for Petitioners (in C.Ps. Nos.D-1018, 1058 of 2018).

Ms. Rizwana Jabeen Siddiqui for Petitioner (in C.P.No.D-1032 of 2018).

Shabbir Ali Bozdar for Petitioners (in C.Ps. Nos.D-1034 and 1035 of 2018).

Deedar Ali M. Chohan for Petitioners (in C.Ps. Nos.D-1037, 1038 of 2018).

Raja Shahid Hussain Solangi for Petitioners (in C.Ps. Nos.D-1063, 1064, 1065, 1070 and 1079 of 2018).

Riaz Ali Shaikh for Petitioner (in C.P.No.D-1078 of 2018).

Nemo for Petitioners (in C.Ps. Nos.D-1083, 1084 of 2018).

Ali Mutahir Shar, State Counsel along with Abdul Sattar, Assistant Commissioner Bhiria present on behalf of Deputy Commissioner Naushahro Feroze and Abdul Shakoor Solangi, Mukhtiar (Revenue) Khairpur Mirs present on behalf of Deputy Commissioner, Khairpur.

P L D 2018 Sindh 631

Before Muhammad Ali Mazhar and Omar Siyal, JJ

RUSTAM ALI and others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. D-4131, D-4132 and D-4134 of 2018, decided on 4th July, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 20, 21 & 19---Elections Rules, 2017, R. 10(5)---Constitution of Pakistan, Art. 17---General Elections---Delimitation of constituencies---Principles---Draft proposals for delimitation of constituencies---Preliminary delimitations---Representations against delimitation carried out by Election Commission---Vested right of candidate(s) / voters of a constituency vis-à-vis delimitation---Scope---At time of preliminary delimitation, a mechanism was laid down in the Elections Act, 2017 and the Elections Rules, 2017 to file proposals in form of representations before the Election Commission and it was obligation of the Election Commission to decide the same in accordance with law---Placing of proposal / representation to Election Commission by any voter of any constituency may invite attention of Election Commission to consider the same, but such person could not claim vested right that whatever proposal was placed by him should be considered and accepted by Election Commission in letter and spirit---Contesting of elections and right to franchise was Fundamental Right but to contest the same on basis of delimitation at one's own aspiration was not a Fundamental Right.

Rafiq Ahmed Kalwar for Petitioners

Ms.Mamona Nasreen for Election Commission of Pakistan.

Abdullah Hanjra, Law Officer, Election Commission of Pakistan, Syed Nadeem Haider, Regional Election Commissioner, Shaheed Benazirabad and Muhammad Yousuf, District Election Commissioner, Karachi Central and Zaheer Ahmed Sehto, Member Delimitation Committee/District Election Commissioner, Kashmore.

Shaikh Liaquat Hussain, D.A.G.

Ms.Rukhsana Minhas Durrani, State Counsel.

Jam Zeeshan, Advocate for Intervener/Applicant Muhammad Aslam in C.P.No.D-4131 of 2018.

P L D 2018 Sindh 636

Before Muhammad Ali Mazhar and Omar Siyal, JJ

BAHADUR ALI and others---Petitioners

Versus

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

C.Ps. Nos. D-3672, D-3931 and D-4155 of 2018, decided on 4th July, 2018.

Elections Act (XXXIII of 2017)---

----Ss.20, 21 & 19---Elections Rules, 2017, R. 10---General Elections---Delimitation of constituencies---Principles---Draft proposals for delimitation of constituencies---Preliminary delimitations----Representations against delimitation---Adjudication upon/consideration of multiple representations regarding delimitation of a district by the Election Commission vide consolidated order---Scope---Question before the High Court was whether Election Commission could dispose of multiple representations on delimitation of a district without a separate order on every proposal/representation---Held, that in a short span of time when a number of representations had been filed for each district, it was a practical and sensible procedure for Election Commission to decide the same in a consolidated order rather than deciding each representation separately which would have consumed more time with an acute likelihood of passing conflicting orders for the same district---Constitutional petitions were dismissed, accordingly.

Farooq H. Naek for Petitioners (in C.P. No.D-3672 of 2018) Assisted by Muhammad Usman and Muzammil Soomro.

Nisar Ahmed Bhambhro for Petitioner (in C.P. No. D-3931 of 2018).

Obaid ur Rehman Khan for Petitioner (in C.P. No.D-4155 of 2018).

Ms. Mamoona Nasreen for Election Commission of Pakistan.

Shaikh Liaquat Hussain, DAG.

Ms. Rukhsana Mehnaz Durrani, State Counsel

P L D 2018 Sindh 641

Before Yousuf Ali Sayeed, J

FIMCOTEX INDUSTRIES PRIVATE LIMITED through Authorised Representative---Plaintiff

Versus

PAKISTAN through Secretary Minister Petroleum and Natural Resources, Islamabad and another---Defendants

Suit No.851 of 2015, decided on 3rd August, 2017.

Constitution of Pakistan---

----Arts. 153, 154, 158 & 159---Suit for declaration and injunction---Natural gas, supply of---Preferential treatment---Principle---Plaintiff company sought allocation of natural gas under Art.158 of the Constitution in order to fuel a proposed Captive Power Plant---Validity---Plaintiff was not vested with a firm contractual right of guaranteed/uninterrupted supply of enhanced load, let alone a Fundamental Right in that regard, nor any case of discrimination was made out---Other Captive Power Plants situated outside province of Sindh were not supplied gas by authorities to plaintiff's detriment nor it was demonstrated that Captive Power Plants within province of Sindh were receiving gas from gas company---Policy regarding natural gas fell within Constitutional framework and in absence of some inherent element of unreasonableness that resulted in a demonstrable violation of a Fundamental Right, provisions of Art.158 of the Constitution could not, of itself, be agitated by plaintiff as an actionable ground in proceedings---Province had prerogative to agitate issue of its rights thereunder before the Council of Common Interests which process was already underway---High Court declined to issue any direction in favour of plaintiff company---Suit was dismissed in circumstances.

Engro Fertilizers Limited v. Islamic Republic of Pakistan and Federation of Pakistan, Islamabad and others PLD 2012 Sindh 50; Ramesh Kumar Ukrani v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resoruces and 3 others 2016 CLC 1152; Muhammad Nasir through Authorized Representative and others v. Ministry of Petroleum and Natural Resources through Secretary, Islamabad and others 2016 MLD 1830 and Messrs Lucky Cement Limited through General Manager v. Federation through Secretary Ministry of Petroleum and Natural Resources, Islamabad and others PLD 2011 Pesh. 57 distinguished.

Messrs Cherat Cement Company Ltd. Nowshera through Manager Accounts v. Pakistan through Secretary Ministry of Petroleum and Natural Resources, Islamabad and 3 others PLD 2016 Pesh. 32; 2014 SCMR 220; Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Mahmood Khan Achakzai v. Federation of Pakistan PLD 1997 SC 426; Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Messrs Mian CNG Filling Station through Managing Partner v. SNGPL and others 2011 YLR 1491; Messrs Shandar Petroleum/CNG and 46 others v. Federation of Pakistan through Ministry of Petroleum and 2 others 2012 YLR 1529; Messrs Geo Power Associates through Senior Managing Director v. Sui Northern Gas Pipe Lines Limited through Managing Director, Lahore and 6 others 2016 YLR Note 105 and District Bar Association, Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401 ref.

Dr. Mohammad Farogh Naseem for Plaintiff.

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

Asim Iqbal for Defendant No.2.

P L D 2018 Sindh 657

Before Syed Hassan Azhar Rizvi and Adnan-ul-Karim Memon, JJ

MUHAMMAD ARIF AKHTAR and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. D-1837 of 2014 and D-3134 of 2015, decided on 3rd January, 2018.

(a) Constitution of Pakistan---

----Art. 154---Council of Common Interests---State-owned entities---Trust, creation of---Petitioners were permanent employees of Pakistan Petroleum Limited Company who had attained age of superannuation---Petitioners claimed to be shareholders of Pakistan Petroleum Limited Empowerment Trust which were given to them by Government of Pakistan---Plea raised by authorities was that petitioners were seeking enforcement of an Act which was ultra vires the Constitution as at time of creation of Pakistan Petroleum Limited Empowerment Trust, necessary requirements of Art.154 of the Constitution were not fulfilled---Validity---Council of Common Interests had not accorded permission for creation of such trust under the law---Petitioners neither had authority nor title to claim any amount which was public money---Shares of state-owned entities held in trust by Federal Government could not be transferred to a selective group of employees---Petitioners received ill-gotten gains throughout their service tenure therefore, all persons who created such trust and had received benefits out of public money were liable to be accounted for in law and public money accumulated in trust must be returned to account of public exchequer---Authorities had rightly restricted payment of dividend to petitioners as respondent company erroneously created trust and gained benefits out of public money without any justifiable reason---Constitutional petition was dismissed accordingly.

Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan and others PLD 2016 SC 808; Mst. Surraya Begum and others v. Mst. Sunhan Begum and others 1992 SCMR 1652; Watan Party v. Federation of Pakistan and others PLD 2006 SC 697; Khalid Mehmood v. Federation of Pakistan and others PLD 2003 Lah. 629; Pakistan International Airline Corporation through Chairman v. Inayat Rasool 2003 SCMR 1128; Bashir Ahmed Solangi v. Chief Secretary Government of Sindh and others 2004 SCMR 1864; Bosicor Corporation Limited v. Amanur Rehman and others 2006 CLD 265; Muhammad Younus Ahmed Zai v. Excutive Officer Malir Cantonment 2017 MLD 1094; Zohra and others v. Government of Sindh and others PLD 1996 Kar. 1; Khalid Malik v. Federation of Pakistan PLD 1991 Kar. 1; Nazir Ahmed v. Government of Sindh and others 2005 SCMR 1814 and Muhammad Nadeem Arif and others v. Inspector General of Police of Punjab and others 2011 SCMR 408 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Contractual obligation---Scope---Contractual obligation cannot be enforced by invoking Constitutional jurisdiction of High Court.

Salahuddin Ahmed for Petitioners (in C.P.No.D-1837/2014).

Munawar Hussain Yousufi for Petiitoners (in C.P.No.D-3134/2015).

Jamshed Malik for Respondent No.2.

Masood Ahmed Khan and Sanaullah for Respondents Nos. 3 and 4.

Shaikh Liaquat Hussain, Assistant Attorney General.

P L D 2018 Sindh 671

Before Adnan Iqbal Chaudhry, J.

Mrs. HINA MUMTAZ SOOMRO and others---Plaintiffs

Versus

ABDUL SAMI SOOMRO and others---Defendants

Suit No.983 of 2017, decided on 3rd July, 2018.

(a) Islamic law--

----Inheretance---Tarka---Pension---Pension of a deceased was not heritable property i.e. it did not constitute 'tarka'of the deceased, and its distribution would be governed under the statute/rules that provided for such pension.

Wafaqi Hakoomat-e-Pakistan v. Awamunnas PLD 1991 SC 731 ref.

(b) Constitution of Pakistan---

----Art. 205 & Fifth Sched.---Qanun-e-Shahadat (10 of 1984), Arts. 118 & 119---Retired Chief Justice of the High Court---Pension---Dispute between widows of the deceased Chief Justice over 'family pension'---Plaintiff (second wife of deceased) claimed that the deceased had divorced the defendant (first wife of deceased), followed by divorce confirmation certificate; and that the defendant and her children were, thus, not entitled to inherit from the deceased---Contention of defendant that she had never been divorced and the divorce deed and divorce confirmation certificate were manipulated since the deceased suffered from mental illness and did not have the capacity to act as such---Validity---For determining as to who was entitled to receive pension on the demise of a High Court Judge due to illness after retirement, only the Fifth Schedule to the Constitution that was relevant---Under Cl. 5 of the Fifth Schedule to the Constitution since the widow(s) were alive and had not re-married, only they are entitled to receive the family pension of the deceased and not any other legal heir---Notice allegedly sent to the concerned Union Council for initiating proceedings for confirmation of divorce with the defendant, was not signed by the deceased but by his counsel, and it was sent after 2 years of the divorce deed, making both the divorce deed and the said notice controversial---Furthermore the divorce confirmation certificate was subsequently cancelled by the issuing authority, therefore, apart from a disputed divorce deed, which was yet to be proved, there was presently nothing else to question the status of the defendant as widow of the deceased---In terms of Arts. 118 & 119 of the Qanun-e-Shahadat Order, 1984 the burden to prove the disputed divorce deed laid on the plaintiff, and till such time she did so the defendant would be seriously prejudiced if her entitlement to the family pension of the deceased was stayed---High Court directed that subject to final determination in the suit, both the plaintiff and the defendant were entitled to receive the monthly family pension of the deceased in equal share as widows of the deceased in terms of Cl. 5 of the Fifth Sched. to the Constitution; that in the event the plaintiff succeeded in proving that the defendant had been divorced by the deceased, the plaintiff would be entitled to recover from the defendant the family pension received by her---Application was disposed of accordingly.

Mukesh Kumar G. Karara and Mehfooz Yar Khan for Plaintiffs.

Nadir Khan Burdi for Defendants.

P L D 2018 Sindh 678

Before Nazar Akbar, J

Messrs KHAN---Plaintiff.

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Housing and Works, Islamabad and 2 others---Defendants

Suit No.110 of 1985, decided on 21st May, 2018.

Civil Procedure Code (V of 1908) ---

----O. VII, R. 2 & O. II, R. 2---Money suit---Contract for construction of godown---Plaintiff seeking decree for a different amount than as claimed in the initial suit---Scope---Local commission was appointed to ascertain entire recoverable amount---Plaintiff/Contractor, on the basis of report of local commission claimed different amount for the work done by him---Validity---Plaintiff could not keep cause of action alive/continue---Decree for a different amount after filing a suit for definite amount could not be passed---Plaintiff on the date of filing of suit was sure of his exact claim---Cause of action ceased to continue/exist on the date of filing of plaint---Plaintiff had claimed an exact amount in the suit---If plaintiff had omitted to sue for any portion of amount then he could not sue with regard to the amount so omitted---Amount determined by the local commission after filing of suit would be hit by operation of O. II, R. 2, C.P.C.---Suit had to include whole claim---Suit was dismissed in circumstances.

Adil Mustafa Baig for Plaintiff.

Nemo for Defendant No.1

Abdul Qadir Leghari, Assistant Attorney General along with Imran Shams, Executive Engineer for Pak. PWD for Defendant No.2.

P L D 2018 Sindh 692

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Dr. FARIDA ASHRAF RANA---Appellant

Versus

ADILA KAZMI and 10 others---Respondents

High Court Appeal No.156 of 2016, decided on 31st May, 2018.

Law Reforms Ordinance (XII of 1972)---

----S. 3---High Court appeal---Locus standi---Illness of appellant---Appellant did not file appeal personally rather an advocate signed and filed appeal on behalf of the appellant--- Plea raised by ostensible appellant was that due to bad health, the original appellant could not file appeal herself--- Validity--- Law contained specific provisions for assistance of person suffering from infirmities---No evidence was available to suggest that purported appellant was precluded by ill-health from personally instituting appeal---Even if same was correct, authorization for institution of appeal could have been obtained through a commission sanctioned by an order of the Court---Ostensible appellant failed to demonstrate any authority under which his institution of proceedings could be determined to have had the sanction of law---Appeal was dismissed in circumstances.

Abdul Waheed Kanjoo for Appellant.

Ms. Rizwana Ismail for Respondents.

P L D 2018 Sindh 696

Before Ahmed Ali M. Shaikh, C.J. and Mohammad Karim Khan Agha, J

EHSAN ULLAH SIRAZI and another---Petitioners

Versus

DIRECTOR GENERAL (KARACHI) NATIONAL ACCOUNTABILITY BUREAU and another---Respondents

Constitutional Petition No.6642 of 2016, decided on 13th February, 2018.

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

----Ss. 12 & 13(c)---Constitution of Pakistan, Art.199---Criminal Procedure Code (V of 1898), S. 561-A---Conversion of constitutional petition into appeal---Petitioner assailed freezing order in constitutional petition instead of filing appeal---Effect---Proper means of appealing against freezing order granted under S. 12 of National Accountability Ordinance, 1999 by Accountability Court was through S. 13(c) of National Accountability Ordinance, 1999---High Court in exercise of discretionary constitutional jurisdiction converted constitutional petition into appeal as same was filed within 10 days---Appeal was maintainable accordingly.

Mian Asghar Ali v. Government of Punjab 2017 SCMR 118 rel.

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

----Ss. 12 & 17---Criminal Procedure Code (V of 1898), S. 493---Freezing of property---Complainant, role of---Scope---Complainant in a National Accountability Bureau case may be able to assist the prosecutors of Bureau if so allowed by Accountability Court or High Court---Such assistance does not extend to filing applications by complainant in his own name---Accountability Court has no power to either entertain or adjudicate upon such application under S. 12 of National Accountability Ordinance, 1999 filed by complainant.

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

----Ss. 12, 13 & 23---Freezing of property---Chairman of National Accountability Bureau, jurisdiction of---Confirmation of order---Scope---Petitioners who were owners of properties which were frozen under S. 12 of National Accountability Ordinance, 1999 assailed freezing order passed by Chairman on the grounds that same was not confirmed by Trial Court within 15 days---Validity---Chairman National Accountability Bureau's freezing order seized to have effect on 15th day after application was filed unless it was confirmed by Accountability Court---Order of Chairman National Accountability Bureau was not confirmed by Accountability Court for one year---Word 'shall' in proviso to S. 12 of National Accountability Ordinance, 1999 made it mandatory rather than directory, therefore, said 15 days period needed to be strictly followed---High Court set aside freezing order passed by Accountability Court and properties which were subject-matter of order stood de-frozen, however, provisions of S. 23 of National Accountability Ordinance, 1999 would continue to apply to those properties---Appeal was allowed accordingly.

Dr. Muhammad Azam Kasi v. The State 2012 PCr.LJ 1950; The State v. Babar Ali Kharal PLD 2008 Lah. 347 and Major (R) Nadir Ali v. The State PLD 2003 Quetta 77 ref.

Shuja Khan Baluch v. Capital Development Aauthority PLD 2011 Isl. 25 rel.

Mrs. Shagufta Shaheen v. State 2012 PCr.LJ 1317 distinguished.

Khalid Mahmood Awan for Petitioners.

Mohammed Altaf, Special Prosecutor NAB for Respondents.

P L D 2018 Sindh 703

Before Arshad Hussain Khan, J

MUHAMMAD NASIM SIDDIQUI---Plaintiff

Versus

ALI AKBAR---Defendant

Suit No.1257 of 2007, decided on 6th February, 2018.

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

----S. 42---Suit for declaration---Maintainability---Entitlement to relief---Scope---Question of "maintainability of lis" and "entitlement to relief" are two distinct things---Maintainability of lis is a legal question which is related to legal character of a person under provisions of S.42 of Specific Relief Act, 1877 which requires any person entitled to any legal character or to any right as to any property may institute suit against any person denying or interested to deny his title to such character or right and court may, in its discretion, make therein a declaration that he is so entitled---Law authorizes a person to seek enforcement of his right to any property by instituting a suit against a person denying his right or title---Entitlement to relief is question of fact to be proved through evidence---Provisions of S.42 of Specific Relief Act, 1877, give a right to institute a suit to any person who has any right as to any property---Legal character is most important aspect of a lis [case] and in absence thereof, one cannot maintain his or her lis though filed for a relief, recognized under Specific Relief Act, 1877 or under any other law except matters qualifying requirements of S.91 C.P.C.---Such aspect of case can also be decided in a summary manner at initial stages---Parties seeking entitlement to relief have to prove entitlement through evidence and such aspect cannot be decided in summary manner but after a proper trial.

Perveen Begum and another v. Shah Jehanand and another PLD 1996 Kar. 210 and Abdul Razzak Khamosh v. Abbas Ali and others PLD 2004 Kar. 269 rel.

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

----S. 55--- Time as essence of contract---Scope---In relation to contract of immovable property the rule is that time ordinarily is not essence; this by no means is an absolute rule and it is always open to the party who claims exception thereto to establish otherwise dependent upon the contents/text, letter and spirit of agreement and/or from the intent and conduct of the parties as well as the attending circumstances.

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

----Ss. 12, 35 & 54---Suit for specific performance of agreement, permanent injunction and recovery of damages---Willingness of party to perform agreement---Proof---Recession of contract---Plaintiff sought specific performance of sale agreement and memorandum of understanding executed between parties---Plea raised by defendant was that plaintiff was not willing to perform his part of contract as he did not have capability to pay the balance amount---Validity---Plaintiff paid 50% of the sale consideration and in order to show his willingness he issued legal notice to defendant and when defendant failed to reply the same, plaintiff filed the suit---Such step established the bona fide of plaintiff and his readiness/willingness for such purpose---As far as capability of plaintiff to pay balance consideration was concerned, defendant never asked from plaintiff to pay the balance sale consideration and to show his willingness to perform his part of obligation under the contract---Question of capability of payment raised by defendant was not reasonable and justifiable---Defendant did not send any notice to plaintiff demanding payment or notifying cancellation of the subject agreement---Defendant also not resorted to S. 35 of Specific Relief Act, 1877, even after the institution of the suit for specific performance by plaintiff---No negligence could be attributed towards plaintiff and as such he was entitled for discretionary relief for enforcement of agreement to sell---Suit was decreed accordingly.

Shamoon and others v. Ahmad and others 1986 SCMR 888; Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others PLD 2011 SC 119; Messrs Nigar Pictures Karachi v. Messrs United Brothers Lahore and 6 others PLD 1970 Kar. 770; Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Saeed Naseem Cheema v. Mrs. Rukhsana Khan 2005 YLR 1905; Bhai Sahib Naeem Mohuddin and others v. Col. (Rtd.) Mahmud Azam and other SBLR 2007 Sindh 1139; Muhammad Hussain and others v. Dr. Zahoor Alam 2010 SCMR 286; Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952; Perveen Begum and another v. Shah Jehanand and another PLD 1996 Kar. 210; Abdul Razzak Khamosh v. Abbas Ali and others PLD 2004 Kar. 269 and Aroma Travel Services (Pvt.) Ltd. through Director and 4 others v. Faisal Al Abdullah Al Faisal Al Saud and 20 others 2017 YLR 1579 ref.

(d) Damages---

----Determination---Rule of thumb---Determining general damages for mental torture, agony, defamation and financial loss were to be assessed following the 'rule of thumb'---Such exercise falls in discretionary jurisdiction of the Court which has to decide in the facts and circumstances of each case.

Government of Khyber Pakhtunkhwa and others v. Syed Jaffar Shah 2016 MLD 223 and Mubashir Ahmad v. Syed Muhammad Shah through Legal Heirs 2011 SCMR 1009 rel.

Muhammad Anwar Tariq for Plaintiff.

Chaudhry Abdul Rasheed for Defendant.

P L D 2018 Sindh 724

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

MUHAMMAD ASIF alias Asif Haroon through Attorney---Petitioner

Versus

CHAIRMAN, NAB through NAB---Respondent

Constitutional Petition No.D-2020 of 2016, decided on 26th September, 2017.

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

----S. 25(b)---Plea bargain---Fixing of liability---Jurisdiction---Petitioner was Bank official and was dismissed from service on charge of misconduct and was aggrieved of order passed by Chairman National Accountability Bureau where his request to enter into plea bargain was rejected---Authorities contended that petitioner had previously absconded and filed application before Trial Court seeking plea bargain, which was denied which fact was concealed by petitioner---Validity---Provisions of S. 25(b) of National Accountability Ordinance, 1999 made it absolutely clear that only if Chairman National Accountability Bureau approved plea bargain matter could be referred to court for approval---Application of petitioner to Accountability Court to fix liability was not maintainable--- Trial Court had no power to fix liability and direct the Chairman National Accountability Bureau to accept the same---Fixing of amount of liability was in the discretion of Chairman National Accountability Bureau and Trial Court had no role---Trial Court gave good solid reasons backed-up with material to support rejection of offer of accused of plea bargain---Chairman/DG National Accountability Bureau properly exercised his discretion in rejecting application of petitioner for plea bargain---Decision of National Accountability Bureau was neither arbitrary, whimsical or without reason---Constitutional petition was dismissed in circumstances.

State v. Mohammed Zafar, Bank of Punjab v. Accountability Court No.1, Lahore and 2 others PLD 2014 Lah. 92; In the matter of (Violation of Public Procurement Rules, 2004) PLD 2011 SC 927; Muhammad Saleem v. Federation of Pakistan 2007 SCMR 1008 and Muhammad Ayub v. State 1991 PCr.LJ 2425 ref.

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

----S. 24(a)---Discretion, exercise of---Principle---It is well settled law that in exercise of discretion, person endowed with such discretion must act reasonably and not in an arbitrary or whimsical manner and must give reasons for his decisions.

Suo Motu Case No.18 of 2010. rel.

S.M. Iqbal for Petitioner.

Muhammad Altaf, Special Prosecutor, NAB for Respondent.

P L D 2018 Sindh 732

Before Zafar Ahmed Rajput and Khadim Hussain Tunio, JJ

Mst. IRSHAD through Attorney---Petitioner

Versus

ZAMAN SHAH and 7 others---Respondents

Constitutional Petition No.D-2230 of 2010, decided on 20th February, 2018.

Civil Procedure Code (V of 1908)---

----O. XLVII---Constitution of Pakistan, Art. 199---Specific Relief Act (I of 1877), Ss. 42, 8 & 54---Review---Conversion of constitutional petition into review petition---Suit for declaration, possession and permanent injunction---Scope---Petitioner, through her attorney/son, filed suit for declaration, possession and permanent injunction claiming exclusive ownership---Trial Court and Appellate Court concurrently decreed the suit---High Court, in its revisional jurisdiction, dismissed the suit on the basis that special power of attorney conferred power on attorney only in respect of another suit and no power in respect of any other litigation and institution of any proceedings was conferred---Petitioner filed constitutional petition against said order---Contentions of petitioner was that even though constitutional petition was not maintainable, Court could treat the same as a review petition and that the impugned order was passed without considering the general power of attorney available on record---Validity---Held, court had by reproducing the contents of the special power of attorney held that no power whatsoever was conferred in respect of any other litigation and institution of any proceedings---High Court declined to convert the constitutional petition into review petition---Constitutional petition was dismissed.

Capital Development Authority, Islamabad through its Chairman v. Khuda Bukhsh and 5 others 1994 SCMR 771 and Mst. Arfa Arif v. Mst. Kulsoom Naqvi PLD 2000 Kar. 31 ref.

Ghulam Dastagir Shahani for Petitioners.

Bashir Ahmed Dargahi for Respondents Nos. 1 to 7.

P L D 2018 Sindh 735

Before Muhammad Ali Mazhar and Adnan Iqbal Chaudhry, JJ

Mian MUHAMMAD SHAHBAZ SHARIF through Attorney and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos.D-5746, D-5719, D-5754 and D-5732 of 2018, decided on 10th August, 2018.

(a) Elections Act (XXXIII of 2017)---

----S. 157---Returned candidate, declaration of---Principle---Satisfaction of Election Tribunal is required to hold that the petitioner or other contestant candidate obtained more votes than the returned candidate.

(b) Elections Rules, 2017---

----R. 139(7)---Recount of votes---Election Tribunal, jurisdiction of---Scope---Election Tribunal has jurisdiction to direct recount---Election Tribunal under R. 139(7) of Elections Rules, 2017, may refuse to issue order of recount if petitioner has failed to seek recount of votes before consolidation of result or where it is not likely to have an impact on result of election.

(c) Elections Act (XXXIII of 2017)---

----S. 95---Recount of votes---Returning officer, jurisdiction of---Scope---Returning Officer, before commencement of consolidation proceedings, under S.95 of Elections Act, 2017, has jurisdiction to order recount on a request or challenge in writing by contesting candidate if margin of victory is less than 5% of total votes polled in the constituency or 10,000 votes whichever is less or the Returning Officer considers such request as not reasonable--- Election Commission of Pakistan has also been given independent powers under S. 95(6) of Elections Act, 2017 to direct Returning Officer but before conclusion of consolidation proceedings.

(d) Elections Act (XXXIII of 2017)---

----S. 95---Constitution of Pakistan, Arts. 62, 63, 199 & 225---Recounting of votes---High Court, jurisdiction of---Petitioners had assailed election results and sought recounting of votes and also sought issuance of writ of quo warranto--- Validity--- Provisions of Art.199 of the Constitution could be invoked to challenge any irregularity committed during process of election---Once election process was completed it could only be challenged before Election Tribunal---When process of election was completed function and duty of Returning Officer was over and even Election Commission of Pakistan had no jurisdiction to order recounting---Writ in nature of quo warranto was premature as petitioner had mainly focused on issue of recounting---High Court directed that petitioners could file election petition in accordance with law and if any application for recounting was moved before Election Tribunal along with election petition, Tribunal at first instance would consider such application for recount in accordance with law before proceeding on merits---Constitutional petition was disposed of accordingly.

Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396; Aurangzeb Khan v. Election Commission of Pakistan PLD 2010 SC 34; Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan PLD 2005 SC 52; Muhammad Hussian Babar v. Election Commission of Pakistan PLD 2008 SC 495 and Syed Nayyar Hussain Bukhari v. District Returning Officer NA-49, Islamabad PLD 2008 SC 487 ref.

M. Umar Lakhani along with Petitioner (in C.P.No.D-5719 of 2018).

Irshad Ali Shar along with Petitioner (in C.P. No.D-5754 of 2018).

Syed Hafeezuddin along with Petitioner (in C.P. No.D-5732 of 2018).

Shaikh Jawaid Mir and Naseer Ahmed Khan along with Muhammad Sagheer Khan, Attorney of Petitioner (in C.P.No.D-5746 of 2018).

Amir Nawaz Warraich for Respondent No.3 (in C.P.No.D-5719 of 2018).

Respondent No.18 Kiran Masood (in C.P.No.D-5732 of 2018).

Respondent No.11 Qadir Khan Mandokhail (in C.P.No.D-5746 of 2018).

Mohammad Bin Mohsin and Hasnain Ali Chohan along with Respondent No.14 (in C.P.No.D-5746 of 2018).

Khawaja Naveed Ahmed and Irfan Bhutta along with Respondent No.3 (in C.P.No.D-5754 of 2018).

Imtiaz Ali for Respondent No.4 (in C.P.No.D-5732 of 2018).

Salahuddin Khan Gandapur for ECP.

Ms. Memoona Nasreen, Legal Advisor ECP.

Abdullah Hanjra, Law Officer ECO

Ghulam Shabbir Baloch, Assistant Attorney General.

Ghulam Shabbir Shah, Additional Advocate General.

P L D 2018 Lahore 1

Before Syed Mansoor Ali Shah, C J

WALID IQBAL---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.34789 of 2016, decided on 14th November, 2017.

Constitution of Pakistan---

----Arts.9 & 199 ---Constitutional petition---Public Interest Litigation---Environment---Fundamental Right to Life---Hazardous smog---Precautionary principle---Scope---Petitioners filed public interest petition impugning inaction of Provincial Government in addressing the issue of pollution and hazardous smog in the city---Validity---Dense smog was physically visible in the city and air monitoring showed that same had gone above the highest level and Doctors had confirmed that such levels of smog were hazardous to health of residents---High Court observed that in spite of such conditions, no preventive measures had been taken to protect life and health of people and that High Court was bound to protect fundamental rights of people and could enforce Art.9 of the Constitution read with internationally recognized "precautionary principle" and accordingly till such time Government proposed a detailed action plan and keeping in view emergent nature of current crises---High Court directed that its laid-out plan be put in place and a revised smog policy and declaration of public health emergency be submitted before High Court within 3 months---Constitutional petition was disposed of, accordingly.

Sheraz Zaka for Petiitoner.

Liaqat Ali Qureshi and Barrister Hamza Randhawa for Petitioners in connected petitions.

Nasar Ahmad, Deputy Attorney General for Pakistan.

Ms. Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan.

Anwaar Hussain and Ahmad Hassan Khan, Additional Advocates General, Punjab.

Ms.Sarah Belal and Fahad Malik, Advocate/amici curiae.

Ahmad Rafay Alam, Advocate.

Muhammad Azhar Siddique, S. Parveen Mughal, Abdul Malik and Muhammad Razwan Gujjar, Advocates.

Saif Anjum, Secretary Environment, Government of the Punjab.

Muhammad Nawaz Manik, Director (Law), Environment Protection Department, Punjab.

Mian Ejaz Majeed, Deputy Director (Legal) EPA, Punjab, Lahore.

Najam Ahmed Shah, Secretary Specialized Healthcare and Medical Education Department.

Dr. Salman Shahid, Addl. Secretary, SHC and ME Department.

Aslam Javaid, Senior Law Officer, SHC and ME Department.

Dr. Sadain Khalid, Addl. Secretary (vertical program) Primary and Secondary Healthcare Department.

Dr. Aqil M. Khalil, Dy. Secretary (Technical) P&SHC Department.

Dr. Saeed Akhtar, Director (CDC), DGHS, Punjab.

Dr. Maudood Khan, Consultant, EPD.

Dr. Asim Altaf, Addl. Sec. Primary and Secondary Health.

Khurram Chughtai for (LWMC).

Muhammad Riaz, Chief Metrologist.

M. Aleem Akhtar Cheema, Senior Law Officer, Primary and Secondary Health Department.

Toquir Ahmad, Director (ML&T), EPA.

Muhammad Zaman Watto, Addl. Secretary, EPA.

Tariq Mahmood, Addl. Secretary, School Education Department.

P L D 2018 Lahore 9

Before Ayesha A. Malik, J

AHSIN ARSHAD and others---Petitioners

Versus

ADVOCATE GENERAL, PUNJAB and others---Respondents

Writ Petition No. 30737 of 2012, heard on 3rd November, 2017.

(a) Mental Health Ordinance (VIII of 2001)---

----Ss. 29, 31 & 32---Judicial proceedings for appointment of guardian of person and manager of the property of the mentally disordered---Territorial jurisdiction of Court of Protection---Question before the High Court was whether consent of the Advocate-General under S. 29 of the Mental Health Ordinance, 2001 for appointment of guardian of person and manager of property of a mentally disordered person, was a substantive function and whether applicant and the mentally disordered person must reside within jurisdiction of Court of Protection---Held, in order to achieve purpose of Mental Health Ordinance, 2001; presence of mentally disordered person was necessary and Advocate, General's Office, at the time of issuance of consent, ensured that mentally disordered person as well as relatives who had applied for guardianship or managership were available to present themselves before the Court of Protection---Giving of consent under S.29 Mental Health Ordinance, 2001 was therefore a substantive function carried out by the Advocate-General of the Province and if such function was considered to be a ministerial function, mandate of the law, which essentially was to protect mentally disordered persons and their property would be defeated---Consent sought for under S.29 of Mental Health Ordinance, 2001 was limited to three aspects; first to ensure that the mentally disordered person and the relatives who sought guardianship/managership resided within the jurisdiction of the Court of Protection, secondly that there was a mentally disordered person for whose property an application under S.32 or 33 of Mental Health Ordinance, 2001 had been made and finally that relatives of such person had moved the application---Advocate-General's office therefore in the first instance had to ensure that the mentally disordered person and applicant resided within the jurisdiction of Court of Protection---Constitutional petition was dismissed, in circumstances.

(b) Interpretation of statutes ---

----Language of a statute must be given meaning, which was consistent with the objectives of such a statute.

Muhammad Iqbal Awan for Petitioners.

Anwaar Hussain, Addl. A.G. for Respondents.

P L D 2018 Lahore 13

Before Tariq Saleem Sheikh, J

MUHAMMAD FALAK SHER---Petitioner

Versus

THE STATE and others---Respondents

Criminal Revision No.25977 of 2017, decided on 30th May, 2017.

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

----Art. 133---Penal Code (XLV of 1860), Ss.302 & 324---Criminal Procedure Code (V of 1898), Ss.200, 439 & 540---Qatl-i-amd and attempt to commit Qatl-i-amd---Re-examination of witness---Stage---Petitioner was complainant whose evidence was recorded by court during proceedings of private complaint---Petitioner filed application for his re-examination but same was dismissed by Trial Court on ground that it was filed at a belated stage---Validity---Court, at any stage of proceedings, on its own or on request of a party could recall a witness for re-examination, if interest of justice so required, to get explanation or for removal of doubt or ambiguity with respect to a fact---Such permission could not be given to any party to fill in lacuna in the case which might cause prejudice to other party---Court could also permit introduction of a new matter in re-examination if that was necessary for just decision of case---Adverse party, in such eventuality, had a right to cross-examine a witness after re-examination--- High Court allowed petitioner to be re-examined and order passed by Trial Court was set aside---Petition was allowed in circumstances.

Muhammad Asghar v. Hussain Ahmad and others PLD 2014 SC 89; Rajaram Prasad Yadav v. State of Bihar and another AIR 2013 SC (Cri) 1746; Watir Ullah and others v. The State PLD 1966 Dacca 422; Mst. Sami and 8 others v. Mst. Firdos Begum and 15 others 2002 CLC 1989 and Natasha Singh v. CBI (State) AIR 2013 SC (Cri.) 1564 rel.

Umar Hayat Bhatti for Petitioner.

Ch. Muhammad Imran Raza Chadhar for Respondent No. 3.

Nasir-ud-Din Khan Nayyer for Respondent No. 6.

P L D 2018 Lahore 19

Before Ibad-ur-Rehman Lodhi, J

Malik ZAHEER ARSHAD---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.1080 of 2013, heard on 29th August, 2017.

Cantonments Act (II of 1924)---

----S. 6---Cantonment Rent Restriction Act (XI of 1963), S.6--- Constitution of Pakistan, Arts. 175(3) & 199---Constitutional petition---Rent Controller---Appointment--- Petitioners assailed jurisdiction of Rent Controller exercised by Cantonment Executive while deciding ejectment applications---Validity---Representatives from executive were performing judicial functions in courts of Controller of Rents constituted under provisions of Cantonments Act, 1924, which was in negation of Art.175(3) of the Constitution providing complete separation of Judiciary from the Executive--- High Court declared enabling provision of appointment of Controller of Rents, i.e., S. 6 of Cantonments Act, 1924, as violative of Art.175(3) of the Constitution and concept of independence of Judiciary from the Executive---High Court directed Federal Government to take appropriate measures to bring provisions of Cantonments Act, 1924 in conformity with the Constitution and findings already arrived at by superior courts---High Court further directed that either appointment as Controller of Rents in view of S. 6 of Cantonments Act, 1924 was to be made from amongst persons having legal knowledge and skill with consultation of concerned Chief Justice of High Court or such judicial powers within meaning of S. 6 of Cantonments Act, 1924 be directed to be performed by civil judges already performing their duties as Special Judges (Rent in Punjab) and Rent Controllers in other provinces under Urban Rent Laws---Petition was allowed accordingly.

Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522; Province of Sindh through Chief Secretary and another v. Rasheed A. Rizvi and others PLD 2012 SC 649; Muhammad Ali Satakzai and others v. Appointing Authority of the Additional District and Sessions Judges through Registrar Balochistan High Court and others 2012 PLC (C.S.) 1216; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501; Younas Abbas and others v. Additioal Sessions Judge Chakwal and others PLD 2016 SC 581; Amanullah Khan Yousufzai and others v. Federation of Pakistan through Law Secretary and others PLD 2011 Kar. 451; Yousaf Ayub Khan v. Government through Chief Secretary, Peshawar and 2 others PLD 2016 Pesh. 57 and Ghulam Mustafa Bughio v. Additional Controller of Rents, Clifton and others 2006 SCMR 145 rel.

Amjad Afsar Ghakhar and Malik Shaukat Hayat for Petitioner.

Muhammad Ilyas Sheikh and Muhammad Taimoor Malik, Amici Curiae appointed by the Court.

Malik Ahmad Jalil, Assistant Attorney-General for Federation.

Rashid Hafeez, Additional Advocate-General, Punjab for Province.

P L D 2018 Lahore 28

Before: Qazi Muhammad Amin Ahmed and Sardar Ahmad Naeem, JJ

MUHAMMAD ASGHAR---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 42 of 2014 and Capital Sentence Reference No.5 of 2014, heard on 12th September, 2017.

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

----S. 295-C---Derogatory remarks against the Prophet Muhammad (p.b.u.h.)---Appreciation of evidence---Benefit of doubt---Accused made the alleged objectionable statement and furnished written material in the presence of a gathering, therefore, it was mind boggling that after taking serious exception to the blasphemous conduct and snatching the impugned material, people in the gathering let the accused, who was in his late sixties, leave the venue scot-free---Complainant took six weeks to inform the police about the alleged incident, and throughout such period, comfortably kept the derogatory material with him---Complainant and accused were also involved in litigation against each other, which fact was withheld in the FIR---Documentary evidence against the accused comprising of visiting cards, letter and compact disks did not support the charge---Said documentary evidence had been presented to the investigating officer at a belated stage by no other than the complainant himself---Compact disks were relied upon by the Trial Court without forensic analysis/verification and thus their contents could not be relied upon with any degree of certainty---Such devices could be conveniently contrived with little skill and without much labour---Prosecution also claimed that the accused confessed his guilt before a journalist who saved the same in a compact disk, however, neither the journalist entered the witness box nor the person who prepared the disk---Prosecution case far from evidentiary certainty was fraught with doubts and it would be unsafe to maintain the conviction of accused in such circumstances---Consequently, by extending benefit of doubt, conviction of accused was set aside, and he was acquitted from the charge.

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

----S. 342---Power of court to examine the accused---Scope and purpose---Examination of an accused (under S. 342, Cr.P.C.) confronting indictment was a beneficial arrangement; it ensured that an accused was not taken by surprise; it was designed to acquaint him with the evidence against him so as to possibly vindicate his position---Such process was not to be used by the Trial Court to extract admission (of guilt) from the accused by overriding all the safeguards available to him under the regime of fair trial.

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

----S. 340(2)---Constitution of Pakistan, Art. 13(b)---Right of person against whom proceedings are instituted to appear as witness---Scope---Protection against self-incrimination---Under the Constitution and the law, there was an unqualified and unconditional protection against self-incrimination and the provisions of S. 340(2), Cr.P.C. were designed merely to enable an accused to offer himself as a witness in disproof of the charge alone and not in support thereof---Such exercise was not to be carried out after administration of oath upon the accused with the option of cross-examination.

Abid Saqi, Nazeer Ahmad Ranjha, Mudassar Farooq, Barrister Sara Bilal and Sabahat Rizvi for Appellant.

Nemo for the Complainant.

Muhammad Waqas Anwar, Deputy Prosecutor-General for the State.

P L D 2018 Lahore 34

Before Sayyed Mazahar Ali Akbar Naqvi, J

QAISER IQBAL and 19 others---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary, Home Department, ---Respondent

Writ Petition No. 62821 of 2017, decided on 21st September, 2017.

(a) Punjab Transparency and Right to Information Act (XXV of 2013)---

----Ss. 2(h)(iv) & 3---Constitution of Pakistan, Art. 19A---Punjab Tribunals of Inquiry Ordinance, 1969, Ss. 3 & 5(5)---Qanun-e-Shahadat (10 of 1984), Art. 85---Judicial inquiry report prepared by a "One Man Tribunal" relating to an incident in which fourteen (14) people were killed and many injured by the police during a protest staged by an opposition party---Proceedings carried out by the "One Man Tribunal" were judicial proceedings, and the report so prepared was a public document, thus, the public had a right to have access to such report---High Court directed that the said report should be publicized forthwith so that legal heirs of the deceased, as well as, injured may be able to know about the actual wrong doers who directly or indirectly were instrumental in the occurrence.

Request made by the Provincial Government to the High Court to conduct a judicial inquiry into the incident, itself spelled out that the inquiry into the incident was needed on account of public interest. Hence, outcome of such inquiry had to be brought in the notice of the public at large because in a democratic system the will of the public was important. If incidents, such as the present one took place, and the public was deprived of access to the information qua the outcome of its proceedings before the Commission it would mean that will of the people had been sabotaged.

Proceedings carried out by the 'One Man Tribunal' were judicial proceedings and as such they fell within the meaning of a public document as envisaged in Article 85 of Qanun-e-Shahadat, 1984. Report prepared by the Tribunal was public document, therefore, the general public had to be given access to such report.

High Court directed that in the public interest report in question should be publicized forthwith so that legal heirs of the deceased, as well as, injured may be able to know about the actual wrong doers who directly or indirectly were instrumental in the occurrence, allowing the legal heirs to agitate their grievances in the interest of safe administration of justice.

(b) Administration of justice---

----Relief awarded by the court---Scope---Court having jurisdiction to adjudicate upon a matter, had the power to mould a relief according to the circumstances of the case, if dictates of justice so demanded, even if such a relief had not been expressly claimed, provided the relief to be given was within the compass of the jurisdiction of the Court.

Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404 ref.

(c) Rule of law---

----Meaning and scope---'Rule of law' meant supremacy of law as opposed to the arbitrary authority of the Government---Said supremacy guaranteed three concepts; first, the absence of arbitrary power; second, equality before law, and, third, the rights of a citizen.

Syed Ali Zafar, Khawaja Tariq Raheem, Abdullah Malik and Muhammad Rizwan Gujjar for Petitioners.

P L D 2018 Lahore 46

Before Atir Mahmood, J

Malik FARZAND ALI and another---Appellants

Versus

ASAD ALI and others---Respondents

Election Appeal No.12 of 2017, heard on 29th June, 2017.

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

----S. 27---Punjab Local Government (Conduct of Elections) Rules, 2013, R.12(5)---Statement of assets---Failure to declare certain land in the statement of assets---Effect---Appellant sought disqualification of returned candidate on ground that at the time of filing of nomination papers he did not declare certain pieces of land owned by him---Validity---Such was not a ground for disqualification of a returned candidate who at the time of filing of nomination papers, did not declare assets and liabilities---Provisions of R.12(5) of Punjab Local Government (Conduct of Elections) Rules, 2013 were directory and not mandatory in nature---Incorrect mentioning of assets and liabilities neither made nomination papers of a candidate invalid nor disqualified the candidate---High Court declined to interfere in the judgment passed by Election Tribunal being in accordance with law---Appeal was dismissed in circumstances.

Abdul Rasheed and another v. Election Appellate Authority and others 2016 SCMR 1215; Barkhurdar v. Appellate Tribunal/Additional District and Sessions Judge and 3 others PLD 2016 Lah. 101 and Syed Asghar Ali Shah v. Election Tribunal/Additional District and Sessions Judge, Ferozewala and 13 others 2004 MLD 1912 distinguished.

Appellants in person.

Muhammad Shahid Maqbool Sheikh and Maqbool Ellahi Sheikh for Respondents.

P L D 2018 Lahore 50

Before Ahmad Raza Gilani, J

MUHAMMAD FARRUKH SAIF---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No.17025-Q of 2016, decided on 12th January, 2017.

(a) Punjab Security of Vulnerable Establishments Ordinance (I of 2015)---

----Ss. 9 & 14(1)---Constitution of Pakistan, Art.199---Constitutional petition---Quashing of FIR---Abuse of authority---Petitioner was aggrieved of FIR registered against him under the provisions of S.14(1) of Punjab Security of Vulnerable Establishments Ordinance, 2015---Validity---Duty was placed under S.9 of Punjab Security of Vulnerable Establishments Ordinance, 2015, upon Station House Officer of Police Station to inspect any 'vulnerable establishment' and submit his report to Chairperson of Security Advisory Committee under intimation to the Head of the District Police---Function of such committee started thereafter and in case Manager of 'vulnerable establishment' was found not complying with directions of the Committee to ensure its safety, penal actions were recommended against the delinquent---Foremost duty of Court was to safeguard life and liberty of a person as mandated under the Constitution---First Information Report was quashed by High Court where there was sheer abuse of authority by police officials---Constitutional petition was allowed in circumstances.

Province of Punjab through District Coordination Officer, Okara and others v. Market Committee, Okara through Chairman/Secretary 2011 SCMR 1856; Muhammad Zahid Iqbal and others v. D.E.O, Mardan and others 2006 SCMR 285 and Emperor v. Khawaja Nazir Ahmad AIR (32) 1945 PC 18 ref.

(b) Interpretation of statutes-

----Special and general law---Scope---When a special law is enacted for a particular purpose, it should be acted and followed in the manner that is helpful in the implementation of that law in letter and spirit.

James Joseph for Petitioner.

P L D 2018 Lahore 54

Before Abid Aziz Sheikh, J

MIAN ASIA---Petitioner

Versus

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

Writ Petition No.31581 of 2016, heard on 25th September, 2017.

Transgender---

----Identity---Unknown parentage---Petitioner was a transgender (eunuch) and authorities declined to renew his computerized National Identity Card on the ground that his parentage was not known and he referred to the name of his guru---Validity---Gender identity was one of the most fundamental aspects of life which referred to person's intrinsic sense of being male, female or transgender---Every one was entitled to enjoy all human rights without discrimination on the basis of gender identity and recognition every where as a person before law---High Court observed that mindset of the society needed change and to realize that a person of diverse gender identity should also enjoy legal capacity in all aspects of life---Transgenders/eunuchs were as respectable and dignified citizens of Pakistan as any other person and they were also entitled for all Fundamental Rights including right of education, property and right of life which included quality of life and livelihood---Transgenders could not be deprived of their rights including right to obtain Computerised National Identity Card or citizenship for mere reason that they were transgenders/eunuchs and did not know whereabouts of their parents without any fault of their own---Public functionaries and policy makers were desired to be more sensitive towards restoring dignity of transgender community rather adding to their existing plight---High Court directed that copy of present judgment along with copy of policy be forwarded to all concerned including the Federal as well as Provincial Secretary Law, to circular the judgment widely within Pakistan so as to ensure that maximum members of transgenders community be benefited; Chairman PEMRA shall also ensure that clause 2 of the policy for launching awareness compaign be implemented through all modes of communication---Constitutional petition was allowed in circumstances.

Civil Petition No.43 of 2009 and Dr. Muhammad Aslam Khaki and another v. Senior Superintendent of Police (Operations), Rawalpindi and others 2013 SCMR 187 ref.

Muhammad Mahtab Chughtai for Petitioner.

Hamid Rafique for Respondent NADRA.

Mian Muhammad Javaid, AAG-Pk.

P L D 2018 Lahore 60

Before Abid Aziz Sheikh, J

KASHIF IMRAN and another---Petitioners

Versus

ALTAF HUSSAIN and another---Respondents

Civil Revision No.375 of 2015, decided on 10th May, 2017.

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

----O. XXI, R. 69---Auction---Fresh proclamation---Precondition---When auction is not postponed for more than 30 days, requirement of fresh proclamation under O.XXI, R.69, C.P.C. is not applicable.

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

----O. XXI, Rr. 84, 85, 89, 90 & O. XXXVII, R.1---Recovery of money---Execution---Confirmation of sale---Judgment debtor was aggrieved of sale of property during proceedings for execution of decree in presence of stay order granted by Revisional Court---Plea raised by judgment debtor was that auction purchase did not deposit 25% of sale price at the spot and failed to deposit 75% of sale price within 15 days---Validity---Application of auction purchaser to deposit remaining 75% amount was kept pending and after order passed by revisional court, he was allowed to deposit remaining 75% amount which was accordingly deposited---Auction purchaser did not violate provisions of O.XXI, Rs.84 & 85, C.P.C.---Judgment debtor in concurrent findings recorded by two Courts below could not point out any jurisdictional defect, material irregularity or misreading and non-reading of record warranting interference by High Court in its revisional jurisdiction---Revision was dismissed in circumstances.

Mst. Nadia Malik v. Messrs Makki Chemical Industries Pvt. Ltd through Chief Executive and others 2011 SCMR 1675; Haji Zahid Saeed and another v. Messrs Asif Brothers and 3 others 2015 CLC 183; Messrs Ali Match Industries Ltd through Managing Director and 3 others v. Industrial Development Bank of Pakistan through Manager and another 1999 MLD 2127; Sheikh Niamat Ali v. Sheikh Muhammad Imran and 3 others PLD 2003 Lah. 421; Afzal Maqsood Butt v. Banking Court No.2. Lahore and 8 others 2005 CLD 967; Muhammad Afzal Khan and others v. National Bank of Pakistan and others 2015 CLD 464; Khursheed Begum and others v. Inam-ur-Rehman Khan and others PLD 2009 Lah. 552; Brig. (Retd.) Mazhar-ul-Haq and another v. M/s. Muslim Commercial Bank Limited. Islamabad and another PLD 1993 Lah. 706; distinguished.

Zakaria Ghani and 4 others v. Muhammad Ikhlaq Memon and 8 others PLD 2016 SC 229 and Muslim Commercial Bank through Branch Manager/General Attorney v. Fashion Pride (Private) Ltd. through Chief Executive and 5 others 2016 CLD 124 ref.

Muhammad Suleman Bhatti for Petitioners.

Mian Majeeb ur Rehman Ansari and M. Asghar Hayat Harja for Respondents.

P L D 2018 Lahore 70

Before Qazi Muhammad Amin Ahmed and Asjad Javaid Ghural, JJ

MUDASSAR alias YASRI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Appeal No.1878 of 2015, decided on 23rd May, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 345 & 338-E---Penal Code (XLV of 1860), Ss.302, 376 & 449---Qatl-i-amd, rape, trespass in order to commit offence punishable with death---Appreciation of evidence---Compromise, non-approval of---Scope---Accused was charged for the murder of three persons, a mother, her grown up daughter and minor son inside their house---Accused was found to have molested the lady before she was done to death---Accused was convicted and awarded sentences by the Trial Court---Legal heirs of deceased had compromised with the accused during pendency of appeal and signified their willingness for acquittal of accused from the charges---Validity---Enormity of untold suffering and pain suffered by the victims was a factor that could not be lost sight of while considering the plea of composition---Offence of homicide though was compoundable by the legal heirs of the deceased, nonetheless, acceptance thereof was not within their exclusive domain and discretion, as it required judicial approval---Judicial authority of refusal of compromise could not be abridged or curtailed by unanimity of the legal heirs alone---Court, being the keeper of the conscience of society, might still have to withhold permission to allow composition of offence for valid reasons---Violence, brutality and callousness could be taken as a valid ground to deny a culprit opportunity to escape consequences of his conduct through sway over the legal heirs of the victim---In the present case, though the legal heirs of the deceased had forgiven the accused in the name of Allah, the overindulgent conduct of the devastated family reduced three in numbers spoke volumes in itself thus, request to accept the compromise could not be approved---Court, while dismissing the application for acquittal on the basis of compromise ordered the issuance of notice to the accused as to why his sentence of 25 years' R.I., for his conviction under S.376, P.P.C., may not be enhance to death---Order accordingly.

Zahid ur Rehman v. The State PLD 2015 SC 77; Abdul Ghaffar and others v. The State 2015 SCMR 1064; Azmat and another v. The State PLD 2009 SC 768; Abdul Jabbar v. The State and others 2007 SCMR 1496; Ghulam Farid alias Fareeda v. The State PLD 2006 SC 53; Muhammad Rawab v. The State 2004 SCMR 1170; Sheikh Muhammad Aslam and another v. Shoukat alias Shoka and others 1997 SCMR 1307 and Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others 2013 SCMR 203 ref.

Naseem Akhtar and another v. The State PLD 2010 SC 938 rel.

Malik Sofera Khan Waseer for Petitioner/appellant.

Parvez Iqbal for the Complainant.

P L D 2018 Lahore 75

Before Ayesha A. Malik and Jawad Hassan, JJ

MUHAMMAD FAHAD MALIK---Appellant

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL and others---Respondents

I.C.A. No.98703 of 2017, heard on 7th December, 2017.

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

----S. 3, [as amended by Pakistan Medical and Dental Council (Amendment) Ordinance (XI of 2015)] & Ss. 7, 10 & 33---Constitution of Pakistan, Arts. 89 & 73---Power of President to promulgate Ordinance---Nature of Ordinance when promulgated---Expiry of Ordinance with the efflux of time---Constitution and composition of the Pakistan Medical and Dental Council ("PMDC")---Effect of repeal of Pakistan Medical and Dental Council (Amendment) Ordinance, 2015 after expiry of 120 days and lapse of the same---Applicability of de facto doctrine---Scope ----Question before the High Court was "whether after lapse of Pakistan Medical and Dental Council (Amendment) Ordinance,2015; actions taken by the Council constituted under the amended provision, which had lapsed on 25.06.2016, were of no legal effect and whether such Council could continue to function"---Held, Ordinance, being temporary in nature, expired with efflux of time and earlier permanent statute (as it was) automatically stood revived---Under the Constitution, an Ordinance was only a stop-gap arrangement and temporary measure, which must be placed before the National Assembly if it pertained to matters specified in Art. 73(2) of the Constitution and in all other cases before both Houses within four months of the date of its promulgation unless earlier withdrawn by the President or disapproved by the National Assembly or Parliament---In the present case, since the Amending Ordinance ceased to exist on 25.04.2016, new Council elected thereunder also ceased to exist on the same date and said Council could not function thereafter or exercise powers under the Medical and Dental Council Ordinance, 1962---High Court observed that during the period following expiration/lapse of the Pakistan Medical and Dental Council (Amendment) Ordinance, 2015,the new Council acted under bona fide belief that they were duly constituted and took a number of decisions, and based on the same, De facto doctrine was invoked by the High Court out of necessity to protect decisions of the Council from 25.04.2016 to prevent chaos and inconvenience---Intra-court appeal was allowed, accordingly.

Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Mst. Attiyya Bibi Khan and others v. Federation of Pakistan (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161; Mian Muhammad Afzal v. Province of Punjab and others 2004 SCMR 1570; Junaid Intzar v. UHS and others 2009 MLD 684; Muhammad Zubair and 5 others v. Government of Pakistan through Secretary Health, Islamabad and 22 others 2012 CLC 1071;Syed Fayyaz Hussain Qadri Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others PLD 1972 Lah. 316; Government of Punjab through Secretary, Home Department v. Ziaullah Khan and 2 others 1992 SCMR 602; Muhammad Naeem alias Naeema v. The State 1992 SCMR 1617; Peer Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738; Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26 and Air League of PIAC Employees through President v. Federation of Pakistan M/O Labour and Manpower Division, Islamabad and others 2011 SCMR 1254 ref.

Muhammad Arif and another v. The State and another 1993 SCMR 1589; Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66; Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Dr. Mubashir Hassan and others PLD 2012 SC 106; Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmad and 3 others 1995 SCMR 1593 and Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724 rel.

(b) De facto, doctrine of---

---De facto doctrine---Nature, scope and applicability---De facto doctrine was an established principle invoked by the superior courts to bring regularity and prevent confusion in the conduct of public business which may be created by persons not legally entitled to perform such duties yet when such persons had continued to do so without any objection.

Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmad and 3 others 1995 SCMR 1593 and Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724 rel.

(c) Constitution of Pakistan---

----Arts. 154 & Fourth Sched. Part II, Item 11---Medical and Dental Council Ordinance (XXXII of 1962) Ss. 3, 10 & 33---Council of Common Interests---Mandatory nature of the provisions of Art. 154 of the Constitution---Regulation of the medical profession by the Council of Common Interests ("CCI")---Mandate of the Pakistan Medical and Dental Council ("PMDC")---Standards, guidelines and regulation of the medical profession by the PMDC subject to approval by CCI via Constitutional mandate---Scope---PMDC regulated the medical profession by ensuring that all medical and dental education in Pakistan was imparted by recognized medical or dental institutions that issued recognized degrees and thereafter registered the medical or dental practitioners---PMDC set standards for education and admission in medical and dental colleges in order to ensure that minimum threshold was maintained---Laws relating to medical profession were covered under Part II of the Federal Legislative List, and thus anything done in relation thereto must be placed before the CCI as it was the Constitutional Forum which exercised and supervised control over the PMDC and regulated all policies with respect to the medical profession---Language of Art.154 of the Constitution requiring the CCI to formulate and regulate polices in relation to matters in Part II of the Federal Legislative List meant that there must be a deliberative process before the CCI wherein objectives of relevant policy were discussed along with manner in which it was to be effectuated; which would include the framework of any regulation---Article 154 of the Constitution required the CCI to exercise supervision and control over medical institutions and any regulation with reference to the medical profession could fall within the control and supervision of the CCI---High Court held that all standards, guidelines and recommendations issued by PMDC in furtherance of its mandate, which is to regulate the medical profession, must be approved by the Council of Common Interests.

Messrs Gadon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641 rel.

(d) MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016---

----Regln. 9(6)(7)(8)(11)---Medical and Dental Council Ordinance (XXXII of 1962), Ss. 33, 10 & 3---University of Health Sciences, Lahore Ordinance (LVIII of 2002), Ss. 37 & 4---Constitution of Pakistan, Art. 18---Regulatory function of the Pakistan Medical and Dental Council (PMDC)---Eligibility criteria for admission in MBBS and BDS Courses in Pakistan and abroad---Academic requirements enforced by PMDC via regulations framed under S. 33 of the Medical and Dental Council Ordinance, 1962---Matters in respect of which PMDC could exercise its powers to make Regulations---Regulation of admission into private medical colleges by the PMDC---Scope---Question before the High Court was "whether prescribing conditions for admission, allowed the PMDC to takeover the right of various affiliated medical colleges to choose their students as per eligibility criteria and replace the same with a centralized system managed by the University of Health Sciences"---Held, right of granting admission to students was a matter inter alia between an affiliated medical college and University of Health Sciences ("UHS")---Allowing an affiliated college to admit students on given criteria in terms of permissible intake was a right that such college had whilst being affiliated with UHS and PMDC had nothing to do with said right nor did the right to admission within private medical colleges fell within the regulatory control of PMDC---While PMDC could provide the eligibility criteria and the standard of merit on which admissions should be granted, it could not take away the right to admit students in private colleges as the same was beyond the mandate of the Pakistan Medical and Dental Council Ordinance, 1962 and encroached upon fundamental right of private colleges to carry out their business---Legislature delegated its authority to prescribe conditions for admissions in medical and dental institutions and the same was a facilitative power given to PMDC to retain control over the medical profession and did not allow PMDC to go beyond the intent of the primary Legislation nor did it allow PMDC to deal with any subject matter not specifically enumerated in the enabling statute---High Court held that Reglns. 9(6), 9(7), 9(8), 9(11) of the MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016, framed by the PMDC, were ultra vires the Pakistan Medical and Dental Council Ordinance, 1962 and were struck down accordingly --- Intra-court appeal was allowed, accordingly.

(e) Delegated Legislation---

----Rules and Regulations---Nature and exercise of the power to frame regulations/rules under a parent statute---Scope---Power to make rules being delegated legislation was simply for advancement of basic objective of the law and no more---Parliament delegated its Legislative function to regulators where it may not have the required expertise on technical matters or it may be unable to respond to change in a timely manner or to a specific need and therefore it gave flexibility in the application of the law by delegating its power to legislate---Statutory Rules and Regulations could enlarge the scope of the section of the statute under which they had been framed and a statutory authority must make Regulations/Rules in order to effectuate intention of the Legislature within the limits of the mandate given to such an authority---Rules framed, if inconsistent with the provisions of the statute and if the same defeated intention of the Legislature, would become invalid.

Independent Newspapers Corporation (Pvt.) Ltd. and others v. Federation of Pakistan and others PLD 2017 Lah. 289; Khawaja Ahmad Hassan v. Government of Punjab and others 2005 SCMR 186 and Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Pvt.) Ltd Peshawar and others 2003 SCMR 370 rel.

Appellants/Petitioners by:

Khalid Ishaq.

Munawar us Salam, Arslan Riaz, Furqan Naveed, Ghulam Mujtaba and Usman Sahi.

Abdul Hameed Chohan, Khawaja Adnan Ahmed, Pervaiz Inayat Malik, Abid Saqi, Tariq Mahmood Mughal, Ijaz Ahmad Awan, Tariq Saeed Rana, Mohammad Azhar Siddique, for Appellant (in C.M. No.3/2017 in W.P. No.104665/17).

Respondents by:

Tahir Mehmood Ahmed Khokhar, DAG, Muhammad Siraj-ul-Islam Khan, Addl. AG, Punjab.

Noshab A. Khan for Respondent PMDC.

Imran Muhammad Sarwar and Alamdar Hussain, for Respondent University of Health Sciences.

Ahsan Maood, for CMH, Lahore Medical College and Institute of Dentistry.

Prof. Dr. Aamir Bandesha, Member, Executive Committee of PMDC.

Dr. Syed Azhar Ali Shah, Acting Registrar PMDC.

Dr. Asad Zaheer, Registrar and Zahid Mahmood, Assistant Registrar (Legal) University of Health Sciences Lahore.

Dr. Salman Shahid, Addl. Secretary (Tech.) Specialized Healthcare and Medical Education Department along with Muhammad Suleman Akash, Law Officer in the Office of Respondent No.5.

Major (R) Israr ul Haq, Executive Director for Sahara for Life Trust.

Dr. Salman Kazim, Secretary Young Doctors Association of Pakistan.

P L D 2018 Lahore 114

Before Asjad Javaid Ghural, J

MUHAMMAD ISMAEEL---Petitioner

Versus

SECRETARY HOME DEPARTMENT, GOVERNMENT OF PUNJAB and 5 others---Respondents

Writ Petition No.9804 of 2013, decided on 28th March, 2017.

(a) Good Conduct Prisoners Probational Release Act (X of 1926)---

----S. 2---Release of prisoner on probation---Petitioner was complainant of a case in which respondents accused of committing murder were finally convicted and sentenced to imprisonment for life---Authorities approved said respondents to be released on probation under S.2 of Good Conduct Prisoners Probational Release Act, 1926 after fulfilling of all conditions required under law---Validity---Petitioner failed to point out even a single instance showing that order passed by authorities in favour of respondents was without serving out mandatory period of substantive sentence as required under Good Conduct Prisoners Probational Release Act, 1926 and rules framed thereunder---High Court declined to interfere in order passed by the authorities---Constitutional petition was dismissed in circumstances.

(b) Probation of Offenders Ordinance (XLV of 1960)---

----S. 3---Good Conduct Prisoners Probational Release Act (X of 1926), S. 2---Criminal Procedure Code (V of 1898), S.401---"Release on parole/probation" and "suspending/remitting of sentence of prisoner"---Distinction---Probation is given to an offender by judiciary under Probation of Offenders Ordinance, 1960---Whereas parole is authorized to executive under S.2 of Good Conduct Prisoners Probational Release Act, 1926---"Probation" and "parole" both serve purpose of rehabilitation and reintegration of offenders---Provisions of S.401, Cr.P.C., relate to power of Provincial Government to suspend or remit sentence awarded to an offender.

Muhammad Ramzan Khalid Joiya for Petitioner.

Jamshed Hayat and Malik Imtiaz Haider Maitla for Respondents Nos. 5 and 6.

Mehar Nazar Abbas Chawan, A.A.G.

P L D 2018 Lahore 118

Before Shahid Hameed Dar, J

MUHAMMAD RIAZ---Petitioner

Versus

THE STATE and 8 others---Respondents

Criminal Revision No.770 of 2014, heard on 30th June, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 200 & 203---Penal Code (XLV of 1860), Ss.302, 148 & 149---Qatl-i-amd and rioting armed with deadly weapons---Private complaint---Limitation---Petitioner was son of one of the deceased who filed a private complaint against all accused persons during pendency of challan case before Trial Court---Trial Court dismissed the complaint mainly for the reason that it was filed with an unexplained delay of 5 months---Validity---Although, no limitation was prescribed in criminal prosecution, yet it was undeniable that the longer a complaint was delayed the lesser chances of it being true, more particularly, when it was based on oral evidence---Filing of complaint in issue by complainant belatedly, looked nothing but a conscious attempt to defeat process of law already set in motion by complainant through his FIR and then by his private complaint against all accused---Trial was substantially progressed and a number of witnesses stood recorded by Trial Court---High Court declined to interfere in order passed by Trial Court as same was a mischievous transaction and rightly nipped in bud---Revision was dismissed in circumstances.

Zafar and others v. Umar Hayat and others 2010 SCMR 1816 and Muhammad Saleem's case 2001 SCMR 1738 rel

Mushtaq Ahmad Mohal assisted by Muhammad Tayyab Hanif for Petitioner.

Rana Tassawar Ali Khan, Deputy Prosecutor General Punjab for the State.

Nemo for Respondents Nos. 2 to 7.

P L D 2018 Lahore 122

Before Ibad-ur-Rehman Lodhi, J

JAVED BUTT---Petitioner

Versus

DISTRICT REGIONAL TRANSPORT AUTHORITY (DRTA) through Chairman and 2 others---Respondents

Writ Petition No.1769 of 2017, heard on 23rd August, 2017.

Provincial Motor Vehicles Ordinance (XIX of 1965)---

----Ss. 2(12), 45(2), 51 & 52---Provincial Motor Vehicles Rules, 1969, R.96---Constitution of Pakistan, Arts. 18 & 25---Lawful business---Cantonment area---Preferential treatment---Discrimination---Petitioner was distributor of motor-cab rickshaws and was also owner of number of rickshaws being plyed by his drivers---Petitioner was aggrieved of restriction imposed by District Regional Transport authority in plying motor-cab rickshaw within cantonment area---Validity---Police report furnished by Chief Traffic Officer was made basis of decision in question---Such police report was not intended to be anything more than an expression of opinion by an Authority interested in maintenance of law and order---At the most, such report could be taken in nature of information supplied by police to the Authority in order to assist in making up their mind---Authority in fact believed recommendations of Chief Traffic Officer and same factually caused prejudice to a particular class by depriving them to enter into a lawful trade or business which otherwise granted under Art.18 of the Constitution---Problem of creating traffic congestion and apprehension of security hazards or threats for particular areas situated within cantonment limits indicated that one city was divided into different parts and inhabitants of one city were distributed into different classes---Residents of cantonment areas were given preferential consideration and what was not considered suitable for cantonment areas was permitted to prevail in municipal areas of same city---Such discriminatory attitude on part of public functionaries could not be given judicial sanction---Traffic police was supposed to maintain flow of traffic and not to allow traffic congestion but it did not mean that to facilitate traffic staff, by imposing reasonable restriction, public transport vehicles were stopped to be operational on roads---High Court directed respective quarters of administration to improve their skills and competence to deal with such issues---Imposing complete restrictions on lawful trade or business was not answer to such problems---High Court set aside order passed by the Authority as same suffered from serious defects and was result of an exercise of authority never vested in the Authority---Constitutional petition was allowed in circumstances.

Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC 193 rel.

Muhammad Ilyas Sheikh and Muhammad Taimoor Malik for Petiitoner.

Khursheed Ahmad Satti, Assistant Advocate-General Punjab for Respondent.

P L D 2018 Lahore 127

Before Atir Mahmood, J

UMER MEHMOOD and others---Petitioners

Versus

PUBLIC AT LARGE and others---Respondents

Civil Revision No.2216 of 2016, heard on 29th May, 2017.

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

----Arts. 123 & 124---Specific Relief Act (I of 1877), S.42---Suit for declaration---Person having been heard of more than 15-16 years---Presumption---Principle---Suit filed by plaintiffs was concurrently dismissed by Trial Court as well as Lower Appellate Court by applying provisions of Art.123 of Qanun-e-Shahadat, 1984---Plea raised by plaintiffs was that provisions of Art.123 of Qanun-e-Shahadat, 1984 were not applicable as missing person was not heard of for the last 15-16 years---Validity---Provisions of Art.123 of Qanun-e-Shahadat, 1984 related to death of person known to have been alive within thirty years---Plaintiffs did not assert in their plaint that missing person had died but merely sought a declaration that there was a presumption that their missing relative had expired because he had not been herd of more than 15-16 years---Plaintiffs were closest relatives of missing relative and were persons who would have naturally heard of him if he had been alive---Plaintiffs in their evidence deposed in such regard and their statements were not cross-examined by the defendants---High Court, in exercise of revisional jurisdiction set aside judgments and decrees passed by both the courts below as they had committed grave illegality while dismissing the suit of plaintiffs---Revision was allowed in circumstances.

Lal Hussain v. Sadiq and others 2001 SCMR 1036 rel.

Asjad Saeed for Petitioners.

Respondents Nos. 1 and 2 are proceeded against ex parte vide order dated 28-11-2016.

P L D 2018 Lahore 132

Before Ch. Muhammad Masood Jahangir, J

AZIZ ULLAH through Legal Heirs---Appellant

Versus

MUHAMMAD HANEEF through Legal Heirs---Respondent

R.S.A. No.52 of 2004, heard on 27th April, 2017.

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

----O. XIII, R.4---Exhibiting of document by Court---Object, purpose and scope---Word 'exhibit' means a document or tangible object produced before court for its inspection or shown to a witness while giving evidence or referring the same in his deposition so that it can be taken into possession and retained by court on the lis file for reference as well as identification in judgment---When a party intends to prove a document through witnesses, he only refers that document for its proof, the court exhibits the same---Witness has no role in marking document as exhibit rather it is sole duty of court to assign exhibit number to document so that in latter part of proceedings it may be referred as identified from said number---Ex-Hypothesi exhibit means a document exhibited for purpose for being taken into consideration in deciding some question or other in respect of proceedings in which it is filed---Any question with regard to admissibility of a particular document for purposes of proceedings must be decided at the time when document is tendered and before it is actually marked as an exhibit whereas, its proof is altogether a different subject.

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

----Arts. 117, 118, 119 & 120---Burden of proof---Shifting of burden---Principle---Party to litigation through modes provided under law, can prove a fact and once initial onus has been discharged by a party, same shifts to the other party for its rebuttal thereof or for proof otherwise.

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

----Arts. 17 & 79---Marginal/attesting witness---Scope---"Attesting witness" is one who not only sees document being executed but also appends his signature/thumb impression on it after understanding its contents---If attesting witness while appearing in witness box, to prove contents of document, fails to depose about the contents of documents or cannot verify his signature/thumb impression, such person cannot be treated as an "attesting witness"

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

----Ss. 12 & 42---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Evidence, withholding of---Presumption---Criminal cases, pendency of---Suit for specific performance of agreement to sell and declaration was filed by plaintiff on grounds that despite payment of full consideration amount, defendants did not transfer property in his favour---Validity---Defendants had disputed execution of agreement from its inception and in such a situation, promisee was under obligation to prove every aspect of its construction---Any omission on part of stamp vendor could only be proved through examination of his stamp vending register, and on account of its non-production in spite of availability, inference under Art.129, illustration (g) of Qanun-e-Shahadat, 1984 had to be drawn against the promisee---High Court declined to believe that when on the one hand criminal litigation was going on between the parties then on the other hand, an agreement without intervention of some respectable was settled and accused of a pending criminal case had paid entire sale consideration to complainant of said case without getting property transferred in his name or execution of any registered instrument in such behalf---High Court declined to interfere in judgments and decrees already passed against plaintiff---Second appeal was dismissed in circumstances.

Ch. Habib Ullah Nehang and Raja Muhammad Hanif for Appellant.

Rana Muhammad Nazir Saeed for Respondent.

P L D 2018 Lahore 139

Before Ahmad Raza Gilani, J

WAQAR ALI and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.454 of 2015 and Criminal Revision No.390 of 2015, decided on 24th April, 2017.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Ocular account corroborated by medical evidence---Prosecution case was that accused persons assaulted on complainant party, as a result of which son of complainant died whereas complainant sustained injuries---Ocular account was furnished by father, brother and sister of the deceased---Both the parties were close relatives and no enmity existed between them---Complainant, during trial, stated that it was darkness and he could not see as to who was armed with pistol and by whose firearm his son was injured---Father and brothers of the deceased were declared hostile---Sister of deceased whose presence was natural at the place of occurrence being resident of the house, fully supported the prosecution case (which got support from medical evidence) had categorically stated that her statement was recorded by the police after seventeen days of the occurrence but she was not cited as a witness by the police in the calendar of witnesses---Said witness deposed that her husband who was real brother of accused had been extending threats to her that if she made statement before the court against his brother and sister he would divorce her---Circumstances suggested that there was no reason to discard the statement of sister of the deceased---Complainant and witnesses of occurrence though had been declared hostile for the reasons mentioned in their statements that they had forgiven the accused persons and had no objection for their acquittal but the widow of the deceased who was eye-witness of the occurrence as a court witness, supported the prosecution case narrated in the FIR lodged by complainant---Circumstances established that sister of deceased was truthful witness and she had sufficiently explained the delay in recording her statement under S.161, Cr.P.C. as she was receiving threats from her husband---Declaring complainant and brother of deceased as hostile witnesses, in the fact and circumstances of the case, was not fatal to the prosecution case---Conviction could be passed on the statement of sole witness, if court found the same confidence inspiring and truthful---When ocular account was strong and trustworthy, principle of independent corroboration would not apply---Appeal was dismissed in circumstances.

Muhammad Basharat v. The State and another 2003 SCMR 554 rel.

Malik Muhammad Saleem for Appellants

Mr.Muhammad Ramzan Khalid Joiya for the Complainant.

Muhammad Abdul Wadood, Deputy Prosecutor General for the State.

P L D 2018 Lahore 151

Before Habib Ullah Amir, J

Mian GHULAM IJAZ and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.61180 of 2017, heard on 24th August, 2017.

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

----S. 167---Remand of accused---Object---Remand of accused to the custody of police for investigation was not to be granted in a mechanical manner; rather be granted by application of judicial mind---Court was to scrutinize acts of police and ensure that there was some evidence collected by police against the accused---Detention of a person without any legal justification would create a sense of injustice and insecurity in the society.

Rashid v. The State and 2 others PLD 1970 Lah. 389; Azad Jammu and Kashmir, Muzaffarabad Ehtesab Bureau through Chairman v. Khalil Ahmed Abbasi PLD 2002 Azad J&K 20; Bashir Ahmed v. The State and 5 others PLD 2012 Lah. 260; Muhammad Siddiq v. Province of Sindh through Home Secretary, Karachi and 2 others PLD 1992 Kar. 358; Adeel and another v. The State 2016 YLR 2212; Haseeba Taimor Afridi v. The State and another 2013 SCMR 1326; Mst. Allah Rakhi v. Senior Superintendent of Police Faisalabad and 3 others 2000 PCr.LJ 1576 and Riaz ul Haq and another v. Muhammad Naveed and another 2005 YLR 805) rel.

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

----S. 167---Penal Code (XLV of 1860), Ss. 302, 34 & 109---Qatl-i-amd, common intention, abetment---Remand of accused to police custody---Scope---Petitioners were charged for hatching conspiracy and abetting unidentified accused---Investigating Officer urged for physical remand of the accused-petitioners on the ground that unidentified accused person were to be arrested---Judicial Magistrate turned down the request of the Investigating Officer for further physical remand---Appellant Court while accepting the revision petition allowed the Investigating Officer to get physical remand of the accused person---Validity---Request was made by the Investigating Officer for further physical remand despite the fact that physical remand for nine days was previously given by the Judicial Magistrate---Investigating Officer had requested that investigation was to be finalized in presence of accused and that he intended to arrest unidentified accused persons as petitioners had promised their arrest---Petitioners remained on physical remand with police but there was no progress in investigation and no interim report had been submitted---Judicial Magistrate while refusing remand of petitioners took into consideration that accused-petitioners were ascribed role of abetment only, so nothing was to be recovered from them---Presence of accused was not necessary for the completion of investigation---Appellate court, held, ignored said aspect of the matter and in an illegal manner passed the impugned order---Petition was accepted by setting aside impugned order in circumstances.

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

----S. 167---Remand of accused to police custody---Scope---Accused could not be remanded to custody of police merely on the ground that his presence was necessary to finish investigation or to get from him a confessional statement.

Mst. Kaisari v. Sarkar 1973 PCr.LJ 156 rel.

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

----S. 173, proviso [as added by Criminal Law (Amendment) Act (XXV of 1992)]---Investigation---Interim report---Scope---Investigation was to be completed without unnecessary delay and as soon as it was completed, Officer in-charge of the Police Station was required to submit challan through Public Prosecutor but not later than fourteen days---If investigation was not completed within stipulated period of fourteen days from date of recording of FIR then Officer in-charge of Police Station would submit interim report within three days of expiry of period of fourteen days stating therein the result of investigation---Court on the basis of such interim report, would commence trial.

Muhammad Usman Anwar Ch. And Ch. Iftikhar Ahmad for Petitioners.

Asif Javed Qureshi for Respondent No.3.

Ali Hassan, D.P.P. with M. Riaz ASI for the State.

P L D 2018 Lahore 160

Before Ijaz ul Ahsan and Shujaat Ali Khan, JJ

P.T.V. EMPLOYEES' ITTEHAD UNION, PUNJAB through Secretary---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Government of Pakistan, Ministry of Law and Parliamentary Affairs and 6 others---Respondents

I.C.A. No. 53 of 2013 in W.P. No. 25102 of 2011, decided on 3rd July, 2015.

(a) Interpretation of statutes---

----Vires of statute---Principles---Court must attribute widest possible meaning (to a statute), and the rule of liberal construction should be followed and every possible effort should be made to save the law rather than destroy it---Even where two views were possible, the one making the enactment constitutionally permissible had to be adopted.

Nishat Mills Ltd. Nishatabad, Faisalabad v. The Federation of Pakistan through Secretary, Ministry of Food and Agriculture and 4 others PLD 1994 Lah. 175; Sanofi Aventis Pakistan Limited and others v. Province of Sindh through Secretary Excise and Taxation Department, Karachi and 2 others PLD 2009 Kar. 69; Defence Authority Club, Karachi and 5 others v. Federation of Pakistan through Secretary, Revenue Division and 2 others 2007 PTD 398; Messrs Al-Khalil Cold Storage v. Federation of Pakistan through Secretary Finance, Islamabad and 3 others 2010 PTD 1260; Commissioner of Sales Tax and others v. Hunza Central Asian Textile and Woolen Mills Ltd. and others 1999 SCMR 526; Messrs Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623; Messrs Sh. Abdur Rahim, Allah Ditta v. Federation of Pakistan and others PLD 1988 SC 670 and Pir Rashid-ud-Daula and 3 others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 401 ref.

(b) Constitution of Pakistan ---

----Fourth Sched.---Entries in the Legislative Lists---Interpretation---Principles.

Following are the principles of interpretation for Entries in the Legislative Lists:

(i) The Legislative Lists did not confer powers of legislation. They merely demarcated the legislative fields in which the respective legislature may enact laws;

(ii) Entries in Legislative Lists must receive liberal construction. They should not be interpreted in a restricted, narrow and pedantic sense;

(iii) The doctrine of "pith and substance" should be adopted in understanding the true nature and character of an impugned legislation (which was alleged to be made in contravention of the Legislative Lists);

(iv) Powers to legislate were derived from Articles of the Constitution, and not from entries in the Lists. The language of the Articles and entries in the lists must be given the widest scope of their meaning in order to facilitate enforcement of laws and the machinery of the government put in place for the said purpose;

(v) Each general word should extend to ancillary and subsidiary matters which could fairly and reasonably be comprehended in it;

(vi) Where vires of an enactment was challenged, there was a presumption of constitutionality in its favour. The onus to prove otherwise laid heavily on the one challenging it;

(vii) If there was difficulty in ascertaining limits of legislative powers, such difficulty must be resolved, as far as possible in favour of the legislature, putting the most liberal construction on the Legislative Entry;

(viii) Where legislative powers overlapped, it was the duty of courts to define, in a particular case before them, the limits of the respective powers;

(ix) While entries should be construed liberally, their irreconcilability and impossibility of co-existence should be patent;

(x) If both laws (Federal and Provincial) could coexist, without conflict, courts would not invalidate a law; and

(xi) Courts should adopt a purposive approach to permit both enactments to operate in their own fields by applying them harmoniously.

The Elel Hotels and Investment Ltd. and another v. Union of India AIR 1990 SC 1664; United Provinces v. Atiqa Begum AIR 1941 FC 16; Offshore Holding Pvt. Ltd. v. Bangalore Development Authority 2011(3) SCC 139; Union or India v. Harbhajan Singh Dhillon [(1971) 2 SCC 779; Govenor-General-in-Council v. Releigh Investment Co. 1944 FCR 229, 261; Harakchand Ratanchand Banthia v. Union of India [(1969) 2 SCC 166]; Ujagar Prints v. Union of India [(1989) 3 SCC 488]; Jijubhai Nanabhai Kachar v. State of Gujarat [(1995) Suppl. 1 SCC 596]; Hoechst Pharmaceuticals Limited v. State of Bihar (1983) 4 SCC 45; Fatehchand Himmatlal v. State of Maharshtra [1977) 2 SCC 670]; Muthuswami Goundan v. Subramanyam Chettiar [1940 FCR 188] and State of Bombay v. Narottamdas Jethabhai [1951 SCR 51]; ref.

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

----Preamble---Punjab Industrial Relations Act (XIX of 2010), Preamble ---Constitution of Pakistan, Art. 17, Fourth Sched, Pt. I, Entry Nos. 27, 31, 58 & 59 & Fourth Sched, Pt. II, Entry Nos.3, 13 & 18---Industrial Relations Act 2012, vires of---Whether said Act encroached upon provincial autonomy---Industrial Relations Act, 2012 applied to a distinct category of establishments and their workers, namely, those operating in the [Islamabad] Capital territory or inter-provincial establishments which operated in more than one province and were not establishments, operating only in a single province which would be governed by the provincial laws---Industrial Relations Act, 2012 was neither in conflict with any provincial law nor did it usurp or encroach upon provincial autonomy---Combined reading of Entry Nos.31, 58 and 59 of Part-I of the Federal Legislative List together with Entry Nos. 3, 13 and 18 of the Part-II of the said List clearly indicated that trans-provincial establishments fell within the purview of the said entries, hence providing the Constitutional basis for enactment of the Industrial Relations Act, 2012---All matters involving trans-provincial establishments came within the legislative competence of Majlis-e-Shoora (Parliament) which could enact laws relating to such establishments in all matters which directly, indirectly or incidentally related to such establishments and were ancillary thereto---Industrial Relations Act, 2012 dealt with a subject and operated in an area which was beyond the legislative competence of provincial legislatures which did not have the power to make laws which would have extra territorial reach, regulate rights of workmen in trans-provincial establishments and be enforceable beyond the territorial limits of each province---Moreover, Industrial Relations Act, 2012 sought to secure Fundamental Rights of a defined and specific class of workers who would otherwise remain unprotected and unable to exercise their Fundamental Right of freedom of association as enshrined under Art.17 of the Constitution---Punjab Industrial Relations Act, 2010 (provincial law) and Industrial Relations Act, 2012 (federal law) operated in different fields; they could co-exist without conflict and could be applied and implemented harmoniously and seamlessly in their respective fields---Industrial Relations Act, 2012 was intra vires of the Constitution, its enactment was within the legislative competence of the Majlis-e-Shoora (Parliament) and the same was a valid piece of legislation.

Pakistan Telecommunication Company Ltd. v. Member NIRC and others 2014 SCMR 535 ref.

Air League of PIAC Employees through President v. Federation of Pakistan M/O Labour and Manpower Division, Islamabad and others 2011 SCMR 1254 distinguished.

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

----Preamble---Constitution of Pakistan, Art. 17, Fourth Sched, Pt. I, Entry Nos. 27, 31, 58 & 59 & Fourth Sched, Pt. II, Entry Nos. 3, 13 & 18---Industrial Relations Act 2012, vires of Trans-Provincial establishment---Registration of trade unions in each Province---Industrial Relations Act 2012 was intra vires of the Constitution, its enactment was within the legislative competence of the Majlis-e-Shoora (Parliament) and the same was a valid piece of legislation---Effect of striking down Industrial Relations Act, 2012 as ultra vires the Constitution stated.

Following are some of the effects that would follow if the Industrial Relations Act, 2012 was struck down as being ultra vires the Constitution:

(i) If trade unions of trans-provincial establishments were required to be registered in each province under their respective Industrial Relations Acts, it would divide the trade union movement which would have an adverse effect on the entire concept of trade unionism in the country. Such a situation would create confusion and chaos. As a consequence, in one institution owned by the same employer, having establishments, factories, units or offices in various provinces, multiple unions would be functioning under different provincial laws;

(ii) The employers would not recognize the right of workmen to form one trade union Collective Bargaining Agent (CBA) and carry out unified trade union activities in an establishment that operated at trans-provincial level;

(iii) The number of workmen in each unit of trans-provincial establishments would be counted separately which would adversely impact on their rights in so far as applicability of benefits and security of job granted under various labour laws became available to workmen depending upon the total strength of workmen in an establishment;

(iv) The bargaining capacity of workers would be considerably reduced insofar as presentation and settlement of charter of demands with the management was concerned;

(v) In the same establishment, on the basis of different charters of demand similarly placed workmen would arguably have different sets of terms, conditions and facilities depending upon the agreement reached by each union in each province; and

(vi) In consequence of registration of different unions in different provinces, the management of these institutions would have to settle separate charters of demand with each union as they would be registered separately in each province.This would potentially create anomalous situations leading to discontent and dissatisfaction amongst workmen of the same establishment working under the same management but registered as members of different unions in different provinces.

Muhammad Shahzad Shaukat, Ibrar Ahmad and Saif Ullah Maan for Appellant.

Imran Aziz, Deputy Attorney-General for Pakistan for Respondent No.1.

Malik Waseem Mumtaz, Additional Advocate-General for Respondent No.7.

Ishtiaq A. Samsial for Respondent No.4.

P L D 2018 Lahore 195

Before Syed Mansoor Ali Shah, C J

TALLAT MEHMOOD---Petitioner

Versus

THE STATE and others---Respondents

Writ Petition No.49971-M of 2017, decided on 4th January, 2018.

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

---Ss. 21, 22 & 27---Criminal Procedure Code (V of 1898), S.4(r)---"Pleader"'---Scope---Special permission sought to appear as pleader before the High Court---Counsel, who had not practiced for the required amount of time to become an advocate of the High Court, sought permission to appear as pleader before the High Court on the basis that he represented his client in the Trial Court and was well versed with the facts of the case, hence, he be granted permission to appear before the High Court; held, that S. 21 of Legal Practitioners and Bar Councils Act, 1973 provided that there were advocates of the Supreme Court, High Court and "other advocates"---Section 22 of the said Act stated that "other advocates" could appear in all the courts other than the High Court or the Supreme Court---Section 27 of the Act provided that a person in order to qualify for admission as an advocate of High Court must have practiced as an advocate before the subordinate courts for a period of not less than two years---Section 58 of the Act provided that any advocate, who violated said provisions, was subject to a penalty of imprisonment or fine or both---Requirements under Ss. 21, 22 & 27 of the said Act, thus, were mandatory---No other law existed under which the High Court could permit an advocate, who was not an advocate of the High Court, to appear before the High Court---Counsel in question had only one year and six months of practice to his credit---Even in terms of S. 4(r)(1) of Cr.P.C., a pleader must be authorized under the law to practice in a particular court and in the present case the counsel did not have the license to appear before the High Court---Permission sought by the counsel to appear as pleader before the High Court could not be granted to him---Application was dismissed accordingly.

Ahsan Qadeer Hunjra for the petitioner.

Abdul Samad, Additional Prosecutor General, Punjab.

Anwaar Hussain, Additional Advocate General, Punjab.

P L D 2018 Lahore 198

Before Abid Aziz Sheikh, Shahbaz Ali Rizvi and Qazi Muhammad Amin Ahmed, JJ

PROVINCE OF PUNJAB---Appellant

Versus

QAISAR IQBAL and others---Respondents

I.C.A. No.77347 of 2017, decided on 5th December, 2017.

(a) Judgment---

----Incorrect provision of law---Mere non-mentioning or wrong citation of a provision of law (in the judgment) would not per se vitiate the judgment.

[Case-law referred.]

(b) Punjab Tribunals of Inquiry Ordinance (II of 1969) ---

----S. 3(1)---Punjab Transparency and Right to Information Act (XXV of 2013), S. 7(2)---Constitution of Pakistan, Arts. 19A & 199---Constitutional petition filed before the High Court seeking to make public a judicial inquiry report prepared by a "One Man Tribunal" relating to an incident in which fourteen (14) people were killed and many injured by the police during a protest staged by a political party---Maintainability---Alternate remedy---Scope---Plea of Provincial Government that alternate remedy was available to the petitioners under the Punjab Transparency and Right to Information Act, 2013, thus, the Constitutional petition was not maintainable; held, that perusal of prayer clause of Constitutional petition showed that petitioners therein made two prong prayer---In first part, the petitioners sought direction to immediately provide them the report of the Tribunal and in the second part the petitioners sought direction to make the report public to ensure the Fundamental Rights of the petitioners as well as people of the country under Art. 19-A of the Constitution---First part of prayer for providing the report to the petitioners was indeed covered under the jurisdiction of the Public Information Officer under the Punjab Transparency and Right to Information Act, 2013, however, the second relief which sought to make the report public for information of people of the country was not within the domain of the Public Information Officer under the Act of 2013 but the said relief could only be granted through enforcement of Fundamental Right of all citizens of the country under Art.19-A of the Constitution---Constitutional petition was held to be maintainable accordingly.

[Case-law referred.]

(c) Equity---

---- Equitable relief---Such relief could not be granted to a person who came to the court with unclean hands.

(d) Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-court appeal---Locus standi of appellant---Where a person was aggrieved of an impugned order, he had locus standi to file appeal notwithstanding the fact that he was not party in the proceedings where impugned order was passed.

[Case-law referred.]

(e) Administration of justice---

----Similar matter filed before the Single Bench and Larger Bench of the same High Court---No specific bar or requirement was laid down in the Constitution or any statute that similar matters being already sub-judice before Larger Bench must not be heard and decided by a Single Bench, however, under the settled principles of administration of justice and to ensure that justice should not only be done but it should manifestly be seen to be done, the hierarchical arrangements of the courts were to be followed---Following the principles of administration of justice, when a particular issue was already sub judice before a Larger Bench, then in all propriety the similar subsequent matter on same issue should be referred to the same Larger Bench---Said principle, however, did not apply to those cases (before the Single Bench) which were distinct or different in nature from cases already pending before the Larger Bench.

(f) Remand order---

----Principles---Remand should only be resorted to when it was absolutely necessary for a fair and proper adjudication of the case---Unnecessary remand not only resulted in undue delay in cases but consequently also prolonged the agony of the litigants.

[Case-law referred.]

(g) Punjab Tribunals of Inquiry Ordinance (II of 1969)---

----S. 3---Proceedings of Tribunal, Commission or Committee of Inquiry---Nature---Tribunal or Commission appointed under the [Punjab] Tribunals of Inquiry Ordinance 1969 did not decide any dispute but merely ascertained real facts, and there were neither any parties before the Tribunal nor any lis---Tribunal did not perform any judicial functions---Procedure of the Tribunal was inquisitional rather than accusatorial---Tribunal was not a Court and it was not competent to render any judgment---Tribunal had no power of adjudication in sense of passing an order which could be enforced "proprio vigore"---Inquiry or final report by Tribunal was not a judicial inquiry in the sense of its being an exercise of judicial function.

[Case-law referred.]

(h) Punjab Tribunals of Inquiry Ordinance (II of 1969) ---

----S. 3---Qanun-e-Shahadat (10 of 1984), Art. 85---Public document---Scope---Judicial inquiry report prepared by a Tribunal or Commission appointed under the [Punjab] Tribunals of Inquiry Ordinance, 1969---Said report was not a public document in terms of Art. 85 of the Qanun-e-Shahadat, 1984.

[Case-law referred.]

(i) Constitution of Pakistan---

----Arts. 19 & 19A---Right to information and access to information in all matters of public importance---Scope and significance---Said right was indisputably a Fundamental Right guaranteed under Arts. 19 & 19-A of the Constitution---Right of information stemmed from the requirement that members of a democratic society should be sufficiently informed so that they may influence intelligently the decision which may affect themselves---People had a right to know every public act, everything that was done in public way by their public functionaries and chosen representatives---Citizens' right to know the true facts about the administration of the country in all matters of public importance was one of the most fundamental pillars of a democratic state---People were entitled to know the particulars of every public transaction, and acquire information in all matters of public importance and to disseminate it---Without information, a democratic electorate could not make responsible judgments about its representatives---Freedom of information was the only vehicle of political discourse essential to democracy and it was equally important in facilitating artistic and scholarly endeavours of all sorts---Freedom of information, freedom of speech and expression and the people's right to know, should therefore, receive a generous support from all those who believed in democracy and the participation of people in the administration and matters of public importance.

[Case-law referred.]

(j) Constitution of Pakistan---

----Arts. 10A & 19A---Right to information---Scope---Publication which would cause harm or was likely to cause harm to the "administration of justice" including "fair trial" under Art. 10-A of the Constitution, could be restricted and such restriction would be reasonable and valid under the law.

(k) Constitution of Pakistan---

----Art. 19A---Right to information---Exceptions---Scope--- Public order was a reasonable exception under law to Art. 19A of the Constitution.

(l) Constitution of Pakistan---

----Art. 19A---Punjab Transparency and Right to Information Act (XXV of 2013), S. 13(1)---Disclosure of information---Exceptions---Public and private interest---Proportionality, principle of---Scope---Disclosure of information in regard to the functioning of Government must be the ordinary rule while secrecy must be an exception, justifiable only when it was demanded by the requirement of public interest --- Right to information could not be restrained merely on the basis of speculative possibility of harm or prejudice to public order; but the information must be of such nature as would create real and substantial risk of prejudice and harm to public order---Where the State was protecting information relating to a matter of public importance, the Court had to perform a balancing exercise between two competing dimensions of public interest, namely the right of the citizen to obtain disclosure of information which competed with the right of the State to protect the information on the basis of exceptions---After weighing one competing aspect of public interest against the other, the court had to decide where the balance laid---Where the Court came to the conclusion on the balance and under the principle of proportionality that disclosure of information would cause greater injury to the public interest, than its non-disclosure, the Court would hold the objection to the disclosure and not allow the document to be disclosed, but if on the other hand, the Court found that balance between two competing interests laid the other way, the Court would order for disclosure of document --- Same balancing test would apply where the right to disseminate information conflicted with private interest of an individual and Court would have to determine whether public interest would prevail over private interest.

[Case-law referred.]

(m) Punjab Tribunals of Inquiry Ordinance (II of 1969)---

----S. 3(1)---Punjab Transparency and Right to Information Act (XXV of 2013), S. 7(2)---Constitution of Pakistan, Arts. 10A, 19A & 199---Right to information---"Public interest" in publication of a judicial inquiry report---Exceptions of "public order" and "administration of justice" to right of information---Scope---Constitutional petition filed before the High Court seeking to make public a judicial inquiry report prepared by a "One Man Tribunal" relating to an incident in which fourteen (14) people were killed and many injured by the police during a protest staged by a political party---Question as to whether disclosure of said inquiry report shall actually or was likely to cause harm to public order and administration of justice and even if it did, whether in public interest such disclosure would outweigh the harm in terms of S.13(2) of the Punjab Transparency and Right to Information Act, 2013 and principle of balancing and proportionately; held, that contents of the Tribunal's inquiry report showed that nowhere it was stated or apprehended that the report should not be disclosed or its disclosure would cause or was likely to cause harm to public order---After the incident which resulted in loss of several lives and created unrest in general public and attracted attention of local and international media, the situation did not go beyond ordinary maintenance of law and order, therefore, there was no reason to apprehend that disclosing of real facts regarding the incident, would cause or was likely to cause harm to public order---Provincial Government had not shown real or substantial risk of harm to public order from disclosure of report, which would go beyond ordinary maintenance of law and order situation---Considering the reasons for constitution of Tribunal by the Provincial Government itself, and by applying the test of "proportionality and balancing", the public interest to disclose the inquiry report to public would easily dominate and outweigh the exception of public order---Applying the same test of balancing to the exception of "administration of justice", the task assigned to the Tribunal was to find out the real facts, causes of the incident, the measures taken, fix responsibility if any, and pre and post handling of the incident---Subject matter of the report was regarding the duties of the administration or their negligence to perform such duties but it had no nexus with the determination of cognizable offences which indeed was the job of the investigating agencies---Even otherwise, the report was only a fact finding probe which was neither binding on the Government or investigating agency nor had any evidential value in the eyes of law---With the disclosure of the inquiry report, there was no fear of harm or likely harm to administration of justice including fair trial---Petitioners were not seeking a direction for making the report part of the trial proceedings nor such relief could be granted under the law; instead they were only seeking disclosure of the report to know the real facts which in no way had any effect on the right of fair trial guaranteed under Art.10-A of the Constitution---Provincial Government had an option not to conduct any inquiry into the incident, however, in the public interest and to ensure a transparent and independent inquiry, it requested a judicial inquiry---Once the Provincial Government itself opted for an inquiry through a Judge, then in absence of any provision to the contrary in the Punjab Tribunals of Inquiry Ordinance, 1969, the final report had to be available to public for information and also fair comments in public interest---Provincial Government could not be allowed to say that the report was only for its use and not for the public---When the inquiry was conducted in public interest to find out the real facts and causes of an incident which caused loss of lives and unrest in the general public, then it was not understandable how public interest would be served and unrest in general public satisfied unless the inquiry report with real facts was made available to the general public---High Court directed that copy of the inquiry report of Tribunal shall be supplied to the petitioners for their information, by the concerned official, forthwith; that the inquiry report shall be published by the concerned authorities within 30 days from the announcement of present judgment, and that to ensure a fair trial and administration of justice, the disclosure of the inquiry report shall not impact upon the fate/outcome of the trial in progress in contravention of law applicable thereto.

[Case-law referred.]

(n) Criminal trial---

----Media publicity of trial---Influence on judge---In a criminal trial conviction was only based on admissible incriminating evidence and not extraneous considerations or media publicity---Judges were expected to be impervious to influence by media publicity---Judges were not only expected to be impervious to media publicity but must train and equip themselves consciously not to be influenced by media publicity even sub consciously, to ensure a fair trial.

[Case-law referred.]

(o) Interpretation of statutes---

----Two competing interpretations of a provision---When two constructions were reasonably possible, preference should be given to the one which helped to carry out the beneficial purpose of the Act and ensured smooth and harmonious working of the Constitution---Courts should eschew the interpretation which would lead to absurdity and negate a Fundamental Right.

(p) Administration of justice---

----Judgments, criticism of---Scope---Contempt of court---Judgments were open for honest criticism---Parties aggrieved were within their right to express their opinion on a judgment if the decision had gone wrong on a particular question, but if the motive was to scandalize and use disrespectful language to criticize the Judge, that would cause potential menace to the confidence of public in Judges and would bring administration of justice into disrepute---Judges were not infallible and like any other person, they were liable to error but if the criticism related to the Judge instead of the judgment, that would indeed obstruct the administration of justice and may also amount to contempt of court.

For Appellants.

Khawaja Haris Ahmad assisted by Khurram Shahzad Chughtai, Ghulam Subhani, Islam Bin Haris, Ateeq Rafique, Hajra Zia, Ramsha Shahid and Saleem Akhtar Sheikh.

Shan Gull, Additional Advocate General Punjab.

Azam Nazir Tarar, and Barrister Asad Ullah Chatha in connected mater (I.C.A. No.86398/2017.

Ali Zia Bajwa, assisted by Ms. Aalia Ijaz in connected matter (I.C.A. No.81068/2017).

Malik Adeel Ehsan.

For Respondents

Syed Ali Zafar assisted by Zahid Nawaz Cheema, Mubashir Aslam Zar, Jahanzeb Sukhera, Ms. Sara Majeed, Ms. Naima Arif and Ms. Namra Raees.

Khawaja Ahmad Tariq Raheem, Muhammad Azhar Saiddique, Addel Hassan, Sajid Ali Khan, Hassan Tariq Khawaja, Ms. Hafza Mafia Kausar, Humayon Faiz Rasool, Nasir Iqbal Qadri, Abdullah Malik, Ishtiaq A. Chaudhry, Muhammad Rizwan, S. Parveen Mughal, Muhammad Irfan, Munir Ahmad, Mian Shabbir Asmail, Usman Azam Gondal, Uzma Razzaq Khan, Naeem ud Din Chaudhry, Shakeel Maneka, Ans Gul and Malik Yasir Siddique.

P L D 2018 Lahore 255

Before Syed Mansoor Ali Shah, C J

MAPLE LEAF CEMENT FACTORY LTD.---Petitioner

Versus

ENVIRONMENTAL PROTECTION AGENCY and others---Respondents

Writ Petition No.115949 of 2017, heard on 21st December, 2017.

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

----S. 2(xlii)---"Sustainable development"---Four legal elements of 'sustainable development'---Idea of sustainability or sustainable development was hinged on four legal elements; first, the need to preserve natural resources for the benefit of future generations (the principle of intergenerational equity); second, the aim of exploiting natural resources in a manner which was sustainable, or 'prudent', or 'rational', or 'wise', or 'appropriate' (the principle of sustainable use); third, the 'equitable' use of natural resources, which implied that use by one state must take account of the needs of other states (the principle of equitable use, or intergenerational equity); and fourth, the need to ensure that environmental considerations were integrated into economic and other development plans, programmes and projects, and that development needs were taken into account in applying the environmental objectives (the principle of integration).

Philipe Sands- Principles of International Environmental law - frameworks, standards and implementation. @1995. pp.199 & 205 ref.

(b) Interpretation of statutes ---

----'Deeming provision'---Where the legislature stated that 'something should be deemed to have been done' which in truth had not been done, it created a legal fiction and in that case, the court was entitled and bound to ascertain for what purposes and between what persons the statutory fiction was to be resorted to and full effect must be given to the statutory fiction and it should be carried to its legal conclusion Court must follow the consequences that flowed from or were ancillary to a deeming provision and was required to recognize and give effect to the same.

Interpretation of Statutes by N S Bindra. Pp 267-268; Understanding Statutes by S.M.Zafar 4th Edition. Pp 92-93; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 and All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1 ref.

(c) Punjab Environmental Protection Act (XXXIV of 1997)--

----S. 12(4)---Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, Reglns. 11(1), 15 & 16---Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA), approval of---Deemed approval through lapse of time---Construction or operation of the project could not commence unless environmental approval was granted by the Provincial Environmental Protection Agency---Section 12(4) of the Punjab Environmental Protection Act, 1997 ('the Act') and Reglns. 11(1), 15 & 16 of Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000 ('the Regulations') provided a strict timeline (of four months) to be followed by the Agency for grant of environmental approval, and in case the same was not granted within such time period, it was considered as deemed approval---Only exception was under S.12(5) of the Act, where the Government in an appropriate case could seek an extension for a maximum of another four months, however, the statutory nature of the deeming provision was equally effective after the expiry of the extended period---Deemed approval under S. 12(4) of the Act was, however, not absolute and was limited to the extent where it did not contravene the provisions of the Act, and the Rules and Regulations made thereunder---Once the Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA) received deemed approval, the Agency was empowered to stop the project if it could establish that there had been violation of any provision of the Act or the Rules or Regulations thereunder---Agency could pass an Environmental Protection Order under S.16 of the Act which empowered the Agency to pass a restraining order if any act or omission was likely to occur in violation of the Act, Rules or Regulations or was likely to cause an adverse environmental effect---Deemed approval could not, however, be interfered with by the Agency on the sole ground that written environmental approval was not granted under S. 12(4) in spite of the lapse of the statutory period.

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

----S. 12(4)---Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, Reglns. 11(1), 15 & 16---Constitution of Pakistan, Arts. 9, 14(1) & 199---Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA), approval of---Deemed approval through lapse of time---'Precautionary principle' and 'In Dubio Pro Natura principle'---Scope---In the present case the Provincial Environmental Protection Agency ('the Agency') had failed to complete the review process and pass an order on the Environmental Impact Assessment (EIA) filed by the petitioner within the stipulated time period of four months---Resultantly under S.12(4) of the Punjab Environmental Protection Act, 1997 ('the Act), the EIA was deemed to have been approved---While the EIA filed by the petitioner was deemed to have been approved, however, in the light of a survey being carried out by the Provincial Mines and Minerals Department to delineate positive and negative areas for the grant of mining concessions, further grant of mining concessions to the petitioner in the concerned area may have an adverse environmental effect---Survey was underway and the matter was being overseen by the Supreme Court---Such facts attracted the Precautionary Principle reflected in Principle 10 of the Rio Declaration on Environment and Development, (1992), which principle provided that where there were threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation---Another environmental principle attracted to the present case was "In Dubio Pro Natura" [Principle 5 of the IUCN World Declaration on the Environmental Rule of Law (2016)] i.e., in cases of doubt, all matters before courts, administrative agencies, and other decision-makers shall be resolved in a way most likely to favour the protection and conservation of the environment, with preference to be given to alternatives that were least harmful to the environment, and that actions shall not be undertaken when their potential adverse impacts on the environment were disproportionate or excessive in relation to the benefits derived therefrom---Taking a precautionary approach and relying on the principle of 'In Dubio Pro Nautra', as it was uncertain what the survey of the area might hold, the courts must favour nature and environmental protection---Such approach was also constitutionally compliant as the courts were to protect the Fundamental Rights of the public and in the present case right to life and dignity of the community surrounding the project remained paramount till such time that the Agency was of the view that the project had no adverse environmental effects---High Court directed that without awaiting the survey report, the issue of future mining concessions in the area remained in doubt and uncertain, it was therefore, prudent and wise to adopt a precautionary approach and maintain status quo with respect to the petitioner till the survey report was shared with the Agency by the Provincial Mines and Mineral Department and till such time that the Agency after reviewing the survey report passed a speaking order regarding the status of the deemed approval of the EIA under S.12(4) of the Act; that the Agency once seized of the survey report shall pass appropriate orders within a fortnight thereof, under the Act, considering that the EIA already stood approved under the deeming provision; that the petitioner shall maintain status quo till such time, and that before passing the final order the Agency will confirm if there was any restraining order in such regard passed by the Supreme Court---Constitutional petition was allowed accordingly.

Principle 10 of the Rio Declaration on Environment and Development, 1992 and Principle 5 of the IUCN World Declaration on the Environmental Rule of Law (2016) ref.

Mansoor Usman Awan, Shazeen Abdullah and Hussain Ibrahim for Petitioner.

Asma Hamid and Anwaar Hussain Additional Advocates General, Punjab; Arshad Mehmood, Secretary, Mines and Mineral, Government of Punjab; Zafar Javaid, Director, Mines and Mineral, Government of the Punjab; Muhammad Javaid, Superintendent, Mines and Mineral, Government of Punjab; Mian Ejaz Majeed, Deputy Director (L&E),EPA and Asim Rehman, Deputy Director (EIA), EPA for Respondents.

P L D 2018 Lahore 269

Before Jawad Hassan, J

MUHAMMAD YOUSAF JAVAID PHAPRA and others---Petitioners

Versus

OMBUDSMAN PUNJAB and and 121 others---Respondents

Writ Petitions Nos.27212, 36026, 25023, 25835 of 2016 and C.M. No.7 of 2017; decided on 22nd December, 2017.

Punjab Office of the Ombudsman Act (X of 1997)---

----Ss. 20, 26 & 37---Constitution of Pakistan, Art.199---Appointments made by Office of the Ombudsman Punjab---Honorary appointments of advisors without remuneration---Termination of honorary appointee(s)---Creation of vested right---Scope---Natural justice, principles of---Scope---Petitioners impugned orders of the Office of Ombudsman Punjab, whereby their honorary appointments as advisers under the Punjab Office of the Ombudsman Act, 1997 were terminated---Contention of appointees inter alia, was that their appointments were terminated without providing opportunity of hearing and such termination was in violation of Fundamental Rights and Principles of Natural Justice and that their assistance was still required---Validity---Law did not envisage that honorary appointees would continue to provide assistance as long as they desired to do so---Question as to whether assistance of petitioners was required or not by the Ombudsman was to be decided by the person who was to be assisted upon and not by the person who offered such assistance and one could not be compelled to take assistance---Compelling to do so would be against the concept of assistance---Posts of petitioners were not regular posts and even no period of employment was mentioned in all the honorary appointment orders, therefore, they could not claim their posts to be a regular post or any vested rights on that post---No reasons existed to afford personal hearing to petitioners before their removal since they had no vested rights to defend---Constitutional petitions were dismissed, in circumstances.

[Case-law referred.]

Sardar Khuram Latif Khan Khosa, Muhammad Yousaf Javaid Phaphra, Mian Muhammad Nawaz, Ehsan Elahi, Akhtar Abbas and Muhammad Riaz Shahid for Petitioners.

Ch. Muhammad Shan Gull, Additional Advocate-General, Ashfaq Ahmed Kharal, Assistant Advocate General, Shahrukh Humayon Khan Senior Law Officer and Zia ur Rehman, Legal Advisor and Nadeem Hassan Gohar, Registrar Ombudsman for Respondents.

P L D 2018 Lahore 284

Before Syed Mansoor Ali Shah, C J

SHAHID IDREES---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No.58976 of 2017, decided on 22nd January, 2018.

Punjab Overseas Pakistanis Commission Act (XX of 2014)--

----Ss. 7, 3 & 2(g)---Constitution of Pakistan, Arts. 175 & 199---Role and powers of Punjab Overseas Pakistanis Commission and Government Agencies under Punjab Overseas Pakistanis Commission Act, 2014---Scope---Question before the High Court related to the powers of Punjab Overseas Pakistanis Commission---Contention of the petitioners, inter alia, was that the role of the Punjab Overseas Pakistanis Commission was to merely facilitate overseas Pakistanis and neither the Punjab Overseas Pakistanis Commission nor Government Agency under the Act could exercise judicial powers and settle interparty disputes---Held, that a complainant under Punjab Overseas Pakistanis Commission Act, 2014 could not expect a Government Agency to determine third party rights in a dispute between an overseas Pakistani and another private person---Government Agency on receiving the complaint from Commissioner, instead of deciding the complaint according to the powers enjoyed by such Government Agency, could not mistakenly assume role of an executing agency and in such process could not embark upon determination of third parties rights to settle the dispute complained of---Misplaced assumption seemed to exist that if a complaint was transmitted to a Government Agency by Commissioner, such Government Agency was equipped with additional powers to deal with the complaint by interfering and intruding into third party rights of private persons---Determination of third party rights was a judicial function and can only be carried out by a court of law which was the Judicature and not by the Commission or the Government Agencies, which formed the Executive organ of the State and such foundational Constitutional principle was embedded in Art.175 of the Constitution---Constitutional petition was allowed, accordingly.

Yearbook 2013-14, Ministry of Overseas Pakistanis and Human Resoruce Development-Government of Pakistan; State Bank of Pakistan (Statistics and DWH Department)-2018; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others PLD 2013 SC 501 and Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 rel.

Petitioners by:

Mian Ali Haider, Aish Bahadur Rana, Iqbal Ahmad Dhuddi, Uzair Sajid, Zahid Sadiq, Syed Kazim Bukhari, Muhammad Nadeem Malik in conected matters.

Respondents by:

Anwaar Hussain and Ahmad Hassan Khan, Additional Advocates General Punjab.

Bashir Ahmed Mirza, Fiaz Ahmad Kaleem and Naseer-ud-Din Khan Nayyer for Respondents.

Raja Zubair, Director Legal.

Zaheer ud Din Babar, SHO P.S. Civil Line, Abdullah Jan, S.H.O. P.S. South Cantt. and Adbul Sattar, SI P.S. Sundar Lahore.

P L D 2018 Lahore 295

Before Ibad-ur-Rehman Lodhi, J

ZUBAIDA YAQOOB CHAUDHRY through Special Attorney---Petitioner

Versus

MILITARY ESTATES OFFICER and 8 others---Respondents

Writ Petition No.4926 of 2013, heard on 10th October, 2017.

Works of Defence Act (VII of 1903)--

----Ss. 3 & 7---Constitution of Pakistan, Arts. 23 & 24---Works of defence---Use of property---Restrictions---Petitioner was owner of land within the radius of 1143 meters from Army Ammunition Depot---Petitioner was aggrieved of restriction imposed by notification dated 16.10.1979, whereby he could not change nature of his land without permission of Military Authorities---Validity---Till the time Ammunition Depots were functioning in inhabited localities, possibility could not be ruled out that any havoc could be played at any time in order to achieve designs of any stakeholders of adventurous nature---Inhabited localities must be saved from such dangerous dumps, which were situated within the residential areas and such depots, stores must be established outside the inhabited localities---Till the time such alternate arrangements were made, authorities concerned instead of imposing such unreasonable restrictions with reference to the areas outside boundary walls of Ammunition Depots must be bound down to acquire land, which was possibly would be affected from the effects of stocks stored in such Ammunition Depots---Such required land would be subject to land acquisition under law against which land owners were supposed to be compensated adequately as against the price of their land---Provisions of S.3 read with S.7 of Works of Defence Act, 1903, were in complete negation of the Constitutional guarantees provided under Arts.23 & 24 of the Constitution---High Court while exercising its Constitutional jurisdiction under Art.199 of the Constitution, was not supposed to leave people of Pakistan, who were subject to Constitution as helpless against atrocities of public functionaries---Rights and guarantees promised with people of Pakistan must practically be given effect beneficially to them and such rights must jealously be guarded---High Court provided period of one year to the authorities to arrange complete shifting of Ammunition Depot in question---Constitutional petition was allowed in circumstances.

Asad Ali Bajwa for Petitioner.

Muhammad Javed Kasuri, Deputy Attorney-General for Pakistan for Respondents.

P L D 2018 Lahore 300

Before Syed Mansoor Ali Shah, C J

Barrister ASFANDYAR KHAN and others---Petitioners

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.29131 of 2017, heard on 16th January, 2018.

(a) Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----Ss. 2(c) & Preamble---Constitution of Pakistan, Arts. 9, 14 & 25---United National Convention On The Rights of Persons With Disabilities, Ratified by Pakistan in 2011---Interpretation of Arts. 9, 14 & 25 of the Constitution in context of Constitutional protections for disabled persons---Concept of "reasonable accommodation" for disabled persons---Human dignity---Severance, doctrine of---Applicability---Deletion of words from a statute on basis of the use of said words being unconstitutional---Scope---Question before the High Court was whether words/terms "disabled", "physically handicapped" and "mentally retarded" appearing in disabled Persons (Employment and Rehabilitation) Ordinance, 1981 were unconstitutional and whether the same should be struck down---Held, that disability was an evolving concept and disability resulted from interaction between persons with impairments and attitudinal and environmental barriers that hindered their full and effective participation in society on an equal basis with others---Discrimination against any person on basis of disability was a violation of inherent dignity and worth of human person---Use of terms or words like "disabled", "physically handicapped" and mentally retarded" labelled a person on the basis of an impairment, which negated reasonable accommodation, denying persons with disabilities enjoyment or exercise on an equal basis with others---Such words also amounted to discrimination and offended right to be a person thereby infringing Constitutional guarantees of right to life, right to human dignity and right to non-discrimination of person with disabilities---High Court observed that keeping words like "disabled," "physically handicapped" and "mentally retarded" in the statute would impair and offend human dignity of persons with different abilities---High Court, by application of the doctrine of severance, struck down words "disabled," "physically handicapped" and "mentally retarded" appearing in Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 and held same to be violative of Arts. 9, 14 & 25 of the Constitution---High Court directed Federal and Provincial Government to discontinue use of such words in official correspondence, etc.---Constitutional petition was allowed, accordingly.

Hiral P. Harsora and others v. Kusum Narottamdas Harsora and others (2016) 10 SCC 165; Shahid Pervaiz v. Ejaz Ahmad and others 2017 SCMR 206; R.M.D. Chamarbaugwalla and another v. Union of India and another AIR 1957 SC 628 and Hafiz Junaid Mahmood v. Government of Punjab and others PLD 2017 Lah. 1 ref.

Hafiz Junaid Mahmood v. Government of Punjab and others PLD 2017 Lah. 1; http://www.apd-india.org/blog/i-am-differently-abled-not-disabled-0; Syracuse University Disability Cultural Center (DCC). An Introductory Guide to Disability Language and Empowerment; Stu Woolman - The Architecture of Dignity. The Dignity Jurisprudence of the Constitutional Court of South Africa. Vol-1, p.73; Aharon Barak - The Judge in a Democracy. Pp.85-86; http://www.fvkasa.org/resources/ files/history-nyln-language pdf; Hiral P. Harsora and others v. Kusum Narottamdas Harsora and others (2016) 10 SCC 165; Shahid Pervaiz v. Ejaz Ahmad and others 2017 SCMR 206; R.M.D. Chamarbaugwalla and another v. Union of India and another AIR 1957 SC 628; The Corporation of Calcutta v. Calcutta Tramways Co. Ltd, AIR 1964 SC 1279 and Satyawati Sharma v. Union of India and another (2008) 5 SCC 287 rel.

(b) Constitution of Pakistan---

----Art. 14---Inviolability of dignity of man---Concept of "Human Dignity"---Scope---Dignity had its roots in the simple idea that justice consisted of refusal to turn away from suffering---Most central of all human rights was right to dignity as it united other human rights into a whole---Right to dignity reflected recognition that a human being was a free agent, who developed his body and mind as he wished, and the social framework to which he was connected and on which he depended---Human dignity was therefore the freedom of an individual to an individual identity; it was the autonomy of individual will and was the freedom of choice---Human dignity was infringed if a person's life or physical or mental welfare is harmed.

Stu Woolman - The Architecture of Dignity. The Dignity Jurisprudence of the Constitutional Court of South Africa. Vol-1, p.73 and Aharon Barak - The Judge in a Democracy. Pp.85-86 rel.

Petitioner No.1 in person.

Nasar Ahmad, Deputy Attorney General for Pakistan, Ms.Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan, Anwaar Hussain, Additional Advocate General Punjab and Tariq Ismail, Litigation Officer, Social Welfare Department for Respondents.

P L D 2018 Lahore 318

Before Abid Aziz Sheikh and Jawad Hassan, JJ

MUHAMMAD NAWAZISH ALI PIRZADA---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and 6 others---Respondents

Writ Petition No.168265 of 2018, decided on 1st March, 2018.

Election Act (XXXIII of 2017) ---

----Ss. 112, 113 & 156---Constitution of Pakistan, Art. 199---Rejection/acceptance of nomination papers for Senate seat by Returning Officer---Appeal against such order---Plain and holistic reading of S.113 of the Election Act, 2017 showed that a candidate could file appeal before Appellate Tribunal if his nomination papers were rejected---Whereas an objector-candidate could file appeal before the Appellate Tribunal if nomination papers of another candidate were accepted---Candidate could not file appeal against rejection of nomination papers of another candidate unless he was objector to those nomination papers---Although the 'objector' was not defined under the Election Act, 2017 but as and when any objection was filed by an objector the same is dealt with under S.112 of the said Act---Where the petitioner-candidate had not filed any objection as provided under S.112 of the Act against the nomination papers of respondent-candidate, he (petitioner) had no locus-standi to be heard before the Appellate Tribunal---As the petitioner had no locus-standi to be heard by the Appellate Tribunal being not an objector, therefore he had no locus-standi to file a Constitutional petition against the impugned order of the Appellate Tribunal---Only remedy available to the petitioner being a candidate and not objector under S.156 of the Act would be in post-election proceedings where the petitioner would have grounds for seeking declaration of any election of returned candidate void if the nomination of the returned candidate was invalid or he was not qualified---Constitutional petition was dismissed accordingly.

Petitioner in person.

Muhammad Shahzad Shaukat, Taha Asif and Rana Imran for Respondent No.4.

Nasar Ahmed and M. Zikarya Sheikh, DAG.

Ashfaq Ahmad Kharal, A.A.G.

Ch. Mohammad Arshad Virk, A.A.G.

P L D 2018 Lahore 322

Before Shams Mehmood Mirza, J

UNITED BANK LIMITED---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.37394 of 2015, decided on 29th December, 2017.

(a) Federal Ombudsmen Institutional Reforms Act (XIV of 2013)---

----Ss. 10, 11, 12 & 15---Banking Companies Ordinance (LVII of 1962), Ss.82-B & 82-E---Constitution of Pakistan, Arts. 10A & 175---Banking Mohtasib (Ombudsman), powers of---Question as to whether an administrative tribunal, such as the Banking Mohtasib, could exercise and be vested with judicial power in determining the rights and obligations of the parties---Perusal of Ss.10, 11, 12 & 15 of the Federal Ombudsmen Institutional Reforms Act, 2013 ("the Act") showed that administrative, arbitral, executive and judicial powers were vested in the Banking Mohtasib ("the Mohtasib") even to the extent of rendering decisions against Banks and also finding their officials to be in contempt and depriving them of their liberty---Furthermore, the Mohtasib under the Act had been granted the power of civil court to implement its orders/decisions and recommendations---Powers of the Banking Mohtasib were unguided by any elaborate procedure to be followed from the stage of receiving the complaint till its termination by final decision---Determination made by the Banking Mohtashib on a complaint filed before him partook the character of a judicial decision---Various complaints filed before the Banking Mohtasib involved facts and disputes which could only be adjudicated by a court in terms of Art.175 of the Constitution and not by a non-judicial authority like Banking Mohtasib---In some instances, the Banking Mohtasib had held the banks to be vicariously liable for the fraudulent actions of ex-employees and awarded damages and in many other cases orders had been passed on matters pertaining to allegations of fraud and forgery---In all such cases the parties were at issue with respect to the material facts which would have required recording of evidence by them---Banking Mohtasib, however, passed orders on all such complaints without recording the evidence of the parties by exercising powers, which were made available to the said office by the Banking Companies Ordinance, 1962 ("the Ordinance") read with the Act---Banking Mohtasib exercised judicial functions without being aided by the Civil Procedure Code, 1908 or the Qanun-e-Shahadat, 1984---Powers made available to the Banking Mohtasib in terms of Ss.82B & 82E of the Ordinance read with Ss.10 to 12 of the Act in as much as he was empowered to receive evidence, grant temporary injunctions, implement his orders/decisions, make recommendations and hold a party in contempt of court if the orders/decisions were not implemented were all judicial powers when exercised for adjudication of factual disputes inter se private parties which powers were only available to and could be exercised by courts under Art.175 of the Constitution---Judicial powers could not be granted to the Banking Mohtasib which was a non-judicial authority and was not under the supervision and control of either the Supreme Court or the High Courts---Section 15 of the Act was clearly in conflict with and ultra vires to Art.10-A of the Constitution---Similarly, any provisions contained in Ss. 82B & 82E of the Ordinance which had the trappings of judicial power empowering the Banking Mohtasib to render binding decisions on complicated and disputed questions of fact inter se the parties was to be read down---High Court declared that Ss.10, 11, 12 & 15 of the Federal Ombudsmen Institutional Reforms Act, 2013 were ultra vires the Constitution, and that the Banking Mohtasib could not give any binding decisions on the complaints brought before it involving disputed questions of fact by resorting to the provisions contained in Ss. 82B & 82E of the Banking Companies Ordinance, 1962---Constitutional petitions were allowed in circumstances.

(b) Federal Ombudsmen Institutional Reforms Act (XIV of 2013)---

----Ss. 10, 11, 12 & 15---Banking Companies Ordinance (LVII of 1962), Ss.82B & 82E---Constitution of Pakistan, Arts. 10A & 175---Banking Mohtasib (Ombudsman)---Non-judicial powers---Scope---Judicial powers could not be granted to the Banking Mohtasib which was a non-judicial authority---Insofar as the performance of non-judicial functions by the Banking Mohtasib were concerned, such functions were within the scope and purview of his powers particularly when the exercise thereof related to overseeing the observance by the banks of the policy directives of the State Bank in respect to various banking operations---Similarly, the Banking Mohtasib was also competent and empowered to facilitate amicable resolution of disputes brought before it through consent of the parties---Banking Mohtasib could enquire into complaints of banking malpractices by the officials of the banks involving corruption, nepotism, inordinate delays or inefficiency etc. which did not involve resolution of any disputed factual issues and could make recommendations/suggestions for corrective and remedial measures to be undertaken either by the State Bank or by the administration of the banks in respect thereof.

(c) Words and phrases---

----'Jurisdiction'---Meaning stated.

[Case-law referred]

(d) Words and phrases---

----'Judicial power'---Meaning stated.

[Case-law referred]

(e) Words and phrases---

----'Judicial power' and 'jurisdiction'---Distinction stated.

(f) Constitution of Pakistan ---

----Arts. 175, 212 & 225---Judicial power---Conferring judicial power on an administrative body---Constitutionality---Various provisions contained in Part VII of the Constitution and particularly the language of Art.175 unambiguously affirmed the Courts in which the judicial power of the State shall vest and also limited the jurisdiction to be exercised by them; this also denied the option of vesting of such power and jurisdiction in any other body or authority howsoever named---Parliament could not confer judicial power on anybody or authority or regulate its exercise except in accordance with Art.175 of the Constitution---Legislative authority was only found in Part VII of the Constitution which would vest in the Courts the jurisdiction and judicial power of the State---Barring the courts created under Art.175 and Tribunals constituted under Arts.212 & 225 of the Constitution, it was virtually impossible, to confer judicial functions upon any other body which in its essential character was not a "court" in terms of Art.175 of the Constitution---Administrative bodies could not, in the performance of their functions, exercise any part of the judicial power of the courts created under Art.175 of the Constitution.

[Case-law referred]

(g) Administration of justice---

----'Judicial power' and 'legislative/administrative power'---Distinction---Conclusive and binding determination of disputes between parties was held to be a key feature of judicial power---Ascertaining the existing rights and rendering the consequential declaration in respect thereof by applying the established legal principles was deemed to fall within the purview of judicial power---Decision in respect to new rights and liabilities, on the other hand, with reference to policy considerations was considered to be an exercise of administrative or legislative power.

(h) Court---

----"Court" constituted under a special statute, powers of---Scope---Such court could only function and operate within the confines of the powers granted to it under the special law and could not travel beyond the scope of such powers.

(i) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Where the impugned proceedings were coram non-judice or the order passed was without jurisdiction, a party could approach the High Court in writ jurisdiction.

Muhammad Wasif Majeed, Imran Aziz Khan, Barrister Muhammad Ahmad Pansota, Shehzada Mazhar, Tehsin Yousaf, Muhammad Asif Ismail, Barrister Haroon Dughal, Azmat Lodhi, Sheikh Muhammad Ali, Munawar ul Islam, Miss Amina Warsi and Ayesha Warsi for Petitioners.

Muhammad Zakria Sheikh Deputy Attorney General.

Shahyar Kasuri, Raza Imtiaz Siddiqui, Ahsan Masood, Rehan Nawaz, Aatif Ali Bukhari, Aish Bahadar Rana, Raja Zafar Iqbal, Usman Ali Cheema, Sajid Ejaz Hotiyana, Syed Ali Akbar Shah, Ali Raza Kabir, Mian Sultan Tanveer Ahmad, Qadeer Kalyar, Rao Orangzeb Rashid, Rai Nazakat Abbas Bhatti, Ch. Muhammad Yaqoob, Muhammad Sohail Dar, Aamer Aziz Syed, Ch. Muhammad Naseer, Amjad Pervez Chaudhary, Fahad Khan, Faisal Naseem Chaudhary, Ch. Tasneem Bari Saleemi for Respondents.

P L D 2018 Lahore 356

Before Ayesha A. Malik, J

MUHAMMAD SHAHID---Petitioner

Versus

PUNJAB ENVIRONMENTAL TRIBUNAL, LAHORE and others---Respondents

Writ Petition No.74381 of 2017, heard on 18th January, 2018.

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

----S. 12---Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, Regln. 3 & Sched. 1---Punjab Poultry Production Act (XLVII of 2016), Ss. 12, 13 & 14---Control poultry shed---Initial environmental examination and environmental impact assessment, requirements of---Scope---Close proximity of a poultry farm from human settlement was a cause of great concern---Poultry facilities were undoubtedly a source of odor and smell which adversely affected the life and health of the people living in the vicinity---Flies, rodents and other pests were an additional menace to the local area, its health and well-being---Proper areas must be made and control mechanisms put in place for managing and storing poultry feed to avoid flies and other pests---Furthermore water pollution and use of pesticides damaged the surface water and ground water and gave rise to water borne diseases---Other serious impacts on the environment were the disposal of waste water and dead birds---Proponent of a project for poultry shed must provide a detailed dead bird management plan which should not adversely impact the environment---Schedule 1 of the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000 provided that poultry projects with total cost more than Rs.10 million were required to file initial environmental examination, but the Environmental Protection Agency must in the first instance look at the impact a project had on the environment, before it considered the cost of the project for requirement of initial environmental examination---Section 12 of the Punjab Environmental Protection Act, 1997 was clear that the object of the assessment reports was to ascertain whether there was an adverse impact on the environment, which being mandatory in nature could not be avoided.

(b) Punjab Environmental Protection Act (XXXIV of 1997)--

----S. 12---Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000, Regln. 3 & Sched. 1---Punjab Poultry Production Act (XLVII of 2016), Ss. 12, 13 & 14---Control poultry shed---Initial environmental examination and environmental impact assessment, requirements of---Scope---Plea of petitioner (owner of poultry control shed) that he was not required to file any Initial environmental examination and environmental impact assessment as his project fell below rupees one million, as given in Sched. 1 of the Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 2000; held, that petitioner commenced construction of his project without an approval from the Environment Protection Agency---Said Agency made two site visits but failed to consider the nature of the project and its impact on the environment and instead recommended in a cursory manner, that measures be adopted to prevent an adverse impact on the environment---Such direction was given without any mention of the probable causes of the impact on the environment---Perusal of the Punjab Poultry Production Act, 2016 revealed that the establishment of a poultry farm had a direct bearing on the environment and therefore would impact the environment---Sections 12, 13, 14 & 15 of the said Act set out the requirements for establishment of a poultry farm and called for biosecurity measures, poultry waste management and reporting in case of poultry disease---All said requirements were directly related to the well-being of the local inhabitants and the environment---Said requirements directly impacted the environment, hence the petitioner was required to file an environmental impact assessment prior to the construction of his project---Furthermore, the distance of the petitioner's poultry farm was 100 meters from a human settlement which was in contravention to the requirement of S.12 of the Punjab Poultry Production Act, 2016, which clearly stipulated that the poultry farm must be 500 meters from human settlements---Said ground in itself was sufficient to restrain the construction of the poultry farm of the petitioner as it was in contravention to the law---Environmental Tribunal had rightly restrained the Environmental Protection Agency from granting any approval to the petitioner with respect to the poultry farm until the matters in issue raised in the complaint were decided---Constitutional petition was dismissed accordingly.

Hafiz Muhammad Saleem for Petitioner.

Kh. Salman Mehmood, A.A.G. along with Nabila, Assistant Director Legal, Environmental Protection Agency, Lahore for Respondents.

P L D 2018 Lahore 364

Before Syed Mansoor Ali Shah, C J

ASGHAR LEGHARI---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.25501 of 2015, decided on 25th January, 2018.

(a) Constitution of Pakistan---

----Arts. 9 & 14---Right to a clean and healthy environment---Scope---Fundamental Rights, like the right to life (Article 9 of the Constitution) which included the right to a healthy and clean environment and right to human dignity (Article 14 of the Constitution) read with Constitutional principles of democracy, equality, social, economic and political justice included within their ambit and commitment, the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intragenerational equity and public trust doctrine.

(b) Pakistan Climate Change Act (X of 2017)---

----Preamble---Climate justice---Scope---Judge, duty of---Court must be conscious and alive to the beauty and magnificance of nature, the interconnectedness of life systems on the planet and the interdependence of ecosystems---On a jurisprudential plane, the courts had moved from environmental justice, which was largely localized and limited to Pakistan's own ecosystems and biodiversity on to climate justice.

Ms. Imrana Tiwana and others v. Province of Punjab and others PLD 2015 Lah. 522 and Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693 ref.

(c) Pakistan Climate Change Act (X of 2017) ---

----Preamble---Climate justice---Scope---Climate justice linked human rights and development to achieve a human-centered approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly---Climate justice was informed by science, responded to science and acknowledged the need for equitable stewardship of the world's resources---Climate justice moved beyond the construct of environmental justice, therefore, it had to embrace multiple new dimensions like health security, food security, energy security, water security, human displacement, human trafficking and disasters management within its fold---Climate justice covered agriculture, health, food, building approvals, industrial licenses, technology, infrastructural work, human resource, human and climate trafficking, disaster preparedness, health, etc.

(d) Pakistan Climate Change Act (X of 2017) ---

----Preamble---Constitution of Pakistan, Arts. 9 & 14---'Water justice' and 'climate justice'---Scope---Water justice, was a sub-concept of climate justice---Water justice referred to the access of individuals to clean water, more specifically, the access of individuals to clean water for survival (drinking, fishing, etc.) and recreational purposes as a human right---Water justice demanded that all communities were able to access and manage water for beneficial uses, including drinking, waste removal, cultural and spiritual practices, reliance on the wildlife it sustained, and enjoyment for recreational purposes---Right to life and right to human dignity under Arts. 9 & 14 of the Constitution protected and realized human rights in general, and the human right to water and sanitation in particular---In adjudicating water and water related cases, courts had to be mindful of the essential and inseparable connection of water with the environment, land and other ecosystems---Climate justice and water justice went hand in hand and were rooted in Arts. 9 & 14 of the Constitution and stood firmly on Preambluar Constitutional values of social and economic justice of Pakistan.

(e) Pakistan Climate Change Act (X of 2017)---

----Preamble---National Climate Change Policy, 2012, Cls. 1, 2, 3, 4 & 4.1---Constitution of Pakistan, Arts. 9 & 14---Climate change---Standing Committee on Climate Change, formation of---High Court, in order to facilitate the working of the Federal Government, Ministry of Climate Change, Provincial Government, Planning and Development Department, as well as, Council of Common Interests, constituted a Standing Committee on Climate Change, to act as a link between the Court and the Executive and to render assistance to the Federal and Provincial Governments and said Agencies in order to ensure that the National Climate Change Policy, 2012 and the Framework for Implementation of Climate Change Policy (2014-2030) continued to be implemented---High Court directed that the Federal and Provincial Governments and the Council of Common Interests shall engage, entertain and consider the suggestions and proposals made by the Standing Committee; that the said Committee could approach the High Court for appropriate order for the enforcement of the Fundamental Rights of the people in the context of climate change, if and when required, and that if any such application was filed, the case shall be revived and fixed before the Green Bench of the High Court---Constitutional petition was consigned to record accordingly.

Mansoor Usman Awan, Shehzeen Abdullah and Hussain Ibraheem Muhammad for Petitioner.

Nasar Ahmad, Deputy Attorney General for Pakistan, Ms. Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan, Dr. Parvez Hassan, Chairman, Climate Change Commission, Ms. Saima A. Khawaja, Advocate/Member, Climate Change Commission, Dr. Muhammad Javed, Director Irrigation Department, Government of Punjab, Dr. Qazi Tallat M. Siddiqui, Deputy Energy Advisor (Civil)/DS(W), Ministry of Water Resources, Islamabad, M. Irfan Tariq, D.G. Ministry of Climate Change, Islamabad and Nisar Ahmad, Director (PDM-II), Ministry of Inter Provincial Coordination, Cabinet Block, Islamabad for Respondents.

P L D 2018 Lahore 390

Before Ch. Muhammad Iqbal, J

Sayyed MOHAMMAD AREEB ABDUL

KHAFID SHAH BUKHARI---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No.4645 of 2015, decided on 9th May, 2017.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 5, 17 & 35(d)---Government of Punjab Notification No.SO(Judl-III)4-24/2004 dated 26-1-2012---Rent agreement, registration of---Rent Registrar---Scope---Provincial Governor (Punjab) vide Notification No.SO (JUDL-III)4-24/2004 dated 26-01-2012 appointed Deputy District Officer(s) (Registration) in the province (Punjab) as Rent Registrar(s) in their respective area of jurisdiction in terms of S.17(1) of the Punjab Rented Premises Act, 2009---With issuance of said notification and the establishment of the office as well as appointment of the Rent Registrar(s) the power delegated to the Rent Tribunal (under S.35(d) of the Act) to function as Rent Registrar stood withdrawn whereafter Rent Tribunal was not vested with any jurisdiction or power to register any rent agreement---Rent Tribunal established under S. 35(d) of the Act had no jurisdiction to entertain an application and pass an order under S.5 of the Act for registration of rent agreement after issuance of the said notification.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 2(d) & 5---Rent Registrar, powers of---Scope---Power to ask landlord for proof of ownership of property at the time of registration of rent agreement---Rent Registrar was competent to ask the landlord for production of any proof regarding the ownership or title document of the demised premises---Further it was mandatory for a person claiming to be the landlord to provide any prima facie proof of ownership or any authorization from the owner in recognition of his being ostensible landlord qua the rented premises to the Rent Registrar for registration of the rent agreement---Even a person who filed an application under S.5 of the Punjab Rented Premises Act, 2009 for registration of rent agreement on behalf of the landlord was under an obligation to provide reasonable proof of ownership of the landlord which was not tantamount to decision of the title rather it was only for satisfaction of the Rent Registrar for the purpose of the registration of the rent agreement.

(c) Punjab Rented Premises Act (VII of 2009)---

----Ss. 2(j), 2(k) & 19---Senior Civil Judge/Rent Tribunal---Power to allocate rent case to another Special Judge (Rent)---Scope---Senior Civil Judge/Rent Tribunal had the jurisdiction to hear the case either himself or allocate the same for hearing, to another designated Special Judge (Rent) functioning as Rent Tribunal as defined under Ss.2(j) & 2(k) of the Punjab Rented Premises Act, 2009.

Petitioner in person.

P L D 2018 Lahore 399

Before Shams Mehmood Mirza, J

GEPCO and others---Petitioners

Versus

PAKISTAN TELEVISION CORPORATION LTD. and others---Respondents

Writ Petitions Nos.6224, 5035 of 2017 and 31335 of 2012, decided on 12th February, 2018.

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

----S. 38(3)---Electricity Act (IX of 1910), Ss. 26(6) & 36(3)---Punjab (Establishment and Powers of Office of Inspection) Order, 2005, S.4---Appeal against decision of Electric Inspector/Provincial Office of Inspection---Proper forum---Whether such appeal had to be filed before the Advisory Board (under the Electricity Act, 1910) or the National Electric and Power Regulatory Authority (NEPRA) [under the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997]---Dispute resolution mechanism provided in Electricity Act, 1910 had been displaced by the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 ("NEPRA Act"), which law was later in time and was also much wider in its scope---After the promulgation of Punjab (Establishment and Powers of Office of Inspection) Order, 2005, the decision rendered on a complaint filed before the Electric Inspector shall be treated to have been given by the Provincial Office of Inspection and that the appeal against the decision of the Electric Inspector/Provincial Office of Inspection after the enactment of subsection (3) of S.38 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 shall lie before the Authority as defined in the said Act---Principles.

Two enactments i.e. Electricity Act, 1910 and the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 ("NEPRA Act") continued to exist side by side providing two different appellate fora to hear appeals against the orders of the Electric Inspector and the Provincial Office of Inspection. Both enactments were special laws.

Under section 26(6) of the Electricity Act, 1910, the ambit and scope of dispute was confined only to the electricity meters/other measuring apparatuses while the scope of section 38 of NEPRA Act was much wider in comparison. Section 38 of the NEPRA Act empowered the Provincial Office of Inspection not only to enforce compliance of the instructions of the distribution companies regarding metering, billing, electricity consumption charges and decision of cases of theft of energy but also required it to make determination in respect of disputes over metering, billing and collection of tariff.

Reading of the NEPRA Act quite clearly demonstrated that the dispute resolution mechanism provided in Electricity Act, 1910 had now been replaced by NEPRA Act, which law was later in time and was also much wider in its scope as it encompassed disputes over metering, billing and collection of tariff. Electricity now exclusively being a Federal subject, any dispute in regard thereto between distribution companies and their consumers would necessarily have to be adjudicated upon by the Provincial Office of Inspection as per the dictate of NEPRA Act. Dispute resolution mechanism specified in the NEPRA Act displaced the one provided through section 26 of the Electricity Act, 1910.

The Punjab (Establishment and Powers of Office of Inspection) Order, 2005 defined the "Electric Inspector" to mean any person appointed under section 36 of the Electricity Act, 1910 and conferred with the powers of Office of Inspection under section 38(1) of the NEPRA Act. Section 4 of the Punjab (Establishment and Powers of Office of Inspection) Order, 2005 provided that the jurisdiction now vested with the Office of Inspection to entertain, hear and decide the complaints. Combined reading of various provisions of the said Order of 2005 and particularly section 4 unambiguously brought out the fact that complaints by aggrieved person, consumer or licensee concerning disputes with regard to metering, billing and collection of tariff and other connected matters shall be dealt with by the Office of Inspection in terms of section 38 of the NEPRA Act and not by the Electric Inspector acting under section 26 of the Electricity Act, 1910. There should, therefore, remain no doubt that all the complaints in regard to disputes of metering, billing and collection of tariff and other connected matters were to be filed before and decided upon by the Office of Inspection.

After the promulgation of Punjab (Establishment and Powers of Office of Inspection) Order, 2005, the decision rendered on a complaint filed before the Electric Inspector shall be treated to have been given by the Provincial Office of Inspection and that the appeal against the decision of the Electric Inspector/Provincial Office of Inspection after the enactment of subsection (3) of section 38 of the NEPRA Act shall lie before the Authority as defined in NEPRA Act.

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

---- S. 14---Exclusion of time of proceeding bona fide in Court without jurisdiction---Scope---Section 14 of the Limitation Act, 1908 was restricted only to the suits and could not be resorted to for seeking condonation of delay in filing appeals before the right forum.

Khushi Muhammad through LRs and others v. Mst. Fazal Bibi and others PLD 2016 SC 872 ref.

Aurangzeb Mirza for Petitioners (in W.P. No.6224 of 2017).

Mian Muhammad Javed for Petitioners (in W.P. No.5035 of 2017).

Mian Muhammad Mudassar Bodla for Petitioner (in W.P. No.31335 of 2012).

Imran Aziz Khan Deputy Attorney General for Pakistan.

Umer Sharif for NEPRA.

P L D 2018 Lahore 410

Before Muzamil Akhtar Shabir, J

Mst. SAMEENA ASHFAQ SYED AMIN AL---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Ministry of Finance and 3 others---Respondents

Writ Petition No.26065 of 2012, decided on 8th May, 2017.

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

----S. 21---Locus Poenitentiae---Principle---Scope---Receding back steps is available only where an action or representation is made erroneously.

Muhammad Sidiq through L.Rs. v. Punjab Service Tribunal, Lahore and others 2007 SCMR 318 and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCMR 1814 rel.

(b) Public Debt Act (XVIII of 1944)---

----S. 28---Bahbood Savings Certificates Rules, 2003, R.5---Notification SRO No.(I)/2004 dated 20-01-2004---"Behbood Savings Certificates" purchased on basis of 'Pakistan Origin Card' by husband of a lady who was national of Pakistan---Authorities denied payment of profit under said scheme on ground that scheme was exclusively for Pakistan nationals---Plea raised by petitioner was that payment of profit was practice prevailing in the department---Validity---Department practice against law or rules on subject was not sustainable in eyes of law and could not be implemented as law in force---Husband of petitioner could not have purchased Bahbood Saving Certificates therefore, authorities were entitled to recover excess amount of profit paid to him or petitioner---Petitioner failed to make out any illegality or erroneous exercise of powers vested in authorities as their actions were neither illegal nor without jurisdiction---Constitutional petition was dismissed in circumstances.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1089; Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353; Syed Imam Shah and others v. Government of N.-W.F.P. and others PLD 2004 SC 285; Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995 and Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 ref.

Faisal Zafar for Petitioner.

P L D 2018 Lahore 418

Before Ali Baqar Najafi, J

MUHAMMAD IQBAL and others---Petitioners

Versus

PAKISTAN FEDERAL SECRETARY and others---Respondents

Writ Petition No.6545 of 2011, heard on 11th October, 2017.

Defense Savings Certificates Rules, 1966---

----R. 2---Post Office Manual, Vol. VI, R. 547---Constitution of Pakistan, Art. 4---Reduction of rate of profit---Maturity of Defence Savings Certificates---Petitioners had purchased Defence Savings Certificates and were aggrieved of reducing rate of profit on their certificates offered to them at time of maturity---Validity---Authorities could not unilaterally change rate of profit to disadvantage of petitioners---Prior to such change, a notice was required to be served upon petitioners to ascertain consent so that they could encash certificates instead of sustaining financial loss---Any change in policy if made by authorities, had to be applied prospectively on certificates purchased subsequent to such policy unless it was otherwise provided therein---Authorities failed to show any such change in policy warranting withholding of agreed amount of profit to petitioners---Authorities were bound under Art. 4 of the Constitution to act in accordance with law and required to make payment on profit mentioned on certificates at time of their maturity---Unilateral reduction in agreed rate of profit was unconscionable, discriminatory, against public policy and unenforceable---High Court directed the authorities to make payments to petitioners on Defence Savings Certificates as mentioned on back of certificates at time of maturity---Constitutional petition was allowed in circumstances.

Makhdoomzada Syed Muhammad Najmul Saqib Mumtaz for Petitioners

Muhammad Wajid Ali Bhatti, Assistant Attorney General with Abaid Ullah, Assistant Superintendent, Post Office, Multan for Respondents.

P L D 2018 Lahore 423

Before Muhammad Anwaarul Haq, J

MUHAMMAD LATIF---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No.156603-B of 2018, decided on 1st March, 2018.

Criminal Procedure Code (V of 1898)---

----S. 497 ---Penal Code (XLV of 1860), Ss. 324, 334, 337-G, 353, 109 & 186---Attempt to commit qatl-i-amd, itlaf-i-udw, hurt by rash or negligent driving, assault or criminal force to deter public servant from discharge of his duty, abetment, obstructing public servant in discharge of public functions---Bail, refusal of---Allegation against the accused was that he intentionally drove his truck over a police official who tried to stop him for inspection of driving licence and other documents---Accused was arrested by the police at the spot when he was trying to escape after the alleged occurrence---Injury attributed to the accused had admittedly resulted into amputation of right leg of the police official up to the knee---Contention of accused that he was not driving the vehicle but was working as a conductor and after the escape of the driver from the spot he was detained by the police officials with mala fide intention was not supported by any material on record---Even otherwise, it was not believable that the police including the injured police official who had lost his leg would substitute the real culprit with an innocent conductor who was not driving the vehicle---Other contention of the accused that the alleged occurrence fell within the purview of S.337G, P.P.C. and the same was bailable, was also misconceived---Benefit of S.337G, P.P.C. could not be claimed by any person whose act by itself was unlawful i.e. driving a truck without a driving licence---Even otherwise the contentions of the accused were contradictory as on one side he argued that he was not driving the vehicle at the time of incident and on the other hand he claimed benefit of S.337G, P.P.C.---Accused was refused bail accordingly.

Abid Saqi for Petitioner.

Saeed Ahmad Sheikh, Additional Prosecutor General for the State with Mushtaq Hussain, ASI.

P L D 2018 Lahore 426

Before Ch. Muhammad Masood Jahangir, J

Mst. SHAH JAHAN BEGUM through Legal Heirs---Petitioners

Versus

ZAFAR AHMED and others---Respondents

Civil Revision No.3109 of 2011, decided on 12th February, 2018.

Islamic law---

----Inheritance---"Full sister" of the propositus---Doctrine of "Radd" or "Rule of exclusion"---Applicability---Propositus was survived by his widow, full sister and sons of predeceased brother---Revenue authorities distributed legacy of propositus by giving 1/4th share to widow, 2/4th share to full sister and 1/4th share to nephews (sons of predeceased brother)---Plea of full sister that being full sister in default of full brother and the others, she being nearer as a residuary was entitled to inherit 3/4th share while excluding the remote sons of predeceased brother under the doctrine of "Radd" or "rule of exclusion; held, that the propositus died without leaving any child, child of a son, father, grandfather, brother or consanguine brother, hence the full sister had to inherit being a sharer---Although there might be an eventuality when status of a sister being sharer may also be converted into residuary, but condition precedent for such capacity would be either when she had a brother or in his default there be a daughter or daughters, or son's daughter or daughters, or even if there was one daughter and a son's daughter or daughters---In the present case, no such situation arose and the full sister as well as sons of predeceased brother were rightly awarded shares as per dictates of Holy Quran and Sunnah hence the full sister was not entitled to take the residue---Revision petition was dismissed in circumstances.

Saadullah and others v. Mst. Gulbanda and others 2014 SCMR 1205; Muhammadan Law by D.F. Mullah and Sura An-Nisa Verse No.176 ref.

Ch. Ehsan ul Haq Virk and Ahmed Faheem Bhatti for Petitioners.

Sh. Sajid Mehmood for Respondents.

P L D 2018 Lahore 429

Before Abdul Rahman Aurangzeb, J

MUHAMMAD IMRAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 3 others---Respondents

Writ Petition No.11306 of 2015, heard on 21st July, 2017.

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

----S. 5, Sched.---Recovery of dower---Entries made in Column Nos. 13 & 16 of Nikahnama---Undertaking for dower---Effect---Matters arising out of Nikahnama---Family Court, jurisdiction of---Scope---Plaintiff-wife filed suit for recovery of dower according to the entries made in Column No. 16 of Nikahnama which was decreed concurrently---Validity---Specification of property/plot with constructed house was not mentioned in Column No. 13 of Nikahnama wherein only amount of Rs.2,00,000/- was mentioned in the shape of gold ornaments (prompt)---Condition of five marla plot with constructed house was accepted by the defendant-husband at the time of marriage and same was mentioned in Column No.16 as dower-- Besides the fact of fixation of dower specifically it could more or less be treated as a valid undertaking for dower mentioned in the Purt Nikah---When husband had agreed to pay the dower then irrespective of the fact of mentioning the dower fixed in the specific column of Nikahnama would become redundant---Husband could not be allowed to resile from his undertaking and he was bound to provide the plot with constructed house to the wife in lieu of dower---Entry of Column No. 16 of Nikahnama was validly accepted by the husband---Decree with regard to the said entry was enforceable---Family Court had jurisdiction to entertain and decide the matters arising out of Nikahnama whether same were mentioned as dower or undertaking for the satisfaction of dower---Defendant was bound to specify a jurisdictional defect or error with regard to judgments of Courts below to invoke constitutional jurisdiction of High Court---No illegality or error in the impugned judgments passed by the Courts below had been pointed out---Constitutional petition was dismissed in circumstances.

Mst. Ishrat Bano v. Noor Hussain and 2 others 2010 YLR 2452; Syed Nadeem Raza through Attorney General v. Mst. Amna-Taz-Zahra and 2 others 2011 CLC 726; Umar Farooq v. Mehnaz Iftikhar and 2 others 2006 MLD 555; Lal Muhammad v. Mst. Gul Bibi and another PLD 1986 Quetta 185 and Mst Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613) ref.

Mst. Mithan v. Additional District Judge, Jatoi and 7 others 2017 MLD 1101 and Waqar Haider Butt v. Judge Family Court and others 2009 SCMR 1234 rel.

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

----S. 5, Sched---Recovery of dowry articles---Addition in the stance taken in written statement---Effect-Contention of husband was that wife had taken away dowry articles with her while leaving his house---Suit was decreed to the extent of dowry articles valuing Rs.4,00,000/- against the claim of Rs.11,80,256---Validity---Plaintiff-wife produced receipts of various articles along with the plaint which had been placed on the record during the evidence-Husband had not denied the factum of giving dowry articles at the time of marriage in his written statement-Husband was ready to return some dowry articles admitting the same in his house---When defendant had taken a specific plea then he should have proved his case through confidence inspiring evidence-Husband had failed to substantiate his version through any material and supporting evidence---False deposition was evident from the statement of husband when he had made addition to his earlier stance taken in written statement---Witnesses of wife were consistent in their deposition and they had not been shattered that alleged dowry articles were taken away by her---Courts below had rightly assessed that the stance taken by the husband was not acceptable---Husband was bound to specify a jurisdictional defect or error with regard to judgments of Courts below to invoke constitutional jurisdiction of High Court---No illegality or error in the impugned judgments passed by the Courts below had been pointed out---Constitutional petition was dismissed in circumstances.

Waqar Haider Butt v. Judge Family Court and others 2009 SCMR 1234 rel.

(c) Words and phrases--

----'Undertaking'---Meaning.

Black Law Dictionary 7th Edn. rel.

Ch. Malik Javed Akhtar Wains for Petitioner.

Mian Ashfaq Ahmad Sial for Respondents Nos. 3 and 4.

P L D 2018 Lahore 435

Before Jawad Hassan, J

AOWN ABBAS BHATTI---Petitioner

Versus

FORMAN CHRISTIAN COLLEGE and 2 others---Respondents

Writ Petition No.130999 of 2018, decided on 23rd February, 2018.

(a) Constitution of Pakistan---

----Art. 199(5)---Constitutional petition---Maintainability---"Person" under Art.199(5) of the Constitution---Principles for determining whether a "person" was performing functions in connection with the affairs of the Federation or the Province stated.

Following are the principles for determining whether a "person" was performing functions in connection with the affairs of the Federation or the Province:

(i) Whether the functions entrusted to the organization or person concerned were indeed functions of the State involving same exercise of sovereign or public power;

(ii) Whether the absolute, unfettered, unbridled and exclusive administrative and management control of the organization vested in a substantial manner in the hands of the Government, which meant that the Government should have complete domination to do and undo whatever it decided in running the affairs of such a body, including the power of hiring and firing the employees and appointing and removing the management body, and the exclusive, complete and final authority to take the vital policy decisions; and

(iii) Whether the Government had financial control of the organization and whether the bulk of the funds was provided by the Government.

Above mentioned conditions determined a test for a statutory body to fall under definition of a "person" under Article 199(5) of the Constitution and if said conditions were fulfilled, then a body may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not.

(b) Forman Christian College, Lahore Act (XXIII of 2004)--

----S. 3(1)---Constitution of Pakistan, Art. 199---Punjab Government Rules of Business, 2011, Sched. I, Column III & Sched. II, Item 37(xxx)---Constitutional petition filed against Forman Christian College (Lahore)---Maintainability---Setup of the Board of Governors of the Forman Christian College ("the College") was not under the dominative control of the Federal or the Provincial Government, and the College did not get any operating funds from the Government---When both the "administrative" and the "financial" control of the Government over the College was lacking, the College was not a "person" within the meaning of Art. 199(5) of the Constitution, which could be held to be performing its duties in connection with the affairs of the Federation or the Province---Furthermore the College was not mentioned in Schedule 1, Column III of the Punjab Government Rules of Business, 2011 ("the Rules") as Autonomous Body and the only reference of the College under the Rules was mentioned in Schedule II under Item 37 (xxx) of, therefore, the College did not fall within the definition of a "person" and a Constitutional petition against it would not be competent---College was indeed a 'body politic' or 'corporate' but not a "person" under Art.199(5) of the Constitution, and therefore, was not amenable to the constitutional jurisdiction of the High Court.

Anoosha Shaigan v. LUMS PLD 2007 Lah. 568; Dr. Kamran Jahangir v. Chancellor Shifa Tameer-E-Millat University and others 2015 PLC (C.S.) 710; Judicial Review of Public Action, Vol. 3, Chap.5, p.1511 and Sheikh Nadeem Ahmed v. G.C. University and others 2016 MLD 1966 ref.

(c) Constitution of Pakistan ---

----Art. 199(5)---Constitutional petition---Maintainability---Person" under Art.199(5) of the Constitution ---Scope---Merely because a 'body politic' or 'corporate' had been established through an Act of the Parliament was not enough for the High Court to assume jurisdiction against it---For the 'body politic' or 'corporate' to be amenable to the jurisdiction (of the High Court) under Art.199 of the Constitution, it simultaneously had to be a "person", as defined in Art.199(5) of the Constitution.

Hamayun Sarfraz Chattha for Petitioner.

Mian Zafar Iqbal Kalanauri for Respondents.

Ashfaq Ahmed Kharal, Assistant-Advocate-General.

P L D 2018 Lahore 450

Before Ayesha A. Malik, J

AL-BARAKA BANK (PAKISTAN) LTD.---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary Food and others---Respondents

Writ Petition No.4562 of 2016, decided on 12th April, 2018.

(a) Punjab Sugar Factories Control Act (XXII of 1950)--

----Ss.13, 16 & 23---Punjab Sugar Factories Control Rules, 1950, Rr.14 & 13---Constitution of Pakistan, Art. 199---Supply of sugarcane to sugar factories/mills---Role of Cane Commissioner---Payment to sugarcane growers within statutorily prescribed time---Statutory retention of title in favour of sugar cane growers after delivery of sugarcane to sugar mills---Superior statutory right of sugarcane growers for recovery of their dues from sugar mills, over secured creditors, such as Banks / Financial institutions---Scope---Question before High Court was whether bags of sugar pledged to Banks/Financial institutions by sugar mills, were amenable to sale by Cane Commissioner whilst exercising powers under the Punjab Sugar Factories Control Act, 1950 in order to satisfy the statutory right of sugarcane growers who had not been paid for sugarcane by Sugar Mills within prescribed statutory period and whether such sugarcane growers had a superior right of recovery over secured creditors---Held, that intent of Punjab Sugar Factories Control Act , 1950 and Rules framed thereunder, in specifying time of 15 days for payment to sugarcane growers was to ensure that cane growers were paid and that price owed to the cane grower was not only secured but also remained enforceable under the Punjab Sugar Factories Control Act, 1950---While recognizing ownership rights of cane growers, Punjab Sugar Factories Control Act, 1950 recognized that a debt was created with respect to price of sugarcane in favour of the cane grower which must be paid within fifteen days and consequently by construing such requirement to be a statutory retention of title clause in favour of the cane grower, special purpose of the Punjab Sugar Factories Control Act, 1950 was achieved---Sections 13 & 16 of the Punjab Sugar Factories Control Act, 1950 and R.14 of Punjab Sugar Factories Control Rules, 1950 gave special treatment to these purchase transaction(s), such that a unpaid cane grower did not transfer title in sugarcane supplied until payment was made in order to ensure compliance of the statutory condition to make payment in fifteen days---High Court observed that a statutory retention of title provision gave the unpaid seller of goods priority over other creditors (secured or unsecured) in the event that buyer failed to pay for the delivered goods, and as such cane growers sought enforcement of their right(s) as owners of the sugarcane---High Court further observed that enforcement of right of sugarcane growers did not prejudice rights of secured creditors (Banks) as the cane growers' sugar could not have been pledged with Banks in the first case; and that the sugarcane growers had necessary security by virtue of law to ensure payment for sugarcane delivered---Constitutional petition was allowed, accordingly.

[Case-law referred.]

(b) Sale of Goods Act (III of 1930)--

----Ss. 32, 21,22,23 & 24---Payment and delivery of goods---Passing of title of goods---Concept of delivery and passing of title under Sale of Goods Act, 1930---Scope---Delivery of goods and passing of title of such goods, were two separate events and it was not necessary that title was transferred when delivery was made to a buyer---Under Sales of Goods Act, 1930 payment and delivery were concurrent in terms of S.32 whereby unless otherwise agreed, a buyer must pay the seller when possession of goods was taken---General rule was that unless otherwise intended, payment must be made when the goods were delivered.

[Case-law referred.]

(c) Interpretation of statutes---

----Purpose of a statute/intent of the law---Construction---Intent of the law must be construed in context of the purpose of the Act and rights and obligations created under the Act---Construction of intent of the law must be such that it gave effect to meaning of the law---Words in a statute were given meaning to by their context and such context included the purpose of the law---Purpose must be derived from the text, not from extrinsic sources such as Legislative history or an assumption about the legal drafter's desire---Purpose must be defined precisely and not in a fashion that smuggled in the answer to the question before the decision-maker and purpose was to be described as concretely as possible and not abstractly---Purpose of a statute shed light on deciding which of the various textually permissible meanings should be adopted.

[Case-law referred.]

(d) Maxim--

----Nemo dat qui non habet (he who has not, cannot give)---Rights of unpaid seller(s) under the law---Retention of title clause(s)---Retention of ownership title with unpaid seller(s) after delivery of goods---Priority of unpaid sellers over other creditors, including secured creditors---Recognition of retention of title clauses as commercially viable way to do business on credit---Concept and scope of retention of title clauses and rights of unpaid sellers discussed in light of case-law from various jurisdictions.

[Case-law referred.]

Nasar Ahmad and Shazib Masud, Syed Ali Zafar, Mubashar Aslam Zar, Ahmed Pervaiz, Malik Akhtar Javed and Ali Raza Kabir, Ali Ameel Parvez Malik, Syed Hammad Yousaf Gillani, Abdul Hameed Chohan and Sajjad Ali for Banks/Petitioners.

Barrister Rafay Altaf, Ch.Nisar Ahmad Anjum, Asad Jamal Akbar, Muhammad Abdullah Aslam Chaudhary, Amjad Iqbal Khan, Afzal Shah Bukhari, Rai Khurram Mehmood, Ch. Muhammad Asghar, M. Amir Latif Sehr Bhutta, Sardar Zulfiqar Umer Khan Thaheem, Ch.Muhammad Nabeel Ashraf, Rana Mustansar Asif, Rana Muhammad Hussain, Mian M. Hussain Bodla, Shahid Masood Khan, Ch. Faiz-e-Rasool Sidhu, Ch. Akbar Ali Tahir, Mahar Fazal ur Rehman, Sh. Aftab Umar, Munawar Ali Sidhu, Sardar Liaqat Ali Dogar, Muhammad Jahangir Asif, Ch. Muhammad Hussain, Muhammad Anwar Khan and Malik Zulfiqar Ali Khokhar for Cane Growers/Petitioners.

Anwaar Hussain, Additional Advocate General, Mrs. Samia Khalid, Additional Advocate General, Ahmad Hassan Khan, AAG along with Waqas Alam, Cane Commissioner, Punjab and Syed Sibte Hassan Sherazi, Assistant Cane Commisisoner, Punjab for Respondents.

Mian Junaid Razzaq, Hammad Khalid Butt and Sardar Tahir Naseem, for Respondent Brother Sugar Mills.

Arshad Nazir Mirza, for Respondent Pattoki Sugar Mills (in W.Ps. Nos.63883/17 and 64911/17.

P L D 2018 Lahore 491

Before Muzammil Akhtar Shabir, J

ABDUL RAZZAQ and others---Petitioners

Versus

MUHAMMAD AJMAL KHAN---Respondent

Civil Revision No.658 of 2018, decided on 26th April, 2018.

Civil Procedure Code (V of 1908)---

----S. 115---Civil revision before the High Court---Maintainability-'Case decided'---Scope---High Court did not have jurisdiction under S.115, C.P.C. to deal with a matter in civil revisional side unless the order under challenge was a 'case decided'---Order impugned before the High Court in the present case was interim/interlocutory in nature and nothing had been decided that came within the ambit of a 'case decided' as envisaged under S.115, C.P.C, therefore, the revision petition before the High Court was not maintainable.

Mian Muhammad Luqman and 5 others v. Farida Khanum and another 1994 SCMR 1991 and Nestle Milkpak Limited v. Classic Needs Pakistan (Pvt.) Ltd. and 3 others 2006 SCMR 21 rel.

P L D 2018 Lahore 493

Before Sayyed Mazahar Ali Akbar Naqvi, Shujaat Ali Khan and Ayesha A. Malik, JJ

M.H. MUJAHID, ADVOCATE---Petitioner

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and another---Respondents

Writ Petition No.25245 of 2015, decided on 28th March, 2018.

High Court (Lahore) Rules and Orders---

----Vol. V, R. 9---Constitution of Pakistan, Art. 199 ---Constitutional petition filed before the High Court---Maintainability---Deputy Registrar (Judicial) of the High Court, powers of---Scope---Question as to whether the Deputy Registrar (Judicial) of the High Court was competent to raise any objection with regard to maintainability, locus standi competence of a petition; held, that R. 9 of Vol. V of High Court (Lahore) Rules and Orders gave powers to the Deputy Registrar (Judicial) to return a petition for amendment or for making up a deficiency or for filing the requisite documents within a specified time---Intent behind such rule qua assigning the duty of scrutiny to the executive staff (Deputy Registrar-Judicial) was that burden of judicial work upon the Judges may not enhance due to petty matters---High Court directed that keeping in view the spirit of Rule 9, if there was any ambiguity qua maintainability of the petition filed before the Office (of the High Court), instead of returning the same, it shall be placed before the (High) Court for its evaluation---Constitutional petition was disposed of accordingly.

A.K. Dogar, Abdullah Malik and S.Parveen for Petitioner.

Shan Gull, Additional Advocate-General for Respondents.

P L D 2018 Lahore 502

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD TARIQ and others---Petitioners

Versus

AMJAD ALI and others---Respondents

Criminal Revision No. 158016 of 2018, decided on 6th February, 2018.

Court Fees Act (VII of 1870)---

----S. 7(iv)(a)---Civil Procedure Code (V of 1908), Ss. 96 & 149---Appeal without affixation of court fee---Effect---Limitation---Making up deficiency of court-fee---Scope---Appellate Court dismissed appeal on the ground that same was preferred without affixation of requisite court-fee---Validity---Plaintiffs-appellants through their suit had claimed themselves to be the owners of suit property valuing at least Rs.2,000,000/- on the basis of alleged gift---Valuation of suit for the purpose of court-fee was to be affixed as per its market price---Plaintiffs at the time of institution of suit fixed market value of suit property for the purpose of court-fee as Rs.24000/- only---Plaintiffs on debriefing of Trial Court furnished maximum court-fee of Rs.15000/---Appellants after dismissal of suit preferred appeal without affixation of any court-fee---Appellate Court before dismissal of appeal was not bound to direct the appellants to affix requisite court-fee as they were aware as to what stamps of court-fee was to be furnished---Appellants were not only negligent but their conduct was contumacious---No indulgence could be extended to the appellants to make good the court-fee and that too beyond the period of limitation---Appeal remained pending for more than two years and ten months but deficiency of court-fee was not made good despite the fact that Appellate Court required the same---Benefit of S.149, C.P.C. could not be extended for relaxation of limitation beyond the prescribed period---No legitimate explanation was provided as to why appellants failed to affix court-fee well within limitation of filing of appeal---Appellate Court had rightly non-suited the appellants through impugned order---Impugned order was neither perverse nor infirm---Revision being devoid of any merit was dismissed in limine.

Mr. Safia Siddiq v. Haji Fazal-ur-Rehman and 2 others 2009 CLC 262 and Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCMR 919 rel.

P L D 2018 Lahore 504

Before Jawad Hassan, J

PAKISTAN MOBILE COMMUNICATION LIMITED---Petitioner

Versus

PROVINCE OF THE PUNJAB and 7 others---Respondents

Writ Petition No.104383 of 2017, heard on 8th February, 2018.

Punjab Security of Vulnerable Establishment Act (XIV of 2015)---

----Ss. 2(i), 7, 9 & 12---Vulnerable establishment---Security---Petitioner was a cellular phone service provider and had set up several Base Transceiver Stations (BTS) towers--- Petitioner was aggrieved of notices issued by authorities to comply with security arrangements of BTS towers---Validity---Petitioner did not fall under the definition of 'vulnerable establishment' because BTS towers were not notified under Punjab Security of Vulnerable Establishment Act, 2015, as vulnerable establishments---High Court directed the authorities not to harass and take coercive measures against petitioner in violation of applicable law and in absence of notification declaring the petitioner as a vulnerable establishment---Constitutional petition was allowed accordingly.

Ahmad Farooq for Petitioner.

Ashfaq Ahmad Kharal, A.A.G. with Irshad Ahmad, Section Officer (IS-II), Home Department on behalf of Respondent No.1.

Muhammad Boota, S.I. along with Ijaz, ASI.

Ms. Saadia Malik, Assistant Attorney General.

P L D 2018 Lahore 509

Before Abid Aziz Sheikh, Shams Mehmood Mirza and Shahid Karim, JJ

CITY SCHOOL PRIVATE LIMITED---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No.29724 of 2015, decided on 5th April, 2018.

Per Abid Aziz Shiekh, J; Shams Mehmood Mirza and Shahid Karim, JJ concurring.

(a) Punjab Private Educational Institutions (Promotion and Regulation) Ordinance (IV of 1984)---

----S. 7-A---Punjab Private Educational Institutions (Promotion and Regulation) Rules, 1984, R. 12(ii)---Constitution of Pakistan, Arts.18, 23, 24 & 25A---School fee/tuition fee charged by unaided private schools---Question as to whether Government could regulate fee structure of unaided private schools, and whether it could also lay down a specific cap on increase in fee for any academic year---State had the responsibility to see that private educational institutions which had been set up with Government permission were not involved in profiteering, capitation or exploiting the parents---Private educational institutions being a business were covered under definition of "trade" and thus could be regulated by a licensing system---Fee structure (of private schools) could be regulated through a licensing system under Art.18 of the Constitution, however any restrictions/regulations must be reasonable and should not impinge upon the Fundamental Rights of such institutions---Provisions of subsections (2), (3), (7), (8), (9) and (10) of impugned S.7-A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 [as amended through Punjab Private Educational Institutions (Promotion and Regulations) (Amendment) Act, (VIII of 2017) merely provided a mechanism to regulate the increase in fee structure---Such mechanism/requirements through a licensing system were not only permissible under law but were also reasonable and justified as it did not imbalance the equilibrium between right of the State to regulate the fee structure and the autonomy of the private educational institutions to justify the increase in fees in order to ensure quality and excellence in education---However, by way of S.7-A of the Ordinance the complete bar placed on private schools to increase annual fee and then its subsequent capping at 5% and 8% was not proportionate and an unreasonable restriction on Fundamental Rights of management of private schools---Such complete bar or capping was ultra vires of the Constitution and had to be struck down---Private schools may fix the fees and charges payable by the students, however the increase could not be such which was exploitative in nature and raveled into the arena of commercialization---High Court directed that the Provincial Government shall notify within reasonable time The Punjab Free and Compulsory Education Act, 2014 to ensure enforcement of Fundamental Right of education under Art. 25A of the Constitution; that the Government shall frame uniform regulatory regime through rules to determine the increase claimed by schools in fee by considering certain factors---High Court disposed of the Constitutional petitions with certain other directions.

Following are the reasons and directions given by the High Court with regard to the question whether Government could regulate fee structure of private unaided schools, and whether it could also lay down a specific cap on increase in fee for any academic year.

Educational institutions being an "occupation", the qualifications under Article 18 of the Constitution could indeed be prescribed for these institutions by the State. Occupation of education could not be treated at par with other economic activities. It was the responsibility of the State to see that private educational institutions which had been set up with Government permission were not involved in profiteering, capitation or exploiting the parents. The State also had a responsibility to ensure that these educational institutions must function to the best advantage of all the citizens and not confine themselves to only richer section of the society by increasing fees exorbitantly. Such State responsibility could be fulfilled by providing registration requirements or through regulations under law.

Mohni Jain v. State of Karnataka and others 1992 3 SCC 666; Unni Krishnan v. State of A.P. (1993) 1 SCC 645; T.M.A. Pai Foundation and others v. State of Karnatake and others (2002) 8 SCC 481; Islamic Academy of Education and others v. State of Karnataka and others (2003) 6 SCC 697; P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537; Society for Unaided Private School of Rajasthan v. Union of India 2012 Air SC 3445; Modern School v. Union of India AIR 2004 SC 2236; Anti-Corruption and Crime Investigation Cell v. State of Punjab and others 2013 (2) CLT 488; Modern Dental College and Research Centre and another v. Madhya Pradesh and others 2016 AIR (SC) 2601; Modern Dental College v. State of Madhya Pradesh AIR 2009 SC 2432; The Father Thomas Shingare v. State of Maharashtra AIR 2002 SC 463; Charutar Arogya Mandal v. State of Gujarat AIR 2011 (SCW) 2475; Rohilkhand Medical College and Hospital, Bareilly v. Medical Council of India 2013 (15) SCC 516; M/s Pushpagiri Medical Society v. State of Kerala and others 2004 AIR (SCW) 7491; Educational Services (Pvt.) Limited and 4 others v. Federation of Pakistan and another PLD 2016 Isl. 141; Shahrukh Shakeel Khan and 2 others v. Province of Sindh through Chief Secretary and 4 others PLD 2017 Sindh 198; Arif Yousif Chohan and 9 others v. Province of Sindh through Secretary Education, Government of Sindh Karachi and 5 others 2017 YLR Note 385; Pir Liaqat Ali Shah v. Government of N.-W.F.P. through Secretary and 7 others PLD 2011 Pesh. 143 and Tamil Nadu Nursery Matriculation's case (2010 (4) CTC 353) ref.

Running of educational institution being a business which was covered under definition of "trade" could indeed be regulated by a licensing system. Provisions of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 and the Punjab Private Educational Institutions (Promotion and Regulation) Rules, 1984 clearly showed that schools were being regulated under a licensing system. State could regulate a trade or profession by a licensing system, however, these regulations must be reasonable. Under Article 18 of the Constitution, a restriction could be imposed through a licensing system on a profession and trade in the collective interest of society and general public.

Ghulam Zameer v. Khondar PLD 1965 Dacca 156; East and West Steam Shipping Company's case PLD 1958 SC 41; Arshad Mahmood's case PLD 2005 SC 193 and Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 SC 44) ref.

Fee structure (of private institution) could be regulated through a licensing system under Article 18 of the Constitution, however the said restrictions/regulations must be reasonable and should not impinge upon the Fundamental Rights of the private educational institutions. Balance had to be drawn between regulating the fee structure and to maintain minimum autonomy of the schools for quality of service and excellence of education. Regulation of fees if applied arbitrarily would have the unintended consequence of lowering the standards of private schools.

Fees to be charged by educational institutions were always regulated by the registering authority even prior to introduction of section 7-A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984. Section 7 of the said Ordinance and Rule 12(ii) of the Punjab Private Educational Institutions (Promotion and Regulation) Rules, 1984 were not under challenge in the present petitions, therefore, it could not be argued that under Article 18 of the Constitution, the fixation of reasonable fee by educational institutions could not be regulated through section 7-A of the Ordinance.

Impugned subsection (1) of section 7-A of the Ordinance had not been made applicable to (private) schools charging fee less than Rs.4,000/. Such classification between schools who were charging less than Rs.4,000/- fee and schools which were charging fee more than Rs.4,000/- was a reasonable classification for applicability of section 7- A. Such classification was neither unreasonable nor violative of doctrine of equality.

I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 ref.

Provisions of subsections (2), (3), (7), (8), (9) and (10) of impugned section 7-A of the Ordinance[as amended through Punjab Private Educational Institutions (Promotion and Regulations) (Amendment) Act, 2017] showed that said sub-clauses merely provided a mechanism to regulate the increase in fee structure. These requirements through licensing system were not only permissible under law but were also reasonable and justified as it did not imbalance the equilibrium between right of the State to regulate the fee structure and the autonomy of the private educational institutions to justify the increase in fees in order to ensure quality and excellence in education. Therefore, said conditions undertaken by section 7-A of the Ordinance, did not run a foul to the Fundamental Rights of private schools' managements.

By way of provisions of (original) section 7-A of the Ordinance a complete bar on increase of fee for academic year 2015-2016 at the rate higher than the fee charged for academic year 2014-2015 was placed on private schools. Subsequently through the Punjab Private Educational Institutions (Promotion and Regulation) Amendment Ordinance, 2015 and Punjab Private Educational Institutions (Promotion and Regulations) (Amendment) Act, 2016 amendments were made in section 7-A and a maximum limit/cap in increase of annual fee was set at 5%. Such maximum limit/cap was increased to 8% by the Punjab Private Educational Institutions (Promotion and Regulations) (Amendment) Act, 2017. Such extreme restriction across the board on every (private) educational institution, regardless of its costs, expense and actual profit, was absolutely not proportionate and unreasonable as profiteering could be stopped through less restrictive alternatives, including assessment of increase of fee on case to case basis after analyzing the actual costs and income of the institution on the basis of relevant data. When 98% students and parents of unaided private schools were not benefiting from such capping of increase in fee, then such restriction was not proportionate to welfare of public and consequently unreasonable restriction on Fundamental Rights. It was not reasonable to impose cap of 5% or 8% or total bar on increase in fee compared to previous academic year across the board, on all private educational institutions by simply disregarding inflation and costs incurred by those institutions. Indeed, to control profiteering, a cap could be imposed on the profits but cap on gross income, without taking into account the inflation and actual cost would amount to taking away the right of property under Articles 23 and 24 of the Constitution. Under Article 25A of the Constitution, it was the responsibility of the State to provide free of cost education to students between age 5-16 years, which the State had admittedly failed to do so. In such circumstances, the State could not pass on its responsibility to private schools regarding quality education and then insist that these schools must freeze fees and could only increase them by a certain percentage more than previous academic year. Complete bar on increase in annual fee or a cap of 5% or 8% increase placed by section 7-A of the Ordinance was, thus, ultra vires of the Constitution and had to be struck down. Private schools may fix the fees and charges payable by the students, however the increase could not be such which was exploitative in nature and raveled into the arena of commercialization.

High Court directed that for any increase already made in fee for academic year 2015-2016 at a rate higher than the fee charged for the class during academic year 2014- 2015 or beyond 5% for next academic year i.e. 2016-2017 [after promulgation of the Punjab Private Educational Institutions (Promotion and Regulation) Amendment Ordinance, 2015 and Punjab Private Educational Institutions (Promotion and Regulations) (Amendment) Act, 2016] and increase of more than 8% for academic year 2017-2018 [after promulgation of the Punjab Private Educational Institutions (Promotion and Regulations) (Amendment) Act, 2017], the relevant private schools shall submit supportive material etc., justifying the said increases, with the authority within period of 30 days from the announcement of present judgment; that in case, no such material was submitted within stipulated time or said increases were otherwise not found justified by the concerned authority, the amount received more than previous academic year for academic year 2015-2016 or beyond limit of 5% for academic year 2016-2017 or beyond limit of 8% for academic year 2017- 2018, as the case may be, shall either immediately be refunded to the students/parents or adjusted in the next fee bill of the school of those students; that the Provincial Government shall notify within reasonable time "The Punjab Free and Compulsory Education Act, 2014 to ensure enforcement of Fundamental Right of education under Article 25A of the Constitution and also responsibility of private schools under section 13 of the said Act; and, that the Government shall frame uniform regulatory regime through rules under section 13 of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 to determine the increase claimed by schools in fee by considering certain factors.

High Court further directed that the registering authority shall ensure that parents were not compelled to purchase text books, uniform or other material from a particular vendor or provider and schools did not charge any amount other than tuition fee, admission fee or prescribed security from the parents; that the registering authority shall give representation to parents of private school in the proceedings of increase in fee and such proceedings shall be done in open and transparent manner; that an effective parents/students complaint handling procedure should be established by using modern information technology and a procedure should also be laid down for expeditious disposal of such complaints; that complete data of teachers and supporting staff being hired by private schools should be obtained by registering authority showing their educational qualifications/experience and track record on annual basis; and, that a periodic inspection of private schools should be carried out to check the provision of facilities to students as undertook by private schools at the time of registration and thereafter from time to time.

(b) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Reasonable regulation---Licensing---Scope---Right of profession and trade under Article 18 of the Constitution was not an absolute right and was always subject to reasonable restrictions prescribed by law in a system of licensing---Competent authority was at liberty to regulate a profession and trade and said form of regulation shall only be unconstitutional if it was arbitrary, discriminatory, or demonstrably irrelevant to the policy, hence an unnecessary and unwarranted interference with individual liberty and right of property---Reasonable restrictions authorized by the Constitution did not negate the Constitutional rights of a citizen to do business unhindered without any condition---Reasonable restriction was always considered to be within the frame work of the Fundamental Right---No bar existed on exercising a lawful trade but the interest of community should be guarded as a public policy---Right to do business did not guarantee a trader an uncontrolled privilege---Requirement of registration/licence from person desiring to carry on any occupation, trade or business was a restriction on the right to carry on the occupation, trade or business and its validity was liable to be questioned and tested, therefore the requirement of registration/licence would be valid only if it was reasonable in the interest of the general public.

Arshad Mahmood's case PLD 2005 SC 193; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Al-Reham Travels and Tours (Pvt.) Ltd. v. Ministry of Religious, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621; Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and others PLD 1997 SC 582; Administrator, Market Committee Kasur and 3 others v. Muhammad Sharif and others 1994 SCMR 1048; Watan Party and another v. Federation of Pakistan PLD 2011 SC 997 and Shahabuddin and another v. Pakistan PLD 1957 (W.P.) Kar. 854 ref.

(c) Constitution of Pakistan--

----Part II, Chapt.1 [Arts. 8-28]---Fundamental Rights---Reasonable restriction---Test to determine whether a restriction imposed on a Fundamental Right was reasonable---Test of reasonableness required that the Court should consider not only factors such as the duration and the extent of the restrictions but also the circumstances and the manner in which they were imposed---Court had to bear in mind that the nature of the rights infringed through such restriction should be proportionate to the urgency of the evil sought to be remedied by said restriction---Restriction on Fundamental Right could only be upheld if it was established that it sought to impose reasonable restriction in the interest of general public and a less drastic restriction would not have ensured the interest of the general public.

Pakistan Broadcasters Association v. Pakistan Media Regulatory Authority PLD 2016 SC 692; Papnasam Labour Union v. Madura Coats Ltd. AIR 1952 SC 196; Mohammad Faruk v. State of Madhya Pradesh 1970 AIR SC 93; Narendra Kumar v. Union of India AIR 1960 SC 430; Bannari Amman Sugars Ltd. v. Commercial Tax Officer 2005 1 SC 625; Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh 1982 AIR (SC) 33; Cooverjee B. Bharucha v. Excises Commissioner 1954 AIR (SC) 220; Municipal Corporation of the City of Ahmedabad v. Jan Mohammed Usmanbhai (1986) 3 SCC 20; Abdul Hakim Quraishi and others v. State of Bihar AIR 1961 SC 448 and Mohammad Yasin v. Town Area Committee, Jalalabad and another AIR 1952 SC 115 ref.

(d) Vested right---

----Vested rights could be taken away by express words and necessary intendment by legislature.

Messrs Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623 and Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905 ref.

Per Shahid Karim, J; concurring with Abid Aziz Shiekh, J.

(e) Constitution of Pakistan---

----Arts .9, 18 & 38---Freedom of trade, business or profession---Scope---Said right concerned and protected the economic life of a citizen and the right to engage in any profession or occupation or trade or business---Different forms and sources of livelihood existed and thus said right was inextricably linked with the right of life and liberty guaranteed by Art.9 of the Constitution---Right to engage in any profession or occupation or trade or business also had to be read with Art.38 of the Constitution (one of the principles of policy) which enjoined on the State amongst others to "provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure"

(f) Constitution of Pakistan---

----Art. 25-A---Right to education---Scope---Quality of education included in the concept of free and compulsory education was the right to receive education of high quality---If the child had a right to free education, he also had a right to good education---Said two elements existed in tandem with each other.

(g) Punjab Private Educational Institutions (Promotion and Regulation) Ordinance (IV of 1984)---

----S. 7-A---Punjab Private Educational Institutions (Promotion and Regulation) Rules, 1984, R. 12(ii)---Constitution of Pakistan, Arts.18, 23, 24 & 25A---School fee/tuition fee charged by unaided private schools---Question as to whether Government could regulate fee structure of unaided private schools by laying down a specific cap on increase in fee for any academic year---Good education could only be achieved by granting the liberty and freedom to private schools to increase fees which commensurated with their need for providing "good education" and not "any education"---Balance ought to be struck between the private schools' liberty to make basic economic decisions and the right to a good education which inhered in the people---Section 7A of the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984, which capped the annual increase in fee for private schools was an unreasonable exercise of regulatory authority, and it also offended the due process clause and right to hold property---Section 7A of the said Ordinance by its term, impinged upon the rights of the management of private schools' to life and liberty which, inevitably, include a right to carry on and engage in any occupation and business---Restraining a school from increasing fee to a reasonable level in order to maintain a threshold standard was contrary to public interest in itself---Public interest would be best served in enhancing the standards rather than lowering them---If a school sought an increase in fee in order to bring a qualitative change in the standard of education based on objective criteria, then any ceiling was anathema to public interest---Constitutional petitions were disposed of accordingly.

Mrs. Asma Jahangir, Shahid Hamid, Miss Aysha Hamid, Khawaja Haris, Faisal Hussain Naqvi, Khawaja Ahmad Hosain, Shezad Atta Elahi, Dr. Khalid Ranjha, Asad Ullah Saddiqui, Muhammad Haroon Mumtaz, Hassan Makhdoom, Tafazzul Rizvi, Raza Kazim, Zaki Rehman, Ch. Muhammad Usman, Shezada Mazher, Ali Raza, Ijaz Mehmood Ch., Mian Muhammad Kashif, Ch. Hassan Murtaza Mann, Azam Nazeer Tarar, Hassan Nawaz Makhdoom, Hasnain Ali Ramzan, Fawad Malik Awan, Syed Anwar ul Haq Gillani, Miss Asma Inam, Asim Hafeez, Rana Nadeem Sabir, Syed Ahmad Hassan Shah, Barrister Muhammad Umar Riaz, Mashhood Hussain, Moazzam Salim, M. Anwar Ch. and Hashim Raza Shamsi for Petitioners (Schools).

A.K. Dogar, Syed Shahab Qutab, Waqas Meer, Muhammad Javed Arshad, Muhammad Azhar Siddique, Liaqat Ali Butt, Muhammad Zaheer Butt, Fayyas Ahmad Mehr and Zubair Ahmad Chaudhry for Petitioner (students/parents).

Muhammad Shan Gull, Additional Advocate General assisted by Mr. Obaid Ullah and Rai Ashfaq Ahmad Kharal, Assistant Advocate-General for Respondent (Government).

P L D 2018 Lahore 597

Before Shahid Karim, J

LOUIS DREYFUS COMMODITIES SUISSE S.A.---Petitioner

Versus

ACRO TEXTILE MILLS LTD.---Respondent

C.O.No.649 of 2013, decided on 8th May, 2018.

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

----Ss. 6 & 7---United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York on I0th June, 1958 (the "New York Convention"), Arts. III, IV, V---Application for enforcement of foreign arbitral award---Legislative intent and policy for enforcement of foreign arbitral awards---Adjudication of an application under S. 6 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011---Grounds for refusal to recognize/enforce foreign arbitral awards---Pro-enforcement bias---Scope---Section 7 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 provided that only grounds for refusal of recognition and enforcement of an award shall be those given in Art. V of the New York Convention and no other and therefore, any challenge premised on Art.II read with Art.IV of the New York Convention stood ousted and the court was obligated to recognize and enforce an award unless it found such award to run foul of Art. V of the New York Convention---General pro-enforcement bias existed which permeated the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011, and was the policy of the law and must be the underlying thrust to liberalize procedures for enforcing foreign arbitral awards---Courts, on a proper objective analysis must give effect to such intention of the Legislature and purpose of the New York Convention, in the enforcement of foreign arbitral awards---Centrality of statutory enterprise consisted in shunning a tendency to view an application for enforcement of foreign arbitral award with skepticism and to consider such arbitral award as having a sound legal and foundational element---Such presumption was for the respondent to rebut upon proof being furnished and more importantly, the policy of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 required the Court to dispose of issues by the usual test for summary judgment, and not by a regular trial.

Redfern and Hunter, et. Al. Law and Practice of International Commercial Arbitration, 4th Ed. 2004; Administrative Law, H.W.R. Wade & C.F. Foresyth (Eleventh Edn.; Breen v. Amalgamated Engineering Union [1971] 2 Q B 175 at 190; Russell on Arbitration 24th Edn.; China Minmetals Materials Import and Export Co. V Chi Mei Corp., Court of Appeal, Third Circuit United States of America, 26 June 2003, 02-2897 and 02-3542 rel.

Case No.8 Sch. 11-2, 4 September 2003 Oberi andesgericht [OLG] Celley; Obverlandesgericht [OLG] Celley, Germany, 14 December, 06, 8 Sch. 14/05; Obverlandesgericht [OLG] Celley Germany, 18 September 2003 8 Sch. 12/02; Italy No.182, Microware s.r.l. in Liquidation (Italy) v. Indicia Diagnostics SA., Corte di Cassazione [Supreme Court], First Civil Chamber, 17291, 23 July, 2009 distinguished.

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

----Ss. 4, 6 & 7---United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York on 10th June, 1958 (the "New York Convention"), Arts. II, IV & V---Adjudication of application for enforcement of foreign arbitral award---Furnishing of documents---Interpretation of Art. II of the New York Convention---Arbitration Agreement---"Exchange of letters or telegrams" to include modern forms of communication---Phrase "agreement in writing" had to be seen in context of Art. II of the New York Convention which specified that an arbitral clause in a contract or an arbitration agreement may be either signed by the parties or alternately may be teased out of an exchange of letters or telegrams---By passage of time and with the onset of far more innovative technology, emails and other forms of modern information systems could justifiably be included in the term "exchange of letters or telegrams" so as to enlarge and broaden the scope and to give effect to the Convention in present time as otherwise the Convention would be rendered unworkable---Claimant under Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 merely had to supply a copy of an agreement, whether signed or unsigned, or based on "exchange of letters or telegrams" which was sufficient compliance of Article IV of the New York Convention---High Court observed that if a set of emails or other correspondence by any modern means of communication was supplied by a claimant under S.6 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 then such claimant would be deemed to have crossed the threshold of S. 5 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act 2011, read with Article IV of the New York Convention.

Smita Conductors Ltd. v. Euro Alloys Ltd., Appeal (civil) 12930 of 1996; Russell on Arbitration, 24th Edn. and China Minmetals Materials Import and Export Col Ltd. v. Chi Mei Corporation, Court of Appeals Third Circuit United States, 26 June, 2003 rel.

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

----Ss. 5, 6 & 7---Qanun-e-Shahdat (10 of 1984), Art.84---Adjudication of an application for enforcement of foreign arbitral award---Furnishing of documents---Arbitration Agreement---Summary procedure to determine/dispose of, issues in enforcement of foreign arbitral awards---Verification of signatures on an arbitration agreement and/or other contract---Scope---Provisions of Art.84, Qanun-e-Shahadat, 1984 empowered a court to ascertain veracity of a signature, writing or seal to determine that such signature, writing or seal was that of a person by whom it purported to have been written or made and a comparison may be made by the court with an admitted or proved signature, writing or seal to the satisfaction of the court---Although the provisions of Qanun-e-Shahdat, 1984 did not apply to the proceedings before court under S. 6 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act 2011, however, the court could choose to resort to a comparison of signatures on an agreement and such procedure was in consonance with the spirit and policy of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 which required the Court to dispose of issues by the usual test for summary judgment.

Rehmat Ali Ismaila v. Khalid Mehmood 2004 SCMR 361; Mst. Fatima v. Abdul Razzak 1988 SCMR 1449; Ghulam Rasool and others v. Sardar ul Hassan and another 1997 SCMR 976 and Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others 1999 SCMR 85 rel.

Syed Hassan Ali Raza and Asad Javed for Petitioner.

Waleed Khalid for Respondent.

P L D 2018 Lahore 641

Before Ayesha A. Malik, J

HABIB AKRAM---Petitioner

Versus

FEDERATION OF PAKISTAN through Ministry of Parliamentary Affairs, Islamabad and others---Respondents

Writ Petition No.126184 of 2017, heard on 30th May, 2018.

(a) Elections Act (XXXIII of 2017)---

----Ss. 60(2), 110(2) & 137(1)---Constitution of Pakistan, Arts.218, 219 & 222---Nomination forms to be submitted by candidates for the General Election, 2018['Form A' and 'Form B']---Legislative competence of Parliament to draft nomination papers---Scope---Contention of petitioner that Impugned Forms were drafted by Parliament which was not competent to enact the same as the competent authority in such respect was the Election Commission---Validity---Legislative competence of Parliament was clear from reading Art. 222 of the Constitution which provided that Parliament could make all laws with respect to elections and included laws related to the conduct of elections---Nothing in the Constitution specifically provided that the Election Commission shall make the nomination forms---Since Parliament was competent to legislate on all electoral laws including the conduct of elections and since the Elections Act, 2017 was made to amend, consolidate and unify all laws relating to the elections, Parliament was competent to draft the nomination forms---Historically nomination forms had been drafted by the Election Commission, however if Parliament had provided for the nomination forms in the [Election] Act, 2017 it could not be declared to be beyond their legislative competence---At the same time in order to safeguard the rights of the voters and to ensure free and fair elections, the Election Commission was fully empowered to make any additions to the nomination forms, if in its opinion it was necessary for a candidate to disclose information to ensure that elections were conducted honestly, justly and fairly and in accordance with law---Consequently the Election Commission could improve upon the nomination forms as per its constitutional mandate---Constitutional petition was disposed accordingly.

Workers' Party Pakistan through General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2013 SC 406 ref.

(b) Election Act (XXXIII of 2017)---

----Ss. 60(2), 110(2), 137(1)---Constitution of Pakistan, Arts. 62, 63, 218---Nomination forms to be submitted by candidates for the General Election, 2018---Form A (Nomination form for election to an Assembly or the Senate) and Form B (Statement of assets and liabilities) ['Impugned Forms']---Lack of disclosure and information in Impugned Forms preventing voters from ascertaining necessary information about candidates---Contention of petitioner that Impugned Forms lacked sufficient information and omitted mandatory declarations required under Arts. 62 & 63 of the Constitution as well as under the law; that the lack of information about candidates in the Impugned Forms with respect to their educational qualification, income tax and agriculture tax payments, dual nationality, pending criminal cases, contribution and expenditures undertaken during the election campaign, would impede the voter from getting an idea about the credibility, bona fides, honesty and truthfulness of the candidate---Validity---Impugned Forms did not contain certain information and declarations that were a part of the nomination forms for the General Elections, 2013 including educational qualifications of the candidate, current occupation/ job/profession/business of the candidate, dual nationality, National Tax Number/Income tax returns/ and payment of income tax, agriculture tax returns and payment of agriculture tax, criminal record, assets and liabilities of dependents, declaration pertaining to election expenses, declaration pertaining to any default in loan or government dues by dependents, declaration that the candidate would abide by the code of conduct issued by Election Commission---Supreme Court over the years had developed jurisprudence with reference to the qualification and disqualification of members of Parliament and Provincial Assemblies and declared most of said information as mandatory for the purposes of disclosure and declarations in the election nomination forms---Such information and its disclosure were part of the law and required compliance for the purposes of inclusion in the nomination forms---Lack of disclosure and information in the Impugned Forms essentially meant that a voter would not have the required information on the basis of which an informed decision could be made---To make an informed decision voters required basic information about a candidate which included information about educational qualifications, profession and/or business/jobs held, travel abroad---Voters also required information to establish the credibility of a candidate meaning thereby information about dual nationality, income tax paid, agriculture tax paid, loan default, government due defaults, criminal record and information of assets and liabilities---Finally the third set of information required was information which enabled a voter to assess the track record of the candidate, in terms of what he had done, especially if he or she had served as Member Parliament or Senate, hence information such as major contributions made, issues raised, and positions taken by the candidate over the years was relevant for the voter---Furthermore, for the purposes of raising objections and scrutinizing the nomination forms, the lack of information and declaration essentially eroded the constitutional mandate and the whole purpose of scrutiny was diluted---Requirement of Art. 218 of the Constitution, casting a duty on the Election Commission to organize and conduct honest, just and fair elections as per law, included the duty to ensure that all necessary and required information, disclosure and declarations were made by a candidate---Election Commission was responsible to ensure that a voter was able to make an informed decision and that the nomination forms achieved such objective---High Court declared that the Impugned Forms did not provide for mandatory information and declarations as required by the Constitution and the law and, therefore, the Election Commission was directed to ensure that all mandatory information and declarations were included in the Impugned Forms --- Constitutional petition was disposed accordingly.

Dr. Shaukat Ilahi v. Ch.Mubashar Hussain and another 2008 CLC 341; Muhammad Nasrullah v. Election Commission of Pakistan and 9 others 2009 CLC 1167; Workers' Party Pakistan through General Secretary and 6 others v. Federation of Pakistan and 2 others PLD 2013 SC 406; Muhammad Ahmad Chattha v. Iftikhar Ahmad Cheema and others 2016 SCMR 763; Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others 2016 SCMR 1; Ms. Shamuna Badshah Qaisarani v. Khawaja Muhammad Dawood and others 2016 SCMR 1420 and Imran Ahmad Khan Niazi v Mian Muhammad Nawaz Sharif, Prime Minister of Pakistn/Member Natinal Assembly, Prime Minister's House, Islamabad and 9 others PLD 2017 SC 265 ref.

(c) Elections Act (XXXIII of 2017)---

----Ss. 60(2), 110(2) & 137(1)---Constitution of Pakistan, Arts. 63(1)(n) & 63(1)(o)---Nomination forms to be submitted by candidates for the General Election, 2018---Form A (Nomination form for election to an Assembly or the Senate) and Form B (Statement of assets and liabilities) ['Impugned Forms']---Contention of petitioner that Constitution specifically stated that the declarations would be made with reference to 'dependent's whereas Ss. 60, 110 & 137 of the Elections Act, 2017 and the Impugned Forms specifically used the term 'dependent children'; that consequently the requirement of the Constitution for declaring liabilities with reference to dependents had been done away with by reducing the declaration to the extent of dependent children---Validity---Articles 63(1)(n) and (o) of the Constitution provided that a person shall be disqualified from being elected or chosen as a member of Majlis-e-Shoora (Parliament) if he, his spouse or dependents were in default of a loan of an amount of two million or more from any bank for more than one year or if he had gotten that loan written off---Constitution provided that the loan could be in his own name or in the name of his spouse or any other of his dependents---In the same way if a person or his spouse or any of his dependents were in default of government dues, utility expenses, telephone, electricity, gas and water charges at the time of filing of the nomination papers, he stood disqualified in terms of Art. 63(1)(o) of the Constitution---In terms of Elections Act, 2017, however, a candidate was to make a declaration with respect to his dependent children---Phrase "dependent children" diminished the scope of the constitutional requirement to make declaration with regard to "dependents" be their children or any other relative which could include parents, siblings or any other dependents---By requiring the statement of assets and liabilities for dependent children, instead of dependents the legislature had in fact ignored the constitutional mandate---High Court held that the term 'dependent children' used in the Elections Act 2017, specifically in Ss. 60, 110 & 137 and in Impugned Forms had to be read down to be construed and interpreted in terms of the Constitutional requirement provided for in Art, 63(1)(n) and (o) of the Constitution --- Constitutional petition was disposed accordingly.

(d) Interpretation of statutes---

----Legislature---Mala fides---Mala fide could not be attributed to the legislature but if a legislature deliberately and repeatedly embarked upon a venture to nullify considered judicial verdict in an unlawful manner, trample the constitutional mandate and violate the law then it was difficult to attribute bona fide to it either.

Contempt Proceedings Against Chief Secretary, Sindh and others: In the matter of 2014 PLC (C.S.) 82 and Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan others 2018 SCMR 802 ref.

Saad Rasool, Hasan Majeed, Aitzaz A. Chaudhary, Shan Saeed Ghumman and M.Ali Salimi for Petitioners (in W.Ps. Nos.126184/17 and 215470/18).

Muhammad Asif for Petitioner (in W.P. No.17713/18).

Muhammad Zikria Sheikh, DAG along with Ameen Ullah, Section Officer, Ministry of Parliamentary Affairs, Islamabad for Respondents.

Chaudhary Umer Hayat, Director Legal, Election Commission of Pakistan along with Hafiz Adeel Ashraf, Assistant Law Officer ECP.

P L D 2018 Lahore 678

Before Atir Mahmood, J

MUZAFFAR ABBAS---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chairman and others---Respondents

Writ Petition No.9931 of 2017, heard on 21st March, 2018.

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

----Ss. 52, 53, 54, 55, 56, 73 & 2 (v) (vi)---Civil Procedure Code (V of 1908), O.XXIII, Rr. 1, 2 & S.10---Election petition---Withdrawal of---Second election petition---Competency---Petitioner moved application to withdraw election petition with permission to file fresh one and in the meanwhile filed second election petition also---Election Commission dismissed the second election petition being not maintainable---Validity---Section 73 of Representation of the People Act, 1976 did not mention availability of any power with the Election Commission to grant permission to file second election petition but at the same time it did not bar to grant such permission---Representation of the People Act, 1976 was a special statute---When special statute did not bar something then it would be presumed that there was an implied permission---If petitioner had made some errors in the filing of election petition, he could not be stopped from correcting such errors within the applicable law---Election Tribunal while adjudicating upon the election petition had to adopt the procedure of Civil Procedure Code, 1908---Election Tribunal was at liberty to adopt any course of action to regulate the proceedings aimed at to promote the justice instead of following technicalities of C.P.C.---When there was any clash between the provisions of special statute and that of Civil Procedure Code, 1908 the provisions of former would take precedence over that of the latter---Any prohibition provided specifically in the special statute or any express provision thereof would be given preference over Civil Procedure Code, 1908---No bar existed on filing of fresh election petition under the Representation of the People Act, 1976---Court had power to grant permission to withdraw the suit with permission to file fresh one---Same principle would apply in the election matters as well---Election Tribunal could allow the petitioner to withdraw the first election petition with permission to file fresh one subject to question of limitation---If Election Commission found that petitioner while filing the election petition had not fulfilled the requirements of Representation of the People Act, 1976 (Ss.52 to 54) then petition could be dismissed forthwith---If no such fault was noted by Election Commission then it would refer the petition to the Election Tribunal for trial---No allegation existed against the petitioner that he failed to fulfil any of the requirements mentioned in Ss. 52 to 54 of Representation of the People Act, 1976---Only the Commissioner had jurisdiction to dismiss election petition in case of contravention of any provision of Ss.52 to 54 of Representation of the People Act, 1976 but in the present case such power had been exercised by the Election Commission which could not be said 'the Commissioner'---Election Commission had trespassed its powers and dismissed the election petition using the jurisdiction of "Election Commissioner"---Impugned order being against law was set aside---Election Commission was directed to refer the matter to the Election Tribunal for its trial where question of limitation would be looked into---Constitutional petition was allowed accordingly.

Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others 2016 SCMR 1 and Muhammad Afzal v. Niaz Ahmad and another 1999 MLD 1744 rel.

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

----S. 10---Second suit in presence of first one---Competence---Proceedings in the second suit will be stayed until and unless the first suit on the same subject is decided by the court---Second suit can be filed by the plaintiff in presence of the first suit but the proceedings in the second suit will be kept in abeyance till decision of the first suit.

Faiz Rasool Jillani and Syed Sikandar Abbas Gillani for Petitioner.

Fawad Malik and Ziaullah Khan for Respondent No.2.

Respondents Nos.7 to 9, 11, 13, 15, 16 and 24 proceeded against ex parte vide order dated 27-4-2017.

Respondents Nos.3 to 6, 10, 12, 14, 17 to 23 proceeded against ex parte vide order dated 29-5-2017.

Shahzad Shaukat: Amicus Curiae.

P L D 2018 Lahore 684

Before Muzamil Akhtar Shabir, J

MUHAMMAD RIAZ---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAISALABAD and others---Respondents

Writ Petition No.126598 of 2017, decided on 26th December, 2017.

(a) Mental Health Ordinance (VIII of 2001)---

----Ss. 30, 45 & 46---Mental health inquiry into---Recalling of order---Court of Protection appointed petitioner as guardian of respondent for his being mentally incapacitated person---Court of protection on the application by respondent, got him medically examined and recalled its earlier order by canceling guardian certificate---Validity---Court of Protection, after following procedure, reached the conclusion that respondent was not mentally disordered person and he did not suffer from any psychiatric illness, therefore, the Court had rightly passed order for setting aside the order of appointment of guardian and the guardianship certificate---Even if respondent had earlier been wrongly declared to be a mentally disordered person, the same procedure could be adopted by the Court of Protection to recall and set aside the orders---High Court declined to take any exception to recall of the orders by the Court of Protection---Petitioner having not availed alternate remedy, Constitutional petition was not maintainable.

Pir Imran Sajid v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan 2015 SCMR 1257 and Mst. Safia Bano v. Home Department, Government of Punjab and others PLD 2017 SC 18 ref.

(b) Administration of justice---

----Recalling of order by Court---Scope---Court is competent to recall its order if the same is obtained by practicing fraud, misrepresentation or is based on material irregularity and erroneous exercise of jurisdiction and has resulted in miscarriage of justice---Act of Court should not prejudice any person and where any Court did not comply with mandatory provisions of law or omitted to pass an order required by law in prescribed manner, then litigants/parties cannot be taxed, much-less penalized for the act or omission of the Court.

Muhammad Ijaz and another v. Muhammad Shafi through L.Rs. 2016 SCMR 834; Wasal Khan and others v. Dr. Niaz Ali Khan 2016 SCMR 40 and Abdul Rashid v. Abdul Salam and others 1991 SCMR 2012 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court in its Constitutional jurisdiction may not set aside any order even if passed without jurisdiction, if it cures a manifest illegality and substantial justice has been made.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 rel.

Obaid Hassan Gondal for Petitioner.

P L D 2018 Lahore 693

Before Atir Mahmood, J

EHSAN ELLAHI BAIG---Appellant

Versus

MUHAMMAD PERVAIZ---Respondent

R.S.A. No.250 of 2015, heard on 19th March, 2018.

(a) High Court (Lahore) Rules and Orders---

----Vol. IV, Chap. 12, R.5(1)---Administration of oath--- Procedure---Court has to take oath from witness in complete silence and witness who is giving oath must be standing before the Presiding Officer--- Words have to be repeated in a clear voice phrase by phrase--- Each and every word had to be made known to witness so as to make him understand what is the oath which he is going to give--- Such shows importance of oath to be taken from witness by the Court at the time of recording of his evidence.

(b) Oaths Act (X of 1873)---

----Ss. 6 & 13---Evidence without oath---Effect---After recording of evidence Trial Court decreed suit filed by plaintiff in his favour and the judgment was maintained by Lower Appellate Court---Plea raised by defendant was that evidence of witnesses of plaintiff was recorded by Trial Court without oath, hence same was illegal---Validity---If evidence of a witness was not taken on oath, such irregularity could be cured by re-recording evidence of that witness on oath but evidence without oath is not permissible in law---Cross-examination of witnesses of plaintiff was in question and if those witnesses were cross-examined again, there would be no harm to plaintiff, as his witnesses could say again on oath what they had earlier said, if they were speaking the truth---Defendant would have the right to rebut whatever was said in cross-examination by those witnesses--- Both the Courts below had failed to take into consideration such aspect of the case---High Court set aside concurrent judgments and decrees passed by two Courts below and remanded the matter to Trial Court for recording of evidence of witnesses in question after administering them oath---Second appeal was allowed in circumstances.

Sajjad Ahmad and another v. The State 1992 SCMR 408 ref.

Tasawar Hussain Qureshi for Appellant.

Khalid Aziz Malik for Respondent.

P L D 2018 Lahore 697

Before Atir Mahmood, J

KHALID MEER and others---Petitioners

Versus

FAQEERULLAH MINHAJ and others---Respondents

Civil Revision No.214918 of 2018, heard on 6th June, 2018.

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

----S. 115---High Court (Lahore) Rules and Orders Vol. V, Chap.1, Pt. A, R.9-A---Revision petition, re-filing of---Notice to petitioners---Revision petition was returned to the petitioners due to incompletion of file---Direction to re-file revision petition within three days after removal of office objection---Revision petition re-filed after sixty days without any plausible reason---Question as to whether petitioners ought to have been issued notice by the Office for resubmission of the petition---Held, that the file was admittedly returned to the petitioners on the day it was filed---When the file was lying with the petitioners and not with the Office, the Office was not supposed to issue notice to the petitioners and it was the sole responsibility of the petitioners to resubmit the file within the prescribed time---Had the Office retained the file with it, the situation would have been different and the Office would also have been responsible for issuing notice to the petitioners---Since the file remained with the petitioners from the date when the objection was raised till the date it was re-filed, the Office was not required to issue notice under R. 9-A---Revision petition was dismissed in circumstances.

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

----S. 115---High Court, (Lahore) Rules and Orders, Vol. V, Chap. 1, Pt.A, R. 9---Revision petition, re-filing of---Limitation---Revision petition filed on last day of limitation (90th day) returned to the petitioners due to incompletion of file---Direction to re-file revision petition within 'three days' after removal of office objection---Revision petition re-filed after 'sixty days' without any plausible reason---Petitioners were obliged to comply with the direction given to them through the objection memo and re-file the petition within three days after having removed the objection(s) raised by the office but they took sixty days to do the needful, as such, the revision petition was barred by time by sixty days---Revision petition was dismissed in circumstances.

Lahore Development Authority v. Muhammad Rashid 1997 SCMR 1224 ref.

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

----S. 115---Revision petition, filing of---Limitation---Where the Court itself took note of any error or irregularity in the decision of the court subordinate to it to rectify it, it may exercise its discretionary and supervisory powers of suo motu but where a party aggrieved from order or judgment of a court invoked revisional powers of the court, the time limitation of ninety days provided in second proviso of Section 115, C.P.C. was to be adhered to strictly.

Province of Punjab through District Officer Revenue, Rawalpindi and others v Muhammad Sarwar 2014 SCMR 1358 ref.

Syed Muhammad Kalim Ahmad Khurshid for Petitioners.

Mian Abdul Saeed for Respondent No.3.

Respondent No.3 in person.

P L D 2018 Lahore 704

Before Sayyed Mazahar Ali Akbar Naqvi, Atir Mahmood and Ch. Muhammad Masood Jahangir, JJ

Mirza NASEEM-UL-HASSAN and others---Petitioners

Versus

PROVINCE OF PUNJAB through Chief Secretary, Punjab and others---Respondents

Crominal Original Nos.205769, 211294-W, 211295-W, 211296-W, 211297-W, 211298-W and 211299-W of 2018, decided on 29th June, 2018.

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

----Ss. 3, 4 & 5---Constitution of Pakistan, Art. 204---Contempt of court---Interpretation of S. 3 of the Contempt of Court Ordinance, 2003---Question before the High Court was whether use of the words "whosoever" in S.3 of the Contempt of Court Ordinance, 2003 meant that the accusation of contempt could be extended to cases of "furtherance of common object"---Held, that provisions of S. 3 of the Contempt of Court Ordinance, 2003 began with the words "whosoever", but the same did not mean that if an act of contempt was repeated by others and given full concurrence at the same moment, that it would absolve such persons responsibility from accusations falling within purview of Art. 204 of the Constitution and S. 5 of the Contempt of Court Ordinance, 2003.

Muhammad Ahsan Bhoon and Mian Zafar Iqbal Kalanauri for Petitioner.

Mohammad Azhar Siddique for Petitioner (in Writ Petition No.208721 of 2018).

Shan Gull, Additional Advocate-General/Special Prosecutor for the State.

Syed Farhad Ali Shah for Respondents Nos. 6 and 11.

Rai Bashir Ahmed for Respondent No.7.

Aazar Latif Khan for Respondent No.8.

Dr. Ehsan-ul-Haq Khan and Rao Javed-ul-Haq Khan for Respondents Nos. 9 and 10.

Hassan Majeed for P.T.A.

P L D 2018 Lahore 713

Before Jawad Hassan, J

HASCOL PETROLEUM LIMITED---Petitioner

Versus

RENT REGISTRAR/URBAN SUB-REGISTRAR, SIALKOT and another---Respondents

Writ Petition No.177608 of 2018, decided on 8th May, 2018.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 5(1)(2)(6) & 17---Stamp Act (II of 1899), S.35 & Sched. I---Rent agreement, registration of---Interpretation of document---Principle---Petitioner was tenant and his grievance was that Rent Registrar had declined to register rent agreement and directed to pay duty with Sub-Registrar as the lease was for a period more than 20 years---Validity---Agreement was for only twenty years and not in excess of twenty years rather only extendable for another ten years after mutual consent of the parties---Agreement in question could be extended with mutual consent of parties and it could not be presumed by Rent Registrar that the agreement would be extended in future---Law did not base on prediction/presumptions rather specific language of agreement was to be taken into consideration---Rent Registrar did not act in accordance with law wrongly stating that period of tenancy was more than twenty years and his act was patently illegal and void---High Court set aside order in question and remanded the matter to Rent Registrar for decision afresh---Constitutional petition was allowed accordingly.

Syed Mohammad Areeb Abdul Khafid Shah Bukhari v. Government of the Punjab and others PLD 2018 Lah. 390 ref.

(b) Constitution of Pakistan---

----Art. 4---Protection of law---Scope---Every individual has right to be dealt with in accordance with law---No person is liable to do which the law does not require him to do.

Faisal Sultan v. E.D.O. (Education) and others 2011 PLC (C.S.) 419 rel.

(c) Administration of justice---

----Doing of a thing---Principle---Where procedure has been provided for doing a thing in a particular manner, same should be done in that manner alone and not in any other way or it should not be done at all.

Azizullah Memon v. Province of Sindh and another 2007 SCMR 229; Muhammad Haleem and another v. General Manager (Operation) Pakistan Railways Headquarter, Lahore and others 2009 SCMR 339; Abdul Khaliq Mandokhel v. Chairman, Balochistan Public Service Commission 2016 PLC(C.S.) 1184; Falak Niaz v. Amal Din 2016 YLR 2047; Sabz Ali Khan v. Inspector General Of Police, Khyber Pakhtunkhwa 2016 YLR 1279; Cantonment Board Clifton v. Sultan Ahmed Siddiqui 2016 CLC 919 and Federation of Pakistan v. Asad Javed 2016 PLD Isl. 53 rel.'

Sheikh Sajid Mehmood, Khawaja Farooq Dildar Ahmed, Tahir Butt, Usman Fazal and Shahzada Jahandur Durani for Petitioner.

Ch. Sultan Mahmood, Assistant Advocate-General for Respondents.

P L D 2018 Lahore 723

Before Muhammad Sajid Mehmood Sethi, J

Malik TAJ AHMAD---Petitioner

Versus

Malik MUHAMMAD NAWAZ, MEMBER OF PROVINCIAL ASSEMBLY (MPA), PUNJAB and others---Respondents

Writ Petition No.133237 of 2018, decided on 28th June, 2018.

(a) Constitution of Pakistan---

----Art. 62(1)(f)---Election---Sagacious, righteous, non-profligate, honest and Ameen---Determination---Non-disclosure of liabilities and loans of the companies of which the candidate was Director/Share holder, sans an element of design, scheme or intent does not make a candidature open to be questioned, if it can be shown that it was a bona fide error and that there was no intention to gain any benefit by withholding such information from the constituents---Bona fide error---Scope---Scrutiny for the purposes of Art.62(1)(f) of the Constitution is not based on moralistic or subjective criterion---Such condition does not contemplate perfection but requires a person to be honest, reliable and trustworthy.

Malik Farzand Ali and another v. Asad Ali and others PLD 2018 Lah. 46; Zahid Iqbal v. Hafiz Muhammad Adnan and others 2016 SCMR 430; Murad Bux v. Kareem Bux and others 2016 SCMR 2042; Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189 and Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644 rel.

(b) Constitution of Pakistan---

----Arts. 62(1)(f) & 199---Satgacious, righteous, non-profligate, honest and Ameen---Determination---Issuance of writ of quo warranto---Scope---Respondent was elected as Member Provincial Assembly and petitioner assailed the election on the plea that the respondent did not disclose liabilities and loans of the companies of which he was Director/share holder---Validity---Petitioner had already approached Election Commission of Pakistan through a petition however the same was withdrawn and such fact was not disclosed which militated against bona fide of the petitioner---Grant of relief under Constitutional jurisdiction was a matter of discretion, where in it quite legitimate on the part of High Court to test bona fides of the relator to see if he had come with clean hands---Writ of quo warranto could not be issued as a matter of course on sheer technicalities on a doctrinaire approach---High Court observed that aggrieved person had to resort to statutory remedy as provided under relevant statute and must not have invoked Constitutional jurisdiction of High Court in terms of Art.199 of the Constitution in a routine matter---Such remedy was discretionary in nature and had to be exercised in favour of aggrieved person in extreme circumstances---High Court, in circumstances, declined to interfere in the matter as object of such jurisdiction was to foster justice in aid of justice and not to perpetuate injustice---Constitutional petition was dismissed in circumstances.

[Case-law referred]

Ishrat Mahmood Sheikh for Petitioner.

Mubeen-ud-Din Qazi, Naeem Sarwar, Malik Muhammad Zafar Iqbal and Roman Bilal for Respondents.

P L D 2018 Lahore 735

Before Muzamil Akhtar Shabir, J

NARGIS NAUREEN---Petitioner

Versus

JUDGE FAMILY COURT, MULTAN and others---Respondents

Writ Petition No.5927 of 2018, decided on 20th April, 2018.

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

----Ss. 5, Sched., 14, 17 & 21-A---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for recovery of dower---Application for temporary injunction/interim relief---Interlocutory order---Determination of---Procedure---Appeal---Maintainability---Plaintiff along with suit filed an application under O.XXXIX, Rs.1 & 2, C.P.C. for grant of temporary injunction which was dismissed by the Family Court---Validity---Application filed by the petitioner for temporary injunction/interim order was in fact an application under S.21-A of the Family Courts Act, 1964---Family Court had jurisdiction to entertain and decide the said application---Said application had been dismissed and had resulted into a final decision declaring the plaintiff not entitled to interim relief during pendency of suit---Decision rendered by the Family Court was appealable provided same was not a decision of interlocutory nature---Every order passed during the pendency of a family suit could not be treated as an interlocutory order if said order had finally determined an issue---Appeal under S.14 of Family Courts Act, 1964 was not barred against every interlocutory order---Remedy of appeal unless specifically barred would be available against a decision relating to a right or a remedy provided under the law subject to condition that finality was attached to such an order or decision and nothing remained to be further decided between the parties on the said issue---Dismissal of application under S.21-A of Family Courts Act, 1964 would tantamount to declining the relief of preservation and protection of property that might be available to a party during pendency of suit which would amount to final determination of claim to that extent---Impugned order would amount to 'a decision given' in terms of S.14 of Family Courts Act, 1964 and an appeal against the same was available before the Appellant Court---Constitution petition being not maintainable due to availability of alternate remedy was dismissed.

Muhammad Zafar Khan v. Mst. Shehnaz Bibi and 2 others 1996 CLC 94; Imtiaz Ahmad Khan v. Mst. Aqsa Manzoor and others PLD 2013 Lah. 241; Rao Muhammad Owais Qarani v. Mst. Tauheed Aisha and others 1991 MLD 1097 and Mst. Naureen v. Ehsan Sabir, Family Judge, Faisalabad and 2 others 2010 CLR 110 rel.

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

----S. 17---Provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 applicability of ---Provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 were not applicable to the proceedings before Family Court.

(c) Administration of justice---

----No one could be non-suited merely because a wrong provision of law had been cited.

The State through Advocate general Sindh v. Zahid Ali 2007 SCMR 1017 rel.

(d) Jurisdiction---

----Mere citing or relying on wrong provision of law would not be of any consequence of the Court to assume jurisdiction provided it had otherwise jurisdiction to pass the order.

Olas Khan and others v. Chairman NAB through Chairman and others PLD 2018 SC 40 rel.

Hafiz Muhammad Naveed Akhtar for Petitioner.

P L D 2018 Lahore 742

Before and Sayyed Mazahar Ali Akbar Naqvi and Sardar Ahmed Naeem, JJ

FAWAD AHMED---Petitioner

Versus

ELECTION APPELLATE TRIBUNAL, RAWALPINDI and others---Respondents

Writ Petition No.222534 of 2018, decided on 5th July, 2018.

(a) Elections Act (XXXIII of 2017)---

----S. 63(4)---Nomination for election---Scrutiny of Nomination Papers of a candidate---Appeal against order of scrutiny---Appeal against scrutiny order under S.63 of the Elections Act, 2017---Nature---Adjudication by Appellate Tribunal under S.63(4) of the Elections Act, 2017---Issuance of "show-cause" notice under S.63(4) of the Elections Act, 2017 was mandatory---Mere issuance of notice of appeal for appearance under the proceedings of S.63(4) of the Elections Act, 2017 was not sufficient and for substantial compliance of the law, show-cause notice was necessary.

Haji Khuda Bux Nizamani v. Election Tribunal and others 2003 MLD 607 rel.

(b) Elections Act (XXXIII of 2017)---

----S. 63(2)---Nomination of elections---Scrutiny of Nomination Papers of a candidate---Appeal against order of scrutiny---Appeal against scrutiny order under S.63 of the Elections Act, 2017---Nature---Finality of order of Appellate Tribunal---Scope---Application of doctrine of functus offico and res judicata on filing of second appeal on the same subject-matter---Scope---Order passed in appeal under S.63(2) was final and the law allowed the losing party to have their case reviewed by the High Court by way of appeal in order to determine whether any legal errors were made during original proceedings, and therefore filing of a second appeal or review was incompetent under the Elections Act, 2017 as after the final order, the Appellate Tribunal becomes functus officio.

Miss Sumaeea Zareen v. Selection Committee, Bolan Medical College, Quetta and others 1991 SCMR 2099 ref.

(c) Functus offico, doctrine of---

----Meaning, application and scope of the doctrine of "functus offico", along with associated principles, examined.

Bayne v. Morris 68 US (One-Wall); Chandler v. Alberta Association of Architects (1989)2 SCR 848 and Nova Scotia Government and General Employees Union v. Capital District Health Authority 2006 NSCA 85 rel.

Ahsan Bhoon for Petitioner.

Ch. Umer Hayat, Advocate/Director Legal Election Commission of Pakistan.

P L D 2018 Lahore 748

Before Shams Mehmood Mirza and Jawad Hassan, JJ

Dr. SHAHZAD NIAZI---Petitioner

Versus

ELECTION APPELLATE TRIBUNAL and 3 others---Respondents

Writ Petition No.223057 of 2018, decided on 12th July, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 60 & 62---Constitution of Pakistan, Arts. 63(1)(k), 260, 240 & 199---Nomination for elections---Scrutiny of Nomination Papers of a candidate---Disqualification for membership of Majlis-e-Shoora (Parliament) on account of being in service of Government of Pakistan---"Service of Pakistan"---Meaning and scope---Petitioner impugned order of Election Tribunal whereby her nomination papers were rejected on ground that she was a government employee as per Art. 63(1)(k) of the Constitution---Contention of petitioner, inter alia, was that her appointment was on an ad hoc basis and she was only a consultant hired on contractual basis---Validity---Appointment letter of petitioner, issued by Provincial Government, clearly stated that her service would be governed by the Civil Servants Act ,1974, and per Arts.240 & 260 of the Constitution, her appointment clearly fell within the purview of "service of Pakistan"---Petitioner, therefore, was disqualified from contesting elections prior to the lapse of two years from the time she ceased to be in service, and therefore no illegality existed in impugned order---Constitutional petition was dismissed, in circumstances.

Muhammad Khursheed Khan v. Returning Officer and 4 others 1998 SCMR 425; Syeda Abida Hussain v. Tribunal for N.A. 69 Jhang-IV and 2 others PLD 1994 SC 60 and Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1987 SC 32 rel.

Mubeen Uddin Qazi for Petitioner.

Azam Nazir Tarar for Respondent No.4.

P L D 2018 Lahore 752

Before Ibad-ur-Rehman Lodhi, J

MASOOD AHMAD ABBASI, ADVOCATE---Appellant

Versus

SHAHID KHAQAN and others---Respondents

Election Appeal No.09 of 2018, decided on 27th June, 2018.

Elections Act (XXXIII of 2017)--

----Ss. 62 & 63---Constitution of Pakistan, Art. 62(1)(f) ---Nomination for election---Scrutiny of nomination papers of a candidate---Disqualifications for membership of Majlis-e-Shoora (Parliament) on account of not being "honest" and "Ameen"---Election Appellate Tribunal constituted under Elections Act, 2017---Nature and jurisdiction---Scope---Appellant impugned order of Returning Officer, whereby nomination papers of respondent were accepted and contended that respondent had engaged, inter alia, in concealment of facts and be declared as not "Honest and Ameen"---Contention of respondent/candidate was that unless there was declaration of any court of law to such effect, a person could not be declared as disqualified on basis of not being "Honest and Ameen"---Held, that the "Election Tribunal" constituted under provisions of the Elections Act, 2017, which was a Federal statute, was a "court of law"---Election Tribunal had held that respondent candidate was guilty of concealing of facts and withholding of complete information, and not a "Honest and Ameen"---Candidate, in circumstances, was disqualified from being chosen a member of Majlis-e-Shoora (Parliament) within meaning of Art.62(1)(f) of Constitution---Appeal was allowed, accordingly.

Masood Ahmad Abbasi Appellant (in person) and on behalf of Appellant in Election Appeal No.23 of 2018.

Sheikh Zameere Hussain assisted by Tahir Mehmood Abbasi and Husnain Muzaffar for Respondent No.1.

Malik Amjad Ali along with Haider Ali Khan, R.O. with record for Election Commission of Pakistan.

P L D 2018 Lahore 758

Before Atir Mahmood, J

Mst. SAFIA BIBI and another---Petitioners

Versus

MUHAMMAD AKBAR and others---Respondents

Writ Petition No.2500 of 2014, heard on 27th June, 2018.

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

----Arts. 59 & 164---Criminal Procedure Code (V of 1898), S.510---Constitution of Pakistan, Art.14---Inviolability of dignity of man---DNA test---Consent for conduct of such test---Scope---No one could be forced to have his/her blood test samples obtained for conducting DNA test---If a person did not give his consent for such test he/she could not be compelled for the same as such test amounted to interference with personal liberty of a person---Court had power to order for DNA test or any blood test in order to ascertain the truthfulness of allegations but such order must be passed with the consent of the party, such order could not be made in routine---Compelling a person to undergo DNA test could have serious consequences---Court was to safeguard and protect personal liberty of every citizen---DNA test was not the sole mode to adjudge and determine legitimacy of the children in matter of inheritance---Paternity issue could be proved by oral and documentary evidence.

Salman Akram Raja and another v. Government of Punjab through Chief Secretary, Civil Secretariat, Lahore and others 2013 SCMR 203 rel.

Muhammad Mehmood Chaudhry for Petitioners.

Respondents proceeded against ex parte.

P L D 2018 Lahore 762

Before Ayesha A. Malik, J

PUNJAB HEALTHCARE COMMISSION---Petitioner

Versus

MUSHTAQ AHMAD CHAUDHARY and others---Respondents

Writ Petition No.32150 of 2015, heard on 6th July, 2018.

(a) Punjab Healthcare Commission Act (XVI of 2010)---

----Ss. 3, 1 & Preamble---Constitution of Pakistan, Art.142 & Fourth Sched., Part II, Entry 11---Vires of Punjab Healthcare Commission Act, 2010---Distribution of legislative powers---Federal Legislative List---Legal, medical and other professions to fall under the domain of Federal Legislative competence---Establishment of the Punjab Healthcare Commission---Public Health/healthcare distinct from medical profession---Scope---Question before the High Court was whether the Punjab Healthcare Commission Act, 2010 was ultra vires the Constitution on ground that it sought to regulate the medical profession, which fell within the domain of the Federal legislative power, under the Federal Legislative List of the Constitution---Held, that the Punjab Healthcare Commission Act, 2010 did not regulate the medical profession as the provision of healthcare services, establishment and service providers were to be regulated by the Punjab Healthcare Commission and such subjects did not fall under the subject of medical profession and rather fell within the ambit of public health or healthcare---Registration and licensing in any regulatory regime was fundamental for the authority to fulfil its objective and mandate, thus Punjab Healthcare Commission was required to create system of clinical governance and healthcare---Such function was distinct and separate from registering the profession of medical practitioner, therefore the Punjab Healthcare Commission Act, 2010 was not ultra vires the Constitution and the mandate of the Punjab Healthcare Commission Act, 2010 fell squarely within the Provincial domain---Constitutional petition was dismissed, in circumstances.

Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others PLD 1997 SC 582 and Syed Aizad Hussain and others v. Motor Registration Authority and others PLD 2010 SC 983 ref.

(b) Punjab Healthcare Commission Act (XVI of 2010)---

----Ss. 4 & 40---Punjab Healthcare Commission Regulations for Banning Quackery in all its Forms and Manifestations and for Dealing with Quacks, 2016, Reglns. 5 & 7---Functions and powers of the Punjab Healthcare Commission---Necessary steps to ban quackery---Inherent power of the Punjab Healthcare Commission to seal healthcare establishment(s)---Application of the "Precautionary Principle"---Scope---Question before the High Court was whether Punjab Healthcare Commission was empowered under the law to seal healthcare establishment---Held, that concept of precaution and prevention lay at the heart of public health practice, and dealing in public health meant identifying and avoiding risks to life and health of a person as well as ensure to that protected measures were taken to prevent any harm to persons who would require healthcare---Precautionary Principle addressed uncertain risk and enabled action to take place before any harm was caused and enabled an authority to take preventive measures---Said principle required the system to ensure that its decisions were safe and efficient with public safety and health as its primary concern---Words "necessary steps" used in S.4 of the Punjab Healthcare Commission Act, 2010 included an inherent power to sealing an establishment as a preventive measure---Regulations issued under S.40(1) of the Punjab Healthcare Commission Act, 2010 prescribed procedure to be adopted when the Healthcare Commission was to seal a healthcare establishment---Such power of sealing exercised by the Commission was in furtherance of the mandate of the Punjab Healthcare Commission Act, 2010---Power exercised prior to the framing of the said regulations fell within the inherent power to seal healthcare establishment and hence no illegality existed---Constitutional petitions were dismissed, in circumstances.

Human Rights Case No.19921-P/2018 and Civil Misc. Applications Nos.1140-L, 1142-L, 1265-L, 1512-L and 4389/2018 and Suo Motu Case No.1 of 2010 ref.

Lung Fung Chinese Restaurant through Atiq Ahmed and 2 others v. Punjab Food Authority through Secretary and 6 others PLD 2017 Lah. 545 rel.

Khawaja Issam Bin Haris for Petitioner (in W.P. No.32150/15 and for Punjab Healthcare Commission (in W.Ps. Nos. 79690/17, 2427/17 and 31831/15 along with Dr. Muhammad Ajmal Khan, Chief Operating Officer, Punjab Healthcare Commission and Khurram Mushtaq, Additional Director (Legal), Punjab Healthcare Commission.

Mohammad Ahmad Qayyum, Shumail Arif, Omar Ashfaq and Ghualm Mustafa Umair, for Petitioners (in W.Ps. Nos.79690/17, 2427/17, 31831/15 and for Respondent No. (in W.P. No.32150/15).

Nawab Saeed Ullah, for Petitioners (in W.P. No.19597/15).

Malik Zia ur Rehman for Petitioner (in W.P. No.38582/15).

Waheed Ahmad for Petitioner (in W.P. No. 28593/15).

Imtiaz Hussain Khan Baloch for Petitioner (in W.P. No.11158/16).

Muazzam Iqbal Gill, for Petitioner (in W.P.30210/16).

Mian Subah Sadiq Klasson and Muhammad Hayat Klasson for Petitioner (in W.P. No.28517/16).

Nemo for Petitioner (in W.P.No.21753/15).

Nasar Ahmad, DAG and Muhammad Zikria Sheikh, DAG for Respondents.

Anwaar Hussain, Addl. A.G. Punjab along with Barrister Haris Ramzan, Legal Advisor, Aleem Akhtar Cheema, Senior Law Officer, Muhammad Khursheed, Law Officer on behalf of the Secretary Health, Lahore.

Ch. Muhammad Umar and Mufti Ahtsham-Uddin-Haider for Punjab Healthcare Commission (in W.Ps. Nos. 19597/15, 28593/15, 38582/15, 21753/15, 11158/16 and 28517/16).

P L D 2018 Lahore 784

Before Amin-ud-Din Khan and Muhammad Sajid Mehmood Sethi, JJ

MUHAMMAD NASIR CHEEMA---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 2 others---Respondents

Writ Petition No.224911 of 2018, heard on 17th July, 2018.

(a) Administration of justice---

----When law required something to be done in a particular manner, the same had to be done in such manner so prescribed and not otherwise, and any deviation from the same constituted patent illegality.

(b) Elections Act (XXXIII of 2017)---

----Ss. 234, 233 & 10---Constitution of Pakistan, Arts. 199, 10A & 4---Code of Conduct for General Elections, Cl. 27---Monitoring of Election Compaigns---Violation of Code of Conduct---Punitive action against nominated candidate for violation of Code of Conduct---Adjudication of violation of Code of Conduct---Right to fair trial and due process of law---Right to be dealt in accordance with law---Scope---Election laws, more particularly disqualification provisions to disenfranchise a candidate, thus depriving such candidate of valuable right of franchise guaranteed under the Constitution, were to be strictly construed---Any ambiguity was to be resolved in favour of the candidate, who could be permitted to participate in the electoral process and benefit of doubt had to be given to such a candidate---Extreme punitive action of disqualifying a candidate taken in violation of the provisions of Arts. 4 & 10A of the Constitution, which otherwise also failed to qualify the standards and tests of fairness and procedural impropriety, could not be allowed.

Muhammad Mujtaba Abdullah and another v. Appellate Authority/Additional Sessions Judge, Tehsil Liaquatpur District Rahim Yar Khan and others 2016 SCMR 893 and Bashir Ahmed Halepoto v. Election Commission of Pakistan through Chief Election Commission, Islamabad and 2 others PLD 2018 Sindh 346 rel.

Khalid Ishaq, Wajahat Ali, Adeel Shahid Karim, Babar Afzal and Ahmed Saeed for Petitioner.

Ch. Umar Hayat, Director (Legal), ECP, Imran Arif Ranjha, Legal Advisor, ECP, Naeem Sarwar, Legal Advisor, ECP and Hafiz Adeel Ashraf, Assistant Law Officer for Respondents.

P L D 2018 Lahore 788

Before Amin-ud-Din Khan and Muhammad Sajid Mehmood Sethi, JJ

Syed FIDA HUSSAIN SHAH---Petiitoner

Versus

ELECTION APPELLATE TRIBUNAL and others---Respondents

Writ Petition No.223485 of 2018, heard on 17th July, 2018.

(a) Elections Act (XXXIII of 2017)---

----Ss. 60 & 62---Nomination for Elections---Qualifications and disqualifications for membership of Majlis-e-Shoora (Parliament)---Scrutiny of nomination papers---Scope---Non disclosure of a fact by candidate, which otherwise if disclosed, could not debar said candidate from contesting elections; could not be made a ground to preclude such candidate from contesting the election.

Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 9 others PLD 2017 SC 265 rel.

(b) Elections Act (XXXIII of 2017)---

----Ss. 60, 62 & 63---Constitution of Pakistan, Arts. 62, 63 & 199---Nomination for Election---Qualifications and disqualifications for membership of Majlis-e-Shoora (Parliament)---Scrutiny of nomination papers---Factual probe in summary proceedings---Constitutional jurisdiction of High Court---Scope---Question whether declaration/ statements of a candidate in nomination papers were false or incorrect in any material particular could not be ascertained without carrying out a factual probe; which exercise could not be undertaken in the Constitutional jurisdiction of High Court and could not have been gone through by Returning Officer or Appellate Tribunal in summary jurisdiction.

Rai Hassan Nawaz v. The Election Commission of Pakistan and others 2013 CLC 1101 rel.

Muhammad Afzal Khan Dhandla and 3 others v. Election Tribunal and others PLD 2010 SC 959; Muhammad Mujtaba Abdullah and another v. Appellate Authority/Additional Sessions Judge Tehsil Liaquatpur District Rahim Yar Khan and others 2016 SCMR 893, Murad Bux v. Kareem Bux and others 2016 SCMR 2042; Sami Ullah Baloch and others v. Abdul Karim Nousherwani and others PLD 2018 SC 405; Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif and others PLD 2014 Lah. 670 and Muzafar Abbas v. Maulana Muhammad Ahmad Ludhianvi and 31 others PLD 2017 Lah. 394 ref.

(c) Elections Act (XXXIII of 2017)---

----Ss. 63, 62 & 60---Constitution of Pakistan, Art. 62(1)(f)---Nomination for elections---Scrutiny of nomination papers---Appeal against scrutiny order---Qualifications for membership of Majlis-e-Shoora (Parliament)---Nature of jurisdiction of Appellate Tribunal under S.63 of the Elections Act, 2017---Words "declaration to the contrary by a court of law" used in Art.62(1)(f) of the Constitution---Scope---Findings of the Appellate Tribunal under the Elections Act, 2017 did not come within meaning of "declaration to the contrary by a court of law" within contemplation of Art.62(1)(f) of the Constitution.

Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 9 others PLD 2017 SC 265 and Raja Pervaiz Ashraf v. Election Tribunal and others PLD 2013 Lah. 552 rel.

Mubeen ud Din Qazi and Syed Sikandar Abbas Gillani for Petitioners.

Khalid Ishaq, Wajahat Ali, Adeel Shahid Karim, Babar Afzal, Ahmed Saeed, Ch. Umer Hayat, Director (Legal), Imran Arif Ranjha, Legal Advisor and Hafiz Adeel Ashraf, Assistant Law Officer for Respondents.

P L D 2018 Lahore 795

Before Amin-ud-Din Khan and Muhammad Sajid Mehmood Sethi, JJ

MUHAMMAD YAQOOB SHEIKH---Petitioner

Versus

ELECTION APPELLATE TRIBUNAL, LAHORE and others---Respondents

Writ Petition No.223063 of 2018, heard on 17th July, 2018.

(a) Elections Act (XXXIII of 2017)---

----Ss. 60 & 62---Constitution of Pakistan, Arts.63(1)(n) & 199---Nomination for elections---Disqualification for membership of Majlis-e-Shoora (Parliament)---Scrutiny of nomination papers---Disqualification on basis of default in loan from Financial Institution---Determination of such default---Question before High Court was whether terms "he has obtained loan" or "in his own name" appearing in Art.63(1)(n) of the Constitution meant that such loan must have been obtained by a candidate in his/her own name and a loan obtained by a company incorporated by such candidate stood excluded from the same---Held, that term "he has obtained loan" appearing in Art.63(1)(n) of the Constitution included loan obtained by a candidate or his business or by a corporate entity in which candidate held majority shareholding establishing his/her control and management over said business/corporate entity.

Shamroz Khan and another v. Muhammad Amin and another PLD 1978 SC 89; Allah Bakhsh v. Ilahi Bakhsh and 3 others PLD 1975 Lah. 359; Habib Bank Ltd. v. Monopoly Control Authority 1986 CLC 2489 and Messrs Dawood Yamaha Ltd. v. Government of Balochistan and 3 others PLD 1986 Quetta 148 distinguished.

Sami Ullah Baloch and others v Abdul Karim Nousherwani and others PLD 2018 SC 405 ref.

(b) Elections Act (XXXIII of 2017)---

----Ss. 60 & 62---Constitution of Pakistan, Arts.63, 62 & 199---Nomination for Election---Qualifications and disqualifications for membership of Majlis-e-Shoora (Parliament)---Scrutiny of nomination papers---Scope---While deciding matters qua acceptance or rejection of nomination papers for elections, information provided by State authorities had to be relied upon and same could not be doubted unless some material was placed before the Court that such information was either not up-to-date or was incorrect.

Muhammad Shahzad Shaukat and Taha Asif Mehmood for Petitioner.

Khalid Ishaq, Asim Hafeez, Wajahat Ali, Adeel Shahid Karim, Babar Afzal, Ahmed Saeed, Imran Arif Ranjha, Mian Mureed Hussain, Naeem Sarwar, Legal Advisors for respondent-ECP and Hafiz Adeel Ashraf, Assistant Law Officer for Respondents.

P L D 2018 Lahore 803

Before Shahid Waheed, J

TAHIRA BIBI---Petitioner

Versus

MUHAMMAD KHAN and others---Respondents

Civil Revision No.955 of 2015, heard on 17th April, 2018.

(a) Islamic law---

----Gift---Ingredients---Inheritance---Transaction of gift---Proof---Procedure---Allegations of fraud and misrepresentation---Burden of Proof---Non-appearance of donee as witness---Effect-Mutation, proof of-Requirements---Plaintiff (daughter of deceased) was deprived from inheritance through gift mutation---Contention of plaintiff was that transaction of gift was based on fraud and misrepresentation---Suit was dismissed concurrently---Validity---When a person attacked a transaction as sham, bogus, fraudulent and fictitious then he must prove the same---Initial burden to prove the negative fact would stand discharged the moment a person substantiated his allegations by making a statement on oath and onus would be shifted to the other side to prove that the transaction in question was bona fide and legal---Plaintiff, as her own witness, appeared before the Trial Court and reiterated the allegations of fraud and misrepresentation on oath---Defendant was required to prove not only the validity of disputed mutation but also the bona fide and legality of transaction of gift incorporated therein---Courts below misdirected the plaintiff by misplacing the burden of proof and recorded impugned findings---Misplacing burden of proof would vitiate judgment passed by the Courts below---Trial Court illegally and erroneously failed to cast the burden on the defendant and recorded impugned findings which were perverse---Beneficiary of gift mutation was bound not only to prove the disputed mutations but also the factum of gift---Defendant neither in his written statement stated the date, time, place and name of witnesses before whom declaration and acceptance of gift was made nor any of his witnesses made such statement---Failure to establish the requirements of gift i.e. proposal and acceptance was fatal to the claim of defendant---Acceptance of gift was personal act of donee who was required to prove the same through his statement---Attorney could not substitute the donee under the law---Donee, in the present case, did not appear before the Trial Court to make statement and only his attorney appeared in the witness-box---Statement of attorney was of no avail to prove the transaction of gift---Gift incorporated in the impugned mutation had not been proved in circumstances---Neither presumption of correctness nor truth to the contents of mutation was attached under the law---Once existence of mutation was questioned by a party in the suit then the person claiming benefit thereunder was bound to prove the same---Patwari Halqa who entered the mutation and Revenue Officer who attested the same should be produced in the witness box to prove valid attestation of mutation---Defendant neither produced Patwari Halqa nor Revenue Officer who sanctioned the impugned mutations---Donee had failed to prove the valid sanctioning of impugned mutations in circumstances---Donee was not legal heir of donor nor in ordinary circumstances was entitled to get the suit property---Donor was not bound to furnish reasons for making a gift but no gift in the ordinary course of human conduct was made without reason and justification unless donor was divested of power of reasons and unless he/she was a person of unsound mind---Impugned mutations had been attested to deprive the plaintiff of her right of inheritance---Defendant had failed to justify the disinheritance of plaintiff through disputed gift mutations---Fraud would vitiate the most solemn transaction---Any transaction based on fraud would be void---Limitation did not run against void transaction nor efflux of time extinguished the right of inheritance---Impugned judgments and decrees passed by the Courts below were set aside---Impugned mutations were declared illegal, void ab initio and ineffective upon the rights of plaintiff---Plaintiff would be entitled to her legal share as per Sunni school from the inheritance of her deceased father---Revision was allowed in circumstances.

M. Krishnaswami Naidu v. Secretary of State represented by Collector of Tanjore and others AIR (30) 1943 Madras 15; Inayat Ali Shah v. Anwar Hussain 1995 CLC 1906; Muhammad Aslam v. Muhammad Tufail and 2 others 1995 CLC 1061; Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others 2001 SCMR1591; Mst. Kalsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135; Aurangzeb through L.Rs. and others v. Muhammad Jafar and another 2007 SCMR 236; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs. 2008 SCMR 855; Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342; Allah Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402; Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others 2018 SCMR 30; Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767; Mst. Gumbad and others v. Member Board of Revenue and others 1996 SCMR 1755; Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849; Barkat Ali through L.Rs. and others v. Muhammad Ismail through L.Rs. and others 2002 SCMR 1938; Fareed and others v. Muhammad Tufail and another 2018 SCMR 139; Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others 2001 SCMR 1591 and Peer Bakhsh through L.Rs. and others v. Mst. Khanzadi and others 2016 SCMR 1417 rel.

(b) Islamic law---

----Gift---Ingredients---Ingredients of gift were the declaration of gift by the donor, acceptance of gift by donee and delivery of possession of corpus.

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

----Art. 2 (d)---'Fact'---Meaning and scope

Rationale of Judicial Evidence (Vol. 6, 1838 43; William Tait p.45; Edgination v. Fitzmaurice (1885) 29 Ch. D 459; Emperor v. Ramanuja Ayyangav AIR 1935 Mad. 528; Sabhapathi v. Huntley AIR 1938 PC 91; Saiyid Rashid Ahmed v. Mst. Anisa Khatoon AIR 1932 PC 25; Akbarally v. Mahomedally AIR 1932 Bom. 356; Mst. Iqbal Begum v. Mst. Syed Begum AIR 1933 Lah. 80; Mst. Sardar Bibi v. Muhammad Bakhsh and others PLD 1954 Lah. 480; Pathana v. Mst. Wasai and another PLD 1965 SC 134; Hussain v. Mansoor Ali and 5 others PLD 1977 Kar. 320; Zohran Mai v. Mst. Siftan and others 1983 CLC 2559; Amir Ali v.Gul Shaher and 10 others PLD 1985 Kar. 365; Mst. Jantan through Mazhar Hussain v. Mst. Manzooran Bibi and others 2005 YLR 233; Mst. Ghulam Ayesha alias Ilyas Begum and otehrs v. Sardar Sher Khan and others 2006 SCJ 313; Pathana and others v. Allah Ditta 2008 YLR 589; Ghulam Shabbir and others v. Mst. Bakhat Khatoon and others 2009 SCMR 644; Muhammad Bashir and others v. Mst. Latifa Bibi through L.Rs. 2010 SCMR 1915 and Mst. Latif Bibi and 8 others v. Muhammad Bashir and 10 others 2006 CLC 1076 rel.

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

----Art. 117---Burden of proof---Scope.

Article 117 of the Qanun-e-Shahadat, 1984 defines "burden of proof" which clearly lays down that whosoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Thus, the Qanun-e-Shahadat, 1984 has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged; the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until the Court arrives at such conclusion, it cannot proceed on the basis of weakness of the other party. In view of this legal position of the Qanun-e-Shahadat, 1984, it is clear that there can be no dispute that a person who attacks a transaction as sham, bogus, fraudulent and fictitious must prove the same. Initial burden to prove the said negative fact would stand discharged the moment a person substantiates his allegations prima facie by making a statement on oath and the onus would be shifted to the other side to prove that the transaction in question was bona fide and legal.

Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135 and Joseph Constantine Steamship Line Ltd. v. Imperial Smelthing Corporation Ltd. (1941) 2 All ER 165 at 179 rel.

(e) Punjab Land Revenue Act (XVII of 1967)-

----S. 42---Mutation---Value---Presumption of correctness or truth was not attached to the contents of mutation.

(f) Fraud---

----Fraud would vitiate the most solemn transaction.

(g) Fraud---

----Transaction based on fraud would be void.

(h) Inheritance---

----Right of---Limitation---Void transaction----Limitation did not run against void transaction nor efflux of time would extinguish the right of inheritance.

Naveed Shehryar Sheikh and Ms. Fatima Malik for Petitioner.

Muhammad Zaman Mangat for Respondent No.1.

Muhammad Nawaz Bosal for Respondents Nos.2 and 3.

P L D 2018 Lahore 819

Before Shahid Karim and Ch. Muhammad Iqbal, JJ

KHALIDA IDREES and others---Appellants

Versus

ANAS FAROOQ CHAUDHARY and others---Respondents

R.F.A. No.1225 of 2016, decided on 7th June, 2018.

(a) Gift--

----Oral gift---Ingredients for valid oral gift of a property in inheritance disputes---Scope---Pre-requisite for oral gift to be considered valid was specific description of date, time and place of making offer of such gift by the donor and acceptance of the same by the donee---Donee claiming right under a gift excluding another heir of a property was required by law to establish original transaction of gift irrespective of whether such transaction was evidenced by a registered deed and such gift deed must justify the cause of disinheritance of other heirs.

Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others 2018 SCMR 30; Allah Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402; Fareed and others v. Muhammad Tufail and another 2018 SCMR 139 and Mst. Kulsoom Bibi and another v. Muhammad Arif and others 2005 SCMR 135 rel.

(b) Constitution of Pakistan---

----Art. 260(3)---Transfer of Property Act (IV of 1882), Ss. 122 & 123---Non-applicability of Muslim Personal Law to followers of the Ahmadia faith---Inheritance disputes vis-a-vis immoveable property between followers of the Ahmadia Faith---Gift of immovable property---Scope---Per Art.260(3) of the Constitution; followers of Ahmadia Faith had been declared as non-Muslims and thus could not be governed by Muslim Personal Law, and rather they had to follow their own personal law of inheritance and were debarred to take benefit of Muslim Personal Laws---No Personal Law relating to gift, Tamleek and Will were available in the Ahmadia Faith and in absence of the same, codified law of Transfer of Property Act, 1882 would be applicable to cater to property inheritance dispute until their fiqah or jurisprudence formulated consensus opinion on the subject.

Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342 and Allah Diwaya v. Ghulam Fatima PLD 2008 SC 73 rel.

(c) Inheritance---

----Dispute of inheritance vis-a-vis immoveable property---Adjudication---Scope---Rights of women folk---Alienation of females from their right of inheritance---Obligation of the courts---Scope---"Courts"---Scope---Deprivation of women folk from their due share in property through newly conceived or invented grotesque devices such as Will deed, gift/Tamleek deed or under the garb of custom, family honour, regional culture as well as under coercion were common and in such transaction(s) courts, were saddled with unalienable obligation to show extraordinary circumspection, care and caution while dealing and deciding the matter of alienation of share or right of the women folk.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

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

----S. 3---Inheritance---Suits appeals and applications---Limitation---Suits relating to inheritance disputes of immoveable property---Co-sharer in immoveable property---Scope---Limitation did not operate against co-sharer in a inheritance matter.

Mahmood Shah v. Syed Khalid Hussain Shah 2015 SCMR 869; Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 and Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859 rel.

Sh. Naveed Sheharyar and Fatima Malik for Appellants.

Ahmad Waheed Khan for Respondents Nos. 1 to 6.

Ras Tariq Chaudhary for Respondents Nos. 7 and 8.

P L D 2018 Lahore 830

Before Shahid Bilal Hassan, J

TASSADAQ NAWAZ---Petitioner

Versus

MASOOD IQBAL USMANI and others---Respondents

Writ Petition No.67546 of 2017, decided on 12th June, 2018.

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

----Ss. 12 & 47---Family Courts Act (XXXV of 1964), Ss. 5, Sched. & S.14(3)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Petition for interim custody of minors by father---Trial Court partially accepted the petition of the father allowing him to meet his minor son twice a month in Court premises---Interlocutory Order---Scope---Word "decision" used in S.14 of Family Courts Act, 1964---Scope---Question was whether enactment later in time would prevail---Petitioner/father contended that constitutional petition was maintainable as no appeal lay against interlocutory order passed under S.12 of Guardians and Wards Act, 1890---Respondent/mother contended that appeal lay before District Court as expression "a decision given" in S.14 of the Family Courts Act, 1964 did not qualify any such word as 'final'---Validity---Party, with regard to non-appealable order, had to wait till the same matured into a final order---Order under S.12 of the Guardians and Wards Act, 1890 was not appealable under S.47 of the Guardians and Wards Act, 1890 but after insertion of the word "Guardianship" in the First Schedule of the Family Courts Act, 1964, the provision of appeal was available available against an order under S.12 of the Guardians and Wards Act, 1890 before the District Court as per S.14 of the Family Courts Act, 1964---Provisions of Guardians and Wards Act, 1890 could not be read in isolation after bringing the matter pertaining to 'guardianship' under the jurisdiction of the Family Courts by the Legislature---All matters pertaining to the guardianship would be exclusively triable by the Family Court created under Family Courts Act, 1964, which was later enactment comparing to Guardians and Wards Act, 1890 as the statute later in time would prevail---Impugned order fell within the purview of 'decision given' and was appealable under S.14 of the Family Courts Act, 1964---Impugned order passed by the Family Court was appealable before the District Court, therefore, the same could not be called into question in constitutional petition---Petitioner could prefer appeal against the impugned order, if so advised---Constitutional petition was dismissed accordingly.

Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary and another 1996 SCMR 1165; Mumtaz Hussain alias Butta v. Chief Administrator of Auqaf, Punjab Lahore and another 1976 SCMR 450; Aley Nabi and others v. Chairman, Sindh Labour Court and another 1993 SCMR 328; Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806; Suo Motu Case No.13 of 2007 (PLD 2008 SC 217); Mst. Zaibun Nisa v. Muhammad Mozammil PLD 1972 Kar. 410, Syed Shamim Ahmad v. Mst. Riaz Fatima PLD 1975 Kar. 448; Mst. Akbar Jan v. Mst. Bibi Nasim and 4 others 2000 YLR 2652; Memoona Ilyas v. Additional District Judge and others 2017 CLC 1747 and Mst. Eram Raza and 2 others v. Syed Mutaqi Muhammad Ali and another 2018 MLD 727 ref.

Muhammad Azam Zafar Khan, Muhammad Rizwan Rasheed and Sheikh Muhammad Yar Zahoor for Petitioner.

Ch. Imtiaz Ullah Khan for Respondent No.2.

P L D 2018 Lahore 836

Before Muhammad Qasim Khan, Miss Aalia Neelum and Sardar Ahmed Naeem, JJ

MUHAMMAD JAWAD HAMID---Petitioner

Versus

Mian MUHAMMAD NAWAZ SHARIF and others---Respondents

Writ Petition No.9027 of 2017, decided on 6th July, 2018.

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

----S. 31---Criminal Procedure Code (V of 1898), Ss. 203 & 265-K --- Anti-Terrorism Court---Finality of orders---Orders passed by the Anti-Terrorism Court which were not appealable listed.

Following are examples of orders which were not covered under section 31 of Anti-Terrorism Act, 1997 and thus were not appealable but final in nature :-

(i) Discharge of an accused;

(ii) Remand of an accused;

(iii) Dismissal of a private complaint under section 203 Cr.P.C.

(iv) Summoning or non-summoning of accused in a private complaint;

(v) Summoning or non-summoning of a private witness;

(vi) Summoning or non-summoning of a document or any other thing;

(vii) Rejection of application under section 265-K Cr.P.C.

(b) Constitution of Pakistan---

----Art. 201---High Court---Judgment per incuriam---Scope---Any contrary decision given by the subsequent Bench of equal strength of High Court in ignorance of the terms of statute, binding precedent of Supreme Court, or previous decision of Bench of equal strength/Benches of coordinate jurisdiction of the same Court, would be a judgement per incuriam and without any precedential value.

(c) Judgment---

----Short order---Effect---Short order announced by the court of competent jurisdiction had the operational effect of judgement pronounced by the court.

D.-G. A.N.F. Rawalpindi and others v. Munawar Hussain Manj and others 2014 SCMR 1334; Reviews on behalf of Justice (Retd.) Abdul Ghani Sheikh and others PLD 2013 SC 1024; Justice Hasnat Ahmed Khan and others v. Federation of Pakistan/State PLD 2011 SC 680; Wisram Das v. SGS Pakistan (Pvt.) Ltd. and another 2010 SCMR 1234 and Wafi Associates (Pvt.) Limited v. Farooq Hamid and others 2010 SCMR 1125 ref.

(d) Constitution of Pakistan---

----Arts. 189 & 201---Short order by the High Court/Supreme Court---Precedential value---Important to distinguish between two types of short orders; those, which decided the question of law in clear and operative terms, and others which only adjudicated the matter and no question of law was clarified in terms of Arts.189 & 201 of the Constitution---Short orders covered under the first category had precedential value, however, those falling under the second had none.

Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 ref.

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

----S. 31---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Interim order passed by a Court under Anti-Terrorism Act, 1997, during proceedings of a case---Constitutional petition against such an order was not maintainable.

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

----S. 21(d)---Criminal Procedure Code (V of 1898), Ss. 435 & 439---Revision petition---Maintainability---Order passed by a Court under Anti-Terrorism Act, 1997, during proceedings of a case---Anti-Terrorism Court was subordinate/inferior court to the High Court---Under the Anti-Terrorism Act, 1997 no restriction had been imposed for filing of revision petition---High Court had the visitorial power over the Anti-Terrorism Court, therefore, it could entertain petitions in the nature of those covered by Ss.435 & 439, Cr.P.C, except to the extent of grant of bail or release of an accused in a case triable by Anti-Terrorism Court, in light of restriction imposed under S. 21(d) of the Anti-Terrorism Court, 1997.

Rai Bashir Ahmad, Muhammad Azhar Siddique, Mirza Naveed Baig, S. Parveen Mughal, Naeem ud Din Chaudhry, Abdullah Malik, Sardar Ghazanfar Husain, Adeel Hassan, Syed Umair Abbas and Ch. Naeem ud Din Chaudhry for the Petitioner.

Syed Ehtisham Qadir, Prosecutor General Punjab assisted by Rai Akhtar Hussain, Deputy Prosecutor General and Muhammad Amjad Rafiq, Additional Prosecutor General on court's call.

P L D 2018 Lahore 858

Before Muzamil Akhtar Shabir, J

Shehzada MUNAWAR JAVED KHUDAI and another---Appellants

Versus

ELECTION TRIBUNAL MULTAN and others---Respondents

Election Appeal No.11 of 2017, decided on 8th May, 2018.

(a) Interpretation of statutes---

----Rules or Regulations made under a statute---Such enactments which were the progeny or offspring of a statute were to be strictly interpreted in conformity with the provisions of the statute whereunder same were framed---Rules framed under a statute were to remain within the precincts of the statute itself and could not transgress the limits and parameters of the parent statute---All efforts were to be made to interpret the rules so as to bring them in conformity, without injuring the intent and spirit of the statute, however where it was not possible then the rules as much as they injured the very intent and spirit of the statute must yield to the statute.

National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited 2016 SCMR 550 rel.

(b) Interpretation of statutes---

----Rules framed under a statute---Scope---Operation of a statute or any statutory provision was not dependent upon framing of the Rules---Absence of Rules might affect the enforceability or operation of the statute---Framing of Rules would be generally relevant for determining as to whether the power under the statute had been exercised properly or not, but the existence of Rules could neither save nor destroy the constitutional validity of the statute.

Shahid Pervaiz v. Ejaz Ahmad and others 2017 SCMR 206 rel.

(c) Interpretation of statutes---

----Purposive and harmonious construction---Scope---While interpreting the law, all possible efforts were to be made to apply and adhere to the rules of purposive and harmonious construction, so that the alleged conflicting provisions should be reconciled and saved.

Waqar Zafar Bakhtawari and 6 others v. Haji Mazhar Hussain Shah and others PLD 2018 SC 81 rel.

(d) Punjab Local Governments (Conduct of Elections) Rules, 2013---

----R. 14---Punjab Local Government Act (XVIII of 2013), Ss.38 & 42---Nomination papers, scrutiny of---Election petition---Objection not raised at the time of scrutiny of nomination papers---Effect---Plea of appellants was that objection relating to disqualification could not be raised at the stage of election petition after declaration of result when the same was not raised at the time of scrutiny of nomination papers---Validity---Rule 14 of Punjab Local Governments (Conduct of Elections) Rules, 2013 had to be interpreted through harmonious construction to reconcile the same with Ss.38 & 42 of Punjab Local Government Act, 2013---Rule 14 provided for challenge to the nomination papers of a candidate on the grounds of disqualification or absence of qualification through process of scrutiny of nomination papers prior to holding of elections whereas Ss. 38 & 42 related to declaration of results of elections as void, inter alia, on the grounds of disqualification or absence of qualification to contest elections after a candidate had been declared as returned candidate, therefore, both the provisions could co-exist side by side---Rule 14 neither expressly nor by necessary implication prohibited the raising of such objection through election petition filed after candidate had been declared as returned candidate in case they said objection had not been raised during the process of scrutiny of nomination papers prior to the holding of elections---Election appeal was dismissed.

Abdul Rashid and another v. Election Appellate Authority and others 2016 SCMR 1215; Bahadar Khan and others v. Federation of Pakistan through Secretary Ministry of Finance Islamabad and others 2017 SCMR 2066; Ch. Muhammad Azeem v. Election Tribunal/District and Sessions Judge and 8 others 2007 MLD 1717 and Farhad Ali Khan v. Ch. Muhammad Siddique and others 1998 SCMR 2190 ref.

(e) Administration of justice---

----Where law required a thing to be done in a particular manner, it should be done in that manner and all other modes would not be permissible rather the same would be against the law and legislative intent and could not be treated as mere technicalities. [p. 870] F

Zia ur Rehman v. Syed Ahmad Hussain and others 2014 SCMR 1015 and Muhammad Anwar and others v. Ilyas Begum and others PLD 2013 SC 255 ref.

Mian Abbas Ahmad assisted by Malik Javed Akhtar Wains for Appellants.

Muhammad Maalik Khan Langagh and Humayoun Said Rasool for Respondents Nos. 1 and 2.

P L D 2018 Lahore 871

Before Muhammad Farrukh Irfan Khan and Ch. Muhammad Iqbal, JJ

HUSNAIN COTEX LTD., and others---Petitioners

Versus

WASEEM SANA and others---Respondents

Writ Petition No.22158 of 2009, Writ Petitions Nos.13685 and 13686 of 2016, decided on 28th June, 2018.

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

----O. XXI, R. 85---Auction of immovable property---Deposit of bid amount---Delay, effect of---Scope---Any unauthorized belated deposits if so made cannot remedy default committed by auction purchaser and provisions for forfeiture of deposited amount can be invoked.

Mst. Nadia Malik v. Messrs Makki Chemical Industries (Pvt.) Ltd. through Chief Executive and others 2011 SCMR 1675 rel.

(b) Auction---

----Public property, dealing of---Principle---Every State functionary while dealing with public property and determining rights of public must show ultimate fidelity in interest of justice as well as public rights and is under extraordinary obligation to maintain fariness, equity, impartiality of racial, religious, social and financial nature, while dealing with public affairs without any element of bias, partiality and doubt as great expectations of public are attached with official proceedings and any deviation therefrom would have render auction proceedings as nullity in eyes of law.

Alleged Corruption in rental Power Plants and others: In the matter of Human Rights Cases Nos. 7734-G/2009, 1003-G/2010 and 56712 of 2010, decided on 30th March, 2012 (2012 SCMR 773); Human Rights Cases Nos. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 SC 759); Atta Ullah Khan Malik v. Federation of Pakistan through President of Pakistan and 3 others PLD 2010 Lah. 605; Muhammad Qahir Shah and others v. Federation of Pakistan, Ministry of Railways, through Secretary, Islamabad and others 2014 YLR 2571 and Arshad Waheed v. Province of Punjab and others PLD 2010 Lah. 510 rel.

(c) Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S. 7---Civil Procedure Code (V of 1908), O.XXI, R. 66---Auction, setting aside of---Non-fixing of reserve price---Petitioners were auction purchaser of land in question and sale was confirmed by Punjab Cooperatives Board for Liquidation (Board)---Cooperative Judge set aside auction confirmed in favour of petitioners---Validity---Initial step taken by respondent for auction of public property was not in accordance with law as reserve price of property put up for auction was not fixed in derogation of mandatory requirements under O. XXI, R. 66, C.P.C.---Such flaw in itself was not curable rather proper auction proceedings should have been conducted after evaluating and fixing reserve price which exercise was not undertaken by the Board which validated sanctity of auction---When initial process was patently illegal then all subsequent proceedings dependent thereupon would automatically collapse---Reserve price in normal course had no special significance under principle of willing buyer and willing seller---Position would have been different in case of auction of public assets by state functionaries or by representatives of such authority; as such, same required extraordinary transparency and circumspection to safeguard vested or accrued rights of public without any iota of malafide, arbitrariness and collusiveness in order to protect and preserve sanctity of auction proceedings in the eyes of law---Such traits lacked in the auction proceedings in question---High Court in exercise of Constitutional jurisdiction declined to interfere in judgment passed by Cooperative Judge as same was rightly passed and did not suffer from any infirmity, illegality, perversity or jurisdictional defect---Constitutional petition was dismissed in circumstances.

2008 CLD 449; 2005 CLD 169; 2004 SCMR 1956; 2012 SCMR 455; 2007 SCMR 1054; PLD 2016 SC 229; 2010 CLC 1503; 2007 SCMR 1813; PLD 2006 SC 538; National Bank of Pakistan and 117 others v. SAF Textile Mills Ltd. and another PLD 2014 SC 283; Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi and others 2013 SCMR 1419; Ahmed through L.Rs. v. Faysal Bank Ltd. and others PLD 2018 SC 91; Messrs NIB Bank Ltd. v. Messrs Apollo Textile Mills Ltd. and 2 others PLD 2013 Sindh 430; Muhammad Rafique Bhatti and others v. The Cooperative Judge, Lahore High Court, Lahore and others 2016 SCMR 670; 2018 SCMR 76; Muhammad Siddiq and another v. Zawar Hussain Abidi and others PLD 1976 SC 572; Syed Anjum Zafar and 8 others v. Syed Abbas Ali Shah and 6 others 2000 SCMR 59; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 and American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449 ref.

Iftikhar-ud-Din Riaz and Mian Tariq Shafiq Bhandara for Petitioner No.1.

Salman Akram Raja and Tariq Bashir for Petitioner No.2.

Shahzad Shaukat and Asjad Saeed for Respondent No.1.

Amar Farooq and Raja Imran Aziz for Respondents Nos.8 to 14.

Nemo for Applicant (in C.M.No.5 of 2016).

Khalid Ishaq, Advocate for PCBL.

Rao Muhammad Akram for Applicant (in C.M.No.1 of 2016).

Rao Tajammal Abbas, for Applicant (in C.M.No.1907 of 2016).

Usman Raza Jamil and Muhammad Rizwan Rasheed for Applicant (in C.M.No.1919 of 2016).

P L D 2018 Lahore 895

Before Ayesha A. Malik and Masud Abid Naqvi, JJ

FOZIA KHALID---Petitioner

Versus

ELECTION APPELLATE TRIBUNAL and others---Respondents

Writ Petition No. 235025 of 2018, heard on 14th September, 2018.

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

----S. 28(1)---Bar against dual membership---Time frame within which a resignation should be tendered by the Mayor, Deputy Mayor, Chairman or Vice Chairman in order to contest elections for any other political office, in terms of the bar contained in S.28 (1) of the Punjab Local Government Act, 2013---Bye-elections for seat of Provincial Assembly---Nomination papers, rejection of---Sitting Chairperson of District Council/petitioner filed nomination papers for bye-election of a Provincial Assembly seat, without tendering resignation from post of Chairperson---Election Tribunal rejected the nomination papers of the petitioner in terms of the bar contained under S.28(1) of the Punjab Local Government Act, 2013 ("the 2013 Act")---Plea of petitioner that S.28(1) of the Act, was not a precondition to the filing of nomination papers and that the petitioner was not required to tender her resignation from post of Chairperson until the last date for withdrawal of candidature and publication of revised list of contesting candidates for Provincial Assembly seat---Validity---Spirit behind the bar imposed on dual membership in terms of S.28(1) of the Act was that the holders of specific positions being Mayor, Deputy Mayor, Chairman and Vice Chairman should not be allowed to contest for any other political office due to the nature of their post---Said officials sat at the highest level in the local government and were in a position to use the resources from their offices, including their staff for campaigning purposes and could influence the election process---Mandate of S.28(1) of the Act was to prevent a single person from holding office whilst contesting for another political office as it was necessary to ensure that an office holder should dedicate his or her time to their official duties and not towards personal advancement---Such bar ensured that office holders did not unfairly leverage their present position against other candidates or that they maintained public offices as a fall back---Bar contained in S.28(1) of the Act became applicable when a Mayor, Deputy Mayor, Chairman and Vice Chairman decided to contest another political office, in the present case being the bye-election, at the stage of filing the nomination papers---Impugned order of Election Tribunal rejecting nomination papers of the petitioner contained no illegality---Constitutional petition was dismissed accordingly.

Syed Sarfraz Hussain Shah v. Additional District and Sessions Judge/Returning Officer and 16 others PLD 2008 Kar. 64 ref.

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

----S. 28(1)---Bar against dual membership---"Resign to run", principle of---Scope---Pre-requisite for a Mayor, Deputy Mayor, Chairman or a Vice Chairman to resign from his/her office before contesting election for any other political office---"Resign to run" principle was premised on encouragement to run for public office and to make the process of election more competitive---Said principle created a level playing field and ensured that a person holding public office did not divert its resources for personal advancement, and it was also a check on those holding public office and ensured that they did their jobs and could account for the time spent in office---Public resources and functions were safeguarded and the sanctity of the election process was maintained.

Muhammad Shahzad Shaukat, Tahir Munir Malik and Taha Asif and Rana Imran for Petitioner.

Mian Sultan Tanvir Ahmad and Hafiz Mubshar Ullah for Respondent No.3.

Nasar Ahmad and M. Javaid Kasuri,DAGs for Respondents.

P L D 2018 Lahore 903

Before Ch. Abdul Aziz, J

NASEEM AKHTAR and another---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE and others---Respondents

Writ Petitions Nos. 29246 and 29468 of 2017, heard on 29th June, 2018.

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

----S. 321---Qatl-bis-Sabab---Mens Rea---Applicability---In order to attract mischief of Qatl-bis-Sabab attribution of mens rea to wrongdoer is not condition precedent and instead, actus reus of such person is made culpable.

Chairman Pakistan Railway Government of Pakistan v. Shah Jehan Shah PLD 2016 SC 534 rel.

(b) Words and phrases---

----"Unlawful act"---Defined.

Black's Law Dictionary, Ninth Edition rel.

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

----S. 321--- Qatl-bis-Sabab--- Medical negligence--- Criminal proceedings---Preconditions---For initiating criminal proceedings in cases of medical negligence, complaining person is required to show that death was due to gross negligence or recklessness of doctor.

Dr. Suresh Gupta v. Government of NCT Delhi and another AIR 2004 SC 4091 and Montgomery v. Lanarkshire Health Board 2015 SCMR 663 rel.

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

----Ss. 22-A, 22-B & 403---Punjab Healthcare Commission Act (XVI of 2010), Ss.3, 4, 19 & 28---Constitution of Pakistan, Art.13---Medical negligence---Direction by Ex-officio Justice of Peace to register case against petitioners---Maxim: Nemo debet bis puniri pro uno delicto---Double jeopardy, principle of---Applicability---Petitioners were medical practitioners who were alleged to have committed professional negligence resulting into death of brother of complainant---Plea raised by petitioners was that they had faced inquiry under Punjab Healthcare Commission Act, 2010 therefore, order passed by Ex-Officio Justice of Peace for registration of case amounted to double jeopardy---Validity---Petitioners faced proceedings under Punjab Healthcare Commission Act, 2010 and on strength of which it was projected that criminal case would amount to double jeopardy---Such was not correct exposition of double jeopardy as enshrined in Art.13 of the Constitution as well as in S.403, Cr.P.C.---Rule of doubt jeopardy had its roots in maxim Nemo debet bis puniri pro uno delicto which stood for 'No one should be subject to peril twice for the same offence---Plea either of autrefois acquit or of autrefois convict would arise only if a person was acquitted or convicted after prosecution---High Court declined to interfere in order passed by Ex-Officio Justice of Peace---Constitutional petition was dismissed accordingly.

Wilkes v. Wood (1769) 19 St.Tr.1406; Muhammad Ashraf and others v. The State 1995 SCMR 626 and Dr. Taqadees Naqash v. Senior Superintendent of Police and others 2015 PCr.LJ 1628 ref.

(e) Punjab Healthcase Commission Act (XVI of 2010)---

----S. 19 & Preamble---Medical negligence---Fixation of responsibility by the Commission---Scope---Provisions of Punjab Healthcare Commission Act, 2010 at the most is aimed at providing some mechanism for ascertaining negligence of healthcase service provider.

Shifa International, Hospital Ltd. through Chairman and C.E.O. v. Pakistan Medical and Dental Council (PMDC) and 3 others 2011 CLC 463 distinguished.

(f) Criminal trial---

----Cause of death---Autopsy, non-conducting of---Scope---Autopsy is not essentially required for initiating criminal proceedings, if otherwise cause of death is determinable.

Abdur Rehman v. State 1998 SCMR 1778 and Sikandar v. State and another 2006 SCMR 1786 rel.

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

----Ss. 154 & 173---Criminal investigation---Arrest of accused---Principle---Arrest of accused, during investigation, is not incumbent upon the police officer, if otherwise investigation can be concluded---Police officer is not required to deprive a person of his liberty.

Sarwar and others v. The State and others 2014 SCMR 1762 rel.

Syed Nadeem Abrar for Petitioner.

Mrs. Shazia Asharaf Assistant Advocate-General, Punjab for the State.

Muhammad Ahmad Pansota for Respondents.

P L D 2018 Lahore 916

Before Ayesha A. Malik, J

NAZIA BIBI and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, FEROZEWALA and others---Respondents

Writ Petitions Nos.154537 and 194641 of 2018, heard on 11th September, 2018.

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

---S. 5, Sched.---Decree passed by Family Court fixing monthly maintenance allowance for minors---Mother filing application for enhancement of maintenance allowance subsequent to the decree---Maintainability---Application for enhancement of minor's maintenance allowance may be filed subsequent to a judgment and decree.

Muhammad Iqbal v. Mst. Nasreen Akhtar 2012 CLC 1407 ref.

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

----S. 5, Sched.---Maintenance allowance for minors, enhancement of---Financial standing of father---Family Court decreed the suit filed by the mother and ordered the father to pay Rs.7000/- per month as maintenance for each minor along with 10% yearly increase---Appellate Court enhanced the monthly maintenance allowance for each minor from Rs.7000/- to Rs.12,000/- per month with 10% yearly increase---Contention of mother that father of the minors was capable of paying far more than Rs.12,000/- per month per child which was reflected from his tax returns and property documents---Validity---Appellate Court enhanced the maintenance from Rs.7000/- to Rs.12,000/- per month per child, with 10% annual increase on the basis of the financial status of the father and the daily growing requirements of the minors---However Appellate Court made no discussion about the enhanced requirements of the minors nor was there any discussion on the earning capacity of the father---Appellate Court assumed that Rs.12000/- per child was sufficient, but there was no discussion on the ages of the minors, on the needs of the minors nor any finding on the earning capacity/income of the father---In such circumstances impugned judgment of Appellate Court to the extent of quantum of maintenance allowance for minors was set aside and the matter was remanded to the Appellate Court to consider all relevant facts and documents and make a proper determination with respect to fixation of the maintenance of the minors, after hearing both the parties and pass a speaking order in accordance with law---Constitutional petitions were allowed accordingly.

(c) Administration of justice ---

----Judicial order---Such order must be a speaking order where the reasons were clearly stated by the court.

(d) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 17A(4)---Maintenance allowance for minors, quantum of---Financial status of father, determination of---Factors to be taken into account by the court when determining monthly maintenance allowance for minors---Court while considering the quantum of maintenance should take into consideration the minors education, status and general expenses---Court must also take into consideration the ability to take care of the minors in a stable, safe and healthy environment---Without due consideration of all said factors, the court cannot conclude positively the quantum of maintenance---No hard and fast formula was available for determining quantum of maintenance and the main consideration for the Court was the ability of the father to maintain the minors---Father was obligated under the law to take care of his minor children and the quantum had to be determined as per his earning, financial and social status and the ability that he may have to take care of the minors---Merely stating that the father was jobless would not discharge him of his obligation---Basic objective for determining maintenance was to ensure that in all probability the minors were maintained by the father in a dignified manner with reasonable comfort and that the mother was not left to bear the burden of taking care of the minors---Important for the court to first determine the expenses incurred or likely to be incurred on the minors---For such purpose the court must look into the living conditions of the minor and the manner and means by which the mother was maintaining the minors which would include factors like where they resided, whether the mother was dependent upon her family, if so what was the income on the basis of which the minor was being cared for, whether the mother had a job and whether she had any source of independent income---Special needs of the minor which would include medical or physical needs or special educational needs should also be taken into account---For the purpose of maintenance it was the obligation of the father to fulfill any special needs---In the case of enhancement of maintenance allowance, the court must also determine as to what extent the maintenance already fixed met the requirement and expenses of the minor and for what purpose, further enhancement was required---At the same time the court must determine the income of the father either through proper documentary evidence or on the basis of his social status and earning capacity---In order to ensure that proper information was before the court, it may require the father to produce documents such as his salary slips or any Bank statement or property document on the basis of which he was able to show his monthly income or earning or his financial status---Court, therefore, was not dependent on documents or information provided by the father and could call for relevant documents or information be it from the relevant department or organization or as the case required, in order to determine the income of the father---In such regard, the assets owned by the father were relevant as it contributed towards establishing the financial status of the father that had to be probed into by the court and based on attending circumstances the court could conclusively establish the means through which the father would be able to maintain the minors---Also important to take into consideration any liability of the father, whether he was paying any Bank loan or debt, whether he had remarried or had other children or whether his parents were dependent on him---In this way the court could determine the manner in which the income of the father was spent and balance the income and capacity with the reasonable requirements of the minors seeking maintenance.

Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 ref.

Chaudhary Aurangzeb Gujjar for Petitioners (in W.P. No.154537/2018) and for Respondent Nos. 2 to 5 (in W.P.No.194641/2018).

Imran Muhammad Sarwar for Respondent No.3 in W.P.No.154537/18 and for Petitioner (in W.P.No.194641/2018).

P L D 2018 Peshawar 1

Before Yahya Afridi, C.J. and Ikramullah Khan, J

MUHAMMAD AYAZ---Petitioner

Versus

SUPERINTENDENT DISTRICT JAIL, TIMERGARA, DISTRICT LOWER DIR and 3 others---Respondents

Writ Petition No. 1706-P of 2016, decided on 25th May, 2017.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversy---Controversy, which was based on contentious disputed facts, could not be entertained and adjudicated in constitutional jurisdiction of the High Court.

Ghulam Nabi's case PLD 2001 SC 415; Shamim Khan's case PLD 2005 SC 792; Muhammad Sadiq v. Ilahi Bukhsh 2006 SCMR 12 and Milan Party's case PLD 2012 SC 292 ref.

(b) Constitution of Pakistan---

----Art. 199---Pakistan Army Act (XXXIX of 1952), S. 97---Conviction and sentence passed by Field General Court Martial---Judicial review by High Court---Scope---Powers of judicial review under Art. 199 of the Constitution, against the sentences and convictions passed by the Field General Court Martial was not legally identical to the powers of an Appellate Court---Evidence produced could not be analyzed in detail to displace any reasonable or probable conclusion drawn by the Field General Court Martial nor could the High Court venture into the realm of the "merits" of the case---Evidentiary value of the prosecution evidence could not be adjudged by the High Court as a Court of Appeal and that too on the legal threshold required for conviction of a person on a capital charge under the ordinary criminal law---High Court, in its constitutional jurisdiction only had the legal mandate to positively interfere with the decision of the Military Courts on three fundamental grounds; if the case of the prosecution was based, firstly, on no evidence, secondly, insufficient evidence and thirdly, absence of jurisdiction.

Said Zaman Khan v. Federation of Pakistan and others 2017 SCMR 1249 ref.

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

----S. 59---Criminal Procedure Code (V of 1898), S. 164---Actions (in Aid of Civil Power) Regulation, 2011, Regln. 13---Pakistan Army Act Rules, 1954, R. 13---Designing vehicle for a terrorist act, attacking law enforcement agencies, possessing firearm and explosives---Admission of guilt by the accused---Effect---Confessional statement of the accused before the Judicial Magistrate and Military Court clearly spoke of his admission of guilt of the charges framed against him---Prior to making his admission of guilt before the Military Court, the accused had on three previous occasions admitted his guilt; firstly, before the Judicial Magistrate, while recording his statement under S. 164, Cr.P.C.; secondly, during his period of internment under S. 13 of the Actions (in Aid of Civil Power) Regulation, 2011 and thirdly, during the proceedings of taking summary of evidence under R. 13 of the Pakistan Army Act Rules, 1954---Challenge made to the mode, manner and the time of the confessions made by the accused, under the ordinary criminal jurisprudence would have seriously diminished the evidentiary value thereof, but in view of the limited scope available to the High Court in its Constitutional jurisdiction in evaluating the evidence and the repeated admission of guilt by the accused did not warrant interference in the impugned conviction awarded by the Military Court---Constitutional petition was disposed of accordingly.

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

----S. 59(1)(a)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(ee) & 7(1)(ff)---Designing vehicle for a terrorist act, attacking law enforcement agencies, possessing firearm and explosives---Quantum of sentence awarded by Field General Court Martial---Scope---Bare reading of S.59(1)(a) of the Pakistan Army Act, 1952 clearly revealed that the quantum of sentence that could be awarded by a Military Court could not go beyond that prescribed for the said offence under the ordinary penal laws enforced in Pakistan---Accused (a civilian) was awarded the death sentence by Field General Court Martial---Two striking features of the present case were that; firstly, the accused was not charged for the death of any person; and secondly he was not charged for actually causing an explosion---Charge against the accused was not for the act of causing an explosion---In fact, accused was charged for planting an explosive device, which act could fall under the offences provided under Ss. 4 & 5 of the Explosive Substances Act, 1908, which at best carried maximum punishment for life and not death---Punishment for offence involving use of explosive by any device given under S.7(1)(ff) of the Anti-Terrorism Act, 1997 also provided a maximum sentence of imprisonment for life but not death---Death sentence awarded to the accused by the Military Court warranted interference by the High Court in its Constitutional jurisdiction, as the Military Court lacked legal jurisdiction to award death penalty for the charges framed upon the accused---Sentence of death awarded to accused and the confirmation thereof passed by the Chief of Army Staff was set aside and the case was remanded back to the Military Court either to revisit the quantum of punishment awarded or to alter the charge framed against the accused and thereafter proceed against him under the law---Constitutional petition was disposed of accordingly.

Brig. (Retd.) F.B. Ali's case PLD 1975 SC 506 ref.

(e) Administration of justice---

----Principles---Criminal law---Two penal provisions prescribing two distinct punishments for the same offence---Principle of safe administration of criminal justice provided that in such a situation the accused was to be charged for the offence carrying the lesser punishment.

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

----S. 97---Field General Court Martial---Safe administration of justice, principle of---Scope---Accused could not be punished for an offence he was not charged for---Said principle of safe administration of justice could not be lost sight of even in cases tried by the Military Court under the Pakistan Army Act, 1952.

Abdul Latif Afridi and Khalid Anwar for Petitioner.

Manzoor Khan Khalil, DAG and Waqar Ahmad Khan, AAG along with Major Muhammad Tahir and Lt. Col. Kashif, 11 Corps. for Respondents.

P L D 2018 Peshawar 17

Before Muhammad Ayub Khan and Shakeel Ahmad, JJ

REHMATULLAH alias REMATOLI---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Home and Tribal Affairs Peshawar and others---Respondents

W.P. No. 833-D of 2017, decided on 26th September, 2017.

(a) Khyber Pakhtunkhwa Maintenance of Public Order Ordinance (XXXI of 1960)--

----S. 3---Power to arrest and detain suspected persons---Pre-requisites---Pre-requisite condition for issuance of an order under S. 3 of the Maintenance of Public Order Ordinance, 1960 was that the Government had to satisfy itself that a person was likely to act in a manner prejudicial to public safety or the maintenance of public order, and then to direct the arrest and detention of that person for a specified period---Section 3 implied that satisfaction of the Government with regard to the conduct of the person likely to act in a prejudicial manner, must be objective in nature and not subjective so to allow the executive authorities to act on their own fancies---Sufficient material must be available before the authority to act upon it so as to justify passing an order of detention.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Failure to avail alternate remedy provided under the law---Where an order was challenged being without lawful authority and without jurisdiction with the allegations of mala fide, the constitutional jurisdiction (of the High Court) could be invoked straightaway (without first availing the remedy provided under the relevant law).

Muhammad Siddique Khan v. District Magistrate PLD 1992 Lah. 140 ref.

(c) Khyber Pakhtunkhwa Maintenance of Public Order Ordinance (XXXI of 1960)--

----S. 3---Power to arrest and detain suspected persons---Pre-requisites---Maintenance of Public Order Ordinance, 1960, itself placed an obligation on the detaining authority directing detention of a citizen to supply to the detenu the grounds for and under which he was directed to be kept in detention.

1999 PCr.LJ 1558 ref.

Fahim Ahmad Baloch for Petitioner.

Kamran Hayat Khan Miankhel, A.A.-G. for Respondents.

P L D 2018 Peshawar 23

Before Yahya Afridi, C.J. and Muhammad Ghazanfar Khan, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through Senior Member Board of Revenue Peshawar and others---Petitioners

Versus

NIZAM GUL and others---Respondents

Review Petition No. 103-P of 2017 in R.F.A. No. 23 of 2017, decided on 5th October, 2017.

(a) Suits Valuation Act (VII of 1887)---

----S. 11---Objection regarding pecuniary jurisdiction of a court for entertaining an appeal---When the objection of valuation (of suit) was not raised in the memorandum of appeal, same could not be raised afterwards.

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

----S. 114---Review petition---Scope---Review could only be entertained if it was proved that some new and important matter or evidence had been discovered which after exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record.

(c) Administration of justice---

----Ignorance of law was no excuse.

Sohail Khan, A.A.-G. for Petitioners.

P L D 2018 Peshawar 26

Before Muhammad Nasir Mahfooz, J

EXN PESCO, SUB-DIVISION-II and another---Appellant

Versus

SHER AFZAL KHAN---Respondent

Criminal Appeal No.257-M of 2016, decided on 10th August, 2017

Khyber Pakhtunkhwa Consumers Protection Act (VI of 1997)---

----Ss. 12 & 17---Electricity Act (IX of 1910), S.54-C---Disputed Electricity bill---Bar to jurisdiction of courts---Scope---Complainant did not default in paying any monthly electricity bill but he had disputed incorrect reading recorded in the bill---Plea raised by authorities was that jurisdiction of Consumer Court was barred-Validity---Disputed electricity bill did not commensurate with actual electricity consumed by complainant---Such discrepancy was proved from documentary evidence produced during trial---Consumer Court though was actually bound to determine subject matter of complaint in summary manner but still a complete opportunity of hearing was given to both parties to settle their controversy one for all---High Court declined to interfere in the matter as Consumer Court had rightly allowed complaint by giving sound reasons after considering each and every aspect of the matter---Appeal against order was dismissed in circumstances.

Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others PLD 2012 SC 371 rel.

Fazal Rehman for Appellants.

Ali Muhammad Khan for Respondent.

P L D 2018 Peshawar 30

Before Syed Arshad Ali, J

INAM SHAH---Appellant

Versus

PUBLIC-AT-LARGE and anothers---Respondents

F.A.O. No.1-A of 2016, decided on 4th October, 2017.

Succession Act (XXXIX of 1925)---

----Ss. 372 & 383---Succession certificate---Disputed items, status of---Determination---Scope---Appellant filed application for seeking succession certificate with regard to Bank account and valuable items lying in locker of the deceased---Trial Court issued certificate to the extent of Bank account only---Validity---Status of disputed items could not be determined by Trial Court exercising jurisdiction under Succession Act, 1925---Appropriate remedy for parties was to approach Civil Court under its plenary jurisdiction to first determine status of disputed items being legacy of deceased or otherwise; after determination by Civil Court that disputed items constituted legacy of deceased, parties could resort to mechanism under Succession Act, 1925, for obtaining succession certificate in respect of disputed items or extension of existing succession certificate to the disputed items---Order accordingly.

Aziz Ahmed v. Hakimzadi and 7 others 2013 CLC 406 rel.

Ghulam Younas Khan Tanoli and Raheela Mughal for Appellant.

Khalid Rehman Qureshi for Respondents.

P L D 2018 Peshawar 41

Before Lal Jan Khattak and Abdul Shakoor, JJ

MUHAMMAD IQBAL and 4 others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and 2 others---Respondents

Writ Petition No.2998-P of 2017, decided on 28th July, 2017.

Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----S. 78-A---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Defection---Show-cause notice, assailing of---Petitioners were aggrieved of show-cause notice issued by Election Commission of Pakistan---Validity---Election Commission had already taken cognizance of reference sent by respondent against petitioners on account of their defection---High Court declined to interfere in the matter as the same was already sub judice before Election Commission---Interference in such matter on the part of High Court was pre-empting the authority of Election Commission and the same was not permissible---Petitioners could approach the High Court if they were aggrieved of the decision of Election Commission---Constitutional petition was dismissed in circumstances.

Shumail Ahmed Butt for Petitioners.

P L D 2018 Peshawar 43

Before Lal Jan Khattak and Ijaz Anwar, JJ

Messrs BLOOM PHARMACEUTICAL (PVT) LTD. through Managing Director---Petitioner

Versus

THE STATE and others---Respondents

Writ Petition No.1036-P of 2017, decided on 15th May, 2017.

Drugs Act (XXXI of 1976)---

----S. 11(5)(b)---Khyber Pakhtunkhwa Drug Rules, 1982, R.3(3)---General Clauses Act (X of 1897), S.24-A---Natural justice, principles of---Condemned unheard---Petitioner was a pharmaceutical manufacturer and case against it was sent for judicial trial, with regard to a spurious drug recovered from a medical store---Validity---Before sending case for judicial trial against petitioner, provisions contianed in S.11(5) of Drugs Act, 1976, and R. 3(3) of Khyber Pakhtunkhwa Drug Rules, 1982, were not adhered to---Any action adverse to the right or interest of a person could only be taken after providing meaningful hearing---Petitioner had genuine grievance that it had been condemned unheard---Under S.24-A, General Clauses Act, 1897, it was the bounden duty and obligation of public functionaries to pass orders with full conscious application of mind and not in mechanical manner and to act justly, fairly and equitably without there being any element of discrimination---High Court set aside the decision of authorities and remanded the matter to Provincial Quality Control Board with a direction to afford proper opportunity of hearing to petitioner---Constitutional petition was allowed accordingly.

Rana M. Maqsood Afzal Khan for Petitioner.

Rab Nawaz Khan, A.A.G., along with Imran Khan Burki, Provincial Drug Inspector, Heath Department for Respondents.

P L D 2018 Peshawar 47

Before Lal Jan Khatttak and Ijaz Anwar, JJ

ASTAGHFIRULLAH---Petitioner

Versus

SECRETARY IRRIGATION, PESHAWAR and others---Respondents

Writ Petition No.4001-P of 2016, decided on 13th June, 2017.

Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act (V of 1977)-

----S. 3---Canal and Drainage Act (VIII of 1873), S. 70---Constitution of Pakistan, Art.199---Constitutional petition---Alternate and efficacious remedy---Encroachment Tribunal---Jurisdiction---Scope---Petitioner claimed to be owner of land/house and was aggrieved of second notice issued by authorities to remove the house as it was an encroachment on public land---Validity---Status of alleged encroached area to be public property or otherwise was question that gave exclusive jurisdiction to Encroachment Tribunal constituted under Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977---When petitioner had questioned first notice before the Tribunal, then there was no occasion for him to bypass that forum and approach High Court under its constitutional jurisdiction against second notice---Encroachment Tribunal was given exclusive jurisdicion under S.13 of Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, to adjudicate upon a dispute that any property was not a public property---High Court declined to interefere in the matter as there was alternate and adequate remedy was available to petitioner---Constitutional petition was dismissed in circumstances.

2014 SCMR 122 rel.

Muhammad Anwar Khan for Petitioner.

Moinuddin Hamayun, Additional Advocate-General along wtih Shabbir Hussain, SDO for Respondents.

P L D 2018 Peshawar 51

Before Ijaz Anwar, J

MUHAMMAD SALEEM and 3 others---Petitioners

Versus

MANAGING DIRECTOR, SNGPL and 6 others---Respondents

Writ Petition No.54-B of 2017, decided on 3rd July, 2017.

Oil and Gas Regulatory Authority Ordinance (XVII of 2002--

----Ss. 11,12, 23 & 43---Complaint Resolution Procedure Natural Gas, Liquefied Petroleum Gas (LPG) and Compressed Natural Gas (CNG) Regulations, 2003---- Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration and permanent injunction-Reduction of pressure of gas at CNG stations by Natural Gas Supply Company---Jurisdiction of civil court----Scope---Petitioners/CNG station owners contended that civil court had rightly dismissed application of Natural Gas Supply Company for rejection of plaint under O. VII, R. 11, C.P.C, as civil court had plenary jurisdiction to entertain the matter---Contention of Natural Gas Supply Company, in the wake of ouster clause in Oil and Gas Regulatory Authority Ordinance, 2002 was that revisional court had rightly rejected the plaint of petitioners---Validity---Record revealed that the petitioners had approached the Natural Gas Supply Company by submitting different applications and complaints against low gas pressure but when no response was received, the petitioners approached the civil court---Oil and Gas Regulatory Authority Ordinance, 2002 defined 'consumer' and 'retail consumer' differently, similarly "licence" and "licencee" had been defined separately---Section 23 of the said Ordinance dealt with grant of licence about permission to store and sale of the CNG---Petitioners were admittedly licencees---Section 11 of the Oil and Gas Regulatory Authority Ordinance, 2002 provided that it did not deal with the type of complaint which the petitioners had against the Gas Supply Company, because the petitioners were licencee under the Ordinance---Under the Complaint Resolution Procedure For Natural Gas, Liquefied Petroleum Gas (LPG) and Compressed Natural Gas (CNG) Regulations 2003, complainant had been defined as "retail consumer" while the petitioners were licencees under the Ordinance---Under the Complaint Resolution Procedure for Natural Gas,Liquefied Petroleum Gas (LPG), Compressed Natural Gas (CNG) Regulations 2003, only the complainant or the licencee, if not satisfied with the order, could file appeal to the Authority within thirty days---Petitioners being licencees would be aggrieved only if any order was passed against them and under the Regulations would have no remedy of filing complaint or appeal as required under Ss.11 & 12 of the Ordinance read with the Complaint Resolution Procedure for Natural Gas, Liquefied Petroleum Gas (LPG) and Compressed Natural Gas (CNG) Regulations, 2003---Revisional Court had thus misdirected itself in setting aside the order of civil court and rejecting plaint of the plaintiffs/petitioners---High Coiurt set aside, the impugned judgment and order of the revisional court and directed that revision petition of Gas Supply Company would be deemed to be pending and decided on merits---Constitutional petition was allowed accordingly.

2009 SCMR 1058; PLD 1996 SC 827; 2014 CLC 216; 2013 YLR 756; 2013 CLC 764; 2013 CLC 507; 2009 YLR 32 and 2008 CLC 1462 ref.

PLD 2015 Bal. 110 distinguished.

Baghdad Khan Khattak for Petitiioners.

Sirajul Islam and Ahmad Farooq Khattak for Respondents.

P L D 2018 Peshawar 57

Before Yahya Afridi, C.J. and Muhammad Ayub Khan, J

YAQOOB---Petitioner

Versus

POLITICAL AGENT KHYBER AGENCY PESHAWAR CANTT. and 6 others---Respondents

Writ Petition No.4128-P of 2016, decided on 17th May, 2017.

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

----S. 9(c)---Anti-Narcotics Force Act (III of 1997), S. 5---Frontier Crimes Regulations (III of 1901), Regln. 11---Constitution of Pakistan, Arts.199 & 247(7)---Notification No. F.12(3)/98-POB, dated 19.11.2009---SRO No. 1295(I)198, dated 16-11-1998---Constitutional petition--- Maintainability--- Anti-Narcotics Force--- Functions---Federally Adminsitered Tribal Area (FATA)---Sixteen kilograms heroin was recovered from the house of the accused-petitioner---First Information Report was lodged against petitioner and two other persons---Political Agent Khyber Agency tried the petitioner under S.9, Control of Narcotic Substances Act, 1997---Petitioner having been arrested under Control of Narcotic Substances Act, 1997, four jirga members were appointed and issues were framed---Jirga members obtained the consent of the petitioner and gave their unanimous verdict by awarding sentence of 14 years to the petitioner---Appeal before Commissioner under the Frontier Crimes Regulations, 1901, was dismissed---Revision petition before the Federally Administered Tribal Area Tribunal, was also dismissed---Petitiner challenged the conviction and sentence before the High Court under Art.199 of the Constitution---Validity---Political Agent, under Notificaiton No.F.12(3)/98-POB, dated 19-11-2009, was empowered to try and punish the accused charged for offence under the Control of Narcotic Substances Act, 1997, committed within Federally Administered Tribal Area (FATA)---President of Pakistan by virtue of SRO No.1295(I)198, dated 16-11-1998 in compliance with Art.247(3) of the Constitution of Pakistan, had conferred jurisdiction on the Political Agent and had extended the application of the Anti-Narcotics Force Act, 1997 and Control of Narcotic Substances Act, 1997 to FATA, however, hierarchy setup under the Frontier Crimes Regulations, 1901 would continue to exercise its jurisdiction and authority in these cases by necessary implication---Jurisdiction of High Court was not extended to Federally Administered Tribal Area (FATA), in view of Art.247(7) of the Constitution of Pakistan---Constitutional petition was dismissed accordingly.

PLD 2013 Pesh. 23 and PLD 2014 Pesh. 186 rel.

Abdul Lateef Afridi for Petitioner.

Fida Gul, Syed Qaiser Ali Shah, A.A.G. and Manzoor Khalil, DAG for Respondents.

P L D 2018 Peshawar 59

Before Waqar Ahmad Seth and Syed Arshad Ali, JJ

ABDUL WAHEED KHAN---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU through Deputy Prosecutor General and 4 others---Respondents

Writ Petition No.1241-P of 2017, decided on 22nd June, 2017.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(ix) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Cheating members of public-at-large---Number of affectees---Petitioner was arrested by National Accountability Bureau on allegation of cheating members of public-at-large on claims filed by twelve affectees---Validity---Prosecution during investigation had to unearth all those material facts which could lead to intention of accused to cheat---In cases of receiving investments from others or at the time of inducing persons to invest with him, accused should have intention of not returning the amount---Offence of cheating could not be said to have been committed unless prosecution established intention of accused of not returning the amount at time of inducing or receiving the same---Material collected by investigating agency transpired that twelve claimants/affectees invested their amounts in business of petitioner and his brother---Business of petitioner in form of running Compressed Natural Gas Stations in various cities of the country, real estate and money exchange was not denied either by prosecution or by the affectees---Prosecution did not place on record any material evidence to show whether it was liquidity issue with petitioner who remained unable to pay the amount or he had guilty intention from very first day not to return the amount allegedly invested with him---Mere fact that petitioner obtained investment and thereafter became unable to repay the amount did not constitute any offence under National Accountability Ordinance, 1999---Intention of petitioner to induce affectees fraudulently and dishonestly so as to deceive them, which were sine qua non for constituting offense was still to be determined during trial after recording evidence and such aspect of the case had made it a case of petitioner arguable for purposes of bail---Constitutional petition was allowed in circumstances.

Muhammad Alauddin v. The State PLD 1959 Dacca 88; Shahid Imran v. The State and another 2011 SCMR 1614 and Rafiq Haji Usman v. Chairman NAB and another 2015 SCMR 1575 rel.

Barrister S. Mudasser Ameer and Barrister Yaseen Raza for Petitioner.

Zair Nawaz Khattak for Respondents.

P L D 2018 Peshawar 65

Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ

AMAN ULLAH---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION MUNDA and 3 others---Respondents

Writ Petition No.153 of 2017, decided on 15th May, 2017.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Foreigners Act (XXXI of 1946), Ss.14(1) & 14(2)---Application for registration of case against accused persons was dismissed by Ex-Officio Justice of Peace---Petitioner's case was that respondent/daughter of petitioner with other members of the family had settled in Afghanistan---Respondent/daughter of petitioner disappeared from her house in Afghanistan---Petitioner got information, that his duaghter had fled to Pakistan with the connivance of another person---Petitioner had lodged report with regard to disappearance of his daughter---Daughter of the petitioner was recovered from the house of said other person whereafter she recorded her statement under S.164, Cr.P.C. before the Magistrate and admitted to have fled from Afghanistan to Pakistan and affirmed the factum of Nikah with the said person---Daughter of petitioner subsequently shifted to Dar-ul-Aman---Application was moved by the petitioner before the court of Executive Magistrate for deporting his daughter which was dismissed---Petitioner had preferred application to the Station House Officer for the registration of case against the said other person which was declined---Another application with the same plea was presented to the District Police Officer, which was also refused---Petitoner filed application before the Ex-Officio Justice of Peace for the registration of case against the respondent, which was dismissed---Validity---Record transpired that petitioner had failed to bring on record any documentary evidence in respect of his deportation to his native country---Daughter of petitioner was shown to be a holder of registration card as Afghan refugee issued by the Government of Pakistan---Plea of petitioner, thus, to initiate criminal proceedings against the said another person being illegal migrant within the meaning of S.14(2) of the Foreigners Act, 1946, could not be advanced---Foreigners Act, 1946, had conferred certain powers upon Federal Government in respect of entry of the Foreigners into Pakistan, their presence and departure therefrom---Powers for any action under the Foreigners Act, 1946, had been specifically delegated to the Provincial Government---Petitioner had no locus standi to move application for the registration of the case under S.14(1) & (2) of Foreigners Act, 1946, as such-like powers were exclusively within the domain of either of the functioneries of Federal Government or Provincial Government extending these powers to the Tribal Territories---Constitituional petition was dismissed in circumstances.

Mst. Sajida Bibi and another v. Incharge Chowki No.2 PLD 1997 Lah. 666; Mst. Zohra Bibi v. Superintendent Dar-ul-Aman and another 2006 MLD 298 and Mst. Giran Naz alias Shagufta Bibi v. The State and 2 others PLD 2010 Quetta 61 ref.

Hazrat Rehman and Abdul Halim Khan for Petitioner.

Rafiq Ahmad, A.A.G. and Shah Salam Khan and Shah Faisal Khan for Respondents.

P L D 2018 Peshawar 70

Before Waqar Ahmad Seth and Ijaz Anwar, JJ

MUHAMMAD AZIM KHAN AFRIDI---Petitioner

Versus

PRESIDENT OF PAKISTAN through Principal Secretary President House, Islamabad and 9 others---Respondents

Writ Petition No.3676-P of 2012, decided on 5th September, 2017.

Constitution of Pakistan---

----Arts. 175-A & 199---Civil Procedure Code (V of 1908) S.20---Constitutional petition---Territorial jurisdiction---Judicial Commission, powers of---Fitness of a person to be Judge of High Court---Petitioner (Judge) was aggrieved of order passed by Judicial Commission, declining extension to him as Additional Judge of Islamabad High Court---Order passed by Judicial Commission was assailed before High Court at Peshawar---Validity---Federal Government or a body set-up by Federal Government for whole of Pakistan performed functions in relation to the affairs of Federation in all provinces, any order passed by Government, body etc. taken by it in relation to any person in any of the four provinces in the country would give High Court of that Province, in whose territory order would affect such a person, jurisdiction to hear case---Decision of Judicial Commission about fitness of a person to be appointed as Judge of High Court or to be allowed extension to an Additional Judge of High Court or to be confirmed was exclusive domain of the Judicial Commission and could not be questioned at any forum---High Court declined to interfere in the matter---Petition was dismissed in circumstances.

[Case-law referred]

Muhammad Muazzam Butt for Petitioners.

Arshad Hussain, DAG for Respondents.

P L D 2018 Peshawar 76

Before Yahya Afridi C.J. and Muhammad Nasir Mahfooz, J

MUHAMMAD SALEEM HASSAN WATTOO, DG PDA, PDA Complex Phase-V, Hayatabad, Pashawar---Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB), ISLAMABAD and 5 others---Respondents

Writ Petition No.2888-P of 2017, decded on 20th September, 2017.

National Accountability Ordinance (XVIII of 1999)---

----S. 18---Reinvestigation---Principle---Petitioner was accused facing investigation under National Accountability Ordinance, 1999--- Plea raised by petitioner was that earlier he had been declared innocent and inquiry against him was closed, therefore, no fresh inquiry or investigation could be initiated---Validity---National Accountability Bureau had authority to accept complaint of any person against holder of public office for committing corruption and corrupt practices as envisaged under National Accountability Ordinance, 1999---Bureau could accept fresh evidence from complainant or any other person regarding a complaint against holder of public office for committing corruption and corrupt practices as provided under National Accountability Ordinance, 1999 and same was under verification and not formally closed---Bureau could accept and consider not only fresh evidence from complainant or a fresh complaint by another person regarding a matter which was formally closed subject to seeking sanction of authority that had approved closure of earlier complaint---Bureau on closure of all complaints had to record in writing whether same were prima facie frivolous or intended to defame any person and if so, had to proceed against such complainant as provided under S.18(h) of National Accountability Ordinance, 1999---Bureau could proceed against petitioner keeping in view such principles---High Court directed petitioner to respond to queries raised or provide all information or record sought by National Accountability Bureau in furtherance of complaints received against him---Constitutional petition was disposed of accordingly.

Muhammad Yousaf's case 2000 SCMR 453; Ghulam Rasool's case 2001 MLD 661; Ch. Muhammad Anwar's case 2002 PCr.LJ 2014; Muhammad Ajmal Khan's case 2003 YLR 701; Col (R) Syed Mukhtar Hussain's case 2004 CLC 1019; Ardeshir Cowasjee's case PLD 2004 SC 70; Waqar Alam Saeed's case 2005 YLR 1742; Mian Muhammad Asif's case 2010 YLR 944; Liaqat Ali's case 2001 MLD 1179; Mumtaz Khan's case 2001 PCr.LJ 1209; Muhammad Gulfam's case 2012 PCr.LJ 1493; Syed Abid Hussain Shah's case 2013 PCr.LJ 974 and Ali Muhammad Baloch's case 2015 YLR 666 ref.

Qazi Muhammad Anwar and Muhammad Tariq Afridi for Petitioner.

Ali Jan, ADPGA for NAB for Respondents.

P L D 2018 Peshawar 83

Before Yahya Afridi, C.J. and Muhammad Ghazanfar Khan, J

ZIAULLAH AFRIDI---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary and 4 others---Respondents

Writ Petition No.189-P of 2017, decided on 3rd October, 2017.

Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----S. 119---Constitution of Pakistan, Arts. 123, 129, 130 & 132---Development funds---Distribution---Chief Minister, powers of---Scope---Petitioner, Member of Provincial Assembly, was aggrieved of dropping of Annual Development Program Scheme as funds were not allocated for the projects---Validity---Chief Minister had no authority or discretion vested in him to individually disapprove, discontinue or drop a development scheme from Annual Development Plan once same was approved and assented to by Provincial Legislature---Decisions of Chief Minister were without lawful authority and of no legal effect whereby Annual Development Program Schemes in question were dropped---Discretion to drop or discontinue a development scheme after its approval by Provincial Assembly, vested in the Cabinet---Cabinet was not only bound to assign reasons but was to record plausible justifications in writing for dropping any such scheme---High Court directed to place a part of Annual Development Program Scheme in question before Cabinet for reconsideration and restored the remaining part---Constitutional petition was allowed accordingly.

Wali Muhammad's case 2018 CLC 134; Action against distribution of development funds by Ex-Prime Minister Raja Pervaiz Ashraf PLD 2014 SC 131 and Mustafa Impex's case PLD 2016 SC 808 ref.

Shumail Ahmad Butt for Petitioner.

Waqar Ahmad Khan, A.A/G. and F.M. Sabir and Sabah-ud-Din Khattak for Respondents.

P L D 2018 Peshawar 94

Before Yahya Afridi C.J. and Ijaz Anwar, J

SAIFULLAH MUHIB KAKAKHEL---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 7 others---Respondents

Writ Petition No.387-P of 2017, decided on 26th October, 2017.

Hospital Waste Management Rules, 2005---

----Preamble---Hospital waste---Environment hazard---Petitioner was aggrieved of disposal and handling of medical/clinical/hospital waste which caused hazards in environment---High Court keeping in view the alarming state of affairs sought response of Provincial Government which report was submitted by Additional Director-General, Health Services---Recommendations of authorities established that medical, clinical hospital waste in the city was not being dealt with in accordance with bare minimum environmental standards and warranted urgent corrective attention---High Court directed Health Department to deliver with due acknowledgment receipts 'Health Care Standards' with one exclusive for 'Infection Control, Hygiene and Waste Management, Safe and Appropriate Environment' to all hospitals in the city---High Court issued elaborate directions to the Authorities/Health Department to handle the issues of hospital waste and environmental hazards caused thereby.

Petitioner in person.

Muhammad Riaz, Addl. A.G., for Provincial Government, Mansoor Tariq, Assistant Attorney General for Federation.

Khalid Rehman and Javed Iqbal Gulbela for Respondent No.4.

Zartaj Anwar for Respondent No.3.

Dr. Muhammad Bashir, DG, EPA and Mumtaz Ali, SDO Irrigation, Peshawar.

P L D 2018 Peshawar 101

Before Waqar Ahmad Seth and Musarrat Hilali, J

UNIVERSITY OF SWAT through Registrar---Petitioner

Versys

DIRECTOR ANTI-CORRUPTION, KHYBER PAKHTUNKHWA and 4 others---Respondents

Writ Petition No.1522-P of 2015, decided on 23rd November, 2017.

(a) Interpretation of statutes---

----Words of statute---Scope---If words of statute are themselves precise and unambiguous, nothing more is necessary than to expound those words in their natural and ordinary sense.

(b) Constitution of Pakistan---

----Art. 247(4)---University of Swat Regulation (XI of 2010), Preamble---Provincially Administered Tribal Areas---Provincial Anti-Corruption Establishment--- Jurisdiction--- Scope--- Petitioner/ University was aggrieved of initiation of inquiries and interrogations by Provincial Anti-Corruption Establishment and contended that inquiry was person specific and the same had been dropped as Vice-Chancellor of the University had completed his tenure---Validity---University of Swat was established under University of Swat Regulation, 2010, and the same was issued by Governor with the approval of the President in terms of Art. 247(4) of the Constitution---Provincial Government never challenged University of Swat Regulation, 2010, that either Governor had no jurisdiction to issue the Regulation or the same was ultra vires the Constitution---Authorities could not by-pass Constitutional bar which was explicit and absolute---Contention of petitioner/University had no legal basis as inquiry was initiated against Vice-Chancellor of Swat University which was located in Provincially Administered Tribal Area where Prevention of Corruption Act, 1947 was not extended as was required under Art. 247(4) of the Constitution---Any interference by Provincial Anti-Corruption Establishment in such areas in absence of explicit orders was unconstitutional---Constitutional petition was allowed in circumstances.

Abdul Latif Afridi for Petitioner.

Syed Qaiser Ali Shah, A.A.G. for Respondents.

P L D 2018 Peshawar 105

Before Ikramullah Khan and Qalandar Ali Khan, JJ

ARBAB MUHAMMAD USMAN KHAN, PRESIDENT PESHAWAR HIGH COURT BAR ASSOCIATION, PESHAWAR---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Sectretary and 3 others---Respondents

Writ Petition No.2479-P of 2017, decided on 1st March, 2018.

Khyber Pakhtunkhwa Ehtesab Commission Act (I of 2014)-

----S. 6---High Court (Lahore) Rules and Orders Vol. V, Chap. 10---Constitution of Pakistan. Art.10-A---Ehtesab Commission---Constitution of Selection Committee consisting of Judges of the Administration Committee of High Court and Advocate-General--Administration Committee of High Court---Appointment of officials/staff of Ehtesab Commission through Administration Committee of High Court---Involvement of judiciary in executive/administrative function of government, Separation of judiciary from executive---Scope---Provincial Government introduced amendment in Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 whereby Selection Committee consisting of Judges of Administration Committee of the High Court and Advocate-General was constituted for appointment of staff of Ehtesab Commission---Validity---Administration Committee of High Court (Peshawar) was only meant for disposal of internal executive and administrative business of High Court and Courts subordinate thereto---Said Committee could not be involved in outside selection process of government departments/institutions which were amenable to constitutional jurisdiction of High Court---High Court might become subject of controversy and criticism of general public for executive/administrative job/function if appointment of officials of Ehtesab Commission was made through it---Judiciary had been separated from Executive as a consequence of fulfillment of a constitutional requirement---Impugned amendment in Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 was made against the trichotomy of powers envisaged in the Constitution---Fundamental rights of citizens to have access to impartial and fair justice had been violated through the impugned amendment---Provincial Government was advised by the High Court to reconsider/revisit the impugned amendment in the interest of good governance---Constitutional petition was allowed in circumstances.

Petitioner in person.

Mujahid Ali Khan, A.A.G. for Respondents.

P L D 2018 Peshawar 113

Before Yahya Afridi, C.J. and Syed Afsar Shah, J

BALDIVE KUMAR---Petitioner

Versus

ASAD QAISER, SPEAKER PROVINCIAL ASSEMBLY KHYBER PAKHTUNKHWA and 5 others---Respondents

C.O.C. No.163-P in Writ Petition No.51-P of 2018, decided on 17th May, 2018.

(a) Constitution of Pakistan---

----Art. 69---Courts not to inquire into proceedings of Parliament (Majlis-e-Shoora)---Scope---Strict interpretation of the word 'proceedings' in Art. 69 of the Constitution rendering scope for Courts to exercise their jurisdiction---High Court observed that the Courts should revisit such issue, and consider not to strictly construe the word "proceedings" provided in Art. 69 of the Constitution; that this would not only bolster the principle of Trichotomy of power engrained in the Constitution, but also ensure that political questions were resolved outside Courts.

(b) Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988 ---

----R. 6---Constitution of Pakistan, Arts. 65, 69 & 204---Contempt of Court Ordinance (V of 2003), S. 3---Member of Provincial Assembly (petitioner) confined in prison as under trial prisoner---Directions issued by the High Court to the Speaker of the Provincial Assembly to issue order of production of the petitioner in order to administer Oath to him in the first coming session of the Provincial Assembly, if it was not already in session; to allow the petitioner to cast his vote for the election of Senate, and to issue production order, on the day of Senate election in order to ensure presence of petitioner for such purpose---Petitioner moved contempt petition against the Speaker and relevant members of the Provincial Assembly for not honouring the directions of the High Court, and contended that directions of the High Court meant that Speaker could administer the oath to the petitioner, once he entered the building of the Provincial Assembly---Speaker conversely contended that oath to the petitioner could only be administered before the Provincial Assembly, when it was in session having the requisite quorum---Validity---Oath to be administered to the elected member had to be made before the Provincial Assembly---Word 'before' simply meant, "in front of" or "in the presence of", and this could only be before the members of the Provincial Assembly, when it was in session having the requisite quorum provided under the Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988---Admittedly, the Speaker issued the order of production of the petitioner, and as a result thereof he was brought to the Provincial Assembly---Events that happened after the petitioner was called and he entered the Provincial Assembly building, was beyond the scope of the contempt proceedings, as neither any specific direction was rendered nor were the internal proceedings of the House justiciable before the High Court under Art. 69 of the Constitution---Furthermore as the petitioner had not been administered Oath as member of the Provincial Assembly, he could not sit in the Assembly and possibly participate in the election to the Senate under Art.65 of the Constitution---Substantial compliance with directions of the High Court was carried out by the Speaker of Provincial Assembly, and no case for contempt was, thus, made out---Notices for Contempt of Court were recalled accordingly.

(c) Words and phrases---

----'Before'---Meaning.

The Australian Oxford Dictionary; Concise Oxford English Dictionary and Chambers 21st Century Dictionary ref.

(d) Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988 ---

----R. 12---Constitution of Pakistan, Arts. 54, 109(2), 127 & 130---Summoning of Provincial Assembly---Powers of the Speaker of the Provincial Assembly---Scope---Summoning of Provincial Assembly was beyond the mandate of authority vested in the Speaker under R.12 of the Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988---Under Art.54 read with Art. 127 of the Constitution, the Speaker was bound to summon the Provincial Assembly only on requisition signed by not less than 1/4th of the total members of the Provincial Assembly---Provincial Governor was vested with the authority to summon the Provincial Assembly under various circumstances provided under Arts. 109, 130(2) & Art. 54(1) of the Constitution.

Mohib Jan Salarzi for Petitioner.

Qazi Muhammad Anwar and Syed Qaiser Ali Shah, A.A.G. for Respondents No.1.

Ghulam Mohyuddin Malik for Respondent No.2

Respndent No.3 in person.

Muhammad Muazzam Butt for Respondents Nos.4 to 6.

P L D 2018 Peshawar 121

Before Rooh-ul-Amin Khan, J

QAISER---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Q.P. No.96-P of 2017, decided on 19th March, 2018.

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

----Ss. 561-A---Inherent powers of High Court---Object---Object of provision of S.561-A, Cr.P.C. was to enable the Court to make such orders, which were necessary to give effect to the order under Cr.P.C. or to prevent the abuse of process of court or otherwise to secure the ends of justice.

Bashir v. State PLD 1991 SC 1145 ref.

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

----Ss. 397 & 561-A---Sentence on offender already sentenced for another offence---Scope---Prosecution case was that petitioner was convicted under S.9(c) Control of Narcotic Substances Act, 1997 and sentenced to under go five years imprisonment; accused in another case was also convicted under S.9(c) of the said Act, and sentenced to undergo one year imprisonment---Petitioner, after conviction, submitted application under S.397, Cr.P.C. before the Trial Court with a request that the sentences of the two cases be directed to run concurrently, but was dismissed---Validity---Said provision of law described that where accused, though undergoing a sentence, yet appearing before the court in another case, the subsequent sentence would commence at the expiration of the imprisonment---Legislature insisted, through said provision, that a criminal would undergoing punishment for every offence, awarded through separate trial which could only be possible if subsequent punishment would run after expiration of earlier one---One of basic concepts of punishment being reformation, Court, trying a person undergoing a sentence, had been vested with a discretion to competently and legally change such order of the running of the sentence---Subsequently awarded sentence for imprisonment could be ordered to run concurrently with that sentence of imprisonment which a person was already undergoing---Order about the subsequent sentence to run concurrenly with already undergoing sentence, was an exception to normal course---Such discretion could be exercised after considering the conduct of the convict, heinousness of crime and injury to the individual and the society and that all offences were akin or intimately connected with each other---In the present case, the petitioner had sought concurrent running of sentences, awarded to him through different trials---Involvement of the petitioner in offences of similar nature, committed at different times, showed his attitude of not mending his way---Petitoner had been found guilty of offences, affecting the society at-large, therefore, he had failed to bring his case within the exception where a diviation to normal course was resorted---Petition under S.561-A, Cr.P.C. being meritless, was dismissed.

Ali Akber Shah v. State PLD 2004 Kar. 589; Ali Khan Kakar v. Hammad Abbasi 2012 SCMR 334 and Ghulam Farid v. State 2013 SCMR 16 rel.

Shahid Zaman for Petitioner.

Arshad Ahmad, A.A.G. for the State.

P L D 2018 Peshawar 127

Before Syed Muhammad Attique Shah, J

MUHAMMAD ARIF---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision Petition No.31-A of 2014, decided on 30th November, 2017.

Criminal Procedure Code (V of 1898)---

----S. 540-A---Exemption from personal appearance---Application of accused, during trial, for exemption from personal appearance and representation through counsel was dismissed by the Trial Court---Validity---Application in question was filed after about 5 months from framing of charge against accused---Exemption was sought on the ground that petitioner being student of Matric was getting education in a "Madrassa"---Trial Court allowed the application for exemption for one day only, but thereafter the accused failed to appear before the court---Grant of exemption to accused from personal appearance during trial was discretionary in nature; depending upon the satisfaction of the Court regarding incapability of accused to appear---Accused, must be present before the court at the time of seeking such exemption---Accused, after obtaining one day's exemption, failed to appear before the court---Petitioner could not point out any illegality or material irregularity in the impugned order of the Trial Court, refusing exemption from personal appearance during the trial---Petition was dismissed.

Shah Zaman's case PLD 1993 Pesh. 155; Dr. Ali Yahya's case 1989 PCr.LJ 1652 and Haji Aurangzeb v. Mushtaq Ahmad and another PLD 2004 SC 160 ref.

Muhammad Wajid Khan for Petitioner.

Sardar Muhammad Asif, Assistant Advocate General for the State.

P L D 2018 Peshawar 131

Before Syed Afsar Shah and Muhammad Ayub Khan, JJ

NIAZ BEEN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.323-P of 2017 in Criminal Application No.341-P of 2014, decided on 3rd May, 2018.

Criminal Procedure Code (V of 1898)---

----S.426(2-B)---Anti-Terrorism Act (XXV of 1997), Ss.7 & 25(8)---Penal Code (XLV of 1860), Ss. 324, 353 & 34---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Suspension of sentence and grant of bail, application for---Accused, who was convicted and sentenced by the Anti-Terrorism Court, filed appeal before High Court, which was dismissed and leave to appeal against order of High Court was granted by the Supreme Court---Pending appeal before the Supreme Court, accused filed application under S.426(2-B), Cr.P.C., before the High Court for suspension of sentences and grant of bail till the final decision of appeal pending before the Supreme Court---Under the provision of subsection (8) of S.25 of Anti-Terrorism Act, 1997, sentences awarded by a Special Court, could not be suspended by High Court during the pendency of appeal---Provisions of S.426(2-B), Cr.P.C., had provided that for the suspension of sentence, granting leave to appeal by the Supreme Court was one of the conditions, but the sentence, could only be suspended, if the High Court would think it fit, meaning thereby that discretion still rested with the High Court---In the present case, the first requirement (granting leave) to avail the remedy under S.426(2-B), Cr.P.C., was satisfied, but at the same time, accused was required to show that during the pendency of appeal before the Supreme Court, appeal could not be disposed of within the stipulated period; the judgment sought to be suspended, suffered from legal error and accused was on bail during the appeal before the High Court---While dealing with an application under S.426(2-B), Cr.P.C., neither the merits of the case nor reappraisal of the evidence was permitted---In the present case, during the pendency of appeal before High Court, accused were not on bail---Accused/applicants, had not been able to show good grounds to give them relief by adhering to the provisions of S.426(2-B), Cr.P.C.---Application was dismissed in circumstances.

Irfan and another v. Muhammad Yousaf 2016 SCMR 1190 ref.

Hizar Hayat Daudzai for Applicants.

Muhammad Riaz Khan, A.A.G. for the State.

P L D 2018 Peshawar 138

Before Syed Muhammad Attique Shah, J

Mst. NAZIMA BIBI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.322-A of 2018, decided on 4th May, 2018.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302 & 109--- Qatl-i-amd, abetment---Bail, grant of---Female accused had given birth to a male child in the jail premises---Relevant law was that child should not suffer for an offence, which he had not committed---Jail life was incompatible with environment necessary for a suckling baby---Accused lady deserved to be released on bail on that score alone---Grant of bail, would not amount to acquittal of accused as the custody of accused was shifted from judicial lock up to the hands of sureties, responsible to produce accused before the court as and when required---Accused was admitted to bail in circumstances.

1996 SCMR 973 and 1998 MLD 1350 ref.

Ms. Rabia Gul Awan for Petitioner.

Raja Muhammad Zubair, A.A.G. for the State and (Complainant) by Muhammad Javed Khan Turk.

P L D 2018 Peshawar 140

Before Syed Muhammad Attique Shah and Lal Jan Khattak, JJ

RUSTAM KHAN---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.739 of 2017, decided on 6th December, 2017.

Penal Code (XLV of 1860)---

----Ss. 419, 420, 468, 471 & 477---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), Ss.195 & 476---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine or forged document, fraudulent cancellation, destruction of will, corruption---Constitutional petition for quashing of FIR---Main stress of accused persons was that the very registration of the impugned FIR was illegal as complainant was not competent under the law to get the same registered under S.195(1), Cr.P.C., as only the Presiding Officer of the concerned court was competent to get the FIR registered against the accused persons---Section 195(1)(c) of Cr.P.C., did not place any embargo upon reporting of alleged offence to the Police for registration of FIR with regard to conducting of investigation in respect of such an allegation---Said provision of law, in circumstances, did not impose any prohibition on registration of criminal case---No bar existed, either on the registration of an FIR or carrying out investigation and taking all steps prior to the stage when the court could take cognizance---If, prima facie, an offence had been committed, the ordinary course of trial before the court was not to be allowed to be defeated by resorting to the constitutional jurisdiction of High Court---Constitutional petition being bereft of merits was dismissed, in circumstances.

Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Dr.Ghulam Mustafa v. State 2008 SCMR 76 and Director General Anti-Corruption Establishment, Lahore v. Muhammad Akram Khan PLD 2013 SC 401 ref.

Abdur Rauf Khan Jadoon for Petitioner.

Yasir Zahoor Abbasi and Javed Tanoli for Respondents.

P L D 2018 Peshawar 144

Befpre Rooh-ul-Amin Khan and Muhammad Ayub Khan, JJ

SANOBAR and 2 others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.291-P of 2015, decided on 9th May, 2018

Penal Code (XLV of 1860)---

----Ss. 302, 324, 34 & 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, rioting---Cross version in two FIRs---Record showed that another FIR under Ss.324 & 34, P.P.C., had been registered about the same incident on the report of one of the accused persons wherein complainant party had been nominated as accused---Both the FIRs showed that the date and place of occurrence as well as parties were the same with slight variation in the time of occurrence---Record of said other FIR though was requisitioned by the Trial Court, but the trial of both the cases were not conducted side by side---Trial Court had found that said other FIR, was not a cross-case of the earlier FIR, on the ground that time of occurrence in the two FIRs varied---Validity---Date and place of occurrence as well as parties in both the FIRs being the same, mere slight variation in the time of occurrence, could not be convincing ground for forming an opinion that the cases were not cross cases---Trial in both the cases, was to be conducted side by side as in such like cases, the prime question was the determination of aggressor and aggressed upon---Such question, could not be determined, without analysis of the evidence of both the cases---Trial Court without conducing trial in the case of said other FIR in a haphazard manner dealt with the trial of accused persons and recorded their convictions and sentences, which were against the practice in cases of counter-versions---Salutory practice in trial of two criminal cases relating to the same incident, was that both the cases were to be tried and disposed of by the same court by pronouncing judgments on the same day---Two different versions of the same incident, resulting in two criminal cases, were compendiously called, "case and counter case" or "cross cases"---Fair procedure, which was to be adopted, was that the Trial Court had conducted the trial in both the cases side by side---Impugned judgment was set aside and case was remanded to the Trial Court for decision afresh, after conclusion of trial in the cross FIRs---Trial Court, would on conclusion of trial in the said other FIR and hearing the arguments of parties, would pronounce judgment in both the cases simultaneously.

Sahibzada Asadullah for Appellants.

Mian Arshad Jan, AAG for the State.

Hussian Ali for Respondent.

P L D 2018 Peshawar 147

Before Yahya Afridi, C.J. and Rooh-ul-Amin Khan, J

ABID ALI---Petitioner

Versus

IBRAR MUHAMMAD and 2 others---Respondents

Writ Petition No.705-P of 2018, decided on 17th April, 2018.

Penal Code (XLV of 1860)---

----S. 161---Prevention of Corruption Act (II of 1947), Ss.1(2) & 5(2)---Constitution of Pakistan, Arts.268 & 247---Centerally Administered Tribal Areas (Employees' Status) Order, 1972 [P.O. 13 of 1972]---Preamble---Taking illegal gratification by public servant---Appreciation of evidence---FIR registered under S.161, P.P.C. and S.5(2) Prevention of Corruption Act, 1947, had been challenged by accused, being illegal, praying that same be quashed---Contention of accused was that he serving in Federally Administered Tribal Areas (FATA) could not be proceeded under Prevention of Corruption Act, 1947 as same had not been extended to FATA within the contemplation of Art.247 of the Constitution was repelled---Held, alleged offence of taking bribe took place in the office of accused, situated in the settled area where Prevention of Corruption Act, 1947 and West Pakistan Anti-Corruption Establishment Ordinance, 1961 had been extended which was protected under Art. 268 of the Constitution---Once a law had been extended to the Tribal Areas, same did not require any further extension---Prevention of Corruption Act, 1947 was a person specific law---Condition precedent to the applicability of charging provisions of Prevention of Corruption Act, 1947 were; to all the citizens in the service of Government, wherever they could be posted---Accused being a citizen of Pakistan and also in service of the Provincial Government, fulfilled both the conditions precedent to be proceeded under the Act---Accused, could not absolve himself of the charge of criminal misconduct under S.5(2) of the Prevention of Corruption Act, 1947 on the mere ground that said law had not been extended to 'FATA' where he was serving---Constitutional petition being bereft of merit, was dismissed, in circumstances.

Zewar Khan's case PLD 1969 SC 485; Abdul Jabbar's case PLD 2005 SC 246 and Abdul Haq Khan's case PLD 2017 SC 105 ref.

Akbar Khan for Petitioner.

Qaiser Ali Shah, AAG for the State.

P L D 2018 Peshawar 154

Before Shakeel Ahmad, J

GOVERNMENT OF N.W.F.P. through Secretary Works and Services Department Peshawar and another---Petitioners

Versus

Messrs CEMCON (PRIVATE) LTD. through Managing Director---Respondent

C.R. No.906 of 2009, decided on 29th March, 2018.

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

----O. IX, R.13, SS. 12(2) & 151---Ex parte decree, setting aside of---Scope---Petitioner moved an application under S.151, C.P.C. read with other enabling provisions of law for setting aside ex parte judgment and decree which was dismissed on merits---Applicant had moved revision petition with similar prayer alleging that impugned judgment and decree had been obtained by playing fraud---Various remedies were available to the aggrieved person where suit was decreed ex parte---Petiitonere in the present case had exhausted the remedy by filing an application under O.IX, R.13, C.P.C. read with othe renabling provisions---Applicant on the same ground could not be permitted to re-agitate the same issue by means of application under S.12(2), C.P.C.---Provisions of S.12(2), C.P.C. were not intended to be a duplication of the proceedings provided under O.IX, R.13, C.P.C.---Revision was dismissed in circumstances.

Ghulam Sarwar v. Muhammad Hassain and others 1987 SCMR 1440 and Mrs. Amna Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 rel.

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

----Ss. 96, 114 & 12(2) & O.XLVII, R.1 & O.IX, R.13---Ex parte decree, remedieis against---Scope---Remedies against ex parte decree were applications under O.IX, R.13 & S.114 read with O.XLVII, C.P.C.---Appeal under S.96 and application under S.12(2), C.P.C. against an ex parte judgment and decree could be filed on the grounds that it was obtained by fraud, misrepresentation and want of jurisdiction etc.

Malik Akhtar Hussain Awan, A.A.G. for Petitioner.

Abdul Sattar Khan for Respondent.

P L D 2018 Peshawar 157

Before Shakeel Ahmad, J

KALIMULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.62-B of 2017, decided on 12th April, 2018.

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

----S. 172---Diary of proceedings in investigation---Object of---Section 172, Cr.P.C., made it mandatory for Investigating Officer to enter day-to-day proceedings of the investigation in a special diary, setting forth the time at which the information reached to him; the time at which he begun and closed his investigation; the place or the places visited by him and the statement of the circumstances ascertained through his investigation---Such special Diary, could be used at the trial or inquiry, not as evidence in the case, but to aid the court in such inquiry or trial---Object of S.172(2), Cr.P.C., was to enable the court to direct Police Officer, while giving evidence to refresh his memory from the notes made by him in course of his investigation of the case or to question him as to contradictions, which could appear between the statement so recorded and the evidence he was giving in the court---Court, could also use such diaries in course of trial for the purpose of clearing up obscurities in evidence or bringing out relevant facts, which court thought were material in fair trial---Diary, according to S.172, Cr.P.C, could be used for suggestion of questions to witness when the court considered that there was reasonable ground for so doing or to suggest means for further clarity by legal evidence, points which needed clarification.

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

----S.172---Qanun-e-Shahadat (10 of 1984), Arts.140, 155 & 157---Investigation of case---Cross-examination of a witness as to his previous statement in writing---Diary of proceedings in investigation---Scope---Counsel of accused, intended to confront Investigating Officer from the case Diaries---Trial Court denied the request---Validity---Investigating Officer, not only occupied a key role in the criminal justice system, but was also the most important witness, who collected evidence and placed the same before the court---Investigating Officer, could refresh his memory before deposing in the court---Article 140 of Qanun-e-Shahadat, 1984 conferred a right upon accused to cross-examine the witness as to his previous statement made by him in writing or reduced into writing---Investigating Officer, in the present case, was under cross-examination before the Trial Court; nothing was on record to show that he was examined without consulation of Police file---Once, Investigating Officer, consulted the Police file, he was amenable to cross-examination---If the Diary was used by Investigating Officer to refresh his memory, Art.140 of Qanun-e-Shahadat, 1984 would apply and the adverse party must be shown the entry and could cross-examine the witness on the same; because, the object was to arrive at just and proper decision of the case---No prohibition existed against the court permitting in its discretion the defence counsel to see the portion of the Police Diary, which the court would consider fit in the interest of justice---Trial Court was directed to allow the defence Counsel to cross-examine the Investigating Officer, as provided by S.172(2), Cr.P.C. and Art.157 of Qanun-e-Shahadat, 1984.

Abdul Sultan v. The State through AG, NWFP 2008 SCMR 684 and AIR 1953 Mad. 179 ref.

Muhammad Yaqoob Khan Marwat for Petitioner.

Shahid Hameed Qureshi, Addl. A.G. for the State.

Hujjatullah Khan Marwat for the Complainant.

P L D 2018 Peshawar 162

Before Syed Afsar Shah and Syed Muhammad Attique Shah, JJ

TAHIR JAVED---Petitioner

Versus

The STATE through A.G. KPK Peshawar and others---Respondents

Writ Petition No.1129-A of 2016, decided on 3rd July, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 156 & 173---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, act of terrorism, possessing explosive substance---Competence of Police authorities to entrust a criminal case for re-investigation after submission of complete challan in the court---Scope---Held, that the Police authorities had the powers to re-investigate a case, if facts of the case so required---No bar existed for re-investigation of a criminal case, even after submission of final report under S.173, Cr.P.C.; however, re-investigation could not be allowed when a criminal case had been finally disposed of by the Trial Court.

Raja Khurshid Ahmad v. Muhammad Bilal and others 2014 SCMR 474 and Bahadur Khan v. Muhammad Azam and 8 others 2006 SCMR 373 ref.

Fazal-I-Haq Abbasi for Petitioner.

Raja Muhammad Zubair, A.A.G. and Atif Ali Jadoon for Respondents/the State.

P L D 2018 Peshawar 165

Before Rooh-ul-Amin Khan and Syed Afsar Shah, JJ

Dr. SHAMIM S. MAJID---Petitioner

Versus

MILITARY ESTATE OFFICER, PESHAWAR CANTT. and 5 others---Respondents

Writ Petition No.67-P of 2018, decided on 24th April, 2018.

Civil Procedure Code (V of 1908)---

----O. XXI, R.11(2)---Constitution of Pakistan, Arts. 184 & 187(2)---Petition under Art.187(2) of the Constitution---Judgment by Supreme Court---Execution of decree---Petitioner claimed that matter was finally decided in his favour by the Supreme Court, therefore, he sought execution of the order passed by Supreme Court---Validity---Decree of first instance merged into appellate decree, which also included a decree passed in revision and the same was capable of execution by Court of first instance---Merger was to take place regardless of whether decree of first Court was affirmed, reversed or modified by appellate, revisional Court or the Supreme Court---For execution of decree varied or modified by Supreme Corut, Trial Court had jurisdiction to do so on original side as it was competent for such purpose---Provision of Art.187(2) of the Constitution could not be read in isolation rather it had to be seen in juxtaposition with Art.184 of the Constitution---Petitioner by invoking provision of Art.187(2) of the Constitution misconceived the situation, rather he had the remedy under Civil Procedure Code, 1908, to approach Court of competent jurisdiction in prescribed mode and manner---Petition under Art.187(2) of the Constitution was dismissed in circumstances.

Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt) Ltd. and others PLD 2014 SC 1 ref.

Qazi Muhammad Anwar for Petitioner.

Javed Yousafzai, Assistant Attorney General for Respondents Nos. 1, 4 and 5.

Ihsan Ullah for Respondents Nos. 3 and 4.

Imtiaz Ali for Respondent No.6.

P L D 2018 Peshawar 170

Before Syed Muhammad Attique Shah, J

RASHID ALI KHAN---Petiitoner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA and another---Respondents

Writ Petition No.895-B of 2016, decided on 4th May, 2017.

(a) Administration of justice---

----No one could be condemned unheard and no act or action which was detrimental against the right and interest of a person/persons could be passed without giving him prior notice and opportunity of hearing.

(b) Administration of justice---

----Maxim: audi alteram partem---Scope---Even if statutory law did not provide a right and opportunity of hearing before passing any action/order which was detrimental to the rights of a person/persons still it would be deemed that such right was available to the person/persons aggrieved---Such right could not be taken away from him/them on the ground that the authority under the law was not obliged to give him/them prior notice---Principles of natural justice "audi alteram partem" was to be read into every statute regardless of whether or not the same was contemplated in a statute/instrument governing proceedings.

2002 SCMR 1034 rel.

Syed Hamad Hussain Shah Gilani for Petitioner.

Raja Muhammad Zuhir Khan for Respondents.

P L D 2018 Peshawar 173

Before Mohammad Ibrahim Khan, J

MUHAMMAD JAN and another---Appellants

Versus

Mst. BACHA BEGUM alias BEGUM SHAHZAD-Respondents

R.F.A. No.60-M of 2016, decided on 21st September, 2017.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.VI, R.17 & O.VII, R.11---Agreement to sell---Suit for declaration, permanent injunction and possession---Decree for specific performance, grant of---Plaint, rejection of---Scope---Trial Court rejected the plaint with the observation that suit was not maintainable---Validity---Plaintiffs sought declaration and possession on the basis of agreement to sell---Plaintiffs entered into agreement to sell with the defendants and they were entitled for grant of decree for specific performance---Defendants had no objection to the form of suit---If decree was passed then same would be specifically for specific performance of contract subject to payment of all the required fee for its registration---One of the defendants was minor who had been represented by guardian ad-litem---Final transaction did not mention the name of minor and remaining defendants never sold out their shares in the legacy---Decree for declaration for specific performance would not affect the right of all the legal heirs of the deceased---Plaintiffs could introduce prayer for specific performace through amendment in the plaint---Prayers for possession and recovey of rent did not fall within the ambit of O.VII, R.11, C.P.C.---Impugned order passed by the Trial Court was set aside---Parties were directred to appear before the Trial Court for further proceedings in accordance with law---Appeal was allowed in circumstances.

Muhammad Saeed v. Nahid Shagufta and 3 others PLD 1990 Lah. 467; Khalid Khan v. Haji Muhammad Anwar 2015 YLR 1845; Gohar Rehman v. Riaz Muhammad 2011 YLR 888; Muhammad Iqbal and others v. Mst. Baseerat and others 2017 SCMR 347; Noor Din and another v. Additional District Judge Lahore and others 2014 SCMR 513 and Sher Khan through LRs. v. Gul Zar Khan 2016 CLC 663 rel.

Zia ur Rehman, Ikram Khan and Habib-ur-Rehman for Appellants.

Syed Abdul Haq for Respondents.

P L D 2018 Peshawar 179

Before Syed Muhammad Attique Shah, J

RUSTAM KHAN and another---Petitioners

Versus

TEHSIL COUNCIL BALAKOT through Presiding Officer and others---Respondnets

Writ Petition No.996-A of 2017, decided on 31st October, 2017.

(a) Tehsil Council (Procedure and Conduct of Business and Meetings) Bye-Laws, 2015---

----Cl. 13---Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013), Ss.84 & 113---Tehsil Nazim and Naib Nazim---Proceedings of no-confidence motion---Procedure---Contention of petitioners (Nazims) was that they were neither served with any notice nor they were provided the agenda for the meeting---Validity---Tehsil Council (Procedure and Conduct of Business and Meetings) Bye-Laws, 2015 had statutory force---Time frame provided in Cl. 13(5) of Tehsil Council (Procedure and Conduct of Business and Meetings) Bye-Laws, 2015 was mandatory as same had been couched in negative language---Meeting of Tehsil Council was held on 9-10-2017 at 11.00 a.m. which was presided over by the Presiding Officer and on the same day resolution of no-confidence was passed against the petitioners---When meeting of Tehsil Council was convened at short notice or in case of emergency then Secretay Tehsil Council was to intimate the date, time and place of said meeting to the members through quick means of communication---Petitioners had not been served by Secretry Tehsil Council with any notice with regard to meeting of the Council---When no-confidence motion was moved, Presiding Officer, after considering the state of business was to allot a day or days for discussion on the said resolution---No-confidence resolution was not to be voted upon before the expiry of three days or later then seven days from the day on which resolution was moved in the Council---Proceedings of no-confidence motion, in the present case, had been conducted in disregard and in violation of Cl.13 of Tehsil Council (Procedure and Conduct of Business and Meetings) Bye-Laws, 2015---When law required an act to be done in a particular manner, it had to be done in that manner alone---Petitioners (Nazims) had not been dealt with in accordance with law in the case---Matter was referred back to the Presiding Officer to place the resolution of no-confidnece before Tehsil Council for further proceedings in accordance with Cl.13 of the Tehsil Council (Procedure and Conduct of Business and Meetings) Bye-Law, 2015---Constitutional petition was allowed accordingly.

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

(b) Constitution of Pakistan-

----Art. 4---All individuals to be dealt with in accordance with law.

(c) Administration of justice--

----When law required a thing to be done in a particular manner, it must be done in that manner alone.

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

Munir Hussian Lughmani for Petitioners.

Waqar Ahmad Khan, Additional Advocate-General, Sardar Nazir Aslam and Jehangir Jadoon for Respondents.

P L D 2018 Peshawar 186

Before Mohammad Ibrahim Khan and Ishtiaq Ibrahim, JJ

SULEMAN---Petitioner

Versus

THE STATE and another---Respondents

J. Cr.A. No.179-M of 2014, decided on 10th October, 1917.

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

----Ss. 302 & 377---Juvenile Justice System Ordinance (XXII of 2000), S.7---Constitution of Pakistan, Art.10-A---Qatl-i-amd, unnatural offence---Determination of age of accused person claiming himself to be minor---Fair trial---Accused was charged that he had killed the brother of complainant by pressing his neck as well as hitting his head with something apart from subjecting him to sodomy---Accused, in the present case, had taken the plea of his age with the contention that he was hardly seventeen years of age at the time of alleged offence---Trial Court had not complied the provision of S.7 of the Juvenile Justice System Ordinance, 2000---Record showed that accused was unable to engage a counsel due to his poor financial condition and none of the advocates was ready to defend the accused---When the accused was unable to engage a counsel then in such a situation, heavy duty laid on the Trial Court to adjudge the matter with care and caution---In the present case, accused was unrepresented and was defended by consel engaged by the court through a NGO---Award of death sentence to the accused, in circumstances, was not proper justice and court was required to take utmost care---Circumstnces established that right of fair trial could not be given to the accused---Appel was allowed by setting aside the judgment passed by their Trial Court and case was remanded with the direction to first engage a counsel for the accused under High Court Rules and Orders, and thereafter conduct inquiry to determine the age of accused and then decide the matter afresh.

Muhammad Hussain v. State (Govt. of NCT),Delhi 2012 SCMR 1610 rel.

(b) Juvenile Justice System Ordinance (XXII of 2000)---

----S. 7---Detemination of age of accused---Scope---Whenever a question arose as to whether the accused was a juvenile offender, the court was required to hold an inquiry into the matter---Not only to take into consideration the opinion of Medical Board, but was supposed to make effors to clarify the anomaly of age by summoning the NADRA officials and school record, if any, to ascertain whether the accused was above eighteen years or otherwise at the relevant time.

Muhammad Aslam and others v. The State and another PLD 2009 SC 777 rel.

(c) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Accused was charge with heinous offence---Despite the nature of the offence whether heinous, brutal or sensational, accused had inalienable Constitutional Right to have fair trial before a competent court.

Aurangzeb for Petitioner.

Rafiq Ahmad,Assistant A.G. for Respondents.

P L D 2018 Peshawar 192

Before Rooh-ul-Amin Khan and Ikramullah Khan, JJ

QUARBAN ALI KHAN---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Peshawar and others---Respondents

Writ Petition No.3166-P of 2017, decided on 17th May, 2018.

(a) Interpretation of statutes---

----Constitutional power---Scope---Ordinary legislatuion can neither exclude nor limit or abridge a Constitutional power or jurisdiction in any manner.

(b) Khyber Pakistunkhwa Establishment of District Development Advisory Committee Act (IV of 1989)---

----S. 3---Constitution of Pakistan, Arts. 120, 122, 129, 139 & 140-A----Development project---Provincial Government, responsibility of---Petitioner was Member Provincial Assembly (MPA) and was aggrieved of allocation of funds to persons not Members of Provincial Assembly to accomplish development projects---Plea raised by petitioner was that it was his prerogative to get such funds for the development---Validity---Constitution did not provide allocation of funds to elected members for developmental programs of the Province---Member Provincial Assembly/Member National Assembly, besides performing responsibility of legislation were under laden responsibility to manage matters of Provinces through Provincial Consolidated Fund and further to keep check over executive branch through control over financial matters---Function and authority of public respresentatives were not limited to traditional role of law which was not sufficient to good governance---When Development Scheme in a constituency were once approved by Assembly in terms of Arts. 120 to 123 of the Constitution, then government was bound to implement the same---Provincial government had no authority to allocate fund to any Member Provincial Assembly as grants and projects were area specific and not person specific---High Court declared notification as illegal and void ab initio vide which a focal person was nominated in the light of Khyber Pakhtunkhwa Establishment of District Devcelopment Advisory Committee Act, 1989 and same was set aside---High Court declined to issue any direction to release funds to the petitioner as Member Provincial Assembly as same had no Constitutional backing---Constitutional petition was disposed of accordingly.

(c) Constitution of Pakistan---

----Art. 140-A---Local bodies---Allocation of development funds to the Chief Minister, Ministers, Members of Provincial Assemblies---Permissibility---Scope.

The Constitution does not permit the allocation of developmental fund to the Chief Minister, Ministers and MPAs. They have responsibilities, besides legislation, to manage the financial matters of the Province through Provincial consolidated fund by identifying developmental scheme in their constituencies before preparation of Annual Budget. The executive authority is vested in government, but it shall be exercised without any discrimination viz irrespective of the affiliation of member with any political party. When the scheme, identified by any member is approved by the Provincial Assembly in the budget session, then the government is bound to execute it through concerned government department in letter and spirit.

By insertion of Article 140-A in the Constitution, the Provinces are given the mandate to develop political administration and financial responsibilities and authority to elected representatives of the local government, for which purpose the Province of Khyber Pakhtunkhwa has enacted Local Government Act, 2013, providing mechanism for local development. Blocking the allocation being contrary to the constitutional provision, which require sufficient particularity of each expenditure in the Annual Budget statement. Sections 4 and 5 of the Khyber Pakhtunkhwa Local Government Act, 2013 had lost their efficacy and applicability and can only be saved by reading it down.

There is no constitutional or legal provision enabling the Chief Minister to nominate an elected or non-elected person as focal person for supervision of developmental work in a Constituency. The Chief Minister being the Chief Executive of the Province and head of the Provincial government is confined by bond of his oath to promote social and economic well being of all the citizens of the Provinces, irrespective of their parties affiliation. If there is any practice of allocation of funds to MPAs or focal person at the sole discretion of the Chief Minister, the same is illegal and un-constitutional.

Suo Motu Case PLD 2014 SC 131 fol.

Wali Muhammad's case 2018 CLC 134 ref.

Abdul Latif Afridi and Khalid Anwar Afridi for Petitioner.

Waqar Ahmad, A.A.G. for Respondents.

Shumail Ahmad Butt, Amicus Curiae.

P L D 2018 Peshawar 207

Before Ikramullah Khan and Ishtiaq Ibrahim, JJ

Haji MUHAMMAD ARIF KHATTAK and 2 others---Appellants

Versus

CHAIRMAN/DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU and another---Respondent

Eh. Cr. A. No.12-P of 2017, decided on 8th May, 2018.

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

----S. 12---Phrase 'Where the reference under this order shall be sent by Chairman National Accountability Bureau, occurring in proviso to S.12, National Accountability Ordinance, 1999---Scope---Intention of legislature is that Chairman National Accountability Bureau can exercise his power to freeze any property belonging to accused or his relative or associate or a person on behalf of accused not exceeding 10 days at the stage where reference had not already been sent to the Court, otherwise last sentence in proviso itself would not have been used as 'Where the reference under this order shall be sent by Chairman National Accountability Bureau'.

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

----Ss. 12(a), first proviso & 13--- Appeal--- Term 'anytime' occurring in S.12, National Accountability Ordinance, 1999---Objection petition---Conditional order--- Freezing of property--- Furnishing of Bank guarantees---Appellants were owners of property which was frozen by Accountability Court against which they had filed objection petition---Accountability Court allowed objection petition subject to furnishing of Bank guarantees equal to the amount of loss allegedly caused by appellants---Validity---Provisions contained in S.12(a) of National Accountability Ordinance, 1999 authorized not only Chairman National Accountability Bureau but also the court to freeze the property at any time---Such power of court was also made conditional to exercise the same only when trying the accused under National Accountability Ordinance, 1999---Word 'any time' used for exercise of power either by Chairman or the Court in regards to freezing of property was subject to or to be read as at any time during investigation by Chairman National Accountability Bureau or at any time by court during course of trial---Word 'any time' did not empower court to freeze property before commencement of trial and likewise once an accused was sent for trial, then Chairman National Accountability Bureau became functus officio which was also well clarified by first proviso of S. 12 of National Accountability Ordinance, 1999---High Court set aside freezing order passed by the Chairman National Accountability Bureau and also judgment rendered by Accountability Court and directed that keeping in view provision of S. 12(a) of National Accountability Ordinance, 1999 and if deemed appropriate by the authorities, they may re-freeze property of appellants if reasonable grounds existed for exercise of power under S.12(a) of National Accountability Ordinance, 1999---Appeal was disposed of accordingly.

Khalid Aziz's case PLD 2003 Pesh. 94 and Shuja Khan Baloch's case PLD 2011 Isl. 25 rel.

Syed Mudassir Amin for Petitioners.

Umar Farooq ADPG for Respondents.

P L D 2018 Balochistan 1

Before Muhammad Noor Meskanzai, C.J., and Muhammad Hashim Khan Kakar, J

JUMA KHAN---Applicant

Versus

AYUB and 8 others---Respondents

Review Petition No.13 of 2014 in C.P. No.764 of 2013, decided on 7th August, 2017.

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

----S. 114 & O.XLVII, Rr.1 & 2---Review---Principles---Applicant sought review of order by virtue of which High Court had maintained the order of Trial Court allowing respondent/plaintiff to amend his pleadings regarding description of suit property---Validity---Firstly, powers exercisable under O.XLVII, R.1, C.P.C. were not unbridled, uncontrolled and unqualified---Jurisdiction could never be transgressed nor the barriers could be crossed---Conscious, deliberate and a reasoned judgment could not be called in question through the process of review either on the ground of erroneousness of decision or incorrectness of the conclusion; secondly, to press into service the provisions of O.XLVII, Rr.1 & 2, C.P.C. an applicant was required to specifically make out a case within the encompass of Rr.1 & 2 of O.XLVII, C.P.C., establishing that the judgment suffered from a patent error of law or fact apparent on the face of record followed by material consequences on the merits of the case; thirdly, philosophy of finality attached to the judgment always remained the paramount consideration with the aim to put an end to litigation, as the principle of finality firmly stood embedded in the judicial system and review was an exception to said fundamental principle, therefore, unless the circumstances justifying the application of Rr.1 & 2 of O.XLVII, C.P.C., exist, there remained no occasion for review of an order/judgment; fourthly, the error of fact or law should be certain, evident, patent and apparent on the face of the record and should not require any elaborate argument or extraneous matter to show its incorrectness and fifthly, an attempt to travel beyond the record in order to show that the judgment was erroneous or incorrect could never be a ground for review of the judgment because if a court applied its judicial mind to a point of fact and drew a conclusion after conscientious reasoning such a conclusion even if erroneous did not justify the maintainability of review application as it would be a case of appeal---Applicant, in the present case, had not got down to the brass-tacks of review as contained in and contemplated by the provisions of O.XLVII, Rr.1 & 2, C.P.C., and had failed to point out any error or mistake of fact or law even implied in nature on the face of record---Application for review was declined in circumstances.

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

----O. VI, R.17 & O.VII, R.3---Amendment of pleadings---Powers of Court---Scope---Legal requirement as contemplated by O.VII, R.3, C.P.C., obliged the plaintiff to mention the description of the property to sufficiently identify the disputed property either by boundaries or numbers in the record of settlement of survey---No ambiguity or difficulty was to exist in locating and determining the disputed property---To ascertain the disputed property with exactitude the court must make all efforts and while performing such duty, the court could call the parties to file better statements, amend the plaint and even require the parties to produce such evidence---To ask for an amendment was an inherent and vested right of a plaintiff subject to two conditions i.e. (i) the proposed amendment would not alter and change the character and complexion of the suit and (ii) all such amendments would be made as might be necessary for the purpose of determining the real questions in controversy between the parties and such right was governed by the provisions of O.VI, R. 17, C.P.C.---Any defect in the form of a suit would not culminate in dismissal of suit because all the rules of procedure were meant to foster the cause of justice---Court was bound to consider the request of amendment in a broader perspective and remain quite liberal and flexible while exercising jurisdiction under O.VI, R.17, C.P.C.---Record revealed that, in the present case, the amendment of pleadings was sought and accorded on grounds to lessen and reduce the area of disputed property and identify the reduced area by mentioning the boundaries of the disputed property---Plaintiff could reduce, restrict or lessen his claim i.e. withdraw from a large area or amount and confine the claim to a smaller area or lesser amount---Latter portion of the O.VI, R. 17, C.P.C., cast a duty upon court to grant permission for amendment as a matter of right if it was essential and inevitable for the resolution of real controversy and just decision of the case---Application for review was dismissed being devoid of force.

Akhtar Ali and others v. Sh. Muhammad Iqbal and others 1987 CLC 2227; United Bank of India Ltd. v. Azirannessa Bewa alias Azizannessa Bewa PLD 1965 SC 274 and Javed Iqbal v. Abdul Aziz and another PLD 2006 SC 66 ref.

Abdul Khair Achakzai for Applicant.

Niamatullah Achakzai for Respondents.

P L D 2018 Balochistan 8

Before Muhammad Ejaz Swati, J

RAHIM BAKHSH and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.(s) 131 of 2014, decided on 13th February, 2015.

Criminal Procedure Code (V of 1898)---

----Ss. 87, 88 & 89---Attached property, restoration of---Principle---Appellants after facing trial were acquitted from the charge---Properties of appellants were attached at the time of issuance of process by Trial Court---Appellants (accused) sought restoration of said property after two years of the order of attachmwnt---Trial Court declined to restore properties to appellants---Validity---Provision of S.87, Cr.P.C., prescribed mode of giving notice to accused to appear before Court not less than thirty days and if no such notice was given, proclamation could not be presumed to be valid proclamation and presumption under S.87(3), Cr.P.C. would not arise---No proper and legal proclamation specifying period of thirty days for appellants to appear and no statement in writing by Trial Court to the effect that proclamation was duly published on specified day, as provided under S.87(3), Cr.P.C. existed in the present case---All proceedings which had been initiated by Trial Court were without any jurisdiction and contrary to the provisions of Ss. 87 & 88, Cr.P.C.---Trial Court without adhering to the provisions of law had passed the order in question which was not sustainable---High Court set aside attachment order and restored properties to the appellants---Appeal was allowed in circumstances.

Zameer Ahmed Safi for Appellants.

Abdul Latif Khan Kakar, Additional Advocate-General for the State.

P L D 2018 Balochistan 11

Before Nazeer Ahmed Langove and Jamal Khan Mandokhail, JJ

INNAYATULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.287 of 2014 and Criminal Acquittal Appeal No.119 of 2016, decided on 20th July, 2017.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), Ss. 302, 324, 311 & 34---Compromise---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right to qisas in qatl-i-amd---Invalid compromise---Effect---Prosecution case was that accused party assaulted on complainant party as a result of which two persons of complainant party died on the spot and three sustained injuries---Matter was compromised between the parties during trial---Legal heirs of the deceased and injured appeared before the Trial Court and verified the factum of compromise arrived at between the parties---Accused was acquitted of the charge under Ss.302, 324 & 34, P.P.C., in pursuance of the compromise, however, convicted under S.311, P.P.C. for the reasons that offence was fasad fil Arz---Accused filed appeal for setting aside the conviction and sentence under S.311, P.P.C.---Complainant also moved appeal and contended that compromise was the outcome of duress, coercion and pressure as such, the same could not be termed as "compromise" falling within the purview of S.345(2), Cr.P.C.---Validity---Record showed that accused was hardened, dangerous criminal and member of a gang, who had committed heinous crimes and made hostage the entire area---In the present case, legal heirs of the deceased had come forward with the claim that the compromise deed filed in the Trial Court was the result of pressure, coercion and continuous threats---Accused was a habitual offender, no one dared to come forward against him and his family and the compromise in question was the result of pressure, coercion and continuous life threats to the complainant and his family including children and women folk---High Court observed that present case in such a situation, could not be taken lightly and had to be resolved as per law---Every effort was to be made to discover that compromise was genuine when possibilities of coercion or pressure by powerful persons to agree to compromise existed---Such important aspect of the matter had escaped notice of the Trial Court---Trial Court was to observe the conduct and demeanor of the accused, particularly in the case of compromise---Circumstances established that trial court failed to observe and notice the authenticity of the compromise, which caused mis-carriage of justice---Appeal filed by the accused was dismissed and that of the complainant was accepted by setting aside the impugned judgment case was remanded with the direction to Trial Court to decide the same afresh on merits after affording fair opportunity of leading evidence to the parties, 1997 SCMR 1526 rel.

Muhammad Aslam Chishti and Zahoor Ahmed Baloch for Appellant.

Qazi Mushtaq, A.P.G. for the Respondents.

P L D 2018 Balochistan 17

Before Mrs. Syeda Tahira Safdar and Zaheer-ud-Din Kakar,, JJ

HABIB QADIR---Petitioner

Versus

STATION HOUSE OFFICER, SADAR KHUZDAR and 2 others---Respondents

Constitutional Petition No.559 of 2017, decided on 14th June, 2017.

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

----Ss. 154 & 155---First information report---Scope---Station House Officer of police station, on receiving information relating to the commission of a cognizable offence, was under statutory obligation to enter the same in the prescribed register.

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

----S. 22-A(6)---Ex-Officio Justice of peace---Jurisdiction---Scope---Jurisdiction, which could be exercised by the Ex-Officio Justice of Peace was to examine whether the information disclosed by the applicant did constitute a cognizable offence; in case it did , to direct the concerned Station House Officer to record FIR without going into veracity of the information.

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

----Ss. 154---First information report---Delay in lodging FIR---Effect---Undue, unreasonable and unexplained delay in filing FIR would lead to suspicion and reflect on the truth of the prosecution case---Information of crime was required to be supplied at the earliest in order to avoid criticism of the report as being manipulated and a result of deliberation and consultation.

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

----Ss. 22-A, 22-B & 561-A---Application for registration of case against accused-respondents was dismissed by ex-Officio Justice of Peace---Contention of applicant was that, in his absence, the accused-respondent enticed his wife and children and took them to his house and admitted his sons in a school on fake school leaving certificates---Applicant approached Station House Officer for registration of case; on his refusal for lodging FIR, applicant approached the Ex-Officio Justice of Peace, who refused the prayer---Record showed that applicant had approached the Station House Officer after delay of about fourteen months without any plausible explanation and after his refusal for lodging FIR, he approached the Ex-Officio Justice of Peace, who declined the prayer---Validity---Applicant had approached the Station House Officer and Ex-Officio Justice of Peace after unexplained delay of about fourteen months---If the contention of applicant was true; why did he remain silent for initiating any action against the respondents for so long---Circumstances established that the application was instituted on the basis of family disputes---Applicant had failed to point out any illegality or irregularity in the impugned order calling interference by the Court---Constitutional petition was dismissed in circumstances.

Nadir Ali Chalgari for Petitioner.

P L D 2018 Balochistan 20

Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J

DIRECTOR-GENERAL, MINES AND MINERALS BALOCHISTAN and another---Petitioners

Versus

SECRETARY MINES AND MINERALS DEVELOPMENT DEPARTMENT, GOVERNMENT OF BALOCHISTAN and others---Respondents

Constitutional Petitions Nos. 542 of 2016 and 659 of 2017, decided on 12th October, 2017.

(a) Interpretation of statutes--

----Subordinate legislation---Vires---Subordinate legislation that runs contrary to statute, falsifies very object of parent law or creates hurdles in achievement of purpose of the principle statute has to be declared illegal and without lawful effect.

(b) Balochistan Mines and Mineral Rules, 2002---

----R. 104-A---Royalty, collection of---Extension of contract---Petitioner was aggrieved of extension granted by authorities in favour of respondent with regard to collection of royalty---Validity---Collection of royalty, as per R.104-A of Balochistan Mines and Mineral Rules, 2002 was to be made through open auction by inviting bids through respective Auction Committees on expiration of term of contract---No extension on any premises or pretext could be made nor any refund proportionate bid money was permissible---High Court directed authorities to auction contract for collecting royalty for leftover contractual period and set aside order in question---Constitutional petition was allowed accordingly.

Suo Motu Case No.13 of 2009 (PLD 2011 SC 619) and PLD 2011 Pesh. 1 ref.

Muhammad Riaz Ahmed for Petitioners.

Shai Haq Baloch, Addl. A.G. and Syed Ayaz Zahoor for Respondents.

P L D 2018 Balochistan 30

Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ

AMINULLAH MANDOKHAIL---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Home and Tribal Affairs Department and 4 others---Respondents

Constitutional Petition No.962 of 2017, decided on 29th September, 2017.

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

----S. 25---Family Courts Act (XXXV of 1964), S.13---Criminal Procedure Code (V of 1898), S. 100---Constitution of Pakistan, Art.199---Constitutional petition---Alternate and efficacious remedy---Recovery of minor child---Execution of decree passed by Guardian Court---Custody of minor was decided in favour of father---Father filed execution of decree but in response to process, mother of minor did not produce him before the court---Father sought production of minor under Constitutional jurisdiction of High Court and to get his name placed on Exit Control List---Validity---Held, adequate powers were available with Executing Court to implement order of Family Court---In presence of remedy available under the law, i.e., Family Courts Act, 1964 and Guardians and Wards Act, 1890, High Court declined to exercise its extraordinary jurisdiction under Art.199 of the Constitution---Executing Court was fully empowered to issue directions for placing name of minor on Exit Control List if so required---Executing Court was fully empowered to execute the decree passed by the court competent jurisdiction---Father could apply to the Executing Court for redressal of his grievance and also for implementation of the decree---Constitutional petition was disposed of accordingly.

Zahoor Ahmed Baloch for Petitioner.

Nemo for Respondent.

P L D 2018 Balochistan 34

Before Muhammad Noor Meskanzai, J

Mst. RASHIDA---Petitioner

Versus

Mst. ZEENAT and 4 others---Respondents

Civil Revision No.(T) 96 of 2010, decided on 5th October, 2017.

Civil Procedure Code (V of 1908)---

----S. 115 & O.XXIII, Rr. 1, 3 & 4---Revision---Withdrawal of suit at revisional stage---Scope---Plaintiff after institution of suit at any time might withdraw or abandon the same as a whole or a part thereof without permission of Court---Suit could be withdrawn with permission to file a fresh one even at the level of Supreme Court---Simple withdrawal of suit could not be refused because of stage of proceedings---Law did not contemplate any stage for conditional or unconditional withdrawal of a case, however, same was subject to satisfaction of the Court---Plaintiff in the present case, sought unconditional withdrawal of her suit---Such right could be exercised by the plaintiff at any stage of proceedings except in a case where preliminary decree had been passed and some right had been created for some one else---Plaintiff could not be forced to proceed with his/her case if he or she did not want to proceed with the suit---Respondents had been burdened with financial loss but nevertheless this by itself could not constitute a valid and reasonable ground to decline the request of withdrawal of suit---Application for withdrawal of suit was allowed subject to cost of Rs.10,000 to be paid to the respondents.

2013 SCMR 464 and Haji Muhammad Boota and others v. Member (Revenue) Board of Revenue, Punjab and others PLD 2003 SC 979 rel.

Abdul Hameed Baloch and Abdul Latif for Petitioners.

Mehtab Khan Gichki, Obaidullah, Abid Ali, Shakil Ahmed Zamrani and Zahoor Ahmed Baloch, A.A.G. for Respondents.

P L D 2018 Balochistan 39

Before Muhammad Hashim Khan Kakar, J

SADULLAH and another---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No.69 of 2015 and Criminal Miscellaneous Quashment No.392 of 2017, decided on 4th December, 2017.

(a) Interpretation of statutes---

----Omission in statute---Effect and remedy---Duty of court---Scope---Omission in statute cannot be supplied by construction---Court is not entitled to read words into an Act of legislature unless a clear reason for it is to be found within the four corners of Act itself---Duty of court is neither to add to nor to take anything from a statute unless there are good grounds for thinking that legislature intended something which it had failed to precisely express---Where no such inference is possible, words cannot be added in the provisions or alterations or restore cassus omissus in the statute without a suitable amendment---Courts cannot remedy either of such defects and has no power to fill any gaps disclosed in an Act--- If there is any omission in a statute, it is for the legislature to fill it up and it is beyond the jurisdiction of court to do so.

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

----Ss. 249, 265-K, 344 & 439---Penal Code (XLV of 1860), S.302---Qatl-i-amd---Proceedings held in abeyance---Scope---Trial Court, due to non-availability of material witnesses, directed to keep trial dormant under S.249, Cr.P.C. till availability of requisite evidence justifying revival of case against accused persons---Validity---Trial Court could postpone or adjourn proceedings for a definite time under S.344, Cr.P.C. by mentioning reasons thereof but simultaneously power of court was restricted to adjourn case sine die for an indefinite period of time---Case could have been adjourned or kept pending for a good reason that too up to a reasonable time---High Court observed that if such practice was allowed no trial would arrive to a logical conclusion---Keeping a case or stopping proceedings under S.249, Cr.P.C. and ordering cases to be kept dormant by Sessions Court were not in line and within jurisdiction of Sessions Court---High Court set aside order passed by Sessions Court and remanded case for decision in accordance with law---Application under S. 265-K, Cr.P.C. was directed to be deemed to be pending and decided on basis of available evidence---Revision was allowed accordingly.

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

----S. 249---Stoppage of proceedings---Nature---Stoppage of proceedings under S. 249, Cr.P.C. has effect of discharging accused until such time when on availability of requisite evidence case could be revived against him---Such stoppage amounts to termination of case for the time being.

Muhammad Wassay Tareen and Qari Rehmatullah for Petitioners.

Abdul Karim Malghani and Saeed Ahmed Kakar for the State.

P L D 2018 Balochistan 44

Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ

ABDUL KHALIQ and others---Petitioners

Versus

Ms. MAH NOOR and others---Respondents

Constitutional Petitions Nos.698, 978 of 2016 and 604 of 2017, decided on 22nd November, 2017.

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

----S. 12---Visitation rights of father of minor---Scope---Court premises as meeting place of the minor with the father---Effect---Welfare of minor---Scope---Petitioner/father contended that Family Court had rightly allowed him to take his minor daughter to his house on (certain) special days---Respondent/Mother contended that Appellate Court had rightly set aside schedule arranged by Trial Court as father should meet minor within court premises---Validity---Father might disentitle himself to custody on account of his conduct but father, in the present case, was regularly depositing the maintenance allowance of his minor daughter as fixed by the court---Minor daughter in her tender age required love and care of her parents; deprivation of any of them would have negative effect not only on her mental growth but would also affect her intellectual development---Neither the minor nor the father could be deprived of company of each other---Father being natural guardian was not only required to participate in the upbringing of the minor but should also develop love, bondage and affinity with her, to achieve said purpose---Court was to facilitate a congenial , homely and friendly environment and reasonable visitation schedule---Office of the Guardian Judge or office of Civil Nazir of the Court, for the said purpose, was neither conducive nor effective which lacked proper facilities and arrangements, and was not comparable to a homely environment---Meeting in Court premises could not serve the purpose of meeting, and it was not in the interest or welfare of the minor to hold meeting in the Court premises---Meetings of the minor with the father, were preferably to be held at the residence of the father---High Court set aside the impugned order passed by the Appellate Court and re-scheduled the more flexible arrangements of meeting of minor with the father on special days and on every Saturday of the calendar month with arrangement that Civil Nazir or a bailiff be deputed by the Trial Court to collect the minor from the residence of the mother at 10:00 a.m. along with a representative of the father, take her to residence arranged by the father, and thereafter along with representative of mother collect her from the father on the same day and drop her back at the residence of mother---Such arrangement would remain in vogue till the minor daughter was five years of age or admitted to school---Constitutional Petition was disposed off accordingly.

Petitioners in person.

P L D 2018 Balochistan 49

Before Muhammad Noor Meskanzai, C.J., Muhammad Hashim Khan Kakar and Jamal Khan Mandokhail, JJ

MUBASHAR MEHMOOD and another---Petitioners

Versus

HOME AND TRIBAL AFFAIRS through Secretary Civil Secretariat and others---Respondents

Constitutional Petitions Nos.994, 582 and 1034 of 2015 and 385 of 2017, decided on 31st October, 2017.

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

----Ss. 16 & 17---Pakistan Citizenship Rules, 1952, Rr. 23 & 26--- Domicile Certificate and Permanent Residence Certificate---Scope---When a person who is permanently residing in one province goes to another province with intention to reside there permanently or indefinitely his domicile does not undergo any change nor such person acquires a new domicile of choice and his domicile remains the same---Basic distinction between concept of domicile and that of permanent or ordinary residence is as much as former relates to status of a person and involves a question of law while latter is a question of fact---Domicile and permanent residence certificates are altogether different concepts.

Muhammad Yar Khan v. Deputy Commissioner-cum-Political Agent Loralai 1980 SCMR 456 rel.

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

----Ss. 16 & 17---Pakistan Citizenship Rules, 1952, Rr.23 & 26---Constitution of Pakistan, Art. 199---Constitutional petition---Domicile Certificate, cancellation of---Principle---Petitioners were aggrieved of orders passed by authorities whereby their domicile certificates were cancelled---Validity---Authorities, instead of following prescribed procedure laid down under R. 26 of Pakistan Citizenship Rules, 1952 cancelled domicile certificates of petitioners without holding proper and necessary inquiries---If it was found that a domicile certificate was obtained by fraud or misrepresentation same entailed necessary punishment under law---Authorities were not aware of consequences which could flow from deprivation of citizenship by cancelling domicile certificates---Every citizen was entitled to be certified under Pakistan Citizenship Act, 1951 and he could not be deprived of such right just by a stroke of pen---As soon as a certificate of citizenship was withdrawn or cancelled, that amounted to denial of civil rights of an individual and such person would have no right to live in the country---High Court set aside orders passed by authorities and restored domicile certificates issued in favour of petitioners---Constitutional petition was allowed in circumstances.

Muhammad Yar Khan v. Deputy Commissioner-cum-Political Agent Loralai 1980 SCMR 456 rel.

Syed Atta Abbas v. District Magistrate Kohlu PLD 1983 Quetta 68; Abdul Hafeez Khan v. Deputy Commissioner Khuzdar PLD 1983 Quetta 20 and Dr. Ahmed Tariq Chishti v. District Magistrate Khuzdar Constitution Petition No.89 of 2011 ref.

Mujeeb Ahmed Hashmi for Petitioners (in C.P.No.994 of 2015).

Muhammad Ilyas Mughal for Petitioner (in C.P. No.582 of 2015).

Mehmood Sadiq Khokhar and Syed Iqbal Shah for Petitioner (in C.P. No.1034 of 2015).

Syed Ayaz Zahoor for Petitioner (in C.P. No.385 of 2017).

Abdullah Khan Kakar, Deputy Attorney General, Amanullah Kanrani, Advocate General assisted by Shai Haq Baloch, Additional Advocate-General for Official Respondents.

Amicus Curiae: Azhar Ilyas Nagi:

P L D 2018 Balochistan 59

Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ

MUHAMMAD ABDUL QADIR---Petitioner

Versus

PROVINCIAL ELECTION COMMISSIONER, BALOCHISTAN and 2 others---Respondents

C. P. No.125 of 2018, decided on 26th February, 2018.

(a) Elections Act (XXXIII of 2017)---

----S. 2(xxxix)---Senate elections---Seat for 'technocrat'---Eligibility---Educational qualification and experience of candidate---Person would fall within the ambit of 'technocrat' only when he had required number of years of education in addition to the experience in the same discipline---Candidate contesting the election as 'technocrat' must possess both the qualifications contained in sub-Cls. (a) and (b) of S.2(xxxix) of Elections Act, 2017 i.e. the possession of a degree requiring conclusion of at least 16 years of education recognized by the Higher Education Commission and twenty years' experience including a record of achievement at national or international level---Such experience must be related to the education and academic qualification obtained by the person.

Ihsanul Haq Piracha v. Wasim Sajjad PLD 1986 SC 200 and Iqbal Zaffar Jhagra v. Khalilur Rehman 2000 SCMR 250 ref.

(b) Elections Act (XXXIII of 2017)---

----S. 2(xxxix)---Senate Elections 2018---Seat for 'technocrat'---Eligibility---Educational qualification and experience of candidate---Nomination papers, rejection of---In terms of S. 2(xxxix) of the Elections Act, 2017 the required number of years of experience must be related to the education and academic qualification obtained by the candidate---In the present case the candidate contesting for seat of technocrat obtained a Bachelor's degree in law but was engaged in the business of supply of vehicles and construction, therefore, his experience had no nexus with the discipline in which he obtained the degree---Nomination papers of candidate in question had been rightly rejected---Constitutional petition was dismissed accordingly.

Muhammad Aamir Rana for Petitioner.

Haroon Kasi, Law Officer for Respondents Nos. 1 and 3.

P L D 2018 Balochistan 67

Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ

JAMEEL RAMZAN DEHWAR, ADVOCATE, SUPREME COURT AT QUETTA---Petitioner

Versus

SADIQ SANJRANI and 3 others---Respondents

Constitutional Petition No.212 of 2018, decided on 19th March, 2018.

Constitution of Pakistan---

----Arts. 41(2), 49(2), 60, 62 & 260---Chairman Senate---Age---Petitioner had assailed election of respondent as Chairman Senate on the plea that he was less than 45 years of age and could not be appointed as Acting President of Pakistan---Validity---None of the Articles of the Constitution described age of persons who would hold offices of Chairman of the Senate and Speaker National Assembly, who were to be elected from amongst its member irrespective of the age---Provision of Art.62(1)(b) of the Constitution stipulated age of a person qualified to be elected as member of National Assembly as not less than 25 years, while Art.62(1)(c) described age of a person qualified to be appointed as Member of the Senate as not less than 30 years of age apart from other qualifications---Age of Chairman of the Senate or of the Speaker of National Assembly was not a pre-requisite nor a condition to act as President of the Pakistan---Constitutional petition was dismissed in circumstances.

Petitioner in person.

Nemo for Respondents.

P L D 2018 Balochistan 71

Before Abdullah Baloch, J

HAMIDULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.43 and 44 of 2017, decided on 27th October, 2017.

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

----Ss. 377, 341, 342, 500, 506, 190 & 34---Unnatural offence, wrongful restraint, wrongful confinement, defamation, criminal intimidation, threat of injury to induce person to refrain from applying for protection to public servant, common intention---Appreciaiton of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Prosecution case was that accused persons on gun point committed unnatural offence with complainant and they also made a video and threatened that in case he informed anyone they would show the video to others---Complainant of the case appeared as witness and reiterated the contents of FIR and narrated the entire story in line with complaint---Victim correctly identified all the accused persons in the Trial Court---Evidence of said witness was subjected to lengthy cross-examination, but nothing benefit or advantageous had come on record---Even otherwise, the defence had failed to put any suggestion to the victim for false implication of the accused persons---Prosecution case had been strengthened by the medical evidence produced by the Medical Officer---Medical Officer opined that the accused persons were mentally and physically fit to perform the act of sexual intercourse---Medical Officer also opined that the victim was sexually assaulted by many persons due to which tone of anal splinter was less and duration was old---Medical evidence was in line with the ocular testimony---Prosecution had produced corroborative and confidence inspiring evidence and the defence had failed to cause any dent in the evidence of prosecution---Circumstances established that accused persons failed to point out any material illegality or irregularity in the impugned judgment---Trial Court had awarded sentence of seven years to accused persons by the impugned judgment,being harsh was reduced to three years in circumstances---Appeal against conviction was dismissed.

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

----Ss. 377, 341, 342, 500, 506, 190 & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Unnatural offence, wrongful restraint, wrongful confinement, defamation, criminal intimidation, threat of injury to induce person to refrain from applying for protection to public servant, common intention---Apreciation of evidence---Disclosures of accused persons---Admissibility---Prosecution case had been supported by the disclosures of the accused pesons, who admitted their guilt and narrated the entire story for making plan to blackmail and commit sodomy with the victim---Discloures of the accsused persons discovered new facts, whereby the accused persons made plan to compel the victim to bring his younger brother, the same was admissible under Art.40 of Qanun-e-Shahadat, 1984.

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

----Ss. 377, 341, 342, 500, 506, 190 & 34---Unnatural offence, wrongful restrain, wrongful confinement, defamation, criminal intimidation, threat of injury ot induce person to refrain from applying for protection to public servant, common intention---Appreciation of evidence---Hostile witnesses---Effect---Defence objected that father and uncle of victim, who appeared as witnesses but did not support the case of prosecution and thus were declared hostile, which had made the case doubtful---Record showed that father and uncle of victim were not direct witnesses of the case and Investigating Officer unnecessarily associated both the said witnesses in the case---Evidence of said witnesses had not made any dent or damage to the case of prosecution, when the prosecution had produced direct and medical evidence against the accused persons.

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

----S. 377---Unnatural offence---Solitary statement of victim---Evidentiary value---Solitary statement of the victim was sufficient to convict the accused.

Fayyaz alias Fayyazi and another v. The State 2006 SCMR 1042 and Mushtaq Ahmed and another v. The State 2007 SCMR 473 rel.

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

----S. 154---First Information Report---Delay in lodging---Effect---Mere delay in lodging FIR was not of any help for defence to claim acquittal of the accused.

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

----Ss. 377, 341, 342, 500, 506, 190 & 34---Unnatural offence, wrongful restrain, wrongful confinement, defamation, criminal intimidation, threat of injury to induce person to refrain from applying for protection to public servant, common intention---Appreciatin of evidence---Delay inlodging FIR---Effect---Allegedly, matter was reported to the police after the delay of 44 days without any plausible explanation-Facts remained that in such like cases, the prestige of family, risk and honour was involved and people were reluctant in filing report to the police---In the present case, the victim kept mum due to the fear that accused might show the video---Accused persons, however, started blackmailing the victim and forced him to bring his younger brother for unnatural offence---Said facts compelled the victim to inform his elders and to lodge FIR---In these circumstances, delay in filing FIR was natural.

Kamran alias Kami v. The State 2012 PCr.LJ 1200 rel.

Ahsan Rafiq Rana for Appellant (in Criminal No.43 of 2017).

Muhammad Hassan Khan Sherani and Abdul Zahir Kakar for Appellants (in Criminal No.44 of of 2017).

Abdul Mateen, D.P.G. for the State.

P L D 2018 Balochistan 80

Before Muhammad Ejaz Swati, and Abdullah Baloch, JJ

MUHAMMAD NAEEM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.47 of 2015, decided on 9th October, 2017.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 121-Qatl-i-amd---Appreciation of evidence---Circumstantial evidence---Burden of proof---Accused was charged for the murder of his wife---Prosecution produced three witnesses including father of the deceased to prove the charge against the accused---Record showed that one witness corroborated the statement of another witness---Said witnesses remained firm in their depositions that the accused had committed the murder of deceased and correctly indentified the accused in the Trial Court---Statements of said witnesses were circumstantial, which connected one instance with the other---Statements of said witnesses were not shattered in any manner to benefit the accused---Accused had not explained as to how and who had committed the murder of his wife---Bald denial of the accused was not enough to save him from the charge of murder---Under Art.121 of Qanun-e-Shahdat, 1984, the burden lay on the accused to explain the murder of his wife committed in his house, which he failed---Appeal against conviction and sentence was dismissed in circumstances.

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

----S. 302(b)---Qatl-i-amd---Apreciation of evidence---Conduct of accused---Effect---Despite murder of his wife, accused kept quiet and had not lodged report against any one and had not held responsible any third person for the murder---Circumstances established that at the time of said murder, accused was present in the housse---Accused had not disputed the unnatural death of the deceased---Facts and circumstances of the case suggested that actually the accused had committed the murder of his wife and due to the incident, his relatives locked him in a room and handed him over to the police---Appeal against conviction and sentence was dismissed in circumstances.

Wali Muhammad v. Ellahi Bakhsh 2005 SCMR 1526 and Saeed Ahmed v. The State 2015 SCMR 710 rel.

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

----S. 302(b)---Qatl-i-amd---Apreciation of evidence---Ocular account---Accused was charged for the murder of his wife by inflicting churri blows---Prosecusion produced real sister of the deceased, a minor as witness in order to prove the ocular account of the case---Statement of said witness showed that she was intelligent enough to understand as to what had been done to her sister---Neither she nor her father had any motive to falsely implicate the accused---Admittedly said witnesss was a minor, but she replied the questions put by the Trial Court correctly, which established the soundness of her mind---Statement of said witness could not be thrown aside mainly on the ground of her being minor of eleven years but her statement alone was enough to establish the charge of murder against the accused---Nothing on record showed that said witness was tutored by her parents---Circumstances established that prosecution had proved the case beyong any reasonable doubt---Appeal against conviction and sentence was dismissed accordingly.

Muhammad Anwar v. State 1985 PCr.LJ 2500; Muzammil Shah v.State 1991 MLD 1944 and Usmanullah v. Sharfullah and others v. The State 2016 PCr.LJ 1558 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confessional statement of accused---Value---Prosecution case was that accused committed murder of his wife by inflicting churri blows---Record showed that FIR was lodged and on the same day accused was arrested---Accused was produced before the Judicial Magistrate on the next day where he made confessional statement---Circumstances showed that soon after his arrest, accused showed his willingness to record the confessional statement---Accused in his confessional statement had uttered the whole story with regard to the murder of his wife---Appeal against conviction and sentence was dismissed in circumstances.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confession, recording of---Scope---Confessional statement of accused reflected that the same was recorded by the Judicial Magistrate in accordance with law by putting all relevant questions to the accused and the answers were properly recorded---Confessinal statement of the accused showed that same was recorded without any coercion, pressure, torture or blackmail---No reason was available to disagree or disbelieve such confessional statement, which appeared to be recorded in accordance with law.

Hashim Qasim v. The State 2017 SCMR 986 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Non-production of medical evidence---Effect---Defence objected that deceased was not medically examined which proved that deceased was not murdered---Record showed that defence throughout the case had not disputed the unnatural death of deceased---Circumstantial, direct evidence, confession of the accused and the recovery of churri (crime weapon) were enough to establish the unnatural death of the deceased---Sufficient incriminating evidence was on record establishing the unnatural death of the deceased---Non-production of medical certificate of deceased was not fatal nor it could benefit the accused.

Sikandar v. The State 2006 SCMR 1786 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of about three days in lodging FIR---Effect---Complainant being Dafedar Levies on receipt of spy information reached at the place of occurrence and not only caused the arrest of the accused, but also registered the FIR against him---In the presence of recovery of weapon of offence, confessional statement of the accused and other evidence produced by the prosecution, the delay in registering the FIR was a minor illegality and not enough to diminish the entire prosecution evidence.

Muhammad Nadeem v. The State 2011 SCMR 872 rel.

Muhammad Arif Achakzai for Appellant.

Naeem Kakar, Additional P.G. for the State.

P L D 2018 Balochistan 91

Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ

UMER DARAZ---Petitioner

Versus

JUDICIAL MAGISTRATE-IX, QUETTA and 2 others---Respondents

Constitutional Petition No.1204 of 2017, decided on 21st May, 2018.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), S.22---Surety---Forefeiture of bond---"Movable property"---Scope---Future salary, attachment of---Legality---Reduction in surety bond---Petitioner stood surety and Trial Court passed an order to attach his future salary in lieu of forefeiture of surety bond---Validity---Term "movable property" as used in S.514, Cr.P.C. had same meanings as defined in S.22, P.P.C.---Movale property of whatever description included corporeal property which could be perceived and received and in no way included salary of person not yet accrued---In absence of movable property, recovery could have been made as contained in S.514(4), Cr.P.C., which was never pressed---Warrants of imprisonment in jail for the term to be decided by Trial Court but not exceeding six months could have been issued, if the amount, as directed was not paid---No illegality existed in the orders passed by two courts below, except the direction for attachment of salary---High Court directed the Trial Court to adopt procedure prescribed by S.514, Cr.P.C. for recovery of the amount forfeited and set aside the direction for attachment of salary---Constitutional petition was allowed accordingly.

Muhammad Pervaiz for Petitioner.

Abdul Karim Malghani, State Counsel for Respondents.

P L D 2018 Balochistan 97

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

Criminal Appeal No.(T)45/2016

LAL BAKHSH and another---Appellants

Versus

THE STATE---Respondent

Murder Reference No.(T)02/2016

THE STATE---Appellant

Versus

LAL BAKHSH and others---Respondents

Criminal Appeal No.(T)45/2016 and Murder Reference No.(T)02/2016, decided on 10th January, 2018.

Penal Code (XLV of 1860)---

----Ss. 302, 147, 148 & 149---Anti Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, rioting, roting armed with deadly weapon, unlawful assembly, act of terrorism---Trial of case by Anti-terrorism Court---Validity---Prosecution case was that mephew of the complainant had induced the daughter of accused---Accused took his daughter to the house and asked the complainant to bring his nephew to his house so that Nikkah be performed---Complainant took his nephew to the house of accused, who with co-accused persons named in the FIR attacked upon them and forcibly snatched the nephew of complainant and took him inside the house and slaughtered him and daughter of the accused---Motive behind the occurrence was the illicit relations of the deceased girl with the deceased boy---Admittedly, it was a case of honour killing which was a private offence along with the fact that the private object was involved in the matter---Even the crime was committed within the boundary walls of a house, which was triable by the ordinary court, irrespective of the fact that the brutal manner was adopted in committing the murder of deceased---High Court without touching the merits of the case, allowed the appeal and case was remanded to the ordinary court by setting aside the judgment passed by the Anti-Terrorism Court to decide the matter afresh in accordance with law.

Gul Muhammad v. The State PLD 2012 Bal. 22 and Waris Ali v. The State 2017 SCMR 1572 rel.

Sardar Ahmed Haleemi for Appellants.

Sudheer Ahmed, D.P.G. for Respondent/State.

P L D 2018 Balochistan 102

Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ

MUHAMMAD JAN---Appellant

Versus

ADDITIONAL SESSION JUDGE II, QUETTA and another---Respondents

Criminal Acquittal Appeal No.39 of 2018, decided on 19th March, 2018.

Penal Code (XLV of 1860)---

----S.302---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd---Appeal against acquittal---Re-appraisal of evidence---None had witnessed the crime directly and the evidence was merely based upon assumption and presumption about the past conduct of accused with the deceased---Conviction could not be granted or maintained solely on the basis of presumption; rather it was the duty of the prosecution to establish the charge through consistent and confidence inspiring evidence, which was lacking in the present case---Unnatural death of the deceased, was neither supported by Medco-legal Certificate and report of Chemical Examiner, nor by any other piece of evidence---Prosecution, had failed to bring on record any documentary evidence to establish the charge against accused---No direct ocular testimony was on record---Medical evidence did not support the allegations levelled by the prosecution---Entire material, so produced by the prosecution did not connect accused in any manner---Prosecution case against accused being highly doubtful, Trial Court after proper appraisal of material available on record, had rightly acquitted accused---Minute scrutiny of prosecution case, had justified the acquittal order passed by the Trial Court---Double presumption of innocence was attached to the order of acquittal---Order of acquittal passed by the Trial Court, was neither arbitrary, capricious, fanciful, nor contrary to the evidence brought on record---Interference in judgment of acquittal was declared by the High Court---Appeal was dismissed in limine.

Nasrullah alias Nmasro v. State 2017 SCMR 724 ref.

Jameel Ramzan for Appellants.

P L D 2018 Balochistan 107

Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ

IQBAL PERVAIZ---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Social Welfare Special Education and 2 others---Respondents

Constitutional Petition No.530 of 2017, decided on 19th April, 2018.

(a) Protection Against Harassment of Women at Workplace Act (IV of 2010)--

----S.2 (h)---"Harassment"---Scope---Main object of legislature is to protect women in their workplace from harassment while performing their duties and provide them a pleasant working environment---Simultaneously, provisions of S.2(h) of Protection Against Harassment of Women at Workplace Act, 2010 are also binding on women.

(b) Protection Against Harassment of Women at Workplace Act (IV of 2010)--

----Ss. 2(h), 4(4), 5 & 9---Harassment---Inquiry Committee, jurisdiction of---Complaint was made by a lady worker against petitioner for harassing her at workplace---Authorities imposed penalty upon petitioner for causing harassment to the lady at work place---Validity---Held, though provision of representation to the President or Governor against order of Ombudsman were available under S.9 of Protection Against Harassment of Women at Workplace Act, 2010 but as initial act on part of the Committee was in complete negation of law, therefore, orders passed by competent authority and appellate authority on the basis thereof were of no legal effect---In the absence of act of harassment, no jurisdiction laid with Committee to recommend and with competent authority to impose penalty, therefore, entire proceedings followed and orders passed became null and void for want of jurisdiction---High Court in exercise of extraordinary powers under Ar.199 of the Constitution set aside the penalties imposed upon petitioner as there was mis-exercise of jurisdiction on part of forums concerned and provision of representation would do no good to the petitioner who was suffering from last four years and his Fundamental Rights were violated---Constitutional petition was allowed accordingly.

Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 rel.

S.A.M. Qadri for Petitioner.

Abdul Latif Kakar, Additional Advocate-General for the State.

P L D 2018 Supreme Court 1

Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan, Gulzar Ahmed, Sh. Azmat Saeed and Ijaz ul Ahsan, JJ

Mian MUHAMMAD NAWAZ SHARIF and others---Petitioners

Versus

IMRAN AHMED KHAN NIAZI and others---Respondents

Civil Review Petition No. 297 of 2017 in Constitutional Petition No. 29 of 2016 and Civil Review Petition No. 298 of 2017 in Constitutional Petition No. 30 of 2016 and Civil Review Petition No. 299 of 2017 in Constitutional Petition No. 3 of 2017 and Civil Review Petition No. 303 of 2017 in Constitutional Petition No. 29 of 2016, Civil Review Petition No. 308 of 2017 in Constitutional Petition No. 29 of 2016, Civil Review Petition No. 309 of 2017 in Constitutional Petition No. 29 of 2016 and Civil Review Petition No. 310 of 2017 in Constitutional Petition No. 29 of 2016 and Civil Review Petition No. 311 of 2017 in Constitutional Petition No. 30 of 2016 and Civil Review Petition No. 312 of 2017 in Constitutional Petition No. 3 of 2017 and C.M.A. No. 6114 of 2017 in Constitutional Petition No. 30 of 2017, decided on 15th September, 2017.

(Against the judgment dated 28.07.2017 passed by this Court in Constitutional Petitions Nos. 29 and 30 of 2016 and 3 of 2017)

Per Ejaz Afzal Khan, J; Asif Saeed Khan Khosa, Gulzar Ahmed, Sh. Azmat Saeed and Ijaz ul Ahsan, JJ, agreeing.

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

----Ss. 9(a)(v) & 10---Representation of the People Act (LXXXV of 1976), S. 12(2)(f)---Constitution of Pakistan, Art. 188---Possession and acquisition of assets and funds beyond known sources of income---Review petition before the Supreme Court against its judgment whereby the Court gave directions to initiate criminal proceedings against the petitioner/Prime Minister and his children in the Accountability Court for acquiring and possessing wealth and assets beyond their known sources of income---Non-disclosure of 'unwithdrawn salaries' in the nomination papers for contesting general elections---"Asset"---Scope---Petitioner's/Prime Minister's entitlement to salary stemmed from a written employment contract---Salary in the present case, was not a salary of the future which was yet to accrue; it was salary of the past six and a half years which had already accrued and accumulated---Nothing in oral or written form was available on record, for the period between July 2006 to January 2013, as could stop the accrual and accumulation of salary or prevent it from becoming an "asset"---Similarly there was also nothing in oral or written form in between the said period as could stop the withdrawal of the salary thus accrued and accumulated---Unwithdrawn salaries of the petitioner, thus, constituted an "asset"---Stance taken by the petitioner with regard to the salary in the written arguments and the memorandum of the review petition showed that salary accrued and accumulated till January 2013 was all along his asset; that the power to withdraw or waive it lay exclusively with him, and that he instead of withdrawing it waived it in favour of the company---Although salary in question ceased to be an asset of the petitioner from January 2013 but it remained an asset till then and more so on 30th June, 2012 which was the crucial date in terms of S. 12(2)(f) of Representation of the People Act, 1976, for disclosure in nomination papers for the General Elections, (2013)---Where the salary had already accrued and accumulated from July 2006 to January 2013 and there was absolutely nothing in oral or written form in between the said dates as could stop its withdrawal, it was an "asset" out and out---Unwithdrawn salary was, thus, required to be disclosed in the nomination papers of the petitioner for the 2013 General Elections---Supreme Court observed that it could not have shut its eyes when an asset of the petitioner arising out of a work permit having surfaced during the investigation of the case and admitted by him, was not found to have been disclosed in his nomination papers in terms of S. 12(2)(f) of the Representation of the People Act, 1976; that the court could not let him get away with it simply because he happened to be the Prime Minister of the country; that much higher level of integrity was expected of the holder of the highest elected office of the country; that the petitioner never came forth with the whole truth; that resignation rather than prevarication in ambiguous terms was more honourable exit if and when anything secretly carried under the sanctimonious gown of leadership got sighted---Review petition was dismissed accordingly.

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

----Ss. 9(a)(v) & 10---Income Tax Ordinance (XLIX of 2001), S.12(2)---Constitution of Pakistan, Art. 188---Possession and acquisition of assets and funds beyond known sources of income---Unwithdrawn salary---Scope---Review petition before the Supreme Court against its judgment whereby the Court gave directions to initiate criminal proceedings against the petitioner/Prime Minister and his children in the Accountability Court for acquiring and possessing wealth and assets beyond their known sources of income---Contention of petitioner/Prime Minister that salary as defined in S. 12(2) of the Income Tax Ordinance, 2001 meant an amount received by an employee from any employment, therefore, it could not be extended to cover unwithdrawn salary; held, that the expression 'salary' as defined by S. 12(2) of the Income Tax Ordinance, 2001 would be irrelevant for the purposes of present case when the salary having already accrued and accumulated could be withdrawn at any stage without any hindrance (before January, 2013)---Review petition was dismissed accordingly.

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

----Ss. 9(a)(v) & 10---Representation of the People Act (LXXXV of 1976), Ss. 12(2)(f), 13 & 99(1)(f)---Constitution of Pakistan, Arts.62(1)(f) & 188---Possession and acquisition of assets and funds beyond known sources of income---Non-disclosure of 'unwithdrawn salaries' in the nomination papers for contesting general elections---Review petition before the Supreme Court against its judgment whereby the Court gave directions to initiate criminal proceedings against the petitioner/Prime Minister and his children in the Accountability Court for acquiring and possessing wealth and assets beyond their known sources of income---Contention of petitioner/Prime Minister that even if it was assumed that unwithdrawn salary constituted an asset, omission to disclose it involved a violation of Ss. 12 & 13 of the Representation of the People Act, 1976, which called for the rejection of his nomination papers or at worst, removal of the petitioner from the public office, but, not his disqualification in terms of S. 99(1)(f) of the Representation of the People Act, 1976 and Art. 62(1)(f) of the Constitution; held, that said contention was devoid of force when the petitioner deliberately concealed his assets and willfully and dishonestly made a false declaration on solemn affirmation in his nomination papers---Such false declaration was not something to be looked at with a casual eye---Declaration on solemn affirmation was not only a legal duty but a qualifying test for the candidates---Such test and duty had to be performed without a taint of misrepresentation and without resorting to unfair means---Supreme Court observed that any concession or leniency towards the candidates or the person elected would be a prelude to a catastrophe in politics---Review petition was dismissed accordingly.

Rai Hassan Nawaz v. Haji Muhammad Ayub and others PLD 2017 SC 170 ref.

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

----Ss. 9(a)(v) & 10---Representation of the People Act (LXXXV of 1976), Ss. 12(2)(f) & 99(1)(f)---Constitution of Pakistan, Arts. 62(1)(f) & 184(3)---Possession and acquisition of assets and funds beyond known sources of income---Constitutional jurisdiction of the Supreme Court under Art. 184(3) of the Constitution to disqualify an elected person---Scope---Review petition before the Supreme Court against its judgment whereby the Court gave directions to initiate criminal proceedings against the petitioner/Prime Minister and his children in the Accountability Court for acquiring and possessing wealth and assets beyond their known sources of income---Contention was that the petitioner/Prime Minister could not be disqualified under Art. 62(1)(f) of the Constitution without recording evidence, in proceedings under Art. 184(3) of the Constitution; held, that the Supreme Court while exercising jurisdiction under Art. 184(3) of the Constitution could disqualify an elected person, who made a false declaration on solemn affirmation in his nomination papers---Review petition was dismissed accordingly.

Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2012 SC 1089; Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others 2013 SCMR 1246 and Mian Najeeb ud Din Owasi v. Amir Yar Waran PLD 2013 SC 482 ref.

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

----Ss. 9(a)(v) & 10---Constitution of Pakistan, Arts. 188 & 190---Possession and acquisition of assets and funds beyond known sources of income---Review petition before the Supreme Court against its judgment whereby the Court gave directions to initiate criminal proceedings against the petitioner/Prime Minister and his children in the Accountability Court for acquiring and possessing wealth and assets beyond their known sources of income---Contention was that the directions given by the Supreme Court to the National Accountability Bureau (NAB) in the judgment under review to file references against the petitioner/Prime Minister and his children were per incurium on the face of the record as they amounted to assuming the functions of the Chairman NAB and the judge of the Accountability Court which was not only against the law but also repugnant to the provisions of the Constitution ensuring trichotomy of powers; held, that said contention was not correct as in the judgment under review both the Chairman, NAB and Accountability Court had been left on their own to proceed in accordance with law---Circumstances that necessitated the issuance of impugned directions to the National Accountability Bureau had already been dealt with in the judgment under review by holding that officers responsible for prosecuting the petitioner/Prime Minister and his children may not cast their eyes on the misdeeds and lay their arresting hands on the shoulders of the elites on account of their being amenable to the influence of the latter or because of their being beholden to the persons calling the shots in the matters of their appointments, postings and transfers, but it did not mean that the Supreme Court should exercise a jurisdiction not conferred on it and act in derogation of the provisions of the Constitution and the law regulating trichotomy of power and conferment of jurisdiction on the courts of law; that any deviation from the recognized course would be a recipe for chaos, and that the "solution laid not in bypassing but in activating the institutions by having recourse to Art.190 of the Constitution"---Review petition was dismissed accordingly.

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

----Ss. 9(a)(v) & 10---Constitution of Pakistan, Arts. 175(2) & 188---Possession and acquisition of assets and funds beyond known sources of income---Institutional capture of State institutions for hindering prosecution---Review petition before the Supreme Court against its judgment whereby the Court gave directions to initiate criminal proceedings against the petitioner/Prime Minister and his children in the Accountability Court for acquiring and possessing wealth and assets beyond their known sources of income---Contention was that direction given to National Accountability Bureau in the judgment under review to file References on the basis of the material collected and referred to by the Joint Investigation Team (JIT) and such other material which may be available to the Federal Investigation Agency and National Accountability Bureau (NAB) or the one which may come before it pursuant to the Mutual Legal Assistance Requests sent by the JIT to different jurisdictions was an encroachment on the authority of the NAB and violation of Art. 175(2) of the Constitution; held, that said contention could have been given some weight had there been no institutional capture, seizure and subjugation of all the important institutions of the State including National Accountability Bureau, Securities and Exchange Commission of Pakistan, Federal Board of Revenue, State Bank of Pakistan, National Bank of Pakistan and Intelligence Bureau through the cronies and collaborators of the person at the peak, as had been evidenced during the course of hearing of judgment under review---Supreme Court observed that it would not let everything go into the hands of the cronies and collaborators for being taken to a dead end, and that once things had been streamlined, they had to be taken to their logical conclusion---Review petition was dismissed accordingly.

(g) Constitution of Pakistan---

----Art. 184(3)---Power of the Supreme Court to issue directions under Art. 184(3) of the Constitution---Scope---Supreme Court under Art.184(3) of the Constitution had the power to issue a direction if and when a person performing functions in connection with the affairs of the Federation did not do what he was required by law to do.

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

---Ss. 9(a)(v) & 10---Constitution of Pakistan, Arts. 184(3) & 188---Possession and acquisition of assets and funds beyond known sources of income---Power of Supreme Court to issue directions to Trial Court to conclude a trial within a certain time limit---Scope---Review petition before the Supreme Court against its judgment whereby the Court gave directions to initiate criminal proceedings against the petitioner/Prime Minister and his children in the Accountability Court for acquiring and possessing wealth and assets beyond their known sources of income---Contention was that the direction to the Trial Court for deciding the National Accountability Bureau References within 6 months from the date of filing them tended to prejudice the fair trial of the petitioner/Prime Minister; held, that the purpose behind such direction was not to prejudice the trial but to ensure expeditious conclusion of the case which more often than not was extended by the Supreme Court, if the trial was delayed by any hardship or anything imponderable---Review petition was dismissed accordingly.

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

----Ss. 9(a)(v) & 10---Constitution of Pakistan, Arts. 175(2), 175(3) & 188---Possession and acquisition of assets and funds beyond known sources of income---Power of Supreme Court to superintend proceedings of Trial Court---Scope---Review petition before the Supreme Court against its judgment whereby the Court gave directions to initiate criminal proceedings against the petitioner/Prime Minister and his children in the Accountability Court for acquiring and possessing wealth and assets beyond their known sources of income---Contention was that the power to superintend the proceedings of the Accountability Court had not been conferred on the Supreme Court, therefore nomination of one of the Judges of the Supreme Court to superintend the proceedings of the judgment under review would be violative of Art. 175(2) & (3) of the Constitution; held, that said contention was misconceived as such practice has been in vogue since long and the purpose behind it was to guard against intrusion of casualness in the proceedings before the Trial Court---Such practice, by no stretch of imagination, implied that the monitoring Judge would in any way influence or interfere with decision-making process of the Trial Court---Review petition was dismissed accordingly.

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

----Ss. 9(a)(v) & 10---Representation of the People Act (LXXXV of 1976), S. 99(1)(f)---Constitution of Pakistan, Arts. 62(1)(f) & 184(3)---Possession and acquisition of assets and funds beyond known sources of income---Power of Supreme Court to take cognizance of an issue not raised in the Constitutional petition filed under Art. 184(3) of the Constitution---Scope---Review petition before the Supreme Court against its judgment whereby the Court gave directions to initiate criminal proceedings against the petitioner/Prime Minister and his children in the Accountability Court for acquiring and possessing wealth and assets beyond their known sources of income---Contention was that the petitioner/Prime Minister could not be disqualified in terms of S. 99(1)(f) of the Representation of the People Act, 1976 and Art. 62(1)(f) of the Constitution for non-disclosure of his unwithdrawn income (from a company) in his nomination papers for the 2013 General Elections' when it was not specifically averred in any of the constitutional petitions seeking disqualification of the petitioner; held, that the proceedings before the Supreme Court under Art. 184(3) of the Constitution being inquisitorial in nature could not debar the Supreme Court from taking cognizance of a matter which was too obvious to be lost sight of---Petitioner thus could not claim to be taken by surprise in inquisitorial proceeding when the facts entailing his disqualification had not been disputed---Review petition was dismissed accordingly.

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

----Ss. 9(a)(v) & 10---Constitution of Pakistan, Art. 188---Possession and acquisition of assets and funds beyond known sources of income---Remarks/observation of court in the judgment commending efforts of the investigation team---Prejudice caused to trial of accused---Scope---Review petition before the Supreme Court against its judgment whereby the Court gave directions to initiate criminal proceedings against the petitioner/Prime Minister and his children in the Accountability Court for acquiring and possessing wealth and assets beyond their known sources of income---Contention was that where material collected by the Joint Investigation Team (JIT) was not worthy of reliance and the report submitted by it was full of infirmities, commendation of JIT and its report reflected in the concluding parts of the judgment under review would tend to prejudice the case of the petitioner/Prime Minister, and such report could be accepted by the National Accountability Bureau and the Accountability Court as being unquestionable; held, that the commendation or any other observation of the Supreme Court was tentative in nature, and thus, it would not restrict the Trial Court to discard the report if and when any infirmity therein became palpable on the record---Review petition was dismissed accordingly.

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

----Ss. 9(a)(v) & 10---Constitution of Pakistan, Art.188---Possession and acquisition of assets and funds beyond known sources of income---Review petition before the Supreme Court against its judgment whereby the Court gave directions to initiate criminal proceedings against the petitioner/Prime Minister and his children in the Accountability Court for acquiring and possessing wealth and assets beyond their known sources of income---Contention was that when no material had come on the record to show any nexus between the petitioner/Prime Minister's son-in-law and the properties situated in a foreign country, the direction to the National Accountability Bureau to file a Reference against him was not sustainable; held, that the petitioner was the husband of Prime Minister's daughter, who prima facie happened to be the beneficial owner of the properties in question---Review petition was dismissed accordingly.

Per Asif Saeed Khan Khosa, J; agreeing with Ejaz Afzal Khan, J.

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

----Ss. 9(a)(v) & 10---Constitution of Pakistan, Art. 188---Possession and acquisition of assets and funds beyond known sources of income---Review petition before the Supreme Court against its judgment whereby the Court gave directions to initiate criminal proceedings against the petitioner/Prime Minister and his children in the Accountability Court for acquiring and possessing wealth and assets beyond their known sources of income---His Lordship observed that no ground had been taken in the review petition nor any argument had been advanced at the bar questioning anything observed or concluded by him in his separate opinion recorded in the judgment under review; that other members of the present Bench had not felt persuaded to review their opinions already recorded in the judgment under review---Review petition was dismissed.

Khawaja Harris Ahmed, Senior Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.R.Ps.297-299 and 310-312 of 2017).

Shahid Hamid, Senior Advocate Supreme Court, Tariq Hassan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.R.P. 303 of 2017).

Salman Akram Raja, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.R.Ps. 308-309 of 2017).

Nemo for Respondents.

Waqas Qadeer Dar, P.-G. Accountability on Court's Call.

Applicant in person (in C.M.A. 6114 of 2017).

P LD 2018 Supreme Court 28

Present: Mushir Alam, Dost Muhammad Khan and Sajjad Ali Shah, JJ

CHAIRMAN, NAB---Appellant

Versus

MUHAMMAD USMAN and others---Respondents

Civil Appeal No. 1085 of 2017, decided on 21st September, 2017.

(On appeal from the order dated 18.4.2017 passed by the Peshawar High Court, Peshawar in W.P. No. 1230-P of 2017)

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

----Art. 133---Cross-examination of witnesses---Courts, duty of---Scope---Courts were required to guard and protect the witnesses against undue harassment and undesirable cross-examination, which was not relevant to the fact in issue but directed against the witnesses to put them under unnecessary strain and stress.

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

----S. 540---Power of court to summon material witness or examine person present --- Scope --- Role of the court under the provisions of S. 540, Cr.P.C. was inquisitorial where it endeavoured to discover the truth, suppressed by one or both parties to the case so as to incapacitate the court to reach a just conclusion---In exercising inquisitorial powers, the law had imposed obligation on the court to discover the truth and to secure the ends of justice---Witnesses examined under S. 540, Cr.P.C. were examined as 'court witnesss' and not for the prosecution or defence, therefore, none of the parties to a case could claim such a right.

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

----S. 540---Power of court to summon witness dropped by the prosecution---Scope---Where the prosecution had dropped any material witness whose evidence, if given, may have a direct bearing on the end result of the case, the Court had unfettered powers to summon and examine such witness only for the purpose of discovery of truth, and for the purpose of doing complete justice---Such powers, however was not to be exercised at random and without application of proper judicial mind with reasonable depth to the facts of each case---Written request had to be made to the Court showing cogent and convincing reasons for calling and examining any witness of the prosecution, not examined or who had already been examined, to be re-examined as court witness.

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

----Art. 133---Examination of witnesses---Defence calling a prosecution witness as its own (defence) witness---Legality---Such practice was not acknowledged by law and could not be approved.

(e) Constitution of Pakistan---

----Art. 199---Power of judicial review vested in the High Court under Art. 199 of the Constitution---Scope---Such power should not be exercised in a case where discretion was exercised by the subordinate court/tribunal in a fair and just manner without violating or disregarding statutory provision of law, likely to occasion the failure of justice.

Brig. (Retd.) Imtiaz Ahmed v. Government of Pakistan, through Secretary, Interior Division, Islamabad 1994 SCMR 2142; Shahnaz Bequm v. The Hon'ble Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 and Malik Shauktat Ali Dogar v. Ghulam Qasim Khan Khakwani PLD 1994 SC 281 ref.

(f) Administration of justice---

----Duty of judge to apply the correct law---Scope---Law was written on the sleeves of the judges and it was the primary duty of a judge to apply the correct law to a case before it---Party involved in a case was not bound to engage a counsel for telling the Court how a particular law was to be applied and how the jurisdiction was to be exercised.

Arshad Qayyum, Special Prosecutor for Appellant.

Shumail Butt, Advocate Supreme Court for Respondents Nos. 1 and 2.

P L D 2018 Supreme Court 35

Present: Ejaz Afzal Khan, Qazi Faez Isa and Ijaz ul Ahsan, JJ

MUHAMMAD IQBAL HAIDER---Petitioner

Versus

IST ADJ, KARACHI CENTRAL and others---Respondents

Civil Petition No. 3068 of 2017, decided on 9th October, 2017.

(Against judgment dated 04.08.2017 of High Court of Sindh at Karachi, passed in Constitution Petition No. S-303 of 2010)

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

----Ss. 16(1) & 16(2)---Right of defence struck off for non-compliance with tentative rent order---Institution of civil suits by the tenant denying relationship of landlord and tenant---Such suits per se, would not be sufficient for tenant to refuse compliance of a tentative rent order of the Rent Controller under S. 16(1) of the Sindh Rented Premises Ordinance, 1979.

Rent Controller ordered petitioner-tenant to deposit rent arrears in court and also to deposit future rent. Petitioner failed to comply with the said order as a result of which his right of defence was struck off. Petitioner contended that the relationship of landlord and tenant had been denied on the basis of certain agreements to sell; that since the ownership of the property was in dispute, an order for payment of tentative rent under section 16(1) of the Sindh Rented Premises Ordinance, 1979 could not have been passed, and consequently, his defence could not have been struck off for non-compliance of the said order. Held, that controversy relating to denial of relationship of landlord and tenant and pendency of litigation between the parties and the legality of the order for deposit of rent had already been decided by the Supreme Court by holding that the institution of civil suits by the petitioner per se, would not be sufficient to refuse compliance of an order of the Rent Controller under section 16(1) of the Ordinance pending final determination. As such, the petitioner had no body but himself to blame if his defence was struck off on account of his admitted failure to comply with the tentative rent order leading to an order for his ejectment from the rented premises.

(b) Administration of justice---

----Order passed by a Court (whether or not a party considered it just, valid and fair) had to be complied with subject to his right to challenge the same before the fora provided in law---In case of non-compliance, the consequences provided in law were bound to follow.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Petitioner.

Respondent No. 3 in person.

P L D 2018 Supreme Court 40

Present: Ejaz Afzal Khan and Mushir Alam, JJ

OLAS KHAN and others---Petitioners

Versus

CHAIRMAN NAB through Chairman and others---Respondents

Civil Petitions Nos. 1885 and 2289 of 2017, decided on 23rd October, 2017.

(Against the judgment dated 30.3.2017 passed by the Peshawar High Court, Peshawar in W.Ps. Nos. 832-P and 843-P of 2017)

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

----Preamble---Purpose and scope of National Accountability Ordinance, 1999---Ordinance was a special statute, being a fusion of criminal liability and civil obligations---Said Ordinance was enacted with an aim to take effective measures for detection, investigation, prosecution and speedy trial of cases involving corruption, corrupt practices, misuse or abuse of power, and misappropriation of property and recovery of the same from the beneficiary or those found to have misappropriated such property and restoration of the same to the rightful owner thereof.

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

----Ss. 9(b) & 17(c)---Constitution of Pakistan, Arts. 184(3) & 199---Power of Supreme Court and High Court to grant bail in a Reference from National Accountability Bureau---Scope---Accountability Court had no jurisdiction to grant either pre-arrest and/or post arrest bail to an accused, as provisions of Cr.P.C. regulating grant or otherwise of pre-arrest and/or post-arrest bail were inapplicable in view of non obstante provisions of S.9(b) of National Accountability Ordinance, 1999---High Court and the Supreme Court on the other hand extracted jurisdiction under Arts. 199 & 184 of the Constitution respectively to consider and grant bail in NAB References and not under S. 9(b) and/or 17(c) of the Ordinance---Constitutional jurisdiction of the Supreme Court and High Court could neither be taken away nor made subservient through subordinate legislation.

Anwer Saifullah v. The State and 4 others PLD 2000 Lah. 564; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546; Abdul Aziz Khan Niazi v. The State through Chairman, NAB, Islamabad PLD 2003 SC 668; Haji Ghulam Ali v. The State through A.G., N.-W.F.P., Peshawar 2003 SCMR 597; Chairman, National Accountability Bureau, Islamabad and another v. Asif Baig Muhammad and others 2004 SCMR 91; Ch. Zulfiqar Ali's case PLD 2002 SC 846; Muhammad Saeed Mehdi's case 2002 SCMR 282; Muhammad Jehangir Badar v. The State and others PLD 2003 SC 525; National Accountability Bureau v. Khalid Masood and another 2005 SCMR 1291; Himesh Khan v. National Accountability (NAB) Bureau, Lahore and others 2015 SCMR 1092 and Chairman NAB v. Bakht Zameen and another C.P. No.1542 of 2016 dated 26.8.2016 ref.

(c) Jurisdiction---

----Principles---Merely citing or relying on wrong provision of law to assume jurisdiction over a lis was of no consequence, provided the Court otherwise had jurisdiction under the Constitution, statue or any other provision of law to pass the order.

Mst. Safia Bibi v. Mst. Aisha Bibi 1982 SCMR 494; Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555 and Rauf B Kadir v. State Bank of Pakistan and another PLD 2002 SC 1111 ref.

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

----S. 17(c)---Criminal Procedure Code (V of 1898), Preamble---Section 17(c) of the Ordinance liberated the Accountability Court from the procedural and technical trapping of Criminal Procedure Code, giving it authority not only to "dispense with any provision of the Code" but also empowered it "to follow such procedure as it may deemed fit in circumstances of case."---Freedom to "follow such procedure as it may deemed fit" did not empower the Accountability Court or for that matter the High Court to assume jurisdiction and or invoke provisions of Cr.P.C., which were specifically excluded by virtue of S. 9(b) of the Ordinance.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607 ref.

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

----S. 9---Corruption and corrupt practices---Bail, refusal of---Allegation against the accused was that in his capacity as Director General for a government scheme he had issued various work orders for the implementation of a government project in utter disregard to the Implementation Plan given in PC-1 and released the funds even for dropped schemes causing colossal loss to the national exchequer---High Court had rightly observed that accused/petitioner had advanced 20% mobilization amount to those companies and persons, whose works were dropped and for those schemes that were not found feasible---Many schemes for which more than 80% amount had been released did not exist on ground but funds were released with active connivance of the accused---Fact remained that the corruption and/or corrupt practice, which were alleged against the accused pertained to a period prior to his retirement---All the work orders, PC-1, cheques, monitoring reports etc. available on record which were signed and issued by the accused pertained to his tenure as the Project Director---Bail was declined to the accused in circumstances.

Syed Mudassar Ameer, Advocate Supreme Court for Petitioners (in C.P. 1885 of 2017).

Inamul-Haq, Spl. Prosecutor, NAB, Arshad Qayyum, Spl. Prosecutor, NAB and Junaid Iqbal, IO for Petitioners (in C.P. 2259 of 2017).

Inamul-Haq, Spl. Prosecutor, NAB, Arshad Qayyum, Spl. Prosecutor, NAB and Junaid Iqbal, IO for Respondents (in C.P. 1885 of 2017).

Shumail Butt, Advocate Supreme Court for Respondents (in C.P. 2259 of 2017).

P L D 2018 Supreme Court 52

Present: Ejaz Afzal Khan, Qazi Faez Isa and Ijaz ul Ahsan, JJ

STATE BANK OF PAKISTAN through Chief Manager, Peshawar and another---Appellants

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN and others---Respondents

Civil Appeals Nos. 1406 and 1407 of 2016, decided on 27th October, 2017.

(On appeal from the judgment dated 04.02.2016 of the Peshawar High Court, Peshawar passed in I.C.As. Nos. 6 and 7 of 2012)

(a) Interpretation of statutes---

----Words appearing in a section (of a statute) were to be read in the context in which they were used.

In the matter of the Rev. James Godfrey MacManaway PLD 1950 PC 149 ref.

(b) Interpretation of statutes---

----Reference to dictionary meaning of a word---Propriety---Reading words into an Act unless it was absolutely necessary to do so was contrary to all rules of construction---Reference to dictionaries by the judges, without first examining the statutory provision and its context, was inappropriate---Such an approach may result in incorporating into the legislation something which it did not contain, and what the Legislature did not intend.

Renula Bose v. Manmath Nath, AIR 1945 Privy Council 108, 110 column 2; Rashid Textile v. Labour Union PLD 1963 SC 293; Zulfiqar Ali Babu v Government of the Punjab PLD 1997 SC 11 and Muhammad Ismail v. The State PLD 1969 SC 241 ref.

(c) Companies Act (XIX of 2017)---

----S. 2(1)(50)---"Promoter" of a company---Definition and meaning.

'Palmer's Company Law' (twenty-fourth edition) (Volume 1, 259); Twycross v Grant, 1877, 2 C.P.D. 469, 541 and 'Company Law by Alan Dignam and John Lowry' (Ninth edition, 2016) ref.

(d) Companies Act (XIX of 2017)---

----S. 2(1)(50)---'Promoter'---Fiduciary duty---Scope---Promoters of a company, in the context of company law, stood in fiduciary relationship to it---Promoters had in their hands the creation and moulding of the company; they had the power of defining how, and when, and in what shape, and under what supervision, it shall start into existence and begin to act as a trading corporation---Two fiduciary duties imposed on a promoter were; first, not to make a secret profit out of the promotion of the company without the company's consent; and second to disclose to the company any interest which he had in a transaction entered into by it.

Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218; Palmer's Company Law, Fiduciary Position of Promoters, page 262 and Company Law by Robert Pennington, third edition, page 464 ref.

(e) Companies Ordinance (XLVII of 1984) [since replaced by the Companies Act (XIX of 2017)]---

----Ss. 412 & 413---Delinquent conduct of directors of a company causing it to go into liquidation---State Bank of Pakistan and Securities and Exchange Commission of Pakistan, liability of---Scope---Authority which incorporated or regulated companies or a central bank were not the "promoters" of a company---Role of a regulator of companies and a central bank was altogether different from the promoters of a company envisaged in S. 412 of the Companies Ordinance, 1984---Liability under Ss. 412 & 413 of the Ordinance attached when there was misapplication or retention of the money or property of the company or any misfeasance or breach of trust in relation to the company---Section 412 of the Ordinance stipulated that, if a person had misapplied, retained, committed misfeasance or breach of trust with regard to any money or property of the company he was liable to restore it, whereas S. 413 of the Ordinance provided that if the business of the company was conducted with intent to defraud creditors of the company or any other person, or for any other fraudulent purpose then those who knowingly did so were personally responsible for the debts or other liabilities incurred as a consequence---Statutory regulatory body, such as the Securities and Exchange Commission of Pakistan (SECP), and a central bank established by statute, such as State Bank of Pakistan (SBP), could not be deemed to commit the illegal acts mentioned in the Ss. 412 & 413 of the Ordinance---Phrases, "taken part in the promotion or formation of a company" (in section 412 of the Ordinance) and carrying out "any business of the company" (in section 413 of the Ordinance) did not include the regulator of companies, regulatory authorities or a central bank---Moreover Ss. 412 & 413 of the Ordinance did not mention SBP or SECP particularly nor referred to regulatory authorities and/or a central bank generally---Sections 412 & 413 of the Ordinance were penal provisions, and penal provisions could not be given an extended meaning to include the State Bank of Pakistan and the Securities and Exchange Commission of Pakistan.

(f) Interpretation of statutes---

----Penal provision---Such a provision was to be construed strictly---Where any penal provision was susceptible to two or more interpretations then the one which did not extend the penalty/liability was to be preferred to one that did.

Maxwell on the Interpretation of Statutes (12th edition); M. V. Joshi v. M. U. Shimpi AIR 1961 SC 1494 and Muhammad Ali v. State Bank of Pakistan 1973 SCMR 140 ref.

(g) Interpretation of statutes---

----Judges not to create liability by interpretative techniques; nor try to rectify what they may assume should have been incorporated in a statute.

Duport Steels Ltd v Sirs, (1980) 1 AER 529, 542 and Muhammad Ismail v. The State PLD 1969 SC 246 ref.

(h) Interpretation of statutes---

----Statute dealing with companies---Any word or phrase in such a statute was to be read and understood in the context of the particular section and then in the context of the statute, and, if its meaning remained ambiguous then reference to judicial precedents on company law and legal treatise on company law explaining the said word or phrase may be had, however, if the meaning still eluded one then legal dictionaries and English language dictionaries could be examined.

Syed Ali Zafar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant (in C.A. No. 1406 of 2016).

Anwar Mansoor Khan, Senior Advocate Supreme Court, Asim Mansoor Khan, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Respondent No. 1 (in C.A. No. 1406 of 2016).

Mudassar Ameer, Advocate Supreme Court for Respondent No.2 (in C.A. No. 1406 of 2016).

Farooq, Section Officer, Finance Department for Respondent No. 3 (in C.A. No. 1406 of 2016).

Qazi Ehsanullah, Advocate Supreme Court for Respondents Nos.4-6 (in C.A. No. 1406 of 2016).

No represented for Respondents Nos. 7, 8, 10 to 28 (in C.A. No. 1406 of 2016).

Nemo for Respondent No. 9 (in C.A. No. 1406 of 2016).

Anwar Mansoor Khan, Senior Advocate Supreme Court, Asim Mansoor Khan, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellant (in C.A. No. 1407 of 2016).

Mudassar Ameer, Advocate Supreme Court for Respondent No.1. (in C.A. No. 1407 of 2016).

Farooq, Section Officer, Finance Department for Respondents Nos.2 and 3 (in C.A. No. 1407 of 2016).

Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Respondent No.4 (in C.A. No. 1407 of 2016).

Nemo for Respondent No. 7 (in C.A. No. 1407 of 2016).

Not represented for Respondents Nos. 5, 6, 8-16 (in C.A. No.1407 of 2016).

P L D 2018 Supreme Court 72

Present: Mushir Alam and Qazi Faez Isa, JJ

SUO MOTU CASE NO. 7 OF 2017

(Action regarding Islamabad, Rawalpindi Sit-in [Dharna])

Suo Motu Case No.7 of 2017, decided on 30th November, 2017.

(a) Constitution of Pakistan---

----Art. 184(3)---Suo motu case regarding a sit-in protest by a religious political party---Persons carrying out violent acts, or advocating or propagating violence, or destroying or damaging property, or abusing, or resorting to hate speech violated the Injunctions of Islam---Persons killing, maiming and injuring, and those destroying or damaging property and those advocating or justifying violence, purportedly in the name of Islam, attempt to denigrate Islam---People of the country were entitled to know the loss of life and property that had been suffered as a result of the sit-in protest---Supreme Court directed that the concerned Ministries should provide information on the particulars of law enforcement personnel who lost their lives; on the number of law enforcement personnel who were injured; on the number of innocent bystanders or members of public who lost their lives; on the number of innocent bystanders or members of public who were injured; on the particulars of the protesters who lost their lives; on the number of protesters who were injured; and the particulars of public and private property destroyed and damaged by the protesters with their approximate value---Order accordingly.

(b) Constitution of Pakistan---

----Arts. 19 & 184(3)---Pakistan Electronic Media Regulatory Authority Ordinance (XIII of 2002), Ss. 20(a), 20(b) & 20(c)---Suo motu case regarding a sit-in protest by a religious political party---Freedom of speech and expression and independence of the media---Scope---Media coverage/broadcast of inflammatory content which incited violence---Report submitted by the police disclosed that media channels were providing live coverage (of the sit-in) as a consequence whereof the extreme measure of taking them off the air was resorted to---When violence was perpetrated against the State and destruction of public and private property was broadcasted without condemnation of the violence, or by justifying it, not only was a platform provided to advocate the protestor's cause but also encouraged them to resort to violence---Everyone was bound to uphold the Constitution, including every media-anchor, politician, and aalim, and those who did not do so did not serve the country---When inflammatory, provocative or abusive statements were broadcasted it had the effect of fanning the flames---Freedom of speech and expression and independence of the media was cherished by the people and guaranteed under the Constitution, however, there was no place in the public discourse to propagate the commission of an offence or to incite people to resort to violence---Broadcasts could not encourage violence, extremism, militancy or hatred---Supreme Court directed the Pakistan Electronic Media Regulatory Authority (PEMRA) to exercise extreme vigilance of the electronic media to ensure that electronic media was strictly complying with the provisions of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, failing which they should be proceeded against in accordance with law---Order accordingly.

(c) Constitution of Pakistan--

----Art. 5---Propogating, broadcasting and maligning the Armed Forces of Pakistan as being something apart from the Executive and not subject to the Constitutoin---Violation of Art.5 of the Constitution.

Mian Abdul Rauf, Advocate-General, Islamabad, Sohail Mehmood, Deputy Attorney General, Salman Qayyum, Joint Secretary, M/o Interior, Khalid Khattak, Inspector General of Police, Islamabad and Liaqat Hayat Niazi, SP, I-9, Islamabad on Court's Notice.

Shafiq-ur-Rehman, Assistant Director (Legal) for IB and ISI.

Razzaq A. Murza, Additional Advocate-General, Punjab for the Punjab.

P L D 2018 Supreme Court 79

Present: Ejaz Afzal Khan and Maqbool Baqar, JJ

Mst. LAIBA SULTAN---Petitioner

Versus

MUHAMMAD NAWAZ and others---Respondents

Criminal Petition No.963 of 2016, decided on 29th November, 2017.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan, Art.185(3)---Power to issue directions of the nature of habeas corpus---Custody of minor(s)---Considerations for welfare of minors---Scope---Petitioiner mother impugned order of High Court whereby her petition of habeas corpus to recover custody of her minor children from her husband was dismissed---Petitioner mother was an Afghan refugee, having no roots or reference in Pakistan and there was no guarantee that she would not remove the minors from jurisdicion of Pakistan and taken them across the border---Attitude and behavior of the minor towards the mother gave way to the apprehension that the minors, at least presently, could not live with mother happily and their custody with mother would not be conducive to their welfare and health development---Supreme Court disposed of the petition with the observation that mother was at liberty to approach the Guardian Court for seeking custody of minors and directed that visitation right of the mother will continue.

Petitioner (In person).

Ch. Waheed, DPG for the State.

M. Siddique Baloch, Advocate Supreme Court for Respondent No.1.

P L D 2018 Supreme Court 81

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

WAQAR ZAFAR BAKHTAWARI and 6 others---Appellants

Versus

Haji MAZHAR HUSSAIN SHAH and others---Respondents

Civil Appeals Nos. 300, 346, 812 and 851 to 854 of 2017, decided on 21st December, 2017.

(Against the judgments dated 03.08.2016, 16.01.2017, 14.04.2017, 22.1.2016, 19.04.2017 and 05.05.2017 of the Islamabad High Court, Islamabad passed in Writ Petitions Nos. 2448, 2612, 4319/2016, 853-854/2015, 636 and 3046/2016)

(a) Interpretation of statutes ---

----Conflicting provisions within a statute---Purposive and harmonious construction---Scope---While interpreting the law, a specific provision of any statute, which was independent in nature, could not and should not ordinarily be held to be redundant, especially on the touchstone of another independent provision of the same statute---All possible efforts should be made to apply and adhere to the rules of purposive and harmonious construction, so that the allegedly conflicting provisions should be reconciled and saved.

Combind Investment (Pvt.) Ltd. v. Wali Bhai PLD 2016 SC 730; Lucky Cement Ltd. v. Commissioner Income Tax, Zone Companies, Circle-5, Peshawar 2015 SCMR 1494; Aftab Shahban Mirani v. Muhammad Ibrahim PLD 2008 SC 779; Collector of Sales Tax and Central Excise (Enforcement) and another v. Messrs Mega Tech (Pvt.) Ltd. 2005 SCMR 1166; Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530 and D.G. Khan Cement Company Ltd. v. Federation of Pakistan and others 2004 SCMR 456 ref.

(b) Words and phrases

----'Valid'---Meaning.

Black's Law Dictionary Fifth Edn. and Words and Phrases (Permanent Edn.) Vol. 44 ref.

(c) Words and phrases

----'Invalid'---Meaning.

Words and Phrases Permanent Edn. Vol. 22-A ref.

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

----Ss. 6 & 17(2)(ii)(b)---Eviction of tenant---Grounds---Expiry of tenancy period---After expiration of the tenancy period, a tenant, though could continue to hold over the possession of the rented premises, but his tenancy was rendered invalid, in that, it had come to an end, and if there was no express consent of the landlord to extend the tenancy period the tenant shall be guilty of having infringed the conditions of tenancy, rendering him liable to be evicted under S.17(2)(ii)(b) of the Islamabad Rent Restriction Ordinance, 2001.

Muhammad Ilyas Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in C.A. 300/2017).

Naveed Malik, Advocate Supreme Court for Appellants (in C.A. 346/2017).

Junaid Akhtar, Advocate Supreme Court for Appellants (in C.A.812/2017).

Faiz Ahmed Jandran, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants (in C.As. 851 and 852/2017).

Raja M. Aleem Khan Abbasi, Advocate Supreme Court for Appellants (in C.As. Nos. 853 and 854/2017).

Mir Afzal Malik, Advocate Supreme Court for Respondents (in C.As. 300 and 853/2017).

Waseem Ahmed Qureshi, Advocate Supreme Court for Respondents (in C.A. 346/2017).

Tariq Khushnood Qureshi, Advocate Supreme Court for Respondents (in C.A. 812/2017).

Syed Masood Hussain, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in C.As.851 and 852/2017).

Sajid Ilyas Bhatti, Advocate Supreme Court for Respondents (in C.A. 854/2017).

Syed Najmul Hassan Kazmi, Senior Advocate Supreme Court and Sardar Muhammad Aslam, Advocate Supreme Court as Amici curiae.

P L D 2018 Supreme Court 91

Present: Ejaz Afzal Khan, Dost Muhammad Khan and Ijaz ul Ahsan, JJ

SIRAJ AHMED through LRs.---Petitioner

Versus

FAYSAL BANK LIMITED and others---Respondents

Civil Petiiton No.2064 of 2016, decided on 8th December, 2017.

(Against judgment dated 28-4-2016 of Lahore High Court, Bahawalpur Bench, Bahawarpur passed in EFA No.4 of 2016).

Civil Procedure Code (V of 1908)---

----O. XXI, Rr. 66, 67, 68 & 89---Auction proceedings---Legal and procedural errors during execution proceedings---Reserve price for the property did not appear to have been fixed---Nothing on record indicated that auction was widely publicized through advertisement in the newspapers and affixation of the proclamation/notices on and in the vicinity of the property to be auctioned and on the notice board of the Court house---Subject property was valuable agricultural property and could have attracted many buyers, had it been properly advertised, but the notice of auction was only published in an unknown newspaper, that too a day before the auction, because of which only three persons participated in the auction proceedings---Perusal of notice of auction showed that the same did not take place at the location of the property which was sought to be sold---On the contrary, the auction was held in the premises of the Bank, i.e. the decree holder, which by itself made it highly suspect---Evaluation report prepared by an approved firm of Engineers and Architects was placed on record which showed that the property was valued much in excess of the amount paid by the auction purchaser---Subject property was sold at a throwaway price in an auction which did not prima facie appear to be fair, transparent and above board---Serious legal and procedural errors were committed at all stages of the execution proceedings which had caused serious miscarriage of justice---Supreme Court remanded the case to the Executing Court (Banking Court) with the directions that a fresh auction shall be conducted in accordance with law; that the auction purchaser shall have the right to participate in the fresh auction and he shall also be given the right of first refusal if he matched the highest bid; that in the event the auction purchaser did not wish to participate in the fresh auction or exercise his right of first refusal, the Bank shall refund to him the entire amount paid by him together with mark up at the rate fixed by the State Bank from the date of the auction till the amount was refunded to him, and that the Bank shall also have the right to claim cost of funds in accordance with the judgment and decree passed by the Banking Court---Appeal was allowed accordingly.

Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2 2013 SCMR 1419 ref.

M. Akram Sheikh, Senior Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Petitioiner.

Ch. Faiz Ahmed Sanghera, Advocate Supreme Court for Respondent No.1.

Ch.Ali Muhammad, Advocate Supreme Court for Respondent No.2.

P L D 2018 Supreme Court 97

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

SARDAR SHER BAHADAR KHAN and others---Appellants/Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary, Election Commission, Islamabad and others---Respondents

Civil Appeals Nos. 508 and 681 of 2017 and Civil Petition No. 1640 of 2017, decided on 20th December, 2017.

(Against the judgments all dated 6.4.2017 of the Peshawar High Court, Peshawar passed in Election Appeals Nos. 1-A/2016, 1-A/2015 and 2-P/2015 respectively)

(a) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----S. 78A---Disqualification on ground of defection---Prospective effect of an amendment to a statute---Scope---Election schedule for elections of District Nazim and Naib Nazim was announced on 19.8.2015 for the elections to be held on 30-8-2015; in the meantime, on 24.08.2015, S.78A was introduced in the Khyber Pakhtunkhwa Local Government Act, 2013 by way of amendment providing for disqualification on ground of defection---Plea of apellants that the process of elections had commenced with the notification dated 19.8.2015, whereas the amendment was introduced on 24-08-2015, therefore said amendment would not have any retrospective effect, and was not applicable to the elections in issue; held, that issuance of election schedule had nothing to do with the law pertaining to disqualification on grounds of defection in terms of S.78A because the election had to take place on 30.8.2015 and on the same day nomination papers had to be filed---Nomination papers for the elections were not to be filed before the 30.08.2015 or even before the amendment which introduced S.78A---Considering the purpose and object of the amendment, namely, to curb the mischief of horse-trading and defection, it was clear that the law was amended and S. 78A was introduced just few days prior to election with the clear intention to apply it to future elections---Necessary intendment of the legislature could be validly drawn that it was meant to apply to the forthcoming elections to be held on 30-8-2015---Moreover, by virtue of the amendment, no substantive rights of the appellants had been infringed, because not only the voting had to take place on 30-8-2015 but also the nomination papers were to be filed on the said date.

(b) Interpretation of statutes---

----Prospective effect of an amendment to a statute---Scope---Statute or any amendment thereto ordinarily operated prospectively unless, by express enactment or necessary intendment, retrospective operation had been given to it.

Gul Hasan & Co. and 5 others v. Allied Bank of Pakistan 1996 SCMR 237; Pakistan Steel Mills Corporation v. Muhammad Azam Katper and others 2002 SCMR 1023; Zakaria H.A. Sattar Bilwani and another v. Inspecting Additional Commissioner of Wealth Tax, Range-II, Karachi 2003 SCMR 271; Zila Council, Sialkot through Administrator v. Abdul Ghani Proprietor Iqbal Brothers, Sialkot and others PLD 2004 SC 425 and Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314 ref.

(c) Election Commission Order [Chief Executive's Order 1 of 2002] ---

----Art. 8(2)---Decisions of Election Commission---Quorum---Election Commission was comprised of five members but nowhere it had been provided in law that any decision of the Commission shall be taken by all of its five members---Contrary to the same, in Art. 8(2) of the Election Commission Order, 2002 any order passed by the Commission by members less than its total strength had been protected by specifically providing that no action taken or thing done by the Commission shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof.

(d) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013)---

----S. 78A---Disqualification on grounds of defection---Party Head, powers of---Scope---Authority to issue show cause notice, to consider the reply thereto and to declare a member to have defected, laid with the party Head; however, the said authority may also be vested with the nominee of the party Head---Every member of a political party was bound to follow the directions issued by the political party/party Head, not only with regard to casting the vote or to abstain from voting in the election of the Nazim or Naib Nazim, but also regarding vote of confidence or no-confidence and the approval of annual budget.

(e) Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013) ---

----S. 78A---Disqualification on grounds of defection---Instructions by party Head---Proof---Elections for District Nazim and Naib Nazim---Apellants were alleged to have cast their votes in favour of the opposition candidates resulting in the defeat of the candidates nominated by the party Head---Declaration of defection was made against the apellants by the party Head in terms of S. 78A of the Khyber Pakhtunkhwa Local Government Act, 2013, and the reference sent to the Election Commission in such respect was also allowed agaisnst the apellants---Plea of apellants that the party nominated candidates had boycotted the election on election day, and in the absence of specific instructions from the party Head, they cast their votes in favour of the opposition candidates; held, that after party nominated candidates boycotted the election on election day, notwithstanding the fact whether there was any specific or implied direction issued by the party Head to cast the vote in favour of party nominated candidate or not, the same (direction) even if issued became redundant---When the appellants had specifically denied the issuance of party instructions, especially when the party nominated candidates had boycotted the election, it was incumbent to prove through sound evidence that the necessary direction was issued by the party Head or his nominee to vote in favour of certain candidate or to refrain from casting their vote---Election Commission conceded that there was no written proof that the direction by party Head was issued, however, submitted that such direction was communicated verbally to the appellants---No single affidavit had been produced by the party leadership to show as to when, how and who communicated the verbal direction to the appellants---In absence of specific direction of the party Head with regard to abstaining from casting the vote, the appellants had not defected the party---Resultantly, declaration of appellants' defection, which was upheld by the Election Commission was declared void.

Sardar Muhammad Aslam, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants/Petitioners (in C.A.508/2017).

Qazi Muhammad Anwar, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants/ Petitioners (in C.A. 681/2017).

M.S. Khattak, Advocate-on-Record for Appellants/Petitioners (in C.P. 1640/2017).

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court and Gohar Ali Khan, Advocate Supreme Court for Respondents (in C.A. 508/2017).

Kamran Murtaza, Senior Advocate Supreme Court for Respondents (in C.A. 681/2017).

Nemo for Respondents (in C.P. 1640/2017).

P L D 2018 Supreme Court 114

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

MUHAMMAD HANIF ABBASI---Petitioner

Versus

JAHANGIR KHAN TAREEN and others---Respondents

Constitutional Petition No.36 of 2016, decided on 15th December, 2017.

(Under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973)

(a) Constitution of Pakistan---

----Art. 184(3)---Writ of quo warranto, issuance of---Discretionary power of the Supreme Court---Scope---Granting relief in the nature of quo warranto was within the discretionary power of the superior Courts---Such relief should not be allowed as a matter of course, rather the conduct and the bona fides of the petitioner, the cause and the object of filing such petition was of considerable importance and should be examined; it should be ascertained if the petition had been filed with some mala fide intent or ulterior motive and to serve the purpose of someone else---Remedy of quo warranto should not be allowed to be a tool in the hands of the petitioners, who approached the Court with mala fide intentions and either had their own personal grudges and scores to settle with the holder of a public office or were a proxy for someone else who had a similar object or motive.

(b) Constitution of Pakistan ---

----Arts. 62, 63 & 184(3)---Writ of quo warranto, remedy of---Scope---Disqualification from membership of Parliament---Remedy of quo warranto should not be permitted to be resorted to for demeaning, intimidating and causing undue harassment to Parliamentarians; it should not be allowed to be used as a pressure tactic for purposes of restraining them from performing their functions and discharging their duties in accordance with the Constitution and the law---Writ of quo warranto could only be issued by the Court against Parliamentarians in exceptional cases---Courts should not lose sight of the fact that Parliamentarians were the elected representatives of the people and had come to the Parliament through a democratic process---Relief of quo warranto should not be allowed as a matter of course, more so when the candidature of a candidate was duly scrutinized at the time of the scrutiny of his/her nomination papers to ascertain whether he was qualified or disqualified in terms of the Constitution and the law---Where the grounds in the petition on the face of it were frivolous, baseless and vexatious and/or on the same grounds the election of the returned candidate was earlier challenged in appropriate proceedings before the Election Tribunal, but the plea(s) was rejected; then coupled with the conduct of the petitioner, the Court was not required to go into the merits of the case and should summarily dismiss the petition on the basis of lack of bona fides and extraneous motives of the petitioner and on account of the petition being frivolous---Where, however, on the consideration of the contents of the petition and the relevant record, the court formed an opinion that there was some substance to the matter, then, simply on account of the fact that some doubt could possibly be cast upon the conduct of the petitioner, the court shall not dismiss the petition summarily, rather it shall hear and decide the matter on merits, obviously not losing sight of the bona fides of the petitioner even then.

(c) Constitution of Pakistan---

----Arts. 62 & 63---Qualifications and disqualifications for membership of Parliament---Scope---In the case of a Parliamentarian, the lack of qualification and disqualification was inherent in nature, and if he (an unqualified or disqualified Parliamentarian) was allowed to stay as a member of the Parliament, he could not be said to be the true and real representative of the people of his constituency as he lacked those inherent qualities and he could not be allowed to perform his functions and discharge his duties as a trustee for the people whom he represented---Besides, it would be against the mandate of the qualifications and disqualifications provided by the Constitution and the law, which command had to be followed and given due effect by the courts in letter and spirit.

(d) Constitution of Pakistan ---

----Arts. 62(1)(f) & 184(3)---Writ of quo warranto, remedy of---Scope---Disqualification from membership of Parliament---Corruption---Power of quo warranto in relation to a Parliamentarian could be validly exercised by the courts if the disqualification attributed to them had direct and close nexus to corruption, because an act of dishonesty was covered by Art. 62(1)(f) of the Constitution.

(e) Criminal trial---

----Criminal liability---Proof---Criminal liability of a person was not determined on the rule of probability, but on the proof of the facts which constituted an offence and that too by a court of competent jurisdiction.

(f) Words and phrases---

----"Without prejudice"---Definition and scope.

[Case-law referred].

(g) Criminal trial ---

----"Admission" of guilt---Principles---Admission had to be considered in the context in which it was made and read as a whole---Admission should not be bifurcated into parts with the 'admitting portions' going against the party being taken into account whilst the parts qualifying the admission were ignored or disregarded.

[Case-law referred].

(h) Constitution of Pakistan ---

----Arts. 62(1)(f) & 184(3)---Securities and Exchange Ordinance (XVII of 1969), Ss. 15-A, 15-B & 15-E---Qualification for membership of Parliament---Insider trading---Constitutional petition before the Supreme Court seeking disqualification of member of Parliament (respondent) for indulging in insider trading---Respondent was never proceeded against under the relevant provisions, adjudged or determined to be guilty of insider trading; prosecuted, convicted or punished, rather it seemed that a settlement between the respondent and the Securities and Exchange Commission of Pakistan was effected to save the respondent, whereby the matter was closed by the latter against the former---Attributing dishonesty to the respondent on account of insider trading, after the lapse of around a decade, could not be made the ground for his disqualification under Art. 62(1)(f) of the Constitution---Rule of past and closed transactions would also come into play in the present case.

(i) Constitution of Pakistan---

----Arts. 62(1)(f) & 184(3)---Writ of quo warranto---Scope---Disqualification from membership of Parliament---When a person was alleged (and not proven) to have violated some law in the past and was elected subsequently as a member of the Parliament, he could not be held to be dishonest under Art. 62(1)(f) of the Constitution in quo warranto proceeding---Where, however, during the term of his office a member of the Parliament was declared by a forum of competent jurisdiction of having incurred a disqualification envisaged by the Art.62(1)(f) he could be removed from the office by the superior Courts in the exercise of their quo warranto jurisdiction.

(j) Estoppel ---

----No estoppel could arise against the law.

(k) Words and phrases

----'Void ab initio'---Scope---No valid structure could be built upon a foundation of law which was void ab initio---No rights and liabilities could be created on the basis of such law.

(l) Vires of law---

----Repealed law---'Past and closed transaction', principle of---Person could not be allowed to challenge a law which stood repealed and no longer existed on the statute book---Such an eventuality shall be covered and protected by the rule of past and closed transactions.

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

----Ss. 12(2) & 99(1)(f)---Constitution of Pakistan, Art. 62(1)(f)---Disqualification from membership of Parliament---Failure to disclose immoveable property in nomination papers for contesting elections---Constitutional petition before the Supreme Court seeking disqualification of member of Parliament (respondent) for failing to disclose in nomination papers the beneficial ownership of immoveable property in a foreign country owned by an off-shore company---Once the veil of incorporation of the off-shore company was lifted, the respondent could be seen to be the true and actual owner of the property, which was under the name of the company---Seemingly the off-shore company was created as a repository to hide respondent's tax paid money, sent through banking channels and shown to have been spent on the creation of the company and the purchase/construction of subject property; but this was done in a clandestine and dubious manner---Object behind such exercise was to hide and stash the said money, the company and the subject property from the tax authorities and from the public eyes---Respondent had not placed proof on the record that the amounts he transferred to his personal bank account abroad were utilized for the purchase etc. of the subject property and whether they were ever transferred to the off-shore company for such purpose---Respondent was, had been and remained to be the true, real and beneficial owner of the subject property enjoying full control and discharging all the obligations of an owner---Respondent was required under the law to declare such property and the asset in his nomination papers filed to contest the elections---On account of such concealment respondent could not be held to be an "honest" person within the contemplation of Art.62(1)(f) of the Constitution and S.99(1)(f) of Representation of the People Act, 1976, therefore he had incurred the disqualification to be the member of the Parliament and ceased to be the member thereof---Besides on account of respondent's unequivocal stance in the concise statement that he had no beneficial interest in the trust arrangement created under the off-shore company or the subject property, was also an untrue statement made by him before the highest judicial forum of the country---On said account also respondent not being "honest" stood disqualified under the provisions of the Constitution and the law---Supreme Court directed that the respondent should cease to hold the office of member of the National Assembly with immediate effect---Constitutional petition was allowed accordingly.

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

----Art. 122---Burden of proving fact especially within knowledge---Scope---Article 122 of the Qanun-e-Shahadat, 1984 stipulated that if a particular fact was especially within the knowledge of any person the burden of proving that fact was upon him.

[Case-law referred].

(o) Trusts Act (II of 1882) ---

----S. 6---Trust---Certainties of a trust---For the purposes of a valid trust, three conditions were essential and must co-exist and in the absence of any one condition, no valid trust would come into existence---Said conditions also known as 'three certainties' of the trust' were, that it was necessary that the settlor demonstrated that a trust was intended and its purpose; that he demarcated the property that was to be the subject of that trust and, that he identified who were the beneficiaries of the trust.

(p) Constitution of Pakistan ---

----Arts. 62(1)(f) & 184(3)---Punjab Agricultural Income Tax Act (I of 1997), S. 3(3)---Qualification for membership of Parliament---Agricultural income tax---Constitutional petition before the Supreme Court seeking disqualification of member of Parliament (respondent) for alleged misdeclaration and short payment of the agricultural income tax and vital discrepancies in the declaration of agricultural income in the tax returns---No declaration could be made against the respondent at present stage because the matter of alleged inaccurate declaration in respect of agricultural income tax was sub judice before different forums in the income tax hierarchy and even before the Supreme Court---Besides, no action so far for the alleged misdeclaration or short payment had been taken against the respondent by the authorities under the Punjab Agricultural Income Tax Act, 1997.

(q) Constitution of Pakistan---

----Arts. 63(1)(n) & 184(3)---Qualification for membership of Parliament---Written off loan---Constitutional petition before the Supreme Court seeking disqualification of member of Parliament (respondent) for being the Director of a company which had loans written off by the banks---No details had been provided by the petitioner in the petition as to the period when the respondent was the Director of the said company; what was his shareholding; who were the family members of the respondent managing the affairs of the company; and what was the period when such loans were written off---Petitioner also did not prove that the company was under the managing control of the respondent or his family members when the loans were written off---Resultantly respondent had not incurred disqualification under Art.63(1)(n) of the Constitution because of the written off loans.

Muhammad Akram Sheikh, Sr. Advocate Supreme Court, Azid Nafees, ASC, (Assisted by Ms. Gulalay Zeb and Ms. Maham Ahmed, Advocates) and Syed Rifaqat Hussain Shah, AOR for Petitioner.

Sikandar Bashir Mohmand, Advocate Supreme Court, (Assisted by Syed Zulqarnain Safdar, Advocate) and Tariq Aziz, Advocate-on-Record for Respondent No.1.

Muhammad Waqar Rana, Additional Attorney General for Pakistan and M. S. Khattak, Advocate-on-Record for Respondent No.2.

Hamid Ali Shah, Advocate Supreme Court, and Mehr Khan Malik, Advocate-on-Record for Respondent No.3.

Raja M. Ibrahim Satti, Sr. Advocate Supreme Court, Raja M. Rizwan Ibrahim Satti, Advocate Supreme Court, M. Arshad, D.G. (Law), ECP and Malik Mujtaba Ahmed, Addl.D.G.(Law) ECP for Election Commission of Pakistan.

Ashtar Aausaf Ali, Attorney General for Pakistan (On Court's Notice).

P L D 2018 Supreme Court 178

Present: Mian Saqib Nisar, C.J., Sardar Tariq Masood and Faisal Arab, JJ

PROVINCE OF PUNJAB through Secretary Punjab Public Prosecution Department and another---Appellants

Versus

MUHAMMAD RAFIQUE and others---Respondents

Civil Appeals Nos.955 and 956 of 2014, decided on 22nd December, 2017.

(Against the judgment dated 16-4-2014, passed by the Lahore High Court, Rawalpindi Bench, in Writ Petitons Nos.3054 and 3275 of 2012).

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

----S. 6 & Preamble---Cases not attracting the provisions of Anti-Terrorism Act, 1997---Scope---Personal vendetta or enmity---Preamble of the Anti-Terrorism Act, 1997 clearly indicated that the said Act was promulgated for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences---In cases of the terrorism, the mens rea should be an object to accomplish the act of terrorism and carrying out terrorist activities to overawe the state, the state institutions, the public at large, destruction of public and private properties, assaulting the law enforcing agency and even at the public at large in sectarian matters---Ultimate object and purpose of the offending act must be to terrorize the society but in ordinary crimes committed due to personal vendetta or enmity, such elements were always missing, so the crime committed only due to personal revenge could not be dragged into the fold of terrorism and terrorist activities.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 ref.

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

----S. 6 & Preamble---Cases attracting the provisions of Anti-Terrorism Act, 1997---Pre-requisites---Creating terror or sense of insecurity in the general public---Courts while deciding the question of attraction of the provisions of the Anti-Terrorism Act, 1997 had to see the manners in which the incident had taken place including the time and place and should also take note of whether the act created terror or insecurity in the general public---Where the action of the accused resulted in striking terror or creating fear, panic and sense of insecurity among the people in a particular vicinity, it amounted to terror within the ambit of S.6 of the Act---Courts were required to see whether the terrorist act was such that it would have the tendency to create the sense of fear or insecurity in the minds of the general public as well as psychological impact created in the mind of the society---Courts could form their opinion after going through the facts, circumstances and material so collected by the police in the case.

(c) Constitution of Pakistan---

----Art. 185(3)---Leave grating/refusing order by the Supreme Court---Scope---Such order could be issued on the basis of the pleadings of the parties simpliciter, without any appraisal of the underlying factual or legal aspect of the case, as such, it could not be considered as definitive and conclusive declaration of law.

Cantonment Board, Rawalpindi through its EO and others v. Lt. Col (Retd) Allah Dad Khan and another 2015 SCMR 832 and Haji Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708 ref.

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

----Ss. 6 & 23---Transfer of case from Anti-Terrorism Court to court of ordinary jurisdiction---Scope---Personal enmity over property---Admittedly there was a dispute of a plot where the occurrence took place---Prosecution's own case was that the complainant had filed a civil suit and on his application for initiation of contempt proceedings against the accused persons, a bailiff of the Court was appointed---Application of contempt of court and appointment of bailiff triggered the enmity which resulted in the present occurrence---Allegedly five persons fired specifically at complainant's wife (deceased) hitting on her legs, but till that time there was no allegation of creating terror and insecurity in the general public---Subsequently, it was alleged that 26 persons, in order to create terror and insecurity in the general public, made indiscriminate firing, but, such allegation was not supported from any source as neither any crime empty was recovered from the place of occurrence nor anybody else received even a scratch on his person due to said indiscriminate firing---Due to the alleged indiscriminate firing not a single bullet hit on the walls of the plot in question which were 2.3 feet high---Furthermore, according to the complainant party, two police constables, who were guarding the complainant, were present at the place of occurrence, but it was not alleged by the prosecution that they were restrained by the accused persons to discharge their duties or anybody fired upon them or threatened them---Bailiff of the court and police constables, never claimed that they were fired at or they were threatened by the accused persons, instead they were subsequently introduced as accused persons in the case for abatement---Perusal of the allegations levelled in the FIR, the material so collected by the investigating officer and other surrounding circumstances of the case, showed that the present case was not triable under the provisions of the Anti-Terrorism Act, 1997---Appeal was dismissed accordingly.

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

----S. 173---Joint Investigation Team (JIT) formed to probe into a crime---Report of JIT---Evidentiary value---Said report, which was an opinion of the members of JIT, could at the most be considered, as a report under S.173 Cr.P.C.---Report under S.173 Cr.P.C. was inadmissible in evidence.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 ref.

(f) Constitution of Pakistan---

----Art. 4(1)---Right "to be treated in accordance with law"---Scope---Phrase "to be treated in accordance with law" under Art. 4(1) of the Constitution, included that every citizen must be dealt with in accordance with the law applicable to him, subject to, of course, the facts and circumstances of the case---Where any person was triable under the ordinary penal law then treating him under special law, not clearly applicable to him, would be a violation of the command of the Constitution.

(g) Interpretation of statutes ---

----Penal statute---Interpretation---Whenever a penal statute required interpretation, it shall be interpreted in a way which favoured the accused person and not the prosecution or the State---Two interpretations of a statute should be interpreted in such manner that the interpretation favouring the accused should be adopted.

Ch. Muhammad Sarwar Sidhu, Addl. PG and Riaz-ul-Haq, DSP for the State (in C.A. No.955 of 2014).

Kh. Haris Ahmed, Senior Advocate Supreme Court and Tariq Aziz, Advocate-on-Record for Appellant (in C.A.No.956 of 2014).

Syed Zahid Hussain Bokhari, Advocate Supreme Court for Respondents Nos.1-4 (in C.A.No.955 of 2014).

Nemo for Respondent No.11 (in C.A.No.955 of 2014).

Raja Abdul Ghafoor, Advocate on Record for Respondents No.1, 2, 18-19 (in C.A.No.956 of 2014).

Nemo. for Respondent No.6 (in C.A.No.956 of 2014).

Nemo for other Respondents.

P L D 2018 Supreme Court 189

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Faisal Arab, JJ

MUHAMMAD HANIF ABBASI---Petitioner

Versus

IMRAN KHAN NIAZI and others---Respondents

Constitutional Petition No.35 of 2016, decided on 15th December, 201

(Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973).

Per Mian Saqib Nisar, C J; Umar Ata Bandial and Faisal Arab, JJ, agreeing.

(a) Political Parties Order [Chief Executive's Order No.18 of 2002] ---

----Arts. 2(c)(iii), 3(4)(f) & 6(3)---Constitution of Pakistan, Art.17(2)---Political parties---Foreign funding, restrictions on---Object, purpose and rationale embedded in Art. 3(4)(f) read with Art. 2(c)(iii) of the Political Parties Order, 2002 was to bar political parties from having anything to do with foreign countries, and to ensure total and complete insulation from foreign elements in order to protect the sovereignty and integrity of the country as enshrined in Art. 17(2) of the Constitution.

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 ref.

(b) Interpretation of statutes ---

----Definition clause---Scope---Definition clause was generally meant to be declaratory in nature for the purposes of assigning some meaning to a particular word or phrase that appeared in the operative provisions of a statute---Definition must not be inflicted unnecessarily where it did not fit with the context or the subject.

Bank of Bahawalpur Ltd. v. Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore PLD 1977 SC 164 ref.

Iftikhar Ahmad v. President, National Bank of Pakistan PLD 1988 SC 53 ref.

(c) Political Parties Order [Chief Executive's Order No.18 of 2002] ---

----Arts. 2(c)(iii), 3(4)(f), 6(3) & 15(1)---Constitution of Pakistan, Art.184(3)---Foreign aided political entity---Allegation that a political party was a foreign aided political entity---Jurisdiction of Federal Government to declare a political party being foreign funded---Scope---Constitutional petition before the Supreme Court seeking directions in the nature of quo warranto and dissolution of a political party on the allegation that it was a foreign-aided political party---Federal Government was the competent forum to determine whether a political party was a foreign-aided political party in terms of Art.2(c) of the Political Parties Order, 2002 and thus its formation was prohibited by Art.3(4)(f) thereof attracting the consequence of a declaration of its dissolution---Once the Federal Government made such a declaration by a notification in the official Gazette as per Art. 15(1) of the Order, only then could the Supreme Court take cognizance of such matter upon a reference made by the Federal Government---Consequently it was not proper for the Supreme Court to bypass the mandate of Political Parties Order, 2002 making it redundant and nugatory, by exercising jurisdiction in terms of Art. 184(3) of the Constitution to peremptorily adjudicate the petitioner's objection that the political party in question was a foreign aided political party---Supreme Court declared that the petitioner lacked the locus standi to seek the declaration that the respondent-political party was a "foreign-aided party", and that such a declaration was absolutely alien to the nature of a quo warranto petition---Constitutional petition was dismissed in circumstances.

(d) Political Parties Order [Chief Executive's Order No.18 of 2002]---

----Arts. 6(3), 13(2) & 15(1)---Political Parties Rules, 2002, R. 6(3)---Constitution of Pakistan, Art. 184(3)---Contributions and donations received by a political party from foreign prohibited sources---Election Commission of Pakistan, jurisdiction of---Constitutional petition before the Supreme Court seeking dissolution of a political party on the allegation that it received contributions and donations from foreign prohibited sources---Election Commission had all the necessary authority to ask for and collect the requisite information and facts that enabled it to decide and determine whether the contributions or donations accepted by a political party were prohibited under Art.6(3) of the Political Parties Order, 2002---Such action had to be undertaken after giving notice to such political party and an opportunity of hearing leading to confiscation of such prohibited contribution and donation in favour of the State for deposit in the Government Treasury or sub-Treasury---Election Commission could exercise such authority on its own motion (i.e. suo motu") based upon the facts available in the public domain or revealed by information provided to it or on an application by a third party, subject to the condition that the information emanated from a credible source; that it was reliable and verifiable and was not a mala fide fabrication meant to harass and prejudice a political party, its leaders or its members---Record or information that precipitated the penal action against a political party was to be entertained within a (reasonable) period of five years of the date on which its objected account was published in the official Gazette---Forum and penalty provided to determine whether contributions or donations were received from prohibited sources were different and distinct from the forum and penalty provided to determine whether a political party was a foreign-aided political party---Where the Election Commission came to the conclusion that a case fell within the mischief of Art. 6(3) of the Political Parties Order, 2002, the penalty provided was confiscation of such contributions or donations, but the Election Commission could not impose a ban on the political party which action was restricted to only foreign-aided political parties to be decided by the Federal Government and the Supreme Court---Alleged falsity of the certificates issued by the head of the respondent-political party under Art.13(2) of the Political Parties Order, 2002 was a secondary fact, ascertainable by a competent Court of law after the Election Commission gave its findings whether any prohibited funding had been received and collected by the political party in question in terms of Art. 6(3) of the Political Parties Order, 2002---Supreme Court declared that in view of the non-determination of the primary facts by the competent fora, i.e. the Federal Government and the Election Commission, it was not inclined to adjudicate the relief claimed by the petitioner that the respondent was disqualified under Art. 62(1)(f) of the Constitution for having filed false certificates under Art. 13(2) of the Political Parties Order, 2002---Constitutional petition was dismissed in circumstances.

(e) Administration of justice---

----Where the law required something to be done in a particular manner, it must be done in that manner.

(f) Administration of justice---

----What could not be done directly could not be done indirectly.

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

----Ss. 12(2)(f) & 42A---Income Tax Ordinance (XXXI of 1979), Ss.58 & 59D (since repealed)---Constitution of Pakistan, Arts. 62(1)(f) & 184(3)---Qualification for membership of Parliament---Immoveable property in the name of an offshore company---Constitutional petition before the Supreme Court seeking disqualification of member of Parliament (respondent) for non-disclosure of property in the nomination papers, statement of assets and liabilities and income tax returns---[Per Mian Saqib Nisar, CJ] Respondent whilst acting upon legal advice, put the legal ownership of the immoveable property in an offshore company---Respondent was neither a shareholder nor a director of the said company---Sole purpose of the offshore company was to own and hold the property for the benefit of the respondent, as such the respondent was the beneficial owner of the property which was the only asset held by the offshore company---Since the petitioner failed to bring forth any concrete evidence to establish a different purpose for the offshore company, respondent's contention that the company was created solely to own and hold the property in order to avoid capital gains tax could be lieved---Property held by the company was declared by the respondent under an Amnesty Scheme granted pursuant to S.59D of the Income Tax Ordinance, 1979 (since repealed) therefore, the respondent was under no legal obligation to disclose the property as an asset either in his income tax returns or his statement of assets and liabilities filed with the Election Commission along with his nomination papers or in his annual returns filed under S.42A of the Representation of the People Act, 1976---After the income with which the property was purchased and the value of the flat itself was declared by the respondent under the Amnesty Scheme, he declared that property in his statement of assets and liabilities attached with his nomination papers in the general election held in the year 2002, which was the first time that the respondent got elected as a member of Parliament and became the holder of public office, therefore he duly declared the property prior to the assuming a public office---Declaration of the property in the Amnesty Scheme followed by its disclosure in the respondent's wealth statement filed under S. 58 of the Ordinance, 1979 and reporting the same in the statement of assets and liabilities annexed by the respondent with his nomination forms in the general election of 2002, he could not be faulted for concealment or misdeclaration under the taxation laws of the country or the Representation of the People Act, 1976---Finally, when the property was sold in the year 2003, the obligation of the respondent to declare the same ended---No substantive material was found on record for holding that the respondent had incurred a disqualification under Art. 62(1)(f) of the Constitution---[Per Faisal Arab, J] Documents filed by the petitioner showed that respondent did not hold a single share in the offshore company---Respondent only hired services of companies that acted as trustees and held assets in trust for the benefit of the real owner---Respondent purchased subject property in the name of the offshore company for the purposes of availing tax exemptions, which was held in trust for him---Neither the offshore company held any proprietary interest in the subject property nor did respondent possess any proprietary interest in the offshore company, so it was the subject property and not the offshore company of which respondent was the real owner, hence he was only obligated to disclose the subject property as his asset, which he did in his nomination form that was filed in the 2002 general elections---Further the offshore company was not incorporated to park assets acquired from wealth accumulated through embezzlement or bribery or through tax evasion to keep it hidden from public eye---Present case was a case of acquisition of an asset from legitimate tax paid income earned abroad and that too at a time when respondent was a non-resident Pakistani holding no public office --- After securing full discharge from income tax and wealth tax liability under the Amnesty Scheme, the respondent listed the subject property as one of his assets in his nomination form filed in the general elections held in the year, 2002---With the declaration of the subject property and the payment of requisite tax under the Amnesty Scheme, the cause of action for its non-disclosure under the tax laws also died with it---Constitutional petition was dismissed in circumstances.

(h) Words and phrases

----'Amnesty'---Definition.

Words and Phrases, Permanent Edition, Vol. 3, ref.

(i) Constitution of Pakistan ---

----Arts. 62(1)(f) & 184(3)---Qualification for membership of Parliament---Constitutional petition before the Supreme Court seeking disqualification of member of Parliament (respondent) for engaging in money laundering and tax evasion with regard to a property that was allegedly shown to be a gift from respondent's former wife---Record showed that the purchase price of Rs.43.5 million for the subject property was paid to the extent of Rs.7.3 million by the respondent and the balance amount of Rs.36.2 million was paid with amounts converted from foreign currency remittances made by the ex-wife of the respondent---Method adopted by the respondent for arranging timely funding for the sale consideration through his wife was a lawful arrangement---Respondent repaid his ex-wife from the sale proceeds of another lawfully declared property in order to settle the funding temporarily provided by her---Money trail for the purchase of the subject property by the respondent had been duly established before the court---No element of fraud, money laundering or misdeclaration on behalf of the respondent was found on record in such regard, warranting his disqualification under Art.62(1)(f) of the Constitution---Subject property was owned by the respondent after it was orally gifted to him by his ex-wife vide a gift mutation after their divorce became effective---Prior to that, the subject property had been purchased by the respondent as a family home for his wife and children for which the financial provision extended by his wife was more than reimbursed by the respondent---In view of such facts and circumstances it could not be concluded that the gift was a sham and fraud attracting disqualification of respondent under Art. 62(1)(f) of the Constitution---Constitutional petition was dismissed in circumstances.

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

----Ss. 12(2)(f) & 42A---Income Tax Ordinance (XLIX of 2001), S.116(2)---Constitution of Pakistan, Arts. 62(1)(f) & 184(3)---Qualification for membership of Parliament---Constitutional petition before the Supreme Court seeking disqualification of member of Parliament (respondent) for allegedly failing to disclose an amount paid as advance for the purchase of an apartment in his tax returns, and also failing to disclose such apartment in his statement of assets and liabilities before the Election Commission---[Per Mian Saqib Nisar, CJ] Deposit paid by the respondent for the apartment did not constitute an asset because no sale had been effected in favour of the respondent---In terms of the law, only a sale transaction had been initiated---At best on the payment of the deposit or advance amount, the respondent had an agreement to sell in his favour---Neither the sale price had been paid nor the apartment was transferred to the respondent, thus, there was no property which may be considered to be the respondent's asset, rendering him liable to disclose the same in his statement of assets and liabilities filed before the Election Commission---At the time of filing his statement of assets and liabilities in the year 2014 before the Election Commission, the respondent did not have a specific asset to declare---In the following year, the respondent was allotted the flat and declared the same both in his assets and liabilities statement filed with his income tax return for the tax year 2015 as well as his annual return under S.42A of the Representation of the People Act, 1976 filed with the Election Commission---No misdeclaration of assets or dishonesty was committed by the respondent in relation to the apartment in his annual return filed with the Election Commission---[Per Faisal Arab, J] Apartment was booked in a building which was under construction against which an advance payment was made by the respondent during the income year 2013-14 which was declared in the tax year 2014 after which further installment was paid in the tax year 2015, which was also reflected in the income tax returns---Occasion to make full payment and get the apartment transferred in respondent's name had not yet arrived as the construction of the building had not been completed at the time---Since the title in the apartment located in an under construction building was yet to vest in the respondent, he was not liable to disclose it in his statement of assets and liabilities in the year 2014 or for that matter in 2015 with the Election Commission---Constitutional petition was dismissed in circumstances.

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

----S. 12---Agreement to sell immoveable property---Such agreement did not create any right, interest or title in the immovable property.

(l) Interpretation of the Constitution---

----Each and every word in the Constitution bears a meaning and place, which must be given effect because redundancy cannot be assigned to the Constitution.

(m) Constitution of Pakistan---

----Art. 62(1)(f)---Qualification for membership of Parliament---Dishonesty---Element of dishonesty was an essential element of disqualification under Art. 62(1)(f) of the Constitution.

Mehmood Akhtar Naqvi v. Federation of Pakistan PLD 2012 SC 1089 ref.

Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others PLD 2010 SC 817 ref.

(n) Constitution of Pakistan---

----Arts. 184(3), 10A & 25---Proceedings before the Supreme Court under Art. 184(3) of the Constitution---Scope---Such proceedings were inquisitorial in nature and were meant to safeguard and promote Constitutional rights of the people---Said proceedings were free of technical constraints imposed by the procedural and evidentiary laws---Limits, however, were imposed by Constitutional guarantees of due process, fair trial and non-discriminatory treatment embedded in the Fundamental Rights---Quest to protect the Fundamental Rights of the people under Art.184(3) of the Constitution could not be pursued by defeating the Fundamental Rights of a Respondent before the Supreme Court.

General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra v. Director Industries and Mineral Development Punjab 1994 SCMR 2061 at page 2071 ref.

(o) Constitution of Pakistan ---

----Art. 184(3)---Proceedings before the Supreme Court under Art.184(3) of the Constitution---Evidence, presentation of---Principles---In proceedings under Art. 184(3) of the Constitution, the Supreme Court is empowered to ask for relevant and reliable evidence from the parties to the lis or from third persons irrespective of whether such evidence was otherwise withheld by them---Whole process entailed queries being posed by the (Supreme) Court and directions being issued to persons to produce evidence on record that was relevant to the matters under scrutiny---Queries or directions emanating from the (Supreme) Court may travel beyond the pleas set out in the pleadings of the parties because their answers were necessary to resolve a controversy pending before the Court---Such queries and directions, therefore, could not always be anticipated by the persons who were asked to provide evidence or information---Such feature of the inquisitorial jurisdiction under Art.184(3) of the Constitution justified considerable indulgence representing a fair and generous opportunity being granted to a party or person to answer a query or comply with a direction that was otherwise unexpected or for which it was unprepared.

(p) Constitution of Pakistan

----Art.62(1)(f)---Public representatives---Fiduciary duties---Scope---Fundamental Right of people that their public representatives discharged their offices in public interest and not for their personal gain---Such public officers were fiduciaries discharging a trust vested in them by the people for which office the attributes, inter alia, of probity, honesty, integrity and trustworthiness were Constitutional requirements---Fulfilment of said conditions by the decision makers in Parliament and in government was essential for the existence and progress of a democratic and law based order in the polity which was a basic feature of the Constitution.

Per Faisal Arab, J; agreeing with Mian Saqib Nisar, CJ.

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

----Ss. 12(2)(f), 14(3)(c) & 52---Nominations papers---Omission to declare an asset---Even an innocent omission to declare an asset at the time of filing of the nomination form may result in the rejection of candidate's nomination under S.14(3)(c) of the Representation of the People Act, 1976---Where for any reason that did not happen then after the elections he could be unseated for such an omission by the Election Tribunal through an election petition.

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

----Ss. 12(2)(f), 42A & 99(1)(f)---Constitution of Pakistan, Art.62(1)(f)---Nominations papers---Omission to declare an asset---'Dishonesty'---Scope---Attributing dishonesty to every omission to disclose an asset should not be made a rule set in stone and applied to disqualify a member on the touchstone of S.99(1)(f) of the Representation of the People Act, 1976 or Art.62(1)(f) of the Constitution---Court should not close its eyes to an omission which on the face of it could not be said to be dishonest as it would turn Ss.12(2)(f) & 42A of the Representation of the People Act, 1976 into a sword hanging over the heads of the members of the National Assembly and the Provincial Assemblies, embroiling many of them in frivolous litigation even with regard to assets acquired prior to assuming the responsibilities of their office or acquired with clean money.

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

----S. 99(1)(f)---Constitution of Pakistan, Arts.62(1)(f) & 184(3)---Quo warranto proceedings---Scope---Omission to declare an asset acquired after becoming member of Parliament---Where an asset was acquired by a member (of Parliament) or his spouse or any of his dependents after becoming a member and it surfaced through any source, which he had failed to disclose, the member in quo warranto proceedings could be called to explain the means of its acquisition---Where he was unable to extend a judicially acceptable explanation, only then such non-disclosure would be regarded as a failure to pass the test of honesty as envisaged under S. 99(1)(f) of the Representation of the People Act, 1976 read with Art. 62(1)(f) of the Constitution.

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

----S. 99(1)(f)---Constitution of Pakistan, Arts. 62(1)(f) & 184(3)---Quo warranto proceedings---Omission to declare an asset acquired before becoming member of Parliament---Dishonesty, attribution of---Scope---Person's honesty prior to his becoming a member of the National or a Provincial Assembly could be called in question only if he had accumulated wealth through fraud, embezzlement, bribery or tax evasion and had been so declared by a competent court of law---Where a member was attributed to be financially corrupt before he had entered the arena to contest election for a seat in the National or Provincial Assembly then the complainant must demonstrate without any ambiguity that such a member had been declared by a court of law to be financially dishonest---Term 'honest' contained in Art.62(1)(f) of the Constitution, therefore, had to be interpreted in a restricted sense because if the application of said provision was stretched beyond this, a political opponent in his desire to seek removal of his rival from the politics would call in question an asset owned by his opponent that was acquired not only prior to his becoming a member of the National or a Provincial Assembly but even prior to his holding any public office or for that matter any office of trusteeship or as custodian of rights of others---Where a member had failed to declare an asset in his nomination form that was acquired prior to his election and there was no adjudication of dishonesty with regard to its acquisition by a competent court of law, the remedy provided under the election laws only entailed rejection of the nomination form simplicter, and not disqualification falling within the ambit of Art.62(1)(f) of the Constitution.

Muhammad Akram Sheikh, Senior Advocate Supreme Court (assisted by Ms. Maryam Rauf and Ms. Umber Bashir, Advocates), Tariq Kamal Qazi, (with permission of the Court) and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.

Naeem Bukhari, Advocate Supreme Court (Assisted by Kashif Nawaz Siddiqui, Advocate) and Ch.Akhtar Ali, Advocate-on-Record for Respondent No.1.

Anwar Mansoor Khan, Senior Advocate Supreme Court (Assisted by Barrister Umaima Anwar, Advocate), Faisal Farid Hussain, Advocate Supreme Court, Fawad Hussain Chaudhry, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.2.

Muhammad Waqar Rana, Additional Attorney General for Pakistan and M.S. Khattak, Advocate-on-Record for Respondent No.3.

Raja M. Ibrahim Satti, Senior Advocate Supreme Court, Raja M. Rizwan Ibrahim Satti, Advocate Supreme Court, M. Arshad, D.G. (Law), ECP and Malik Mujtaba Ahmed, Addl. D.G.(Law) ECP for Election Commisison of Pakistan.

Ashtar Ausaf Ali, Attorney General for Pakistan (On Court's notice).

P L D 2018 Supreme Court 337

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz-ul-Ahsan, JJ

SHAHID ANWAR BAJWA---Appellant

Versus

S.M. ASIF and others---Respondents

Civil Appeal No.1703 of 2013, decided on 25th January, 2018.

(Against the judgment dated 31-5-2013 of the High Court of Sindh, Karachi passed in Constitutional Petition No.D-1365 of 2012)

(a) Constitution of Pakistan---

----Art. 207(3)(b)---Retired Judge of the High Court---Not entitled to practice before the same High Court---Bar on a person who had been a permanent Judge of a High Court as contained under Art.207(3)(b) of the Constitution was not limited only to the courts which were under the administrative control of High Court but it also included the High Court.

(b) Constitution of Pakistan---

----Art. 207(3)(b)---Retired Judge of a superior Court---Constitutional/ statutory history of the restriction on the ex-Judge(s) of the superior courts to practice before the same court traced.

Messrs Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623 and Government of Pakistan v. Syed Akhlaque Hussain and another PLD 1965 SC 527 ref.

Shahid Anwar Bajwa, Advocate Supreme Court (in person) and M.S. Khattak, Advocate-on-Record for Appellant.

Nemo for Respondents.

Muhamamd Waqar Rana, Addl. A.G.P. on Court's notice.

P L D 2018 Supreme Court 343

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

Al-Haj DEEWAN BAKHTIYAR SYED MUHAMMAD and another---Appellants

Versus

DEEWAN MAUDOOD MASOOD and another---Respondents

Civil Appeals Nos.542-L and 543-L of 2012, decided on 22nd January, 2018.

(Against the judgment dated 29-10-2010 of the Lahore High Court, Lahore passed in C.Rs.Nos. 349 and 350 of 2004).

(a) Islamic law---

----Shrine--- "Sajjadanashin"and "mutawali"--- Distinction---Sajjada-nashin may not necessarily be a mutawali; the latter post was an exclusively secular post limited to the matters of management of the shrine alone, whereas on the shoulders of the sajjadanashin rested the responsibility of the spiritual functions of guidance of the mureeds and the performance of rasoomaat etc., which required a person of outstanding character and one capable of leading the community and inspiring the mureeds---Post of sajjadanashin and the nomination for the same carried immense importance in the hearts of a substantial section of the public and their spiritual guidance/rejuvenation/beliefs rested in the customs and rituals of the shrine---Person who guided the mureeds in his capacity as sajjadanashin must therefore be one who was rightfully entitled to the same on the basis of the express declaration/nomination of the Dewan/sajjadanashin who preceded him.

Principles of Muhammadan Law by D.F. Mullah, Paragraph 220 ref.

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

----S. 42---Suit for declaration---Dispute over appointment of successor to the incumbent sajjadanashin of a shrine ('shrine of Baba Farid Ganj Shakkar')---Nomination of the successor---Absolute discretion of the incumbent sajjadanashin---Dewan/sajjadanashin of the shrine during his lifetime appointed his son ("the respondent"), as his successor/sajjadanashin and in this regard a press publication in a newspaper was also made---Subsequently vide another publication in a newspaper the Dewan revoked the earlier announcement of sajjadanashin and declared that the new sajjadanashin would be appointed by him from amongst his sons, whom he deemed to be competent to hold the gaddi/sajjadanashinship---In the meanwhile the Dewan passed away and the appellant (real paternal uncle of the respondent) filed a suit for declaration that the appointment of the respondent as sajjadanashin was invalid as the cancellation of the sajjadanashinship of the respondent, published in a newspaper was still intact and thereafter the Dewan had never appointed or nominated the respondent as sajjadanashin---Respondent contended that the Dewan during his lifetime, but close to his death, had orally nominated him as the sajjadanashin; held, that the relationship between the late Dewan and the appellant was sour and they also had litigation going on between them during the lifetime of the late Dewan---Statement of the late Dewan in some Qazaf proceedings initiated by the wife of the appellant was available on record, wherein the late Dewan had in very clear words expressed his dismay at the behavior of the appellant, condemning him for bringing disgrace to the entire family---Furthermore, the case record showed that there was a criminal complaint made by the late Dewan against the appellant left no doubt that the terms between the late Dewan/sajjadanashin and the appellant were such that the former was being criminally intimidated by the latter---Newspaper publication relied on by the appellant, in fact when read in detail reflected that the late Dewan/sajjadanashin was to choose the sajjadanashin from amongst his agnates/sons, whereas the appellant was the brother of the Dewan---Furthermore at the time of the death of the late Dewan the appellant was not present beside him---Not only did the appellant not attend the funeral of the late Dewan but was also absent from his 'Qul' and 'Chehlum' ceremonies---As against that the oral evidence produced by the respondent was overwhelming and statements of some of his witnesses had not been subjected to cross-examination, and thus stood unrebutted---Even otherwise, it had been conceded by the appellant that the late Dewan had never appointed the appellant as sajjadanashin and that per the custom and also a history of over seven hundred years of the shrine, the nomination of the successor was always the absolute discretion of the incumbent sajjadanashin holding the post---In the absence of any written evidence of the same and the fact that the respondent had successfully been able to prove his case through witness statements and documentary evidence the express nomination by the late Dewan/sajjadanashin was the only conclusive factor of determining the entitlement of sajjadanashinship of the shrine---Suit for declaration had been rightly decreed in favour of the respondent---Appeals were dismissed accordingly.

Sardar Muhammad Aslam, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (In C.A. 542-L of 2012).

Rana Ijaz Ahmed Khan, Advocate Supreme Court for Appellants (In C.A. 543-L of 2012).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Respondents (In both cases).

P L D 2018 Supreme Court 351

Present: Mian Saqib Nisar, C.J., Asif Saeed Khan Khosa and Maqbool Baqar, JJ

MUHAMMAD JIBRAN NASIR and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 1-K to 3-K of 2018 converted into Suo Motu case No.1 of 2018.

(Against the order dated 28-11-2017 of the High Court of Sindh, Karachi passed in Special Criminal A.T.A. Nos. 25, 24 and 19 of 2013, Criminal Revision Application No.40 of 2014 and Confirmation Case No.1 of 2013).

(a) Constitution of Pakistan---

----Art. 184(3)---Suo motu jurisdiction of the Supreme Court---Scope---Suo motu notice of a criminal case taken up by the Supreme Court---After Supreme Court had disposed of such suo motu case, there was no impediment in taking suo motu notice (again) of any subsequent development in the same case.

(b) Constitution of Pakistan ---

----Art. 184(3)---Suo motu jurisdiction of the Supreme Court---Scope---Jurisdiction of the Supreme Court under Art. 184(3) of the Constitution was an independent original jurisdiction which was not affected by pendency of any matter on the same subject matter before any other court or forum or even by a prior decision of the same issue by any other court or forum below. [

Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Miss Benazir Bhutto v. Federation of Pakistan and others PLD 1988 SC 416; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Suo Motu Case No. 10 of 2009 (2010 SCMR 885); Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad PLD 2011 SC 365; Khawaja Muhammad Asif v. Federation of Pakistan and others PLD 2014 SC 206 and Jamshoro Joint Venture Ltd. and others v. Khawaja Muhammad Asif and others 2014 SCMR 1858 ref.

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

----S. 7(a)---Penal Code (XLV of 1860), Ss. 302(b), 34 & 109---Constitution of Pakistan, Art. 184(3)---Act of terrorism, qatl-i-amd, common intention, abetment---Whether Anti-Terrorism Court had jurisdiction in a case---Accused persons were convicted and sentenced by the Anti-Terrorism Court for an offence under S. 7(a) of the Anti-Terrorism Act, 1997 read with Ss. 302, 109 & 34, P.P.C.---High Court remanded the case to a court of ordinary jurisdiction for a de novo trial because, according to the High Court, the case was not one of terrorism and, therefore, an Anti-Terrorism Court had no jurisdiction to try the same; held, that while passing the impugned order the High Court had ignored some important decisions of the Supreme Court, the Anti-Terrorism Court and of the High Court itself passed in the earlier stages of present case---Soon after present incident took place the Supreme Court took suo motu notice of the matter and remained seized of those proceedings under Art.184(3) of the Constitution till after a challan was submitted by the local police before an Anti-Terrorism Court---Supreme Court had not only blessed submission of the challan of the case before an Anti-Terrorism Court but it had issued detailed guidelines as to how the case was to be tried by the relevant Anti-Terrorism Court and as to how such trial was to be monitored by the Monitoring Judges of the Supreme Court and the High Court vis-à-vis cases of terrorism---Said suo motu proceedings were not challenged by any party through a review petition---High Court in its impugned order did not make any mention of the suo motu proceedings of the Supreme Court---Furthermore during the pendency of the trial of the present case before the Anti-Terrorism Court one of the accused persons had filed an application seeking transfer of the case to a court of ordinary jurisdiction, which application was dismissed by the Anti-Terrorism Court through a detailed order---Said order of Anti-Terrorism Court was challenged by the accused before the High Court through a revision petition, which was also dismissed through an elaborate order---Dismissal of revision petition was challenged by the accused before the Supreme Court, which dismissed the petition for leave to appeal at a time when the Anti-Terrorism Court had already concluded the trial and had convicted and sentenced the accused persons---Said orders of the Anti-Terrorism Court, the High Court and the Supreme Court were ignored by the Bench of the High Court that passed the impugned order---Impugned order passed by the High Court remanding the criminal case to a court of ordinary jurisdiction for a de novo trial as well as all the post-remand proceedings before the Trial Court were set aside by the Supreme Court---Supreme Court directed that all concerned appeals and applications shall be deemed to be pending before the High Court and the same shall be finally decided on their merits at the Court's earliest convenience; that the accused persons convicted in the relevant criminal case by an Anti-Terrorism Court should be retaken into custody as their admission to bail during the post-remand proceedings was nullity in the eyes of law, and that the previous order of the Supreme Court putting the names of the accused on the Exit Control List shall continue to hold the field till the time the main matters remanded to the High Court were finally disposed of---Suo motu case was disposed of accordingly.

(d) Constitution of Pakistan---

----Art. 185(3)---Leave refusing order of the Supreme Court---Scope---Observation made by the Supreme Court in a leave refusing order regarding a party to a case agitating a matter before the High Court could not be taken or understood by the High Court as a license or authorization from the Supreme Court to ignore an earlier order passed by the Supreme Court finally clinching an issue and still holding the field.

Faisal Siddiqui, Advocate Supreme Court for Appellants (in all appeals).

Zafar Ahmed Khan, Additional Prosecutor-Geneal, Sindh with Mukhtar Ahmed DSP, Praidi, Karachi for Respondent No.1/State (in all appeals).

Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court with Respondent No.2 in person (in Cr.A.No.1-K of 2018).

Syed Iqbal Hussain Gillani, Advocate Supreme Court for Respondent No.2 (in Cr.A. No.2-K of 2018.

Farooq H. Naek, Senior Advocate Supreme Court, Mehmood Akhtar Qureshi, Advocate Supreme Court with Respondents Nos. 2 and 3 in person (in Cr.A.No.3-K of 2018).

Ashtar Ausaf Ali, Attorney-General for Pakistan On Court's notice (in all appeals).

P L D 2018 Supreme Court 366

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

ZULFIQAR AHMED BHUTTA and 15 others---Petitioners/Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Minister of Law, Justice and Parliamentary Affairs and others---Respondents

Constitutional Petitions Nos. 37 to 45, 47 to 51 and 54 of 2017 and Civil Miscellaneous Appeal No.244 of 2017, decided on 21st February, 2018.

Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973.

Elections Act (XXXIII of 2017)---

----Ss. 203 & 232---Constitution of Pakistan, Arts. 17, 62, 63, 63-A & 184(3)---'Party Head' of a political party---Lack of qualification/ disqualification---Articles 62, 63 & 63-A of the Constitution created an integrated framework for ensuring that business of the Parliament was conducted by persons of probity, integrity and high moral character---Under Art. 63-A of the Constitution, the position of Party Head of a political party that had representation in, inter alia, the Parliament had a central role in the performance of duties by the Members of the Parliament---For rendering such a role, a Party Head must necessarily possess the qualifications and be free of the disqualifications contemplated in Arts. 62 & 63 of the Constitution---Provisions of Ss.203 & 232 of the Election Act, 2017 were, thus, liable to be read, construed and interpreted subject to the provisions of Arts.62, 63 & 63-A of the Constitution---Any person who suffered from lack of qualification under Art. 62 or disqualification under Art. 63 of the Constitution was debarred from holding the position of 'Party Head' by whatever name called and prohibited from exercising any of the powers provided in Art. 63-A of the Constitution, as 'Party Head' or any other power in the said capacity under any law, rule, regulation, statute, instrument or document of any political party---Such bar and prohibition shall commence from the date of disqualification and continue till such time that the lack of qualification/disqualification of such person continued in terms of the provisions of Arts. 62 & 63 of the Constitution---Supreme Court directed that all steps taken, orders passed, directions given and documents issued by respondent (Party Head' of a political party) as Party Head after his disqualification by a judgment of the Supreme Court on 28-07-2017 were declared to have never been taken, passed, given or issued in the eyes of the law, and that the Election Commission should remove the name of respondent as President/Party Head of his political party from all relevant record(s)---Constitutional petitions were allowed accordingly.

Petitioner in person (in C.Ps. Nos.37, 39, 41, 43, 50 and 51 of 2017.

Dr. Farough Naseem, Advocate Supreme Court, Faisal Farid Chaudhry, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Petitioner (in C.P. No.38 of 2017).

M. Ikram Chaudhry, Senior Advocate Supreme Court for Petitioner (in C.P. No.40 of 2017).

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record Assisted by Sardar Shahbaz Ali Khosa, Barrister Afzal Hussain, Malik Javed Iqbal, Syed Naz Gul Shah, Sardar Imran Rafique and Arshad Binyamin, Advocates for Petitioners (in C.P. No.44 of 2017).

Saeed Khurshid Ahmed, Advocate Supreme Court for Petitioner (in C.P. No.45 of 2017).

Khalid Abbas Khan, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner (in C.P. No.47 of 2017).

Dr. Babar Awan, Senior Advocate Supreme Court for Petitioner (n C.Ps.Nos.48 and 49 of 2017.

Azhar Siddique, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in C.Ps.Nos.50 and 54 of 2017).

Malik Munsif Awan, Advocate Supreme Court for Petitioner (in C.M.Appeal No.244 of 2017).

Salman Akram Raja, Advocate Supreme Court, Raja Zafar-ul-Haq, Chairman PML(N) assisted by Asad Ladha and Malik Ghulam Sabir, Advocates (on behalf of PML(N)] for Respondents

Nemo. (on behalf of Respondent No. 4 in C.Ps. Nos.38 and 39 of 2017, Respondent No.7 in C.P.No.42 of 2017, Respondent No.5 in C.P.No.43 of 2017, Respondent No.2 in C.P. No.44 of 2017 and Respondent No.3 in C.P. No.50 of 2017).

Kamran Murtaza, Senior Advocate Supreme Court, Muhammad Usman Ansari, Deputy Secretary (Litigation) National Assembly for Respondent.

M. Waqar Rana, Additional Attorney General for Pakistan and Muhamamd Arshad, DG (Law), Election Commission of Pakistan (on Court's Notice).

Date of hearing: 21st February, 2018.

SHORT ORDER

MIAN SAQIB NISAR, C J.---The Preamble to the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) provides that, "sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust"; .... "wherein the State shall exercise its powers and authority through the chosen representatives of the people; wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed"; .... "wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality".

1. Article 17 of the Constitution grants to every citizen the fundamental right to form associations subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order and/or morality.

2. An elected Parliament, adorned with the chosen representatives of people on the one hand and the rule of law on the other hand are the foundations of democracy under the Constitution. Articles 62, 63 and 63-A of the Constitution create an integrated framework for ensuring that business of the Parliament is conducted by persons of probity, integrity and high moral character. These conditions are enforced by Articles 62 and 63 of the Constitution by prescribing qualifications and disqualifications for membership to the Parliament.

3. All laws pertaining to the election to Parliament and to participation in the proceedings thereof are to be read subject to such constitutional provisions in the exercise of the rights guaranteed by Article 17 of the Constitution.

4. Under Article 63-A of the Constitution, the position of a Party Head of a political party that has representation in, inter alio, the Parliament has a central role in the performance of duties by the Members of the Parliament. For rendering such a role, a Party Head must necessarily possess the qualifications and be free of the disqualifications contemplated in Articles 62 and 63 of the Constitution.

P L D 2018 Supreme Court 370

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

ZULFIQAR AHMED BHUTTA and 15 others---Petitioners/Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Minister of Law, Justice and Parliamentary Affairs and others---Respondents

Constitutional Petitions Nos. 37 to 45, 47 to 51 and 54 of 2017 and Civil Miscellaneous Appeal No.244 in Constitution Petition No.Nil of 2017, decided on 21st February, 2018.

Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973.

(a) Constitution of Pakistan ---

----Arts. 62 & 63---Qualifications/Disqualifications for membership of Majlis-e-Shoora (Parliament)---Electoral process---Underlying theme and focus of the Constitution was to ensure that only those individuals entered the electoral process who fulfilled the prerequisites and requirements spelt out in the Constitution itself to be worthy delegatees of Almighty Allah in order to exercise His powers in trust for Him and for the welfare of the people by joining the political process, possibly leading to formation of the Government and thereby being part of the governing set up put in place by the people in exercise of their adult franchise.

(b) Elections Act (XXXIII of 2017) ---

----Ss. 203 & 232---Constitution of Pakistan, Arts. 17, 62, 63, 63-A & 184(3)---'Party Head' of a political party lacking qualification/ disqualified in terms of Arts. 62 & 63 of the Constitution---Question as to whether such Party Head could remain as head of his political party---'Party Head' wielded decisive and controlling powers within his party and by exercise of such powers he directly controlled fundamental matters related to the party, therefore, provisions of Arts.62 & 63 of the Constitution relating to qualification and disqualification of membership to the Majlis-e-Shoora would also be applicable to a person elected or chosen as the Party Head---Right of freedom of association as entrenched in Art.17 of the Constitution was to be read in light of Arts. 62 & 63 of the Constitution---Furthermore Art.63-A of the Constitution had nexus, link or connection with Art.17 of the Constitution and both said Articles had to be read and interpreted harmoniously---Sections 203 & 232 of the Elections Act, 2017 (read in isolation) protected and favoured a limited set of individuals to save them from the consequences of disqualification arising out of Arts. 62 & 63 of the Constitution, therefore, said sections of the Act had to be read and interpreted subject to Arts.62 & 63 of the Constitution, as doing otherwise, would open the door for political parties and legislature being run and controlled remotely and vicariously by persons who had been barred by the Constitution from being a part of the parliamentary, legislative and political process---Supreme Court declared that any person who suffered from lack of qualification under Art.62 or disqualification under Art.63 of the Constitution was debarred from holding the position of 'Party Head' and prohibited from exercising any of the powers provided in Art.63-A of the Constitution, as 'Party Head' or any other power in the said capacity under any law, rule, regulation, statute, instrument or document of any political party---Supreme Court directed that all steps taken, orders passed, directions given and documents issued by the respondent ('Party Head' of a political party) as Party Head after his disqualification by a judgment of the Supreme Court on 28-07-2017 were declared to have never been taken, passed, given or issued in the eyes of the law, and that the Election Commission should remove the name of respondent as President/Party Head of his political party from all relevant record(s).

Party Head enjoyed a central, pivotal and decisive role and position within the party, in the electoral process and in the Parliament through the Parliamentary Party, which he directly controlled and superintended. He was the linchpin and pivot around which the entire structure of the party revolved, through which power flowed to all organs, constituents and activities of the party. He had direct power, influence and control over how the party shall act and function within and outside the Parliament. All material actions and decisions required approval of the Party Head and he in essence called the shots in all important and major aspects and decisions of the party including awarding of party tickets.

[Case-law referred]

Person who did not himself qualify to be a member of the Parliament, could not in exercise of power under Article 63A of the Constitution be allowed to declare parliamentary members as disqualified to exercise the authority (of Almighty Allah) as His delegatees as a 'sacred trust'. Such interpretation would ex facie be absurd. How could it possibly be held that a Party Head who virtually controlled and held in his hands the fate and prospects of members of his party holding public office (who fulfilled the requirements of Articles 62 and 63 of the Constitution), need not meet the requirements of the said Articles himself.

[Case-law referred]

Provisions relating to qualification and disqualification of membership to the Legislative bodies of Pakistan (Majlis-e-Shoora, Senate, Provincial Assemblies etc), would also be applicable to a person elected or chosen as the Party Head for the following reasons:

(i) Party Head through his power to impose disciplinary punishment as well to exonerate there from virtually controlled the parliamentary party which was evident from the power available to him under Article 63A of the Constitution;

(ii) The provisions of sections 209, 210 and 216 and the general scheme of the Elections Act, 2017 also substantiated, reinforced and buttressed the finding that the Party Head wielded decisive and controlling powers within his party and by exercise of such powers he could and did directly control such fundamental matters as formation of the government, appointment of the Prime Minister, Federal Ministers, Ministers of State, Advisors, Chief Ministers, Provincial Ministers, Provincial Advisors, Governors, President, the mode and manner in which members of his party would vote in various matters that came before the Majlis-e-Shoora (Parliament) and Senate of Pakistan or the Provincial Assemblies;

(iii) It would be absurd and illogical to hold that despite the fact that admittedly the Party Head virtually controlled and held in his hands the fate and prospects of members of his party holding parliamentary or other public office who fulfilled the requirements of Articles 62 and 63 of the Constitution, yet he need not meet the requirements of the said Articles himself. Such an interpretation would not only be contrary to and in conflict with the entire scheme, focus and theme of the Constitution, but would also defeat the very purpose of inserting the said provisions in the Constitution.

Fundamental right of freedom of association as entrenched in Article 17 of the Constitution was to be read in light of the general scheme of the Constitution as embodied in various provisions of the Constitution including, but not limited to Articles 62 and 63 of the Constitution.To assert that Article 63-A of the Constitution had no nexus, link or connection with Article 17 of the Constitution which furnished the very basis to form and join political parties was not only illogical but also irrational and untenable. Both Articles dealt with the same broad subject and had to be read, understood and interpreted harmoniously.

To hold that a person who was disqualified to be king could nevertheless be given a freehand to operate as a kingmaker, who may despite lacking qualification and without going through the electoral process, act as a puppetmaster and pull the strings and exercise political power vicariously would amount to making a complete mockery of the Constitution, the legislative process, the law, the government and values incorporated in the Constitution.

By inserting sections 203 and 232 of the Elections Act, 2017 a conscious effort had been made to protect, shield, cushion and favour a limited set of individuals to save them from the consequences of disqualification arising out of Articles 62 and 63 of the Constitution. Provisions of sections 203 and 232 of the Elections Act, 2017 were, thus, liable to be read, construed and interpreted subject to the provisions of Articles 62, 63 and 63-A of the Constitution. If Sections 203 and 232 of the said Act were read independent of the Articles 62 and 63 of the Constitution, it would open the door for political parties being run and controlled remotely and the legislature being dictated and controlled vicariously by persons who had clearly and unambiguously been barred and prohibited by the Constitution from being a part of the parliamentary, legislative and political process. 'Person specific legislation' was frowned at by the Courts.

[Case-law referred]

Any person who suffered from lack of qualification under Article 62 or disqualification under Article 63 of the Constitution was debarred from holding the position of 'Party Head' by whatever name called and prohibited from exercising any of the powers provided in Article 63-A of the Constitution, as 'Party Head' or any other power in the said capacity under any law, rule, regulation, statute, instrument or document of any political party; that such bar and prohibition shall commence from the date of disqualification and continue till such time that the lack of qualification/disqualification of such person continued in terms of the provisions of Articles 62 and 63 of the Constitution.

Supreme Court directed that all steps taken, orders passed, directions given and documents issued by the respondent ('Party Head' of a political party) as Party Head after his disqualification by a judgment of the Supreme Court on 28-07-2017 were declared to have never been taken, passed, given or issued in the eyes of the law, and that the Election Commission should remove the name of respondent as President/Party Head of his political party from all relevant record(s).

(c) Interpretation of Constitution ---

----Constitutional provision could not be overridden, diluted or bypassed through sub-constitutional or subordinate legislation---Subordinate legislation could not run contrary to the constitutional provisions which have to be harmoniously construed and interpreted in order to give the fullest effect to words, meaning, scope, philosophy and underlying spirit of the Constitution.

[Case-law referred]

(d) Administration of justice ---

----What could not be done directly could not be done indirectly.

[Case-law referred]

(e) Interpretation of statutes ---

----Repeal of an Act---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---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.

[Case-law referred]

Petitioner in person (in C.Ps. Nos.37, 39, 41 and 51 of 2017.

Dr. Farough Naseem, Advocate Supreme Court, Faisal Farid Chaudhry, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioner (in C.P. No.38 of 2017).

M. Ikram Chaudhry, Senior Advocate Supreme Court for Petitioner (in C.P. No.40 of 2017).

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record Assisted by Sardar Shahbaz Ali Khosa, Barrister Afzal Hussain, Malik Javed Iqbal, Syed Naz Gul Shah, Sardar Imran Rafique and Arshad Binyamin, Advocates for Petitioner (in C.P. No.44 of 2017).

Tariq Asad, Advocate Supreme Court for Petitioner (in C.P. No.42 of 2017).

Saeed Khurshid Ahmed, Advocate Supreme Court fir Petitioner (in C.P. No.45 of 2017).

Sh. Ahsan ud Din Advocate Supreme Court (in C.P. No.43 of 2017), Khalid Abbas Khan, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Petitioner (in C.P. No.47 of 2017).

Dr. Babar Awan, Senior Advocate Supreme Court assisted by Mr.Shahid Naseem Gondal, Advocate for Petitioner (in C.Ps.Nos.48 and 49 of 2017).

Azhar Siddique, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in C.Ps.Nos.50 and 54 of 2017).

Malik Munsif Awan, Advocate Supreme Court for Petitioner (in C.M.Appeal No.244 of 2017).

Salman Akram Raja, Advocate Supreme Court, Raja Zafar-ul-Haq, Chairman PML(N) assisted by Asad Ladha and Malik Ghulam Sabir, Advocates (on behalf of PML(N)] for Respondent.

Nemo. (on behalf of Respondent No. 4 in C.Ps. Nos.38 and 39 of 2017, Respondent No.7 in C.P.No.42 of 2017, Respondent No.5 in C.P.No.43 of 2017, Respondent No.2 in C.P. No.44 of 2017 and Respondent No.3 in C.P. No.50 of 2017).

Kamran Murtaza, Senior Advocate Supreme Court, Muhammad Usman Ansari, Deputy Secretary (Litigation) National Assembly for Respondent.

Ashtar Ausaf Ali, Attorney General for Pakistan, assisted by Barrister Asad Rahim Khan, Mirza Munir Baig and M. Usama Rauf, Advocates (on Court's Notice).

M. Waqar Rana, Additional Attorney General for Pakistan and Muhamamd Arshad, DG (Law), Election Commission of Pakistan for Respondent.

P L D 2018 Supreme Court 405

Present: Mian Saqib Nisar, C.J., Sh. Azmat Saeed, Umar Ata Bandial, Ijaz ul Ahsan and Sajjad Ali Shah, JJ

SAMI ULLAH BALOCH and others---Petitioners/Appellants

Versus

ABDUL KARIM NOUSHERWANI and others---Respondents

Civil Appeal No.233/2015, Civil Misc. Appeal No.175/2017 in Const. Petition No.Nil of 2017, Civil Misc. Application No.1535/2013 in Civil Appeal No.191-L/2010, Civil Misc. Application No.1536/2013 in Civil Appeal No.409/2010, Civil Misc. Application No.3470/2013, Civil Review Petitions Nos. 81/2013, 86/2013, 87/2013, 206/2011, 218/2013 in Civil Petitions Nos.492/2013, 493/2013, 494/2013, 1485/2011 and 1033/2013, Civil Review Petition No.223/2013 in Civil Misc. Application No.3470/2013 in Civil Appeal No.409/2010, Civil Review Petition No.38/2014 in Civil Appeal No.47/2014, Civil Petitions Nos.770/2013, 668/2014 and Civil Appeals Nos.476 and 689/2014, 204-L/2016 and Civil Petition No.2620-L/2016 and Civil Misc. Application No. 845 of 2018, decided on 13th April, 2018.

Per Umar Ata Bandial, J; Mian Saqib Nisar, C J, Ijaz ul Ahsan and Sajjad Ali Shah, JJ agreeing; Sh. Azmat Saeed, J also agreeing but with his own reasoning.

(a) Constitution of Pakistan---

----Art. 62(1)(f)---Qualification for membership of Majlis-e-Shoora (Paliament)---Qualities of sagacity, righteousness, honesty and trustworthiness laid down in Art. 62(1)(f) of the Constitution as qualifications for membership to the elected Houses---Said qualities were actually derived from the Sunnah of the Holy Prophet Muhammad (p.b.u.h.)---Holy Quran recognized the temporal significance of the character qualities specified in Art. 62(1)(f) of the Constitution---Said qualities were acknowledged in political thought as attributes of a public leader---Conditions of eligibility for election under Art.62(1)(f) of the Constitution were made applicable to all candidates for the Parliament including non- Muslim candidates.

Holy Qur'an Surah Al-Ahzab Ayat 21 (33:21) and Surah Yousaf, Ayat No.54-55 (12:54-55) ref.

(b) Interpretation of Constitution---

----Conflict between two provisions of the Constitution---Constitution must be interpreted as a whole because it was an organic document that was meant to apply to the changing circumstances of time and space---Each provision of the Constitution or part thereof had a purpose, meaning and integral place that must be understood, acknowledged and applied harmoniously---Only when a conflict between two provisions of the Constitution was irreconcilable and one of such provisions was inserted when the Constitution was held in abeyance, then the provision which was made part of the Constitution during the period of its abeyance would yield, provided that the other provision conflicting therewith was enforced by Parliamentary will and was closer to the provisions of the Preamble of the Constitution.

District Bar Association Rawalpindi v. Federation of Pakistan PLD 2015 SC 401 ref.

(c) Constitution of Pakistan---

----Arts. 62(1)(f) & 17(2)---Election to a seat in Parliament---Period of disqualification for failing to meet the qualifications under Art.62(1)(f) of the Constitution---Permanent disqualification/incapacitation---Where a declaration made by a Court of law against a candidate for election warranted a conclusion of his misrepresentation, dishonesty, breach of trust, fraud, cheating, lack of fiduciary duty, conflict of interest, deception, dishonest misappropriation, etc. to be derived from such a verdict, then it stood to reason that the consequential incapacity imposed upon the candidate for election should last for as long as the declaration was in force---If such declaration by the Court had attained finality, the embargo under Art.62(1)(f) of the Constitution acquired permanent effect ---Conclusion about a judgment debtor having character failings specified in Art.62(1)(f) of the Constitution, that emanated or could be derived from a final judicial declaration, would cause the permanent incapacity of a candidate for elected office---Considering that the Constitution did not fix the period of incapacitation under Art.62(1)(f) of the Constitution showed a clear intention that the lack of qualification under Art.62(1)(f) should extend so long as the declaration of law envisaged in Art. 62(1)(f) remained in the field---If such declaration was final and binding, then the incapacity to contest elections to any of the Legislatures provided by the Constitution became permanent---Permanent restriction imposed by Art.62(1)(f) of the Constitution for the eligibility of a candidate for election to Parliament served the public need and public interest for honest, upright, truthful, trustworthy and prudent elected representatives---Judicial mechanism in Art.62(1)(f) granted a fair opportunity and adequate remedy for relief to a candidate under challenge to vindicate himself, therefore, the permanent incapacity of a candidate for election under Art.62(1)(f) of the Constitution was not an arbitrary, excessive or unreasonable curtailment of his Fundamental Right under Art.17(2) of the Constitution.

(d) Constitution of Pakistan---

----Arts. 62(1)(f) & 63(1)(h)---Qualifications and disqualifications for membership of Majlis-e-Shoora (Parliament)---Duration of period of disqualification to contest an election to a seat in Parliament imposed under Arts. 62(1)(f) & 63(1)(h) of the Constitution---Plea that duration of disqualification for ‘moral turpitude’ under Art.63(1)(h) of the Constitution was five years, and since the character flaws covered by Art.62(1)(f) of the Constitution fell within the ambit of wrongs that involved moral turpitude under Art. 63(1)(h), therefore, the duration of disqualification under Art.62(1)(f) of the Constitution should not be permanent but similar to Art.63(1)(h) of the Constitution---Validity---Offences of moral turpitude under Art.63(1)(h) did cover certain errant conduct that fell within the terms of Art.62(1)(f) of the Constitution---However, both said provisions of the Constitution were distinct and separate and possessed their respectively different place, meaning and effect under the Constitution---Article 63(1)(h) of the Constitution dealt with the consequences of criminal liability of a delinquent action---Such action may also fall within the ambit of Art.62(1)(f) of the Constitution, however, the distinct place,purpose and meaning of Art.62(1)(f) of the Constitution became obvious from the civil consequences of its provisions as opposed to Art.63(1)(h) of the Constitution which dealt with the cognizance of the same action by a criminal court followed by criminal punishment---Provisions of Art.62(1)(f) & Art.63(1)(h) of the Constitution dealt with different laws, remedies, fora,and relief although the underlying subject matter of the legal action was the same---Result of a judicial declaration envisaged in Art.62(1)(f) of the Constitution could not be overshadowed by the outcome of a criminal proceeding for the same conduct---Article 62(1) of the Constitution provided the qualifications that must necessarily be possessed by a candidate for contesting election to Parliament, whereas Art.63(1) enumerated the disqualifications for the membership to the Parliament and Provincial Assemblies---Although the ultimate result of a candidate for election lacking a qualification under Art.62(1) of the Constitution or for incurring disqualification under Art. 63(1) was the same, namely, his ouster from the election contest, yet the object, meaning and effect of Art.62(1) & Art. 63(1) was very different---Any view to the effect that qualifications and disqualifications were interchangeable and therefore, the consequences of incurring either,namely, period of ouster from the election contest should be similar because the same misconduct could form the subject matter of both provisions, was flawed---Candidate for election who had committed misconduct falling within the terms of Art.62(1)(f) of the Constitution, in particular, misrepresentation, dishonesty, breach of trust, fraud, cheating, lack of fiduciary duty, conflict of interest, deception, dishonest misappropriation, etc. as declared by a Court of civil jurisdiction had on the Islamic and also universal criteria of honesty, integrity and probity, rendered himself unfit to hold public office---Such a candidate could not be compared to the case of anex-convict under Art.63(1)(h) of the Constitution because the former had not paid a personal price for his delinquent act, such as imprisonment, loss of livelihood, disruption and hurt to family and lifelong stigma of conviction---In such circumstances a person declared to be dishonest or in breach of his trust or fiduciary duty or being non-righteous or profligate in terms of Art.62(1)(f) of the Constitution must suffer the burden of that finding of incapacity for as long as the Court decree remained in force.

Government of Pakistan v. Akhlaque Hussain PLD 1965 SC 527 at p.579; Hamid Sarfraz v. Federation of Pakistan PLD 1979 SC 991; Muhammad Shahbaz Sharif v. Muhammad Altaf Hussain PLD 1995 Lah. 541 and Muhammad Yousaf v. Irshad Sipra 1988 CLC 2475 ref.

Per Sh. Azmat Saeed, J; agreeing with Umar Ata Bandial, J but with his own reasons.

(d) Constitution of Pakistan---

----Art. 62(1)(f)---Election to a seat in Parliament---Period of disqualification for failing to meet the qualifications under Art. 62(1)(f) of the Constitution---Permanent disqualification/incapacitation---Lack of qualifications in terms of Art.62(1)(f) of the Constitution was the effect of a declaration by a Court of law to the contrary, which was the cause---As long as the cause i.e. the declaration of a Court of law held the field its effect i.e. the lack of qualification shall also prevail---Lack of qualification suffered under Art.62(1)(f) of the Constitution was in perpetuity---Such an interpretation appeared to be the only possible interpretation of Art.62(1)(f) of the Constitution.

Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others PLD 2013 SC 482; Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad PLD 2009 SC 107 and Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others 2013 SCMR 1655 ref.

(e) Interpretation of Constitution --

----Surplusage could not be attributed to any provision of the Constitution.

(f) Interpretation of Constitution---

----Supreme Court was empowered to only interpret the Constitution but not to amend or change it.

Dr. Babar Awan, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocae-on-Record assisted by Shahid Naseem Gondal, Advocate for Appellants (in C.A. No.233 of 2015).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in C.R.P. No.206 of 2011).

Wasim Sajjad, Senior Advocate Supreme Court for Petitioners (in C.R.P. No.218 of 2013).

Mian Muhammad Hanif, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for HEC (in C.M.As. 1535 and 1536 of 2013).

Ahmed Raza Advocate Supreme Court for Applicant (in C.M.A. No.3470 of 2013).

Tariq Mehmood, Senior Advocate Supreme Court for Petitioners (in C.R.Ps. 81, 86, 87, 233/2013, 38/2014 and C.P. 770/2013).

Shehzad Shaukat, Advocate Supreme Court for Petitioners (in C.P.No.2620-L/2016).

Kamran Murtaza, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah,Advocate-on-Record for Petitioners (in C.P. 668/2014).

Sardar Muhammad Aslam, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.A.476/2014).

Mehr Tanvir Ahmed Jangla, Advocate Supreme Court for Petitioners (in C.A.689/2014).

Sardar Muhammad Aslam, Advocate Supreme Court and Zubair Khalid, Advocate Supreme Court for Appellants (in C.A. No.204-L/2016.

Malik Muhammad Qayyum, Senior Advocate Supreme Court for Appellants (in C.M.A. No.175 of 2017).

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mahmood A. Sheikh, Advocate-on-Record for Respondent No.1 (in C.A.No.233/2015).

Tariq Aziz, Advocate-on-Record and Imran-ul-HAdvocate Supreme Court for Respondent (in C.A. 476-L/2014).

Nazir Ahmed Bhutta, Advocate Supreme Court for Respondents (in C.A.204-L/2016).

Umer Aslam, Advocate Supreme Court for Respondents (in C.P. No.2620-L/2016).

Sattar Sardar, Election Officer, Rajanpur for Respondents (in C.P.No.2620-L/2016).

Syed Haziq Ali Shah, Advocate Supreme Court for Respondent (in C.R.P. 38/2014).

Salman Akram Raja, Advocate Supreme Court assisted by M. Asad Lada, Advocate for Respondent (in C.M.A. No.4275/2013).

Munir A. Malik, Senior Advocate Supreme Court, Syed Ali Zafar, Advocate Supreme Court assisted by Zahid Nawaz Cheema, Advocate Supreme Court; Amici Curiae.

Ashtar Ausaf Ali, Attorney Geneal for Pakistan (On Court's Notice).

Assisted by: Barrister Asad Rahim Khan, Advocate Mirza Moiz Baig, Associate Lawyer (On courts Notice).

Muhammad Waqar Rana, Additional Attorney General (On Court's Notice).

Nemo. (on behalf of Mian Mohammad Nawaz Sharif (On Court's Notice).

Mrs. Asma Jehangir, Senior Advocate Supreme Court assisted by Ms. Noor Ejaz, Ms.Ayesha Malik, Usama Malik and Arsalan Khalid, Advocates (on behalf of Rai Hassan Nawaz, Ex-MNA) (On Court's Notice).

Sikandar Bashir Mohmand, Advocate Supreme Court assisted by Zulqarnain, Advocate (on behalf of Jehangir Khan Tareen) (On Court's Notice).

Nawabzada Ghazanfar Ali Gull, Ex-MPA (in person) (C.M.A. No.656/2018) (On Court's Notice).

Mudassar Khalid Abbasi, Advocate Supreme Court (C.M.A. No.767/2018) (On Court's Notice).

Kamran Murtaza, Senior Advocate Supreme Court (C.M.A.No.845/2018) (On Court's Notice).

Faisal Farid Hussain, Advocate Supreme Court (in person) (On Court's Notice).

M. Arshad, D.G. (Law) for ECP:

Dates of hearing: 30th, 31st January, 1st, 7th, 8th, 12th and 14th February, 2018.

JUDGMENT:

UMAR ATA BANDIAL, J.-- All these connected matters seek a common relief, namely, an authoritative pronouncement about the effect of provisions of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan (“Constitution”). The crucial question raised is whether the incapacity imposed by Article 62(1)(f) of the Constitution upon a person interested to contest an election to a seat in the National Assembly or Senate (“Parliament”), is of perpetual effect if there is a declaration against him by a Court to the effect that he lacks sagacity or righteousness or is profligate or is dishonest or is not Ameen (untrustworthy). This question is posed because Article 62(1)(f) of the Constitution does not stipulate the duration of incapacitation of a judgment debtor under a judicial declaration on one or more of the aforementioned grounds for contesting an election to a seat in Parliament. Article 62(1)(f) of the Constitution provides as follows:

“62. (1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless −

(a)

(b)

(c)

(d)

(e)

(f) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; and

(g) …”

In the absence of a fixed period of incapacity of a candidate for election to a seat in Parliament being specified for complying the requirements under Article 62(1)(f) of the Constitution, one point of view urged before the Court is that such incapacity ought to be construed as perpetual. The other point of view canvassed before the Court is that the period of disqualification under Article 63 of the Constitution for the character flaw of moral turpitude ought to be construed along with Article 62(1)(f) of the Constitution. In this regard Article 63(1)(h) of the Constitution creates a bar for a period of five years for contesting an election after serving no less than a two year sentence for conviction for an offence involving moral turpitude. The said disability ought to be construed along with Article 62(1)(f) of the Constitution to limit the period of incapacity imposed by the latter provision to five years as well.

1. Article 113 of the Constitution makes the qualifications under Article 62 of the Constitution and disqualifications under Article 63 of the Constitution applicable to the candidates for election to a seat in the Provincial Assemblies. Therefore, the Constitution has applied the same criteria of eligibility for election to a seat in all Constitutional Legislatures together referred in this opinion as ‘Parliament’. Article 113 of the Constitution provides as follows:

“113. The qualifications and disqualifications for membership of the National Assembly set out in Articles 62 and 63 shall also apply for membership of a Provincial Assembly as if reference therein to “National Assembly” were a reference to “Provincial Assembly”.”

Submissions by the Counsel:

1. Mr. Babar Awan, Sr. ASC appearing before this Court (in Civil Appeal No. 233 of 2015) has supported the lifetime bar under Article 62(1)(f) of the Constitution on the eligibility of a candidate to contest election to Parliament. He argued that the Constitution and the law contemplate permanent and transient disqualifications. Thus, Article 62(1)(d), (e), (f) and (g) of the Constitution do not fix a time limit for the incapacity of a candidate to contest an election. Within this category of provisions Article 62(1)(f) ibid above requires that a declaration by a Court of law indicating delinquent conduct be in existence before incapacity upon a candidate for election can be imposed thereunder. The remaining three clauses do not provide for any such mechanism. These provisions were added to the Constitution pursuant to Islamic provisions and whenever attracted to a case they create a perpetual bar. He read from the verses of the Holy Qur’an to emphasise the meaning of the expression “Ameen” used in Article 62(1)(f) of the Constitution. These verses include Surah Nisah verse 58 and Surah Aal-e-Imran verse 75. As a threshold for the requirement of honesty, he referred to Surah Al- Ma’aidah verse 119; Surah At’ Taubah verse 119; Surah Al Ahzab verse 23, 24 and 35. He pointed out further that the permanent bar created under Articles 62(1)(f) of the Constitution was endorsed by Parliament in the Constitution (Eighteenth Amendment) Act, 2010 (“18th Constitutional Amendment”). No omission is attributable to the Constitution nor reading into a provision thereof is permissible under the settled rules of Constitutional interpretation. If at all the period of embargo under Article 62(1)(f) of the Constitution is to be relaxed, then such an outcome can follow only from a Constitutional amendment by the Parliament.

2. Mr. Sikandar Bashir Mohmand, learned ASC appearing for Jehangir Khan Tareen, Ex-MNA has argued against the imposition of a permanent embargo under Article 62(1)(f) of the Constitution on the eligibility of a candidate for election to Parliament. He contended that the absence of a specified term of the bar on eligibility in the said constitutional provision made the same amenable to interpretation and that a life time bar amounted to an excessive restriction on the fundamental right guaranteed under Article 17(2) of the Constitution. That the principle of proportionality ought to be applied to Article 62(1)(f) of the Constitution in the light of the embargo on eligibility for election provided in similar provisions. Particular emphasis was placed on Article 63(1)(h) of the Constitution wherein more serious misconduct by a candidate for election who has been convicted and sentenced for an offence involving moral turpitude has been subjected to an embargo on contesting election to Parliament for a fixed term rather than permanently. Moreover, gross acts of dishonesty catered by Section 15 of the NAB Ordinance and similar acts by Section 100 of the Representation of the People Act, 1976 (“ROPA”) provide for an embargo for fixed periods. In these circumstances, the lack of specification of the duration of the bar created under Article 62(1)(f) of the Constitution ought not be given permanent effect. Under the principle of proportionality the Court ought to impose a bar that is commensurate with the wrong committed by a candidate for election. In this respect, the Court had discretion to fix the term but unfitness to contest for five years should be treated as an outer limit. He read from Section 100 of the ROPA which creates a disqualification of five years for exceeding the limit of election expenses and Section 15 of the NAB Ordinance for imposing disqualification for ten years after release from prison on conviction for offences of corruption and corrupt practices. On the other hand, the inadvertent non-disclosure of certain assets by a candidate without any intention to deceive the authorities or the public appears to be a trivial misdemeanor in comparison, yet the Courts have under Article 62(1)(f) of the Constitution applied a permanent time bar in consequence thereof.

3. Ms. Asma Jehangir, Sr. ASC appearing for Rai Hassan Nawaz Ex-MNA explained that her client was disqualified under Article 62(1)(f) of the Constitution for not declaring his inherited property in his statement of assets. This is because the said asset was held in the name of a family company. Her client derived no advantage from the said non-disclosure but has been subjected to a life time bar for misdeclaration and concealment of his assets. She argued that Article 62(1)(f) of the Constitution is vague in its language for lacking a specific period of incapacitation of a candidate for election and sets an exceptionally high standard of human character to be met by him. She also contended that sagacity and non-profligacy are subjective terms for which determination or quantification can be onerous and irrational. Although the meaning and effect of these terms was a matter for Parliament to determine, yet the Courts have the authority and power to apply the rule of proportionality in order to avoid the harsh consequence of permanent incapacitation of a candidate under Article 62(1)(f) of the Constitution. She submitted that Section 99(1)(f) of the ROPA provides the same substantive qualifications as expressed in Article 62 of the Constitution but these do not create a permanent embargo. Consequently, for the lack of the same qualification to contest election for the Parliament, there are divergent provisions in the statute and in Article 62(1)(f) of the Constitution. The Constitutional mandate in Article 62(1)(f) of the Constitution ought to be construed and enforced in the light of the aforesaid statutory provisions.

4. Sardar Muhammad Aslam, Sr. ASC appearing for the two disqualified appellants in two Civil Appeals (Nos.476 of 2014 and No.204-L of 2016) respectively, submitted that the commission of the wrong, namely, the misdeclaration of assets did not cause an injury or loss to any person and ought to be treated lightly on the principle of Touba (repentance) and Maghfirat (forgiveness), which are the foundations of Islamic law and jurisprudence. He was, however, candid to accept that except for submitting their affidavits in Court, his clients had not made any expression of remorse, regret or repentance before the concerned authorities or the public.

5. Learned amicus curiae, Mr. Munir A. Malik, Sr. ASC stated that a settled principle of interpretation of the Constitution is that it should be read as a whole. The chapter of fundamental rights lies at the heart of the Constitution and the right to contest elections emanates therefrom. Articles 62 and 63 of the Constitution are not preceded by a non-obstante clause, therefore, these provisions must be read in a manner that advances the fundamental right to contest election and not curtail the same. Furthermore, Articles 62 setting out qualifications and Article 63 laying down disqualifications for election to a seat in Parliament ought to be read together as these provisions are complementary to each other. According to the textual history of the Constitution, the provisions, inter alia, of Article 63(1)(g) and (h) belong to a set of disqualifications that are based on past delinquent conduct of a candidate. Prior to the 18th Constitutional Amendment, the conviction for such delinquent conduct resulted in disqualification without a time limitation, hence these were construed as being of permanent effect.

6. The 18th Constitutional Amendment, however, introduced a time limit in respect of both these disqualifications. Article 63(1)(h) of the Constitution is relevant for present purpose. After the 18th Constitutional Amendment, it lays down that a person who is convicted and sentenced to more than two years imprisonment for an offence involving moral turpitude stands disqualified to contest and election for a period of five years after the date of his release from prison. The 18th Constitutional Amendment has similarly made the incapacity cast upon a candidate for election under Article 62(1)(f) to be contingent upon an adverse declaration by a Court of law being made against the candidate. Learned amicus curiae submits that this step dilutes the rigours of the sanction under Article 62(1)(f) of the Constitution which otherwise does not fix a time limit for the incapacity imposed by it. The learned amicus curiae has argued that according to his understanding, every act of dishonesty conceivably falls within the ambit of moral turpitude. Therefore, dishonesty under Article 62(1)(f) of the Constitution is a subset of moral turpitude in Article 63(1)(h) thereof. The imposition of a lifetime bar on contesting election to Parliament under Article 62(1)(f) of the Constitution would render Article 63(1)(h) thereof redundant. Therefore, the two provisions of the Constitution ought to be construed to derive substance and meaning from each other. Consequently, the period of incapacity under Article 62(1)(f) of the Constitution ought to be limited to the period of disqualification imposed on a candidate for election under Article 63(1)(h) of the Constitution.

7. Syed Ali Zafar, learned ASC also appearing as amicus curiae argued that the present exercise is essentially a journey to discover the silence of the Constitution. This is because no time limitation has been prescribed for the incapacity imposed on a candidate by Article 62(1)(f) of the Constitution. From the historical perspective, the disqualification under Article 62(1)(f) of the Constitution is permanent which represents one extreme; on the other hand, the other extreme perspective can be that disqualification is for one election term, that is five years. However, he advocated a third approach for fixing a time period between those two extremes to be determined by the Court as it deems fit. The learned amicus curiae stated that in doing so, the Court will be adopting the structural methodology of constitutional interpretation. He then referred to six modalities of construction of constitutional provisions as per Philip Babbitt in his book “Constitutional Interpretation” referred to in Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84). By following the structural modality for interpretation of the constitutional provisions in the present case, the Court would give due importance to the fundamental right of citizens to contest election under Article 17 of the Constitution. Moreover, qualifications for and disqualifications to contest election for a seat in Parliament under Articles 62 and 63 of the Constitution in essence deal with a common subject and therefore the two provisions are complementary to each other and ought to be read together. A person who has committed a criminal offence involving moral turpitude is permitted to contest election after a lapse of five years of his release from prison, therefore, the constitutional intention cannot be to inflict a graver punishment of a life time bar to contest election upon a person who has committed a dishonest act. Finally, he submitted that by omitting to prescribe a period of incapacity for lack of qualification of a candidate for election, Article 62(1)(f) of the Constitution purposefully left the extent of the exclusionary bar to the discretion and judgment of the Court.

8. At the end of the proceedings, learned Attorney General for Pakistan also assisted the Court with his succinct and candid submissions. He submitted that omission by the Constitution to provide a time limit for the incapacity imposed under Article 62(1)(f) of the Constitution cannot mean that such incapacity is of permanent character. Such a result would deprive a person of his fundamental right under Article 17 of the Constitution. Furthermore, the effect of a judicial declaration under Article 62(1)(f) of the Constitution has to be weighed on a case to case basis. A case of breach of trust differs from forgery or a misdeclaration of fact made under oath. However, he accepted that a judicial declaration of a person being dishonest or not ameen under Article 62(1)(f) of the Constitution does not end with the efflux of time. Finally, he stated that it is only for the Legislature to put a time limit on the period of incapacity suffered by a candidate under Article 62(1)(f) of the Constitution in consequence of an adverse judicial declaration. Until such time as Parliament intervenes, the incapacity to contest elections shall continue under Article 62(1)(f) of the Constitution for so long as an adverse judicial declaration against a candidate is in force.

Analysis:

1. Before we proceed to examine the respective contentions of the learned counsel appearing before us, it would be useful to reproduce the provisions of Articles 62 and 63 of the Constitution as originally framed in the year 1973 (“1973 Constitution”), followed by their version after amendments expanding the list of qualifications and disqualifications laid down therein for becoming or remaining a Member of Parliament:

1973 Constitution:

“62. A person shall not be qualified to be elected or chosen as a member of Parliament unless—

(a) he is a citizen of Pakistan;

(b) he is, in the case of the National Assembly, not less than twenty- five years of age and is enrolled as a voter in any electoral roll for election to that Assembly;

(c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership; and

(d) he possesses such other qualifications as may be prescribed by Act of Parliament.”

“63.(1) A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament, if—

(a) he is of unsound mind and has been so declared by a competent court; or

(b) he is an undischarged insolvent; or

(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or

(d) he holds any office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or

(e) he is so disqualified by Act of Parliament.

(2) If any question arises whether a member of Parliament has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.”

1. During the Martial Law regime of General Zia-ul-Haq, amendments were made in 1973 Constitution including some that were meant to supplement the Islamic content of the Constitution. In the present context, the President’s Order No.14 of 1985 introduced, inter alia, new qualifications and disqualifications for membership to Parliament. These are reproduced below:

1985 Amendment:

“62. A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless—

(a) he is a citizen of Pakistan;

(b) he is, in the case of National Assembly, not less than twenty- five years of age and is enrolled as a voter in any electoral roll for election to a Muslim seat or a non-Muslim seat as the case may be in that Assembly;

(c) he is, in the case of Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership;

(d) he is of good character and is not commonly known as one who violates Islamic Injunctions;

(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as well abstains from major sins;

(f) he is sagacious, righteous and non-profligate and honest and ameen;

(g) he has not been convicted for a crime involving moral turpitude or for giving false evidence;

(h) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan:

Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation; and

(i) he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (Parliament).”

The new disqualifications for election incorporated by the President’s Order No.14 of 1985 in Article 63 of the Constitution recapitulated the prescriptions made in certain existing statutes but without emphasizing the Islamic law:

“63.(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if—

(a) he is of unsound mind and has been so declared by a competent court; or

(b) he is an undischarged insolvent; or

(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or

(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or

(e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or

(f) being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or

(g) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan; or

(h) he has been, on conviction for any offence which in the opinion of the Chief Election Commissioner involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or

(i) he has been dismissed from the service of Pakistan on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or

(j) he has been removed or compulsorily retired from the service of Pakistan on the ground of misconduct unless a period of three years has elapsed since his removal or compulsory retirement; or

(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or

(l) he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect; or

(m) he has been convicted under section 7 of the Political Parties Act, 1962 (III of 1962), unless a period of five years has elapsed from the date of such conviction; or

(n) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government:

Provided that the disqualification under this paragraph shall not apply to a person—

(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him;

(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or

(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest; or

Explanation.— In this Article “goods” does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply.

(o) he holds any office of profit in the service of Pakistan other than the following offices, namely:-

(i) an office which is not whole time office remunerated either by salary or by fee;

(ii) the office of Lumbardar, whether called by this or any other title;

(iii) the Qaumi Razakars;

(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or

(p) he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force.

(2) If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.”

1. The above amendments made by the President’s Order No.14 of 1985 were affirmed by the elected Parliament vide 8th Constitutional Amendment in the year 1985. Constitutional amendments were also made in the year 2002 by the Legal Framework Order, 2002 during the Martial Law regime of General Pervez Musharraf. However, these amendments are not significant for our present discussion regarding eligibility to contest an election for a seat in Parliament. This is because in the year 2010, Parliament discarded these changes through the 18th Constitution Amendment Act, 2010 and substantially reformed the constitutional scheme regarding candidature for election to the Parliament. Therefore, it is the post 18th Amendment version of Articles 62 and 63 of the Constitution that is relevant to the present controversy and may now be examined in order to comprehend the improvement made in the clarity and enforceability of the said provisions:

Post 18th Amendment:

“Qualifications for membership of Majlis-e-Shoora (Parliament). –

1. (1) A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless−

(a) he is a citizen of Pakistan;

(b) he is, in the case of the National Assembly, not less than twenty-five years of age and is enrolled as a voter in any electoral roll in −

(i) any part of Pakistan, for election to a general seat or a seat reserved for non-Muslims; and

(ii) any area in a Province from which she seeks membership for election to a seat reserved for women.

(c) he is, in the case of the Senate, not less than thirty years of age and is enrolled as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership;

(d) he is of good character and is not commonly known as one who violates Islamic Injunctions;

(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins;

(f) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law; and

(g) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan.

(2) The disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation.”

“Disqualifications for membership of Majlis-e-Shoora (Parliament).

63.(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if −

(a) he is of unsound mind and has been so declared by a competent court; or

(b) he is an undischarged insolvent; or

(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or

(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or

(e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or

(f) being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or

(g) he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has elapsed since his release; or

(h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or

(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the ground of misconduct, unless a period of five years has elapsed since his dismissal; or

(j) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the ground of misconduct, unless a period of three years has elapsed since his removal or compulsory retirement; or

(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or

(l) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government:

Provided that the disqualification under this paragraph shall not apply to a person −

(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him;

(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or

(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest;

Explanation.− In this Article “goods” does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply;

or (m) he holds any office of profit in the service of Pakistan other than the following offices, namely:−

(i) an office which is not whole time office remunerated either by salary or by fee;

(ii) the office of Lumbardar, whether called by this or any other title;

(iii) the Qaumi Razakars;

(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or

(n) he has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or

(o) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers; or

(p) he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force.

Explanation.− For the purposes of this paragraph “law” shall not include an Ordinance promulgated under Article 89 or Article 128.

(2) If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and if he fails to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.

(3) The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.”

1. It will be seen that the introduction in 1985 of Islamic provisions in Article 62 of the Constitution were retained by the 18th Constitutional Amendment. However, certain overlap in the subject matter of the provisions of clauses (g) and (h) of Article 62(1) and Article 63 of the Constitution was removed by deleting repetitive text in Article 62(1) of the Constitution. The salient Islamic provisions of Article 62, retained by the 18th Constitutional Amendment are contained in its clauses (d), (e) and (f) of Article 62 of the Constitution. These carry Quranic qualifications under Islamic law for establishing eligibility to hold public office of trust or authority. Although introduced in the year 1985, these clauses continue to remain part of the Constitution. Clauses (d) and (e) of Article 62 lay down the following conditions of eligibility for election to Parliament, namely, good character, observance of Islamic injunctions, knowledge of Islamic teachings and abstention from major sins. These conditions are subjective and under Article 62(2) obligate only the Muslim candidates for election to Parliament. It may also be noted that these provisions do not prescribe objective standards of conduct. Therefore, only cases of blatant deviation from commonly recognized and accepted standards of Islamic norms can form the subject matter of such restraints.

2. On the other hand, Article 62(1)(f) of the Constitution also imposes Islamic ethical conditions for eligibility of a candidate for election to Parliament but these are made applicable to both Muslim as well as non-Muslim candidates for Parliamentary membership. One reason that the conditions of Article 62(1)(f) are made a criterion of eligibility of all candidates for election is the universality of their ethical prescription. Their content constitutes a basic norm in all progressive democratic societies that are governed by the rule of law. It is a matter of fact that in Pakistan the members of Parliament occupy leadership roles for the people of Pakistan and constitute the political and ruling elite in society. According to the Preamble of the Constitution, these persons are representatives of the people of Pakistan to whom the former are ultimately responsible as fiduciaries. It was held by this Court in Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132 at p.164) that:

“56. … holders of public office are first and foremost fiduciaries and trustees for the people of Pakistan ….and when performing the functions of their Office, they can have no interest other than the interests of the honourable People of Pakistan.”

An instructive observation in this behalf was also made in Habibullah Energy Limited v. WAPDA (PLD 2014 SC 47 at p.69) in the following terms:

“6. … A breach of the duty of loyalty, such as in the case of a self-dealing transaction or one involving conflict of interest, will trigger heightened scrutiny by the court. Further, if public officials fail to exercise the duty of care that is expected of a prudent manager, the court will assess the underlying action or transaction to ascertain whether the state functionaries have breached their fiduciary obligations to the people of Pakistan.”

1. The Holy Qur’an narrates the accounts of different exalted personalities having leadership roles. Amongst these, the Holy Prophet Muhammad (PBUH) is regarded as the finest example for emulation by mankind; not only for his exceptional spiritual qualities as a Messenger of Almighty Allah Subanahu Wa Ta’ala (“SWT”) but also his remarkable capabilities of humanity and leadership that distinguished him as the best role model. With such qualities the Holy Prophet Muhammad (PBUH) escaped persecution in his own land of Mecca to establish without any coercion a just and egalitarian society in the distant land of Madina. This city state was governed by the laws laid down in the Holy Qur’an and exemplified in the Sunnah of the Holy Prophet Muhammad (PBUH). Likewise, for his conquest of Mecca without the use of any force. A prominent American author, Michael H. Hart explains in his book titled “The 100, a Ranking of the Most Influential Persons in History”; Citadel, 1992 that:

“My choice of Muhammad [PBUH] to lead the list of the world’s most influential persons may surprise some readers and may be questioned by others, but he was the only man in history who was supremely successful on both the religious and secular levels. … Muhammad [PBUH] was a secular as well as a religious leader. In fact, as the driving force behind the Arab conquests, he may well rank as the most influential political leader of all time. … We see then, that the Arab conquests of the seventh century have continued to play an important role in human history, down to the present day. It is this unparalleled combination of secular and religious influence which I feel entitles Muhammad [PBUH] to be considered the most influential single figure in human history.”

[emphasis provided]

For his extraordinary character qualities and impeccable ethical values the Holy Prophet Muhammad (PBUH) is described in Surah Al-Ahzab Ayat 21 (33:21) in the Holy Qur’an as follows:

“Indeed in the Messenger of Allah (Muhammad SAW) you have a good example to follow for him who hopes in (the Meeting with) Allah and the Last Day and remembers Allah much.”

The qualities of sagacity, righteousness, honesty and trustworthiness laid down in Article 62(1)(f) of the Constitution as qualifications for membership to the elected Houses are actually derived from the Sunnah of the Holy Prophet Muhammad (PBUH). Such strengths can never be equaled by ordinary mortals for whom these are goals to strive for and more importantly not to consciously violate.

1. The Holy Qur’an recognizes the temporal significance of the character qualities specified in Article 62(1)(f) of the Constitution. These qualities are since acknowledged in political thought as attributes of a public leader. One account of some qualities is are narrated by the Holy Qur’an in the story of Hazrat Yusuf (AS) in Surah Yusuf, Ayat No.54-55 (12:54-55) with a clear message:

“And the king said, "Bring him to me; I will appoint him exclusively for myself." And when he spoke to him, he said, "Indeed, you are today established [in position] and trusted. [Joseph] said, “Appoint me over the storehouses of the land. Indeed, I will be a knowing guardian.” [emphasis supplied]

These verses are often quoted to demonstrate Allah (SWT)’s guidance that the qualities of honesty, trustworthiness, guardianship, knowledge and skill are necessary attributes of persons holding public office involving trust and responsibility. These requirements are echoed in the conditions of sagacity, honesty and Ameen (trustworthiness) specified as qualifications in Article 62(1)(f) of the Constitution for membership to Parliament. As observed above, the laws of mature secular democracies emphasise the importance of the above-noted qualities to dignify persons holding parliamentary office. These standards are generally lodged in laws, enforced, inter alia, through a code of conduct for lawmakers; or as regulations that provide amongst others, for a duty to act honestly solely in public interest, avoidance of conflict of interest and setting out the terms and extent of disclosure of their pecuniary and other interests. The priority of the duties owed by Parliamentarians and of accountability for their actions that are established in the current Code of Conduct for Members of Parliament (United Kingdom) are such that deserve review:

“The Code of Conduct for Members of Parliament

Prepared pursuant to the Resolution of the House of 19 July 1995

I. Purpose of the Code

1. The purpose of this Code of Conduct is to assist all Members in the discharge of their obligations to the House, their constituents and the public at large by:

(a) establishing the standards and principles of conduct expected of all Members in undertaking their duties;

(b) setting the rules of conduct which underpin these standards and principles and to which all Members must adhere; and in so doing

(c) ensuring public confidence in the standards expected of all Members and in the commitment of the House to upholding these rules.

II. Scope of the Code

1. The Code applies to Members in all aspects of their public life. It does not seek to regulate what Members do in their purely private and personal lives.

2. The obligations set out in this Code are complementary to those which apply to all Members by virtue of the procedural and other rules of the House and the rulings of the Chair, and to those which apply to Members falling within the scope of the Ministerial Code.

III. Duties of Members

1. By virtue of the oath, or affirmation, of allegiance taken by all Members when they are elected to the House, Members have a duty to be faithful and bear true allegiance to Her Majesty the Queen, her heirs and successors, according to law.

2. Members have a duty to uphold the law, including the general law against discrimination.

3. Members have a general duty to act in the interests of the nation as a whole; and a special duty to their constituents.

4. Members should act on all occasions in accordance with the public trust placed in them. They should always behave with probity and integrity, including in their use of public resources.

IV. General Principles of Conduct

1. In carrying out their parliamentary and public duties, Members will be expected to observe the following general principles of conduct identified by the Committee on Standards in Public Life in its First Report as applying to holders of public office. These principles will be taken into account when considering the investigation and determination of any allegations of breaches of the rules of conduct in Part V of the Code.

Selflessness

Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.

Integrity

Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.

Objectivity

In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

Accountability

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

Openness

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

Honesty

Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

Leadership

Holders of public office should promote and support these principles by leadership and example.”

V. Rules of Conduct

1. Members are expected to observe the following rules and associated Resolutions of the House.

2. Members shall base their conduct on a consideration of the public interest, avoid conflict between personal interest and the public interest and resolve any conflict between the two, at once, and in favour of the public interest.

3. No Member shall act as a paid advocate in any proceeding of the House.

4. The acceptance by a Member of a bribe to influence his or her conduct as a Member, including any fee, compensation or reward in connection with the promotion of, or opposition to, any Bill, Motion, or other matter submitted, or intended to be submitted to the House, or to any Committee of the House, is contrary to the law of Parliament.

5. Members shall fulfill conscientiously the requirements of the House in respect of the registration of interests in the Register of Members’ Financial Interests. They shall always be open and frank in drawing attention to any relevant interest in any proceeding of the House or its Committees, and in any communications with Ministers, Members, public officials or public office holders.

6. Information which Members receive in confidence in the course of their parliamentary duties should be used only in connection with those duties. Such information must never be used for the purpose of financial gain.

7. Members are personally responsible and accountable for ensuring that their use of any expenses, allowances, facilities and services provided from the public purse is in accordance with the rules laid down on these matters. Members shall ensure that their use of public resources is always in support of their parliamentary duties. It should not confer any undue personal or financial benefit on themselves or anyone else, or confer undue advantage on a political organisation.

8. Members shall never undertake any action which would cause significant damage to the reputation and integrity of the House of Commons as a whole, or of its Members generally. …”

[emphasis supplied]

The substantive content of the Code of Conduct is derived from centuries of parliamentary experience in the United Kingdom. However, these principles mirror and build upon the basic values and standards of public conduct that were espoused by the Holy Qur’an and the Holy Prophet (PBUH) fourteen centuries ago. Be that as it may, the universality of standards of honourable conduct in public life in the contemporary democratic world, irrespective of faith or culture, makes it plausible that firstly, the conditions of eligibility for election under Article 62(1)(f) of the Constitution are made applicable to all candidates for the Parliament including non-Muslim candidates; and secondly, that these conditions have been retained by the elected Parliament in the 18th Constitutional Amendment.

1. The foregoing view is further reinforced by the Constitutional duty of honesty, devotion of best ability in decisions, faithfulness and fidelity to the Constitution and the law that are sworn by every member of Parliament in his Oath made in pursuance of Article 65 of the Constitution read with its Third Schedule and by every member of the Provincial Assemblies sworn under Articles 65 and 127 read with the Third Schedule to the Constitution. Such a firm and robust commitment enjoined by the Constitution upon members of the elected Legislatures conforms the Constitutional architecture envisaged in its Preamble providing for the exercise of authority over the people of Pakistan, within the limits prescribed by Almighty Allah (SWT), as a sacred trust. For the State is to be run through the chosen “representatives of the people” observing principles of democracy, freedom, tolerance and social justice as envisaged by Islam, enabling Muslims to order their lives individually and collectively in accordance with the teachings and requirements of Islam, as set out in the Holy Qur’an and Sunnah of Prophet Muhammad (PBUH). [emphasis supplied].

2. With the foregoing structure of normative values enshrined in and reiterated by our Constitution, there can be no doubt that the qualifications in Article 62(1)(f) occupy a crucial place in the exercise of political rights conferred by the Constitution. These political rights are guaranteed by Article 17 of the Constitution, which is reproduced herein below:

“Freedom of Association:

17.(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity or Pakistan, public order or morality.

(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.

(3) Every political party shall account for the source of its funds in accordance with law.”

In the case of Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473 at p.559), the right to contest an election and to form government has been held to emanate from the right conferred by Article 17(2) of the Constitution, that guarantees the freedom to form and to be a member of a political party. The fundamental right under Article 17(2) of the Constitution has been a subject of repeated scrutiny by this Court as and when actual or perceived threats to the democratic dispensation were challenged before the Courts. A celebrated judgment in this behalf was delivered in the case of Miss Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416). It laid down a threshold for ensuring the lawful exercise of the fundamental right of political association and action. The precedent hold that the exercise of political rights and action is not absolute in character and is subject to any reasonable restriction imposed by law in the interest of sovereignty or integrity of Pakistan. These observations made in the said judgment (at page 570 of the law report) are presently relevant and are reproduced below:

“The right to form associations or unions or political parties, like all other Fundamental Rights, is not absolute. Article 17 explicitly authorises the State to impose reasonable restrictions on the exercise and enjoyment of this right. The restrictions which the State is empowered to impose on the right to form or be a member of a political party will have to satisfy criteria embodied in Article 17(2), firstly that these restrictions should have a statutory sanction which means that the executive cannot, without the backing of law, impose any restriction on the exercise and enjoyment of the right. Second, the restrictions imposed should pass the test of reasonableness before they can validly restrict the exercise of the right. Third, these restrictions in order to be constitutional will have to have a clear nexus with one of the grounds i.e. sovereignty or integrity of Pakistan. These requirements are implicit in the expression “in the interest of” the sovereignty or integrity of Pakistan.”

The expression “integrity of Pakistan” used in Article 17(2) of the Constitution has been construed in the said judgment to include “morality” as one of its features. This is because the word “integrity” means moral soundness, morality and sound moral principles. These ought to be read as forming part of the expression “integrity of Pakistan.” After quoting the Holy Qur’an, it is observed (at page 526 of the law report) that:

“… [N]ot only individually but also collectively Muslims have to live within an exclusively moral framework as enjoined by the Holy Quran and the Sunnah. No civilized society can deny this standard of morality. The concept of democracy in our Constitution should, therefore, be regarded to be imbued with individual and collective morality as according to Islam (Holy Quran and Sunnah). It goes without saying that morality provides the basis for the society’s spiritual values and in terms of democracy--freedom, equality, tolerance and social justice. Collectively the political parties are now expected to protect public morals in the same way as other legal institutions protect public truthfulness and public symbols of authority. To leave the political parties entirely free to do as they please is to suggest that morality does not matter. A situation like this might prove ultimately subversive to the fabric of the State in the maintenance of the law and order. Therefore, political parties should conform to stringent obligations of high ethical standard.”

1. Pursuant to the said criteria the political rights of action under Article 17(2) of the Constitution are subject to reasonable restrictions that may be imposed by statutory law. These would include conditions imposed upon a candidate to contest election. The stature of the qualifying limitations under Article 62(1)(f) of the Constitution occupy an insular and superior pedigree than statutory limitations. This is because the test under Article 17(2) of the Constitution applies to statutory but not to constitutional restrictions. The latter enjoy an autonomy that is discussed below.

2. The matter of curtailment of the fundamental right of freedom of expression of parliamentarians under Article 19 of the Constitution came up for scrutiny by this Court in the case of Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263). The issue was whether safeguards against defection by parliamentarians incorporated by Article 63A in the Constitution amounted to a violation of the parliamentarians’ political right of freedom of expression guaranteed under Articles 19 and 66 of the Constitution. It was held that Article 8 of the Constitution giving overriding effect to Fundamental Rights over conflicting statutes did not, however, operate to judge or invalidate other provisions of the Constitution (at p.1313 of the law report). As a result Article 63A of the Constitution was held to be valid law although it made parliamentarians liable to dismissal by their parliamentary party leader: for breach of party discipline expressed through the party’s constitution, code of conduct and declared policies or for voting contrary to the directions issued by the parliamentary party to which they belong or for abstention from voting in the House contrary to the party’s policies against any bill. It was held that forfeiture of parliamentary membership as a consequence of the breach of party discipline by a parliamentarian nevertheless did not wrest his freedom of speech and expression under Article 19 of the Constitution.

3. Just as the validity of a Constitutional provision cannot be tested at the touchstone of Article 8 and fundamental rights thereof [Ref: Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426)], it is also an established rule that Article 2A of the Constitution cannot be made a benchmark to test the validity of another Constitutional provision [Ref: Hakim Khan v. Government of Pakistan (PLD 1992 SC 595 at pp.630 and 634)]. In the above scenario, the overriding principle of Constitutional interpretation is that every word, clause and Article of the Constitution must be given effect and the attribution of redundancy to any part of the Constitution be avoided. [Ref: Reference by the President (PLD 1957 SC 219 at p.235). As such, the Constitution must be interpreted as a whole because it is an organic document that is meant to apply to the changing circumstances of time and space. Consequently, each provision of the Constitution or part thereof has a purpose, meaning and integral place that must be understood, acknowledged and applied harmoniously. It is only when a conflict between two provisions of the Constitution is irreconcilable and one of such provisions was inserted when the Constitution was held in abeyance, then the provision which was made part of the Constitution during the period of its abeyance would yield, provided that the other provision conflicting therewith was enforced by parliamentary will and is closer to the provisions of the Preamble of the Constitution. Reference is made to District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401).

4. In the background of aforesaid principles of interpretation of the Constitutional provisions and the equal standing of both Article 17(2) and Article 62(1)(f) of the Constitution, the task of harmoniously interpreting the fundamental right under Article 17(2) of the Constitution and the pre-conditions for reposing responsibility and authority upon persons vying for parliamentary office under Article 62(1)(f) of the Constitution may now be undertaken. The substantive content of Article 62(1)(f) finds support from the Preamble of the Constitution emphasising Islamic values in Society and from the Oath of parliamentary office which enjoins honesty, faithfulness to public interest and the law. Endorsement of such conditions is also given by the 18th Constitutional Amendment passed by an assertive Parliament in the year 2010. Several important adjustments were made by this Amendment in the contours of the Constitution. Most notably, these include the distribution of State functions and authority between the Federation and the Provinces; and also a new mechanism for appointment of superior Court Judges. In the present context, the conditions and qualifications in Article 62(1)(f) of the Constitution were retained in toto; and made objectively and transparently enforceable by the prescription of a judicial declaration for precipitating the loss of the electoral qualification specified in the said clause. Where a declaration made by a Court of law against a candidate for election warrants a conclusion of his misrepresentation, dishonesty, breach of trust, fraud, cheating, lack of fiduciary duty, conflict of interest, deception, dishonest misappropriation, etc. to be derived from such a verdict, then it stands to reason that the consequential incapacity imposed upon the candidate for election should last for as long as the declaration is in force. This result follows as a rational consequence of the judicial declaration and from the lack of any time period of incapacity of the candidate being laid down in Article 62(1)(f) of the Constitution. In other words, if the declaration by the Court has attained finality, the embargo under Article 62(1)(f) of the Constitution acquires permanent effect.

5. The foregoing aspects of Article 62(1)(f) of the Constitution do not encumber but regulate the fundamental right of political association and action under Article 17(2) of the Constitution. The incorporation of the requirement of declaration by a Court (in terms of Article 62(1)(f) of the Constitution) necessarily involves delinquent conduct by a candidate for election that is in violation of the law. A Court of law does not issue a declaration that offends mere sentiments or sensibilities. Consequently, a valid declaration by the Court would involve the breach of a legal duty or obligation owed by the candidate for election to another person or the violation of the latter’s legal right or privilege.

6. In our legal system the rights and duties of parties in a legal correlation are broadly speaking of two kinds. One species concerns the breach of rights or duties involving the commission of criminal offences. The convictions after trial for such offences carry punishments including the capital penalty, imprisonment, proprietary forfeitures and pecuniary fines. The other kind of legal correlation involves the breach of rights and duties that carry civil liability. A decree by a Court of civil jurisdiction can grant pecuniary or specific relief, including, a declaration with respect to a legal right, status or legal character. Such a decree that is based on admissions or evidence and sustained by reasons attains finality after remedies before the higher fora are exhausted. A final decree has binding effect and is commonly described as a past and closed transaction having permanent effect. Therefore, the consequence of permanent nature i.e. incapacity, following a final and binding decree of Court of civil jurisdiction, is the ordinary and lawful outcome of civil litigation.

7. To advance the plea against permanent ineligibility under Article 62(1)(f) of the Constitution reference has been made to the constitutional disqualification to contest an election to a seat in Parliament on account of a conviction and sentence for commission of any offence involving moral turpitude. The provisions of Article 63(1)(h) of the Constitution lay down this disqualification in the following terms:

“63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if −

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or …” [emphasis supplied]

We have already observed that a conclusion about a judgment debtor having character failings specified in Article 62(1)(f) of the Constitution, that emanate or can be derived from a final judicial declaration, would cause the permanent incapacity of a candidate for elected office. It has been argued before us that the character flaws covered by Article 62(1)(f) of the Constitution falls within the ambit of wrongs that involve moral turpitude under Article 63(1)(h) of the Constitution. A conviction and sentence by a Court of law for offences involving moral turpitude is subjected to a disability to contest an election to Parliament for a period of five years following release of the convict from prison. The expression “moral turpitude” is not a defined expression in our codified law; however, it has been examined in authoritative legal commentaries and precedents. Words and Phrases, Permanent Edition 27-A, assigns the following meaning to the said expression:

“Moral turpitude” is a vague term, and its meaning depends to some extent on the state of public morals; it is anything that is done contrary to justice, honesty, principle, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man; it implies something immoral in itself, regardless of fact whether it is punishable by law.” [emphasis supplied]

The foregoing definition was considered by this Court in Ghulam Hussain v. Chairman, POF Board (2002 SCMR 1691) and it was held that:

“7. Perusal of the meaning of above expression clearly indicates that anything which is done contrary to the good principles of morality is within the circuit of above expression. In fact, any act which runs contrary to justice, honesty, good moral values, established judicial norms of a society, falls within the scope of above expression. …”

According to the said definition, it is clear that offences of moral turpitude would include delinquent conduct involving, inter alia, misrepresentation, fraud, breach of trust or fiduciary duty, dishonesty, misappropriation, forgery, cheating, conflict of interest, etc.

1. It is apparent straightaway that the offences of moral turpitude should cover certain errant conduct that falls within the terms of Article 62(1)(f) of the Constitution. Consequently, delinquent conduct under Article 63(1)(h) of the Constitution would to such extent eclipse the criteria of qualifications set out in Article 62(1)(f) thereof. However, both these provisions of the Constitution are distinct and separate which possess their respectively different place, meaning and effect under the Constitution. Article 63(1)(h) of the Constitution deals with the consequences of criminal liability of a delinquent action. Such action may also fall within the ambit of Article 62(1)(f) of the Constitution. However, the distinct place, purpose and meaning of Article 62(1)(f) of the Constitution becomes obvious from the civil consequences of its provisions as opposed to Article 63(1)(h) of the Constitution which deals with the cognizance of the same action by a criminal court followed by criminal punishment. The two provisions of the Constitution, namely, Article 62(1)(f) and Article 63(1)(h) deal with different laws, remedies, fora, and relief although the underlying subject matter of the legal action is the same. It is settled law that the outcome of criminal proceedings for a particular misconduct cannot foreclose the outcome of civil proceedings in relation to the same act. If the exclusivity of jurisdiction and proceedings in a Court and their outcome, that is civil or criminal respectively, is disregarded as is urged before us, redundancy would attach to the provisions of either Article 62(1)(f) or Article 63(1)(h) of the Constitution, as the case may be. This is impermissible; the result of a judicial declaration envisaged in Article 62(1)(f) of the Constitution cannot be overshadowed by the outcome of a criminal proceeding for the same conduct.

2. Article 62 of the Constitution provides the qualifications that must necessarily be possessed by a candidate for contesting election to Parliament. These qualifications are enumerated in Article 62(1)(a) to (g) of the Constitution. On the other hand, Article 63(1) of the Constitution enumerates the disqualifications for the membership to the Parliament and Provincial Assemblies. These disqualifications are enumerated in clause (a) to clause (p) of Article 63 of the Constitution. Although the ultimate result of a candidate for election lacking a qualification under Article 62 of the Constitution or for incurring disqualification under Article 63 of the Constitution is the same, namely, his ouster from the election contest, yet the object, meaning and effect of the two provisions is very different. The view that qualifications and disqualifications are interchangeable and therefore, the consequences of incurring either, namely, period of ouster from the election contest should be similar because the same misconduct can form the subject matter of both provisions, is flawed. In the case of Govt. of Pakistan v. Akhlaque Hussain (PLD 1965 SC 527 at p. 579), the two facets of ineligibility for vying a professional office were analysed in the following terms:

“While sometimes qualification and disqualification may present two aspects of the same matter the two concepts are obviously distinct and it is not possible to contend that there can be no classification into qualification and disqualification of the attributes of a person in relation to a profession, etc. Reference may in this connection be made to Article 103 of this very Constitution which in two separate paragraphs provides for qualifications and disqualifications for membership of an Assembly. “Qualification” as will appear from Aiyar’s Law Lexicon means “that which makes person fit to do an act.” The Lexicon goes on to state: “qualification relates to the fitness or capacity of the party for a particular pursuit or a profession”. Webstor defines qualifications to mean “any natural endowment or acquirement which fits a person for a place, office or employment, or enables him to sustain any character with success”. It should be quite appropriate to refer by qualifications to the competence or the positive qualities needed for carrying on a profession and to regard the obstacles in the carrying on of a profession as disqualifications. Every profession requires for the efficient performance of the duties involved in it (1) knowledge, (2) skill and (3) a moral standard. In short whatever goes to his competence or makes a person fit to discharge the duties involved in his profession is a qualification. On the other hand, if a person is debarred from entering a profession though he is admittedly quite competent to discharge his duties for some reason not connected with his competence that is a disqualification. A person may be disqualified because he has served under a foreign Government or because he belongs to a particular tribe or his father was a rebel or because he has already sufficient income from lands or he is a shareholder of a company and so on. He may be the most competent person for carrying on a profession yet he may be debarred because of some other attributes which he possesses. That will be a disqualification.”

Another pronouncement on the same point but on different facts was made in the case of Hamid Sarfaraz v. Federation of Pakistan (PLD 1979 SC 991) wherein the issue addressed was that when Article 207 of the Constitution required a person appointed as Attorney General to possess the qualifications for appointment as Judge of the Supreme Court of Pakistan, then would such person be deemed to be under the same ‘disability’ that was placed by the Constitution on a Judge of the Supreme Court in the matter of accepting another assignment carrying the right to remuneration. It was held that:

“… The argument is clearly misconceived, as merely prescribing a certain qualification for appointment as Attorney-General for Pakistan does not mean that he would be governed by the same disability as applies to a Judge of the Supreme Court.”

Subsequently, the same view has been followed in a reasoned judgment given by the learned High Court in Muhammad Shahbaz Sharif v. Muhammad Altaf Hussain (PLD 1995 Lahore 541). On the other hand, the two aspects of eligibility, namely, qualifications and disqualifications to hold office, were held to be interchangeable by a learned Single Judge of the High Court in Muhammad Yousaf v. Irshad Sipra (1988 CLC 2475). This view has subsequently been shared by individual members of this Court but never as an opinion of a majority and without considering the afore-noted two judgments of this Court. One of the basic rules of construction of a Constitutional instrument is that effect should be given to every part and every word of a Constitution. Therefore, the Court must lean in favour of a construction which gives effect to every word without rendering it idle or nugatory. Reliance is placed upon the judgments in Reference by the President (PLD 1957 SC 219) and Mr.Fazlul Quader Chawdhry v. Mr. Mohd. Abdul Haque (PLD 1963 SC 486). Both on the said principle of Constitutional interpretation as well as the distinct nature and purpose of qualifications vis-à-vis disqualifications, the provisions of Article 62(1)(f) of the Constitution containing qualifications cannot be used interchangeably with the disqualification under Article 63(1)(h) of the Constitution. The two provisions have their separate spheres of operation. Although the ultimate result of the enforcement of each provision is the exclusion of a candidate from an election contest on account of his delinquent conduct, yet each provision is worded differently and must be interpreted and construed in accordance with its terms. It goes without saying that since the two provisions pertain to the same subject matter, therefore, they ought to be construed harmoniously. However, in the discussion that follows, it is concluded that the two provisions address significantly different situations which ought to, in the proper scheme of things, be interpreted differently.

1. Under Article 62(1)(f) of the Constitution, the judicial declaration by a Court of civil jurisdiction against a candidate for election to Parliament would adjudicate misconduct of the candidate that has not resulted in his criminal conviction and sentence for more than two years by the competent Court. Accordingly, we now consider the argument that a civil law declaration involving personal flaws mentioned in Article 62(1)(f) of the Constitution should not carry ineligibility for contesting election that is longer in duration to the disability provided in Article 63(1)(h) of the Constitution for the same misconduct.

2. At this juncture, two important considerations must be kept in mind; firstly, according to Article 63(1)(h) of the Constitution, the torment of a minimum of two years imprisonment upon conviction of an offence involving moral turpitude is necessary. This is of some importance. The reason for such an approach may be noticed in the view expressed by this Court on the concept of punishment awarded to an accused in a criminal case. In Dadullah v. State (2015 SCMR 856 at p.862) it is held that:

“9. Conceptually punishment to an accused is awarded on the concept of retribution, deterrence or reformation. The purpose behind infliction of sentence is two fold. Firstly, it would create such atmosphere, which could become a deterrence for the people who have inclination towards crime and; secondly to work as a medium in reforming the offence. Deterrent punishment is not only to maintain balance with gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society. …”

1. Retributive justice entails several serious consequences apart from deprivation of personal liberty of the convict. Such a convict in fact suffers a loss of life by being immobilized, endures loss of his livelihood, watches disruption and hurt to his family and lives with the lasting stigma of conviction on his reputation. It is, therefore, said that a convict, who has undergone a sentence of corporal punishment has “paid his dues to society.” Even after his release from jail, the convict faces many daunting challenges for rehabilitating himself in society as a responsible, productive and acceptable member thereof. It is in this context that one should look at the disqualification under Article 63(1)(h) of the Constitution for a limited period of five years imposed upon a convict after his release from jail. Even so, with the limited period of his disqualification as an ex-convict for offences involving moral turpitude, he still carries the odium of his past conviction before the voters in his constituency, whose hearts and minds he has yet to win. An exconvict suffers huge handicaps to find dignity and acceptance for himself in society. The notable effort by the Constitution to allow him an opportunity to reform himself and to strive for such a position in society cannot be deprecated for providing him relief rather than longer disenfranchisement.

2. Secondly, on the other hand, a candidate for election who has committed misconduct falling within the terms of Article 62(1)(f) of the Constitution, in particular, misrepresentation, dishonesty, breach of trust, fraud, cheating, lack of fiduciary duty, conflict of interest, deception, dishonest misappropriation, etc. as declared by a Court of civil jurisdiction has on the Islamic and also universal criteria of honesty, integrity and probity, rendered himself unfit to hold public office. He cannot be compared to the case of an ex-convict under Article 63(1)(h) of the Constitution because he has not paid a personal price for his delinquent act. It is in such circumstances that a person declared to be dishonest or in breach of his trust or fiduciary duty or being non-righteous or profligate must suffer the burden of that finding of incapacity for as long as the Court decree remains in force. Considering that the Constitution does not fix the period of incapacitation of such a judgment debtor shows a clear intention that the lack of qualification under Article 62(1)(f) of the Constitution should extend so long as the declaration of law envisaged in Article 62(1)(f) remains in the field. If such declaration is final and binding, then the incapacity to contest elections to any of the Legislatures provided by the Constitution becomes permanent. There is no reason for applying the rule of proportionality to the incapacity of a candidate for election following a final decree against him in term of Article 62(1)(f) of the Constitution. Indeed the Court has no jurisdiction whatsoever to read into the Constitution nor any grounds for treating civil and criminal proceedings alike in relation to their respective consequences.

3. In order to complete the picture it will be helpful to record the past view taken by this Court on the question presently in issue. There are several reported cases of this Court adjudicating deficiency in qualification under Article 62(1)(f) of the Constitution of a candidate but some that deal with the duration of his ouster from election. The first among these is reported as Imtiaz Ahmed Lali v. Ghulam Muhammad Lali (PLD 2007 SC 369). For the General Elections held in the year 2002, Chief Executive’s Order No.7 of 2002 enacted that if the candidate had been dismissed from service of Pakistan or a Province on the ground of misconduct involving moral turpitude, he shall be disqualified for contesting an election to Parliament. The relevant provision did not impose any time limitation. Consequently, the appellant who had been dismissed for misconduct from police service on 28.10.1990 was denied eligibility to contest election. It was held that the appellant suffered a life time embargo on his eligibility for election because his dismissal from service for misconduct barred him permanently from future employment as that would be prejudicial to the good order and discipline of the police force.

4. In the post-18th Constitutional Amendment scenario, an adverse declaration by a Court of law against a candidate is necessary to oust him from an election. It was held in Abdul Ghafoor Lehri v. Returning Officer, PB-29 (2013 SCMR 1271) that a false declaration made in the nomination papers by a candidate about his academic qualification led to a permanent embargo on the candidature for election. This is because Article 62 of the Constitution did not provide any period for which a person would stand debarred from contesting elections and, therefore, the appellant before the Court could not become qualified merely by efflux of time. To the same effect is the judgment in Muhammad Khan Junejo v. Federation of Pakistan (2013 SCMR 1328 at p.1336) wherein a deficiency in qualification under Article 62(1)(f) of the Constitution led to a permanent disqualification. This outcome was followed in Allah Dino Khan Bhayo v. Election Commission of Pakistan (2013 SCMR 1655), in which the following observations were made with respect to the duration of embargo imposed by a deficiency in qualification under Article 62(1)(f) of the Constitution:

“11. … The provisions of the said Articles when examined in the light of the judgment of this Court referred to and reproduced herein above reveal that certain disqualifications are removed by the afflux of time e.g. disqualification on account of conviction or removal from service. Similarly, the qualifications can be acquired by some future act of the candidate e.g. by acquiring exclusive citizenship so as to become qualified in terms of Article 62(1)(a) of the Constitution. However, with regards to a qualification in terms of Article 62(1)(f) of the Constitution, the framers of the Constitution have chosen not to prescribe any period of time through the flux whereof or any act or omission through which such qualification can be acquired if a candidate or a member has been held not to possess the same. Consequently, if a person, is held not to be qualified in terms of Article 62(1)(f) of the Constitution such absence of qualification in law will haunt him forever.”

1. It is clear from the findings recorded in the afore-noted four judgments by this Court that the absence of a time limit for the ineligibility of a candidate for election in Article 62(1)(f) of the Constitution is the basis for holding his incapacity to be incurable by efflux of time. The reasons recorded in our judgment reinforce that conclusion. It may also be noted that the Constitution envisages other situations in which a permanent bar to the eligibility of a candidate for election is enforced so long as the judgment that records or justifies the disability of the candidate remains in existence and occupies the field. This view is supported by Articles 63(1)(a) and 63(1)(b) of the Constitution that provide disqualifications on account of judicial declaration regarding the mental unfitness or the undischarged insolvency of a candidate for election. These disabilities also continue so long as the adverse judgment is in the field. Finally, it may be noted that the prescription by the 18th Constitutional Amendment of an adverse judicial declaration to precipitate the ineligibility of a candidate for election has provided a lawful, transparent and fair mechanism to a candidate under challenge both for contesting and for avoiding the onset of an embargo on his eligibility to contest elections. The restriction imposed by Article 62(1)(f) of the Constitution for the eligibility of a candidate for election to Parliament serves the public need and public interest for honest, upright, truthful, trustworthy and prudent elected representatives. The judicial mechanism in Article 62(1)(f) of the Constitution grants a fair opportunity and adequate remedy for relief to a candidate under challenge to vindicate himself. Therefore, the permanent incapacity of a candidate for election under Article 62(1)(f) of the Constitution is not an arbitrary, excessive or unreasonable curtailment of his fundamental right under Article 17(2) of the Constitution.

2. In the result, we are inclined to hold that the incapacity created for failing to meet the qualifications under Article 62(1)(f) of the Constitution imposes a permanent bar which remains in effect so long as the declaratory judgment supporting the conclusion of one of the delinquent kinds of conduct under Article 62(1)(f) of the Constitution remains in effect.

3. In view of the above, all these cases are directed to be fixed before appropriate Benches for decision in accordance with the law laid down in this judgment, keeping in view the respective facts and circumstances of each case.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

Sd/-

JUDGE

Sd/-

JUDGE

Sd/-

JUDGE

SH. AZMAT SAEED, J.--I have had the privilege to go through the judgment of my learned brother Umer Ata Bandial, J., though I concur with the conclusions drawn in the said judgment but I do not find myself in agreement with reasoning employed in its entirety.

1. The adjudication of the lis at hand requires the interpretation of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 so as to determine the period of time to which the lack of qualification in terms thereof shall extend. The aforesaid provision is reproduced herein below for ease of reference:-

“62. (1) A person shall not be qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament) unless:-

.

.

(f) he is sagacious, righteous, non-profligate, honest, and ameen, there being no declaration to the contrary by a court of law; and

.

....

The words and expressions denoting the attributes for being qualified to be a Member of Majlis-e-Shoora (Parliament), as spelt forth in the aforesaid provision, leaves no manner of doubt that the same i.e. Article 62(1)(f) of the Constitution is rooted in and inspired by our Islamic values. It is not necessary to dwell further on this aspect of the matter in the instant proceedings. However, the said provision must be interpreted with great care, caution and respect.

1. The historical background and various amendments, which have been periodically introduced into Articles 62 and 63 of the Constitution have been very ably dealt with by my learned brother in his judgment and need not to be repeated. However, Article 62(1)(f) of the Constitution is required to be interpreted as it stands today. A plain reading of Article 62(1)(f) of the Constitution reveals that in order to be a Member of Majlis-e-Shoora (Parliament), the person must be, inter alia, sagacious, righteous, non-profligate, honest, and ameen. However, if there is a declaration by a Court of Law to the contrary i.e. he is not sagacious or righteous or non-profligate, honest, and amen then such person shall not be qualified to be a Member of Majlis-e-Shoora (Parliament). A declaration by the Court of Law would mean a conclusive finding. Obviously, such finding would be with regard to a lis before the Court, arising out of the violation of a law or non-fulfillment of a legal obligation. It is clear and obvious that lack of qualifications in terms of Article 62(1)(f) of the Constitution is the effect of a declaration by a Court of Law to the contrary, which is the cause. The obvious, legal and logical conclusion would be as long as the cause i.e. the declaration of a Court of Law holds the field its effect i.e. the lack of qualification shall also prevail. This appears to be the only possible interpretation of Article 62(1)(f) of the Constitution.

2. The expression “declared by a Court” has also been used in Article 63(1)(a) of the Constitution, which is reproduced hereunder:

“63(1)(a) he is of unsound mind and has been so declared by a competent court; or”

(underlining is for emphasis)

1. Obviously, in the aforesaid circumstances, the disqualification would continue as long as the declaration regarding the mental incapacity subsists. No sane person could seriously urge to the contrary.

2. During the course of hearing of the instant proceedings, a large number of counsel addressed at the bar, both on behalf of various parties and as amicus curie. Each and every counsel was confronted with the above mentioned obvious interpretation of Article 62(1)(f) of the Constitution that the lack of qualification was the effect of the declaration by a Court of Law, which was the cause and the duration of such effect would be the duration of the cause i.e. declaration. The response on behalf of the learned counsel by and large that upon an accumulative reading of Articles 62 and 63 of the Constitution pertaining to the qualifications and disqualifications of a Member of Majlis-e-Shoora (Parliament) would reveal that disqualifications resulting from acts and omissions of much greater gravity the period of disqualification is limited, hence that lack of qualification in terms of Article 62(1)(f) of the Constitution cannot be perpetual. It was also contended that lack of qualifications in terms of Article 62(1)(f) of the Constitution also falls squarely within the disqualification as is set forth in Article 63(1)(h) of the Constitution and the negative impact thereof is for a limited period of time.

3. Adverting first to Article 63(1)(h) of the Constitution, the reasons for disqualifications provided therein do not appear to be congruent with the lack of qualifications as set forth in Article 62(1(f) of the Constitution. More importantly, if such an interpretation is accepted, it would make Article 62(1)(f) of the Constitution superfluous and redundant. It is an elemental principle of the interpretation of the Constitution that surplusage cannot be attributed to any provision of the Constitution, hence, it is legally impossible to accept this contention.

4. No doubt the period of disqualification in certain sub-Articles of Article 63 of the Constitution has been provided but such a sunset clause is not found in Article 62(1)(f) of the Constitution. The framers of the Constitution chose not to do so. This Court is empowered to interpret the Constitution but not to amend it. It is an equally elemental principle of interpretation of the Constitution that nothing can be added thereto, therefore, we cannot read into Article 62(1)(f) of the Constitution, a period of such lack of qualification, which is not mentioned therein.

5. Some of the learned counsel also voiced that perhaps the effect of Article 62(1)(f) of the Constitution qua the period of lack of qualification may be disproportionate and a little harsh. Such arguments are perhaps more suitable to the floor of Majlis-e-Shoora (Parliament) than at the bar before this Court. We, as stated above, can only interpret the Constitution not amend or change it. This aspect of the matter is rather ironic as several persons before us were or had been the Members of Majlis-e-Shoora (Parliament) at some point of time and may have passed the amendments, which now stand in their way.

6. None of the learned counsel, who appeared before us confronted the elephant in the room i.e. the obvious interpretation of Article 62(1)(f) of the Constitution is that lack of the qualification to a Member is the effect of declaration by a Court of Law, which is the cause and period of lack of qualification would be co-extensive with the period to the cause i.e. declaration. None of the learned counsel refuted the aforesaid obvious interpretation but only sidestepped the issue.

7. However, at the very end, the learned Attorney General for Pakistan addressed the Court and in no uncertain terms stated that once declaration has been made by a Court of Law that a person is not sagacious or righteous or non-profligate or honest and ameen, such a person is not qualified to be a Member of Majlis-e-Shoora (Parliament). This lack of qualification is the effect of the aforesaid declaration, which is the cause and as long as the declaration by the Court holds the field, the person in respect of whom such declaration has been made will continue to be deprived of the qualifications to be a Member of Majlis-e-Shoora (Parliament).

8. The stand taken by the learned Attorney General for Pakistan is not only fair but is also in accordance with the obvious and self-evident intent of Article 62(1)(f) of the Constitution. Incidentally, this Court on more than one occasions has already held that lack of qualification suffered under Article 62(1)(f) of the Constitution is in perpetuity. Reference, in this behalf, may be made to the judgments of this Court reported as Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 SC 482), Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law, Justice and Human Rights Division, Islamabad (PLD 2009 SC 107) and Allah Dino Khan Bhayo v. Election Commission of Pakistan, Islamabad and others (2013 SCMR 1655), and no reason has been advanced to persuade me to take a different view.

Sd/-

JUDGE

MWA/S-14/S Order accordingly.

\\

P L D 2018 Supreme Court 449

Present: Sh. Azmat Saeed, Mushir Alam and Mazhar Alam Khan Miankhel, JJ

SHER ALAM KHAN---Petitioner

Versus

ABDUL MUNIM and others---Respondents

Civil Petition No.3131 of 2017, decided on 23rd February, 2018.

(On appeal from judgment dated 15.8.2017, passed by the Peshawar High Court, Peshawar, in W.P.No.1687-P of 2017).

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

----Ss. 14, 52 & 103AA --- Constitution of Pakistan, Arts. 184(3) & 199---Constitutional jurisdiction of the High Court---Scope---Disqualification of a member of the National Assembly/Provincial Assembly---When a person suffering from a pre-election disqualification or lack of qualification slipped through the cracks and no objection was raised before the Returning Officer, no complaint was made to the Election Commission in terms of S.103AA of the Representation of the People Act, 1976 within the time specified and no election petition was filed before the Election Tribunal, the inherent disqualification of such person did not stand cured nor could it be said that by mere absence of a challenge he acquired the qualification by lapse of time---In such circumstances, where an unqualified or disqualified person managed to escape through the net and trespassed into the Majlis-e-Shoora (Parliament) or the Provincial Assembly, the Constitutional jurisdiction of the High Court under Art.199 and of the Supreme Court under Art.184(3) of the Constitution could always be invoked.

Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 9 others PLD 2017 SC 265; Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others PLD 2010 SC 817; Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others PLD 2018 SC 114 and Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189 ref.

(b) Constitution of Pakistan---

----Arts. 184(3) & 185(3)---Power of Supreme Court to convert one type of proceedings into another---Scope---Supreme Court was not precluded from converting proceedings under Art.185(3) into proceedings under Art.184(3) of the Constitution.

Muhammad Akram v. DCO, Rahim Yar Khan and others 2017 SCMR 56 and Muhammad Jibran Nasir and others v. The State and others Criminal Appeals Nos. 1-K to 3-K of 2018 ref.

(c) Constitution of Pakistan---

----Arts. 62, 63 & 184(3)---Power of Supreme Court to convert one type of proceedings into another---Scope---Disqualification from membership of Majlis-e-Shoora (Parliament)---Where a matter came before the Supreme Court regarding the qualification or disqualification of a Member of the Majlis-e-Shoora or the Provincial Assemblies by way of proceedings other than under Art.184(3) of the Constitution, the Supreme Court not only had the jurisdiction to convert such proceedings into proceedings under Art.184(3) of the Constitution but was bound to do so, as permitting an unqualified or disqualified person to continue defiling and desecrating the Majlis-e-Shoora or the Provincial Assemblies and act as a chosen representative of the people would amount to frustrating the Constitutional provisions.

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

----S. 99(1A)(k)(1)---Constitution of Pakistan, Arts. 63(1)(f) & 63(1)(k)---Disqualification from membership of Provincial Assembly---Candidate contesting election within two years of resigning from Government service---Election Commission held that respondent (returned candidate) at the time of submitting his nomination papers on 29-03-2013 was employed as a Government primary school teacher and was drawing salary as such, and that his date of resignation was 31.03.2013, hence, respondent was disqualified from contesting the elections as he had violated Art.63(1)(k) of the Constitution as well as S.99(1A)(k)(1) of the Representation of the People Act, 1976---Consequently, the Election Commission declared election of respondent as null and void and withdrew his notification as returned candidate---Plea of respondent that by impersonating and using the name, CNIC number and his educational testimonials some other person obtained employment as a primary school teacher without the knowledge of respondent---Validity---When respondent was appointed as a Special Assistant to the Chief Minister and in such capacity entitled to salary from the Provincial Government, a computerized pay slip was generated, which bore the same personal number and CNIC number as that of the primary school teacher---More importantly, it clearly exhibited respondent's length of service as about 20 years as a primary school teacher---Respondent was served with the said pay slips during his tenure as a Special Assistant to the Chief Minister, and he accepted the salary without making any attempt for rectification of the pay slip, thus, conclusively establishing that the respondent was aware that he was employed as a primary school teacher and such employment was obviously with his knowledge, consent and connivance---In such circumstances, a period of two years had not lapsed on 31-03-2013 (date of resignation) when the respondent contested the elections held in May, 2013 and submitted his nomination papers---Respondent was therefore disqualified in terms of Art.63(1)(k) of the Constitution---Having deliberately concealed material facts in his nomination papers by failing to disclose that he was disqualified under S.63(1)(k) of the Constitution and that he was a ghost employee respondent could hardly be considered to be honest in terms of Art.63(1)(f) of the Constitution---Respondent was not qualified to be and disqualified from being a Member of the Provincial Assembly at all material times, hence, was liable to be de-notified as such by the Election Commission---Supreme Court directed that respondent should return all the benefits i.e. salary and other allowances received by him as a Member of the Provincial Assembly, and that criminal proceedings as provided under the law should be initiated against him.

Abdul Ghafoor Lehri v. Returning Officer, PB-29 Naseerabad-II and others 2013 SCMR 1271 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.S.Khattak, Advocate-on-Record for Petitioner.

S. Naeem Bokhari, Senior Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1.

Barrister Qasim Wadood, Addl. Advocate-General, KPK for Respondent No.2.

Rai M. Khan, D.E.O., Kohistan, Aftab Ali Accounts Officer, A.G. Office, Khyber Pakhtunkhwa M. Ibrahim, Asstt. Accounts Officer, A.G. Office, KPK Abdul Maroof, Circle Officer, Anti-Corruption M. Jamil, ACO, Dassu Kohistan (On Court's Notice).

Sajid Ilayas Bhatti, DAG On Court's Notice on behalf of Federation.

Nemo for the Remaining Respondents.

P L D 2018 Supreme Court 468

Present: Ejaz Afzal Khan, Maqbool Baqar and Faisal Arab, JJ

Syed MEHMOOD AKHTAR NAQVI and others---Petitioners

Versus

Malik ISRAR, SENIOR MEMEBR,BOARD OF REVENUE SINDH and others---Respondents

Civil Miscellaneous Applications Nos.376-K and 450-K of 2014 in S.M.C. No.16 of 2011, Criminal Orginal Petitions Nos. 20-K to 23-K of 2014 in Civil Miscellaneous Application No.376-K of 2014, Civil Misc. Application No.275-K of 2015 in Civil Miscellaneous Application No.376 of 2014, Civil Review Petition No.32-K of 2015 in Civil Misc. Application No.376 of 2014, Civil Misc. Application No.261-K of 2016 in Civil Misc. Application No.376-K of 2014, Civil Review Petition No.51 of 2016 in C.M.A. No.376-K of 2014, Civil Review Petition No.57-K of 2016 in Criminal Original Petition No.6-K of 2016, Civil Review Petition No.59-K of 2016 in C.M.A. No.376-K of 2014, Civil Review Petitions Nos 62-K and 63-K of 2016, C.M.A. No.6-K of 2016; Criminal Misc. Application No.1699 of 2016 in Criminal Original Petition No.6-K of 2016; Criminal Misc. Application No.1816 of 2017, Civil Misc. Application No.1497 of 2017 in Civil Misc. Application No.376-K of 2014, Criminal Original Petitions Nos.211, 216, 240 of 2017 and 16 of 2018.

Per Ejaz Afzal Khan, J; Faisal Arab, J agreeing; Maqbool Baqar, J dissenting.

(a) Colonization of Government Lands Act (V of 1912)---

---- Ss. 10(2A), 10(4) & 17--- Malir Development Authority Act, 1993 (XI of 1994), Ss.4, 8(2)(iii), 9 & 14---Adjustment of Government land with land belonging to a private real estate developer---Illegalities---Allegation that the value of the Government land was far higher than the value of the private land it was exchanged for---Validity---[Per Ejaz Afzal Khan, J (Majority view): Enormous tracts of Government land were granted by the Provincial Board of Revenue to the relevant Development Authority for launching incremental housing scheme---Development Authority instead of launching the scheme on the land thus granted, exchanged it with the private real estate developer through its henchmen---Power to declare an area to be a controlled area laid with the Development Authority---Notification issued for declaring subject Government land as controlled area was issued by Senior Member of Board of Revenue who did not figure anywhere in the entire scheme of the Malir Development Authority Act, 1993 in general and S.14 in particular---Corrigendum at a later stage had been issued showing that the notification was indeed issued by the Provincial Secretary Local Government and Housing Town Planning Department, but he too being a non entity in the Malir Development Authority Act, 1993 neither had the power to declare an area to be a controlled area nor issue a corrigendum ---Development Authority without preparing the Master Program and scheme let the private real estate developer initiate and embark upon a private housing scheme---No evidence was presented to establish that managers of the real estate developer requested the Development Authority for assistance in the preparation of scheme and what terms and conditions had been settled in between them as required by S.17(2) of the Malir Development Authority Act, 1993---Question was as to how the Development Authority owned or espoused a housing scheme of the real estate developer, which was prepared by the latter on its own without the assistance of the former in terms of S.17(2) and how could the housing scheme be held to have been prepared, undertaken or executed under the Malir Development Authority Act, 1993 in terms of S.2(p) of the said Act---Section 10(2A) of the Colonization of Government Lands Act, 1912 provided in unequivocal terms that a land granted to any person under S.10 of the said Act was not exchangeable with a private land---Since the Government land granted to the Development Authority under S.10 of the Act was comprised in tenancy and not proprietary it could not be said to have vested in the Development Authority---Since it could not be said to have vested in the Development Authority, it could not dispose of such land by sale, lease, exchange or otherwise---Development Authority opted to exchange the land granted to it with private land purchased by the dummies of the real estate developer before fulfilling the legal formalities and even before taking its possession under S.10(4) of the Colonization of Government Lands Act, 1912 and thereby abdicated its authority in favour of the real estate developer in violation of the provisions contained in S.10(2A) and proviso to S.17 of the said Act---Provincial Government also acted as more of a collaborator than a protector of the Government land---Provincial Board of Revenue, Development Authority and real estate developer did not explain as to what mode was adopted for determining the status and price of the Government land and that of the one it was exchanged for; nor had anything been brought on the record to show that the nature, character, location, potential of the Government land and that of the land it was exchanged for, stood on equal footing---Record available also did not explain as to why the Development Authority exchanged its compact and well-located blocks of land for scattered strips of land situated in far-off areas---Mode and manner adopted by the Executive, the Provincial Board of Revenue and the Development Authority prima facie showed that they conspired to cede valuable public property to an individual (real estate developer) for a handful gain---Supreme Court declared that the grant of the land to the Development Authority, its exchange with the land of the private real estate developer and anything done pursuant thereto being against the provisions of the Colonization of Government Lands Act, 1912 and statement of conditions were void ab initio and as such had no existence---Supreme Court directed that the Government land would go back to the Government and the land of the real estate developer exchanged for the Government land would go back to the developer; that since a great deal of work had been done by the real estate developer and a third-party interest had been created in favour of hundreds of allotees, the land could be granted to the real estate developer afresh by the Provincial Board of Revenue under the provisions of the Colonization of Government Lands Act, 1912; that the implementation Bench of the present judgment could decide the questions as to what would be the terms and conditions of grant, what would be the price of the land, whether it would be the one at which the real estate developer sold the land to the people by and large, how much of government land and how much of the private land has been utilized by the real estate developer,and what the developer was entitled to receive in terms of money on account of development of the land; that the developer shall not sell any plot, built-up unit, apartment etc after the announcement of the present judgement; that any allotment made after the announcement of the present judgement shall be void; that the Additional Registrar of the relevant Supreme Court Registry should open a special account where the outstanding amount against allotment of plots, built-up units and commercial buildings shall henceforth be deposited by the allottees, and that the National Accountability Bureau shall investigate the present case to its logical end and file references before the Accountability Court against all those who were found responsible for causing loss to the state exchequer]---[Per Faisal Arab, J. agreeing: Subject 'Dehs' (land) were notified as controlled areas of the Development Authority for providing low cost housing units---No Board meeting of the Development Authority was ever held in which decision was taken as to what land from its controlled area was to be handed over to the private real estate developer for its housing scheme---Private real estate developer started developing its housing scheme in the some of the said Dehs that were part of Development Authority's notified area and that too in absence of any lawful agreement to launch its scheme with Development Authority---Real estate developer set out its agents on a shopping spree to purchase whatever land they could find in other Dehs falling in Development Authority's controlled area with the sole intention to exchange the same for the land in Dehs on which the developer had already launched its housing scheme---Record showed that the housing scheme was launched at a time when developer's agents had not even completed their task of purchasing lands, which could be exchanged with Development Authority---Such exchange was even otherwise prohibited under S. 17 of the Colonization of Government Lands Act, 1912---Satellite imageries of the township also confirmed that the developer had started development work on the ground by constructing roads and carving out plots soon after inviting applications from the general public much before its agents had completed their task to purchase land in far flung areas which were to be offered in exchange, thus, it was apparent that developer entered upon Development Authority's controlled area for launching of its own housing scheme without any written authorization in such behalf from Development Authority---Whole transaction between the Development Authority and the private real estate developer was a nullity in the eyes of law]---[Per Maqbool Baqar, J. dissenting (Minority view): Restriction on exchange of land in terms of S.10(2A) of the Colonization of Government Lands Act, 1912 did not apply in the facts and circumstances of the present case---Elaborate procedure for consolidation/ adjustment/exchange of private survey lands and state lands, including for calling public objection, and for mutation of the consequential transfer, had been duly complied with in the present case---Subject exchange/ adjustment/consolidation, had in fact been permitted by the Government for the purposes of implementation and execution of the scheme proposed through the Master Programme---Master Programme provided for the subject exchange/adjustment/ consolidation, accordingly, which plan also had been approved by the Government---Development Authority's power to exchange land(s) was further reinforced and fortified through clause (iii) of subsection (2) of S.8 of the Malir Development Authority Act, 1993, which stated that "the authority may dispose of any land or other property vested in it by sale, lease, exchange or otherwise", which provision was fully applicable to the present case, as upon making payment of the market price and execution of lease deeds of the subject lands in favour of Development Authority by Provincial Land Utilization Department, for ninety-nine (99) years, the title of the land vested in the Development Authority, enabling it to exchange the land as mandated by the Government---With reference to the question as to how and why the real estate developer was undertaking the development work within the controlled area, firstly, the lands wherein the developer was developing it housing scheme had not been granted or allotted to it by Provincial Government or Development Authority but the same had been acquired by it by way of exchange through the five private owners who originally also owned lands within the controlled area and gave away the same for the present lands to achieve mutual/reciprocal consolidation; secondly, the Malir Development Authority Act, 1993 did not necessarily require even a Master Programme, or the scheme(s) thereunder to be executed by the Development Authority itself; thirdly, the approved Master Programme itself provided for development by private housing societies and land(s) had been reserved for such purpose accordingly, and fourthly, the development being carried by the real estate developer was inconsonance with the purpose and mandate behind the creation of the Development Authority---Subject exchanges/consolidation of lands was the basis of development of a housing scheme that had not only brought huge revenue and created opportunity for such generation with a much greater proportion in future also but had given to the city, a new housing scheme with massive infrastructure, utilities and amenities and had also resulted in creation of jobs and business opportunities for good number of people---Such development of the project had also largely contributed to the enormous appreciation in the value of the land in the area, which land was mainly owned by Provincial Government and had given boost to the development activities around it, and it was likely to contribute to the economic and social wellbeing of the people who had been living in and around the area since before its development---Subject exchanges had been done lawfully and did not suffer from any blemish and there was not even a prima facie evidence of any malafide in such regard, nor had it been alleged that any officer involved in the exercise, made any personal gain out of it---His Lordship directed that since some of the lands received by Development Authority in exchange from the private owners were distantly located, and the real estate developer had himself offered re-evaluation of the lands involved and to pay any further amount found due and payable, therefore a Committee shall be constituted to asses and evaluate the market price(s) of the lands exchanged between Development Authority and the private owners/real estate developer that prevailed at the time of the exchange(s).

(b) Interpretation of statues---

----Subordinate legislation---Such legislation had to be interpreted in a way which conformed to and stayed within the parameters of the parent statute.

For Petitioners/Applicants and Respondents

Syed Mehmood Akhtar Naqvi (in person) (in C.M.As, 376-K/14, 450/14 and Crl.O.Ps. 20-23-K/14).

Farooq H. Naek, Senior Advocate Supreme Court (in C.M.A. No.275-K/15 and C.M.A. 376-K/14).

Rasheed A. Rizvi, Senior Advocate Supreme Court (For MDA) along with M. Irfan (Law Officer MDA) and Munir-ur-Rehman, Advocate Supreme Court (in C.R.P. 32-K/15, C.M.A.376-K/14 and C.R.P. 57-K/16)

Nemo (in C.M.A. No.261/16).

Aitzaz Ahsan, Senior Advocate Supreme Court (For Bahria Town), Gohar Ali Khan, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record, Asif (Law Officer Bahria Town) (in CRP. 51-K/16 and C.M.A. 376-K/14).

Barrister Zamir Husssin Ghumro, A.G. Sindh, Shehryar Qazi, Addl. A.G. Sindh (in C.R.P. No.59-K/16 and C.M.A. 376-K/14).

Syed Ali Zafar, Advocate Supreme Court (For Bahria Town) (in C.R.P. No.62-K/16 and C.M.A. 376-K/14).

Munir-ur-Rehman, Advocate Supreme Court (in C.R.P. No.63-K/16).

Zakir Hussain Khaskheli, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record (in Crl.M.As. 1699/16, 1816/17 and Crl.O.P.211/17).

Nemo (in C.M.A. 1497/17 and Crl.O.P.216/17).

Dr. M. Shafiq-ur-Rehman (in person) (in Crl.O.P. 240/17).

Mian Ghulam Rasood (in person) (in Crl.O.P. 16/2018).

Nasir Mehmood Mughal Sp. Proscutor along with Qamar Abbasi I.O. (NAB).

P L D 2018 Supreme Court 538

Present: Sh. Azmat Saeed, Mushir Alam, Maqbool Baqar, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

Justice SHAUKAT AZIZ SIDDIQUI and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Law and Justice, Islamabad and others---Respondents

Constitution Petition No.29 and Civil Misc. Application No.7669 of 2017 in Constitution Petition No.29 of 2017 and Constitution Petition No.36 of 2017 and Civil Misc. Application No.9965 of 2017 in Constitution Petition No.36 of 2017.

(a) Interpretation of Constitution---

----Principles and genesis---While interpreting any provision of the Constitution or for that matter any law it was imperative that the said provision be contextualized in its proper perspective keeping in view its genesis and more importantly, the purpose sought to be achieved by its enactment.

(b) Constitution of Pakistan---

----Arts. 4 & 9---Access to justice---Independent judiciary---Tenure of judges---Concept of access to justice could not exist without an independent judiciary---Security of tenure of Judges was a critical pre-condition for such independence.

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 ref.

(c) Constitution of Pakistan---

----Art. 209---Supreme Judicial Council, proceedings of---Nature and scope---Supreme Judicial Council ("Council") was not a Court though it may exhibit some of its trappings including the power to punish for contempt---Council was akin to a domestic forum and it conducted administrative proceedings regarding the question of conduct or capacity of a Judge, who was to be judged by his own peers---Proceedings before the Council were essentially a fact-finding inquiry, and its findings were recommendatory in nature and did not enjoy the status of a right determining judgment handed down by a civil or criminal court which was per se final, enforceable or executable---Council could not itself remove a Judge on the basis of its findings but any conclusion drawn had been bestowed with an element of quietus i.e. finality.

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 ref.

(d) Interpretation of Constitution---

----Conferring of jurisdiction---Implied power, principle of---Scope---Where a law (more so the Constitution) conferred jurisdiction it impliedly also granted the power to do all such acts and employ all such means as were essential and necessary for the exercise of such jurisdiction---Said principle of "implied power" was based on the well known legal maxim "Cui jurisdictio data est ea quoque concessa esse videntur sine quibus Jurisdictio explicari non potuit" i.e "To whomsoever a jurisdiction is given, those things are also supposed to be granted, without which the jurisdiction cannot be exercised."

N S Bindra's Interpretation of Statutes", (Tenth Edition) at page 642;"Statutory Interpretation" by Francis Bennion in Fourth Edition at page 429; Muhammad Anayet Gondal v. The Registrar, Lahore High Court, Lahore and another 2015 SCMR 821; Ahmad Khan v. Commissioner, Rawalpindi Division and another PLD 1965 (W.P.) Pesh. 65; Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki PLD 1971 SC 242; Sind Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32 and State of Punjab v. Salil Sabhlok and others (2013) 5 SCC 1 at page 33 ref.

(e) Constitution of Pakistan---

----Arts. 209---Supreme Judicial Council Procedure of Enquiry, 2005---Supreme Judicial Council---Procedure---Plea that the Constitution did not grant any rule making power to the Supreme Judicial Council ("Council"), therefore, the Supreme Judicial Council Procedure of Enquiry, 2005, formulated by the Council for its procedure was ultra vires the Constitution---Validity---Where the Constitution created a forum (Council) vested with the jurisdiction of accountability of the Judges of the Superior Courts and holders of other high offices as mentioned in the Constitution or the law, such forum (Council) had implied and ancillary power to give effect to the mandate of the Constitution, more particularly, by devising its own procedure---Such implied power stood conferred even upon administrative and domestic tribunals created or conceived by sub-Constitutional legislation and the other statutory instruments---No exception could be taken to the validity or vires of the Supreme Judicial Council Procedure of Enquiry, 2005.

(f) Interpretation of Constitution---

----Constitution could not be interpreted in a way which may lead to redundancy of any of its provision.

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Regarding Pensionary Benefits of the Judges of Superior Courts from the date of their Respective Retirements, Irrespective of their Length of Service as Such Judges, etc. PLD 2013 SC 829 and Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32 ref.

(g) Constitution of Pakistan---

----Art. 209(3)---Supreme Judicial Council ("Council")---Member sitting in Council facing inquiry before the Council itself---Plea that such Member who himself was subject matter of an inquiry before the Council could not sit as a Member thereof---Validity---To act as a Member of the Council was an official function of a Judge and restraining a Judge from being a Member of the Council would amount to his removal, which was not permissible under the law, except as a consequence of a final verdict by the Council in terms of Art. 209 of the Constitution---No matter how broadly or narrowly Art. 209(3) of the Constitution was interpreted, the contention that a Judge who was the subject matter of an inquiry before the Council could not sit as a Member thereof in respect of the proceedings against another person, was misconceived as it was not only contrary to the words and expressions employed in Art. 209(3) of the Constitution itself but also the law as laid down by the Supreme Court in the case of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61).

(h) Constitution of Pakistan---

----Art. 209---Supreme Judicial Council ("Council")---Procedure---Question as to whether the Parliament could frame a law prescribing the procedure to be followed by the Council---Held, that if any such legislation was enacted (by the Parliament), more particularly, if an attempt was made by another institution of the State to infiltrate and influence the process of the Council under Art. 209 of the Constitution, the constitutionality of such law may be questionable, both with regard to legislative competence and for being violative of the principles of Independence of Judiciary.

(i) Supreme Judicial Council Procedure of Enquiry, 2005---

----Para. 13---Constitution of Pakistan, Arts. 19A & 209 --- Supreme Judicial Council---In-camera proceedings of the Council not to be reported---Constitutionality---Vires of Paragraph 13 of the Supreme Judicial Council Procedure of Enquiry, 2005---Petitioners, who were judges of the High Court and against whom proceedings for misconduct were pending before the Supreme Judicial Council ("Council"), contended that such proceedings should be conducted in 'open court' in view of the principle of 'open justice', and that paragraph 13 of the Supreme Judicial Council Procedure of Enquiry, 2005, which prohibited reporting of proceedings of the Council, was ultra vires the Constitution---Validity---Purpose of paragraph 13 of the Supreme Judicial Council Procedure of Enquiry 2005 was to protect, both the Judge whose conduct and capacity was to be inquired into and the institution of the judiciary---Practice of in-camera hearings in matters of judicial accountability was not novel; rather it had found endorsement by legal practitioners from all over the world---Council was not a Court but more akin to a domestic tribunal, whose proceedings primarily were administrative in nature---Concept of openness attributable to a Court did not necessarily apply in its entire amplitude to administrative proceedings before a domestic tribunal---Due to an open trial the name of a Judge facing inquiry could be maligned even though the allegations may eventually be rejected by the Council---Furthermore the Members of the Council were the Chief Justice and senior Judges of the Supreme Court, and the senior most Chief Justices of the High Courts whose persons and reputation too needed to be protected from frivolous and baseless attacks from the Judge facing inquiry---Necessity of in-camera proceedings before the Council (not its findings) must prevail over the right of an unconcerned citizen to such information as Art.19A of the Constitution pertained to right to information not right to entertainment through the malicious satisfaction of idle curiosity---Where there was a reasonable apprehension that the Judge whose capacity or conduct was being inquired into or his lawyers were likely to indulge inscurrilous and scandalous allegations against the Councillor its Members especially with the intention to publicize the same so as to hamper the Council from fulfilling its obligations, the Council could always direct that the proceedings before it be conducted in-camera, even if such Judge facing inquiry had waived his privilege of in-camera proceedings---Supreme Court directed that the process of determining whether any prima facie case had been made for proceedings against a Judge/person under Art.209 of the Constitution and the subsequent proceedings should be held in-camera unless such Judge/person waived such right, and that even if the Judge/person waived his right to in camera proceedings, the Council could still resort to in camera proceedings.

(j) Administration of justice ---

----Open trial/Open justice, principle of --- Exceptions --- Circumstances in which the principle of open trial could be departed from enumerated.

Following are some of the situations/circumstances wherein departure from the principle of open trial was allowed;

(i) For public safety;

(ii) To avoid the disclosure of a secret processor of secret document;

(iii) Where the Court was of the opinion that witnesses were hindered in, or prevented from, giving evidence by the presence of the public;

(iv) The matter fell within the parental jurisdiction of the Court to safeguard the interests of the ward or lunatics;

(v) To protect the dignity of the victim in matters pertaining to rape and other sexual offences;

(vi) To protect privacy, where necessary, in matters pertaining to matrimonial disputes;

(vii) To avoid the making of baseless scandalous and scurrilous allegations so as to defame the Judges and the Courts in order to publicize the same so as to subvert due process.

(viii) Where a party adopted a hostile, defiant and abusive attitude in Court; and

(ix) To preserve the decorum and dignity of the Court.

Khuja v. Times Newspapers Limited and others 2017 SCMR 1605; Zulfikar Ali Bhutto v. The State PLD 1979 SC 53; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632 and Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf PLD 1963 SC 51 ref.

Said exceptions were subject to the test of reasonability and proportionately, but they were not dependent upon the consent of the parties.

Muhammad Makhdoom Ali Khan and Hamid Khan, Senior Advocates Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in Constitution Petition No.29 of 2017).

Hamid Khan, Senior Advocate Supreme Court, Hassan Irfan, Advocate Supreme Court assisted by Ajmal Toor, Advocate and Ms. Khadija Yasmin Bokhari, Advocate for Petitioners (in Const.P.36 of 2017).

Ashtar Ausaf Ali Attorney General for Pakistan assisted by Barrister Asad Rahim Khan, Advocate, Mirza Moiz Baig, Advocate and Mirza Nassar, DAG (On Court Notice on behalf of Federation), Shahid Hamid and Munir A. Malik, Senior Advocates Supreme Court: Amici Curiae.

P L D 2018 Supreme Court 578

Present: Sh. Azmat Saeed, Mushir Alam and Mazhar Alam Khan Miankhel, JJ

Raja SHAUKAT AZIZ BHATTI---Appellants/Petitioners

Versus

Major (R) IFTIKHAR MEHMOOD KIANI and another---Respondents

Civil Appeal No.1083 and Civil Petition No.3148 of 2017 decided on 22nd May, 2018.

(On appeal from order dated 20-6-2017, passed by the Election Commisison of Pakistan, in Case No.7(4)/2016-Law).

(On appeal from judgment dated 28-7-2017, passed by the Islamabad High Court in W.P.No.2604/2017).

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

----S. 103AA---Power of Election Commission to declare a poll void---Scope---Member of Provincial Assembly---Fake educational qualifications---Appellant contested general elections for a seat of Provincial Assembly held in the year 2013, and was declared as the returned candidate---Application was filed by the respondent before the Election Commission praying that the appellant be de-notified as a Member of the Provincial Assembly as he (the appellant) had used false educational testimonials and made a mis-declaration while contesting the elections for the seat of the Provincial Assembly held in the year 2008---Election Commission concluded that, in fact, the appellant had contested the elections in the year 2008 by using false testimonials and vide impugned order, the notification in favour of the appellant as a returned candidate was withdrawn and follow up actions were directed to be taken---Plea of appellant that impugned order has been passed by the Election Commission purportedly under S.103-AA of Representation of the People Act, 1976, more than three years after the issuance of the notification, declaring the appellant as a returned candidate, whereas, in terms of said section powers could only be exercised by the Election Commission within 60 days of the issuance of the notification declaring the result, whereafter, the Commission becomes functus officio---Validity---Pursuant to the judgment of the Supreme Court reported as Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828) the Election Commission and the Higher Education Commission inquired into the validity and authenticity of the educational qualification of the Members of the Parliament and the Provincial Assemblies---In pursuance of directions given in the said judgment the Election Commission conducted the requisite inquiries and purportedly passed the impugned order against the appellant---Contention of the appellant pertaining to the assumption of jurisdiction by the Election Commission after the lapse of 60 days was not strictly applicable in the preset case as the Election Commission was purportedly acting in compliance of the directions of the Supreme Court---No exception could be taken to the impugned order of the Election Commission denotifying the appellant as a Member of the Provincial Assembly.

Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828 ref.

(b) Constitution of Pakistan---

----Art. 62(1)(f)---Member of Provincial Assembly---Lack of educational qualification---Filing a false affidavit with nomination papers---Not 'honest' and 'ameen'---Appellant contested general elections for a seat of Provincial Assembly held in the year 2013, and was declared as the returned candidate---Application was filed by the respondent before the Election Commission praying that the appellant be de-notified as a Member of the Provincial Assembly as he (the appellant) had used false educational testimonials and made a mis-declaration while contesting the elections for the seat of the Provincial Assembly held in the year 2008---Election Commission concluded that, in fact, the appellant had contested the elections in the year 2008 by using false educational testimonials and vide impugned order, the notification in favour of the appellant as a returned candidate was withdrawn and follow up actions were directed to be taken against him---Plea of appellant that in the nomination papers submitted for the elections in 2008 he had specifically stated that a diploma issued to him was 'equivalent to Bachelor's and not 'Bachelor's, therefore, he could not be disqualified for submitting a false affidavit with respect to his educational qualification---Validity---Report submitted by the Higher Education Commission clearly showed that the diploma issued to the appellant was not equivalent to Bachelor's degree issued by any university in the country---Appellant, thus, did not possess the requisite educational qualification of being graduate or equivalent thereof to be elected as a Member of the Provincial Assembly in accordance with the law as was applicable at the time when he filed his nomination papers for the elections held in 2008---Said nomination papers included his affidavit, as required by law, that the appellant was qualified to contest the elections---In the absence of the requisite educational qualification required at that point of time, the affidavit of the appellant with his nomination papers declaring that he was qualified and did not suffer from any disqualification under the law was false---Appellant having filed a false affidavit with his nomination papers for the elections held in 2008 could not be deemed to be honest and ameen, hence, was not qualified in terms of Art.62(1)(f) of the Constitution---Such lack of qualification continued, so as to disentitle the appellant from being a candidate for or being a Member of the Parliament or the Provincial Assembly---No exception could be taken to the impugned order of the Election Commission denotifying the appellant as a Member of the Provincial Assembly.

Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad-II and others 2013 SCMR 1271 ref.

(c) Constitution of Pakistan---

----Art. 62(1)(f)---Member of Provincial Assembly/National Assembly---Filing a false affidavit with nomination papers---Disqualification from membership of Provincial Assembly/National Assembly---Scope---Where a candidate filed a false affidavit with his nomination papers in a general election, such person would also loose the qualification of being honest for the subsequent elections and would not be entitled to contest such (subsequent) elections or be a Member of the Parliament or the Provincial Assembly.

Malik Umar Aslam v. Mrs. Sumaira Malik and others 2014 SCMR 45 and Malik Iqbal Ahmad Langrial v. Jamshed Alam and others PLD 2013 SC 179 ref.

Malik Waheed Anjum, Advocate Supreme Court with Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants/Petitioners (in both cases).

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court with Syed Iqbal Hussain Gillani, Advocate Supreme Court assisted by Sardar Shahbaz Ali Khan Khosa, Advocate, Rai Muddassur Iqbal, Advocate, Naz Gul Shah, Advocate and Ch. Akhtar Ali, Advocate-on-Record for Respondnet No.1 (in both cases).

Mian Muhammad Hanif, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for HEC.

Malik Mujtaba Ahmad, Additional Director General for ECP.

Sajid Ilyas Bhatti, DAG assisted by Barrister Minaal Tariq for Federation (On Court Notice).

Mirza Nassar Ahmad, D.A.G.

P L D 2018 Supreme Court 595

Present: Asif Saeed Khan Khosa, ACJ, Mushir Alam, Maqbool Baqar, Manzoor Ahmad Malik, Sardar Tariq Masood, Mazhar Alam Khan Miankhel and Sajjad Ali Shah, JJ

Mst. SUGHRAN BIBI---Petitioner

Versus

The STATE---Respondent

Human Rights Case No.10842-P of 2018, decided on 23rd May, 2018.

(Regarding registration of second FIR in respect of a police encounter wherein the petitioner's son namely Mohsin Ali was killed at the hands of the local police).

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

----Ss. 154, 156, 157, 159, 160 & 161---Police Rules, 1934, R. 24.5---First Information Report (FIR)---Registration of multiple FIRs for the same incident---Question as to whether a separate FIR could be registered for every new version of the same incident when commission of the relevant cognizable offence already stood reported to the police and an FIR already stood registered in such regard---Held, after entering the first information relating to commission of a cognizable offence in the prescribed book, i.e. after registration of an FIR the matter became a "case",and thereafter every step taken in the ensuing investigation was a step taken in that case---Perusal of R. 24.5 of the Police Rules, 1934 showed that commission of a cognizable offence, when reported to the police through the first information and registered in the FIR register, was treated as a "case" bearing an annual serial number and such "case" carried the same number for ever irrespective of any number of different versions received by the police regarding commission of the said offence or any number of different circumstances or sets of culprits brought to the notice of the investigating officer during the investigation of the "case"---During the investigation conducted after registration of an FIR the investigating officer may record any number of versions of the same incident brought to his notice by different persons which versions were to be recorded by him under S. 161, Cr.P.C. in the same case---No separate FIR was to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case---All subsequent or divergent versions of the same occurrence or the persons involved therein were to be received, recorded and investigated by the investigating officer in the same "case" which was based upon the one and only FIR registered in respect of the relevant "offence" in the prescribed book kept at the local police station---Supreme Court held that the judgment of Jamshed Ahmad v. Muhammad Akram Khan and another (1975 SCMR 149) and Kaura v. The State and others (1983 SCMR 436) were closer to the relevant law and the judgments Wajid Ali Khan Durani and others v. Government of Sindh and others (2001 SCMR 1556), Mst. Anwar Begum v. Station House Officer, Police Station Kalri West, Karachi and 12 others (PLD 2005 SC 297) and Ali Muhammad and others v. Syed Bibi and others (PLD 2016 SC 484) had drifted away from the relevant scheme of law because of Court not being assisted properly.

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

----Ss. 154, 156, 160 & 173---Police Rules, 1934, R. 25.2(3)---First Information Report (FIR)---Investigation---Investigating officer, duty of---Scope---Investigation of a case was not to be restricted to the version of the incident narrated in the FIR or the allegations levelled therein---Investigation should not be driven by any duty to establish that the story of the incident contained in the FIR was correct---Investigating officer was not to be guided or controlled by the contents of the FIR---If the information received by the local police about commission of a cognizable offence also contained a version as to how the relevant offence was committed, by whom it was committed and in which background it was committed then that version of the incident was only the version of the informant and nothing more and such version was not to be unreservedly accepted by the investigating officer as the truth or the whole truth---On the contrary, after registration of the FIR the investigating officer was to embark upon an exercise to discover the actuality of the matter irrespective of the version of the incident narrated by the first informant through the FIR and in the process he was expected to collect information from any number of persons who appeared to him to be acquainted with the circumstances of the case and he may entertain any fresh information becoming available from any other source regarding how the offence was committed and by whom it was committed and he may arrive at his own conclusions in such regard---Final report to be submitted under S.173, Cr.P.C. was to be based upon his final opinion and such opinion was not to be guided by what the first informant had stated or alleged in the FIR.

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

----Ss. 54 & 55---Police Rules, 1934, Rr. 25.2(2), 25.2(3), 26.1, 26.2 & 26.9---Arrest of accused---Principles---Ordinarily no person was to be arrested straightaway only because he had been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer felt satisfied that sufficient justification existed for his arrest---For such justification guidance was found in the relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934---Suspect was not to be arrested straightaway or as a matter of course and, unless the situation on the ground so warranted, the arrest was to be deferred till such time that sufficient material or evidence became available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the allegations levelled against such suspect or regarding his involvement in the crime in issue.

In attendance:

Petitioner in person.

Ashtar Ausaf Ali, Attorney-General for Pakistan assisted by Barrister Asad Rahim, Muhammad Usman Rauf, Mirza Moiz Baig and Nousherwan Niazi, Advocates.

Qasim Ali Chauhan, Additional Advocate-General, Punjab;

Nemo. On behalf of the Advocate-General, Sindh.

Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa.

Ayaz Swati, Additional Advocate-General, Balochistan.

Tariq Mehmood Jehangiri, Advocate-General, Islamabad.

Saeedullah Khan, Advocate Supreme Court, Babar Nadeem, Advocate, Abu Bakar Khuda Bakhsh, Additional Inspector-General of Police Punjab.

Barrister Salman Safdar, Advocate Supreme Court (Amicus Curiae).

P L D 2018 Supreme Court 643

Present: Sh. Azmat Saeed, Qazi Faez Isa and Sajjad Ali Shah, JJ

Malik SHAKEEL AWAN---Appellant

Versus

Sheikh RASHEED AHMED and 21 others---Respondents

Civil Appeal No.467 of 2015, decided on 5th April, 2018.

(On appeal from judgment dated 18-2-2015, passed by the Election Tribunal, Rawalpindi in E.P. No.242/2013/RWP/11/2013).

Per Sh. Azmat Saeed and Sajjad Ali Shah, JJ; disagreeing with Qazi Faez Isa, J [Majority view]

(a) Constitution of Pakistan---

---Art. 184(3)---Constitutional jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope---Appeal, right of---Right of appeal could not be read into the Constitution against a judgment/order passed by the Supreme Court under Art. 184(3) of the Constitution---Supreme Court was not to decline exercise of its jurisdiction under Art.184(3) merely because no appeal was provided for---Such interpretation would render the said Article redundant and a surplusage which was not permitted while interpreting the Constitution. [Majority view]

(b) Constitution of Pakistan ---

----Art. 62(1)(f)---Representation of the People Act (LXXXV of 1976), S.12(2)---Qualifications for membership of Majlis-e-Shoora (Parliament)---Concealment of information or misstatement in nomination papers---Question of strict liability did not arise with regard to misstatements in the nomination papers---Where a misstatement or an inaccuracy or concealment (in nomination papers) was established, the candidate/member would always have the opportunity to offer an explanation---Such explanation may or may not be found acceptable by the court---Only if such explanation was found tenable no penal consequences would follow.[Majority view].

Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others 2016 SCMR 733; Muhammad Siddique Baloch v. Jehangir Khan Tareen and others PLD 2016 SC 97 and Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189 ref.

(c) Constitution of Pakistan---

----Art. 62(1)(f)---Representation of the People Act (LXXXV of 1976), S.12(2)(f)---Qualifications for membership of Majlis-e-Shoora (Parliament)---Allegation of concealment of immoveable property in nomination papers---Inadvertent discrepancy/error in nomination papers---Appellant alleged that the returned candidate/respondent had deliberately concealed certain agricultural land in his nomination papers; that the respondent had declared his land holding to be 983 Kanals 17 Marlas while it has been established on record that the respondent owned 1049 Kanals and 13 Marlas---Validity---[Per Shiekh Azmat Saeed, J (Majority view)]:Date of purchase of each parcel of land and the quantum thereof had been specified by the respondent in his nomination papers---Details provided by respondent in his nomination papers showed that in total he owned 1081 Kanals and 17 Marlas of land, whereas in the grand total on the nomination papers it had been incorrectly mentioned as 983 Kanals and 17 Marlas---Such error appeared to have crept into the printed nomination papers---Such miscalculation between the area of agricultural land owned by respondent scribed in the printed form and as mentioned item wise in the details on the nomination papers was self-evident---According to details in the nomination papers the respondent had perhaps declared a little more land than as alleged by the appellant, thus, he could hardly be accused of concealing any asset especially as a portion of the subject land appeared to be undivided share in various khasra numbers as was evident from the documents produced by the revenue staff who entered the witness box on behalf of the appellant---Explanation for the discrepancy in the total land holding offered by the respondent appeared to be reasonable and logical---Consequently, the conclusion drawn by the Election Tribunal that there was no concealment of agricultural land in the nomination papers filed by respondent was based upon a correct and judicious appreciation of the evidence available on the record and in accordance with the law---Appeal was dismissed in circumstances---[Per Qazi Faez Isa, J (Minority view)]: Un-rebutted evidence on record showed that respondent owned more land than shown by him in his nomination form---Plea of miscalculation raised by the responded was also not sustainable, however, it was entirely possible that such non-disclosure was an oversight by the respondent particularly when there appeared to be no benefit or advantage accruing to him on account of such non-disclosure---His Lordship observed that it would not be fair to one or other of the contesting parties if the present case was decided without settling the question whether in case of non-disclosure or misdeclaration in nomination papers rule of strict liability would apply, or, whether disqualification would only arise if such non-disclosure or misdeclaration circumvented a legal disability or disqualification---His Lordship urged formation of a Full Court Bench of the Supreme Court to decide certain questions regarding disqualification of candidates and Constitutional jurisdiction of the Supreme Court to hear election disputes.

(d) Constitution of Pakistan---

----Art. 62(1)(f)---Representation of the People Act (LXXXV of 1976), S.12(2)---Qualifications for membership of Majlis-e-Shoora (Parliament)---Allegation of not disclosing correct market value of immoveable property in nomination papers---Appellant alleged that returned candidate/respondent had not disclosed the correct market value of an immoveable property in his nomination papers---Validity---[Per Shiekh Azmat Saeed, J (Majority view)]:Amount paid by the respondent for the said property was not disputed by anyone and it also found mention in the nomination papers of the respondent---Statement of an employee of the housing society wherein the property was situated was brought on record, wherein he alleged that other allottees in the society paid a higher price for similar properties, but no document in support of such contention was produced by him---Payments by other purchasers would be a matter of record but the same was concealed from the Election Tribunal by the employee in question---Furthermore, no document public or private evidencing any contemporaneous transaction of property in the vicinity disclosing the consideration had been produced in evidence by the appellant---Nothing from the record of the sub-registrar of documents was available---No person who entered into any such transaction of sale of property in the same area entered the witness box to prove or disprove the value of such property---In such circumstances, it could not be held that respondent made any misstatement regarding the value of the said property, the ownership of which had been mentioned in the nomination papers along with the consideration paid for it---Finding of the Election Tribunal that there was no misstatement, with regard to the property in the nomination papers of the respondent was borne out from the record---Appeal was dismissed in circumstances---[Per Qazi Faez Isa, J (Minority view)]: Testimony of General Manager (Operations) of the housing society showed that at the time of booking the price of the subject property was forty eight million rupees, however, admittedly the housing society received a payment of only ten million rupees from the respondent---Plea of respondent that he adjusted the balance price by giving certain land belonging to him to the housing society was not supported from the record as there was no sale deed, sale agreement, exchange deed or any other kind of agreement brought forward---Sufficient evidence was available on record to establish that respondent misdeclared the value of the subject property in his Statement of Assets---His Lordship observed that it would not be fair to one or other of the contesting parties if the present case was decided without settling the question whether in case of non-disclosure or misdeclaration in nomination papers rule of strict liability would apply, or, whether disqualification would only arise if such non-disclosure or misdeclaration circumvented a legal disability or disqualification---His Lordship urged formation of a Full Court Bench of the Supreme Court to decide certain questions regarding disqualification of candidates and Constitutional jurisdiction of the Supreme Court to hear election disputes.

Per Qazi Faez Isa, J; Sh. Azmat Saeed and Sajjad Ali Shah, JJ disagreeing. [Minority view]

(e) Appeal---

----Right of appeal is a substantive right and not one of mere procedure.

Manzoor Ali v. United Bank Limited 2005 SCMR 1785; Muhammad Azhar Siddiqui v. Federatin of Pakistan PLD 2012 SC 774 and Pakistan Defence Officer's Housing Authority v. Jawaid Ahmed 2013 SCMR 1707 ref.

(f) Constitution of Pakistan---

----Arts. 62(1)(f), 184(3) & 225---Representation of the People Act (LXXXV of 1976), S. 12(2) & Preamble---Qualifications for membership of Majlis-e-Shoora (Parliament)---Non-disclosure or misdeclaration in nomination papers---Constitutional jurisdiction of the Supreme Court to hear election disputes under Art.184(3) of the Constitution---Questions of law as raised by His Lordship regarding disqualification of candidates for non-disclosure or misdeclaration in nomination papers and the Constitutional jurisdiction of the Supreme Court to hear election disputes which preferably were to be heard by Full Court of the Supreme Court listed. [Minority view]

Following are the questions of law raised by His Lordship regarding disqualification of candidates for non-disclosure or misdeclaration in nomination papers and the Constitutional jurisdiction of the Supreme Court to hear election disputes:--

(i) Does every non-disclosure or misdeclaration in the nomination form result in the disqualification of a candidate or only those whereby one had circumvented some inherent legal disability to participate in an election?

(ii) If a petition did not disclose the particular facts, on the basis of which disqualification was sought, could these be considered when subsequently disclosed in the affidavit-in-evidence of the petitioner or which may otherwise be discovered during the hearing before the tribunal/court?

(iii) Does Article 225 of the Constitution exclude the application of Article 184(3) of the Constitution to election disputes?

(iv) If the answer to the foregoing question was in the negative, then was an election dispute regarding an individual's qualification or disqualification a matter of "public importance" which required the "enforcement" of a Fundamental Right and if so could it be determined under Article 184(3) of the Constitution?

(v) If the answer to the foregoing question was in the affirmative, were the procedural and evidentiary rules governing election petitions and appeals under the Representation of the People Act, 1976 the same as those governing petitions under Article 184(3) of the Constitution?

` (vi) Does the "court of law" mentioned in Article 62(1)(f) of the Constitution include the Supreme Court when exercising jurisdiction under Article 184 (3)?

(vii) If a candidate was disqualified on account of non-disclosure or misdeclaration did such disqualification subsist only till the next elections or was it permanent? [Minority view]

"ORDER OF THE BENCH

This Civil Appeal i.e. C.A. No.467/2015 (Malik Shakeel Awan v. Sheikh Rashid Ahmed etc.) is hereby dismissed by a majority of two to one, with Qazi Faez Isa, J's holding that first the matter be referred to a Bench comprising of the Full Court to decide the questions of law identified and enumerated by him.

(Sd)

Sh. Azmat Saeed, Judge

(Sd)

Qazi Faez Isa, Judge

(Sd)

Sajjad Ali Shah, Judge"

Muhammad Ilyas Sheikh, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellant.

Abdur Rashid Awan, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondent No.1.

P L D 2018 Supreme Court 678

Present: Mian Saqib Nisar, C.J., Sh. Azmat Saeed, Mushir Alam, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

SPEAKER, NATIONAL ASSEMBLY OF PAKISTAN, ISLAMABAD and others---Appellants

Versus

HABIB AKRAM and others---Respondents

Civil Appeals Nos.56-L and 57-L of 2018, Civil Misc. Application No.1503-L of 2018 in Civil Misc. Application No.64-L of 2013 in Constitution Petition No.87 of 2011, Civil Misc. Application No.4823 of 2018 in C.P. Nil of 2018, Civil Misc. Application No.4825 of 2018 in C.P. Nil of 2018, Civil Misc. Application No.4827 of 2018 in C.P. Nil of 2018 and Constitution Petitions Nos. 30 and 31 of 2018.

Elections Act (XXXIII of 2017)---

----S. 60(2)---Representation of the People Act (LXXXV of 1976) S.12(2) [since repealed]---General Elections, 2018---Nomination forms/papers for candidates of the National Assembly and Provincial Assemblies issued in terms of Elections Act, 2017 and the omissions therein when compared with the such nomination forms issued in terms of Representation of the People Act, 1976 [since repealed]---Lack of information about candidates---Affidavit to be submitted along with nomination papers disclosing requisite information omitted by the Elections Act, 2017---Information omitted from the Nomination Papers and Form A & B, as issued in terms of Elections Act, 2017, when examined in juxtaposition with the requirement of the nomination forms previously in vogue under the Representation of the People Act, 1976 (since repealed), it appeared that the information, no longer required to be disclosed, prima facie, would facilitate the determination of the qualification or disqualification of a candidate and would lead to greater transparency regarding the credentials of a candidate facilitating the electorate in making a more informative choice---Election Commission on directions of the Supreme Court prepared draft of an affidavit that was to be submitted by a candidate disclosing the requisiteinformation omitted in the nomination forms by the Election Act, 2017---After perusal of the said affidavit Supreme Court directed that all candidates of the National and Provincial Assemblies shall file the said affidavit along with their nomination papers; that candidates who had already filed their nomination papers, shall file the said affidavit with the Returning Officers by or before 11th June, 2018; that failure to file such affidavit before the Returning Officer would render the nomination papers incomplete and liable to rejection; that if the affidavit or any part thereof was found false then it shall have consequences, as contemplated by the Constitution and the law, and that since the affidavit was required to be filed in pursuance of the orders of the Supreme Court, therefore, if any false statement was made therein, it would also entail such penalty as was provided for filing a false affidavit before the Supreme Court.

Shahid Hamid, Senior Advocate Supreme Court for Appellant(s) (in C.A. No.56-L of 2018).

Rana M. Ibrahim Satti, Senior Advocate Supreme Court for Appellant(s) ((in C.A. No.57-L of 2018).

Mirza Mahmood Ahmad, Advocate Supreme Court (in CMA No.1503-L of 2018).

Sajid Ilyas Bhatti, Additional Attorney General assisted by Barrister Minaal Tariq for Appellant(s) (in CMAs Nos.4823 and 4825 of 2018).

Mian Abdul Rauf, Advocate Supreme Court for Petitioner(s) (in Const.P.30 of 2018).

Barrister Saad Rasool for Petitioner(s) (in Const.P.31 of 2018).

M. Ayub Malik, President, National Party.

On Court Notice

Ashtar Ausaf Ali, Attorney General for Pakistan assisted by Barrister Asad Rahim.

Babar Yaqoob Fateh, Secretary, Election Commission of Pakistan.

M. Arshad, Director General (Law), Election Commisison of Pakistan.

P L D 2018 Supreme Court 686

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

SUO MOTU ACTION REGARDING MAINTAINING OF FOREIGN CURRENCY ACCOUNTS BY PAKISTANI CITIZENS WITHOUT DISCLOSING THE SAME/PAYING TAXES and another: In the matter of:

Suo Motu Case No.2 of 2018 and Constitution Petition No.72 of 2011, decided on 12th June, 2018.

Foreign Assets (Declaration and Repatriation) Act (XXX of 2018) ---

----Preamble---Suo motu action regarding maintaining of foreign currency accounts and accumulation of undeclared foreign assets by citizens of Pakistan without disclosing the same---Amnesty Scheme for voluntary declaration of undeclared foreign assets---Immunity from taxation and penal action in respect of undeclared foreign assets subject to payment of tax---Present suo motu proceedings had been initiated because of certain grave public interest concerns; firstly, due to the declining foreign exchange reserves of the country, the depreciating exchange rate of the currency and the corresponding inflationary trend of essential imported commodities; and secondly, due to governmental indifference towards the unhindered outflows of valuable foreign exchange from the economic wealth and resources of the country---Federal Government had brought legislation on the subject to curtail misuse of privileges granted by the law and executive regulation---No challenge to the provisions of the different legislative and regulatory initiatives undertaken in the matter by the government was presently before the Court---Court was not prescient about subtle technicalities of foreign exchange and balance of payment stabilization nor about fiscal or other economic matters so as to anticipate deficiencies in the Federal Government's actions---In the absence of a concrete challenge, the Court was not inclined to unilaterally sit in academic judgment on the legality or propriety of the provisions of the scheme of voluntary disclosure of foreign assets under the Foreign Assets (Declaration and Repatriation) Act, 2018---Supreme Court observed that any measures taken by the Federal Government in the public interest to protect the foreign exchange reserves of the country and to bring undeclared foreign assets within the tax net were welcomed by the Court; that nevertheless a Committee appointed on the directions of the Supreme Court had highlighted other deficiencies in the current tax laws and in the regulatory framework for holding and transfer of foreign exchange that promoted the accumulation of undeclared foreign assets and corresponding income, and that such deficiencies required careful attention and deliberation by the concerned authorities---Supreme Court directed the Federal Government, Federal Board of Revenue and the State Bank of Pakistan to state their respective positions about the matters pointed out by the Committee and indicate if any reform was proposed to correct or remedy the same.

In attendance:

Syed Nayyar Abbas Rizvi, Addl.A.G.P.

Muhammad Ali Durrani, Petitioner (in Const. P.72 of 2011).

Tariq Mehmood Bajwa, Governor, State Bank of Pakistan.

Tariq Mehmood Pasha, Chairman FBR and Arif Ahmed Khan, Federal Secretary Finance.

Bashir Ahmed Memon, D.G. FIA.

Dr. M. Rizwan, Director Immigration FIA.

Dr. Usman Anwar, Director FIA.

Ali Sher Jakhrani, Director Law FIA.

Imran Ahmed Khan, Senior Joint Secretary, M/o Finance.

Fazal Mehmood, Director, State Bank of Pakistan.

Sanaullah Gondal, Deputy Legal Advisor, Zahid Khokhar, Member Customs, FBR, Dr. Iftikhar Ahmed, Director Law, FBR, Memood Mandviwala, Advocate Supreme Court and Syed Shabbar Zaidi, Senior Partner, A.F. Ferguson & Co., Ch. Aitzaz Ahsan, Senior Advocate Supreme Court (on Court's Call).

Hamid Khan, Senior Advocate Supreme Court (on Court's Call).

P L D 2018 Supreme Court 692

Present: Mushir Alam, Faisal Arab and Munib Akhtar, JJ

MUHAMMAD SADIQ and others---Appellants

Versus

MUHAMMAD MANSHA and others---Respondents

Civil Appeal No.401 of 2011, decided on 24th May, 2018.

(On appeal from judgment dated 2-11-2010 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in C.R. No.24 of 1993).

Limitation Act (IX of 1908)---

----First Sched., Art. 113---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell, filing of---Limitation---Subject property mortgaged with Bank---Question as to whether limitation period for filing suit for specific performance of agreement to sell started from date prescribed on such agreement or from the date when property was redeemed from the Bank---Agreement was entered into on 02-05-1983 and did have a specific date for its performance namely 28-5-1983---In the ordinary course it was the first limb of Art.113 of the First Schedule to the Limitation Act, 1908 that would have applied and the suit would have become barred by limitation after 3 years i.e. 28-5-1986---High Court, however, took the view that since the property was mortgaged limitation did not begin to run till such time as it was redeemed which came about around 28-11-1988---Legality---When a property was mortgaged by one person to another the interest that was left in the hands of the mortgager was called the equity of redemption---Equity of redemption was itself immovable property which could be dealt with as such by the mortgager, whether by way of sale, subsequent mortgage, gift or transfer but subject always to the rights and interests of the mortgagee---Existence of a mortgage on immoveable property did not in or itself constitute a bar to subsequent dealing by the mortgager as regards the equity of redemption---Mortgager could enter into an agreement to sell subsequent to the creation of the mortgage---Existence of the mortgage had no bearing on the question of limitation for the specific enforcement of the agreement to sell---High Court erred materially in concluding that limitation did not begin to run till the property was redeemed---Limitation began to run from the date of performance as given in the agreement, as stipulated by the first limb of Art.113 of the Limitation Act, 1908---In the present case, therefore the suit for specific performance ought to have been brought by or before 28-05-1986---Since it was admittedly instituted on a much later date, it was hopelessly time barred and liable to be dismissed as such---Appeal was allowed accordingly.

Kanti Ram and others v. Kutubuddin Mohamed and others (1895) 22 Cal. 33 ref.

Syed Wusat-ul-Hassan Taqvi, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Appellants.

Ishtiaq Ahmad Raja, Advocate Supreme Court for Respondents Nos. 5, 8-11, 13 and 14.

Nemo for Respondents Nos. 6, 7 (vi)(vii), 12, 15-21.

P L D 2018 Supreme Court 698

Present: Sh. Azmat Saeed and Syed Mansoor Ali Shah, JJ

BILAL HUSSAIN SHAH and another---Appellants

Versus

DILAWAR SHAH---Respondent

Civil Appeal No.404 of 2014, decided on 2nd May, 2018.

(On appeal from the judgment of Peshawar High Court, Abbottabad Bench dated 22-4-2013, passed in C.R. No.235 of 2008).

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

----Art. 79, proviso---Gift deed---Proof of execution of document required by law to be attested---Proviso to the Art.79 of Qanun-e-Shahadat, 1984---Scope---Said proviso relaxed the requirement of calling the two attesting witnesses to prove the execution of the document, if the document was duly registered in accordance with the provisions of Registration Act, 1908 and its execution was not specifically denied---Party was relieved of the duty of calling the two witnesses but not from the duty of proving the execution of the registered document---Effect of the proviso to Art.79 was that the due execution and attestation of the gift deed would have to be proved, although it may be proved by calling a person other than an attesting witness---Such relaxation was pillared on an important assumption that the execution of the document was not denied---Denail of the execution of the document was not limited to the executant alone but was open to any party to the suit that was affected by the said document.

The Law of Evidence, Jethmalani and Chopra, 1st Edn. 2013, p.952; Mst. Saleema Bibi v. Mst. Ramzan Bibi 2007 YLR 910; Ghulam Bheek and others v. Mst.Salamat Bibi and others 2001 CLC 1078; AIR 1949 Nag. 149; AIR 1932 All 320; AIR 1959 Mysore 148 and AIR 1989 Kerala 163 ref.

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

----Art. 79, proviso---Registered gift deed---Proof---Examination of attesting witness---Suit filed challenging legality of gift deed on basis of fraud and deceit---In case of death of the executant of the gift deed prior to the suit and in the face of the denial of its execution by the plaintiff, the requirement of two attesting witnesses could not be dispensed with.

Muhammad Iqbal Khan v. Mst. Farhat Nisa PLD 2017 Lah. 727; Abdul Hameed v. Shamasuddin PLD 2008 SC 140 and Abdul Ghafoor v. Mukhtar Ahmad Khan 2006 SCMR 1144 ref.

(c) Gift---

----Essential requirement---Proof---Three ingredients of a valid gift included declaration/offer by the donor; acceptance of gift by the donee; and, delivery of possession under the gift---Declaration of gift and delivery of possession had to be established through independent evidence.

Mst. Rasheeda Bibi v. Mukhtar Ahmad 2008 SCMR 1384 and Mst. Nagina Begum v. Mst. Tahzim Akhtar 2009 SCMR 623 ref.

Syed Hamid Ali Shah, Advocate Supreme Court for Appellants.

Muhammad Saeed Khan for Respondent.

P L D 2018 Supreme Court 703

Present: Asif Saeed Khan Khosa, Ijaz ul Ahsan and Syed Mansoor Ali Shah, JJ

SUO MOTU CASE Re: the issue as to whether compounding of an offence under section 345, Cr.P.C. amounts to acquittal of the accused person or not.

Suo Motu Case No. 3 of 2017, decided on 27th June, 2018.

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

----Ss. 345(6) & 338-E(1), first proviso---Penal Code (XLV of 1860), Chapt. XVI, [Ss.299 to 338-H]---Waiver or compounding of offence---Compromise with legal heirs---Effect---As a result of a successful and complete compounding of a compoundable offence in a case of Ta'zir under S.345, Cr.P.C., with permission or leave of the relevant court where required, an accused person or convict was to be acquitted by the relevant court which acquittal shall erase, efface, obliterate and wash away his alleged or already adjudged guilt in the matter apart from leading to setting aside of his sentence or punishment, if any---Obliteration and removal of the offence and its erasing and effacing from the record as a result of compounding had the effect of absolving the accused person or convict of the act, acquittal from the charge and clearance from the actual guilt---Acquittal or the effects of it in criminal law were necessarily relevant to guilt of a person and criminal jurisprudence and law did not envisage or contemplate removal of punishment while impliedly maintaining a person's guilt---All the offences affecting human body including murder and causing of hurt falling in Chap. XVI of the Pakistan Penal Code, 1860 were capable of being waived or compounded.

Chairman Agricultural Development Bank of Pakistan and another v. Mumtaz Khan PLD 2010 SC 695; English Synonymes Explained In Alphabetical Order; with Copious Illustrations and Examples by George Crabb, A. M. (published by William Clowes and Sons, London, 6th Edition, 1837); English Synonymes Explained In Alphabetical Order; with Copious Illustrations by George Crabb, A. M. (published by LEIPSIC, a New Edition, 1839); Crabb's English Synonymes by George Crabb, A. M. (published by Grosse and Dunlap Publishers, New York, 1917) and Webster's New International Dictionary of the English Language by William Allan Neilson, Thomas A. Knott, Paul W. Carhart (published by G. & C. Merriam Company Publishers, 2nd Edition, 1957) ref.

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

----S. 345---Compounding of offence---Principles.

Following are the principles relating to compounding of offence;

(i) A compounding could take place during the trial or during the pendency of an appeal or a revision petition and it could take place even before the case had reached the trial court for trial.

(ii) A complete compounding fulfilling the requirements of sub-section (1) or (2) of section 345,Cr.P.C., as the case may be, could not be withdrawn or resiled from by any party at any later stage because it had already created the effect of an acquittal of the accused person.

(iii) Composition of a compoundable offence not requiring permission of the court deprived the court of its jurisdiction to try the case or ousted the jurisdiction of the court to try the offence and the court had no other option but to acquit the accused person.

(iv) Composition of a compoundable offence not requiring permission of the court and grant of permission or leave to compound by the relevant court in cases where such permission or leave was required resulted in immediate acquittal of the accused person.

(v) In a case where a court had already convicted a person of a compoundable offence and had held him guilty, no compounding of the offence by the victim or his heirs with the convict could take effect or could be said to be successful or complete unless the relevant appellate or revisional court granted leave to compound or allowed the proposed composition---Matter of granting or refusing leave to compound and allowing or disallowing the same laid in the discretion of the relevant court and before taking a decision in that regard the court concerned had to apply its judicial mind to the facts and circumstances of the case in their totality and also to consider desirability or otherwise of granting permission in that respect---Court had to keep in mind the spirit of the law and the requisite permission or leave to compound may ordinarily not be withheld or refused unless the facts and circumstances of the case persuade the relevant court otherwise---Composition of a compoundable offence was a concession extended by the legislature and also by the religion of Islam to the victims and their heirs and the same may not lightly be taken away or whittled down by the courts.

Kumarasami Chetty v. Kuppusami Chetty and others AIR 1919 Madras 879(2); Ram Richpal v. Mata Din and another AIR 1925 Lahore 159; Jhangtoo Barai and another v. Emperor (AIR 1930 Allahabad 409; Dharichhan Singh and others v. Emperor AIR 1939 Patna 141; Mt.Rambai wife of Bahadursingh v. Mt. Chandra Kumari Devi AIR 1940 Nagpur 181; Godfrey Meeus v. Simon Dular AIR (37) 1950 Nagpur 91; Prithvi Bhagat and another v. Birju Sada AIR 1962 Patna 316 and Naseem Akhtar and another v. The State PLD 2010 SC 938 ref.

In attendance

Syed Nayyab Hussain Gardezi, Assistant Attorney-General for Pakistan.

Tariq Mehmood Jahangiri, Advocate-General, Islamabad.

Qasim Ali Chauhan, Additional Advocate-Gneral, Punjab.

Shehryar Qazi, Additional Advocate-General, Sindh.

Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa.

Ayaz Khan Swati, Additional Advocate-General, Balochistan.

P L D 2018 Supreme Court 729

Present: Ejaz Afzal Khan and Faisal Arab, JJ

ABDUL KHALIQ---Appellant

Versus

HAQ NAWAZ---Respondent

Civil Appeal No.1839 of 2016, decided on 26th October, 2016.

(On appeal against the judgment dated 30-3-2016 passed by the Lahore High Court, Multan Bench, Multan in C.R. No.933 of 2015).

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

----S. 25---Court fee, deposit of---Minor deficiency in payment of court fee---Dismissal of suit---Scope---Trial Court while announcing the judgment and decree did not direct the appellant to make up the deficiency in Court fee---Appellant who had affixed the Court fee of Rs.15000/- with the plaint would not be expected to delay or demur in making up the deficiency of Rs.130/- ---Fact that the appellant having been informed by the Reader of the Trial Court made up the deficiency on the same date, further proved that he was not directed to make up the deficiency at the time of announcement of the judgment---Assuming apellant was directed to make up the deficiency at the time of announcing the judgment, his failure to make up the deficiency of such a paltry sum could not deprive him of his substantive right because the Court Fees Act, 1870 being a fiscal statute had been enacted to collect revenue for State; it had not been enacted to arm a litigant with a weapon of technicality against his opponent---Neither the Court of law nor a litigant could use said law as a noose to strangulate a right which otherwise stood established---Decree granted to the appellant could still be executed in proportion to the amount of the Court fee actually paid.

Firm Nihal Chan Atma Ram v. Sardari Mal AIR 1926 Lah. 558; Amir Shah Muhammad v. Syed Shah Muhammad AIR 1931 Lah. 237 and Ahmed Bakhsh and others v. Kurshid Akbar Khan and others PLD 1988 SC 707 ref.

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

----S. 25---Court fee, deposit of---Minor deficiency in payment of court fee---Effect---Failure to make up the deficiency of a paltry sum (of court fee) could not warrant the dismissal of the entire but a fraction of the suit, in proportion to the amount of the Court fee not made up---Decree granted to the decree-holder could still be executed in proportion to the amount of the Court fee actually paid.

Firm Nihal Chan Atma Ram v. Sardari Mal AIR 1926 Lah. 558; Amir Shah Muhammad v. Syed Shah Muhammad AIR 1931 Lah. 237 and Ahmed Bakhsh and others v. Khurshid Akbar Khan and others PLD 1988 SC 707 ref.

Sikandar Javed, Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record (absent) for Appellant.

Malik Javed Akhtar Wains, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

P L D 2018 Supreme Court 732

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

ELECTION COMMISSION OF PAKISTAN and another---Petitioners

Versus

BIBI YASMEEN SHAH and others---Respondents

Civil Petitions Nos. 2342 and 2618 of 2018, decided on 3rd July, 2018.

Against judgment dated 29-3-2018 of High Court of Sindh at Karachi passed in Constitution Petition No.D-8006 of 2017.

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

----Ss. 99(1)(cc)---Constitution of Pakistan, Art. 62(1)(f)---Disqualification from contesting elections---Fake educational qualification---High Court after remanding the matter directed the Election Commission to hold a detailed and inclusive inquiry into the educational testimonials of the respondent-Senator---Higher Education Commission declared the Bachelors degree of respondent as fake/forged; consequently the Election Commission de-notified the respondent as a Senator retrospectively with all legal consequences from the date when she for the first time entered upon her office and directed recovery of all financial benefits from her---Contention of respondent was that the High Court had remanded the matter to the Election Commission only for inquiry into her educational testimonials, therefore, the Election Commission lacked the jurisdiction to issue declaration and as such de-notify/disqualify the respondent with retrospective effect---Validity---Representative of the University had clearly stated on record that the degree possessed by the respondent and claimed to have been issued to her by the University was fake---Respondent had tried to defraud the system and dishonestly filed fake and fabricated documentation with the Election Commission---Respondent having given a false declaration, was disqualified in terms of Art.62(1)(f) of the Constitution to contest the general elections---Impugned judgment of the Election Commission was affirmed and upheld accordingly.

Afnan Karim Kundi, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Petitioners (in C.P. No.2342 of 2018).

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioners (in C.P. No.2618 of 2018).

Yousaf Moulvi, Advocate Supreme Court for Respondent (in C.P.No.2342 of 2018).

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.3.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondent No.4 (in C.P.No.2342 of 2018).

Moin Azhar Siddiqui, Advocate Supreme Court along with Dr. Zafar Hussain, Dy. Controller of Examination, Karachi University Usman Yousaf Mubeen Chairman, NADRA Saqib Jamal, Director (Legal) (on Court Notice).

P L D 2018 Supreme Court 738

Present: Sh.Azmat Saeed, Mushir Alam and Mazhar Alam Khan Miankhel, JJ

(SUO MOTU CONTEMPT PROCEEDING initiated against Mr. Daniyal Aziz, Federal Minister on account of derogatory and contemptuous speeches/statements in respect of this Hon'ble Court telecast by different TV Channels)

Criminal Original Petition No.10 of 2018, decided on 28th June, 2018.

(a) Contempt of Court Ordinance (V of 2003)---

----Ss. 3 & 5---Constitution of Pakistan, Art. 204(2)(b)---Contempt of court---Contemptuous and derogatory remarks in respect of the Supreme Court made in a press conference and on electronic media---Ridiculing and scandilizing character of a Judge of the superior judiciary---Contemnor tried to justify his contemptuous utterances by claiming that the same were made in the heat of the moment after the announcement of judgment passed in favour of a political opponent --- Such justification was not legally tenable---Contemnor was a senior political leader, who was not only expected but required to act in a responsible and prudent manner---Politician of the stature of contemnor having a fairly large public following, and having access to social, print and electronic media by way of addressing public gatherings or press conferences was expected to be more careful in selection of words and should use a very guarded language and act like a role model for the masses---While exchanging barbs with his political rival, the contemnor dragged the Supreme Ccourt in the argument in a scandalous manner, which tended to ridicule and bring the authority of the Court and the administration of law into disrespect or disrepute---Utternaces made by the alleged contemnor, could not be treated as just and fair comments on the judgment of the court and/or on the conduct of a judge of the Supreme Court---Even otherwise no such plea or defence was raised by the contemnor---To meet the ends of justice all incriminating and contemptuous utterances as reported in print media as well as on TV channels attributed to the contemnor were brought on the record and put to him and he was also provided a chance to defend himself by recording his statement under S.342 Cr.P.C. but no material was brought on the record to rebut the evidence led by the prosecution---Contemnnor was guilty of the charge of scandalizing the Supreme Court and its judges and bringing ridicule and disrespect to its authority and thereby obstructing, interfering with and prejudicing the process of law and due course of proceedings of the Supreme Court---Contemnor had made himself liable for contempt of court within the meaning of Art.204(2)(b) of the Constitution read with S. 3 of the Contempt of Court Ordinance, 2003---Supreme Court convicted the contemnor under S.5 of the said Ordinance and sentenced him with imprisonment till the rising of the Court.

(b) Contempt of Court Ordinance (V of 2003)---

----S. 3---Constitution of Pakistan, Art. 204(2)---Contempt of court proceedings, nature of---Scope---Such proceedings were not stricto sensu a criminal trial under Criminal Procedure Code, 1898 but were sui generis in nature partaking some of the elements of both civil and criminal proceedings.

(c) Contempt of Court Ordinance (V of 2003)---

----S. 3---Constitution of Pakistan, Art. 204(2)---Contempt of court---Fair comment, defence of---Scope---Fair comments about the general working of the Court made in good faith in the public interest and in temperate language without impugning the integrity or impartiality of a Judge would not amount to a contemptuous act.

(d) Contempt of Court Ordinance (V of 2003)---

----S. 3---Constitution of Pakistan, Art. 204(2)---Contempt of court proceedings, purpose of---Purpose of such proceedings was not to wreck vengeance or related to ego of a judge to punish the alleged contemnor but to vindicate honour and dignity of the Court so as to keep and strengthen the confidence of the general public in the judicial system and to keep the justice system away from any obstructions.

Muhammad Waqar Rana, Additional Attorney General, Haji Adam, D.G. (Monitoring) PEMRA (Prosecution Witness) and Sajid Hussain, Journalist, DUNIYA Channel (Prosecution Witness) for Federation.

Muhammad Ali Raza, Advocate Supreme Court along with alleged contemnor in Peson and Kashif Jabbar (Defence Witness) for Alleged Contemnor.

P L D 2018 Supreme Court 749

Present: Sh. Azmat Saeed, Mushir Alam and Mazhar Alam Khan Miankhel, JJ

Khawaja SAAD RAFIQUE and others---Appellants

Versus

HAMID KHAN and others---Respondents

Civil Appeals Nos. 369, 835 and 885 of 2015, decided on 12th July, 2018.

Against the judgment dated 4-5-2015 passed by Election Tribunal, Faisalabad (Camp at Lahore) in Election Petitions Nos. 194 and 129 of 2013.

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

----Ss. 67(1)(d) & 70---Corrupt and illegal practices---Lapses and irregularities by election officials and staff---Question as to whether election was materially affected to declare the same void as a whole---Election Tribunal concluded that the Returning Officer and polling staff failed to comply with the provisions of Representation of the People Act, 1976 and all the rules and guidelines provided to them for the conduct of polls; that extensive illegal practices prevailed throughout the constituency, which were more than enough to hold that the election had been materially affected; consequently the election for the constituency was declared to be void as a whole---Held, that entire evidence of election petitioner/runner-up candidate relating to corrupt and illegal practices was based on hearsay of his polling agents --- Petitioner chose to put forth only 8 polling agents as his witnesses out of a total of 265 polling stations---Evidence of two such polling agents was discarded by the Election Tribunal---More importantly none of the polling agents of the petitioner made any complaint in writing either to the petitioner nor to any Presiding Officer, District Returning Officer and/or the Election Commissioner---Petitioner highlighted variation of 893 votes between vote counts as reflected in Form 14 and Form 16 respectively, however the margin of victory of returned candidate was a staggering 38,921 votes and not merely a few hundred votes---Forensic verification of counterfoils with thumb impressions revealed that total number of invalid counterfoils due to invalid CNIC or lack of CNIC number, or out of constituency votes, or duplicate votes, or lack of fingerprints, were 7892 in number, which was far less than the total lead of 38921 votes obtained by the returned candidate---Any lapses on part of the elections officials or staff brought on record by the petitioner were post-election in preserving the election record---Lapses on part of District Returning Officer, Returning Officer and polling personnel were not sufficient enough to discredit the entire exercise of franchise---Result of election would be set-aside only if such lapses or violations were proved through cogent and tangible evidence to be rampant and of a nature which materially affected the result of the election within the contemplation of S. 70 of the Representation of the People Act, 1976 or rules framed thereunder---Supreme Court set-aside the conclusion of the Election Tribunal that election had been materially affected and accordingly dismissed the election petition.

Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292 ref.

Kh. Haris Ahmad, Senior Advocate Supreme Court assisted by Umer Riaz, Advocate Supreme Court, Tariq Aziz, Advocate-on-Record along with Khawaja Saad Rafique for Appellants (in C.A. No.369 of 2015)

Muhammad Shahzad Shaukat, Advocate Supreme Court for Appellant (in C.As. Nos. 835 and 885 of 2015).

Mian Muhammad Hussain Chotya, Advocate Supreme Court assisted by Barrister, M. Aslam Sheikh, Mian Aleem Latif, Rai Farhan Khan and Rafiq Ahmad Bhatti, Advocate along with Hamid Khan for Respondents (in C.As.369 and 835 of 2015).

Nemo for Respondents (in C.A. No.885 of 2015).

P L D 2018 Supreme Court 773

Present: Gulzar Ahmed, Sardr Tariq Masood and Faisal Arab, JJ

(SUO MOTU CONTEMPT PROCEEDINGS initiated against Mr. Talal Chaudhry, State Minister on account of Derogatory and contemptuous speeches/statements at public gathering in respect of this Hon'ble Court telecasted by different T.V. Channels)

Criminal Original Petition No.09 of 2018, decided on 11th July, 2018.

(a) Contempt of Court Ordinance (V of 2003)---

----Ss. 3 & 7---Supreme Court Rules, 1980, Part V, O.XXVII---Constitution of Pakistan, Art.204---Civil and criminal contempt of court---Suo Motu action by the Supreme Court---Section 7 of the Contempt of Court Ordinance, 2003, provided for taking of suo motu action by the Supreme Court in the matter of criminal contempt---Similarly, in case of personal criticism, a Judge had been empowered to take notice of the same and in case of judicial contempt a Judge of the Court was competent to initiate proceeding relating to him and refer it to the Chief Justice who may hear the same personally or refer it to some other Judge---Proceeding of civil contempt could also be initiated suo motu.

(b) Contempt of Court Ordinance (V of 2003)---

----S. 3---Constitution of Pakistan, Arts. 19 & 204---Contempt of court, proceedings for---Purpose---Freedom of speech, restrictions upon---Scope---Contempt of Court was one of the laws to which the Fundamental Right of every citizen to freedom of speech and expression had been subjected to---In exercising the Fundamental Rights of freedom of speech and freedom of expression, if a citizen impinged upon and transgressed the reasonable restrictions of law of contempt of Court, he would make himself culpable and liable to be proceeded against under the law for contempt of court---Rational for imposition of conditions on freedom of speech and expression as underlined by the Constitution itself was that the citizens while exercising such right had to maintain decency and decorum and not act in a manner, which would infringe upon the rights of other citizens or transgress the mandate of law in relation to the working of State institutions---Contempt of court law thus was meant to maintain the efficacy of the Courts of justice and to secure public confidence in the administration of justice.

(c) Contempt of Court Ordinance (V of 2003)---

----S. 3---Constitution of Pakistan, Art.204---Contempt of court---Defence---Plea of alleged contemnor that his utterances/speech had been taken out of context---Burden of proof---Once the alleged contemnor had taken up the defence that his speeches had been referred to out of context, the burden was upon him to show and establish that such was the case.

(d) Contempt of Court Ordinance (V of 2003)---

----S. 3---Constitution of Pakistan, Art.204---Contempt of court---Judicial restraint in punishing alleged contemnor---Scope---Principle of judicial restraint was not a universal principle to be applied in each and every case---Every case was based upon its own different facts, and was required to be dealt with in terms of its own peculiar facts and circumstances.

(e) Contempt of Court Ordinance (V of 2003)---

----Ss. 3 & 5---Constitution of Pakistan, Art.204---Contempt of court---Contemptuous and derogatory speeches in respect of the Supreme Court made in public gatherings---Alleged contemnor in order to show his unfaltering allegiance to a political leader, who as Prime Minister was ousted from office by a judgment rendered by the Supreme Court, had uttered words in speeches which seriously prejudiced the office of the Chief Justice and Judges of the Supreme Court and ultimately the Court as an institution---Utterances of the alleged contemnor were not at all within the ambit of decency, morality and decorum but he showed utter venom for which he had no cause---Alleged contemnor had not only abused the judges of the Supreme Court but had scandalized the Court and did everything to bring the Supreme Court and its Judges into hatred, ridicule and contempt, which was substantially detrimental to the administration of justice---Alleged contemnor had committed contempt of Court within the meaning of Art.204 of the Constitution read with S.3 of the Contempt of Court Ordinance, 2003 and made himself liable for punishment---Alleged contemnor was convicted and sentenced under Ss.3 & 5 of the siad Ordinance and punished with imprisonment till the rising of the Court with fine of Rs.100,000/-.

Kamran Murtaza, Senior Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Alleged Contemnor.

Ch. Aamir Rehman, Additional A.G.assisted by Barrister Asad Rahim Khan for the State.

P L D 2018 Supreme Court 788

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

Dr. FARHAT JAVED SIDDIQUE and 15 others---Petitioners

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Constitution Petitions Nos. 74 to 79 of 2015, 49 to 56 of 2016 and 2 of 2018 and Civil Misc. Applications No.4292 of 2017 and 162 of 2018).

Elections Act (XXXIII of 2017) ---

----S. 94---Constitution of Pakistan, Art. 17---Overseas Pakistanis---Entitlement to vote in General and Local Bodies Elections---Overseas Voting Solution (Internet Voting)---Overseas Pakistanis had been conferred with the right to vote as per Art. 17 of the Constitution---Where the right of Overseas Pakistanis to vote already existed as per the law and was duly recognized, it must necessarily be given due effect---Supreme Court observed that prima facie the mechanism of Internet Voting was found to be safe, reliable and effective for being utilized in a pilot project---Supreme Court directed that the results of the bye-elections (for the year 2018) and the vote count of the votes cast by the Overseas Pakistanis through the Internet Voting mechanism shall be kept separately and also secret till the time that the Election Commission was satisfied about the technical efficacy, secrecy and security of the votes cast by Overseas Pakistanis through the Internet Voting system; that in case such determination, made on the basis of reasons, was in the negative and the Election Commission was not satisfied about the integrity, safety and reliability of the systems and the votes cast through the same, the Election Commission shall exclude the segregated votes cast by Overseas Pakistanis from the official result of the bye-elections---Constitutional petitions were allowed accordingly.

Ch. Nasir Iqbal and others v. Federation of Pakistan the Secy. Law and others PLD 2014 SC 72 ref.

Anwar Mansoor Khan, Senior Advocate Supreme Court and Faisal Fareed Hussain, Advocate Supreme Court for Petitioners (in Const. P.2 of 2018).

Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Const. P.74-79/15, 49-56 of 2016).

Solicitor Daud Ghaznavi, Petitioner in person (in Const.P.79 of 2015).

Khalid Javed Khan, Attorney General for Pakistan for Respondents/on Notice:

Syed Nayyar Abbas Rizvi, Addl. Attorney General assisted by Barrister Asad Rahim Zikriya Sheikh, DAG for Respondent/on Notice.

Babar Yaqoob Fateh, Secy. ECP and M. Arshad, D.G. Law for ECP.

Usman Yousaf Mobeen, Chairman, Zulfiqar Ali, D.G. Projects, Saqib Jamal, Director, Legal and M. Ali, D.G. Legal for NADRA.

P L D 2018 Supreme Court 795

Present: Mian Saqib Nisar, C J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

HABIB BANK LTD.---Appellant

Versus

WRSM TRADING COMPANY, LLC and others---Respondent

Civil Appeal No.552 of 2015, decided on 2nd July, 2018.

(Against the judgment dated 10-3-2015 of the Lahore High Court, Lahore passed in R.F.A. No.395 of 2005).

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

----S. 9---Section 9 of Civil Procedure Code, 1908, applicability of---Scope---Where special statutes regulating the civil rights of citizens were silent on some matter the Civil Procedure Code, 1908 would apply and fill the lacunae/vacuum---Civil Procedure Code, 1908, in such regard would apply to all Courts whether of plenary or restricted jurisdiction.

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

----S. 2(a)---"Financial institution"---Scope and meaning---Meaning of "financial institution" under S.2(a) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 included financial institutions incorporated in Pakistan, which transacted business both inside and outside Pakistan.

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

----S. 2(c)---Banking Court, jurisdiction of---Scope---Foreign branch of a financial institution incorporated in Pakistan providing finance facility to a customer outside Pakistan---Jurisdiction of the Banking Court extended to such finance facility availed by customer within or outside Pakistan---Fact that the Courts at a foreign country may also have jurisdiction over the parties was not a valid reason to deny the jurisdiction of the Banking Courts in Pakistan---Supreme Court observed that no situation should or ought to be created where citizens of the country availed finance(s) abroad and retreated to the country safe in the knowledge that there was no effective redress against them; that comity amongst nations required that the country do its best to ensure that there was effective redressal and recovery of finances and loans from the defaulting customers of financial institutions.

(d) Interpretation of statutes---

----Amending statute---Court must make every effort to interpret the law in such a manner as to render amendments effective rather than nugatory.

Dr. Raja Aamer Zaman v. Omar Ayub Khan and others 2015 SCMR 1303 ref.

(e) Special court---

----Jurisdiction of --- Principles --- Factors to be considered by a special court before the assumption of jurisdiction were firstly, whether it had jurisdiction over the subject matter of the lis, and secondly, whether the parties to the lis were subject to its jurisdiction.

Mian Mehmood Ahmad v. Hong Kong and Shanghai Banking Corporation Ltd. through Manager and 6 others (2010 CLD 293) ref.

(f) Private International law---

----Loan facility availed outside Pakistan through a bank incorporated in Pakistan---Debtor residing in Pakistan---Appropriate forum for initiating proceeding for recorvery of loan---Principles---Forum which had the most real and substantial connection with the lis must exercise jurisdiction over it---When the bank and debtor were present in Pakistan, then it was the courts in Pakistan which must assume jurisdiction.

Spiliada Mzaritime Corporation v. Cansulex Ltd. (1986) 3 WLR 972 ref.

(g) Administration of justice---

----Procedures and technicalities---Whilst courts ought not to adopt arbitrary procedures and ignore established practices but at the same time court must not become slave to technicalities and create a fetish of procedures to the obvious detriment of litigants.

Ms. Ayesha Hamid, Advocate Supreme Court for Appellant.

Ex parte: for Respondents Nos.1 and 3

M. Shahzad Shaukat, Advocate Supreme Court for Respondent No.2.

Syed Waqar Hussain Naqvi, Advocate Supreme Court for Respondent No.4.

Abdul Hameed Chohan, Advocate Supreme Court and M.S.Khattak, Advocate-on-Record for Respondent No.5.

P L D 2018 Supreme Court 813

Present: Asif Saeed Khan Khosa, Maqbool Baqar and Syed Mansoor Ali Shah, JJ

MUHAMMAD ABID---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.92-L of 2017, decided on 10th September, 2018.

(On Appeal from judgment of Lahore High Court, Lahore dated 18-11-2014, passed in Criminal Appeal No. 1133/2011 (CSR No.23-T/20111).

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

----S. 302---Qatl-i-amd---'Last seen evidence'---Meaning and principles---Theory of last seen together was one where two persons were 'seen together' alive and after an interval of time, one of them was found alive and the other dead---Where the period between the two was short, presumption could be drawn that the person alive was the author of the other's death---Time gap between the sighting and the occurrence should be such as to rule out possibility of somebody else committing the crime---Foundation of the "last seen together" theory was based on principles of probability and cause and connection and required cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused; proximity of the crime scene; small time gap between the sighting and crime; no possibility of third person interference; motive; and time of death of victim---Circumstance of the deceased being last seen in the company of the accused was not by itself sufficient to sustain the charge of murder, but there must be evidence to link the accused with the murder of his companion, such as incriminating facts as recovery, strong motive and the proximate time when they were last seen together and the time when the deceased was killed---Last seen evidence as circumstantial evidence must be incompatible with the innocence of the accused and should be accepted with great caution, and it must be scrutinized minutely so that no plausible conclusion should be drawn therefrom except guilt of the accused.

Rehmat v. State PLD 1977 SC 515; Muhammad Amjad v. State PLD 2003 SC 704; Deepak Chadha v.State 2012(1) JCC 540 and Fayyaz Ahmad v. State 2017 SCMR 2026 ref.

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

----Ss. 302 & 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 7(e)--- Qatl-i-amd, kidnapping for ransom---Reappraisal of evidence---Benefit of doubt---'Last seen evidence'---According to the statement of witness who last saw the accused and victim together, the accused was last seen with the victim around 2:15 pm on 5-9-2010 while renting a motorcycle from his shop and then according to the same witness the accused returned the motorcycle at 3:30 pm the same day, but this time the victim was not with him---Said witness further stated that on the same day, the accused allegedly again rented the motorcycle at 5:00 pm to return it at 6:40 pm---Limited window from 2:15 pm to 3:30 pm on 5-9-2010 could be the probable time of crime in order to complete the continuous chain of events, but there was no evidence to establish the same---On the contrary, according to the FIR the call received by the complainant for ransom was at 7:15 pm on 5-9-2010 and as per statement of the complainant he received a similar call on 7-9- 2010---Both the calls implied that the victim was alive at the time---Facts and evidence on record did not draw up a chain of uninterrupted events connecting the accused with the alleged murder---Accused was, therefore, entitled to the benefit of doubt---Appeal was allowed, conviction and sentence of accused were set-aside and he was acquitted of the charge.

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

----Ss. 302 & 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 7(e)--- Qatl-i-amd, kidnapping for ransom---Reappraisal of evidence---Benefit of doubt---Medical evidence---Post-mortem report---Stage of putrefaction---Exact time of death of victim was not fully certain---Dead body was recovered on 7-9-2010 and the Post Mortem Report conducted the same night described the external appearance of the dead body to be in advanced stage of putrefaction---Skin and soft tissues over the head, face and neck were completely decomposed---All viscera of skull, chest and abdomen were completely decomposed and soft tissues and muscles over the remaining body were in advanced stage of putrefaction---Advanced stage of putrefaction as described in the Post Mortem Report began five to ten days or more after death, therefore, the possibility of death of the victim prior to 5-9-2010, which was the date when the accused and victim were last seen together, could not be ruled out---Inquest Report was noticeably dated 7-8-2010, a month before the recovery of the dead body and nothing was on the record to show that the prosecution had moved the Trial Court or any Authority for the correction of the date---Said Report did not give any date or time of death---Accused was, therefore, entitled to the benefit of doubt---Appeal was allowed, conviction and sentence of accused were set-aside and he was acquitted of the charge.

Modi's Medical Jurisprudence and Toxicology ref.

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

----Ss. 302 & 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 7(e)---Qatl-i-amd, kidnapping for ransom---Reappraisal of evidence---Benefit of doubt---Record of telephone calls---Crime report, as well as, the statement of the complainant referred to telephone calls received on two separate dates by an unknown person---No evidence on the record established that said calls were received by the complainant and were linked to the accused---Recovery memo of the mobile of the accused carried a SIM different from the number of the unknown caller mentioned in the FIR---In the absence of any such evidence, the alleged meeting of the complainant and the appellant for payment of ransom and the pointing out of the victim by the accused seemed improbable---Accused was, therefore, entitled to the benefit of doubt---Appeal was allowed, conviction and sentence of accused were set-aside and he was acquitted of the charge.

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

----Ss. 302 & 365-A---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 7(e)---Qatl-i-amd, kidnapping for ransom---Reappraisal of evidence---Benefit of doubt---Recovery of ransom amount --- Bank notes of the ransom amount were not marked or signed by any Magistrate, hence its alleged recovery by the police becomes suspect---Accused was, therefore, entitled to the benefit of doubt---Appeal was allowed, conviction and sentence of accused were set-aside and he was acquitted of the charge.

Shahid Azeem, Advocate Supreme Court for Appellant.

Muhammad Jaffar, DPG, Punjab for the State.

P L D 2018 Supreme Court 819

Present: Qazi Faez Isa and Yahya Afridi, JJ

MUHAMMAD ASIM and others---Petitioners

Versus

Mst. SAMRO BEGUM and othrs---Respondents

Civil Petition No.3095 of 2017, decided on 15th August, 2018.

(On appeal against the judgment dated 21-7-2017 of the Peshawar High Court, Peshawar passed in W.P. No.1508-P/2016).

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

----O. XLI, R. 33---Family Courts Act (XXXV of 1964), S. 17 & Preamble---Appeal against judgment of Family Court---Powers of Appellate Court to modify judgment and decree of Family Court by relying on provisions of the Civil Procedure Code, 1908---Scope---Rule 33 of O. XLI of the Code of Civil Procedure, 1908 ("C.P.C.") enabled the Appellate Court "to pass any decree and make any order which ought to have been passed or made... and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal.. "---Although S. 17 of the Family Courts Act, 1964 excluded the applicability of the C.P.C., except those provisions specifically made applicable, to avoid technicalities and to decide cases in the shortest possible time, however, the Preamble of the Family Courts Act, 1964 stated the reason for enacting said Act was, "for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith"---Wife, a former wife, a child or children should not be disentitled because the Family Court failed to pass an order which ought to have been passed in their favour; and if the Appellate Court corrected such mistake it could do so in exercise of the powers inherent in an Appellate Court---Exercise of such powers vested in a Court of appeal (Rule 33 of Order XLI of the C.P.C.).

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

----S. 5, Sched.---Recovery of maintenance allowance from husband/father---Husband/father failing to disclose his salary or financial earnings---Effect---Where a husband was required to maintain his wife, former wife during her iddat period or child and was required to pay maintenance, including the arrears of maintenance, his present and past earnings must be disclosed by him, because his financial status determined the amount of maintenance that should be awarded---In case of non-disclosure an adverse inference could be drawn against him---Supreme Court observed that Family Court should try to ascertain the salary and earnings of the husband/father who was required to pay maintenance.

Salamat Shah Mahsod, Advocate Supreme Court for Petitioners.

Asif Hameed Qureshi, Advocate Supreme Court for Respondents.

P L D 2018 Supreme Court 823

Present: Gulzar Ahmed, Qazi Faez Isa and Sajjad Ali Shah, JJ

MUHAMMAD ADNAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.90-L of 2017 and Criminal Miscellaneous Application No. 307-L of 2018, decided on 15th September, 2018.

(On appeal from the judgment dated 24-3-2014 of the Lahore High Court, Lahore passed in Criminal Appeal No.2374 of 2010).

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

----S. 9(c)---Juvenile Justice System Ordinance (XXII of 2000), Preamble---Possession and trafficking of narcotics---Reappraisal of evidence---Juvenile accused treated as an adult offender---Unreliable prosecution witnesses---Accused, who was 12 years of age at the time of the alleged offence, was driving a motorcycle rickshaw, from wherein a huge quantity of charas and heroin was recovered---Trial Court convicted the accused under S.9(c) of the Control of Narcotic Substances Act, 1997 and sentenced him to life imprisonment---Admittedly, the accused was not even a teenager when the narcotic drugs were seized from the rickshaw---Questions were whether a child of such tender age could be the owner or deemed to be the owner of the huge quantity of narcotic drugs which had been seized; whether he could be the owner of the rickshaw; whether it could be accepted that he was driving the rickshaw; and whether he had the requisite understanding to know what he was doing---None of the said questions were investigated by the police---Trial Court was a Juvenile Court and as such was required to ensure that the interest of the child whose trial it was conducting was fully protected, however, it did not formulate the said questions as "points for determination" nor considered them---Trial Court treated the accused as an adult, without considering that he was a child of tender years, and presumed that he had full capacity and understanding---High Court perpetuated the error, and the Judges who heard the appeal also effectively treated the accused as an adult offender---Police arrested the accused at a picket, but he did not try to run away---Narcotics were recovered in the presence of two witnesses---One of the said witnesses denied his signature on the recovery memo, while the other disowned any knowledge of the recovery exhibit, therefore he was declared hostile---Prosecution did not seek to have their signatures sent for forensic determination---Police Inspector who had set up the picket and apprehended the accused was the complainant of the case---Complainant admitted in his cross-examination that he made no attempt to determine the ownership of the rickshaw nor sought its registration book nor wrote to the concerned motor registration authority to determine in whose name it was registered---Case of prosecution, thus, rested on the testimony of three unreliable prosecution witnesses of doubtful integrity---Apparently, it seemed that the policemen were shielding the co-accused whilst arresting and prosecuting a young boy merely because he was the brother of the co-accused---Prosecution had completely failed to establish its case against the accused, let alone having established it beyond reasonable doubt---Conviction and sentence passed by the Trial Court and maintained by the High Court were set aside and accused was acquitted of the charge---Supreme Court directed that trial of juveniles shall be concluded by juvenile courts without delay and appeals against conviction shall be prioritized and expeditiously decided; that Chief Justices of the provinces and of the Islamabad High Court through their respective Registrars shall issue necessary directions to prioritize the hearing of appeals filed by juvenile convicts and in this regard appeals by juvenile convicts shall be so highlighted on the file covers of the appeals; that requisite instructions by the Chief Justices, through their respective Registrars, should also be issued to the juvenile courts within their respective territorial jurisdictions to ensure the expeditious conclusion of trials, and that the juvenile courts shall not entertain routine requests for adjournments and if the case was to be adjourned it must only be in exceptional circumstances---Appeal was allowed accordingly.

Kh. Muhammad Saeed, Advocate Supreme Court and Mrs. Tasnim Amin, Advocate-on-Record (absent) for Appellant.

Ch. Muhammad Waheed Khan, Additional Prosecutor General, Punjab for the State.

P L D 2018 Supreme Court 828

Present: Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ

TRADING CORPORATION OF PAKISTAN---Petitioner

Versus

DEVAN SUGAR MILLS LIMITED and others---Respondents

Civil Petition No.60-K of 2018, decided on 5th September, 2018.

(Against the judgment dated 4-12-2017 passed by the High Court of Sindh at Karachi in Const.P.No.S-1862 of 2016).

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

----Ss. 10 & 11 & O. II, R. 2---Qanun-e-Shahdat (10 of 1984), Art.114---Constitution of Pakistan, Art. 10-A---Remedy---Doctrine of election (of remedy)---Scope---Moment a suitor intended to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he had to elect and or choose from amongst host of actions or remedies available under the law---Choice to initiate and pursue one out of host of available concurrent or co-existent proceeding/ actions or remedy from a forum of competent jurisdiction vested with the suitor---Once choice was exercised and election was made then a suitor was prohibited from launching another proceeding to seek a relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/action and or remedy, which in legal parlance was recognized as doctrine of election, which doctrine was culled by the courts of law from the well-recognized principles of waiver and or abandonment of a known right, claim, privilege or relief as contained in O. II, R. 2, C.P.C., principles of estoppel as embodied in Art.114 of the Qanun-e-Shahdat, 1984 and principles of res judicata as articulated in S.11, C.P.C. and its Explanations---Doctrine of election applied both to the original proceedings/action as well to defences and so also to challenge the outcome on culmination of such original proceedings/action, in the form of order or judgment/decree---Although there was no bar to concurrently invoke more than one remedy at the same time against an ex-parte order/ judgment, however, once election or choice from amongst two or more available remedy was made and exhausted, judgment debtor could not ordinarily be permitted subsequently to venture into other concurrently or coexisting available remedies---Court generally give such suitor choice to elect one of the many remedies concurrently invoked against one and same ex parte order/judgment, as multiple and simultaneous proceedings may be hit by principle of res-subjudice (section 10 C.P.C.) and or where one of the proceeding was taken to its logical conclusion then other pending proceeding for the similar relief may be hit by principles of res judicata---Giving choice to elect remedy from amongst several coexistent and or concurrent remedies did not frustrate or deny right of a person to choose any remedy, which best suited under the given circumstances but to prevent recourse to multiple or successive redressal of a singular wrong or impugned action before the competent forum/court of original and or appellate jurisdiction, such rule of prudence had been evolved by courts of law to curb multiplicity of proceedings---As long as a party did not avail of the remedy before a Court of competent jurisdiction all such remedies remain open to be invoked---Once the election was made then the party generally, could not be allowed to hop over and shop for one after another coexistent remedies---Right of fair trial did not envisage recourse to successive remedies one after another against one and the same impugned order on substantially same set of facts and pleadings seeking substantially similar relief, as it would be against the doctrine of election.

Mst. Fehmida Begum v. Muhammad Khalid and others 1992 SCMR 1908 and Behar State Co-operartive Marketing Union Ltd. v. Uma Shankar Sharan and another (1992) 4 SCC 196 ref.

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

----Ss. 11, 12(2), 47, O.IX, R. 13, O. XXI, Rr. 99, 100, 101, 102 & 103---Cantonments Rent Restriction Act (XI of 1963), S. 24---Execution of ejectment order---Tenant seeking successive remedies against the same impugned order on substantially same set of facts and pleadings---For a tenant confronted with ex-parte order striking out its defence resulting in his ejectment order, quite a few remedies may be available against such order; namely appeal under S. 24 of the Cantonments Rent Restriction Act, 1963; application under O.IX, R.13 C.P.C.; application under S.12(2), C.P.C.; application under O. XXI, Rr. 99 to 103, C.P.C. and not the least application under S.47, C.P.C.---All such remedies armed the tenant/ judgment debtor to effectively resist ex-parte ejectment order passed against it---In the present case respondent-tenant, chose not to file appeal under S. 24 of the Cantonments Rent Restriction Act, 1963 against the ejectment order but had chosen to invoke provisions of S.12(2), C.P.C., which application was dismissed on merits by the Executing Court and maintained by High Court---Tenant after almost five years from date of ejectment order, ventured to invoke S.47, C.P.C. on substantially same facts and grounds---Even if it was assumed that grounds as available under S.47, C.P.C. to question executability, discharge or satisfaction of ejectment order passed as a consequence for non-compliance of tentative order, set down different parameters to resist and defend execution of eviction order, then too, all such grounds were very much available when first application under S.12(2), C.P.C. was initially made---Case of the landlord was squarely covered by Explanation IV of S.11, C.P.C.---No reservation was made or avenue kept open while deciding application under S.12(2), C.P.C. either by Executing Court or for that matter by the High Court for the tenant to explore other remedy---Where the tenant failed to raise all objections as may be available at the time when execution was resisted by invoking one out of few other available remedies then he was precluded by his conduct to raise any such objection, and all such objections and challenges, if any, would be deemed to have been raised and decided against him---After exhausting one of the remedies under S.12(2), C.P.C. against the order striking out defence, judgment debtor could not be allowed to go on expedition to venture another remedy for the same malady, which though available was not invoked---Permitting such course would be nothing but abuse of the process of law and would amount to encourage multiplicity of proceeding, which could not be approved---Tenant was directed to vacate the premises within a period of nine months subject to payment of rent and utility charges, and it was directed that in case of default and or failure to hand over vacant and peaceful possession on or before expiry of period allowed, writ of possession, without notice shall be issued with police aid and breaking open the lock---Petition for leave to appeal was converted into appeal and allowed accordingly.

M. Sarfraz Metlo, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

Khalid Javed Khan, Advocate Supreme Court for Respondents.

P L D 2018 Supreme Court 837

Present: Asif Saeed Khan Khosa, Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

STATE through Director, Directorate-General of Intelligence and Investigation, (Customs and Excises), Karachi---Appellant

Versus

Haji NABI BUX and others---Respondents

Criminal Appeal No.429 of 2017, decided on 26th September, 2018.

(Against the judgment dated 15-3-2016 passed by the High Court of Sindh at Karachi in Criminal Acquittal Appeal No.30 of 2014).

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

----S. 48---Customs Act (IV of 1969), S. 196---Criminal Procedure Code (V of 1898), Pt., VII, Chapt. XXXI [Ss.404 to 431]---Recovery of narcotic substance---Appeal against acquittal filed by State---Maintainability---Right of appeal in a case of recovery of narcotic substance was squarely governed by the provisions of S. 48 of the Control of Narcotic Substances Act, 1997---Section 48 of the said Act catered for all kinds of challenges made to a judgment or order of a Trial Court through an appeal and unlike its counterparts in the Customs Act, 1969 and the Code of Criminal Procedure, 1898, no restriction had been placed therein as to which person or authority could file an appeal ---Present case was a State case, the State had prosecuted the accused persons before the Trial Court and it was none other than the State itself which had filed an appeal before the High Court against acquittal of the accused persons recorded by the trial court---Apart from that the FIR had been lodged in the present case by the office of the Directorate-General of Intelligence and Investigation, Federal Board of Revenue, which was the complainant in the case and the appeal filed by the State before the High Court was through such complainant---Provisions of S.48 of the Control of Narcotic Substances Act, 1997 placed no restriction on the State or the complainant vis-a-vis filing of an appeal before the High Court --- High Court in the present case unnecessarily considered the provisions of the Customs Act, 1969 or the Code of Criminal Procedure, 1898 when the provisions of S. 48 of the Control of Narcotic Substances Act, 1997 were very clear and were the only provisions governing the subject of appeal in such a case---Case was remanded to the High Court with the direction to entertain the appeal filed before it as having been competently filed---Appeal was allowed accordingly.

The State through Mehmood Ahmad Butt, Deputy Director, Regional Directorate, Anti-Narcotics Force, Lahore v. Mst. Fazeelat Bibi PLD 2013 SC 361 and State through Director General, Anti-Narcotics Force v. Abdul Jabar alias Jubbara 2017 SCMR 1213 ref.

Dr. Farhat Zafar, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant.

Farhat Nawaz Lodhi, Advocate Supreme Court for Respondent No.1.

Syed Nayyab Hussain Gardezi, Deputy Attorney-General for Pakistan (On Court's Notice:)

P L D 2018 Supreme Court 840

Present: Asif Saeed Khan Khosa, Maqbool Baqar and Mazhar Alam Khan Miankhel, JJ

MUHAMMAD QASIM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.436 of 2017, decided on 27th September, 2018.

(Against the judgment dated 3-4-2010 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No.294-J of 2010 and Murder Reference No.29 of 2010).

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Reappraisal of evidence---"Grave and sudden provocation"---Conviction under S.302(b), P.P.C converted to one under S. 302(c), P.P.C---Accused was convicted by Trial Court on two counts of an offence under S.302(b), P.P.C. and was sentenced to death on each count and to pay compensation---Appeal filed by accused before the High Court was dismissed to the extent of his convictions under S.302(b), P.P.C. but the same was partly allowed to the extent of his sentences of death which were reduced by the High Court to imprisonment for life on each count---Held, that present case was one of double murder committed in broad daylight and an FIR in respect of the same had been lodged with sufficient promptitude wherein the accused had been nominated as the principal perpetrator of the murders---Ocular account of the alleged occurrence had been furnished before the Trial Court by sons of the deceased---Said eye-witnesses had advanced a reasonable explanation for their presence at the place of occurrence at the relevant time and had made consistent statements before the Trial Court which statements had inspired confidence of both the courts below---In such circumstances, it was unlikely for the sons of the deceased to substitute their father's killer---Medical evidence had provided sufficient support to the ocular account furnished by the said eye-witnesses---Motive set up by the prosecution was based upon a suspicion of illicit relations between the two deceased and that backdrop had been admitted by the accused also through his statement recorded under S.342, Cr.P.C.---During the investigation four crime-empties had been secured from the place of occurrence which had subsequently been found to be wedded with a pistol recovered from the accused's custody---In his statement recorded under S. 342, Cr.P.C. the accused had admitted killing both the deceased and had maintained that he had committed the said murders under the impulse of grave and sudden provocation and on account of 'ghairat' after finding the two deceased in a compromising position in a field---High Court had noticed in the impugned judgment passed by it that the parents of the female deceased had not pursued the case against the present accused which hinted at a possibility of the accused's version being true---Furthermore present case was indeed a case of grave and sudden provocation and honour only provided a backdrop to the same, therefore, provisions of S.302(c), P.P.C. were attracted---Convictions and sentences of the accused were set aside and they were substituted by his conviction on two counts of an offence under S.302(c), P.P.C. with a sentence of rigorous imprisonment for twenty (20) years on each count and he was directed to pay a sum of Rs.1,00,000/- to the heirs of each deceased by way of compensation---Appeal was partly allowed accordingly.

Zahid Rehman v. The State PLD 2015 SC 77 ref.

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

----S. 300 [since amended], Exception 1 & 302(c), first proviso---Murder "in the name or on the pretext of honour"---Murder due to "grave and sudden provocation"---Distinction---Words "in the name or on the pretext of honour" used in the first proviso to S. 302(c), P.P.C. indicated that a murder committed "in the name or on the pretext of honour" had to be a calculated murder committed with premeditation in the background of honour whereas the words used in the context of grave and sudden provocation in Exception 1 to the erstwhile S. 300, P.P.C. were "deprived of the power of self-control"---Such words used in Exception 1 to the erstwhile S.300, P.P.C. catered for a situation which was not premeditated and had developed suddenly leading to grave provocation depriving a person of the power of self-control---Such different phraseology used by the legislature in these two distinct provisions clearly indicated catering for different situations and, therefore, the words "in the name or on the pretext of honour" ought not to be mixed or confused with grave and sudden provocation leading to depriving of the power of self-control.

Muhammad Ameer v. The State PLD 2006 SC 283 ref.

Ansar Nawaz Mirza, Advocate Supreme Court for Appellant.

Muhammad Jaffar, Deputy Prosecutor-General, Punjab for the State.

P L D 2018 Supreme Court 845

[Supreme Judicial Council]

Present: Mian Saqib Nisar, Chairman, SJC, Asif Saeed Khan Khosa, Ejaz Afzal Khan, Muhammad Noor Meskanzai and Syed Mansoor Ali Shah, Members

ALI ANWAR GOPANG---Applicant

Versus

JUSTICE SHAUKAT AZIZ SIDDIQUI, JUDGE, ISLAMABAD HIGH COURT---Respondent

Supreme Judicial Council No.242 of 2015, decided on 18th May, 2017.

(Reference under Article 209 of the Constitution).

(a) Supreme Judicial Council Procedure of Inquiry, 2005---

----Para. 13---Constitution of Pakistan, Arts. 4, 10A, 14, 25 & 209---Paragraph 13 of the Supreme Judicial Council Procedure of Inquiry, 2005, Vires of---Proceedings against a Judge of the High Court before the Supreme Judicial Council---Scope---Application seeking proceedings in open court---Plea of applicant/Judge of the High Court that holding in-camera proceedings in secret in terms of para. 13 of Supreme Judicial Council Procedure of Inquiry, 2005 was violative of the Fundamental Rights guaranteed to him under Arts. 4, 10A, 14 & 25 of the Constitution, therefore, para.13 should be declared to be ultra vires the Constitution---Validity---Supreme Judicial Council ("Council") was not a court---Proceedings before the Council did not determine the civil rights or criminal liabilities of a Judge against whom the proceedings were being conducted, therefore, the request for an open trial of the proceedings on the touchstone of Arts. 4, 10-A, 14 & 25 of the Constitution was not well founded---Furthermore, show cause notice was issued to the applicant along with the information and material against him; he had filed his reply thereto; the statement of allegations had been served upon him and the Attorney General had been required to conduct the reference---For the purposes of establishing the allegations contained in the complaint the affidavits of the witnesses who intended to depose in support of the complainant were to be filed through the Attorney General---Applicant was entitled to receive an advance copy of the affidavits, and the right to cross-examine the witnesses---All the documentary material brought on the record during the course of inquiry was also going to be delivered to the applicant, who would have the right to controvert such material---Applicant was also be entitled to produce oral and documentary material in support of his defence---Where the assistance of the Supreme Judicial Council was required, the same would be duly provided to the applicant---All said steps conformed to the utmost rules of fairness in proceedings, natural justice, transparency and due process of law---Paragraph 13 of the Supreme Judicial Council Procedure of Inquiry, 2005 was not ultra vires the Constitution, nor the proceedings conducted in the present manner would deny the applicant the right to defend himself in a robust and meaningful manner---Application was accordingly dismissed.

Zulfikar Ali Bhutto v. The State PLD 1979 SC 53; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; The President v. Justice Shaukat Ali PLD 1971 SC 585; Chief Justice of Pakistan Iftikhar Muhammad Chaudhary v. President of Pakistan through Secretary and others PLD 2010 SC 61 and George Meerabus v. The Attorney General of Belize [(2005) 2 AC 513 ref.

(b) Supreme Judicial Council Procedure of Inquiry, 2005---

----Para. 13---Constitution of Pakistan, Art. 209---Proceedings against a Judge of the High Court before the Supreme Judicial Council---In-camera proceedings---Proceedings before the Supreme Judicial Council not conducted in open court was in the larger interests of the judiciary, as the issues brought before the Supreme Judicial Council and the allegations levelled may ultimately turn out to be false, frivolous and vexatious.

The President v. Justice Shaukat Ali PLD 1971 SC 585 and Chief Justice of Pakistan Iftikhar Muhammad Chaudhary v. President of Pakistan through Secretary and others PLD 2010 SC 61 ref.

Hamid Khan, Senior Advocate Supreme Court (assisted by Honourable Murad Siddiqui and Ajmal Ghaffar Toor for Respondents.

Ashtar Ausaf Ali, Attorney General for Pakistan Moulvi Anwar-ul-Haq, Advocate Supreme Court (Assisted by Barrister Asad Rahim Khan and Salaar Khan Advocates (on Court's Notice).

P L D 2018 Supreme Court (AJ&K) 17

Before Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

Civil Appeal No.101 of 2016

MUHAMMAD LATIF KHAN and 9 others---Appellants

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 8 others---Respondents

(On appeal from the judgment of the High Court dated 18-2-2016 in Civil Appeals Nos.113 and 114 of 2011)

Civil Appeal No.134 of 2016

MUHAMMAD FARID and 11 others---Appellants

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 67 others---Respondents

(On appeal from the judgment of the High Court dated 18-2-2016 in Civil Appeals Nos.113 and 114 of 2011)

Civil Appeal No.132 of 2017

MUHAMMAD KHAN and 54 others---Appellants

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 21 others---Respondents

(On appeal from the judgment of the High Court dated 18-2-2016 in Civil Appeals Nos.113 and 114 of 2011)

Civil Appeal No.149 of 2016

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 5 others---Appellants

Versus

ABID HUSSAIN SHAH and 52 others---Respondents

(On appeal from the judgment of the High Court dated 18-2-2016 in Civil Appeal No.112 of 2011)

Civil Appeal No.150 of 2016

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 5 others---Appellants

Versus

MJUHAMMAD LATIF KHAN and 13 others---Respondents

(On appeal from the judgment of the High Court dated 18-2-2016 in Civil Appeals Nos.113 and 114 of 2011)

Civil Appeals Nos. 101, 134, 149, 150 of 2016 and 132 of 2017, decided on 15th November, 2017.

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

----Ss. 18 & 23---Civil Procedure Code (V of 1908), O. XLI, Rr.22 & 33---Reference to court---Enhancement of compensation---Market value---Proof---Benefit of judgment enhancing compensation to be given to all the land owners of an award---Appellate court, powers of---Cross objection, filing of---Limitation---Condonation of delay---Referee Judge enhanced compensation amount from Rs.350,000/- per kanal to Rs.550,000/- per kanal which was further enhanced by the High Court to the tune of Rs.700,000/- per kanal---Validity---Market value of acquired land to the extent of claim of land owners had not been proved--- Judgment had to be given on the basis of concrete evidence but not on the surmises and conjectures---Compensation determined by the Referee Judge was not reasonable but same was reasonably determined and enhanced by the High Court---Respondent who had not gained knowledge of appeal could prefer cross objection within thirty days after due notice to him---Service was affected upon some of the respondents on 19-11-2011 and they filed cross objection on 22-12-2011---Cross objection had not been filed within time---Nothing had been mentioned in the cross objection with regard to knowledge/service or for condonation of delay---Cross objection could be filed before service of notice if it was otherwise in the knowledge of respondents that appeal had been filed and they had the notice of date of hearing---Appellate court had powers to grant relief to a non-appealing party if a proper case was made out---Benefit of judgment of High Court was liable to be extended to all the land owners notwithstanding the fact that cross objection of some land owners had been rejected on the ground of limitation---Similarly placed litigants deserved to be treated in the like manner when the award was the same and evidence on the basis of which compensation had been enhanced was also not different---Appellate Court had powers for granting relief to a non-appealing party in appeal if a proper case was made out---Impugned judgment passed by the High Court was modified in the terms that appellants whose cross objections were rejected would also be entitled to the compensation as determined by the High Court---Appeal was disposed of accordingly.

Abdul Rehman v. Military Estate Officer 1998 MLD 692; Naik Alam and 3 others v. Muhammad Yaseen and 13 others 1993 CLC 2174; Messrs Galadari Cement Gulf Ltd. v. District Judge Khuzdar and 6 others 1986 CLC 10; Syed Ghaus Bakhsh and others v. Land Acquisition Collector and others 2007 MLD 1315; North-West Frontier Province Government Peshawar through Collector Abbotabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others PLD 1933 SC 418; Messrs S.M. Yousuf and Brothers v. Mirza Muhammad Mehdi Pooya and another PLD 1965 SC 15; Muhammad Zafaryab and 2 others v. Malik Muhammad Iqbal and another 2000 YLR 1468 and Province of Punjab through Collector, Bahawalpur and another v. Abdul Majeed and 98 others 1997 SCMR 1692 ref.

Labhu Ram and others v. Ram Partap and others AIR (31) 1944 (Lahore 76)(FB); East India Hotels Ltd. v. Smt. Mahendra Kumari and another AIR 2008 Rajasthan 131; Province of West Pakistan through the Secretary, Revenue Department, Lahore and 2 others v. Associated Hotels of India Ltd. 1973 SCMR 367; Mst. Fazal Bi and 8 others v. Ghulam Hussain and 4 others 1980 CLC 789 and Sadaqat Ali Khan's case PLD 2010 SC 878 rel.

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

----O. XLI, R. 22---Appeal---Cross objection, filing of---Limitation---Respondent who had not gained knowledge of appeal could prefer cross objection within thirty days after due notice to him.

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

----O. XLI, R. 33---Appeal---Power of appellate court to grant relief to non-appealing party---Scope---Appellate court had powers to grant relief to a non-appealing party if a proper case was made out.

Abdul Latif, Advocate for Appellants (in Civil Appeal No.101 and 2016).

Raza Ali Khan, Advocate General for Respondents (in Civil Appeal No.101 and 2016).

Muhammad Shafi, Advocate for Appellants (in Civil Appeal No.134 and 2016).

Kh. Attaullah Chak and Miss Kokab Al-Sabah Roohi, Advocate for Respondents (in Civil Appeal No.134 and 2016).

Kh. Attaullah Chak, Advocate for Appellants (in Civil Appeal No.132 and 2017).

Raza Ali Khan, Advocate-General and Muhammad Shafi, Advocate for Respondents (in Civil Appeal No.132 and 2017).

Miss Kokab Al-Sabah Roohi, Advocate for Appellants (in Civil Appeal No.149 and 2016).

Kh. Attaullah Chak and Muhammad Shafi, Advocate for Respondents (in Civil Appeal No.149 and 2016).

Miss Kokab Al-Sabah Roohi, Advocate for Appellants (in Civil Appeal No.150 and 2016).

Abdul Latif, Advocate for Respondents (in Civil Appeal No.150 and 2016).

P L D 2018 Supreme Court (AJ&K) 31

Present: Ch. Muhammad Ibrahim Zia, C.J., Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

SHAHZAD RAUF---Appellant

Versus

SHABANA YASMIN---Respondent

Civil Appeal No.102 of 2017, decided on 19th May, 2017.

(On appeal from the judgment and decree of the Shariat Court, dated 4.8.2015 in Civil Appeal No.85 of 2014).

Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5---Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XIII, R. 3 ---Suit for dissolution of marriage, recovery of dower, dowry articles and maintenance---Dispute as to snatching of gold ornaments given to the plaintiff (wife) in lieu of dower---Jurisdiction , question of---Cruelty---Scope---Technical mistake in filing petition to leave to appeal to Supreme Court---Effect---Appellant (Ex-husband) contended that Family Court should have granted dissolution of marriage on basis of Khulla instead of on the basis of cruelty---Respondent (Ex-wife) contended that appeal was liable to be dismissed as original counsel of the appellant had not obtained the required copies---Validity---Record revealed that counsel for the appellant obtained the copies on the day, when he was engaged, however, the power-of-attorney was signed by him the next day---In the affidavits required to be attached with the petition for leave to appeal, the name of the counsel engaged by appellant before (AJ&K) Shariat Court was entered inadvertently, which was a human error as the required affidavits were of the original counsel---Entering the name of other counsel who was actually counsel for the petitioner before the Shariat Court did not render the petition for leave to appeal/appeal incompetent---With the establishment of the Family Court , the jurisdiction of civil court was excluded---Supreme Court observed that the dower once fixed between the parties would remain as dower and would not change into civil liability in case the same was snatched by the husband from the wife---Dower , if paid to the wife and snatched by the husband , would automatically restore its liability to repay the same and the matter would be triable by the Family Court alone---If any dispute arose, in respect of property given in lieu of the dower, with any person other than the husband or the guarantor, then the case would be decided by the civil court---Respondent (ex-wife) had taken a categorical stand about the conduct of the husband making her life miserable , which had not been rebutted---Neither any evidence had been led by the appellant in rebuttal nor the statement of the respondent had been cross-examined, hence the decree of dissolution of marriage on the ground of cruelty had rightly been granted by the Family Court---Respondent (wife) left the house of her husband due to cruel treatment, therefore, it was obligatory for the husband to pay her maintenance----No illegality or infirmity having been noticed in granting decree for dowry articles, appeal was dismissed. Benazir v. Khalil Ahmed and 2 others (Civil Appeal No.285/2014, decided on 26-3-2015 overruled.

Ghulam Mohi-ud-Din and another v. Noor Dad and 4 others PLD 1988 SC(AJ&K) 42; Fozia Hussain Abbasi v. The Nomination Board through Chairman and 4 others 1995 CLC 1761; Nargis Begum and 5 others v. M uhammad Ibrahim and others 1983 CLC 2923; Muhammad Munshi and others v. Mst. Rakiya Bi 1990 CLC 301; Muhammad Tariq v. Mst. Shaheen and 2 others PLD 2006 Pesh. 189;Muhammad Ajaib v. Tasleem Wakeel 2013 MLD 305; Liaquat Ali v. Additional District Judge, Narowal and 2 others 1997 SCMR 1122; Mst. Razia Begum v. Jang Baz and 3 others 2012 CLC 105 and Ayesha Bibi v. Muhammad Faisal and 2 others PLD 2014 Lah. 498 ref.

Benazir v. Khalil Ahmed and 2 others (Civil Appeal No.285/2014, decided on 26-3-2015 overruled.

Sardar Muhammad Ejaz Khan, Advocate for Appellant.

Sardar Shamshad Hussain Khan, Advocate for Respondent.

P L D 2018 Supreme Court (AJ&K) 44

Present: Ch. Muhammad Ibrahim Zia, C.J. and Sardar Abdul Hameed Khan, J

ABDUL HAMEED KHAN---Appellant

Versus

KALSOOM BIBI and 11 others---Respondents

Civil Appeal No.9 of 2018, decided on 20th February, 2018.

(On appeal from the order of the High Court dated 27-9-2017 in Application No.29 of 2017).

Civil Procedure Code (V of 1908)---

----O. XLI, R. 19---Appeal, re-admission of---Limitation---Sufficient cause---Appeal was dismissed having not been pressed---Application for re-admission of appeal was moved which was barred by time for one year and three months---Contention of appellant was that neither any junior was directed by the counsel to represent the appellant nor his name was mentioned in the dismissal order---Counsel had no knowledge of dismissal order---On appellant's return to Pakistan he got knowledge of the dismissal order and filed application for re-admission of the appeal---Validity---Held, no legally acceptable sufficient cause for non-appearance and filing of application after a period of one year and three month was brought on record---Appeal was dismissed in circumstances.

M. Nadeem Raja, Adovocate for Appellant.

Hafiz Fazal ur Rehman Dar and Ch. Rashid Rasheed for Respondents.

P L D 2018 Supreme Court (AJ&K) 47

Present: Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

GHULAM RASOOL SHAH---Appellant

Versus

Mst. FATIMA BIBI and 9 others---Respondents

Civil Appeal No.268 of 2017, decided on 30th May, 2018.

(On appeal from the judgment of the High Court dated 26-10-2017 in Civil Appeal No.104 of 2012).

Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) ---

----Ss. 4, 6 & 20---Azad Jammu and Kashmir Supreme Court Rules, 1978, O. XLIII, Rr. 4 & 5---Suit for right of prior purchase (pre-emption)---Inherent powers of Supreme Court---Scope---Trial Court dismissed suit for want of cause of action on the ground that both the parties were co-sharers but Appellate Court decreed the suit---High Court set aside judgment and decree passed by the Appellate Court to the extent of half suit land---Validity---Pre-emptor as well as vendee were co-sharer in the disputed Khewat---Conclusion drawn by the Trial Court was based on proper appreciation of record---Appellate Court had relied upon oral evidence which could not be given preference over the documentary evidence---Findings recorded by the Trial Court could not be reversed on the basis of oral evidence---Vendee had not challenged the judgment and decree passed by the High Court through cross appeal---Supreme Court had inherent powers and could pass any judgment and order which ought to have been passed or made by the Courts below---Impugned judgment passed by the High Court was nullity in the eye of law which was set aside---Appeal filed before the High Court by the vendee was accepted and judgment rendered by the Appellate Court was recalled and judgment and decree passed by the Trial Court were restored---Appeal was allowed in circumstances.

Mehmood Hussain v. Ejaz Hussain Shah and another 1992 SCR 13 and Muhammad Ilyas v. Ali Asghar and 7 others 2003 SCR 520 ref.

Abdul Razzaq Chaudhry, Advocate for Appellant.

Raja Khalid Mehmood Khan, Advocate for Respondents.

P L D 2018 Supreme Court (AJ&K) 53

Present: Raja Saeed Akram Khan, J

MUJAHID HUSSAIN NAQVI, FORMER SECRETARY TO GOVERNMENT---Petitioner

Versus

AZAD KASHMIR GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 3 others---Respondents

Civil Review Petition No.2 of 2016, decided on 13th April, 2018.

(In the matter of review from the judgment of this Court dated 25-11-2015 in Civil Miscellaneous No.429 of 2014).

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

----Ss. 42-D & 42-A---Azad Jammu and Kashmir Supreme Court Rules, 1978, O. XLVI, Rr. 9 & 1 & O. XLIII, Rr. 1 to 5---Review of judgment by the Supreme Court---'Complete justice'---Scope---Petitioner moved application before Supreme Court against its judgment for extending any relief for "complete justice" but same was dismissed---Validity---Petitioner had moved a baseless application and sought review of a judgment which had attained finality---Supreme Court for doing "complete justice" might review its judgments/orders but "complete justice" did not mean that the Court, just to satisfy a party/person, might contravene the law and reopen the case which had been decided in accordance with law and had attained finality---Supreme Court had to decide the cases keeping in view the facts as well as the law applicable and could not go beyond the parameters/limitations determined by law---Points raised by the petitioner had already been considered and resolved by the Court while passing judgment under review---Petitioner had not been condemned unheard in circumstances---Review petition was dismissed in circumstances.

Sangram Singh v. Election Tribunal Kotach and another AIR 1955 SC 425 and Mujahid Hussain Naqvi v. Azad Government and others PLD 2007 SC (AJ&K) 92 distinguished.

University of AJ&K Muzaffarabad v. Engineer Muhammad Khalid 2004 SCR 84 and Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and another PLD 1962 SC 335 rel.

Petitioner in person.

Asghar Ali Malik, Advocate for Respondents.