PLD 2019 Judgments

P L D 2019 Federal Shariat Court 1

Present: Mehmood Maqbool Bajwa and Shaukat Ali Rakhshani, JJ

FAIZ MUHAMMD KHAN and others---Appellants

Versus

The STATE through Additional Advocate-General, Khyber Pakhtunkhwa and others---Respondents

Appeals Nos. 9-I and 11-I of 2018, decided on 8th October, 2018.

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

----Ss. 396 & 452---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Anti-Terrorism Act (XXVII of 1997), Ss.7(a) & 21-L---Criminal Procedure Code (V of 1898), Ss.221, 233, 237 & 537---Dacoity with murder, house-trespass after preparation for hurt, assault or wrongful restraint, haraabah, act of terrorism, abscondance---Appreciation of evidence---Charge against accused persons, was framed under Ss.396, 452, P.P.C., under S.17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and S.7(a) of Anti-Terrorism Act, 1997, but they were convicted and sentenced under S.21-L of Anti-Terrorism Act, 1997, despite omission to frame charge under said provisions of law; while accused persons were acquitted in all other heads of charge---Validity---Omission to frame charge was fatal, going to the root of the case, causing prejudice to accused persons, resulting in mis-carriage of justice---Inability on the part of the Trial Court to frame charge, not only offended the provisions of S.233, but that of S.221, Cr.P.C.---Inability on the part of Trial Court to frame charge was strong circumstance to be considered for acceptance of appeal, which was also violative of Arts.9 & 10(1) of the Constitution---Section 537(b), Cr.P.C., was also of little help to the prosecution, because it dealt with any error, omission or irregularity in the mode of trial including mis-joinder of charges; same could not be applied to an infringement of statutory compulsion---Section 237, Cr.P.C., which was controlled by S.236, Cr.P.C., was an exception to the general rule that a person could not be convicted of an offence of which he was not charged and of which he had no notice---Provisions of S.237, Cr.P.C., could not be invoked for a distinct offence, or for an offence which fell under different penal statute---In order to declare a person, proclaimed offender it was necessary that factum of issuance of coercive measures, including the proclamation, must be in the knowledge of person who was intentionally avoiding his arrest or evading process---Evidence of abscondance, if any, produced by the prosecution, could not be taken into consideration against accused---Natural consequences would be that it would be considered a case of no evidence against said accused on factual premises, besides suffering from legal infirmities---Opinion of the Trial Court, recording guilt of accused persons under S.21-L of Anti-Terrorism Act, 1997 could not be endorsed on legal as well as factual premises, resulting in quashing of conviction and sentences awarded to them.

Haq Nawaz and others v. The State and others 2000 SCMR 785; Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889; M. Younus Habib v. The State PLD 2006 SC 153; Arbab Khan v. The State 2010 SCMR 755; Khan Zado alias Ketoo Sab Zoi v. The State 2015 PCr.LJ 1561; Zahid Shahzad and others v. The State 1981 PCr.LJ 844; Nemai Adak and others v. The State AIR 1965 Cal. 89; Istahar Khondhar and others v. Emperor AIR 1936 Cal. 796; Chhanga Khan v. The State AIR 1956 Allahabad 69; Sohail Zia Butt v. The State 2011 PCr.LJ 2 and Mian Qrban Ali v. The State through Director-General, NAB 2015 PCr.LJ 1787 ref.

(b) Administration of justice---

----Fundamental principle of criminal administration of justice was that a person against whom there was accusation, when put to face the trial, must be briefed in explicit terms the nature of allegations with which he had to face the trial, so that he could be able to prepare his defence and reply.

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

----S. 32---Criminal Procedure Code (V of 1898), Chap. XIX [Ss. 221 to 240]---Framing of charge---Trial before Anti-Terrosim Court---Overriding effect of Anti-Terrorism Act, 1997---Chapter XIX, Cr.P.C., dealt with framing of charge and Anti-Terrorism Act, 1997 provided the procedure to conduct the trial---Section 32 of Anti-Terrorism Act, 1997 provided that the provisions of Cr.P.C., which were not inconsistent with Anti-Terrorism Act, 1997, would be applied to the proceedings before Anti-Terrorism Court in order to conduct the trial.

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

----S. 221---Framing of charge---Object and purpose ---Charge was the foundation of criminal trial and was precise formulation of allegations made against a person---Very purpose and object of charge was to provide awareness to accused about the exact nature of the accusation, enabling him to give proper reply, prepare defence, ruling out element of misleading, causing prejudice to his interest---Accused could only be convicted on proof of particular offences disclosed (subject to certain exceptions) and not for the offences regarding which charge had not been framed.

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

----S. 342---Power to examine accused---Scope---Section 342, Cr.P.C., could be classified into two parts: First part was discretionary in nature, vesting jurisdiction in the court to put questions to accused at any stage of inquiry or trial, without previous warning, but later part of said provision, cast duty upon the court to put incriminating evidence produced by the prosecution during the course of trial "for the purpose of enabling accused to explain any circumstances appearing in the evidence against him"---Purpose and object of confronting accused with incriminating evidence, simultaneously suggesting that, if evidence suggesting his involvement in the commission of crime, was not put to him, it could not be used as evidence against him---Failure to confront would make it impossible for accused to explain the circumstances appearing in the evidence and same based on the principle of "audi alteram partem".

Asif Ali Zardari and another v. The State PLD 2001 SC 568; S.A.K. Rehmani v. The State 2005 SCMR 364; Muhammad Shah v. The State 2010 SCMR 1009; Qaddan and others v. The State 2017 SCMR 148 and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 ref.

Sheikh Tahir Aslam Khan for Appellant (in Appeal No.9-I of 2018).

Sher Aman for Appellant (in Appeal No.11-I of 2018).

Wilayat Khan, Assistant Advocate General, Khyber Pakhtunkhwa for the State.

Muhammad Arif Khan for Respondent No.2.

P L D 2019 Federal Shariat Court 13

Before Mehmood Maqbool Bajwa, J

FAREHA BOKHARI---Petitioner

Versus

THE STATE and others---Respondents

Revision Petition No.1-L of 2019, decided on 15th April, 2019.

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

----S. 3---Qazf---Scope and meaning---Allegation of Zina---To constitute the offence (of Qazf), there must be an imputation of "Zina" against any person with an intention or having reason to believe that such imputation would harm the reputation or hurt the feeling of such person---Imputation may be by words spoken or intended to be read; it may be either made or published; and, it was not necessary that imputation must be direct---Allegation by sign or visible representation leaving no doubt in the mind about the allegation of "Zina" would also fall within the mischief of the provision of S.3 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.

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

----Ss. 3 & 17---Qazf---Criminal Procedure Code (V of 1898), S. 204---'Sufficient grounds' for proceedings against accused---Interpretation and meaning---Prior to issue of process against a person complained of, the Court taking cognizance had to formulate an opinion about sufficient grounds for proceeding---Expression "sufficient ground" used in S.204, Cr.P.C meant availability of facts or evidence prima facie constituting an offence,enabling the Court to procure attendance of person against whom there was accusation---However, in view of the use of expression "mutatis mutandis", in S.17 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, regarding the applicability of the provision of the Criminal Procedure Code, 1898 and keeping in view the nature of offence, defined by "GOD made law", (Divine law), which was not subject to any addition, alteration or omission, the expression "sufficient ground"had to be construed strictly.

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

----S. 3---Qazf---Criminal Procedure Code (V of 1898), S. 204---'Sufficient grounds' for proceedings against accused --- Factors to be taken into consideration while determining question of "sufficient ground" provided.

Following are the factors that were to be taken into consideration while determining question of "sufficient ground":

(i) Evidence led must substantiate the requisite ingredients of offence;

(ii) Interpretation of a particular word used in common parlance had to be made on the touchstone of commandment of Holy Quran and Sunna (S.A.W);

(iii) General perception about the meaning of an objectionable expression could not be taken into consideration;

(iv) In case of possibility of various meanings of an objectionable word, premium had to be granted to the person complained of; and

(v) Questionable remark, may harm the reputation and feeling of a person but by itself would not be sufficient to constitute offence of "Qazf" and in such a case appropriate remedy under any other law, if provided could be availed.

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

----S. 3---Qazf---Words ( ) used against a woman in a document---Whether use of such words was "sufficient ground" for proceeding against the accused---Dictionary meaning assigned to the word ( ) by no stretch of imagination could be equated with the allegation of "Zina"---No doubt, one of the meaning of the word ( ) was ( ) (bad character) but even application of said meaning would not make out a prima facie case in order to formulate opinion about the availability of "sufficient ground" for proceeding against the accused---Word ( ) could not be construed as attribution of "Zina" with precision in all eventualities---Impression ( ) had multiple dimensions to it and could not be confined to the meaning canvassed by the respondent-lady---Trial Court completely ignored the parameters for summoning the accused---Complaint filed by the respondent was dismissed---Revision petition was allowed accordingly.

Syed Ali Haider Jafari v. Mst. Shabana Naz and another 2002 PCr.LJ 934 ref.

Ch. Muhammad Lehrasib Khan Gondal for Petitioner.

Asif Miran for Respondent No.2.

Ali Hassan, District Public Prosecutor for the State.

P L D 2019 Federal Shariat Court 21

Present: Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

THE STATE through Advocate-General, Khyber Pakhtunkhwa, Peshawar---Appellant

Versus

FAYAZ KHAN---Respondent

Criminal Appeal No.5/P of 2019, decided on 11th April, 2019.

(a) Prohibition (Enforcement of Hadd), Order (4 of 1979)---

----Arts. 3 & 4---Manufacturing, owning or possessing intoxicant---Appreciation of evidence---Appeal against acquittal---Prosecution case was that accused was holding in his hands two canisters of local made liquor (20 and 30 litres in volume respectively)---Five m.l. was separated from each canister for Forensic Science Laboratory---Record showed that police had not been able to recover any sale proceed from the accused to establish as to whether he was selling the liquor in a populated area---Despite having advance spy information, police did not accompany any private person to witness the recovery of intoxicant in compliance of S.103, Cr.P.C---Complainant did not state that inhabitants of the locality gathered at the spot were found unwilling or refused to record their evidence---No evidence with regard to the offence under Art.4 of Prohibition (Enforcement of Hadd) Order, 1979 was available, though the accused had been shown involved in many cases but admittedly, he was not previously convicted---No efforts had been taken by the police to trace or locate the manufacturer, importer, exporter or processor of recovered intoxicant and at the most the accused was a carrier---Both memos of recovery and arrest bore the FIR number, though admittedly both the mentioned documents were allegedly prepared at the place of occurrence, prior to registration of FIR---Such fact revealed that memos of recovery and arrest were prepared after registration of the FIR, therefore, no legal sanctity could be attached to such documents, prepared after registration of crime report---Two samples of liquor measuring 5 ml each allegedly collected from both recovered canisters, were dispatched to the Chemical Examiner after inordinate delay of four days without any explanation---Case of the prosecution was that the accused was reportedly selling intoxicant but no evidence with regard to selling of contraband liquor had been collected by police---Marginal witness of recovery memo had stated that the parcels as mentioned in the recovery memos had not been prepared in his presence which would suggest that neither any recovery had been made nor the alleged parcels had been prepared for Forensic Science Laboratory for examination---Said discrepancies and material contradictions created reasonable doubts and dents in the prosecution case with regard to the recovery of alleged contraband intoxication/liquor---Circumstances established that conviction could not be based on high probabilities and suspicion could not take place of the proof---Sufficient reasonable doubts in the prosecution case existed, therefore, impugned judgment of acquittal did not warrant interference of the court---Appeal was dismissed in circumstances.

(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3 & 4---Criminal Procedure Code (V of 1898), S. 103---Manufacturing, owning or possessing intoxicant---Search to be made in presence of witness---Appreciation of evidence---If recovery of contraband or any other incriminating article was to be made on public thoroughfare/bus stand/bazaar or similar public places, the witnesses picked up by the police from the road could be proper witnesses of recovery depending upon the facts and circumstance of the case---However, in order to ensure proper investigation and clear proof preference should be given to the witnesses of the locality, particularly witnesses who were respectable---If witnesses were not of the locality, the court was to cautiously examine their statements.

Abdul Rashid v. State PLD 1975 Kar. 92; Ballia and others v. State 1985 SCMR 854; Nasrallah and another v. State 1977 PCr.LJ 132; Rahmat v. State PLD 1976 Lah. 1444; Muhammad Shafi and others v. State PLD 1967 SC 167; Muhammad Khan v. Dost Muhammad PLD 1975 SC 607; Afzal v. State 1983 SCMR 1; Niaz Muhammad alias Jaja and another v. State PLD 1983 SC (AJ&K) 211; Malik Aman v. State 1986 SCMR 17; Sultan and others v. State 1987 SCMR 1177; Khair Gul v. State 1989 SCMR 491 and State v. Abba Ali Shah PLD 1988 Kar. 409. rel.

(c) Appeal against acquittal---

----Presumption of innocence---Scope---Accused earned double presumption of innocence with the acquittal, firstly, till found guilty he had to be considered innocent, and secondly, after his acquittal by Trial Court further confirmed the presumption of innocence.

2012 PCr.LJ 1699; 2013 YLR 223; 2011 PCr.LJ 1234; 2013 PCr.LJ 374 and 2002 SCMR 713 rel.

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

----S. 417---Appeal against acquittal---Scope---Appellate court by exercising its powers under S.417 Cr.P.C, could interfere only if the order of acquittal was based on misreading, non-appraisal of evidence or/was speculative, artificial, arbitrary and foolish.

2008 MLD 1007; 2002 MLD 293 and 2000 YLR 190 rel.

Walayat Khan, Assistant Advocate-General, Khyber Pakhtunkhwa for the State.

P L D 2019 Federal Shariat Court 27

Before Dr. Fida Muhammad Khan and Mehmood Maqbool Bajwa, JJ

Mst. KAUSAR BIBI---Appellant

Versus

The STATE and 5 others---Respondents

Criminal Appeal No. 1-L of 2017, decided on 30th April, 2019.

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

----S. 265-K---Power of court to acquit accused at any stage---Scope---Provisions of S. 265-K, Cr.P.C. though could not be used to deprive the prosecution of opportunity to lead evidence but nevertheless, power could be exercised at any stage, if there was no probability of conviction of the accused.

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

----Ss. 10 & 11---Penal Code (XLV of 1860), Ss. 371-A & 371-B---Criminal Procedure Code (V of 1898), S.265-K---Hurt and Zina-bil-jabr, selling and buying person for purpose of prostitution---Power of court to acquit accused at any stage---Application for acquittal was accepted---Allegation against accused-respondents was that they abducted the daughter of complainant for the purpose of zina---After the death of victim, accused made an application under S. 265-K Cr.P.C., pleading no probability of their conviction due to death of victim, which after due notice was accepted---Validity---Record showed that cursory statement of the victim was recorded on 11th August, 2008, though occurrence took place in April, 2006---Appellant had alleged that cursory statement of the victim could be treated as dying declaration as the victim made statement disclosing cause and circumstances of homicide---If deceased himself/herself lodged FIR, that could be treated as dying declaration after his/her death---Cursory statement of the victim could not be treated as dying declaration---In the present case, cursory statement of appellant was nothing but hearsay---Appellant deposed what was told to her by other witnesses---Statements of two witnesses, seeing the victim in the company of accused in white colour vehicle were not sufficient to cover the case within ambit of S. 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Bald statement of appellant without disclosing source of information about the sale of victim, name of the seller would not be sufficient to cover the case within the mischief of Ss.371-A & 371-B, P.P.C.---Contention raised on behalf of appellant to decide the fate of the case after recording evidence of appellant and the witnesses, in circumstances, was without force as there would be no likelihood of conviction of the accused---Appeal being without force was dismissed, in circumstances.

Mushtaq Ahmad and another v. The State 1973 PCr.LJ 1075; Bashir Ahmad and others v. The State and others 2006 PCr.LJ 662 Sirajuddin v. The State 1990 SCMR 588 and Niaz Ahmad v. The State PLD 2003 SC 635 rel.

Mian Tariq Saeed Salotra for Appellant.

Ghulam Abbas Gondal, Deputy Prosecutor-General, Punjab for the State.

Mehram Ali Bali for Respondents Nos.2 to 6.

Date of hearing: 9th April, 2019.

P L D 2019 High Court (AJ&K) 1

Before Raja Sajjad Ahmad Khan, J

MOHAMMAD IQBAL KHAN and another---Appellants

Versus

PUBLIC-AT-LARGE and another---Respondents

Family Appeal No.181 of 2018, decided on 7th March, 2019.

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

----Ss. 25 & 7---Custody of minors---Welfare of minor---Second marriage of father---Scope---Appellant/father assailed order passed by Guardian Judge whereby his application for custody of minors was dismissed---Validity---Minors had remained with their mother from childhood; therefore, they were more familiar and akin to their mother as compared to the father---Father had contracted second marriage; and he, being a blind person with no source of income could not himself look after minor children---Minors would ultimately remain at the mercy of their step-mother, who could not be a substitute of a real mother having natural love and affection for her children---Female child naturally needed the company and association of mother---Male child, even if he had crossed the age of seven years, also needed the same atmosphere, especially when he throughout the period had been living with his mother---Mother had been looking after the minors in an appropriate manner while male child was studying in a school---Nothing had been brought on record indicating that the minors were being brought up and looked after in a bad manner---Appeal was dismissed.

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

----Ss. 25 & 7---Custody of minors---Welfare of minor---Scope---Paramount consideration, while deciding the question of custody of minors, is their welfare which has to be seen in view of their age, sex and religion---Personal law is also to be taken into consideration.

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

----S. 25---Custody of minors---Relationship with minor---Scope---Mere relationship of minor with applicant is not sufficient to hand over his custody.

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

----Ss. 25 & 7---Custody of minors---Welfare of minor---Second marriage by father---Where father has opted for second marriage, lived and enjoyed his life with his second wife, it is paramount duty of the court to see convenience and welfare of the minors.

Raja Nasir Latif Khan for Appellants.

P L D 2019 High Court (AJ&K) 5

Before Raza Ali Khan, J

MUHAMMAD ANSAR CHAUDHARY---Appellant

Versus

MAIDA ZAHOOR---Respondent

Family Appeal No.8 of 2018, decided on 29th October, 2018.

Dissolution of Muslim Marriages Act (VIII of 1939)---

----S. 2(iv)---Dissolution of marriage---Grounds---Non-performance of marital obligations---Scope---Appellant assailed the decree passed by Family Court whereby it had dissolved the marriage on the ground of non-performance of matrimonial obligations by the husband for four years and dismissed the suit regarding cruelty and non-payment of maintenance---Validity---Appellant had not performed his marital obligations from 2012 to 2016---Said fact was admitted by witnesses produced by appellant as well as appellant himself that he went abroad on 8/3/2012 and came back to Pakistan in 2017---Man who intentionally neglected his wife's physical needs was not only abandoning his obligations, but also manifested a lack of understanding of the true nature of what Islam entailed in practice---Husband was duty bound to fulfill the matrimonial obligations of his wife and he could not neglect her without any genuine reasons or excuse from performing marital obligations---Trial Court had rightly appreciated the evidence and reached at just and proper conclusion---Appeal was dismissed.

Holy Quran-e-Kareem Surahs 4.19; 2.228; Jamia Tirmazi, Jild Awal p.138, Hadis No.1162 and Sahi-ul-Bukhari Jild Doim Hadis No.5199, p.783 rel.

Ch. Liaqat Ali for Appellant.

P L D 2019 High Court (AJ&K) 9

Before Raja Sajjad Ahmad Khan, J

MOHAMMAD SALEEM---Petitioiner

Versus

AAMIR and others---Respondents

Criminal Appeal No.95 of 2017, Criminal Miscellaneous Application No.19 of 2017 and Criminal Revision Petition No.39 of 2017, decided on 14th February, 2019.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324, 341, 337-A, 337-F, 147, 148, 149, 109 & 427---Attempt to commit qatl-e-amd, wrongful restraint, shajjah, ghayr-jaifah, rioting, armed with deadly weapon, common object, abetment and mischief causing damage to the amount of fifty rupees---Application for cancellation of bail---Further inquiry---Completion of investigation---Scope---Complainant sought cancellation of pre-arrest/post-arrest bail granted to accused persons---Validity---No evidence of misuse of the concession of bail was available---Accused persons were nominated in the first information report (FIR) but prima facie case against accused persons required further inquiry---Challan had been submitted after completion of investigation, meaning thereby that the accused persons were not required by the police for the purpose of investigation and accused could not be handed over to the police---One of the accused persons who was granted pre-arrest bail was nominated in the FIR, but no specific role in the occurrence was attributed to him while his role was described by witnesses in their statements recorded under S.161, Cr.P.C.---Bail could not be withheld as punishment---Applications for cancellation of bail were dismissed in circumstances..

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

----S. 498---Pre-arrest bail---Principles---Pre-arrest bail is an extra-ordinary relief which can only be granted in extraordinary circumstances and the same cannot be allowed unless the accused satisfies the court that the case against him is based on ulterior motives or where no offence is shown to have been committed on the very face of record.

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

----Ss. 497 & 498---Post arrest bail---Change of circumstances---Scope---Pre-arrest bail disallowed by superior court on merits precludes the lower court from accepting post arrest bail without change of circumstances.

1996 SCR 25 and 28 ref.

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

----Ss.497 & 497(5)---Bail, cancellation of---Principles---Considerations for grant and refusal of bail are altogether different---Once bail is granted by a court of competent jurisdiction, strong and exceptional grounds would be required for cancellation thereof.

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

----S. 497---Bail---Appeal---No appeal is competent against order passed on a bail application.

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

----S. 497---Azad Jammu and Kashmir Islami (Tezeerati) Qawaneen act, 1934, Preamble---Bail---Scheme of Code of Criminal Procedure, 1898 in respect of bail matters is applicable to the cases of Islami Tazeerati Quanaeen and Nifaz Act. 1974.

Mohammad Bashir v.The State PLD 1992 SC(AJ&K) 14 ref.

Ch. Mohammad Riaz Alam and Kamran Taj for Petitioner.

Raja Sohail Shamim, A.A.G. for the State.

P L D 2019 High Court (AJ&K) 14

Before Azhar Saleem Babar, J

Messrs BANK AL-HABIB LIMITED through Branch Manager and 14 others---Petitioners

Versus

AZAD JAMMU AND KASHMIR EHTESAB BUREAU, MIRPUR through Chairman and 7 others---Respondents

Writ Petition No.375 of 2008, decided on 11th February, 2019.

(a) Azad Jammu and Kashmir Ehtesab Bureau Act (I of 2001)---

----S. 2(ii)---Jurisdiction of the Azad Jammu and Kashmir Ehtesab Bureau----Forgery of signatures on documents by Bank/Financial Institution---Petitioner Bank, inter alia, sought that all proceedings initiated against it, including by the Azad Jammu and Kashmir Ehtesab Bureau, be declared without lawful jurisdiction---Contention of petitioner, inter alia, was that it liquidated the foreign exchange bank account of respondent in view of its default to pay back loan according to the process notified by the State Bank of Pakistan---Validity---Contents of the inquiry conducted into the matter by the Azad Jammu and Kashmir Ehtesab Bureau and Federal Investigation Authority revealed that signatures of the respondent were in fact forged by the petitioner Bank---Petitioner Bank, if it all was authorized to liquidate foreign currency of respondent customer in view of directive of State Bank of Pakistan, even then the same could not have been done by committing forgery, therefore contention that the petitioner Bank was authorized to adjust loan of respondent was not tenable---Objection against jurisdiction of the Azad Jammu and Kashmir Ehtesab Bureau in the present matter was untenable as under S.2(ii) of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, said Act shall effect notwithstanding anything contained in any other law and all offences committed after 01.01.1985 had been made triable under the said Act---High Court observed that investigation into officials of the petitioner bank by Azad Jammu and Kashmir Ehtesab Bureau could not be restrained---Writ Petition was dismissed, in circumstances.

Ehtesab Bureau v. Abid Hussain and 3 others decided on 8-9-2014 ref.

PLD 2009 Kar. 638 distinguished.

(b) Administration of justice---

----Continuation of civil suit was no bar to criminal proceedings even if both cases related to the same subject.

2007 MLD 1505 and PLD 208 Lah. 358 rel.

Raja Mohammad Hanif Khan for Petitioners.

Kh. Ansar Ahmed for Respondent No.4.

DCP for Ehtesab Bureau.

P L D 2019 High Court (AJ&K) 20

Before Raza Ali Khan, J

MUHAMMAD MUBASHER TUFAIL---Petitioner

Versus

GOVERNMENT OF AZAD JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 12 others---Respondents

Writ Petition No.119 of 2018, decided on 19th June, 2019.

Azad Jammu and Kashmir Industrial Relations Act (XXII of 2017)---

----S. 54---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Constitution of National Industrial Relations Commission---Scope---Petitioner solicited direction to the authorities for constitution of Commission under S. 54 of Industrial Relations Act, 2017---Validity---Government was enjoined upon to constitute a Commission to perform functions mentioned in S. 55 of Industrial Relations Act, 2017---Writ petition was disposed of with the direction to constitute National Industrial Relations Commission within a period of 3 months.

Mehmood Akhtar Qureshi for Petitioner.

Shoukat Ali Chaudhary for Respondents Nos. 2 to 11.

P L D 2019 High Court (AJ&K 23

Before M. Tabassum Aftab Alvi, C.J. and Muhammad Sheraz Kiani, J

NIZAM-UD-DIN and 3 others---Appellants

Versus

The STATE through Advocate General, AJ&K, Muzaffarabad---Respondent

Criminal Appeal No.22 of 2005, decided on 15th May, 2019.

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

----Ss. 420, 467, 468, 471 & 511---Cheating and dishonestly inducing delivery of property, forgery of valuable security, forgery for purpose of cheating, using as genuine a forged document, attempt to commit offence---Appreciation of evidence---Prosecution case was that the accused party by playing fraud prepared a forged Mail Transfer Advice amounting to Rs. 93,96,000/- and made inglorious attempt to cause huge loss/damage to the Bank---Accused were convicted and sentenced---After pronouncement of the said judgment, accused were put in District Prison, who filed the present appeal through counsel---During earthquake in year 2005, due to collapse of prison building, they fled away; since then nobody was appearing on behalf of appellants-convicts---Appeal was pending since 2005---Court had tried its level best to procure attendance of appellants-convicts through summons, bailable warrants and even non-bailable warrants were also issued but all in vain---Whereabouts of accused-appellants were not found at the given addresses since pendency of appeal---Accused-appellants, during earthquake in year 2005, deliberately left territory of AJ&K and had not surrendered before High Court for the last 14 years---If accused after trial found guilty and sentenced, filed appeal but absented himself, he had no right of appeal---Appeal stood dismissed.

Sikandar and others v. The State 2001 MLD 300 rel.

(b) Criminal trial---

----Absconder---Entitlement to relief---Scope---Person who was fugitive from law and did not surrender, would deprive himself of the relief claimed.

Hayat Bakhsh and others v. The State PLD 1981 SC 265 rel.

Nemo for Appellants.

P L D 2019 High Court (AJ&K) 28

Before Raza Ali Khan, J

Syed IFTIKHAR HUSSAIN GILLANI---Petitioner

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, through Chief Secretary, Muzaffarabad and 5 others---Respondents

Writ Petition No.1956 of 2018, decided on 27th March, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 523, 550 & 516-A---Seizure of non-customs paid vehicle, without Registration Book and title of ownership by Police under Ss.550/523, Cr.P.C.---Superdari of vehicle, refusal of---Petitioner applied for supurdari of the vehicle but the Magistrate rejected the application and District Judge rejected the revision by the petitioner---Contention of petitioner was that Police had no jurisdiction to seize the vehicle under S.550/523 Cr.P.C. merely on the ground that the same was "non-customs paid", therefore, the action of the police to seize the vehicle of the petitioner and the rejection of application by Magistrate and dismissal of revision petition by District Judge was illegal and without lawful authority---Validity---Under the Customs Act, 1969, holding of non-customs paid vehicle was an offence and it could not be said that such vehicles could not be confiscated by the police---Section 550 Cr.P.C. empowered the police to seize property suspected to be stolen---Non-customs paid vehicle, without Registration Book and title of ownership, could be confiscated by the police under S.550 Cr.P.C.---After seizure of property suspected to have been stolen, or found under circumstances which created suspicion of the commission of offence, was provided under S.523 Cr.P.C.---Under S.523, Cr.P.C.seized property would be forthwith reported to Magistrate, who would make such order as he thinks fit respecting the disposal of such property to the person entitled to possession thereof---Under subsection (2) of S.523 Cr.P.C., if the person entitled to possession was unknown, the Magistrate might detain the same and would issue proclamation requiring any person who might have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation---Under S.524 Cr.P.C. if no person had established his claim to such property within the period of six months, such property would be at the disposal of the Provincial Government and could be sold---Petitioner remained unable to submit any valid ground justifying interference by High Court in presence of concurrent findings of both the courts below, while exercising extraordinary writ jurisdiction---Finding no substance in the writ petition same was dismissed accordingly.

Kabir Hussain v. State 2002 PCr.LJ 1104 rel.

Syed Hazoor Imam Kazmi for Petitioner.

P L D 2019 High Court (AJ&K) 33

[Shariat Appellate Bench]

Before Raza Ali Khan, J

The STATE through Additional Advocate-General---Petitioner

Versus

ZARYAT KHAN and 4 others---Respondents

Revision Petition No.182 of 2017, decided on 23rd April, 2019.

Criminal Procedure Code (V of 1898)---

----S. 72---Service of summons---Government servants---Prosecution witnesses were government servants---Proper procedure to served process through their respective officers---Evidence of two prosecution witnesses was closed on the ground that the prosecution had failed to produce them despite sufficient opportunities---Validity---Admittedly, witnesses were Police Officials and were in service of the State---Trial Court did not summon them through the Head of the Department---Section 72, Cr.P.C., provided that the court should issue summon ordinarily to the Head of the office in which such person was employed---Trial court before passing the impugned order having not applied the procedure provided by law was directed by the High Court to summon the witnesses through Head of the office in which they were employed.

The State v. Bagh Hussain and others 1980 PCr.LJ 86 rel.

Assistant Advocate-General for the State.

P L D 2019 High Court (AJ&K) 35

[Shariat Appellate Bench]

Before Raza Ali Khan, J

MUHAMMAD ASGHAR---Petitioner

Versus

HAMZA ILYAS and 3 others---Respondents

Revision Petition No.17 of 2019, decided on 13th May, 2019.

Criminal Procedure Code (V of 1898)---

----S. 94---Application for submitting documents along with challan was dismissed---Scope---Complainant had alleged in the FIR that motive of the occurrence was dispute over land and to prove the same---Documents sought to be placed on record were necessary---Validity---Section 94 Cr.P.C. had described that if the production of any document was necessary or desirable for the purposes of any trial by or before any court, such court might issue summons to the person in whose possession or power such document was believed to be, requiring him to attend and produce the same at the time and place stated in the summons---Such power could be exercised by the court at any stage of trial before the judgment was delivered---Court must exercise the power if production of document was necessary and desirable for proper decision and administration of justice---No bar for the court to permit a document to be taken on record irrespective of fact that it was not filed along with report under S.173, Cr.P.C., or charge sheet---Additional evidence, oral or documentary, could be produced during the course of trial if in the opinion of the court production of the same was essential for the proper disposal of the case---Circumstances suggested that the documents sought to be placed on record were necessary to prove the motive as alleged in the FIR---Investigating Officer was responsible to annex those documents with the report under S.173 Cr.P.C. and investigate the matter in that regard---Complainant had specifically mentioned in the FIR that motive for the occurrence was land dispute between the parties and he had alleged that during the course of investigation, he submitted said documents but unfortunately same were not brought on record---Complainant could not be penalized for the fault of Investigating Officer because if ultimately, it was opined that the motive for the occurrence was not proved, in absence of any documentary evidence, then there would be no alternate for the prosecution---Defence had opportunity to rebut the said documents during course of trial---Relevancy of said documents might be adjudged by the Trial Court at the time of final adjudication---Both the sides had full opportunity to prove or disprove the documents during the trial proceedings---Revision petition was accepted by setting aside the impugned order, in circumstances.

Raja Mazhar Iqbal for Petitioner.

Khalid Rasheed Chaudhary for Respondents.

P L D 2019 High Court (AJ&K) 40

[Shariat Appellate Bench]

Before Raza Ali Khan, J

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

Versus

NOOR HUSSAIN---Respondent

Revision Petition No.155 of 2018, decided on 12th September, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 72, 90, 91 92 & 93---Service on servant of State, statutory body or company---Procedure---Issuance of warrant in lieu of, or in addition to summons---Closure of evidence of prosecution witnesses without issuance of summons---Scope---Petitioner assailed order of Trial Court whereby it closed evidence of two prosecution witnesses who were government servants---Plea of petitioner was that Trial Court had closed their evidence without adopting the procedure provided by Cr.P.C. for summoning government servants---Validity---Proper course for summoning a government servant was to serve the process through respective officer to whom he was subordinate---Court could not burden the prosecution with the duty to produce government servant for recording of his evidence---Such practice was a deviation from the procedure provided by law because the courts had the power to utilize coercive measures and ensure the attendance of prosecution witnesses---Sections 90 to 93, Cr.P.C. provided procedure for summoning of government servants and the courts were empowered to use coercive measures to summon the witnesses---Revision petition was accepted and order of Trial Court was set aside.

State v. Bagh Hussain and another 1980 PCr.LJ 86; Akhtar Ali and others v. Additional Sessions Judge and others 1990 PCr.LJ 925 and State through Advocate-General N.-W.F.P. v. Nawab Khan 1989 PCr.LJ 1659 fol.

Raja Ayaz Fareed, AAG for Petitioner.

P L D 2019 High Court (AJ&K) 44

Before Sadaqat Hussain Raja, J

ZAFFAR MAHMOOD KHAN and 5 others---Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR, through Chief Secretary and 7 others---Respondents

Writ Petition No.2191 of 2018, decided on 20th March, 2019.

(a) Azad Jammu and Kashmir Maintenance of Public Order Ordinance (XLV of 1980)---

----S. 5---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.4.5---Writ petition---Maintainability---Ban on entry in the territory of Azad Jammu and Kashmir---Freedom of movement---Right of religion---Scope---Deputy Commissioner/District Magistrate imposed ban on the entry of petitioners in City "M" due to apprehension of religious hatred---Contention of petitioners was that they intended to celebrate Mehfil-e-Nat and Mehfil-e-Samaa---Validity---Deputy Commissioner/District Magistrate was empowered to pass an order for maintaining peace in the area for the larger interest of public and might pass order to restrain any person from entering in the territory in the light of their disputed conduct and speeches with regard to religious hatred---Writ petition was not competent as no violation of rule or law had been pointed out---Deputy Commissioner/District Magistrate had not exceeded his powers while passing the impugned order---Authorities had not prohibited or restrained the petitioners to celebrate Mehfil-e-Nat or Melad Shareef---Deputy Commissioner/District Magistrate had imposed ban on entry of petitioners within the territory of his jurisdiction due to their disputed conduct---Authorities had not interfered in the religious activities of petitioners, in circumstances---Freedom of movement was Fundamental Right of every person subject to public interest---Petitioners were non-State subjects---Constitution did not guarantee the right of movement to any non-State subject who had been banned in the public interest---Right of religion was constitutional right which could not be interfered with by the Government---Every person had right to chose or practice religion of his own choice but State had to regularize religious activities for harmony and peace of society---Court was not to decide such case simply under the garb of constitutional, human or fundamental rights rather observe its effect to the society---Court was to protect the life of the people and should avoid to pass any order which did frustrate the powers of authority for maintenance of peace and security---Deputy Commissioner/District Magistrate had machinery to collect information with regard to conduct of any person or any religious procession and any order based on such information could not be declared as illegal simply by alleging that same was against the Fundamental Rights---Writ petition was dismissed in limine.

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

----S. 44---Writ petition---Maintainability---Writ petition would be competent only where any violation of rule and law had been pointed out.

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

---S. 4.5---Freedom of movement---Right of movement was guaranteed to every state subject of Azad Jammu and Kashmir subject to reasonable restriction imposed by law in public interest.

Sheikh Mushtaq Ahmed for Petitioners.

P L D 2019 Islamabad 1

Before Aamer Farooq and Mohsin Akhtar Kayani JJ

FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION and others---Appellants

versus

Malik GHULAM MUSTAFA and others---Respondents

Intra-Court Appeals Nos. 364, 365, 366, 367, 368, 411, 412, 413, 414, 415, 417, of 2017 and 22, 23, 24, 306 and 307 of 2018, decided on 25th September, 2018.

(a) Interpretation of statutes---

----General and special law---Applicability---Special law has to be applied in case of two similar subjects in field even otherwise when there is any inconsistency special law has to prevail or if there is any gap then provisions of general law has to be applied for understanding by reference.

Syed Mushahid Shah v. Federal Investment Agency and others 2017 SCMR 1218; Muhammad Mohsin Ghumman v. Government of Punjab 2013 SCMR 85 and Frontier Corps and others v. Ghulam Hussain and others 2004 SCMR 1397 ref.

(b) Administration of justice---

----Technicalities---Scope---Where law requires an act to be done in a particular manner, it has to be done in that manner alone and such dictate of law cannot be termed as technicality.

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

(c) Interpretation of statutes---

----Legislative intent---Determination---Court has to discover true legislative intent while interpreting statute---Intention of legislature is primarily to be gathered from language used which means that attention has to be paid to what has been said and also what has not been said---Courts always presume that Legislature has inserted meaning to every part of statute thereof for a purpose and legislative intention is that every part of statute should have effect---While construing provision of statute, no provision should be rendered meaningless and there is no scope of placing unnatural interpretation on meaning of language used by Legislature especially when language of legislative provision is clear---Court was not to either enlarge scope of legislation or intention of legislators.

Syed Mahmood Akhtar Naqvi v. Federation of Pakistan PLD 2012 SC 1089 rel.

(d) Interpretation of statutes---

----Implied repeal of law---Scope---Conflict in laws---Preference is to be given to new law and implied repeal of earlier law can be inferred only when there was an enactment of later law which had power to override earlier law and was totally inconsistent with earlier law---When there are two laws, earlier and later, cannot stand together therefore, later laws abrogate earlier contrary laws.

Inland Revenue RTO v. Messrs Almakdi International and others 2013 PTD 2125 and Tanveer Hussain v. Division Superintendent Pakistan Railways PLD 2006 SC 249 rel.

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

----S. 17---Constitution of Pakistan, Art. 24---Acquisition for public purpose---Judicial review---Scope---Exclusive domain of government to adjudicate upon issues of public purpose and scrutinize request of acquisition of land required by company---Government has to evaluate public purpose objectively on basis of reasonable material as sacred Fundamental Rights of individual duly safeguarded under provisions of Art.24 of the Constitution are likely to be affected---Such determination of public purpose is also justifiable and amenable to judicial review by courts.

Messrs Eden Developers (Pvt.) Limited v. Government of the Punjab and others PLD 2017 Lah. 442 rel.

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

----S. 17---Capital Development Authority Ordinance (XXIII of 1960), Ss.11 & 12---Constitution of Pakistan, Arts. 9 & 24---Acquisition of land for "public purpose"---Judicial review---Capital Development Authority, jurisdiction of---Scope---Land owners assailed acquisition proceedings initiated by Land Acquisition Collector for public purpose at request of Federal Government Employees Housing Foundation---Single Judge of High Court allowed petition on grounds that acquisition of land by the Foundation was not for "public purpose"---Validity---Acquisition proceedings were contrary to law from day one as purpose behind acquisition proceedings were against scope of Ss.11 & 12 of Capital Development Authority Ordinance, 1960---All officials who were involved in the process to achieve acquisition of land for Federal Government employees/members of the Foundation had no authority to deviate from law and create an interest---Such entire exercise was done with mala fide and in complete disregard to Arts. 9 & 24 of the Constitution as there was violation of right to life of individual citizens who were owners of land in question---State functionaries failed to perform their lawful duties on a required standard after due care and caution and same amounted to a regulatory capture---Federal Government Employees Housing Foundation was a company registered with Securities and Exchange Commission of Pakistan under its own objectives and could not take benefit of State machinery to create an interest of civil servants or some other classes which were later on included by them in conflict of their own objectives---Foundation was a company having no difference with any other land developer, society who could purchase land from market to establish their own housing scheme---High Court restrained the Federal Government Employees Housing Foundation from initiating any acquisition proceedings in future in any part of specified areas of Islamabad Capital Territory in any manner as it would amount to personalized benefits for a particular class---Such acquisition was a violation of Fundamental Guarantees and rights of other citizens envisaged in Constitution---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court---Intra-court appeal was dismissed in circumstances.

Mukhtar Ahmad v. Government of West Pakistan PLD 1971 SC 846; Abdul Qadeer Khan v. Chairman CDA 1999 YLR 247; CDA through Chairman and others v. Dr. Abdul Qadeer Khan and others 1999 SCMR 2636; PLD 1983 SC 457; Islamabad Club v. Punjab Labour Court No.2 PLD 1981 SC 81; The Murree Brewery Co, Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Abdul Ghani and another v. Province of Balochistan and 2 others PLD 1982 Quetta 63; The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmed Khan and others PLD 1947 SC 151; Suo Motu Case No.13 of 2009 PLD 2011 SC 619; Federal Government Employees Housing Foundation through Director General, Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad PLD 2002 SC 1079; Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247; Muhammad Afzal Bhatti and 17 others v. Province of Punjab through Collector, Rawalpindi and 4 others 1997 SCMR 296; Sardar and 149 others v. Government of N.-W.F.P. Through Collector, Haripur and 3 others 1997 CLC 812; Muhammad Khan v. Federation of Pakistan through Secretary, Communication, Islamabad and 4 others 2012 CLC 101; Mst. Razia Begum v. Jangbaz and 3 others 2004 CLC 145; Ghulshan Hussain and another v. Commissioner (Revenue Islamabad/Deputy Commissioner District Collector I.C.T./Assistant Commissioner, Saddar, Islamabad and another 2000 YLR 1711; Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd, through the Secretary Fortress Stadium Lahore Cantt. and 2 others PLD 1983 Lah. 552; Suo Motu Case No.13 of 2007 PLD 2009 SC 217; Allah Ditta and others v. Province of Punjab PLD 1997 Lah. 499; Muhannriad Ishaq and others v. Government of Punjab and others 2002 SCMR 1652; Tej Ram Jag Ram v. Union of India, Ministry of Works, Housing and Supply New Delhi and others AIR 1959 Punjab 478; Bai Malimabu and others v. State of Gujarat and others AIR 1963 SC 151, AIR 1977 SC 594, AIR 1978 SC 515; Hamabai Framjee v. Secretary of State for India AIR 1966 SC 1788, AIR 1970 SC 984, AIR 1914 Privy Council 1914; Ram Swarup v. The District Land Acquisition Officer, Aligarh and others AIR 1972 SC 2290; The Andhra Pradesh Agricultural University Rajendranagar v. Mahmoodunnisa Begum and another AIR 1947 NAG 254, AIR 1976 Andhra Pradesh. 134; Commr. LT., Pindi v. Noon Sugar Mills 1984 PTD 87; Om Prakash and another v. Union of India and others 1989 MLD 2416; Mehtab Khan v. Rahabiliation Authority PLD 1973 SC 451; (In re: Islamization of laws) PLD 1985 FSC 221; Muhammad Akbar v. Commissioner, Rawalpindi PLD 1976 Lah. 747; Nazim F. Haji, Chief Citizen Police Liaison Committee, Karachi v. Commissioner, Karachi and others PLD 1993 Kar. 79; Barrister Sardar Muhammad v. Federation of Pakistan PLD 2013 Lah. 343; Lahore Development Authority v. Mrs. Imrana Tiwana 2015 SCMR 1739; Muhammad Ashraf Tiwana v. Pakistan 2013 SCMR 1159 and Mrs. Imrana Tiwana v. Province of Punjab PLD 2015 Lah. 522 ref.

Mansoor Ahmad, Saad M. Hashmi Khurram M. Hashmi and Makhdoom Ali Khan for Appellants (in ICA No.364 of 2017).

Waqas Ali Mehmood, DG (FGEHF), Zafar Abbas, AD (FGEHGF) and Malik Javid Iqbal Wains for Applicants (in C.M.No.168 of 2018 and C.M. No.169 of 2018).

Syed Wajid Ali Gillani for Respondents Nos.1 to 9 and Dr. Hassan Cheema, Land Acquisition Collector Respondent No.10 for Respondents ((in I.C.A. No364 of 2017).

Khurram M. Hashmi, Saad M. Hashmi Mansoor Ahmad, Makhdoom Ali Khan for Appellants (in I.C.A. No365 of 2017).

Waqas Ali Mehmood, DG and Zafar Abbas, AD on behalf of FGEHF for Appellants.

Sajid Aurangzeb Khan and Sibah Farooq, for Applicant in C.M.No.42/2018, C.M. No.44/2018, C.M. No.83/2018, C.M. No.85/2018and CM No.278/2018.

Sohail Ahmad Mian, Applicant (in person (in C.M. No.3053/2018).

Ms. Najma Siddiqi Applicant in person in C.M. No.3055/2018.

Syed Wajid Ali Gillani, Sajeel Sheryar Swati and Ch. Hasan Murtaza Mann, for Respondents Nos. 1 to 5.

Kashif Ali Malik and Nazir Jawwad for CDA.

Khurram M. Hashmi, Saad M. Hashmi Makhdoom Ai Khar and Mansoor Ahmad for Appellants (in I.C.A. No.366 of 2017).

Waqas Ali Mehmood, D.G. and Zafar Abbas, A.D. on behalf of FGEHF for Appellants.

Sajeel Sheryar Swati and Ch. Hasan Murtaza Mann, for Respondents Nos. 1 to 3.

Kashif Ali Malik and Muhammad Mohsin Nazir for CDA.

Khurram M. Hashmi, Saad M. Hashmi, Makhdoom Ali Khan and Mansoor Ahmad for Appellants (in I.C.A. No367 of 2017).

Waqas Ali Mehmood, D.G. and Zafar Abbas, A.D. on behalf of FGEHF for Appellants..

Sajeel Sheryar Swati and Ch. Hasan Murtaza Mann for Respondents Nos. 1 to 5 (in I.C.A. No.367 of 2017).

Kashif Ali Malik and Muhammad Mohsin Nazir for CDA.

Khurram M. Hashmi, Saad M. Hashmi, Makhdoom Ali Khan and Mansoor Ahmad for Appellants (in I.C.A. No368 of 2017).

Waqas Ali Mehmood, D.G. and Zafar Abbas, A.D. on behalf of FGEHF for Apppllants.

Sajeel Sheryar Swati and Ch. Hasan Murtaza Mann, for Respondents Nos. 1 and 3.

Dr. Hassan Cheema, Land Acquisition Collector/Respondent No.4.

Naseem Ahmad Shah for Appellant (in I.C.A. No.411 of 2017).

Sajeel Sheryar Swati and Ch. Hasan Murtaza Mann for Respondents Nos. 1 and 3.

Waqas Ali Mehmood, D.G. and Zafar Abbas, A.D. on behalf of FGEHF for Respondents.

Naseem Ahmad Shah for Appellant (in I.C.A. No.412 of 2017).

Syed Wajid Ali Gillani for Respondents Nos. 1 to 9 (in I.C.A. No.412 of 2017).

Waqas Ali Mehmood, D.G. and Zafar Abbas, A.D. on behalf of FGEHF for Respondents.

Naseem Ahmad Shah for Appellant (in I.C.A. No.413 of 2017).

Sajeel Sheryar Swati and Ch. Hasan Murtaza Mann for Respondents Nos. 1 and 5.

Waqas Ali Mehmood, D.G. and Zafar Abbas, A.D. on behalf of FGEHF for Respondents.

Kashif Ali Malik and Muhammad Mohsin Nazir for CDA.

Naseem Ahmad Shah for Appellant (in I.C.A. No.414 of 2017).

Sajeel Sheryar Swati and Ch. Hasan Murtaza Mann for Respondents Nos. 1 and 3.

Waqas Ali Mehmood, D.G. and Zafar Abbas, A.D. on behalf of FGEHF for Respondents.

Kashif Ali Malik and Muhammad Mohsin Nazir for CDA.

Naseem Ahmad Shah for Appellants (in I.C.A. No.415 of 2017).

Sajeel Sheryar Swati and Ch. Hasan Murtaza Mann, for Respondents Nos. 1 and 3.

Waqas Ali Mehmood, D.G. and Zafar Abbas, A.D on behalf of FGEHF for Respondents.

Kashif Ali Malik and Muhammad Mohsin Nazir, for CDA for Respondents.

Appellant in person (in I.C.A. No.417 of 2017)

Waqas Ali Mehmood, D.G. and Zafar Abnbas A.D. on hehalf of FGEHF for Respondents.

Kashif Ali Malik and Muhammad Mohsin Nazir for CDA.

Waqar A. Sheikh and Babur Suhail for Appellants (in I.C.A. No.22 of 2018).

Kashif Ali Malik and Muhammad Mohsin Nazir for CDA.

Waqar A. Sheikh and Babur Suhail for Appellants (in I.C.A. No.23 of 2018).

Waqas Ali Mehmood, D.G. and Zafar Abbas, A.D. on behalf of FGEHF for Respondents.

Kashif Ali Malik and Muhammad Mohsin Nazir for CDA for Respondents.

Waqar A. Sheikh and Babur Suhail for Appellants (in I.C.A. No.24 of 2018).

Waqas Ali Mehmood, D.G. and Zafar Abbas, A.D. on behalf of PGEHF for Respondents.

Kashif Ali Malik and Muhammad Mohsin Nazir for CDA for Respondents.

Syed Hasnain Ibrahim Kazmi, Ch. Shfiq-ur-Rehman and Muhammad Akram Shaheen for Appellant (in ICA No.306 of 2018).

Waqas Ali Mehmood, D.G. and Zafar Abbas, A.D. on behalf of FGEHF for Respondents.

Kashir Ali Malik and Muhammad Mohsin Nazir for CDA for Respondents.

Syed Hasnain Ibrahim Kazmi, Ch. Shafiq-ur-Rehman and Muhammad Akram Shaheen for Appellant (in I.C.A. No.307 of 2018).

Waqas Ali Mehmood, D.G. and Zafar Abbas, A.D. on behalf of FGEHF for Respondents.

Kashir Ali Malik and Muhammad Mohsin Nazir for CDA.

P L D 2019 Islamabad 38

Before Athar Minallah and Miangul Hassan Aurangzeb, JJ

Mian MUHAMMAD NAWAZ SHARIF---Petitioner

versus

The STATE through Chairman, NAB and others---Respondents

Writ Petition No.2829 of 2018, decided on 19th September, 2018.

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

----S. 9(b)---Constitution of Pakistan, Art.199---Constitutional jurisdiction of High Court---Scope---Suspension of sentence---High Court while exercising jurisdiction under Art.199 of the Constitution is not bereft of jurisdiction to suspend sentence handed down under National Accountability Ordinance, 1999.

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

----S. 9(b)---Criminal Procedure Code (V of 1898), S.426---Suspension of sentence---Principles---Deeper appreciation of evidence cannot be undertaken while considering suspension of a sentence in context of S.426, Cr.P.C.---Court of appeal is empowered to suspend sentence if on bare perusal of judgment it reflects that appreciation of evidence made by Trial Court was against the settled law---Court of appeal has to confine itself to infirmities in judgment which are apparent and prima facie indicate that conviction and sentence may ultimately not be sustainable.

Soba Khan v. State 2016 SCMR 1325 rel.

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

----S. 14(c)---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Presumption---Onus of proof---Principle of shifting of onus---Applicability---Provisions of S.14(c) of National Accountability Ordinance, 1999 contemplate a reverse onus as opposed to settled law that in criminal cases, onus is always on prosecution to establish its case beyond reasonable doubt.

Khan Asfandyar Wali and others v. Federation of Pakistan through the Cabinet Division, Islamabad and others PLD 2001 SC 607 rel.

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

----S. 9(a)(iv)(v) & (b)---Constitution of Pakistan, Art.199---Constitutional petition---Suspension of sentene---Distinct offenses---Misreading of evidence---One of the petitioners was the former Prime Minister of Pakistan and remaining two were his daughter and son-in-law who were convicted and sentenced by Trial Court---Plea raised by petitioners for suspension of sentence was that Trial Court only convicted them for having assets beyond known sources of income whereas, acquitted on charge of acquiring illegal pecuniary advantages---Validity---Offence under S.9(a)(v) of National Accountability Ordinance, 1999 was a distinct offence and having been specifically charged under S.9(a)(iv) National Accountability Ordinance, 1999, Trial Court should have considered whether on same evidence and relating to same property a conviction could be handed down under S.9(a)(v) of National Acocuntability Ordinance, 1999 by assuming through a fiction of law that property in question was acquired through corruption and corrupt practices---Prosecution was required to discharge its obligation establishing four ingredients of offense under S.9(a)(v) of National Accountability Ordinance, 1999 before onus could be shifted to petitioners---Connection of principal accused was made with acquiring property in question between the year 1993 to year 1996 on presumptions and likewise that children of principal accused were his dependants at the relevant time---Findings which were based on presumptions were result of misreading of evidence---High Court in exercise of Constitutional jurisdiction suspended sentence awarded by Trial Court---Constituitonal petition was allowed in circumstance.

Khalid Aziz v. State 2011 SCMR 136 and Ghani-ur-Rehman v. NAB and others PLD 2011 SC 1144 rel.

Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 9 thers PLD 2017 SC 265; Imran Ahmed Khan Niazi v. Mian Muhammad Nawas Sharif PLD 2017 SC 692; Pir Mazharul Haq v. State and others PLD 2005 SC 63; Abdul Lateef Brohi v. NAB 2014 PCr.LJ 334; Muhammad Shah v. State 2010 SCMR 1009; Muhammad Saeed Mehdi v. State 2002 SCMR 282; Abdul Aziz Khan Niazi v. State PLD 2003 SC 668; Olas Khan v. Chairman NAB PLD 2018 SC 40; Peer Mukaram ul Haq v. NAB 2006 SCMR 1225; Soba Khan v. State 2016 SCMR 1325; Abdul Rehman v. State 2008 SCMR 1381; Muhammad Nawaz v. The State 1996 PCr.LJ 1250; Allah Din and others v. Special Judge, Anti-Terrorism Court No.1, Lahore and others PLD 2008 Lah. 74; Raja Shamshad Hussain v, Gulraiz Akhtar and others PLD 2007 SC 564; Shahbaz v. The State 1992 SCMR 1903; Mian Muhammad Nawaz Sharif and others v. The State and others PLD 2002 Kar. 152; Abdul Karim Nausherwani and another v. The State through Chief Ehtesab Commisisoner 2015 SCMR 397; 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; Hashim Babar v. The State 2010 SCMR 1697; Wajid Ali v. Mumtaz Ali Khan 2000 MLD 1172; Muhammad Arshad v. Tassaduq Hussain alias Mittu and others (C.P.No.1305 of 2014); Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabd and others PLD 2001 SC 607; Dr. Abdul Quddus, Deputy Director, Pakistan Agriculure Research Council (PARC), Rawalpindi v. The State 2002 YLR 3996; Khalid Javed Gillan v. State PLD 1978 SC 256; Syed Qasim Shah v. The State 2009 SCMR 790; Muhammad Siddiqul Farooq v. The State 2010 SCMR 198; Hakim Ali Zardari v. State 2007 MLD 910 and Mian Muhammad Nawaz Sharif and others v. Imran Ahmed Khan Niazi and others PLD 2018 SC 1 ref.

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

----Ss. 426 & 428---Natinal Accountability Ordinance (XVIII of 1999), S.9(b)---Petition for suspension of sentence---Record for consideration---Principle---After conclusion of trial, no document other than those which have been brought on record can be considered or Appellate Court takes further evidence under S. 428, Cr.P.C.

Khawaja Haris Ahmad, Ms. Ayesha Hamid, Muhammad Amjad Pervaiz, Muhammad Zubair Khalid, Muhammad Aurangzeb, Sher Afghan Asadi, Abraheem Haroon and Manawar Iqbal Duggal for Petitioners in their respective petitions.

Muhammad Akram Qureshi, Special Prosecutor, NAB, Jehanzaib Rahim Bharwana, Additional, PGA, NAB, Sardar Muzaffar Ahmad Khan, DPGA, NAB, Imran Shafiq, Asghar Awan, Irfan Ahmad Boola and Zain Akram/Special Prosecutors Nab for Respondents.

P L D 2019 Islamabad 62

Before Shaukat Aziz Siddiqui, J

Mulana ALLAH WASAYA and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law and Justice and others---Respondents

Writ Petition Nos.3862, 3847, 3896 and 4093 of 2017, decided on 4th July, 2018.

(a) Constitution of Pakistan---

----Art. 260(3)---Members of Qadiani/Ahmadi group---Main beliefs of Qadianis summarized.

(b) Constitution of Pakistan---

----Art. 260(3)---Constitution (Second Amendment) Act (XLIX of 1974), S. 3---Qadiani/Ahmadi group---Historical account of intrigues against Islam and the state of Pakistan by the Qadiani/Ahmadi group during post-partition period and the consequential Second Amendment in the Constitution declaring them as non-Muslims stated.

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

----Ss. 298B & 298C---Anti-Islamic Activities of Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance (XX of 1984), Preamble---Constitution of Pakistan, Art. 260(3)---Qadiani/Ahmadi group---Historical background of circumstances that led to the addition of Ss. 298B and 298C in the Pakistan Penal Code, 1860, restraining Qadianis from directly or indirectly posing themselves as Muslims or calling their faith as Islam stated.

Mujib-ur-Rehman and 3 others v. Federal Government of Pakistan and others PLD 1985 FSC 8 and Mirza Khurshid Ahmad and another v. Government of Punjab and others PLD 1992 Lah. 1 ref.

(d) Constitution of Pakistan---

----Art. 260(3)---Members of Qadiani/Ahmadi group---Adverse political and social implications of Qadiani movement on Islam as viewed by Allama Dr. Muhammad Iqbal stated.

(e) Elections Act (XXXIII of 2077)---

----Ss. 48A, 60(2) & 110(2)---Conduct of General Elections Order (7 of 2002), Arts. 7B & 7C---Elections (Amendment) Act (XXXV of 2017), Ss.2 & 3---Elections (Second Amendment) Act (XXXVII of 2017), Ss.2 & 3---Constitution (Second Amendment) Act (XLIX of 1974), S. 3---Nomination forms for contesting General Elections and elections to the Senate---Changes made to the declaration/oath relating to Khatam-e-Nabuwat in the nomination forms by the Elections Act, 2017---Deliberate and motivated effort was made by the draftsmen of the bill of the Elections Act, 2017 to bring Qadianis in the loop of majority (Muslims) in order to diminish their separate identity as non-Muslims---All the members of the National Assembly and the Senators failed to identify the motive, lacuna and an effort to frustrate the Second Amendment to the Constitution, which declared Qadinais as non-Muslims---Parliamentarians either exhibited casual approach or failed to realize the sensitivity of the issue and, to such end, could not expose the plot against the Constitution---Soon after the emergence of legal defect in the Elections Act, 2017 the Parliament by its collective wisdom and understanding displayed complete sensitivity towards the matter and brought it in conformity with the requirements---Since necessary amendments to the Elections Act, 2017 has already been brought in the law, (and original declaration/oath relating to Khatam-e-Nabuwat had been restored), therefore, it was not appropriate for the High Court to further dilate upon the matter---High Court observed that the Election Commission's powers to make rules and regulation needed to be re-examined as there was a serious apprehension and grave concern that any rule and regulation to carryout the objects of the Elections Act, 2017 vis-à-vis declaration of religion as either Muslim or non-Muslim may create serious law and order situation and challenge the mandate of the Constitution, and that steps were to be taken to ensure that every Parliamentarian was provided adequate awareness about the parliamentary debates and proceedings that took place during the course of passage of Second Constitutional Amendment.

Dr. Mubashar Hassan v. Federation of Pakistan PLD 2010 SC 265; Mubeen ul Islam v. Federation of Pakistan PLD 2006 SC 602; Ghulam Mustafa Insari v. Goverfnment of Punjab 2004 SCMR 1903; Zaman Cement Company v. Central Board of Revenue 2002 SCMR 312; Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504; Collector of Customs v. Sheikh Spinning Mills 1999 SCMR 1402 and A.M. Khan Leghari v. Government of Pakistan PLD 1967 Lah. 227 ref.

(f) Constitution of Pakistan---

----Art. 260(3)---Members of Qadiani/Ahmadi group---Use of the term "Ahmadi" for Qadiani---Most of the minorities residing in Pakistan held a separate identification in reference to their names and identity but members of the Qadiani group did not hold any such distinct identification, due to which they could easily mask their belief and become part of Muslim majority---Name "Ahmad" referred to the Holy Prophet Muhammad (PBUH) who besides other holy books had been addressed by the Allah Almighty in the Holy Quran with this name---High Court observed that it was only in the fitness of things that Qadianis may be referred to as Ghulaman-e-Mirza/Mirzai etc. but not as Ahmadis, which term may confuse them with Muslims who believed in the finality of the Prophethood of Muhammad (P.B.U.H.); that Qadianis should not be allowed to conceal their identity by having similar names to those of Mulsims, therefore, they should be either stopped from using name of ordinary Muslims or in the alternative Qadiani, Ghulam-e-Mirza or Marzai must form part of their names and be mentioned accordingly---High Court directed that the Parliament shall make necessary legislation and also introduce requisite amendments in the existing laws so as to ensure that all the terms which were specifically used for 'Islam' and 'Muslims' were not used by persons belonging to any of the minorities for hiding their real identity or for any other purpose.

Al-Quran Ayat No.6 of Surah Al-Saff; 1993 SCMR 1748 and PLD 1992 Lah. 1 ref.

(g) Constitution of Pakistan---

----Art. 260(3)---Members of Qadiani/Ahmadi group---Giving false impression of being Muslim for occupying key Government and Constitutional posts/offices and serving in Armed Forces---Every citizen of Pakistan had to get his/her identity with authentic particulars---No Muslim was permitted to disguise his/her identity as non-Muslim and no non-Muslim had the right to appear as a Muslim---Any citizen, who did so, would betray the State resulting in exploiting the Constitution---Appointment of a non-Muslim on Constitutional posts in Pakistan was against the organic law and rituals---Similarly, non-Muslims did not qualify to be elected on certain Constitutional offices---For most institutions/departments including the membership of Parliament, there were reserved seats for the minorities, which is why when any member of the minority group concealed his/her true religion and belief through fraudulent means, and presented him/herself as a part of Muslim majority, it was open defiance to the words and spirit of the Constitution---To prevent such disobedience, the state needed to take immediate measures---State of Pakistan, needed to adopt certain procedures and evolving scientific measures to know exact number of members of Qadiani group, as large numbers from said minority were concealing their real identity and giving false impression of being Muslim---High Court observed that every citizen of the country had the right to know that the person(s) holding the key posts belonged to which religious community; the person(s) scheming syllabus for their children professed what religious beliefs; the person(s) who formulated policies held Prophet (P.B.U.H.) in what esteem; the person(s) acting as ambassadors, diplomats and representatives of Islamic ideology and interests propagated which ideology and saved whose interests; the defender(s) in whose hands the defence of Pakistan rested belonged to which religion---High Court directed that Government of Pakistan shall take special measures ensuring availability of correct particulars of all the citizens so that it should not be possible for any citizen to hide his/her real identity and recognition; that the Government shall also take immediate steps for conducting an inquiry concerning visible difference in the population record of Qadianis available with the National Database and Registration Authority (NADRA) and figures collected through recent census.

(h) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience to Constitution and law---Scope---Under Art. 5 of the Constitution it was the basic duty of every citizen to be faithful to the State and abide by the rules of law and Constitution---Said duty also applied on those who were not citizens of Pakistan, but lived presently in Pakistan.

(i) Constitution of Pakistan---

----Art. 260(3)---National Database and Registration Authority Ordinance (VIII of 2000), S.10---Affidavit for obtaining birth certificate, Computerized National Identity Card (CNIC), Passport, and entry in voter list---High Court directed that in order to get CNIC, Passport, birth certificate and entry in voter list, an affidavit must be sworn by the applicant based on the definition of Muslim and non-Muslim provided by Art.260(3) (a) & (b) of the Constitution.

(j) Constitution of Pakistan---

----Art. 260(3)---Declaration of being Muslim or non-Muslim---Affidavit---Service in judiciary, civil service and Armed Forces---High Court directed that a sworn affidavit based on the definition of Muslim and non-Muslim provided by Art. 260(3) (a) & (b) of the Constitution shall be a requirement for appointment in all Government and semi-Government institutions especially judiciary, Armed Forces and civil services, etc.

Petitioners by:

Hafiz Arfat Ahmad Chaudhary and Ms. Kashifa Niaz Awan assisted by M. Zahid Tanvir along with Petitioner (In W.P. No.3862 of 2017).

Muhammad Tariq Asad, Advocate Supreme Court (in W.Ps. Nos.3847 and 4093 of 2017).

Hafiz Farmanullah, Syed Muhammad Iqbal Hashmi, Advocate/Intervener and Ms. Ameer Jahan alias Bisma Naureen Internener. (In all Cases).

Respondents by:

Noman Munir Paracha, Messrs Arshad Mehmood Kiyani, DAG., Ms. Naveeda Noor, for I.B., Nauman Munawar, Asghar, Representative of Ministry of Law and Justice, Usman Yousaf Mobin, Chairman, NADRA., Saqib Jamal, Director (Legal) and Zulfiqar Ali, D.G. (Projects), NADRA, Syed Junaid Jaffer, Law Officer, NADRA, Kamran Riffat, Deputy Direcrter (Legal) FPSC, Islamabad, M. Shahid Dayo, Deputy Director and Zarnab Khattak, S.O. Establishment Division, Qaiser Masood, Additional Director (Law), FIA, Waqar Ch. Data Processing Officer (Litigation), National Assembly. (In all Cases).

Amici Curiae

(Religious Scholars):

Prof. Dr. Hafiz Hassan Madni, (26.2.2018), Prof. Dr. Sahibzada Sajid-ur-Rehman (27.2.2018).

Prof. Dr. Mohsin Naqvi (28.2.2018).

Mufti Muhammad Hussain Khalil Khel (01.03.2018).

(In all Cases).

Amici Curiae

(Constitutional Experts).

Muhammad Akram Sheikh, Senior Advocate Supreme Court (02-03-2018).

Dr. Muhammad Aslam Khaki, Advocate Supreme Court assisted by Ms. Yasmeen Haider, Advocate (05-03-2018).

Dr. Babar Awan, Senior Advocate Supreme Court (05-03-2018).

(In all Cases)

P L D 2019 Islamabad 230

Before Athar Minallah, C.J. and Mohsin Akhtar Kayani, J

RIAZ HANIF RAHI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice

and 14 others---Respondents

Writ Petition No.4959 of 2018, decided on 22nd January, 2019.

Rules of Procedure and Conduct of Business in the National Assembly, 2007---

----R. 108---Constitution of Pakistan, Art. 69---National Accountability Ordinance (XVIII of 1999), S. 9---Rule 108 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, vires of---Speaker of the National Assembly---Power to issue production order---Constitutionality---Two accused members of the National Assembly were in custody of National Accountability Bureau---Speaker of the National Assembly using his powers under R.108 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 ("the Rules of 2007") issued production orders for the accused members to allow them to attend proceedings of National Assembly---Contentions of petitioner that R. 108 was ultra vires the Constitution; that release of accused members so as to enable them to attend sittings of the National Assembly interfered in the pending investigations under the National Accountability Ordinance, 1999; and, that appointment of one of the accused members as Chairman of the Public Accounts Committee tantamount to conflict of interest---Held, that Art. 69 of the Constitution barred a Court from inquiring into the proceedings of the Majlis-e-Shoora (Parliament)---Framing of the Rules of 2007, exercise of discretion by the Speaker under R.108 or constituting Committees, including the Public Accounts Committee, fell within the expression "proceedings" of the Majlis-e-Shoora (Parliament)---Proceedings or acts falling under Cls. (1) or (2) of Art.69 were not subject to judicial review---Allowing constituents to go unrepresented offended their constitutional rights, which was the obvious wisdom for incorporating R.108 in the Rules of 2007---Moreover, since the expression 'may' had been used therein, therefore, the power vested in the Speaker was of a discretionary nature---Speaker, while exercising discretion under the R.108, had to, inter alia, take into consideration the rights of the constituents, particularly that they could not be allowed to go unrepresented---Accused members, in the present case, were arrested in connection with investigations which were pending under the National Accountability Ordinance, 1999, and they had not been convicted---At present stage they were only accused in the proceedings, and their status as accused entitled them to be treated as innocent till they were proven guilty---Said members were not disqualified from being members of the Majlis-e-Shoora (Parliament) and, therefore, they could not be restrained from attending the sessions of the National Assembly because it would then be violative of the constitutional rights of the constituents and consequently they would suffer if they remained unrepresented---Contentions raised by the petitioner were not justiciable because the High Court would be transgressing the explicit limits prescribed by Art. 69 of the Constitution---Constitutional petition was dismissed accordingly.

Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretay, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; Pakistan v. (1) Ahmad Saeed Kirmani (2) Ch. Fazal Elahi, (3) Secretary, West Pakistan Legislative Assembly, (4) Mumtaz Hassan Qizalbash PLD 1958 SC (Pak) 397 and Badru Haque Khan v. (1) The Election Tribunal, Dacca, (2) The Chief Election Commissioner and (3) Jamalus Sattar Rahman PLD 1963 SC 704 and Muhammad Azhar Siddiqui and others v. Federation of Pakistn and others PLD 2012 SC 774 ref.

G.M. Chaudhary, Advocate Supreme Court for Petitioner with Petitioner in person.

P L D 2019 Islamabad 238

Before Miangul Hassan Aurangzeb, J

SOFIA ASHFAQ---Petitioner

Versus

HASEEB ASHFAQ BHATTI and others--- Respondents

Civil Revision No.307 of 2017, decided on 4th December, 2018.

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

----Ss. 372, 373, 383(e) & 387---Muslim Family Laws Ordinance (VII of 1961), S. 7(3)---Succession certificate, issuance of---Effectiveness certificate of divorce by Chairman Arbitration Council---Scope---Petitioner had obtained divorce from first husband and married predecessor-in-interest from whose inheritance she sought share vide succession certificate---Respondents assailed including name of petitioner on grounds that her marriage to their deceased father was invalid and her name could not be added to the list of legal heirs---Trial Court accepted claim of petitioner but Lower Appellate Court set aside the same and directed her share to be kept in reserve till her status as wife was confirmed---Validity---Even if marriage of petitioner with deceased predecessor-in-interest of parties took place prior to expiry of iddat period, at best, such marriage was irregular but not void---Certificate of effectiveness of divorce was issued by Chairman Arbitration Council prior to demise of predecessor-in-interest of parties, therefore, irregularity (if at all any) in marriage of petitioner with predecessor-in-interest of parties stood cured---Respondents were to prove before Civil Court that petitioner's marriage with deceased predecessor-in-interest of parties was not valid or she was not one of legal heirs of deceased---Until suit filed by them was decreed, petitioner could not be deprived of her share in legacy of deceased---Mere fact that Trial Court allowed petitioner's application for issuance of succession certificate was not in any manner prejudice or had any adverse effect on suit for declaration instituted by respondents---If respondents succeed in their suit, they would then be in a position to apply for revocation of order granting succession certificate---High Court set aside order passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in circumstances.

Mst. Jamila Akhtar v. Public-at-Large 2002 SCMR 1544; Muhammad Hanif v. Mukarram Khan PLD 1996 Lah. 58; Allah Dad v. Mukhtar 1992 SCMR 1273; Mst. Zahida Shaheen v. The State 1994 SCMR 2098; Kaneez Fatima v. Wali Muhammad PLD 1993 SC 901; Mirza Qamar Raza v. Mst. Tahira Begum PLD 1988 Kar. 169; Muhammad Sher v. Additional Sessions Judge/Justice of Peace, District Khushab 2016 CLC 717 and Liaqat Zaman Khan v. Mst. Tazeem Akhtar 2017 YLR 150 ref.

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

----S. 373---Succession certificate---Determination of title---Duty of court---Scope---Proceedings before Trial Court in petition of grant of succession certificate under S.373 of Succession Act, 1925 are summary in nature---Intricate questions cannot be resolved in such proceedings---Questions of title to property have to be left to be decided in a suit before court of plenary jurisdiction---If court cannot decide right to certificate without determining question of law or fact which seemed to be too intricate and difficult for determination in summary proceedings, court may grant a certificate to applicant if he appears to be person having prima facie best title thereto.

Malik Muhammad Rafique v. Mst.Tanveer Jahan PLD 2015 Isl. 30; Mst. Samina Sikandar v. Public-at-Large PLD 2011 Lah. 192; Banarasi Dass v. Tekka Dutta ((2005) 4 SCC 4491); Allah Nawaz Khan v. Fareda Fatima Khanum 1999 MLD 2738 and Muhammad Javed Akhtar v. Public-in-Large 1987 CLC 262 rel.

Sher Afzal Khan for Petitioner.

Barrister Talha Ilyas Sheikh for Respondents Nos. 1 to 3.

Shajjar Abbas Hamdani for Respondent No.4.

Ms. Hadiya Aziz: Amicus Curiae.

P L D 2019 Islamabad 255

Before Miangul Hassan Aurangzeb, J

Major MUHAMMAD NOUMAN---Petitioner

Versus

USMAN HABIB and another---Respondents

Writ Peition No.1090 of 2018, decided on 24th September, 2018.

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

----O. IX, Rr. 6 & 13---Limitation Act (IX of 1908), Art. 181---"Ex-parte order" and "decree"---Distinction---Restoration of ex-parte order---Limitation---Limitation period has been prescribed for setting aside an ex-parte decree but no limitation period has been prescribed for setting aside order whereby defendant is proceeded against ex-parte---Limitation period for filing application against ex-parte order is three years under Art.181 of the Limitation Act, 1908---Defendant who is proceeded against ex-parte, is not debarred from appearing and participating in the proceedings at subsequent stage.

Hashim Khan v. National Bank of Pakistan 1992 SCMR 707 and Police Department v. Javid Israr 1992 SCMR 1009 rel.

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

----Ss. 30 & 39--- Award, setting aside of---Principles---Award can be set aside either on application of a party under S.30 of Arbitration Act, 1940 or by court on its own motion---Either way, an order setting aside an arbitration award is appealable---Question of refusal by court to set aside award arises only if application to set aside an award is filed by a party aggrieved of the award---If no such applications or objections to award are filed and court passes an order, making an award rule of the court, such order is not appealable.

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

----S. 17---Award made rule of court---Appeal---Preconditions---Appeal is barred under S.17 of Arbitration Act, 1940 against a decree passed following a judgment pronounced according to award except on ground that it is excess of, or not otherwise in accordance with law.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court in exercise of its jurisdiction under Art.199 of the Constitution when sets aside order of a court or a tribunal, it remands matter for a decision afresh in accordance with law.

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

----Ss. 17, 30 & 31---Civil Procedure Code (V of 1908), S.115---Limitation Act (IX of 1908), Art. 158---Constitution of Pakistan, Art.199---Constitutional petition---Suo Motu revisional jurisdiction of High Court---Applicability---Petitioner was proceeded ex-parte and order was maintained by Lower Appellate Court in exercise of revisional jurisdiction---Plea raised by petitioner was that award could not be made rule of court in absence of objections filed by petitioner---Validity---Simply because a party did not file objections to an award or did not file them within period of limitation provided in Art.158 of Limitation Act, 1908, did not mean that Trial Court should not go further to make arbitration award a rule of court and pass judgment and decree in terms thereof---Where an order or judgment before court was a consequence of misreading of evidence or was contrary to law laid down by superior courts, High Court could not hesitate in interfering such order in exercise of its suo motu revisional jurisdiction---Judgment and decree was passed contrary to law laid down by superior courts---Mere fact that revision petition against judgment was not filed within period of limitation prescribed by law before competent forum would not pose as an obstacle before High Court to set aside it in exercise of suo motu revisional jurisdiction---High Court, converted Constitutional petition into revision and in exercise of suo motu revisional jurisdiction set aside the decree passed by the Trial Court and case was remanded to trial Court for decision afresh.

Hashim Khan v. National Bank of Pakistan 1992 SCMR 707; Police Department v. Javid Israr 1992 SCMR 1009; Tribal Friends Col v. Province of Balochistan 2002 SCMR 1903; M.A. Jalil v. Group Capt. (Retd.) Salah-ud-Din Khan 1983 CLC 1685; Province of Punjab, Housing and Physical Planning Department, Lahore PLD 1984 Lah. 515; Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division 1992 SCMR 65; Pakistan through General Manager, Pakistan Railway v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800; Ameen General Enterprises v. Azad Jammu and Kashmir Government PLD 2010 SC(AJ&K) 1; National Logistic Cell (NLC) v. Hakas (Pvt). Ltd. 2010 YLR 1448; Rashida Begum v. Ch. Muhammad Anwar PLD 2003 Lah. 522; Muhammad Swaleh v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Federal Board of Intermediate and Secondary Education v. Azam Ali Khan 2017 YLR 906; Mst. Bhagay v. Mst. Fatima Bibi PLD 2004 Lah. 12; Town Municipal Adminsitration v. Rifat Hussain 2003 CLC 1370; Oil and Gas Development Corporation v. Clough Engineering Limited 2003 YLR 353; Mst. Iqbal Bibi v. Allah Yar 2004 YLR 1279; Kiran Arif Mian v. Kinza Khalid PLD 2008 Isl. 11 and Hafez Ahmad v. Civil Judge, Lahore PLD 2012 SC 44 ref.

Ms. Shireen Imran for Petiitoner.

Izzat Khan for Respondent No.1.

P L D 2019 Islamabad 273

Before Aamer Farooq, J

ALI RIZWAN RAJA---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.3970 of 2018, decided on 15th November, 2018.

Criminal Procedure Code (V of 1898)---

----S. 491---Pakistan Army Act (XXXIX of 1952), Ss. 2(1)(d), 59, 73, 74 & 75---Constituiton of Pakistan, Art.199---Habeas corpus petition---Persons subject to the Pakistan Army Act, 1952---Scope---Retired army officer in custody of military authorities for investigaioin---Person who was not an Army Officer could be detaind and or proceeded under the Pakistan Army Act, 1952 if he fell within the ambit of persons mentioned under S.2(1)(d) of the Pakistn Army Act, 1952---Since it was known that detenue (retired Army Officer) was in custody of military and was being investigated for offences under S.2(1)(d) of the Pakistan Army Act, 1952, hence his production order could not be made---Constitutional petition was disposed of accordingly.

Allah Rakha v. District Magistrate Sialkot PLD 1968 Lah. 1061 and Farzaba Tasneem v. Federation of Pakistan PLD 2005 Lah. 391 ref.

Inam ul Rahim and Malik Waheed Akhtar for Petitioner.

Arshad Mehmood Kiani, DAG.

Brigadier Falak Naz Director (Legal) Ministry of Defence.

Omer, SP Saddar.

Gulzar, Inspector Police Station Ramna.

P L D 2019 Islamabad 280

Before Miangul Hassan Aurangzeb, J

Mst. SAADIA ANDALEEB---Appellant

Versus

Mst. FARZANA ZIA and 5 others---Respondents

Civil Revision No.35 of 2016, decided on 13th June, 2018.

(a) Q anun-e-Shahadat (10 of 1984)---

----Arts. 17 & 79---Document, proof of---Marginal witnesses---Object---True marginal witnesses of a document are produced not merely to identify signatures of executants but also to prove that executants put their signatures on documents within their view.

(b) Gift--

----Proof of---Protection given to paradanashin lady---Scope---Execution of document---Admission by executant---Effect---Plaintiffs were real sisters who filed suit against their brother with regard to house in question---Trial Court decreed suit in favour of plaintiffs and findings were maintained by Lower Appellate Court---Validity---Beneficiary of transaction or a document was obligned to prove the transaction of document (Gift deed) in accordance with Qanun-e-Shahadat, 1984--- Such transaction whether a gift or release deed had to be proved by convincing evidence satisfying conscious of court that document in question was executed by donor in favour of donee/beneficiary---Essential ingredients of a valid gift were; (i) declaration of a gift, (ii) acceptance of gift and, (iii) delivery of possession to donee---In the present case, satisfaction of declaration of gift was disputed by plaintiffs--- Where there was no declaration of gift, question of its acceptance did not arise---Plaintiffs were well-educated ladies who were not young vulnerable girls but were in their thirties and both were married, therefore, were not financially or otherwise dependent on their brother---Protection of law was given to pardanasheen illiterate ladies could not be extended to plaintiffs---Plaintiffs were reckless or negligent in executing release deed which could not be a valid ground for its cancellation and plaintiffs had only themselves to blame for not reading documents which they signed and affixed their thumbprints on---High Court declined to accept stance of plaintiffs that they did not come to know about release deed dated 30-05-2009 until June, 2013 as same was a registered document and operated as notice to public---Defendant had given plaintiffs their due share in his father's other properties and had also relinquished his own share in land in favour of one of the plaintiffs---One of the plaintiffs admitted that she was not pressurized into signing release deed and plaintiffs did not plead in plaint that defendant had abused his dominant position by making his sisters execute release deed in his favour---Defendant produced two marginal witnesses of release deed to depose that they had signed release deed as witnesses---Plaintiffs did not deny signing of release deed by marginal witnesses---Errors in observations and conclusions reached by both courts below were large---High Court in exercise of revisional jurisdiction set aside concurrent judgment and decrees passed by two courts below resulting into dismissal of plaint---Revision was allowed in circumstances.

Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi 2013 SCMR 868; Nabi Bakhsh v. Fazal Hussain 2008 SCMR 1454; Habib Khan and others v. Mst. Bakhtmina and others 2004 SCMR 1668; Amir Haider v. Shabbir Ahmad through Legal Heirs and others 2000 SCMR 859; Muhammad Akhtar v. Mst. Manna and others 2001 SCMR 1700; Syed Zulifqar Hussain Naqvi v. Syed Gulzar Hussain Shah 2005 YLR 2817; Noor Muhammad v. Jamal Din and others 2000 CLC 305; Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema 2016 SCMR 763; Jehanzeb v. Muhammad Israr 2014 YLR 1939, Mrs. Nasreen Awan v. M. Sadiq 1989 ALD 136(2); Shouket Ali v. Muhammad Anwar 2004 MLD 875; Sahib Noor and others v. Feroz Khan 1992 MLD 2563; Munir Hussain and others v. Raja Mushtaq Ahmad PLD 2006 Lah. 48; Ghulam Bheek and others v. Mst. Salamat Bibi and others 2001 CLC 1078; Taisei Corporation v. A.M Construction Company PLD 2012 Lah. 455; Abdul Hameed through L.Rs. and others v. Shamasuddin and others PLD 2008 SC 140; Muhammad Ashraf v. Muhammad Tahir Ismail and others 2011 MLD 1848;, Kalsoom Akhtar v. Fazal Noor and others 2000 MLD 1653; Mst. Farzana Khatoon v. Mst. Bushra and others PLD 1994 Kar. 92; Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384; Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Baja through L.Rs. and others v. Mst. Bakhan and others 2015 SCMR 1704; Muhammad Nazir v. Khurshid Begum 2005 SCMR 941; Muhammad Boota v. Mst. Rashidan BIbi and others 2008 SCMR 343; Syed Shabbir Hussain Shah v. Asghar Hussain Shah and others 2007 SCMR 1884 Fateh Khan (deceased) through L.Rs. v. Surriya Begum 2006 SCMR 930; Mst. Khurshid Bibi and others v. Ramzan and others 2005 CLC 1714; Khair Din v. Mst. Salaman and others PLD 2002 SC 677; Haji Khuda Bukhsh and others v. Deputy Registrar, Cooperative Societies, Punjab, Lahore and others PLD 2007 Lah. 341; Syed Muhammad Baqir Shah v. Farida Sajid 2013 CLC 52; Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5; Muhammad Tufail and others v. Akbar Ali and others 2004 SCMR 1370; Abu Bakar and others v. Mst Khayber Jan 2014 YLR 178; Ayub Khan v. Mst. Makhnoon 2010 CLC 870; Ch. Muhammad Boota v. Mst. Bano Begum 2003 CLC 485; Muzaffar Khan v. Additional District Judge and others 2014 CLC 318; Dr.Ijaz Ahmad v. Mst. Nasreen Akhtar 2005 SCMR 1259; Mst. Zainab Khatoon v. Amir Abdullah Khan PLD 2004 Lah. 330; Mehmood Ahmad v. Malik Abdul Ghafoor PLD 2011 Lah. 522; Iqbal Ahmad Sabri v. Fayyaz Ahmad 2007 CLC 1089; Bashir Ahmed v. Akbar Ali 2005 MLD 2830; Mirza Muhammad Sharif v. Mst. Nawab Bibi 1993 SCMR 462; Chaudhry Manzoor Ahmed v. Faisal Manzoor 2016 YLR 671; Asif v. Mst. Sangeeta 2013 CLC 1597; Syed Imdad Hussin Shah v. Syed Makhdoom Hussain Raza 2010 CLC 722; Mrs. Khalida Azhar v. Rustam Ali Bakhshi 2007 CLC 339; Muhammad Aslam v. Rehmat Ali 2000 MLD 1459; Amjad Ikram v. Mst. Asiya Kauser 2015 SCMR 1; Rab Nawaz v. Ghulam Rasool 2014 SCMR 1181; Noor Muhammad v. Azmat-e-Bibi 2012 SCMR 1373; Khan Muhammad v. Muhammad Din 2010 SCMR 1351; Aurangzeb v. Muhammad Jaffar 2007 SCMR 236; Irshad Hussain v. Ijaz Hussain PLD 1994 SC 326; Muhammad Tufail v. Muhammad Aslam Khan 1999 YLR 934; National Bank of Pakistan v. Mst. Hajra Bai PLD 1985 Kar. 431; Aisha Bai v. Usman Muhammad PLD 1967 Kar. 733; Martin Cashin v. Peter J. Cashin AIR 1938 PC 103; Abdul Majeed v. Amjad Farooq 2008 YLR 61; Khadim Hussain v. Rasheed Ahmad 2008 MLD 81 and Nizamuddin v. Sheikh Zia-ul-Qamar 2016 SCMR 24 ref.

Sajid Abbas Khan for Petitioner.

Muhammad Shoaib Sheikh for Respondents Nos. 1 to 3.

Ms. Sitwat Jehangir for Respondent No.5.

P L D 2019 Islamabad 299

Before Shaukat Aziz Siddiqui, J

ASHFAQ AHMED---Petitioner

Versus

C.D.A. and others---Respondents

Writ Petitions Nos.2303, 2209, 2108, 763, 4196 of 2012, 770, 325, 345 of 2013, 2552 of 2006, 3152, 1095, 231, of 2011, 4789 of 2010 and 4740 of 2016, decided on 4th May, 2018.

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

----Ss. 37, 38, 49 & 51---Islamabad Land Disposal Regulations, 2005, Reglns. 2(f), 4 & 5---Allotment of residential plots---Duration of service---Regular Employees and Deputationists---Petitioners were employees of Capital Development Authority and their grievance was that deputationists should not be considered as regular employees of Capital Development Authority for purpose of allotment of residential plots from 20% quota reserved for Capital Development Authority employees---Petitioners were also aggrieved of reducing length of service for entitlement of plots---Validity---Any person working with Capital Development Authority on deputation could not be considered a regular employee as he was not governed under Service Regulations framed by the Authority on strength of S.37 of Capital Development Authority Ordinance, 1960---Provisions of Regln. 2(f) of Islamabad Land Disposal Regulations, 2005 were inconsistent with Ss. 37 & 38 of Capital Development Authority Ordinance, 1960 as these sections provided no room that deputationists could be considered as regular employees of Capital Development Authority---Deputationist remained at strength of parent department until and unless he was absorbed in borrower department and in case of his absorption; his name was placed at the end of seniority list of his cadre---Seniority of deputationist remained intact in his parent department and deputation did not debar his consideration for promotion in parent department, therefore, a deputationist was always considered as regular employee of his parent department---Provision of Regln. 2(f) of Islamabad Land Disposal Regulations, 2005 to extent that it included deputationists as employees of Capital Development Authority was against Constitution as it violated Fundamental Rights of regular employees of Capital Development Authority therefore, Regln. 2(f) of Islamabad Land Disposal Regulations, 2005 was liable to be declared unconstitutional, void and rarity in eyes of law---High Court further declared that reduction in required length of service for allotment of plots for employees of BS-1 to BS-16 from 10 years to 08 years was illegal and void and for all employees, irrespective of their grade, required length of service would remain as 10 years---Constitutional petition was allowed accordingly.

Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Suo Motu Case No.13 of 2009 PLD 2011 SC 619; Khawaja Ahmad Hassan's case 2005 SCMR 186 and Shahid Pervaiz v. Ejaz Ahmad and others 2017 SCMR 206 ref.

Niaz Ullah Khan Niazi, Sher Afzal Khan Marwat, Hafiz Arfat Ahmad Chaudhry, Kashifa Niaz Awan, Sadia Noureen, Muhammad Umair Baloch, Misbah Ashiq, Faisal Bin Khurshid Hunain Tariq, Raja Inam Amin Minhas, Ch. Muhammad Aslam Warraich and Muhammad Yousaf for Petitioners.

Dr. Hamid Nawaz for Petitioner (In W.P. No.2209/2012 and W.P. No.770 of 2013.

Nemo for Petitioners (in W.Ps. Nos. 3152/2011 and 2552 of 2006).

Raja Khalid Mehmood Khan, Deputy Attorney General for Respondent.

P L D 2019 Islamabad 316

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

Sayed ZULFIKAR ABBAS BUKHARI---Petitioner

Versus

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

Writ Petition No.3960 of 2018, decided on 12th December, 2018.

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

----S. 2---Placing name on Exit Control List---Inquiry by National Accountability Bureau (NAB)---Special Assistant to Prime Minister (petitioner), who held dual citizenship, was facing inquiry by National Accountability Bureau (NAB) for setting up offshore companies in a foreign country---On the recommendation of NAB name of petitioner was placed on Exit Control List on the basis of an apprehension that he might abscond and leave Pakistan as he was not cooperating with NAB---Legality---After recommending placing name of petitioner on Exit Control List, the Chairman NAB later on recommended removing name of petitioner from the said List as a 'one time permission---Such 'one time permission' negated the stance of NAB inasmuch as if the petitioner had to abscond, he might do so pursuant to a one time permission to leave Pakistan---Such state of affairs clearly indicated that NAB did not genuinely believe in the reason advanced by it while recommending name of petitioner to be placed on the Exit Control List---Investigating officer admitted that the petitioner did attend inquiry proceedings as and when call up notices were issued to him, thus, there was nothing on record to show that the petitioner had not cooperated with NAB---Federal Government while placing name of petitioner on Exit Control List did not apply its mind and acted mechanically on the recommendations of NAB---High Court gave directions to the Federal Government for removing name of petitioner from the Exit Control List---Constitutional petition was allowed accordingly.

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

----S. 2---Placing name on Exit Control List --- Federal Government, duty of---Scope---When name of an individual was placed on the Exit Control List (ECL), his freedom of movement was curbed and the same amounted to violation of Fundamental Rights---In such state of affairs, the power/authority was to be exercised by the executive sparingly after taking into account relevant facts and circumstances---Any recommendation by an investigative agency to place name of an individual on the Exit Control List was not to be followed by the Federal Government in a mechanical fashion.

Government of Pakistan and another v. Dada Amir Haider Khan PLD 1987 SC 504 ref.

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

----S.2---Placing name on Exit Control List---Pendency of an inquiry---Mere pendency of an inquiry would not justify denial of a guaranteed fundamental Right of a citizen to travel abroad.

Mst. Nasreen Begum and another v. Ministry of Interior, Government of Pakistan through its Secretary and 2 others PLD 2012 Isl. 17; Inam Akbar v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2016 Lah. 553; Mian Ayaz Anwar v. Federation of Pakistan through Secretary Interior and 3 others (PLD 2010 Lah. 230, Pakistan Muslim League (N) v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642; Wasatullah Jaffery v. Ministry of Interior through Secretary, Federal Government of Pakistan and 4 others PLD 2014 Sindh 28; Yusuf J. Ansari v. Government of Pakistan through Secretary Ministry of Interior, Islamabad and another PLD 2016 Sindh 388; Wajid Shamas-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617 and Dr. Joseph Wilson v. Federation of Pakistan through Secretary Ministry of Interior and others 2017 PCr.LJ 1569 ref.

Sikandar Bashir Mohmand for Petitioner.

Raja Khalid Mehmood Khan, Deputy Attorney General for Respondents.

Imran Shafique, Special Prosecutor NAB.

Ahmed Saeed Wazir, Deputy Director/I.O. NAB.

P L D 2019 Islamabad 331

Before Aamer Farooq

and Mohsin Akhtar Kayani, JJ

ADMINISTRATOR ISLAMABAD CLUB through Secretary Islamabad Club, Islamabad---Appellant

Versus

Mrs. B. AYISHA MUSTAFA and another---Respondents

Intra Court Appeal No.49 of 2017 and Writ Petition No.2219 of 2011, decided on 17th December, 2018.

(a) Islamabad Club (Administration) Ordinance (XXXIII of 1978) ---

----S. 10---Constitution of Pakistan. Art. 199---Islamabad Club---Refusal to grant membership---Constitutional petition filed against Islamabad Club for refusing membership---Maintainability---Rules for Islamabad Club made under S.10 of the Islamabad Club (Administration) Ordinance, 1978 were for its internal management and control, hence they could not be termed as statutory---Constitutional petition under Art.199 of the Constitution was not maintainable for enforcement of non-statutory Rules or for civil rights---Essence of a club was to regulate its membership and/or govern its internal functioning and any interference made to such regulations and affairs by the Courts would defeat the concept of the club---Decision to oust members and/or refuse membership was the sole prerogative of the Administration of Islamabad Club and such decision or administrative matters were not justiciable in a constitutional petition under Art.199 of the Constitution.

Aitchison College, Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326; Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244; Syed Ali Gohar Shah v. Asif Ali Zardari and 3 others 1999 MLD 3258; Anoosha Shaigan v. Lahore University of Management Sciences through Chancellor and others PLD 2007 Lah. 568; Pakistan Decence Offiers Housing Authority v. Itrat Sajjad Khan and others 2017 SCMR 2010; The Principal Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170 and Muhammad Zaman and others v. Government of Pakistan through Secretay, Finance Division (Regulation Wing) Islamabad and others 2017 SCMR 571 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Constitutional petition under Art.199 of the Constitution was not maintainable for enforcement of non-statutory Rules or for civil rights.

Wasim Abid for Appellant (in I-C.A. No.49 of 2017).

Idrees Ashraf for Respondent No.1 (in I-C.A. No.49 of 2017).

Raja Niaz Ahmad Rathore for Petitioners (in W.P. No.2219 of 2011).

Wasim Abid for Respondents Nos. 2 and 3 (in W.P. No.2219 of 2011).

P L D 2019 Islamabad 339

Before Athar Minallah, C J

MUHAMMAD SHOAIB RAZZAQ---Petitioner

Versus

FEDERATION OF PAKISTAN through

President and 5 others---Respondents

Writ Petition No.786 of 2019, decided on 1st March, 2019.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Government decision relating to foreign policy, defence and security of the country---Petitioner had filed present constitutional petition aggrieved of the decision by the Prime Minister to release a pilot of a foreign air force who was detained after his aircraft was shot down by the Pakistan Air Force---Held, that decision taken by the Prime Minister to release the detained pilot pertained to policy matters in the context of foreign policy, defence and security of the country and thus was outside the realm of judicial review---Admittedly the Prime Minister had announced the release of the detained pilot on the floor of the House and that too during the joint session of the Majlis-e-Shoora (Parliament)---Not a single Member of the National Assembly or the Senate had raised any objection when the announcement was made by the Prime Minister---Joint session of the Majlis-e-Shoora (Parliament) was held to deliberate upon the tense situation at the borders---Majlis-e-Shoora (Parliament) represented every citizen of the country---Patriotism of the Members of the Majlis-e-Shoora (Parliament) was beyond doubt and, therefore, apprehensions of the petitioner in such regard were misplaced and not warranted---Petitioner could not satisfy the Court that his Fundamental Rights would be violated if the detained pilot was handed over to the authorities of his State---Decisions which were taken by the Majlis-e-Shoora (Parliament), particularly during challenging times, were inevitably required to be respected and upheld---Majlis-e-Shoora (Parliament) was competent to affirm policies of the Government and after such affirmation, they could not be subjected to judicial review---Constitutional petition being not justiciable was dismissed.

Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan and another 2014 SCMR 111 and Syed Yousaf Raza Gillani, Prime Minister of Pakistan v. Assistant Registrar, Supreme Court of Pakistan and another PLD 2012 SC 466 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Matters of foreign policy, defence and security of the country---Such issues were neither justiciable nor fell within the domain of a High Court for interference under Art. 199 of the Constitution.

(c) Constitution of Pakistan---

----Art. 199 & Pt. II, Chapt. 1 [Arts. 8 to 28]---Constitutional jurisdiction of the High Court---Scope---Government policy---Courts exercised judicial restraint in policy matters except in cases where it could be explicitly demonstrated that because of the policy, Fundamental Rights were being violated.

OGRA through Secretary v. Messrs Midway II, CNG Station and others 2014 SCMR 220; Messrs Power Construction Corporation of China Ltd. through Authorized Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others PLD 2017 SC 83 and Mehmood Khan Achakzai and others v. Federation of Pakistan and others PLD 1997 SC 426 ref.

P L D 2019 Islamabad 343

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

Mian MUHAMMAD NAWAZ SHARIF---Petitioner

Versus

The STATE through Chairman, National Accountanbility Bureau, Islamabad and others---Respondents

Writ Petition No.352 of 2019, heard on 20th February, 2019.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a) & (b)---Criminal Procedure Code (V of 1898), S.426---Suspension of sentence---Medical grounds---Multiple ailments---Petitioner was convicted and sentenced by Accountability Court to imprisonment who sought suspension of sentence on grounds of his medical condition---Validity---Petitioner had a history of various cardiac complications and was a chronic kidney patient and had high blood pressure and diabetes---Medical condition of petitioner was not too serious when his medical condition deteriorated, only then suspension of sentence was sought---All medical reports of petitioner confirmed that he had above history and was also recommended for medical treatment and in such cases, medical reports and opinions of doctors was of utmost importance---None of reports suggested that continued incarceration of petitioner, in any way, was detrimental to his life---High Court declined to suspend sentence of petitioner as petition was without merit---Constitutional petition was dismissed in circumstances.

Pervaiz Akhtar v. Muhammad Inayat and 4 others 1995 SCMR 929; Syed Saud Aziz v. The State and another (W.P. No.2569/2017 and 2570-2017), Amjad Hussain Gurchani v. Sajjad Haider Khan and another 2004 SCMR 12; The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Muhammad Arshad v. The State and another 1997 SCMR 1275; Mian Manzoor Ahmad Watto v. The State 2000 SCMR 107; Zakhim Khan Masood v. The State 1998 SCMR 1065; Pirdous Paul v. The State 2004 SCMR 15; Haji Hussain v. The State 2018 YLR 876; Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Dr. Sher Dil Batra and others v. Director, Federal Investigation Agency and others 1995 PCr.LJ 1541; Tallat Ishaq v. National Accountability Bureau through its Chairman and others (Civil Petition No.632-2018); NAB through its Chairman, Islamabad v. Murad Arshad and others (Civil Petition No.1707-2018); Chairman, National Accountability Bureau, Islamabad through Prosecutor General Accountability, Islamabad v. Mian Muhammad Nawaz Sharif (Civil Appeals Nos.1340, 1341 and 1342 of 2018 and Civil Miscellaneous Application No.9985 of 2018 in Civil Appeal No.1340-2018); Sharjeel Inam Memon v. National Accountability Bureau 2018 SCMR 2023; Muhammad Siddique v. The State and another 2014 SCMR 304; Mian Nazir Akhtar v. The State 2016 SCMR 1536; Dadio v. Sobharo and another 2010 SCMR 576 and The State v. Haji Kabeer Khan PLD 2005 SC 364 ref.

Kh. Haris Ahmad, Advocate Supreme Court, Sher Afghan Asdi, Advocate Supreme Court. Muhammad Zubair Khalid, Advocate Supreme Court, Munawwar Iqbal Duggal, Ghulam Haider Subhani, Ibraheem Haroon and Jahangir Khan Jadoon for Petitioner.

Jahanzeb Ahmad Bharwana, Additional Prosecutor General, NAB, Sardar Muzaffar Ahmad Abbasi, Deputy Prosecutor General, NAB, Muhammad Asghar Awan, Special Prosecutor, NAB, Irfan Ahmad Boola, Special Prosecutor, NAB for Respondents.

Sadaqat Ali Jahangir, State Counsel with Dr. Qadeer Alam, AIG (Judicial and Legal), Punjab Prisons representing Home Secretary, AAC, Home for Respondents.

P L D 2019 Islamabad 352

Before Miangul Hassan Aurangzeb, J

HABIB BANK LIMITED---Petitioner

Versus

ABDUL SATTAR SIDDIQUI and others---Respondents

Writ Petition No.2934 of 2016, decided on 15th February, 2019.

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

----Art. 32---President of Pakistan while hearing and deciding representation against order or decision of Wafaqi Mohtasib does so not in his capacity as the President of Pakistan but as a persona designata under Art.32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983---Any persona designata while conducting or presiding over proceedings under a special law cannot exercise powers not vested in him by such special law---President of Pakistan acting in exercise of jurisdiction under Art.32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 cannot arrogate to himself powers under the Constitution or some other law and issue direction in purported exercise of such power.

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

----Art. 32---Constitution of Pakistan, Art.48(1)---President of Pakistan, powers of---Direction to Finance Ministry---Respondents were retired employees of petitioner Bank who filed complaint before Wafaqi Mohtasib assailing rates of pensionary benefits as the same were not at par with those of Federal Government retired civil servants---President instead of deciding appeal filed by petitioner Bank referred the matter to Finance Ministry for consideration---Validity---Order of the President was silent as to provision of law or Constitution in exercise of which directions in question were issued by him after converting complaint of respondent before Wafaqi Mohtasib into a petition before the President of Pakistan---Provisions of Art.48(1) of the Constitution provided that in exercise of his functions, the President was to act on and in accordance with advice of the Cabinet or Prime Minister---No advice was given by the Cabinet or Prime Minister for issuance of directions given by the President to the authorities---High Court set aside directions issued by the President to Finance Division as those were without lawful authority and of no legal effect---Constitutional petition was allowed accordingly.

Abdur Rehman v. Federation of Pakistan 2010 PLC (C.S.) 619; Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 1989 SC 109; Nawab Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Dr. Akhtar Hassan Khan v. Federation of Pakistan 2012 SCMR 455; Pakistan International Airlines Corporation v. Wafaqi Mohtasib 1998 SCMR 841; Muslim Commercial Bank Ltd. v. Momin Khan 2002 SCMR 958; Pakistan International Airlines Corporation v. Caption M.S.K. Lodhi 2002 SCMR 1004; Civil Aviation Authority v. Wafaqi Mohtasib (Ombudsman) PLD 2001 Kar. 304; Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189; Dr. Zahid Javed v. Dr.Tahir Riaz Chaudhary PLD 2016 SC 637; University of the Punjab, Lahore v. Ch. Sardar Ali 1992 SCMR 1093; Dr. S.C. Barkat v. Hari Vinayak Pataskar AIR 1962 Mad. Pra. 73; Muhammad Khalid v. Muhammad Naeem PLD 2012 Lah. 492; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104; Muhammad Tariq Khan v. Khawaja Muhammad Jawad 2007 SCMR 818; Rehmatullah and others v. Saleh Khan 2007 SCMR 729; Talib Hussain v. Member Board of Revenue 2003 SCMR 549; Pakistan Industrial Promoter v. Nawazish Ali Jafri 2003 YLR 1277 and Crescent Sugar Mills and Distally Limited v. Central Board of Revenue PLD 1982 Lah. 1 ref.

Shahid Anwar Bajwa and Ms. Faiza Naseer Chaudhry for Petitioner.

Abdul Rahim Bhatti, Yasser Rahim Bhatti and Hassan Rashid Qamar for Respondent No.1.

Rashid Hafeez, Deputy Attorney-General.

Ms. Sitwat Jahangir, Assistant Attorney-General.

Abid Afridi, Assistant, Finance Division, Ms. Mehraj Tareen for Applicant (in C.M.No.2047 of 2017).

P L D 2019 Islamabad 365

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

Shahzada SIKANDAR UL MULK and 4 others---Petitioners

Versus

CAPITAL DEVELOPMENT AUTHORITY and 4 others---Respondents

Writ Petition No.676 of 2017, decided on 9th July, 2018.

(a) Islamabad Capital Territory (Zoning) Regulations, 1992---

----Reglns. 2(20), 4(2) & 4(A)(iv)---Construction in Zone-I---Scope---No new building or house can be constructed on any land in Zone-I where he is a native resident defined under Regln. 2(20) of Islamabad Capital Territory (Zoning) Regulations, 1992 or any other person.

(b) Islamabad Capital Territory (Zoning) Regulations, 1992---

----Regln. 4(3)---Construction in Zone-III---Scope---Complete ban existed on sale or purchase of land which may involve change in land use and construction of buildings for residential purposes.

(c) Islamabad Capital Territory (Zoning) Regulations, 1992---

----Regln. 4(4)(a)(b) & (c)---Construction in Zone-IV---Scope---Master plan acknowledges entire area to be environmentally sensitive therefore special conditions have been prescribed---Area was to be preserved and only restricted buildings could be constructed which has been described in Islamabad Capital Territory (Zoning) Regulations, 1992.

(d) Interpretation of statutes---

----Special law prevails over general law.

2017 SCMR 1999 and Hafeez Ahmed and others v. Civil Judge, Lahore and others PLD 2012 SC 400 rel.

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

----S. 6, 50 & 51---Islamabad Capital Territory Administration Order (18 of 1980), Art.2---Islamabad Capital Territory--- Chief Commissioner, jurisdiction of---Scope---Other than aiding and assisting Capital Development Authority, enforcing legislative intent in enacting Capital Development Authority Ordinance, 1960 Chief Commissioner has no role nor is vested with power or jurisdiction in matters relating to planning and development of Islamabad Capital Territory as 'Capital of Pakistan'---Chief Commissioner and all functionaries within his jurisdiction owe a fiduciary duty to people of Pakistan in general and to residents of Islamabad Capital Territory to ensure through administrative machinery under their control that authority is enabled to implement and give effect to Capital Development Authority Ordinance, 1960 and regulations and rules thereunder.

(f) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Availability of clean water and keeping environment free from pollution has a direct nexus with fundamental right guaranteed to every person under Art.9 of the Constitution.

(g) Interpretation of statutes-

----Statutory provisions and executive order---Conflict---Effect---Statutory provisions would override an Executive order or a policy, in case of conflict, even if that had been approved by the Cabinet.

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

----S. 49-C--- Islamabad Capital Territory (Zoning) Regulations, 1992, Reglns. 2(20), 4(2), 4(A)(iv), 4(3) & 4(4)(a)(b) & (c)---Petitioners have assailed construction of buildings in Zones I, III and IV of Islamabad Capital Territory where any type of construction was prohibited---Plea raised by respondents was that they had sought permission from Chief Commissioner Islamabad Capital Territory and Union Councils respectively---Validity---Complete ban existed on construction, change in land use and sale/purchase of land which could entail change in land use---Purpose or sale of land entailing change in land use and any construction made thereon was illegal, without lawful authority and jurisdiction---Buildings constructed in Zone-IV in violation of Regln.4(4) of Islamabad Capital Territory (Zoning) Regulations, 1992 were also illegal---Capital Development Authority was not vested with power or jurisdiction to allow directly or indirectly any construction in Zone-IV in violation of Islamabad Capital Territory (Zoning) Regulations, 1992---Concerned Union Councils were not empowered to regulate construction in that area---Such approvals were illegal and without lawful authority and jurisdiction as same were given in violation of master-plan, provisions of Capital Development Authority Ordinance, 1960 read with Islamabad Capital Territory (Zoning) Regulations, 1992 and any such approval was without legal effect---High Court directed Federal Government to take steps of constituting a commission of international experts to review existing master plan and to assess its efficacy---High Court also directed authorities that no building or construction would be regularized unless Federal Government had certified pursuant to recommendations made by commission so constituted---High Court further directed Federal Government to take steps to make environmental tribunals functional---Constitutional petition was allowed accordingly.

Suo Motu Case No.13 of 2009 PLD 2011 SC 619; Suo Motu Case No.10 of 2007 PLD 2008 SC 673; Abdul Qadeeer Khan and others v. Chairman, Capital Development Authority 1999 YLR 247; Khawaja Ahmed Hassan v. Government of the Punjab and others 2005 SCMR 186; Mian Zia ud Din v. Punjab Local Government and others 1985 SCMR 365; Capital Development Authority through Chairman and others v. Dr. Abdul Qadeer Khan and others 1999 SCMR 2636; Haq Nawaz Khan and others v. Rab Nawaz and others 1992 SCMR 993; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division PLD 2012 SC 132; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Suo Motu Case No.25 of 2009 2001 SCMR 1743; General Secretary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Deveopment Punjab, Lahore 1994 SCMR 2061; Ali Sarwar and others v. Syed Shujat Ali Naqvi and others PLD 2011 SC 519; Muhammad Ikhlaq Memon v. Capital Development Authority through Chairman 2015 SCMR 294; Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 PLD 2010 SC 759; Saad Mazhar and others v. CDA and others 2005 SCMR 1973; Maulvi Iqbal Haider v. CDA, and others PLD 2006 SC 394; Application by Abdul Rehman Farooq Pirzada PLD 2013 SC 829; Ghazala Tehsin Zohra v. Mehri Ghulam Dastagir Khan and another PLD 2015 SC 327 and Syed Mansoor Ali Shah and 4 others v. Government of Punjab, through Housing Physical and Environmental Planning Department, and 3 others PLD 2007 Lah. 403 ref.

(i) Constitution of Pakistan---

----Art. 25---Discrimination, principle of---Applicability---Provision of Art.25 of the Constitution cannot be pleaded as a ground for justifying illegalities committed by others.

Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505 and Mst. Mukhtar Begum and others v. Ala-ud-Din and others 1999 SCMR 914 rel.

(j) Administration of justice---

----Doctrine of necessity is alien to rule of law.

Dr. Muhammad Aslam Khakhi, Syed Asghar Hussain Sabwari, Dr. Babar Awan, Sajjar Abbas Hamdani, Qausain Faisal Mufti, Tajammal Hussain Lathi, Malik Zafar Husain, Ishtiaq Ahmed Raja, Ms. Kalsoom Rafique and Ms. Yasmin Haider for Petitioners.

Fiaz Ahmed Anjum Jandran, Babar Sattar, Sultan Mazhar Sher, Waqar Hassan Janjua, Malik Qamar Afzal, Khurram Mehmood Qureshi, Muhammad Anwar Mughal, Ch. Hafeez Ullah Yaqoob, Muhammad Waqar Malik, Amjad Zaman, Muhammad Khalid Zaman, Mujeebur Rehman Kiani, Barrister Jehangir Khan Jadoon, Malik Mazhar Javed, Raja Inam Amin Minhas, Ch.Waqas Zamir, Fazal ur Rehman, Ms. Zaitoon Hafeez, Ms. Zainab Janjua, Barrister Amna Abbas; Ms.Ayesha Ahmad and Kashir Ali Malik and Amir Latif Gill for Respondents.

Tariq Mehmood Jahangiri, Advocate-General, Islamabad Capital Territory and Awais Haider Malik, State Counsel.

Asad Mehboob Kiyani, Member (P&D), Zafar Iqbal, Director (Master Plar), Faraz Malik, Director (HS), Sh. Ijaz, Director (Urban Planning), Arshad Chohan, Director (Rural Planning), for Capital Development Authority.

Mehrban Ali and Arbab Ali, Zoologists on behalf of Secretary, Ministry of Climate Change.

P L D 2019 Islamabad 406

Before Miangul Hassan Aurangzeb, J

ARIF-UZ-ZAMAN---Appellant

Versus

Mst. SABIR JAN and others---Respondents

R.S.A. No.09 of 2017, decided on 28th January, 2019.

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

----Ss.12, 42 & 54---Transfer of Property Act (IV of 1882), S.53-A--- Qanun-e-Shahadat (10 of 1984), Arts. 17, 79 & 129(g)---Agreement to sell---Proof---Part performance, protection of---Non-production of witnesses---Presumption---Plaintiff sought specific performance of agreement to sell executed by predecessor-in-interest of defendants on the ground that in consideration of part performance, possession was handed over to him who had constructed his house over plot in question---Defendants resisted the suit on plea of fraud and misrepresentation---Trial Court decreed suit in favour of plaintiff but Lower Appellate Court reversed the findings and dismissed the suit---Validity---Two attesting witnesses of agreement to sell were not produced by plaintiff in order to prove execution of the agreement---Plaintiff did not come up with any explanation for such monumental blunder on his part as he did not even know whether two attesting witnesses of the agreement were dead or alive--- Plaintiff failed to give any explanation for not producing attesting witnesses of the agreement and presumption was that if such witnesses were produced, their testimony would have been adverse to the plaintiff---Plaintiff did not discharge his burden of proving execution of agreement to sell in accordance with law---Plaintiff could not seek specific performance of agreement, the execution whereof he was not able to prove---High Court observed that right under S.53-A of Transfer of Property Act, 1882, could be used only as a shield and not as a sword---Such right was to protect a transferee who was willing to perform his part of agreement and was let in possession on pursuance of agreement of sale, from an oppressive claim set up by the transferor---High Court declined to interfere in judgment and decree passed by Lower Appellate Court---Second appeal was dismissed in circumstances.

Karim Bakhsh through L.Rs. and others v. Jindwadda Shah and others 2005 SCMR 1518; Abbas Ali Shah and others v. Ghulam Ali and another 2004 SCMR 1342; Farzand Ali v. Khuda Bakhsh PLD 2015 SC 187; Farid Bakhsh v. Jind Wadda 2015 SCMR 1044; Hafiz Tassaduq Hussain v. Muhammad Din PLD 2011 SC 241; Rafaqat Ali v. Mst. Jamshed Bibi 2007 SCMR 1076; Mst. Rasheeda Begum v. Muhammad Yousaf 2002 sCMR 1089 and Muhammad Arif v. Mahmood Ali 2003 MLD 954 ref.

Sardar Arshid Hussain v. Mst. Zenat un Nisa 2017 SCMR 608; Hikmat Khan v. Shamsur Rehman 1993 SCMR 428 and Taj Muhammad v. Yar Muhammad Khan 1992 SCMR 1265 rel.

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

----S. 53-A---Specifif Relief Act (I of 1877), Ss.12 & 42---Part performance of agreement, protection of---Pre-conditions:

Party can take shelter behind section 53-A of Transfer of Property Act, 1882, only when following conditions are fulfilled:

(i) Contract should have been in writing signed by or on behalf of transferor;

(ii) Transferee should have got possession of immovable property covered by the contract;

(iii) Transferee should have done some act in furtherance of the contract; and

(iv) Transferee had either performed his part of contract or was willing to perform his part of contract.

Protection of possession under section 53-A of Transfer of Property Act, 1882, is consequential or dependent on existence of a lawful, enforceable and proved contract:

Possession of immovable property obtained pursuant to provisions of written contract signed by transferor is a sine qua non for applicability of section 53-A of Transfer of Property Act, 1882.

(c) Document-

----Execution of document---Proof---Mere registration of a document in itself was not proof of its execution by a person who was alleged to have executed the same, if execution of such a document was denied by any of the parties in the litigation.

Ghulam Rasul v. Muhammad Hussain 1999 SCMR 2004 and Fauja v. Mst. Karim Khatoon 1993 MLD 1078 rel.

Sardar Haroon Sami for Appellant.

Ghulam Fareed Ch. for Respondents Nos. 1 to 8.

P L D 2019 Islamabad 422

Before Aamer Farooq, J

AFZAL KHAN SHINWARI---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.2408 of 2018, decided on 15th April, 2019.

(a) Constitution of Pakistan---

----Arts. 41(2) & 49---Chairman of the Senate---Acting President of Pakistan---Qualifications---Minimum age of 45 years---Plea of petitioner that under Art. 41(2) of the Constitution a person could not be elected as the President unless, he was a Muslim of not less than 45 years of age; that the Chairman Senate assumed the position of the acting President when the President was unable to discharge his duties; that the incumbent Chairman Senate was less than 45 years of age, therefore, he was not qualified to be appointed as the President and in turn not qualified to be notified as acting President---Held, that conjunctive reading of Arts. 41 & 49 of the Constitution showed that where office of the President was vacant or the President was unable to perform functions due to any reason, the Chairman Senate or Speaker National Assembly was to perform duties as acting President---Said arrangement was only temporary in nature as a stop gap arrangement until the President resumed his duties or was re-elected---Official report of debates of the National Assembly for making of the Constitution was placed on record, which specifically showed that an amendment in the proposed Constitution was suggested spelling out the eligibility/ qualification for the Chairman Senate and/or Speaker National Assembly but same was not carried---While framing the Constitution the Assembly was mindful of the fact that a person appointed as a Chairman Senate might be a non-Muslim and might have to act as President, in absence of regular incumbent, but decided to leave the issue open and did not make an amendment (under Art. 41 of the Constitution)---Framers of the Constitution chose the Chairman Senate or Speaker National Assembly to be the acting President by virtue of their designation---If the said persons had validly been elected as Senate Chairman or Speaker National Assembly inasmuch as they were qualified to be elected as such, they could be appointed as acting President---To hold that the incumbent Chairman of the Senate could not be appointed as acting President because he was not eligible to be appointed as such would amount to negating Art. 49 of the Constitution and make the same redundant, which could not be done---Incumbent Chairman of the Senate was not barred from assuming the role of acting President even though he was still not 45 years of age---Constitutional petition was dismissed accordingly.

Jameel Ramzan Dehwar, Advocate v. Sadiq Sanjrani and 3 others PLD 2018 Bal. 67 ref.

(b) Interpretation of statutes/Constitution---

----Parliamentary debates---In order to decide the intention of the legislature the court could look into Parliamentary debates. [p. 428] C

Zahoor Ahmed v. The State PLD 2007 Lah. 231; District Bar Association v. Federation of Pakistan PLD 2015 SC 401; Pepper (Inspector of Taxes) v. Hart 1993 SCMR 1019; Mohammad Mubeeq us Salam v. Federation of Pakistan PLD 2006 SC 602 and 1993 SCMR 1019 ref.

(c) Interpretation of Constitution --

----Redundancy could not be attributed to the framers of the Constitution---Constitution was to be interpreted in a manner, which may harmonize its various provisions or may not render any provision inoperative or redundant.

Shahid Nabi Malik v. Chief Election Commissioner PLD 1997 SC 32 and Pir Sabir Shah v. Federation of Pakistan PLD 1994 SC 738 ref.

Iftikhar Ahmad Bashir for Petitioner.

Rana Inam Amin Minhas, Raja Khalid Mehmood Khan, Deputy Attorney General and Ms. Rabeea Anwar, Joint Secretary, Senate for Respondents.

P L D 2019 Islamabad 434

Before Mohsin Akhtar Kayani, J

ABDUL QADAR AHSAN---Petitioner

Versus

ADDITIONAL DEPUTY COMMISSIONER (G), ISLAMABAD and another---Respondents

Writ Petition No.4606 of 2018 and Criminal Misc. No.150-B of 2019, decided on 15th May, 2019.

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

----Ss. 4 & 8---Constitution of Pakistan, Arts. 4, 9, 10-A & 15---Extradition to foreign country/non-treaty State---Minimum requirements for a prima facie case---Appearance of investigating officer of foreign country before Inquiry Magistrate in Pakistan---Petitioner, who was a dual national of Pakistan and United Kingdom (U.K) was accused of murder in U.K.---During investigation of the case in UK, petitioner was released on bail, where after he fled to Pakistan---Since no extradition treaty existed between Pakistan and U.K, Gazette notification under S.4 of the Extradition Act, 1972 was issued and ultimately, petitioner was arrested from within Pakistan---Consequently, after recording of evidence and statement under S.342 Cr.P.C. of the petitioner, Inquiry Magistrate passed the impugned order declaring that prima facie case was made out against the petitioner, therefore, he may be extradited to the U.K.---Held, that in cases which were at inquiry/investigation stage in foreign jurisdiction, the Inquiry Magistrate in Pakistan was bound to satisfy his conscience after perusal of documents, depositions, and affidavits brought before him---Investigating Officer of the foreign requesting State had to appear before the Inquiry Magistrate in Pakistan to substantiate his investigation being the minimum requirement to justify existence of prima facie case against a fugitive and mere submission of statements through postal channel before the Inquiry Magistrate was not permissible under law of Pakistan---Inquiry Magistrate with view to reach at just conclusion should call the investigating officer of the foreign requesting State who inquired and investigated the crime in his own jurisdiction due to the reason that such investigation officer had collected the evidence and other incriminating articles, recorded the statements of witnesses through which he believed the fugitive offender was linked with the alleged crime---Such investigation officer of foreign jurisdiction had to appear before Inquiry Magistrate in Pakistan to record his statement and such witness had to undergo test of cross-examination before the Inquiry Magistrate came to a definite conclusion as to whether a prima facie case had been made out against the fugitive offender or otherwise, failing which the admissibility of statement placed before the Inquiry Magistrate in shape of affidavit was of no legal worth---In the present case evidence collected by the investigating officer in the U.K comprised statements of seven witnesses, which were brought on record through the counter attested statement of said investigator---Inquiry Magistrate in Pakistan acted like a post office on the whims of U.K. government without considering the requirements under the law of Pakistan as to whether any statement given by any of the witness or investigating officer in a foreign jurisdiction/requesting State was to be considered valid for the purpose of extradition---Inquiry Magistrate in Pakistan had neither called the investigating officer of U.K. nor any witness, who could state all the facts to ensure that the requirements of prima facie case had been complied with or otherwise---Appearance of investigating officer of U.K. was essential for extradition of petitioner/fugitive offender and when the said officer was not put to test of cross-examination, the impugned order of Inquiry Magistrate had to be considered without any legal basis, which negated the very spirit of Arts.4, 9, 10-A and 15 of the Constitution, which provided minimum guarantees of due process of law and equal protection of law---Impugned order passed by the Inquiry Magistrate was set aside and the matter was remanded to the Inquiry Magistrate with the directions that he shall conclude the same within period of two months by calling statement of the investigating officer of the requesting State; that in case said investigating officer was unable to appear before the Inquiry Magistrate in Pakistan, then his statement will be recorded through video link; that if any judgment of conviction of a co-accused of the petitioner had been passed by the Court of competent jurisdiction in U.K., its certified copy duly attested by the authorities shall also be placed on record and the same shall be considered by the Inquiry Magistrate in de novo proceedings; that Federal Investigation Agency (FIA) Authorities shall ascertain after obtaining the report from NADRA as to whether petitioner had changed his personal details of identity in order to conceal his presence in Pakistan or otherwise and such material shall also be placed before the Inquiry Magistrate for final adjudication---Constitutional petition was allowed accordingly.

Muhammad Asim Malik v. Anwar Jalil and others PLD 1989 Lah. 279; Nargis Shaheen v. Federation of Pakistan PLD 1993 Lah. 732; Nasullah Khan Hunjra v. Government of Pakistan 1993 PCr.LJ 1082 and Zulqarnain Khan v. Government of Pakistan 1990 MLD 1611 ref

(b) Words and phrases ---

----'Prima facie'---Meaning. [p. 445] B

Muhammad Asim Malik v. Anwar Jalil PLD 1989 Lah. 279; Sui Gas Transmission Company v. Sui Gas Employees Union 1977 SCMR 220; Mst. Naz Shoukat Khan v. Mrs. Yasmin R. Minhas 1992 CLC 2540 and Muhammad Shahid v. Federation of Pakistan PLD 2018 Isl. 258 ref.

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

----Ss. 4 & 8---Qanun-e-Shahadat (10 of 1984), Preamble---Extradition to foreign country/non-treaty State---Record received from requesting foreign country, authentication of---Petitioner, who was a dual national of Pakistan and United Kingdom (U.K.) was accused of murder in U.K.---During investigation of the case in UK., petitioner was released on bail, whereafter he fled to Pakistan---Because of no extradition treaty between Pakistan and U.K, Gazette notification under S.4 of the Extradition Act, 1972 was issued and ultimately, petitioner was arrested from within Pakistan---Inquiry Magistrate in Pakistan passed the impugned order declaring that prima facie case was made out against the petitioner, therefore, he may be extradited to the U.K.---Held, that the prosecution submitted statement of investigating officer in U.K., which included the background history of the case, the relevant extracts of witness's statement, warrant of arrest, and the photographs of the fugitive offender for his identity including his finger prints---Entire background of the case had been submitted in the shape of depositions,through diplomatic channel in Pakistan by the requesting State/U.K. to the relevant Director in Ministry of Foreign Affairs, Pakistan but this entire record was signed and sealed by a Magistrate Court in U.K.---Surprisingly no one on behalf of the Federal Government of Pakistan had put appearance before the High Court to authenticate that all said record had been received from requesting State i.e. U.K. in the office of Ministry of Foreign Affairs rather said documents had been placed on record directly by a Public Prosecutor of Federal Investigation Agency (FIA), who was not authorized person under the law as no other document had been exhibited, through which it could be assumed that a notified officer of Federal Government was appointed in this case under Extradition Act, 1972 to submit the documentary evidence of the requesting State against fugitive offender before the Inquiry Magistrate---Minimum requirement was that the person/officer of the Federal Government i.e. from Ministry of Foreign Affairs or Ministry of Interior as the case may be, who received the documents from the requesting State had to authenticate that all the documents were genuine, duly attested by Attorney General as well as Department of Justice or Court of law of requesting State---In order to reach at just conclusion, it was necessary for the Inquiry Magistrate to call the official witness of Government of Pakistan, especially from Ministry of Interior or Ministry of Foreign Affairs, who received the documents from the requesting State---Such recipient shall appear before the Inquiry Magistrate, in order to confirm that the original documents had been brought before the Magistrate of Inquiry through a channel notified by the Government of Pakistan---Such practice would eliminate any doubt or falsity of documents---Minimum requirement for a foreign document had to be considered in terms of law of Pakistan, which provided existence of those foreign documents, if the same had been authenticated in the manner provided in Qanun-e-Shahadat, 1984---In the present case the record placed before the Inquiry Magistrate was not valid as the competent authority did not attest these documents in Pakistan nor any certificate to that effect had been exhibited before the Inquiry Magistrate---Impugned order passed by the Inquiry Magistrate was set aside and the matter was remanded to the Inquiry Magistrate with the directions that he shall conclude the same within period of two months by calling statement of the competent officer from Ministry of Foreign Affairs, who received the certified record from the requesting State---Constitutional petition was allowed.

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

----S. 8(2)---Extradition to foreign country/non-treaty State---Inquiry proceedings before Magistrate---Procedure and nature---Proceedings before the Inquiry Magistrate were not summary proceedings, rather they were to be conducted in the same manner as a Sessions trial---Extradition Act, 1972 provided a complete mechanism to the fugitive offender to defend himself against the requisition made by requesting foreign State to the Federal Government of Pakistan for surrender of such fugitive offender---As such, the Inquiry Magistrate was to conduct the trial after giving full opportunity of producing evidence to the parties i.e. requesting foreign State (which seeking requisition of fugitive offender) as well as the fugitive offender---Inquiry Magistrate was to adopt every mode to dig out the truth.

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

----Ss.4, 6, 7, 8 & 9---Qanun-e-Shahadat (10 of 1984), Arts. 94 & 96---Extradition to foreign country/non-treaty State --- Inquiry proceedings before Magistrate---Minimum requirements to be observed in cases of extradition stated:

Following are the minimum requirements to be observed in cases of extradition:

(i) Request by a foreign State for extradition of person;

(ii) The presence of fugitive offender before the Inquiry Magistrate;

(iii) Submission of authenticated judicial documents stating the facts and allegations, by way of deposition, warrants, or statements on oath along with the certificate of authority of the requesting State i.e. by the Secretary of State, Attorney General or any court of justice outside Pakistan;

(iv) In cases where judicial verdict had not yet been passed by the foreign court, the investigation officer of foreign jurisdiction/requesting State had to appear before the Inquiry Magistrate in Pakistan to justify the allegation on the basis of his own investigation, statement of witnesses or other incriminating articles collected by, him/her through which the prima facie view regarding involvement of fugitive offender was established on record;

(v) In case where the investigation officer of requesting State had not put appearance before the Inquiry Magistrate in Pakistan during the extradition proceedings, due to his own safety, security or any other valid reasons, his statement could be procured through a video link and the counsel for fugitive offender or his authorized representative could cross-examine the investigation officer in the office of Magistrate through the said facility of video link;

(vi) The documents which were received from foreign jurisdiction transmitted by requesting State should be duly attested by competent authority including Secretary of the State under the seal of Department of Justice, Attorney General Office, or court of law and same shall be submitted before the Inquiry Magistrate in Pakistan through the officer notified by the Government of Pakistan from Ministry of Interior or from Ministry of Foreign Affairs, who were the authorities under the law to receive and submit the documents of foreign jurisdiction to initiate extradition proceedings in Pakistan. Such officer had to appear in-person before the Inquiry Magistrate.

(vii) In cases, where the court of foreign jurisdiction i.e. the Court of requesting State, had passed judgment against the co-accused persons or the fugitive offender in the same case, its certified record should be considered valid for the purpose of extradition request without the presence of investigation officer before the Inquiry Magistrate as the foreign judgment was admissible and presumption of truth was attached to it in terms of Articles 94 and 96 of the Qanun-e-Shahadat, 1984. Even, the judicial pronouncement of conviction purported to be certified by judge/Magistrate or officer of the State had to be considered valid in terms of Section 9(2)(c) of the Extradition Act, 1972.

(viii) The Inquiry Magistrate shall proceed with the matter of extradition proceedings like a trial court, in the same manner as a Sessions court in terms of Section 8(2) of the Extradition Act, 1972.

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

----S. 497---Extradition Act (XXI of 1972), S. 4---Bail, refusal of---Apprehension of further abscondment---Accused-fugitive, who was dual national, was charged with murder in the United Kingdon (U.K.) and fled to Pakistan---Accused was arrested in Pakistan and faced extradition proceedings before the Inquiry Magistrate---Although the accused had been charged for the murder in United Kingdom (U.K.) and was taken into custody in Pakistan, any passing of findings at present stage qua the grounds of bail were not appropriate as it would affect the entire proceedings in the foreign jurisdiction---However, this did not mean that all the fugitive offenders, who had been taken into custody in Pakistan, were not entitled for concession of bail---Each and every case had to be dealt on its own merits and the Court was empowered to decide the post arrest bail application while considering the record of the case and the evidence brought on record---In the present case, the accused absconded from foreign jurisdiction and came to Pakistan, and if bail was allowed in his favour, there was apprehension that he might abscond again, which may result into delay of the extradition proceedings---Considering the conduct of accused who came to Pakistan without any notified channel and remained absconder despite the fact that he was interviewed by the police authorities in U.K. with respect to investigation of murder, disentitled him for the concession of bail---Post-arrest bail to accused was refused accordingly.

Barrister Usman G. Rashid Cheema for Petitioiner (in W.P. No.4606 of 2018).

Barrister Muhammad Mumtaz Ali, AAG., Muhammad Abu Bakar Naeem, RDM Branch, D.G. Office, ICT, Islamabad and Adeel S.I., FIA for Respondents (in W.P. No.4606 of 2018).

Barrister Usman G. Rashid Cheema for Petitioiner (in Crl. Misc. No.150-B of 2019.

Barrister Muhammad Mumtaz Ali, AAG., Muhammad Abu Bakar Naeem, RDM Branch, D.G. Office, ICT, Islamabad and Adeel S.I., FIA for Respondents ((in Crl. Misc. No.150-B of 2019.

P L D 2019 Islamabad 453

Before Mohsin Akhtar Kayani, J

HAROON RASHID and another---Petitioners

Versus

FOP through Secretary, Ministry of Interior and others---Respondents

Writ Petition No.1159 of 2017, decided on 3rd May, 2019.

(a) Words and phrases---

----Prima facie---Meaning. [p.] A

Muhammad Asim Malik v. Anwar Jalil PLD 1989 Lah. 279; Sui Gas Transmission Company v. Sui Gas Employees Union 1977 SCMR 220; Mst. Naz Shoukat Khan v. Mrs. Yasmin R. Minhas 1992 CLC 2540; Muhammad Shahid v. Federation of Pakistan PLD 2018 Isl. 258 and Black's Law Dictionary 8th Edn. ref.

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

----Ss. 4 & 8---Penal Code (XLV of 1860), S. 120A---Extradition to foreign country/non-treaty State --- Conspiring to commit terrorism and use weapons of mass destruction in a foreign country---Minimum requirement to establish criminal conspiracy in terms of S.120A, Pakistan Penal Code (P.P.C)---Petitioner, who was a dual citizen of Pakistan and United States of America (USA) was alleged to have conspired with other residents of USA to commit terrorist activities in USA---Petitioner was arrested in Pakistan and the Inquiry Magistrate in Pakistan submitted his report to the Federal Government with the recommendation that petitioner may be extradited to the USA---Held, that perusal of record, including available affidavits and details provided in authenticated documents, revealed that there was some encrypted electronic communication between the petitioner and an undercover law enforcement officer and co-accused for execution of the plan, however such encrypted messages and other evidences were claimed to be in possession of investigation officer in USA, which were not brought on record for perusal of Inquiry Magistrate in the extradition proceedings---As such, the minimum requirement for establishing an offence of conspiracy in Pakistan in terms of S.120(A) , P.P.C was not fulfilled---Hence requirement that Inquiry Magistrate take a prima facie view was also not fulfilled during the extradition proceedings---Impugned order of Inquiry Magistrate being contrary to the terms of law was set-aside and the matter was remanded to the Inquiry Magistrate with the directions that the de novo proceedings shall be concluded within a period of 2 months by calling the statements of investigation officer of requesting State as well as those of competent officer of Ministry of Interior or the Ministry of Foreign Affairs, Pakistan; that in case, the investigation officer of the requesting State was unable to appear, then his statement may be recorded through a video link; that any information regarding convictions of co-accused may also be considered by the Inquiry Magistrate and if any judgment of conviction of co-accused had been passed by the court of competent jurisdiction in USA, its certified copy duly authenticated from the authorities may also be placed on record---Constitutional petition was disposed of accordingly.

Muhammad Ashfaque alias Chief and others v. The State 1998 PCr.LJ 1486; Kehar Singh v. The State 1989 PSC 533 and Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 ref.

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

----Ss. 3,4, 7 & 8---Constitution of Pakistan. Arts. 4, 9, 10-A & 15---Extradition to treaty State/non-treaty State---Minimum requirements for inquiry by Magistrate---Protection to be given to citizens and non-citizens during extradition proceedings---Scope---Section 7 of the Extradition Act, 1972 provided that "the Federal Government may, if it thinks fit, issue an order to inquire into the case"---Said phrase used by the legislature put a heavy burden upon the Federal Government to look into the matter and give complete rights to a fugitive offender in all respect as it governed and dealt with right of an individual vis-a-vis the State---State was responsible to provide due protection to every individual whether he/she was a citizen or not---State of Pakistan was responsible to protect its citizen as well as non-citizens in terms of Art.4 of the Constitution and any request by treaty or non-treaty State for surrender of fugitive offender had to be considered in the light of Fundamental guarantees provided in the Constitution which also included the protections under Arts. 9 & 10-A of the Constitution i.e. "no person shall be deprived of life and liberty save in accordance with law and that every person shall have the right to a fair trial and due process".

(d) Words and phrases---

----Inquiry---Meaning. [p. 465] D

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

----Ss. 4 & 8---Constitution of Pakistan, Art. 10-A---Extradition to non-treaty State---Proceedings before Inquiry Magistrate---Documentary evidence in shape of affidavits submitted by foreign country/non-treaty State---Admissibility---Concept of submission of facts through affidavits in legal jurisprudence of Pakistan was same as of any other foreign jurisdiction---Any fact deposed through affidavit had to be considered admissible if the deponent appeared before the Court or authority before whom the affidavit of facts had been submitted---Mere filing of affidavit without explanation of deponent was of no use---Executant of affidavit had to appear before the Inquiry Magistrate to fulfil the minimum requirement of term prima facie (as used in S. 8 of the Extradition Act, 1972)---Article 10-A of the Constitution provided a guarantee of a fair trial as well as of due process and both said terms placed a heavy burden upon the state functionaries to apply minimum standard through which the concept of transparency, fairness and impartiality should be reflected.

Bank of Punjab v. Messrs Anmol Textile Mills Ltd., and others 2017 CLD 631; Bashir Ahmad v. Abdul Wahid PLD 1995 Lah. 98; Muhammad Zaman Tabbasum v. Mehmood 2017 CLC 1221; Mst. Iqbal Bibi v. Learned Additional District Judge and others 2014 MLD 1206 and Abdul Majid v. Abdur Rashid and others PLD 2016 Lah. 383 ref.

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

----Ss. 4 & 8---Extradition to non-treaty State---Inquiry proceedings before Magistrate---Minimum requirements to be observed by Inquiry Magistrate---Recording of statements---Inquiry Magistrate was to record statements of the investigation officer of foreign country as well as a representative of foreign State or person who was legally allowed to verify the foreign documents, order or who had authenticated the documents received from the said State in shape of affidavits---Where request for extradition was made to authorities in Pakistan in a case which was at inquiry/investigation stage in foreign country, it was necessary for the Inquiry Magistrate in Pakistan to call the official witness of Government of Pakistan, especially from Ministry of Interior or Ministry of Foreign Affairs, who received the documents from the requesting State and they shall appear before the Inquiry Magistrate, to submit the same in order to confirm that the original documents had been brought before the Magistrate through a channel notified by the Government of Pakistan---Such practice would eliminate any doubt or falsity of documents---Similarly, the Inquiry Magistrate with a view to reach at a just conclusion should also call the investigation officer of the requesting foreign State, who inquired and investigated the crime in his own jurisdiction due to the reason that such investigation officer had collected the evidence and other incriminating articles, and recorded the statements of witnesses through which he believed that fugitive offender was linked with the alleged crime---Such investigation officer of foreign jurisdiction had to appear before Inquiry Magistrate in Pakistan to record his statement and was also to be put through test of cross-examination so that the Magistrate may come to definite conclusion as to whether a prima facie case had been made out against the fugitive offender or otherwise, failing which the admissibility of statement placed before the Inquiry Magistrate in shape of affidavit was of no legal worth.

Muhammad Asim Malik v. Anwar Jalil PLD 1989 Lah. 279; Nargis Shaheen v. Federation of Pakistan PLD 1993 Lah. 732; Nasrullah Khan Hunjra v. Government of Pakistan 1993 PCr.LJ 1082 and Zulqarnain Khan v. Government of Pakistan 1990 MLD 1611 ref.

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

----S. 8---Extradition to non-treaty State---Inquiry proceedings before Magistrate, nature of---Inquiry proceedings before the Magistrate were not summary proceedings, rather they were the same as a sessions trial---Inquiry Magistrate was to proceed with the matter like a trial court, especially in the manner as a Sessions Court conducted the trial of an accused---Extradition Act, 1972 itself provided complete mechanism to the fugitive offender to defend himself against the requisition made by a requesting State to the Federal Government for surrender of such fugitive offender---As such, the Inquiry Magistrate shall conduct the trial after giving full opportunity of producing evidence to the parties i.e. requesting State (who was seeking requisition of fugitive offender) and the fugitive offender and shall also adopt every mode to dig out the truth.

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

----Ss. 4, 6, 7, 8 & 9---Qanun-e-Shahadat (10 of 1984), Arts. 94 & 96---Extradition to non-treaty State---Inquiry proceedings before Magistrate---Minimum requirements to be observed in cases of extradition stated:

Following are the minimum requirements to be observed in cases of extradition:

(i) Request by a foreign State for extradition of person;

(ii) The presence of fugitive offender before the Inquiry Magistrate;

(iii) Submission of authenticated judicial documents stating the facts and allegations, by way of deposition, warrants, or statements on oath along with the certificate of authority of the requesting State i.e. by the Secretary of State, Attorney General or any court of justice outside Pakistan;

(iv) In cases where judicial verdict had not yet been passed by the foreign court, the investigation officer of foreign jurisdiction/requesting State had to appear before the Inquiry Magistrate in Pakistan to justify the allegation on the basis of his own investigation, statement of witnesses or other incriminating articles.collected by, him/her through which the prima facie view regarding involvement of fugitive offender was established on record;

(v) In case where the investigation officer of requesting State had not put appearance before the Inquiry Magistrate in Pakistan during the extradition proceedings, due to his own safety, security or any other valid reasons, his statement could be procured through a video link and the counsel for fugitive offender or his authorized representative could cross-examine the investigation officer in the office of Magistrate through the said facility of video link;

(vi) The documents which were received from foreign jurisdiction transmitted by requesting State should be duly attested by competent authority including Secretary of the State under the seal of Department of Justice, Attorney General Office, or court of law and same shall be submitted before the Inquiry Magistrate in Pakistan through the officer notified by the Government of Pakistan from Ministry of Interior or from Ministry of Foreign Affairs, who were the authorities under the law to receive and submit the documents of foreign jurisdiction to initiate extradition proceedings in Pakistan. Such officer had to appear in-person before the Inquiry Magistrate;

(vii) In cases, where the court of foreign jurisdiction i.e. the Court of requesting State, had passed judgment against the co-accused persons or the fugitive offender in the same case, its certified record should be considered valid for the purpose of extradition request without the presence of investigation officer before the Inquiry Magistrate as the foreign judgment was admissible and presumption of truth was attached to it in terms of Articles 94 and 96 of the Qanun-e-Shahadat, 1984. Even, the judicial pronouncement of conviction purported to be certified by judge/Magistrate or officer of the State had to be considered valid in terms of Section 9(2)(c) of the Extradition Act, 1972;

(viii) The Inquiry Magistrate shall proceed with the matter of extradition proceedings like a trial court, in the same manner as a Sessions court in terms of Section 8(2) of the Extradition Act, 1972.

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

----Ss. 2(1)(a), 4 & 8 & Sched.---Anti-Terrorism Act (XXVII of 1997), S. 6---Extradition to foreign country/non-treaty State---Terrorism---Schedule to the Extradition Act, 1972, did not contain the term terrorism, thus the same was not an extradition offence---His Lordship observed that the term terrorism should be specified in the Schedule to the Extradition Act, 1972---Constitutional petition was disposed of.

Idrees Ashraf for Petitioners.

Barrister M. Mumtaz Ali, AAG. for Respondents

Muhammad Abubakar Naeem, RDM Branch, D.C. Office, ICT, Islamabad for Respondents.

Adeel Ahmad Sheikh, S.I., AHTC, Islamabad for Respondents.

P L D 2019 Islamabad 476

Befre Athar Minallah, C J

DILSHAD BIBI---Petitioner

Versus

The STATE and others---Respondents

P.S.L.A. No.4 of 2017, heard on 19th February, 2019.

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

----S.6(5)---Rules under Muslim Family Laws Ordinance, 1961, R.21---Applicability of the Act---Scope and extent---Second marriage of husband without permission from first wife---Procedure---Pre-conditions---Violation of---Consequences.

A plain reading of the Muslims Family Laws Ordinance, 1961 read with the Rules thereunder shows that it extends to the whole of Pakistan and applies to all Muslim citizens of Pakistan. A man who intends to contract another marriage during the subsistence of an existing marriage has to observe the procedure and fulfill the conditions prescribed by the legislature otherwise the consequences of imprisonment or fine or both could ensue. The factors required to be taken into consideration by the Arbitration Council in granting permission for contracting a subsequent marriage have been prescribed in sub-sections (2), (3) and (4) of Section 6 of the Ordinance. The consequence for contracting another marriage in contravention are prescribed under subsection (5) of Section 6. The Arbitration Council cannot act mechanically while granting permission, because the statute has declared that before doing so it had to be satisfied that such permission would be just and necessary. A husband who contracts another marriage during the subsistence of an earlier one in contravention of the provisions of the Ordinance definitely exposes himself of the risk of being imprisoned or fined or to both.

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

----S.6(5)---Rules under Muslim Family Laws Ordinance, 1961, R.21---Second marriage without permission from first wife--- Leave to Appeal against acquittal---Resident of Azad Kashmir, status of---Jurisdiction of court---Private complaint was filed against accused (husband) by his first wife on allegations of contracting second marriage without her permission---Trial Court convicted accused but Lower Appellate Court set aside conviction on grounds that provisions of Muslim Family Laws Ordinance, 1961 were not applicable to accused as he was resident of Azad Jammu and Kashmir---Validity---Accused, regardless of his place of residence, held national identity card issued to him by authority under National Database and Registration Authority Ordinance, 2000---As long as national identity card remained valid and subsisting, accused could not claim to be a person who was not a citizen of Pakistan---Marriage was contracted between parties duly registered in Islamabad and therefore, to the extent of complainant, cause of action in context of S.6 of Muslim Family Laws Ordinance, 1961 had arisen in Islamabad---Lower Appellate Court did not take into consideration legal provisions of various statutes---High Court converted petition seeking special leave to appeal filed by Complainant into appeal and judgment passed by Lower Appellate Court was set aside---High Court remanded matter to Lower Appellate Court for deciding appeal afresh---Appeal was allowed accordingly.

Muhammad Zaman v. Uzma Bibi and 4 others 2012 CLC 24; Mst. Naseem Akhtar v. Director General Immigration and Passport and others PLD 2006 Lah. 465; Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1 and Syed Ali Nawaz Gardzi v. Lt.Col. Muhammad Yusuf PLD 1963 SC 51 ref.

Akbar Ali and 4 others v. District Judge, Faisalabad and 4 others PLD 2006 Lah. 600; Muhammad Zaman v. Usma Bibi and 4 others 2012 CLC 24; Majid Hussain v. Farrah Naz and others 2017 YLR 84 and Rehmat Ullah v. Mst. Shamim Akhtar and another 1997 CLC 16 distinguished.

Ali Hussain Bhatti for Petitioner.

Owais Ul Islam and Rabi Bin Tariq, State Counsel for Respondents.

P L D 2019 Islamabad 483

Before Athar Minallah, C J

TAHIR ATTIQUE ZARIF---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Criminal Revision No.46 of 2018, decided on 20th March, 2019.

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

----S. 8(2)---Inquiry Magistrate---Powers---Inquiry Magistrate is not to give verdict of holding fugitive offender as guilty---Such inquiry officer is merely to form an opinion as to whether a triable case is made out.

Muhammad Asim Malik v. Anwar Jalil and 4 others PLD 1989 Lah. 279 rel.

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

----Ss. 7 & 8---Extradition---Inquiry---Prima facie case---Scope---Petitioner was fugitive of law from United Kingdom and was aggrieved of extradition orders passed by Inquiry Magistrate---Plea raised by petitioner was that documents relied upon by inquiry Magistrate were not received by Federal Government---Validity---Documents were received by Federal Government through High Commission of the United Kingdom and had been duly authenticated by competent forums/courts---Other co-accused were proceeded against and tried for offenses and were handed down convictions and sentenced by a competent court in United Kingdom---CCTV footages, data relating to cellular phones in use of petitioner, details regarding movements of other co-accused and other authenticated material was taken into consideration---Inquiry Magistrate had formed an opinion that a prima facie case was made out in favour of requisition--- High Court declined to interfere in order passed by inquiry Magistrate as it did not suffer from any legal infirmity nor procedure adopted by Federal Government or inquiry Magistrate was found to be in violation of provisions of Extradition Act, 1972---Petition was dismissed in circumstances.

Nasarullah Khan Henjra v. Government of Pakistan, Ministry of Interior and Narcotics Control (Interior Division), Islamabad and 3 others 1998 SCMR 1072; Mirza Iftikhar Mehmood v. Area Magistrate, Police Station Nekapura, Sialkot and 3 others PLD 2009 Lah. 215; Mah Gul v. The State 2009 SCMR 4; Muhammad Jamil v. Muhammad; Akram and others 2009 SCMR 120; Bashir Ahmad and others v. The State and another 2018 MLD 1072 and Nargis Shaheen v. Federation of Pakistan and 5 others PLD 1993 Lah. 732 ref.

Nasarullah Khan Henjra v. Government of Pakistan, Ministry of Interior and Narcotics Control, Islamabad PLD 1994 SC 23; Noor Muhammad v. The State and others PLD 2007 SC 9 and Muhammad Azim Malik v. Government of Pakistan PLD 1989 SC 519 rel.

Sabah Mohy-ud-Din Khan for Petitioner.

Syed Muhammad Tayyab, DAG and Rabi Bin Tariq, State Counsel for Respondents.

P L D 2019 Islamabad 491

Before Mohsin Akhtar Kayani, J

SHUJA SHARIF and 7 others---Petitioners

Versus

FOP and 3 others---Respondents

Writ Petition No.908 of 2017, decided on 19th April, 2018.

(a) Words and phrases---

----"Regulate"---Meaning.

(b) Words and phrases---

----"Control"---Meaning.

(c) Proportionality, doctrine of---

----Scope---According to doctrine of proportionality, only reasonable restrictions can be imposed which have been provided in law, otherwise, it falls within concept of unreasonableness---Authority which exercises its powers should consider such aspect on rational basis and should adopt such means not to injure individuals more than necessary---Any such injury caused to individuals, by exercise of authority, should not be disproportionate to benefit which accrued to general public.

Chintaman Rao v. The State of U.P. 1950 SCR 759 rel.

(d) Proportionality, doctrine of ---

----Applicability--- "Proportionality"--- Connotation--- Concept of proportionality means whether while regulating exercise of Fundamental Rights, appropriate or least restrictive choice of measure has to be made by Legislature or administrator so as to achieve objective of legislation or purpose of administrative order, as the case may be---Under said principle, court has to see that Legislature and administrative authority maintain a proper balance between adverse effects which legislation or administrative order may have on rights, liberties or interest of persons keeping in mind purpose which they were intended to serve---Legislature and administrative authority are given an area of discretion or range of choices but as to whether choice made infringes right excessively or not is for the court.

Om Kumar v. Union of India 2001 (2) SCC 386 and R. Daly v. Secretary of State for the Home Department 2001 UKHL 26 rel.

(e) National Highways Safety Ordinance (XL of 2000)---

----Ss. 45, 90 & 93--- National Highways and Motorway Police Drivers Licensing Authority Rules, 2014---Constitution of Pakistan, Art. 9---Term "life" occurring in Art.9 of the Constitutioin---Scope---Principles of natural justice, violation of---Verbal orders---Scope---Term 'regulate'---Principle---Petitioners were aggrieved of ban imposed by authorities on access of heavy motorbikes to motorways---Validity---Motorway Police initially allowed bikers to use motorways on 05.03.2010 after having meetings with Bikers Club---Such access to bikers to ply their motorcycles on motorways remained in field till 25-06-2013---Such practice was discontinued on verbal directions of Inspector-General of National Highways and Motorways Police---Petitioner and Lahore Bikers Club were neither given any opportunity to explain their position nor they were allowed to tender their point of view---Verbal orders and directions had no legal sanctity in eyes of law---Inspector-General of National Highways and Motorways Police was not empowered under provisions of National Highways Safety Ordinance, 2000 to place restrictions or embargo upon bikers to use motorways as law did not provide such ban and subordinate legislation was not made---Even majority of countries of the World had allowed different categories of motorbikes for use of motorways whereas National Highways and Motorway Police Drivers Licensing Authority Rules, 2014 did not contain prohibitions or conditions for motorcycles to access motorways---Under Art. 9 of the Constitution it was Fundamental Right of every individual that he would not be deprived of life and liberty save in accordance with law---Term 'life' covered quality life including right to use motorways by bikers whether it was for purpose of travelling or for enjoyment of plying motorcycles---Motorways Police could only regulate motorways in terms of S.45 of National Highways Safety Ordinance, 2000 and could not restrict usage permanently without any basis---Concept of public safety was to be based upon some stringent parameters which were not described/explained before High Court---Term 'regulate' used in National Highways Safety Ordinance, 2000 could only be considered for supervision, superintendence and administration---High Court declared verbal ban imposed on motorcycles by Inspector-General of National Highways and Motorways Police as illegal and recommended the authorities under National Highways Safety Ordinance, 2000 to frame rules for betterment and safety of individuals under law---Constitutional petition was allowed accordingly.

Muhammad Amin Muhammad Bashir v. Government of Pakistan 2015 SCMR 630; National Buildings Construction Corporation v. Raghunathan 1998 7 SCC 66; Council of Civil Services Union v. Minister for Civil Services (1985) AC 374; Muhammad Nawaz Malik v. Government of Punjab PLD 2011 Lah. 160; Pakistan v. Fecto Belarus Tractors Ltd. PLD 2002 SC 208; Dr. Muhammad Javed Shaffi v. Syed Rasheed Arshad PLD 2015 SC 212 and Army Welfare Sugar Mills v. FOP 1992 SCMR 1652 ref.

Ch. Allah Ditta v. Muhammad Azeem Bhatti and 15 others 2014 CLC 1051; M/s. Hudabiya Paper Mills Ltd. v. NAB PLD 2012 Lah. 515; CDA v. Ms. Shaheen Farooq and another 2007 SCMR 1328; Kalim Ullah Khan v. Secretary CADD 2013 PLC (CS) 162 and Abdul Hameed v. Sindh Agriculture University, Tando Jam 2006 PLC (CS) 200 rel.

(f) Public functionary---

----Authority, exercise of---Principle---Public authority, if interested by Legislation with certain powers and duties, expressly or impliedly, for sole purpose of public, cannot divest themselves of such powers and duties---Public authority are not even allowed to take any action incompatible or in violation of their basic duties.

Pakistan Muslim League v. FOP PLD 2007 SC 642 and Messrs Hudood Textile Mills Ltd. v. WAPDA 1997 SCMR 641 rel.

(g) Vienna Convention on Road Traffic, 1968---

----Annex. 1, Para. 3---Expression 'such combination is prohibited by their domestic legislation'---Restrictions imposed in Vienna Convention on Road Traffic, 1968 are supported with only one condition, i.e., 'such combination is prohibited by their domestic legislation'---Unless domestic legislation provides such kinds of bans, no one is permitted to restrict right of movement in any manner---Even otherwise, concept to regulate traffic means to provide safety standard.

Babar Sattar for Petitioners.

Ch. Hasan Murtaza Mann for Respondent No.4.

Muhammad Haseeb Ch., D.A.G.

Iqbal Ahmed Khan, DSP (Legal) NH&MP.

Muhammad Asad, Inspector (Legal), NH&MP.

P L D 2019 Islamabad 524

Before Athar Minallah, C J

TASLEEMA BIBI---Petitioner

Versus

SENIOR SUPERINTENDENT OF POLICE, ISLAMABAD and others---Respondents

Writ Petition No.2035 of 2019, heard on 28th May, 2019.

Police Order (22 of 2002)---

----Art. 156---Constitution of Pakistan, Art.199---Constitutional petition---Violation of law---Illegal exercise of power---Two minor nephews of petitioner were illegally taken into custody by police officials---Petitioner had sought invocation of Constitutional jurisdiction of High Court for actions against delinquent police officials---Validity---Inspector-Geneal of Police had taken appropriate action against officials who had allegedly abducted two children and had kept them in illegal confinement for a considerable time---High Court declined to make any further observation lest it might prejudice right of fair trial of accused before competent court---High Court directed police authorities to consider taking action under Art.156 of Police Order, 2002 against the accused officials---Federal Government and Chief Commissioner Islamabad Capital Territory were also directed to fulfil their respective obligations under Police Order, 2002 for ensuring effective performance and accountability of police force of Islamabad Capital Territory---Constitutional petition was disposed of accordingly.

Muhammad Farooq for Petitioner.

Rabi Bin Tariq, State Counsel, Waqar Ud Din Sayed,DIG (Operation), Kamran Adil, AIG, Ghulam Muhammad Baqir, DSP and Azhar Shah, DSP, Islamabad for Respondents.

P L D 2019 Islamabad 527

Before Athar Minallah, C J and Miangul Hassan Aurangzeb, J

MUHAMMAD SIKANDAR---Appellant

Versus

The STATE---Respondent

Jail Appeal No.77 of 2017, decided on 11th June, 2019.

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

----S. 6---"Act of terrorism"---Connotation---No matter how gruesome, violent or heinous an act or commission of offense may be, it would not constitute an "act of terrorism" within its meaning contemplated under Anti-Terrorism Act, 1997 unless mens rea and actus reus explicitly mentioned therein coincides and coexists.

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

----S. 6(1)(b), (c) & (2)---"Act of terrorism"---Mens rea and actus reus---Essential ingredients---Essential ingredients relating to mens rea and actus reus explicitly mentioned in S.6(1)(b) or (c) and S.6(2) of Anti-Terrorism Act, 1997 respectively must coexist and coincide.

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

----Ss. 6, 7, 8 & 25---Act of terrorism---Appreciation of evidence---Causing terror---Proof---Accused was convicted and sentenced in committing acts of terrorism by using his family as human shields while deadlocking main road in federal capital armed with automatic weapons and ammunition---Accused assailed conviction and sentence passed by Trial Court on grounds that his actions did not constitute terrorism---Validity---Offence of terrorism was constituted as design was to create psychological impact of creating a sense of fear and insecurity relatable to general public, society or a section thereof---Offences mentioned in schedule must have nexus with object of statute and contemplated under Ss.6 to 8 of Anti-Terrorism Act, 1997---For offence of terrorism to be constituted it was not necessary that victims were actually harmed or that terror was caused; it was sufficient if design of intended act was likely to create terror, a sense of fear and insecurity amongst general public, society or section thereof---Mens rea and actus reus contemplated in Anti-Terrorism Act, 1997 coexisted, in the present case---High Court declined to interfere in conviction and sentence awarded by Trial Court as prosecution had proved charge against accused beyond reasonable doubt and that there were no mitigating circumstances for handing down a lesser sentence---Appeal was dismissed in circumstances.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Ch. Bashir Ahmed v. Naveed Iqbal and 7 others PLD 2001 SC 521; Mst. Raheela Nasreen v. The State and another 2002 SCMR 908; Muhammad Mushtaq v. Muhammad Ashiq and others PLD 2002 SC 841; State through Advocate-General N.-W.F.P. Peshawar v. Muhammad Shafiq PLD 200 SC 224; Naeem Akhtar and others v. The State and others PLD 2003 SC 396; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Muhammad Farooq v. Ibrar and 5 others PLD 2004 SC 917; Mohabbat Ali and another v. The State and another 2007 SCMR 142; Bashir Ahmed v. Muhammad Siddique and others PLD 2009 SC 11; Nazeer Ahmed and others v. Nooruddin and another 2012 SCMR 517; Shahbaz Khan alias Tippu and others v. Special Judge Anti-Terrorism Court No.3, Lahore and others PLD 2016 SC 1; Malik Muhammad Mumtaz Qadri v. The State and others PLD 2016 SC 17; Khuda-e-Noor v. The State PLD 2016 SC 195; Kashif Ali v. The Judge, Anti-Terrorism, Court No.II, Lahore and others PLD 2016 SC 951 and Waris Ali and 5 others v. The State 2017 SCMR 1572 ref.

Malik Riaz for Appellant.

Malik Awais Haider for Respondent.

P L D 2019 Islamabad 538

Before Aamer Farooq and Mohsin Akhtar Kayani, JJ

ASIF ALI ZARDARI---Petitioner

Versus

The STATE through Chairman, National Accountability Bureau, Islamabad---Respondent

Writ Petition No.1169 of 2019, decided on 10th June, 2019.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a) & (b)---Criminal Procedure Code (V of 1898), S. 91---Pre-arrest bail, refusal of---Bond for appearance---Scope---Petitioners were accused and apprehended their arrest by National Accountability Bureau---Plea raised by petitioners was that they had already submitted bonds under S. 91, Cr.P.C. therefore, they could not be arrested---Validity---National Accountability Bureau never really investigated and inquired into the matter and only became seized of it by directions of Supreme Court of Pakistan and was still investigating same---White collar crimes were not easy to detect and trace and could not be equated with other general offences---In such like cases, accused persons were to be confronted with documents and inquire about same repeatedly in order to build up chain and for such purpose, National Accountability Bureau authorities required custody of accused persons---Petitioners could not attribute mala fide or ulterior motive to prosecution/National Accountability Bureau---Furnishing of bonds under S. 91 Cr.P.C. was not a bar for National Accountability Bureau to arrest petitioners for investigation of case---Such bond was submitted only for personal appearance before court---Pre-arrest bail was dismissed in circumstances.

Chairman NAB v. Mian Muhammad Nawaz Sharif and 2 others PLD 2019 SC 445; Tallat Ishaq v. National Accountability Bureau through Chirman and others PLD 2019 SC 112; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Hidayat Ullah Khan v. The Crown PLD 1949 Lah. 21; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 and Rana Abdul Khaliq v. The State and others 2019 SCMR 1129 ref.

Petitioner in person.

Farooq H. Naek, Sardar Latif Khan Khosa, Raja Rizwan Abbasi, Sardar Shahbaz Ali Khan Khosa, Malik Javed Iqbal Wains, Mian Ali Ishfaq, Raja Abdul Qadeer, Syeda Naz Gul and Habib Ullah Zia Khan for Petitioner.

P L D 2019 Islamabad 544

Before Athar Minallah, C J

MUHAMMAD LAHRASIB---Petitioner

Versus

GHULAM AHMED CHAUDHRY through Legal Heirs and others--Respondents

C.R. No.429 of 2015, decided on 13th May, 2019.

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

----Preamble & S. 3---Limitation---Connotation---Fraud---Principle---Law of limitation is crucial for ensuring certainty as a matter of public policy so that there is an end to litigation and a litigant does not abuse process by pursuing matter for an infinite period of time---Law of limitation is to be strictly construed and that it cannot be interpreted as a mere technicality---Nature of said law is prescriptive and preventive and cannot be used to perpetuate a gain which has its origins in fraud because then it would vitiate most solemn transaction---Transaction based on fraud and forgery cannot be shielded or be given protection on touchstone of limitation. (b) Constitution of Pakistan---

----Art. 10-A---Due process of law---Principle---Under Art.10-A of the Constitution, observance of due process has become a guaranteed Fundamental Right---Any order in violation of principles of Art.10-A is not sustainable in law because such order is void and of no legal effect.

(c) Discretion---

----Discretion of court---Scope---Extent---Law does not recognize absolute and unfettered discretion and discretionary powers ought to be exercised in accordance with well-established principles---In exercise of discretionary powers a court is not empowered to act arbitrarily or in a mechanical manner, rather it is circumscribed by law, recognized norms of justice, fair play, equity, logic, rationality and reasonableness.

Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872; Khalid Humayun v. The NAB through D.G. Quetta and others PLD 2017 SC 194; Commisisoner Inland Revenue, Karachi v. Pakistan Beverages Limited Karachi 2018 PTD 1559 and Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 rel.

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

----Ss. 8 & 39---Limitation Act (IX of 1908), S. 5 & Art. 168---Civil Procedure Code (V of 1908), O. IX, R. 8 & O. XLI, Rr. 9 & 17---Constitution of Pakistan, Art. 10-A---Appeal, restoration of---Limitation---Principles---Overseas Pakistani---Rights---Plaintiff was overseas Pakistani who sought cancellation of sale deed on plea of fraud and forgery and recovery of suit property from respondents---Suit was dismissed by appellate court and appeal filed by plaintiff was dismissed due to non-prosecution in year 2009---Plaintiff sought restoration of his appeal in year 2012 but same was dismissed being barred by limitation--- Validity---As a class, 'overseas Pakistanis' were generally vulnerable and exposed to becoming victims of fraud and deceit---Plaintiff reposed trust and confidence in professional counsel engaged by him after exercising due care and caution and in event of latter's negligence, there was no effective accountability---'Overseas Pakistanis' were exposed to harm like other classes such as widows, infirm, elderly litigants, etc.---Appeal was a valuable right and its dismissal in a mechanical manner for want of prosecution was contrary to settled principles for exercising discretion vested under the statute---Article 10-A, Constitution, guaranteed Fundamental Right of due process, and was to be considered by court before dismissing appeal for want of prosecution---Unlike dismissal of suit under O. IX, R. 8, C.P.C. dismissal of appeal under O.XLI, R.17(1), C.P.C. required application of mind and pursuant thereto exercise of discretion in accordance with settled principles of law which must be reflected in the order---Order of dismissal of suit was passed in a mechanical manner without taking all relevant matters into consideration---High Court declared order in question to be void and without lawful authority as it was not an order sustainable in law---High Court in exercise of revisional jurisdiction set aside orders in question and remanded case to Lower Appellate Court for decision afresh---Revision was allowed accordingly.

Hafiz Ahmed and others v. Civil Judge, Lahore and others PLD 2012 SC 400; Muhammad Ramzan and another v.Ghulam Safia and others 2010 YLR 2236; Ghulam Rasool and others v. Ahmed Yar and others 2006 SCMR 1458; Market Committee through Administrator/ Secretary v. Hajji Abdul Karim and 3 others PLD 2014 Sindh 624; Dr.Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705; Dur Muhammad and others v. Abdul Sattar PLD 2003 SC 828; Fazli Hakeem and another v. Secretary State and Frontier Regions Division Islamabad and others 2015 SCMR 795; Province of Sindh and others v. Ghulam Fareed and others 2015 PLC (C.S.) 151; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 PLC (C.S.) 218; Haji Abdul Sattar and others v. Farooq Inayat and others 2013 SCMR 1493; Mst. Zulaikhan Bibi through LRs. and others v. Mst. Roshan Jan and others 2011 SCMR 986; Muhammad Younus Khan v. Government of N.-W.F.P. 1993 SCMR 618; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Muhammad Zafarullah through L.Rs. and others v. Muhammad Arif through Lrs. and others 2007 SCMR 589; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710; Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782; Bashir Ahmad v. Muhammad Sharif and 4 others PLD 2001 SC 228; Abdul Majeed and another v. Ghulam Haider and others 2001 SCMR 1254; Mst. Rehana Begum v. Mst. Shagufta 1995 SCMR 323; Shams ul Akbar Sadiq and another v. Project Manager SKD and others 2012 SCMR 1243; Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872; Khalid Humayun v. The NAB through D.G. Quetta and others PLD 2017 SC 194; Commisisoner Inland Revenue, Karachi v. Pakistan Beverages Limited Karachi 2018 PTD 1559; Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 ref.

Dr. Babar Awan and Tajjamul Hussain for Petitioner.

Muhammad Ishtiq Ahmed Raja for Respondents.

P L D 2019 Islamabad 558

Before Athar Minallah, C J

YASMIN HAIDER---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and 3 others---Respondents

Writ Petition No.1003 of 2015, decided on 5th July, 2019.

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

----S. 5(2)---Constitution of Pakistan, Arts. 9 & 199---United Nations Rio Declaration on Environment and Development, 1992, Principle No.15---Constitutional petition---Conversion of amenity plot---Environment, protection of---Directions of Federal Government---Effect---Petitioners were aggrieved of conversion of amenity plot for extension of hospital by Authority---Plea raised by Authority was that such extension was granted on instructions of Federal Government---Validity---Strict implementation of precautionary principle in order to check irreversible damage to environment was required---Precautionary principle was given recognition by incorporating Principle 15 in United Nations Rio Declaration on Environment and Development, 1992---Authority under S.5(2) of Capital Development Authority Ordinance, 1960 was bound to act on sound principles of development, town planning and housing---While discharging its functions, Authority was only to be guided to the extent of policy by such directions as Federal Government had given from time to time---Direction for conversion was not a question of policy, in fact it related to town planning---Autonomy of Authority was guaranteed under Capital Development Authority Ordinance, 1960 in matters relating to town planning and development---Authority by acting on dictation of Federal Government violated legislative intent of Capital Development Authority Ordinance, 1960---Amenity plot could not have been converted for any other purpose let alone extension of hospital---High Court declared conversion of amenity plot as illegal, without lawful authority and jurisdiction and directed the Federal Government to restore amenity plot for use of general public---Constitutional petition was allowed accordingly.

Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Mansoor Sharif Hamid and others v. Shafique Rehman and others 2015 SCMR 1172; Maulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 SC 394; Manzoor Bhatti v. Executive Officer, Cantonment Board, Multan and another PLD 2002 Lah. 412 and Shehri-CBE through General Secretary and 15 others v. Lahore Development Authority through Chairman and 6 others PLD 2012 Lah. 362 ref.

(b) Maxim---

----"Fiat justitia ruat caelum"---Meaning---Let justice be done though heavens fall.

Dr. Muhammad Aslam Khaki and Yasmin Haider for Petitioner.

Amir Latif Gill for CDA.

M.Saif Ullah Gondal, Asstt. Attorney General and Kh. Muhammad Imtiaz, Asstt. Attorney General for Respondents.

P L D 2019 Islamabad 566

Before Athar Minallah, C.J. and Aamer Farooq, J

DAN GUNNAR BJARNE ANDERSON---Petitioner

Versus

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

Writ Petition No.1632 of 2018, decided on 9th July, 2019.

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

----S. 25(a)---Voluntary return---Preconditions---Essential ingredients for completion of process of voluntary return are; firstly, offer has to be made before investigation has been authorized, or in other words, it has to be made at initial stage of proceedings; secondly, accused must come forward voluntarily; and thirdly, voluntary offer must be for return of assets of gain acquired or made in course or as consequence of any offence alleged to have been committed under National Accountability Ordinance, 1999--- If such requirements are met by accused then Chairman NAB in his discretion may accept such offer after determination of amount due from accused---Accused, in such eventuality is discharged from all his or her liability in respect of matter or transaction in issue.

(b) Interpretation of statutes---

----Legislative intent---Scope---In order to discover legislative intent, language used in statute has to be carefully examined and words have to be understood in natural and ordinary sense---Provisions being interpreted cannot be given a meaning outside scheme and context of statute while a particular provision of a statute cannot be interpreted by ignoring object and purpose for which legislation has been enacted---Context is as important as meaning of words employed by Legislature therefore, a penal statute has to be construed strictly.

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

----S. 25(a)---Cheating public at large---Voluntary return, determination of---Fresh proceedings---Failure to make full and complete disclosure---Petitioner was aggrieved of initiation of investigation despite the fact that he had entered into voluntary return and paid off determined liability---Validity---At time of making offer, petitioner did not make a full and complete disclosure of all assets or gains acquired or made during course or in consequence of offense for which option was exercised under S. 25(a) of National Accountability Ordinance, 1999---Bureau was empowered to inquire whether at time of making offer under S. 25(a) of National Accountability Ordinance, 1999, petitioner had made a full and complete disclosure of all assets and gains acquired or made in course of commission or in consequence of offence of cheating public-at-large---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Muhammad Sharif v. National Accountability Bureau and others 2017 SCMR 1666; Syed Abid Hussain Shah and 9 others v. Chief Secretary, N.-W.F.P., Peshawar and 7 others 2013 PCr.LJ 974; Mubarak Ali v. The State PLD 2005 Lah. 168; Sh. Khalid Mehmood and 3 others v. The State and 2 others 2006 PCr.LJ 1115; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122, Faisal Iqbal and 2 others v. The State and another 2016 PCr.LJ 1144; Tabish Gauhar v. The State 2016 PCr.LJ 1398; Rimsha Masih v. Station House Officer, Police Station Ramna and others PLD 2013 Isl. 1; Sheikh Muhammad Tahir v. The State and 2 others 2012 PCr.LJ 1075; Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121; Ismail A. Rehman v. Muhammad Sadiq and 3 others PLD 1990 Kar. 286; The Federal Government through Secretary Interior, Government of Pakistan v. Ms Ayyan Ali and others 2017 SCMR 1179; Imran Amjad Khan v. Islamic Investment Bank Limited (IIBL) through Official Liquidator and 4 others 2018 CLD 218; Wajid Shams-ul-Hassan v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad PLD 1997 Lah. 617; Rana Ijaz Ahmed Khan v. Government of Pakistan and others 2000 MLD 551; Malik Mushtaq Awan v. Government of Pakistan and others PLD 1999 Lah. 372; Sikandar Hayat Khan and 4 others v. Government of Pakistan through Federal Secretary, Ministry of Interior, Islamabad and 5 others PLD 2003 Pesh. 102, Syed Sami Ullah Al Qadri v. Federation of Pakistan, through Secretary Ministry of Interior and 6 others 2009 CLC 1314; Rafique v. Federation of Pakistan and 2 others 2018 MLD 579 and Javed Khan v. Pakistan through Secretary Interior and 6 others 2017 YLR 2109 ref.

Zulaikha Bibi through LRs and others v. Mst. Roshan Jan and others 2011 SCMR 986; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; 'Muhammad Zafarullah through L.Rs. and others v. Muhammad Arif through L.Rs. and others 2007 SCMR 589 and Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 rel.

Hafiz Arfat Ahmed Chaudhry and Ms. Kashifa Niaz Awan for Petitioner.

Syed Muhammad Tayyab, Dy. Attorney General for Respondents.

Barrister Rizwan, Special Prosecutor NAB and Azmatullah, Assistant Director/I.O., NAB.

P L D 2019 Islamabad 577

Before Miangul Hassan Aurangzeb, J

MASOOD AHMAD BHATTI---Appellant

Versus

Raja IMRAN YAQOOB and others---Respondents.

F.A.O. No.38 of 2017, decided on 28th August, 2017.

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

----Ss. 17, 30 & 33---Arbitration award---Rule of court---Principle---Arbitration awards are liberally construed by courts for purpose of upholding award given by arbitrators unless there is some error apparent on face of it---Courts have to give reasonable intendment in favour of award leaning towards upholding rather than vitiating same---Court could neither act as a court of appeal nor override award through its own judgment by scrutinizing award to discover errors for purposes of setting aside same---Possibility of a different view by appreciating facts with a different angle is no ground for setting aside award---Arbitrator is final judge on question of law and fact and his decision merits weightage unless misconduct against him stands proved.

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

----Ss. 17, 30, 33 & 39(vi)---Appeal---Arbitration award, setting aside of---Misconduct---Personal interest of arbitrator---Effect---Appellant was business partner of respondent who agreed to arbitration by sole arbitrator for dissolution of business---Appellant assailed order passed by Trial Court confirming award on grounds that arbitrator had taken personal interest in subject property---Validity---Arbitrator wanted to pay certain amount to one of the parties to dispute and such act by itself was sufficient to vitiate award---Arbitrator also went beyond his terms of reference set out in arbitration agreement---Arbitrators were expected not to get personally involved in disputes between parties---Arbitrator was a judge of facts as well as law and was expected to act judiciously---Trial Court, in the present case, was unable to notice fact that arbitrator wanted to pay some amount to one of the parties to dispute---Even if no objections were filed against arbitration award, Trial Court was nonetheless under an obligation to scrutinize award before passing judgment and decree in terms of award making same a rule of court---High Court set aside judgment and decree passed by Trial Court and remanded matter to decide objections raised by appellant under Ss.30 & 33 of Arbitration Act, 1940---Appeal was allowed accordingly

Muhammad Wajid Hussain Mughal for Appellant.

Respondents: Ex-parte.

P L D 2019 Islamabad 581

Before Athar Minallah, C J

Syed ABID HUSSAIN SHAH through Legal Heirs and others---Petitioners

Versus

CHIEF LAND COMMISSIONER, ISLAMABAD and another---Respondents

Writ Petition No.3437 of 2002, decided on 5th July, 2019.

(a) Land Reforms Act (II of 1977)---

----Ss. 4, 7 & 24---Voluntary declaration---Surrender of excess land---Past and closed transaction---Predecessors-in-interest of petitioners owned subject land out of which they voluntarily surrendered excess land under Land Reforms Act, 1977---Petitioners assailed allotment of surrendered land by Federal Land Commission to respondent on grounds that predecessors-in-interest of petitioners had filed application for reclassification/redetermination of land in question---Validity---Proceedings pursuant to filing of miscellaneous applications when orders passed under S.7 of Land Reforms Act, 1977 and other provisions had attained finality, were inconsequential and alien to legislative intent---Predecessors-in-interest of petitioners made voluntary declarations on basis of long standing entries which existed in revenue records at that time and never objected to same---Predecessors-in-interest of petitioners exercised options under S. 4 of Land Reforms Act, 1977 of their own freewill and without demur whereby, land surrendered was resumed and vested with Government and was disposed of in manner prescribed---Proceedings against predecessors-in-interest of petitioners were completed and orders acted upon thus, same had attained finality and became past and closed transaction as for past six years, they were content with their own declarations and finality of proceedings---Predecessors-in-interest of petitioners failed to challenge order of Federal Land Commission which consequently attained finality since no request was made to Federal Government in terms of S. 24 of Land Reforms Act, 1977---Subsequent proceedings initiated pursuant to filing of miscellaneous applications were alien to Land Reforms Act, 1977 and to extent of proceedings and orders which had attained finality were ultra vires and had no effect---High Court declined to interfere in exercise of Constitutional jurisdiction as predecessors-in-interest of petitioners were estopped on account of their own conduct from indirectly challenging proceedings under Land Reforms Act, 1977 that had attained finality---Constitutional petition was dismissed in circumstances.

Jawad Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472 ref.

(b) Land Reforms Act (II of 1977)---

----S. 7---Land Commission---Jurisdiction---Correction of entries---Owner of land was required to make declaration under S.7 of Land Reforms Act, 1977 and was given a choice to select land which is to be surrendered and vested in Government after being resumed---Declarations had to be made on basis of revenue record and entries recorded therein that existed at that time---Neither Provincial Land Commission nor any official exercising jurisdiction and powers under Land Reforms Act, 1977 was empowered to correct entries recorded in revenue record.

Hafiz S.A. Rehman, Muhammad Munir Paracha and Nouman Munir Paracha for Petitioners.

Naeem Bokhari, Muhammad Imad Khan and Syed Naseem Ahmed Shah for Respondents.

Syed Muhammad Tayyab, DAG.

Hassan Waqar Cheema, ADC(R), ICT.

P L D 2019 Islamabad 591

Before Miangul Hassan Aurangzeb, J

DEPUTY REGISTRAR/REPRESENTATIVE OF EMPLOYEES OF FEDERAL SHARIAT COURT---Petiitoner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.3094 of 2016, deci ded on 31st July, 2019.

(a) Interpretation of statutes---

----Addition or omission in law---Scope---Court, in the garb of interpretation has no power to add or omit even a single word from provisions of law---Nothing can be added to a statute or a rule to rewrite same as such would be against accepted principles of interpretation.

Khan Gul Khan vl Daraz Khan 2010 SCMR 539 and Crescent Jute Products Ltd. v. Government of the Punjab PLD 2004 Lah. 686 rel.

(b) Federal Sharit Court (Terms and Conditions of Serivce of Staff) Rules, 1982---

----Rr. 5 & 6---Employees of Federal Shariat Court---Enhancement of allowances---Federal Shariat Court, powers of---Chief Justice of Federal Shariat Court enhanced/revised rates of utility allowances for its officers and staff---Plea raised by Federal Government was that such an enhancement/revision could not be entertained as it required approval from Prime Minister and could not be acted upon directly---Validity---President had power to grant or sanction allowances to civil servants in service of Federal Government, such powers by virtue of Proviso to R. 5 of Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982 could be exercised by the Chief Justice of Federal Shariat Court---Provisions of R. 5 of Federal Shariat Court (Terms and Condition of Service of Staff) Rules, 1982 did not make exrcise of powers by the Chief Justice of Federal Shariat Court to regulate terms and conditions of service of persons on staff attached to Federal Shariat Court conditional or subject to approval or sanction of Finance Division or Prime Minister---Notificaiton in question was issued pursuance to decision taken by the Chief Justice of Federal Shariat Court in exercise of powers conferred by R. 5 of the Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982 to revise rates of utility allowances (gas and electricity) for officers and staff of Federal Shariat Court---High Court declared that plea raised by Federal Government that revisin of allowances could not be made by the Chief Justice of Federal Shariat Court without approval of Finance Division or Prime Minister was without lawful authority and of no legal effect---Petition was allowed accordingly.

Riaz Ali Zaidi v.Government of the Punjab 2015 PLC (C.S.) 831 and Government of the Punjab v. Riaz Ali Zaidi 2016 PLC (C.S.) 1074 distinguished.

Government of Pakistan through Ministry of Finance v. M.I. Cheema, Deputy Registrar, Federal Shariat Court 1992 SCMR 1852; PLD 2014 SC 131 and Mehran Security Service (Pvt) Ltd. v. Pakistan 2000 YLR 2655 ref.

Aftab Ahmad Khan for Petitioner.

Nadeem Haider, Additional Registrar FSC for Respondents.

Shumayl Aziz, Assistant Attorney-General for Respondents.

P L D 2019 Sindh 1

Before Muhammad Junaid Ghaffar, J

MUHAMMAD JAVED and another---Petitioners

versus

Mst. ROSHAN JAHAN and 2 others---Objectors/Respondents

S.M.A. No.173 of 2009 and C.M.A. No.938 of 2010, decided on 10th May, 2018.

(a) Islamic law---

----Inheritance---Employee benefits---'Tarka'---Scope---In case of benefits (of employee) which formed part of the "Tarka" it was the responsibility of the nominee to collect such amount and distribute the same amongst the legal heirs, whereas, if the amount or asset which was not part of "Tarka" must ordinarily go to the nominee as otherwise, it would defeat the purpose / intention of any such nomination.

(b) Islamic law---

----Inheritance---Adopted child, nomination of---Employee of private Bank---Provident Fund, Gratuity and other terminal benefits in the event of death---Question as to whether an adopted daughter could be a nominee for purposes of retirement benefits of the deceased employee of private Bank---Held, that (Service) Regulations of the private Bank in question provided that a nominee may be a dependent and not necessarily a family member or legal heir---Nominee, in the present case, was an adopted child pursuant to grant of declaration to that effect by the Guardians and Wards Court, therefore, though not a legal heir, but nominee was a dependent---Insofar as the nomination of a minor was concerned, there appeared to be no restriction or prohibition of such nomination and it was only provided in the (Service) Regulations that it should be avoided---In the present matter, a minor was nominated and such nomination was accepted, therefore, it could not be said that the Regulations did not permit nomination of a minor and mere avoidance could not be equated with restriction or prohibition---Succession petition was disposed of accordingly.

(c) Islamic law---

----Inheritance---Tarka---Scope---Employee benefits---Group Term/Life Insurance, Insurance against General Provident Fund (G.P.F), General Provident Fund, arrears of family pension, arrears of Benevolent Grant, and Pension Commutation---Whatever benefits an employee could claim from its employer during his life time were to be treated as part of "Tarka" and being inheritable, were to be distributed amongst the legal heirs only according to shariah --- At the same time, the benefits which an employee was not entitled to claim from the employer during his lifetime and were to be matured on his / her death, did not form part of the "Tarka" and could be handed over to a nominee, if there was any ---Group Term / Life Insurance, Insurance against General Provident Fund (G.P.F), arrears of family pension, and arrears of Benevolent Grant, were not part of the "Tarka" as they could not be claimed by the deceased in his/her lifetime---Whereas amount of General Provident Fund, salary of certain number of days and pension commutation, could be claimed by employee at least when he/she was to retire, therefore, said categories of benefits available were part of the "Tarka" hence, were to be distributed amongst the legal heirs.

Late Javed Iqbal Ghaznavi's case PLD 2010 Kar. 153 ref.

(d) Islamic law---

----Inheritance---"Tarka"---Scope---Employee benefits---General Provident Fund---Such Fund was to be treated as "Tarka" as it could be claimed by the deceased employee from the employer at the stage of retirement or even before that---Amount of General Provident Fund was to be distributed amongst the legal heirs and not to be given to the nominee of the deceased.

Naseem Akhtar alias Lali v. Khuda Bux Pechoho and others 2006 CLC 1589 ref.

S. Abrar Ahmed Bukhari for Petitioner.

Abu Bakar Khali along with Ms. Nancy Dean for Objectors.

Faisal Siddiqui, Amicus Curiae on Court Notice.

P L D 2019 Sindh 18

Before Zulfiqar Ahmad Khan, J

WILLAYAT ALI---Petitioner

versus

NAHEED HUSSAIN and others---Respondents

Constitutional Petition No.S-47 of 2014, decided on 4th June, 2018.

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

----Ss. 15(2)(vii) & 2(g)---Constitution of Pakistan, Arts. 23, 24 & 199---Eviction of tenant---Personal bona fide need for a family member of the landlord---Scope---Denial of relationship of landlord and tenant---Petitioner/landlord contended that both the Courts below had wrongly declined his claim of personal bona fide need, merely on the ground that he failed to mention particular name(s) of any person from his family for whom demised premises were needed---Validity---Held, though very limited scope was permitted in constitutional jurisdiction to interfere in such matter but it was responsibility of the High Court to protect property rights envisaged by Arts. 23 & 24 of the Constitution---Record revealed that while Rent Controller had acknowledged that during cross-examination the petitioner submitted that the premises was needed for the marriage of his son, however, Rent Controller treated the same as a variance between his (landlord's) need and need of another family member---None of the two Courts below was competent to pierce through the family needs, seeking pin pointation of the person for whom the property was needed as long as need was coming from within the family---Sections 2(g) & 15(2)(vii) of Sindh Rented Premises Ordinance, 1979 collectively stipulated that Sindh Rented Premises Ordinance, 1979 treated the landlord and his spouse or his family members as 'one unit' and became satisfied to handover the possession to any of the said persons---To breakdown the solidarity and integrity of the family unit of the landlord and to put in the witness box landlord's wife or his children or other family members for whom the landlord needed the demised property was not required---If such would have been the intention of the Legislature, it would have been so specifically spelt out therein, therefore, it was up to the landlord to satisfy the Rent Controller that the demised property was needed by him, his wife or children, making no exposure for them to come up in the witness box and be examined or cross-examined individually---Said veil of family-integration was not allowed to be ruptured and the tenant could not object to the internal arrangement worked out by the family amongst themselves in such regard---Conduct of respondent disclaiming his relationship with landlord itself disentitled the respondent from any equitable relief---High Court set aside judgments passed by the two Courts below, constitutional petition was allowed accordingly.

1994 SCMR 355; 2001 SCMR 550; Mustafa Haji v. Umbichi 2004 (2) KLT 1110; Gulraj Singh v. Dr. Harbans Singh 1993 AIR 1993 (?) 1574; 1993 SCR (1) 149 and 1978 SCMR 14 ref.

2002 MLD 1266; 1996 SCMR 1178; 1992 SCMR 1296 and PLD 2000 Kar. 41 distinguished.

Ishrat Ali Lohar for Petitioner.

Irfan Ahmed Qureshi and Wali Muhammad Jamari, A.G. for Respondents.

P L D 2019 Sindh 22

Before Muhammad Junaid Ghaffar, J

Messrs WALIA STEEL INDUSTRIES PLC---Appellant

versus

Messrs SAGA SHIPPING AND TRADING CORPORATION LTD. and others---Respondents

J.M. No.59 and C.M.As. Nos. 17667, 13839 of 2017, decided on 21st March, 2018.

(a) Administration of justice ---

----Mentioning incorrect provisions of law in suit/application---Effect---Heading of an application or for that matter the plaint and or petition was immaterial vis-à-vis the contents and the relief being sought---As long as the power to hear and decide a matter vested in a Court, mere reference to a wrong provision of law, for invocation of that power was not a bar to the exercise of that power---All rules of procedure framed for regulating the proceedings before a Court or Tribunal were meant for advancing the course of justice, therefore, procedural laws and rules could not be used as a means for denying the relief to an aggrieved party on ground of technical non-observance of these rules or procedural laws---Courts had always liberally allowed conversion of proceedings of one kind into another and mis-description in the title of proceedings or mentioning of a wrong provision of law had never been considered fatal to the grant of relief if it was otherwise available under the law to an aggrieved party---Mentioning of a wrong provision of law in an application would not deprive the Court of the power and jurisdiction if otherwise the same was available under the law.

Pakistan Fisheries Ltd.v. United Bank Ltd. PLD 1993 SC 109; Jane Margerete William v. Abdul Hamid Mian 1994 SCMR 1555 and Mst. Safia Bibi v. Mst. Aisha Bibi 1994 SCMR 494 ref.

(b) Administration of justice---

----Act of court shall not prejudice anyone.

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

----O. XXIII, R.3 & S.12(2)---Compromise---Fraud and mis-representation---Non-availability of compromise agreement on record---Applicant/plaintiff-company booked a consignment of steel coils from a foreign country, which was shipped on a vessel owned by the first defendant-company---Cargo was supposed to be transported from Egypt to Ethiopia, however during transit the same was allegedly stolen and by preparation of forged and fabricated documents, it had been brought to Karachi, Pakistan in the name of second defendant-company, who was under the process of clearance of the same from Customs when suit was filed by the plaintiff-company and certain restraining orders were obtained---During pendency of suit an application under O.XXIII, R. 3 of the Civil Procedure Code, 1908, was filed by the attorney of the plaintiff-company supported by one of the Directors of the company claiming that the matter between the plaintiff-company and defendant-companies had been settled---Trial court allowed said application and dismissed the suit as not pressed---Plaintiff-company contended that order by Trial court had been obtained through misrepresentation and fraud as its attorney had no instructions and or lawful authority to withdraw the suit, and neither any compromise had been reached outside the Court, nor any such compromise was on record---Held, that on an application under O. XXIII, R. 3 C.P.C., the Court was required to pass a decree on the terms so settled through an agreement between the parties---Such agreement ordinarily must be signed and supported by the parties who had entered into such agreement---In the present case, there was no compromise agreement on record whereby, any inference could be drawn that interest of the plaintiff-company was safeguarded while filing the application under O.XXIII, R.3, C.P.C.---Even otherwise, for a compromise to be termed or called as being valid there ought to have been some material on record in favour of the plaintiff-company, which could have compelled the plaintiff-company/principal to instruct the Attorney to withdraw the suit---Trial Court had been misled or at least an attempt had been made to mislead the Court by filing an application under O. XXIII, R. 3 C.P.C. with supporting affidavits of plaintiff-company and first defendant, whereas, what has been stated in the order of the Trial court was entirely contrary to the contents of the application and finally on such application suit of plaintiff-company had been dismissed as not pressed---Order passed by Trial Court was obtained by way of misrepresentation and fraud and was resultantly set-aside---Application under S.12(2) C.P.C. was allowed in circumstances and High Court gave directions for the suit to proceed on merits in that the Attorney had no lawful authority on behalf of the plaintiff/principal to withdraw the suit.

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

----O. XXIII, R. 3 & S. 12(2)---Power of attorney, interpretation of---Compromise---Fraud and misrepresentation---During pendency of suit filed by the plaintiff-company against the defendant-companies, attorney of the plaintiff filed an application under O.XXIII, R.3 C.P.C. claiming that the matter between the plaintiff and defendants had been settled---Trial Court allowed said application and dismissed the suit as not pressed---Plaintiff contended that order by Trial Court had been obtained through misrepresentation and fraud as its attorney had no instructions and or lawful authority to withdraw the suit, and neither any compromise had been reached outside the Court, nor any such compromise was on record---Held, that perusal of the power of attorney reflected that the plaintiff-company had appointed the agents severally as the company's attorneys in question to do the acts deeds and things in connection with and arising out of the subject consignment and for its delivery and transportation from Egypt to Ethiopia---Said purpose had been so stated and it clearly spelt out that the principal/plaintiff-company wanted these attorneys to act in furtherance of the said act---Though a specific power for compromise was not available in the power of attorney but even if the word "comprise" used therein was understood as "compromise" (treating it as an inadvertent error or a typographical mistake) by no stretch of imagination it could be held that this also provided power for withdrawing the proceedings---Word 'withdrawal' had been purposely left out from the Power of Attorney---Admittedly, no separate withdrawal power was available in the Power of Attorney---Order passed by Trial Court was obtained by way of misrepresentation and fraud in that the Attorney had no lawful authority on behalf of the plaintiff/principal to withdraw the suit---Application under S. 12(2) C.P.C. was allowed in circumstances and High Court gave directions for the suit to proceed on merits.

(e) Power-of-attorney---

----Interpretation---Power of Attorney executed by a client in favour of a law firm for filing plaints, Vakalatnama etc.---Court while interpreting and examining such Power of Attorneys, had to keep in mind the distinguishing features as these Power of Attorneys were only in respect of facilitating the law firms operating in the entire country---Such Power of Attorneys were by no means affording any rights in respect of any property or ownership, and they were for specific purposes and were to be construed accordingly.

(f) Counsel and client---

----Vakalatnama---Curable defect---Defect, if any, in non-signing of Vakalatnama by a counsel was always treated to be a curable defect.

Muhammad Riaz Khan v. Sardar Rahim Dad PLD 1990 SC(AJ&K) 13 ref.

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

----O. XX, R. 6---Decree---Setting side of decree---Scope---Fraud inter se between parties---Not necessary that fraud in obtaining the decree should have been played on the Court which passed the decree but if a decree had been obtained through fraud between the parties inter se by concealment of true facts, the same could also be set aside.

Muhammad Aslam v. Mst. Kundan Mai 2004 SCMR 843 ref.

(h) Power of Attorney---

----Interpretation---While interpreting the contents of a power of attorney, the acts done by the attorney in furtherance to the main purpose for which the power of attorney had been issued, and which were for the benefit of the principal, the same were to be protected and may be considered as valid irrespective of the fact that such authority or power was not specifically mentioned in such Power of Attorney---However, if the acts performed by the attorney were detrimental or against the interest of principal, then the same had to be strictly construed and in such exceptional cases exercise of power by the Attorney would not be considered as valid.

Qadir Bakhsh and 10 others v. Kh. Nizam-ud-Din Khan and 4 others 2001 SCMR 1091 and Imam Din v. Bashir Ahmed PLD 2005 SC 418 ref.

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

----O. III, R. 1 & O. XXIII, R. 3 & S. 12(2)---Pleader/counsel--Vakalatnama/Attorney Engagement Letter --- Power of counsel to withdraw suit---Scope---Fraud and misrepresentation---During pendency of suit filed by the plaintiff-company, attorney of the plaintiff filed an application under O. XXIII, R. 3 C.P.C. claiming that the matter between the plaintiff and defendants had been settled---Trial Court allowed said application and dismissed the suit as not pressed---Plaintiff contended that order by Trial Court had been obtained through misrepresentation and fraud as its attorney had no instructions and or lawful authority to withdraw the suit, and neither any compromise had been reached outside the Court, nor any such compromise was on record---Plea of attorney of plaintiff that under the provisions of O. III, R. 1 C.P.C. the power to plead a case before a Court also enjoined upon a counsel to withdraw the same and there could not be any exception to it---Held, that such plea put forward by the attorney may be true in ordinary circumstances when a litigant signed a Vakalanama in person and engaged a counsel for all acts, which at times also empowered the counsel to withdraw or even compromise the case---However, the facts of the present case were different as the principal/plaintiff was abroad and had executed a power of attorney to a law firm which in turn had nominated its employees to act as attorneys---In this entire transaction it was not the case of attorney (employee of law firm) that he had any direct instructions either for instituting the suit or for withdrawing it---In fact the attorney had not come to contest present proceedings and defend himself---Furthermore the power of attorney itself had no specific powers either for compromise and or withdrawal---Assuming that the principal/plaintiff itself wanted to withdraw the proceedings, it would have definitely issued a separate memo of instructions to the law firm (and not to any of the attorneys individually) and on its presentation before the Court, appropriate orders could have been passed---Since such instructions were missing in the present case, the attorney was acting without any such instructions, therefore, the provisions of O.III, R.1 C.P.C. would not apply to the present case stricto-sensu---Order passed by Trial Court was obtained by way of misrepresentation and fraud in that the attorney had no lawful authority on behalf of the plaintiff/principal to withdraw the suit---Application under S.12(2) C.P.C. was allowed in circumstances and High Court gave directions for the suit to proceed on merits.

(j) Administration of justice ---

----Matters should always be decided on merits and not on technicalities.

Messrs Jawad A. Sarwana, Abdul Razzak and Anis Ahmed Pechuho for Applicant.

Azhar Maqbool Shah for Respondent No.1.

Choudhry Muhammad Iqbal for Respondent No.4.

Muhammad Rashid for Respondent No.5.

P L D 2019 Sindh 43

Before Muhammad Ali Mazhar and Omar Sial, JJ

SARDAR MUHAMMAD USMAN ALMANI and 2 others---Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos.D-4225, D-4358 and D-4364 of 2018, decided on 5th July, 2018.

Elections Act (XXXIII of 2017)---

----Ss. 20, 21 & 19---Elections Rules, 2017, R. 10---Constitution of Pakistan, Art. 17---General Elections---Delimitation of constituencies---Draft proposals for delimitation of constituencies---Principles of delimitation of constituencies---Preliminary delimitations---Representations against (or proposals for) delimitation(s) done by Election Commission---Role of the Election Commission---Vested right of candidate(s)/voters of a constituency vis-à-vis delimitation---Scope---Principles for delimitation were provided under S. 20 of the Elections Act, 2017 under which as far as practicable, constituencies may be delimited with regard to factors stated in the said section---Section 20 of the Elections Act, 2017 provided that as far as possible, variation in population for constituencies shall not ordinarily increase ten percent and if it was so exceeded, Election Commission shall record reasons in writing for the same---Law provided for right to submit proposals by means of representation before Election Commission for making changes and modifications in preliminary delimitation of a constituency but after considering all cognate factors, it was the sole responsibility of the Election Commission to finalise delimitation---No one could claim vested right that his / her representation to the Election Commission be accepted by the Election Commission nor any person could carve out/delimit a constituency according to his/her desires.

Ch. Atif Rafiq for Petitioner (in C.P. No.D-4225/2018).

Syed Mureed Ali Shah, Petitioner in person (in C.P. No.D-4358/2018 and for Interveners (in C.P. No.D-4225/2018).

Ali Asghar Buriro for Petitioner (in C.P.No.D-4364/2018).

Ms. Memona Nasreen for Election Commission of Pakistan.

Shaikh Liaqat Hussain,D.A.G.

Ms. Rukhsana Mehnaz Durrani, State Counsel.

Zaheer Ahmed Sehto, District Election Commissioner, Kashmore/Member Delimitation Committee.

P L D 2019 Sindh 47

Before Munib Akhtar and Agha Faisal, JJ

ISHRAT ALI LOHAR---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law and Justice Commission Pakistan and 8 others---Respondents

Constitutional Petition No.D-1054 of 2018, decided on 23rd April, 2018.

(a) Sindh Bar Council Rules for Bar Associations---

----R. 31(a) & (b)---Elections of Bar Association---Recounting of votes---Principle---If count was not completed/declared by Returning Officer then order for a recount can be passed by same Returning Officer---Determination of such issue is also best entrusted to appellate forum of Sindh Bar Council where the appeal of the petitioner was pending adjudication.

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

----S. 13(2)---Sindh Bar Council Rules for Bar Associations, R. 31(a) & (b)---Bar Association Elections---Recounting of votes---Dispute was with regard to election for post of office bearers for High Court Bar Association--- Petitioner was returned candidate and Pakistan Bar Council had allowed application of respondent with regard to recount of votes---Validity---Provisions of R. 31(a) of Sindh Bar Council Rules for Bar Associations provided a forum for any dispute arising out of or concerning an election and R. 31(b) of Sindh Bar Council Rules for Bar Associations could only be invoked to assail result of election---While in R. 31(a) of Sindh Bar Council Rules for Bar Associations there was no restraint upon nature of person authorized to file proceedings while R. 31(b) of Sindh Bar Council Rules for Bar Associations restricted challenged to be maintained only by an aggrieved contestant candidate---If both Rules were to be read conjunctively then necessary result would be to render R.31(a) of Sindh Bar Council Rules for Bar Associations so restrictive as to virtually make it redundant which appeared to be contrary to even literal reading of Sindh Bar Council Rules for Bar Associations--- Provisions of R.31(a)(b) of Sindh Bar Council Rules for Bar Associations were intended to be applied separately as same were disjunctive in their application and scope---High Court set aside orders passed by Chairman Executive Committee and order passed by Pakistan Bar Council and declared appeal proceedings before Pakistan Bar Council as infructuous---High Court issued directions to the Executive Committee of Sindh Bar Council to hear appeal of petitioner and decide the same expeditiously accordingly with directions so given by the High Court---Constitutional petition was disposed of accordingly.

Jam Madad Ali v. Asghar Ali Junejo and others 2016 SCMR 251; Muhammad Ashraf Samoo and others v. Sindh Bar Council and others PLD 2016 Sindh 318; Munir A. Malik v. Malik Muhammad Qayyum and others PLD 2007 SC 262; Tariq Mehmood A. Khan and others v. Sindh Bar Council and another PLD 2007 SC 262 and Muhammad Saleem Chotia Advocate v. Zafar Iqbal Awaisi Advocate and others PLD 1999 Lah. 446 distinguished.

Khadim Hussain Soomro and Khalil Ahmed Memon for Petitioner.

Mir Hussain Abbasi, Assistant Attorney General for Respondents Nos. 1, 2 and 3.

Salahuddin Khan Gandapur for Respondent No.6. (in person).

Pir Darwesh Khan Kheshgi and Ms. Kanwal Anjum for Respondent No.7.

Mumtaz Alam Leghari for Respondent No.8 (in person)

P L D 2019 Sindh 69

Before Muhammad Ali Mazhar and Agha Faisal, JJ

TCS PRIVATE LIMITED through Authorized Representative and others-- Petitioners

Versus

PAKISTAN POST and another---Respondents

C.P. No.D-2987 of 2018, decided on 3rd August, 2018.

(a) Post Office Act (VI of 1898)---

----Ss. 4 & 3---Public Private Partnership Authority Act (VIII of 2017), Ss. 4, 8, 6, 13 & 15---Privatization Commission Ordinance (LII of 2000) S. 2(i)---Constitution of Pakistan, Arts. 18, 24 & 25---Pakistan Post Office---Exclusive privilege of conveying letters reserved to the Government---Public-private partnership agreements under the Public Private Partnership Authority Act, 2017---Powers and functions of the Board under the Public Private Partnership Authority Act, 2017---Fundamental Rights---Freedom of trade, business or profession and non-discrimination---Legality of public-private partnership agreements---Scope---Question before the High Court was whether the Pakistan Post Office, under the Post Office Act, 1898 was going beyond its statutory domain by entering into a public-private partnership by issuing a "request for proposal" and "tender" to form a company for postal and logistical services---Contention of petitioners, inter alia, was that same amounted to privatization of the Pakistan Post Office and formation of a monopoly which would impede right of petitioners, who were courier/postal/logistics companies; under Arts.18, 24 & 25 of the Constitution---Held, that Privatization Commission Ordinance, 2000 had a different premise and impugned request for proposal under the provisions of Public Private Partnership Authority Act, 2017 could not be equated with privatization but was an agreement for a public-private partnership with certain terms and conditions under the applicable law---Contention that impugned action violated of Art.18 of the Constitution was not applicable since intended public-private partnership under the Public Private Partnership Authority Act, 2017 in any case was not likely to affect or prejudice rights of petitioners to carry out their business; nor any monopoly was to be created---Present petition was motivated by self-interest of petitioners to avoid healthy competition---Even if it were assumed that under the Post Office Act, 1898 services/business in the impugned "request for proposal"/tender were not included in said statute, even then there was neither any bar nor any embargo that could be imposed whereby the Pakistan Post Office could be stopped from establishing new company or from entering into a partnership to start a new business under Policy of the Government and of the Board under Public Private Partnership Authority Act,2017 to improvise and expand its services---Constitutional petitions were dismissed, in circumstances.

2010 SCMR 1437; 2008 SCMR 1148; 2007 SCMR 307; PLD 2005 SC 842; 2001 SCMR 838; 2017 SCMR 683; Suo Motu Case No.19 of 2016; PLD 2012 SC 132; PLD 2011 SC 997; PLD 2005 SC 193; PLD 1975 SC 667; Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan 2012 SCMR 455; Watan Party v. Federation of Pakistan PLD 2013 SC 167 and 2004 MLD 1949 ref.

Tehsil Nazim TMA, Okara v. Abbas Ali and others 2010 SCMR 1437; Government of the Punjab, Food Department and another v. Messrs United Sugar Mills Ltd. 2008 SCMR 1148; Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307; Khyber Tractors (Pvt.) Ltd. v. Pakistan PLD 2005 SC 842; Suo Motu Case No.19 of 2016; 2017 SCMR 683; PLD 2012 SC 132; Muhammad Yasin v. Federation of Pakistan PLD 2011 SC 997; Watan Party v. Federation of Pakistan PLD 2005 SC 193; Arshad Mehmood v. Government of Punjab and Government of Pakistan v. Zamir Ahmad Khan PLD 1975 SC 667; Messrs Mustafa Impex, Karachi v. Government of Pakistan PLD 2016 SC 808 and TCS (Private) Limited v. Pakistan Post Office and another 2004 MLD 1949 distinguished.

Air India Ltd. v. Cochin International Airport Ltd. (2000) 2 SCC 617; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan 2012 SCMR 455 and Watan Party v. Federation of Pakistan PLD 2013 SC 167 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Public Interest Litigation ("PIL")---Scope---Public-interest litigation was a weapon to be used with great care and circumspection and the judiciary had to be extremely careful to see whether behind veil of the same, there existed any ugly private malice, vested interest or publicity-seeking.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan 2012 SCMR 455 rel.

(c) Words and phrases ----

----"Courier" meaning and scope explained.

Black's Law Dictionary, 9th Edn.; Cambridge English Dictionary; Business Dictionary; Chambers 21st Century Dictionary; The Chambers Dictionary 10th Edn.; The Concise Oxford Dictionary 9th Edn.; Wharton's Law Lexicon Fifteenth Edn. and The New Shorter Oxford English Dictionary, Vol. 1 rel.

(d) Words and phrases---

----"Logistic"---Meaning and scope explained.

Black's Law Dictionary, 9th Edn.; Cambridge English Dictionary; Business Dictionary; Chambers 21st Century Dictionary; The Chambers Dictionary 10th Edn.; The Concise Oxford Dictionary 9th Edn.; Wharton's Law Lexicon Fifteenth Edn. and The New Shorter Oxford English Dictionary, Vol. 1 rel.

(e) Words and phrases---

----"Letter---Meaning of---Written communication that was usually enclosed in an envelope, sealed, stamped and delivered or written or printed message normally sent by post in an envelope. TCS (Private) Limited v. Pakistan Post Office and another 2004 MLD 1949; Black's Law Dictionary and Chamber's 21st Century Dictionary rel.

(f) Administration of justice---

----Particular thing, if was required to be done in a particular manner, then the same must be done in such manner otherwise should not be done at all---Courts were required to do justice between the parties in accordance with provisions of the law.

Tehsil Nazim TMA, Okara v. Abbas Ali and others 2010 SCMR 1437; Government of the Punjab, Food Department and another v. Messrs United Sugar Mills Ltd. 2008 SCMR 1148; Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307 and Khyber Tractors (Pvt.) Ltd. v. Pakistan PLD 2005 SC 842 rel

Anwar Mansoor Khan and Mir Muhammad Ali Talpur for Petitioners.

Salman Talibuddin, Additional Attorney General for Pakistan assisted by Abdullah and Ms. Alizeh Bashir.

Shaikh Liaquat Hussain, Assistant Attorney General.

Ateeq-ur-Rehman, Assistant Director (Law), Pakistan Post.

Akbar Ali Dero, Post Master General, Karachi.

P L D 2019 Sindh 94

Before Kausar Sultana Hussain, J

Syed NASEEM AHMED---Applicant

Versus

Mst. REHANA TAJ and others---Respondents

Criminal Revision Application No.110 of 2017, decided on 9th August, 2018.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Landlord and tenant---Illegal dispossession---Scope---Petitioner-tenant alleged that the respondent-landlady had illegally and unlawfully dispossessed him from the rented premises---Trial Court dismissed the complaint of petitioner---Validity---Petitioner remained tenant of respondent from 2012 onwards---Petitioner had sent rent amount by money order to respondent and upon refusal to accept the same, petitioner deposited rent with the Rent Controller---Case of petitioner fell within the ambit of Illegal Dispossession Act, 2005 and Trial Court had erred in reaching to the conclusion that case did not attract the provisions of said Act---Revision petition was accepted. 2016 SCMR 1931 rel.

Rizwan Rasheed for Applicant.

Amir Jamil for Respondent No.2.

Nemo for Respondents Nos. 1, 3 and 4.

Ms. Seema Zaidi, D.P.G. for the State.

P L D 2019 Sindh 96

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

Mst. RAHILA widow of FAWAD AHMAD BATRA ---Petitioner

Versus

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

Constitutional Petition No.822 of 2016, decided on 3rd October, 2017.

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

----S. 84---Act of person of unsound mind---Ingredients---Four important ingredients of S. 84, P.P.C. are (i) commission of offense; (ii) unsound mind; (iii) incapability of knowing the nature of act/offence; and (iv) distinction between right and wrong.

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

----S. 84---Criminal Procedure Code (V of 1898), S. 465---Unsound mind---Determination---Principle---Court has to precisely determine whether a person is of unsound mind although it appears that despite importance of medical reports it is a question of law for Judge to decide---No hard and fast rule can be set down which defines unsoundness of mind---Each case depends on its own peculiar facts and circumstances, medical opinion of an expert Medical Board and extent of that illness taking various definitions/tests into account---From a Pakistan legal perspective being of unsound mind in most cases is a permanent medically recognized medical condition/impairment which was not self-induced and so severe/disabling that person having such illness was incapable of knowing nature of act or what he was doing is either wrong or contrary to law.

Black's Law Dictionary 6th Edn.; K.J. Aiyar Judicial Dictionary 13th End.; M.Illyas Khan's and Farah Khan's Medico Legal Digest of Pakistan; Mst. Safia Bano v. Home Department Government of Punjab PLD 2017 SC 18; Mehran alias Muna v. State PLD 2002 SC 92; Parikh's (2006 Edn.) Textbook on Medical Jurisprudence and Modi's Medical Juriprudence and Toxicoloy 23rd Edn rel.

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

----S. 9(a)(iv) & (vi)---Penal Code (XLV of 1860), S. 84---Criminal Procedure Code (V of 1898), S. 465---Unsound mind---Determination--Bipolar Affective Disorder---Petitioner assailed trial proceedings under National Accountability Ordinance, 1999 against her husband on the plea that he was of unsound mind at time of commission of offence---Validity---Petitioner was not presently confined as a patient in a psychiatric hospital on account of his illness---On the contrary, petitioner's husband was regularly attending trial proceedings---Trial Court had opined that husband of petitioner was understanding nature of those proceedings and through medication condition of accused had not reached the extent that it would prevent him from understanding nature of proceedings or prevent him from being incapable of making his defence as same was a requirement of S.465, Cr.P.C.---Petitioner's husband was not of such an unsound mind so as to make it incapable for him to make his defence---If in opinion of Trial Court petitioner's husband was incapable of making his defense due to a deterioration in his medical condition or another application to such effect was made to Trial Court by petitioner Trial Court could consider seeking opinion of a Medical Board to such effect---Constitutional petition was dismissed accordingly.

Khan Baig v. The State PLD 1984 Lah. 434; State of Rajasthan v. Shera Ram alias Vishnu Dutta 2012 SCMR 1768; Fauqual Bashar v. The State 1997 SCMR 239; Munshi Khan v. The State 1983 PCr.LJ 778; 1955 NUC (Madhya Bharat 5686) (V 42); Surendra Mishra v. State of Jharkhand (SC India dated 6-1-2011) and Archbold (2008); Muhammad Anwar v. The State 2000 PCr.LJ 64 and Walidad Khan v. The State and another PLD 2011 Lah. 153 ref.

Irfan ul Haq v. The State and another 2012 PCr.LJ 1328; Mst. Safia Bano v. Home Department Government of Punjab PLD 2017 SC 18; Mehran alias Muna v. State PLD 2002 SC 92; Nasir Mehmood v. State 2017 PCr.LJ 255 and Noor uddin v. State 2014 PCr.LJ 113 rel.

Muhammad Ilyas Khan for Petitioner.

Muhammad Altaf, Special Prosecutor, NAB along with Baqa Mohammad, I.O. for Respondents.

P L D 2019 Sindh 130

Before Muhammad Faisal Kamal Alam, J

LETTER OF ADMINISTRATION OF DECEASED TAHIR AHMED KHAN: In the matter of

Succession Miscellaneous Application No.230 of 2016, decided on 2nd June, 2017.

Succession Act (XXXIX of 1925)---

----Ss. 5 & 317---Civil Procedure Code (V of 1908), Ss. 13 & 44-A---Pakistan Act, 1990 [Enacted and promulgated in the United Kingdom], Ss. 8 & 2---UAE Civil Procedure Code, Federal Law No. (11) of 1992, Art. 236---SRO No. 208(I)/2007 dated 06.03.2007---Universal Declaration of Human Rights, Art. 17---Cross-border succession---Private International Law---Principles---'Lex domicilii' and 'lex situs'---Enforcement and recognition of orders of Pakistan Courts in reciprocating territories, and vice versa---Arrangement of reciprocity of judicial orders made by the Federal Government, effect of---Moveable/immoveable property of deceased situated in foreign country (outside Pakistan)---Non-contentious matter---Deceased domiciled in Pakistan and having Pakistan passport---Properties located in the United Kingdom and United Arab Emirates---Question before High Court was whether it could pass order for administration and succession in a non-contentious matter, for properties of the deceased located in the United Kingdom and United Arab Emirates---Held, that in the light of statutory provisions of the United Kingdom (the Pakistan Act, 1990) as well as SRO 208(1)/2007 dated 06.03.2007 (notifying arrangement for reciprocity, recognition and enforcement of judicial decisions with the United Arab Emirates); and the UAE Civil Procedure Code, Federal Law No. (11) of 1992; proceedings in the nature of "succession" could be initiated in any one of the said jurisdictions where the properties were situated and orders of such proceedings could be enforceable in the other foreign jurisdictions---However, if such statutes of the United Kingdom and the United Arab Emirates did not exist, then the Court would have no jurisdiction in respect of properties situated in said territories---High Court observed that property rights were also mentioned in Art. 17 of the Universal Declaration of Human Right and it would be imposition of hardship upon legal heirs of deceased, in the present case, to file proceedings in respect of the properties in three difference countries, particularly when the present matter was non-contentious in nature---High Court directed that letter of administration be granted to applicant as per the applicable rules---Application was allowed, accordingly.

Muhammad Ramzan (deceased) through L.Rs. and others PLD 2016 SC 174 distinguished.

Yusuf Abbas"s case PLD 1968 Kar. 480 and Mian Aftab Ahmed v. Habib Bank Limited 2001 WL 825157 rel.

Umair A. Qazi for Petitioner.

P L D 2019 Sindh 144

Before Aqeel Ahmed Abbasi, Muhammad Junaid Ghaffar and Muhammad Iqbal Kalhoro, JJ

GUL AHMED TEXTILE MILLS LTD.---Petitioner

Versus

COLLECTOR OF CUSTOMS, (APPRAISEMENT) and 2 others---Respondents

Constitutional Petition No.D-71 of 1994, decided on 19th July, 2018.

(a) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), Preamble---Constitutional petition---Provisions of the Civil Procedure Code, 1908---Applicability---Provisions of Civil Procedure Code, 1908 ("CPC") were applicable as and when needed under the Constitutional jurisdiction of the High Court in terms of Art. 199 of the Constitution; however, such provisions were not stricto sensu applicable in each and every situation---Under no circumstances while exercising Constitutional jurisdiction the High Court was bound to apply provisions of C.P.C. so as to non-suit a party, or to defeat the purpose of dispensing justice under the Constitutional jurisdiction.

(b) Constitution of Pakistan ---

----Arts. 174 & 199---Civil Procedure Code (V of 1908), S. 79---Constitutional petition---Impleading of parties---"Federation of Pakistan" as a necessary respondent---Scope---Grievance of petitioner-company was that "Collector of Customs" was misinterpreting a Statutory Regulatory Order (SRO), and thereby, denying the petitioner exemption from a surcharge---Petitioner filed Constitutional petition for redressal of its grievance, wherein, only "Collector of Customs" and Deputy Collector of Customs (Appraisement) were impleaded as parties, while "Federation of Pakistan" was left out---Question as to whether "Federation of Pakistan" was required to be mandatorily impleaded---Held, that impleading Federation of Pakistan/Province as a respondent in every Constitutional petition was not mandatory/necessary nor a requirement of law; it was always dependent on the facts and circumstances of the case as well as the relief sought through such petition for which the Court seized of the matter was competent to pass an appropriate order vis a vis its maintainability---In the present case, the grievance of the petitioner was not against the 'Federation of Pakistan', but it was the case of the petitioner that Collector of Customs was misinterpreting a certain notification already issued in favour of the petitioner; such circumstances joining the Federation of Pakistan as a respondent was not a necessity and only at most a procedural lapse which must not be taken as a ground to non-suit the petitioner---High Court held the present Constitutional petition to be maintainable with the observation that law settled in the case of Rahat Hussain v. Collector of Customs (Prev.), Customs. House, Karachi and 2 others (2003 CLC 1860) was not to be applied to each and every Constitutional petition without examining the facts of the case.

Muhammad Younus Shaikh v. Corex Enterprises 2007 MLD 508 ref.

Rashid Anwar along with Habib Qazi for Petitioner.

Ms. Masooda Siraj for Respondents Nos. 1 and 2.

Asim Mansoor Khan, Deputy Attorney General and Muhammad Yousaf, A.A.G. (On Court Notice).

P L D 2019 Sindh 155

Before Adnan Iqbal Chaudhry, J

MUHAMMAD AYUB GABOL---Plaintiff

Versus

PROVINCE OF SINDH through Secretary, Ministry of Industries and another---Defendants

Suit No.1264 of 2007, decided on 9th July, 2018.

Civil Procedure Code (V of 1908)-

----Ss. 16, 120, O. VII, R. 10 & O. XLIX, R. 3---Suit for declaration and injunction---Original jurisdiction of Sindh High Court---Scope---Return of plaint---Territorial jurisdiction---Determination---Plaintiff was holder of mining permit at Thatta (Sindh), which expired and authorities declined to renew the same---Plaintiff filed suit against decision of authorities in High Court at Karachi---Validity---Power of High Court of Sindh at Karachi under O.XLIX, R. 3 C.P.C. was not taken away to return a plaint under O.VII, R. 10 C.P.C. if it did not have territorial jurisdiction---Only if a suit in respect of immovable property was capable of being instituted within territorial jurisdiction of civil court at Karachi pursuant to S.16, C.P.C. would S.120, C.P.C. be triggered as regards High Court at Karachi when dealing with civil suits falling within its pecuniary jurisdiction--- Provision of S.16 C.P.C. was not only a threshold section for conferment of jurisdiction to courts in Pakistan but it was portal through which plaintiff had to enter for purposes of entering into city of jurisdiction of different courts in Pakistan---Suit was not maintainable within territorial jurisdiction of High Court at Karachi and it should have been instituted before civil court at Thatta having jurisdiction---Plaint was returned in circumstances.

Muhammad Ramzan (deceased) v. Nasreen Firdous PLD 2016 SC 174 rel.

Muhammad Naveed Aslam v. Aisha Siddiqui PLD 2010 Kar. 261 = 2011 CLC 1176; Muhammad Bachal v. Province of Sindh 2011 CLC 1450; Land Mark Associates v. Sindh Industrial Trading Estate (Suit No.247/2008); Deluxe Interiors v. The Sindh Industrial Trading Estates SBLR 2018 Sindh 1310; FGBC Ltd. v. Director General Mines and Minerals Development and Fateh Textile Mills v. Government of Sindh Suits Nos.333 of 2012 and 675 of 2014; Mirza Abdur Rahim Baig v. Abdul Haq Lashari PLD 1994 Kar. 388 and Murlidhar P. Gangwani (Engineeer) v. Engineer Aftab Islam Agha 2005 MLD 1506 ref.

Ahmeduddin Hanjra for Plaintiff.

Pervaiz Ahmed Mastoi, Assistant Advocate-General, Sindh for Defendants Nos. 1 and 2.

P L D 2019 Sindh 163

Before Muhammad Iqbal Mahar and Amjad Ali Sahito JJ

ZIA-UL-HASSAN LANJAR---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 14 others---Respondents

Constitutional Petition No.D-1426 of 2018, decided on 9th August, 2018.

Elections Act (XXXIII of 2017)---

----S. 95---Constitution of Pakistan, Art. 199---Recounting of ballot papers---Consolidation of results---Discretion of Returning Officer---Scope---Petitioner filed application before Returning Officer for recounting of ballot papers but the same was dismissed---Validity---Petitioner had resorted to remedy provided under Ss. 95(5) & 95(6) of Elections Act, 2017 as difference was only of 2092 votes but resulted in failure for the reason that consolidation of result had been done---Section 95(5), Elections Act, 2017 showed that such exercise was subject to "before commencement of the consolidation proceedings" and despite use of word "shall" discretion did lay with the Returning Officer as S. 95(5) lasted as "or the Returning Officer considers such request as not reasonable"---Section 95(6) of Elections Act, 2017 provided a direct remedy before the Election Commission but such remedy was again subject to "before conclusion of consolidation proceedings"---Request of petitioner was turned down by the Election Commission in terms of S. 95(6) of Elections Act, 2017 while holding that the result had been consolidated, therefore, the order/decision made by the Election Commission did not suffer from any error of law---Result had been consolidated, therefore, jurisdiction of High Court could not be invoked for recount which was subject to "before commencement of consolidation proceedings or consolidation of result" as same was a closed transaction---Controversy raised in the Constitutional petition that whether consolidation of result was legal or otherwise could not be decided through as same would require an inquiry and might amount to stepping out of constitutional jurisdiction which was never meant for resolving a dispute requiring inquiry---Elections Act, 2017 itself provided a proper remedy in the shape of election petition where all questions could be raised---High Court observed that petitioner might approach the Election Commission for redressal of his grievance---Constitutional petition, being devoid of merit, was dismissed accordingly.

Farooque H Naek, Zamir Hussain Ghumro and Qurban Ali Malano for Petitioner.

Respondent No.7 in person.

Liaquat Ali Shar, Addl. A.G.; Oshaque Ali Sangi, D.A.G. and A.D. Sangi, Advocate for Election Commission of Pakistan for Respondents.

P L D 2019 Sindh 168

Before Nadeem Akhtar and Muhammad Faisal Kamal Alam, JJ

ABDUL HAMEED and another---Petitioners

Versus

PROVINCE OF SINDH through Secretary Home Department and 8 others---Respondents

Constitutional Petitions Nos. D-2149 and 4729 of 2015 and 172, 935, 1110, 1111, 1112, 1113, 1114, 1115, 1116, 1117, 1118, 1119, 1122 and 1123 of 2018.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petitions filed at different Benches of the (Sindh) High Court in regard to disputes for which alternate remedy was available but not deliberately availed---Frivolous and ill-advised petitions---Wastage of time and energy of Judges and staff of the (Sindh) High Court---Adverse impact on speedy dispensation of justice---Delay in decisions/judgments of important cases --- Excessive expenditure of State---Hardships caused to genuine litigants, law officers and police officials---Problems caused by filing of frivolous and ill-advised Constitutional petitions before the different Benches of the Sindh High Court for disputes where alternate remedy was available but not deliberately availed, highlighted.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of the High Court---Scope---Article 199 of the Constitution could not be invoked against a private party under any circumstances.

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

----S. 156---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of the High Court---Scope---Cases wherein a direction was sought from the High Court in its Constitutional jurisdiction against the police that false case or FIR should not be registered---Such cases/petitions were misconceived and not maintainable as only the Magistrate concerned was competent to decide whether a case was false or not, and that too only after investigation and examination of the investigation report---Investigation in a criminal case could not be interfered with by the High Court---If any party felt that the allegation/ case against it was false or it was aggrieved with the investigation report in respect thereof, it had the remedy under the law to challenge such report before the competent forum---Furthermore, the remedy of a private complaint under S.200 Cr.P.C. was not only available, but was also an effective, practical and adequate remedy.

Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 ref.

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

----Ss. 22-A & 22-B---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of the High Court---Scope---Remedy under S.22-A & 22-A Cr.P.C---Efficacious remedy that had to be availed before approaching High Court---Plea that remedy under Ss.22-A & 22-B, Cr.P.C was not speedy and effective in comparison to Art. 199 of the Constitution as the Ex-Officio Justice of Peace could not exercise such powers that could be exercised by the High Court, and as such the High Court was duty-bound to entertain such Constitutional petitions in order to protect Fundamental Rights---Validity---Such plea was misconceived and not tenable---Remedy under Ss. 22-A & 22-B , Cr.P.C , being more efficacious and speedy, should be availed before approaching the High Court.

Younas Abbas and others v. Additional Sessions Judge Chakwal and others PLD 2016 SC 581; Dr. Sher Afgan Khan Niazi v. Ali S.Habib and others 2011 SCMR 1813; Muhammad Abbasi v. SHO Bhara Kahu and 7 others PLD 2010 SC 969; Dr. Abdul Rauf v. Federation of Pakistan through Interior Secretary and others 2013 PCr.LJ 1671 and Muhammad Yousaf v. Dr. Madad Ali @ Gulab Laskani and 8 others PLD 2002 Kar. 328 ref.

Zafar Ali Shah, Muhammad Imran Shamsi, Muhammad Aslam Gadani, Athar Hussain Abro, Zafar Ali Eidan Mangi, Muhammad Arif Malik, Shakeel Ahmed Kalwar, Muhammad Qayyum Arain and Parmanand for Petitioners.

Manoj Kumar Tejwani and Muhammad Shakeel Lakho for Private Respondents.

Zulfiqar Ali Naich and Noor Hassan Malik, Assistant Advocate General, Sindh.

Amicus Curiae:

Qurban Ali Malano, President Sindh High Court Bar Association, Sukkur.

Zulfiqar Ali Sangi, General Secretary Sindh High Court Bar Association "Sukkur and Jamshed Ahmed Faiz.

P L D 2019 Sindh 187

Before Fahim Ahmed Siddiqui, J

MUHAMMAD ATIF---Petitioner

Versus

Mst. AFSHEEN and 2 others---Respondents

Constitutional Petition No.S-29 of 2010, decided on 21st December, 2017.

Majority Act (XI of 1875)---

----S. 3---Age of majority---Scope---Guardian of person and property of minors appointed by the Family Court---Properties of minors were sold out by their uncle and mother and the proceeds were deposited with the Nazir of the Court, who was directed to invest the same in profit bearing schemes---Uncle of minors was appointed as the guardian of their person and properties by the Family Court---Applicant/minor contended that he had now attained age of nineteen (19) years, as such he was a major and therefore his share should be released to him---Held, that age of majority had to be calculated as per S.3 of the Majority Act, 1875---In terms of said section age of majority for present applicant was 21 years and not 18 years---If the uncle of applicant had not been appointed as guardian of his person and property, then in terms of S. 3 of the Majority Act, 1875, he could claim his age of majority as 18 years---Since uncle of applicant had been appointed as his guardian, and applicant had not attained age of 21 years, therefore, he had to wait for attaining legal majority age i.e. 21 years, before seeking release of his share---Application was dismissed accordingly.

Mst. Sat Bhari v. Noor Illahi PLD 1951 Lah. 408 and Muhammad Din and 3 others v. Safdar Ali 2001 YLR 1419 rel.

P L D 2019 Sindh 189

Before Muhammad Ali Mazhar, J

Messrs RASHID SILK MILLS and 29 others---Plaintiffs

Versus

FEDERATION OF PAKISTAN and others---Defendants

Suits Nos.820 of 2017 along with 75, 254, 321, 346, 347, 461, 503, 672, 831, 832, 850, 880, 978, 1146, 1147, 1148, 1149, 1713, 1714, 1726, 1737, 1738, 1749, 1753, 1760, 1761, 1799, 1804 and 2345 of 2017, decided on 12th October, 2018.

For hearing of Injunction Applications [C.M.As. Nos.445, 1398,1752, 1942, 1944, 3627, 3895, 2503, 3224, 5243, 5246, 5350, 5029, 6052, 7260, 7263, 7266, 7269, 10420, 10428, 10505, 10550, 10553, 10606, 10621, 10636, 10641, 10819, 10858 and 15522 of 2017]

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

----O. XXIX, Rr. 1 & 2---Constitution of Pakistan, Arts. 158 & 172---Suit for declaration and injunction---Interim injunction, grant of---Gas load management---Economic Coordination Committee (ECC), powers of---Declaration of Sunday closure---Plaintiffs were industrial concerns who claimed entitlement of uninterrupted supply of natural gas---Contention of plaintiffs was that in view of Art.158 of the Constitution the disruption/closure of supply of natural gas by defendant company on Sundays and/or holidays was unlawful---Validity---ECC had first well thought out and ruminated plights and predicaments of defendant company and in order to avoid further depletion in Line Pack/Low Pressure in system due to higher off-take, sanctioned Sunday closure---Plaintiffs failed to contend with or encounter such specific plea but remained entangled with plea of production in Province and preferential right of supply in terms of Art. 158 of the Constitution---Preferential right was given to domestic consumers in Load Management Policy, which was sensible and logical---Industrial and Captive Power Enterprises were allocated different priorities in Load Management Policy so they could not ask same treatment as being matted out to domestic and small commercial establishments or small shops---Plea of Sunday closure was merely based on depletion of Line Pack/Low Pressure in system which on itself meant that such was not a permanent cause but in a temporary situation, management decided to issue closure notice on holidays with particular dates---Such closure notice could not be issued for an unlimited period of time nor for permanent basis---Sunday closure notices were not issued in violation or contravention of Art.158 of the Constitution but due to circumstances beyond reasonable control of defendant company---Application was dismissed in circumstances.

Lucky Cement v. Federation PLD 2011 Pesh. 57; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Shahid Orakzai v. Pakistan PLD 2011 SC 365; Corruption in Hajj Arrangement PLD 2011 SC 963; Workers Welfare Fund v. Chrome Tannery PLD 2017 SC 28; Corruption in Rental Power Plants 2012 SCMR 773; Al-Makkah CNG Station v. Government of Pakistan Ministry of Petroleum 2011 CLD 1554; Shandar Petroleum/CNG v. Federation of Pakistan and others 2012 CLD 1714; Messrs Mustafa Impex, Karachi v. Federation of Pakistan and others PLD 2016 SC 808; Human Rights Case No.14392/2013, 2014 SCMR 220; 2003 SCMR 1772; PLD 2004 SC 690; PLD 1993 Lah. 673; PLD 1985 SC 28; PLD 2016 SC 961; PLD 2016 Isl. 32; 2016 SCMR 2012, 2013 SCMR 1687; 2016 SCMR 442; Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Shaheen Cotton Mills v. Federation of Pakistan PLD 2011 Lah. 120; Hajj Organizers Association of Pakistan and others v. Federation of Pakistan and others 2017 MLD 1616; Al-Tamash Medical Society v. Dr. Anwar Ye Bin Ju and others 2017 MLD 785 and Roche Pakistan Limited v. Pakistan and others PLD 2018 Sindh 222 ref.

(b) Public interest/importance--

----Connotation---Public importance must include a purpose or aim in which general interest of community as opposed to particular interest of individual is directly or widely concerned---Public interest is a very wide expression and embraces public security, public order and public morality---Expression public interest in common parlance means an act beneficial to general public and action taken in public interest necessarily means an action taken for public purpose.

Abu Dhabi Medical Devices Co. L.L.C. v. Federation of Pakistan 2010 CLC 1253; Hajj Organizers Association of Pakistan v. Federation of Pakistan 2017 MLD 1616; Al-Tamash Medical Society v. Dr. Anwar Ye Bin Ju 2017 MLD 785; MTW Pak Assembling v. Shahzad Riaz Industries Pvt. Ltd. 2017 CLC 1140; Sayyid Yousaf Husain Shirazi v. Pakistan Defence Officers' Housing Authority 2010 MLD 1267; Shahzad Trade Links v. MTW Pak Assembling Industries (Pvt) Ltd. 2016 CLC 83 and Roche Pakistan Limited v. Pakistan PLD 2018 Sindh 222 rel.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction, grant of---Principles---Court, before granting injunction is bound to consider probability of plaintiff succeeding in suit---All presumptions and ambiguities are taken against parties 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 have been wrongly granted than to plaintiff from withholding it in event of legal right proving to be in his favour, injunction may not be granted.

Ovais Ali Shah for Plaintiffs (in Suit No.820 of 2017).

Faiz Durrani and Ms. Samia Faiz Durrani for Plaintiffs (in Suits Nos. 831, 832, 1146, 1147, 1148, 1149, 1726, 1737, 1738, 1753, 1760 and 1761 of 2017).

Ameen M. Bandukda and Salman Ahmed for Plaintiffs (in Suits Nos.1799 and 1804 of 2017).

Shahzad Nizam for Plaintiff (in Suit No.880 of 2017).

Syed Mohsin Ali for Plaintiffs (in Suits Nos. 850 978, 1713, 1714 and 1749 of 2017).

Abid Naseem for Plaintiff (in Suits Nos.346 and 347 of 2017).

Navin Merchant and Salman Yousuf for Plaintiffs (in Suit No.461 of 2017).

Shahzad Rahim for Plaintiff (in Suit No.672 of 2017).

Naeem Suleman for Plaintiff (in Suits Nos. 75, 254, 321 and 503 of 2017).

None present for Plaintiff (in Suit No.2345 of 2017).

Asim Iqbal, Farmanullah Khan, Tahir Abbasi, Akbar Sohail and Ms. Maryam Riaz for Defendant (Suit Southern Gas Company Ltd.).

Salman Talibuddin, Additional Attorney General along with Ms. Alizeh Bashir.

Abdul Qadir Leghari, Assistant Attorney General.

P L D 2019 Sindh 209

Before Muhammad Iqbal Kalhoro and Mohammed Karim Khan Agha, JJ

K-ELECTRIC (PVT) LTD. through authorized Officer/Attorney and others Petitioners

Versus

The STATE and others---Respondents

Constitutional Petitions Nos.D-8223, D-8224, D-8225, D-8226, D-8227 and D-8228 of 2017, decided on 26th June, 2018.

Per Muhammad Iqbal Kalhoro, J.

(a) Interpretation of statutes ---

----Special law---General law---Repeal---Principle---Inconsistency between a general law and a special law---Rules of construction---Scope----Rule that a general act/statute was not to be construed as a repeal of a previous particular act/statute was not absolute---Construction that a latter general law did not abrogate an earlier special law was not automatic but was dependent on many factors such as intention of Legislature in subsequent legislation; context leading to enactment of such a law; nature of inconsistency between the two statutes and whether in latter law a reference to the previous particular law on the subject had been made---Normally implied repeal were not imputed and it was an established rule that in construction of a statute; a subsequent statute treating a subject in general terms and not expressly contradicting the provisions of a prior special statute, was not be constructed as intending to affect the more particular and specific provisions of an earlier act---When there existed some express reference to previous legislation on a subject or there was a necessary inconsistency between two acts/statutes standing together the rule that subsequent statute was not to be considered intending to affect provisions of earlier statute, would not be attracted---Presumption would be that Legislature after having had its attention to a special subject and having observed all circumstances, had intended by latter general enactment/statute to derogate from a previous act /statute and had made special mention of its intention to do so in the latter act/statute---Law which was essentially general in nature may contain some special provisions relating to certain matters and said law would therefore be classified "special law", and an inconsistency with a prior special law would be considered to have abrogated by said latter law, by implication.

(1984) 3 SCC 127; Justiniano Augusto De Foneseca, 1979 3 SCC 47: (sic) AIR SC 984 and R.S. Raghunath v. State of Karnataka and another AIR 1992 SCC 81 rel.

Syed Mushahid Shah and others v. Federal Investigation Agency and others 2017 SCMR 1218; 2013 CLC 571; 2017 SCMR 1218; 2013 SCMR 85; AIR 1992 SC 81; 2003 YLR 2087; 2017 SCMR 1218; (1992) 1 SCC 335 and PLD 2018 SC 81 ref.

(b) Penal Code (XLV of 1860)-

----Chap. XVII-B [Ss.462-G to 462-P]---Criminal Law (Amendment) Act (VI of 2016), S.2---Electricity Act (IX of 1910) S.39---Offences related to electricity, etc---Criminal offences and procedure under the Electricity Act, 1910---Implied repeal of special law by another special law enacted later in time---Nature of amendment in P.P.C. vide Criminal Law (Amendment) Act, 2016---Whether provisions of Chap.XVII-B of P.P.C. were to be treated as "special law"---Question before the High Court was whether Chapter XVII-B in the P.P.C. inserted vide Criminal Law Amendment Act, 2016, concerning offences in relation to electricity, would have an overriding affect on the provisions of the Electricity Act, 1910, which dealt with the same subject---Held, that insertion of Chap. XVII-B in the P.P.C. by Criminal Law Amendment Act, 2016 to specially deal with offences in respect of electricity would be treated as a "special law" and on account of patent inconsistency with provisions of the Electricity Act, 1910, it shall prevail over the said provisions of the Electricity Act, 1910 to the extent of such inconsistency---Constitutional petitions were dismissed, accordingly.

Justiniano Augusto De Foneseca, (1979) 3 SCC 47: AIR 1979 SC 984 and R.S. Raghunath v. State of Karnataka and another AIR 1992 SCC 81 rel.

Per Muhammad Karim Khan Agha, J, agreeing.

(c) Interpretation of statutes---

----Intent of framers of law/Constitution---Implied repeal---Parliament/Legislature was not bound by a predecessor or could bind a successor---Determination and principles of Parliamentary supremacy vis-à-vis Legislation, explained.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483; Constitution and Administrative Law by Hilaire Barnett 4th Edn.2002; Constitution and Administrative Law by A.W. Bradley, K.D. Ewing and C.J.S. Knight 16th Edn. 2015-p.56; State v. Syed Mir Ahmed Shah and another PLD 1970 Quetta 49 and Constitutional and Administrative Law 5th Edn. by O.Hood Phillips at p.55 rel.

(d) Interpretation of statutes---

----Nature of special laws and general laws---Rules of construction---Scope---Law/statute/Act could be both general and special in nature depending upon particular parts/sections/provisions, which were enacted as general and those which were special in nature---When there was inconsistency between two special laws, generally speaking, the special law later in time would prevail; however other relevant factors would also need to be considered such as the object, purpose and policy of both statutes and the Legislature's intention through language used in statutes before making a final determination.

Syed Mushahid Shah v. FIA 29017 SCMR 1218 and Waqar Zafar Bakhtawari v. Haji Mazhar Hussain Shah PLD 2018 SCMR 81 rel.

Abid S. Zuberi, along with Ayyan Memon and Sana Q. Validaka for Petitioners

Abdul Samad Khattak for Respondent No. 3 (in C.P. No.D-8225/2017)

Muhammad Tariq for Respondent No. 3 (in C.P. No.D-8228/2017)

Muhammad Awais Malano for Respondent No.3 (in C.P. No.D-8223/2017 and C.P.No.D-8227/2017).

Salman Talibuddin, Additional Attorney General

Ali Haider Salim, D.P.G.

Jan Muhammad Khoro, AAG

Ms. Sarwat Jawahir, State Counsel.

P L D 2019 Sindh 235

Before Muhammad Ali Mazhar and Agha Faisal, JJ

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN through Authorised Officer---Appellant

Versus

ADNAN FAISAL and another---Respondents

High Court Appeal No. 15 of 2012, decided on 2nd August, 2018.

(a) Code of Civil Procedure (Amendment) Ordinance (X of 1980)--

----S. 15---Criminal Procedure Code (V of 1898), S.411-A---Companies Ordinance (XLVII of 1984) [since repealed], S. 481---Appeal to High Court in certain cases---Appeal from sentence of High Court under S.411-A, Cr.P.C.---Criminal proceedings initiated under the Companies Ordinance, 1984---Appeal against acquittal of accused in offences arising out of the Companies Ordinance, 1984---Exclusive applicability of S. 481 Companies Ordinance, 1984 in such cases---Scope---Question before the High Court was whether an order for acquittal passed by High Court exercising original criminal jurisdiction in respect of offences arising out of the Companies Ordinance, 1984 could be impugned in appeal before the High Court under S. 15 of the Code of Civil Procedure (Amendment) Ordinance,1980, or under the procedure prescribed by S. 411-A, Cr.P.C.---Held, that impugned order was rendered in exercise of criminal jurisdiction and not civil, and was a final order and not an interlocutory order, therefore S. 15 of the Civil Procedure Code (Amendment) Ordinance, 1980 did not apply---Section 411-A of the Cr.P.C. would also not apply to the impugned order as the unequivocal provisions of the Companies Ordinance, 1984 would override the same---In respect of criminal proceedings arising out of the Companies Ordinance, 1984, S. 481 of the Code would apply vis-a-vis appeals against acquittal notwithstanding anything contained in the Cr.P.C. and thus S. 411-A, Cr.P.C. would not provide a right of appeal in the impugned order---Appeal being not maintainable, was dismissed in circumstances.

Abdul Rahim Khan v. The State 1991 MLD 2448 and Brothers Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others PLD 1995 SC 543 ref.

Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf Khan PLD 1952 SC 455; The State v. Abdul Samad and another PLD 1984 Quetta 72 and Gulistan Textile Mills and another v. Soneri Bank Limited and another 2018 CLD 203 rel.

(b) Interpretation of statutes---

----Special law---Maxim: Generalia specialibus non derogant---Specific provisions of a special law would displace general law which would be deemed to be inapplicable.

Gulistan Textile Mills and another v. Soneri Bank Limited and another 2018 CLD 203 rel.

Khalid Mehmood Siddiqui for Appellant.

Asghar Kundi and Munir Ahmed for Respondent No.2.

P L D 2019 Sindh 247

Before Nazar Akbar, J

Mst. NEELAM ASHFAQ---Appellant

Versus

MUHAMMAD IQBAL and another---Deceased/Respondents

M.A. No.25 of 2014, decided on 23rd November, 2018.

Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Succession proceedings before District Judge---Objection by objector---Undetermined claim---Amount claimed by objector released to him by the court---Legality---Objector in question was neither a legal heir nor he had any decree of court in his favour---Objector had an undetermined claim which was not supposed to be entertained by the High Court---Order in respect of moveable and immoveable properties of a deceased was transfer of both the debts and security from a dead person to his legal heirs---If anything was liable to be recovered from the deceased, the same may be recovered from the legal heirs provided such claim was determined by a court of law against the legal heirs---Court seized of a succession petition was not supposed to attach a huge amount of succession in favour of an objector who had not even filed any suit for recovery of said amount---Impugned order had been passed by the court below beyond its jurisdiction, therefore, the same to the extent of attachment/release of Rs.30,00,000 was void---High Court directed the Nazir of the Court to hand over the said amount to the legal heirs as per their share already determined in the succession proceedings---Appeal was disposed of accordingly.

P L D 2019 Sindh 248

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

ZAKIR KHAN and another---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. D-4191 and D-5240 of 2016, decided on 20th February, 2018.

Pharmacy Act (XI of 1967)---

----Ss. 18 & 19--- Pharmacy Council of Pakistan (Doctor of Pharmacy Degree Course) Regulations, 2005, Regln. 7---Pharmacy licence, issuance of---Evening classes--Pakistan Pharmacy Council (council) denied issuance of licence to petitioners on grounds that he completed his education of D. Pharmacy in evening program of Federal Urdu University of Arts, Science and Technology which program was stopped by the Council---Validity---Petitioners and students of D. Pharmacy (5 years) degree course in Federal Urdu University of Arts, Science and Technology could not be held responsible or penalized for some procedural irregularity or non-compliance of provisions of Pharmacy Act, 1967 or Pharmacy Council of Pakistan (Doctor of Pharmacy Degree Course) Regulations, 2005 by a public sector university---Pharmacy Council of Pakistan claimed to be a controlling body but did not take any action against university nor had come forward to intimate students of D. Pharmacy (5 years) Degree Course in evening program with regards to alleged violation or non-compliance of provisions of Pharmacy Act, 1967---Pharmacy Council was directed to grant registration to petitioners and other students of D. Pharmacy of first and second batch of Federal Urdu University of Arts, Science and Technology who had already been awarded degree by university without any pre-registration/exist test subject to compliance of codal formalities---Constitutional petition was allowed accordingly.

Khalid Nawaz Marwat and Mehmood Khan Kakar for Petitioners (in Const. Petition No.D-4191/2016).

Shakeel Ahmed Khan for Respondent along with Prof. Badaruz Zaman, Focal Person, Federal Urdu University of Arts, Science and Technology.

Tanveer Ahmed Siddiqui, Secretary, Pharmacy Council of Sindh. Mr. Asim Mansoor Khan, DAG.

P L D 2019 Sindh 255

Before Muhammad Iqbal Kalhoro and Mohammad Karim Khan Agha, JJ

Syed IQBAL KAZMI and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.Ps. Nos.D-1144 and D-1125 of 2007, decided on 11th September, 2018.

(a) Constitution of Pakistan ---

----Arts. 4, 9 & 10A---Tribunals of Inquiry Ordinance (II of 1969), S.3---Anti-Terrorism Act (XXVII of 1997), S.19---Law and order situation created in Karachi city on 12-05-2007 on arrival of the then Chief Justice of the Supreme Court at the airport for a scheduled visit---Breakdown in law and order---Killing of innocent citizens---Blockade of courts---Denial of access to justice---Damage to public and private property---Attack on media personnel---Local and Provincial administration and Federal Government had been taken into confidence about the visit of the then Chief Justice and had been directed by the (Sindh) High Court to make fool proof security arrangements for the visit---However, when the Chief Justice arrived at the (Karachi) airport on the morning of 12-05-2007 a serious law and order situation broke out in the city---Almost entire city was shut down and many citizens were killed and injured due to firing by various miscreants---Both the High Court and City Courts were completely surrounded and blocked off and besieged by angry mobs---Litigants and judges were not permitted to reach the courts which led to complete denial of access to justice to inhabitants of the city---Law enforcement agencies looked on as silent spectators and turned a blind eye to the illegal activities going on around them---Chief Justice of the Supreme Court was unable to leave the airport due to the law and order situation and had to return from the airport---Numerous First Information Reports (FIRs) were registered for individual criminal acts that took place on the day, however despite a lapse of over 11 years, little if any progress was made in any of the FIRs---Hardly any of the persons who at that time were part of the command and control structure of the city were named in the FIRs---After a lapse of more than 11 years, either through inefficiency or design the investigating agencies, the provincial prosecution department and the Anti-Terrorism Courts had failed to discharge their duties in pursuing the said FIRs---Public had a right to know whether persons at the helm of affairs in the Province (in breach of the High Court's orders) deliberately put in place a plan to ensure that the then Chief Justice was not allowed to leave the airport; whether the blockades were set up to protect the then Chief Justice during his visit or were established with the primary objective of preventing him from carrying out his schedule; what was the command and control structure on and immediately before the day of the then Chief Justice's visit; who made the security plans, took the decisions, gave the relevant orders, and as to why the police and the rangers were virtual spectators whilst the city was overrun by miscreants; whether those at the helm of affairs who had command and responsibility on or before the day of Chief Justice's visit bore any responsibility for the denial of access to justice, complete breakdown in law and order, loss of precious lives, damage to both public and private property and attack on the independence of media---High Court directed that a fresh Joint Investigation Team (JIT) shall be established [under S.19 of the Anti-Terrorism Act, 1997] by the competent authority within 2 weeks of the date of present judgment to trace out all the persons involved in FIRs/cases that had been disposed of under "A" class (untraced) and make further investigations in all other cases in connection with the incidents that took place on the day of the visit of the Chief Justice; that the Chief Justice of the [Sindh] High Court may appoint a sitting judge of the High Court to monitor all (65) cases registered for the incidents that took place on the day of Chief Justice's visit through monthly progress reports from the concerned trial courts who initially should give an explanation for their failure to dispose of each and every one of these (65) cases despite a passage of over 11 years; that the Provincial Government was to file a compliance report with regard to the victims/relatives stipulating, as to who was paid compensation and why with proof of receipt; on what date such compensation was paid in each case; what was the amount paid to each person; how such amount was calculated, and a confirmation that there were no outstanding claims---Constitutional petitions were disposed of accordingly.

Dr. Mobashir Hasan v. Federation of Pakistan PLD 2010 SC 265 ref.

(b) Administration of justice---

----Bench of the High Court---Two-member Bench (of the High Court) could not interfere or set-aside a judgment passed by a larger Bench of the same High Court.

All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600 ref.

(c) Pakistan Commissions of Inquiry Act (IX of 2017)---

----S. 3---Tribunals of Inquiry Ordinance (II of 1969), S.3---Constitution of Pakistan, Art. 199---Criminal Procedure Code (V of 1898), S. 561-A---Constitutional jurisdiction/Inherent powers of the High Court to set up a Commission of Inquiry---Scope---High Court in exercise of powers under Art.199 of the Constitution or under its inherent powers could set up a Commission of Inquiry or direct the same to be established.

(d) Constitution of Pakistan---

----Arts. 4, 9 & 10A---Tribunals of Inquiry Ordinance (II of 1969), S.3---Law and order situation created in Karachi city on 12-05-2007 on arrival of the then Chief Justice of the Supreme Court at the airport for a scheduled visit---Breakdown in law and order---Killing of citizens---Blockade of courts---Denial of access to justice---Damage to public and private property---Attack on the independence of media---Appointment of a one man Tribunal/Commission of Inquiry---High Court directed that the Provincial Government shall appoint a one man Tribunal of Inquiry within 14 days of the date of present judgment to be headed by a either a sitting or former Judge of the (Sindh) High Court whether or not he later retired from the Supreme Court [who shall be selected by the Chief Justice of the (Sindh) High Court]; that the Provincial Government was to make such a request to the Chief Justice of the High Court immediately on receipt of present judgment; that the Tribunal shall have all the powers under the Tribunal of Inquiries Ordinance 1969 which shall complete its inquiry in to the terms of reference within three (03) months of its notification subject to any extensions, if required, granted by the High Court; that the Provincial Government shall provide at its own expense the building and all necessary facilities and equipment from where the Tribunal shall operate and pay all its costs including those of its Head and its staff; that on completion of its report the Tribunal shall submit the same to the High Court and simultaneously make it (without redaction) public as the people had a right to information---Terms of Reference of the Tribunal/Commission stated.

High Court gave directions for appointment of a one-man Tribunal/Commission of Inquiry to inquire into the events that took place in Karachi city on 12-05-2007 with the following Terms of Reference:

(a) To inquire into and determine whether the citizens' access to justice was denied on the day of the visit of the Chef Justice [on 12-05-2007];

(b) To inquire into and determine how and why an angry and aggressive mob were able to lay siege to a certain District Bar, City Courts, and the High Court, despite the presence of police and why the police failed to timely clear these miscreants;

(c) To inquire into and determine the hierarchy of the chain of command and control at the political, bureaucratic and Law Enforcements Agencies (LEA's) level especially the police and their interaction before, during and immediately after the day of the Chief Justice's visit;

(d) To inquire into and determine what orders were passed down the chain of command to the police as to how to react if any law and order situation arose; who gave such orders and who was responsible for implementing those orders; what orders were given on the day to tackle the law and order situation and why the policewas unable to tackle the same. Was such failure on their part negligence or even criminal negligence and who bore the responsibility;

(e) To inquire and determine what steps were taken on the ground by the police to remove all the barricades (which seemed to include not just containers but water tankers, buses, and other vehicles placed by miscreants) surrounding the High court and other places in the city and what steps were taken to remove the miscreants;

(f) To inquire and determine how a media outlet which was covering the events on the day as they unfolded was permitted to be fired on for such a long period of time by miscreants without any intervention from the police and to fix responsibility of such failure;

(g) To inquire and determine whether the security arrangements put in place on the day were to genuinely ensure the safe journey of then Chief Justice of the Supreme Court from the airport to his engagements in the city along his proposed route of choice or were they in fact an attempt to ensure that the then Chief Justice could not reach either a certain District Bar, the City Courts or the High Courts as per his schedule;

(h) To inquire into and determine whether lawyers and supporters of the then Chief Justice were targeted, and if so was it by activists of any particular political party, and if so what was the name of that party and who were its senior members;

(i) To inquire and determine whether the law enforcements agencies especially the police failed to perform its duty of protecting the lives and properties of the citizens, and whether through their inaction they could be said to be accomplices to the illegal activities which unfolded on the day and to fix responsibility of their failure;

(j) To inquire and determine whether the Rangers force was called by the Provincial Government to assist them in maintaining law and order, when the Provincial Government was aware that such a law and order situation may arise; whether their assistance was called for prior to the day of visit of the Chief Justice; and whether there was any delay in calling for their assistance and who was responsible for such delay;

(k) To inquire and determine why the permission for certain political parties to hold rallies on the same day as the visit of the Chief Justice was not withdrawn/cancelled, when the Provincial Government had before that date (fearing a law and order situation) already requested the then Chief Justice to cancel his scheduled engagements, and as to who was responsible for making such decisions;

(l) To inquire and determine whether in relation to the Chief Justice's visit there was any prior interaction between activists of any political party and the then Provincial Government, and if so, what was the name of such political parties and the nature of such interaction and who was it between; and

(m) To inquire and determine whether there was any involvement /collusion of the Federal Government with the Provincial Government in attempting to ensure that the then Chief Justice could not attend his engagements, and if so, what was the extent and level of such collusion and what was the identification of those involved. [pp. 307, 308, 311] M, N,O & R

Salman Talibuddin, Additional Attorney General of Pakistan, Ali Haider, Additional Prosector General, Hakim Ali Sheikh, Additional Advocate General, Rashid A. Rizvi and Muhammad Hamid Khan, Additional Inspector General (Legal) (On Court Notice).

Faisal Siddiqui and Shahab Sarki: Amici Curiae.

P L D 2019 Sindh 312

Before Muhammad Ali Mazhar and Agha Faisal, JJ

MUSLIM COMMERCIAL BANK LTD.---Appellant

Versus

Haji JAN MUHAMMAD and others---Respondents

High Court Appeal No.270 of 2017, decided on 24th December, 2018.

Succession Act (XXXIX of 1925)--

----S. 372---Proceedings for issuance of succession certificate---Non-adversarial proceedings---Single Judge of High Court giving directions to Nazir to collect the statements of accounts with effect from the year 1997 to 2014 from the concerned Bank (financial institution) whereat accounts of the deceased were maintained---Legality---Question as to whether it was just and proper for Single Judge to render an inquisitorial order in non-contentious succession proceedings---Legal heirs of deceased defending the impugned order of Single Judge contended that upon the demise of the deceased, the legal heirs stepped into the shoes of the deceased and hence were entitled to obtain statements of account in the same manner as would have been permissible to the deceased, at the time that he was alive---Held, that record showed that there was no mention of the deceased having expressed any dissatisfaction with regard to his accounts, maintained with the appellant-Bank, during his life time---Even if the legal heirs apprehended that the accounts had been dealt with otherwise than in accordance with the law, they remained at liberty to institute the appropriate proceedings in such regard before the forum of appropriate jurisdiction---Proceedings before the Single Judge for issuance of succession certificate ('SMA proceedings') were not adversarial in nature and the appellant-Bank was not even a party thereto, hence, the Single Judge of High Court in SMA proceedings could not be designated as the appropriate forum for the legal heirs, to seek an inquisition into and/or the determination of any apprehensions that they may have had with respect to the accounts of the deceased maintained with the appellant-Bank---Impugned direction of the Single Judge, seeking the statements of account of the deceased with effect from 1997 till 2014, was unmerited, and could not be considered as just and proper---Appeal was allowed and the impugned order was set-aside accordingly.

Mansoor-ul-Arfin for Appellant.

Asim Mansoor Khan for Respondents.

P L D 2019 Sindh 317

Before Muhammad Ali Mazhar, J

ABDUL GHANI and others---Plaintiffs

Versus

PROVINCE OF SINDH through Secretary, Board of Revenue and others---Defendants

Suit No.1014 of 2005, decided on 2nd January, 2019.

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

----S. 42---Suit for declaration---Discretionary relief---Scope---Relief of declaration being discretionary in nature could be granted in a case where substantial injury is established---In absence of denial of right no relief of declaration can be granted---Where right to legal character or property is not involved suit for declaration is not maintainable.

Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Chief Engineer, Irrigation Department and others v. Mazhar Hussain and others PLD 2004 SC 682 and Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others 1990 SCMR 725 ref.

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

----S. 42---Suit for declaration---Claim for negative declaration---Scope---Claim of negative declaration was not barred under the law but in order to reach on just conclusion, the pith and substance of the suit matters.

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

----S. 42---Expression "legal character"---Meaning and scope.

Naseem-ul-Haq v. Raes Aftab Ali Lashari 2015 YLR 550 and Ilyas Ahmed v. Muhammad Munir PLD 2012 Sindh 92 rel.

Muhammad Nouman Jamali, Muhammad Ehsan and Abdul Razzaq for Plaintiffs.

Syed Aley Maqbool Rizvi, Addl. A.G., Ziauddin Junejo, A.A.G. and Ms. Nahid Akhtar, State Counsel.

Sameer Ghazanfar and Ms. Azra Muqeem for Defendants Nos. 2 to 4 and 6.

Akhtar Ali Mastoi for Board of Revenue.

P L D 2019 Sindh 330

Before Adnan Iqbal Chaudhry, J

Ms. BARBARA HALENA PHILOMINA---Petitioner

Versus

IN THE MATTER OF ESTATE OF MARINA CAROLINE BOND---Deceased

S.M.A. No.241 of 2017, decided on 18th October, 2018.

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

----Chapt. II (Ss.31-49)---Christian citizen of Pakistan dying intestate---Notwithstanding any custom, matters of inheritance/succession relating to Christian citizens of Pakistan were to be dealt by applying the Succession Act, 1925---Chapter II of the Succession Act, 1925 dealt with cases of intestates other than Parsis and therefore would include cases of Christian intestates.

Inayat Bibi v. Issac Nazir Ullah PLD 1992 SC 385 and Lilin Sen v. Mrs. Phyllis Merlin Xavier PLD 2003 Kar. 270 ref.

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

----Ss. 372 & 47---Proccedings for issuance of succession certificate---Christian lady ('the deceased') dying intestate---Deceased not survived by any lineal descendant nor any other kindred except a sister (petitioner)---Distribution of such deceased's properties would be as per S. 47 of the Succession Act, 1925, making the petitioner (sister) the sole beneficiary---No person had come forward to object to present petition---Petition was allowed with the direction that succession certificate was to be issued to the petitioner in accordance with relevant Rules.

Muhammad Aqil for Petitioner.

P L D 2019 Sindh 332

Before Muhammad Ali Mazhar and Adnan Iqbal Chaudhry, JJ

Messrs GAAZA BROADCAST SYSTEM PVT. LTD. through Authorized person and others---Petitioners

Versus

FEDERATION OF PAKISTAN through Ministry of Information and Broad Casting Pakistan and others---Respondents

Constitutional Petitions Nos.62 and 63 of 2012, decided on 12th February, 2019.

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

----S. 22---Constitution of Pakistan, Art. 4 ---Licence to broadcast or operate---Duration for consideration of the application for a licence---Nature and scope of S. 22 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Duration of one hundred days prescribed by S.22 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Fundamental Right to be dealt in accordance with law---Scope---Question before the High Court was whether the Pakistan Electronic Media Regulatory Authority ("PEMRA") , in absence of any penal provisions for non-compliance under S.22 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, could delay decision on applications for licence to broadcast beyond the prescribed period of one hundred days---Held, that provision of no penal consequences did not simpliciter mean that an application for licence to broadcast could be kept pending at the rest and leisure of PEMRA beyond the prescribed period of one hundred days---Consideration of an application for licence to broadcast was an onerous duty placed by law on PEMRA and same should be discharged in fair and transparent manner---Delay beyond hundred days in considering application for licence to broadcast frustrates the whole purpose and scheme of the law---Such delay of a number of years from the time applications for licence to broadcast were filed, showed that PEMRA was not discharging its functions in accordance with law and there existed lack of transparency in its affairs---Applicants who filed an application for licence to broadcast under S.22 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 had acquired a right to be dealt in accordance with law as envisaged in Art. 4 of the Constitution---PEMRA was therefore required to discharge its functions under statutory provisions and it ought to reject or accept the applications for licence to broadcast within the prescribed period of one hundred days.

PLD 2011 SC 805 rel.

(b) Constitution of Pakistan---

----Arts. 25 & 4---Fundamental right for equal treatment and right to be dealt in accordance with law---Reasonable classification---Nature and scope---Under Art. 25 of the Constitution, equal treatment meant equal treatment in the midst of persons who were evenly positioned or fit in the same class of people---Perception and onset of equality was negation of arbitrariness and every power had its extent and legal limits---Exercise of such power(s) should be based on evenhandedness---Persons in similar circumstances should have similar treatment unless segregation was based on rational cataloguing which should not be whimsical---Comprehensible differentia distinguished persons or things that were grouped together from those who had been left out ;which ought to be judicious linkage to the purpose desired to be achieved by such classification---Concepts of equality before law and equal protection of law were synonymous terms and as the first discouraged and negated all special privileges to any citizen or class and subjected them to ordinary law of land whereas the later declared that all citizens had equal protection of law---Every statutory body and public functionary was therefore supposed to function in good faith with honesty and within precincts of their powers so that concerned person(s) could be treated in accordance with law per Art. 4 of the Constitution.

Arshad M. Tayebaly and Amel Khan Kasi for Petitioners.

Kashif Hanif for Respondents Nos. 2 to 5.

M. Zahid Khan, Assistant Attorney General.

P L D 2019 Sindh 344

Before Muhammad Junaid Ghaffar, J

Messrs RESOE INTERNATIONAL TRADING (PRIVATE) LIMITED through Director---Plaintiff

Versus

Messrs ARK GLOBAL DWC-LLC and 5 others---Defendants

Adm. Suit No.11 of 2018, decided on 13th November, 2018.

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

----Ss. 3(2)(g), 3(2)(h) & 4(4)---Claim for loss of or damage to goods carried in a ship---Claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship---Any claim under the Admiralty jurisdiction of the High Court, which fell within the ambit of Ss.3(2)(g) & 3(2)(h) of the Admiralty Jurisdiction of High Courts Ordinance, 1980 read with S. 4(4) thereof could be entertained by the Court even in the absence of the ship-owner or the charter party in question.

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

----S. 3---Claims in rem and personam---Maintainability---Such claims were simultaneously maintainable under the Admiralty jurisdiction of the High Court.

C.V. "Lemon Bay" v. Sadruddin and others 2012 SCMR 1267 ref.

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

----S. 3---Bill of Lading---Scope---Bill of Lading was signed by the ship owner, or by the Master or other Agent of the ship owner; it was an acknowledgment of the receipt of the cargo mentioned therein; it contained particulars relating to the goods as in their quantity, condition, as well as identification marks, if the same was in packed condition --- In any case it was a receipt of goods shipped---Bill of Lading was conclusive evidence of shipment in the hands of the consignee or the endorsee, as the case may be, as against the Master or any other person signing the same---Consignee who was a holder of the Bill of Lading was always under an expectation that he was entitled to proceed against the ship or its owner in the event of loss or damage to his goods.

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

----S. 3---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Sindh Chief Court Rules (Original Side), R.731---Arrest of vessel, application for---Nature---Application for arrest of a vessel filed in terms of R.731 of the Sindh Chief Court Rules (Original Side) read with the Admiralty Jurisdiction of the High Court, was not an injunction application at par with and under an application of injunction in terms of O.XXXIX, Rr. 1 & 2 C.P.C.---Parameters for grant of an application under O. XXXIX, Rr. 1 & 2, C.P.C. as against an application under R.731 of the Sindh Chief Court Rules (Original Side) were completely different and at variance---Admiralty Jurisdiction was totally separate and independent from common law jurisdiction or the civil jurisdiction of a Court---As a contrast to common law or civil jurisdiction, by way of arrest of a ship, it had the consequence of obtaining security in lieu thereof for the claimed amount, and to establish its jurisdiction, even if there was no substantive link between the claim and the jurisdiction, other than the presence of the arrested ship within the jurisdiction of the Court---With such peculiar facts and circumstances in mind, as well as the nature of the Admiralty Jurisdiction under the Admiralty Jurisdiction of High Courts Ordinance, 1980, the Court was to decide application for arrest of a vessel or ship.

Spectre Consulting Limited through Attorney v. MT "Everrich" through Master and others PLD 2018 Sindh 136 ref.

Muhammad Noman Jamali for Plaintiff.

Ijaz Ahmed Zahid and Waqar Ahmed for Defendant No.2.

Omair Nisar for Defendant No.4.

Abu Bakar Khalil along with Ms. Nancy Dean for Defendant No.6.

P L D 2019 Sindh 363

Before Salahuddin Panhwar, J

Mst. HINA---Petitioner

Versus

PROVINCE OF SINDH through Secretary Home Department Sindh at Karachi and 4 others---Respondents.

Constitutional Petitions Nos.S-1957 and 2662 of 2018, 87, 105, 258, 277, 331 and 357 of 2019, decided on 7th March, 2019.

(a) Legislation---

----Implementation of law by the Executive---Scope---Moment a law was passed it carried impression of perfection/completion to meet the situation (objective) for which it was---Time or change in situations may open the possibilities of 'amendments' in a law but such plea (of making amendments in the law) could never be an excuse not to give effect to the same.

(b) Domestic Violence (Prevention and Protection) Act (XX of 2013)---

----Ss. 3, 17(2), 27 & Preamble---Despite its promulgation the Provincial Government had failed to implement the Domestic Violence (Prevention and Protection) Act, 2013 ('the Act of 2013')---Directions given by the High Court to ensure implementation of the Act of 2013 recorded.

Following are the directions given by the High Court to ensure implementation of the Domestic Violence (Prevention and Protection) Act, 2013 ('the Act of 2013'):

Since the scope of the Act of 2013 was much wider and prima facie was aimed to ensure immediate rescue and assistance to an aggrieved (as defined in the Act of 2013) therefore, in every single district, committees were required to be formulated. Hence a mechanism of ambulance/rescue service shall be provided with toll-free number accessible to everyone. The manner in which the Act of 2013 itself had insisted about composition of the 'Protection Committee' [section 17(2)] was self-sufficient to indicate that required objective would not be achieved unless special task force was created with special training in that field to deal with women, children and destitute persons. Such aspect shall be considered by the quarter concerned. Special task force shall be provided rescue vehicles having sufficient space with capability to rescue the victims of domestic violence, in every district. Psychologist including Protection Officers and other posts in each district shall be filled within three months, as the same was demand of the Act of 2013. Since the Act of 2013 provided shelter homes in every district, fate of safe houses shall also be decided by the concerned departments as to whether same shall be governed under the Act of 2013 or the government wished to establish parallel shelter home.

To ensure implementation of the Act of 2013, a campaign shall be launched by all departments by taking steps on emergency basis in every district by using social as well electronic and print media by including it in public interest seminars. District Judges shall also be taken onboard in such regard. The campaign must not only make the people aware about the objective of the Act of 2013 but should also make it known to people that the doors of the Courts of Magistrate shall always be open to an aggrieved or an informant for immediate rescue/help, as provided by section 7 of the Act of 2013 and that no formality was needed to approach the concerned police station. Resort to any other available legal remedy shall never be taken as a bar to what the Act of 2013 itself provided to an aggrieved (section 27 of the Act). The Magistrates shall ensure what the objective of the Act of 2013 demanded of them i.e not only wiping the tears of the cheeks of aggrieved but restoring what was snatched or attempted to be snatched from the aggrieved while making them a victim of 'domestic violence'. Provincial Prosecutor General shall ensure that prosecutors were assigned to assist the applicants and Courts accordingly.

Member Inspection Team (MIT) had already been directed to circulate the Act of 2013 to all Magistrates, accordingly report shall be submitted quarterly with regard to cases of domestic violence and action taken thereon.

Office (of the High Court) shall not entertain any petition regarding domestic violence, as the Act of 2013 provided alternative and efficacious remedy of approaching the concerned Magistrate. Member Inspection Team (MIT) shall ensure compliance of section 11 of the Act of 2013 in its letter and spirit. Concerned Magistrates shall receive harassment applications and entertain the same and shall update the same in workflow management web portal.

Police had a very pertinent role regarding harassment cases, thus, all Deputy Inspector Generals of Police in the Province shall start awareness campaigns and refer the cases of harassment to the Magistrates for disposal in accordance with law, till finalization of Committees and rescue force in each district.

Qadir Hussain Khan for Petitioners.

Sajjad Ahmed Chandio and K.B. Lutuf Ali Leghari for Respondent No.7 (in C.P. No.S-1957/2018).

Ghulam Muhammad for Respondent (in C.P. No.S-105/2019).

Mushtaq A. Memon: amicus curiae.

Salman Talibuddin, Advocate-General Sindh, Ch. Khalid Nawaz, Assistant Advocate-General and Ms. Nigar Afaq, State Counsel.

Faheem Hussain Panhwar, Deputy P.G.

Ms. Anjum Iqbal, Addl. Secretary Women Development Department, Ms. Nuzhat Shirin, Chairperson, Sindh Commission on the status of Women, Ms. Fauzia Masood, Deputy Director, Sindh Child Protection Authority, Karachi, Muhammad Khaliq Qureshi, Deputy Director/Focal Person, Sindh Welfare Department, DSP Raza Mian I.G.P. (Legal).

PI Abdul Latif, S.H.O., P.S. Clifton, SIP Muhammad Anwar, PS Artillery Maidan, Karachi, SIP Sujawal Iqbal, PS Sher Shah and PI Raja Afzal.

P L D 2019 Sindh 377

Before Aqeel Ahmed Abbasi and Abdul Maalik Gaddi, JJ

MANSOOR WAHID---Petitioner

Versus

SENIOR MEMBER, BOARD OF REVENUE, SINDH and others---Respondents

Constitutional Petition No.D-4739 of 2016, decided on 8th March, 2019.

Stamp Act (II of 1899)---

----Ss. 2(22-A) [as amended by Sindh Ordinance (XXIV of 2002)] & 73---Constitution of Pakistan, Art.270-AA(2)---Inspection of record---Private individual, status of---Petitioner, doing the business of constructing the bungalows, flats and small type of such projects, was issued notice by revenue authorities for conducting inspection of office record---Petitioner contended that he was a private individual and no notice of inspection could be issued to him---Validity---Held, as per amended provisions of S.2(22-A) of Stamp Act, 1899 in terms of Sindh Ordinance XXIV of 2002 dated 1-8-2002 which Ordinance was protected under Art.270-AA(2) of the Constitution through 18th Amendment to the Constitution, petitioner fell within definition of "public office"---Notice under S.73 of Stamp Act, 1899 did not suffer from any error or illegality---Petition was dismissed in circumstances.

Meezan Bank v. Government of Sindh and others PLD 2016 Sindh 284 rel.

Ali Raza Habb for Petitioner.

Saifullah, Additional Advocate-General, Sindh.

P L D 2019 Sindh 382

Before Muhammad Junaid Ghaffar, J

SYSTEM COMPANY through Authorized Attorney---Plaintiff

Versus

MTU MIDDLE EAST FZE and another---Defendants

C.M.As. Nos.3000, 11263 of 2018 and 17856 of 2017 in Suit No.2685 of 2017, decided on 20th November, 2018.

(a) Contract-

----Relief sought for alleged rights created in respect of agreements/contracts between parties---Scope---Court could not grant any relief which was beyond the agreed terms and conditions as settled by the parties themselves and could not read anything into an agreement between the parties which was by way of mutual consent only.

(b) Contract---

----Principles of contract law---Interpretation/construction of contract---Where contracts were freely entered into by parties, there existed no scope of invoking any doctrine or anything which was not provided for or agreed upon by the parties---Terms of a contract could not be altered, varied or added at the desire and intention of any one of the parties or by invoking the doctrine of fairness and reasonableness and at the very least, it had to be mutually agreed---Mutual rights and obligations were governed by the express terms of the contract.

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

----Ss.202 & 201---Revocation of authority---Termination of agency where agent has an interest in subject-matter---Expiry of period of agreement---Scope---Authority of an agent (partner) went away with the expiry of an Agreement---General rule was that authority of an agent may be revoked by the principal, even if it was agreed by way of their contract to be irrevocable---Such revocation was effective to terminate the agent's authority, but the same gave rise to a claim for damages.

Dickinson v. Lilwall (1815) 4 Camp. 279; Halsbury's Laws of England in Fourth Edn. Vol. I; World Wide Trading Company v. Sanio Trading Company PLD 1986 Kar. 234; Messrs Farooq and Co. v. Federation of Pakistan and 3 others 1996 CLC 2030; Ansys Inc. v. Lim Thuan Khee and Tan Tiat Eng [2001] ECDR 34.87 and Attock Petroleum Limited v. Umer Farooq and others 2017 CLC 860 rel.

Muhammad Areef Effendi v. Egypt Air 1980 SCMR 588; Zubair Ahmed v. Pakistan State Oil Ltd. and another PLD 1987 Kar. 112; Ansys Inc. v. Khee and another 1999 Mr. Justice Parke 19 May); Evans Marshall and C. Ltd. v. Bertola SA and another [1973] 1 All ER 992; Digital World Pakistan (Pvt.) Ltd. through Chief Executive v. Samsung Gulf Electronics FZE and another PLD 2010 Kar. 274; SDI Retail Services Limited v. David King, Paul Murray, The Rangers Football Limited, Rangers Retail Limited [2018] EWHC 1697 (Comm); Molasses Export Co. Ltd. v. Consolidated Sugar Mills Ltd. 1990 CLC 609; Jamil Ahmed v. Provincial Government of West Pakistan and 4 others PLD 1982 Lah. 49; Umar Farooq v. Attock Petroleum Ltd. and 3 others 2015 MLD 1494; Messrs Business Computing International (Pvt.) Ltd. v. IBM World Trade Corporation 1997 CLC 1903; FOSPAK (Pvt.) Ltd. v. FOSROC International Ltd. PLD 2011 Kar. 362; Bank of America v. Miraj Sons Ltd. 1989 CLC 2106 and Syed Ali Asghar Shah v. Pakistan International Airlines Corporation 2016 CLC 189 ref.

(d) Contract---

----Interpretation of contract---Principles---Adjudication of claims/liabilities arising out of contracts---Interpretation by analogy---Scope---Generally, an attempt to enunciate decisions on the construction of agreement as if they embodied rules of law was deprecated---To some extent decisions on one contract may help by way of analogy and illustration in a decision related to another contract; but howsoever similar the contracts may appear, decision as to each must depend on the consideration of the language of the particular contract, read in the light of the material circumstances of the parties in view of which the contract was made.

Haider Waheed, Uzma Farooq and Sufiyan Zaman for Plaintiff.

Umar Akram Choudhry for Defendants.

P L D 2019 Sindh 399

Before Ahmed Ali M. Shaikh, C.J.,and Omer Sial, J

Syed MUHAMMAD IQBAL KAZMI---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Constitutional Petition No.3229 of 2018, decided on 25th April, 2018.

(a) Constitution of Pakistan---

----Arts. 4, 8, 25, 37, 175-A 177(2)(a) & 199---Constitutional petition---Maintainability---Judge of (Sindh) High Court who was fourth on the seniority list was elevated as a Judge of the Supreme Court---Plea of petitioner that elevation of said Judge was against Arts.4, 8, 25 & 37 of the Constitution, and that Art.177(2)(a) of the Constitution was in conflict with Arts.25, 37 & 175-A of the Constitution---Validity---Petitioner conceded that he had not filed the present Constitutional petition for enforcement of any of his Fundamental Rights as enshrined in the Constitution nor same had been infringed in any manner---Besides, petitioner also conceded that the Judge in question who was nominated for appointment as a Judge of the Supreme Court was eligible and fulfilled the requisite conditions as envisaged in the Constitution---Constitutional petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Arts. 175-A(1) & 177(2)(a)---Appointment of a Judge of the High Court as a Judge of the Supreme Court---Such appointment was a fresh appointment and not a promotion.

Petitioner in person.

Nemo for Respondents.

P L D 2019 Sindh 400

Before Muhammad Junaid Ghaffar, J

Messrs AL-NOOR through Partner---Plaintiff

Versus

The PROVINCE OF SINDH through Chief Secretary Sindh and 8 others---Defendants

Suit No.1951 of 2018, decided on 10th January, 2019.

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

----R. 24---Tender---Bid documents, submission of---Proof---Plea of relevant Development Authority ('Authority')/Procuring Agency that though representatives of the plaintiff attended the bidding proceedings but no tenders were submitted on its behalf---Held, that the Authority had itself placed on record photographs of the bidding proceedings which clearly reflected that various boxes of tenders out of the total of (7) seven were kept opened, as according to them there were more tenders than could be accommodated in the boxes---Once it had come on record that majority of tender boxes were kept opened, the onus then shifted on the Authority to disprove the contention of the plaintiff who had filed all tender documents along with Pay Orders of earnest money and therefore, it was difficult to presume at present stage of the proceedings that the plaintiff never participated---If the boxes were kept open, it was, possible that tenders/bids of any participant could be lost or intentionally misplaced---In such a situation it was the responsibility of the Authority to ensure that all participants were allowed to submit their bids properly, and since the boxes were kept open even before opening of the bids, at least an acknowledgment should have been given---Case record also showed that after filing of present suit and issuance of notices, the Authority itself wrote a letter to the Bank from where the plaintiff's Pay Orders were prepared, and the reply placed on record affirmed that Pay Orders were prepared from the account of plaintiff in favour of the Authority---Tenders were received and opened on 17-9-2018 but the evaluation report based on the minutes of meeting and proceedings dated 17-09-2018, was prepared on 3-10-2018---Admittedly the bid boxes were kept open, thus, there was every possibility of misplacing the bids / tenders of the plaintiff and others, whether mistakenly or even intentionally---For present purposes, it could be safely said that the plaintiff did participate in the proceedings and filed and submitted its bids and the Authority had not been able to discharge its burden to such effect.

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

----Rr. 31 & 32---Specific Relief Act (I of 1877), Ss. 39, 42 & 54---Tender---Dispute over bids---Suit for declaration, injunction and cancellation of documents filed by unsuccessful bidder/plaintiff---Alternate remedy in form of Grievance Redressal Committee not availed---Plea of relevant Development Authority ('Authority')/ Procuring Agency that the plaintiff (bidder) should have approached the Grievance Redressal Committee provided under R. 31 & 32 of the Sindh Public Procurement Rules, 2010 ('the Rules') instead of filing present suit---Held, that time and again the Authority was confronted as to when and in what manner, the Grievance Redressal Committee was constituted, who were its members and how it was notified; but despite assurance on several dates, Court was never apprised regarding such formation of Committee---No material had been placed on record as to whether any such Committee was ever constituted---Even otherwise, the plaintiff could not be non-suited on the ground that an alternate remedy was available---Courts were duty bound to ensure that relevant laws were adhered to strictly, to exhibit transparency---Transaction involving public money must be made in a transparent manner for the satisfaction of the people who were the virtual owners of the national exchequer which was being invested in such projects---Plaintiff could not be non-suited on the ground of not availing alternate remedy.

Asaf Fasihuddin v. Government of Pakistan 2014 SCMR 676; GETZ Pharma (Pvt.) Limited v. Province of Sindh PLD 2016 Sindh 479 and Collector of Customs v. Qasim Iron Merchant 2011 PTD 2853 ref.

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

----S. 27---Tender---Bid amounts quoted in paisas considered by the Procuring Agency---Mala fides, favoritism and lack of transparency---Re-advertisement of tenders---Guidelines/Regulation for Procurement of Works was amended and the amended Regulation provided that in case a procuring agency received a bid, which was more than 30% below the Engineer's Estimate or Composite Schedule Rates (CSR), the procuring agency could reject that particular bid(s) or float tenders afresh, if deemed appropriate---Relevant Development Authority ('Authority') explained the amended Regulation further by stating that in all works various bidders filed their bids and only such bidders were considered who met the threshold of 30%, and thereafter, the lowest of these bidders in numerical value of 30% below were short listed and the first lowest was awarded the tender(s)---Table of bidders who met the below 30% criteria showed that in fact the first two out of four bids were of the same amount except in paisas---First and second bid had a difference of only 44 paisas, whereas, the third had a difference of 94 paisas from the successful first lowest bidder, and the last and the fourth had a difference of Rs.897.80 from the first lowest bid---Authority had considered 9 digits after decimal while calculating the percentage---Presently according to the State Bank of Pakistan, the minimum currency denomination in the country was 1(one) Rupee, whereas paisa was not practically in circulation and was always deemed to be either rounded up or rounded down---In such circumstances it was beyond comprehension as to how a bid was quoted in paisas and so also accepted by the Authority---Secondly, it was a mathematical rule that anything which was over and above 0.5 was to be rounded up and anything below 0.5 was to be rounded down---In the present case, calculations had been taken up to 9 (nine) digits after decimal, so as to make the bid not to be more than 30% of the Engineer's Estimate, whereas, in reality, the first four lowest bids were all to be treated as 30% and not 29.99999999%---Majority of bidders gave their bids which were extremely near to the Engineer's Estimate, which appeared to be a well-planned and organized attempt to oust genuine bidders and give the blue-eyed a clear and open field to play with the mechanism of 30% and the Engineer's Estimate---Procurement Agency i.e. the Authority fell in error in calculating the first lowest bid and awarding the tender on the basis of considering 8 or 9 digits after the decimal so as to make it below 30%, whereas, in reality it was supposed to be equal to 30%---Such conduct on the part of the Authority/Procurement Agency did not reflect any fairness or transparency and the entire process was tainted with mala fide and favoritism and appeared to be an attempt against the public interest---Since there were more than one bidders whose bids fell within 30% or up to 30%, the only way out was to cancel all tenders and call it afresh as provided in the amended Regulation---High Court directed that the award of (seven) Tenders covered by the present suit was hereby set-aside; that the Authority/Procurement Agency shall re-advertise the tender and while doing so, it shall clearly notify in the advertisement a proper procedure for receiving of Tenders and issuance of proper and due acknowledgment; that the Engineer's Estimate in respect of all (seven) Tenders should be made afresh so as to bring the said Estimate nearer to realistic values instead of the existing exaggerated estimate, and that while invoking (if at all needed) the amended Regulations for Procurement of Works, only such bids shall be considered which were nearest to the rupee, and any bid quoted in paisas shall not be considered.

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

----Preamble---Tenders---Public functionary/Procuring Agency, duties of---Scope---Every state functionary, while dealing with public money was required to show ultimate fidelity and was burdened with an extraordinary obligation to maintain fairness, equity, and impartiality---Conduct of functionary must be without ailment of bias and doubt---Discretion of public functionaries in awarding tenders and spending of public money always required a vigilant and vibrant scrutiny by the Courts---Public authority could not mess up with public funds as it was not permitted to give largess in its arbitrary discretion or at its sweet will or on such terms as it choose in its absolute discretion---Award of tenders by a Governmental agency always had a public interest, and therefore, it ought to have fairness and equality in its conduct---When it awarded a tender, it (i.e. Government Agency) must do so with fairness and without discrimination and favour, and must also follow the procedure as far transparent as possible.

Kasturi Lal Lakshmi Reddy v. The State of Jammu and Kashmir and another AIR 1980 SC 1992 ref.

Dr. Shah Nawaz Memon for Plaintiff.

Suneel Kumar Talreja, A.A.G. for Defendant No.1.

Ms. Naheed A. Shahid for Defendants Nos. 2 and 3.

Syed Fazal-ur-Rehman for Defendant No.5.

Syed Sultan Ahmed for Defendant No.8.

Qamar Zaman Shah, Assistant Director, SPPRA.

P L D 2019 Sindh 418

Before Muhammad Ali Mazhar, Salahuddin Panhwar and Zulfiqar Ahmad Khan, JJ

ABDUL SATTAR DERO and others---Appellants

Versus

THE STATE---Respondent

Criminal Accountability Appeal No.33 and Criminal Revision Applications Nos. 95 to 105 of 2001, decided on 24th December, 2018.

Per Muhammad Ali Mazhar, J, Salahuddin Panhwar, J agreeing [Majority view]

(a) Appeal---

----Right of---Powers of appellate court---Scope---Right of appeal is a right of entering into a superior court and invoking its aid and interposition to redress error of court below---Appeal is essentially continuation of original proceedings as a vested right of litigant to avail remedy of an appeal provided for appraisal and testing soundness of a decision and proceedings of court below---Right of appeal is not a mere matter of procedure but it is a substantive right---While considering matters in appeal, appellate court may affirm, modify, reverse or vacate decision of lower court---While deciding appeal, court/judge who heard and decided matter must have full comprehension and command as to what was argued; what was debated upon at time of hearing of matter; and what was understanding of judge or judges while adverting and attending to pleas raised by appellant and defence counsel---Assumption was that evidence led in Trial Court has also been appreciated pertinently by appellate court before passing judgment. [Majority view].

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

----S. 369---Appellate jurisdiction---Acquittal by short order---Rehearing---Scope---Accused persons were acquitted of charge by short order passed by Division Bench of High Court---Subsequently, both judges had dissenting findings therefore, Full Bench was constituted to resolve the situation---Validity---Short order signed by both judges could not be altered or reviewed except to make some correction of clerical error and such was not the position---Judiciousness and prudence coming behind restraint embodied under S.369 Cr.P.C. was with sole prominence to preserve and uphold evenness and steadiness so that criminal justice system could continue decorously to its right pathway---If on any ground review of a final judgment was permitted it might envision severe disarray and turmoil which would erode public confidence---Neither any case of rehearing was made out nor Full Bench was court of appeal which could set aside short order or remand matter back---Referee judge in peculiar circumstances declared that short order of acquittal passed by both members of Division Bench of High Court in appeal in question with consonance and unanimity was still valid---Referee judge further declared reasons contributed by dissenting judge could not nullify, alter or convert outcome of short order of acquittal of accused into dismissal of appeal through separate reasons whereas, appeal had already been allowed without any note of dissent by dissenting judge---Order of acquittal was maintained in circumstances.

D.G. A.N.F. Rawalpindi and others v. Munawar Hussain Manj and others 2014 SCMR 1334; Office Reference dated 28.04.1981, answered on 24th May, 1981 PLD 1982 Kar. 250; The State v. Asif Adil and others 1997 SCMR 209; Basar v. Zulfiqar Ali and others 2010 SCMR 1972; District Bar Association v. Federation of Pakistan PLD 2015 SC 401; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61; Ghulam Hussain v. The State PLD 1981 Kar. 711; The State v. Asif Adil and others 1997 SCMR 209; Iqbal Pervaiz v. Harsan and others 2018 SCMR 359; Dr. Imran Khattak and others v. Ms. Sofia Waqar Khattak 2014 SCMR 122; Ch. Muhammad Akram v. Registrar, Islamabad High Court and others PLD 2016 SC 1961; Nazir Ahmed v. Capital City Police Officer, Lahore 2011 SCMR 484; Justice (Retired) Abdul Ghani Sheikh and others's case PLD 2013 SC 1024; Tahir Jawed @ Tara v. The State 2017 SCMR 1946; 2017 P.Cr.LJ 706; Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522; State v. Daniyal alias Dani PLD 2015 SC 322; Wafi Associates (Pvt) Ltd. v. Farooq Hamid 2010 SCMR 1125 and L and B (Children) 2013 SCMR 842 ref.

Per Zulfiqar Ahmed Khan, J: [Minority View].

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

----S. 369---Appellate jurisdiction---Acquittal by short order---Rehearing---Scope---Accused persons were acquitted of charge by short order passed by Division Bench of High Court---Subsequently, both judges had dissenting findings therefore, Full Bench was constituted to resolve the situation---Validity---If earlier short order was to be final judgment of court, then one could not find any detailed consenting judgment of court vis-à-vis acquittal of appellant and release of connected properties---If subsequent detailed judgments penned down by both judges were seen, they posed dissenting views requiring intervention of umpire judge---Larger Bench was constituted by Chief Justice for such specific reason---Action mandated by order of Chief Justice was to have matter reheard but judgment rendered by referee judge was not delivered after rehearing, rather, same attempted to answer technical question of departure from short order and same was neither intent nor purpose of constitution of larger Bench---Basic and potent question was whether a clear, unambiguous and conclusive answer had been given to accused that he was acquitted of charges and connected properties had been given a clean chit--- Answer to such question was "no" and until and unless such answer was given in a crystal clear and spot-on manner, courts could not be absolved of its responsibility---Appeal was to be reheard in circumstances [Minority view].

The State v. Asif Adil and others 1997 SCMR 209; Basar v. Zulfiqar Ali and others 2010 SCMR 1972; District Bar Association v. Federation of Pakistan PLD 2015 SC 401; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61; Ghulam Hussain v. The State PLD 1981 Kar. 711; Office Reference dated 28-4-1981, answered on 24th May; 1981 PLD 1982 Kar. 250; Iqbal Pervaiz v. Harsan and others 2018 SCMR 359; Nazir Ahmed v. Capital City Police Officer, Lahore 2011 SCMR 484 and Justice (Retired) Abdul Ghani Sheikh and others PLD 2013 SC 1024 distinguished.

Tahir Jawed @ Tara v. The State 2017 SCMR 1946 and PLD 2000 SC 179 rel.

Shahab Sarki, Mushtaque H. Qazi, Ali Asghar Bariro, Merajuddin, Khurram Nizam, Mobeen Lakho, Zulfiqar Ali Langha and Ahmed Raza Shah, for Appellants.

Appellant is also present.

Abid S. Zuberi, Yasir Morai, Shakeel Rabbani and Ms. Shahreen for Applicants in Cr. Revision Applications Nos. 95 to 105 of 2001.

Munsif Jan, Special Prosecutor, NAB for the State.

P L D 2019 Sindh 456

Before Muhammad Ali Mazhar and Adnan Iqbal Chaudhry, JJ

SHABANA NOOR AHMED---Petitioner

Versus

DIRECTOR-GENERAL IMMIGRATION AND PASSPORT, ISLAMABAD and others---Respondents

Constitutional Petition No.D-4506 of 2018, decided on 12th October, 2018.

Emigration Ordinance (XVIII of 1979)---

----S. 22(b)---Passports Act (XX of 1974), S. 8 (2) & (3)---Passport and Visa Manual 2006, Cls. 21(b) & 51(B)(ii)---Constitution of Pakistan, Arts. 4 & 15---Impounding of passport---Blacklisting of citizen---Principle---Petitioner assailed impounding of passport of her son by Consulate General of Pakistan in UAE due to his involvement in a criminal case in Pakistan---Validity---Son of petitioner could not be blacklisted by Federal Investigation Agency on the basis of Cl.51(B)(ii) and Cl.21 (b) of Passport and Visa Manual, 2006---Alleged offence under S.22(b) of Emigration Ordinance, 1979, was not a subversive activity of the nature specified in S.8(3) of Passports Act, 1974, so as to dispense with show cause notice required by S.8(2) of Passports Act, 1974, before impounding a passport and opportunity of explanation could not be denied before refusing to issue passport---Blacklisting under Cl.51(B) read with Cl.21(b) of Passport and Visa Manual 2006, at the best could be invoked to check an exit from Pakistan and not an entry into Pakistan---Act of authorities in denying to son of petitioner his renewed passport was violative of Arts. 4 & 15 of the Constitution and was contrary to S.8 of Passports Act, 1974---High Court directed the authorities to release to son of petitioner his renewed passport at the Consulate General of Pakistan at UAE---Constitutional petition was allowed in circumstances.

Government of Pakistan v. Dada Amir Haider Khan PLD 1987 SC 504; Federal Government of Pakistan v. Government of Punjab PLD 1991 SC 505 and Syed Sami Ullah Al-Quadri v. Federation of Pakistan 2009 CLC 1314 ref.

Federal Government v. Ayyan Ali 2017 SCMR 1179; Gen. (Retd.) Pervez Musharraf v. Pakistan PLD 2014 Sindh 89; Federation of Pakistan v. General (Retd.) Pervez Musharraf PLD 2016 SC 570; Ayyan Ali v. Government of Pakistan 2017 PCr.LJ 920; Mian Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583 and Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642 rel.

Irfan Ali for Petitioner.

Muhammad Zahid Khan, Assistant Attorney-General for Pakistan along with S.I. Ibrahim Khan, I.O. FIA AHT Circle, Karachi for Respondents.

P L D 2019 Sindh 467

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Mrs. HUMERA IMRAN through Attorney---Petitioner

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF DEFENCE AND PRODUCTION through Secretary and 3 others---Respondents

Constitutional Petition No.D-20 of 2017, decided on 12th February, 2019.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition before the High Court---Maintainability---Antecedents of petitioner, significance of---High Court had the inherent jurisdiction to assess whether a breach of trust or a violation of public law had taken place and if so then it was incumbent upon the High Court to rectify the breach---Identity or antecedents of the petitioner in such matters paled into insignificance.

Popular International (Pvt.) Ltd. v. Province of Sindh PLD 2016 Sindh 19 and Salahuddin Dharaj v. Province of Sindh PLD 2013 Sindh 236 ref.

(b) Public Procurement Rules, 2004---

----R. 3---Constitution of Pakistan, Art. 199---Public procurement---Constitutional petition challenging award of contract to a company for arranging the International Defense Exhibition And Seminar ("IDEAS 2020")---Maintainability---Present petition raised a very serious issue as wrongdoing had been attributed in respect of the award of an international exhibition hosted by the country, and notwithstanding the ultimate decision arrived at, the present petition could not be deemed to be frivolous---Court was duty bound to determine whether there was any infirmity in award of the contract---Award of a contract by a public functionary that lacked transparency could be scrutinized in a Constitutional petition---Award of public sector contract without a transparent competitive bidding process was also considered to be within the domain of judicial review---Present Constitutional petition was maintainable and warranted determination upon the merits thereof.

Adam Sugar Mills Limited v. Federation of Pakistan and others 2012 CLD 1734 and Habibullah Energy and another v. WAPDA and others PLD 2014 SC 47 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition before the High Court---Maintainability---Reasonableness in decision making---High Court could see whether there was any infirmity in the decision making process and whether the decision maker correctly applied the law---Test to apply in such cases was to consider whether the impugned action satisfied the test of reasonableness---Question whether the impugned action was arbitrary or not was to be ultimately answered on the facts and circumstances of the said case.

Messrs Mia Corporation (Private) Limited v. Pakistan PWD and others PLD 2017 Isl. 29 ref.

(d) Public Procurement Regulatory Authority Ordinance (XXII of 2002) ---

----Ss. 2(j), 2(l), 2(o) & 2(k)---Public Procurement Rules, 2004, R. 3---Constitution of Pakistan, Art. 78(2)(a)---Public procurement---Use of public funds through Government subsidies---Defence Export Promotion Organization (DEPO) awarding contract to an event managing company for arranging the International Defense Exhibition and Seminar ("IDEAS 2020")---Question as to whether the Public Procurement Regulatory Authority Ordinance, 2002 ('the Ordinance') and the Public Procurement Rules, 2004 ('the Rules') were applicable to the said contract---Held, that admittedly Defence Export Promotion Organization (DEPO) was a constituent of the Ministry of Defence, Government of Pakistan---'DEPO' was an entity established by the Federal Government to inter alia coordinate the export of high quality defense products and services---'DEPO' was a procuring agency within meaning of the Ordinance---Since the contract was in fact a contract for services it must be considered whether public funds were involved to place the contracts within the definition of public procurement---Accumulation of all the receipts in respect of IDEAS into a dedicated account qualified the same within the definition of Art.78 of the Constitution---Receipts in respect of IDEAS squarely fell within the phrase "received on behalf of the Federal Government", as used in Art.78(2)(a) of the Constitution---IDEAS events for period under consideration were also the beneficiary of Federal Government subsidies---Ministry of Finance gave subsidy to IDEAS in order to promote the local defense industry and while foreign exhibitors paid the full retail price for space at IDEAS, the domestic exhibitors paid only half the said amount---Remaining half was paid by the Ministry of Finance as a subsidy---Since the definition of public procurement included acquisition of services financed wholly or partly out of the public fund, thus, any interplay of a subsidy would further strengthen the contention that public funds were employed in IDEAS---Rule 3 of the Public Procurement Rules, 2004 ('the Rules') provided that said Rules applied to all procurements made by all procuring agencies of the Federal Government---Provisions of the Ordinance and the Rules were, therefore, applicable to the process and award of the contract under consideration---Process culminating in the award of the contract under consideration, by 'DEPO' to the event managing company, without recourse to a competitive bidding process as envisaged under the law, was prima facie repugnant to the provisions of the Rules---Contract in question was set-aside with the direction that the Federal Government and 'DEPO' may initiate a de novo tendering process for "IDEAS 2020" event and/or any such future events in due conformity with the Ordinance and the Rules --- Constitutional petition was disposed of.

(e) Public Procurement Regulatory Authority Ordinance (XXII of 2002)---

----S. 2(l)---Public procurement---Government subsidies---Definition of "public procurement" included "acquisition of services financed wholly or partly out of the public fund", thus, any interplay of a Government subsidy in a contract would strengthen the argument that public funds were employed in award of such contract, and therefore, it was a public procurement.

(f) Public Procurement Rules, 2004---

----R.14(a)---Public Procurement Regulatory Authority Ordinance (XXII of 2002), Preamble---Public procurement---Exception of national security provided under R.14(a) of the Public Procurement Rules, 2004---Scope---Defence Export Promotion Organization (DEPO) awarding contract to an event managing company for arranging the International Defense Exhibition And Seminar ("IDEAS 2020")---Question as to whether said contract was exempted from the operation of the Public Procurement Regulatory Authority Ordinance, 2002 ('the Ordinance') and the Public Procurement Rules, 2004 ('the Rules') by virtue of the national security exception contained in R.14(a)---Held, that IDEAS events were exhibitions, of defense apparatus, open to the general public---Purveyors of martial-ware, international and domestic, displayed their merchandise at designated retail spaces frequented by all manner of people, and the said exhibits were also featured prominently in the print and electronic media---Contract, in question, did not pertain to the martial merchandise on display but instead to the particulars of the event, the retail space at which the merchandise were to be exhibited, and the rights and obligations in respect thereof, which facts were also clearly mentioned in the advertisements for expressions of interest relating to IDEAS placed in newspapers---Furthermore a bare perusal of R.14(a) of the Rules demonstrated that it contained no blanket exemption from the operation of the Ordinance and/or the Rules---Rule 14 commenced with a declaration that it was mandatory to advertise all procurement requirements exceeding a specific amount, where after an exception had been created under R.14(a) permitting a deviation---While the deviation did not permit immunity from the Ordinance and/or the Rules, it merely operated to displace the requirement of an advertisement, subject to prior approval of the authority---In the present case, no approval of the authority was obtained to seek the benefit of R.14(a)---Contract under consideration was not exempted from the operation of the Ordinance and the Rules by virtue of the national security exception contained in R.14(a)---Process and award of said contract amounted to mis-procurement---Contract in question was set-aside with the direction that the Federal Government and 'DEPO' may initiate a de novo tendering process for "IDEAS 2020" event and/or any such future events in due conformity with the Ordinance and the Rules---Constitutional petition was disposed of.

Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651 ref.

(g) Public Procurement Rules, 2004---

----R. 3---Public procurement---Process of public procurement once started under the Public Procurement Rules, 2004, could not be stopped or wound up under any circumstances to extend an undue favour.

(h) Public Procurement Rules, 2004---

----R.42---Public procurement---Alternative methods of procurements---Scope---Alternate methods for procurement provided under R. 42 of the Public Procurement Rules, 2004, could not be employed to thwart the transparent exercise of powers of public functionaries in awarding contracts of valuable rights.

Messrs Malik Mushtaq Goods Transport Co. Lahore v. Federation of Pakistan and others PLD 2010 Lah. 289 ref.

(i) Public Procurement Rules, 2004---

----R. 3---Public Procurement Regulatory Authority Ordinance (XXII of 2002), Preamble---Constitution of Pakistan, Art.199---Public procurement---Judicial review---Scope---In matters where Government bodies exercised their contractual powers, the principles of judicial review could not be denied---In such matters the exercise of such powers was intended to prevent arbitrariness or favoritism, with a view to ensure that the public interest was the paramount consideration---Basic test in such regard was to see whether there was any infirmity in the decision making process and interference in such a process was warranted where it appeared to be predicated upon arbitrariness, illegality, irrationality, procedural impropriety and/or actuated by mala fides---Right to choose, in the context of awarding contracts, could not be considered to be an arbitrary power but, if the said power was exercised for any collateral purpose then such an exercise merited being struck down.

Suo Motu Case No.13 of 2009 PLD 2011 SC 619 and Asif Fasihuddin Vardag v. Government of Pakistan and others 2014 SCMR 676 ref.

Raza Rabbani, Zeeshan Abdullah and Adnan Abdullah for Petitioner.

Liaquat Hussain Sheikh, Deputy Attorney General for Respondents Nos.1 and 2.

Mir M.A.Talpur and Umer Pehchuho for Respondent No.3.

P L D 2019 Sindh 490

Before Adnan Iqbal Chaudhry, J

MUHAMMAD IQBAL In the matter of the estate of Noor Muhammad Chutani---Deceased

S.M.A. No.141 of 2016, decided on 24th September, 2018.

Succession Act (XXXIX of 1925)---

----Ss. 259, 263, 278 & 372---Civil Procedure Code (V of 1908), O.XXII, R.3---Letter of administration---Revocation/annulment---Just cause---Determination---Legal heir, impleading of---Letter of administration regarding suit property was issued in favour of applicant and after his death, applicant sought permission for her to be impleaded as petitioner and issuance of letter of administration in her favour---Validity---Death of father of applicant was just cause to annul letters of administration granted to deceased under S.263(d) of Succession Act, 1925 as such grant had become useless and inoperative---Right to defend such letters of administration did not survive to his legal heirs---Letter of administration and bond executed by grantee pursuant thereto was personal to grantee and did not survive his death---Application was disposed of accordingly.

Babar Sattar for Applicant.

Haseeb Jamali and Ms. Sana Q. Valika for Objectors.

P L D 2019 Sindh 496

Before Fahim Ahmed Siddiqui, J

AIJAZ ALI and 2 others---Applicants

Versus

MUHAMMAD HASHIM and 3 others---Respondents

Criminal Revision Application No.S-18 of 2018, decided on 23th November, 2018.

Criminal Procedure Code (V of 1898)---

----Ss. 248 & 439---Illegal Dispossession Act (XI of 2005), Ss. 3 & 9---General Clauses Act (X of 1897), S. 21---Restoration of complaint---Locus poenitentiae, principle of---Applicability---Accused was aggrieved of restoration of complaint by Trial Court, which was earlier dismissed as withdrawn by the complainant---Validity---Phrase 'sufficient grounds' was a directive provision and purpose of the same was to seek satisfaction that application of such withdrawal was made without any duress and coercion---Application for withdrawal was moved by complainant duly signed by himself as well as his advocate---Record did not show that previous advocate had given an ill-advice to the complainant---By applying S.21 of General Clauses Act, 1897, only the executive and legislative authorities were entitled to vary, amend, add or rescind an order earlier passed by them while a final judicial order could only be amended by specific provision provided under law or by invoking the hierarchy of appellate jurisdiction---High Court in exercise of revisional jurisdiction set aside the order passed by Trial Court---Revision was allowed in circumstances.

Muhammad Arshad S. Pathan for Applicants.

Irfan Ahmed Qureshi for Respondent No.1.

Miss. Sana Memon, Assistant Prosecutor General Sindh for Respondents Nos. 2 to 4.

P L D 2019 Sindh 500

Before Irfan Saadat Khan and Adnan-ul-Karim Memon, JJ

SALMAN AZIZ---Petitioner

Versus

FEDERAL URDU UNIVERSITY and others---Respondents

Constitutional Petition No. D-557 of 2017, decided on 16th April, 2018.

Educational institution---

----Admission, cancellation of---Right of education---Petitioner was a law student at the University and his admission was cancelled on grounds of late submission of fee for enrollment---Plea raised by petitioner was that he was condemned unheard---Validity---Inquiry report was prima facie an ex-parte fact finding report as petitioner was not allowed to participate to rebut allegation---Petitioner denied contents of report and submitted in his affidavit in rejoinder that no intimation was given to him to rebut allegations levelled against him---No sanctity could be attached to such inquiry report and same could not be used against petitioner---No fruitful result would be achieved by the University by cancellation of admission of petitioner at such stage when he had finally appeared in BL-III examination and department had cured all previous defects by allowing petitioner to sit in respective examination---Admission of a candidate could not be cancelled for reason that he deposited enrollment fee late---Petitioner could not be punished after more than two and a half years on grounds of alleged illegal admission---Education was a Fundamental Right of citizens including petitioner and no one could be deprived of such right---High Court directed competent authority of University to announce result of petitioner to complete his BL course to acquire degree of LLB in accordance with law---Constitutional petition was allowed in circumstances. [pp. 504, 505] A & B

Chairman Selection Committee/Principal, King Edward Medical College Lahore and 2 others v. Wasif Zamir Ahmed and another 1997 SCMR 15; Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmed Khan and another 2012 SCMR 6; University of Karachi and others v. Tariq Hussain and another 2012 SCMR 1964; Chairman Joint Admission Committee, Khyber Medical College Peshawar and others v. Raza Hassan and others 1999 SCMR 965; Murtaza and others v. Sir Syed University of Engineering and Technology and 4 others 2016 MLD 1199 and 2014 SCMR 396 ref.

Waqar Ahmed for Petitioner.

Shakeel Ahmed Khan for Respondent No.1.

Shaikh Liaquat Hussain, Assistant Attorney General.

P L D 2019 Sindh 506

Before Nadeem Akhtar and Muhammad Faisal Kamal Alam, JJ

Dr. MOINUDDIN SHAIKH---Petitioner

Versus

FEDERATION OF PAKISTAN through Federal Secretary, Water and Power, Islamabad and 10 others---Respondents

Constitutional Petition No.D-1407 of 2013, decided on 23rd October, 2018.

Constitution of Pakistan---

----Art.199---Constitutional petition---Writ of mandamus, issuance of---Operationalizing power station---Electricity shortfall---Violation of Fundamental Rights---Petitioner was aggrieved of closure of Thermal Power Station causing electricity shortfall and sought directions to respondent authorities for operationalizing said power station---Authorities contended that power station was closed as it had lived its useful life and that load shedding was being done due to electricity theft in the area---Validity---Authorities were duty bound to put into place a system through which it was ensured that a consumer who was paying his electricity bills regularly, should not be made to suffer because other persons of same locality were guilty of stealing electricity---High Court directed the authorities to award exemplary punishments to their employees who were abetting and aiding wrongdoers---High Court observed that authorities would introduce a mechanism or scheme in which genuine consumer and defaulter could be easily distinguished and former was not punished due to acts of latter---Restoration of Thermal Power Station in question was neither feasible nor economically viable---Undisputed documents placed on record also suggested that concerned quarters after proper discussion had taken a decision to close Thermal Power Station in question---High Court declined to interfere in decision for not restarting Thermal Power Station in question as Executive decision taken by authorities did not suffer from any illegality, discriminatory treatment or unreasonableness---Constitutional petition was disposed of accordingly.

Alleged corruption in rental power plants etc. (2012 SCMR 773) and Human Right Case No.14392 of 2013 (2014 SCMR 2020) ref.

Petitioner in person.

Rizwan Faiz Muhammad for Respondent No.2.

Ghulam Shabbir Shar for Respondents Nos. 3 and 4.

Muhammad Aslam Jatoi, Assistant Attorney General and Ali Mutahir Shar, State Counsel for Official Respondents.

P L D 2019 Sindh 516

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Dr. SEEMA IRFAN and others---Petitioners.

Versus

FEDERATION OF PAKISTAN and others---Respondents

C.Ps. Nos.D-5956 to D-5964 of 2018, decided on 31st May, 2019.

(a) Constitution of Pakistan---

----Arts. 199 & 10A---Income Tax Ordinance (XLIX of 2001), S.122---Constitutional jurisdiction of High Court---Scope---Show-cause notice issued by Department---Nature---Fundamental Right to fair trial and due process of law---Scope---Factual controversies or factual disputes raised in show-cause notice could not be decided in Constitutional jurisdiction but the same were dominion of a competent authority to decide the fate of a show cause notice after providing ample opportunity of hearing with right to fair trial and then pass orders in accordance with law---In matters of show-cause notice, High Court under Art.199 of the Constitution could not assume a supervisory role in every situation to pass an interim order with directions to an Authority to proceed but to not pass final order till decision of a Constitutional petition or to suspend the operation of show-cause notice for an unlimited period of time or to keep the matters pending for an indefinite period---Challenge to a show-cause notice under Art.199 of the Constitution must be sparing and cautious and High Court under its Constitutional jurisdiction may take up writs to challenge show-cause notice(s) if it found such show-cause notice to lack of jurisdiction, be barred by law or if the same were abuse of process of the court or coram non judice and in such situation, High Court may quash such show-cause notice(s).

Allied Engineering v. Commissioner of Income Tax 2015 PTD 2562; Messrs Kurdistan v. Commissioner Income Tax 2014 PTD 339; Commissioner of Income Tax v. Messrs Riverside Chemicals Pvt. Ltd. PLD 2008 SC 446; Commissioner of Income Tax v. Shahanawaz Ltd. 1993 SCMR 73; Commissioner of Income Tax Karachi v. Messrs B.R.R. Investment (Pvt.) Ltd., Karachi 2011 PTD 2148; Messrs Allied Engineering Services Ltd. v. Commissioner of Income Tax 2015 PTD 2562 and Commissioner of Income Tax v. Messrs Eli Lily Pakistan (Pvt.) Ltd. 2009 SCMR 1279 ref.

Messrs Ocean Pakistan Ltd. v. Federal Board of Revenue, Islamabad 2012 PTD 1374; Khalid Mahmood Ch. v. Government of the Punjab 2002 SCMR 805; Karachi Buk Storage and Terminals (Pvt) Ltd. v. Collector of Central Excise and Land Customs 2001 PTD 2103; Union of India (UOI) and others v. Vicco Laboratories (Equivalent Citation 2008 (3) ALLMR (SC) 453, 2008(2) CTC 511, 2007 (123) ECC 278, 2007 (149) ECR 278 (SC), 2007 (218 ELT 647 (SC), 2008 4 MLJ 1272 (SC), (2007 13 SCC 270, [2007] 1 SCR 534; SBQ Steels Limited v. The Commissioner of Customs Central Excise and Service Tax, Guntur Commissionerate. (Equivalent Citation: 2013(2) ALD 158, 2014 (300) ELT 185 (A.P); State of Uttar Pradesh v. Brahma Datt Sharma (Equivalent Citation" AIR 1987 SC 943, 1987 AWC 760 SC, [1987 (54) FLR 524], JT 1987 (1) SC 571, 1987 Lab IC 689, 1987 (1) SC ALE 457, [1987) 2 SCC 179, [1987] 2 SCR 444, 1987(2) UJ 55; The Special Director and others v. Muhammad Ghulam Ghouse and others (Equivalent Citation: 2004(2) ACR 1844 (SC), AIR 2004 SC 1467, 2004 (55) ALR 95, 2004 (106 (2) BOMLR 569, (2004) 3 CALLT 8 (SC), [2004] 120 Comp. Cas 467 (SC), 2004 (91) ECC 299, 2004 (112) ECR 501 (SC), 2004 (164) ELT 141 (SC), JT 2004 (1) SC 206, 2004 (2) PLJR 237, 2004 (1) SCALE 330, (2004) 3 SCC 440, [2004] 50 SCL 93 (SC), [2004] 2 SCR 399, 2004(1) SCT 671 (SC), 2004(1) UJ 744; Union of India and others v. Kunistty Satyanarayana (Equivalent Citation: AIR 2007 SC 906, [2007 (112) FLR 325], 2007(1) PLJR 121, 2006 (12) SCALE 262, (2006) 12 SCC 28, (2007) 2 SCC (LS) 304, [2006] Supp. (10) SCR 257, 2007(1) SCT 452 (SC), 2007(3) SLJ 338 (SC) and Messrs Kirloskar Computer Service Limited, Bangalore v. Union of India and others (Equivalent Citation: 1997 (73) ECR 651 (Karnataka), 1998 (98) ELT. 355 (Kar.) rel.

(b) Jurisdiction---

----Lack of jurisdiction and abuse of process of law---Concept and scope---Lack of jurisdiction meant lack of power or authority to act in a particular manner or to give a particular kind of relief and it referred to a court's total lack of power or authority to entertain a case or to take cognizance---Lack of jurisdiction may arise from failure to comply with conditions essential for exercise of jurisdiction or in a matter that fell outside the territorial limits of a court---Abuse of process was the intentional use of legal process for an improper purpose incompatible with the lawful function of the process by one with an ulterior motive in doing so, and with resulting damages---Abuse of process may be defined as misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process and was a tort comprised of two elements, which were an ulterior purpose and a wilful act in the use of process not proper in the regular conduct of the proceeding---Abuse of process was the malicious misuse or misapplication of process in order to accomplish an ulterior purpose.

DeNardo v. Maassen, 200 P. 3d 305; McCornell v. City of Jackson, 489-F Supp. 2d 605; Montemayor v. Ortiz, 208 SW 3d 627; Reis v. Walker, 491 F. 3d 868 and Sipsas v. Vaz, 50 AD 3d 878 rel.

(c) Words and phrases---

----"Coram non judice"---Meaning, scope and illustration---Coram non judice was a Latin word meant for "not before a judge," and was a legal term typically used to indicate a legal proceeding that was outside the presence of a judge or with improper venue or without jurisdiction---Any indictment or sentence passed by a court which had no authority to try an accused for such offence was clearly in violation of the law and would be coram non judice and a nullity---When a lawsuit was brought and determined in a court which had no jurisdiction in a matter, then the same was said to be coram non judice, and such judgment was void.

Manufacturing Co. v. Holt 51 W. Va. 352, 41 S.E.351 rel.

(d) Constitution of Pakistan---

----Arts.10A & 199---Fundamental Right to fair trial---Show-cause notice---Obligation upon Public Authorities to provide right to fair trial to any person after issuing them a show-cause notice---Exercise of Constitutional jurisdiction of High Court---Scope---When a show cause notice was issued then a fair chance to contest the same must also be provided---Constitutional reassurance of right to fair trial was envisaged and envisioned both in procedural standards that courts must uphold in order to protect peoples' personal liberty and a range of liberty interests that statutes and regulations must not infringe---Courts ought to analyze and survey laws and rules/regulations framed thereunder to determine whether said indispensable right to fair trial was accessible or not---In case of stringency and rigidity in affording said right, it was the function of a Court to protect said right so that no injustice and unfairness should be done to anybody.

Ovais Ali Shah and Aamir Khosa for Petitioners.

Kafeel Ahmed Abbasi for Respondents (FBR).

P L D 2019 Sindh 533

Before Muhammad Junaid Ghaffar, J

SELAT MARINE SERVICES CO. LLC through Authorized Attorney---Plaintiff

Versus

M.T. BOFORS and 2 others---Defendants

Admiralty Suit No. 4 of 2018, decided on 29th April, 2019.

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

----Ss. 3 & 4---Exercise of Admiralty Jurisdiction by the High Court---Mode of---Actions in rem and in personam---Arrest of ship and sister-ship---Time-Charterers---Scope---Person against whom claim was being lodged under the Admiralty Jurisdiction of the High Court must be owner of an offending ship and once such a condition was fulfilled, only then an order for arrest of a "sister-ship" could be made---However, where the vessel under arrest was owned by the then time-charterer who was a defendant against whom plaintiff lodged a claim, then Admiralty Jurisdiction of the High Court would also apply---Contention that time-charterers be excluded from Admiralty Jurisdiction of the High Court was not tenable since if that were the case, then under no circumstances admiralty claims could be satisfied against a party owning and /or utilizing a vessel under a time-charter---Under S. 4(4) of the Admiralty Jurisdiction of High Courts Ordinance, 1980, plaintiff was required to first identify the relevant person who would be liable in personam when cause of action arose and such person could either be owner, time-charterer or person in possession or control of the vessel in connection with which such claim arose---For establishing a claim in rem for arrest of a ship, relevant person must beneficially own majority shares in such ship and if such claim was in respect of any other ship or a "sister ship" then a relevant person must be beneficially owning such other ship---Person who was liable when the cause of action arose, if was a time-charterer and it was not possible to arrest such ship in connection with which claim arose for any reason, then any other ship beneficially owned such time-charterer would be a target for arrest under S. 4(4) of the Admiralty Jurisdiction of High Courts Ordinance, 1980.

[2008] ANZMarLaw JI 11, Court of Appeal [1982] Vol. 1 Part 3, p.225 LLOYD's Law Reports, Hong Kong Supreme Court [1982] Vol. 2 Part 5 p.532 LLOYD's Law Reports and Messrs V.N.Lakhani and Co. v. The Ship Lakatoi Express 1994 CLC 1498 distinguished.

Messrs MSC Textile (Pvt) Ltd. through Executive Director v. Asian Pollux and 5 others 2007 CLD 1465; Nippon Yusen Kaisha (NYK) Lines v. Messrs MSC Textiles (Pvt) Ltd. and 6 others PLD 2008 Kar. 244; Aleem Ahmad Ansari v. M.V. Ashar PLD 1986 Quetta 54; Messrs V.N. Lakhani and Company v. M.V. Lakatoi Express and 2 others PLD 1994 SC 894; Bangladesh Shipping Corporation Dacca v. S.s. NENDN PLD 1981 Kar. 419; Muhammad Yousif v. Agha Amir Muhammad PLD 1976 Kar. 926; New Bengal Shipping Company v. Eric Lancaster Stump PLD 1952 Dacca 22; Kassamali Alibhoy v. Shaikh Abdul Sattar PLD 1966 (WP) Kar. 75 and Habib Khan v. Mst. Taj Bibi and others 1973 SCMR 227 ref.

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

----Ss. 3 & 4---Civil Procedure Code (V of 1908) O. XXXIX, Rr. 1 & 2 & O.XXXVIII, R. 5---Sindh High Court Rules (Original Side) ("SCCR"), R. 731---Nature of Admiralty Jurisdiction of High Court---Arrest of vessels --- Scope----Application for arrest of a vessel filed in terms of R. 731 of the SCCR read with Admiralty Jurisdiction of High Courts Ordinance, 1980 was not an injunction application at par with an application for temporary injunction in terms of O. XXXIX, Rr. 1 & 2, C.P.C. and could not be equated with an application for attachment before judgment in terms of O. XXXVIII, R. 5, C.P.C.---Admiralty Jurisdiction of High Court was separate and independent from common law jurisdiction or civil jurisdiction of a Court---Arrest of a ship had consequence of obtaining security in lieu thereof for a claimed amount, and to establish Admiralty Jurisdiction, even if there was no substantive link between claim and jurisdiction, other than the presence of the arrested ship within the jurisdiction of the Court.

Bangladesh Shipping Corporation Dacca v. S.S. NENDN PLD 1981 Kar. 419 and Spectre Consulting Limited through Attorney v. MT Everrich through Master and others PLD 2018 Sindh 136 rel.

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

----Ss. 3 & 4---Mode of exercise of Admiralty jurisdiction by the High Court---Arrest of ship---Claim exceeding value of arrested ship---Scope----Under Admiralty Jurisdiction a claimant could not come before the Court for arrest of multiple ships of an alleged defaulter on ground that a ship already arrested was of lesser value as against the amount claimed or was encumbered by priority charges / claims of others---Such action, if permitted, would mean that a claimant could at the outset arrest multiple ships of the same owner on ground that each ship was mortgaged and therefore to obtain adequate security the entire fleet of the owner be arrested.

The Banco's case [1971] 1 All ER 524 rel.

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

----O. XII, R. 6---Judgment on admission---Adjudication of an application under O.XII, R. 6, C.P.C.---Admission beyond pleadings---Principles---Court had to exercise jurisdiction under O.XII, R. 6, C.P.C. judicially and after having been satisfied to that effect---Court could, depending on facts and peculiar circumstances of a case, pass a judgment and decree on basis of admission which was beyond pleadings and such admission must be specific, unambiguous and definite in nature.

Syed Waqar Haider Zaidi v. Mst. Alam Ara Begum and others PLD 2015 Sindh 472; Gerry's International (Pvt) Ltd. v. Messrs Qatar Airways PLD 2003 Kar. 253 and Macdonald Layton and Company Limited v. Uzin Export-Import Foreign Trade Co. and others 1996 SCMR 696 rel.

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

----S. 2(k)---"Ship", definition of---Scope---Definition of a ship included any description of vessel used in navigation, whereas, the phrase "used in navigation" required that the navigation occurred in navigable waters---When an object had the shape of a vessel and was used in navigation in the navigable waters, it was called a "ship" within the meaning of S. 2(k) of Admiralty Jurisdiction of High Courts Ordinance, 1980.

Global Mrine Drilling and Co. v.Triton Holdings Ltd. [2001] 1 Lloyds Rep. 60 and Steedman v. Scofied [1992] 2 Lloyds Rep. 163 rel.

Omair Nisar for Plaintiff.

Shaiq Usmani for Defendants Nos. 1 and 2.

Muhammad Ehsan for Defendant No.3.

P L D 2019 Sindh 557

Before Muhammad Ali Mazhar and Agha Faisal, JJ

EAST WEST INSURANCE CO. LIMITED---Petitioner

Versus

FEDERAL INSURANCE OMBUDSMAN and others---Respondents

Constitutional Petition No.D-1554 of 2016, decided on 8th February, 2019.

Federal Ombudsman Institutional Reforms Act (XIV of 2013)---

----Ss. 2(a) & 18---Insurance claim, acceptance of--- Maladministration---Jurisdiction of Ombudsman---Scope---Petitioner was an Insurance Company who assailed directions by Ombudsman to Securities and Exchange Commission of Pakistan to investigate complaint---Validity---Ombudsman seized of complaint was empowered to decide same in accordance with law and not abdicate its role to another authority---Order of the Ombudsman referring matter to Securities and Exchange Commission of Pakistan for further necessary action was not justifiable---High Court set aside order passed by the Ombudsman and remanded matter back to Ombudsman for decision afresh---High Court also directed the Ombudsman to afford an opportunity of hearing to parties--- Constitutional petition was allowed accordingly.

Saiyed Younus Saeed for Petitioner.

Ishrat Zahid Alvi, A.A.G. for Respondent No.1.

Fidaullah Qureshi for Respondent No.2.

Imran Shamsi, Law Officer for Respondent No.3.

P L D 2019 Sindh 559

Before Nadeem Akhtar, J

FAIZAN SHABBIR---Petitioner

Versus

Shaikh ABDUL WAHAB through Attorney and 2 others---Respondents

Constitutional Petition No.S-2625 of 2018, decided on 6th May, 2019.

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

----S. 15---Eviction of tenant---Ground of bona fide personal need of landlord---Landlord had failed to plead ground of personal need in the eviction application---Effect---Landlord, in circumstances, was not entitled to raise such ground for the first time in his evidence---Case set up in the pleadings could not be improved at the stage of evidence.

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

----S. 15(2)(ii)--- Eviction of tenant---Ground of default in payment of rent by the tenant---When available---Parties had agreed that monthly rent shall be payable by the tenant in advance on the 5th day of each calendar month---Obligation of tenant---Principals.

The parties in the present case had agreed that monthly rent shall be payable by the petitioner in advance on the 5th day of each English calendar month. Clause (ii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, deals with the ground of default as a ground for ejectment by providing that such ground would be available if the tenant has failed to pay rent in respect of demised premises within fifteen (15) days after expiry of the period fixed by mutual agreement between the landlord and the tenant for payment of rent. Therefore, in order to save himself from committing default, the tenant could have paid rent for the months of February and March 2014 latest by 20.02.2014 and 20.03.2014, respectively. However, rent for the said period was offered by him for the first time through money order admittedly in April, 2014 which showed that by that time he had already committed default in payment of rent for the months of February and March, 2014; and by depositing rent in Court on 08.05.2014, he was in default not only for the months of February and March, 2014, but also for the month of April, 2014.

Mirza Abdul Aziz Beg v. Mushtaq Ahmed Sheikh 1980 SCMR 834; Muhammad Baqar Qureshi v. Mst. Razia Begum 1981 SCMR 18; Shezan Limited v. Abdul Ghaffar and others 1992 SCMR 2400 and Abdul Ghafoor v. Mst. Amtul Saeeds 1999 SCMR 28 ref.

(c) Pleadings--

----Evidence could not be allowed or led beyond the pleadings.

Naveed Ahmed Khan for Petitioner.

Muhammad Asif holding brief for Ms. Kiran Channer for Respondent No.1.

P L D 2019 Sindh 564

Before Muhammad Junaid Ghaffar, J

KHAWER HANIF---Plaintiff

Versus

IMRAN HANIF and 9 others---Respondents

Suit No.2022 of 2015, decided on 13th May, 2019.

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

----O. XL, R.1---Receiver, appointment of---Pre-conditions---Court usually do not appoint receiver in respect of businesses which are making profits but at same time, if substantial issues are raised and there is a likelihood that property is in danger or partnership business, if continued in same manner, may deprive excluded partner from his legitimate share, a receiver can be appointed.

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

----O. XL, R. 1---Suit for declaration, permanent injunction and rendition of accounts---Receiver, appointment of---Protection of assets---Partnership concern---Parties were partners in a joint business and plaintiff was dissatisfied with accounts of firm---Plaintiff sought appointment of receiver upon working of business of partnership concern---Plea raised by defendants was that until evidence was recorded and admissibility of the report of Chartered Accountant was decided in terms of Qanun-e-Shahadat, 1984 same did not appear to be just and fair---Validity---Chartered Accountant was appointed by court for its assistance before passing of any order of appointment of receiver---Once report of Chartered Accountant was furnished court was fully competent and was not denuded of its powers to proceed further on the basis of such report---Assets of partnership business were to be collected and preserved as the parties were in dispute with bitter feelings---Plaintiff though had been compensated from time to time but such compensation did not commensurate with accounting figures given by the Chartered Accountant---Reasonable apprehension existed to the effect that partnership property, assets as well as income, were in danger or being misused and dissipated---Receiver was appointed in circumstances.

Muhammad Irfan v. The State 2006 YLR 1506; Faizullah Khan and others v. Mst. Mirzago Begum 2015 YLR 1489; Syed Munawar Hussain Shah v. Syed Nusrat Hussain through L.Rs and others 2014 CLC 945; Abdul Ghani and others v. Abdul Rashid and others PLD 2008 Kar. 443, Media Max (Pvt) Ltd. through Chief Executive v. ARY Communication Pvt. Ltd. PLD 2013 Sindh 555; Sahibzada Ghulam Muhammad Khan v. Nawab Jahangir Khanji and 6 others PLD 2011 Kar. 602; Nelofar Saqib v. Saiban Builders and Developers and others 2011 CLD 341; Asadullah Mirbahar and another v. Mrs. Ayesha Muzahir through Attorney and 9 others PLD 2011 Kar. 151; Muhammad Ayub through L.Rs. v. Muhammad Shafique and others 2010 CLC 551; Anwer Hussain v. Afsar Hussain and 2 others 2019 YLR 442; Bhagawan Ram Kairi v. Radhika Ranjan Das and others AIR 1953 Assam 25; Radha Kanta Pal v. Benode Behari Pal and others AIR 1934 Cal. 444; Muhammad Siddiq v. Muhammad Yaqoob and others PLD 1965 (West Pakistan) 584; Asghar Ali v. Abdul Hussain PLD 1977 Kar. 280; Muhammad Yousuf Burney v. S. Muhammad Ali 1983 CLC 1498 and Halsbury's Laws of England, Vol. 24, paragraph 923, at pages 484 and 485 ref.

Khalid Mehmood Siddiqui, Saadat Yar Khan and Ashraf Yar Khan for Plaintiff.

Khadim Hussain Thahim for Defendants Nos.1 to 3.

Fayaz Ali Metlo for Defendant No.4.

P L D 2019 Sindh 574

Before Muhammad Faisal Kamal Alam, J

Mst. ZAIBUNISA and others---Plaintiffs

Versus

IQBAL AHMED and others---Defendants

Suit No.1724 of 2009, decided on 28th January, 2019.

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

----Arts. 91 & 120---Suit for declaration and injunction---Limitation---Instrument in question was having registration date as 02.06.2009 whereas suit was filed on 04.12.2009, i.e., after six months---Validity---Reliefs claimed were within limitation period---Suit was maintainable in circumstances.

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

----Ss. 39, 42 & 54---Suit for cancellation of document, declaration and permanent injunction---Execution of document---Proof---Damages, award of---Plaintiffs were bonafide purchasers of suit property which was bifurcated by previous owner and sought cancellation of subsequent sale deed owned by defendant on grounds that it was fraudulent---Validity---Subsequent sale deed dated 21-05-2009 was in respect of entire suit property whereas, same was sub-divided on 23.12.2004 vide subdivision order---Such order was an official document and its authenticity was never challenged according to which suit property now had two numbers, having different measurements---In presence of two already registered sale deeds of a prior date, subsequent sale deed/instrument of subsequent date could not be executed that too of undivided suit property which itself was contrary to record---Previous owner of property died on 11.12.1999 and suit was filed in year 2007 against a dead person, therefore, entire proceedings were based on mala fide and dishonesty---High Court declared subsequent sale deed dated 21-05-2009 as void ab initio---Onus of ownership and possession in respect of suit property was successfully discharged by plaintiffs---High Court cancelled subsequent sale deed as defendant never came forward to contest claim of plaintiffs despite service of notices---Plaintiffs were pursuing their genuine remedy for enforcement of ownership rights for past 10 years and had incurred expenses towards litigation therefore, plaintiffs were entitled for general damages---Suit was decreed accordingly.

Tanveer Jamshed and another v. Raja Ghulam Haider 1992 SCMR 917; Hafiz Brothers (Pvt.) Ltd. and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCMR 1; Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others 2013 SCMR 464; Ch. Muhammad Tufail Khan alias Tufaul Muhammad through Legal Representative v. Zarai Taraqiati Bank Limited through Branch Manageer PLD 2007 Lah. 180; Ali Muhammad v. Hussain Bakhsh and others PLD 1976 SC 37; Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976 SC 208; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Executive District Officer (Education), Rawalpindi v. Muhammad Younas 2007 SCMR 1835; Abdul Rehman and others v. Ghulam Muhammad through L.Rs. and others 2010 SCMR 978; Muhammad Akbar Shah v. Muhammad Yusuf Shah and others PLD 1964 SC 329 and Mansoor Ashraf v. Province of Sindh and others SBLR 2017 Sindh 105 ref.

(c) Damages---

----Kinds---Scope---Damages are of two kinds; general and special---Special damages are awarded only when a party successfully proves actual losses suffered by him/her.

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

Adnan Ahmed and Bilawal Channa for Plaintiffs.

Nemo for Defendants.

P L D 2019 Sindh 585

Before Salahuddin Panhwar, J

FAHAD PAREKH-Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1399 of 2018, decided on 19th December, 2018

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

----S. 367---Contents of Judgment---Conviction and acquittal---Prerequisites---Conviction and acquittal must always be specific with reference to offence because it is never crime number/FIR for which one is tried but offence(s) which accused is claimed to be guilty---Legally every offence has its own ingredients (allegation) as well as consequences thereof--- Either charged accused is to be acquitted of every single charged offence else it has to be within competence of court(s) to convict accused for any offence regardless of his acquittal from some of charged offences---Law permits conviction for offence not specifically charged but found proved--- Mandatory requirement of a valid judgment (within meaning of section 367 Cr.P.C.) is that acquittal must be with reference to offences while conviction must not only be with reference to offence but must specify section thereof.

(b) Emigration Ordinance (XVIII of 1979)---

----Ss. 17 & 22(b)---Penal Code (XLV of 1860), S. 471---Criminal Procedure Code (V of 1898), Ss. 367, 426, 439 & 497---Fake and forged travel documents---Suspension of sentence---Moulding of relief---Alternative punishment, providing of---Accused persons were convicted and sentenced by Trial Court on grounds of providing fake travel documents and visas---Accused sought suspension of sentence on grounds that co-accused was extended bail and fine was imposed under rule of "alternative punishment"---Validity---Manner in which Trial Court had awarded sentence(s) showed that legal principle was entirely ignored because though Trial Court convicted accused for two different offences yet awarded single sentence which too without specification---Conviction in such a manner could not be said to be within mandatory requirement of S. 367(2), Cr.P.C. and any departure thereto would render such judgment not legal--- Sentence awarded by Trial Court could not be stamped to be legal because if accused was found guilty for commission of offence under S.471 P.P.C. then punishment of imprisonment was mandatory/obligatory---High Court declared that in absence thereof, conviction for offence under S. 471 P.P.C. could not be said to be legal---Appeal was disposed of accordingly.

2014 PCr.LJ 297; 2016 YLR 355; SBLR 2016 Sindh 1908; Irfan and another v. Muhammad Yousaf and another 2016 SCMR 1190; Muhammad Sanaullah v. Allah Din 1993 MLD 399; Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111; Ebrahim Brothers Ltd. v. Wealth Tax Officer and another PLD 1985 Kar. 407; Karo v. State PLD 1963 (W.P.) Kar. 256 and Shamroz Khan and another v. Muhammad Amin and another PLD 1978 SC 189 ref.

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

----S. 53---Punishment---Alternative punishment---Scope---Words 'or with fine' and 'or with both' used in S.53, P.P.C.---Scope---Phrase 'or with fine' provided punishment of imprisonment is not obligatory rather things have been left open at the discretion of the court to choose alternative punishment of fine and can even award both punishments of imprisonment as well as fine--- Such discretion can always be subject to sketched guidelines provided by law itself or enunciated principles.

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

----Preamble---Words 'Or' and 'either' occurring in Penal Code, 1860---Connotation---Word 'or' in Penal Code, 1860 while detailing punishments would always be taken as disjunctive corresponding to word 'either' and legally cannot be taken as interchangeable to word 'and'---Use of word 'or' legally speaks about choosing one out of two or more options which (act of choosing) may be legal.

Asghar Ali Khan for Applicant.

Muhammad Aslam Bhutta, Assistant Attorney General for Respondent.

P L D 2019 Sindh 596

Before Muhammad Ali Mazhar and Adnan Iqbal Chaudhry, JJ

IRSHAD ALI and 42 others---Petitioners

Versus

PROVINCE OF SINDH through Chief Secretary and another---Respondents

Constitutional Petitions Nos. D-858, D-3475, D-6810 of 2016; D-654, D-1631, D-1402, D-339, D-191, D-6718 and D-161 of 2017 decided on 15th February, 2019.

(a) Health Technicians Training Guide Published in 1990---

----Clause 1.7---Health technician---Function---Health technician 'as members of health team' of Basic Health Unit (BHU) or Rural Health Center (RHC) run by Government 'where team leader is Medical Officer'---Health technician cannot engage in an independent private practice of allopathy.

(b) Allopathic System (Prevention of Misuse) Ordinance (LXV of 1962)---

----S. 6---Allopathic System (Prevention of Misuse) (West Pakistan) Rules, 1968, Rr. 3 & 9---Sindh Healthcare Commission Act, 2013 (VII of 2014), Ss. 2(xxix) & 13---Sindh Healthcare Commission Regulations, 2017, Rglns. 13, 35 & 36---Pakistan Medical and Dental Council Ordinance (XXXII of 1962), S. 29(1)---Constitution of Pakistan, Art. 199---Constitutional petition---Quackery---Health technicians---Private practice---Scope---Petitioners claimed to be health technicians and they were aggrieved of actions taken by authorities against them---Plea raised by authorities was that petitioners were operating private healthcare facilities as quacks---Validity---Provisions of Allopathic System (Prevention of Misuse) Ordinance, 1962 and Allopathic System (Prevention of Misuse) (West Pakistan) Rules, 1968 did not envisage practice of allopathy by a person other than a medical practitioner registered under Pakistan Medical and Dental Council Ordinance, 1962---Such practice was regulated by mandating that prescribing of antibiotics and dangerous drugs would be subject to a permit granted by Provincial Government---Health Assistant and Dispenser with requisite registration and experience were amongst persons eligible to apply for such permit---Effect of Sindh Healthcare Commission Act, 2013 was that even if petitioners were assumed to be qualified (as distinct from being authorized to practice allopathy and/or first aid, they could not continue to do so until their healthcare establishments were licensed under S.14 of Sindh Healthcare Commission Act, 2013---High Court declined to interfere in matter---Constitutional petition was dismissed in circumstances.

Iftikhar Hussain Butt v. Government of Punjab 2016 CLC 95 rel.

For the Petitioners

Faizan H. Memon and Khurram Memon (in C.P.No.D-858 of 2016).

Khalid Ahmed Khan (in C.P.No.D-3475 of 2016).

Mukesh Kumar Khatri (in C.Ps.Nos.D-6810 of 2016, 654, 1631, 1402, 339, 191, 6718 and 161 of 2017).

For Respondents

Ghulam Shabbir Shah Additional Advocate-General Sindh along with Jamaluddin, Additional Secretary, Health, Government of Sindh.

Assisted by:

Rafique Ahmed Bhanbhro, Mehmood Farooq Channa, Ms. Sabeen Ansari, Ms.Nadia Afzal, Aamir Bukhari and Owais Mustafa.

P L D 2019 Sindh 619

Before Fahim Ahmed Sidddiqui, J

SHAKEEL AHMED KHAN---Applicant

Versus

KHURSHEED ALAM and another---Respondents

Criminal Miscellaneous Application No.62 of 2018, decided on 16th August, 2018.

Criminal Procedure Code (V of 1898 )---

----S. 539-B---Local inspection of place of occurrence---Object and scope---Application for local inspection---Scope---Jurisdiction of Trial Court---Scope-Trial Court dismissed application, moved before initiation of trial, for the local inspection of the place of occurrence to ascertain as to whether the offence took place or not---Applicant contended that the Trial Court was duty-bound to conduct a local inspection before initiating the trial---Validity--Applicant could not point out reasons for such local inspection, even he could not explain as to how he would be jeopardized if such inspection was not carried out---Witnesses had yet not been examined---Trial Court was empowered to carry out 'local inspection' if the same was necessary for the fair adjudication of the trial---Section S. 539-B, Cr.P.C. stipulated that a judge or magistrate could conduct a local inspection of a place of occurrence or any other place---Such powers could be invoked during the course of enquiry, trial or other proceedings, for the purpose of proper appreciation of evidence given in the case and that too , if necessary, to be done by the judge or magistrate with utmost care and caution---Purpose of local inspection was to appreciate the evidence properly, therefore, it would be appropriate to do so at the end of the trial---Trial Judge was not to make local inspection and do anything which would reduce him to the position of a witness---Local inspection was not a rule in every case---Local inspection could not take place of evidence or proof but was really meant for appreciating the position at the spot---Section 539-B, Cr.P.C. contemplated that the local inspection was limited to the inspection of the topography of the place where the offence was committed or its local peculiarities for the purpose of properly appreciating the evidence which was already on record---Court could not import new material collected or observed by it during local inspection---Option of local inspection was not a mandatory rule and it was left at the discretion of Court---Trial Court could not delegate power to undertake local inspection to person subordinate to him or even to a subordinate judge---Local inspection could only be made when there was an impediment or obstacle for proper appreciation of evidence without doing so---No direction could be given to the Trial Court as the local inspection fell under the discretion of the Trial Court---Application was dismissed accordingly.

Tirkah v. Nanak AIR 1927 All. 350 and Sheikh Badasha v. Emperor [40 Crl.Law Journal 1939) 624] ref.

Asfandyar and another v. Kamran and another 2016 SCMR 2084 distinguished.

Mushtaq Ahmed Joyia for Aplicants.

Zahoor Shah, DPG.

P L D 2019 Sindh 624

Before Muhammad Ali Mazhar and Adnan Iqbal Chaudhry, JJ

Messrs MUSLIM COMMERCIAL BANK LTD. through Lawful Attorney---Petitioner

Versus

FEDERATION OF PAKISTAN and 2 others---Respondents

Constitutional Petitions Nos.D-905, D-6672, D-6673, D-6674, D-6675 and D-4572 of 2017, decided on 5th April, 2019.

(a) Banking Companies Ordinance (LVII of 1962)--

----Ss. 82A & 82B---Banking Mohtasib---Powers and jurisdiction of Banking Mohtasib---Vicarious liability for acts of employees of Banks---Scope--- Contention that a Bank was not vicariously liable for fraud committed by its employee(s), and that Banking Mohtasib did not have jurisdiction to hold such Bank vicariously liable, was misconceived---Employer's vicarious liability extended also for fraudulent acts of the employee(s) if such fraud was perpetuated in the course of employment, and it did not matter whether such fraud was for employer's benefit or for employee's own---Remedy provided to a complainant against a Bank before Banking Mohtasib proceeded on principle of vicarious liability which was the intent of Legislature manifested in S. 82A(3) of the Banking Companies Ordinance, 1962.

(b) Banking Companies Ordinance (LVII of 1962)--

----Ss.82B & 82D---Adjudication of complaints by Banking Mohtasib---Recording of evidence---Scope---Under S.82B of the Banking Companies Ordinance, 1962 it was not required that Banking Mohtasib shall decide each complaint after formal recording of evidence but rather intent was to enable Banking Mohtasib, should he so deem expedient in circumstances of a case, to take evidence of any party or witness by way of affidavit---Such intent was manifest when S.82B(4)(c) was read with S. 82D(3) of the Banking Companies Ordinance, 1962---Had the intent of Legislature been that complaints before the Banking Mohtasib could, in each and every case, only be decided after formal recording of evidence, then S. 82D(3) of Banking Companies Ordinance, 1962 would have been omitted---Where findings in the Bank's own internal investigation reports and per acknowledgments made by Bank before Banking Mohtasib, fraud/maladministration was accepted by the Bank, or in cases where fact that Bank's employees were acting in the course of employment when they committed the fraud/maladministration was accepted, then in such cases formal recording of evidence to establish fraud and vicarious liability was not required---Section 82E(1)(c) also enabled Banking Mohtasib to pay reasonable compensation to the complainant.

(c) Banking Companies Ordinance (LVII of 1962)--

----Ss. 82(E)(1) & 82B---Adjudication of complaints by Banking Mohtasib---Recommendations for implementation by Banking Mohtasib---Mediation of disputes/complaints---Legislative intent behind such mediation---Scope---Words used in S. 82E (1) of Banking Companies Ordinance, 1962 stated that Banking Mohtasib "shall try to mediate", as opposed to "shall mediate", meaning thereby that Legislative intent was only to equip Banking Mohtasib with a tool to resolve a dispute, and not to fetter his jurisdiction to decide a matter---Said provision also manifested that resort to mediation, if any, was envisaged towards end of proceedings just before the Banking Mohtasib "communicates his findings"---Resort to mediation was therefore made dependent on the circumstances of each case, and best judge of such circumstances was the Banking Mohtasib himself---Argument that it was mandatory for the Banking Mohtasib to mediate the dispute before giving a decision was misconceived.

(d) Interpretation of statutes---

----Special law---Non-obstante clauses---Construction of non-obstante clause in special law in case of conflict between such provisions---Scope---Non-obstante clause was triggered only in event of an inconsistency between provisions and where two special laws contained competing non-obstante clauses then general rule was that provision latter in time prevailed.

Syed Mushahid Shah v. Federal Investigation Agency 2017 SCMR 1218 rel.

(e) Payment Systems and Electronic Fund Transfers Act (IV of 2007)--

----Ss. 50 & 55---Banking Companies Ordinance (LVII of 1962), S.82A---"Jurisdiction of the Banking Mohtasib" and "jurisdiction under Payment Systems and Electronic Fund Transfers Act, 2007"---Distinction---Scope---Remedy of a suit for damages before a civil court provided under Ss. 50 & 55 of the Payment Systems and Electronic Fund Transfers Act, 2007, and the remedy against banking malpractices, violation of banking laws/regulations, other maladministration etc. before the Banking Mohtasib provided under S.82A of the Banking Companies Ordinance, 1962, were not inconsistent with each other as both operated in their respective fields and remained available to the aggrieved person envisaged thereunder and one did not exclude the other.

(f) Federal Ombudsmen Institutional Reforms Act (XIV of 2013)--

----Ss. 10 & 14---Banking Companies Ordinance (LVII of 1962) Ss.82A & 82B---Constitution of Pakistan, Arts. 175, 212, 203 & Fourth Sched.----Establishment and Jurisdiction of Courts under the Constitution---Constitutional provisions relating the Judicature---Nature of quasi-judicial forums---Exercise of powers by quasi-judicial forums did not make the same a "court" or "judicial tribunal" under the Constitution---Jurisdiction and exercise of statutory powers by Banking Ombudsman---Scope---Question before the High Court was whether exercise of certain powers by Banking Ombudsman under Banking Companies Ordinance, 1962; and Ombudsman under Federal Ombudsmen Institutional Reforms Act, 2013 were ultra vires the Constitution since the said forums could not exercise powers of a Court---Held, that Banking Mohtasib under the Banking Companies Ordinance, 1962, and the President acting upon a Representation under the Federal Ombudsmen Institutional Reforms Act, 2013, were the authorities performing quasi-judicial functions---Representation made to the President under S.14 of the Federal Ombudsmen Institutional Reforms Act, 2013 partook of appellate jurisdiction---Quasi-judicial act could be described as product of investigation, consideration, and human judgment, based on some evidentiary facts in a matter in discharge of which there was an element of judgment and discretion---Fact that a quasi-judicial authority had certain attributes of a Court and was required by law to act judicially in the sense of acting fairly and impartially, did not make the same a Court---Fora which were not bound by any law with regards to procedure and evidence, and only settled disputes but did not administer justice according to law, were not Courts---Exercise of quasi-judicial functions by the Banking Mohtasib did not make the same a Court or a judicial tribunal within the meaning of Arts. 175 & 212 of the Constitution---Under Part I of the Federal Legislative List, given in the Schedule to the Constitution, Federal Ombudsman was a separate and distinct legislative field from legislative fields of Administrative Courts and Tribunals for Federal subjects---Federal legislation in respect of Federal Ombudsman was not legislation in respect of a Court pursuant to Art. 175 of the Constitution or Entry No.55 of the Federal Legislative List, nor was it Legislation pursuant to Art. 212 of the Constitution or Entry No.14 of the Federal Legislative List of the Constitution---Banking Mohtasib per se was not a parallel judicial system beyond administrative supervision of the High Court which was exercised under Art.203 of the Constitution and performance of quasi-judicial functions by the Banking Mohtasib did not raise concerns with regards to the separation and independence of the judiciary---Boundaries of a quasi-judicial forum such as the Banking Mohtasib that was permitted to act beyond the purview of Arts. 175, 202 & 203 of the Constitution, were not breached merely by the fact that such forum is conferred with certain powers of a civil court to implement its orders---Fact that a quasi-judicial authority has certain attributes of a Court, does not make the same a Court. UBL v. Federation of Pakistan 2018 CLD 587 dissented.

Peshawar Electric Supply Company Ltd. v. Wafaqi Mohtasib (Ombudsmen), Islamabad PLD 2016 SC 940; State Life Insurance Corporation of Pakistan v. Wafaqi Mohtasib 2000 CLC 1593; Workers' Welfare Funds v. East Pakistan Chrome Tannery PLD 2017 SC 28; Mir Rehman Khan v. Sardar Asadullah Khan PLD 1983 Quetta 52; Shafatullah Qureshi v. Federation of Pakistan PLD 2001 SC 142; Riaz-ul-Haq v. Federation of Pakistan PLD 2013 SC 501; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; In the matter of: Reference No.02/2005 by the President of Pakistan (re: the Hisba Bill) PLD 2005 SC 873; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Sharaf Faridi v. Federation of Pakistan PLD 1989 Kar. 404; UBL v. Federation of Pakistan 2018 CLD 587; Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2744; Dr. Zahid Javed v. Tahir Riaz Chaudhry PLD 2016 SC 637; Shafatullh Qureshi v. Federation of Pakistan PLD 2001 SC 142; Nakkauda Al v. M.F. De S. Jayarane PLD 1950 PC 102; Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 1989 SC 109 and Justice Shaukat Aziz Siddiqui v. Federation of Pakistan PLD 2018 SC 538 rel.

UBL v. Federation of Pakistan 2018 CLD 587 dissented.

In the matter of: Reference No.02/2005 by the President of Pakistan (re: the Hisba Bill) PLD 2005 SC 873; Riaz-ul-Haq v. Federation of Pakistan PLD 2013 SC 501; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and Sharaf Faridi v. Federation of Pakistan PLD 1989 Kar. 404 distinguished.

(g) Interpretation of statutes---

----Implied power(s) in statutory dispute resolution/fact finding bodies---Statutory forum conferred with the power to decide a dispute had the implied power to implement its order.

State of Karnatka v. Vishwabharti House Building Property Society AIR 2003 SC 1043 rel.

(h) Federal Ombudsmen Institutional Reforms Act (XIV of 2013)---

----S. 12---Banking Companies Ordinance (LVII of 1962) Ss. 82A & 82B---Constitution of Pakistan, Arts. 204 & 199---Power of Ombudsman to punish for contempt---Constitutionality of such power---Scope---Under Art.204 of Constitution while Legislature under said Article could add to what constituted contempt of Court, and it may under Art.204(3) of Constitution regulate power to punish for contempt, but such power to punish remained vested in Supreme Court and High Courts---While Art. 203E(3) of the Constitution did confer on the Federal Shariat Court same power as a High Court to punish for its contempt, nothing in Art. 204 of the Constitution envisaged any sub-constitutional legislation to confer power to punish for contempt on any other Court or authority apart from the Supreme Court and a High Court---Power to punish for contempt could not be conferred by sub-constitutional legislation on any other Court or authority apart from Supreme Court and High Court---Under intent of the Constitution, vesting of such power in a quasi-judicial authority such as the Banking Mohtasib or Federal Ombudsman was ultra vires Art. 204 of the Constitution and therefore S.12 of the Federal Ombudsmen Institutional Reforms Act, 2013 was ultra vires the Constitution.

Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923; The State v. Khalid Masood PLD 1996 SC 42; Justice Hasnat Ahmed Khan v. Registrar, Supreme Court of Pakistan PLD 2010 SC 806 and Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 rel.

Kashif Hanif for Petitioners (in C.Ps. Nos. D-905,, 4572, 6672, 6673, 6674 and 6675 of 2017).

Muhammad Zahid Khan, Shaikh Liquat Hussain and Muhammad Shoaib Mirza, Assistant Attorney Generals for Respondents Nos.1 and 2 in all petitions.

Ayaz Ali Hingoro for Respondent No.3 (in C.P. No.D-905 of 2017).

Shahid Ali Qureshi for Respondent No.3, (in C.Ps. Nos.D-6672 to 6675 of 2017).

Ammar Athar Saeed for Respondent No.3 (in C.P. No.D-4572 of 2017).

P L D 2019 Sindh 660

Before Aziz-ur-Rehman and Fahim Ahmed Siddiqui, JJ

MASHOOQUE---Petitioner

Versus

PROVINCE OF SINDH through Deputy Commissioner and 4 others---Respondents

Constitutional Petition No.D-1065 of 2018, decided on 15th May, 2018.

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

----S. 5---Ehtram-e-Ramzan---Permission to serve food---Petitioners being owners of hotels/restaurants have sought exemption from the provisions of Ehtram-e-Ramzan Ordinance, 1981---Validity---Petitioners could do business activities in terms of exemptions under S.5 of Ehtram-e-Ramzan Ordinance, 1981 subject to necessary precautions and permission to be obtained from the authorities---Petitioners could not expose to the public view or access of their business activity and proper arrangements of curtain and screen was to be made---Petitioners were allowed to continue the business activity subject to parameters of exemptions as provided under S.5 of Ehtram-e-Ramzan Ordinance, 1981---Such activity was to be duly protected from public view by means of curtain or screen or otherwise subject to proper verification by the authorities---If any violation or contravention was found then competent authority would be free to initiate legal action---Constitutional petition was disposed of, accordingly.

Arshad Muhammad and others v. Province of Sindh and others SBLR 2016 DB Sindh 1751 rel.

Imtiaz Ali Channa for Petitioner (in C.Ps Nos.D-1065, 1156, 1371 and 1372 of 2018).

Mazhar Ali Leghari for Petitioner (in C.Ps Nos.D-1075, 1288, 1487, 1488 and 1550 of 2018).

Mrs. Razia Ali Zaman for Petitioner (in C.Ps Nos.D-1091 and 1273 of 2018).

Miss. Najma Lakho for Petitioner (in C.Ps Nos.D-1097 and 1098 of 2018).

Mian Taj Muhammad Keerio for Petitioner (in C.Ps Nos.D-1113, 1206 and 1462 of 2018).

Waqar Ali Laghari for Petitioner (in C.P No.D-1121 of 2018).

Aijaz Bhutto for Petitioner (in C.Ps Nos.D-1124, 1174, 1186, 1271 and 1272 of 2018).

Fakhuruddin Dahraj for Petitioner (in C.Ps Nos.D-1130, 1205, 1403, 1408 and 1520 of 2018).

Santosh Kumar J. Kalal, for Petitioner (in C.P.No.D-1139 of 2018).

Faisal Nadeem Abro for Petitioner (in C.Ps Nos.D-1142 and 1501 of 2018).

Syed Shahzad Ali Shah for Petitioner (in C.Ps Nos.D-1145 and 1384 of 2018).

Altaf Hussain Chandio for Petitioner (in C.P No.D-1154 of 2018).

Bheemchand Kolhi for Petitioner (in C.Ps Nos.D-1161 and 1405 of 2018).

Hemandas S. Sanghani for Petitioner (in C.Ps Nos.D-1162, 1163, 1165, 1169, 1382 and 1416 of 2018).

Moula Bux Narejo for Petitioner (in C.P No.D-1167 of 2018).

Rizwan Ahmed for Petitioner (in C.P No.D-1168 of 2018).

Jehangir Khyber for Petitioner (in C.P No.D-1175 of 2018).

Mashooque Ali Mahar for Petitioner (in C.Ps Nos.D-1179, 1213 and 1277 of 2018).

Muhammad Hassan Chandio for Petitioner (in C.Ps Nos.D-1181, 1182, 1297, 1321, 1322, 1339, 1342, 1344, 1357, 1358, 1393, 1417, 1471, 1493, 1507, 1508, 1527 and 1551 of 2018).

Ashique Ali Laghari for Petitioner (in C.P No.D-1184 of 2018).

Abdul Majeed Malak for Petitioner (in C.Ps Nos.D-1185, 1187, 1189 and 1191 of 2018).

Shaukat Ali Kaka for Petitioner (in C.Ps Nos.D-1190, 1282, 1283 and 1383 of 2018).

Abid Ali Thebo for Petitioner (in C.P No.D-1194 of 2018).

Noor Muhammad Rind for Petitioner (in C.P No.D-1199 of 2018).

Muhammad Azhar Arain for Petitioner (in C.P No.D-1200 of 2018).

Mumtaz Ahmed Lashari for Petitioner (in C.Ps Nos.D-1203, 1211, 1262 and 1490 of 2018).

Muhammad Sachal R. Awan for Petitioner (in C. Ps Nos.D-1208, 1275 and 1543 of 2018).

Mohsin Raza Gopang for Petitioner (in C.Ps Nos.D-1212 and 1346 of 2018).

Poonjo Ruplani for Petitioner (in C.Ps Nos.D-1214, 1235, 1268, 1281, 1284, 1337, 1413, 1414 and 1521 of 2018).

Muhammad Zainuddin Baloch for Petitioner (in C.P No.D-1216 of 2018).

Ashfaque Ali Khaskheli for Petitioner (in C.P No.D-1217 of 2018).

Shahzad Ahmed Narejo for Petitioner (in C.P. No.D-1218 of 2018).

Aijaz Ahmed Chandio for Petitioner (in C.Ps Nos.D-1220, 1221, 1279, 1409, 1431, 1432, 1433 and 1447 of 2018).

Ghulamullah Chang for Petitioner (in C.P No.D-1219 of 2018).

Abdul Khalique Leghari for Petitioner (in C.Ps Nos.D-1228 and 1229 of 2018).

Syed Imdad Ali Shah for Petitioner (in C.Ps Nos.D-1230, 1231 and 1441 of 2018).

Shahid Ahmed Ansari for Petitioner (in C.P No.D-1233 of 2018).

Ahmed Nawaz Chang for Petitioner in C.P No.D-1234 of 2018.

Syed Tarique Ahmed Shah for Petitioner (in C.Ps Nos.D-1236, 1237, 1238 and 1239 of 2018).

Kanji Mal Meghwar for Petitioner (in C.Ps Nos.D-1243, 1244, 1299 and 1316 of 2018).

Waheed Murad Khaskheli for Petitioner (in C.P No.D-1245 of 2018).

Zafar Ali Chandio for Petitioner (in C.Ps Nos.D-1246 and 1249 of 2018).

Adnan Ahmed Siddiqui for Petitioner (in C.Ps Nos.D-1247, 1248, 1257, 1500 and 1522 of 2018).

Suhail Shahzad Khokhar for Petitioner (in C.Ps Nos.D-1251, 1252, 1253, 1254, 1255, 1256, 1354, 1355, 1356, 1360 and 1496 of 2018).

Ghulam Nabi Meo for Petitioner (in C.P No.D-1258 of 2018).

Zubair Mirbahar for Petitioner (in C.P No.D-1261 of 2018).

Khalid Hussain Channa for Petitioner (in C.P No.D-1265 of 2018).

Muntazir Mehdi Laghari for Petitioner (in C.Ps Nos.D-1266, 1473 and 1516 of 2018).

Kashif Ali Lakho for Petitioner (in C.Ps Nos.D-1267, 1426 and 1497 of 2018).

Junaid Soomro for Petitioner (in C.Ps Nos.D-1269 & 1377 of 2018).

Willayat Ali Khan Magsi for Petitioner (in C.P No.D-1276 of 2018).

Mumtaz Ali Soomro for petitioner (in C.P No.D-1280 of 2018).

Zaheeruddin Nohri for Petitioner (in C.Ps Nos.D-1285, 1286, 1368 and 1369 of 2018).

Zulfiqar Ali Samo for Petitioner (in C.Ps. Nos. D-1289, 1291, 1292, 1294, 1453, 1455, 1456, 1474, 1475 and 1477 of 2018).

Ghulam Mustafa Hingorjo for Petitioner (in C.Ps Nos.D-1300, 1301, 1302, 1303, 1304, 1305, 1306, 1307, 1308, 1542, 1544, 1545, 1546, 1547, 1548, 1549 and 1554 of 2018).

Ghulam Sarwar Khaskheli for Petitioner (in C.P No.D-1311 of 2018).

Badar Rajpar for Petitioner (in C.P No.D-1312 of 2018).

Azizullah Ghambhir for Petitioner (in C.P No.D-1314 of 2018).

Abdul Majeed Lashari for Petitioner (in C.Ps Nos.D-1315 and 1523 of 2018).

Hitesh Kumar Maheshwari for Petitioner (in C.P No.D-1317 of 2018).

Sartar Iqbal Panhwar for Petitioner (in C.Ps Nos.D-1318 and 1319 of 2018).

Waseem Ahmed Ghahoti for Petitioner (in C.P No.D-1324 of 2018).

Muhammad Jameel Khan for Petitioner (in C.P No.D-1325 of 2018).

Karim Bux Rind for Petitioner (in C.Ps Nos.D-1326, 1327, 1331,1332, 1334, 1335, 1363,1364, 1365, 1366 and 1367 of 2018).

Om Parkash H.Karmani for Petitioner (in C.Ps Nos.D-1328, 1330, 1340 and 1341 of 2018).

Waqar Ali G. Zaur for Petitioner (in C.Ps Nos.D-1336, 1352 and 1494 of 2018).

Bisharat Ali Memon for Petitioner (in C.P No.D-1343 of 2018).

Imdad Hussain A.Shahani for Petitioner (in C.P No.D-1359 of 2018).

Syed Shafique Ahmed Shah for Petitioner (in C.Ps Nos.D-1362 and 1466 of 2018).

Mir Asif Ali Talpur for Petitioner (in C.Ps Nos.D-1370 and 1460 of 2018).

Muhammad Ahmed Khan Pathan for Petitioner (in C.Ps Nos.D-1385, 1386, 1387, 1388, 1389, 1390, 1391, 1392 and 1394 of 2018).

Ayaz Hussain Chandio for Petitioner (in C.P No.D-1395 of 2018).

Bhagwandas Bheel for Petitioner (in C.P No.D-1396 of 2018).

Aghis-u-Salam Tahirzada for Petitioner (in C.Ps Nos.D-1397, 1398 and 1410 of 2018).

Sheeraz Bhatti for Petitioner (in C.Ps Nos.D-1402, 1427, 1449, 1450, 1452, 1482 and 1483 of 2018).

Imdad Ali Dahri for Petitioner (in C.P. No.D-1411 of 2018).

Mushtaque Ali Tagar for Petitioner (in C.P No.D-1412 of 2018).

Javed Ali Buriro for Petitioner (in C.P No.D-1415 of 2018).

Saeed Ahmed Waggan for Petitioner (in C.P No.D-1424 of 2018).

Anwar Ali Solangi for Petitioner (in C.P No.D-1425 of 2018).

Ghulam Sarwar Baloch for Petitioner (in C.Ps Nos.D-1428 and 1524 of 2018).

Amjad Hussain Rajput for Petitioner (in C.P No.D-1429 of 2018).

Ghulam Murtaza Shaikh for Petitioner (in C.P No.D-1430 of 2018).

Satram, Sonani Bheel for Petitioner (in C.P No.D-1434 of 2018).

Aslam Baig Leghari Baloch for Petitioner (in C.Ps Nos.D-1435, 1436, 1437, 1438, 1439, 1440, 1445, 1446 and 1457 of 2018).

Nouman Sahito for Petitioner (in C.Ps Nos.D-1442, 1443, 1444 and 1489 of 2018).

Shaukat Ali Pathan for Petitioner (in C.P No.D-1448 of 2018).

Parkash Lal for Petitioner (in C.P No.D-1451 of 2018).

Nasrullah Khaskheli for Petitioner (in C.Ps Nos.D-1454 and 1458 of 2018).

Mushtaque Husain Khaskheli for Petitioner (in C.P No.D-1459 of 2018).

Rao Faisal Ali for Petitioner (in C.P No.D-1461 of 2018).

Ali Khan Laghari for Petitioner (in C.P No.D-1463 of 2018).

Zahid Mallah for Petitioner (in C.Ps Nos.D-1472 and 1514 of 2018).

Akash Ali Rind for Petitioner (in C.P No.D-1476 of 2018).

Ahmed Ali Jarwar for Petitioner (in C.Ps Nos.D-1478 and 1479 of 2018).

Mirza Naeem Baig for Petitioner (in C.P No.D-1484 of 2018).

Ghulam Shabbir Daudani for Petitioner (in C.P No.D-1485 of 2018).

Saeed Ahmed Mirjat for Petitioner (in C.Ps Nos.D-1491 and 1492 of 2018).

Zeeshan Ali Malik for Petitioner (in C.Ps Nos.D-1495 and 1553 of 2018).

Naseer A. Narejo for Petitioner (in C.P. No.D-1498 of 2018).

Faisal Ali Raza Bhatti for Petitioner (in C.Ps Nos.D-1499 and 1519 of 2018).

Abdul Mueed Shaikh for Petitioner (in C.Ps Nos.D-1502, 1503, 1529 and 1530 of 2018).

Subhan Ali Panhwar for Petitioner (in C.P No.D-1504 of 2018).

Niaz Hussain Laghari for Petitioner (in C.P No.D-1505 of 2018).

Mansoor Ali Jamali for Petitioner (in C.Ps Nos.D-1506, 1509 and 1531 of 2018).

Wali Muhammad Buledi for Petitioner (in C.P No.D-1510 of 2018).

Velji Rathore for Petitioner (in C.P No.D-1512 of 2018).

Ashok Kumar for Petitioner (in C.P No.D-1513 of 2018).

Taj Muhammad Qaimkhani for Petitioner (in C.Ps Nos.D-1511 and 1515 of 2018).

Kanjee Mal Rano Bheel for Petitioner (in C.P No.D-1517 of 2018).

Altaf Hussain Junejo for Petitioner (in C.P No.D-1518 of 2018).

Abdul Hameed Bajwa for Petitioner (in C.P No.D-1528 of 2018).

Shahid Sahito for Petitioner (in C.P No.D-1536 of 2018).

Ahsan Gul Dahri for Petitioner (in C.Ps Nos.D-1540, 1541 of 2018).

Miss. Rizwana for Petitioner (in C.P No.D-1555 of 2018).

Wishan Das Kolhi for Petitioner (in C.Ps Nos.D-1585 and 1610 of 2018).

Petitioner[s] in person (in C.Ps Nos.D-1264, 1404, 1421, 1581 of 2018).

P L D 2019 Sindh 670

Before Fahim Ahmed Siddiqui, J

MIR SHAKIL UR RAHMAN---Applicant

Versus

Messrs CREEK DEVELOPERS (PRIVATE) LIMITED and another---Respondents

Criminal Revision Applications Nos.7 of 2016 and 96 of 2018, decided on 27th September, 2018.

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

----S. 5---'Editor-in-Chief'---Scope---Word 'Editor-in-Chief' is alien to law and law recognizes only word 'Editor' or 'Subeditor' in a newspaper.

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

----Ss. 154 & 200---Criminal case, registration of---Limitation---Law has not provided a limitation for filing criminal complaint or lodging F.I.R.

Mst. Najma Mansoor v. Messrs National Development Finance Corporation through Authorized Officer and 7 others 2007 CLD 477 and Jagin and 2 others v. The State PLD 2001 Quetta 64 rel.

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

----Ss. 154 & 200---Registration of criminal case---Complainant---Non-incorporated body or association may put criminal law into motion---Not necessary that a proper authorization should be given but a person usually representing body or association is competent to lodge F.I.R. or file complaint in a cognizable or non-cognizable case.

(d) Oaths Act (X of 1873)---

----S. 13---Oath not administered to witnesses---Effect---If oath is not administered to a witness then sacrosanctity and sanctity of evidence already remain intact.

Sajjad Ahmed v. The State 1992 SCMR 416 and Muhammad Aslam and others v. The State 1999 SCMR 845 rel.

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

----Ss. 499, 500 & 501---Criminal Procedure Code (V of 1898), Ss.200, 201, 204, 249-A, 265-K & 439---Defamation---Private complaint---Cognizance---Non-bailable warrants were issued by Trial Court against accused persons on complaint forwarded by Magistrate---Plea raised by accused persons was that Magistrate had examined only one witness who was representative of complainant during inquiry---Validity---Not necessary for Magistrate to examine all witnesses produced at time of inquiry and was not necessary for a complainant to produce all witnesses during inquiry---Purpose of inquiry was to persuade Magistrate to form an opinion regarding credibility of complaint and prima facie a case was made out for taking cognizance---At time of examining witness during inquiry, Inquiry Magistrate could put some questions to clarify something and could examine any document annexed in complaint and referred by witness during such examination---Inquiry Magistrate was not required to cross-examine a witness and evaluate evidence in the way of Trial Court---Status of Inquiry Magistrate was at a pedestal higher than investigating officer but he was not allowed to enter into domain of Trial Court while evaluating record during inquiry---Report of Inquiry Magistrate could again be evaluated by Trial Court at time of framing of charge---Up to stage of inquiry, in a criminal complaint it was responsibility of complainant to establish that he had a prima facie case in his favour--- As soon as cognizance was taken, accused persons would have every right to appear and defend themselves--- Even before framing of charge accused persons could approach Trial Court for their premature or pre-trial acquittal by filing application under S. 249-A or S.265-K, Cr.P.C. and if they were able to convince Trial Court regarding their point of view they would be acquitted without bothering them to go through a full-dress trial---High Court declined to interfere in process issued by Trial Court---Revision was dismissed in circumstances.

Inayatullah and 4 others v. The State and another 1999 PCr.LJ 731; Anwar Alam Siddiqui v. The State and another 2016 YLR 417; Khondkar Abu Taleb v. The State and another PLD 1967 SC 32; Abdul Majid v. Muhammad Mansoor Ali and 14 others 1969 PCr.LJ 692; Habibullah v. Soomar and others 1991 PCr.LJ 279; Qari Ghulam Mustafa v. Muhammad Yunus and others 1996 MLD 604; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Muhammad Tariq Khan v. Khwaja Muhammad Jawad Asami and others 2007 SCMR 818; Muhammad Safeer v. The State and another 2004 PCr.LJ 899; Hakim Ali v. Muhammad Salim and another 1992 SCMR 46; In the matter of: Human Rights Cases Nos. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 SC 759); Bank of Punjab and another v. Haris Steel Industries (Pvt) Ltd. and another PLD 2010 SC 1109; Inayatullah v. The State 2011 PCr.LJ 1114; Ijaz Ahmed v. Syriya Akhtar and others PLD 2011 Lah. 42; Abdul Razzaq and 8 others v. Shah Jehan and 5 others 1995 SCMR 1489; Anwarul Haq v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and 13 others 1995 SCMR 1505; Khalid Nazir and others v. The State and others 2018 MLD 26; Nawab Ferozuddin v. The State and 5 others 2009 MLD 94; Shamim v. The State and another PLD 1966 SC 178; Allah Wadhayo v. Wali Muhammad and 3 others 2001 PCr.LJ 914; Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105; Malik Muhammad Shoaib Bhutta v. Abdul Aziz Muhammad and another 2010 CLD 717; Muharram Ali and 3 others v. Izzat Ali 2016 PCr.LJ 601; Lt. Col. (Rtd.) Najam Hameed v. The State and another 2007 YLR 2126; Fayyaz Hussain v. Akber Hussain and others 2004 SCMR 964; Muhammad Yousuf v. Mst. Rashida Begum and 2 others 2017 YLR Note 334; Khyam Films and another v. Bank of Bahawalpur Ltd. 1982 CLC 1275; Silk Bank Limited v. Messrs Dewan Sugar Mills Limited 2011 CLD 436; Allied Bank Limited v. Muslim Cotton Mills Limited and 3 others 2011 CLD 393; Mushtaq Ahmed and others v. Muhammad Saeed and others 2004 SCMR 530; Shaikh Muhammad Rashid v. Majid Nizami, Editor-in-Chief, the Nation and Nawa-e-Waqat, Lahore PLD 2002 SC 514; S.Dawood Shah v. S. Noor Shah and another 1986 PCr.LJ 1689 and Ghulam Mustafa and 9 others v. The State 1999 YLR 1616 ref.

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

----Ss. 561-A, 249-A & 265-K---Inherent powers of High Court--- Power to acquit accused at any stage---Scope---Powers of High Court under S.561-A Cr.P.C. are not coextensive to power of Trial Court under S.249-A or S.265-K Cr.P.C.---High Court cannot use inherent powers as a routine in favour of a party after bypassing powers and authority of a Trial Court.

Muhammad Farooq v. Ahmed Nawaz Jagirani and others PLD 2016 SC 55 and Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298 rel.

Dr. Abdul Razzaq along with Mahmood Ahmed and Aamir Qureshi for Applicant (in Criminal Revision No.07 of 2016).

Yawar Faruqui along with Asad Ali Riar for Applicant (in Criminal Revision No.96 of 2018).

Murtaza Wahab Siddiqui along with Jaffer Raza for Respondent No.1 (in Criminal Revisions Nos.07 of 2016 and 96 of 2018).

Syed Zahoor Shah, DPG for the State/Respondent No.2.

P L D 2019 Sindh 691

Before Nadeem Akhtar, J

IDEAL ARCADE BUILDERS AND DEVELOPMENT through Authorize Officer/Project Director---Appellant

Versus

Miss FARIDA SHEHNAZ through Special Attorney---Respondent

Second Appeal No.30 of 2019, decided on 30th March, 2019.

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

----O. XLI, R. 27---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Appeal---Production of additional evidence before Appellate Court---Requirements---Suit was decreed against which appeal was moved wherein an application for production of additional evidence was filed but same was dismissed---Validity---Appellant neither attempted to produce the document in question before the Trial Court nor said Court had refused to admit the same in evidence---Appellate Court was not of the view that evidence sought to be produced by the appellant was required to enable it to pronounce judgment---No application for summoning of record was filed by the appellant before the Trial Court although he was aware at that stage that document in question was not available in its record---Nothing was on record as to why application in this behalf was not moved before the Trial Court---Appellant who had an opportunity but elected not to avail it could not be allowed to fill up the omission/lacuna in his case before Appellate Court---No mis-reading or non-reading of evidence or any illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below---Second appeal was dismissed, in circumstances.

Mad Ajab and others v. Awal Badshah 1984 SCMR 440; Muhammad Siddique v. Abdul Khaliq and 28 others PLD 2000 SC (AJ&K) 20; Taj Din v. Jumma and 6 others PLD 1978 SC (AJ&K) 131; Nazir Hussain v. Muhammad Alam Khan and 3 others 2000 YLR 2629; Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671; Nazir Ahmed and 3 others v. Mushtaq Ahmed and another 1988 SCMR 1653 and Mst. Jewan Bibi and 2 others v. Inayat Masih 1996 SCMR 1430 rel.

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

----O. XLI, R.27---Production of additional evidence before Appellate Court---Requirements.

In view of the language used in Rule 27 O.XLI, C.P.C., it may be observed that the first appellate Court could take additional evidence only if after examining the evidence produced by the parties it comes to the conclusion that the same was inherently defective or insufficient, and unless additional evidence was allowed, judgment cannot be pronounced; and, only such additional evidence can be permitted to be brought on record at the appellate stage which is required by the appellate Court itself for final or conclusive adjudication in the matter, or for any other substantial cause. It follows that additional evidence can be allowed in appeal when on examining the record, as it stands, an inherent lacuna, defect or deficiency is not only apparent, but is also felt by the appellate Court. The sole criterion as to whether additional evidence should be allowed or not depends upon the question whether or not the appellate Court requires the evidence "to enable it to pronounce judgment or for any other substantial cause", as to which the appellate Court is the sole judge as the need for additional evidence must be felt by the appellate Court itself. In such an event, the appellate Court may allow additional evidence either on an application by any of the parties or even suo motu. Thus, it can be safely concluded that the expression "to enable it to pronounce judgment" means to enable the appellate Court to pronounce a satisfactory and complete judgment ; it certainly does not mean that additional evidence should be admitted in appeal in order to enable the appellate Court to pronounce judgment in favour of a particular party. Thus, the provisions of O. XLI, Rule 27 C.P.C. can be legitimately invoked by allowing additional evidence only in cases where it is impossible for the appellate Court to pronounce judgment on the basis of the evidence available on record.

Akhlaq Ahmed for Appellant.

Mst. Farida Shahnaz called absent.

P L D 2019 Sindh 697

Before Nadeem Akhtar and Muhammad Faisal Kamal Alam, JJ

GULZAR AHMED---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary and 19 others---Respondents

Constitutional Petition No.D-1913 of 2017, decided on 30th March, 2019.

(a) Sindh Plantation, Maintenance of Trees and Public Parks Ordinance (XLV of 2002)---

----S. 7---Sindh Local Government Act (XLII of 2013), S. 2 & Sched.II, Part-II, Para. 55---Cutting down trees---Public Trust doctrine of---Petitioner was aggrieved of cutting down trees by Pakistan Air Force--- Plea raised by Pakistan Air Force was that trees were cut down to remove obstructions to their firing range and were a potential terror threat to airbase--- Validity--- Trees in question were located at green belt which existed in between boundary wall of airbase of Pakistan Air Force and thoroughfare leading to main airport building---Said trees fell within ambit of public trust resource and act of Pakistan Air Force was not immune from court proceedings and was challengeable--- High Court maintained petition as timber/trees in question were lying at airbase of Pakistan Air Force for purpose of sale--- Such defense set by Pakistan Air Force was also blended with commercial activity--- High Court directed authorities to refrain from cutting or removing any grownup tree either on road in question or any of main roads in entire city--- High Court further directed Pakistan Air Force not to dispose of trees already cut except in accordance with law--- Constitutional petition was allowed accordingly.

Lahore Bachao Tehrik v. Dr. Iqbal Muhammad Chauhan and others 2015 SCMR 1520; Cutting of Trees for Canal Widening Project, Lahore 2011 SCMR 1743: In the matter of Suo Motu Case No.25 of 2009; Moulvi Iqbal Haider v. Capital Development Authority and others PLD 2006 Scourt 394; Fida Hussain through Attorney v. Executive Engineer Irrigation/Drainage, Larkana and 4 others 2013 P L C (C. S.) 106; Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and Secretary, Finance and Revenue (Revenue) Department, Government of East Pakistan] P L D 1957 SC (Pak.) 9; Hamid Mir and another v. Federation of Pakistan and others 20013 SCMR 1880; Muhammad Sarwar v. Goverrnment of Sindh and others PLD 2018 Sindh 360 and Rooh Al Marrif compiled by Shah Maqsood Ahmed Arfi ref.

(b) Maxim---

----Casus belli--- Meaning---"An act or situation that provokes or justifies a war".

(c) Interpretation of Constitution---

----"Trichotomy of Power"--- Object, purpose and scope--- Balance is to be struck between policies relating to security and civil liberties and Fundamental Rights of citizens--- Object of scheme of "Trichotomy of Power" as envisaged in the Constitution, like other well-known Constitutions of other countries, is to keep in place system of checks and balances for simple reason that an unbridled authority and discretion either in hands of individual or state institution would be disastrous.

Dias Juriprudence 5th Edn. by RWM.Dias rel.

(d) Constitution of Pakistan---

----Art. 199---Judicial review---Plea of national security---Proof---If Government (including defense related organizations), Authority, Agency and/or any institution defends their actions on plea of national security or seeks to draw a curtain over their actions on basis of national security, then such defense must come from a constitutionally valid legislation; there can be no circumstance where any government, authority and/or agency be allowed to justify their actions or violate law of land on basis of arbitrary plea of security.

A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) 2004 UKHL (United Kingdom House of Lords) 56; Donald J. Tramp, President of the United States, ET AL., v. Hawali, ET AL 585 U.S. 2018) Supreme Court of the United States No.17-965 and The Constitution by David Cole and James X. Dempsey rel.

Qurban Ali Malano for Petitioner.

Fayyaz Ahmed Soomoro for Respondents Nos. 9 and 20.

Jamzhed Ahmed Faiz, Assistant Attorney General for Respondents.

Zulfiqar Ali Naich, Assistant Advocate-General, Sindh along with Iftikhar Ahmed Arain, DFO(A), Rafiq Ahmed Mako (S.F.) and Sanaullah Kalwar, Mukhtiarkar, New Sukkur for Respondents.

P L D 2019 Lahore 1

Before Jawad Hassan, J

Malik MUHAMMAD BASHIR LAKHESAR, ASSISTANT ADVOCATE-GENERAL, PUNJAB---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.14030 of 2018, decided on 12th November, 2018.

(a) Punjab Law Department Manual, 1938 ---

----Para. 1.18(4)---Punjab Government Rules of Business, 2011, Seventh Sched, Pt. I, Item No. 16---Assistant Advocate-General, office of---Pleasure post---Doctrine of pleasure---Scope---Continuous absence from duty---Misconduct---Removal from service---Under the doctrine of pleasure, all the posts of the Advocate-General Office were held at the pleasure of the Government and were terminable at its will---Appointments of the Additional and Assistant Advocate- General were made by the Chief Minister at his option and pleasure in terms of Item 16 of Part-I of Seventh Schedule of the Punjab Government Rules of Business, 2011---Furthermore sub-para (4) of para 1.18 of Law Department Manual, 1938 explicitly mandated that an Additional or Assistant Advocate-General shall hold the office during the pleasure of the Governor/Chief Minister and may liable to be removed from the office at any time without notice---By nature of his appointment and functions, an Assistant Advocate-General had no vested right to force continuation of his appointment against the wishes of the Government, particularly, when he no longer inspired confidence of the Government---Appointment letter of the petitioner, in the present case, vividly reflected that his appointment as Assistant Advocate-General was made especially in the "public interest", therefore, if due to his long absence from duty, such service was dispensed with by the competent authority, the same would also be considered to be done in the public interest---Since the petitioner had no vested right to post of Assistant Advocate-General, there was no need to issue any notice to him by the competent authority before his services were dispensed with vide the impugned order---Even then petitioner was given personal hearing at the office of Advocate General, but after that he again remained absent from office---When the pay of the petitioner was stopped and he moved various applications for medical leave, he was asked to attend the Office of the Advocate-General, and was given different options which the petitioner promised to consider but despite that he did not attend his office till date and remained absent---In such circumstances, the petitioner could not say that he has not been given any opportunity of hearing---Long and continuous absence of petitioner from duty was to be treated as gross misconduct due to which he had been rightly removed from service---Constitutional petition was dismissed in circumstances.

Muhammad Yousaf Javaid Phapra and others v. Ombudsman Punjab and 121 others PLD 2018 Lah. 269; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483; Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 3009 PLC (C.S.) 161 ref.

(b) Civil service ---

----Pleasure post---Doctrine of pleasure---Scope---Pleasure doctrine was not based upon any special prerogative [of the Government] but was based on public policy and was in public interest and for public good---Basis of the pleasure doctrine was that the public was vitally interested in the efficiency and integrity of civil services and, therefore, public policy required, public interest needed and public good demanded that civil servants who were inefficient, dishonest or corrupt or had become a security risk should not continue in service.

(c) Public interest ---

----Scope---Where the public interest conflicted with private interest, the latter must yield to the former.

(d) Civil service ---

----Misconduct---Dismissal from service----Long absence from duty without intimation was gross misconduct which entailed dismissal from service.

Director-General, Pakistan Rangers v. Federation of Pakistan and 3 others 2013 SCMR 887 ref.

(e) Punjab Law Department Manual, 1938 ---

----Para. 1.18---Punjab Government Rules of Business, 2011, Seventh Sched, Pt. I, Item No. 16---Constitution of Pakistan, Art. 260(1)---Office of Assistant Advocate-General---Service of Pakistan---Office of Assistant Advocate-General was clearly an office of profit and was included in the expression 'services of Pakistan'.

Muhammad Khursheed Khan v. Returning Officer and 4 others 1998 SCMR 425 and M. Ashraf Khan, Advocate Supreme Court of Pakistan v. Secretary Law and Parliamentary Affairs and Human Rights, Government of the Punjab, Lahore and 19 others PLD 2008 Lah. 312 ref.

Muhammad Ramzan Khalid Joiya and Barrister M. Rehan Khalid Joiya for Petitioner.

Mirza Muhammad Saleem Baig, Additional Advocate-General for Respondents.

Khalid Masood Ghani, Assistant Advocate-General for Respondents.

Wajid Ali Bhatti, Assistant Attorney-General for Respondents.

P L D 2019 Lahore 17

Before Ayesha A. Malik and Muzamil Akhtar Shabir, JJ

IMRAN MAQBOOL, PRESIDENT MCB BANK LTD.---Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Law, Justice and Human Rights Division, Islamabad and others---Respondents

Writ Petitions Nos.71556, 54146 and 60723 of 2017, heard on 6th September, 2018.

(a) Protection Against Harassment of Women at the Workplace Act (IV of 2010)

----S. 7(1)---Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act 2012 (III of 2013), S. 6---Penal Code (XLV of 1860), S.509---Harassment at workplace---Subject of harassment at the workplace, being a crime under the Penal Code, 1860, meant that Parliament and the Provinces both were competent to make laws with respect to the crime, procedure or evidence---Subject of protection of women from harassment fell under the Federal domain consequent to its international obligations and to the extent that the subject related to criminal law.

(b) Protection Against Harassment of Women at the Workplace Act (IV of 2010)

----S. 7(1)---Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act 2012 (III of 2013), S.6---Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983), Art.9---Federal/Provincial Ombudsman for Protection Against Harassment of Woman at the Work Place---Jurisdiction---Scope---Where an organization was clearly a trans-provincial organization, the Federal Ombudsman for Protection Against Harassment of Woman at the Work Place was competent to look into a complaint---Jurisdiction of the Federal Ombudsman was not limited to the Federal Capital Area, rather the Federal Ombudsman had jurisdiction in relation to all employers, organizations, institutions and workplaces which had a Federal character or were established under a Federal law or were directly consequent to an international obligation under an international treaty or convention---Jurisdiction of Federal Ombudsman could not be limited to the Federal Capital Area and could be exercised all over Pakistan over a Federal employer, institution, organization or workplace---Where the employer or organization and its workplace fell strictly within the territorial boundaries of the Provincial Ombudsman, then jurisdiction vested with the Provincial Ombudsman and where the employer or organization transcended provincial boundaries then jurisdiction vested with the Federal Ombudsman.

Salim Javed and others v. Federal Ombudsman and others PLD 2016 Lah. 433 distinguished.

Farooq Zaman Qureshi and Riaz Hussain Haleem for Petitioner (in W.P. No.71556 of 2017).

Parvez I, Mir for Petitioner (in W.Ps. Nos.54146 and 60723 of 2017).

Nasar Ahmad, DAG along with Naveed Ahmad Goraya, Senior Law Officer in the Office of Respondent No.1 for Respondents.

Mrs. Samia Khalid, Addl. A.G. and Anwar Hussain, Addl. A.G. for Respondents.

Amna Tahir, Respondent No.5 in person.

P L D 2019 Lahore 28

Before Shams Mehmood Mirza and Muzammal Akhtar Shabir, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION through Chairman---Appellant

versus

AYESHA through Abdul Razzaq and 3 others---Respondents

I.C-A. No.96 of 2016, decided on 14th September, 2017.

Punjab Free and Compulsory Education Act (XXVI of 2014)--

----S. 5---Punjab Education Code, Art. 29---Calendar of Board of Intermediate and Secondary Education Lahore, Chapter 19, R. 1-A---Constitution of Pakistan, Arts. 9 & 25-A---Right to education---Words 'in such manner as may be determined by law'---Age for education---Scope---Board of Intermediate and Secondary Education was aggrieved of judgment passed by Single Judge of High Court whereas application of Rules pertaining to minimum age limit for appearing in Secondary School Certificate Examination was suspended---Validity---Provision of Art.25-A of the Constitution only dealt with compulsory duty of state for furnishing or providing children of 5 to 16 years with free education---Article 25-A of the Constitution did not clearly specify or lay down that only children of 5 years of age would be admitted to Class-I---Manner of providing education was to be determined by law but Art.25-A of the Constitution did not call for restricting right of a child to receive education by imposing age restriction---Words 'in such manner as may be determined by law' meant the way in which a thing was required to be done or was to be achieved through promulgation of law---Punjab Education Code was simply a code followed by Boards but it was not made under authority of any Statute or Act---At the most, Punjab Education Code could be treated as Code containing directions for regulating education sector---Neither Board nor any other person or authority could be declared to be bound to follow same to exclusion of other powers vested in Board or in violation of rights of parties---Abilities of children of particular age could not be taken into consideration for applying age restrictions as same would tantamount to restricting right of an individual to receive education which was his fundamental right and was included in right to life provided in Arts. 9 & 25-A of the Constitution---Board's Committee was not empowered to impose restriction on education that was neither provided by Constitution nor by Punjab Free and Compulsory Education Act, 2014---Decision of Board to impose age restriction on education by restricting admission to Class-IX did not have support or backing of any law---High Court declared that placing of age restriction through R.1-A of Chap.19 of Calendar of Board of Intermediate and Secondary Education Lahore for seeking admission into Class-IX was ultra vires the Constitution and Punjab Free and Compulsory Education Act, 2014---Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court in exercise of Constitutional jurisdiction---Intra court appeal was dismissed in circumstances.

Mehboob Azhar Sheikh and Ali Masood Hayat for Appellant.

Mian Shakil Ahmad, Sheraz Zaka, Ch. Majid Hussain, Muhammad Shahid Siddique Chaudhry, Aftab Manzoor Majoka, Qazi Muhammad Arshad Bhatti, Asif ur Rehman, Mian Muhammad Saeed, Abdul Sattar Junaid, Sultan Ali Dogar, Muhammad Yousaf, Abid Hussain Khichi, Javed Abbas Mirza, Mian Shakil Ahmad, Mian Muhammad Ali, Malik Muhammad Riaz Awan, Ch. Javed Ahmed Goraya, Muhammad Jahanzaib, Malik Tariq Ali Jadran, Ehsan Ullah Ranjha, Ch. Majid Hussain, Ghulam Nabi Shaheen, Muhammad Amin Gill, Asghar Mehmood Sheikh, Shehzad Ahmad Bhatti, Atif Ali Bukhari, Syed Habib Ullah, Abdulah Malik , Osama Memon, Naik Muhammad Chaudhry, Waqar Ahmad Khan and Ch. Sadaqat Ali for Writ Petitioners.

Sh. Usman Karim ud Din, Ch. Masood Ahmad Zafar and Ghulam Nabi Shaheen for Respondents.

P L D 2019 Lahore 43

Before Shahid Waheed, Atir Mahmood, and Shahid Jamil Khan, JJ

LAWYERS FOUNDATION FOR JUSTICE through Chairman---Petitioner

versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.196881 of 2018, decided on 31st August, 2018.

(a) Constitution of Pakistan---

----Art. 270-AA---Validation and affirmation of laws--- Object, scope and purpose---Provision of Art.270-AA of the Constitution is a constitutional device to confer validity upon specified laws by exercise of constituent power and to give them status of competently enacted laws, to remove blemish, as to their maker---Such is necessary in order to overcome unconstitutionality of laws for lack of legislative power because under Constitution, legislative power vested in organs is institutionalized by the Constitution and not in an authority outside contemplation of the Constitution.

Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 rel.

(b) Constitution of Pakistan---

----Arts. 89, 199 & 270-AA(2) [as amended by Constitution (Eighteenth Amendment) Act, 2010]---National Accountability Ordinance (XVIII of 1999), Preamble---Constitutional petition---National Accountability Ordinance (XVIII of 1999), vires and interpretation of---Word 'Until'---Scope---Petitioner assailed vires of National Accountability Ordinance, 1999 on grounds that after 18th Amendment to the Constitution, it had lost protection of Provisional Constitutional Order No. 1 of 1999 and was no more a valid piece of legislation---Validity---Provisions of National Accountability Ordinance, 1999 was a valid law before Constitution (Eighteenth Amendment) Act, 2010 came into force and since National Accountability Ordinance, 1999 had not been excluded in Art.270-AA(2) of the Constitution it continued to remain in force---Continuance of National Accountability Ordinance, 1999 was not upon compliance with provisions of Art.89 of the Constitution---Word 'until' in Art.270-AA(2) of the Constitution was not used entirely to connote a duration and it meant that existing laws including National Accountability Ordinance, 1999 were to continue so long as they were not altered, repealed or amended---While promulgating Constitution (Eighteenth Amendment) Act, 2010, Legislature was of conscious of facts and time limitation prescribed in Art. 89 of the Constitution--- By virtue of Art.270-AA(2) of the Constitution, it adopted laws including National Accountability Ordinance, 1999 made during period of Emergency subject to provisions of Constitution (Eighteenth Amendment) Act, 2010---High Court declared that National Accountability Ordinance, 1999 still existed and was in force---Constitutional petition was dismissed in circumstances.

Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice Islamabad and others PLD 2009 SC 879; Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Wasim Sajjad and others v. Federation of Pakistan through Secretary, Cabinet Division and others PLD 2001 SC 233; Watan Party through Punjab President Ladies Wing Tasneem Shaukat Khan v. Chief Executive President of Pakistan and another PLD 2003 SC 74; Pakistan Lawyer Forum and others v. Federation of Pakistan and others PLD 2005 SC 719; Tikka Iqbal Muhammad Khan and others v. General Pervez Musharraf and others PLD 2008 SC 178; Miss Asma Jilani v. The Government of the Punjab and another PLD 1972 SC 139; Mehmood Khan Achakzai and others v. Federation of Pakistan PLD 1997 SC 426; Black's Law Dictionary, Sixth Edn. p.1550; United Provinces v. Mt. Atiqa Begum and others AIR 1941 FC 16; Badrul Haque Khan v. (1) The Election Tribunal, Dacca (2) The Chief Election Commission and (3) Jamalus Sattar PLD 1963 SC 704; Malik Muzaffar Khan v. Government of the Punjab and 2 others 1980 SCMR 121; Sally Textile Mills Limited v. Collector of Customs, Customs House, Karachi 1991 SCMR 721; Justice Hasnat Ahmed Khan and 3 others v. Registrar Supreme Court of Pakistan and others PLD 2010 SC 806; Justice Hasnat Ahmad Khan and others v. Federation of Pakistan/State PLD 2011 SC 680; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 and Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others PLD 2001 SC 607 ref.

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

----O. I, R. 10---Constitution of Pakistan, Art. 199---Constitutional petition---Necessary and proper party---Applicants sought their inclusion in applications as they were necessary and proper parties---Validity---Necessary parties consisted of persons who 'ought to have been joined' that was persons necessary to constitution of suit/petition without whom, no decree/order could be passed at all---Proper party was a party whose presence before court was necessary to enable the court to effectually and completely adjudicate upon and settle all questions involved in proceedings---Applicants intended to appear in main case so as to assist the court for proper adjudication of questions of law raised by petitioner who filed Constitutional petition---High Court declined to allow applicants to join proceedings as respondents on basis of such averments---Application was dismissed in circumstances.

Syntron Limited v. Huma Ijaz and others 2014 SCMR 531; Syed Ahmed Saeed Kirmani v. Punjab Province and others 1982 CLC 590 and Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463 ref.

A.K. Dogar for Petiitoner.

Imran Aziz Khan and Tahir Mehmood Ahmad Khokhar, DAGs along with Raja Muhammad Arif, Addl. Advocate General, Punjab for Respondent No.1.

Jahanzeb Khan Bharwana, Addl. Prosecutor General, NAB and Arif Mehmood Rana, Special Prosecutor, NAB for Respondent No.2.

P L D 2019 Lahore 68

Before Muhammad Sajid Mehmood Sethi, J

ADNAN ANWAR and another---Appellants

Versus

MUHAMMAD SHARAIZ HUSSAIN and another---Respondents

Regular Second Appeal No.101289 of 2017, decided on 4th September, 2018.

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

----Ss. 148 & 151---Extension in time---Discretion of court---Extent---Where one party has made an offer to the other for performance of an act within a particular period of time and such act is not performed, the court without consent of party making an offer cannot enlarge time while exercising its powers under S.148 or S.151, C.P.C.---Time could be further granted only with consent of party.

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

----O. XII, R. 6, & Ss. 148 & 151---Specific Relief Act (I of 1877), S.12---Admissions---Passing of judgment---Procedure---Plaintiff entered into agreement to purchase a house owned by defendants---Plaintiff filed suit for specific performance against defendants and suit was decreed with direction to plaintiff to make balance payment within 15 days, failing which suit was to be dismissed per se---Defendants assailed judgment and decree before Lower Appellate Court but same was dismissed---Plea raised by defendants was that both courts below wrongly invoked provisions of O. XII, R.6, C.P.C. and statement made by defendants was conditional---Validity---In order to attract provisions of O. XII, R.6, C.P.C. admission should necessarily be unequivocal, clear, unconditional and unambiguous---Courts while dealing such application for grant of decree must exercise its discretion in a judicial manner, subject to qualification regarding maintainability of suit on any legal objection going to very root of the matter---Court should not have granted decree on admission without resorting to objections raised---While passing judgment and decree, real question in controversy remained undetermined which could not be decided without adducing evidence by parties on all issues including those two which were subject matter of application under O. XII, R. 6, C.P.C.---High Court in exercise of appellate jurisdiction set aside judgment and decree passed by two courts below and remanded matter to Trial Court for decision afresh after framing of issues and recording of evidence---Second appeal was allowed accordingly.

Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan PLD 1966 SC 612; Gulzar Khan v. Mst. Shahzadi Bibi and another PLD 1974 SC 204; Saudi-Pak Industrial and Agricultural Investment Company (Pvt.) Ltd, Islamabad v. Messrs Allied Bank of Pakistan and another PLD 2003 SC 215; Rasheedur Rehman Khan v. Mian Iqbal Hussain PLD 2006 SC 418; Mst. Maryam Bibi and others v. Muhammad Ali through L.Rs. 2007 SCMR 281; Sheikh Rehmat Ilahi v. Mohammad Hayat Khan and others AIR (30) 1943 PC 208; Abdul Soban v. Purna Chandra Dey and others PLD 1956 Dacca 29; Concentrate Manufacturing Company of Ireland and 3 others v. Seven Up Bottling Company (Private) Limited and 3 others 2002 CLD 77; Parveen Umar and 3 others v. Sardar Hussain and 5 others 2003 YLR 3097; Bank Alfalah Limited v. Iftikhar A. Malik 2003 CLD 363; Muhammad Saleem and others v. Marryam Bibi and others 2007 CLD 1301; Mian Absar Akhtar and others v. Zarai Taraqiati Bank Ltd and others 2007 CLD 1620; Muhammad Naveed v. Teejays Exclusive (Pvt.) Ltd. through Managing Director and another 2009 CLC 883; Messrs Rana Ashfaq Rice Mills, Narowal through Managing Partner v. Director-General of Income-Tax, Sialkot and 2 others 2009 PTD 2159; Mst. Ishrat Bano v. Noor Hussain and 2 others 2010 YLR 2452; Naseem Akhtar v. Abdul Rehman Khan 2017 CLC Note 79 and Wazir and others v. Haji Dilbar and others 2017 CLC Note 83 ref.

Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad (2017 SCMR 1696); Mst. Zubeda Begum v. M/s. Long Life Builders 1995 CLC 1290 and Zulfiqar v. Muhammad Jan 2002 CLC 932 rel.

(c) Constitution of Pakistan---

----Art. 10-A---Fair trial and due process---Scope and extent---Provisions of Art. 10-A of the Constitution enshrine right to fair trial and due process which includes framing of issues in view of divergent pleadings of parties, recording evidence and hearing arguments---Any process falling short of such ingredients not only constitutes patent illegality but violates such provisions of the Constitution---Court of law is under a legal obligation to hold fair trial as per Art.10-A of the Constitution.

Muhammad Nasim Kashmiri for Appellants.

Abdul Hameed Gujjar and Ahmad Hassan Anwari for Respondents.

P L D 2019 Lahore 76

Before Shahid Waheed and M. Sohail Iqbal Bhatti, JJ

ABDUL JABBAR SHAHID and others---Appellants

Versus

NATIONAL BANK OF PAKISTAN and others---Respondents

F.A.O. No.311 of 1995, decided on 15th April, 2015.

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

----O. XXI, Rr. 66, 67, 68 & O. V, Rr. 17 & 20---Execution of decrees and orders---Public auction of immoveable property to satisfy a decree/order---Compliance of mandatory provisions relating to such auction(s)---Obligations and duties of Executing Court---Principles and scope---Executing Court was duty bound to satisfy itself that all conditions of service of notice upon judgment-debtor(s) were complied with and such court was entrusted with duty determine valuable rights of the parties with proper application of the law---Efforts of process-server under O.V C.P.C. was to be stated in the report of the process -server, who was to take pains to find whereabouts of judgment-debtors and visit locations where they were likely to be present and make enquiries about their whereabouts---Executing Court was obliged to examine the bailiff or process-server and to satisfy itself that conditions of O.V, R. 17 C.P.C. had been fulfilled---Without due service of notice under O. XXI, R. 66 C.P.C., Executing Court could not proceed further in the sale of attached property through public auction and non-compliance of mandatory conditions was a material irregularity which vitiated the public auction---Executing Court could not delegate powers to Court Auctioneer to draw terms and conditions of the sale nor the Court Auctioneer on his own, could issue proclamation of sale, and publication of notice of sale by a Court Auctioneer was an unauthorized act and would void auction of a property---Omission of reserve price in proclamation of sale was a fatal error which could make whole auction proceedings invalid---Whilst provisions of O.XXI, R.67 C.P.C. were not mandatory in nature, however substantial compliance with the same was essential---Proclamation of sale was to state whether time frame of sale / auction of property prescribed in O.XXI, R.68 C.P.C. was complied with and omission of dates on the proclamation of sale of such property was non-compliance of the O.XXI, R.68 C.P.C.---Powers vested in Executing Court to confirm sale were judicial and not ministerial and absence of objection to an auction report or auction process did not absolve the Executing Court from responsibility to examine the same; and confirmation of sale may be disallowed by the Executing Court if the same was a nullity in law, prima facie illegal, or suffered from such invalidity which was self-evident or apparent on face of record; or for any other reason it was not fit to be confirmed.

Messrs Lanvin Traders, Karachi v Presiding Officer Banking Court-II Karachi and others 2013 SCMR 1419; Messrs Nice "N" Easy Fashion (Pvt.) Ltd and others v Allied Bank of Pakistan and another 2014 CLD 1404; National Bank of Pakistan and 117 others v Saf Textile Mills Ltd and another PLD 2014 SC 283; Vannisami Thevar and another v Periayaswami Thevar and another AIR 1917 Mad. 176, Sm. Bhabasundari Dassi v. Gopeswar Auddy and others AIR 1941 Calcutta 159; Al Hassan Feeds through Syed Abbas Hassan Shah and another v United Bank Ltd and 6 others PLD 2004 SC 144; Muhammad Ikhaq Memon v Zakaria Ghani and others PLD 2005 SC 819 and Mst. Anwar Sultan through L.Rs v Bank Al-falah Ltd and others 2014 SCMR 1222 ref.'

Parasurama Odavar Appadurai Chetty and other's case AIR 1970 Mad. 271; Tota v Badri Pershad AIR 1930 Lah. 192; Tripura Modern Bank Ltd v. Bansen and Co AIR 1952 Cal. 781; Syed Iqbal Hussain v Mst. Sarwari Begum PLD 1967 Lah. 1138; Siraj Din v Mst. Iqbal Begum PLD 1968 Lah.639; Abdul Salam v. Mrs. Tahira Zaidi 1984 CLC 2855; Syed Muhammad Anwar Advocate v. Sheikh Abdul Haq 1985 SCMR 1228; Mst. Salima Khatoon v. M. Anzar Hussain 1989 CLC 691; Syed Mazhar Ali Shah v. Shah Muhammad 1990 MLD 1070; Muhammad Amin v Karachi Building Control Authority 1992 CLC 691, Mst. Zubeda Begum v M/s. Long Life Builders 1995 CLC 1290; Zulfiqar v. Muhammad Jan 2002 CLC 932; Messrs Mahmood Brothers through Mahmood Ahmed and another v. National Bank of Pakistan through Manager and another 2004 CLD 771; Muhammad Asghar and others v. Qamar Din PLD 2005 Lah. 240; Balwant Rai Kumar v. Smt. Amriti Kaur AIR 1961 Punjab 495; Brig (Retd) Mazhar ul Haq and another v. M/s. Muslim Commercial Bank Limited, Islamabad and another PLD 1993 Lah. 706; Mst. Zainab Bibi v. Allied Bank of Pakistan Limited and others 2003 YLR 3274; Appu alias Subramania Patter v. O. Achuta Menon and others AIR 1926 Madras 755; Muhammad Hassan v Messrs Muslim Commercial Bank Ltd. through Branch Manager and 3 others 2003 CLD 1693; Ghulam Abbas v. Zohra Bibi and another PLD 1972 SC 337; Yakin ud Din Khan Hazari Gir and others AIR 1929 Lah. 441; Liaqat Ali v. Bashiran Bibi and 9 others 2005 CLC 11 and Muhammad Attique v. Jami Limited and others PLD 2010 SC 993 rel.

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

----O. XXI, Rr. 66, 67 & 68---Limitation Act (IX of 1908), Arts. 166 & 181---Execution of decree---Public auction---Objection petition/ application to set aside auction---Limitation---Computation of period of limitation---For an objection application merely for setting aside sale where auction itself had not been questioned to be void and without jurisdiction; then limitation for such objection petition/application would be one month as prescribed by Art.166 of the Limitation Act, 1908---If the sale was questioned on the basis of being null and void and of no legal effect, then Art. 166 of the Limitation Act, 1908 would have no application---Application contending that auction was not conducted in accordance with provisions of Rr.66, 67 & 68 of O. XXI, C.P.C. would be governed by Art.181 of the Limitation which prescribed a limitation period of 3 years.

Mst. Manzoor Jahan Begum and others v. Haji Hussain Bakhsh PLD 1966 SC 375 and Muhammad Attique v. Jami Limited and others PLD 2010 SC 993 rel.

(c) Administration of justice---

----Non-disposal of pending miscellaneous application while deciding main case---Effect---Non-disposal of pending miscellaneous application while deciding the main case vitiated the final order.

Rehmat Ali Kohar v. Mst. Saardaran Bibi and 15 others PLD 1986 Lah. 283; Muhammad Umar v. Muhammad Oasim and another 1991 SCMR 1232; Pak Carpet Industries Ltd v. Government of Sindh and 2 others 1993 CLC 334; Khair Deen v. Rehm Deen and 4 others 1996 CLC 1731 and Azra Manzoor Qureshi v. Faysal Bank Limited and 2 others 2005 CLD 1417 rel.

Imtiaz Rashid Siddique and Tahir Atique Piracha for Appellants.

Abid Hussain for Respondent No.1.

Asim Hafeez for Respondents Nos. 2 to 4.

Ali Zafar Syed and Zahid Nawaz Cheema for Respondent No.5.

P L D 2019 Lahore 97

Before Shahid Bilal Hassan, J

MUHAMMAD RIAZ and others---Petitioners

Versus

QAIM ALI and others---Respondents

Civil Revision No.1744 of 2011, decided on 11th September, 2018.

Specific Relief Act (I of 1877)---

----S. 42---Suit filed by plaintiffs was for declaration only without seeking consequential relief of possession---Effect---Trial Court decreed the suit in favour of plaintiffs but lower Appellate Court dismissed the same---Validity---Plaintiffs failed to claim consequential relief of possession, so lower Appellate Court when found plaintiffs entitled to decree for declaration by concurring with findings of Trial Court should have allowed them to amend the plaint by adding a prayer for possession and would have ordered to affix appropriate court fee and then to grant them relief even though they had not specifically asked for the same instead of non-suiting them on the basis of technicalities---High Court directed that claim of consequential relief in the form of possession was to be read as part of plaint and suit was decreed in favour of plaintiffs for declaration along with consequential relief---Revision was allowed in circumstances.

Dilmir v. Ghulam Muhammad and 2 others PLD 2002 SC 403 and Ali Muhammad and another v. Muhammad Bashir and another 2012 SCMR 930 ref.

Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR 318; Altaf Hussain alias Mushtaq Ahmed v. Muhammad Din and others 2010 CLC 1646 and Muhammad Yar v. Muhammad Bukhsh 2017 CLC Note 11 fol.

Aftab Hussain Bhatti for Petitioners.

Tariq Bashir for Respondent No.3.

P L D 2019 Lahore 102

Before Mirza Viqas Rauf, J

MAQSOOD PERVAIZ CH.---Petitioner

Versus

Mst. NAUSHEEN CHAUDHARY and others---Respondents

Writ Petition No.27141 of 2015, Heard on 15th November, 2018.

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

----S. 17-A---Suit for recovery of maintenance allowance filed by daughter who had attained majority---Daughter living separately from father in circumstances where father had already made financial arrangements for daughter---Effect---Daughter, who was aged 35 years and allegedly remained unmarried, filed a suit against her separated parents for recovery of maintenance allowance---Family Court fixed the interim maintenance @ Rs.18,000/- with the direction to the father to pay the maintenance to the daughter---On failure to pay the interim maintenance, the Family Court decreed the suit by invoking the provisions contained in S.17-A of the Family Courts Act, 1964 and directed the father to pay Rs.20,000/- per month with 20% annual increase from the date of institution of the suit till marriage of the daughter---Father contended that he could be held responsible for payment of maintenance to the daughter only when she showed obedience to him; that his daughter was a major and she was avoiding living with him---Validity---Daughter was a major having age of 35 years and she had instituted the suit against both her parents---Daughter lived separate from her father since separation of matrimonial tie of her parents---Admittedly, soon after separation, the father had arranged a source of maintenance for the daughter in the shape of house handed over to the mother, who initially maintained her through the income of rent---Said fact clearly showed that the father was well aware of his responsibilities to maintain her daughter and for that very purpose he had made sufficient arrangements---Strangely, the Family Court had only burdened the father with the liability of maintenance even though the daughter had claimed maintenance from both her parents---Decree for maintenance passed by Family Court was set-aside in circumstances---High Court directed that suit filed by daughter for recovery of maintenance allowance shall be deemed to be pending before the Family Court, which shall decide the same afresh strictly in accordance with law---Constitutional petition was allowed accordingly.

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

----S. 17-A---Non-compliance of order for interim maintenance---Effect---Decree for maintenance---Family Court, duty of---Scope---Family Court was vested with the power to pass an order for interim maintenance at any stage of proceedings in a suit for maintenance under S.17-A of the Family Courts Act, 1964 to be paid to a child by the fourteenth day of each month, failing which the Court may strike off the defence of defendant and decree the suit but such powers were not to be exercised arbitrarily, illegally and whimsically---Even in case of non-compliance of order of interim maintenance, the Family Court was obliged under S.17-A of the Family Courts Act, 1964 to look into the contents of plaint and other supporting documents on the record of the case.

(c) Words and phrases---

----"Child"---Meaning.

New International Webster's Comprehensive Dictionary of the English Language (Deluxe Encyclopedie Edition); Black's Law Dictionary (Ninth Edition); The Chambers Dictionary 12th Edn.; GEM Advanced Practical Dictionary (English to English and Urdu With Brief General Knowledge) and Legal Terms and Phrases Judicially Defined from 1947-2012 (2013 End.) ref.

(d) Family Courts Act (XXXV of 1964)---

----S. 17-A---Suit for recovery of maintenance allowance filed by daughter who had attained majority---Family Court could fix the interim maintenance of a child but the daughter in the present case was admittedly neither of tender age, infant, immature, descendant or young, rather she was aged about 35 years, thus, the order fixing the interim maintenance was not tenable on such score alone---Constitutional petition was allowed accordingly.

(e) Family Courts Act (XXXV of 1964)---

----S. 14---Family Court Rules, 1965, R. 22---Appeal against order of Family Court---Limitation---Condonation of delay---Appellate Court, powers of---Scope---Appellate Court dismissed appeal filed against order of Family Court as the same was barred by 70 days---Legality---In terms of R.22 of The Family Courts Rules, 1965, an appeal under S.14 of the Family Courts Act, 1964 shall be preferred within thirty days of the passing of decree or decision but Appellate Court was vested with the power to condone any delay in filing the appeal on showing sufficient cause by the appellant---Perusal of record of present case clearly revealed that appellant provided sufficient explanation resulting into delayed appeal but same was not attended properly by the Appellate Court---Even otherwise, when decree/order under appeal was apparently suffering from illegalities and material irregularities, the Appellate Court should have exercised its jurisdiction with great care and caution---Order passed by Appellate Court was set-aside accordingly.

Liauqat Ali Butt for Petitioner.

Saqib Haroon Chishti for Respondent No.1.

P L D 2019 Lahore 111

Before Muhammad Tariq Abbasi, Mirza Viqas Rauf, and Sardar Muhammad Sarfraz Dogar, JJ

WAQAS AMJAD and others---Applicants

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Review Application No.45 of 2016, decided on 17th December, 2018.

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

----S. 114 & O. XLVII, R. 1---Review---Scope---Although "review" had a very limited scope but the same did not mean abdication of the power of review in an omnibus fashion---Intent of Legislature while incorporating the power of review was that no error in the judgment/order which was so manifestly floating on the surface should be allowed to perpetuate.

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

----S.9 ---Civil Procedure Code (V of 1908), S.114 & O. XLVII, R.1---Law Reforms Ordinance (XII of 1972), S.3 & proviso---Review---Nature of S. 9 of the Illegal Dispossession Act, 2005---Application of proviso to S. 3 of the Law Reforms Ordinance, 2009 upon cases where statute did not provide specific right of appeal---Scope---Question before the High Court was whether in the absence of remedy of appeal in the Illegal Dispossession Act, 2005, intra-court appeal relating to the same, can be dismissed under proviso to S. 3 of the Law Reforms Ordinance, 1972 and whether S.9 of the Illegal Dispossession Act, 2005 conferred right of appeal---Held, that right of appeal was creation of statute and such right could not be availed unless it was conferred in a clear manner by some enactment or statute or rules having sanctity of law and the said right could not arise by implication---High Court observed that had the intent of the Legislature in S. 9 of the Illegal Dispossession Act, 2005 been to provide remedy of appeal as contained in the Criminal Procedure Code, 1898 there was no need to later amend the Illegal Dispossession Act, 2005 in 2017 and inserting a specific right of appeal therein---High Court held that in absence of specific remedy of appeal, intra-court appeal could not have been dismissed, and the same was deemed to be pending before the High Court---Review was allowed, accordingly. R.M.A.R.A. Adaikappa Chettiar and another v. R. Chandrasekhara Thevar PLD 1947 PC 279; Muhammad Hussain and another v. Additional Sessions Judge, Multan and 2 others PLD 2013 Lah. 1; Syed Masroor Shah and others v. The State PLD 2005 SC 173; Mst. Inayatan Khatoon and others v. Muhammad Ramzan and others 2012 SCMR 229 and Mian Sharif Shah v. Nawab Khan and 5 others PLD 2011 Pesh. 86 rel.

R.M.A.R.A. Adaikappa Chettiar and another v. R. Chandrasekhara Thevar PLD 1947 PC 279 distinguished.

A.K. Dogar and Nadeem Sarwar for Applicants.

Respondents Nos. 2 to 4: Ex parte.

P L D 2019 Lahore 119

Before Shahid Waheed, J

ABDUL WAHAB BALOCH---Petitioner

Versus

IMRAN AHMAD KHAN NIAZI and others---Respondents

Election Petition No.46 of 2018, decided on 19th November, 2018.

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

----Ss. 142 & 141---Election Tribunal---Limitation for filing election petition before Election Tribunal---Period of limitation for filing election petition before Tribunal shall be computed from the date of publication in the official Gazette of the names of returned candidates.

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

----Ss. 144(4) & 145---Civil Procedure Code (V of 1908), O. VI, R.15---Election petition---Verification of---Valid verification of election petition---Principles enumerated.

Following are the principles qua valid verification of election petition:

i) that election petition is to be verified on oath. Such verification is not to be signed in routine by the deponent but being on oath it requires to be attested either by the Oath Commissioner or any other authority competent to administer oath, which is to be practically administered;

ii) that verification on oath of an election petition though mannered in accordance with civil law yet it entails upon penal consequences and hence is mandatory;

iii) that there is no material difference between a verification on oath and a verification through an affidavit for, that is an affidavit is a sworn statement in writing while a verification is confirmation in law by Oath in writing to establish the truth, accuracy and reality of a statement of fact;

iv) the purpose of taking oath is to bind down the deponent to speak truth otherwise he or she would be liable for the curse of Allah Almighty, if the truth is not spoken;

v) that request for rectification of defective verification may be considered by the Tribunal according to the settled principle relating to amendment in the pleading during period of limitation for filing of election petition but once limitation period has already expired the defect in verification cannot be allowed to be removed;

vi) that the objection that election petitioner in his verification has failed to give reference to the paragraphs of the pleadings as to what he happened to verify on his own knowledge and what he happened to verify upon information received and believed to be true is not very material because at times the entire statement happens to be given on the basis of one's knowledge and at times on the basis of information received and, thus, it depends upon the facts of each case, as to what category assertions belong to;

vii) that the amended election petition is also required to be verified in accordance with Order VI, Rule 15 C.P.C.;

viii) that election petition is not required to be supported by a full affidavit. Short affidavit is sufficient if it duly fulfills the requirement of Order VI, Rule 15 C.P.C.;

ix) that the words "solemn affirmation before me" in the stamp of the Oath Commissioner would be sufficient to indicate that election petitioner was duly present before the Oath Commissioner at the time of attestation and was administered oath;

x) that identification of the deponent/election petitioner before Oath Commissioner should be made with reference to his/her National Identity Card;

xi) that identification of the deponent/ election petitioner by an Advocate who has mentioned of knowing the election petitioner personally is sufficient for the purpose of identification before the Oath Commissioner;

xii) that identification of the deponent by an Advocate, whose name and particulars are not mentioned on the verification, is not valid;

xiii) that the date and place of verification, that is, at what date and at what place the verification was made by the deponent should be specified;

xiv) That only that affidavit shall be treated valid for the purpose of verification of the election petition which is in conformity with the requirements mentioned in the High Court Rules and Orders read with Order XIX, C.P.C.; and, xv) that in order to meet with the real object and the spirit of the election laws which require verification on oath, Oath Commissioner at the time of verification of the election petition and also the affidavit, must record and endorse the verification/ attestation that the oath has been actually, physically and duly administered to the election petitioner/deponent; and it is the duty of election petitioner to insist and ensure that the said endorsement is made. [p. 139] B

Zia ur Rehman v. Syed Ahmad Hussain and others 2014 SCMR 1015; Lt. Col.(Rtd) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana 2015 SCMR 1585 and Muhammad Nawaz Chandio v. Muhammad Ismail Rahu 2016 SCMR 875 ref.

Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250; Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600; Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362; Moulvi Abdul Qadir and others v. Moulvi Abdul Wassay and others 2010 SCMR 1877; Zia ur Rehman v. Syed Ahmad Hussain and others 2014 SCMR 1015; Inayatullah v. Syed Khurshid Ahmad Shah and others 2014 SCMR 1477; Hina Manzoor v. Malik Ibrar Ahmed and others PLD 2015 SC 396; Ch.Zawwar Hussain Warrich v. Muhammad Aamir Iqbal and others 2015 SCMR 1186; Lt. Col.(Rtd) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585; Sardar Muhammad Naseem Khan v. Returning Officer and others 2015 SCMR 1698; Muhammad Ibrahim Jatoi v. Aftab Shaban Mirani and others 2016 SCMR 722; Feroze Ahmad Jamali v. Masroor Ahmad Khan Jatoi 2016 SCMR 750; Ch. Muhammad Ayaz v. Asif Mehmood and others 2016 SCMR 849; Muhammad Nawaz Chandio v. Muhammad Ismail Rahu 2016 SCMR 875 and Sultan Mahmood Hinjra v. Malik Ghulam Mustafa Khar and others 2016 SCMR 1312 rel.

(c) Elections Act (XXXIII of 2017)-

----S. 144(4)---Civil Procedure Code (V of 1908), O. VI, R. 15---Election petition---Verification of---Non-compliance of mandatory requirements of S.144(4) of the Elections Act, 2017---Effect---Defective/ incomplete or non-verification of election petition and annexure(s)---Obligations of petitioner vis-à-vis verification of his/her pleadings on oath---Non-compliance of O.VI, R.15, C.P.C.---Effect---Petitioner before the Election Tribunal was required to give reference to paragraphs of the petition which he was verifying to be correct according to his knowledge and those paragraphs which were correct according to his belief and non-compliance of said requirements would render election petition as not valid.

Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600 distinguished.

(d) Document---

----Construction of---Proper construction of a document was a question of law and not a question of fact.

Gulzar Khan v. Shahzad Bibi and another PLD 1974 SC 204; Amir Abdullah Khan through Legal Heirs and others v. Col. Muhammad Attaullah Khan PLD 1990 SC 972 and Mst. Maryam Bibi and others v. Muhammad Ali through L.Rs. 2007 SCMR 281 rel.

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

----S. 144(4) --- Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---Verification of---Non-compliance of mandatory requirements of S.144(4) of the Elections Act, 2017---Effect---Defective/ incomplete or non-verification of election petition and annexure(s)---Non-compliance of O.VI, R.15, C.P.C.---Effect---Importance and Legislative intent and object of requirement of verification on oath of election petition---Scope----Oath was one of the important components of verification of election petitions and provided justification to bring result of an election under judicial scrutiny and control, so as to ensure that the true will of the people was reflected in the results; and, that only persons who were eligible and qualified under the Constitution obtain the representation---Other object for the verification of pleadings on oath was to fix responsibility for averments and allegations in an Election Petition on the person signing such verification and, at the same time, to discourage wild and irresponsible allegation(s)---Law ordained parties to approach Election Tribunal with genuine grievance on truthful facts and where false facts were pleaded on oath and false evidence was produced to mislead the Election Tribunal calling upon it to interfere with people's verdict of election, misconduct of the party was always viewed seriously by initiating criminal proceedings against it under P.P.C.---Omission of the word "oath" in attestation of an Oath Commissioner was to lead to the conclusion that verification of an election petition was not made on oath and was thus not in accordance with O.VI, R.15, C.P.C.

(f) Maxim---

----"Ambiquitas verborum patens nulla verificatione excluditur"---Patently ambiguous on its face cannot be made clear by external proof---Where the document or deed is ungrammatical and could not be read literally so as to give any clear meaning without adding or removing some words, there was patent ambiguity and oral evidence was not admissible to supply the defect.

Mubeen-ud-Din Qazi for Petitioner.

Babar Awan, Sajid Munawar Qureshi and Muhammad Ilyas Khan for Respondent No.1.

Respondent Nos. 2 to 10: Ex parte.

Shan Gul and Muhammad Arif Raja, Additional Advocate Generals, Punjab: Amicus curiae.

P L D 2019 Lahore 145

Before Amin ud Din Khan and Shakil ur Rehman Khan, JJ

Malik IQBAL HASSAN---Appellant

Versus

DEFENCE HOUSING AUTHORITY through Secretary and others---Respondents

I.-C.A. No.632 of 2015, decided on 25th October, 2018.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3(2)---Constitution of Pakistan, Art. 199---Civil Procedure Code (V of 1908), S.12(2)---Intra-court appeal---Scope---Order passed in constitutional petition assailed through application under S.12(2) C.P.C.---Order passed in constitutional petition was assailed through application under S.12(2) C.P.C. but same was dismissed being time barred---Appellant had challenged the said order through intra court appeal---Validity---Law did not provide substantive right of appeal under C.P.C. against the decision on application under S.12(2) C.P.C.---Right of appeal was not available in the present matter as constitutional petition was decided and application under S.12(2) C.P.C. had been dismissed---Order passed in constitutional petition which was subject matter of application under S.12(2) C.P.C. could not be treated as an order passed while exercising original civil jurisdiction---Right of filing intra court appeal was confined to those orders of Single Judge of High Court which were passed under Art.199 of the Constitution---Subject matter of present appeal being an order passed under S.12(2) C.P.C. was not appealable---Right of appeal was substantive right unless it was provided under the statute it could not be exercised---Subject matter of constitutional petition was not the proceedings from any suit filed before Civil Court or from civil jurisdiction---Appeal being not competent was dismissed in circumstances.

S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others 2013 SCMR 338 and Saif-ur-Rehman Toor and another v. Registrar, Cooperative Society Punjab, Lahore and 11 others 2002 YLR 3343 rel.

(b) Constitution of Pakistan---

----Art. 175(2)---Jurisdiction of Court---No Court could exercise any jurisdiction in any matter before it unless such jurisdiction had been conferred upon it by the Constitution itself or under any law.

(c) Appeal---

----Right of appeal was substantive right, unless it was provided under the statute it could not be exercised.

Bashir Hussain Khalid for Appellant.

P L D 2019 Lahore 148

Before Rasaal Hasan Syed, J

MAMDAN BIBI---Petitioner

Versus

ARIF HUSSAIN SHAH---Respondent

Civil Revision No.1990 of 2016, heard on 6th November, 2018.

Punjab Pre-emption Act (IX of 1991)-

----S. 13---Transfer of Property Act (IV of 1882), S.52---Civil Procedure Code (V of 1908), O.I, R.10--- Suit for possession through pre-emption---Subsequent sale of suit land during pendency of suit---Lis pendens, principle of---Applicability---Impleadment of party---Issue, framing of---Scope---Defendant got recorded his statement in the suit that he had received Rs.100,000/- from the plaintiff and had no objection on decree of the suit if plaintiff was ready to deposit zar-e-soem---Plaintiff got recorded his statement that he had no objection to the payment of zar-e-soem and suit be decreed---Defendant thereafter transferred suit land further through mutation and an application for impleadment of a party was moved which was declined by the Trial Court but Appellate Court accepted the same and permitted for impleadment of applicant---Suit was decreed concurrently by the courts below---Contention of subsequent purchaser was that no proper issue was framed by the Trial Court---Validity---No application for framing of additional issues or recasting of existing issues was moved at any stage---Even no plea was raised in the appeal by the subsequent purchaser---Defendant-subsequent purchaser could not be allowed to raise the plea of non-framing of issues at the revisional stage---Subsequent sale mutation was hit by the principle of S. 52 of Transfer of Property Act, 1882---Defendant could not claim acquisition of any legal title nor defeat the decree against the transferor rather she (petitioner) having stepped into his shoes was bound by the decree passed against him---Any alienation of property pendente lite would be barred by the rule of lis pendens and it could not prejudice the rights of decree-holder---Transferee would be bound by the decree against the transferor---Subsequent transaction was hit by the rule of lis pendens---Defendant could not claim any independent right and would be deemed to have stepped into the shoes of transferor---Impugned judgments passed by the courts below did not suffer from any mis-reading or non-reading of evidence---Revision was dismissed, in circumstances. Mehr Din (represented by his Legal heirs) v. Dr. Bashir Ahmad Khan and 2 others 1985 SCMR 1 and Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 rel.

Khalid Pervaiz Warraich for Petitioner.

Mubarak Ahmed for Respondent.

P L D 2019 Lahore 153

Before Abdul Rahman Aurangzeb, J

MUHAMMAD TUFAIL---Petitioner

Versus

Mst. AKHTARI BEGUM---Respondent

Civil Revision No.598-D of 2017, heard on 3rd August, 2017.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 24---Suit for possession through pre-emption---Deposit of 'zar-e-soem' after statutory period---Effect---Extension of period for deposit of 'zar-e-soem'---Ignorance of law---Effect---Plaintiff filed suit on 04-12-2014 and Trial Court on the same day directed him to deposit 'zar-e-soem' till 05-01-2015---Pre-emptor deposited the 'zar-e-soem' on the said date but defendant filed application for dismissal of suit on the ground that 'zar-e-soem' was not deposited within time---Application for dismissal of suit was accepted and suit was dismissed concurrently---Contention of plaintiff was that for calculation of 30 days the day on which order was passed for depositing 'zar-e-soem' should be excluded---Validity---Trial Court had required the pre-emptor to deposit one third amount of sale price of the suit property in cash within such period as might be fixed but same could not be extended beyond 30 days from the date of filing the suit---Plaintiff filed suit on 04-12-2014 and on the same day Trial Court directed him to deposit one third of the sale price mentioned therein till the next date fixed by the Court i.e. 05-01-2015---Pre-emptor deposited the required amount on 05-01-2015 (Monday) beyond thirty days of filing of the suit---Trial Court was not competent to fix the date beyond 30-days for deposit of 'zar-e-soem'---Provision for deposit of 'zar-e-soem' was mandatory and not directory---If Trial Court by misconception or for any reason fixed the date beyond the period of 30-days even then it could not be the reason for extension of limitation---Period of thirty days should be counted from the day of filing of the suit---Pre-emptor was bound to deposit one third of sale price as soon as he instituted the suit in the court---Calculation of period for thirty days completed on 02-01-2015 (Thursday)---Plaintiff was bound to deposit zar-e-soem till 02-01-2015 rather till the date of 05-01-2015 fixed by the Trial Court---Starting and ending day of thirty days could not be excluded for deposit of one third amount of sale price---Pre-emptor was bound to deposit zar-e-soem within a maximum period of thirty days---Ignorance of law could not be an excuse in performance of an act which was mandatory under the law---Suit of plaintiff was rightly dismissed by the courts below---Revisional jurisdiction could not be exercised to interfere in the impugned orders in circumstances---Revision was dismissed accordingly.

I.M. Lall v. Gopal Singh and another AIR 1963 Punjab 378, V-50-C-105 at Dehli ref.

Hasnain Nawaz Khan v. Ghulam Akbar and another PLD 2013 SC 489; Liaqat Ali v. Aitzaz Ahmad 2015 YLR 709; Muhammad Ilyas and 4 others v. Munshi Khan 2003 CLC 1815; Khalid Mehmood v. Abdur Rasheed and another 2000 YLR 1249; Mian Muhammad Lutfi v. Mian Muhammad Talha Adil NLR 2000 Civil 422; Muhammad Jahangir v. Muhammad Abbas and 2 others 2004 CLC 538 and Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307 rel.

(b) Maxim---

----"A communi observentia non est recedendum"---Applicability.

(c) Words and phrases---

----'Beyond'---Meaning.

Chambers' Law Dictionary 12th Edn. rel.

Mian Muhammad Akram for Petitioner.

Waqi Hassan for Respondents.

P L D 2019 Lahore 160

Before Atir Mahmood, J

AMANAT ALI---Petitioner

Versus

Mst. NADIA SHAUKAT---Respondent

Writ Petition No.258984 of 2018, decided on 27th December, 2018.

(a) Family Courts Act (XXXV of 1964) [as amended by the Punjab Family Courts (Amendment) Act, 2015--

----S. 10(3)---"Khula"---Pre-trial proceedings---Reconciliation between parties---Not mandatory for Family Court seized of the matter of effect compromise or reconciliation between the parties, rather, the same was subject to the facts of the case or if the Court deemed it necessary---Where the wife had recorded her statement before the Family Court stating that she had developed hatred for her husband, and was unwilling to join him due to his cruel attitude and denied any possibility of reconciliation, it was not mandatory for the Family Court to effect compromise between the parties before passing decree for khula.

Al-Qur'an Sura Baqra Verse 229 and Mst. Bilqis Fatima v. Naimul Ikram Qureshi PLD 1959 Lah. 566 ref.

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

----Sched., Pt. I---"Khula"---Grounds---Aversion against husband---Islam did not allow subsistence of marriage if it meant forcing the wife into a hateful union---Wife could not be forced to live with her husband without her consent and liking---Wife was not required to present logical objective and sufficient reasons regarding her claim of khula, rather it was enough for her to show that she had developed a fixed aversion against her husband.

(c) Constitution of Pakistan--

----Art. 199---Constitutional petition---Maintainability---Where an appeal was specifically barred by the legislature, writ jurisdiction was also not available.

P L D 2019 Lahore 165

Before Mujahid Mustaqeem Ahmed, J

S.E. MEPCO and others---Appellants

Versus

JUDGE DISTRICT CONSUMER COURT and another---Respondents

F.A.O.No.134 of 2012, decided on 18th October, 2018.

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

----Ss.27, 28 & Preamble---Consumer Courts---Nature of jurisdiction---Duty of Consumer Court to determine its jurisdiction---Scope---Consumer Court established under the Punjab Consumers Protection Act, 2005 was not a court of general jurisdiction and it was duty of Consumer Court to examine allegations raised in a complaint before it in order to determine its jurisdiction in the matter---Vague and general allegations without raising any dispute about defective products or faulty services did not confer jurisdiction upon Consumer Court to adjudicate upon a matter and assume jurisdiction.

Sub-Divisional Officer (Operation), FESCO v. Muhammad Ilyas 2016 CLC 1417; Executive Engineer MEPCO, and another v. District Consumer Court and others F.A.O. No.125 of 2012; Askari Bank Ltd. and others v. Irfan Ahmed Niazi and others PLD 2016 Lah. 168 and Standard Chartered Bank (Pakistan) Limited through Manager v. Shafqat Ullah Tahir 2016 CLD 1546 rel.

Rao Muhammad Iqbal for Appellants.

P L D 2019 Lahore 169

Before Muhammad Farrukh Irfan Khan, J

SUI NORTHERN GAS PIPELINES LIMITED---Petitioner

Versus

WAFAQI MOHTASIB and others---Respondent

Writ Petition No.2360 of 2016, decided on 18th December, 2018.

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

----Arts. 2(1) & 9---Constitution of Pakistan, Art.199---Jurisdiction, functions and power of the federal Ombudsman/Mohtasib---Agency---Companies controlled and owned by Federal Government---Scope---Question before the High Court was whether the Sui Northern Gas Pipelines Limited Company fell within definition of "agency" under the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983---Held, that the Sui Northern Gas Pipelines Limited Company was a company owned and controlled by the Federal Government, therefore it fell within the definition of "agency" under the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 and subject to jurisdiction thereof.

The Managing Director, Sui Southern Gas Co. Ltd. v.Saleem Mustafa Shaikh and others PLD 2001 SC 176 rel.

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

----Arts. 9 & 11---Jurisdiction, functions and power of the Federal Ombudsman/Mohtasib---Maladministration---Scope---Action of an official agency if appearing to be unreasonable, unjust oppression and arbitrary shall amount to maladministration falling within ambit of Art.9 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983.

Almas Khanum v. Federation of Pakistan and others 1994 MLD 6 rel.

Secretary Wafaqi Mohtasib and 6 others v. Capital Steel Re-Rolling Mills through Partner and 2 others PLD 2012 Lah. 493 distinguished.

Khawaja Muhammad Asif v. Federation of Pakistan and others 2013 SCMR 1205; Sui Northern Gas Pipelines Ltd. v. Wafaqi Mohtasib and 3 others 2015 MLD 1029 and Peshawar Electric Supply Company Ltd. v. Wafaqi Mohtasib (Ombudsman) Islamabad and others PLD 2016 SC 940 ref.

Salim Baig for Petitioner.

Adnan Saeed for Respondent No.2.

Sardar M. Farooq for Respondent No.3.

P L D 2019 Lahore 174

Before Shahid Jamil Khan, J

Ch. MUHAMMAD NAWAZ HAFEEZ---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondent

Writ Petition No.233847 of 2018, decided on 8th October, 2018.

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

----S. 21(3)---Cantonment Board---Vice-President, removal of---No Confidence Motion against Vice-President tabled in an ordinary board meeting---Legality---Section 21(3) of the Cantonments Act, 1924 provided for a "specially convened meeting" to remove the Vice-President of the Cantonment Board, which envisaged sufficient notice to the parties for the purpose of resolution of the "No-Confidence Motion"---Impugned "No-Confidence Motion" moved against the Vice-President, in the present case, was in an ordinary board meeting, which was against the spirit of S.21(3) of the Cantonments Act, 1924---Impugned "No-Confidence Motion" was declared without lawful authority---Constitutional petition was allowed accordingly.

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

----Ss. 280 & 282---Cantonment Board---Necessary rules and by-laws under the Cantonment Act, 1924 for regulating the business of Cantonment Boards not framed---High Court directed the Federal Government to ensure framing of model by-laws for running the affairs and business of the Cantonment Boards, to bring certainty and uniformity in procedure and proceedings.

Khalid Ishaq for Petitioner.

Rana Amir Iftikhar for Respondents Nos. 2 and 3.

P L D 2019 Lahore 178

Before Jawad Hassan, J

TAHIR PERVAIZ, DIRECTOR-GENERAL, LEGAL AFFAIRS, PAKISTAN RAILWAYS---Petitioner

Versus

FEDERATION OF PAKISTAN and 6 others---Respondents

Writ Petition No.243662 of 2018, decided on 8th January, 2019.

(a) Constitution of Pakistan---

----Art. 199---Contract employee---Constitutional petition under Art.199 of the Constitution filed by a contractual employee for enforcement of terms of his contract---Such a petition was not maintainable-Where employment was on contract, there was a relationship of master and servant and in such like cases a constitutional petition under Art.199 of the Constitution was not maintainable---Contractual employee could at best claim damages to the extent of unexpired period of his service.

Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Chairman NADRA, Islamabad through Chairman Islamabad and another v. Muhammad Ali Shah and others 2017 SCMR 1979; Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120; Lt. Col. Rtd. Aamir Rauf v. Federation of Pakistan through Secretary M/o Defence and 3 others 2011 PLC (CS) 654; Nadeem Ahmed v. Pakistan State Oil Company Limited and another 2005 PLC (CS) 1447 and Naweed Akhtar Cheema v. Chairperson, Teveta and others 2011 PLC (CS) 803 ref

(b) Master and servant ---

----Contract employee---Termination of contract---Acceptance of terms and conditions of service---Petitioner was appointed Director General (Legal affairs) in Pakistan Railways on contract basis---Petitioner, after accepting all the terms and conditions of his contract employment submitted his joining report---One of the clauses of the petitioner's employment contract specifically dealt with the termination of contract on one month's notice on either side or payment of one month's basic pay in lieu thereof---Impugned termination letter explicitly revealed that the termination of the petitioner's services was made with immediate effect with one month's basic pay in lieu of notice in accordance with said clause of the employment contract---As such, the impugned termination letter had been issued strictly in accordance with the terms and conditions of contract employment duly accepted by the petitioner at the time of joining and now at a belated stage he could not deviate from the same---Constitutional petition was dismissed accordingly.

Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2005 SCMR 642; Major (R) Nisar Ali v. Pakistan Atomic Energy Commission and another 2004 PLC (CS) 758 and Muhammad Mohsin Ismail v. Managing Director Punjab Daanish Schools and 2 others 2018 PLC (C.S.) 722 ref.

(c) Federal Rules of Business, 1973 ---

----R. 4(2)---Contractual employment, termination of---Competent authority---Distinction between 'approval' and 'prior approval' of competent authority---Petitioner, who was appointed as Director General (Legal affairs) in Pakistan Railways on contract basis, challenged his termination on the grounds that the same was carried out without necessary approval of the competent authority i.e. the Prime Minister, and that if any approval had been made it was ex-post facto approval which was not permissible under the law---Validity---In terms of SI. No. 140, Chap. 2 [Recruitment/Appointment/Seniority and Promotion] of ESTA Code, and R.4 of the Federal Rules of Business, 1973, the competent authority to appoint the petitioner was the Selection Board headed by the Secretary of the Ministry/Division and not the Prime Minister, who was only the approving authority---Approving authority of the petitioner was undoubtedly the Prime Minister but it was noticeable that the word 'prior' was never mentioned in SI. No. 140, Chapter 2 [Recruitment/Appointment/ Seniority and Promotion] of ESTA Code; meaning thereby that although the 'approval' of the Prime Minister for the appointment of the petitioner was essential yet prior approval' was not necessary for his appointment or termination---If the words used were "with the prior approval of the Prime Minister", the impugned termination order could not be issued without first obtaining the approval of the Prime Minister---Since the words used in the procedure provided were "Approving Authority", the impugned termination order could be passed after obtaining the approval of the Prime Minister subsequently and in case the Prime Minister did not grant approval subsequently, any action taken on the basis of the decision of the Board would be invalid and not otherwise---In the present case , the termination of the petitioner was approved by the Prime Minister subsequently---Constitutional petition filed by the petitioner against his termination was dismissed accordingly.

(d) Words and phrases---

----'Approval' and 'permission'---Distinction---Permission to do something required its prior approval---When permission was required for an act, the act did not become effective till its permission was obtained---Whereas in cases where only 'approval' of an authority was required the act could be carried out and its approval obtained subsequently, and the act would only lose its force, if it was disapproved subsequently---Approval included ratifying of an action, and ratification could be given ex-post facto approval.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Employee not governed by statutory rules of service---Constitutional petition filed by such employee before the High Court agitating a service grievance was not maintainable.

Muhammad Shahzad Shaukat, Qalbe Hassan, Taha Asif, Talat Farooq Sheikh, Barrister Taha Shaukat and Muhammad Sharif Khokhar for Petitioner.

Ch. Ishtiaq Ahmad Khan, Additional Attorney-General, Sadia Malik, Assistant Attorney-General for Respondents.

Muhammad Zikriya Sheikh, on behalf of the Pakistan Railways.

Salman Kazi, Osman Khan and Khurram Shahzad, Legal Consultants on behalf of the Pakistan Railways.

Umme Imara and Azhar Siddique for Respondents.

P L D 2019 Lahore 194

Befo re Shakil-ur-Rehman Khan, J

RAFAQAT HUSSAIN---Petitioner

Versus

ASIFA ALTAF and others---Respondents

Writ Petition No.652 of 2018, decided on 12th December, 2018.

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

----Ss. 5, 13 & 26---Maintenance allowance of minor child---Compromise decree---Non-payment of settlement amount---Suit for recovery of maintenance was decreed in favour of respondent against petitioner who were divorced husband and wife---Matter was settled between the parties against a sum of Rs.150,000/- as full and final settlement of maintenance amount which amount was to be paid within 3 months but petitioner failed to comply with said conditions, resultantly Executing Court directed petitioner to pay maintenance allowance---Validity---Conditional compromise was a one-time window for petitioner (father) to once and for all wriggle out of his responsibilities, particularly towards his minor daughter---Father could not shirk off his responsibilities towards minor and mother could not have agreed on her behalf allowing father to do so---Even if conditional compromise was to be followed/implemented, petitioner (father) could only blame himself for not making requisite payment within stipulated period of 03 months---Such time period was fixed with consent of parties and they knew well what they were agreeing to in terms of timeline---Parties could not be allowed to wriggle out of same more so, for the reason that matter was being governed by Family Courts Act, 1964---High Court declined to interfere in the matter---Constitutional petition was dismissed in circumstances.

Waheed Anwar v. Additional District Judge and others 2017 YLR 827; Muhammad Asim and others v. Mst. Samro Begum and others PLD 2018 SC 819 and Abdul Khaliq v. Sidra Khaliq and 3 others 2017 CLC 487 ref.

Saifur ur Rehman v. Additional District Judge, Toba Tek Singh and 2 others 2018 SCMR 1885 rel.

(b) Interpretation of statutes-

----Principle---Purposive rather than literal approach to interpretation is to be adopted while interpreting statutes and therefore, interpretation that advances purpose of provisions of the statute is to be preferred rather than interpretation whicih defeats its objects.

Shafqat Saleem Khokhar for Petitioner.

Ch. Abid Hussain for Respondents Nos. 1 and 2.

P L D 2019 Lahore 206

Before Muhammad Sajid Mehmood Sethi, J

AHMAD MEHMOOD---Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and others-- Respondents

Writ Petition No.208662 of 2018, decided on 6th February, 2018.

(a) Interpretation of statutes---

----Subordinate and delegated legislation---Construction---Invalidity of delegated legislation---Scope---Rules and regulations were subordinate and delegated legislation deriving authority and legal cover from provisions of parent statute and power to make subordinate legislation/rules/regulations was derived from enabling statute and such delegatee was not authorized to make a provision beyond the policy of the statute---Delegated legislation could not override the statute either by exceeding authority or by making provisions inconsistent with parent statute---General power to make rules or regulations for carrying out or giving effect to the statute was strictly ancillary in nature and could not enable an authority on whom the power was conferred to extend the scope of general operation of the statute---Rule-making authority cannot widen the purpose of statute or add new and different means of carrying them out or to depart from or vary its terms---Rules/ regulations which the rule-making authority has power to make, was liable to be declared invalid if powers entrusted for one purpose were deliberately used with design of achieving another; or if it shows on its face a misconstruction of enabling law or a failure to comply with conditions prescribed under the parent statute for the exercise of the powers or if it was not capable of being related to any purpose mentioned in the parent statute---Legislature must retain in its own hands the essential Legislative functions which consist of declaring Legislative policy and laying down the standard which was to be enacted into a rule of law, and what could be delegated was the task of subordinate legislation---Rules/regulations continue to be rules subordinate to the parent statute, and though for certain purposes, including the purpose of construction, they were to be treated as if contained in the statute, their true nature as subordinate legislation was not lost---Rule of interpretation was that if subordinate legislation was directly repugnant to general purpose of the statute which authorized it, or was repugnant to any well-established principle of statute, it was either ultra vires altogether, or must, if possible, be so interpreted as not to create an anomaly---Reconciliation, if was found to be impossible between the provision of statute and the rules/regulations made thereunder; then such rules/regulations shall be held to be ultra vires the parent statute.

(b) Constitution of Pakistan---

----Arts. 18, 4 & 25---Freedom of trade association and business---Equality of citizens---Public procurement---Competition---Fundamental rights vis-à-vis non-discrimination against private sector enterprises in public/State procurement---Scope---Actions of the State were subject to Art.18 of the Constitution and if any action of the State intended to eliminate competition in a trade, the same shall be hit by the said Article, as it did not permit the State to confer any privilege on a private person or any private or public corporation to have monopoly in any trade, business, industry or service---Article 25, while ensuring equality of all citizens, covered the entire field of State action, it would extend not only when a citizen was discriminated against in the matter of exercise of his rights, but also in matter of granting privileges vis-à-vis giving jobs by the State, granting permits or licences, inviting tenders for Government contracts or issuing quotas---Fundamental Rights to due process under Art. 4 of the Constitution, freedom to carry out a lawful trade or business under Art.18 by maintaining fair competition and right against discrimination under Art.25 of the Constitution collectively provided requisite Constitutional underpinning to maintain level playing field, in all public sectors, at all times.

Barrister Sardar Muhammad v. Federation of Pakistan and others PLD 2013 Lah. 343 rel.

(c) Punjab Procurement Rules, 2014---

----Rr. 61(2) & 61(3)---Punjab Procurement Regulatory Authority Act (VIIII of 2009) S. 26 & preamble---Constitution of Pakistan, Arts. 4, 25, & 18---Public procurement---Discrimination in favour of public sector and against private sector---Constitutional classification test---Vires of Rr.61(2) & 61(3) of the Punjab Procurement Rules, 2014---Question before the High Court was whether Rr. 61(2) & 61(3) of the Punjab Procurement Rules, 2014 were ultra vires the Constitution on ground that the same discriminated against private sector manufacturing units in favour of public sector manufacturing units---Held, that classification provided in the impugned Rules between public manufacturer and private manufacturer would not pass the Constitutional classification test---Purpose and policy of the Punjab Procurement Regulatory Authority Act, 2009 when examined ,would reveal that its primary purpose was to regulate procurement process of goods, services and works after a competitive bidding process, however the impugned Rules went against the said intent of Punjab Procurement Regulatory Authority Act, 2009 as well as Arts. 4, 18 & 25 of the Constitutional, as undue advantage was given to public sector manufacturer under the same---Rules 61(2) & 61(3) of the Punjab Procurement Rules, 2014 were declared to be ultra vires of the Constitution and were struck down---Constitutional petition was allowed, accordingly.

Brig. (Retd.) F.B. Ali and another v. The State PLD 1975 SC 506; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026; Province of Punjab through Chief Secretary and another v. Samuel Bhatti and others 2009 SCMR 1034; Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161; Asim Qureshi, Chief Editor, Haftroza Roshan, Gujranwala v. Farooq Ahmad Khan Leghari, President, Islamic Republic of Pakistan and another PLD 1999 Lah. 76; Saleem Raza and 31 others v. The State PLD 2007 Kar. 139; Kasturi Lal Lakshmi Reddy v. State of J&K AIR 1980 SC 1992 and Sunbiz Private Limited (7 News TV Pakistan) through Abbas Ali Khan v. Federation of Pakistan through Secretary Ministry of Information and 3 others 2018 YLR 1785 ref.

Hassan Iqbal Warraich for Petitioner.

Messrs Muhammad Ejaz, A.A.G., Abdus Salam, Senior Law Officer and Umar Shahid, Advocate/Legal Advisor for Respondent-TEVTA.

P L D 2019 Lahore 216

Before Ali Akbar Qureshi, J

MIANI SAHIB GRAVEYARD---Petitioner

Versus

ENCROACHERS and others---Respondents

Writ Petition No.4382 of 2017, decided on 19th December, 2018.

(a) Miani Sahib Graveyard Ordinance (XLIV of 1962)---

----Preamble---Graveyards (Preservation and Maintenance) Act (XXV of 1958), S.14(1)---Miani Sahab Graveyard ("the graveyard")---Encroachments and illegal sale of land---Brief history of the graveyard and encroachments and illegal sale of its land stated.

(b) Miani Sahib Graveyard Ordinance (XLIV of 1962)---

----Preamble---Graveyards (Preservation and Maintenance) Act (XXV of 1958), S.14---Miani Sahab Graveyard ("the graveyard")---Encroachments and illegal sale of graveyard's land---Directions given by the High Court that were to be implemented by the Miani Sahib Graveyard Committee with the help of the District Administration stated.

Following are the directions issued by the High Court that were to be implemented by the Miani Sahib Graveyard Committee ("the Committee") with the help of the District Administration:

(i) All new burials shall be made in the area/land of the graveyard recently retrieved by the order of the Court. The Deputy Commissioner/ Chairman shall ensure the compliance of the order in such regard;

(ii) In future the land of the graveyard shall not be used for commercial or residential purposes by anyone and the Committee shall not permit or allow anyone to use the land for commercial or residential purpose;

(iii) Lease rights of the flower shops built on graveyard's land shall be auctioned after every three years and they would be liable to pay the statutory increase along with the monthly lease money;

(iv) Committee shall ensure that in future nobody encroached upon the land of the graveyard and if anybody tried to illegally possess the land, the Committee shall forthwith act against them and the same shall continue till the land was retrieved from the encroachers;

(v) Committee will not allot or sell any land even an inch for 'ihata jaat'and if anybody tried to do the same by surrounding the land of the graveyard, the same shall not only be removed but an FIR shall be lodged against him/them;

(vi) Committee shall not permit/allow anyone to make "pukhtaqabar" in the graveyard and if anybody tries to take the law in his own hand, the Committee shall act in accordance with law and directions passed by the High Court;

(vii) Committee shall meet positively at least once in a month. If any member of the Committee recused or resigned, the new member shall be included with the consent of all the other members. The quorum of the Committee although had already been given but 6 members (3 non-official and 3 official) shall be needed to complete the quorum;

(viii) The release of funds/expenditure of more than Rs.50,000/- shall not be approved/ released without the approval of the Committee;

(ix) The Committee shall also frame a service policy, if required by law;

(x) The Deputy Commissioner being the Chairman of the Committee shall ensure that the different cases pending in different Courts qua the graveyard shall be pursued diligently;

(xi) Land in possession of encroachers, whose cases had finally been decided by the High Court or by the Supreme Court, shall forthwith be retrieved without fail; and

(xii) In order to ensure that the directions/orders given by the High Court were being complied with by the Committee and to monitor the implementation of the directions/orders the present matter should be kept pending following the principle of 'continuing mandamus'. [pp. 224, 225, 226] E, F, G & H

Khalil Ahmad Ali for Petitioner/MSGYC, Ch. M. Jawad Yaqoob, Assistant Advocate-General along with Saleha Saeed, Deputy Commissioner, Lahore/Chairman MSGYC and Afzaal Rehan, Secretary MSGYC.

P L D 2019 Lahore 226

Before Muzamil Akhtar Shabir, J

NUSRAT BIBI and another---Petitioners

Versus

ZEESHAN AHMAD and another---Respondents

Writ Petition No.964 of 2019, decided on 10th January, 2019.

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

----S. 14(3) --- Interim/interlocutory order passed by Family court---Appeal---Scope---Decision given by the Family Court was appealable provided the said decision was not an interim/interlocutory order as provided in subsection (3) of S.14 of the Family Courts Act, 1964---However, every order passed during the pendency of a family suit could not be treated merely as an interlocutory order if the said order finally determined an issue---Appeal under S.14 of the Act was not barred against every interlocutory order and 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 the 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.

Muhammad Zaffar 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; Mst. Naureen v. Ehsan Sabir, Family Judge, Faisalabad and 2 others 2010 CLR 110; Nargis Naureen v. Judge Family Court, Multan and others PLD 2018 Lah. 735; Tasadaq Nawaz v. Masood Iqbal Usmani and others PLD 2018 Lah. 830; Rahim Bakhsh v. Mst.Shahzadi and others 2018 CLC 1789 and Memoona Ilyas v. Additional District Judge and others 2017 CLC 1747 ref.

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

----Ss. 14 & 17A---Interim order---Appeal---Scope---Application for fixing interim maintenance allowance of minor under S.17-A of the Family Courts Act, 1964, dismissal of---Where dismissal of such application was tantamount to declining the relief of interim maintenance allowance permissible to the minor during the pendency of suit, it amounted to final determination of claim to that extent and hence could not be treated merely as an interim/interlocutory order that did not finally determine anything---Such dismissal would amount to 'a decision given' in terms of S.14 of the Family Courts Act, 1964---Consequently an appeal against the same would be available before the Appellate Court in case the minor was aggrieved of the same on any available ground.

Muhammad Amin Ashraf Khan for Petitioner.

Ms. Zarish Fatima, Assistant Attorney General On Court's call.

Muhammad Arshad Manzoor, AAG. On Court's call.

P L D 2019 Lahore 234

Before Shahid Waheed and Ch. Muhammad Iqbal, JJ

PAKISTAN MEDICAL AND DENTAL COUNCIL through Authorised Representative---Appellant

Versus

MUHAMMAD JUNAID ALAM and others---Respondents

I.-C.A. No.246925 of 2018, decided on 6th November, 2018.

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

----Ss. 15 & 33 [as amended by Pakistan Medical and Dental Council (Amendment) Act (XIX of 2012)]--- Pakistan Registration of Medical and Dental Practitioners Regulations, 2008, Reglns. 48 & 60---Registration of foreign medical qualified doctor---Pre-conditions---Respondents were doctors qualified from abroad who assailed provisions of Reglns. 48 & 60 of Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 with regard to their registration as medical practitioners---Single Judge of High Court in exercise of Constitutional jurisdiction declared Reglns. 48 & 60 of Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 as ultra vires the provisions of S.15 read with S.33 of Pakistan Medical and Dental Council Ordinance, 1962---Validity---Two conditions under Reglns. 48 & 60 of Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 were imposed on a student who wanted to get medical education in foreign country, firstly to obtain NOC from Pakistan Medical and Dental Council (PMDC) prior to joining course abroad and secondly to secure more than 60% marks in FSc.; in case of failure to meet said two conditions, a candidate was not eligible for processing of his registration of qualification and to appear in National Examination Board Examination---Section 15 of Pakistan Medical and Dental Council Ordinance, 1962 did not prescribe any embargo or restriction on medical students to get admission in a foreign country rather it only conferred an authority upon PMDC or the Council to hold examination for evaluation and assessment of sufficient medical knowledge and skill possessed by a candidate and if it was satisfied, then such candidate was to be registered as a practitioner---Pakistan Medical and Dental Council, while framing Reglns. 48 & 60 of Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 exceeded its jurisdiction---Restrictions imposed by PMDC under guise of Reglns. 48 & 60 of Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 did not secure any support from provisions of Ss.15 & 33 of Pakistan Medical and Dental Council Ordinance, 1962 as amended in 2012---Single Judge of High Court had rightly declared Reglns. 48 & 60 of Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 as ultra vires---Division Bench of High Court declined to interfere in the matter---Intra-court appeal was dismissed in circumstances.

Khawaja Ahmad Hassaan v. Government of Punjab and others 2005 SCMR 186; Suo Motu Case No.13 of 2009 (PLD 2011 SC 619); Zarai Taraqiati Bank Ltd. and others v. Said Rehman and others 2013 PLC (CS) 1223; Devi Das Gopal Krishnan and others v. State of Punjab and others AIR 1967 SC 1895; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 PTD 1100; National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Ltd. 2016 SCMR 550; Pakistan v. Aryan Petro Chemical Industries (Pvt.) Ltd. 2003 SCMR 370; The Bible, The Quran and Science; Al-Jehad Trust through Raeesul Mujahidden Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6 and Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 ref.

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

----Ss. 15 & 33---Pakistan Registration of Medical and Dental Practitioners Regulations, 2008, Regln. 48---Foreign qualified medical doctors---Registration---Scope---No authority or power has been given by the statute, i.e., S.15 read with S. 33 of Pakistan Medical and Dental Council Ordinance, 1962 to make Regln. 48 of Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 to restrain foreign medical qualified doctors to get registration as medical practitioner after passing required National Examination Board Examination (NEB).

P L D 2019 Lahore 253

Before Jawad Hassan, J

SUBAY KHAN---Petitioner

Versus

SECRETARY, LABOUR, GOVERNMENT OF THE PUNJAB---Respondent

Writ Petition No.48872 of 2017, decided on 25th February, 2019.

(a) Punjab Domestic Workers Act (II of 2019)---

----Ss. 2(q), 38 & Preamble---Constitution of Pakistan, Arts. 3, 4, 8, 11, 25, 25-A, 37 & 38---Punjab Government Rules of Business, 2001, Second Sched.---Domestic workers, exploitation of---Minimum wage and working conditions---Domestic workers comprised the majority of employed persons in the country's large, unregulated and informal economy, and were particularly vulnerable to exploitation, financial and otherwise---Domestic work was considered by the International Labour Organization (ILO) [of which Pakistan was a member] as one of the occupations with the worst quality of employment, characterized by long work days, low pay and limited social protection coverage---Domestic workers in Pakistan were rightfully entitled to all Fundamental Rights such as elimination of exploitation, right to life including right to livelihood, right to equality, right to trade and business, right to education, and all other rights enshrined in Arts.37 & 38 of the Constitution---High Court after appreciating the efforts of the Provincial Government and the Labour Department for enacting proper legislation on the issue of domestic workers i.e. Punjab Domestic Workers Act, 2019 ('the Act of 2019') directed that the Act of 2019 was to be implemented by reflecting the same in the Second Schedule of the Punjab Government Rules of Business, 2001 and to make all the Rules as prescribed under S.2(q) read with S.38 of the Act of 2019 to enable the Department to apply the law in letter and spirit; that without any delay the Authority under the 2019 Act shall be established and notified and all measures shall be adopted to make the said Act functional; that the Labour Department and Non-Governmental Organizations shall raise awareness amongst the general public about the rights of the domestic worker to avoid further exploitation; and, that a comprehensive social and electronic media campaign was to be launched by the government for creating awareness amongst people regarding plight of domestic workers and the 2019 Act---Constitutional petition was disposed of accordingly with the suggestion that that a day in the calendar year may be notified as a "Domestic Workers Day" along with the "Labour Day" to share sympathies with the domestic workers.

(b) Words and phrases---

----'Rights'---"Legal" and "moral rights"---Distinction and scope---Right was a power, privilege, faculty, or demand, inherent in one person and incident upon another---Rights could be moral or legal---Along with legal rights there existed moral rights as well, which in general had subjective support while legal rights had the objective support of the State---Legal right was an interest, which was recognized and protected by the rule of legal justice---Every right had interests but all interests could not be rights.

(c) Constitution of Pakistan---

----Pt. II, Chapt. I [Arts.8 to 28]---Fundamental Rights, enforcement of---Scope---Law may provide mechanism for enforcement of a right but the existence of the right did not depend upon the creation of such mechanism---Right existed prior to and independent of the mechanism of enforcement.

(d) Constitution of Pakistan---

----Arts. 3, 4, 8, 11, 25, 25-A, 37 & 38---Rights of labour---Survey of landmark judgments passed by superior Courts safeguarding Fundamental Rights of labour.

Darshan Masih alias Rehmatay's case PLD 1990 SC 513; Human Rights Commission of Pakistan's case PLD 2009 SC 507; H.R. Cases Nos. 16360 of 2009, 1859-S and 14292-P of 2010 PLD 2011 SC 37; All Pakistan Newspapers Society and others' case PLD 2012 SC 1; Javed Iqbal's case 2018 PLC (C.S.) 228 and 2018 PCr.LJ 841 ref.

Sheraz Zaka for Petitioner.

Rai Shahid Saleem Khan, Assistant Advocate-General for Respondents.

Ms. Sehar Zareen Bandial and Ahmad Pansota: Amicus Curiae.

Sadia Malik, Assistant Attoney-General for Pakistan on Court's call.

Raj Maqsood, Law Officer assisted by Rana Shaher Yar, Research Officer Lahore High Court, Research Centre.

P L D 2019 Lahore 268

Before Shakil-ur-Rehman Khan, J

ADEEL AHMAD GABA---Petitioner

Versus

SPECIAL JUDGE RENT and another---Respondents

Writ Petition No.210100 of 2018, heard on 23rd November, 2018.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 9---Tenancy agreement made after promulgation of the Punjab Rented Premises Act, 2009 ['the Act'] not complying with provisions of the Act---Effect---Provisions of S.9 of the Act would apply to such tenancy agreement.

Rana Abdul Hameed Talib v. Additional District Judge Lahore and others PLD 2013 SC 775 and Mirza Book Agency and others v.Additional Distirct Judge Lahore and others 2013 SCMR 1520 ref.

(b) Interpretation of statutes---

----Intention of the Legislature had to be gathered by reading the whole statute.

Ghulam Hassan v. Jamshaid Ali and others 2001 SCMR 1001; Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305; Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134 and Waqar Zafar Bakhtawari and 6 others v. Haji Mazhar Hussain Shah and others PLD 2018 SC 81 ref.

(c) Interpretation of statutes---

----Provision of statute---Redundancy---Every attempt should be made to save the statute rather than to declare its provisions redundant.

(d) Interpretation of statutes---

----'Mandatory' and 'directory' provisions---Scope---Where legislature had provided penalty/consequences for non-compliance of a provision, such provision was mandatory in nature, however, if such consequences were not provided the provision was to be taken as directory.

(e) Punjab Rented Premises Act (VII of 2009)---

----S. 16(4)---Ejectment petition---Question of jurisdiction of the Rent Tribunal could be raised at any stage of the proceedings before the Rent Tribunal.

Hafiz Ch. Muhammad Tahir for Petitioner.

Akhtar Rana for Respondents.

P L D 2019 Lahore 281

Before Muhammad Waheed Khan, J

Mst. RABYIA ILYYAS---Petitioner

Versus

ADDITIONAL SESSION JUDGE and others---Respondents

Writ Petition No.5237 of 2019, decided on 8th February, 2019.

(a) Islamic law---

----Hizanat, right of---Scope---Where the mother had herself handed over custody of a minor to the father's side through a compromise agreement, even then she could not be deprived of her right of Hizanat---Such compromise agreement had no bonding force in the eyes of law.

Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533 and Munazza Bibi v. S.H.O. Police Station City Chichawatni, District Sahiwal and 2 others 2012 PCr.LJ 1567 ref.

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

----S. 491---Civil Procedure Code (V of 1908), S. 11---Habeas corpus petition filed after dismissal of a similar petition---Maintainability---Res judicata, applicability of---Earlier decision in a habeas corpus matter could not be permitted to operate as res judicata with respect to any such subsequent petition.

Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533 ref.

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

----S. 491---Habeas corpus petition---Recovery of minor---Hizanat, right of---Scope---Minor was residing with his paternal grandparents after an alleged compromise between his parents, under which the mother had allegedly given up her right of Hizanat---Habeas corpus petition filed by the mother for recovery of minor had been dismissed by the court below---Held, that father of the minor was stated to be out of country and the minor was living with his paternal grand-parents---Keeping in view such circumstances and the tender age of the minor (aged about 3 years), the real mother, could not be deprived of her right to Hizanat and the alleged compromise or agreement had no binding force in the eyes of law---Impugned order of court below was set-aside, custody of minor was handed over to the mother with the direction that the father's side was at liberty to invoke the jurisdiction of the Guardian Court for regularization of custody of minor---Constitutional petition was allowed accordingly.

Ashiq Hussain for Petitioner.

Fayyaz Ahmad Mahr, A.A.G.

Ghulam Hussain Awan for Respondents Nos. 3 and 4.

P L D 2019 Lahore 285

Before Mamoon Rashid Sheikh, J

Ms. SADAF MUNIR KHAN---Petitioner

versus

CHAIRMAN, RECONCILIATION COMMITTEE and 2 others---Respondents

Writ Petition No.21162 of 2015, decided on 8th January, 2018.

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

----S. 7---Rules under the Muslim Family Laws Ordinance, 1961, R.3(b)---Notification/S.R.O. No.1086(K)/61, dated 09.11.1961---Divorce certificate, issuance of---Territorial jurisdiction of Chairman, Reconciliation Committee---Scope---Wife not residing in Pakistan at the time of pronouncement of 'talaq'---Under R.3(b) of the Rules under the Muslim Family Laws Ordinance, 1961 ('the Rules') the basic factor which determined the jurisdiction of the Union Council and/or the Chairman for entertaining and proceeding on a notice of divorce (talaq) under subsection (1) of S.7 of the Muslim Family Laws Ordinance, 1961 (`the Ordinance') was the place where the wife was residing at the time of pronouncement of divorce (talaq)---Union Council and/or the Chairman, which would have jurisdiction in the matter would be the Union Council and/or the Chairman within whose territorial jurisdiction the wife was residing at the time of pronouncement of divorce (talaq)---At the time the husband, in the present case, was alleged to have pronounced divorce (talaq) upon the wife, both of them were permanently residing in a foreign country (United States of America), however, the husband was stationed in another foreign country (Germany) due to his job---In such circumstances the Chairman, Reconciliation Committee (based in Pakistan) did not have jurisdiction in the matter and erred in issuing the impugned Divorce Certificate---Since the husband and the wife were nationals of Pakistan and a foreign country (USA) and were permanently residing in said foreign country at the relevant time, therefore, the husband should have approached the authorized officer of the concerned Pakistan mission in the foreign country under S.7 of the Ordinance---Divorce certificate issued by the Chairman, Reconciliation Committee (based in Pakistan) was held to be of no legal effect and was accordingly set-aside---Constitutional petition was allowed in circumstances.

Syeda Wajiha Haris v. Chairman, Union Council No.7, Lahore 2010 MLD 989 and Mst. Sharifan v. Abdul Khaliq and another 1983 CLC 1296 ref.

(b) Constitution of Pakistan---

----Art. 199---Averment of facts made in constitutional petition---In absence of a counter affidavit or other material in rebuttal, the averment of facts made in a petition, which were supported by an affidavit, were to be normally accepted as correct.

Islamic Republic of Pakistan through Secretary, Ministry of Defence, Government of Pakistan Rawalpindi and another v. Amjad Ali Mirza PLD 1977 SC 182 ref.

Anwar Kamal for Petitioner.

Muhammad Azeem Malik, Addl. Advocate-General Punjab.

Arsalan Akhtar for Respondents Nos. 1 and 2.

Nemo for Respondent No.3.

P L D 2019 Lahore 295

Before Mamoon Rashid Sheikh, J

MUHAMMAD SAFDAR and another---Petitioner

versus

MUHAMMAD NASEER HAIDER and others---Respondents

Civil Revision No.377 of 2015, decided on 27th January, 2017.

Civil Procedure Code (V of 1908)--

----O. XXXIX, R. 2-B [as amended by the Lahore High Court]---Interim injunction---Expiry---Temporary injunction ceased to have effect upon expiration of the period of one year as envisaged by O.XXXIX, R. 2-B, C.P.C.---In the present case, a period of more than one year had lapsed between the passing of the temporary injunction, in favour of plaintiffs by the Trial Court and the passing of the impugned decision by the appellate Court, whereby the temporary injunction was confirmed---As such, at the time of the decision by the appellate Court there was no temporary injunction in the field in favour of the plaintiffs---Nothing was available on the record to show that the defendants had moved application in terms of R.2-B of O.XXXIX, C.P.C. for extension of the order of temporary injunction granted in their favour nor for that matter the order was extended nor was there any report to that effect before the High Court---Similarly there was nothing on the record to show that the said order was suspended by the appellate Court in the plaintiffs' appeal since by operation of law there was no temporary injunction in the field---Plaintiffs' appeal before the appellate Court in fact had become infructuous---Revision petition was dismissed being incompetent with the observation that defendants, if advised, may move an application under the provisions of R.2-B of O.XXXIX, C.P.C. before the trial Court for extension and/or re-issuance of a temporary injunction in their favour.

Raja Talat Mahmood v. Ismat Ehtishamul Haq 1999 SCMR 2215; District Collector, Bannu and 4 others v. Muhammad Subhan and 3 others 2008 CLC 1568 and Xen PESCO (WAPDA) Mansehra through Chairman, PESCO and 4 others v. Gas Masters CNG Filling Station, Mansehra through Khalid Latif and others PLD 2005 Pesh. 132 ref.

Ms. Elysee Nazir Khan for Petitioners.

P L D 2019 Lahore 298

Before Muhammad Sajid Mehmood Sethi, J

JAMIL AHMED and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Ssecretary, Ministry of Communication, Islamabad and others---Respondents

Writ Petition No.17576 of 2018, heard on 22nd January, 2019.

National Highway Authority Act (IV of 1991)---

----Ss. 21(3), 23, 31 & 32---National Highway and Strategic Roads (Contrtol) Rules, 1998 [as amended in year 2002], Rr. 4, 8 & 12---Regulatory Framework and Standard Operating Procedures for Preservation and Commerical Use of Right of Way, 2002, Chap. IV---Approach Rental Charges (ARC), payment of---Vires of parent law---Effect---Right of way---Petitioners were charged Approach Rental Charges by Authority for businesses operating on National Highways and assailed that imposition of Approach Rental Charges was ultra vires mandate of National Highway Authority Act, 1991---Validity---Petitioners were using approach road of Authority within Right of Way/Between Rights of Way and building line in violation of restriction on ribbon development in respect of national highway/motorway/ strategic road---Petitioners were doing commercial activities without permission/obtaining NOC and paying Approch Rented Charges (ARC) under National Highway and Strategic Roads (Control) Rules, 1998---Petitiones were bound to get NOC from the Authority and pay ARC under National Highway and Strategic Roads (Contorl) Rules, 1998 and their undertaking in shape of demand draft in favour of the Authority for further process of NOC---Provisions of National Highway and Strategic Roads (Contorl) Rules, 1998 and Regulatory Framework and Standard Operating Procedures for Preservation and Commercial Use of Right of Way, 2002 were intra vires provisions of National Highway Authority Act, 1991 as well as the Constitution---High Court remitted matter to the Authority as some of petitioners claimed that they were not covered by National Highway and Strategic Roads (Contol) Rules, 1998 but still notices were issued to them demanding ARC while some alleged that demand was excessive and not in conformity with rules and regulations framed by the Authority itself---Constitutional petition was disposed of accordingly.

Khawaja Ahmad Hassaan v. Government of Punjab and others PLD 2004 SC 694=2005 SCMR 186; Suo Motu Case No.13 of 2009 PLD 2011 SC 619; Suo Motu Case No.11 of 2011 PLD 2014 SC 389; Hyderabad Cantonment Board v. Raj Kumar and others 2015 SCMR 1385; Pakistan Telecommunication Authority (PTA), Islamabad through Chairman v. Pakistan Telecommunication Company Limited, Headquarters, G-8 Markaz, Islamabad 2016 SCMR 69; Messrs D.S. Textile Mills Limited v. Federation of Pakistan and others PLD 2016 Lah. 355; Independent Newspapers Corporation (Pvt.) Ltd. and others v. Federation of Pakistan and others PLD 2017 Lah. 289; Continental Biscuits Ltd. v. Federation of Pakistan through Secretary Defence, Ministry of Defence, Islamabad and 3 others 2017 PTD 1803; Mazhar v. Station House Officer, Police Station Garh, Faisalabad and another 2018 YLR Note 115; Irshad Noor CNG Station through Proprietor v. National Highway Authority, Islamabad and others through Chairman 2016 CLC Note 15; Messrs Colony Sugar Mills Ltd. through Deputy Manager v. Province of Punjab and 5 others 2017 PTD 406; Muhammad Khalid Qureshi v. Province of Punjab through Secretary, Excise and Taxation Department, Lahore and another 2017 PTD 805; Mehreen Zaibun Nisa and others v. Land Commissioner, Multan and others PLD 1975 SC 397; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Messrs Elahi Cotton Mills Ltd and others v. Federation of Pakistan through Secretary, M/o Finance, Islamabad and 6 others PLD 1997 SC 582; Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq and others PLD 2007 SC 133; Syed Aizad Hussain and others v. Motor Registration Authority and others PLD 2010 SC 983 and Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2000 SCMR 1956 ref.

Muhammad Ali Siddiqui, Rai Husnain Nasir, Malik Sajjad Haider Maitla, Mahar Fakhar Raza Malana, Muhammad Suleman Bhatti, Malik Ghulam Qasim Rajwana, Muhammad Javaid Arshad, Hafiz Muhammad Naveed Akhtar, M. Sohail Iqbal Bhatti, Mian Muhammad Asif Rasheed Sial, Barrister Malik Kashif Rafique Rajwana, Ch. Bashir Ahmad Ansari, Sohail Ahmad Janjua and Muhammad Maalik Khan Langah for Petitioners.

Barrister Malik Muhammad Yousaf Hanjra, Assistant Attorney General, Malik Muhammad Tariq Rajwana, Mian Muhammad Ashfaq Hussain, Rehmat Sahreen Khan and Asma Khan for Respondents

P L D 2019 Lahore 310

Before Ayesha A. Malik, Sadaqat Ali Khan and Ali Akbar Qureshi, JJ

Mian AYAZ ANWAR and others---Petitioners

Versus

STATE BANK OF PAKISTAN and others---Respondents

W.P. No. 14172 of 2012, decided on 24th December, 2018.

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

----Preamble---Object, scope and purpose---National Accountability Ordinance, 1999, is a special law promulgated to eradicate corruption and corrupt practices and to hold people accused of such practices accountable---Objective of the law is to protect public money and ensure its recovery---Nature of investigation and inquiry under National Accountability Ordinance, 1999, is therefore, a kind of special dealing with offences which are deemed necessary in order to protect public money and ensure that public exchequer is not deprived of amounts due to it---Law also ensures that cases of corruption and corrupt practices are duly investigated in order to hold accountable persons involved in abuse of authority and office.

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

----S. 2(g) & Preamble---Object, scope and purpose---Financial Institutions (Recovery of Finances) Ordinance, 2001, is a special law promulgated in year 2001 to provide effective remedy for recovery of finances extended by Banks and for fulfilment of obligation defined in S.2(e) of Financial Institutions (Recovery of Finances) Ordinance, 2001, in favour of financial institution---Procedure has been prescribed under Financial Institutions (Recovery of Finances) Ordinance, 2001, to be adopted for the purposes of invoking jurisdiction of Banking Court for recovery of amounts due to financial institution or breach of any obligation as defined under Financial Institutions (Recovery of Finances) Ordinance, 2001---Law prescribes for a special procedure to be followed when filing a suit under Financial Institutions (Recovery of Finances) Ordinance, 2001, and also prescribes for certain offences which are triable before Banking Court---Banking Court is a specialized Court where issue of 'default' can be contested which is established for the purposes to pass judgment and decree for recovery of outstanding amounts in cases of defaults.

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

----S. 2(g)---National Accountability Ordinance (XVIII of 1999), S.2(r)---"Wilful default"---Scope---Wilful default is a specific offence triable by Banking Court---Provisions of National Accountability Ordinance, 1999, and Financial Institutions (Recovery of Finances) Ordinance, 2001, both are special laws dealing with offence of "wilful default"---Only difference is that National Accountability Ordinance, 1999, deals with the offence to pay which is due by a financial institution whereas Financial Institutions (Recovery of Finances) Ordinance, 2001, gives the Banking Court jurisdiction to determine if a customer has committed any default of an obligation with regard to any finance and has added offence of wilful default as stipulated in S.2(g) of Financial Institutions (Recovery of Finances) Ordinance, 2001.

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

----Ss. 2(g)(ii)(iii), 9 & 20---Offences---Scope---Offences in S. 2(g)(ii)(iii) of Financial Institutions (Recovery of Finances) Ordinance, 2001, provide for independent offences which can be tried under S.20 of Financial Institutions (Recovery of Finances) Ordinance, 2001, independent of any determination of default in an obligation to pay---Neither such offences are dependent on civil liability of "default" under S. 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001, as they are offences due to the very act of the customer.

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

----Ss. 5(r), 19 & 31D---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 2(g) & 20(7)---Constitution of Pakistan, Art. 199---Constitutional petition---"Wilful default", offence of---Jurisdiction to investigate---Scope---Notices of wilful default were issued to all petitioners either under S. 5(r) of National Accountability Ordinance, 1999 or under S. 2(g) of Financial Institutions (Recovery of Finances) Ordinance, 2001--- Petitioners assailed the notices on the ground that National Accountability Bureau did not have jurisdiction in the matter---Validity---Banking Court was a special forum to try offences under Financial Institutions (Recovery of Finances) Ordinance, 2001, and was the proper forum to try offences of wilful default---In such regard in terms of provisions of S. 20(7) of Financial Institutions (Recovery of Finances) Ordinance 2001, once civil liability of default was established the offence of wilfulness could be investigated by Federal Investigation Agency or any other nominated Federal Government agency---Offence under S. 2(g)(ii)(iii) of Financial Institutions (Recovery of Finances) Ordinance, 2001, were not dependent on determination of civil liability and could be investigated in terms of S. 20(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001, by the nominated government agency---In all such cases Banking Court was to try cases of "wilful default" as per S. 20 of Financial Institutions (Recovery of Finances) Ordinance, 2001---High Court declared that notices issued under Ss. 5(r), 19 & 31D of National Accountability Ordinance, 1999, and notices issued under Ss. 2(g) & 20 of Financial Institutions (Recovery of Finances) Ordinance, 2001, were illegal and were set aside---High Court declined to interfere in notices issued under S. 2(g)(iii) of Financial Institutions (Recovery of Finances) Ordinance, 2001, as the same constituted an independent offence---Constitutional petition was allowed accordingly.

Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 SCMR 1218; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869 and The State through Chairman, NAB and others v. Muhammad Asif Saigol and others PLD 2016 SC 620 rel.

Shahid Ikram Siddiqui, Muhammad Imran Malik, Akif Majeed, Syed Muhammad Mohsin Raza, Salman Akram Raja, Tariq Bashir, Bilal Bashir, Syed Shahab Qutab and Mian Taiq Hassan, Salman Aslam Butt, Munawar-us-Salam, Muhammad Shoaib Rashid, Walid Khalid, Usman Akram Sahi, Furqan Naveed, Arslan Riaz, Mehmood A. Sheikh, Ms. Ayesha Hamid, Atta Mustafa Rizvi, Mian Sultan Tanvir Ahmad, Usman Ali Cheema, Hafiz Mubashr Ullah, Uzair Karamat Bhandari, Mian Muhammad Kashif, Ms. Saba Saeed Sheikh, Ch. Muhammad Amin Javed, Mian Asghar Ali, Nadeem Ahmad Sheikh, Muhammad Ahmad Pansota, Rab Nawaz Baloch, Jameel Ahsan Gill, Asim Ali Chohan, Muhammad Umar Riaz, Ms. Hina Bandealy, Khizar Javed, Haq Nawaz Chattha, Malik Haider Ali Langah, M. Salman Masood, Syed Zeeshan Haider Zaidi, Rao Muhammad Nasir Khan, Salman Safdar, Chaudhry Shahbaz Akhtar, Masood Sadiq, Mian Muhammad Faheem Bashir, Syed Amir Ali Shah, Ashar Elahi, Adnan Kazmi, Ghulam Hussain Chaudhary, Sardar Azeem Afrasiab, Nadeem Irshad, Ch. Amjad Iqbal Sandhu, Mian Zulfiqar Ali and Shahid Mehmood Khan for Petitioners.

Nasar Ahmad, DAG. Mrs. Samia Khalid, Addl. AG and Ms. Shazia Ashraf Khan, AAG for Respondents.

Arif Mehmood Rana, Haroon Rasheed Cheema, Mian Nadeem Ahmad Qazi and Syed Faisal Raza Bukhari for NAB.

Kh. Muhammad Farooq and Abid Hussain for State Bank of Pakistan.

Syed Murtaza Ali Zaidi for MEPCO.

Muhammad Bilal Akhtar and Sheikh Muhammad Ali for NTDC.

Imtiaz Rashid Siddiqui, Shehryar Kasuri, Muhammad Asif Butt, Rana Imtiaz Siddiqui and Jamshid Alam for Bank of Punjab.

Shezada Mazhar and Ghulam Mustafa Malik for Saudi Pak Industrial and Agricultural Investment Company Limited.

Adnan Shuja Butt for Bank of Punjab.

Rashdeen Nawaz Kasuri, Muhammad Akram Pasha, Nadeem Yousaf Rana and Malik Asad Ullah Waghra for Bank of Punjab and Askari Bank Limited.

Hafeez Saeed Akhtar for Saudi Pak Industrial Company and Bank of Punjab.

Nadeem Yousaf Rana for Bank of Punjab and Askari Bank Limited.

Mian Belal Ahmad, Adil Fayyaz, Rashid Mehmood Gill, Waqas Mehmood Gill, A. W. Butt, Nadeem Saeed and Sardar Qasim Farooq Ali for Bank of Punjab.

Muhammad Khalid Sajjad Khan, Advocate for Saudi Pak Industrial and Agricultural Investment Company Limited.

Ahmad Pervaiz and Umar Toor for JS Bank.

Muhammad Raza Qureshi, Rana Haseeb Ahmad Khan, Abdul Ghaffar Malik and Majid Ali Wajid for MCB Bank.

Iftikhar Hussain Shah for NBP Bank.

Husain Ali Ramzan for NIB Bank.

Husnain Ali Ramzan for Summit Bank.

Ch. Hashim Hayat Wathra for Habib Metropolitan Bank Limited.

Saqib Haroon Chishti for Punjab Provincial Cooperative Bank Limited.

P L D 2019 Lahore 330

Before Sardar Muhammad Shamim Khan and Syed Shahbaz Ali Rizvi, JJ

MUHAMMAD AMEEN---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.221577 of 2018, decided on 16th October, 2018.

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

----Ss. 7(a) & 22---Penal Code (XLV of 1860), Ss. 364-A, 376, 377, 302(b) & 201---Pakistan Prisons Rules, 1978, R. 354---Constitution of Pakistan, Art. 14(1)---Sentence of death awarded to a convict---Execution of death sentence in a public place---Constitutionality and legality---According to S. 22 of the Anti-Terrorism Act, 1997 the High Court had no power to change the venue of execution of sentence of death of any condemned prisoner, rather, it empowered the Government to specify the manner, mode and place of execution of any sentence passed under the said Act---Furthermore R.354 of the Pakistan Prisons Rules, 1978 provided that executions shall normally take place at the District Prison of the District in which the prisoner was sentenced---Present convict had been found guilty of raping and murdering a minor, which was a barbaric act, but a barbaric crime did not have to be visited with a barbaric penalty such as public hanging---Dignity and self-respect of every man had become inviolable and such guarantee was not subject to law but was an unqualified guarantee---If the death sentence of present convict was conducted publicly, there were chances of public aggression which may cause danger to his life before execution of his death sentence and the lives of public---Constitutional petition was dismissed accordingly.

Ishtiaq A. Ch. for Petitioner.

Sittar Sahil and Ch. Muhammad Jawad Yaqoob, Assistant-Advocates-General Punjab, Lahore.

Muhammad Ahmed Pansota for Public Interest Litigation.

Dr. Qadeer Alam AIG(J)

Muhammad Zubair, Assistant Superintendent Central Jail, Lahore.

P L D 2019 Lahore 333

Before Shahid Waheed, J

Mst. WARIS JAN and another---Petitioners

Versus

LIAQAT ALI and others---Respondents

Civil Revisions Nos. 3204 and 2946 of 2015, heard on 14th January, 2019.

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

----S. 62---Qanun-e-Shahadat (10 of 1984) Art. 102---Novation of contract---Proof of novation of contract, essential ingredients---Scope---"Novation of contract" was where new contract was substituted for a contract in existence, either between the same parties or between different parties, and the consideration mutually being the discharge of the old contract---When an agreement was substituted, both such agreements were supposed to be read together to form a complete subsisting agreement---For proving of novation of contract it must be shown that firstly there was existence of a previous valid agreement; secondly, there was an agreement of the parties to cancel the first agreement; thirdly that there was agreement of the parties that the second agreement replaced the first one; and fourthly to prove validity of the second agreement---Novation was a form of affirmative plea and the party who canvassed the same had the burden of proving it by satisfactory evidence---Article 102 of the Qanun-e-Shahadat, 1984 forbade proving contents of writing otherwise than by writing itself and best evidence about contents of a document was the document itself and production of the same was required by law in proof of its contents and basic requirement of law was to see the terms incorporated in such a document.

Benjamin v. Alfred George Jordine (1982) 7 A.C. 345 and Hazratullah v. District Council, Haripur 1997 SCMR 1570 rel.

(b) Contract---

----Principles of contract law---Validity of contracts/transactions by illiterate persons---Fraud and undue influence in a contractual arrangement---Burden of proof---Maxim "non est factum"---Exceptions in adjudication by Courts for illiterate person(s) vis-à-vis performance of contractual obligations---Scope---"Non est factum" ("it is not my deed,) was a defence in contract law which allowed a signing party to escape performance of an agreement which was fundamentally different from what he or she intended to execute or sign---Person challenging the validity of a transaction, ordinarily, on the ground of fraud or undue influence, had to discharge burden of proof---Major exception to said rule was when such burden of proof would shift if it were brought to the notice of the Courts such person was illiterate---Illiteracy was regarded as a misfortune and not a privilege and some measure of protection was accorded to illiterate persons in their contractual transactions---Burden of proof in respect of genuineness of a transaction with an illiterate person and a document allegedly executed by such a person lay on the beneficiary of such document, who was legally obliged to prove and satisfy the Court; firstly, that such document was executed by an illiterate person; secondly that such illiterate person had complete knowledge and full understanding about the contents of the document; thirdly that such document was read over to him/her and terms of the same were adequately explained to him/her; and fourthly, that he/she had independent and disinterested advice on the matter before coming into the transaction and executing the document---Incumbent upon a person who wrote any document at the request, or on behalf, or in the name of any illiterate person to also to write on such document, his/her own name as the writer thereof and his address as well as the endorsement to the effect that such document was written in presence of the such person's consultant who could read and write the language of the document; and understood the contractual transaction; and had no conflict of interest and had advised the illiterate person about the contractual transaction---Factor of advice could not be treated lightly as a mere formality and law contemplated effective, meaningful and purposeful consultation of the illiterates with a person who could read and write the language of the document, comprehend the implication of contractual transaction, and had no conflict of interest; in order to establish "consensus ad idem"

Mitti Bewa v. Daitari Nayak and others AIR 1982 Orissa 174; Umesh Bondre v. Wilfred Fernandes AIR 2007 Bombay 29; Mt. Farid-ud-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 PC 204; Chainta Dasya v. Bhalkur Das AIR 1930 Calcutta 591; Parasnath v. Tileshra Kuav (1965) All LJ 1080; Daya Shankar v. Smt. Bachi and othes AIR 1982 All 376; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609; Khawas Khan through legal heirs v. Sabir Hussain Shah and others 2004 SCMR 1259; Muhammad Ashraf Khan v. Khan Siddique and others 2010 SCMR 1116; Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi and others 2013 SCMR 868; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225 and Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74 rel.

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

----S. 12---Suit for specific performance of agreement to sell immoveable property---Requirements---Deposit of balance amount--- Pleadings---Essentials---Plaintiff in a suit for specific performance of agreement to sell immoveable property ought to plead and prove not only his willingness, which was a mental process, but also his/her readiness which was something do with translating will into action, and such suit should have been preceded by necessary preparation by plaintiff for being a position to be ready financially to pay the purchase price.

Muhammad Yaqub v. Muhammad Nasrullah Khan and others PLD 1986 SC 497; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Mubarak Ali v. Tula Khan alias Sadullah Khan 1985 SCMR 236; Muhammad Yaqub v. Muhammad Nasrullah Khan and others PLD 1986 SC 497; Bishambhar Nath Agrawal v. Kishan Chand and others AIR 1998 Allahabad 195; Bootay Khan through legal heirs v. Muhammad Rafiq and others PLD 2003 SC 518 and Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2022 rel.

Muhammad Anwar Butt for Petitioner (in C.R.No.3204 of 2015).

Javed Iqbal Saif for Petitioner (in C.R.No.2946 of 2015).

Qari Nadeem Ahmad Awaisi for Respondent No.1.

P L D 2019 Lahore 346

Before Amin-ud-Din Khan, J

SALEEM SHAHADAT---Appellant

Versus

Mst. NOOR JEHAN and another---Respondents

R.S.A. No.42077 of 2017, heard on 26th February, 2019.

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

----S. 54---Agreement to sell immoveable property---Caption of agreement, relevancy of---Intention of parties, determination of---When considering intention of the parties it was the body of the document and not its caption, which was considered---Court had to judge the document keeping in view the whole facts, the pleadings, the evidence produced by the parties and evaluate the matter in the light of the codified law as well as the principles of interpretation of statutes and the law declared by the superior Courts.

(b) Evidence---

----Documentary evidence could not be negated by oral evidence.

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

----S. 54---Agreement to sell immoveable property---Payment of token money---Token receipt document---Interpretation---Whether token receipt document amounted to a contract/agreement to sell---Case pleaded by the plaintiff was that the defendants agreed to sell the suit property in his favour through the receipt of token money; that the terms of the token receipt document mentioned that the same terms were to be written on the requisite stamp paper---Defendants contended that they did not agree to sell the property in favour of the plaintiff and agreement was yet to be written---Held, that perusal of the token receipt document ('the document') showed that it was an agreement to sell; that its plain language amounted to a contract when offer, acceptance, the detail of property, the full consideration amount, the mode of payment, the period of payment, amount of earnest money and the receipt thereof were admitted facts---Sentence within the said document ( ) indicated the intention of parties that same (terms) would be written on the stamp paper---Even in the pleadings as well as in the oral evidence or through any other document no case had even been introduced by the defendants that there were any other terms of the agreement except mentioned in the token receipt.

The Interpretation of Contracts by Sir Kim Lewison, A Lord Justice of Appeal, 5th Edn. and The Law of Contract by Sir Guenter Treitel, Q.C., D.C.L., F.B.A. ref.

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

----S. 54---Agreement to sell immoveable property---Written terms of agreement---Such terms could not be denied by oral assertions.

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

----S. 12---Decree in a suit for specific performance---Scope---Such decree was a declaration of the maturity of the contract which was enforced through its execution.

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

----S. 12---Transfer of Property Act (IV of 1882), S.54---Specific performance of agreement to sell immoveable property---Dishonest intentions of vendors causing delay in performance of agreement---Defendants/vendors came to the court with a dishonest defence refusing the agreement with the plaintiff/vendee---Plaintiff came to the court within four weeks from the day of writing of the agreement to sell, whereas the final payment under the said agreement was to be made within thirteen weeks of the said agreement---One of the defendants appeared in the court as the sole witness and against the oral as well as documentary evidence of the plaintiff no evidence was produced by the defendants except the statement of one of the defendants, which was a lie---Defendants caused the delay in performance of the agreement to sell, therefore, they had to suffer for it---Suit for specific performance with regard to the suit property filed by the plaintiff was decreed in his favour---Appeal was allowed accordingly.

Khalid Ishaq, Syed Moazzam Ali Shah, Abid Sial, Babar Afzaal, Adeel Shahid Kareem, Wajahat Ali and Ahmed Saeed for Appellant.

Alamdar Hussain for Respondents.

P L D 2019 Lahore 363

Before Muzamil Akhtar Shabir, J

ASAD ALI KHAN---Petitioner

Versus

SPECIAL JUDGE RENT and others---Respondents

Writ Petition No.252439 of 2018, decided on 8th February, 2019.

(a) Punjab Rented Premises Act (VII of 2009)-

----Ss. 15 & 2(e)---Eviction petition---'Pagri', determination of---Expiry of lease agreement---Oral tenancy---Initial period of tenancy was for 11 months which was extendable by mutual consent of the parties-Tenant claimed that tenancy was orally extended for unlimited period and he had paid 'pagri' for the same---Rent Tribunal ordered for eviction of tenant---Appellate Court upheld the order of eviction and remanded the matter to the extent of payment of 'pagri'---Validity---Where period of tenancy had expired, the tenant who relied upon its extension had to establish through cogent evidence the time period for which it had been extended otherwise oral extension would tantamount to extension of one month only and such tenancy had to be extended on each and every successive month and terminable at one month's notice---Filing of ejectment petition was itself a notice for termination of tenancy---No document had been placed on record to substantiate the claim of payment of 'pagri'---'Pagri' was not mentioned in the agreement and tenant claimed to have paid the same subsequently---Question of payment of 'pagri' could not be clubbed with the question of expiry of period of tenancy and both were to be dealt with separately---Appellate Court was justified in maintaining the order of eviction and separately remanding the matter relating to 'pagri' for determi-nation by Rent Tribunal----Constitutional petition was dismissed.

Zaheer Ahmed Babar v. Additional District Judge, Lahore and 2 others 2015 YLR 1617 distinguished.

Muhammad Nayab v. Additional District Judge, Rawalpindi and 2 others 2016 MLD 1095; Muhammad Taufeeq v. Muhammad Nawaz and 2 others 2015 CLC 1187; Aftab Ahmad Raja v. Malik Faizullah Khan Afridi and others 2011 YLR 2205 and Sardar Muhammad v. Khawaja Muhammad Nazar 2004 CLC 289 ref.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 15---Eviction petition---Tenancy agreement, expiry of---Oral tenancy---Ejectment of tenant---Where period of tenancy had expired, the tenant who relied upon its extension had to establish through cogent evidence the time period for which it had been extended otherwise oral extension would tantamount to extension of one month only and such tenancy had to be extended on each and every successive month and terminable at one month's notice---Filing of ejectment petition was itself a notice for termination of tenancy.

Muhammad Nayab v. Additional District Judge, Rawalpindi and 2 others 2016 MLD 1095; Muhammad Taufeeq v. Muhammad Nawaz and 2 others 2015 CLC 1187; Aftab Ahmad Raja v. Malik Faizullah Khan Afridi and others 2011 YLR 2205 and Sardar Muhammad v. Khawaja Muhammad Nazar 2004 CLC 289 ref.

Asif Iqbal and Abdullah Chaudhry for Petitioner.

P L D 2019 Lahore 366

Before Qazi Muhammad Amin Ahmed, J

YASIR AYYAZ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1052 and 1085 of 2017, heard on 30th January, 2019.

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

----S. 376(2)---Prevention of Electronic Crimes Ordinance (XIV of 2009), S.13---Rape committed by two or more persons in furtherance of common intention, cyber stalking---Appreciation of evidence---"Consent" and "submission" by victim---Analysed---Prosecution case was that the accused persons committed rape with the daughter of the complainant and captured the incident on a cell phone camera---Prosecution had relied upon video footage, film prepared by the accused graphically capturing the assault upon the prosecutrix---Hand phone sets, memory cards as well as subscriber identity module secured during the course of investigation dispatched to Forensic Science Laboratory, the report of which confirmed the integrity of video footage-Video was played in the court in the presence of accused persons---Accused were unmistakably featured while assaulting the prosecutrix, one by one, in a manner nauscatic and abhorrent---Digitally generated evidence through the automated process stored in memory card was not amenable to human interference, as confirmed by forensic analysis---Sciences did not perjure-Contents of the footage were confronted, the accused had nothing to offer in their defence-Memory card established the culpability in terms ot Art. 22 of the Qanun-e-Shahadat, 1984, leaving no space to entertain any hypotheses of mistaken identity or their innocence---Alleged consent of prosecutrix was outrangeously scandalous to say the least-Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent---Prosecutrix was on way when intercepted and taken to a nearly place in a rural neighbourhood---Circumstances suggested that it was inconceivable that she would consent for the treatment meted out to her in a most tormenting manner and would also countenance while its detail being captured by the accused, which was certainly not expected from unmarried girl in her early twenty from a rural neighbourhood to be a willing object of a most repugnant exposure and ridicule---Circumstances established that Trial Court had rightly placed implicit reliance on the prosecution evidence so as to return a guilty verdict, therefore, no interference was called for---Appeal was dismissed, in circumstances.

Rao Harnarian Singh v. The State AIR 1958 Pnj.123; Muhammad Raheel alias Shafique v. The State PLD 2015 SC 145 and Malik Muhammad Mumtaz Qadri v. The State PLD 2016 SC 17 rel.

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

----Art. 164---Production of evidence of modern device---Scope---Said Article had revolutionized the scope to accommodate modern innovative techniques to secure, preserve and reproduce the information, hitherto unavailable---Said provision of law independently provided a wide mechanism to bring on record evidence through visual, audio, digital, sonic or biological and other means on the basis of information capable to establish or negate any fact in issue, certainly subject to integrity of the procedure/process, duly qualified in the case.

Raja Ghaneem Aabir Khan, Raja Aamnat Ali Khan and Zohaib Ashraf for Appellants.

Sardar Munir Hussain Munir for the Complainant.

Khawaja Noman ul Haq, A.A.G. assisted by Khalid Pervaiz Uppal, Deputy Prosecutor General with Naveed Aslam, A.S.I. and Muhammad Naeem, I.T. Expert for the State.

P L D 2019 Lahore 373

Before Muhammad Qasim Khan, Sayyed Mazahar Ali Akbar Naqvi, and Ch.Abdul Aziz, JJ

Mst. NAZIA---Petitioner

Versus

STATE through S.H.O. and others---Respondents

Office Objection Diary No.245164 of 2018, decided on 18th March, 2019.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Locus standi of petitioner---For initiation of proceedings under Art.199 of the Constitution it was sine qua non that the petitioner should have locus standi, i.e. petitioner should be an aggrieved party from the impugned action.

Mian Fazal Din v. Lahore Improvement Trust, Lahore PLD 1969 SC 223 and Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak, PSO To Chief Justice and others 2014 SCMR 122 ref.

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

----S. 154---Penal Code (XLV of 1860), S.365-B---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of the High Court---Scope---Quashing of FIR---'Aggrieved person'---Whether an abductee or prosecution witness of an FIR could seek quashing of FIR in Constitutional jurisdiction of the High Court---Held, that petitioner (abductee) or any witness of the FIR, could not be termed as "aggrieved party" as by no stretch of imagination it could be said that any of their Fundamental Rights were infringed by registration of FIR; or that they had suffered any loss; or that they had been wrongfully deprived or refused something which they were legally entitled to, or any restriction had been imposed upon them---Abductee/witness did not fall within the definition of "aggrieved party" to maintain a writ petition to seek quashing of FIR---Office objection regarding maintainability of Constitutional petition was upheld in circumstances.

Ch. Zulfiqar Ali Vahla for the Petitioner.

P L D 2019 Lahore 376

Before Ayesha A. Malik, J

ARSHAD JAVAID GHUMAN---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE and others---Respondents

Writ Petition No.38735 of 2017, heard on 18th March, 2019.

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

----Ss. 2(1)(b), 2(1)(e), 2(1)(o), 4(2) & 6 & Preamble---Gas Utility Court, jurisdiction of---Scope---Allegation of embezzlement and fraud against employee of Sui Northern Gas Pipelines Limited ("the Gas Utility company")---Whether amounts allegedly embezzled and obtained through fraud by the employee could be recovered by the Gas Utility company through the Gas Utility Court---First Information Report (FIR) was lodged against the petitioner-employee for which criminal trial was pending---In the meantime, the Gas Utility company filed a suit for recovery along with damages against the employee and others which was pending in the Gas Utility Court---Employee moved an application stating therein that the Gas Utility Court did not have jurisdiction under the Gas (Theft Control and Recovery) Act, 2016 ("the Act") to proceed against him---Held, that S.4(2) of the Act clarified that the jurisdiction of the Gas Utility Court was limited to disputes of the Gas Utility Company, consumers or gas producers or offenders---Gas Utility Court could exercise jurisdiction over a consumer, a gas producer or an offender as provided under the Act---Petitioner-employee was neither a consumer nor a gas producer or an offender under the Act, hence the said Act had no jurisdiction over the petitioner-employee---Joint reading of Ss.2(1)(o) & 6 of the Act provided that the Gas Utility Court was required to hear complaints and disputes with respect to amounts stated to be due or recoverable where there was purchase and use of gas for self-consumption or sale for vehicles' use---In terms of such definition, the Gas Utility Court could not seek to recover amounts alleged to have been embezzled or stolen by the employees of the Gas Utility company or contractors---Use of the term "gas theft and other offences relating to gas" in the Preamble to the Act did not under any circumstances grant jurisdiction to the Gas Utility Court to recover claims of embezzlement for the Gas Utility company---Nothing in law allowed a Gas Utility company to file claims before the Gas Utility Court alleging embezzlement, fraud and misappropriation of funds by its employees---Constitutional petition was allowed accordingly.

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

----S. 2(1)(o)---'Sums due'---Scope---Term "sums due" was related to amounts due against consumption of gas and would include other charges such as meter rental, late payment charges claimed by the Gas Utility Company or all those (charges) which were related to the consumption of gas by the defendant from the Gas Utility Company.

Ansar Ali Sidhu and Ms. Saira Sabir for Petitioner.

Anwaar Hussain and Imran Khan Klair for Respondent No.2.

P L D 2019 Lahore 380

Before Muhammad Qasim Khan, Sayyed Mazahar Ali Akbar Naqvi, and Ch.Abdul Aziz, JJ

Mst. FARHAT BIBI---Petitioner

Versus

STATION HOUSE OFFICER and others---Respondents

Office Objection Diary No.220363 of 2018, decided on 18th March, 2019.

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

----S. 154---Penal Code (XLV of 1860), S. 365-B---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of the High Court---Scope---Quashing of FIR---'Aggrieved person'---Whether an abductee or prosecution witness of an FIR could seek quashing of FIR in Constitutional jurisdiction of the High Court---Held, that an abductee/witness of an FIR, was not an "aggrieved party" within the meaning of Art. 199 of the Constitution, as such, writ petition filed for quashing of same FIR on their behalf was not maintainable.

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

----Ss. 154 & 497---Constitution of Pakistan, Art. 199---Quashing of FIR in constitutional jurisdiction of the High Court---Scope---Office objection requiring the petitioner to bring on file bail granting order before seeking quashing of FIR through Constitution petition---Legality---Obtaining bail from a court of competent jurisdiction before approaching the High Court in its constitutional jurisdiction for quashing of FIR may be a practice for facility or preference but surely it was not a requirement of any law.

Afrasiab Mohal for Petitioner.

P L D 2019 Lahore 382

Before Ayesha A. Malik, J

IKHLAQ-E-MADINA TOURS AND TRAVELS PRIVATE LIMITED---Petitioner

Versus

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

Writ Petitions Nos.13829, 13144, 13145, 13818, 13819, 13820, 18678, 23938, 15188, 17952, 18007, 19716, 22709, 18969, 20673 and 22271 of 2019, heard on 18th April, 2019.

(a) Hajj Policy and Plan 2019---

----Quota of pilgrims---Old and new Hajj Group Organizer Companies ("HGOs")---Separate criteria for assessment---No discrimination---Petitioners challenged the Hajj Policy and Plan 2019 ("Hajj Policy 2019") on the ground that they had not been issued a quota of pilgrims despite the fact that they were Hajj Group Organizer Companies ("HGOs") who were duly enrolled and entitled to the quota of pilgrims for Hajj 2019; that Hajj Policy 2019 was illegal and arbitrary because it did not equally distribute the quota of pilgrims for Hajj 2019; that on the basis of the criteria set out in the Hajj Policy 2019 the petitioners were discriminated against as they did not have the requisite experience of conducting Hajj, hence they would never be eligible since this was the primary criteria, and that the petitioners faced discrimination as the relevant authorities were still maintaining old HGOs and new HGOs list, such that the new were considered against a 2% quota only---Held, that criteria for Assessment of Profiles of new HGOs was placed before the High Court for assessment of new profiles and as per the criteria it was based on the judgment of the Supreme Court of Pakistan in Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others (PLD 2014 SC 1) ("Dossani Travels Case")---On the basis of said criteria for new HGOs a merit list had been made which provided for the name of the HGO, the Province from which it was applying, year of its incorporation, year of its tax return filing, year of Securities and Exchange Commission of Pakistan (SECP) filings and experience in carrying out Umrah---On the basis of the marks obtained in these categories, the overall marks set out the merit---In terms of the merit list provided, the cases of the petitioners had been considered and their names were duly incorporated in the merit list---However, for the purposes of the allocation of quota of pilgrims to new HGOs, the first 35 HGOs had been selected as the quota was satisfied till Serial No.35---With reference to old HGOs a criteria had also been provided to ensure that they met the given standards---Old HGOs were the HGOs who were providing Hajj services, hence were scrutinized considering their past Hajj services---New HGOs were those who had never carried out Hajj services yet were considered on the basis of Umrah services---Such distinction did not suggest discrimination rather showed that a thought through process had been put in place to consider all HGOs favourably---Ministry of Hajj in 2019, reserved an additional 5000 Hajj quota for allocation to newly enrolled HGOs in compliance of the order of (Islamabad) High Court and against another quota as promised by the Saudi King, which would give newly approved HGOs the opportunity to be issued Hajj quotas---In terms of the criteria set out for old and new HGOs, there appeared to be no arbitrariness or randomness in the selection process---Hajj Policy 2019 provided for a Hajj Policy Formulation Committee ('the Committee') which included Secretary, Ministry of Religious Affairs as Chairman, representative from the office of the Attorney General for Pakistan, from the Ministry of Foreign Affairs, and Ministry of Law and Justice and representative from the Competition Commission of Pakistan---Bare look at the members who sat in the Committee showed that it was an impartial Committee comprising of a diverse set of members who formulated the Hajj Policy 2019 and the criteria for allocation of Hajj quota---Hajj Policy 2019 was approved by the Cabinet whereafter the quota allocation process was started---Petitioners along with other HGOs were all duly considered, on the basis of which a merit list was made---Assessment was made by engaging a third party, which was a well reputed Chartered Accountant, hence the question of favouritism and random picking of HGOs had no force---Hajj Policy 2019 and quota allocated thereunder was in compliance with the pronouncement of the Supreme Court especially the "Dossani Travels Case"---Fact that every HGO could not be accommodated while allocating Hajj quota did not tantamount to discrimination and the fact that petitioners (HGOs) had not been given Hajj quota also did not suggest discrimination---High Court directed that any grievances of the petitioners regarding selection of HGOs contrary to the criteria could be raised before the Committee, and in the event that such applications were filed before the Committee, the same shall be decided expeditiously so as to prevent any disturbance in the allocation of Hajj quota---Constitutional petition challenging the Hajj Policy 2019 was dismissed accordingly.

Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) and others PLD 2014 SC 1 and Muhammad Arif Idrees and others v. Sohail Aamir and others 2017 SCMR 1379 ref.

(b) Hajj Policy and Plan, 2019---

----Quota of pilgrims---Hajj Group Organizer Companies ("HGOs") and tour operators having experience of Ziarats only---Hajj quota not awarded to Ziarat operators---Policy decision---No discrimination---Plea of petitioner, who was a specialist in Ziarat tours, that on the basis of the Hajj Policy and Plan 2019 (Hajj Policy 2019) past performance of the tour operators was to be judged on Hajj or Umrah only and not Ziarat operations; that operators who specialized in Ziarat only were being discriminated against in the matter of allocation of Hajj quota---Held, that the stance of the Government was that matter of Ziarat operations were duly considered by the Hajj Policy Formulation Committee ('the Committee') and it was decided that Hajj quota would not be given to those tour operators who only had experience in Ziarat operations as there was no way to verify their credentials or information on the basis of which it could be ascertained whether the tour operator had carried out Ziarat operations and whether there were any complaints or problems related thereto; that for the purposes of Umrah, the Kindgom of Saudi Arabia issued Umrah ID, hence it was verified and only Umrah ID holders were considered, however, there was no official ID given for the purposes of Ziarat operations, and that the Committee on the recommendations of the Competition Commission of Pakistan in the larger interest of allocation of Hajj quota decided that Ziarat operations would not be considered under the Hajj Policy 2019---No plea of arbitrariness or discrimination could be raised in the present case as the Committee was well within its domain to determine the Hajj Policy 2019 and was not obligated to include Ziarat operations under any judgment of the Supreme Court---Committee had rationalized its reasons to explain why Ziarat operations had not been considered in the Hajj Policy 2019 which explanation had been accorded by the Competition Commission as per the requirements of the judgment of the Supreme Court of Pakistan in Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others (PLD 2014 SC 1) ("Dossani Travels Case")---Cabinet had also approved the Hajj Policy 2019 which set out a transparent process to allocate Hajj quota---Constitutional petition challenging the Hajj Policy 2019 was dismissed accordingly.

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

Petitioners by:

M. Asad Manzoor Butt, Abdul Rasheed Baloch and Mian Ghazanfar Ali Joiya (in W.Ps. Nos.13829, 13144, 13145, 13818, 13819, 13820, 18678 and 23938 of 2019).

Tafazul Haider Rizvi, Haider Ali Khan and Muhammad Usman (in W.P. No.15188 of 2019).

Muhammad Anwar Bhatti (in W.Ps. Nos.17952, 18007, 19716 and 22709 of 2019).

Aleem Baig Chughtai (in W.P.No.18969 of 2019).

Adnan Ahmad Chaudhary (in W.P.No.20673 of 2019).

Dost Muhammad Kahoot (in W.P.No.22271 of 2019).

Respondents by:

Ms. Ambreen Moeen, D.A.G. along with Muhammad Arif Zahoor, Deputy Assistant Director, Ministry of Religious Affairs and Interfaith Harmony, Directorate of Hajj, Lahore.

P L D 2019 Lahore 395

Before Muhammad Farrukh Irfan Khan, J

Messrs EASTERN MEDICAL TECHNOLOGYSERVICES---Petitioner

Versus

PROVINCE OF PUNJABand others---Respondents

Writ Petition No.228725 of 2018, decided on 29th January, 2019.

Punjab Procurement Regulatory Authority Act (VIII of 2009)---

----S. 17-A---Punjab Procurement Regulatory Authority Rules, 2014, Rr.38(2)(b) & 67---Partnership Act (IX of 1932), Ss.4, 6 & 42---Partnership, existence of---Bidding prequalification---Petitioner was a two member partnership firm and was aggrieved of cancellation of bid by Grievance Committee on grounds that death of one partner had rendered partnership dissolved---Contention of respondents was that name of deceased partner was appended with prequalification application was a misrepresentation and as such petitioner was not eligible to participate in bidding process under Punjab Procurement Regulatory Authority Rules, 2014---Validity---Decision of Grievance Committee was based on wrong notion that petitioner firm was no more a legal partnership on date of submission of proposal for prequalification---Formal notice of change in constitution of firm was received in office of Registrar but this objection was not available with the authorities---Tender documents did not require applicant to be a registered partnership firm; there was no provision for re-registration of partnership upon death of a partner or reconstitution of firm---Failure to notify a change in constitution of partnership did not affect existence of partnership or validity of any acts undertaken by partnership firm---After death of one of founder partners, petitioner firm in same name and style already registered was in existence and not dissolved at time of submission of pre-qualification application---Incorrect list of partners was not of material nature which would have induced procuring agency in awarding contract or effect any decision pertaining to technical or financial evaluatin of petitioner firm---Procureing agency did not specify any requirement for applicant bidder to be a particular type of entity or business structure---High Court set aside decision of Grievance Committee as it was based on erroneous interpretation of proposition of law and was devoid of any legal force---Petitioner was valid and existing partnership firm at time of submitting prequalification application---Constitutional petition was allowed in circumstances.

Noorani Travels v. Muhammad Hanif 2008 SCMR 1395; Naryanan Chettiar v. Umaval Achi AIR 1959 Mad. 283; Haramohan v. Sudarson AIR 1921 Cal. 538 and Messrs Nishat Mills v. Superintendent of Central Excise Circle II PLD 1989 SC 222 ref.

Mian Sami-ud-Din, Ameer Hamza Dogar, Syed Shariq Bin Afzal for Petitioner.

Usman Akram Sahi for Respondent No.4.

Tayyab Farid, Porocurement Specialist, SHC&ME Department.

Asif Mehmood Cheema, Additional Advocate-General for Respondents.

P L D 2019 Lahore 407

Before Jawad Hassan, J

ASIF SALEEM---Petitioner

Versus

CHAIRMAN BOG UNIVERSITY OF LAHORE and others---Respondents

Writ Petition No.28791 of 2019, decided on 13th May, 2019.

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

----Preamble---Constitution of Pakistan, Arts. 14, 25(3) & 34---Sexual harassment of women, protection against---Protection of women from being harassed at the workplace was already enshrined under the Constitution but was subsequently also provided under the Protection Against Harassment of Women at the Workplace Act, 2010---Said Act was not confined only to the relationship of an employer and employee; but it extended to all acts of sexual harassment committed by employer or employee with any women (at the workplace) by misusing/exploiting his/her official position/capacity---Intention of the legislature for enacting the Act was to protect all employees from being harassed or exploited during employment which could be at the workplace or any environment as specified in their terms and conditions of the employment---Any worker who was employed in any manner or capacity with the employer was protected from being harassed.

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

----Preamble---Sexual harassment---Adverse effects on victim---Sexual harassment, and harassment on non-gender discriminatory grounds, polluted the working environment and could have a devastating effect on the health, confidence, morale and performance of those affected by it---Commonly, the anxiety and stress produced by sexual harassment and harassment may lead to those subjected to it taking time off work due to sickness and stress, being less efficient at work or leaving their job to seek work elsewhere---Employees often suffered the adverse consequences of the harassment itself and, in addition, the short and long term damage to their employment prospects if they were forced to forego promotion or to change jobs---Sexual harassment and harassment may also have a damaging impact not only on employees themselves but also those who witnesses it or had knowledge of the unwanted behavior.

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

----Preamble---Sexual harassment---Survey of case law from different jurisdictions dealing with the issue of harassment of women at workplace.

Sexual Harassment of Working Women (New Haven; Yale University Press, 1979; Meritor Savings Bank v. Vinson (1986) 477 U.S. 57; Harris v. Forklift Systems Inc. (1993), 510 U.S. 17; Joseph Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998); Ellison v. Brady, (1991) 9th Circuit, 924 F:2d, 872; Western Excavation (EEC) Ltd. v. Darby [(1978] IRLR 27; Vishaka's Case AIR 1997 SC 3011; Rupan Deol Bajaj's case (1995) 6 SCC 194; S. Samuthiram's case 2013 AIR (SC) 14; Manisha Sarma's case 2014(12) R.C.R. (Criminal) 1091 and Shardaben Murlibhai Gurjar's case 2015(2) GLR 1620 ref.

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

----S. 4(4)(ii)(d)---Constitution of Pakistan, Arts. 25 & 34---Assistant Professor and student of Doctorate (Ph.D) at a university---Sexual harassment, allegation of---Removal from service and expulsion from the university as a student---Petitioner was serving as Assistant Professor in a university and was also a student of Doctorate studies at the same university---Complaint of sexual harassment was lodged against the petitioner by one of his female student alleging therein that the petitioner harassed her sexually by way of sending her vulgar text messages and forced her to visit his accommodation and cook food for him; that the petitioner showed his intention of having sex with her; and that some other girls also faced sexual harassment by the petitioner---Inquiry was initiated and the petitioner was dismissed from service and was also expelled from the university as a student---Ombudsperson modified the order of the competent authority and converted the penalty from 'dismissal from service' to 'removal from service'---Petitioner alleged that some staff members/colleagues in the university were jealous of his fame and they devised a plan in league with the complainant-student to defame/trap him and consequently filed concocted complaint against him---Held, that it was a matter of common sense that a lady would not ruin her modesty/dignity/respect by making a false complaint of sexual harassment just to defame a person/colleague student---Protection Against Harassment of Women at the Workplace Act, 2010 had been promulgated for the safety of persons who felt unsecure at the workplace and to punish transgressors for their act of sexual harassment, abuse or assault---Such acts had to be condemned and discouraged, especially in educational institutions---Persistent and unwanted amorous advances by the petitioner towards a female student would amount to a fundamental breach of the implied term of mutual trust and confidence---With more and more girl students, women etc. going to educational institutions, work places etc., their protection was of extreme importance to a civilised and cultured society---Under Arts. 25 & 34 of the Constitution it was everyone's constitutional duty to protect women to ensure their full participation in all spheres of national life---Admittedly the petitioner was awarded major penalty after an inquiry into the matter by the competent authority---By taking a lenient view the Ombudsperson had already modified his major punishment from 'dismissal from service' to 'removal from service'---Furthermore in his capacity as a Ph.D. student, if the petitioner was allowed to continue his studies in the said University, he would remain a constant threat to the victim as well as other female students---In order to create a safe and healthy educational environment for all the female students, the presence of the petitioner in the university (even as a student) was unwarranted and unjustified---Petitioner failed to point out any infirmity, perversity and illegality in the inquiry conducted by the University as well as in the decision of the Higher Education Commission, which recommended removing the petitioner from the Ph.D. program---Constitutional petition was dismissed.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition dismissed in limine---Limine control, doctrine of---Scope---General practice of Courts was that instead of dismissing the petition at limine stage, notices were issued to the respondents who not only faced inconvenience but also suffered monetary loss---In appropriate circumstances for early and expeditious disposal of petitions and other cases pending in the Courts all over the country and in order to strengthen the perception of general public about the rule of law, there was an urgent need to adopt the 'limine control doctrine'.

Billy Blanks ET AL. v. Seyfarth Shaw LLP et al. 171 Cal. App. 4th 336 (2009) 89 Cal. Rptr.3d 710; Hawthorne Partners, an Illinois Generl Partnership v. AT & T Technologies, Inc., a New York Corporation, and ENSR Corporation, a Delavare Corporation 831 F. Supp. 1398 (1993); Muhammad Mustafa's case PLD 1992 SC 62; Malik Gul Hassan's case 1995 CLC 1662; 2017 PLC (C.S.) 304; 1988 SCMR 1680; 2014 CLC 1348; 2011 MLD 373; 2010 MLD 692; 2010 MLD 315; 2010 YLR 1143; 2010 YLR 2691; 1987 SCMR 1910; 2008 CLC 593; PLD 2008 Lah. 364; 2007 PCr.LJ 985; 2007 MLD 1096; 2007 PLC (C.S.) 138; 2017 PLC (C.S) 304; 2017 PLC (C.S.) Note 24; 2017 YLR 1684 and 2004 MLD 1834 ref.

(f) Words and phrases---

----'In limine'---Meaning.

Black's Law Dictionary 5th Ed. 1979 ref.

(g) Appeal---

----Appeal dismissed in limine---Limine control, doctrine of---Scope---In appellate domain the Superior Courts could and did apply doctrine of 'limine control' to dismiss appeals in limine---Instances/ circumstances where appeals were dismissed in limine stated.

2008 SCMR 635; 2006 SCMR 895; PLD 2004 SC 10; 2003 SCMR 1790; PLD 2002 SC 720; 2001 SCMR 2016 and 1998 SCMR 1970 ref.

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

----O. VII, Rr. 10, 11, O. XV & O. XLI, R. 11---Specific Relief Act (I of 1877), S. 56---False/frivilous claims, dismissal of---Limine control, doctrine of---Scope---Public policy and case management plan---High Court observed that due to huge pendency of false, frivolous and malicious claims and to curtail undue harassment of defendants and to generate public confidence in the judicial system, it was advisable that the Trial Courts/lower appellate Courts should judiciously and equitably apply doctrine of limine control through effective use of provisions of Civil Procedure Code, 1908 i.e. 'O.VII, R.11', 'O.VII, R.10', 'O.XV, Rr.1 to 4', 'O.XLI, R.11' & S.56 of Specific Relief Act, 1877; that court could always nip a frivolous suit in the bud in order to retain its docket and time for more serious claims, and that such exercise of discretion was grounded on good public policy and case management plan.

Shahbaz Ali Bhatti for Petitioner.

Rai Shahid Saleem Khan, Assistant Advocate-General.

Sadia Malik, Assistant Assistant Attorney General.

P L D 2019 Lahore 429

Before Muhammad Farrukh Irfan Khan and Ch. Muhammad Iqbal, JJ

Dr. RIAZ QADEER KHAN---Petitioner

Versus

PRESIDING OFFICER, DISTRICT CONSUMER COURT, SARGODHA and others---Respondents.

Writ Petitions Nos.25875 of 2013, 7790, 7789 of 2012, 15532 of 2013, 13575 of 2014 and 7887 of 2016, heard on 31st January, 2019.

(a) Interpretation of statutes---

----Where existed a conflict between a special law and a general law, the former would prevail over the latter.

Syed Mushahib Shah and others v. Federation Investment Agency and others 2017 SCMR 1218 rel.

(b) Punjab Healthcare Commission Act (XVI of 2010)---

----Ss. 29, 3 ,4 & 2(xvii)---Constitution of Pakistan, Art. 142 & Fourth Sched. Part II, Entry 11---Punjab Consumer Protection Act (II of 2005) S.27---Jurisdiction of Consumer Court---Malpractice and maladministration by healthcare provider---Subject-matter of Federal and Provincial laws---Question before the High Court was whether Consumer Courts were a competent forum for claiming damages in respect of alleged medical negligence or whether Punjab Healthcare Commission had exclusive jurisdiction in respect of the same; and furthermore, whether under the Constitution, a provincial law such as Punjab Healthcare Commission Act,2010 could be used to adjudicate dispute regarding the medical profession, which existed in the Federal Legislative List---Held, that in view of definition of "healthcare service provider" given in S.2(xvii) of Punjab Healthcare Commission Act, 2010,and Ss.3 & 4 of the same with regard to powers of the Punjab Healthcare Commission; in any case of maladministration and malpractice on part of a "healthcare service provider", the Punjab Healthcare Commission was vested with powers to investigate and impose penalty---Section 29 of the Punjab Healthcare Commission Act,2010 barred proceedings under any other law which included the Punjab Consumer Protection Act, 2005---Punjab Healthcare Commission, therefore, regulated any person who was responsible for provision of healthcare services in the Province---After the Eighteenth Constitutional Amendment, "medical and legal profession" was included in Entry 11 of Part II of the Federal Legislative List, of the Constitution while subject of "public health, sanitations, hospitals and dispensary" was omitted in the same, meaning thereby, that the same fell within Provincial Domain---High Court observed that Constitutional mandate required medical profession be governed by Federal Law and matters related "public health, sanitations, hospitals and dispensary" be regulated by the Provinces---High Court further held that in presence of Punjab Healthcare Commission Act, 2010, Consumer Courts had no jurisdiction to adjudicate on the matters of medical negligence/malpractice or maladministration---Constitutional petition was disposed of, accordingly.

Kh. Muhammad Amjad, Ch. Wasim Ahmad and Muhammad Sheharyar for Petitioners.

Amir Hussain Makan and Malik Muhammad Akbar Awan, Ms.Ambreen Moeen, DAG and Gohar Nawaz Sindhu, AAG for Respondents.

Sohail Shafiq for Respondent No. 5.

P L D 2019 Lahore 435

Before Sayyed Mazahar Ali Akbar Naqvi, Sardar Muhammad Sarfraz Dogar, Asjad Javaid Ghural, Ch. Abdul Aziz and Muhammad Waheed Khan, JJ

Syed SALEEM SHAH---Petitioner

Versus

The STATE and 5 others---Respondents

Criminal Revision No.20 of 2019, decided on 23th April, 2019.

(a) Interpretation of statutes---

----Preamble to a statute---To evaluate any legislation, its Preamble played a vital role in its evaluation to ascertain the intent of legislation---Preamble of any enactment was always considered a key to evaluate the very purpose of its existence, hence, it was always considered as "grundnorm" of legislation.

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

----S. 32---Criminal Procedure Code (V of 1898), Ss.435 & 439---Revision petition filed against interim order of the Special Judge, Anti-Terrorism Court---Maintainability---Special Court constituted under the Anti-Terrorism Act, 1997 ('the Act') was a court of criminal jurisdiction subordinate to the High Court, and in all eventualities was deemed as a court of Session---Revisional jurisdiction of the High Court under Ss. 435 & 439, Cr.P.C. was applicable to all the interim orders passed by the courts constituted under the Anti-Terrorism Act, 1997.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

(c) Jurisdiction---

----Ouster of jurisdiction of superior courts---Scope---Jurisdiction of superior courts with reference to application of general law could not be ousted until and unless it was specifically barred by a provision of special enactment.

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

----Ss. 435 & 439---Special Courts---Revisional powers of the High Court---Scope---As a general application of law revisional jurisdiction of High Court was available in all proceedings carried out before special courts until and unless it was specifically ousted by a special enactment.

Habib Bank Ltd. v. The State and 6 and others 1993 SCMR 1853; Abdul Hafeez v. The State PLD 1981 SC 352 and The State v. Syed Qaim Ali Shah 1992 SCMR 2192 ref.

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

----S. 540---Penal Code (XLV of 1860), Ss. 302, 436 & 297---Anti-Terrorism Act (XXVII of 1997), S. 7---Summoning of investigating officer, application for---Application filed by petitioner for summoning the investigating officers of the case was dismissed by the Anti-Terrorism Court---Held, that recording the statements of both the investigating officers of the case was not only essential to meet the ends of justice, rather it would be advantageous for the trial court to arrive at a just and proper decision of the case in hand, which was the consideration of legislature to frame S. 540, Cr.P.C---Even otherwise, the provision of S. 540, Cr.P.C. reflected that there was no bar to summon the said witnesses at any stage of trial proceedings---High Court directed the trial court to summon both the investigating officers, record their statements and proceed in the matter strictly in accordance with law---Revision petition was allowed accordingly.

Messrs Khawaja Qaiser Butt and Malik Muhammad Amir Khakhi for Petitioner.

Malik Asif Ahmed Nissoana, Deputy Attorney General.

Shan Gull, S. N. Khawar, Additional Advocates General, Ch. Jawad Yaqoob and Asif Afzal Bhatti, Assistant Advocates General.

Abdul Samad, Additional Prosecutor General and Mian Muhammad Awais Mazhar, Deputy Prosecutor General.

P L D 2019 Lahore 448

Before Shujaat Ali Khan, J

MUHAMMAD HUSSAIN MUAWIYAH---Petitioner

Versus

INSPECTOR GENERAL OF POLICE, PUNJAB and others---Respondents.

Writ Petition No.214966 of 2018, decided on 5th March, 2019.

(a) Punjab Holy Quran (Printing and Recording) Act (XIII of 2011) ---

----Ss. 4, 6, 7, 9 & 10---Punjab Holy Quran (Printing and Recording) Rules, 2011, Rr. 8(11) & 8(14)---Constitution of Pakistan, Arts. 20, 31(2)(a) & 260(3)(b)---Penal Code (XLV of 1860), Ss. 298-B & 298-C---Printing/publication of Holy Quran and other religious books of Muslims by non-Muslims---Use of Muslim epithets by non-Muslims--Inaction on the part of the public functionaries to take action against individuals/ publishers/ communities/ organizations involved in preparation/publication of books by using the names of religious books of Muslims---Distortion of text and mutilation of translation---Members of the Quadiani/Lahori/Ahmadi group---As a step towards encouragement of Islamic way of Life, the State had to ensure error-free publication of Holy Quran as it was one of the authentic sources qua Divine Commands---Conjunctive reading of Ss.6, 7, 9 & 10 of the Punjab Holy Quran (Printing and Recording) Act, 2011 ('the Act') made it clear that neither any Muslim was permitted to distort the text of an Ayah (of the Holy Quran) nor a non- Muslim was allowed to translate or interpret the Holy Quran contrary to the belief of Muslims nor any company/ publisher/body corporate/community was allowed to indulge in such activity---While pre-empting any misadventure on the part of non-Muslims against preservation of original text of Holy Quran or its literal meanings the law-makers under R.8(14) of the Punjab Holy Quran (Printing and Recording) Rules, 2011 ('the Rules') had clarified that a non-Muslim could not associate or be associated in printing or publication of the Holy Quran---In terms of Art.260(3)(b) of the Constitution Ahmadis/Lahoris/Quadianis fell within the definition of non-Muslims, thus, they were debarred to publish/print religious material, in particular the Holy Quran, by using the name of books of the Muslims alongwith names of Muslim authors---Under the garb of freedom of every citizen to follow or propagate his own religion or faith, the non-Muslims, including Ahmadis/Lahoris/ Quadianis, could not be allowed to use the distinctive characteristics of the Muslims to camouflage their identity---One of the reasons for banning the use of epithets/ distinctive characteristics of Muslims by non-Muslims was to desist them from posing themselves to be Muslims---Non-Muslims, who were involved in activities to encroach upon the rights and privileges of the Muslim community to the utter disintegration of the Ummah, could not be left unbridled on account of immunity provided under the Constitution---Constitutional petition was disposed of accordingly with certain directions.

Zaheer Uddin and others v. The State and others 1993 SCMR 1718 and Mirza Khurshid Ahmad and another v. Government of Punjab and others PLD 1992 Lah. 1 ref.

(b) Equity---

----Person who sought equity must do equity.

(c) Public functionary---

----While performing their duties the public functionaries were bound to ensure protection/sanctity of a dwelling place but the said restriction could not be used to enable an accused person to wash away the evidence qua his involvement in illegal/unlawful activities.

(d) Punjab Holy Quran (Printing and Recording) Act (XIII of 2011)---

----Ss. 4, 6, 7, 9 & 10---Punjab Holy Quran (Printing and Recording) Rules, 2011, Rr. 8(11) & 8(14)---Constitution of Pakistan, Arts. 20, 31(2)(a), 36 & 260(3)(b)---Penal Code (XLV of 1860), Ss. 298-B & 298-C---Printing/publication of Holy Quran and other religious books of Muslims by non-Muslims---Use of Muslim epithets by non-Muslims ---Members of the Quadiani/Lahori/Ahmadi group---Direction issued by the High Court to ensure compliance with provisions of the Punjab Holy Quran (Printing and Recording) Act, 2011 and the Punjab Holy Quran (Printing and Recording) Rules, 2011 enumerated.

Following are the directions issued by the High Court to ensure compliance with provisions of the Punjab Holy Quran (Printing and Recording) Act, 2011 ('the Act') and Punjab Holy Quran (Printing and Recording) Rules, 2011 ('the Rules'):

(i) Federal as well as the Provincial Government shall ensure availability of a standard copy of Holy Quran along with its literal meaning, at Federal, Provincial, District and Tehsil levels, duly approved by the respective Quran Boards to use it as a specimen to determine as to whether any subsequent publication qualified the test of authenticity of original text of Holy Quran and its literal meaning or not;

(ii) Federal as well as Provincial Government shall take steps to ensure that only the printers/publishers, authorized by the Quran Board, were allowed to print Holy Quran and other religious books of the Muslims. Further, the authorized printers/publishers be bound down to give specific Bar/QR code as well as distinct serial number against each copy of every religious book, in particular the Holy Quran, to know the authenticity of the said book and to fix responsibility in case of any omission/commission on the part of any publisher/printer. Furthermore, each page of the Holy Quran be embossed with name of the publisher/company in order to eliminate the possibility of replacement of any page at subsequent stage;

(iii) Federal Government, in collaboration with other stakeholders, in particular Pakistan Electronic Media Regulatory Authority (PEMRA) and the Pakistan Telecommunication Authority (PTA) shall take measures to ensure that the search engines/ websites showing proscribed religious material were blocked. Further, only the websites which were registered with PTA and possessed certificate from the Quran Board regarding authenticity of the religious material, in particular the Holy Quran, be allowed to display online Holy Quran and other religious books of the Muslims. Moreover, all other unregistered websites, displaying such religious material against its original text and literal meaning, be blocked forthwith. For such purpose, the Federal as well as the Provincial Government shall display at conspicuous places, in particular the web portals owned and operated by the government, the registered/approved websites for information of the public-at-large;

(iv) Federal Government shall ensure that the e-copy of Holy Quran, duly approved by the Quran Board, was available at different application stores (such as Google Play Store, App Store and Windows Store etc.) for reference. Further, the Ministry of Foreign Affairs should take up the matter with the managers/owners/operators of the application stores to remove every application containing unauthentic text of the Holy Quran and other religious books of Muslims;

(v) Every printer/publisher be bound down to put a certificate at the end of each copy of Holy Quran to the effect that the same was 100% compliant with the copy approved by the Quran Board. Moreover, the contact numbers (telephone, e-mail id and Facebook id etc.) of the Quran Board should be available on each and every copy of the Holy Quran to facilitate the reader to highlight any issue relating to printing and publication of religious material of Muslims in particular the Holy Quran;

(vi) In case of surfacing of any book even with the name of Holy Quran but with distorted text or mutilated translation shall be confiscated forthwith and the individuals/communities or the corporate bodies/companies involved in publication of said book be taken to task while implementing the provision of the Act and the Rules made thereunder;

(vii) Quran Board at Provincial and Federal level shall be made more efficient to have a vigilant eye on publication and printing of any religious material in particular the Holy Quran against its original text or authentic meaning;

(viii) All the communities, companies, bodies corporate, publishers and individuals be bound down to give free access to the Chairman of the Quran Board, at any time, for inspection of the site used for publication of Holy Quran and other religious books;

(ix) All the public functionaries, in particular law enforcement agencies, shall ensure that no religious material was imported from abroad without issuance of NOC in terms of Rule 8(11) of the Rules, and if any importer, stockist, bookseller or recording company was found involved in selling/delivery of any banned material, firstly, the importer be taken to task and, secondly, the recipient of said material be also proceeded against in terms of Rule 9 of the Rules;

(x) All non-Muslim communities be sensitized about the repercussions of printing/publication of material by using names of the religious books of the Muslims, in particular the Holy Quran, using the name of the Muslim authors. Further, the non-Muslims in particular Ahmadis/Lahoris/Quadianis be restrained to use the epithets of the Muslims;

(xi) All the wings of the Law Enforcement Agencies be mobilized to curb printing/publication of any proscribed material by the non-Muslims;

(xii) Necessary measures be taken for interfaith harmony amongst the citizens representing different religions, communities, clans and localities;

(xiii) Necessary measures be taken for safeguarding the rights of minorities in terms of Articles 20 and 36 of the Constitution provided they were not involved in any activity which offended against any provision of the Act or the Rules;

(xiv) Quran Board, Cabinet Subcommittee on Law and Order in the province, Provincial Committee Muthida Ulma Board, Police Department, Auqaf, Provincial Religious Affairs Department, Provincial Association of Publishers and Traders of Religious Books and Information Technology Department shall coordinate inter-se with regular intervals and their deliberations shall be shared with the Federal Ministry of Religious Affairs and Interfaith Harmony, to formulate a uniform policy/SOP for the entire country to curb printing and publication of proscribed religious material;

(xv) Federal as well as the Provincial Government shall ensure that before accepting copy of Holy Quran, published in a complete form, or in the form of parts (paaras) or chapters (surahs), in any mosque, shrine, institution, religious or otherwise, the head/owner/operator/ organizer of the said institutions, shall confirm that the same was in line with the standard copy of the Holy Quran;

(xvi) Federal as well as the Provincial Government shall ensure that the Holy Quran and other religious material being taught in different institutions conformed with the standard copy duly certified by the Quran Board, and

(xvii) Federal as well as the Provincial Government shall ensure that the conditions for printing/publication of Holy Quran, as enshrined under Rule 8 of the Rules, were strictly adhered to and any person/authority/community/company etc. found involved in violation of the said rule be awarded punishment provided under Rule 9.

Shahid Tasawar Rao for Petitioner.

Sheikh Usman Karim-ud-Din for Applicant (in C.M. No.2/2018).

Zahid Sikandar, Assistant Attorney General with Inam-ul-Haq, Deputy Secretary, Ministry of Religious Affairs and Interfaith Harmony.

Rana Shamshad Khan, Additional Advocate General with Tariq Mehmood Javed, Special Secretary to Government of the Punjab, Home Department.

Zulfiqar Ghumman, Secretary Government of Punjab, Auqaf Department.

Maulana Abu-al-Zafar Ghulam Muhammad Sialvi, Chairman Punjab Quran Board.

P L D 2019 Lahore 474

Before Muzamil Akhtar Shabir and Asim Hafeez, JJ

SHER ALI---Appellant

Versus

DIRECTOR-GENERAL PAKISTAN RANGERS and others---Respondents

Intra-Court Appeal No.31375 of 2019 in W.P. No.18305 of 2017, decided on 23rd May, 2019.

Inheritance---

----Tarka---Scope---Inheritable claims---Rights of heirs other than nominee---Scope---Deceased had nominated respondent, his wife, as nominee for service benefits but appellant who was father of deceased challenged the same on grounds of inheritance---Authorities transferred benevolvent fund to appellant but refused to transfer other claims as he was not nominee and single Judge of High Court maintained such orders---Validity---Service benefits comprising of claim regarding Welfare Fund, compensation and six months' pay and amounts paid in respect thereof were in nature of "grant" or "compensation" which was neither inheritable, nor formed part of 'tarka' or estate of deceased---High Court declined to interfere in the judgment passed by Single Judge of the High Court as there was no illegality, jurisdictional defect and mis-application of law, relevant rules and regulations---Appellant had no entitlement to claim service benefits, being legal heir of deceased which rightly fell to entitlement of respondent being duly nominated for the same---Claim of benevolent fund was already directed to be transferred to appellant in wake of re-marriage of widow---Intra-court appeal was dismissed accordingly.

Federal Government of Pakistan v. Public-at-Large PLD 1991 SC 731 and In Re: Succession of the Assets Securities, Proeprties and accounts of late Javed Iqbal Ghaznavi PLD 2010 Kar. 153 rel.

Mst. Ameeran Khatoon v. Mst.Shamim Akhtar and others 2005 SCMR 512; Federal Government of Pakistan v. Public-at-Large PLD 1991 SC 731 and Shahbaz Wali Khan v. Government of Pakistan, Establishment Division, Regional Board Federal Employees Writ Petition No.4167 of 2012 ref.

P L D 2019 Lahore 478

Before Shahid Karim, J

ASSOCIATED ENGINEERING CONCERN (PVT) LTD. through Chief Executive Officer/Authorized Signatory---Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY and others---Respondents

Writ Petition No.221431 of 2018, heard on 16th May, 2019.

Lahore Development Authority Land Use Rules, 2014---

----Rr. 28 & 34(2)---Permanent commercialization of property, payment of--- Prescribed rates---Applicability---Submission of title documents---Requisite--- Petitioner was owner of land in question and paid partial fee to seek permanent commercialization of his property but Lahore Development Authority refused on the grounds that valuations had changed vide notification dated 29-06-2017 and petitioner was required to resubmit fee on new rates---Validity---Petitioner was using land in question on commercial basis and was granted temporary commercialization prior to promulgation of Lahore Development Authority Land Use Rules, 2014 and subsequent to their enforcement--- Petitioner continued to use property for commercial use and a payment of Rs.1 million was made by petitioner by a pay order which was encashed by Lahore Development Authority---Payment was clearly made for conversion fee which petitioner was obliged to pay under R.28 of Lahore Development Authority Land Use Rules, 2014---Documents of title of petitioner had already been submitted to Lahore Development Authority and were in record since 2015---No requirement existed in Lahore Development Authority Land Use Rules, 2014 that a person applying for conversion should submit title documents along with application as required by Lahore Development Authority---Letter issued by Lahore Development Authority was not in furtherance of procedural formality prescribed by law and a bounden duty to be fulfilled by petitioner---Rate applicable to case of petitioner must be determined on basis of date of application and during which applicable rate list was issued---Petitioner was not liable for payment of conversion fee at rate to be determined at whim of Lahore Development Authority---High Court declared act of Lahore Development Authority to demand conversion fee from petitioner at rate mentioned in notification dated 29-06-2017 to be ultra vires and without lawful authority---High Court directed Lahore Development Authority to issue demand notice to petitioner based on rate list for 2016-17---Constitutional petition was allowed accordingly.

Mansoor Usman Awan and Ms. Shehzeen Abdullah for Petitiioner.

Waqar A. Sheikh for LDA for Respondents.

P L D 2019 Lahore 486

Before Amin-ud-Din Khan, J

Messrs FUN INFOTAINMENT NETWORK (SMC-PVT) LIMITED/NEO TV, through Muhammad Nasrullah Khan---Appellant

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman and others---Respondents

F.A.O. No.88 of 2017, decided on 29th May, 2019.

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

----Ss. 8, 6 & 30-A---Pakistan Electronic Media Regulatory Authority ("PEMRA")---Meetings of PEMRA---Quorum for meetings---One-third of total members to constitute a quorum---Defect in quorum---Scope---Question before High Court was whether meeting of PEMRA attended by Chairman and three additional members constituted proper quorum despite total strength of members of PEMRA being twelve plus the Chairman---Contention of PEMRA, inter alia, was that two members to be appointed "on need basis" per S. 6(4A) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 had not yet been appointed, therefore reduced strength of the authority constituted one-third of quorum---Validity---Presently total members of PEMRA were twelve and Chairman was thirteenth member, therefore one-third of same would be more than four members, which was at least five members including Chairman---Argument that "need basis members" had not yet been appointed did not minimize requirement of quorum---Members required for quorum of the PEMRA meeting was five including Chairman or in case of absence of Chairman, a member elected by the members for such purpose shall constitute a quorum---High Court declared the meeting of PEMRA held as defective.

Messrs Muntaha-e-Noor Sachal TV (Pvt.) Ltd. v. PEMRA and others (Judgment dated 6-11-2018) and Aurora Broadcasting Services (Pvt) Ltd. and 13 others v. Pakistan Electronic Media Regulatory Authority and another 2019 YLR 574 rel.

(b) Administration of justice---

----Quasi-judicial authorities---Adjudication and delivering of decisions of such authorities---Decision of a quasi-judicial authority required signatures of the Authority delivering such decision.

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

----Ss. 8, 30 & 30A---Constitution of Pakistan, Art. 10A---Decisions and determinations by the Pakistan Electronic Media Regulatory Authority ("PEMRA")---Power to vary conditions, suspend or revoke the licence by PEMRA---Provision of opportunity of personal hearing to licence-holder---Right to fair trial and due process of law---Natural justice---Personal Hearing Committee constituted by PEMRA validity of---Pakistan Electronic Media Regulatory Authority Ordinance, 2002 did not contain any provision for constitution of a "Personal Hearing Committee"---Proceedings before PEMRA were quasi-judicial in nature and in quasi-judicial proceedings hearing before PEMRA itself was necessary---When no such hearing was provided except through a "Personal Hearing Committee"; then such hearing was not equal to an hearing by the Authority itself---Principles of natural justice i.e. audi alteram partem were applicable to judicial as well as to all the quasi- judicial proceedings under Art.10-A of the Constitution---"Personal Hearing Committee" therefore did not fulfill requirement of "hearing before PEMRA".

Osman Abdul Karim Bawaney v. The Collector of Customs Chittagong and others PLD 1962 Dacca 162; Karachi City Cricket Association, Karachi v. Mujeebur Rahman, Chairman Adhoc Committee, Pakistan Cricket Board, Lahore and 2 others PLD 2003 Kar. 721; Abdul Wahid and 4 others v. City District Government through District Coordination Officer, Lahore and 3 others 2014 PLC(C.S.) 820; (1) The University of Dacca through its Vice Chancellor and (2) The Registrar, University of Dacca v. Zakir Ahmed PLD 1965 SC 90; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 and Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others PLD 2016 SC 637 rel.

(d) Interpretation of statutes---

----Construction of statutes with regard to principles of natural justice ---Scope---Principle of natural justice i.e. audi alteram partem, meaning that "no one should be condemned unheard was to be read as part of every statute unless same was specifically excluded".

Saad Rasool, Barrister Muhammad Umar Riaz, Waqas Umar Sial, Mir Haroon Rashid, Sukrat Mir Basit, Syed Tasaddaq Mustafa Naqvi, Shan Saeed Ghumman, Adeel Hassan and Ms. Rabbiya Bajwa for Appellant.

Messrs Jahanzaib Inam, Ahmad Jamal and Tariq Farooq Tarar for Respondents.

P L D 2019 Lahore 502

Before Rasaal Hasan Syed, J

Mst. SAFIA BIBI and others---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 25007 of 2016, decided on 2nd May, 3019.

Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched & 13(3)---Specific Relief Act (I of 1877), S. 42---Transfer of Property Act (IV of 1882), S. 54---Suit for recovery of maintenance allowance---Execution petition---Attachment of property of judgment-debtor---Objection petition---Declaratory suit on behalf of second wife of the judgment-debtor---Injunctive order restraining judgment-debtor from alienation of his property---Effect---Property of judgment-debtor was attached in execution petition---Second wife of judgment-debtor (husband) filed suit for declaration wherein injunctive order was passed restraining him from alienation of suit property---Executing Court consigned execution petition till decision of civil suit---Validity---No injunctive order qua the execution proceedings nor execution process could be suspended through declaratory suit---Injunctive order itself was limited to the extent of alienation by the judgment-debtor---Judgment-debtor could not escape from his liability for satisfaction of his debts---Execution proceedings had to be independently dealt with and same could not be held in abeyance nor could be ordered to be consigned to record room---Any alienation of property with intent to defeat the claim or to defraud the creditors was nullity in law and could not be used detrimental to the interest of the claimant in a decree passed against its executant---Judgment-debtor could not be allowed to carve out pleas in conspiracy with his second wife for the purpose of avoiding his paternal obligation of making payment of maintenance to the minors---Judgment-debtor was bound to maintain his minor children instead of fetching tactics and devices to avoid his liability---Family Court was empowered to execute the decree for the payment of maintenance---Family Court could recover the arrears through sale of the immovable property of the defaulter---Executing Court was competent to proceed with the execution proceedings when there was no injunctive order qua the proceedings of execution nor the execution of decree was under suspension from any competent Court---Impugned order passed by the Executing Court suffered from illegality and error of jurisdiction which could not be countenanced---Impugned orders were set aside and objection petitionwas dismissed---Executing Court was directed to proceed with the execution petition in accordance with law---Constitutional petition was allowed accordingly.

Amjad Iqbal v. Nida Sohail and others 2015 SCMR 128 rel.

Muhammad Naeem Afzal Rehan for Petitioners.

Ch. Umair Ahmad for Respondent No.4.

P L D 2019 Lahore 507

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram JJ

MUHAMMAD SHABBIR alias Hanzla and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.542-J-ATA of 2018, decided on 12th June, 2019.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Anti Terrorism Act (XXVII of 1997), S. 7---Attempt to cause explosion, making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Delay of about one hour in lodging FIR---Complainant had not only named the accused-appellants but had also mentioned each and every minor as well as material facts of the incident therein, which, of course,excluded the possibility of deliberation or consultation regarding false implication of the accused-appellants in the case.

(b) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Anti Terrorism Act (XXVII of 1997), S. 7---Attempt to cause explosion, making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Three hand grenades were recovered from the possession of accused persons---Prosecution had proved its case against the accused-appellants through the statements of two witnesses including complainant, recoveries effected from the accused-appellants and the positive reports of Forensic Science Agency and report of Bomb Disposal Agency---Complainant reiterated the same facts and levelled the same allegations before Trial Court as were incorporated in his written complaint---Prosecution, in order to support the deposition of complainant, relied on the statement of eye-witness---Both the said witnesses had consistently corroborated the version adopted by each other---Statements of said witnesses were in line with each other on each and every minor as well as material aspect of the case and smooth flow of facts was apparent from their depositions---Said witnesses were subjected to lengthy cross-examination by the defence, but without extracting anything beneficial for the accused-appellants---Accused-appellants had not urged any rancour or animosity of the witnesses---Depositions of police witnesses, in circumstances, could not be brushed aside merely on the bald allegation that they happened to be employees of police department---Prosecution had successfully proved its case against the accused-appellants, in circumstances---Appeal was dismissed accordingly.

(c) Criminal trial---

----Evidence---Testimony of Police Officials---Police witnesses were as good witnesses as any other witness until and unless the defence could have successfully shattered their credibility or brought on record any mala fide of police witnesses to depose against the accused.

(d) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Anti Terrorism Act (XXVII of 1997), S. 7---Attempt to cause explosion, making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Recovery of three hand grenades from the possession of accused persons---Reliance---Scope---Record showed that hand grenades were recovered from the possession of accused at the time of their arrest, which were taken into possession by the Investigating Officer---Positive report of the Bomb Disposal Agency available on record, had proved that the recovered hand grenades, could have been used for wreaking havoc---Said recovery had successfully been proved by the prosecution through the statements of reliable witnesses---Sample of explosive material taken from the hand grenades was sent to the office of Forensic Science Agency, which was identified as a high explosive---Statements of the accused-appellants recorded by the Trial Court under S. 342, Cr.P.C. showed that no plausible justification had been forwarded by them for keeping the above hand grenades in their custody---Recovery of said hand grenades from the accused-appellants had, therefore, provided enough corroboration to the ocular evidence so as to bring their guilt to the hilt.

Mehmood Khan Ghauri for Appellants.

Ch. Muhammad Akbar, Deputy Prosecutor General for the State.

P L D 2019 Lahore 515

Before Shahid Waheed, J

NESTLE PAKISTAN---Petitioner

Versus

DIRECTOR PESSI and others---Respondents

Writ Petition No.58700 of 2017, decided on 29th April, 2019.

(a) Constitution of Pakistan---

----Arts. 9, 37 & 38---Fundamental right to security of person and right to life---Promotion of social justice and eradication of social evils---Promotion of social and economic well-being of the people---Constitutional mandate for provision of social security to workers by State as an obligation, discussed.

William Shakespeare in his Merchant of Venice; Kohinoor Chemical Co. Ltd. and another v. Sindh Employees' Social Security Institution and another PLD 1977 SC 197 rel.

(b) Interpretation of the Constitution---

----Fundamental Rights and Principles of Policy---Reading and construction---Scope---Principles contained in Part-II, Chapter-2 of the Constitution along with Fundamental Rights constituted conscious of Constitution and supplemented each other---Principles of Policy gave sustenance to orderly growth and development of personality of every citizen whereas Fundamental Rights made the same solemn and dignified---Said principles were not enforceable at law yet the same were fundamental in the governance of the country and State was duty bound to apply said principles in making laws and building a just social order.

(c) Provincial Employees' Social Security Ordinance (X of 1965)--

----Preamble & S. 1---Interpretation of provisions of Provincial Employees' Social Security Ordinance, 1965---Provincial Employees' Social Security Ordinance, 1965 was a beneficial or remedial legislation conceived as means of ameliorating the lot of working class, and as such, it would be in keeping with the accepted principle of interpretation, that it should be so construed as to advance remedy and suppress mischief, or else it would frustrate the Legislative intent.

Wlliam Shakespeare in his Merchant of Venice rel.

(d) Constitution of Pakistan---

----Arts. 141 & 142 ---Distribution of Legislative Powers and Legislative functions---Delegation of legislative powers to executive---Essential Legislative functions---Legislative policy---Principles, rationale and scope---Power of delegation was a constituent element of Legislative policy as a whole under Arts. 141 & 142 of the Constitution and other relative Articles---Legislature, for making a law wholesome and pragmatic so as to promote the Principles of Policy of the Constitution, at times adopted a generous degree of latitude and considered it convenient and necessary not to provide complete details by determining all factors or matters specifically for all cases and, therefore had taken the form of delegated legislation leaving it to some authority to fill in details or determine factors or matters in which a law shall be applied---Legislature, however, could not strip itself of its essential functions and vest the same with an extraneous authority---Essential legislative function must at least consist of determination of Legislative policy and its formulation as a binding rule of conduct---Where law passed by the Legislature, declared the Legislative policy and lay down standard or principle which was enacted into a rule of law, it could leave the ancillary or subsidiary task of a statute to subordinate bodies, which must do it within the framework of the law which made the delegation and could not go beyond such limits of the policy and standard laid down in the law---Under the Constitution, the Legislature has plenary powers within its allotted field and there could be no abdication of Legislative function or authority by complete effacement, or even partially in respect of particular topic or matter entrusted by the Constitution to the Legislature---Power to make subsidiary or ancillary legislation may, however, be entrusted by Legislature to another body of its choice, provided there was enunciation of policy, principles or standards either expressly or by implication for the guidance of the delegate in that behalf---Entrustment of power without guidance amounted to excessive delegation of legislative authority.

Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, Kanpur AIR 1955 SC 170; Pamadi Subbarama Chetty v. Mirza Zewar Ali AIR 1960 Mysore 14; Haji Ghulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dacca 156; Messrs Devi Das Gopal Krishnan v. State of Punjab and others AIR 1967 SC 1895; Dacca Pictue Palace Ltd v. Pakistan through Secretary, Ministry of Education and Information and others PLD 1969 Dacca 1; Regional Director, Employees' State Insurance Corporation, Trichur v. Ramanuja Match Industries AIR 1985 SC 278; Haryana Unrecognised Schools Association v. State of Haryana AIR 1996 SC 2108; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Khawaja Ahmad Hassaan v. Government of Punjab and others 2005 SCMR 186; Engineer Iqbal Zafar Jhagra and another v. Federation of Pakistan and others 2013 SCMR 1337; Province of Sindh through Chief Secretary and others v. M.Q.M through Deputy Convener and others PLD 2014 SC 531 and Flying Cement Company v. Federation of Pakistan and others PLD 2016 Lah. 35 ref.

(e) Provincial Employees' Social Security Ordinance (X of 1965)--

----Ss.71, 20, 2(8)(f) & Preamble [as amended by Provincial Employees Social Security (Amendment) Ordinance (1 of 2019), Ss.2 & 3]---Legislative scheme to provide social security to certain workers---Review and modifications of wage limits, contribution and benefits---Amount and payment of contributions---Determination of wage limits and contributions by executive---Permissible delegation of legislative authority---Scope---Petitioners, inter alia, impugned amendments brought about in Ss. 71, 20 & 2(8) of the Provincial Employees' Social Security Ordinance, 1965 by Provincial Employees Social Security (Amendment) Ordinance, 2019 whereby determination of wage limits were taken out of hand of Legislature and given to the Executive on the grounds that the same amounted to excessive delegation of legislative power---Held, that element of delegation was implied in provisions of Ss.2(8)(f), 20(1) & 71 of the Provincial Employees' Social Security Ordinance, 1965 as the Legislature had authorized the Government to do something which it might do itself---Reasonably clear statement of policy in provisions and Preamble of Provincial Employees' Social Security Ordinance, 1965 existed in and thus it could not be contended that questions of policy had been left to the delegate---Appraisal of framework under the law suggested that power delegated upon Government was not uncontrolled but was confined within banks which kept it from overflowing---In the present case, delegation of power was on the Provincial Government which was the highest executive in the province of Punjab, and was responsible to the Provincial Assembly---Legislature on account of paucity of time could not know as to the detail of the fluctuating prices of consumer goods and living costs during a year and for such matter could not also be in a position to review or modify the wage limits---Since procedure in bringing amendment in law had become a stumbling block in enhancing benefits under Provincial Employees' Social Security Ordinance, 1965, Legislature in implementing the socio-economic policy pursuant to the establishment of a welfare State as contemplated by the Constitution, thought it prudent to delegate power of review or modification of wage limits, rate of contribution and benefits to Provincial Government---Framework in said context was provided in under Provincial Employees' Social Security Ordinance, 1965 and left it to the Government to exercise discretion in manner laid down within the said framework---Impugned amendments could not be regarded as an abdication of function by Legislature but the same was valid delegation of discretion to achieve purpose of law---Constitutional petitions were dismissed, in circumstances.

Samual Johanson; Vasantal Maganbhai v. State of Bombay (1961) SCR 341; Poineer Cement Limited v. The Government of Punjab and others 2017 PLC 199; Associated Provincial Picture Houses v. Wednesbary Corporation (1947) 1-KB 233; The Chairman East Pakistan Railway Board, Chittagong v. Abdul Majid Sardar, Ticket Collector, Pakistan Eastern Railway, Laksam PLD 1966 SC 725; Lahore Improvement Trust, Lahore through its Chairman v. The Custodian Evacuee Property, West Pakistan Lahore and 4 others PLD 1971 SC 811; Messrs Mustafa Impex and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 and Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik 2018 SCMR 1956 rel.

(f) Delegated Legislation---

----Generous degree of latitude in matter of delegation was permissible to the Legislature in socially benefit socially beneficial legislation.

Umer Abdullah, Haroon Duggal, Rafey Altaf, Saleem Baig, Munawar Ahmad Javed, Omer Alvi, Muhammad Umer Riaz, Mian Mahmood Rasheed, Habib-ur-Rehman and Khalil-ur-Rehman for Petitioners.

Muhammad Arif Raja,Addl. A.G. for Government of the Punjab for Respondent.

Ahmad Ali Ranjha for PESSI along with Muhammad Hanif Raja, D.G.-PESSI and Shoaib Tabish Law Officer-PESSI for Respondent.

P L D 2019 Lahore 558

Before Sayyed Mazahar Ali Akbar Naqvi, J

Dr. MARIAM RAZA SYED and another---Petitioners

Versus

PAKISTAN MEDICAL AND DENTAL COUNCIL through Registrar and others---Respondents

Writ Petition No.12058 of 2019, decided on 22nd May, 2019.

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

----Ss. 2(4), 16, 22 & 22-B---Pakistan Medical and Dental Council Ordinance (II of 2019), S. 17---General Clauses Act (X of 1897), S.21---Locus poenitentiae, principle of---Applicability---Petitioners were bona fide students of M. Phil Program in Science of Dental Materials and were aggrieved of non-recognition of university by Pakistan Medical and Dental Council---Validity---Petitioners qualified for course of M. Phil in Science of Dental Materials from the university and basic criteria for qualification required recognition by Pakistan Medical and Dental Council which was being withheld without any fault at their end---Petitioners had successfully pursued and completed course of studies and had been found qualified for award of degree and in such regard, degrees had also been issued by the University---Principle of Locus Poenitentiae was attracted which prescribed that once a legal right was accrued, it could not be taken back without following proper procedure because it would be against principles of natural justice---Under principle of Locus Poenitentiae authority competent to pass an order could get same rescinded but when degrees were awarded to petitioners by the university and it had taken legal effect, then notwithstanding with power available to the university under S. 21 of General Clauses Act, 1897 same could not be withdrawn unless and until it was established that degrees were obtained by practicing fraud or misrepresentation---High Court directed Pakistan Medical and Dental Council to register petitioners in view of letter issued by Registrar of the university---Constitutional petition was allowed in circumstances.

Imdad Hussain v. Province of Sindh through Secretary to Government of Sindh, Karachi and 3 others PLD 2007 Kar. 116; Director General Ordnance Services, General Headquarters, Rawalpindi v. Muhammad Abdul Latif 2003 SCMR 410; The Engineer in Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207; Messrs Army Welfar Sugar Mills Limited and others v. Federation of Pakistan 1992 SCMR 1652; Chairman Selection Committee/Principal, King Eward Medical College Lahore v. Wasif Zamir Ahmad and another 1997 SCMR 15 and Chief Secretary, Government of Sindh v. Sher Muhammad Makhsoom and 2 others PLD 1991 SC 973 ref.

Muhammad Sameer lqbal Awan for Petitioners.

Shoaib Zafar, Additional Advocate General Punjab, Barrister Ch.Muhammad Umar and Rana Muhammad Ansar for Respondent No.1.

P L D 2019 Lahore 565

Before Malik Shahzad Ahmad Khan and Mirza Viqas Rauf, JJ

Mrs. IFRAH MURTAZA and another---Petitioners

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Writ Petition No.251566 of 2018, heard on 24th April, 2019.

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

----S. 24---Constitution of Pakistan, Art. 199(1)(b)(i)---Writ of Habeas Corpus and quo-warranto---Scope---Locus standi---Detention in foreign country---Petitioner invoked jurisdiction of High Court under Art.199 of the Constitution on grounds that her husband was illegally detained in Dubai, United Arab Emirates by Interpol on basis of illegal orders and warrants of arrest issued against him by National Accountability Bureau authorities as well as by Accountability Court---Authorities objected to petition on plea that same was not maintainable---Validity---At time of filing of petition before High Court, Detenu was in restrained custody in Dubai, United Arab Emirates at the time of filing of petition before the High Court on account of red notices/warrants of arrest issued against him therefore, petition was filed by his wife---Petition having been filed in nature of Habeas Corpus therefore, same was validly filed by wife of detenu---Constitutional petition under Art.199 of the Constitution in matter of Habeas Corpus or petition of writ of Quo Warranto could be filed by any person and it was not necessary that such person should be an "aggrieved person"---Constitutional petition was maintainable in circumstances.

Bugum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657 rel.

(b) Constitution of Pakistan---

----Art. 199(1)(b)(i)---Constitutional petition---Writ of Habeas Corpus---Scope---Release of detenue---Effect---Merely on account of release of detenue from custody petition does not become infructuous---High Court can see as to whether order on basis of which detenue was kept in confinement was issued in accordance with law or not.

Malik Ghulam Jilani v. (1) The Government of West Pakistan through the Home Secretary, Lahore and (2) The Deputy Commissioner, Lahore PLD 1967 SC 373; Zafar Iqbal v. The Province of Sindh and 2 others PLD 1973 Kar. 316 and Ali Ahmed v. Muhammad Yakoob Almani, Deputy Supreintendent of Police, Qasimabad Hyderabad and 5 others PLD 1999 Kar. 134 rel.

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

----S. 24---Constitution of Pakistan, Art. 199(1)(b)(i)---Constitutional petition---Territorial jurisdiction---Maintainability---Petitioner assailed detention of her husband in a foreign country on basis of arrest warrants issued by National Accountability Bureau (NAB) in Pakistan---Objection raised by NAB was that "aggrieved person" was not in Pakistan therefore petition was not maintainable in Pakistan---Validity---Proceedings against husband of petitioner on account of which he was eventually arrested were initiated by NAB in Pakistan---Different orders were passed against husband of petitioner by Accountability Court in Pakistan in execution whereof husband of petitioner was first declared proclaimed offender, then his perpetual warrants of arrest were issued on basis of which his red notices were issues by Interpol and he was arrested in a foreign country thus cause of action had arisen in Pakistan---Constitutional petition was maintainable in circumstances.

Human Right Case No.1356 of 2009 decided on 8th October, 2010 PLD 2011 SC 17 and Suo Motu Case for Recovery of Minor Kids of Mst. Tahira Jabeen 2010 SCMR 1804 rel.

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

----S. 24---Criminal Procedure Code (V of 1898), S. 87---Constitution of Pakistan, Art. 199---Constitutional petition---Arrest in foreign country---Mala fide---Proof---Petitioner assailed detention of her husband in a foreign country on basis of arrest warrants issued by National Accountability Bureau (NAB) and perpetual warrants of arrest issued by Accountability Court---Validity---National Accountability Bureau under S.24(a) of National Accountability Ordinance, 1999 could arrest any person at any stage of inquiry or investigation---Bureau had issued notice to husband of petitioner for his appearance before NAB on 25-04-2018 along with relevant documents in order to record his statement but two days prior to such date of arrest warrants were issued on 23-04-2018 by Chairman NAB; as such it showed that NAB was out to arrest husband of petitioner right from beginning without providing him opportunity of hearing and without producing evidence in his defence---Such acts of NAB were not bona fide---No evidence was taken by Accountability Court to satisfy itself that husband of petitioner had absconded---Without taking any evidence in such regard application under S. 87, Cr.P.C. moved by NAB was allowed by Accountability Court without passing any order on order sheet of court rather same was passed on last page of such application---Such order passed by Accountability Court was "non-speaking order" and court did not apply its own mind before passing the same---High Court in exercise of Constitutional jurisdiction set aside perpetual warrants of arrest issued by Accountability Court and also set aside red notices issued against husband of petitioner---High Court declared proceedings of extradition of husband of petitioner on basis of such order/warrants as illegal and void, consequently same were also set aside and directed to remove name of husband of petitioner from the Exit Control List---Constitutional petition was allowed accordingly.

Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretry, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Faisal Jameel v. The State 2007 MLD 355; The Federal Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others 2017 SCMR 1179; Rafique v. Federation of Pakistan through Secretary, Ministry of Interior Islamabad and 2 others 2018 MLD 579 ref.

Rahim Bakhsh and another v. The State PLD 2018 Bal. 8 and Nizam ud Din v. The State 1991 PCr.L.J.229 rel.

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

----S. 17(c)---Criminal Procedure Code (V of 1898), Preamble---Provisions of Cr.P.C., dispensing with---Principle---Before dispensing with any provision of Criminal Procedure Code, 1898 Accountability Court has to give reasons for doing so---Dispensation of any provision of Criminal Procedure Code, 1898 does not mean that court adopt capricious, illegal and arbitrary procedure.

Noor Muhammad Khatti and others v. The State 2005 PCr.LJ 1889 and Sohail Zia Butt v. The State 2011 PCr.LJ 2 rel.

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

----S. 2---Constitution of Pakistan, Art. 15---Placing name on Exit Control List---Principle---Inquiry, pendency of---Right of movement---Petitioner assailed placing name of her husband on Exit Control List---Validity---Right of movement of person was his Fundamental Right and same was guaranteed to him by the Constitution---Such right was infringed by Government without any valid reason and purportedly on grounds that inquiry was pending before NAB---Memorandum issued by Government for putting the name of husband of petitioner on Exit Control List was not sustainable in eyes of law.

Sohail Latif and 2 others v. Federation of Pakistan through Seretary, Ministry of Interior, Government of Pakistan, Islamabad and 2 others PLD 2008 Lah. 341 and Javed Khan v. Pakistan through Secretary Interior and 6 others 2017 YLR 2109 rel.

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

----S. 2---Exit Control List---Condemned unheard---Effect---Where order of putting name of a person on Exit Control List is passed without providing opportunity of hearing to him and without application of its own independent mind by Government and such order is a non-speaking order---High Court directed to remove the name of said person from Exit Control List.

Tanveer Hussain Manji and 3 others v. Federation of Pakistan through Secretary Intrior and 3 others 2016 CLC 1534 rel.

Asad Manzoor Butt and Hafiz Nauman for Petitioners.

Mian Tariq Shafique Bhandara, Deputy Attorney General for Pakistan for Respondents.

Syed Faisal Raza Bukhari, Special Prosecutor for NAB.

P L D 2019 Lahore 587

Before Ch. Muhammad Iqbal, J

IMRAN HAFEEZ---Petitioner

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) through Chairman and 3 others---Respondents

Writ Petition No.15958 of 2017, decided on 29th May, 2019.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Alternate remedy, availability of---Effect---When statutory remedy is available to the aggrieved party, constitutional petition is not maintainable.

Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Tariq Mehmood A. Khan and others v. Sindh Bar Council and another 2012 SCMR 702 and Farzand Raza Naqvi and 5 others v. Muhammad Din through L.Rs. and others 2004 SCMR 400 rel.

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

----Ss. 19, 30-A [as amended by Pakistan Electronic Media Regulatory Authority (Amendment) Act (II of 2007)]---Pakistan Electronic Media Regulatory Authority (Distribution Service Operations) Regulations, 2011, Regln. 6---Constitution of Pakistan, Art. 199---Constitutional petition---Cable network licence, non-issuance of---Alternate remedy---Conversion of Constitutional petition into appeal---Issuance of Urban area licence---Procedure---Petitioner was cable operator and was aggrieved of rejection of provision of licence for operating cable network---Plea raised by authorities was that alternate statutory remedy was not availed by the petitioner within stipulated time---Validity---Order in question was passed on 07-11-2017 against which a remedy of appeal under S.30-A of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 was provided and such remedy was not availed within stipulated period---Application for conversion of Constitutional petition into appeal was filed on 07-11-2018 after about one year of passing of order in question---High Court turned down plea raised by petitioner of converting constitutional petition into appeal as period elapsed was not condoned---Licence for urban area could not be given merely on application without inviting applications and floating a tender in such regard---High Court declined to interfere in order passed by authorities as petitioner was heard personally by Committee and order was rightly passed---Petitioner was unable to point out any illegality or material irregularity in order passed by authorities and also could not identify any jurisdictional defect---Constitutional petition was dismissed accordingly.

Tariq Mehmood A. Khan and others v. Sindh Bar Council and another 2012 SCMR 702 and Farzand Raza Naqvi and 5 others v. Muhammad Din through L.Rs. and others 2004 SCMR 400 rel.

Messrs Pasban Cable Network and others v. Pakistan Electronic Media Regulatory Authority and others Writ Petition No.105 of 2009 ref.

Rana Muhammad Asif Saeed and Tahir Hussain Khan Malezai for Petitioner.

Rana Muhammad Imran for PEMRA.

P L D 2019 Lahore 594

Before Ch. Mushtaq Ahmad and Sadiq Mahmud Khurram, JJ

BASHIR AHMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.448 of 2019, decided on 13th June, 2019.

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

----Art. 150---Hostile witness---Scope---Appellant assailed order of Trial Court whereby it had allowed the application of the prosecution to re-call, re-summon and examine one of its witnesses---Validity---Trial Court had exercised its jurisdiction improperly and had given no plausible and balanced reasons for exercise of the same---Such discretion had to be exercised with due care and attention keeping in view the interests of both parties so that no one was prejudiced from the order of the court---In order to invoke Art. 150 of Qanun-e-Shahadat, 1984, it was necessary to establish that witness was guilty of equivocation or that he was varying in his statement or trying to suppress the truth or that he bore animosity towards the party who called him---Appeal was allowed and order passed by the Trial Court was set aside.

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

---Art. 150---Hostile witness---Scope---Witness who is unfavourable is not necessarily hostile, for a hostile witness is one who from the manner in which he gives evidence, shows that he is not desirous of telling the truth to the court; that the witness's answer to certain question is in direct conflict with evidence of the other witnesses, is not and can never be a reason for allowing the witness to be treated as hostile and permitted to be cross-examined.

Muhammad Boota and another v. The State 1984 SCMR 560 fol.

(c) Criminal trial---

----Duty of Trial Court---Scope---Whole purpose of holding a trial is the discovery of truth---Trial Court was to remain conscious of the fact that during the trial the pursuit of truth should be paramount and had not lost sight of the truth due to any inaction on the part of any of the parties.

(d) Criminal trial---

----Witness---Status of witnesses are placed on high pedestal and are 'engines and machines/essential tools', without whose assistance and evidence the court would be unable to do justice or to reach at a correct conclusion.

Sh. Javed Akhtar for Appellant.

Ch. Muhammad Akbar, Deputy Prosecutor General with Muhammad Ali Mumtaz, Ahlmad to ASJ for the State.

P L D 2019 Lahore 597

Before Asjad Javaid Ghural, J

MUHAMMAD ISLAM alias Bolla---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.1385 of 2010, heard on 20th May, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused-appellant gave hatchet blows at the head, left and right sides of neck, chest and teeth of wife of complainant, who fell down and succumbed to the injuries at the spot---Motive behind the occurrence was that accused was used to force the deceased to develop illicit relations with him but on her refusal he killed her---Mainstay of the prosecution case was on the testimony of complainant/husband of deceased and brother of deceased---Said witnesses had claimed to have witnessed the occurrence in the light of electric bulb but no such bulb was taken into possession by the Investigating Officer at the time of his first visit of the place of occurrence---Complainant had one son, seven years of age, and three daughters including one aged about 8/9 years but surprisingly, none of them made hue and cry to attract people from the vicinity in order to rescue their mother---Prosecution's own case was that the complainant along with his wife and children were residing in a single room and in the same compound there were rooms where 7/8 other people were residing and they too, did not attract at the spot; in the said backdrop, how one person could harm a lady in the night by inflicting five hatchet blows in a free-hand manner without the noise by the children or attracting any other person from the compound---Complainant, being husband, one real brother and one brother-in-law of the deceased lady, attracted at the place of occurrence and in their view the accused-appellant inflicted first blow at the head, second at left, third at right sides of neck, fourth at chest and fifth at face of the deceased lady but none of them intervened to rescue her---Complainant had claimed that they were afraid due to the alarm given by the accused-appellant---Admittedly, the accused-appellant was not holding any conventional weapon at the time of occurrence and the claimed eye witnesses, who were three in number, were in a better position to easily overpower the accused-appellant at the spot and deter him from repeating the hatchet blows---Such inhuman and unbelievable behaviour on the part of the claimed eye-witnesses ran counter to human conduct as envisaged under the provisions of Art.129 of the Qanun-e-Shahadat, 1984 and, thus, the Court declined to accept their testimony---Presence of both the eye-witnesses at the venue of occurrence at the relevant time, in circumstances, was not free from doubt---Facts showed that said witnesses reached when occurrence had already taken place and on the basis of suspicion the accused-appellant was entangled in the case---Complainant had deposed that he followed the accused-appellant up to his house with the intention to apprehend him and at the same breath he had stated that he did not know the distance from his house to the house of the accused-appellant---Allegedly inhabitants of the area also followed the accused at the time when complainant was following him but he could not tell the names of said inhabitants---Complainant was not certain with regard to his deposition and also the different steps of the occurrence---Admittedly, eye-witness was resident of other city---Complainant had given the explanation that he along with other witness came to see his brother-in-law/complainant and accompanied him to the fields which was far away from the place of occurrence---Said witness was a chance witness and he could not explain the reason of his visit to the complainant's house satisfactorily and why he accompanied the complainant to the fields---Prosecution had not been able to prove the charge of murder against the accused-appellant beyond shadow of reasonable doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Liaqat Ali v. The State 2008 SCMR 95 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Consultation and deliberation in lodging FIR---Effect---Complainant had stated during cross-examination that after coming back to the house, he rang up the witness at his residence and after his arrival,they consulted to get the case registered---Said circumstance established that the case was got registered after deliberation, which was fatal to the case of prosecution.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence---Complainant had deposed that besides inflicting injuries on the person of his wife, accused also inflicted injuries to the person of his daughter with wrong side of hatchet but no medico-legal certificate was available of said injured in that regard---Deceased died at the spot but post-mortem was undertaken after 15/16 hours---Said unexplained delay in conducting the post mortem examination pointed out that the time had been consumed by the local police and the complainant party in order to procure and plant the eye-witnesses for cooking up a false story.

Muhammad Ilyas v. Muhammad Abid alias Billa and others 2014 SCMR 1698; Faqeer Muhammad v. Shahbaz Ali and others 2016 SCMR 1441 and Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54 rel.

(d) Criminal trial---

----Witness---Chance witness---Scope---Chance witness is the one who is not supposed to be present at the crime scene---Once he fails to prove the purpose or definite purpose of his presence at the venue of occurrence at the relevant time, his testimony cannot be relied upon to maintain conviction and sentence under capital charge.

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Effect---Motive as set up by the prosecution was that the accused-appellant used to tease the deceased lady and force her to develop illicit relations with him but on her refusal, he took an extreme step to kill her---Complainant (husband) had not stated that he was told by his wife regarding conduct of the accused-appellant prior to the occurrence and even on the day of occurrence---Complainant was not in a position to state that what actually happened prior to the incident---Admittedly, the complainant neither convened any punchayat to highlight conduct of the accused-appellant nor he reported the matter to the police---Motive part of the occurrence was nothing but words of mouth, which could not get corroboration or support from any independent source---What actually happened just before the occurrence remained a shrouded mystery---Motive, in circumstances, was not proved.

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

----S. 510---Report of Chemical Examiner and Serologist---Scope---Prosecution tendered the attested photocopies of the reports of the Chemical Examiner and of the Serologist regarding blood stained hatchet recovered at the instance of the accused-appellant---Reports though had been received with positive result yet the same being photocopies were against the mandate of S.510, Cr.P.C. and were not worth reliance especially when none of the scribers was examined by the prosecution in order to verify the contents thereof.

Muhammad Bakhsh v. State 2011 PCr.LJ. 1466 rel.

Rao Tanvir Ahmad for Appellant.

Azhar Hussain Malik, Additional Prosecutor General for the State.

Nemo for the Complainant.

P L D 2019 Lahore 607

Before Ayesha A. Malik and Shahid Jamil Khan, JJ

ORIENT POWER COMPANY (PRIVATE) LIMITED---Appellant

Versus

SUI NORTHERN GAS PIPELINES LIMITED through Managing Director, Lahore---Respondent

I.C.A. No.210640 of 2018, decided on 1st August, 2019.

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

----Ss. 3, 2(d) & 4---Arbitration Act (X of 1940), Ss.14, 30 & 33---Enforcement of foreign arbitral award---Exclusive jurisdiction of High Court under Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011---Ouster to jurisdiction of Arbitration Act, 1940 by Recognition and Enforcement (Arbitration Agreement and Foreign Arbitral Awards) Act, 2011---Scope---Question before the High Court was whether there existed any concurrent jurisdiction between High Court under the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 and the civil court under the Arbitration Act, 1940; on enforcement of a foreign arbitration award---Held, that allowing a party to seek enforcement of a foreign arbitral award before High Court under Recognition and Enforcement (Arbitration Agreements and Foreign Arbi tral Awards) Act, 2011 while at the same time to allow such parties remedy before civil court to enforce the same award under Arbitration Act, 1940 was totally impractical---High Court held further that per S.3 of the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011, there was no doubt that High Court had exclusive jurisdiction to recognize and enforce foreign arbitral awards.

Taisei Corporation v. A.M. Construction Company (Pvt) Ltd. PLD 2012 Lah. 455 distinguished.

Hitachi Limited and another v. Rupali Polyester and others 1998 SCMR 1618; Taisei Corporation v. A.M. Construction Company (Pvt) Ltd. 2018 MLD 2058; G.M. Pfaff A.G. v. Sartaj Engineering Co. Ltd., Lahore and 3 others PLD 1970 Lah. 184), Nan Fung Textiles Ltd. v. Sadiq Traders Ltd. PLD 1982 Kar. 619 and Marines Limited v. Aegus Shipping Co. Ltd and 4 others 1987 CLC 1299 ref.

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

----Ss. 4, 6 & 7---Enforcement of foreign arbitral award---Commercial contracts---Gas Supply Agreement ("GSA")---Arbitration Clause of the GSA---Separate Payment Agreement between the parties to the GSA---Applicability of Arbitration clause of the GSA on the Payment Agreement---Scope---Question before the High Court was whether an Arbitrator appointed under a Gas Supply Agreement between the parties, could also adjudicate/arbitrate and subsequently issue an award on matters arising on a separate Payment Agreement between the said parties---Held, that in the present case, perusal of agreements revealed that the settlement recorded in the Payment Agreement was part and parcel of the obligations under the Supply Agreement and obligation to pay arose out of the Supply Agreement and not the Payment Agreement was which was entered into essentially to facilitate the parties---Fact that Payment Agreement did not contain an arbitration clause or the fact that the same did not make specific reference to arbitration clause in the Supply Agreement; did not mean that Arbitrator under the Supply Agreement lacked jurisdiction on issues under the Payment Agreement as the said Payment Agreement was not an independent contract outside the Supply Agreement and the same was an agreement to make payment pursuant to the obligations under the Supply Agreement on account of one party's default---High Court held that dispute resolution mechanism under the Supply Agreement was applicable to the Payment Agreement and that Arbitrator under the Supply Agreement was well within jurisdiction to make determination in terms thereof.

Messrs MacDonald Layton & Company Limited v. Messrs Association Electrical Enterprises Limited and another PLD 1982 Kar. 786; Syed Arshad Ali v. Sarwat Ali Abbasi 1988 CLC 1350 and Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 57 ref.

(c) Contract---

----Contractual terms--- Commercial contracts--- Gas Supply Agreement---"Take or pay", clause---Meaning, rationale and scope---Take or pay clause was a common term in gas supply agreements which gave buyer an option to take supply of gas or else pay for it but defer taking of gas supply---Rationale behind said clause was to allocate risk over long term contracts as it acted as a risk-sharing mechanism between supplier and buyer where buyer sought stability in supply and some flexibility in prices and seller sought assurance for guaranteed income and the same also provided comfort to investors of natural gas projects that their investments were secure over duration of a contract, as risks were divided between parties and not borne by any one party---Essential feature of "take or pay" clause was the right to take "make up gas" and buyer had the right to take such gas in the succeeding year or any defined period and not at time when payment was due---Take or pay clause was activated when the buyer did not take delivery of the agreed quantity of gas but had paid for it.

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

----S. 74---Compensation for breach of contract where penalty stipulated for---Commercial contracts---Gas Supply Agreement---"Take or pay" clause, nature of---Question before High Court was whether a "take or pay" clause in a gas supply agreement was enforceable as a penalty clause in terms of S.74 of the Contract Act, 1872---Held, that due to a "take or pay clause"; a breach could not be triggered on account of failure to take supply under a Gas Supply Agreement as a buyer under such an agreement had right to exercise option to take gas or invoke the "take or pay" clause---Exercise of either option was valid under a Gas Supply Agreement containing a "take or pay" clause, therefore the same would not constitute a breach thereof---"Take or pay" payment under such an agreement was not due because of a breach or default rather it flowed from a contracting party's valid choice to invoke the right to invoke the take or pay clause---High Court held that "take or pay" clause being a common provision in commercial contracts, especially gas purchase agreements, was valid and enforceable and could not be considered as a penalty provision and did not offend S. 74 of the Contract Act, 1872.

Province of West Pakistan v. Messrs Mistri Patel & Co. and another PLD 1969 SC 80; Syed Sibte Raza and another v. Habib Bank Ltd. PLD 1971 SC 743; Saudi-Pak Industrial and Agricultural Investment Company (Pvt.) Ltd., Islamabad v. Messrs Allied Bank of Pakistan and another 2003 CLD 596; The Bank of Punjab v. Dewan Farooque Motors Limited 2015 CLD 1756 and Atlas Cables (Pvt.) Limited v. Islamabad Electric Supply Company Limited and another 2016 CLC 1833 ref.

Port of Tilbury (London) Ltd. v. Store Enso Transport and Distribution Ltd. (2009) EWCA Civ 16; M&J Polymers Ltd. Imerys Minerals Ltd. (2008) EWHC 344 (Comm); Cavendish Square Holding BV v. Talat EL Makdessi 2016 SCMR 296; Philips Hong Kong Ltd. v. Attoney General of Hong Kong (1993) 61 BLR 41; Prenalta Corporation v. Colorado Interstate Gas Company 944 F.2d 677 (199); Universal Resources Corporation v. Panhandle Eastern Piple Line Company 813 F.2d 77 (1997); Miraka Limited v. Milk New Zealand (Shanghai) Co. Limited [2017] NZHC 2163 and Churchill Falls (Labrador) Corporation Limited v. Hydro Quebec 2019 SCMR 454 rel.

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

----Ss. 7, 6 , 3 & Article V of Sched.---United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York on I0th June, 1958 (the "New York Convention"), Art. V(2)(b)---Refusal to recognition or enforcement of an award contrary to the public policy of a Contracting State under the New York Convention---Meaning and scope of term "public policy"---Interpretation of Article V(2)(b) of the New York Convention---Non-interference or pro-enforcement policy of the New York Convention---Construction of the "public policy exception" to enforcement of foreign arbitral awards under the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011---Scope---Non-interference or pro-enforcement policy was in itself a policy of Contracting States which was not easily persuaded by public policy exception argument---Defining public policy under Art. (V)(2)(b) of the New York Convention was prerogative of each of Contracting State and was based on the public policy of a State where enforcement was sought---Application of public policy exception was restrictive and limited to exceptional circumstances that affected most fundamental values of a State---Public policy exception had been kept fluid and adaptive and could be invoked in cases of patent illegality and allowed a Contracting State to safeguard its core values and fundamental notions of morality and justice which may change over time---Public policy exception acted as a safeguard of fundamental notions of morality and justice, such that enforcement of a foreign award may offend these fundamentals---Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 encouraged parties to an alternate dispute resolution mechanism for quicker and less costly resolution of disputes and made foreign arbitral award binding on the parties and prima facie as of right, called for recognition and enforcement of foreign arbitral awards---Public policy exception should not therefore become a backdoor to review the merits of a foreign arbitral award or to create grounds which were not available under Art.V of the New York Convention as same would negate obligation to recognize and enforce foreign arbitral awards and such interference would essentially nullify the need for arbitration clauses as parties would be encouraged to challenge foreign awards on the public policy ground knowing that there is room to have the Court set aside the award.

Arbitration and Public Policy in Hong Kong; The Court and the World (2015); International Arbitration: The Coming of a New Age for Asia (and Elsewhere) (2012); Oil and Natural Gas Corporation Ltd. v. Saw Piples Ltd. (2003) 5 SCC 705; Oil and Natural Gas Corporation Ltd. v. Western Geco International Limited (2014) 9 SCC 263; UNCITRAL Guide;Nan Fung Textiles Ltd. v. Sadiq Traders Ltd. PLD 1982 Kar. 619; Haji Abdul Karim and others v. Sh. Ali Muhammad and others PLD 1959 SC 167; Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641; Shri Lal Mahal Ltd. v. Progetto Granto Spa (2014) 2 SCC 433 at 449 and Phulchand Exports Ltd. v. O.O.O. Patriot (2011) 10 SCC 300 ref.

Parsons and Whittemore Overseas Co. Inc. v. Societe Generals de I'Industrie du Papier PAKTA and Bank of Americal (508 F.2d 969, 974 (2d Cir. 1974); Polytek Engineering Co.Ltd. v. Hebei Import and Export Corp., (23 Y.B. COMM. ARB 666, 666-84); Deutsche Schachtbau-und Tiefbohrgesellschaft m.b.H. v. Ras Ali Khaimah National Oil Co., Shell International Petroleum Co. Ltd. Court of Appeal, Not indicated, 24 March 1987 (13 Y.B. COMM.ARB. 522, 534-35 (1988); Limited v. Nigerian Nat'l Petroleum Corp., (31 YB COMM. Arb. 853, 856); Allsop Automatic Inc. v. Tecnoski snc, Corte di Appello, 22 Y.B.COMM.ARB, 725, 725-26; Ansell S.A. v. OOO Med Bus, Serv., Ruling No.VAS-8786/10, at 2 (2010) and Sultan Textile Mills (Karachi) Ltd. Karachi v. Muhammad Yousuf Shamsi PLD 1972 Kar. 226 rel.

Salman Akram Raja, Faisal Islam, Umer Akram Chaudhary, Ahsan Mahmood, Usman Ali Bhoon, Majid Jehangir, Mian Ahmad Hammad, Shabbir Hussain and Mehrunissa Sajjad for Appellant.

Khawaja Ahmad Hosain, Chaudhry Muhammad Usman, Ms. Faryal Nazir, Zaheer Cheema, Minam Karim along with Imran Javed, Senior Law Officer in the Office of respondent SNGPL for Respondent.

P L D 2019 Lahore 664

Before Jawad Hassan, J

Sheikh ASIM FAROOQ---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.192069 of 2018, decided on 30th August, 2019.

(a) Forest Act (XVI of 1927)---

----Preamble---Punjab Plantation and Maintenance of Trees Act (VI of 1974), Preamble---Current situation of increasing deforestation in Province of Punjab and Pakistan and its adverse impact on environment, people, animal species and flora and fauna stated.

(b) Forest Act (XVI of 1927) ---

----Preamble---Punjab Plantation and Maintenance of Trees Act (VI of 1974), Preamble---Multiple benefits of forests to the environment, people and animals stated.

(c) Constitution of Pakistan---

----Arts. 184(3), 199, Pt. II, Chapt. 1---Public interest litigation---Aggrieved person---Locus standi of petitioner---Liberal interpretation---Public interest litigation was a powerful tool for individuals and groups for combating illegalities, injustice and social ills, which promoted and protected the larger public interest in case of violation of any fundamental rights---As long as the public interest prayed for was bona fide and not based on any vested interests, the principles of locus standi/aggrieved person were to be interpreted liberally by the Courts---Superior courts were bound to protect the Fundamental Rights of citizens in exercise of jurisdiction conferred via Art.199 or Art.184 (3) of the Constitution.

Province of Sindh and others v. Lal Khan Chandio and others 2016 SCMR 48; Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others 2011 SCMR 1621; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Mian Shabir Asmail v. Chief Minister of Punjab and others PLD 2017 Lah. 597; District Bar Association, Rawalpindi v. Federation of Pakistan and others PLD 2015 SC 401; Ms. Imrana Tiwana and others v. Province of Punjab and others PLD 2015 Lah. 522; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47; Salahuddin Dharaj v. Province of Sindh through Secretary, Local Government Department and 4 others PLD 2013 Sindh 236; Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482; Iqbal Ahmad Dhudhi v. Federation of Pakistan and 5 others 2014 CLC 1348; Muhammad Qahir Shah and others v. Federation of Pakistan, Ministry of Railways, through Secretary, Islamabad and others 2014 YLR 2571; PLD 2010 SC 759-Human Rights Case Nos. 1111 of 2006, 1111 of 2007 and 15283-G of 2010 and 2011 PLC (CS) 1076 Suo Motu Case No. 24 of 2010 (Regarding Corruption in H ajj Arrangements in 2010) ref.

(d) Constitution of Pakistan ---

----Art.199---Continuing mandamus, doctrine of---Writ of mandamus---Scope---"Continuing mandamus" was a writ of mandamus issued to an authority by the High Court under Art. 199 of the Constitution in general public interest asking the officer of the authority to perform its task expeditiously for an unstipulated period of time for preventing miscarriage of justice---Doctrine of continuing mandamus, at times also referred to as structural interdict or structural injunction, was a relief given by a Court of law through a series of ongoing orders over a long period of time, directing an authority to do its duty or fulfil an obligation in general public interest, as and when a need arose over the duration a case laid with the Court, with the Court choosing not to dispose the case off in finality---Such relief was provided in a situation which could not be remedied instantaneously but required a solution over a long time, at times going on for years---With such procedural innovation of the writ of mandamus or a mandatory order, the Court monitored compliance of its orders, seeking periodic reports from authorities on the progress in implementing them.

Mall Road Traders Association v. The Deputy Commissioner Lahore 2019 CLC 744 ref.

(e) Constitution of Pakistan---

----Art. 9---Right to life---Scope---Article 9 of the Constitution guaranteed the right to life which included the right to a clean and healthy environment.

Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Asghar Leghari v. Federation of Pakistan and others PLD 2018 Lah. 364; General Secretary Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development Punjab Lahore 1994 SCMR 2061 and Shahab Usto v. Government of Sindh through Chief Secretary and others 2017 SCMR 732 ref.

(f) Constitution of Pakistan---

----Pt. II, Chapt. 1 [Arts.8 to 28]---Fundamental Rights, interpretation of---Scope---Interpretation of Fundamental Rights had to be dynamic and progressive and not pedantic.

Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407; Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another 2012 SCMR 6 ref.

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

----Preamble---IUCN World Declaration on the Environmental Rule of Law (2016), Principle 5---Environmental protection---In Dubio Pro Natura, principle of---Meaning and scope---Said principle meant that when in doubt matters shall be resolved in favour of protection of the environment---Said principle was incorporated and recognized in the domestic jurisprudence of Pakistan.

Maple Leaf Cement Factory Limited v. EPA; PLD 2018 Lah. 255; Shweta Wagh v. Municipal Corporation (Bombay High Court), 2019, para 15 and Hanuman Laxman Aroskar v. Union of India (SC India), 2019 Para. 130 ref.

(h) Punjab Environmental Protection Act (XXXIV of 1997)---

----Preamble---Rio Declaration on Environment and Development, 1992, Principle 15---Environmental degradation---Precautionary principle---Meaning and scope---Precautionary principle, as provided under Principle 15 of the Rio Declaration on Environment and Development, 1992, 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---Said principle was a settled part of Pakistan's domestic jurisprudence.

M.C. Mehta v. Union of India AIR 1997 SC 734; Shehla Zia v. WAPDA PLD 1994 SC 693; Adeel-ur-Rehman v. FOP 2005 PTD 172; Imrana Tiwana v. POP 2015 CLD 983; Ali Steel Industry v. Government of Khyber Pakhtunkhwa 2016 CLD 569; Muhammad Ayaz v. GOP 2017 CLD 772; Maple Leaf Cement Factory Limited v. EPA PLD 2018 Lah. 255; Ms. Shehla Zia and others v WAPDA PLD 1994 SC 693; Haji Muhammad Ismail Proprietor of Muhammad Ismail Construction Company v. Director General EPA and others 2019 CLD 80; Punjab Healthcare Commission v. Mushtaq Ahmed Chaudhary and others PLD 2018 Lah. 762; Walid Iqbal v. Federation of Pakistan and others PLD 2018 Lah. 1; Muhammad Ayaz v. Government of Punjab through Chief Secretary and others 2017 CLD 772 Lung Fung Chinese Restaurant through Atiq Ahmed and 2 others v. Punjab Food Authority through Secretary and 6 others PLD 2017 Lah. 545; Ali Steel Industry through Proprietor v. Government of Khyber Pakhtunkhwa through Chief Secretary and another 2016 CLD 569 and Ms. Imrana Tiwana and others v. Province of Punjab and others PLD 2015 Lah. 522 ref.

(i) Punjab Environmental Protection Act (XXXIV of 1997)--

----S. 2(xlii)---Sustainable development, principle of---Scope---Said principle as defined under S.2(xlii) of the Punjab Environmental Protection Act, 1997 was part of Pakistan's domestic Federal and Provincial statutes.

Pepsi Cola International (Private) Limited through Authorized Officer v. The Punjab Environmental Protection Agency through Director General and others 2018 CLD 1429; Asghar Leghari v. Federation of Pakistan and others PLD 2018 Lah. 364; Muhammad Ayaz v. Government of Punjab through Chief Secretary and others 2017 CLD 772; Maple Leaf Cement Factory Ltd v. Environmental Protection Agency and others PLD 2018 Lah. 255; Ali Steel Industry through Proprietor v. Government of Khyber Pakhtunkhwa through Chief Secretary and another 2016 CLD 569; Kamil Khan Mumtaz and others v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and others PLD 2016 Lah. 699; Abdul Sattar and another v. The State 2016 PCr.LJ 396; Messrs United Ethanol Limited and 6 others v. Environmental Protection Agency, Punjab 2015 CLD 1079; Ms. Imrana Tiwana and others v. Province of Punjab and others PLD 2015 Lah. 522; Young Doctors Association and others v. Government of Pakistan and others PLD 2015 Lah. 112; Mumtaz Khan and others v. Government of Khyber Pakhtunkhwa through Secretary Forest Department and others 2014 CLC 985; 2011 SCMR 1743; Ghulam Mustafa and 189 others v. Province of Sindh through Secretary, Education Department and 6 others 2010 CLC 1383 and Shehri C.B.E. v. Government of Pakistan and others 2007 CLD 783 ref.

(j) Punjab Environmental Protection Act (XXXIV of 1997)--

----Preamble---"Environmental justice", concept of---Scope---Said concept was incorporated and recognized in Pakistan's domestic jurisprudence.

PLD 2018 Lah. 364; Maple Leaf Cement PLD 2018 Lah. 255 and Muhammad Ayaz's case 2017 CLD 772 ref.

(k) Punjab Environmental Protection Act (XXXIV of 1997)--

----Preamble---Declaration of the United Nations Conference on the Human Environment [Stockholm Declaration], 1972, Principle 17---Environmental protection---Public trust, doctrine of---Scope---Said doctrine was part of Pakistan's domestic jurisprudence.

Cutting of Trees Canal Widening Project Lahore case 2011 SCMR 1743; Asghar Leghari's case PLD 2018 Lah. 364; Lung Fung Chinese Restaurant v. Punjab Food Authority 2017 Lah. 545; Lahore Bachao Tehrik v. Dr. Iqbal Muhammad Chauhan 2015 SCMR 1520; Imrana Tiwana v. Province of Punjab PLD 2015 Lah. 522 Young Doctors Association v. Government of Pakistan PLD 2015 Lah. 112; Muhammad Tariq Abbasi v. Defence Housing Authority 2007 CLC 1358 ref.

(l) Punjab Environmental Protection Act (XXXIV of 1997)--

----Ss. 6 & 12(1)---Forest Act (XVI of 1927), Ss. 3, 4 & 5---Punjab Plantation and Maintenance of Trees Act (VI of 1974), Ss. 3 & 4---Parks and Horticulture Authority Act (XLVII of 2012), Ss. 4 & 15---Lahore Development Authority Act (XXX of 1975), Ss. 20 & 21---Punjab Development of Cities Act (XIX of 1976), Ss. 19 & 20---Punjab Local Government Act (XIII of 2019), Ss.150(1)(j) & Third Sched. Pt.2, Entries Nos. (dd), (ee) & Fourth Sched. Pt. 2, Entry No. (aa) & Fifth Sched. Pt. 2, Entries Nos. (dd) & (ee)---Punjab Village Forest Rules 2013, Rr.4(2) & 5---National Climate Change Policy, 2012, Cls.3, 4.4, 4.6.5, 5.7 & 7---National Forest Policy, 2015, Cls. 4, 5, 6, 7, 8, 9, 10 & 11---[Punjab] Policy on Controlling Smog, 2017, Paras. 7, 10 & 11---Punjab Environmental Policy, 2015, Paras. 3, 4, 7.2, 7.9, 7.10, 7.12, 8.5 & 11 ---Punjab Government Rules of Business 2011, Sched. II---Punjab Forest Policy Statement, 1999---Punjab Forestry Sector (Forests, Watershed, Rangelands and Wildlife) Policy, 1999---Deforestation in Pakistan---Protection of forests---Urban forestation---Plantation of tress in urban areas including housing societies,educational institutions, hospitals, roads, streets, green belts, markets, parks and car parks etc.---Directions issued by the High Court to Federal and Provincial government departments and local authorities to safely manage, conserve, sustain, maintain, protect and grow forests and plant trees in urban cities stated.

Following are the directions issued by the High Court to Federal and Provincial government departments and local authorities to safely manage, conserve, sustain, maintain, protect and grow forests and plant trees in urban cities:

(1) All the applicable laws and the relevant directions and judgments of the Supreme Court and High Court mentioned in the present judgment shall be implemented in letter and spirit in order to plant, protect and preserve the forests;

(2) All the relevant government departments and authorities shall take steps to protect, manage and conserve the forests and trees in the urban areas, and they shall make manifest and obvious efforts to enlarge the forests and trees in the province and the country;

(3) The requirement for planting three (3) trees per acre by the occupier of a land (section 3 of the Punjab Planation and Maintenance of Trees Act, 1974) and the penalty of one (1) rupee per tree (section 4 of the same Act) may be revised;

(4) Every responsible Ministry, Division, Department and Authority etc. shall publish the yearly report in which it shall highlight the expansion of the forest area, tree plantation campaign in the urban areas and also the action taken by them in compliance of the relevant laws;

(5) The competent authority was to impose penalties against the relevant officers for omission of their duties, if any, under the respective laws as well as the disciplinary laws and also against the public for cutting trees;

(6) The Secretary Cooperative and Registrar Cooperative shall issue directions to the housing societies and authorities for, (i) planting at least two (2) trees in the green belt in front of each house, which shall be mentioned in their allotment letters and bye-laws of the society; (ii) imposing heavy penalties and punishments for cutting said trees, which shall be at least Rs.25,000/- per tree, and for (iii) monitoring the trees through respective officers of the society/authority. The treatment and maintenance of the trees will be the sole responsibility of the society/authority concerned;

(7) The Provincial Government shall revise and amend such laws where clear direction and command was not entrusted to any authority.Under the Punjab Government Rules of Business, 2011, the Secretary Forest, the Secretary Cooperative and the Local Government etc. had clear mandate to make laws and policies, under Schedule-II of the Punjab Government Rules of Business, 2011;

(8) More efforts must be made by the Government and other departments for tree plantation and such activity was to be monitored by the relevant authorities each year through proper book logging and designated officers of the area to count, monitor and manage trees every week and submit report and status of the same to the Head of the society/authority for publishing in their annual report. The relevant authority should also number the trees to keep track of each tree in urban areas (streets, roads, parks, markets and green belts);

(9) The Forestry, Wildlife and Fisheries Department shall, through the media and other means, inform the public and create awareness, including lodging a complaint for any violation of the laws for cutting of trees to the concerned person, who maintained data and managed trees, and they were to take strict action through respective laws. Every area shall have a person to file a complaint (before) depending on the jurisdiction of the area and duties of the officers. The Urban Plantation Policy shall be consulted by all the departments;

(10) The Local Government, Parks and Horticulture Authority (PHA), Defence Housing Authority (DHA), Lahore Development Authority (LDA) and all others authorities/societies, Secretary Forest and other relevant authorities were to define a mechanism for urban forestation by learning from the Urban Plantation Policy;

(11) A specific officer may be appointed in a designated area to deal with the issues relating to the trees and forest, as the case may be. If any citizen in his/her society or locality felt the need of plantation of trees, such relevant officer may address grievance of the citizen by planting the requisite number of trees by the required authority otherwise they were to contact PHA which shall have designated officers for doing such task along with the Forest Department. These trees then shall be again monitored and managed by the said authority;

(12) All the authorities, including the Defence Housing Authority (DHA), Lahore Development Authority (LDA), Multan Development Authority (MDA), Faisalabad Development Authority (FDA) and other relevant authorities, were to make and adopt comprehensive policies with respect to plantation of trees in urban areas with experience of Urban Plantation Policy and make their own policy under respective laws and immediately start planting of trees with the request to PHA and other departments, and maintain the same by imposing fine and penalty on the officers of the area or any citizen;

(13) Schools, colleges, higher education institutes, hospitals, parking sites etc. were to make policy for planting trees in open spaces and waiting areas/car parks;

(14) The Provincial Government through its respective departments shall make laws for imposing penalties and heavy fines for cutting, removing and damaging any tree, with permission of the concerned authority including Environmental Protection Agency (EPA), Parks and Horticulture Authority (PHA) and consider all mitigating measures at the time of public hearing of any project such as Initial Environmental Examination (IEA) and Environmental Impact Assessment (EIA). [pp. 712, 713, 714] P, Q, R & S

For Petitioners by:

Ahmad Hassan, Anwaar Hussain, Mehr Muhammad Iqbal and Sheikh Asim Farooq for Petitioner No.1.

Saima A. Khawaja and Mehnaz Shiraz for Petitioners Nos.2 to 4.

Mohammad Azhar Siddique for Petitioner No.5.

Sheraz Zaka on behalf of Petitioner (Human Voice).

For Respondents by:

Ms. Sadia Malik Assistant Attorney General along with Dr. Raja Omer DIG (Forest) and Ali Raza Zaidi, Deputy Director (Legal) Ministry of Climate Change, Government of Pakistan.

Rai Shahid Saleem Khan, Assistant Advocate General along with Cap.(R) Muhammad Asif, Secretary, Shahid Rashid Awan, Additional Secretary, Forestry Wildlife and Fisheries Department, Muhammad Ashraf, Range Forest Officer, Muzaffargarh.

Kiran Khurshid, Registrar Cooperatives Punjab.

Waqar A. Sheikh, Advocate/Legal Advisor of LDA along with Ms. Amina Imran Khan, Director General, Lahore Development Authority.

Junaid Iqbal Khan for Respondents-PHA along with Dr. Faisal Zahoor, Director General (PHA), Lahore.

Khalid Sherdil, CEO, Urban Unit along with Muhammad Asif Hayat.

Muhammad Imran, Company Secretary, Urban Unit.

Atta M. Khan, Senior Law Officer, P&D Department.

Muhammad Asif Hayat, Respondents (Urban Unit).

Muhammad Riaz for Respondent No.15.

Ahmad Rafay Alam for Respondent No.16.

P L D 2019 Lahore 715

Before Muhammad Ameer Bhatti, J

Mst. FAIZA IKRAM---Petitioner

Versus

IMRAN MUZAFFAR and others---Respondents

Civil Revision No.35042 of 2019, decided on 11th June, 2019.

Punjab Urban Immovable Property Tax Rules, 1958---

----Rr. 5(a), 6(1) & 11 (9)---Specific Relief Act (I of 1877), S.42---Suit for declaration---P.T.I. Form as given in Punjab Urban Immovable Propety Tax Rules, 1958 in favour of defendant---Scope---Contention of defendant was that he was owner of suit property---Suit was decreed concurrently---Validity---P. T. I Form did not create any title in favour of any person on the basis of entries therein but same could only be a valid evidence of proof of holding of possession---Revision was dismissed, in circumstances.

Muzaffar Khan v. Sanchi Khan and another 2007 SCMR 181; Irfan and 5 others v. Surriya Jabeen and 4 others 2012 CLC 605 and Sh. Muhammad Rafique v. Sh. Muhammad Jameel 2015 MLD 642 rel.

P L D 2019 Lahore 717

Before Ch. Muhammad Masood Jahangir, J

NIAMAT ALI and others---Petitioners

Versus

GULAM JILIANI and others---Respondents

Civil Revision No.2871 of 2011, heard on 22nd May, 2019.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 114---Limitation Act (IX of 1908), S. 3---Suit for declaration---Limitation---Estoppel, principle of---Applicability---Scope---General power of attorney---Judicial record---Presumption of correctness---Suit property was transferred through general attorney which was not challenged by the principal during his life time---Contention of plaintiffs was that impugned mutation and subsequent transactions were based on fraud and misrepresentation---Suit was decreed by the Trial Court but Appellate Court dismissed the same---Validity---Predecessor-in-interest of plaintiffs survived for fifteen years after attestation of impugned mutation but he did not assail the same during his life time---If any authority was not conferred upon the agent but subsequently it was acknowledged by the principal then it carried value in the eye of law---Conduct of predecessor-in-interest was sufficient to prove that he was not claiming the ownership of suit property---Principle of estoppel was applicable in the present case---Judicial record had presumption of correctness and did not require any proof---Decision of Court of competent jurisdiction could not be equated as at par with the statement of witness---Present suit had been filed after twenty eight years and same was time barred---Any suit instituted beyond the statutory period was to be dismissed---Jurisdiction of Court would depend on law of limitation---If proceedings before the Court were beyond the scope of limitation then it could not assume jurisdiction---Plaintiffs had failed to point out any illegality or irregularity in the impugned judgment and decree passed by the Appellate Court---Revision was dismissed, in circumstances.

Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 68; Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336; Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Kala Khan and others v. Rab Nawaz and others 2004 SCMR 517; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Ghulam Abbas and others v. Mohammad Shafi through LRs and others 2016 SCMR 1403 and Nasir Fahimuddin and others v. Charles Philips Mills and others 2017 SCMR 468 rel.

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

----S. 3---Any suit, appeal or application instituted, preferred or made beyond statutory period was to be dismissed.

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

----S. 96 & O. XLI, R. 33---Variation between judgment of Trial Court and First Appellate Court---Effect---Judgment of First Appellate Court would be given preference over the judgment of Trial Court.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs and others 2013 SCMR 1300 and Amjad Ikram v. Mst. Asya Kausar and 2 others 2015 SCMR 1 rel.

(d) Words and phrases---

----'Ratification'---Connotation.

The expression "ratification" means the making valid of an act already done. This principle is derived from the latin maxim "ratihabitio mandato aequiparatur" meaning thereby a subsequent ratification of an act is equivalent to a prior authority to perform such act.

Fakhar-uz-Zaman Akhtar Tarar for Petitioners.

Najam Iqbal for Respsondents Nos. 9 to 24.

Atif Mohtashim Khan and Razia Begum for Respondent No.2(b).

P L D 2019 Lahore 723

Before Rasaal Hasan Syed, J

SAEED AHMAD---Petitioner

Versus

Mst. GHULAM FATIMA---Respondent

Civil Revision No.809 of 2018, heard on 23rd May, 2019.

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

----O. XXXVII, Rr. 2 & 4 & O. IX, R. 3---Limitation Act (IX of 1908), Arts. 163, 164 & 181---Summary suit on the basis of cheque---Ex-parte decree, setting aside of---Application for setting aside of ex-pate decree dismissed for non-prosecution---Restoration of---Limitation---Misunderstanding with regard to next date of hearing---Sufficient cause---Scope---Application for setting aside of ex-parte decree was dismissed for non-prosecution and petition for restoration of earlier application was dismissed being time barred---Contention of petitioner was that due to misunderstanding with regard to next date of hearing he could not appear before the Trial Court and his application for setting aside of ex-parte decree was dismissed for non-prosecution---Validity---Counsel for the petitioner noted wrong date for next hearing bonafidely which was sufficient to explain fault and to seek restoration of the case---Assertion of counsel in his affidavit for restoration of cases was to be accepted as against mere denial by the opposite side---Trial Court was to frame issues and allow the parties to lead evidence to prove their stance instead of outright dismissal of application on mere denial by the opposite party---Impugned order was passed under O.IX, R. 3, C.P.C. which could be recalled even without notice to the other side---Application under consideration was not regulated by the provisions of Art.163 of Limitation Act, 1908 which applied to restoration of suit and not for restoration of miscellaneous application---Petition for restoration of miscellaneous application dismissed in default would be regulated under Article 181 of Limitation Act, 1908 which did provide a period of three years from cause of action---Present petition was within time which could not be dismissed by referring earlier application which was not before the Court---Limitation period for petition to set aside ex-parte decree could only be considered after its restoration---Impugned order suffered from error of law and jurisdiction, which was set aside---Petition for restoration of application dismissed for non-prosecution would be deemed to be pending before the Trial Court which was to be decided on its own merits---Revision was allowed, in circumstances.

Municipal Committee, Rawalpindi through the Secretary, Municipal Committee, Rawalpindi v. Raja Muhammad Sarwar Khan 1968 SCMR 817 and Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others 1989 SCMR 883 rel.

(b) Administration of justice---

----Law favours adjudication of cases on merits---Non-suiting of a party on mere technicalities could not be approved.

Anwar Khan v. Abdul Fazal Manan 2010 SCMR 973 rel.

Malik Muhammad Latif Khokhar for Petitioner.

Mirza Muhammad Kaleem for Respondent.

P L D 2019 Lahore 729

Before Shahid Jamil Khan, J

NISHAT HOTEL AND PROPERTIES LIMITED and others---Petitioners

Versus

The PROVINCE OF PUNJAB and others---Respondents

Writ Petition No.23657 of 2016, decided on 19th July, 2019.

(a) Punjab Revenue Authority Act (XLIII of 2012)---

----Ss. 2(j), 3(1), 5(4), 8, 36(a), 36(b) & 36(c) [as amended by the Punjab Revenue Authority (Amendment) Act (III of 2016) and Punjab Revenue Authority (Second Amendment) Act (XL of 2016)]---Punjab Sales Tax on Services Act (XLII of 2012), Preamble---Punjab Revenue Authority ('Revenue Authority')---Absence of notification under S.3(1) of the Punjab Revenue Authority Act, 2012 ('the Act') for establishment of the Revenue Authority---Omissions, discrepancies and defects in the Punjab Revenue Authority Act, 2012 highlighted in the case reported as Institute of Architects, Pakistan (Lahore Chapter) v. Province of Punjab and others (PLD 2016 Lahore 321)---Validation of such omissions, discrepancies and defects through the Punjab Revenue Authority (Amendment) Act, 2016 (III of 2016) ['First Amendment Act'] and Punjab Revenue Authority (Second Amendment) Act, 2016 (XL of 2016) ['Second Amendment Act']---Vires of---Both the 'First Amendment Act' and 'Second Amendment Act' were made effective from 1st July 2012, however, retroactivity of the Revenue Authority was reiterated in S.36(c) of the Act to establish it by command of law, without issuance of notification under S. 3(1)---All actions taken by Chairperson, during the interregnum period were deemed, by fiction of law, to have been taken by the Revenue Authority and the sales tax and other amounts levied, charged, collected or realized were validated under the Act---Legislative competence to promulgate the impugned First and Second Amendment Acts was not in question---Since the Provincial Legislature was competent to enact the impugned First and Second Amendment Acts, therefore, S.36(c) of the Act had cured the lacuna of non-issuance of notification for establishment of the Revenue Authority---Absence of consequent amendment in S. 3(1) of the Act and other provisions, shall not affect the validation, which was to be treated as silenced or impliedly repealed---Protection in form of validity of proceedings under S. 8 of the Act was available for future, only in presence of a bona fide defect in constitution of the Revenue Authority or a vacancy---Such protection could not be allowed to be misused by the Executive by keeping the defect or not filling the vacancy without a justifiable excuse---After the judgment in Institute of Architects, Pakistan (Lahore Chapter) v. Province of Punjab and others (PLD 2016 Lahore 321), charging and collection of tax levied under the Punjab Sales Tax on Services Act 2012, from 1st July, 2012 till the date of judgment was required to be validated for public welfare and in the interest of society---Since composition and establishment of the charging and collecting Revenue Authority was declared illegal, therefore, to achieve the purpose of validation, all actions, including framing of rules, defective appointments and constitution of Revenue Authority was required to be validated as well---Single handed performance of functions by Chairperson on behalf of the Revenue Authority were validated, by invoking doctrine of fiction, under S.36(b) of the Act---Purpose in favour of society existed and there was no prohibition under the Constitution, to pass a retrospective law to validate such actions and decisions, hence the provisions of Ss.36(a) & 36(b) of the Act were held to have been enacted competently---Constitutional petitions challenging the vires of the impugned First and Second Amendments Acts were dismissed accordingly.

Institute of Architects, Pakistan (Lahore Chapter) v. Province of Punjab and others PLD 2016 Lah.321 and Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and others PLD 1962 SC 335 ref.

(b) Punjab Revenue Authority Act (XLIII of 2012)---

----Ss. 3(2), 3(4), 5(4), 36(a) & 36(b) [as amended by the Punjab Revenue Authority (Amendment) Act (III of 2016) and Punjab Revenue Authority (Second Amendment) Act (XL of 2016)]---Punjab Revenue Authority ('Revenue Authority')---Omissions, discrepancies and defects in the Punjab Revenue Authority Act, 2012 highlighted in the case reported as Institute of Architects, Pakistan (Lahore Chapter) v. Province of Punjab and others (PLD 2016 Lahore 321)---Validation of such omissions, discrepancies and defects through the Punjab Revenue Authority (Amendment) Act, 2016 (III of 2016) ['First Amendment Act'] and Punjab Revenue Authority (Second Amendment) Act, 2016 (XL of 2016) ['Second Amendment Act']---Vires of---Legislative judgment---Scope---Actions, including framing of rules, and appointments, subject matter of the judgment reported as Institute of Architects, Pakistan (Lahore Chapter) v. Province of Punjab and others (PLD 2016 Lahore 321) , had been validated by inserting subsection (4) in S.5 and through clauses (a) and (b) to S. 36 of the Act---Under S.36(b), actions taken by the Chairperson till establishment of the Revenue Authority were validated, by legislative fiat, as if these were taken by Revenue Authority---However, S.5(4) gave power to the Chairperson to perform functions and discharge duty of the Revenue Authority till the time it was constituted under the Act---Provisions under S.5(4) of the Act, were susceptible to misuse---Instead of rectifying the defect in constitution of Revenue Authority, the executive might prefer that its functions be performed and duties be discharged by the Chairperson; it could defeat the intent of the Legislature, reflected in the S.3(2) & (4) of the Act---Revenue Authority, being a body corporate, should mandatorily consist of the Chairperson and not less than four members---Method of validation by inserting subsection (4) to S. 5, without amending S.3(2) and (4) of the Act, amounted to legislative judgment, therefore, was violative of the doctrine of 'Separation of Powers' entrenched in the Constitution, hence was declared to be ultra vires---Legislature could not assume role of an Appellate court by merely pronouncing in the statute that the decision shall not be binding, as was done by inserting subsection (4) to S. 5 of the Act.

Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others 1993 SCMR 1905 ref.

(c) Legislation---

----'Retroactive law' or 'Ex post facto law'---Scope---To validate any action or omission, declared not in accordance with law, retroactive laws were enacted to supply validity through Legislative fiat---Ex post facto law was one which operated upon a subject not liable to it at time the law was made---Ex post facto law or retroactive law was which retroactively changed the legal consequences of acts committed or the legal status of facts and relationships that existed prior to enactment of the law.

Calder v. Bull [3 U.S. (3 Dall.) 386 (1798) ref.

(d) Words and phrases---

----'Retroactive'---Definition.

Black's Law Dictinary 8th Edn. ref.

(e) Words and phrases---

----'Retroactivity'---Definition.

Black's Law Dictinary 8th Edn. ref.

(f) Words and phrases---

----'Retroactive law'---Definition.

Black's Law Dictinary 8th Edn. ref.

(g) Interpretation of statutes---

----Retrospective effect---Scope---General rule was that legislation shall be prospective, but there was no prohibition for the Legislature to change the consequences, under the law, of an act or omission, by giving it retrospective effect.

(h) Legislation---

----Subordinate legislation, validation of---Legislative judgment---Scope---Subordinate legislation, which did not follow the relevant provisions and was so declared by a Court, could be validated by the same Legislature, which had delegated such powers, to be exercised in a particular manner under the relevant provisions---When a condition could be imposed by the Legislature for exercise of delegated power, it could also be waived by the same Legislature for a particular subordinate legislation, and such waiver could not said to be a Legislative judgment.

Wijay Mills Company Limited v. State of Gujarat [(1993) 1 SCC 345 and Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 ref.

For Petitioner(s) by:

Imtiaz Rashid Siddique and Barrister Shehryar Kasuri.

Petitioner(s) in other petitions by:

Uzair Karamat Bhandari, Mansoor Usman Awan, Shehzad Ata Elahi, Naved Amjad Andrabi, Khurram Saleem, Khalid Ishaq, Rana Muhammad Afzal, Muhammad Raza Qureshi, Rashid Anwar, Asad Hussain, Munawar-us-Salam, Shahid Hussain, Barrister Aiyan Tariq Bhutta, Mubashir Aslam Zar, Shahbaz Butt, Khurram Shahbaz Butt, Maria Farooq, Mian Tariq Hassan, Muhammad Humazah, Raza Imtiaz, Jamshaid Alam, Sabeel Tariq Mann, Qadeeer Kalyar, Barrister Ahmed Pervaiz, Shehzeen Abdullah, Hyder Ali Khan, Mohsin Mumtaz, Ali Almani, Asghar Leghari, Barrister Kashif Rafiq Rajwana, Muhammad Asif Butt, Mansoor Ali Ghanghro, Barrister Ameer Abbas Ali Khan, Barrister Haroon Dugal, Waqas Ajwad, Syed Zia Haider Rizvi, Sajjad Haider Rizvi, Gulraiz Asghar, Jahanzaib Awan, Khawar Bharwanah, Aamir Iqbal Basharat, Umair Yasin, Moeen Ahmed, Adnan Ahmad, Imran Muhammad Sarwar, Muhammad Ajmal Khan, Ch. Muhammad Saeed Zafar, Dr. Ilyas Zafar, Syed Nasir Ghillani, Iram Fatima, Mustafa Kamal, Muqaddas Zahra, Rabia Rehman, Rao Athar Akhlaq, Azmat Sidhu, Rana Munir Hussain, Mudassar Shujauddin, H.M. Azhar Ali, Muhammad Azhar Khan Joyia, Sikandar Javed, Sohail Anjum Virk, Ehsan-ur-Rehman, Muhammad Nasir Khan, Abdul Waheed Habib, Mian Muhammad Shafiq, Daud Aziz Khokhar, Shezada Mazhar, M. Jawwad Khan Lodhi Asad Raza, Ali Rana, Muhammad Younas Khalid, Bilal Bashir, Masood Ahmad Wahla, Ashan Masood, Miss Rohi Saleha, Sajjad Ali, Muhammad Yasir Randhwa, Syed Muhammad Ijaz, Mian Muhammad Usman, Muhammad Saad Khan, Haji Abdul Ghafoor, Muhammad Shahid Piracha, Muhammad Azam Zafar, Muhammad Mohsin Virk, Muhammad Ahsan Virk, Arsalan Chaudhry, Muhammad Shabbir Hussain, Malik Muhammad Ali Awan, Waheed Ashraf Bhatti, Salman Akram Raja, Malik Ahsan Mehmood, Umer Akram Chaudhry, Barrister Syed Reza Ali, Humzah Mehboob, Barrister Sardar Mohammad Ali, Mahr Bano Langrial, Iftikhar Ahmad Ansari, Khurram Hussain, Sheikh Aqeel Ahmad, Saqib Haroon Chishti, Hina Bandealy, Arslan Saleem Chaudhry, Imran Iqbal, Farhan Shahzad, Zohaib Ali Sidhu, Amir Wali, Moazam Ali Malhi, Ch. Waqas Ali Bhutta, Mian Mahmood Rashid, Faqir Hussain Rana, Sh. Muhammad Umar, Zeem-ul-Farooq Malik, Barrister Muhammad Ahmad Pansota, Zahid Ateeq Ch., Ahmad Uzair, Shahbaz Siddique, Sumair Saeed Ahmad, Raja Muhammad Ali, Ch. Bilal Butt, Hameed Ahmad Butt, Tariq Mahmood Ansari, Zahid Imran Gondal, Ayyaz Shaukat, Ahmad Uzair, Rana Bilal Ghaffar Khan, Uzair Khalid, Malik Faisal Khalid, Khalil-ur-Rehman, Minam Karim, Muhammad Rafique Chaudhry, Sayyed Alamdar Hussain, Barrister Hassan Nawaz Shaikh, Manzar Latif Mian, Arslan Riaz, Humza Humayun, Muhammad Ijaz Ali Bhatti, Khurram Saeed, Mirza Israr Baig, Mehdi Tirmzi, Rana Zain Tahir, Saadat Ali Saaed, M. Zohaib Shahid, Nawazish Ali, Kashif Hussain, H.M. Majid Siddiqi, Ch. Babar Ali, Muhammad Baqir Hussain, Khursheed Ahmed Irteza Ali Naqvi, Asif Afzal Bhatti, Muhammad Naeem Munawar, Riaz Ahmad Bajwa, Usman Ali Bhoon, Ajab Gul, Waseem Ahmad Malik Syed Muhammad Ijaz, Muhammad Taimoor Hassan, Mian Asif Arshad, Hashim Aslam Butt, Zain Sakandar, Abid Hussain Sial, Imran Anjam Alvi, Muhammad Faheem Bashir, Mirza Mubashar Baig, Bashart Ali Awan, Fazal Abbas, Manzoor Ahmad Khan, Hammad-ul-Hassan Hanjra, Ali Awais, Tahir Butt, Mohammad Raheel Kamran Sheikh, Khubaib Ahmad, Zulfiqar Ali Khan, M. Naveed Khan, Mudassar Ali Hussain, Sardar Balakh Sher Khosa, Shahzaib Masood, Ali Sibtain Fazli, Hasham Ahmad Khan, Umar Tariq Gill, Esa Ahmad Jalil, Abad-ur-Rehman, Rabeel Raza Bhatti, Sardar Kalim Ilyas, Salman Zaheer Khan, Ahmer Bilal Soofi, Ch. Muhammad Ali, Usman Virk, Farid Adil Ch., Sajid Wali, Abid Wali, Almas Arif, Majid Jehangir, Muhammad Bilal Ramzan, Khalid, Shoaib Rashid, Usman Nasir Awan, Shahzad Hassan Pervaiz, Habib-ur-Rehman, Faizan Shuja Butt, Tahir Bashir, M. Iqbal Hashmi, Saad Rasool, Hamza H. Rashid, Shabbir Ahmad Mughal, Muhammad Bilal Pervaiz, Syed Sajjad Hussain Zaidi, Ch. A. D. Kahlon, Fawad Malik Awan, Malik Muhammad Arif Bara, Malik Mubarak Ali, Rao Tasavvur Ali, Sayyed Ali Imran Rizvi, Ali Imran Rao, Zahid Saleem, Muhammad Salman Siddiqui, Rustam Nawab Luk, Naeem Anjum, Malik Muhammad Asghar Javed, Mirza Bilal Zafar, Tahir Mahmood Sundhu, Barrister Haris Ahmad, Malik Zahid Hussain, Babar Ilyas Chatha, Ch. Awais Ahmad Qazi, Zaki Rehman, Mubashar Hussain, Sheikh Khurram Abbas, Tanveer Ahmad, Khudad Chattha, Raza Kazim, Ali Abid Khagga, Muhammad Yousaf Ch., Faisal Hameed Butt, Muhammad Siddiq Mughal, Jabran Tariq Butt, Tanveer Aslam, Ubaid Ullah Kalyar, Muhammad Munsif Ali, Syed Raees-ud-Din Ahmad, Ashfaq Ahmad Malik, Ch. Qamar uz Zaman, Malik Kafeel Ahmad Khokhar, Waqar Ranjha, Muhammad Zubair, Muhammad Arif Goraya, Syed Iftikhar Hussain Shah, Malik Bashir Ahmad Khalid and Muhammad Asim Mumtaz for Petitioners.

Respondent(s) by:

Sajid Ijaz Hotiana, Tanzil-ur-Rehman Hotiana, Barrister Asfandyar Khan Tareen, Waqqas Ahmed Mir, Sarfraz Ahmad Cheema, Shahzad Ahmad Cheema, Barrister Bilal Ramzan, Ahmad Hassan, Muhammad Hassan Abdullah Niazi, Syed Moazzam Ali Shah, Adeel Shahid Karim, Foziya Bukhsh, Kausar Parveen, Sufian Ejaz, Mohammad Amir Malik, Mian Wajahat Ali, Malik Muhammad Awais Khalid, Muqtadir Akhtar Shabbir, Mian Osman A. Shaukat, Ijaz Mahmood Chaudhary, Ch. Muhammad Zafar Iqbal, Ch. Muhammad Jawad Zafar, Qamar Zaman Qureshi, Muhammad Awais Kamboh, Hassan Iqbal Warraich, Mian Yusuf Umar, Saleem Akhtar Sheikh, Malik Abdullah Raza, Shahid Sarwar Chahil, Ans Gull, Muhammad Umer Qureshi, Arslan Abbas, Rana Muhammad Mehtab, Muhammad Faisal Iqbal, Shahid Usman, Muhammad Hussain, Rai Muhammad Javed Iqbal Kharal, Umair Anwar, Abdul Waheed Khan Baloch, Falak Sher, Saba Saeed Sheikh, Zubair Siddique, Rana Irfan Shahid, Hassan Ali, Ali Usman, Syed Zail-ul-Abideen Bukhari, Afzal Hussain and Saad Amir for Respondents.

Monim Sultan, Assistant Attorney General for Pakistan.

Barrister Zargham Lukhesar and Ch. Muhammad Jawad Yaqoob, Assistant Advocates General, Punjab, Lahore.

Mrs. Naseem Mushtaq, Law Officer, Finance Deptt.

Muhammad Akmal, Section Officer (Tax).

Nadeem Saleh-ud-Din and Muhammad Afzal Bashir, Deputy Secretaries (Legal), Punjab Revenue Authority.

Mahmood Ali, Assistant Manager NLC, T.N.B., Lahore.

P L D 2019 Lahore 751

Before Farooq Haider, J

KHUSHI MUHAMMAD---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Criminal Miscellaneous No.47457/M of 2019, decided on 19th August, 2019.

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

----S. 91(1) [as amended by the Code of Civil Procedure (Punjab Amendment) Act (XIV of 2018)]---Public nuisance---Suit, filing of---Procedure---Leave of the court---Before amendment of S. 91(1), C.P.C, consent of Advocate General was required when civil suit was to be filed regarding public nuisance---After amendment of S. 91(1) by Code of Civil Procedure (Punjab Amendment) Act (XIV of 2018) now only 'leave of the Court' was necessary for filing such a suit.

A. Razzak Adamjee and another v. Messrs Datari Construction Company (Private) Limited and another 2005 SCMR 142 ref.

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

----S. 133---Public nuisance---Conditional order for removal of nuisance---Filing of complaint---Pre-requisites---Perusal of S.133, Cr.P.C clearly revealed that consent of Advocate General or leave of Court was not required for filing complaint under S.133 Cr.P.C. or for bringing machinery of criminal law into motion---Magistrate could pass order for removal of obstruction or nuisance on basis of police report or any other information/evidence thought fit by him.

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

----S. 133---Public nuisance---Conditional order for removal of nuisance---Obstruction---Scope---Blocking drain water of village---Perusal of record revealed that petitioner had prima facie caused unlawful obstruction by filling someland of village 'chapper' (water drainage reservoir) with clay and erecting a 'wat/bund', which resulted into blockage of passage of water from village to 'chapper', which act prima facie constituted 'obstruction' as defined in S.133 Cr.P.C.---Petition was dismissed accordingly.

Muhammad Ali Qureshi for Petitioner.

P L D 2019 Peshawar 1

Before Lal Jan Khattak and Syed Arshad Ali, JJ

BARKAT MIAN---Petitioner

versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 4 others---Respondents

Writ Petition No.1125-A of 2017, decided on 24th January, 2018.

(a) National Disaster Management Act (XIV of 2010)---

----S. 30---Constitution of Pakistan, Arts. 122, 123 & 144---Disaster management---Allocation of funds---Chief Minister, powers of--- Grievance of petitioner was that neither Chief Minister nor Member of Provincial Assembly had any authority to issue directions for distribution of funds allocated to Provincial Disaster Management Authority---Validity---Member of Provincial Assembly did not figure anywhere in working of rehabilitation of affectees of disaster management in any district or province except as provided under National Disaster Management Act, 2010, i.e., being members of Provincial Disaster Management Commission---Chief Minister alone had no authority under National Disaster Management Act, 2010 to interfere in distribution of funds allocated for disaster management under National Disaster Management Act, 2010---Chief Minister could only exercise powers of Provincial Disaster Management Commission, which too only in emergency and subject to ex-post facto approval of Provincial Disaster Management Commission---Chief Minister had no power to interfere in funds of rehabilitation of affectees/disaster management in any particular district---Authority of Chief Minister was to be placed before Provincial Assembly and all schemes intended by Provincial Government to be executed in a financial year and once those were approved in budget, then Chief Minister was left with no prerogative to interfere in utilization of funds---Chief Minister had no discretionary authority relating to utilization of funds---Members of Provincial Assembly had no authority to interfere in rehabilitation of disaster affected area---Chief Minister of the province had no authority to bypass mandatory provisions of National Disaster Management Act, 2010 and to approve schemes identified by a member of provincial assembly for utilization of funds established under S. 30 of National Disaster Management Act, 2010---Constitutional petition was allowed accordingly.

Human Rights Case No.11504-G of 2013 and Civil Miscellaneous Applicatins Nos.2960, 3566, 3579, 3649, 3865, 4022, 4135, 4208 and 4498 of 2013 PLD 2014 SC 131; Iqbal Hussain v. Province of Sindh through Secretary, Housing and Town Planning Karachi and others 2008 SCMR 105 and American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449 ref.

(b) Administration of justice---

----Doing of a thing---Principle---When law requires a thing to be done in a particular manner, it should be done and executed in the manner as provided under law alone.

Rana Muhammad Ishaq for Petitioner.

Yasir Zahoor Abbasi, Assistant Advocate-General for Respondents.

P L D 2019 Peshawar 13

Before Qaiser Rashid Khan and Muhammad Ayub Khan, JJ

SHABBIR HUSSAIN GIGYANI, ADVOCATE Member Peshawar High Court Bar Association---Petitioner

versus

FEDERATION OF PAKISTAN through Principal Secretary to the President

of Islamic Repoublic of Pakistan---Respoondent

Writ Petition No.4214-P of 2018 with I.R., decided on 4th September, 2018.

Constitution of Pakistan---

----Art. 102 & Third Sched.---Provincial Governor---Oath taking ceremony---Venue---Plea of petitioner that in terms of Art.102 of the Constitution the oath taking ceremony of the Provincial Governor should be held at the premises of the High Court instead of the Governor House---Validity---Article 102 of the Constitution stated in clear terms that the Governor shall make oath before the Chief Justice of the High Court---Venue where such oath was to be administered to the respective Governor of a Province was not provided in the Constitution---Chief Justice of a Province, acted in that capacity not just within the premises of the High Court but all over the province and it was up to the convenience of the Chief Justice to administer oath to the Governor---In view of such background the oath ceremony was being administered to the Governor by the Chief Justice within the premises of the Governor House---Furthermore despite the neutrality attached or associated with the office of the Governor of a Province, for all the practical purposes, he came from a political background and in the ordinary course, he was the choice of the party in power at the Federal level---Such being the case, the number of political figures who converged at the time of administration of oath to the Governor was not a small one, and at times turned into a huge gathering which could not be otherwise accommodated in the court room of the Chief Justice of the High Court---Moreover, the judges of the High Court being recluse in their disposition were averse to such gatherings within the premises of the High Court---Constitutional petition was dismissed accordingly.

Petitioner in person.

Muhammad Asghar Khan Kundi, DAG for the Federation, Syed Sikandar Hayat Shah, AAG for the Provincial Gvoernment for Respondents.

P L D 2019 Peshawar 17

Before Waqar Ahmad Seth, C.J. and Lal Jan Khattak, J

ABDUR RASHID---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Iterior and 6 others---Respondents

Writ Petition No.536-P of 2018 and other connected petitions, decided on 18th October, 2018

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

----S. 97---Constitution of Pakistan, Arts. 184(3) & 199---Order/sentence passed by military court---Judicial review---Scope---Any order/sentence passed by any forum including military courts, was open for judicial review under Art.199 of the Constitution before the High Court and under Art.184(3) before the Supreme Court on grounds of jurisdiction, mala fide, malice in law, infringements of rights, violation of law, non-treating as per law and unfair trial.

District Bar Association, Rawalpindi and others v. Federation of Pakistan PLD 2015 SC 401 and Said Zaman Khan and others v. Federation of Pakistan through Secretary Ministry of Defence and others 2017 SCMR 1249 ref.

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

----S. 97---Constitution of Pakistan, Art. 199---Order/sentence passed by military court---Judicial review by the High Court---Scope---High Court, in its constitutional jurisdiction had the legal mandate to positively interfere with the decision of the military courts, on certain fundamental grounds i.e. if the case of the prosecution was based on no evidence, or insufficient evidence, or absence of jurisdiction, or malice of facts and law. Muhammad Ayaz v. Superintendent District Jail

Taimergara, District Lower Dir and 3 others PLD 2018 Pesh. 1 ref.

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

----S. 59---Constitution of Pakistan, Art. 10A---Civil offences---Attacking law enforcement agencies and armed forces, abetment in attacking armed forces and law enforcement agencies, causing death of a person, abetment in causing death and injury, possessing explosives, overawe section of the public---Appreciation of evidence---Belated confessional statements given after lengthy confinement in military internment centres---Cases of no evidence based on malice---Denial of right to engage private defence counsel---Several accused persons were tried in military courts on charges of being involved in terrorist activities---All of them allegedly confessed to their guilt and accordingly were awarded sentences of death by the military courts---Perusal of entire record in each and every case showed that none of the accused was ever, by name mentioned or nominated in any of the report, so formulated or registered by the prosecution---In majority of the cases there was no FIR or any authentic report of the Provincially and Federally Administered Tribal Areas authorities---Even in the secret reports of the prosecution/army/Intelligence no one had been named till the time, someone was apprehended/arrested and was shifted to an internment center, where they were framed in a particular charge and then after years of confinement, they were abruptly produced before the authorities for recording of confessional statements---Entire judicial confessional statements of accused were recorded in one and the same language and hand writing and in a specific tone/style---Confessional statements of accused persons were belatedly recorded ranging from six months to eight years---Judicial Magistrate had signed the confessional statements of the accused persons but nothing was on record to show that all the formalities for recording judicial confessional statements were complied with or not---In the document placed on each and every file under the heading 'secret', the date of apprehension of the accused persons was erased and only date of their interment was mentioned---Nothing was available on record to show as to where the accused were kept during the period between their arrest and internment---No eye-witness of the occurrences or for the presence of the accused at the spot were available---Injured persons were never produced in any of the cases---In the record of all the cases, which was in the shape of photocopies, names, designations and dates including signatures were erased, for reasons best known to the prosecution---All the military courts that sentenced the accused persons were functioning on one and the same pattern and not even a single accused had deviated or answered differently to the questions put to him---Questions put to the all accused by the courts were one and the same with exactly the same answers in all the cases---None of the accused had objected to the presiding officers of the military courts---First four witnesses called by the prosecution in all the cases, although different persons, used the same language, pattern and tone when recording their statements except the date and time of occurrence with the names of the casualties---Cross-examination and re-examination of said witnesses in all the cases was also very similar in nature---In their defense statements none of the accused intended to call any witness in defense---Statements made by the accused in their defence showed that they spoke what they were briefed in the internment center and what they had said in their confessional statements and whatever the witnesses had recorded before the courts---Witnesses to the character of the accused in almost all cases were asked exactly similar questions by the courts, and the replies were the same---Accused persons after remaining in the internment centers for years astonishingly remembered the exact dates and time precise to the minute---No independent advise was available to the accused during their confinement in internment centers---Private defense counsel at State expense, with very few years of experience at the Bar, was provided to the accused persons, but it was not clear how the counsel represented the accused, and in which language and at which place he used to advise them---Even the face/photo of said private counsel on the photocopy of his I.D card issued by the Bar Council had been erased---None of the accused opted for engaging a private counsel at their own expenses, which fact was all the more surprising as during present proceedings before the High Court, the same accused had engaged costly and senior counsels---Proceedings before the military courts were, thus, a complete prosecution show and accused were denied of their legal and fundamental right for engaging a private counsel at their expenses---Nothing on record showed that during trial the family or relatives of the accused persons, who frequently requested for a meeting in interment center, were informed or had the knowledge of the trial proceedings---Present cases were cases of no evidence, if the alleged confessional statements made without any independent advice after months/years of confinement with military and internment centers, were subtracted from the entire proceedings---Alleged confessional statement were manufactured, totally reflecting the intention to fill in the blanks of untraced cases---High Court set-aside convictions and sentence awarded to all the accused persons by the military courts and gave directions to set them free---Constitutional petitions were allowed accordingly. Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs Islamabad-Applicant/Referring Authority v. Abdul Wali Khan, M.N.A. Former President of Defunct National Awami Party PLD 1976 SC 57 and The State v. Asfandyar Wali and 2 others 1982 SCMR 321 ref.

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

----S. 164---Judicial confession, reliance upon---Scope---Illegality and irregularities in recording confessional statement---Benefit of such illegalities and irregularities was always given to the accused.

Muhammad Pervez and others v. The State and others 2007 SCMR 670; Haq Nawaz and another v. State 2000 SCMR 785; Mehmood Ahmed and 2 others v. State 1995 SCMR 127; Walayat and another v. State 1984 SCMR 530; Bashir Ahmed's case 1999 SCMR 114; Muhammad Fazal's case 2006 SCMR 143; Muhammad Mansha's case 2001 SCMR 199; Taria Hussain Shah's case 2003 SCMR 98; Manjeet Singh v. State PLD 2006 SC 30; Naqeebullah's case PLD 1978 SC 21; Khan Muhammad's case 1981 SCMR 597; Khuda Bakhsh's case 1969 SCMR 390; Suleman Shah's case PLD 1971 SC 751; Muhammad Shafique Ahmad's case PLD 1981 SC 472; Roshin's case PLD 1977 SC 557 and Shahbaz Khan Jakhrani's case 1984 SCMR 42 ref.

Naveed Akhtar for Petitioner.

Wiqar Ahmad AAG, Musarratullah DAG along with Lt. Col. Syed Kashif Munir and Maj. Rizwan Akram for Respondents.

P L D 2019 Peshawar 135

Before Waqar Ahmad Seth, C.J.

WAZIR AHMAD KHAN and 2 others---Appellants

Versus

REAYAT KHAN KHATTAK and 7 others---Respondents

R.F.A. No.196 of 2005, decided on 19th November, 2018.

Defamation Ordinance (LVI of 2002)---

----Ss. 3, 13 & 15---Khyber Pakhtunkhwa Government Servants (Conduct) Rules, 1987, R. 31---Defamation---Suit for damages by government servant---Maintainability---Government servant filing suit for defamation and damages without seeking permission from the government---Plaintiff was a government servant who filed suit against defendants under Defamation Ordinance, 2002 and sought recovery of compensation through damages---Trial Court decreed suit in favour of plaintiff---Validity---Provisions of R.31 of Khyber Pakhtunkhwa Government Servants (Conduct) Rules, 1987 were applicable to the parties before court---Decree-holder was civil servant/government servant and allegations levelled against him were directly connecting to his post/position which according to him disgraced him in society etc.---Government servant/civil servant could not under any circumstances had recourse to any court for vindication of his public acts and character etc., except with prior permission of government--- High Court set aside judgment and decrees passed by the Trial Court as no permission was sought by plaintiff before filing suit---Appeal was dismissed under circumstances.

Khalid Taqi Khan v. The State and 2 others 1982 PCr.LJ 1313 and Aslam Akbar Kazi and 3 others v. Gulzar Ahmad Channa and another 2003 PCr.LJ 1892 rel.

Muhammad Amin Khattak Lachi for Appellants.

Nasir Mehmood for Respondent No.1.

Adnan Khattak for Respondents Nos. 2 to 5.

Arshad Jamal Qureshi for Respondent No.6.

P L D 2019 Peshawar 141

Before Syed Muhammad Attique Shah, J

NASEEM KHAN---Petitioner

Versus

Sardar SHER BAHADUR KHAN---Respondent

Revision Petition No.114-A of 2018, decided on 29th October, 2018.

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

----O. XXXVII, R.3---Suit for recovery of money---Leave to defend the suit---Object---Purpose of special and separate procedure provided under O.XXXVII, C.P.C. is to ensure speedy and timely disposal of financial matters, which can be brought before a court on the basis of 'bill of exchange', 'promissory note', 'hundi' and 'cheque', etc.---Leave to appear and defend the suit has been made a condition precedent with an obvious object to curb the delaying tactics of a delinquent defendant, who has no plausible defence or a triable issue, and also to minimize the agonies of plaintiff.

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

----O. XXXVII, R.3---Suit for recovery of money---Leave to defend the suit---Court under O.XXXVII, R.3, C.P.C. has the discretion to grant leave to defend conditionally or unconditionally which depends upon the facts and circumstances of each case---Purpose of the said Rule is to empower the court to strike a balance between the two situations, i.e. where triable issues are raised/disclosed by the defendant, then unconditional leave to defend is to be granted or where defence is taken by the defendant with the sole object to gain time, then court may insist on some condition.

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

----O. XXXVII, R.3---Leave to appear and defend the suit---Conduct of defendant---Relevance---Grant of leave is not a matter of course or right, rather the defendant has to show/disclose a plausible defence, which may give rise to a triable issue and if he succeeds then leave to defend is to be granted unconditonally---Plausible defence which gives rise to triable issue must be cogent, fair, bona fide, reasonable and disclosed upon an affidavit---Court at the time of determining the factor of plausible defence, has to consider substantial question of law, jurisdiction of court, complex question of limitation, instrument not properly stamped or not attested by two witnesses or the same is issued without consideration or element of fraud requiring inquiry---Leave may be rfused and suit be decreed if plausible defence is not made out---Conduct of defendant is very much relevant in granting or refusing leave to appear and defend the suit.

Syed Shah Faisal for Petitioner.

Nemo for Respondent.

P L D 2019 Peshawar 145

Before Ikramullah Khan and Muhammad Ibrahim Khan, JJ

Syed AZIZ-UD-DIN KAKAKHEL---Petitionere

Versus

GOVERNOR KHYBER PAKHTUNKHWA through Principal Secretary and 8 others---Respondents

Writ Petition No.4627-P of 2018, decided on 13th March, 2019.

(a) Constitution of Pakistan---

----Arts. 140 & 193(2)---Advocate-General of Province, appointment of---Eligibility---Qualification for appointment of an Advocate-General would be construed in terms of Art.193 of the Constitution (which provided qualifications for appointment as a Judge of the High Court)---Person less than 45 years, shall not be competent to be appointed as an Advocate-General, however the retiring age (of 62 years) for a Judge of the High Court as mentioned in Art.195 of the Constitution, could not be applied to be a disqualification for the appointment of an Advocate-General---Since no retiring age had been prescribed in the Constitution for an Advocate-General, therefore, the (retiring) age (of 62 years) prescribed under Art.195 of the Constitution for a Judge of High Court could not be counted or deemed to be a disqualification for appointment of a person as Advocate-General.

Secretary Ministry of Law Parliamentary Affairs and Human Rights Government of Punjab v. Muhammad Ashraf Khan and others PLD 2011 SC 7 ref.

(b) Constitution of Pakistan---

----Art. 140---Advocate-General of Province, appointment of---No provision of the Constitution prescribed that Advocate-General of a Province shall be appointed by the Governor with consultation of Chief Justice of the concerned High Court.

(c) Constitution of Pakistan---

----Art. 140---Legal Practitioners and Bar Councils Act (XXXV of 1973), S. 5B---Advocate-General of Province---Removal simpliciter from office---Re-appointment to the same office of Advocate-General---Plea of petitioner that the incumbent Advocate-General/respondent was previously removed from the same office, vide a notification and as such, he could not be re-appointed as Advocate-General, in view of S.5B of the Legal Practitioners and Bar Council Act, 1973---Held, that the Notification whereby the respondent was earlier removed from office of Advocate-General itself reveled that his services were dispensed with in exercise of power exercised by the Provincial Governor under clause (3) of Art.140 of the Constitution and as such his removal could not be deemed to be or treated as a removal from service as a result of any misconduct or any other disciplinary action, which entailed stigma---Such removal was a removal simpliciter in terms of Art.140 of the Constitution---Advocate-General of Province held office during pleasure of the Provincial Governor and the Governor may at any time, de-notify or dispense with services of the Advocate-General without assigning any reasons and without any prior notice in such regard, therefore, such removal did not entail any stigma or disqualification, in order to re-appoint the same person on any public post, including the office of the Advocate-General---Furthermore the respondent was not issued any show-Cause notice by the respective Bar Council in order to cancel his licence on account of his mere removal from the office of Advocate-General.

(d) Khyber Pakhtunkhwa Appointment of Law Officers Act (XXXVII of 2014) ---

----S. 3 & Preamble---Khyber Pakhtunkhwa Appointment of Law Officers (Amendment) Act, 2018, Preamble---"Khyber Pakhtunkhwa Appointment of Law Officers Act, 2014" and "Khyber Pakhtunkhwa Appointment of Law Officers (Amendment) Act, 2018", vires of---No illegality or un-constitutionality was found in both the said enactments---High Court observed that although in terms of S.3 of the Khyber Pakhtunkhwa Appointment of Law Officers Act, 2014, the Provincial Government had been authorized to appoint Law Officers but it would not be improper or unreasonable that while appointing Law Officers, the Chief Justice of the High Court was meaningfully consulted, in order to select and appoint the best lawyers as Law officers, in larger public interest and to remove all sort of political consideration (if any) in the matter of their appointment---Constitutional petition was dismissed accordingly.

Petitioner (in person).

Waqar Ahmad Khan, A.A.G. for Respondents.

Barrister Waqar Ali Khan for Respondent No.11

P L D 2019 Peshawar 154

Before Ikramullah Khan and Ishtiaq Ibrahim, JJ

Syed ABDUL HAMEED---Petitioner

Versus

Mian IZHAR AHMAD and 2 others---Respondents

Writ Petition No.2508-P of 2018, decided on 16th January, 2019.

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

----Ss. 22-A & 22-B [as amended by Criminal Procedure (Third Amendment) Ordinance (CXXXI of 2002)]---Justice of Peace---Object, purpose and scope---Role of Justice of Peace in Foreign Jurisdictions---Justice of Peace, in Pakistan, was conferred additional role in respect of entertaining complaints and issuance of appropriate directions to police authorities concerned regarding registration of criminal cases, transfer of investigation of criminal cases and in respect of neglect, failure or excess committed by police authority in relation to its functions and duties---Rationale behind conferring of powers upon Justice of Peace under the Code was to enable aggrieved person to approach court of Justice of Peace for redressal of his grievances i.e., non-registration FIRs, excess of police, transfer of investigation to courts situated at district level or session or at particular sessions division---Main purpose of enactment was to create a forum at doorstep of people for their convenience and instead of invoking or approaching High Court in its extraordinary jurisdiction under Art.199 of the Constitution, public would have access to courts situated at their respective districts for redressal of their grievances provided under S.22-A(6) Cr.P.C.

Halsbury's Laws of England, Volume 29, published in 1979 by Butterworths, London UK; Encyclopedia Britannica and PLD 2005 Lah. 470 rel.

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

----S. 22-A(6)---Justice of Peace---Discretion---Scope---Word 'may' used in 22-A(6), Cr.P.C.---Connotation---Word "may" in S.22-A(6) Cr.P.C. manifested the intention of Legislature that Justice of Peace was still left with discretion to pass an order for registration of F.I.R. only in appropriate/certain cases.

Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581 rel.

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

----S. 22-A---Ex-officio Justice of Peace--- Proceedings, nature of--- Proceedings before Justice of Peace are quasi-judicial and are not executive, administrative or ministerial to deal with matters mechanically rather same are quasi-judicial powers in every case before him, demands discretion and judicial observation after hearing the parties.

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

----S. 22-A---Order passed by Ex-Officio Justice of Peace---Precondition---Justice of Peace before passing any order for registering of F.I.R. must put other party on notice against whom registration of F.I.R. is asked for.

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

----S. 22-A---Ex-Officio Justice of Peace, direction of---Registration of case---Mala fide and harassing public servant--- Petitioner was a police official who was aggrieved of registration of case against him on basis of directions issued by Ex-Officio Justice of Peace without giving him any notice to appear in proceedings---Validity---Complainant approached Justice of Peace directly and there was nothing on record that he had approached hierarchy of police for registration of F.I.R.---Grounds taken in application under S.22-A, Cr.P.C. were whimsical---Complainant was arrested on information of intelligence report of petitioner in theft case wherein incriminating recoveries were effected from him---Application under S.22-A, Cr.P.C. was filed by complainant in order to harass and humiliate public servant which was never intention of the Legislature---Element of mala fide was apparent from conduct of complainant---High Court set aside order in question passed by Justice of Peace as same was not in accordance with law---Constitutional petition was allowed accordingly.

Younas Ahmad Mohmand for Petitioner.

Syed Inayat Shah for Respondents.

Mujahid Ali Khan, Addl. A.G. for the State.

P L D 2019 Peshawar 165

Before Shakeel Ahmad, J

SHAHID HAMID KHAN and others---Appellants

Versus

PROJECT DIRECTOR NHA and another---Respondents

R.F.A. No.93-D of 2017, decided on 28th September, 2018.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 23---Reference to court---Enhancement of compensation---Market value---Determination of---Procedure---Referee Judge enhanced compensation amount from Rs. 29,975/- per kanal to Rs. 1,00,000/- per kanal of agricultural land and Rs. 5,00,000/- per kanal of commercial land---Validity---Referee Judge accepted the report of local commission and enhanced compensation amount from Rs. 29,975/- per kanal to Rs.1,00,000/- per kanal of agricultural land and Rs.5,00,000/- per kanal of commercial land but did not consider the rate of agricultural land as suggested by the local commission without any reason---Potential value of property was to be considered in addition to its market value while passing the award---Average sales of last one year was not conclusive proof for determination of market value of the land---Location and potentiality of the land was also to be considered while assessing its market value---Rate of agricultural land was enhanced by the High Court from Rs.1,00,000/- to Rs.3,00,000/- per kanal however the compensation of commercial land fixed in the impugned judgment of referee judge being based on cogent reasons was maintained---Appeal was allowed, in circumstances.

Province of Sindh v. Ramzan and others PLD 2004 SC 512; Province of Punjab v. Jamil Ahmad Malik 2000 SCMR 870; Province of Punjab through Collector, Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1662; Abdur Rauf Khan v. Land Acquisition Collector 1991 SCMR 2164; Gunj Khatoon v. Province of Sindh 1987 SCMR 2084; Fazalur Rahman v. Collector PLD 1988 SC 32; Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. 1993 SCMR 1700; Murad Khan and 13 others v. Land Acquisiiton Collector, Peshawar and another 1999 SCMR 1647 and Land Acquisition Collector, G.S.C., N.T.D.C., (WAPDA) Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28 rel.

S. Abid Hussain Bukhari for Appellants.

Akbar Ali Khan Barakzai for Respondents.

P L D 2019 Peshawar 171

Before Ikramullah Khan, J

FARID KHAN---Petitioner

Versus

FAZLA QADIR and 52 others---Respondents

Civil Revision No.350-P of 2008, decided on 13th February, 2019.

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

----S. 60---Limitation Act (IX of 1908), Ss. 20 (2) & 28 & Arts. 144, 147 & 148---Civil Procedure Code (V of 1908), O. I, R. 9---Suit for redemption of mortgaged property---Limitation---Prescription---Non-impleadment of co-sharers of suit property---Usufructuary mortgage---Effect---Contention of plaintiff was that he was owner in possession of suit property---Suit was dismissed for being time barred and on account of non-joinder of co-sharers of suit property---Validity---Defendants had never instituted any suit for purchase of suit property within the prescribed period of limitation---If any mortgagee failed to get decree in his favour before the target date then no decree for prescription could be passed in his favour and no suit could be filed after the target date---Defendants had not succeeded in getting decree on the basis of prescription before the target date---Defendants could not be allowed to claim ownership of the suit property on the ground that plaintiff had not redeemed the suit property within the prescribed period of sixty years---Receipt of rent or usufruct of mortgage land by mortgagee in possession was to be deemed to be acknowledgement of payment of debt---Receipt of produce on every harvest would be deemed as an acknowledgement giving fresh start to period of limitation---Limitation for filing a suit for redemption of mortgage property would start from the date of such acknowledgement---Provisions contained in S.28 of Limitation Act, 1908 had been declared to be repugnant to the Injunction of Islam---No lawful owner could be deprived of his right merely by efflux of time nor a person enjoying possession for a long time could be awarded with premium of ownership---No suit could be defeated due to non-impleadment of other co-sharers of suit property---Mortgagee would step into shoes of his mortgagor---Defendants were usufructuary mortgagee---Plaintiff on redemption of suit property would relegate to his previous position as his ancestral were in the said property---No other co-sharers would be affected by redemption of suit property---Co-sharers of suit property could not be treated either necessary or proper party in the present case---Impugned judgments and decrees passed by the Courts below were set aside---Suit was decreed subject to payment of mortgage amount---Revision was allowed, in circumstances.

Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063; Durranai and 35 others v. Hamidullah Khan and 15 others 2007 SCMR 480; Gul Badan and 19 others v. Rasheed-ur-Rehman and others 2016 MLD 1319 and Bilawar Khan v. Amir Sabar Rahman and others PLD 2013 Pesh. 38 rel.

Mazullah Barkandi for Petitioner.

Ahmad Ali Kan for Respondents.

P L D 2019 Peshawar 176

Before Muhammad Nasir Mahfooz, J

ZIA-UL-HAQ and others---Petitioners

Versus

ABDUL GHAFOOR---Respondent

C.R. No.158-B of 2018, decided on 12th February, 2019.

Specific Relief Act (I of 1877) ---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Community tube-well installed on the property of a private person by the Government---Hindrance in the supply of water to the community---Application for attachment of tube-well and appointment of receiver---Plaintiff moved application for attachment of community tube-well and appointment of receiver on the ground that same was owned by the community and not by the private defendant---Contention of private defendant was that tube-well in question was owned by him---Trial Court accepted the application for attachment of tube-well and appointment of receiver and private defendant was restrained from discontinuing the water supply to the plaintiff---Validity---High Court observed that government departments had consistently followed a trend of constructing schools and other community level development schemes on the properties owned by the private persons without following the procedure by acquiring the property---Such property should be considered to have been donated by the individual who then managed the affairs as an administrator without realizing the fact that community based project was a public interest project and same could not assume the status as his ownership---No proper infrastructure had been set up for managing the affairs of such community based projects by the Government---No person could be allowed to own such like community based projects merely on the ground that it was constructed or located on his personally owned property---Defendant, in the present case, could not claim the tube-well or its water which had to be utilized for the use of local villagers of the area concerned---Nazim of the Union Council was directed by the High Court to manage the affairs of water supply in a fair, transparent and just manner without caring for any political or other inclinations---Role of said Nazim should be not as a receiver but only to supervise the tube-well and its water supply to the community concerned---Any person aggrieved might submit a complaint in writing to the said Nazim who should address the same if based on proper and reasonable grounds---Revision was disposed of occordingly.

Abdul Jabbar Khattak and Irshadullah for Petitioners.

Asghar Ali Khan Daim Khel for Respondent.

P L D 2019 Peshawar 180

Before Ishtiaq Ibrahim, J

WAQAS KHAN---Petitioner

Versus

Dr. SEEMA HANIF---Respondent

Writ Petition No.770-P of 2019, decided on 25th March, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 177 & 179---Muslim Family Laws Ordinance (VIII of 1961), S.6---Rules under the Muslim Family Laws Ordinance, 1961, R. 21---Notification No. AO(LG)1(20)/81 dated 24-09-1992---Second marriage without permission of first wife---Second Nikah having been solemnized at Islamabad while first wife residing at Peshawar filed complaint at Peshawar---Judicial Magistrate dismissed the complaint due to lack of jurisdiction but Appellate Court remanded the matter with the direction to proceed in accordance with law---Validity---Subsequent Nikah had been solemnized at Islamabad but wife-complainant was residing at Peshawar with her parents when husband contracted second marriage---Courts both at Islamabad as well as Peshawar had jurisdiction to try the offence---Constitutional petition was dismissed, in circumstances.

Basharat Iqbal's case 1993 SCMR 1901; Nazabat's case 1971 PCr.LJ 148 and Khalil Ahmad's case 2000 YLR 2318 rel.

Fida Gul for Petitioner.

Malik Nasruminullah for Respondent.

P L D 2019 Peshawar 184

Before Abdul Shakoor and Shakeel Ahmad, JJ

MUHAMMAD GUL---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others---Respondents

Writ Petition No.558-B of 2018, decided on 4th June, 2018.

(a) Khyber Pakhtunkhwa Food Safety Authority Act (Khyber Pakhtunkhwa Act No. X of 2014)--

----S. 16(2)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Alternate remedy---Scope---Petitioners running business of bakery and sweets were imposed fine by the Food Authority---Validity---Petitioners were required to file appeal before Chief Secretary against the imposition of fine within fifteen days of communication of impugned order---High Court before exercising its extra ordinary jurisdiction must be satisfied with regard to non-availability or inefficacy of alternate remedy provided under the law---If High Court was satisfied that alternate remedy was expedient and effective then it should not exercise constitutional jurisdiction which was not meant to bypass such authority or render such hierarchy redundant and superfluous---Alternate remedy in the present case, being available petitioners should have availed alternate remedy before approaching High Court for redressal of their grievance---No reasonable cause to abandon and bypass the remedy provided under Khyber Pakhtunkhwa Food Safety Authority Act (Khyber Pakhtunkhwa Act, 2014) had been shown---No jurisdictional error or violation of any legal provision by the authorities had been pointed out---Petitioners could file appeal before competent authority as provided under S.16(2) of Khyber Pakhtunkhwa Food Safety Authority Act (Khyber Pakhtunkhwa Act, 2014)---Constitutional petition was dismissed in limine being not maintainable, in circumstance.

Khalid Mehmood v. Collector of Customs 1999 SCMR 1881; Syed Match Company Ltd. v. Authority under Payment of Wages Act 2003 SCMR 147; Habib Ahmad v. Income Tax Officer 1972 SCMR 556; Mehboob Ali v. Mubeena Khatun PLD 1997 Kar. 558 and PLD 1997 SC 102 rel.

(b) Constitution of Pakistan---

---Art. 199---Constitutional petition---Non-availing alternate remedy---Effect---Bar on filing constitutional petition without availing alternate remedy could be ignored in the cases where there was jurisdictional error, defect, lack of authority or if impugned action was based on mala fide or in flagrant disregard of law and principles of natural justice and alternate remedy was not efficacious.

Syed Asfandyar Ali Shah for Petitioner.

Nemo for Respondents.

P L D 2019 Peshawar 188

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

ZAMEEN and 2 others---Appellants

Versus

MATA KHAN and others---Respondnets

Criminal Appeals Nos. 216-M, 224-M and Criminal Revision No.76-M of 2017, decided on 11th February, 2019.

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

----Ss. 302, 324, 337-A(ii), 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing shajjah-i-mudihah, causing hashimah, common intention---Appreciation of evidence---Delay of about two hours and fifteen minutes in lodging the FIR---Effect---In the present case occurrence had taken place at 6.55 a.m; according to the medical report the deceased had reached the hospital at 7.45 a.m. and the injured arrived the hospital at 7.45 a.m., and no time was mentioned about arrival of third injured to hospital---Matter was reported at 9.10 a.m.---Place of occurrence was at a distance of half kilometre form the police station and the hospital where the injured were brought also fell within the same proximity, thus, there was a delay of two hours and fifteen minutes in lodging of the first report which appeared to be for the reason that the prosecution waited for the medical report of the doctor---Delay in the registration of the report provided ample opportunity to the complainant-party to deliberate and consult in the matter.

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

----Ss. 302, 324, 337-A(ii), 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing shajjah-i-mudihah, causing hashimah, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party attacked the complainant party with stick/danda blows, due to which three persons of complainant party sustained injuries---Later, father of complainant succumbed to the injuries---Motive for the offence was disclosed to be a dispute over irrigation of water---Complainant made addition/ improvement in his court statement that accused was having axe whereas co-accused persons were having sticks and accused inflicted axe blow to the deceased---Complainants further stated in his statement that at the time of said fight, his cousin snatched axe from the possession of accused which was provided to the Investigation Officer---Complainant, in cross-examination, admitted that his said cousin who was not produced before the court was resident of another village---Other witnesses and the injured were also related to complainant---Injured/witness stated in his cross-examination that the police recorded their statements in a room and when they reached at the hospital the police was present, however, they stated that the other Police Officials would come and record their statements---Third injured/witness admitted the presence of his other relatives at the spot, however, they did not participate in the quarrel---Said injured witness further stated in his cross-examination that when they reached at the hospital, they informed the police about the incident, however, he did not know as to whether his statement was recorded or not---Witness also stated that when they reached the hospital at 7.15 a.m., the doctor was not available and he was examined by the doctor at 8.15 a.m., who first examined the injured---Police was present during the said examination, however, the police from the police station did not reach there and he did not remember as to whether their statements were recorded at the hospital or where---Statements of the said witnesses, when put in juxta position with the site plan suggested that all of them were standing very close to each other and the complainant who was a young boy of 24/25 years had ample opportunity to get hold of the appellant/convict who at the relevant time was 54/55 years old to protect his father---Complainant did not receive any injury during the entire scuffle, which was unusual conduct on his part that someone hitting his father and he would make no effort to save him---Statement of complainant showed that his cousin was also present at the spot, who could snatch the said axe from the appellant/convict, however, neither they could catch-hold of the accused who were less in numbers nor they had made any effort to hit them with the axe which they had snatched from him---Unusual conduct was evident from initial report wherein complainant had said that the accused-appellant had hit his deceased father with some sharp edged weapon---Complainant did not specifically mention the axe despite the fact that the report was lodged at 9.10 a.m., whereas the occurrence took place at 6.55 a.m. and at the same time he knew that the said axe was taken by cousin of complainant from the accused-appellant but even then he did not mention all the said material facts in his initial report, which made his presence at the spot doubtful---When the testimony of the injured/witnesses against the accused-appellant for injury caused on the body of the deceased was disbelieved then the same set of evidence was also to be disbelieved against the co-accused-appellants, who were charged for injuring the witnesses---Prosecution had failed to prove its case against the accused persons, in circumstances---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court.

Muhammad Khan and another v. The State 1999 SCMR 1220 ref.

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

----Ss. 302, 324, 337-A(ii), 337-F(v) & 34---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, causing shajjah-i-mudihah, causing hashimah, common intention---Appreciation of evidence---Delay in recording the statements of witnesses by the police---Effect---In the present case, injured witnesses had admitted in their testimony that their statements were recorded on the same day but according to the record, their statements under S.161, Cr.P.C were recorded after four days of the incident---Said delayed recording of statements was not fatal to the prosecution case because at that time, no FIR was registered and the FIR was subsequently registered, which led to delay in recording of their statements.

(d) Criminal trial---

----Witness---Injured witness---Statement of injured witness---Reliance---Scope---No doubt that the presence of the injured witnesses could not be doubted at the place of incident, however, if said witnesses were otherwise untruthful then their testimony was to be excluded from consideration.

Amin Ali and another v. The State 2011 SCMR 323 ref.

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

----Ss. 302, 324, 337-A(ii), 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing shajjah-i-mudihah, causing hashimah,common intention---Appreciation of evidence---Medical evidence---Scope---Complainant-party had stated that deceased and other injured received injuries from sharp edged weapon, however, the said testimony was belied by the medical evidence---Medical evidence showed that the injured and the deceased had received injuries from a blunt weapon---In order to bring their version in line with the medical evidence, witnesses stated in their court statements that the accused inflicted axe blows by using the blunt side of the axe and not the sharp one---Said improvement was not appealable to a prudent mind being purely based on dishonesty.

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

----Ss. 302, 324, 337-A(ii), 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, causing shajjah-i-mudihah, causing hashimah, common intention---Appreciation of evidence---Recovery of weapon of offence---Reliance---Scope---In the present case, axe was recovered and was allegedly handed over to the Investigation Officer by cousin of complainant after three days of the occurrence---Said person (cousin) never appeared before the court in support of the same, therefore, the recovery of said axe not only appeared to be doubtful but was an afterthought attempt to strengthen the prosecution case---Such recovery was of no help to the prosecution case, in circumstances.

(g) Criminal trial---

----Motive---Scope---Motive was a double edged weapon which cuts both sides, therefore, when the ocular and circumstantial evidence being led by prosecution was not confidence inspiring then motive alone was inconsequential in respect of guilt of the accused.

(h) Criminal trial---

----Benefit of doubt---Principle---Even the benefit of a single doubt was to be drawn in favour of the accused not as a matter of favour or grace but as his/their right.

Sahibzada Assadullah for Appellants.

Muhammad Raziq Khan and Rahim Shah, Assistant Advocate-General for Respondents.

P L D 2019 Peshawar 199

Before Qaiser Rashid Khan, J

ERSHAAD KHAN---Petitioner

Versus

BILAL and others---Respondents

Criminal Revision Petition No.122-P of 2017, decided on 17th November, 2017.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 34---Juvenile Justice System Ordinance (XXII of 2000), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Age of accused, determination of---Application of the complainant for the examination of the accused through Medical Board/Radiologist for accurate determination of his age was dismissed---Validity---Accused and co-accused were charged under Ss.302, 324 & 34, P.P.C.---Accused was sent for trial---When the case was fixed for framing of the charge against the accused/respondent, he presented his Matric Certificate, according to which his age was below 18 years at the time of the commission of the offence---Trial Court, accepting the said certificate as an authentic document, issued directions to the prosecution to submit separate challan against the accused/respondent under the Juvenile Justice System Ordinance, 2000---Feeling aggrieved, the petitioner, being complainant of the case, moved an application before the Trial Court requesting for age determination of the accused/respondent through proper inquiry and medical board in the light of S.7 of the Juvenile Justice System Ordinance, 2000---Trial Court dismissed the application---Trial Court could resort to such exercise if there was no concrete proof or documentary evidence qua the juvenility of accused---In the present case, accused/respondent, presented his Matriculation Certificate in support of his claim of minority which Trial Court accepted as an authentic document---Moreso, petitioner had not challenged the validity or authenticity of said document either before the Trial Court in his application nor before the High Court through the present petition---Petitioner had simply averred that the age of the accused/respondent be determined through the Medical Board---When the said document had not been held by the competent forum as fraudulent or bogus, its authenticity could not be brushed aside on the bald assertion of the petitioner---Criminal revision petition, being without substance, was dismissed, in circumstances.

Muhammad Ishaq v. Muhammad Nadeem and another 2002 SCMR 440 and Intizar Hussain v. Hamza Amir and others 2017 SCMR 633 rel.

Shabbir Hussain Gigyani for Petitioner.

Syed Sikandar Hayat Shah, AAG for the State.

Sahibzada Riazatul Haq for Accused/Respondent.

P L D 2019 Peshawar 202

Before Ikramullah Khan, J

GUL ALAM KHAN and 10 others---Petitioners

Versus

NADIR KHAN and 15 others---Respondents

Civil Revision No.55 of 2013, decided on 21st February, 2019.

Specific Relief Act (I of 1877)---

----Ss. 42 & 8---Transfer of Property Act (IV of 1882), S. 54---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 126---Suit for declaration and possession---Sale mutation---Burden of proof---Official acts---Presumption---Contention of plaintiffs was that they were owners of suit property---Suit was dismissed concurrently---Validity---Burden of proof did lie on the shoulders of the person who desired any Court to give judgment as to any legal right or liability dependent on the existence of fact which he had asserted---Plaintiffs were bound to prove as to how defendants were in peaceful possession on the suit land which they had failed to discharge---Defendants had proved that they were bona fide vendees of suit property---Attestation of mutation in column of tenancy or ownership was official responsibility of revenue officials---If any person had permanently acquired ownership rights in a land then his name was to be entered in column of ownership through attestation of mutation---If a sale was incorporated and sale mutation was attested in column of tenancy then it would not affect the sale or rights of vendee in the said land---Acts performed by public authorities deserved due regard by the Court---Presumption of regularity was attached to the official acts---Sale effected in column of tenancy could not be given any other meaning except a permanent transfer of ownership in immovable property---No illegality or irregularity had been pointed out in the impugned judgments passed by the Courts below---Revision was dismissed, in circumstances.

Syed Tawakal Hussain and others v. Mst. Shamim Fatima Rizvi and others 1999 MLD 1 and Amir Shah v. Ziarat Gul 1998 SCMR 593 rel.

Mazullah Barkandi for Petitioners.

Jamal Nasir (Attorney) for Respondent No.1.

P L D 2019 Peshawar 208

Before Muhammad Nasir Mahfooz, J

AZAD KHAN and another---Petitioners

Versus

SENIOR MEMBER BOARD OF REVENUE KHYBER PAKHTUNKHWA, PESHAWAR and 3 others---Respondents

Writ Petition No.134-B of 2019, decided on 21st May, 2019.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)

----Ss. 172(2), 53 & 141---Civil Procedure Code (V of 1908), Ss. 9 & 5---Correction of entries in the revenue record---Dispute of title---Civil court, jurisdiction of---Scope---Petition for correction of entries in the Khasra Girdawari was moved which was accepted by the Deputy Commissioner/District Collector but same was dismissed by the Additional Commissioner, however, Board of Revenue restored the order of District Collector---Validity---Section 172 (2) of Khyber Pakhtunkhwa Land Revenue Act, 1967 expressly barred Civil Court from exercising jurisdiction with regard to the matters which were within the jurisdiction of Revenue Court---Such ouster of jurisdiction of a Civil Court was always limited to niceties of the powers defined in S.172 of Khyber Pakhtunkhwa Land Revenue Act, 1967---Domain of revenue forums exercising powers under Khyber Pakhtunkhwa Land Revenue Act, 1967 could not be equated powers of "a Court"---Revenue Courts were merely revenue authorities exercising administrative powers which could never circumvent the jurisdiction of a Civil Court while trying a suit of civil nature involving the question of title---Section 53 of the Khyber Pakhtunkhwa Land Revenue Act, 1967, allowed a person aggrieved of an entry in the record of rights or in a periodical record to institute a suit for declaration under the Specific Relief Act, 1877---Revenue Courts could conduct proceedings only with regard to rent or profit of land used for agricultural purposes---Revenue authorities performing functions under Khyber Pakhtunkhwa Land Revenue Act, 1967 did not fall within the definition of "Court"---Civil Court, trying a suit of civil nature where question of title was involved had got supervisory capacity to undo the effect of any act performed by the revenue authorities---Where question of title qua parties was in dispute in Civil Court then revenue forums could not assume jurisdiction in such like matters---Civil suit between the parties was pending before the Civil Court but revenue authorities despite the same proceeded with the matter---Impugned orders passed by Revenue authorities viz. Board of Revenue and District Collector could not be allowed to sustain which were declared illegal---Order of Additional Commissioner was maintained---Constitutional petition was allowed, in circumstances.

Ahmad Farooq Khattak for Petitioners.

M. Nishan Khattak for Respondent.

P L D 2019 Peshawar 211

Before Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ

ABDUL WAHAB and others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Home Secretary Civil Secretariat and others---Respondents

Writ Petitions Nos. 103-M, 105-M, 106-M, 107-M and 108-M of 2018, decided on 22nd October, 2018.

Constitution of Pakistan---

----Art. 45---President's power to grant pardon---Scope---Remissions in sentence---Notification for remissions providing that remissions not available to prisoners convicted of heinous crimes (murder, espionage, etc.)---Constitutionality---President had unfettered powers to grant remissions under Art.45 of the Constitution---Two notifications in question regarding the special remissions granted by the President were restricted in their application by the President himself and not any subordinate authority---When the notifications through which remissions were granted categorized the availability of remissions to a particular class of prisoners and withheld its application to another class, then the High Court could not add or subtract anything from the said notifications unless it was established that the same were either contrary to law or were discriminatory---Since there was an intelligible differentia and substantial distinction between two classes of convicted prisoners, as the President had excluded the applicability of remissions to those convicted prisoners who were involved in heinous crimes, therefore they were not at par with ordinary prisoners---Presidential remission under Art.45 of the Constitution would not be applicable to those prisoners who had been specifically excluded by the notifications granting remissions---Constitutional petitions were disposed of accordingly.

Haji Abdul Malik and others v. The State and others PLD 2006 SC 365; Shah Hussain v. The State PLD 2009 SC 460 and Nazar Hussain's case PLD 2010 SC 1021 ref.

Ghafoor Khan for Petitioners (in all petitions).

Rahim Shah, Asstt: A.G. for Respondents (in all petitions).

P L D 2019 Peshawar 218

Before Syed Arshad Ali, J

AJMAL KHAN and another---Petitioners

Versus

Mst. FALEK NEGAR BIBI and 2 others---Respondents

Writ Petition No.483-M of 2017, (with Interim Relief) decded on 31st January, 2019.

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

----S. 5, Sched---Dissolution of Muslim Marriages Act (VIII of 1939), S.2---Suit for dissolution of marriage and recovery of dower---Rukhsati having not been effected---Effect---Family Court conditionally dissolved the marriage and passed decree for half dower in favour of wife---Validity---Wife would be entitled to whole dower upon consummation of marriage or death of the husband and valid retirement---Wife could not ask for her dower before rukhsati---When husband had divorced his wife before consummation, he had to pay half of the dower but said principle was not applicable when before consummation wife was asking for dower---Wife before consummation was not entitled to ask for dissolution of marriage on the grounds provided in S.2 of Dissolution of Muslim Marriages Act, 1939---Wife was not entitled for dower before rukhsati and valid retirement---No ground existed for the wife to ask for dissolution of marriage in circumstances---Impugned judgments passed by the Courts below were against law---When parties were not ready to settle and live their lives in accordance with Islam, their marriage was dissolved on the basis of khula---Impugned judgments and decrees passed by the Courts below were set aside---Constitutional petition was allowed, in circumstances.

Majmoon Qawaneen-e-Islam by Justice (Rtd.) Dr. Tanzeel-ur-Rehman, Kitab-ul-Fiqh Ala-al-Modahibe-al-Arba's by Abdur Rahman Aljazairi and Holy Quran Ayat No.237 of Sura-e-Baqara rel.

(b) Islamic law---

----'Dower'---Meaning.

Dower (Mahr) is something which has some value in the terms of money and the wife is entitled to receive it as a gift from her husband for entering into a contract of marriage.

Mahr is either a sum of money or other form of property to which the wife becomes entitled by marriage. It is not consideration proceedings from the husband for the contract of marriatge but it is an obligation imposed by the law on the husband as a mark of respect for the wife as evident from the fact that non-specificaiton of dower at the time of marriage does not affect the validity of marriage.

Mohammedan Law authored by D.F.Mulla and Hidaya Famous Book of Islamic Fiqah Translated by Charles Hamilton rel.

Aurangzeb for Petitioners.

Muambar Khan and Shah Wazir for Respondents.

P L D 2019 Peshawar 227

Before Qaiser Rashid Khan, J

ASLAM KHAN---Petitiioner

Versus

FAWAD AKHTAR and 2 others---Respondents

Writ Petition No.2051-P of 2019, decided on 13th May, 2019.

Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment of tenant---Expiry of rent agreement---"Acceptance by silence", doctrine of---Applicability---Eviction petition was accepted on the ground of expiry of rent agreement---Validity---Relationship of landlord and tenant existed between the parties---Tenant was occupying the demised premises on the strength of rent agreement---Said agreement was for one year but tenant after its expiry was continuously paying monthly rent without any objection from the landlord---Landlord was satisfied from the rent so paid to him---Doctrine of "acceptance by silence" was applicable in the present case---Tenant had not defaulted in the payment of rent---Landlord had acceptd the increased rent from the tenant for more than four years and he could not retract from such position---Impugned orders passed by the Courts below were set aside and eviction petition was dismissed---Constitutional petition was allowd, in circumstances.

PLD 1975 SC 193 and 2011 CLC 1498 ref.

Mehar Gul for Petitioner.

Muhammad Zafar Tahirkheli for Respondent.

P L D 2019 Peshawar 230

Before Muhammad Nasir Mahfooz, J

Mst. RIFAT RANA---Petitioner

Versus

RASHID MAHMOOD and 4 others---Respondents

Criminal Miscellaneous Quashment Petition No. 17-B of 2019, decided on 22nd April, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 145 & 561-A---Import, scope and application of S.145, Cr.P.C.---Quashing of proceedings---Scope---Procedure where dispute concerning land, etc is likely to cause breach of peace---Restoration of possession---Breach of peace---Pre-requisite---Scope---Petitioner submitted application regarding her forcible dispossession by respondents from the house to the District Police Officer, who after inquiry submitted complaint under S.145, Cr.P.C. to the Magistrate---Respondents asserted that complaint was not maintainable while the Magistrate held that the complaint was maintainable as there was apprehension of breach of peace---Revisional court vide impugned order held that the complaint under S.145, Cr.P.C. was not maintainable---Validity---Proceedings under S.145, Cr.P.C. were meant to avoid breach of peace and in no way were meant to decide a title dispute or to restore possession---Section 145, Cr.P.C. laid down that complaint was to be presented with proof of dispossession within two months of its filing, but said application submitted to District Police Officer did not reveal any specific date or period of dispossession---Petitioner and respondents were siblings and no doubt the former might have claimed share in disputed property, but the same could not be adjudicated upon under S. 145, Cr.P.C. that had got a very limited scope and infringement of private right or dispossession of any of the parties was per se not enough to attract S.145, Cr.P.C.---Section 145, Cr.P.C. was meant to meet an emergent situation posing a threat to peace and could not be used for settling rights of the parties or their claim to title---Import of subsection (5) of S.145, Cr.P.C. was that where there was no breach of peace then the Magistrate had no jurisdiction to make order regarding subject of dispute---Revisional court had rightly appreciated the facts and circumstances of the case and arrived at right conclusion, which order was not open to interference under S. 561-A, Cr.P.C.---Petition, being devoid of merits, was dismissed.

PLD 1985 SC 294 ref.

P L D 2019 Balochistan 1

Before Abdullah Baloch, J

THE BASE COMMANDER PAKISTAN AIR FORCE, P.A.F. BASE, QUETTA

and others---Petitioners

versus

PROVINCIAL GOVERNMENT through Member Board of Revenue Balochistan

and 4 others---Respondents

Civil Revisions Nos. 33 and 37 of 2016, decided on 25th September, 2018.

Civil Procedure Code (V of 1908)---

----S. 96---Constitution of Pakistan, Art. 10-A---Suit for declaration and permanent injunction---Appeal was accepted without service of respondent---Effect---Audi alteram partem, principle of---Applicability---Notice issued to the respondent was received back unserved and he was proceeded ex-parte and appeal was allowed---Validity---Only one notice was issued for service of respondent in the appeal---Service of respondent was not properly effected by the Appellate Court---Appellate Court did not repeat the process and adopt the other available mode of service to get effected the service of notice upon the respondent---Respondent was condemned unheard in the appeal by the Appellate Court---No one was to be condemned unheard---Impugned judgment and decree passed by the Appellate Court were set aside---Matter was remanded to the Appellate Court with the direction to provide fair opportunity of hearing to the parties and thereafter decide the appeal on its own merits in accordance with law---Revision was allowed, in circumstances.

Lal Guradia Group of Companies through Assistant Manager Terminal v. Abdul Nafey 2015 CLC 620 rel.

Zahid Malik for Petiitioners (in C.R.No.33 of 2016).

Ahmed Ali Baloch, Additional A.G. (in C.R.No.37 of 2016)

Shams-ud-Din Achakzai for Respondent No.6

P L D 2019 Balochistan 9

Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ

MUHAMMAD HASEEN KHAN AFRIDI---Petiitoner

versus

NATIONAL ACCOUNTABILITY BUREAU through Director General and 2 others---Respondents

Constitutional Petition No.106 of 2018, decided on 24th April, 2018.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9 (a) (b) & 16(a)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Delay in conclusion of trial---Petitioner was in custody for about 2-½ years without conclusion of trial---Validity---Petitioner was behind bars and despite lapse of 2-½ years, Trial Court out of 30 witnesses had only examined 17 witnesses---No possibility was in sight that remaining witnesses would be examined and case would be concluded in near future---Speedy and fair trial was Fundamental Right of accused as guaranteed by the Constitution---Policy of criminal law was to bring accused to justice expeditiously within shortest possible time and to decide fate of case of petitioner as early as possible and if he was involved in crime, punishment be provided to him and if he was innocent, he be set at liberty---Irrespective of heinousness of crime, accused could not be incarcerated behind bars for indefinite period as delay in concluding trial amounted to abuse of process of law---Bail was allowed accordingly.

Riasat Ali v. Ghulam Muhammad and The State PLD 1968 SC 353 and Shoukat Ali v. Ghulam Abbas and others 1998 SCMR 228 ref.

Aminullah Kakar for Petitioner.

Riaz Akhtar Tareen, Special Prosecutor, NAB for Respondent/State.

P L D 2019 Balochistan 12

Before Jamal Khan Mandokhail, and Zaheer-ud-Din Kakar, JJ

MOMIN KHAN---Petitioner

versus

SPECIAL JUDGE ANTI TERRORISM COURT-II, QUETTA and another---Respondents

Constitutional Petition No.961 of 2017, decided on 16th July, 2018.

Criminal Procedure Code (V of 1898)---

----S. 494---Pakistan Arms Ordinance (XX of 1965), Ss. 13-B, 13-D---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Anti Terrorism Act (XXVII of 1997), S. 7---Possession of unlicensed arms, attempt to cause explosion, making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Prosecution case was that on spy information police recovered a huge quantity of arms and ammunitions from the house of accused---Application for withdrawal of prosecution was dismissed---Order of dismissal of such application was challenged by accused---Validity---Section 494 Cr.P.C. prescribed that application for withdrawal of prosecution could be made by the Public Prosecutor with the consent of the Trial Court, before the pronouncement of judgment---Said provision of law suggested that it was within the judicial domain of the Trial Court to refuse or accede to the withdrawal of prosecution of a person in any case---Application for withdrawal of prosecutiion was filed by the Prosecutor, as he alone was competent to do so as provided by S.494 Cr.P.C.---After dismissal of the said application, the Prosecutor or the government did not challenge dismissal order---Accused had no locus standi to challange such order nor could request for withdrawal of the case thus, the constitutional petition was incompetent---Record showed that no reason had been given by the Provincial Government for withdrawal of the case---Trial Court had passed a well-reasoned order based on the comments/proposal of the State functionaries, which did not call for any interference---Constitutional petition was dismissed, in circumstances.

The State v. Navid Asif and others PLD 1991 Lah. 268; Mir Hassan v. Tariq Saeed PLD 1997 SC 451; Ch. Muhammad Yaqoob and others v. The State 1992 SCMR 1983; Muhammad Saleem v. Mukhtar Khan and another 1984 PCr.LJ 390; Saad Shibli v. The State and another PLD 1981 SC 617 and Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate High Court PLD 1992 SC 72 rel.

Naseebullah Tareen for Petitioner.

Ameer Hamza Mangal, Deputy Prosecutor General for Respondents.

P L D 2019 Balochistan 16

Before Abdullah Baloch and Naeem Akhtar Afghan, JJ

TALIB HUSSAIN and aother---Appellants

versus

The STATE---Respondent

Criminal Appeal No.150 and Constitutional Petition No.458 of 2015, decided on 23rd July, 2018.

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

----Ss. 302(b) & 324---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, act of terrorism---Appreciation of evidence---Prosecution had successfully established the charge against accused persons through cogent, consistent, confidence inspiring, ocular, medical evidence as well as recovery of empties from the scene of occurrence; arrest of accused persons red-handed being armed with pistol and also the Forensic Science Laboratory report, received in affirmative that the pistols were in working condition---Defence had not disputed the unnatural death of deceased, but simply pleaded false implication of accused persons---Star eye-witness, who accompanied the deceased in the vehicle being his father, had correctly stated date, time and place of occurrence and his arrival along with his son at the place of incident---Said witness was cross-examined at sufficient length, but nothing advantageous had come on record in favour of the defence---Accused persons were arrested after occurrence red-handed along with the crime weapon---Prosecution witnesses were fully in line with each other---Statements of witnesses from all angles, were found trustworthy and reliable---Young son of a prosecution witness was murdered before his eyes, it was not acceptable to prudence, that he would let off actual and real culprits and raise his finger upon innocent person---Incidence having taken place during the daylight, no chance of mistaken identity existed---Testimony of prosecution witness could not be disbelieved solely on the ground that he was relative of the complainant; court had to see the truthfulness and credibility of such witness---Not believeable that complainant, who was a high ranking officer in the Police, would depose falsely against accused persons---Both the culprits had failed to bring on record any ill-will or ulterior motive for their false implication by said officer---Testimony of Police Officials was entirely independent and truthful, which was sufficient to establish charge against accused persons---Both accused persons having been seen before the conducting of identification parade in the case was immaterial---Appeal was dismissed.

(b) Criminal trial---

----Evidence---Testimony of Police Officials---Police Officials were as good as private witnesses and their testimony could not be discarded merely for the reason that they were Police Officials, unless the defence would succeed in giving dent to the statements of prosecution witnesses and prove their mala fide or ill-will against accused.

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

----Art. 22---Identification parade---No hard and fast rules were governing the issue of identification parade, same would depend upon the facts and circumstances of each case.

(d) Criminal trial---

----Motive behind the occurrence---Motive behind every case was not the requirement of law.

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

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, act of terrorism---Petition for enhancement of sentence---Father of deceased had filed constitutional petition for enhancement of sentence of accused persons---Manner in which the occurrence had taken place, did not disclose premeditated circumstances---Arrival of deceased and his father at the place of occurrence was by chance---Attack upon them by accused persons, seemed to be without pre-mediation---Such situation gave rise to the mitigating circumstances, due to which capital punishment of death could not be awarded---Facts and circumstances of the case suggested that accused persons, should have been punished for life imprisonment with fine---Accused persons, were also held liable to pay fine of Rs.300,000 each and in default thereof to further suffer six months' S.I. with benefit of S.382-B, Cr.P.C.---Appeal/ constitutional petition were dismissed accordingly.

Syed Ayaz Zahoor for Appellants.

Abdul Latif Kakar, Additional P.G. for the State.

Tahir Ali Baloch for the Complainant/Petitioner.

P L D 2019 Balochistan 27

Before Mrs. Syeda Tahira Safdar, C.J. and Muhammad Ejaz Swati, J

INDEPENDENT MEDIA CORPORATION (PVT.) LTD. through Muhammad Azhar and 4 others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and Secretary Law, Quetta and 9 ohters---Respondents

Constitutional Petition No.229 of 2017, decided on 3rd December, 2018.

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

----S. 29(6)---Criminal Procedure Code (V of 1898), S.154---Constitutional petition for quashing of FIR---Media group---Airing anti state programme---First Informataion Report registered against a media group, its owners, and hosts of a television programme ("the petitioners")---Plea of petitioners that the issue of airing the television programme regarding which FIR was lodged had already been dealt with by Pakistan Electronic Media Regulatory Authority ("Authority") by imposing a fine on the media group, therefore, no further proceedings in form of an FIR could be lodged against them---Validity---Such contention was not supported by any provision of law---Decision of the Authority to impose a fine on the media group on recommendations of Council for Complaints in exercise of powers under S.29(6) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 was for violation of terms and conditions of licence---No criminal liability of the petitioners was dealt with by the Authority, thus, the FIR could not be quashed---Constitutional petition was disposed of accordingly.

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

----Ss. 154 & 161---Constitution of Pakistan, Arts. 4, 9, 10A & 13---Quashing of multiple FIRs---Multiple FIRs registered against the same accused persons for the same incident containing similar allegations---Question as to which of FIRs would hold the field---Eight different FIRs arising from the same act and containing the same facts and allegations were registered against a media group, its owners, and hosts of a television programme ("the petitioners") for airing a programme with an anti-state theme---First Information Report which was filed prior in time would hold the field and the subsequent reports for the same incident may be treated as statements recorded under S.161 Cr.P.C, as a piece of evidence in support of the initial report---Co-existence of the remaining FIRs not only amounted to abuse of process of law, but was also contrary to the spirit of Arts.4, 9, 10A & 13 of the Constitution---High Court directed that petitioners had to face trial only in that FIR which was lodged prior in time and the remaining FIRs were to be quashed---Constitutional petition was disposed of accordingly.

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

----Ss. 154 & 161---Multiple FIRs for the same act/incident---For one incident there should be only one FIR---During investigation, after the registration of the first FIR, the investigating officer was duty bound to record the different version of same incident brought into his notice by different persons, but not as a report, rather as statements recorded under S.161 Cr.P.C. in the same case---No separate FIR had to he recorded when any different version of the same incident was brought into the notice of the investigating officer.

Mst. Sughra Bibi v. The State: Human Rights Case No.10842-P of 2018 ref.

Bahazad Haider for Petitioners.

Rauf Atta, Advocate General, Zahoor Ahmed Baloch Assistant Advocate General and Ms. Noor Jehan Kahoor, Additional Prosecutor General for Respondents.

P L D 2019 Balochistan 34

Before Zaheer-ud-Din Kakar and Naeem Akhtar Afghan, JJ

SHAH NAZAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.133 of 2018, decided on 4th March, 2019.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Prosecution case was that 80 Kilograms of charas was recovered from the secret cavities of the vehicle---Samples were separated for analysis and sealed into parcels---Record showed that accused-appellant was driving the vehicle at the time of his arrest---Co-accused-appellant was sitting with him in the vehicle---Police party recovered total 80-kilogram charas from secret cavities of the vehicle on their disclosure and pointation---Samples were prepared and on the next day, were sent to the narcotics testing laboratory for analysis---Government Analyst examined the material and found that the same were"hashish pukhta"---Knowledge and awareness of narcotic would be attributed to the accused-appellant as he was driver of the vehicle---Co-accused-appellant could not be absolved from his responsibility as he was sitting with the driver and he could not explain as to why he was sitting with the driver in a private vehicle---Both the appellants were, therefore, responsible for transportation of huge quantity of charas kept in the secret cavities of the vehicle, which undeniably remained in possession and control of both the appellants---Inspite of lengthy cross-examination of the witnesses, nothing beneficial could be elicited of any help to the case of the accused-appellants---Person on driving seat of the vehicle would be held responsible for transportation of narcotic---Positive chemical report produced in evidence proved that substance recovered from the secret cavities of the vehicle of the accused was charas---Prosecution had discharged its initial onus while proving that substance recovered from secret cavities of the vehicle was charas whereas appellants had failed to discharge its burden in terms of S. 29(d) of the Act---No proof of enmity with the complainant and the prosecution witnesses had been brought on record, thus, in absence thereof, the competence of prosecution witnesses being officials was rightly believed---Witnesses were not at all questioned about any previous ill-will or animus with the accused-appellants whereby they could have been falsely nabbed and charged for the possession of 80-kilogram charas---Prosecution had succeeded in proving the charge against the accused-appellants beyond reasonable doubt, in circumstances---Appeal was dismissed accordingly.

Kashif Amir v. State PLD 2010 SC 1052 rel.

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

----S. 29 ----Presumption of possession of narcotic substance---Burden of proof ---Scope---Once the prosecution had apparently established its case then under S.29 of the Act, burden would shift upon the accused to prove contrary to the plea of prosecution.

(c) Criminal trial---

----Evidence---Testimony of Police Officials---Scope---Mere fact that prosecution witnesses were Police Officials, by itself could not be considered a ground to discard their statements---Police Officials were as good witnesses as private persons of the society.

Riaz Ahmed alias Raju v. The State 2004 SCMR 988 rel.

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

----Art. 40---Admissibility of information conveyed by accused---Discovery of any fact on the information of the accused in custody of police was admissible under Art.40 of Qanun-e-Shahadat, 1984.

Jamil Lodeen and Naseer Ahmed Bazai for Appellants.

Shams-ud-Din Achakzai, Special Prosecutor ANF for the State.

P L D 2019 Balochistan 40

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

MUHAMMAD NASEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.249 of 2018, decided on 15th April, 2019.

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

----S. 6---"Act of terrorism"---Ascertainment---Whether an offence fell within the ambit of S. 6 of Anti-Terrorism Act, 1997, it was essential to have a glance over the allegations made in the FIR, material collected during investigation and surrounding circumstances as well as the ingredients of "terrorism" as provided under Ss. 6 & 7 of the Act, 1997. [p. 43] A

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

----Ss. 302, 324 & 34---Anti Terrorism Act (XXVII of 1997), Ss.7 & 23---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Petition for transfer of case from ordinary criminal court to Anti-Terrorism Court was dismissed; same was allowed in appeal---Prosecution case was that the accused along with co-accused persons made indiscriminate firing upon the brothers and nephew of complainant with pistol, due to which, brother and nephew of complainant died---Motive behind the occurrence was stated to be a previous enmity---Record showed that at the time of passing the order for transfer of case to the Anti-Terrorism Court, only the FIR was available before the Court and that too at pre-trial stage---After going through the entire evidence recorded by the Anti-Terrorism Court and surrounding circumstances of the case collected during investigation reflected that the case did not fall within the purview of S.6 of the Anti-Terrorism Act, 1997---Contents of FIR and the statements recorded by the witnesses showed that the said offence was committed due to personal vendetta or enmity and relevant elements of terrorism were missing in the case---Circumstances suggested that accused persons were dragged into the fold of terrorism or terror activities---Counsel for the parties had contended that case of the accused was one of the personal vendetta and previous enmity, which did not fall within the purview of "terrorism", which was to be tried by an ordinary court---Appeal was partly allowed and the case was remanded to the ordinary criminal court for de-novo trial in accordance with law.

Province of Punjab v. Muhammad Rafiq and others PLD 2018 SC 178 rel.

Naseebullah Tareen for Appellant.

Abdul Mateen, Deputy Prosecutor General for the State.

Ajmal Khan Kasi for the Complainant.

P L D 2019 Balochistan 47

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

NASEER KHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Apeal No.(s)1 of 2018, decided on 13th May, 2019.

Penal Code (XLV of 1860)---

----Ss. 311 & 302---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd---Ta'zir after waiver or compounding of right of qisas in qatl-i-amd---Fasad-fil-Arz---Scope---Trial Court having allowed the legal heirs to compound the offence, convicted appellant under S. 311, P.P.C.---Validity---Appellant was habitual and professional criminal and remained fugitive from law and during his absconsion he had committed murder and accordingly another first information report (FIR) was registered against him---Appellant had also committed robbery and yet another FIR was registered---Appellant had further committed the dual murders of his father and brother, and had also attempted to murder his brother and caused him serious bullet injuries for which another FIR was lodged---Behaviour and conduct of appellant in the trial court remained very harsh---Insertion of expression "Fasad-fil-Arz" in S.311, P.P.C. was the requirement of socio-cultural setup and to maintain law and order and to save the civil society from deterioration---Where a person within a decade and for no sufficient reason resorted to took lives of four innocent persons, which included his father and brother, he should not go scot-free just because the legal heirs had waived and compounded the offence---Appellant was "potential danger" to the community, hence he was rightly declared so by the Trial Court---Appeal was dismissed.

Muhammad Ramzan alias Ramzani v. The State 1996 SCMR 906 rel.

Ellahi Bakhsh Lehri for Appellant.

Jamil Akhtar, A.P.G. for the State.

P L D 2019 Balochistan 51

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

CHAIRMAN, NAB through Prosecutor General Accountability NAB---Appellant

Versus

SARFARAZ HUSSAIN MUGHAL and 2 others---Respondents

Criminal (Ehtesab) Appeal No.2 of 2019, decided on 28th June, 2019.

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

----S. 9(a)(vi)---Appeal against acquittal---Appreciation of evidence---Resiled witness, evidence of---Scope---Filing of complaint---Proof---National Accountability Bureau (NAB) authorities were aggrieved of acquittal of accused persons from charge of misuse of authority and illegal gratification on purchase of government wheat and gunny sacks (Bardana)---Validity---National Accountability Bureau authorities conducted investigation on complaint of prosecution witness but when he appeared before court he did not support the case of prosecution---Prosecution witness categorically stated that he neither made any statement before National Accountability Bureau Authority nor he had any knowledge of accused persons---Co-accused was co-complainant of joint complaint filed against accused persons but subsequently co-accused was arrayed as accused rather than prosecution witness---Co-accused in his statement recorded under S. 342 Cr.P.C. in reply to question denied to have made any complaint to NAB authorities---Neither any other witness was associated nor produced in court, who could depose that they paid any commission/bribe to accused persons in connection with purchase and sale of wheat and provision of gunny sacks (Bardana)---Prosecution had not been able to bring sufficient evidence on record, which could indicate that accused persons acquired ill-gotten money from wheat-growers and farmers of concerned area regarding sale and purchase of government wheat and distribution of gunny sacks (Bardana)---Accused in defence produced with documentary evidence that he sold out a plot to co-accused thus justified amount lying in his Bank account---High Court declined to interfere in judgment passed by Trial Court---Appeal was dismissed in circumstances.

Pir Mazharul Haq v. State PLD 2005 SC 63 rel.

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

----S. 417---Appeal against acquittal---Principle---Presumption of innocence lies in favour of accused at trial stage and when a court of competent jurisdiction passes an order of acquittal, presumption becomes double and to set aside the same, it requires unimpeachable evidence---Once a judgment of acquittal is passed by a competent court of jurisdiction after proper and correct appraisal of evidence, same cannot be interfered with merely on ground that on re-analysis of evidence, another view could be taken.

Jaffar Raza, Special Prosecutor NAB for Appellant

P L D 2019 Balochistan 59

Before Abdullah Baloch, J

ABDUL MANAN---Petitioner

Versus

ABDUL HADI and 7 others---Respondents

Civil Revision No.362 of 2018, decided on 28th May, 2019.

Civil Procedure Code (V of 1908)---

----O. VI, R. 17 & O. I, R. 10---Specific Relief Act (I of 1877), Ss. 42, 54 & 39---Suit for declaration, permanent injunction and cancellation of instruments---Amendment in the pleadings---Petition for impleadment of a party was filed by the interveners which was accepted---Plaintiff moved application for amendment of plaint but same was dismissed---Contention of plaintiff was that interveners had entered into an agreement of sale with regard to suit property and they had claimed possession of said property which came in his knowledge during pendency of present suit---Validity---Plaintiff at the time of filing of present suit was not in knowledge of "new facts" which were brought on record by the interveners---Plaintiff had right to amend the plaint subject to the conditions that proposed amendment did not change the character and complexion of suit and such amendment was necessary for determining the real controversy between the parties---Any defect in the form of a suit was not to culminate in its dismissal---Court was to consider the request of amendment in a broader perspective and remain liberal and flexible while exercising jurisdiction under O.VI, R.17, C.P.C.---Court had suo motu jurisdiction to grant permission for amendment in the pleadings without any formal written request of a party---High Court observed that if proposed amendments were not allowed then purpose of present suit would frustrate and multiple litigations would start between the parties---Proposed amendment did not cause any prejudice to either of the parties---Impugned order passed by the Trial Court was result of mis-reading of record and misconception of law which was not sustainable---Order passed by the Trial Court was set aside and plaintiff was allowed to amend the suit---Revision was allowed, accordingly.

Javed Iqbal v. Abdul Aziz and another PLD 2006 SC 66 rel

Abdul Khair Achakzai for Petitioner.

Muhammad Aslam Jamali, Assistant Advocate General for the State.

P L D 2019 Balochistan 63

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

RASOOL BAKHSH---Petitioner

Versus

The STATE---Respondent

Criminal Ehtesab Appeal No.17 of 2019, decided on 28th June, 2019.

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

----Ss. 87 & 88---Issuance of process---Proclaimed offender, declaration of---Procedure---Accused as aggrieved of order passed by Trial Court declaring him proclaimed offender---Plea raised by accused was that he was not served process---Validity---Trial court was bound to repeat warrants of arrest for some other date but needful was not done and only an attempt to serve notices upon accused was not enough---Important ingredients of Ss. 87 & 88 Cr.P.C. were not fulfilled by Trial Court for serving warrants---Warrants of accused were not affixed on some conspicuous place, i.e., house or home where accused resided---Trial Court did not receive any report from concerned law enforcement agency to know whether warrants were served upon accused or not---Such procedure was contrary to provisions of S.87 Cr.P.C. in circumstances.

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

----S.31-A---Abscondance to avoid service of warrants---Prerequisites---Prosecution is required to prove firstly, that accused is absconder; secondly, that court or any Authority or Officer has issued process under National Accountability Ordinance, 1999; thirdly, that accused has absconded with intention to avoid service of such process; and fourthly, manner in which he evaded or avoided service on himself or concealed himself with intention to screen out from proceedings or punishment under National Accountability Ordinance, 1999.

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

----Ss. 31-A & 32---Appeal---Limitation---Conviction in absentia--- Accused was convicted under S.31-A of National Accountability Ordinance, 1999 in his absence when he was declared proclaimed offender---Plea raised by authorities was that appeal was time barred---Validity---No opportunity was afforded to accused even otherwise, no evidence was called for by Trial Court and he was convicted only on basis of unserved process which was in sheer violation of S.31-A of National Accountability Ordinance, 1999---Judgment convicting accused was passed in absentia and he had no knowledge of passing of conviction against him therefore, limitation would run from date of gaining knowledge by accused---Moment the accused was arrested and he came to know about his conviction in absentia, he challenged his conviction---High Court set aside conviction and sentence awarded by Trial Court as prosecution had failed to prove that accused deliberately or intentionally evaded or avoided to appear before Trial Court to face trial---Appeal was allowed in circumstances.

Iqbal Ahmed Turabi v. State PLD 2004 SC 830 rel.

Syed Ayaz Zahoor for Petitioner.

Jaffar Raza, Special Prosecutor NAB for the State.

P L D 2019 Balochistan 68

Before Abdullah Baloch, J

WALI MUHAMMAD---Petitioner

Versus

RETURNING OFFICER and 18 others---Respondents

Election Petition No.2 of 2019, decided on 18th April, 2019.

Elections Act (XXXIII of 2017)---

----Ss. 139, 142, 143, 144 & 145---Election petition---Limitation---Failure to file application for condonation of delay---Effect---Petitioner was aggrieved of confirmation of respondent as returned candidate on grounds of rigging---Plea raised by respondent was that election petition was not maintainable as it lacked basic ingredients and was time barred---Validity---Petition presented before Election Tribunal was barred by time and no plausible reasons were mentioned by petitioner for delay so occasioned in presenting petition---Petitioner had also not filed an application for condonation of delay and legally petition was not maintainable and sustainable on such ground alone---Petitioner had directly filed petition before Election Tribunal and had failed to dispatch all required documents to the respondents---Petitioner had committed illegality and rendered election petition as not maintainable in view of S. 144(2) of Elections Act, 2017---Petitioner could not explain reasons for non-verification of petition along with its annexures on oath---Petitioner also could not satisfy Election Tribunal for not dispatching copies of petition and its annexures to the contesting respondents---Legal defects were apparent on face of record and further trial in matter was nothing but a futile exercise and wastage of precious time of Election Tribunal---If law required a particular thing to be done in a particular manner, it had to be done accordingly otherwise it would not be in compliance with legislative intent---Election petition was dismissed in circumstances.

Hina Manzoor v. Malik Ibrar Ahmed and others PLD 2015 SC 396 ref.

Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 rel.

Ishaq Nasar and Raheem-ud-Din for Petitioner.

Syed Ayaz Zahoor for Respondent No.2.

Shai Haq, Additional Advocate General, Naseer Ahmed, Senior Assistant, ECP and Zubair Naseem Khuwaja, Legal Advisor NADRA for Official Respondent.

P L D 2019 Balochistan 75

Before Muhammad Hashim Khan Kakar and Abdullah Baloch , JJ

ATTAULLAH---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.7 of 2018, decided on 17th June, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delayed FIR---Delayed examination of witness by police---Contradiction in statements of witnesses---Dishonest improvement---Scope---Accused was charged for committing murder---Complainant reached at the place of occurrence at 2:00 pm, but the FIR was lodged at 6:00 pm and the dead body was shifted to the hospital for medical examination at 6:30 pm---Contents of fard-e-bayan were silent about the weapon used in the crime, but in his court statement complainant dishonestly improved and stated that firing was made with TT pistol---Complainant had stated that murder was committed at the behest and instigation of co-accused and for such purpose two muffle faced persons brought the accused at the place of occurrence, however, the court statement of complainant was silent in such behalf---Complainant had not witnessed the crime directly, thus, his statement was not helpful to the case of prosecution---Complainant had recieved information about the occurrence at 12:00 pm, but the sole eye-witness of the occurrence contradicted the case of prosecution and stated that the occurrence had taken place at 12:30 pm---Eye-witness had appeared before the Investigating officer on the following day of occurrence for recording his statement---Appeal was accepted, in circumstances.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd---Recovery of weapon---Information received from accused to be proved---Scope---Accused was arrested after 5 days of the occurrence whereas accused, in the presence of police constable, confessed his guilt and recorded his disclosure on the day of his arrest and the said disclosure was followed by the recovery of TT pistol---Investigating officer in his cross-examination admitted that no crime empty was recovered from the place of occurrence, while infact according to record and more particularly from the statement of a witness it appeared that three empties were recovered from the place of occurrence, which were taken into possession through seizure memo---Prosecution ought to have sent the three collected empties and the TT pistol to Forensic Science Laboratory (FSL) for matching with empties and it was the FSL report which could confirm that the recovered TT pistol was the same through which the deceased was murdered, but that was not done---Recovered TT pistol could not be presumed to be the same through which the murder of the deceased was committed or that the same was recovered on the pointation of the appellant---Without recovery of any incriminatory article or discovery of new facts, disclosure of accused recorded in police custody was not admissible---Prosection had not succeeded in establishing the recovery of TT pistol on the pointation of appellant, hence the same was not helpful to the case of prosecution---Appeal was allowed.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Arts. 37, 38 & 39---Qatl-i-amd---Confession caused by inducement, threat or promise---Confession by accused in police custody---Scope---Investigating officer had recorded the disclosure of the appellant and according to the prosecution same was recorded voluntarily---Investigating officer did not produce the appellant before the Judicial Magistrate for recording his confessional statement under S.164, Cr.P.C. on the date of recording his disclosure, but to the contrary the appellant was produced before the Judicial Magistrate on the last date of remand for recording such confessional statement---Delay so occasioned in recording such confessional statement had lost its evidentiary value---Judicial Magistrate, who recorded the confessional statement of the appellant admitted in his cross-examination that earlier when the appellant was produced before him for remand, he never showed his willingness to record such confessional statement---Even otherwise, prior to recording his confessional statement the appellant informed the Judicial Magistrate that he was tortured, which fact was also recorded in his confessional statement---Judicial Magistrate had put a question to the appellant that as to why he was recording such confessional statement, to which the appellant replied that he was recording his statement so that the compromise could be effected; meaning thereby the appellant was deceived and put on a false impression and inducement that in case of recording his confessional statement the matter would be compromised---Such confessional statement could not be presumed to have been recorded voluntarily or free from interference or influence, thus, the same was not admissible under the law.

Mst. Tasleem and another v. State 2013 MLD 1331 rel.

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

----S. 302(b)---Qatl-i-amd---Medical evidence---Evidentiary value---Medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc, but medical evidence itself does not constitute any corroboration qua the identity of accused person to prove his culpability.

Muhammad Sharif and another v. The State 1997 SCMR 866 ref.

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

----S. 154---Information in cognizable cases---Prompt registration of FIR---Object---Main object of prompt registration of FIR is to rule out the possibility of deliberation, consultation and inquiry---Element of delay in lodging the crime report is treated with caution because there is a tendency to involve innocent people during the interval.

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

----S. 161---Delayed examination of witness by police---Effect---When statement under S.161, Cr.P.C. is delayed; such evidence may not be given that sanctity as is generally given to the evidence of a witness whose statement has been recorded promptly soon after the occurrence.

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

----Arts. 38 & 39---Confession to police officer---Confession of accused while in custody of police officer not to be proved against him---Scope---Disclosure of an accused recorded in police custody is not admissible under Arts.38 & 39 of the Qanun-e-Shahadat, 1984, unless followed by the recovery of any incriminatory evidence.

(h) Criminal trial---

----Benefit of doubt---Scope---Prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to disbelieve the prosecution story and acquit the accused.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Agha Nadir Shah for Appellant.

Muhammad Younas Mengal, Additional P.G. for the State.

P L D 2019 Balochistan 85

Before Mrs. Syeda Tahira Safdar, C.J. and Muhammad Ejaz Swati, J

HAWA BEGUM---Petitioner

Versus

NAIK BAKHT and others---Respondents

Constitutional Petition No.1 of 2014 and R.F.A. No.22 of 2017, decided on 1st July, 2019.

(a) Inheritance---

----Co-sharer, rights of---Principle---Co-sharership is result of devolution of inheritance, co-sharer becomes co-sharer the moment inheritance opens---Even mutation of entries or share in moveable property is also not necessary.

2004 SCMR 392 rel.

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

----S. 383---Constitution of Pakistan, Art. 199---Constitutional petition---Succession certificate, revision of---Suit for declaration, injunction and rendition of accounts---Compensation---Widow contracting second marriage---Husband of widow was police constable who died in bomb blast and Government announced compensation package and other facilities to bereaved family---Deceased was issueless, therefore, succession certificate was issued in favour of widow and parents of the deceased---Parents of deceased assailed succession certificate in favour of widow on the plea that she had contracted second marriage and got revised succession certificate issued in their favour---Civil suit filed by parents of widow was decreed in their favour---Validity---Widow could not be deprived of her share in view of first succession certificate issued by Trial Court as on such date she was widow of the deceased; her second marriage could not operate retrospectively but Trial Court without considering such aspect of matter passed decree in favor of parents of deceased which could not be sustained except share of salary she received during subsistence of second marriage---Deceased was issueless and parents of deceased who were living with deceased and were dependents were included in the family---Revised succession certificate was issued by Trial Court with consent of both the parties and thereafter, separate certificate was issued respectively---High Court in exercise of appellate jurisdiction set aside judgment passed by Trial court but maintained order regarding salary of deceased received by widow to extent of her share during subsistence of second marriage---Appeal was allowed accordingly.

PLD 1991 SC 731; PLD 2010 Kar. 153; PLD 2019 Sindh 1 and PLD 2013 Pesh. 1 ref.

Nemo for Petitioner (in C.P. No.1 of 2014).

Farooq Anwar for Respondents Nos. 1 to 11 (in C.P. No.1 of 2014).

Zahoor Ahmed Baloch, Assistant A.G. for Official Respondents (in C.P.No.1 of 2014).

Khushal Khan Kasi for Appellant (in RFA No.22 of 2017).

Farooq Anwar for Respondents Nos.1 and 2 (in RFA No.22 of 2017).

Zahoor Ahmed Baloch, Assistant A.G. for Official Respondents (in RFA No.22 of 2017).

P L D 2019 Balochistan 92

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

DIL JAN---Applicant

Versus

The STATE---Respondent

Criminal Jail Appeal No.55 of 2015, decided on 1st June, 2019.

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

----S. 324---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Withholding best evidence---Non-production of injured person---Effect---Scope---Accused was charged for attempting to commit murder of his wife---Complainant, in his fard-e-bayan, had stated that he was woken up by the accused person's son and was informed that the accused had injured his wife by inflicting knife blows but the complainant in his court statement only stated that the accused had injured his wife---Complainant admitted in cross-examination that the wife of accused had never complained against the accused---Other eye-witness of the occurrence had narrated a different story with regard to the incident---Eye-witness stated that on the night of occurrence, he heard hue and cries; comming out from his house; found the accused stained with blood and was crying, to which he was consoled, but in the meanwhile complainant informed him that the accused had injured his wife, thus, he had locked him in toilet and went to see the injured---Eye-witness had fully contradicted the statement of complainant on certain counts and had also made certain dishonest improvements---Eye-witness also admitted that the spouses were residing happily---Most important witness of the occurrence was the injured person, but she was not produced in the court on the ground that while she was being shifted for medical treatment, she met with an accident and died---No evidence was produced by the prosecution to establish such plea---Prosecution had also failed to produce the son of accused who had informed the complainant about the incident---No explanation was given by the prosecution to withhold the evidence of said witness---Appeal against conviction was accepted and impugned judgment was set aside.

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

----Art. 129(g)---Withholding star witness---Effect---Prosecution is not bound to produce each and every witness, but if the prosecution fails to produce the witnesses who are central figure and all the story revolves around them then the prosecution story would become doubtful.

(c) Criminal trial---

----Benefit of doubt---Scope---Accused is entitled to be extended benefit of doubt as a matter of right---Accused cannot be deprived of benefit of doubt merely because there is only one circumstance, which creates doubts in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Muhammad Akram Shah and Abdul Karim Malghani for Appellants.

Habibullah Gul, Addl.P.G. for the State.

P L D 2019 Balochistan 96

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

ABDUL WAJID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.40 of 2019, decided on 22nd June, 2019.

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

----S. 9---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Possessing and trafficking narcotic---Delay in despatch of sample for test or analysis---Safe custody of narcotic, not proved---Effect---Accused was charged for possession and transportation of charas weighing 45 kgs---Sample of recovered contraband were drawn and sealed in parcels on the same day---Samples ought to have been received in Forensic Science Laboratory (FSL) within 72 hours of the seizure as required by R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, but perusal of examination reports revealed that the samples were received by FSL on eighth day of its recovery---Nothing was available on record to establish that during the intervening period contraband remained in safe custody or that it was altered, manipulated, changed or replaced, thus the delay so occasioned in sending the samples to FSL had rendered the analysis report to be doubtful---Appeal was allowed and judgment passed by Trial Court was set aside.

(b) Control of Narcotic Substances Act (XXV of 1908)---

----S. 9---Possessing and trafficking narcotic---Non-production of messenger---Safe custody, not proved---Effect--- Forensic Science Labortory's (FSL) report reflected that the samples were handed over to a LNK (Lance Naik) for onward transmission to FSL for analysis---Name of said person was neither cited in the calendar of witnesses nor he was produced in the Trial Court to prove as to when the samples were delivered to him for transmission to FSL and during the intervening period whether the same were in the safe custody and its transmission to FSL was safe---Safe custody of the contraband in the malkhana of the relevant police station or safe transmission of samples from the local police station to the office of the Chemical Examination was not proved by the prosecution---Appeal was allowed and judgment passed by Trial Court was set aside.

State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Ikramullah and others v. the State 2015 SCMR 1002 and Amjad Ali v. The State 2012 SCMR 577 ref.

(c) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----Rr. 5 & 6---Control of Narcotic Substances Act (XXV of 1997), Ss.36 & 9---Possessing and trafficking narcotic---Report of government analyst---Report of result of test or analysis---Scope---Accused was charged for possession and transporting of charas weighing 45 kgs---Forensic Science Laboratory's (FSL) report was in violation of S. 36, Control of Narcotic Substances Act, 1997 and Rr. 5 & 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 as the same bore only one signature of the Federal Government Analyst, while S.36 of the Act and Rr. 5 & 6 prescribed Form II, which stipulated the signatures of two authorized officers of the Laboratory---Report was silent about the necessary protocols, the test applied and the result---Neither any protocol was mentioned in the report nor any test was referred to on the basis whereof the Chemical Expert had concluded that the samples sent for examination contained charas and crystal---Appeal was allowed and judgment passed by Trial Court was set aside.

Khair-ul-Bashar v. the State 2019 SCMR 930 rel.

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

----S. 9---Possessing and trafficking narcotic---Safe custody---Scope---Where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through any independent evidence, it cannot be presumed with any degree of confidence that the prosecution has succeeded in proving its case against the accused beyond the shadow of reasonable doubt.

Siraj-ud-Din v. The State Criminal Appeal No.579 of 2017 rel.

(e) Criminal trial---

----Procedure---Scope---When a specific method is provided for doing any legal act in a specified procedure, such act is required to be done in that manner---Deviation from such procedure would amount to violating the law.

Muhammad Yousaf v. the State 2017 MLD 1471 rel.

Sultan Khalid for Appellant.

P L D 2019 Balochistan 101

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

NAQEEBULLAH and 2 others---Petitioners

Versus

SSP, INVESTIGATION and 4 others---Respondents

Constitutional Petitions Nos.176 and 428 of 2019, decided on 23th July, 2019.

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

-----Ss. 109, 337-A(iv), 406, 417, 420, 424 & 504---Constitution of Pakistan, Art. 199---Constitutional petition---Reinvestigation---Supplementary statement---First Ingformation Report, quashing of---Accused persons were aggrieved of reinvestigation of case on basis of supplementary statement when challan had already been filed at Trial Court where case was fixed for recording of evidence---Validity---Further investigation so carried out by investigating agency was not maintainable in eyes of law---Offenses mentioned in F.I.R. were not attracted when otherwise F.I.R. was solely lodged with allegations of assaulting complainants and did not contain details of any fraud allegedly committed by accused persons with complainants---Such exercise carried out by investigating officer on basis of supplementary statement was uncalled for---Supplementary statement made by complainant before investigating officer regarding same occurrence was neither admissible as evidence nor same could be equated with F.I.R. or read as its part---Supplementary statement was always considered fragile type of evidence and on basis of same nature of entire case cannot be changed as such kind of supplementary statements are filed after consultation and deliberations---High Court quashed proceedings carried out by investigating officer with regard to reinvestigation and insertions of additional offenses under S.406, 417, 420, 424, 504 & 109 P.P.C.---Petition was allowed accordingly.

Munir Ahmed Sikandar and Noor Bakhsh for Petitioners Nos. 1 and 2 and Ms. B.K. Marwat for Petitioner No.3 (in C.P. No.176 of 2019).

Muhammad Rafiq Langove for Respoondent No.5 Amir Butt, Complainant in C.P.No.176 of 2019 and for Petitioner (in C.P.No.428 of 2019).

Habibullah Nasar for Applicant/Intervener Hayyat Khan (in C.P.No.176 of 2019) for Interveners.

Habibullah Gul, Additional P.G. for the State.

P L D 2019 Balochistan 106

Before Roze Khan Barrech, J

MUHAMMAD HUSSAIN and 17 others---Petitioners

Versus

ABDUL HAMEED and 4 others---Respondents

Civil Revision No.48 of 2017, decided on 10th July, 2019.

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

----O. IX, R. 8---"Date of hearing"---Date given by reader--- Scope--- Dismissal of suit in default for non-appearance on date, not given by Presiding Officer but by Reader of the court cannot be treated to be a "date of hearing" within meaning of O. IX, R. 8, C.P.C.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.IX, R. 8 & O.XVII, R. 3---Limitation Act (IX of 1908), Arts. 163 & 181---Restoration of suit---Limitation---Suit dismissed for non-appearance--- Final arguments---Suit filed by plaintiffs was dismissed for non-prosecution when it was fixed for final arguments---Validity---Case was fixed for final arguments and entire evidence of parties was recorded and case was ripe for judgment---When Trial Court itself fixed case for hearing then it could have taken action under O.XVII, R.3, C.P.C. and should not have dismissed suit under O. IX, R. 8, C.P.C.---Dismissal of suit for non-appearance at such stage was wholly not warranted and entire labour and expense could not be allowed to go to waste---High Court observed that only proper course in such circumstances was to fix another date for hearing final arguments or decide suit on merits on basis of available evidence produced by both the parties without hearing arguments---High Court set aside order passed by Trial Court and Lower Appellate Court and restored suit filed by plaintiffs---High Court remanded suit to Trial Court for decision afresh---Revision was allowed accordingly.

Muhammad Gauhar for Petitioner.

Shai Haq Baloch, A.A.G. for the State.

P L D 2019 Balochistan 109

Before Mrs. Syeda Tahira Safdar, C.J.and Muhammad Ejaz Swati, J

Eng. SAEED AHMED and others---Petitioners

Versus

CHAIRMAN NATIONAL HIGHWAY AUTHORITY, ISLAMABAD and others---Respondents

Constitutional Petitions Nos. 363, 913, of 2013 and 41 of 2014, decided on 14th May, 2019.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdictin of High Court---Scope---Issuance of writ by the High Court against another High Court---Scope---High Court could not issue a writ against another Bench of same High Court or against another High Court with regard to an order passed in judicial capacity.

PLD 1976 SC 315 and 2011 PLC (C.S.) 1465 rel.

Mazhar Ilyas Nagi for Petitioner (in C.P. No.363 of 2013).

Jameel Khan Agha and Naseer Ahmed Bazai for Respondents (in C.P. No.363 of 2013).

Zahoor Ahmed Baloch for Petitioner (in C.P.No.913 of 2013).

Jameel Khan Agha and Naseer Ahmed Bazai for Respondents (in C.P. No.913 of 2013).

Zahoor Ahmed Baloch for Petitioner (in C.P. No.41 of 2014).

Messrs Jameel Khan Agha and Naseer Ahmed Bazai for Respondents (in C.P. No.41 of 2014).

P L D 2109 Balochistan 113

Before Naeem Akhtar Afghan, J

DAWOOD KHAN and another---Appellants

Versus

SULTAN MUHAMMAD---Respondent

F.A.O. No.92 of 2009, decided on 27th May, 2019.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 13-A---Ejectment of tenant---Change of ownership---Denial of relationship of landlord and tenant by the tenant---Default in payment of rent---Effect---Eviction petition was dismissed on the ground that petitioner had failed to prove relationship of landlord and tenant---Validity---Demised premises had been mutated in favour of petitioner and other legal heirs through inheritance mutation---Rent Controller had failed to appreciate that eviction petition itself was to be regarded as notice under S.13-A of Balochistan Urban Rent Restriction Ordinance, 1959---Respondent was a tenant in the demised premises and his status would remain unchanged---Mere denial of relationship of landlord and tenant would not change the status of respondent as tenant of the demised premises---Co-owner could competently file eviction petition against a tenant---Denial of relationship of landlord and tenant by the respondent with the petitioner was contumacious making him liable for eviction from the demised premises forthwith---Impugned order passed by the Rent Controller was set aside, in circumstances---Eviction petition was accepted with the direction to the tenant to hand over vacant possession of demised premises to the landlord forthwith---Tenant was directed to pay monthly rent of demise premises to the landlord for the last three years---Landlord might approach the Court of civil jurisdiction for recovery of such arrears of monthly rent---Appeal was allowed, in circumstances.

Khurshid Begum v. Qamar-ud-Din 1990 CLC 1463; Muslim Commercial Bank v. Karim Bakhtiar PLD 1988 Quetta 1; Pak. National Shipping Corpn. v. General Services Corpn. 1992 SCMR 871 and Muhammad Shahid Nawaz v. Muhammad Saeed 2010 CLC 1941 rel.

Abdul Sattar and Miss Shahnaz Rana for Appellants.

Muhammad Amir Rana and Zahoor Hassan Jamot for Respondent.

P L D 2019 Balochistan 120

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

BARAM KHAN---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others---Respondents

Constitutional Petition No.659 of 2019, decided on 24th July, 2019.

(a) Provincial Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Arrest and detention of suspected person--- Prejudice to public order---Scope---Act/Activity complained of a person must be an act prejudicial to public order and its outcome or its result directly affects public at large---When such act or activity of a person is there, Provincial Government or person authorized in that behalf, has ample material in this regard to take action or pass order under S.3 of Provincial Maintenance of Public Order Ordinance, 1960 and same would be within theme of law--- Where an act or activity is person specific and does not amount to an activity prejudicial to public peace and tranquility, in no way be encompassed within sphere of Provincial Maintenance of Public Order Ordinance, 1960, and same would be entirely out of scope of law.

Liaquat Ali v. Government of Sindh PLD 1973 Kar. 78 and Masal Khan v. District Magistrate PLD 1997 Pesh. 148 rel.

(b) Provincial Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Arts. 10 & 199---Constitutional petition---Liberty of person---Detention, extension of---Anti-social activities--- Proof--- Petitioner was detained by authorities on anti-social activities and his detention was extended from time to time---Validity---Person could not be detained or his liberty curtailed without reasonable material because liberty of a person was guaranteed by the Constitution and High Court while exercising Constitutional jurisdiction was duty bound to satisfy itself that person was not being held in custody without lawful authority or in an unlawful manner---After obtaining surety from petitioner regarding showing good character and ordering release of petitioner, there was no occasion with authorities to withdraw same that too prior to release of petitioner merely on basis of suspicion, presumption and speculation---Order in question passed by authorities did not carry reasonable substantial material required for detention of petitioner and curbing his liberty and freedom---Showing reasons and grounds while passing detention order was duty of authorities---High Court under Constitutional jurisdiction was bound to scrutinize material furnished by detaining authorities for detention of any individual---Order passed by authorities regarding extending detention of petitioner was illegal, unlawful, without lawful authority, arbitrary, perverse and of no legal effect and set aside same---High Court directed the authorities that petitioner be released from jail---Constitutional petition was allowed in circumstances.

Liaquat Ali v. Government of Sindh PLD 1973 Kar. 78 and Masal Khan v. District Magistrate PLD 1997 Pesh. 148 rel.

Barkhurdar Khan Achakzai and Wali Khan Mandokhail for Petitioner.

Sahi Haq Baloch, Additional Advocate-General, assisted by Muhammad Muzamil, Deputy Secretary, Home Department and Muhammad Hussain ADC (Rev: Killa Abdullah at Chaman for Respondents.

P L D 2019 Supreme Court 1

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

In the matter of: SUO MOTU CASE NO.28 OF 2018.

Suo Motu Case No.28 of 2018, decided on 12th September, 2018.

(Regarding Discussion in TV Talk Show with regard to a Sub-judice Matter).

(a) Constitution of Pakistan---

----Arts. 19 & 19A---Freedom of media to report and comment on sub-judice matters---Scope---Sub-judice contempt---Procedural safeguards available in the legal system of the United States of America to ensure that presumption of innocence of a person prior to trial was not tainted, explained.

Bridges v. California [314 US 252 (1941)] and Near v. Minnesota Ex Rel. Olson, County Attorney [283 US 697 (1931)] ref.

(b) Constitution of Pakistan---

----Arts. 19 & 19A---Freedom of media to report and comment on sub-judice matters---Scope---Sub-judice contempt---Historical background of how the law of sub-judice contempt evolved in the United Kingdom, provided.

Attorney General v. Times Newspaper ([1973] 1 All ER 815); ([1973] 3 W.L.R.298); The Sunday Times v. United Kingdom [(1979) 2 EHRR 245]; Odhams Press Ltd., ex p. Attorney-General ([1956] 3 All ER 494 and Attorney General v. Leveller Magazine Ltd. ([1979] AC 440) ref.

(c) Constitution of Pakistan---

----Arts. 19 & 19A---Freedom of media to report and comment on sub-judice matters---Scope---Sub-judice contempt---Inherent jurisdiction exercised by courts in Australia with respect to sub-judice contempt explained.

John Fairfax Publications Pty. Ltd. v.Doe [(1995) 37 NSWLR 81] ref.

(d) Constitution of Pakistan---

----Arts. 19 & 19A---Freedom of media to report and comment on sub-judice matters---Scope---Sub-judice contempt---Survey of case law from the superior courts in India to demonstrate mechanisms adopted by the courts to protect sub-judice matters from prejudicial comments.

In Re: Harijai Singh and others [1996 (6) SCC 466; Bijoyananda Patnaik v. Balakrushna Kar and another (AIR 1983 Orissa 249; Rao Harnarain Singh Sheoji Singh v. Gumani Ram Arya (AIR 1958 Punjab 273; Sahara India real Estate Corporation Limited and others v. Securities and Exchange Board of India and another [(2012) 10 SCC 603; State of Maharashtra v. Rajendra Jawanmal Gandhi [(1997) 8 SCC 386 and R.K. Anand v. Registrar, Delhi High Court [(2009) 8 SCC 106 ref.

(e) Electronic Media (Programmes and Advertisements) Code of Conduct, 2015

----Cls. 4(3), 4(6) & 4(9)---Pakistan Electronic Media Regulatory Authority Ordinance, 2002 [as amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007], S. 19(5)---Constitution of Pakistan, Arts. 4, 10-A, 19, 19A & 204(2)(c)---International Covenant on Civil and Political Rights (ICCPR), Arts. 14 & 19---Suo motu case---Freedom of media to report and comment on sub-judice matters---Scope---Sub-judice contempt---Scope---Television talk show---Commenting/discussing a matter sub-judice before the Supreme Court---Unqualified and unconditional apology---Balance must be struck between the right to freedom of speech and information on one hand and the right to fair trial, to be dealt with in accordance with law and of due process on the other---Media commonly sensationalized issues of public importance and deduced guilt before any substantial finding had been recorded against the person undergoing trial/investigation/inquiry, and where this resulted in the mere risk of a substantial danger of the judges seized of the matter no longer remaining impartial, the right to fair trial of the person facing trial/investigation was irreparably lost---Essential element of fair trial was an impartial judiciary and one could not turn a blind eye to the fact that comment on a sub judice matter in the media or any other widely circulated publication had at least the potential of having an indirect effect on the minds of the judges seized of a matter---Although judges had the ability to ignore any irrelevant considerations while adjudicating a matter, the mere risk or danger of causing prejudice to a pending matter was sufficient for the law to step in to protect the right of the one being adversely affected---Possibility of ill-informed, inconsiderate or careless comments that may prejudice sub-judice proceedings and such risk of substantial danger of pre-judgment was sufficient to trigger the protection of the law with regards to the right of a person to an impartial judiciary, due process and right to put forth his defense before anyone else gave his subjective opinion on the same---Strict guidelines had to be implemented to prevent any prejudicial comments on pending cases, as this would in no manner take away the freedom of the press/mass media/broadcasters and would only aid in upholding the rule of law and fair and impartial trials in the larger interest of justice---Notwithstanding the fact that the alleged contemnor in the present case, who was host of a television talk show, had tendered an unqualified apology, considering the pending proceedings before the Supreme Court, inter alia, regarding the inquiry by Federal Investigation Agency against the former President/accused, the comments made on the subject episode of the talk show led to a substantial danger of prejudicing the accused's case and thus potentially trampled upon his right to a fair trial and due process guaranteed under Art.4 & Arti.10-A respectively of the Constitution---If voluntary violations of the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 ("Code of Conduct") or even negligence by the licensees to ensure adherence thereto was not penalized by the Pakistan Electronic Media Regulatory Authority (PEMRA), the 'Code of Conduct' would be reduced to mere paper and be rendered absolutely redundant---Supreme Court accepted the unconditional and unqualified apology tendered by the alleged contemnor and issued a writ of mandamus to PEMRA to ensure that certain parameters laid down in the law and the 'Code of Conduct'were adhered to in letter and spirit and that no violations thereof were tolerated by PEMRA---Suo motu case was disposed of accordingly.

Pakistan Broadcasters Association and others v. Pakistan Electronic Media Regulatory Authority and others PLD 2016 SC 692 ref.

(f) Electronic Media (Programmes and Advertisements) Code of Conduct, 2015

----Cls. 4(3), 4(6) & 4(9)---Pakistan Electronic Media Regulatory Authority Ordinance, 2002 [as amended by the Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007], Ss. 19(5) & 33---Constitution of Pakistan, Arts. 4, 10-A, 19, 19A & 204(2)(c)---International Covenant on Civil and Political Rights (ICCPR), Arts. 14 & 19---Suo motu case---Freedom of media to report and comment on sub-judice matters---Scope---Sub-judice contempt---Scope---Code of Conduct for print and electronic media---Supreme Court issued a writ of mandamus to Pakistan Electronic Media Regulatory Authority (PEMRA) to ensure that certain parameters laid down in the law and the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 were adhered to in letter and spirit and that no violations thereof were tolerated by PEMRA---Parameters laid down by the Supreme Court in such regard provided.

Supreme Court issued writ of mandamus to Pakistan Electronic Media Regulatory Authority (PEMRA) to ensure that the following parameters laid down in the law and the Electronic Media (Programmes and Advertisements) Code of Conduct, 2015 ("Code of Conduct") were adhered to in letter and spirit and that no violations thereof were tolerated by PEMRA:-

i) The Code of Conduct ensured that the freedom of speech and the right to information (Articles 19 and 19A of the Constitution) were protected, and at the same time provided that the discussion of sub judice matters must be conducted in a manner which did not negatively affect another person's fundamental right to be dealt with in accordance with the law (Article 4 of the Constitution) and the right to fair trial and due process (Article 10A of the Constitution).

ii) All licensees should be sent a notice/reminder of their basic ethics and objectives, standards and obligations under the Code of Conduct, particularly Clause 4(10) thereof, in that, editorial oversight should be observed prior to the airing of all programmes and any programme, the subject or content of which was found or deemed to be in violation of the Code of Conduct in its true letter and spirit, should not be aired by the licensee;

iii) Any discussion on a matter which was sub-judice may be aired but only to the extent that it was to provide information to the public which was objective in nature and not subjective, and no content, including commentary, opinions or suggestions about the potential fate of such sub-judice matter which tended to prejudice the determination by a court, tribunal, etc., shall be aired;

iv) While content based on extracts of court proceedings, police records and other sources were allowed to the extent that they were fair and correct, any news or discussions in programmes shall not be aired which were likely to jeopardize ongoing inquiries, investigations or trials;

v) In compliance with Clause 5 of the Code of Conduct, all licensees should strictly ensure that an effective delaying mechanism was in place for broadcasting live programmes to ensure stern compliance with the Code of Conduct and Articles 4, 10A and 204 of the Constitution;

vi) In compliance with Clause 17 of the Code of Conduct, an impartial and competent in-house Monitoring Committee shall be formed by each licensee, with intimation to PEMRA which shall be duty bound to ensure compliance of the Code of Conduct;

vii) With regards to the Monitoring Committee, the licensees shall include (for each of its meetings) at least one practicing lawyer of at least 5 years or above practice, with adequate understanding of the law to advise the licensee regarding any potential violations of the Code of Conduct by programmes to be aired in the future;

viii) In compliance with Clause 20 of the Code of Conduct, each licensee shall be required to hold regular trainings of its officers, employees, staff, anchors, representatives etc. with regard to ensuring compliance with the Code of Conduct. Schedule and agenda of these regular trainings shall be intimated to PEMRA through the Monitoring Committee; and

ix) If any licensee was found to have violated or failed to observe the Code of Conduct in its true letter and spirit, particularly Clause 4 of thereof, and/or Articles 4, 10A and 204 of the Constitution, strict and immediate action should be taken against such licensee in accordance with Section 33 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002. The Supreme Court or any High Court retained the power to take cognizance of the matter and shall exercise its powers under Article 204 of the Constitution where such Court was of the opinion that it was appropriate in the facts and circumstances of the case for it to do so.

In attendance:

Sohail Mehmood, D.A.G.

Faisal Fareed Hussain, Advocate Supreme Court along with Arshad Sharif in person.

Faisal Siddiqui, Advocate Supreme Court (For PBA).

Saleem Baig Chairman PEMRA.

P L D 2019 Supreme Court 32

[Shariat Appellate Bench]

Present: Mushir Alam, Sardar Tariq Masood and Dr. Muhammad Khalid Masud, JJ

GOVERNMENT OF PUNJAB through Chief Secretary---Appellant

Versus

Dr. ZAHOOR AHMAD AZHAR ---Respondent

Civil Shariat Appeal No.1 of 2013, decided on 19th September, 2018.

(Against the judgment dated 22-10-2012 passed by Federal Shariat Coiurt in Sh. Mis. Application No.06/1 of 2011).

Constitution of Pakistan---

----Arts. 31(2)(a), 203-D & 203-F---Federal Shariat Court, jurisdiction of---Scope---Promotion of Arabic language for educational and other relevant purposes---Federal Shariat Court by way of impugned judgment issued certain directions for promotion of Arabic language by implementation of Art.31(2)(a) of the Constitution---Constitutionality---Federal Shariat Court had issued the impugned direction in the form of writ of mandamus which was clearly beyond its jurisdictional authority---Federal Shariat Court did not possess any jurisdiction for the enforcement of Fundamental Rights or to issue order, declaration or directions to implement any command of the Constitution or law---Federal Shariat Court, fell into error, treating Art.31(2) of the Constitution, as command of the Constitution or law capable of implementation by it---Jurisdiction of Federal Shariat Court was confined to the extent of examining the compatibility or otherwise of law on the touchstone of Injunctions of Islam---Furthermore Arts.29 to 40 were Principles of Policy, were guidelines for the State, and were not, stand alone, enforceable---Impugned judgment of Federal Shariat Court was set-aside---Shariat appeal was allowed accordingly.

Saeedullah Kazmi v. Government of Pakistan PLD 1981 SC 42 ref.

Barrister Qasim Chohan, Addl. A.G. Punjab for Appellant.

Nemo for Respondents.

P L D 2019 Supreme Court 37

[Shariat Appellate Bench]

Present: Mushir Alam, Sardar Tariq Masood and Dr. Muhammad Khalid Masud, JJ

MAQBOOL AHMAD QURESHI, ADVOCATE---Appellant

Versus

GOVERNMENT OF PAKISTAN through Secretary Law and Justice and others----Respondents

C. Sh.A. 1 of 2012 and C.M.A. 3726 of 2012, decided on 19th September, 2018.

(Against the order dated 30-10-2012 passed by Federal Shariat Court in Sh. Mis. Application No.7/1 of 2012).

Civil Servants Act (XIV of 1973)---

----S. 17, Proviso II---Sindh Civil Servants Act (XIV of 1973), S. 18, Proviso II---Khyber Pakhtunkhwa Civil Servants Act (XVIII of 1973), S. 17, Proviso II---Punjab Civil Servants Act (VIII of 1974), S. 16, Proviso II---Balochistan Civil Servants Act (IX of 1974), S.17, Proviso II---Constitution of Pakistan, Art.203-F---Repugnancy to Injunctions of Islam---Order of dismissal, removal from service or reduction in rank set aside---Entitlement to back benefits/ arrears on reinstatement---Plea of appellant before the Federal Shariat Court was that civil servants who were dismissed and or removed from service did not render any service during the intervening period till their restoration and or reinstatement; that Proviso II to S.17 of Civil Servants Act, 1973, Proviso II to S.18 of Sindh Civil Servants Act, 1973), Proviso II to S.17 of Khyber Pakhtunkhwa Civil Servants Act, 1973), Proviso II to S.16 of Punjab Civil Servants Act, 1974), and Proviso II to S.17 of Balochistan Civil Servants Act, 1974, which provided the concerned authority with the discretion to grant back benefits on reinstatement, were misused and abused by the reinstated civil servants, therefore such provisions, were repugnant to the Injunctions of Islam and should not be allowed to remain on the statute book---Federal Shariat Court dismissed the petition by holding that the impugned provisions did not provide for automatic grant of arrears of the intervening period between dismissal/removal/reduction in rank and restoration to the original position; that the authority vested under the law to make such an order, depending upon law, facts and circumstances, may determine, inter alia, question relating to reinstatement, etc., including restoration to original position, in seniority, cadre, and post, treatment of intervening period as duty or on leave and its kind---Held, that appellant did not cite any Nass of the Holy Quran and Sunnah of Holy Prophet (PBUH), which was sine qua non to seek declaration of the kind sought by the appellant---No exception could be taken to the view formed by the Federal Shariat Court in the impugned judgment---Ayah 188 of Surah Baqrah [2-188: Holy Quran] relied upon by the appellant, was not relevant to the point in issue nor the appellant was able to explain the same---Shariat Appeal was dismissed in circumstances with costs of Rs.10,000.

Appellant In person.

Zahid Yousaf Qureshi, AG, KP, Muhammad Ayaz Swati, AG Balochistan, Sharial Qazi, AG Sindh, Barrister Qasim Chohan Addl. AG, Punjab and Ilyas Bhatti, Addl.AG for Pakistan for Respondents.

P L D 2019 Supreme Court 43

Present: Gulzar Ahmed, Qazi Faez Isa and Yahya Afridi, JJ

SHAFQAT @ SHAFAAT---Applicant/Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Application No.693 of 2018 (Compromise Application) In/and Jail Petition No.427 of 2016, decided on 29th October, 2018.

(Against the judgment dated 1-6-2016 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Crl.A.No.31-J/13 and M.R.No.22/2013).

Per Qazi Faez Isa, J; Yahya Afridi, J agreeing; Gulzar Ahmed, J dissenting.

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

----S. 345(6)---Penal Code (XLV of 1860), Ss. 302(b) & 338-E---Qatl-i-amd---Compounding of offence---Compromise between parties---Conviction and sentence, effect upon---Question as to whether as a consequence of accepting a compromise, the convict's conviction was to be set aside and he be acquitted or instead without setting aside his conviction and acquitting him he was only saved from punishment --- [Per Qazi Faez Isa, J (Majority view): When the compromise was accepted it brought to an end the punishment of the offence, but it did not simultaneously result in the setting aside of the conviction and the acquittal of the convict---By accepting the compromise it brought the sentence to an end, but the convict did not secure an automatic acquittal as a consequence thereof---Forgiveness or pardon did not erase or obliterate the crime, it simply withheld the punishment---If the perpetrator of the crime, which had been waived/compounded, was to be acquitted this may only be done after the facts and circumstances of the case had been considered, that was, after hearing the case---Law did not state that the court had to acquit the accused-convict simply because the offence had been waived or compounded---No provision either in the Penal Code, 1860 or the Criminal Procedure Code, 1898, explicitly, or impliedly, mandated that a convict's conviction shall be set aside when the compromise was accepted---Nor could this be done by relying on subsection (6) of S.345, which stated that the composition, "shall have the effect of an acquittal"---Sentence, which followed a conviction, could be brought to an end by the victim or by the victim's heirs by forgiving the convict and this may also be done by an executive pardon, however, neither individuals, who were entitled to compound, nor the executive, which had the power to pardon, could exercise judicial power by setting aside a conviction and or acquit a convict---Previous convictions were also relevant when considering sentencing; whether the maximum punishment be given or any lesser one was determined by taking into consideration the convict's conduct and previous convictions---If, therefore, previous conviction/s were erased (as a result of compromise) the legal provisions (dealing with past conduct of offender and enhanced punishments for previous convictions) would become redundant---His Lordship observed that as a result of improper legal assistance and by not considering certain relevant provisions of Penal Code, 1860 and the Criminal Procedure Code, 1898, the Bench of the Supreme Court in SMC No. 03 of 2017 (PLD 2018 SC 703) incorrectly laid down that "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 is 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"---His Lordship referred the present case to the Chief Justice of the Supreme Court for the constitution of larger Bench to settle the issue of effect of a compromise under S.345, Cr.P.C]---[Per Gulzar Ahmed, J, dissenting (Minority view):Judgment of the Supreme Court passed in SMC No. 03 of 2017 (PLD 2018 SC 703) had already settled the issue as to whether compounding of an offence under S.345 Cr.P.C. amounted to acquittal of accused person or not---Said judgment had discussed in great details the effect of compounding of an offence under S.345 Cr.P.C. and in doing so large number of case law from Pakistan as well as foreign jurisdictions was taken into consideration, discussed and a thorough opinion had been expressed that once an offence had been compounded under S.345 Cr.P.C., such compounding resulted into obliteration, removal, pardoning and erasing of the offence resulting into acquittal of the accused or convict---Since the view and opinion in SMC No. 03 of 2017 (PLD 2018 SC 703) was expressed by three member Bench of the Supreme Court, such view had a binding effect on the present and equal three member Bench of the Supreme Court---View expressed by a three member bench of the Supreme Court could only be changed or deviated from by a larger bench for which the forum provided by law was to request the Chief Justice for constitution of a larger bench].

Does a Pardon Blot Out Guilt, Harvard Law Review, Vol.XXVIII, May, 1915, No.7; 44 Oh. St. 98, N.E.228 (1886); Bradford v, United States 288 Y.S, 446 (1913); Cook v. Freeholders of Middlesex, 2 Dutch. (N.J.) 326, 331, 333 (1887); Sanders v. State 85 Ind. 318, 322 (1882); United States v. Noonan, 906 F.2d 952; Regina v. Foster, [1984] Q.B.115; Rex v. Cosgrove, [1984] Tas. S.R.99; In re Royal Commission on Thomas Case, [1980] I N.Z.L.R.602 Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883; Atma Ram and others v. State of Punjab and others AIR 1959 SC 519 and Mureed Sultan and others v. The State through P.G. Punjab and another 2018 SCMR 756 ref.

(b) Constitution of Pakistan ---

----Art. 189---Decision of the Supreme Court---Stare decisis, principle of---Scope---If a Bench of a Court which comprised of an equal number of judges did not concur with the views of the other Bench a larger Bench should be constituted to resolve the matter.

Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Ardeshir Cowsjee v. Karachi Building Control Authority (KMC) 1999 SCMR 2883 and Atma Ram v. State of Punjab AIR 1959 SC 519 ref.

Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Syed Rifaqat Hussain Shah, Advocate-on-Record for the Complainant.

Ch. M. Sarwar Sidhu, Addl. P.G., Punjab for the State.

P L D 2019 Supreme Court 64

Present: Mian Saqib Nisar, C.J., Asif Saeed Khan Khosa and Mazhar Alam Khan Miankhel, JJ

Mst. ASIA BIBI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.39-L of 2015, decided on 8th October, 2018.

(Against the judgment dated 16-10-2014 of the Lahore High Court, Lahore passed in Criminal Appeal No.2509 of 2010 and M.R.No.614 of 2010).

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

----S. 295-C---Blasphemy---Conviction---Scope---Individuals or a gathering (mob) could not be allowed to decide as to whether any act falling within the purview of S. 295-C, P.P.C. had been committed or not, because, it was the mandate of the Court to make such decision after conducting a fully qualified trial and on the basis of credible evidence brought before it---No such parallel authority could in any circumstances be bestowed upon any individual or a group of persons.

Malik Muhammad Mumtaz Qadri v. The State PLD 2016 SC 17 ref.

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

----S. 295-C---Blasphemy---Appeal, filing of---Limitation---Condonation of delay---Appeal filed before the Supreme Court against award of death sentence was barred by 11 days---When the present appeal was filed, the appellant was in jail and confined to death cell---Appellant had been sentenced to death, thus, it was appropriate to reappraise the evidence to ensure that the conviction and sentence recorded against her had been validly recorded---Besides, the matter of life and death of a lady was involved, therefore, the appeal should not be dismissed on mere technicalities---Delay in the filing of the appeal was condoned in circumstances.

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

----S. 295-C---Use of derogatory remarks in respect of Prophet Muhammad (pbuh) Blasphemy---Reappraisal of evidence---Benefit of doubt---Accused, who was a Christian lady, was alleged to have uttered derogatory remarks against the Holy Prophet (pbuh) in front of several women---Two of these women (prosecution witnesses) narrated the matter to the local cleric/complainant, who called the accused in a public meeting and inquired about the occurrence, where the accused allegedly confessed her guilt---Trial Court awarded death sentence to the accused, which sentence was confirmed by the High Court---[Per Mian Saqib Nisar, CJ: Factum of quarrel between the accused and other women (prosecution witnesses) prior to the allegation of blasphemy was proved from the record---First Information Report (FIR) was registered with a delay of 5 days---Admittedly, there were 25-30 ladies present at the spot when the accused allegedly passed blasphemous remarks against the Prophet Muhammad ( ), however, none of the other ladies except two, who were also prosecution witnesses, reported the matter to anyone---Many inconsistencies/discrepancies were found in the statements of the two women who were introduced as prosecution witnesses inasmuch as variations were made by them from their earlier statements recorded under S.161, Cr.P.C---Further there were also discrepancies between the examination-in-chief of the complainant and the complaint lodged by him---Such material contradictions and inconsistent statements of the witnesses and complainant cast further doubts on the coherence of the evidence pertaining to the questions as to who informed the complainant about the occurrence; who was present at the time of disclosure regarding the allegation made against the accused; how many people were present at the time of the public gathering; where did the public gathering take place; what was the time and duration of the public gathering; what was the distance between the place of the public gathering and the house of the accused and how and who brought the accused to the public gathering---Certain contradictions were also present in the examination-in-chief and cross-examination of a police officer/prosecution witness regarding the place and time of arrest of accused---Prosecution had categorically failed to prove its case beyond reasonable doubt---Conviction and sentence of death awarded to the accused was set aside in circumstances and she was acquitted of the charge---Appeal was allowed accordingly]---[Per Asif Saeed Khan Khosa, J, agreeing: Original FIR was in the shape of a written application which had statedly been drafted by an Advocate, however the complainant, the initiator of the present criminal case, did not remember who had drafted the application for the purpose of lodging the FIR and he did not even know where and before whom the said application had been presented by him for the purpose of getting an FIR registered---Apparently something else was happening behind the scene and the actual movers of the present criminal case were some others who had never come to the fore---Prosecution witnesses before whom the alleged remarks were made were young girls and sisters inter se and were semi-literate who had statedly received some elementary religious education from the wife of the complainant/ local cleric---Said prosecution witnesses had never stated as to who was addressed by the accused at the time of uttering the derogatory remarks, and they had never disclosed in whose field the alleged incident had taken place and they had not themselves lodged any report about the same with the local police---According to the prosecution itself, the accused had allegedly uttered the derogatory words after the accused's religion (Christianity) was insulted and her religious sensibilities had been injured by her Muslim co-worker ladies (prosecution witnesses)---Owner of the field where the alleged incident took place and before whom the accused allegedly confessed and sought pardon, was introduced in the present case at some later stage by way of an afterthought---Belated surfacing of the said witness was quite suspicious and in all likelihood he had been planted in the present case at some subsequent stage---Evidence brought on record to establish the time and date when the local cleric/complainant was informed about the alleged remarks was not free from doubt---Matter was reported to the police after a delay of five days with the explanation that the complainant and villagers personally investigated and looked into the matter and wanted to be satisfied before reporting the matter---No detail of any such investigation or consultation by the complainant party or of verification by the complainant had been divulged before the Trial Court nor any evidence had been produced in such regard---In the FIR lodged no mention whatsoever had been made of any public gathering where the accused allegedly confessed her guilt and sought pardon---Statements made by the complainant and prosecution witnesses before the court with respect to the date and time of the public gathering were mutually contradictory---Evidence produced by the prosecution about where the public gathering had been held, how many people had participated in that gathering, who had brought the accused to the gathering, how the accused was brought to the gathering and the time consumed in the meeting was replete with glaring contradictions exposing complete falsity of the prosecution's story---Record of the case showed that the accused and her forefathers had been living in the same village since before the year 1947 and during all this while no such incident or quarrel over religions of the parties had ever taken place---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Conviction and death sentence of the accused recorded and upheld by the courts below were set aside and she was acquitted of the charge by extending the benefit of doubt to her.

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

----S. 154---Delay in lodging First Information Report (FIR)---Effect---In absence of any plausible explanation, the Supreme Court had always considered the delay in lodging of FIR to be fatal and it casted a suspicion on the prosecution story, extending the benefit of doubt to the accused---If there was any delay in lodging of FIR and commencement of investigation, it gave rise to a doubt, which, could not be extended to anyone else except to the accused.

Zeeshan @ Shani v. The State 2012 SCMR 428; Noor Muhammad v. The State 2010 SCMR 97 and Muhammad Faiz Khan v. Ajmer Khan 2010 SCMR 105 ref.

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

----S. 154---First Information Report (FIR) lodged after conducting an inquiry---Such FIR lost its evidentiary value.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 ref.

(f) Criminal trial ---

----Benefit of doubt---Scope---For the accused to be afforded the right of benefit of the doubt, it was not necessary that there should be many circumstances creating uncertainty---If a single circumstance created reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as a right.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Ayub Masih v. The State PLD 2002 SC 1048 ref.

(g) Criminal trial--

----Extra-judicial confession---Scope and reliance---Evidence of extra-judicial confession was a fragile piece of evidence and utmost care and caution had to be exercised in placing reliance on such a confession---Such confession was always looked at with doubt and suspicion due to the ease with which it may be concocted---Legal worth of the extra judicial confession was almost equal to naught, keeping in view the natural course of events, human behaviour, conduct and probabilities in ordinary course---Extra-judicial confession could be taken as corroborative of the charge if it, in the first instance, rang true and then found support from other evidence of unimpeachable character---If the other evidence lacked such attribute, it had to be excluded from consideration.

Nasir Javaid v. State 2016 SCMR 1144; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Imran alias Dully v. The State 2015 SCMR 155; Hamid Nadeem v. The State 2011 SCMR 1233; Muhammad Aslam v. Sabir Hussain 2009 SCMR 985; Sajid Mumtaz and others v. Basharat and others 2005 SCMR 231; Ziaul Rehman v. The State 2000 SCMR 528 and Sarfraz Khan v. The State and 2 others 1996 SCMR 188 ref.

(h) Penal Code (XLV of 1860)-

----S. 295-C---Use of derogatory remarks in respect of Prophet Muhammad (pbuh)---Blasphemy---Reappraisal of evidence---Extra-judicial confession---Accused, who was a Christian lady, was alleged to have uttered derogatory remarks against the Holy Prophet (pbuh) and she allegedly confessed her guilt in a public gathering---Trial Court awarded death sentence to the accused, which sentence was confirmed by the High Court---Held, that accused was brought to a gathering of potentially hundreds of people, where she was alone at the time, tensions were running high, and it was an intimidating environment---Accused may well have felt threatened and vulnerable, thus, the alleged extra-judicial confession made by her, even if presumed to have been made before the public gathering, could not be termed as a voluntary action nor could it be relied upon to form the basis of a conviction, especially for capital punishment---Conviction and sentence of death awarded to the accused was set aside in circumstances and she was acquitted of the charge---Appeal was allowed accordingly.

(i) Criminal trial--

----Cross-examination---Defence failing to cross-examine prosecution witnesses qua certain aspects of the case---Principle that 'part of statement which remained un-rebutted amounted to admission' was not applicable to criminal cases---In criminal cases, the burden to prove the guilt of the accused rested heavily upon the prosecution, which had to prove its case beyond any shadow of doubt.

Nadeem Ramzan v. The State 2018 SCMR 249; S. Mahmood Aslam Shah v. The State PLD 1987 SC 250 and State v. Rab Nawaz and another PLD 1974 SC 87 ref.

(j) Criminal trial---

----Presumption of innocence---Scope---Such presumption remained throughout the case until such time the prosecution on the evidence satisfied the Court beyond reasonable doubt that the accused was guilty of the offence alleged against him.

(k) Criminal trial---

----Standard of proof---Scope---Suspicion howsoever grave or strong could never be a proper substitute for the standard of proof required in a criminal case, i.e. beyond reasonable doubt.

(l) Criminal trial ---

----Standard of proof---Scope---Cases where there was enmity between the accused and the complainant or prosecution witnesses usually a strict standard of proof was applied for determining the innocence or guilt of the accused.

Per Asif Saeed Khan Khosa, J; agreeing with Mian Saqib Nisar, J

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

----S. 154---First Information Report (FIR) lodged with a noticeable delay and after consultations and deliberations---Such FIR lost its credibility.

Saif-ul-Malook, Advocate Supreme Court for Appellant.

Zubair Ahmed Farooq, Addl. P.G. for the State.

Ghulam Mustafa Chaudhry, Advocate Supreme Court for the Complainant.

Date of hearing: 8th October, 2018

P L D 2019 Supreme Court 112

Present: Mian Saqib Nisar, C.J., Asif Saeed Khan Khosa, Sh. Azmat Saeed, Faisal Arab and Munib Akhtar, JJ

TALLAT ISHAQ---Petitioner

Versus

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

Civil Petition No.632 of 2018, decided on 1st October, 2018.

(Against the judgment dated 31-1-2018 passed by the High Court of Balochistan, Quetta in Civil Petition No.1300 of 2017).

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

----S. 9(b)---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---Bail petition, filing of---Constitutional jurisdiction of the High Court---Scope---In an appropriate case a person accused of an offence under the National Accountability Ordinance, 1999 ("the Ordinance") may approach a High Court for his bail by invoking Art.199 of the Constitution---Section 9(b) of the Ordinance did not affect the jurisdiction of a High Court conferred upon it by the Constitution---Constitutional jurisdiction of a High Court was, however, an extraordinary jurisdiction meant to be exercised in extraordinary circumstances and not in run of the mill cases or as a matter of course---Supreme Court observed that the entire burden of bail petitions was shouldered by the High Courts in its Constitutional jurisdiction, therefore, the legislature may consider amending the National Accountability Ordinance, 1999 appropriately so as to enable an accused person to apply for his bail before the relevant Accountability Court in the first instance.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 201 SC 607 ref.

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

----S. 16(a)---Trial not concluded by Accountability Court within the timeframe of thirty days provided under S.16(a) of the National Accountability Ordinance, 1999---Bail on grounds of delay in conclusion of trial --- Principles---Mere delay in conclusion of a trial or longevity of the period of incarceration of an accused person could not by itself entitle an accused person to bail in a case under the National Accountability Ordinance, 1999---Section 16(a) of the National Accountability Ordinance, 1999 ("the Ordinance") provided that prosecution of an accused person in an Accountability Court and hearing of the case by such Court shall be conducted on day to day basis so as to be disposed of within thirty days---Word "shall" used in S.16(a) of the Ordinance had been used in the context of conclusion of a trial by an Accountability Court and it was directory in nature and not mandatory because it did not provide for a penalty or a consequence in case of its non-observance or non-compliance---Section 16(a) of the Ordinance did not provide that if the stipulated timeframe of thirty days was not adhered to by an Accountability Court in the matter of conclusion of a trial then the prosecution of the accused person would stand terminated and he would be deemed to have been acquitted or that the accused person would be entitled to be admitted to bail on such ground---Ordinarily bail was allowed to an accused person on the ground of delay only where the delay in the trial or the period of custody of the accused person was shocking, unconscionable or inordinate and not otherwise---Primary consideration for grant of bail on the ground of such delay was undue hardship and more often than not prima facie merits of the case against the accused person were also looked into before admitting him to bail on the ground of delay---Before admitting an accused person to bail on the ground of hardship caused by a shocking, unconscionable or inordinate delay a High Court or the Supreme Court also looked for the reasons for the delay and if some significant or noticeable part of the delay was found to be attributable to the accused person then the relief of bail was withheld from him---Even in cases of delay ordinarily bail was not granted straightaway and a direction was issued to the Trial Court in the first instance to conclude the trial within a period fixed for the purpose by the Court itself (as opposed to the time fixed by S.16(a) of the National Accountability Ordinance, 1999 which had already expired)---Where such a direction was issued by the High Court or the Supreme Court regarding conclusion of a trial within a specified period fixed by the Court was not complied with, even then admission of accused person to bail was not always automatic, be it a case under the National Accountability Ordinance, 1999 or under any other law---Supreme Court observed that the unrealistic timeframe for conclusion of a trial specified in S.16(a) of the National Accountability Ordinance, 1999 may be reconsidered and revisited by the legislature. [Muhammad Nadeem Anwar and another v. National Accountability Bureau and others (PLD 2008 SC 645), Anwarul Haq Qureshi v. National Accountability Bureau and another (2008 SCMR 1135) and Asfandyar Khan Kakar v. Accountability Court, Quetta and another (unreported order passed by the Supreme Court on 06.09.2017 in Civil Petition No.2920 of 2017) did not qualify as good precedents].

Aga Jehanzeb v. NAB and others 2005 SCMR 1666 distinguished.

Muhammad Nadeem Anwar and another v. National Accountability Bureau and others PLD 2008 SC 645; Anwarul Haq Qureshi v. National Accountability Bureau and another 2008 SCMR 1135 and Asfandyar Khan Kakar v. Accountability Court, Quetta and another Civil Petition No.2920 of 2017 (unreported) did not qualify as good precedents.

Faisal Hussain Butt v. The State and another 2009 SCMR 133; Nisar Ahmed v. The State and others PLD 2016 SC 11; Khalid Humayun v. The NAB through D.G. Quetta and others PLD 2017 SC 194; Anwar Saifullah Khan v. The State and 3 others 2001 SCMR 1040; Muhammad Saeed Mehdi v. The State and 2 others 2002 SCMR 282; Ch. Zulfiqar Ali v. The State PLD 2002 SC 546; Muhammad Jahangir Badar v. The State and othes PLD 2003 SC 525; Arif Sharif v. Chairman, NAB 2004 SCMR 1805 and Himesh Khan v. The National Accountability Bureau (NAB) Lahore and others 2015 SCMR 1092 ref.

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

----S. 497---Bail---Delay in conclusion of trial---Direction issued by the High Court or Supreme Court to the Trial Court to conclude trial within a specific time limit---Such direction was an administrative direction and non-compliance of such direction by the Trial Court for whatever reason may not entitle the accused / person to claim bail as of right.

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

----S. 9(a)(v)---Constitution of Pakistan, Art. 199---Acquiring assets beyond known sources of income---Bail, refusal of---Stands taken by the accused before the Supreme Court regarding the properties in issue were ostensibly mutually contradictory---Accused was the principal accused in the present case whereas the co-accused persons released on bail were allegedly Benamidars only---Regarding the delay in the trial of accused the order-sheet of the Trial Court had neither been appended with the present petition nor the same had been produced before the Supreme Court to show as to why delay had occurred in conclusion of the accused's trial and who was responsible for the delay---Statements of quite a few prosecution witnesses had already been recorded by the Trial Court---High Court had already issued a direction to the Trial Court to conclude the accused's trial within the shortest possible time---Supreme Court declined interference in the matter at present stage---Accused was refused bail in circumstances---Petitin for leave to appeal was dismissed accordingly.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Petitioner.

Haider Ali, Additional Prosecutor-General Accountability for Respondents.

P L D 2019 Supreme Court 133

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

MUHAMMAD IBRAHIM SHAIKH---Petitioner

Versus

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

Suo Motu Case No.3 and Civil Petiiton No.53-K of 2018 and Civil Miscellaneous Applications Nos. 6853 and 6854 of 2018, decided on 15th December, 2018.

(Dual Nationality of Hon'ble Judges and Officials of Courts and Government Officials).

(Against the judgment dated 14-12-2017 of the High Coiurt of Sindh, Karachi passed in C.P.S.-1753/2016).

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

----Ss. 14(1) & 14(3)---Dual citizenship not allowed---Exceptions---List of countries whose citizenship could be acquired without losing citizenship of Pakistan---Discretion of Federal Government to amend said list---Scope---Plain reading of S.14(1) of the Pakistan Citizenship Act, 1951 ('the Act'), clearly showed that as a general rule, a Pakistani citizen who was also a citizen/national of any other country shall lose his citizenship of Pakistan unless he renounced his citizenship/ nationality of the other country---Government of Pakistan had specified certain other countries in terms of S.14(3) of the Act such that on acquisition of citizenship of said countries a citizen of Pakistan did not automatically lose his nationality of Pakistan as per S.14(1) of the Act---No guidelines existed in respect of the discretion available to the Federal Government under S.14(3) of the Act---Unqualified power vested with the Government in such regard was inconceivable in a democratic government working under the Constitution---Discretion ought to be guided and qualified in order to meet the requirements of sound administrative policy---Supreme Court directed that while all the orders passed and notifications issued till date [in terms of S.14(3) of the Act] were to be kept intact and considered valid, the Federal Government shall formulate the guidelines and parameters for the exercise of power under S.14(3) of the Act---Order accordingly.

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

----S. 14(3)---Constitution of Pakistan, Art. 260(1)---Pakistan Army Act (XXXIX of 1952), S. 10---Pakistan Air Force Act (VI of 1953), S.12---Pakistan Navy Ordinance (XXXV of 1961), S.10---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.19(1)---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.13---Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, R.11(1)---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, R.9(4)---Dual nationals---Question as to whether dual nationals could be legally employed in service of Pakistan; employed as civil servants, employed in the Armed Forces, and employed in autonomous/semi-autonomous statutory bodies/organizations and companies etc. which were owned/controlled/governed by the Federal and/or Provincial Governments---Persons who were dual nationals were essentially citizens of Pakistan who were additionally also citizens of any of the other countries, the citizenship of which was allowed in terms of S.14(3) of the Pakistan Citizenship Act, 1951---No restriction was provided in the Constitution for persons having dual citizenship from being employed in the service of Pakistan---Since persons having dual citizenship were citizens of Pakistan, they fulfilled the requirements for employment as Federal and Provincial civil servants under the applicable rules as well as enrolment in the Army, Air Force and Navy under the applicable Acts---However with respect to the armed forces (military, naval and air forces and their allied departments), the Secretary, Ministry of Defense, had informed the Supreme Court that recruitment of dual nationals was not permitted therein for which there existed relevant instructions/policies of the Army, Air Force and Navy, and any dual nationals were required to surrender their foreign nationality prior to enrolment for induction in the armed forces of Pakistan---No general prohibition existed against dual nationals being employed by or in autonomous/semi-autonomous statutory bodies/ organizations and companies etc. which were owned/controlled/ governed by the Federal and/or Provincial Governments---Certain restrictions could however exist in the specific statute, law, rule or constitutive document applicable to each body which would have to be examined on a case-to-case basis---Supreme Court directed the Secretary, Ministry of Defense, to continue the exercise to ascertain whether any dual nationals had been recruited in the armed forces on the basis of misdeclaration, concealment or non-disclosure and requisite action be taken in accordance with law by the concerned authority---Matter was disposed of accordingly.

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

----S. 11---National Database and Registration Authority (Pakistan Origin Card) Rules, 2002, R.17(1)---Foreigner's Order, 1951, S.10---Constitution of Pakistan, Arts. 244, 260(1) & Third Sched.---Pakistan Army Act (XXXIX of 1952), S.10---Pakistan Air Force Act (VI of 1953), S.12---Pakistan Navy Ordinance (XXXV of 1961), S.10---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.19(1)---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.13---Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, R.11(1)---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, R.9(4)---Persons not citizens of Pakistan but having a Pakistan origin and possessing Pakistan Origin Card ("POC")---Whether such persons could legally be employed in the service of Pakistan; employed as civil servants, employed in the Armed Forces, and employed in autonomous/semi-autonomous statutory bodies/organizations and companies etc. which were owned/controlled/governed by the Federal and/or Provincial Governments---General permission of working in Pakistan that foreigners had (subject to work permit requirements) was retained by those foreigners of Pakistan origin who held POC---Federal Government (till date) had not exercised its power under S.10(2) of the Foreigner's Order 1951 to invoke the prohibition on employment (on foreigners) in any undertaking of the Government---Accordingly, at present such concession applied to Federal and Provincial civil servants or persons who were of Pakistan origin and were employed as Federal or Provincial civil servants---While there was no prohibition in the Constitution on persons of Pakistan origin enrolling in the Pakistan Armed Forces, however, by virtue of the respective Acts governing the Pakistan Armed Forces, such persons shall not, except with the permission of the Federal Government, enroll in the Army, Air Force or Navy---Additionally, any person enrolled in the Armed Forces shall be required to take an oath as specified in Art. 244 read with the Third Sched. of the Constitution---No general prohibition existed for persons of Pakistan origin from being employed by or in autonomous/semi-autonomous statutory bodies/organizations and companies etc. which were owned/controlled/governed by the Federal and/or Provincial Governments---Restrictions may apply generally to certain kinds of employment, irrespective of legal status/ownership/ control of the employer (e.g. by virtue of S.10 of the Foreigner's Order, 1951)---Certain restrictions could exist in the specific statute, law, rule or constitutive document applicable to each body which would have to be examined on a case-to-case basis---Supreme Court directed that the relevant authorities, including the Ministry of Interior, the Directorate General of Passports and Immigration, National Database and Registration Authority (NADRA) and Board of Investment shall review their existing practice and procedures and facilitate the issuance of visa/work permits to all those POC holders who required the same; that as this would affect all the POC holders who were currently working in Pakistan without a visa/work permit, such persons shall apply for the same and the Ministry of Interior shall decide the applications in accordance with law within a period of two months, after which the law shall take its own course; that alternatively, the Federal Government may in conjunction with NADRA consider amending R.17(1) of the National Database and Registration Authority (Pakistan Origin Card) Rules, 2002 to reflect the correct position of the law allowing POC holders to work in Pakistan by virtue of their POC divesting them of any requirement to separately apply for a work visa/permit as foreigners of non-Pakistani origin were required to, and that the Federal Government was to take a final decision in such regard within one month from the issuance of present order---Matter was disposed of accordingly.

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

----Ss. 5(4)(b), 8, 11, 17(3) & 44---National Database and Registration Authority (Pakistan Origin Card) Rules, 2002, R. 17(1)---Rule 17(1) of the National Database and Registration Authority (Pakistan Origin Card) Rules, 2002, validity of---Question as to whether R.17(1) was valid as it provided certain substantive rights which generally ought to be contained in the statute and not in the rules---National Database and Registration Authority (Pakistan Origin Card) Rules, 2002 ["POC Rules"] had been framed in exercise of the powers conferred by S. 44 of the National Database and Registration Authority Ordinance, 2000 read with clause (b) of subsection (4) of Ss. 5, 8 & 11 and sub-section (3) of S.17 thereof---Said provisions of the Ordinance, in particular S.8(2) thereof, authorized the Federal Government to frame rules to provide such class of persons required to be registered under the said Ordinance, for present purposes eligible foreigners of Pakistan origin or eligible family members, with any right, interest, privilege, benefit, reward or other advantage (tangible or intangible) available under law of Pakistan---Framing of the 'POC Rules' 2002 including R.17(1) thereof conferring substantive rights onto certain persons was, thus, a valid exercise of power by the Federal Government.

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

----Ss. 10 & 11---Pakistan Citizenship Act (II of 1951), S. 14(3) --- Dual nationals---Section 11 of the National Database and Registration Authority Ordinance, 2000 authorizing NADRA to issue Pakistan Origin Cards (POC) to dual nationals---Legal anomaly---Dual nationals were, for all intents and purposes, citizens of Pakistan according to the Pakistan Citizenship Act, 1951---Dual nationals were issued National Identity Cards for Overseas Pakistanis (NICOP) which were identical to the regular National Identity Cards (NICs) issued to those who held only citizenship of Pakistan---All citizens of Pakistan, resident or non-resident (the latter including dual nationals under S.14(3) of the Pakistan Citizenship Act, 1951) were to be issued NICs and holders of such cards were to enjoy the same rights, privileges and benefits, etc. being citizens of Pakistan---In such circumstances S.11 of the National Database and Registration Authority Ordinance, 2000 authorizing NADRA to issue POC to dual nationals by mentioning the phrase "such prescribed class of citizens with dual nationality" created an anomaly---Supreme Court directed the Federal Government to reconsider S.11 of the Ordinance in light of the present anomaly and remove the contradictions arising therefrom in the law---Matter was disposed of accordingly.

(f) Government Servants (Marriage with Foreign Nationals) Rules, 1962---

----Rr. 2(a) & 3---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 19(2)---Punjab Civil Servants (Restriction on Marriages with Foreign Nationals) Rules, 2011, Rr. 3 & 4---Sindh Civil Servants (Restriction on Marriage with Foreign Nationals) Rules, 1982, R.2---Government Servants (Restrictions on Marriages with Foreign Nationals) Rules, 1963, Rr. 3 & 4---Balochistan Government Servants (Marriage with Foreign Nationals) Rules, 2011, R.3---Pakistan Citizenship Act (II of 1951), S. 14(3)---Persons whose spouses were dual nationals i.e. citizens of Pakistan and also citizens of another country---Such persons did not have any restrictions in terms of their employment as a Federal or Provincial civil servant or enrolment in the Army, Air Force or Navy---Since spouses of such persons, being dual nationals, were citizens of Pakistan, they would not be considered to be "foreign nationals" within the meaning of the relevant rules.

(g) Government Servants (Marriage with Foreign Nationals) Rules, 1962 ---

----Rr. 2(a) & 3---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 19(2)---Punjab Civil Servants (Restriction on Marriages with Foreign Nationals) Rules, 2011, Rr. 3 & 4---Sindh Civil Servants (Restriction on Marriage with Foreign Nationals) Rules, 1982, R. 2---Government Servants (Restrictions on Marriages with Foreign Nationals) Rules, 1963, Rr.3 & 4---Balochistan Government Servants (Marriage with Foreign Nationals) Rules, 2011, R. 3---Persons whose spouses were foreigners (of Pakistan or non-Pakistan origin), i.e. not citizens of Pakistan---Certain restrictions were applicable on such persons in terms of their employment as a Federal or Provincial civil servant---In case of the Federation, a government servant who married or promised to marry a foreign national shall be guilty of misconduct and render himself liable to any of the major penalties under the Government Servants (Efficiency and Discipline) Rules, 1973, unless prior permission of the Federal Government had been sought to marry or promise to marry a foreign national of any country recognized by Federal Government---For Punjab, no person, who had married a foreign national shall be appointed to a post unless such restriction had been relaxed by the Provincial Government in case of a person who had married a citizen of India or Bangladesh---Furthermore, a government servant who married or promised to marry a foreign national shall be guilty of misconduct and shall be liable to any of the major penalties under the Punjab Employees (Efficiency, Discipline and Accountability) Act, 2006 unless prior permission of the Government was sought to marry or promise to marry a foreign national of any country recognized by the Federal Government for such purpose---For Sindh, a civil servant who married or promised to marry a foreign national shall be guilty of misconduct and rendered himself liable to any of the major penalties specified in the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, unless prior permission of the Provincial Government was sought to marry or promise to marry a foreign national of any country recognized by Federal Government---In case of Khyber Pakhtunkhwa, a government servant may, with the prior permission of Government marry or promise to marry a person who was a citizen of India or Bangladesh---For Balochistan, a Government servant who married or promised to marry a foreign national shall be guilty of misconduct and rendered himself liable to removal from Service under the Balochistan Employees' Efficiency and Discipline Act, 2011 or any other law/rules for the time being in force, unless prior permission of the Provincial Government was sought to marry or promise to marry a foreign national of any Country recognized by Federal Government---Furthermore there did not appear to be any restriction on persons who were enrolled in the Army, Air Force or Navy and whose spouses were foreigners (of Pakistani or non-Pakistani origin), i.e. not citizens of Pakistan---However, if there were any internal notifications, office memorandums of SOPs issued by the competent authority providing for certain restrictions in such regard then thosey shall be accordingly applicable.

(h) National Database and Registration Authority (Pakistan Origin Card) Rules, 2002---

----R. 4(5)---National Database and Registration Authority Ordinance (VIII of 2000)---S. 44---Pakistan Origin Cards ("POC") issued to foreign spouses of citizens of Pakistan---Pre-requisite---Condition of five years of marriage---Legality---According to R.4(5) of the National Database and Registration Authority (Pakistan Origin Card) Rules, 2002 ["the Rules"] as originally promulgated, foreign spouses of citizens of Pakistan were allowed to be issued POC---However, the said R.4(5) was amended vide notification No.4/2/2012-NADRA dated 30.12.2015 according to which issuance of POC to foreign spouses of Pakistani citizens was discontinued---Subsequently considering the immense difficulties faced by foreign spouses of citizens of Pakistan the Ministry of Interior forwarded a summary for the Cabinet (dated 20.02.2018) recommending therein withdrawal of the NADRA notification along with restoration of the corresponding R.4(5) and other rules---Cabinet approved said proposal and resultantly the said NADRA notification was withdrawn, and the rules were restored to their previous/original position---Despite such development the Ministry of Interior (vide letter No.4/2/2012- NADRA dated 08-03-2018) introduced the eligibility condition of five years of marriage (for issuance of POC to foreign spouses) in violation of the approval of the Federal Government (Cabinet) which had stipulated that the rules had been restored to the previous/original position---Since the power to make rules laid only with the Federal Government as per S.44 of the National Database and Registration Authority Ordinance, 2000, the introduction of the condition of five years marriage by the Ministry of Interior was ultra vires, and therefore set aside by Supreme Court.

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

----S. 14(3)---Constitution of Pakistan, Art.260(1)---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.19(1)---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 13---Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, R. 11(1)---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, R. 9(4)---Dual nationals or persons whose spouses were dual nationals or persons whose spouses were foreign nationals (including those of Pakistan origin)---Employment in Government service---Employment in autonomous/semi-autonomous statutory bodies/organizations and companies, which were owned/controlled/ governed by the Federal and/or Provincial Governments---Supreme Court presented certain proposals with regard to dual nationals and persons whose spouses were dual nationals or persons whose spouses were foreign nationals that were to be considered by the Parliament.

Following are the proposals presented by the Supreme Court with regard to dual nationals or persons whose spouses were dual nationals or whose spouses were foreign nationals that were to be considered by the Parliament.

Dual nationals fell within the definition of citizens (of Pakistan). It was for the Federal and Provincial Governments to consider whether they should:-

i. Formulate negative list(s) of posts within the Government service to which citizens holding dual nationalities or whose spouses were dual nationals, should not normally be appointed for reasons of safeguarding national security and/or vital national interest, except with the permission of the respective Cabinets;

ii. Place before the Parliament and the respective Provincial Assemblies at the end of each financial year list(s) of Government servants who were dual nationals and/or married to dual nationals, and the posts held by them;

iii. Formulate negative list(s) of posts (decision-making/top managerial posts perhaps) within autonomous/semi-autonomous statutory bodies/organizations and companies etc. which were owned/controlled/governed by the Federal and/or Provincial Governments, to which citizens holding dual nationalities or whose spouses were dual nationals, should not normally be appointed for reasons of safeguarding national security and/or vital national interest, except with the permission of the respective organization or parent department; and

iv. Place before the respective organizations or parent departments at the end of each financial year list(s) of employees of autonomous/semi-autonomous statutory bodies/organizations and companies etc. which were owned/controlled/governed by the Federal and/or Provincial Governments who were dual nationals and/or married to dual nationals, and the posts held by them. With regard to the government servants whose spouses possessed nationalities other than that of Pakistan, i.e. who were foreigners (including those of Pakistan origin), the respective Governments may consider that the proposals mentioned above should also apply to the concerned officers.

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

----S. 11---National Database and Registration Authority (Pakistan Origin Card) Rules, 2002, R. 17(1)---Foreigner's Order, 1951, S. 10---Constitution of Pakistan, Art.260(1)---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 19(1)---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.13---Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, R. 11(1)---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, R. 9(4)---Foreigners, including those of Pakistani origin who held Pakistan Origin Cards ("POC")---Employment in Government service---Employment in autonomous/semi-autonomous statutory bodies/ organizations and companies, which were owned/controlled/governed by the Federal and/or Provincial Governments---Supreme Court presented proposals with regard to foreigners, including those of Pakistan origin who held Pakistan Origin Cards that were to be considered by the Parliament.

Following are the proposals presented by the Supreme Court with regard to foreigners, including those of Pakistan origin who held Pakistan Origin Cards that were to be considered by the Parliament.

With respect to foreigners, which included those of Pakistan origin who held Pakistan Origin Cards (POC), it was for the Federal and Provincial Governments to consider whether they should:-

i. Impose a blanket ban on employment of non-citizens, i.e. foreigners (of Pakistan or non-Pakistan origin) on employment within the Government service;

ii. The Federal and Provincial Governments should, preferably in conjunction with each other, develop criteria and standard operating procedures with regard to the employment of non-citizens within the Government service where relaxation from the general prohibition was deemed necessary in the public interest. The employment of non-citizens should be subject to approval of the respective Cabinets;

iii. Formulate negative list(s) of posts within autonomous/semi-autonomous statutory bodies/organizations and companies etc. which were owned/controlled/governed by the Federal and/or Provincial Governments, to which non-citizens should not normally be appointed for reasons of safeguarding national security and/or vital national interest, except with the permission of the respective organization or parent department; and

iv. Place before the respective organizations or parent departments at the end of each financial year list(s) of employees of autonomous/semi-autonomous statutory bodies/organizations and companies etc. which were owned/controlled/governed by the Federal and/or Provincial Governments who are non-citizens, and the posts held by them.

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

----S. 14(3)---Constitution of Pakistan, Art. 260(1)---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.19(1)---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.13---Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, R. 11(1)---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009, R.9(4)---Persons employed in Government service or in an autonomous/semi-autonomous statutory body/organization and company etc. owned/controlled/governed by the Federal and/or Provincial Governments---Acquisition of foreign nationality or permanent residence of a foreign country by such persons during employment---Supreme Court observed that in many cases (but not all) the intention to acquire foreign nationality or permanent residence of a foreign country, prima facie indicated an intention to securely dispatch ill-gotten gains procured during (Government) service and to relocate their families and/or themselves during service and/or after retirement; that such persons deserved no leniency, and that after determination by the competent authority, such officials must be given a deadline of either rescinding their foreign nationalities obtained during service or resign from service immediately---Supreme Court directed that the Federal and/or Provincial Governments should develop criteria and standard operating procedures requiring disclosure of the intent to seek such foreign nationalities and permanent residence permits, etc., and adopt methods to check such instances and enforce penalties for nondisclosure; that such criteria and standard operating procedures could possibly be incorporated into the existing efficiency and discipline rules/regulations etc. by way of amendment or be adopted independently.

In attendance:

Sajid Ilyas Bhatti, Addl. A.G.P. (Assisted by Barrister Minaal Tariq).

Tariq Mehmood Jehangiri, A.G. Islamabad.

Qasim Ali Chohan, Addl.A.G.,Punjab.

Shehryar Qazi, Addl. A.G., Sindh.

Zahid Yousaf Qureshi, Addl. A.G. KPK.

Ayaz Swati, Addl., A.G., Balochistan.

Sajid Ahmed Abro, Secretay Services, Sindh.

Kashif Bara, Dy. Secretary Services, Punjab.

M. Bashir Memon, D.G., FIA.

Dr. M. Rizwan, Director Immigration, FIA.

Qaiser Masood, Addl. Dir. Law, FIA. (For FIA).

Zulfiqar Ali, D.G. Projects, NADRA.

Mujahid Ali Khan, A.D. NADRA.

Umar Ali Khan, A.D. NADRA.

(For NADRA)

On Court's Notice:

Waqar A. Sheikh, Advocate Supreme Court.

Dr. Michele Tariq, Health Deptt. Punjab.

Faisal Shafait, NUST.

Zakir Hussain NUST.

Muhammad Fahim, NUST.

Dr. M. Yousaf Miraj, Health Deptt. Punjab.

Dr. Ashma Khan, Health Deptt. Punjab.

Dr. Naeem Dilawar, Consultant, Labour Deptt. Punjab.

Dr. Ali Raza Khan, Health Deptt. Punjab.

Ms.Farzana Akram (Education Deptt. Punjab).

Adnan Mehmood (NAB).

Sardar Tariq Farid Gopang, Advocate Supreme Court.

Barrister Talha Alizai, Advocate Supreme Court.

Tariq Aziz, Advocate-on-Record (For PARCO)

Mir Afzal Malik, Advocate Supreme Court.

(For Dr. Jamshed Iqbal, Tahir Aziz Khan, Ms. Nabah Ali) (COMSATS).

Amir Iqbal Basharat, Advocate Supreme Court.

Zahoor ul Haq Chishti, Advocate Supreme Court.

(For Dr. M. Shafique).

Ch. Akhtar Ali Advocate-on-Record.

(For Ms. Meena Kharal).

Shahid Khalid, Legal Advisor.

Raja Abdul Ghafoor, Advocate on Record.

(For HEC)

Amici curiae:

Shahid Hamid, Senior Advocate Supreme Court.

Shahzad Ata Elahi, Advocate Supreme Court.

P L D 2019 Supreme Court 183

Present: Mian Saqib Nisar, C.J., Qazi Faez Isa and Syed Mansoor Ali Shah, JJ

HUMAN RIGHTS CASE No.14959-K of 2018: In the matter:

Human Rights Case No. 14959 of 2018, decided on 1st January, 2019.

(In the matter regarding disposal of infectious wastes in the Province of Khayber Pakhtunkhwa)

Per Syed Mansoor Ali Shah, J; agreeing with Qazi Faez Isa, J.

Supreme Court Rules, 1980---

----0. XI---Constitution of Pakistan, Art. 184(3)---Human rights case Constitution/re-constitution of Bench---Administrative powers of the Chief Justice---Scope---Order XI of Supreme Court Rules, 1980 provided for administrative powers of the Chief Justice to constitute benches---Once a bench was constituted, cause list was issued and the bench was assembled for hearing cases, the matter regarding constitution of the bench went outside the pale of administrative powers of the Chief Justice and rested on the judicial side, with the bench---Any member of the bench may, however, recuse to hear a case for personal reasons or may not be available to sit on the bench due to prior commitments or due to illness---Bench may also be reconstituted if it was against the Rules and required a three-member bench instead of two; in such eventualities the bench passed an order to place the matter before the Chief Justice to nominate a new bench---In the absence of a recusal by a member of the Bench, any amount of disagreement amongst the members of the Bench, on an issue before them, could not form a valid ground for reconstitution of the Bench (by the Chief Justice)---Any reconstitution of the Bench on such ground would impinge on the constitutional value of independence of judiciary---Reconstitution of a bench while hearing a case, in the absence of any recusal from any member on the bench or due to any other aforementioned reason, would amount to stifling the independent view of the judge---Any effort to muffle disagreement or to silence dissent or to dampen an alternative viewpoint of a member on the bench, would shake the foundations of a free and impartial justice system, thereby eroding the public confidence on which the entire edifice of judicature stood---Reconstitution of the Bench by the Chief Justice, in the present case, was unwarranted and unprecedented and undermined the integrity of the system, therefore, the same was held to be void and non-est.

Ahron Barak, The Judge in a Democracy, Princeton University Press, p.109-110 ref.

In attendance:

Abdul Latif Yousafzai, A.G. Khyber Pakhtunkhwa.

Azam Khan, Chief Secretary, Khyber Pakhtunkhwa.

Abid Majeed, Secretary Health, Khyber Pakhtunkhwa.

P L D 2019 Supreme Court 189

Present: Qazi Faez Isa, Sajjad Ali Shah and Syed Mansoor Ali Shah, JJ

SABIR IQBAL---Petitioner

Versus

CANTONMENT BOARD, PESHAWAR through Executive Officer and others---Respondents

Civil Petition No.330-P of 2013, decided on 4th January, 2019.

(On appeal from the judgment of Peshawar High Court, Peshawar dated 15-5-2013, passed in W.P. No.2211-P of 2012).

(a) Pakistan Cantonment Servants Rules, 1954---

----R. 50---Removal from service---Legal infirmities in disciplinary proceedings---Order of removal without jurisdiction---Petitioner was serving as a Telephone Operator (BPS-02) in the Cantonment Board---Department initiated disciplinary proceedings against the petitioner for absenting himself from work---Inquiry officer recommended that 1/4th amount from the monthly salary of the petitioner be deducted as fine and he be also given last/final chance and in case he did not improve his behavior in future he be punished strictly---Authorized officer, however, removed the petitioner from service---Held, that under R.50 of the Pakistan Cantonment Servants Rules, 1954, the Authority of the petitioner was the President, Cantonment Board and the Authorized Officer was the Cantonment Executive Officer (legal position as it stood prior to the amendments made in R.50 through SRO 205(1)/2012 dated 20th February, 2012)---Procedure of inquiry under the said Rule was that if a major penalty was to be imposed the Authorized Officer was required to forward the case to the Authority along with charge and statement of allegations---In the present case, the impugned order of removal from service had been passed by the Authorized

Officer and had not been forwarded to the Authority---Additionally, the inquiry officer had recommended deduction of salary (1/4th amount from monthly salary) as a fine for absence from duty on and giving the petitioner last chance to improve himself---Authorized Officer, if disagreeing with the inquiry officer, should have issued fresh notice to the petitioner and given reasons for his disagreement and justification for visiting the petitioner with a graver penalty---With said legal infirmities in the disciplinary proceedings, the order of removal of the petitioner was totally without jurisdiction---Order of removal of the petitioner from service and the impugned order passed by the High Court, upholding the removal of the petitioner from service was set aside and the petitioner was reinstated into service without back benefits, as he had categorically stated in court that he did not wish to seek back benefits---Petition for leave to appeal was converted into appeal and allowed accordingly.

Habibullah Bhutto v. Collector of Customs 2011 SCMR 1504 ref.

(b) Constitution of Pakistan---

----Arts. 184(3) & 199---Civil Service---Disciplinary proceedings---Executive discretion of authority---Judicial review --- Proportionality, suitability and necessity, tests of---Scope---Court could examine and judicially review the executive discretion exercised by the authorized officer on the ground of proportionality---Alongside reasonableness, proportionality was a central standard directing the action of the executive branch---Disproportionate act that infringed upon a human right was an illegal act---Court, which guarded the legality of the acts of the executive branch, performed judicial review over these acts and examined whether they fulfilled the tests of proportionality---Proportionality was a standard that examined the relationship between the objective the executive branch wished to achieve, which had the potential of infringing upon a human right, and the means it had chosen in order to achieve that infringing objective---Fiduciary duty, from which the administrative duty of fairness and administrative reasonableness were derived, demanded administrative proportionality as well---Courts would quash exercises of discretionary powers in which there was not a reasonable relationship between the objective which was sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts were wholly out of proportion to the relevant misconduct---Administrative measure must not be more drastic than necessary---Standards of proportionality and unreasonableness were inextricably intertwined---Unreasonableness contained two elements of proportionality when it required the weight of relevant considerations to be fairly balanced and when it forbade unduly oppressive decisions---Under the first element, proportionality was a test requiring the decision maker to maintain a fair balance, and under this category the courts evaluated whether manifestly disproportionate weight had been attached to one or other considerations relevant to the decision---Second element was that the courts considered whether there had been a disproportionate interference with the claimants rights or interests---More sophisticated version of proportionality provided for a structured test, where under the courts asked first whether the measure, which was being challenged, was suitable to attaining the identified ends (the test of suitability)---Suitability here included the notion of "rational connection" between the means and ends---Next step asked whether the measure was necessary and whether a less restrictive or onerous method could have been adopted (the test of necessity - requiring minimum impairment of the rights or interest in question).

A. Barak, The Judge in a Democracy, Princeton, p.225 and Halsbury's Laws of England, Vol 1(1), 4th Edition, Para 78 ref.

(c) Civil service ---

----Removal from service---Absence from duty for a day---Executive discretion---Proportionality, suitability and necessity, tests of---Scope---Petitioner was serving as a Telephone Operator (BPS-02) in the Cantonment Board---Department initiated disciplinary proceedings against the petitioner for absenting himself from work---Inquiry officer recommended that 1/4th amount from the monthly salary of the petitioner be deducted as fine and he be also given last/final chance and in case he did not improve his behavior in future he be punished strictly---Authorized officer, however, removed the petitioner from service---Held, applying the test of proportionality to the executive discretion exercised in the present case, the order of the authorized officer, failed to maintain fair balance by removing a person from service because he absented himself from duty for a day---Executive discretion also failed the structured test of proportionality including the test of suitability and test of necessity requiring minimum impairment of the right of the petitioner---Order of removal of the petitioner was set aside and the petitioner was reinstated into service without back benefits, as he had categorically stated in court that he did not wish to seek back benefits---Petition for leave to appeal was converted into appeal and allowed accordingly.

Ghulam Nabi, Advocate Supreme Court and M. Ajmal Khan, Advocate-on-Record alongwith petitioner in person for Petitioner.

Ihsan Ullah, Advocate Supreme Court and Haji M. Zahir Shah Advocate-on-Record for Respondent No.1.

Syed Hamid Ali Shah, Advocate Supreme Court and M. Zahoor Qureshi, Advocate Supreme Court for Respondent No.2.

P L D 2019 Supreme Court 196

Present: Ejaz Afzal Khan, Sh. Azman Saeed and Ijaz ul Ahsan, JJ

APPLICATION BY HUSSAIN NAWAZ SHARIF: In the matter of

C.M.A. No.3986 in C.M.A. No.2939 of 2017 in Constitutional Petition No.29 of 2016 etc. decided on 20th June, 2017.

Criminal Procedure Code (V of 1898)---

----Ss. 161 & 162---Examination/statement of witnesses before police---Audio and video recording---Permissibility---Use of audio or video devices to facilitate the recording of statements under S.161 or S.162, Cr.P.C could not be said to have been prohibited by any interpretation of the said provisions when the finished product to be used in the Court to confront the witness was the statement reduced to writing and not its audio or video recording---In terms of Ss. 161 & 162, Cr.P.C (in their current form) audio or video recording of statements of witnesses could not be admitted into evidence for the proof of such statement till the law was amended, but its use to facilitate recording of such statement could not be discouraged on the basis of a pedantic interpretation of Ss.161 & 162 Cr.P.C.---Supreme Court observed that in the age of computer where almost everything was communicated and even business of every type was transacted online, emphasis on the form of doing a thing as it used to be done in the year 1898 would amount to putting at naught the dynamics of scientific and technological advancements which had not only liberated man from exhausting labour but also made things easier---Application was dismissed accordingly.

P. Sirajuddin and others v. State of Madras and others 1970 (1) SCC 595; Ch. Razik Ram. v. Ch. Jaswant Singh Chouhan and others (1975) 4 SCC 769; Tahsildar Singh and another. v. State of U.P. AIR 1959 SC 1012 (V 46 C 137) and Pakala Narayana Awami v. Emperor AIR 1939 PC 47 distinguished.

The State of Rajasthan v. Teja Ram and others (1999) 3 SCC 507 ref.

In attendance:

Kh. Harris Ahmad, Senior Advocate Supreme Court.

Wajid Zia Head of JIT.

Aamir Aziz Member, JIT.

Bilal Rasool, Member, JIT.

Irfan Naeem Mangi, Member, JIT.

Brig. M. Nauman Saeed, Member, JIT.

Brig. Kamran Khurshid, Memebr, JIT.

Ashtar Ausaf Ali, A.G. for Pakistan.

Rana Waqar, Addl. A.G.

P L D 2019 Supreme Court 201

Present: Mian Saqib Nisar, C.J., Gulzar Ahmed, Sh. Azmat Saeed, Mushir Alam, Umar Ata Bandial, Ijaz ul Ahsan and Mazhar Alam Khan Miankhel, JJ

SUO MOTU CASE NO.8 OF 2018 AND CIVIL MISC. APPLICATION NO.649-L OF 2018: In the matter of

Suo Motu Case No.8 of 2018 regarding dua Nationality of Parliamentarians and Civil Misc. Application No.649-L of 2018 impleadment application by Shahzad Ali Khan in Suo Motu Case No.8 of 2018, decided on 17th October, 2018.

(a) Interpretation of statutes ---

----Words 'and' and 'or' occurring in legislation---Scope---In common parlance word 'and' was used in the conjunctive sense, while word 'or' was employed in the disjunctive sense---In certain legislative instruments, the words 'and' and 'or' may be interchangeable---However such a course of action was only permissible in order to give effect to the clear and obvious intention of the legislature or to avoid absurdity, unreasonableness or redundancy.

Maxwell on Interpretation of Statutes 12th Edn. p.232; Bindra's Interpretation of Statutes 7th Edn., p.537; Farooq Ahmad Khan Leghari and 37 othes v. Sh. Muhammad Rashid, Chairman Federal Land Commission and another PLD 1981 Lah. 159; Khadim Hussain and another v. The Additional District Judge, Faisalabad and others PLD 1990 SC 632; Salehon and others v. The State PLD 1969 SC 267; Federation of Pakistan v. Hazoor Bukhsh and 2 others PLD 1983 FSC 255; Farooq Ahmad Khan Leghari and 37 others v. Sh. Muhammad Rashid, Chairman, Federal Land Commission and another PLD 1981 Lah. 159; Muhammad Hussain v. The Additional District Judge, Lahore and others PLD 1966 (W.P.) Lah. 128; Muhammad Amin v. Sh. Jamshed Ali PLD 1963 (W.P.) Lah. 523, Badsha Mian v. The State PLD 1966 Dacca 1; Chief Inspector of Factories, U.P. v. V.K. Modi AIR 1952 Allahabad 804; The King v. Governor of Brixton Prison Ex parte Bidwell (1937) 1 KB 305 and R. v. Oakes (1959) 2 All E.R. ref.

(b) Constitution of Pakistan---

----Art. 63(1)(c)---Pakistan Citizenship Act (II of 1951), S. 14(3)---Disqualification for membership of Parliament---Person ceasing to be a citizen of Pakistan---Citizen of Pakistan acquiring the nationality of or also a citizen of another country other than a country covered by the provisions of S.14(3) of the Pakistan Citizenship Act 1951, or the notifications issued thereunder---Such person automatically ceased to be a citizen of Pakistan, and therefore, could not be elected or chosen as a Member of Parliament or hold such office in view of the Art.63(1)(c) of the Constitution.

(c) Interpretation of Constitution---

----Redundancy---Interpretation which rendered a provision of the Constitution redundant, could not be attributed to the framers of the Constitution.

Malik Shakeel Awan v. Sheikh Rasheed Ahmed and 21 others PLD 2018 SC 643; Justice Shaukat Aziz Siddiqui and others v. Federation of Pakistan through Secretary Law and Justice, Islamabad and others PLD 2018 SC 538; Sami Ullah Baloch and others v. Abdul Karim Nousherwani and others PLD 2018 SC 405; Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189; District Bar Association, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Application by Abdul Rehman Farooq Pirzada's case PLD 2013 SC 829; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 and Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32 ref.

(d) Constitution of Pakistan---

----Art. 63(1)(c)---Pakistan Citizenship Act (II of 1951), S. 14(3)---Disqualification for membership of Parliament---Dual nationality---Person ceases to be a citizen of Pakistan, "or" acquires the citizenship of a foreign State [Article 63(1)(c) of the Constitution]---Word "or"---Interpretation---Word 'or' as used in Art. 63(1)(c) of the Constitution, had been employed disjunctively with the effect that lack of qualification(s) under the said provision catered for two separate legal situations; firstly, where a person who once being a citizen of Pakistan ceased to be a citizen of Pakistan (e.g under S.14 of the Pakistan Citizenship Act, 1951), or secondly became a dual national by acquiring the citizenship of a foreign State [as was permissible under S.14(3) of the Pakistan Citizenship Act, 1951]---Latter disqualification i.e. becoming dual national by acquiring citizenship of a foreign State needed to be interpreted on stand alone basis as a separate category of disqualification---Lack of qualification was the consequence of gaining, obtaining or acquiring a legal status i.e. citizenship of a foreign State---As long as such legal status i.e. citizenship of a foreign State held the field, the disability resulting therefrom i.e. lack of qualification to be elected or chosen or being a Member of Parliament would also exist. Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretry Law and others PLD 2012 SC 1089; Dr. Muhammad Tahor-ul-Qadri v. Federation of Pakistan through Seceretary, Ministry of Law, Islamabad and others PLD 2013 SC 413 and Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others 2013 SCMR 1246 ref.

(e) Words and phrases---

----"Acquire"---Meaning. Words and phrases, Permanent edn. , West Publishing Co. Vol.1A, p.556-557; Black's Law Dictionary, 5th Edn. by the Publisher's Editorial Staff, p.23 and Legal Terms and Phrases, Judicially defined from 1947-2012 by Ilyas Khan, 2013 Edn. at p.38 ref.

(f) Constitution of Pakistan---

----Art. 63(1)(c)---Pakistan Citizenship Act (II of 1951), S. 14(3)---Disqualification for membership of Parliament---Dual nationality---Renunciation of foreign nationality/citizenship---Scope---Where a citizen of Pakistan acquired the citizenship of a foreign State, he shall not be qualified to be elected or chosen or being a Member of Parliament until and unless such legal status i.e. being a citizen of a foreign State was obliterated or extinguished---Such disqualification would only be removed when the citizenship of the foreign State was renounced or relinquished and such process of relinquishment or renouncement was completed and concluded---Mere initiation of the process of relinquishment was not sufficient as during the course of such process, the dual national did not cease to be a citizen of a foreign State and the disqualification existed.

Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others PLD 2012 SC 1054; Dr. Ahmed Ali Shah and others v. Syed Mehmood Akhtar Naqvi and others 2018 SCMR 1276; Zahid Iqbal v. Hafiz Muhammad Adnan and others 2016 SCMR 430 and Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others 2013 SCMR 1246 ref.

(g) Constitution of Pakistan---

----Art. 63(1)(c)---Pakistan Citizenship Act (II of 1951), S. 14(3)---Elections Act (XXXIII of 2017), Ss. 110 & 156(1)(b)---Disqualification for membership of Parliament---Dual nationality---Critical date for being qualified or not being qualified to be a Member of Parliament was the date when the nomination papers were filed---Senator in question filed her nomination papers on a date when she was a dual national and the alleged relinquishment of her foreign nationality was still under process, hence, she was not qualified to be elected or chosen as a member of Senate and her nomination papers were invalid and liable to be rejected---Subsequent approval of the Senator's renunciation of foreign nationality could not be given retrospective effect to cure the defect of not being qualified at that time of filing nomination papers---On account of having dual nationality on the relevant date, Senator in question was disqualified under the provisions of Art. 63(1)(c) of the Constitution, therefore, she had effectively ceased to be a Member of the Senate---Supreme Court directed the Election Commission to denotify the Senator in question and take steps for the purposes of re-election on the seat within the time provided by the law.

Waqas Akram v. Dr. Muhammad Tahirul Qadri and others 2003 SCMR 145; Atique Rehman v. Haji Khan Afzal and others 2007 SCMR 507 and Zahid Iqbal v. Hafiz Muhammad Adnan and others 2016 SCMR 430 ref.

In attendance:

Syed Nayyar Abbas Rizvi, Addl. A.G.P. along with Barrister Minaal Tariq.

Syed Ali Zafar, Advocate Supreme Court (For Haroon Akhtar).

Aleem Baig Chughtai, Advocate Supreme Court (For Mrs. Nuzhat Sadiq).

Hamid Khan, Senior Advocate Supreme Court and Rashid Hanif, Advocate Supreme Court (For Ch. Muhammad Sarwar).

Ahmer Bilal Soofi, Advocate Supreme Court (For Ms. Saadia Abbasi).

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court (in C.M.A. 649-L/2018).

Bilal Hassan Minto, Advocate Supreme Court (Amicus Curiae).

Muhammad Arshad, D.G. (Law) (For ECP)

P L D 2019 Supreme Court 218

Present: Mian Saqib Nisar, C.J. and Ijaz ul Ahsan, J

NATIONAL COMMISSION ON STATUS OF WOMEN through Chairperson and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary Law and Justice and others---Respondents

Constitution Petition No.24 of 2012 and Civil Petition No.773-P of 2018, decided on 16th January, 2019.

(a) Constitution of Pakistan ---

----Arts.4 & 25---Universal Declaration of Human Rights (UDHR), 1948, Arts. 7 & 8---International Covenant on Civil and Political Rights (ICCPR), 1966, Arts. 2 & 26---Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), 1979, Art.15---'Jirgas', 'panchayats', 'council of elders---Discrimination against women---Lack of access to justice and equality before law---Art.7 & 8 of Universal Declaration of Human Rights (UDHR), 1948, Art.2 & 26 of International Covenant on Civil and Political Rights (ICCPR), 1966, and Art.15 of Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), 1979, placed a responsibility on the State of Pakistan to ensure that all women in Pakistan had access to courts or tribunals, were treated equally before the law and that in civil matters identical legal capacity and opportunities were accorded to them as those accorded to men and they be treated equally in all stages of procedure in courts and tribunals---Access to justice, was both a right in itself and the means of protecting and restoring other basic human rights---Negligible representation of women before jirgas/panchayats which already mirrored a patriarchal and feudal/tribal set-up was a blatant violation of Art.2(1) of the ICCPR which enjoined upon all State Parties the duty to protect the human rights under the ICCPR regardless of social or national origin whereas Art.2(3) thereof particularly emphasized on the provision of an effective legal remedy---When these bodies (council of elders/jirgas/panchayats etc.) posing as the dispensers of justice themselves became the violators of the rights to due process and other human rights under the ICCPR, having no regard of the law, as their word, wisdom and customs alone were law, Art.26 of ICCPR stood completely ignored since in permitting such jirgas/panchayats etc. in some areas while the rest of the country was entitled to seek their legal remedies through the courts of law, unabashed discrimination was allowed on the account of sex, language, religion, national or social origin, property, birth and financial status---Supreme Court directed that jirgahs/panchayats etc. did not operate under the Constitution or any other law whatsoever to the extent that they attempted to adjudicate on civil or criminal matters, however, they may operate within the permissible limits of the law to the extent of acting as arbitration, mediation, negotiation or reconciliation forums between parties involved in a civil dispute who willingly consented to the same; that where tribal or village gatherings were held for purposes of arbitration or mediation, there should be no doubt that any settlement reached by these council of elders as arbitrators or mediators had no legal force and could only be enforced through courts of law so long as it was with regards to a civil dispute and the parties involved were willing to be bound by it; that even in such arbitrations/mediations/ reconciliation, the representation of women could not be through a male-kin if their rights were involved and they must be allowed an opportunity of personal hearing if they so desired---Petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Arts. 4, 8, 10A, 25 & 175---Universal Declaration of Human Rights (UDHR), 1948, Arts. 7 & 8---International Covenant on Civil and Political Rights (ICCPR), 1966, Arts. 2 & 26---'Jirgas', 'panchayats', 'council of elders', constitutionality of---Law prohibited any person whether as a part of a body or council called a jirga/panchayat etc., or individually, from becoming a community anointed judge or executioner on the pretext of archaic customs---Unchecked operation of informal jirgas/panchayats etc. as courts creating their own barbaric punishments and unguided methods of executing sentences amounted to acquiescence to injustice---Informal jirgas/panchayats on account of having no legal validity, were absolutely unguided in their powers and decision making, often making arbitrary and unjust decisions---Jirgas followed no precedent nor were their decisions subject to any predictability or certainty, and personal knowledge and hearsay became tools for determination of civil rights violations and criminal charges---Impending danger in allowing societal customs to override the law and jurisdiction of courts was unacceptable in a functioning democracy---Any determination by any other body such as jirga/panchayat etc. which was not bound by any legal and codal formalities was against the law enacted by the legislature and the law laid down by the Supreme Court---Parallel adjudicating bodies in the form of jirgas/panchayats etc., impinged upon the principle of separation of powers that was a vital feature of the Constitution [Art.175(3) of the Constitution]---When in the name of preservation of tradition the jirgas/panchayats etc. assumed the powers of a pillar of the State, i.e. the judiciary, they threatened the very foundations of the rule of law---What these bodies in effect preserved was the unfair social constructs in the rural areas where the word and the arbitrary decisions of the elites, and persons of influence were treated as law for and imposed upon the socially and financially weaker parties---No procedural or substantive law dictated the proceedings these bodies conducted or the decisions they issued and the so-called decision-makers themselves were not required to be well versed with the law---In the absence of any legal instrument regulating these jirgas/panchayats etc. the execution of the sentences given by them or the enforcement of the decisions made by them were illegal since those who passed these decisions trespassed the jurisdiction of the legislature and judiciary and those who illegally executed these decisions stepped into the jurisdiction of the executive---Manner in which jirgas/panchayats etc. functioned, they violated the fundamental rights (Arts.4, 8, 10A & 25) guaranteed by the Constitution; firstly, they interfered with the rights of citizens to enjoy equal protection of law and to be treated in accordance with the law due to the fact that they admittedly applied their own customary/tribal/feudal procedures and systems in the proceedings before such gatherings or councils; secondly, the decisions taken by such jirgas/panchayats etc. on the basis of customary/feudal/tribal laws were more often than not detrimental to the life, liberty, body, reputation and property of persons which (decisions) under the Constitution could not be given effect to except in accordance with law, and since the decisions given by such jirgas/panchayats were not bound by any law there was no way to ensure that gross violations of rights were prevented; thirdly, at times they also prevented or hindered persons from doing that which was not prohibited by law and/or compelled them to unwillingly commit actions which the law did not oblige them to do (for instance, hand over to the jirga/panchayat etc., persons that had been summoned or sentenced by it), fourthly with respect to Pakistan's international obligations, the jirgas/panchayats etc. decided the civil rights and obligations of, or criminal charges against a person without a fair trial and in violation of due process, both of which he was entitled to under Art.10-A of the Constitution, and fifthly persons appearing before these jirgas/panchayats etc. were neither treated with equality during the so-called trial nor were they afforded equal protection under the law and there was rampant discrimination on the basis of gender, and status quo---Supreme Court directed that since no individual or persons in the name of a jirga/panchayat or under any other name could assume the jurisdiction of a civil or criminal court without any lawful authority, any order, decision or a direction issued by any such individual or group of persons was illegal and against the spirit of the Constitution; that jirgahs/panchayats etc. did not operate under the Constitution or any other law whatsoever to the extent that they attempted to adjudicate on civil or criminal matters, however, they may operate within the permissible limits of the law to the extent of acting as arbitration, mediation, negotiation or reconciliation forums between parties involved in a civil dispute who willingly consented to the same; that where tribal or village gatherings were held for purposes of arbitration or mediation, there should be no doubt that any settlement reached by these council of elders as arbitrators or mediators had no legal force and could only be enforced through courts of law so long as it was with regards to a civil dispute and the parties involved were willing to be bound by it; that where any complaints were received with regards to danger to life, liberty or property of a person on account of the decisions of jirgas/panchayats etc., immediate action should be taken by the police by firstly substantiating the veracity of the complaint and then by taking stringent action against all those found to be involved in their convening, operation as well as those aiding in execution of their decisions; that police stations in areas where these jirgas/panchayats etc. were more common should be heavily equipped with human resource and back-up support be readily available in order to deal with large crowds if the need arose; that protection should be provided to the complainants; that confidence of the public in the police and the courts must also be increased and for such purpose the executive should provide for complaint centres or more informal means of approaching them so as to ensure that no one was deterred from seeking aid and protection of the law; that awareness should also be inculcated in the residents of the villages and tribal areas where such jirgas/panchayats etc. were prevalent, regarding their rights under the law as well as the consequences they faced if they were found involved in kangaroo courts in any way; that the print and electronic media and non-profit organizations must also play their part in promoting such awareness for upholding of rule of law---Petition was disposed of accordingly. Arumugam Servai v. State of Tamil Nadu [(2011) 6 SCC 405); Shakti Vahini v. Union of India and others AIR 2018 SC 1601; Hasnain Akhtar v. Justice of Peace 2015 YLR 2294; Muhammad Younis v. Nazar Ahmed 2013 YLR 139; Malik Muhammad Mumtaz Qadri v. The State PLD 2016 SC 17; District Bar Association Rawalpindi v. Federation of Pakistan PLD 2015 SC 401; Shiekh Riaz-ul-Haq v. Federation of Pakistan 2013 PLC (CS) 1308; Reference No.01 of 2012 PLD 2013 SC 279 and S.M. Waseem Ashraf v. Federation of Pakistan 2013 SCMR 338 ref.

(c) Constitution of Pakistan---

----Art. 4(1)---Right of individuals to be dealt with in accordance with law---Scope---Foreign citizens in Pakistan---Article 4(1) of the Constitution extended the right to enjoy the protection of law to every citizen regardless of where he was---Persons who were not citizens (of Pakistan) were also given said right while they were in Pakistan.

(d) Constitution of Pakistan---

----Arts. 4, 8, 10A & 25---'Jirgas', 'panchayats' and 'council of elders'---Settlement of disputes through honor killings for retribution and compelling women to be wed with out their consent---Such acts violated Art. 4, 10-A & 25 read with Art. 8 of the Constitution which enjoined that no custom in derogation of any fundamental right could prevail under the law.

(e) FATA Interim Governance Regulation, 2018 ---

----Preamble---Constitution of Pakistan, Arts. 4, 8, 25 175 & 203---FATA Interim Governance Regulation, 2018, vires of---Federally Administered Tribal Areas (FATA) were merged in the Province of Khyber Pakhtunkhwa (KPK) through the 25th Amendment to the Constitution---All the residents of the Province of KPK were similarly placed, and there was no rational basis on which the people of FATA could be distinguished from the people of the rest of the province of KPK---Despite now being part of the KPK Province, areas of FATA were subject to an entirely different mode of dispensation of justice i.e. FATA Interim Governance Regulation, 2018, from the rest of the Province making a prima facie case for gross discrimination in violation of Art.25 of the Constitution which guaranteed equality of all persons before the law as well as Art.4 which guaranteed the right to enjoy the protection of law and to be treated in accordance with the law as well as the principles laid down in the judgment of Government of Balochistan v. Azizullah Memon and others (PLD 1993 SC 341)---Supreme Court declared the FATA Interim Governance Regulation, 2018 as ultra vires on the touchstone of Arts. 4, 8, 25, 175 & 203 of the Constitution and directed that the Provincial Government of KPK was granted six months from the date of announcement of present judgment for the development of infrastructure to take steps to spread a uniform system of courts of ordinary jurisdiction in KPK, mandating the local law enforcement agencies to ensure that the rule of law was observed by reducing jirgas/panchayats etc. to arbitration forums which may be approached voluntarily by local residents to the extent of civil disputes only---Petition for leave to appeal was dismissed as withdrawn accordingly.

Government of Balochistan v. Azizullah Memon and others PLD 1993 SC 341; Samundar v. The Crown PLD 1954 SC 228; Abdul Bari and 2 others v. Director Livestock PLD 2014 Pesh. 132 and Malik Toti Khan and others v. District Magistrate Sibi and Ziarat PLD 1957 Quetta 1 ref.

(f) Constitution of Pakistan---

----Art. 25---Equality before law---Reasonable classification---Principles---Classification was only permissible under the law where the same had been made on a rational and reasonable basis---Although no singular standard of reasonableness could be deduced for such classification, it must be such that could be justified on an intelligible differentia identifying why the classification/distinction had been made and there must be a rational nexus to the object sought to be achieved by the classification.

Government of Balochistan v. Azizullah Memon and others PLD 1993 SC 341 ref.

Mrs. Khawar Mumtaz, Chairperson NCSW, Sohail Akbar Warraich, Member NCSW and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners (in Const.P.No.24 of 2012).

Abdul Latif Yousafzai, AG, KPK for Petitioners (in C.P. No.773-P of 2018).

Khurram Saeed, Addl. Att.G., Zahid Yousaf Qureshi, Addl.A.G.KPK, Salman Talibuddin, A.G. Sindh, Ayaz Swati, Addl. A.G. Balochistan, Qasim Ali Chohan, Addl.A.G. Punjab, Hamid Shahzad, Law Officer, Women Development Department, Punjab and Ashiq Hussain, Deputy Director Women Development Sindh for Respondents.

Respondent No.1 in person (in C.P. No.773-P/2018)

P L D 2019 Supreme Court 250

Present: Mian Saqib Nisar, C.J., Mushir Alam and Ijaz ul Ahsan, JJ

NATIONAL ACCUONTABILITY BUREAU through Chairman---Petitioner

Versus

MURAD ARSHAD and others---Respondents

Civil Petition No.1707 of 2018, decided on 22nd October, 2018.

(Against the order dated 18-1-2018 passed by Lahore High Court, Lahore in W.P. No.26022 of 2017).

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

----Ss. 5(d), 5(o) & 9---Corruption and corrupt practices---Bail, cancellation of---Company---Veil of incorporation, lifting of---Accused and co-accused persons, were involved in launching a housing scheme---Allegation against accused was that he in connivance with co-accused persons enriched themselves by diverting colossal sums of money received from general public into the account of various companies of which they were directly and indirectly the beneficiary---Held, that persons who were found to be handling the affairs of a corporate and or legal entity in whatever legal attire or facade and carried out any commercial and or other activity which resulted in commission of any wrong or omission would come within the mischief of S. 9 & 10 of the National Accountability Ordinance, 1999 read with Schedule thereto---Said provisions gave sufficient power to NAB authorities to lift the veil of incorporation and trace out the real actors and masterminds behind the alleged offence---In the present case the role of accused was detailed in the investigation report and his name appeared in Form-29 and Form-A of the offending companies---Signatures of accused appeared on documents and cheques of substantial amount deposited in the accounts of offending companies of which the accused was a shareholder---Serious allegations were made against the accuscd including siphoning off and misappropriating colossal sums of money from 10421 members of the public---Accused could not be given the benefit of corporate veil when the National Accountability Ordinance, 1999 empowered the NAB authorities to pierce the veil of incorporation and prosecute the real persons under whose dictate and command affairs of offending corporate entity were conducted and to find out who was the actual beneficiary of crime committed under the Ordinance---Sufficient material was available on record to connect the accused as exercising effective control of the errant companies---Bail granted to accused by the High Court was cancelled in circumstances and orders were given for his immediate arrest. The State v. Haji Kabeer Khan PLD 2005 SC 364; Meeran Bux v. The State PLJ 1986 SC 83; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 and Nisar Ahmed v.The State and others PLD 2016 SC 11 ref.

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

----Ss. 9 & 10---Constitution of Pakistan, Art. 199---Criminal Procedure Code (V of 1898), Ss. 426, 497, 498 & 561-A---Offences under the National Accountability Ordinance, 1999---Ouster of jurisdiction of Accountability Court to grant bail---Powers of the High Court to grant pre and post-arrest bail/suspension of sentence in its Constitutional jurisdiction---Scope---Jurisdiction of the Accountability Court to grant bail had been expressly ousted in the National Accountability Ordinance, 1999 ("the Ordinance"), which in turn had burdened all the High Courts with bail applications under Article 199 of the Constitution---Jurisdiction under Art.199 of the Constitution had to be exercised with circumspection and caution as extraordinary jurisdiction was invoked and it should be exercised to advance the cause of justice and not to frustrate it or to defeat the intent of law---Such jurisdiction, therefore, had to be exercised to prevent miscarriage of justice and abuse of the Ordinance, and it was not to be used as a substitute of powers under Ss.426, 497, 498 & 561-A of the Code of Criminal Procedure 1898 liberally and indiscriminately converting High Court into a Court of ordinary criminal jurisdiction.

Imran ul Haq, Spl. Prosecutor, NAB along with Zawar Manzoor, I.O. for Petitioners.

Ms. Ayesha Hamid, Advocate Supreme Court for Respondents.

P L D 2019 Supreme Court 261

Present: Asif Saeed Khan Khosa, C J Maqbool Baqar and Syed Mansoor Ali Shah, JJ

KHADIJA SIDDIQUI and another---Appellants

Versus'

SHAH HUSSAIN and another---Respondents

Criminal Appeals Nos.34-L and 35-L of 2015, decided on 23rd January, 2019.

(Against the judgment dated 4-6-2018 passed by the Lahore High Court, Lahore in Criminal Revisions Nos. 194537 and 198776 of 2018).

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

----Ss. 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(ii) & 337-F(iv)---Attempt to commit qatl-e-amd, shajjah-i- khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah-badiah, ghayr-jaifah-mudihah---Re-appraisal of evidence --- Accused was alleged to have inflicted several knife blows to his class-fellow/victim and her minor sister---Trial Court convicted and sentenced the accused to seven years imprisonment which was reduced to five years by the Appellate Court---High Court allowed the revision petition filed by the accused and set-aside all his convictions and sentences---Held, that incident in issue had taken place in broad daylight and at a place which was thickly populated and was buzzing with activity at the relevant time---First Information Report (FIR) in respect of the said incident had been lodged with sufficient promptitude and the medical examination of the injured victims had also been conducted without loss of time---Ocular account of the said occurrence had been furnished before the Trial Court by three eye-witnesses namely the complainant (driver of the victims) , and the victims themselves---Victims had the stamp of injuries on their bodies vouchsafing their presence at the scene of the crime at the relevant time---Victims had consistently pointed their accusing fingers towards the accused as the sole perpetrator of the alleged offences and ostensibly they had no earthly reason to falsely implicate him in a case of present nature or to substitute him for the actual culprit---One of the victims and the accused were class fellows and it had consistently been suggested by the defence that the said victim and accused used to regularly socialize together, thus, there was hardly any question of the said victim not recognizing the accused as the sole culprit in an occurrence taking place in broad daylight and at a populated place---Medical evidence had provided sufficient support to the ocular account furnished by the eye-witnesses and the Trial Court as well as the Appellate court had found the evidence produced by the prosecution to be worthy of implicit reliance---Supreme Court set aside the judgment of the High Court and restored the conviction and sentences recorded by the Appellate Court with the observations that exercise of appreciation of evidence in the present case by the High Court had been laconic; and that the misreading and non-reading of the record by the High Court led the said Court into a serious error of judgment occasioning failure of justice.

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

----Ss. 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(ii) & 337-F(iv)---Attempt to commit qatl-e-amd, ,shajjah-i- khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah-badiah, ghayr-jaifah-mudihah---Re-appraisal of evidence---Belated naming of culprit by the victim due to effect of anaesthesia and unconsciousness---Accused was alleged to have inflicted several knife blows to his class-fellow/victim and her minor sister---High Court allowed the revision petition filed by the accused and set-aside all his convictions and sentences recorded by courts below---One of the considerations weighing with the High Court was based upon failure of the victim to name the accused straightaway as the culprit despite their previous intimacy---Held, that the statement made before the trial court by the medical doctor, who examined the victim, had clearly established that immediately upon receipt of her injuries the victim had become semi-conscious and in the next few days repeated attempts made by the investigating officer to record her statement had failed because according to the recorded opinion of the doctor the said victim was unfit to make any statement---Upon having been taken to the hospital immediately after the occurrence the victim had stated before the medical doctor that a boy had attacked her but the statement made by the said doctor before the trial court clearly showed that at the relevant time the condition of the victim was critical and the surgeons were ready to operate upon her and when the medical doctor wanted to know from the victim the identity of the boy the said doctor was required by the surgeons to immediately leave the operation theatre so that they could commence the operation straightaway in order to save the victim's life---In the next few days the injured victim had remained under the effect of anaesthesia and soon after regaining consciousness after a few days she had divulged the name of accused as the culprit---Such part of the statement made by the medical doctor had been completely ignored by the High Court---Supreme Court set-aside the judgment of the High Court and restored the conviction and sentences recorded by the Appellate Court.

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

----Ss. 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(ii) & 337-F(iv)---Attempt to commit qatl-e-amd, ,shajjah-i- khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah-badiah, ghayr-jaifah-mudihah---Re-appraisal of evidence---Medico Legal report---Doctor increasing number of injuries recorded by relying on operation notes---Inconsequential---Accused was alleged to have inflicted several knife blows to his class-fellow/victim and her minor sister---High Court allowed the revision petition filed by the accused and set-aside all his convictions and sentences recorded by courts below---One of the considerations weighing with High Court was that the doctor who had medically examined the victim had initially noticed only eleven injuries sustained but subsequently the said number had been swelled to twenty-three and such additional injuries had been mentioned by the said doctor on the basis of the operation notes of the victim and not on the basis of her own examination of the victim---Held, that the High Court ignored part of the statement made by the doctor, who had examined the victim, according to which when the said doctor was examining the victim her condition was critical and the surgeons ready for the operation had required the said doctor to leave the operation theatre and, thus, recording of the remaining injuries of the victim in the Medico-legal Certificate being prepared by her had been deferred till after the operation---Said task was subsequently completed by her on the basis of the operation notes because for the next many days the victim was unconscious and under the effect of anaesthesia---Fact remained that even sustaining of eleven injuries by the victim instead of twenty-three could have conveniently attracted the provisions of S.324, P.P.C. and nothing actually turned in the present case on the fact that eleven of the victim's injuries had been recorded by the concerned doctor in the first phase whereas the remaining injuries had been recorded by the said doctor at a subsequent stage after the operation of the victim---Supreme Court set-aside the judgment of the High Court and restored the conviction and sentences recorded by the Appellate Court.

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

----Ss. 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(ii) & 337-F(iv)---Attempt to commit qatl-e-amd, ,shajjah-i- khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah-badiah, ghayr-jaifah-mudihah---Re-appraisal of evidence---Misreading of documentary evidence by the High Court---Accused was alleged to have inflicted several knife blows to his class-fellow/victim and her minor sister---High Court allowed the revision petition filed by the accused and set-aside all his convictions and sentences recorded by courts below---One of the considerations weighing with High Court was that if the condition of the victim was critical soon after the occurrence then she could not have gone to the Illaqa Magistrate seeking an order for her medical examination---Held, that said consideration weighing with the High Court was squarely based upon a misreading of the documents brought on the record as exhibits on record clearly established that the victim was medically examined without any intervention or order of a Magistrate and on the next day, the investigating officer had filed an application before the Illaqa Magistrate seeking a direction regarding supply of a copy of the Medico-legal Certificate pertaining to the victim's minor sister---Supreme Court set-aside the judgment of the High Court and restored the conviction and sentences recorded by the Appellate Court while observing that the High Court had not demonstrated the requisite care in examining the record of present case and resultantly such a glaring misreading of the record on the part of the High Court had been occasioned; and that the Supreme Court expected the High Court to do better in such regard in future.

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

----Ss. 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(ii) & 337-F(iv)---Attempt to commit qatl-e-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah-badiah, ghayr-jaifah-mudihah---Re-appraisal of evidence---Non-recovery of blood stained articles---Inconsequential---Accused was alleged to have inflicted several knife blows to his class-fellow/victim and her minor sister---High Court allowed the revision petition filed by the accused and set-aside all his convictions and sentences recorded by courts below---One of the considerations weighing with High Court was that according to the eye-witnesses there was profuse bleeding of the victims inside the motorcar but admittedly no foot-mat or any other article stained with blood was taken into possession during the investigation from inside the said motorcar nor any such article had been produced before the trial court---Held, that the High Court had failed to properly read the statement made by the investigating officer who had categorically stated before the Trial Court that the relevant motorcar had been inspected by him soon after the occurrence and that he had noticed blood being available inside that motorcar---Any inefficiency on the part of the said investigating officer in securing any blood-stained article from inside that motorcar was insufficient in the circumstances of the present case to conclude that the two injured victims had not been injured at all or that no blood had spilled inside that motorcar---One of the victims had received as many as twenty-three injures on different parts of her body through the use of a knife and it was unimaginable that no blood of the said victim had come out of her body while being subjected to such a fierce assault through a lethal weapon---Supreme Court set-aside the judgment of the High Court and restored the conviction and sentences recorded by the Appellate Court.

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

----Ss. 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(ii) & 337-F(iv)---Attempt to commit qatl-e-amd, shajjah-i- khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah-badiah, ghayr-jaifah-mudihah---Re-appraisal of evidence---First Information Report (FIR) lodged by complainant without consulting the parents or family members of the victims---Insignificant---Accused was alleged to have inflicted several knife blows to his class-fellow/victim and her minor sister---High Court allowed the revision petition filed by the accused and set-aside all his convictions and sentences recorded by courts below---One of the considerations weighing with High Court was that driver of the victims, who was also the complainant, had not informed the parents of the victims or any other member of their family about the incident and had proceeded to lodge an FIR in respect of the same on his own---Held, that said consideration weighing with the High Court was insignificant and irrelevant because the complainant was the driver of the victims and if the victims had been subjected to a very serious assault with the use of a knife then it was nothing but natural and proper for the said driver to have straightway taken the injured victims to the nearest hospital and upon arrival of the police to inform the police about the incident---Such conduct on the part of the driver in fact could be cited in support of the prosecution's case as the FIR had been lodged by the driver straightaway without even consulting anybody belonging to the victims' family---Such aspect of the case ruled out any deliberation taking place before lodging of the FIR and the same augmented its credibility rather than weakening its reliability---Supreme Court set-aside the judgment of the High Court and restored the conviction and sentences recorded by the Appellate Court.

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

----Ss. 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(ii) & 337-F(iv)---Attempt to commit qatl-e-amd, shajjah-i- khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah-badiah, ghayr-jaifah-mudihah---Re-appraisal of evidence---Motive---Strained relations between the parties---Accused was alleged to have inflicted several knife blows to his class-fellow/victim and her minor sister---High Court allowed the revision petition filed by the accused and set-aside all his convictions and sentences recorded by courts below---One of the considerations weighing with High Court was that the motive set up by the prosecution had not been proved by it because according to the victim the accused used to harass her and wanted to marry her but she had rejected the proposal whereas the said stance of victim had been contradicted by her letter brought on the record wherein she had volunteered and had repeatedly stated that she was ready and eager to marry the accused---Held, that the High Court had failed to read the portion of the statement of the victim wherein she had explained that she was being harassed by the accused and she wanted to complain against him to her mother and, therefore, an attempt was made by the accused to silence her---Defence itself suggested that the accused had shunned the victim's company but the victim persisted in continuing her relationship with accused, which suggestion clearly showed that there was a break in the close friendship between the accused and the victim prompting the accused to make an attempt to get rid of her which provided a plausible motive to him---Supreme Court set-aside the judgment of the High Court and restored the conviction and sentences recorded by the Appellate Court.

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

----Ss. 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(ii) & 337-F(iv)---Attempt to commit qatl-e-amd, shajjah-i- khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah-badiah, ghayr-jaifah-mudihah---Re-appraisal of evidence---Recovery of helmet belonging to accused---Incorrect colour of helmet mentioned by recovery witness---Inconsequential---Accused was alleged to have inflicted several knife blows to his class-fellow/victim and her minor sister---High Court allowed the revision petition filed by the accused and set-aside all his convictions and sentences recorded by courts below---One of the considerations weighing with the High Court was that the alleged recovery of a helmet belonging to the accused from inside the victims' motorcar was not believable because the recovered helmet was of red colour whereas the recovery witness had clearly stated before the Trial Court that the recovered helmet was of black colour---Held, that the High Court had failed to notice that a helmet had been recovered by the investigating officer on the very day of occurrence and in the memorandum of recovery no colour of the recovered helmet had been recorded---Mentioning incorrect colour of helmet by the recovery witness might have been a lapse of memory on his part or it could also be attributed to a dishonest concession on his part---Matter of colour of the recovered helmet was not serious enough to throw out the entire case of the prosecution against the accused, particularly when such case was strongly based upon statements of two injured victims who were a young lady and a minor girl having no reason to substitute the actual culprit who, according to the suggestions of the defence itself, was quite well known to them---Supreme Court set-aside the judgment of the High Court and restored the conviction and sentences recorded by the Appellate Court.

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

----Ss. 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(ii) & 337-F(iv)---Attempt to commit qatl-e-amd, shajjah-i- khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah-badiah, ghayr-jaifah-mudihah---Re-appraisal of evidence---Minor eye-witness---Belated naming of accused---Not consequential enough to ignore minor's evidence---Accused was alleged to have inflicted several knife blows to his class-fellow/victim and her minor sister---High Court allowed the revision petition filed by the accused and set-aside all his convictions and sentences recorded by courts below---Held, that in the entire operative part of the impugned judgment passed by the High Court no discussion had taken place as to why the High Court had ignored or disbelieved the ocular account furnished by the minor (aged six years at that time), who was also an injured eye witness---Minor had identified the accused as the culprit on the first occasion that she got after the occurrence when accused had appeared before a Court for the purpose of seeking interim pre-arrest bail in connection with the present criminal case---Minor had made her statement under S.161, Cr.P.C. on the very day of occurrence and it was suggested to her by the defence itself that she as well as her elder sister (the other victim) used to socialize with the accused together, and therefore, she knew the accused before the incident---In such backdrop failure on the part of the minor to name the accused straightaway but naming him as the sole culprit subsequently at the first opportunity becoming available to her after the occurrence did not detract from the over all strength of the case of the prosecution---High Court was not justified in completely ignoring the statement of the minor who had absolutely no reason to falsely implicate the accused---Supreme Court set-aside the judgment of the High Court and restored the conviction and sentences recorded by the Appellate Court.

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

----S. 439---Revisional jurisdiction of High Court---Scope---In exercise of its revisional jurisdiction the High Court was to confine itself to correctness, legality, regularity or propriety of the proceedings of the courts below rather than embarking upon a full-fledged reappraisal of the evidence.

Barrister Salman Safdar, Advocate Supreme Court with appellant in person (in Cr.A.34-L of 2018).

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab (in Cr.A.35-L of 2018).

Dr. Khalid Ranjha, Senior Advocate Supreme Court with Respondent No.1 in person (in both cases).

P L D 2019 Supreme Court 280

Present: Mian Saqib Nisar, C.J., Umar Ata Bandial and Ijaz ul Ahsan, JJ

HUMAN RIGHTS CASE NO.32642-P OF 2018: In the matter of

Human Rights Case No.32642-P of 2018, decided on 16th January, 2019.

(In the matter regarding non-registration of Christian Marriages).

(a) Christian Mrriages Act (XV of 1872)--

----Ss. 4 & 7---'Solemnisation' and 'registration' of marriages---Distinction---Solemnisation of a marriage entailed the performance of the ceremonial aspects of the marriage whereas registration was the completion of a marriage certificate and lodging or filing of it with the appropriate institution or authority.

(b) Christian Marriages Act (XV of 1872) ---

----S. 5---Punjab Local Government Act (XVIII of 2013), Ss. 72(1)(m) & 81(2)(x) & Eighth Sched., Cl. 90---National Database and Registration Authority Ordinance (VIII of 2000), S. 21(2)---Union Councils Nikah/Marriage Registration (Model) By-laws, 2016, Cl.4(i)---Human rights case---Matter regarding non-registration of Christian marriages with the Union Councils of the Province of Punjab and the National Database and Registration Authority (NADRA)---Person authorized to register Christian marriages in Punjab province---Scope---Issue of non-registration of Christian marriages by the Union Councils and the subsequent non-issuance of computerised marriage certificates by NADRA, was because the Union Councils refused to register marriages solemnised by those persons mentioned in S.5(1) & (2) of the Christian Marriage Act, 1872 ('the Act'), as they, and the Human Rights & Minorities Affairs Department (HR&MA Department), were under the wrong impression that such persons required a license to do so---Christian Marriages Act, 1872 was clear in that individuals falling under S.5(1) & (2) of the Act were not required to apply for a formal license from the HR&MA Department to solemnise marriages because under canon law, ordination itself conferred an inherent power to solemnize marriages and this position was reflected in the Act, and it was only those individuals mentioned in S.5(3), (4) & (5) of the Act who required a license under the Act to solemnize marriages---Both sets of persons, i.e. those under S.5(1) & (2) of the Act on one hand and those under S.5(3), (4) & (5) on the other, were eventually authorised to solemnise marriages, the former of whom derived their power to solemnize marriages from ordination and the latter from the Act---Human Rights and Minorities Affairs Department (HR&MA Department) and/or the local government could not refuse to recognize certain classes of individuals who solemnised Christian marriages as this was disregarding the law---Additionally, the local government statutes of the other Provinces [Sindh, Khyber-Pakhtunkhwa and Balochistan] all contained similar provisions which empowered the local government to register Christian marriages---Supreme Court directed that HR&MA Department was to introduce a procedure whereby they received the names of all the persons who fell within the provisions of S.5(1) & (2) of the Act and were duly authorised to solemnise marriages after which the said Department shall prepare lists of such names based on the jurisdiction of the concerned local government; that such lists were to be forwarded to the concerned local government (including Union Councils) so that they were aware that such individuals were duly recognised as persons authorised to solemnise marriages according to the law and capable of registering such marriages with the local government without holding a formal license to that effect; that thereafter, the local government shall, in accordance with law, report/pass on such information of a Christian marriage to NADRA which shall issue the requisite computerised marriage certificate; and, that the Local Government and Community Development Department (LG&CD Department) and the HR&MA Department of the (Punjab) Provincial Government were to promulgate the necessary rules, etc. and make the necessary amendments in the by-laws, notifications, letters, etc. to reflect the legal position outlined in the present judgment.

In attendance:

Syed Nayyar Abbas Rizvi, Addl. Attorney General.

Razzaq A. Mirza, Addl. A.G. Punjab.

Usman Yousaf Mubeen, Chairman, NADRA.

Brig. (R) Nasar Mir, D.G. Operation, NADRA.

Saqib Jamal, Director Law, NADRA.

Umer Ali, A.D. Legal, NADRA.

Naveed Ahmed Goraya, Sr. Law Officer, HR, Punjab.

Naeem, A.D. Legal, Local Govt. Dept. Punjab.

His Excellency, Dr. Alexander Jan Malik, Bishop of Lahore.

Very Reverend Shahid P. Meraj, Dean of Cathedral Lahore.

P L D 2019 Supreme Court 297

Present: Mian Saqib Nisar, C.J., Faisal Arab and Ijaz ul Ahsan, JJ

HUMAN RIGHTS CASE NO.69229-P OF 2018

HUMAN RIGHTS CASE NO.69229-P OF 2018, decided on 3rd January, 2019.

(Regarding functioning of Patwaris, Kanungos and Tehsildars in urban area of Lahore).

(a) Words and phrases---

----"Land"---Meaning. Black's Law Dictionary (Ninth Edn.); Chambers 21st Century Dictionary and Wharton's Law Lexicon (Fourteenth Edn.) ref.

(b) Punjab Land Revenue Act (XVII of 1967)---

----Ss. 3 & 56(2)---Land exempt from operation of Punjab Land Revenue Act, 1967 ("the Act")---Scope---Any land that was occupied as the site of a town or village and was not assessed to land revenue was exempt from the operation of the provisions of the Act---However, every case must be decided on its merits and the mere inclusion of a certain area within a town/village for jurisdictional purposes did not trigger the exemption from land revenue under the law.

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

----Ss. 3, 42, 42-A & 56(2)---Transfer of Property Act (IV of 1882), Ss.54, 59, 107, 118 & 123---Registration Act (XVI of 1908), S. 17---Punjab Urban Immovable Property Tax Act (V of 1958), S. 3---Punjab Local Government Act (XVIII of 2013), Ss. 2(hhh) & 6(2)---Human rights case---Matter regarding functioning of Patwaris, Kanungos and Tehsildars in urban areas of cities---Land/estate located within "rating areas" of the Punjab Urban Immoveable Property Tax Act, 1958, was exempted from the payment of land revenue and the revenue authorities---Patwaries, Kanungos, Tehsildars etc., were not authorized to enter mutations of alienation of such property etc., in their record---Revenue authorities were to refrain from any and all functions (to the extent that these were within the ambit of the (Punjab Urban Immoveable Property Tax Act, 1958) in the said areas particularly with regards to entering mutations, etc.---Supreme Court directed that all the urban areas to which the Punjab Land Revenue Act, 1967 did not apply shall be governed by the Transfer of Property Act, 1882 and the Registration Act, 1908 for the purposes of transfer of property or devolution of any rights in property; that no oral mutations for the purposes of the transfer of property shall be valid in law in such urban areas (which had become part of settled areas including municipalities, towns, etc.); that the patwaarkhanas or revenue records could only be maintained for record keeping and not for the transfer of property under any of the modes recognized by the Transfer of Property Act, 1882 or any other law prevalent at the time; and, that since the revenue authorities of the Province of Khyber Pakhtunkhwa (KPK) were already compliant with the said directions, the findings and directions of the present case shall also apply to the Provinces of Sindh and Balochistan as well as that of the Federal Capital.

Pervez Ahmad Khan Burki and 3 others v. Assistant Commissioner, Lahore Cantt. and 2 others PLD 1999 Lah. 31; Dr. Jalal Khan v. Qazi Naseer Ahmed District Deputy Officer, (Revenue), Kharian, District Gujrat and 6 others 2005 MLD 814: Khizar Hayat and another v. Pakistan Railway through Chairman, Pakistan Railways, Lahore and 2 others 2006 CLC 1028; Muhammad Muneer and 7 others v. Member Board of Revenue, Punjab, Lahore and 12 others 2009 MLD 930; Makhdum Raju Shah v. Member Board of Revenue Punjab and 17 others 2011 YLR 1724 and Muhammad Ayaz and others v. Malik Zareef Khan and others PLD 2016 Pesh. 8 ref.

In attendance:

Ahmed Awais, A.G. Punjab.

Rana Shamshad Khan, Addl. A.G. Punjab.

Sibtain Mahmood, AAG, Sindh.

Ayaz Swati, Addl. A.G. Balochistan.

Malik Akhtar Hussain, Addl. A.G. Khyber Pakhtunkhwa.

Syed Ahsan Mustafa, Director BOR Punjab.

Saadullah, Supdt. BOR, Khyber Pakhtunkhwa.

Habibullah, Law Officer for DC, Lahore.

Mian Zafar Iqbal Kalanauri, Advocate Supreme Court.

Amanullah Kanrani, Advocate Supreme Court, SCBA (amicus curiae).

P L D 2019 Supreme Court 318

Present: Mushir Alam and Qazi Faez Isa, JJ

SUO MOTU CASE NO.7 OF 2017.

Suo Motu Case No.7 of 2017, decided on 6th February, 2019.

(Suo Motu action regarding Islamabad-Rawalpnid Sit-in/Dharna).

(a) Constitution of Pakistan---

----Arts. 9, 10A, 14(1), 15, 18, 23, 25A & 184(3)---Suo motu action regarding Islamabad-Rawalpindi sit-in protest by members of a religious political party---Constitutional jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Question as to whether the Supreme Court could invoke its jurisdiction under Art.184(3) of the Constitution with regard to the matter---Held, Supreme Court may invoke its power under Art.184(3) of the Constitution provided the matter was one of public importance and pertained to the enforcement of any of the Fundamental Rights---Members of political party and its supporters occupied a road junction (interchange), which was one of the main entry-exit points to the Capital city of the country---Sit-in protest effectively paralyzed the Capital city and its neighbouring city---Whole country effectively came under lockdown---Protestors had converged on major roads and highways, they pelted stones, damaged and burnt vehicles and properties---Ambulances, doctors, paramedic staff and other organizations providing emergency services, including those of firefighters, bomb disposal and rescue services were prevented from rendering emergency assistance or got unreasonably delayed searching for alternative routes to the emergency---Deprived of access to doctors and medical facilities countless people suffered---Preventing the sick from reaching doctors and hospitals infringed their right to life (guaranteed under Art.9 of the Constitution) which required enforcement---Blocking roads for long durations prevents citizens from exercising their right to freedom of movement (guaranteed by Art.15 of the Constitution) and such right of theirs required enforcement---When students could not attend schools and educational institutions their right to education (guaranteed under Art.25A of the Constitution) required enforcement---Litigants' access to courts was blocked, therefore, their right to fair trial and due process (guaranteed by Art.10A of the Constitution) required enforcement---Abusing, threatening and attacking people undermined their right to live a life of "dignity" (guaranteed under Art.14(1) of the Constitution) which also required enforcement---Shops and businesses were forced to shut, people could not pursue their vocation, poor daily workers were denied the possibility of earning a livelihood, thus, their right to work (guaranteed by Art.18 of the Constitution) needed enforcement---Since property was damaged or destroyed the right to hold and enjoy property (guaranteed under Art.23 of the Constitution) was required to be enforced---Present matter undisputedly was one of public importance and required the enforcement of the fundamental rights of nearly every citizen---Supreme Court therefore invoked its jurisdiction under Art.184(3) of the Constitution.

(b) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Matter of 'public importance'---Scope ---Mere importance of a matter was not, in itself, sufficient to invoke jurisdiction under Art. 184(3) of the Constitution---Matter must be one of public importance, that was, it must involve the rights of the public too---Before an order was made under Art.184(3) of the Constitution it would be appropriate if the Supreme Court identified the public importance of the matter and the fundamental right/s requiring enforcement.

Benazir Bhuto v. Federation of Pakistan PLD 1988 SC 416; Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66, 144-145; Suo Motu Case No.13 of 2007 (PLD 2009 SC 217, 229); Suhail Butt v. Deputy Inspector General of Police 2011 SCMR 698, 704 and Watan Party v. Federation of Pakistan PLD 2012 SC 292, 324 ref.

(c) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope---Every possible care should be taken before making an order under Art.184(3) of the Constitution since there was no right to appeal such an order.

(d) Constitution of Pakistan---

----Arts. 15, 16, 17(1), 17(2), 19 & 23---Right to assemble and protest---Scope---Constitution did not specifically stipulate a right to protest, however, democracy recognized such a right, and it was through democratic means that Pakistan was achieved---Right to protest was also implied in "the right to assemble peacefully" [Art.16 of the Constitution], in the "right to form associations or unions" [Art.17(1)], in the "right to form or be a member of a political party" [Art.17(2)] and in the "in the right to freedom of speech and expression [Art.19]---Every citizen and political party had the right to assemble and protest provided such assembly and protest was peaceful and complied with the law imposing reasonable restrictions in the interest of public order---Right to assemble and protest was circumscribed only to the extent that it infringed on the fundamental rights of others, including their right to free movement and to hold and enjoy property---Protestors who obstructed people's right to use roads and damaged or destroyed property must be proceeded against in accordance with the law and held accountable.

(e) Constitution of Pakistan---

----Arts. 184(3)---Suo motu action regarding Islamabad-Rawalpindi sit-in protest by members of a religious political party---Failure of State in protecting its citizens---Political party in question and its followers, from all accounts, were determined to disrupt civic life; they sowed discord and dissension, resorted to mob-rule, rioting and the destruction of property---To meet such challenge there was little preparation or preplanning by the government, the police and other law enforcement agencies---No plan was apparently prepared to attend to the different eventualities likely to emerge---Leadership of the political party paid no heed to the District Magistrate's letter, which prevented public gatherings and required prior permission for a long march protest, yet no prosecution was launched against the leadership in such regard---State had to ensure that its citizens' fundamental rights were upheld; they were kept safe, their properties protected and they were allowed to move freely---By being unable to manage and control the protest in question the State let its citizens down---Threatening another, violating the law, occupying public roads, destroying property, injuring or causing death did not emulate the example of the Prophet (peace and blessings be upon him), his 'akhlaq' and 'aadab'---Persons who employed such tactics could not be the standard bearers of the Muslim faith---Supreme Court directed that the police and other law enforcement agencies were to develop standard plans and procedure with regard to how best to handle rallies, protests and dharnas, and ensure that such plans/procedures were flexible enough to attend to different situations; that though the making of such plans/procedures was not within the jurisdiction of the Supreme Court however it was expected that in the maintenance of law and order every effort would be taken to avoid causing injury and loss of life; and that the Federal and Provincial governments shall monitor those advocating hate, extremism and terrorism and prosecute the perpetrators in accordance with the law.

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

----S. 211---Elections Rules, 2017, R. 161(2)---Constitution of Pakistan, Arts. 7(3) & 184(3)---Suo motu action regarding Islamabad-Rawalpindi sit-in protest by members of a religious political party---Political parties---Disclosure of source of funding and election expenses---All political parties had to account for the source of their funds in accordance with the law---Election Commission confirmed that the political party in question which was protesting did not account for its funds and election expenses---Constitution earmarked the responsibilities of the Election Commission which it must fulfil---Supreme Court directed that if a political party did not comply with the law governing political parties then the Election Commission must proceed against it in accordance with the law.

(g) Constitution of Pakistan---

----Art. 16---Right to assembly peacefully---Scope---Right of assembly was recognized as a right to preserve the democratic order, but it could not be used to overthrow a lawful government---Nor could the right of assembly be used to bring about a revolution or insurrection. Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57, 104 ref.

(h) Constitution of Pakistan---

----Arts. 15, 16, 17 & 19 & Pt. II, Chapt. 1 [Arts. 8 to 28]---Protest on roads---Right of assembly, the freedom of association and the freedom of speech---Scope---Said rights could not be exercised by infringing the fundamental rights of others---Without obtaining permission public meetings could not be held on roads---Nor could a road be used as a camping ground or to assemble on it indefinitely---Roads were for vehicular use and pavements were for the use of pedestrians to enable the travelling public to move freely, which was their fundamental right [Art.15 of the Constitution].

Director of Public Prosecutions v. Jones (Margaet) and another [1999] 2 AC 240 and In re: Ramlila Maidan Incident (2012) 5 SCC 1 ref.

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

----Ss. 20(c) & 27(a)---Prevention of Electronic Crimes Act (XL of 2016), Ss. 11 & 12---Constitution of Pakistan, Arts. 19 & 184(3) --- Suo motu action regarding Islamabad-Rawalpindi sit-in protest by members of a religious political party---Hate speech and incitement to violence spread through electronic media---Failure of Pakistan Electronic Media Regulatory Authority to fulfil its statutory duty---Leadership of the political party in question created hatred amongst the people, they abused, threatened and advocated violence; and this was broadcasted by some private television channels---Reports of an intelligence agency revealed that a particular TV channel supported the political party in question and its owners had supplied food to the protestors---Pakistan Electronic Media Regulatory Authority ("the Authority"), however, did not take action under the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 ('the Ordinance') against any of its licencees for violating the terms of their licences---Authority abdicated its statutory duty, a duty which it was legally obliged to fulfil---Authority also failed to protect the legitimate rights of two of its licensed broadcasters---Broadcasts by said two licencees were stopped/interrupted in certain areas of the country; complaints stating this were acknowledged by the Authority---Authority looked the other way and did nothing to protect the interests of its licencees nor took action against those cable operators who were responsible---Hate which was spread and the violence which was incited through electronic means appeared not to have been investigated, let alone the violators prosecuted and punished---Supreme Court directed that broadcasters who broadcasted messages advocating or inciting the commission of an offence violated the Ordinance and the terms of their licences and must be proceeded against by the Authority in accordance with the law; that cable operators who stopped or interrupted the broadcast of licenced broadcasters must be proceeded against by the Authority in accordance with the Ordinance, and if this was done on the behest of others then the Authority should report those so directing the cable operators to the concerned authorities; and that those spreading messages through electronic means which advocated or incited the commission of an offence were liable to be prosecuted under the Prevention of Electronic Crimes Act, 2016.

(j) Constitution of Pakistan---

----Art. 19---Censorship of the television channels and newspapers---Constitutionality and legality---Overt and covert censorship was unconstitutional and illegal---Nebulous tactics, such as issuing advice to self-censor, to suppress independent viewpoints, to project prescribed ones, to direct who should be hired or fired by media organisations was also illegal---No one, including any government, department or intelligence agency could curtail the fundamental right of freedom of speech, expression and press beyond the parameters mentioned in Art.19 of the Constitution.

Dr. Shahid Masood v. Federation of Pakistn 2010 SCMR 1849 at pages 1860-1861 and Quaid-i-Azam Muhammad Ali Jinnah (Speeches, Statements, Writings, Letters, etc.), Muhammad Haneef Shahid (1st edn., Sang-e-Meel 1976) 51 ref.

(k) Constitution of Pakistan---

----Arts. 184(3) & 245---Suo motu action regarding Islamabad-Rawalpindi sit-in protest by members of a religious political party---Interference of intelligence agencies in politics and manipulation of the media---When participants of the protest received cash handouts from men in (army) uniform the perception of the latter's involvement (in politics) gained traction---Director General of the Inter-Services Public Relations ("ISPR") had also taken to commenting on political matters---Armed Forces, and all agencies manned by the personnel of the Armed Forces, served the country, and thus all its citizens---Such agencies must never be perceived to support a particular political party, faction or politician---Persons who resorted to abuse, hate and violence should never be pampered, instead they should fear the State, its police and intelligence agencies---If any personnel of the Armed Forces indulged in any form of politicking or tried to manipulate the media he undermined the integrity and professionalism of the Armed Forces---Duties of the Armed Forces were clearly spelt out in the Constitution, that they,"shall under the direction of the Federal Government defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so" [Art.245 of the Constitution]---When institutions stayed within their designated constitutional boundaries and there was an effective system of check and balance, citizens stayed safe and the State prospered---Law was applicable to all, including those who were in government and institutions must act independently of those in government---Supreme Court directed that all intelligence agencies and the ISPR must not exceed their respective mandates; that such agencies could not curtail the freedom of speech and expression and did not have the authority to interfere with broadcasts and publications, in the management of broadcasters/publishers and in the distribution of newspapers; that intelligence agencies should monitor activities of all those who threatened the territorial integrity of the country and all those who undermined the security of the people and the State by resorting to or inciting violence; that to best ensure transparency and the rule of law it would be appropriate to enact laws which clearly stipulated the respective mandates of the intelligence agencies; that the Constitution emphatically prohibited members of the Armed Forces from engaging in any kind of political activity, which included supporting a political party, faction or individual; and that Federal Government through the Ministry of Defence and the respective Chiefs of the Army, the Navy and the Air Force were to initiate action against the personnel under their command who were found to have violated their oath.

Air Marshal (Retd.) Muhammad Asghar Khan v. General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff PLD 2013 SC 1 ref.

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

----S. 124-A---Anti-Terrorism Act (XXVII of 1997), S. 7---Prevention of Electronic Crimes Act (XL of 2016), Ss. 11 & 12---'Edict' or 'fatwa'---Person issuing an edict or fatwa, which harmed another or put another in harm's way---Such person must be criminally prosecuted under the Pakistan Penal Code, 1860, the Anti-Terrorism Act, 1997 and/or the Prevention of Electronic Crimes Act, 2016.

In Attendance:

Attorney Generals for Pakistan, Ashtar Ausaf

Ali and Anwar Mansoor Khan.

Deputy Attorney General, Sohail Mehmood.

Advocate General, Islamabad, Abdul Rauf, Additional Advocate Generals, Punjab, Razzaq A. Mirza and Barrister Qasim Chauhan.

Secretary, D.G. Law and A.D.G. Law of the Election Commission of Pakistan, Babar Yaqoob Fateh, M. Arshad and Malik Mujtaba respectively.

Chairman, Head Legal, D.G. (Operation and Broadcast Media) and D.G. (Operation Distribution) of PEMRA, Saleem Baig, Ali Zeeshan Gondal, Sohail Asif and Muhammad Farooq respectively.

Director and Joint Director of I.B., Malik Aziz-ur-Rehman and Anwar-ul-Haq Khawar respectively.

Director (Legal) and Deputy Director (Legal), Ministry of Defence, Brigadier Falak Naz and Lieutenant Commander Shafiq ur Rehman respectively.

Deputy Secretary Interior, Nasir Khan, Assistant Director (Legal), Shafiq-ur-Rehman.

IGP and SP, Islamabad, Khalid Khattak and Liaqat Hayat Niazi respectively.

Dates of Hearing:

P L D 2019 Supreme Court 357

Present: Mian Saqib Nisar, C.J., Sh. Azmat Saeed, Umar Ata Bandial, Faisal Arab, Ijaz ul Ahsan, Sajjad Ali Shah and Munib Akhtar, JJ

CIVIL AVIATION AUTHORITY and others---Petitioners

Versus

SUPREME APPELLATE COURT GILGIT-BALTISTAN and others---Respondents

Constitutional Petitions Nos.50/2018, 51/2018 and 63/2011, Civil Miscellaneous Applications Nos.4922, 5382/2011, 695/2012 and 724/2017 in Constitutional Petition No.63/2011, Constitutional Petitions Nos.6/2012, 16/2015 and 20/2015, Civil Miscellaneous Application No.6966/2017 in Constitutional Petition No. 20/2015, Constitutional Petition No.3/2016, Civil Miscellaneous Application No.6800/2017 in Constitutional Petition No.3/2016, Constitutional Petitions Nos.13/2016, 32/2016, 34/2016, Civil Miscellaneous Appeal No.184/2016 in Constitutional Petition No.Nil/2016, Civil Miscellaneous Application 7367/2016 in Constitutional Petitions Nos.2/2017, 30/2017, 41/2018, Civil Miscellaneous Appeal No.202/2016 in Constitutional Petition No.Nil/2016, Constitutional Petitions Nos.49/2018, 55/2018, 30/2015, 31/2015 32/2015, 36/2015, 64/2015, 6/2017 in Civil Miscellaneous Appeal No.31/2017, Constitutional Petition No.61/2017 in Civil Miscellaneous Appeal No.243/2017, Constitutional Petition No.18/2018 and Civil Miscellaneous Application No.10872/2018 in Constitutional Petition No. 16/2015, decided on 17th January, 2019.

(a) Constitution of Pakistan---

----Art. 257---Jammu and Kashmir---Dispute between Pakistan and India---Historical overview of commitments made by India to conduct a plebiscite in Jammu and Kashmir acknowledging the right of its people to self-determination and the consequent passing of United Nations Security Council Resolutions 39 and 47 stated.

(b) Constitution of Pakistan---

----Art. 257---Gilgit Baltistan, governance of---Administrative structures and laws applied to region of Gilgit Baltistan since 1947 stated.

Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379 ref.

(c) Constitution of Pakistan---

----Art. 257 & Pt. II, Chapt. 1 [Arts.8 to 28]---People of Gilgit Baltistan---Fundamental rights---Constitutional and administrative reforms in Gilgit Baltistan---Granting full rights to the people of Gilgit Baltistan did not in any way prejudice the eventual determination of the status of Jammu and Kashmir ---Till such time that a plebiscite was held (in Jammu and Kashmir), a proper arrangement must be provided for by Pakistan for the people of Gilgit Baltistan for purposes of governance within a framework of a constitutional nature, including most importantly the enjoyment of fundamental rights---State of vacuum could not be created for the people of Gilgit Baltistan as they were entitled to all the fundamental rights as were enjoyed by others---No prejudice would be caused to Pakistan's position on the plebiscite issue if the men, women and children living in Gilgit Baltistan were guaranteed basic human rights and a role in their own governance within a framework of a constitutional nature---Indeed, full rights for the people of the region could only bolster Pakistan's case for the right of self-determination for all the people of Kashmir---Rights for residents of Gilgit Baltistan would include the right to representation as well as all other rights enjoyed by the citizens of Pakistan---Supreme Court held that the recommendations contained in the report of the Committee on Constitutional and Administrative Reforms in Gilgit Baltistan constituted by the Prime Minister in 2015 relating to the provision and enforcement of fundamental rights provided by the Constitution must be implemented immediately and with full force and effect; that there should be no discrepancy in the fundamental rights available to those in Gilgit Baltistan relative to citizens of Pakistan anywhere in the country; that the right to self-government through an empowered Gilgit Baltistan Assembly as well as a robust system of local bodies was entirely uncontroversial and must be enforced as early as possible.

Al-Jehad Trust through Habibul Wahab Al-Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379 ref.

(d) Government of Gilgit-Baltistan Order, 2018---

----Arts. 76, 86 & 118---Constitution of Pakistan, Art. 184(3)---Gilgit Baltistan Supreme Appellate Court and High Court/Chief Court---Powers of judicial review---Scope and territorial limits---Gilgit Baltistan Supreme Appellate Court or the High Court/Chief Court, both created under the Government of Gilgit-Baltistan Order, 2018 ('Order'), could examine whether the Gilgit Baltistan Assembly had exceeded the remit of its competence as conferred by the Order (when, e.g., enacting a law), and could declare it to be ultra vires the same---Such jurisdiction was, however, territorially bound and could only apply and operate in relation to Gilgit Baltistan, and to things done or purported to be done under the Order; it could not extend to any matter beyond or outside Gilgit Baltistan, or the vires or validity of the Government of Gilgit-Baltistan Order, 2018 itself---Gilgit Baltistan Supreme Appellate Court or the High Court/Chief Court did not sit as courts having the power of judicial review in respect of the territory of Pakistan, nor could they declare Orders made or legislation passed by the President or the Parliament (of Pakistan) as ultra vires, nor could they initiate judicial review of departments working outside of Gilgit Baltistan---Government of Gilgit-Baltistan Order, 2018 could, however, be challenged by the people of Gilgit Baltistan, but only before the Supreme Court (of Pakistan).

(e) Constitution of Pakistan---

----Art. 184(3)---Constitutional jurisdiction/power of the Supreme Court under Art.184(3) of the Constitution---Scope---Such constitutional power, within the scope of the grant, was not just plenary; it was also dynamic and flexible---Categories and varieties of cases involving or raising issues of fundamental rights of public importance could never be closed, for they were shaped by the human condition and the vagaries of the human experience, which by its very nature was limitless.

(f) Government of Gilgit-Baltistan Order, 2018---

----Preamble---Constitution of Pakistan, Arts. 184(3) & 187---Framework for governance of Gilgit Baltistan---Gilgit-Baltistan Governance Reforms, 2019 as proposed by the Supreme Court (of Pakistan) ("Proposed Order")---Constitutional powers of the Supreme Court (of Pakistan) in relation to promulgation and amendments in the 'Proposed Order'---Scope---Jurisdiction of the Supreme Court (of Pakistan) extended to the giving of suitable directions to the Federation, both to promulgate the 'Proposed Order' and also for ensuring its continuity; only in this way the fundamental rights could be granted to the people of Gilgit Baltistan in a meaningful and realistic manner---Supreme Court could give direction that extended to making certain modifications in the 'Proposed Order', again in order to properly effectuate the objective sought to be achieved---Supreme Court directed that the 'Proposed Order', shall be forthwith promulgated by the President on the advice of the Federal Government, and in any case within a fortnight; that no amendment shall be made to the 'Proposed Order' as so promulgated except in terms of the procedure provided in Art.124 of the same, nor shall it be repealed or substituted, without the instrument amending, repealing or substituting (as the case may be) the same being placed before the Supreme Court by the Federation through an application that would be treated as a petition under Art.184(3) of the Constitution; that nothing in the present judgment shall be construed to limit the jurisdiction conferred on the Supreme Court by the 'Proposed Order' itself; and, that if the 'Proposed Order' so promulgated was repealed or substituted by an Act of Parliament the validity thereof, if challenged, shall be examined on the touchstone of the Constitution.

For the Petitioner(s):

Salam Akram Raja, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (In Const.Ps.6/2012, 20/2015, 55 of 2018 and 64/2015).

Mian Shafaqat Jan, Advocate Supreme Court, Syed Rafaqat Hussain Shah, Advocate-on-Record (In Const.P.50/2016 and Const.P.18 of 2018).

Barrister Masroor Shah, Advocate Supreme Court (In Const.P.51/2011).

Ikram Chaudhry, Advocate Supreme Court (In Const.P.63/2011).

Rai M. Nawaz Kharal, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record (In Const.Ps.16/2015, 61/2017 and C.M.A.6966/2017).

Bhajandas Tejwani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record (In Const.P.3/2016).

Syed Qalb-i-Hassan, Advocate Supreme Court (In Const.P.13/2016).

Mian Shafaqat Jan, Advocate Supreme Court (In Const.P.32/2016).

Nemo (In Const.P.34/2016).

Mir Afzal Malik, Advocate Supreme Court and Tariq Aziz, Advocate-on-Record (In Const.P.2/2017).

Ghulam Shoaib Jally, Advocate Supreme Court (In Const.P.30/2017).

Sajid Ilyas Bhatti, Addl. A.G.P. (In Const.Ps.41 and 49/2018).

Asif Fasih ud Din Vardag, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record (In Const.Ps.30 and 32/2015).

M. Munir Peracha, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record (In Const.P.6/2017).

Nemo (In Const.P.36/2015).

M. Ikhlaque Awan, Advocate Supreme Court (In C.M.A.5382/2011 and C.M.Appeal 202/2018).

On Court's Notice: Anwar Mansoor Khan, A.G.P.

Amicus Curiae: Ch. Aitzaz Ahsan, Senior Advocate Supreme Court.

For the Respodent(s):

Saeed Iqbal, Dy. A.G. Gilgit-Baltistan and Aurangzeb Khan, Minister of Law and Parliamentary Affairs, Gilgit Baltistan.

Dil Muhammad Khan Alizai, Advocate Supreme Court and Ch. Afrasiab Khan, Advocate Supreme Court for Respondent No.2 (in Const.P.49/2018).

M. Iqbal Hashmi, Advocate in person (in C.M.A.10872/2018).

Waseem Sajjad, Senior Advocate Supreme Court (in Const.P.63/11).

Raja Abdul Ghafoor, Advocate-on-Record (For the Federation).

Abdullah Baig (Respondent in person).

P L D 2019 Supreme Court 445

Present: Mian Saqib Nisar, C.J., Asif Saeed Khan Khosa, Gulzar Ahmed, Mushir Alam and Mazhar Alam Khan Miankhel, JJ

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD through Prosecutor-General Accountability, Islamabad---Appellant

Versus

Mian MUHAMMAD NAWAZ SHARIF and 2 others---Respondents

Civil Appeals Nos. 1340, 1341 and 1342 of 2018 and Civil Miscellaneous Application No.9985 of 2018 in Civil Appeal No.1340 of 2018.

(Against the judgments dated 19-9-2018 passed by the Islamabad High Court, Islamabad in Writ Petitions Nos. 2839, 2841 and 2842 of 2018).

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

----Ss. 426 & 497---Application for bail/suspension of sentence during pendency of appeal---While deciding such an application merits of the case were not to be adverted to or commented upon in any detail.

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

----S. 9---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---Bail, grant of---Constitutional jurisdiction of the High Court---Scope---In cases under the National Accountability Ordinance, 1999 bail may be granted through exercise of Constitutional jurisdiction of a High Court only in extraordinary circumstances and in cases of extreme hardship. [p. 448] C

Tallat Ishaq v. National Accountability Bureau and others Civil Petition No.632 of 2019 ref.

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

----S. 9---Criminal Procedure Code (V of 1898), S. 426---Corruption and corrupt practices---Suspension of sentence---Bail, grant of---Accused and co-accused persons were convicted and sentenced by the Accountability Court---High Court admitted them to bail by suspending their sentences---No allegation had been levelled regarding any misuse or abuse of the concession of bail by the accused or co-accused persons---Accused was already in jail after having been convicted and sentenced in connection with another criminal case, whereas one of the co-accused was a woman and the law envisaged concession for her in the matter of bail---Moreover sentence of imprisonment passed by the Trial Court against the other co-accused was quite short---Supreme Court, in such circumstances, declined to interfere with the jurisdiction and discretion exercised by the High Court in the matter of granting bail to accused and co-accused persons upon suspension of their sentences---Appeals were dismissed in circumstances.

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

----S. 426---National Accountability Ordinance (XVIII of 1999), S. 9---Judgments of the High Court relating to bail---Short format---Supreme Court deprecated the practice of writing lengthy judgments in bail matters and observed that instead of adhering to the guidelines issued and recommendations made by the Supreme Court in the case of Muhammad Shakeel v. The State and others (PLD 2014 SC 458) regarding shorter format of orders to be passed in matters of bail, the High Court's (impugned) judgment relating to bail upon suspension of sentence spanned over 41 pages.

Muhammad Shakeel v. The State and others PLD 2014 SC 458 ref.

Muhammad Akram Qureshi, Special Prosecutor, National Accountability Bureau with Jahanzeb Khan Bharwana, Additional Prosecutor-General, National Accountability Bureau for Appellant (in all cases).

Khawaja Haris Ahmad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents (in C.A.No.1340 of 2018).

Muhammad Amjad Pervaiz, Advocate Supreme Court and Syed Rafaqat Hussain Shah, Advocate-on-Record for Respondent (in C.A. 1341 of 2018).

Nemo for Respondent (in C.A.1342 of 2018).

Nemo for Applicant (in C.M.A. No.9985 of 2018 in C.A. 1340 of 2018).

P L D 2019 Supreme Court 449

Present: Mushir Alam and Qazi Faez Isa, JJ

Mst. LAILA QAYYUM---Petitioner/Applicant

Versus

FAWAD QAYUM and others---Respondents

Civil Petition No.4876 of 2018 and Civil Miscellaneous Application No.11213 of 2018.

(On appeal against the judgment dated 5-10-2018 of the Peshawar High Coiurt, Mingora Bench (Dar-ul-Qaza), Swat, passed in W.P. No.215-M of 2017).

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

----S. 42---Suit for declaration---Maintainability---Legal character of plaintiff---Scope---Dispute over paternity---Plaintiff filed suit seeking directions that the defendant-lady was not his real sister but was adopted by his parents; and that the defendant had no right to his parent's legacy---Held, that court could make a declaration in a suit in favour of a person who was entitled to any legal character or to any right, as to any property, which another was denying---Defendant had not denied either plaintiff's legal character or his right to any property---Instead plaintiff alleged that defendant was not his father's daughter and therefore not his heir and not entitled to inherit the properties left behind by him---Plaintiff sought a negative declaration and one which had nothing to do with his own legal character---To challenge another's adoption or legitimacy of birth did not assert the plaintiff's own legal character---Suit filed by plaintiff was dismissed by the Supreme Court

Deokali Koer v. Kedar Nath ILR 39 Cal. 704, 709; Khanchand v. Jacobabad Municipality AIR 1946 Sindh 98; Abdur Rahman Bhuiya v. Commission of Narayanganj Manicipality PLD 1959 Dacca 5; Abdur Rahman Mobashir v. Amir Ali Shah PLD 1978 Lah. 113; Rehmatullah Khan v. Government of Pakistan 2003 SCMR 50 and Daw Pone v. Ma Hnin May AIR 1941 Rangoon 220, 221 ref

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

----S. 42---Suit for declaration---Maintainability---Dispute over paternity --- Person could bring a (declaratory) suit to assert that he/she was someone's child if his/her legal character was denied.

Abdul Karim v. Sarraya Begum AIR 1945 Lah. 266 ref.

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

----S. 39---Suit for cancellation of documents---Maintainability---Requirement of 'serious injury' to plaintiff---Dispute over paternity---Plaintiff filed suit seeking directions that the defendant-lady was not his real sister but was adopted by his parents; and that all documents showing the defendant to be the daughter of his parents be cancelled to such extent---Held, that plaintiff sought cancellation of documents which were not shown to cause him any serious injury---Since the essential condition of causing him serious injury, mentioned in S. 39 of the Specific Relief Act, 1877 was not met, therefore plaintiff's suit seeking cancellation of the documents was not maintainable---Suit filed by plaintiff was dismissed by the Supreme Court.

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

----Art. 128---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Dispute over paternity---Bar of Art. 128 of Qanun-e-Shahadat, 1984---Scope---Plaintiff filed a declaratory suit seeking directions that the defendant-lady was not his real sister but was adopted by his parents---Maintainability---Suit was barred by Art.128 of the Qanun-e-Shahadat, 1984---Only a putative father, within the time prescribed in Art.128, may challenge the paternity of a child---Father of the parties had never challenged defendant's paternity---Article 128 of the Qanun-e-Shahadat, 1984 did not permit a putative brother to challenge his sister's paternity---Suit filed by plaintiff was dismissed by the Supreme Court.

Ghazala Tehsin Zohra v.Ghulam Dastagir Khan PLD 2015 SC 327 ref.

(e) Constitution of Pakistan---

----Art. 14---Liberty, dignity and privacy of a person---Scope---Dispute over paternity---DNA test, conducting of---Constitutionality and legality---Plaintiff filed a suit seeking directions that the defendant-lady was not his real sister but was adopted by his parents---During pendency of suit plaintiff also filed an application for conducting DNA test of the defendant to determine that she was not his real sister---Said application was allowed by the High Court---Held, that a free lady could not be compelled to give a sample for DNA testing as it would violate her liberty---If a sample was forcibly taken from the defendant in the present case to determine her paternity it would violate her liberty, dignity and privacy which Art.14 of the Constitution guaranteed to a free person---If the proposed DNA testing was done it would neither confirm nor negate defendant's paternity---Same was also true for the plaintiff and those of his siblings whom he acknowledged---Father of the parties died sixteen years ago and his DNA could now only be accessed if his body was disinterred from the grave and a sample taken from his remains---Plaintiff's suit however was premised on the assumption that he was the son of his father, then, on the basis of such assumption, he denied defendant's paternity---Plaintiff's assertion that a certain person was his father was equally assumptive to the defendant asserting this---Suit filed by plaintiff was dismissed by the Supreme Court.

Salman Akram Raja v Government of Punjab 2013 SCMR 203 ref.

Muhammad Shahid Sahil v State PLD 2015 FSC 215 and B. P. Jena v Convenor Secretary, Orissa State Commission for Women (AIR 2010 Supreme Court 2851) distinguished.

Muhammad Ikhlaque Awan, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioner/Appellant.

Faisal Khan, Advocate Supreme Court for Respondents Nos.1 to 5.

Shaukat Hayat, Senior Clerk for Respondent No.6.

Mujahid Khan, Law Officer for Respondent No.10.

P L D 2019 Supreme Court 461

Present: Asif Saeed Khan Khosa, C.J., Mushir Alam, Maqbool Baqar, Manzoor Ahmad Malik, Sardar Tariq Masood, Mazhar Alam Khan Miankhel and Syed Mansoor Ali Shah, JJ

MUHAMMAD YOUSAF---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No.137-L of 2010, decided on 20th February, 2019.

(Against the judgment dated 6-10-2010 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.534 of 2005 and Murder Reference No.547 of 2005).

Per Asif Saeed Khan Khosa, CJ: Mushir Alam, Maqbool Baqar, Manzoor Ahmad Malik, Sardar Tariq Masood and Mazhar Alam Miankhel, JJ, agreeing; Syed Mansoor Ali Shah, J also agreeing but with his own reasons.

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

----Ss. 299(m), 302(b), 305(a), 307, 309(2), 310 & 313---Qatl-i-amd---Waiver and compounding in cases of 'Qisas'---'Wali'---Right of Qisas devolving onto heirs of wali---Principles---In cases of Qisas the right of qisas vested in each wali (section 313, P.P.C.); a wali may waive his right of Qisas (section 309, P.P.C.); and a wali may compound his right of Qisas (section 310, P.P.C.)---Heirs of the victim were his wali, according to his personal law (section 305(a), P.P.C.) --- Person entitled to claim Qisas was wali [section 299(m), P.P.C.] and upon death of a wali his right of Qisas devolved on the heirs of the wali (section 307, P.P.C.)---Even an heir of an heir of a victim had a (devolved) right of Qisas and he himself became a wali and in that devolved capacity of a wali he too could waive or compound the offence of qatl-i-amd in a case of Qisas---According to S. 309(2), P.P.C. and the proviso to the same if a wali (having the original or a devolved right of Qisas) did not waive his right of Qisas but the other wali waived their right of Qisas then the non-waiving wali was entitled to his share of Diyat.

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

----S. 304---Qatl-i-amd---Proof of qatl-i-amd liable to Qisas---Case of Ta'azir and 'Qisas"---Distinction---Criminal case became a cases of Qisas when, after the case had reached the Trial Court, either a confession was made by the accused person before the Trial Court during the trial or Tazkiya-tul-shahood (scrutiny of the witnesses before trial of the accused person) was undertaken by the Trial Court and unless either of the said two things happened before the Trial Court every criminal case was to be treated as a case of Ta'zir at every stage of the case including the stage of investigation.

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

----S. 345(2)---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---'Ta'azir'---Compounding of offence --- Inheriting the right to compound offence---Scope---In a case of Ta'zir an offence of qatl-i-amd under S.302, P.P.C. may be compounded by the "heirs of the victim" and when an heir of a victim was only a person who inherited directly from the victim then what was clearly meant by S.345(2), Cr.P.C. was that only a person who could directly inherit from the victim was the person who could compound the offence of qatl-i-amd of the victim and none else.

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

----S. 345(2)---Penal Code (XLV of 1860), Ss. 302(b), 305(a), 307, 309, 310 & 313---Qatl-i-amd---'Ta'azir' and 'Qisas'---'Wali'---Compounding of offence---Scope---Inheriting the right to compound offence---Scope---Different principles applied to cases of Qisas and Ta'zir in the matter of compounding of an offence---Concept of wali relevant to a case of Qisas was not relevant to a case of Ta'zir which belonged to a different regime of criminal law and was governed by separate and distinct principles---In cases of Qisas the term wali meant the entire body or group of persons who were entitled to claim Qisas for a qatl-i-amd and such persons included those who were heirs of the victim entitled to inherit from him as well as those on whom the right of Qisas devolved upon death of an heir of the victim, even if such heirs of the heir of the victim did not themselves inherit from the victim directly---In cases of Ta'zir the law had conferred the capacity to compound only upon the heirs of the victim and had not provided for devolving of the capacity to compound upon an heir of an heir of the victim as had been provided in cases of Qisas---Difference between devolving of a right of Qisas and devolving of the status of an heir also had to be kept in mind---Section 307, P.P.C. recognized that the right of Qisas devolved on an heir of an heir of the victim and because of devolving of the right of Qisas on him an heir of an heir of the victim also became a wali of the victim and in that devolved capacity of wali such heir of an heir of the victim could also waive or compound the relevant offence---Section 307, P.P.C. however, did not provide or recognize that through such devolving of the right of Qisas on him an heir of an heir of the victim also became or was recognized as an heir of the victim---Such distinction between devolving of the right of Qisas and devolving of a right to inherit from the victim had to be clearly understood because the first was relevant to the concept of Qisas whereas the second was relevant to the concept of Ta'zir---In Qisas the tie of blood with the victim was the governing consideration even if a wali in his devolved capacity was not in a position to directly inherit from the victim whereas in Ta'zir the sole consideration for the capacity to compound was the capacity to inherit directly from the victim. Ahmad Nawaz @ Gogi v. The State PLD 2007 Lah. 121 and Abdul Rashid alias Teddi v. The State 2013 SCMR 1281 not to be treated as good precedents.

Sh. Muhammad Aslam and another v. Shaukat Ali @ Shauka and others 1997 SCMR 1307 and Zahid Rehman v. The State PLD 2015 SC 77 ref.

Ahmad Nawaz @ Gogi v. The State PLD 2007 Lah. 121 and Abdul Rashid alias Teddi v. The State 2013 SCMR 1281 not to be treated as good precedents.

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

----S. 345(2)---Penal Code (XLV of 1860), Ss. 302(b), 309 & 310---Qatl-i-amd---'Ta'azir' and 'Qisas'---Partial compromise---Such a compromise was acceptable in a case of Qisas but the same was not acceptable in a case of Ta'zir.

Sh. Muhammad Aslam and another v. Shaukat Ali @ Shauka and others 1997 SCMR 1307 ref.

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

----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), S.345(2)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---'Ta'azir'---Compounding of offence---Inheriting the right to compound offence---Scope---Accused and co-accused were alleged to have murdered the deceased-victim---Accused was sentenced to death by the Trial Court whereas the co-accused was sentenced to imprisonment for life---During pendency of appeal before the High Court, the accused and co-accused filed an application before the Court seeking their acquittal on the basis of a compromise with the legal heirs of the victim, which included the victim's father, widow and son---Widow and son of victim confirmed entering into the compromise, however the victim's father denied factum of any such compromise---During pendency of such application before the High Court the victim's father died, leaving behind four sons---Said sons, who were also brothers of the victim, claimed that after their father's death, the right to compound the offence had devolved upon them, and since they were not agreeable to the compromise, the accused and co-accused should not be acquitted on the basis of a compromise with the victim's surviving heirs i.e. widow and son of victim---[Per Asif Saeed Khan Khosa, CJ (Majority view): Present case was one of Ta'zir, therefore, the offence of murder of victim could be compounded only by his heirs---Concept of devolving of the right of Qisas upon an heir of an heir/wali of the victim relevant to a case of Qisas was not applicable to cases of Ta'zir---In the absence of any devolving of the capacity to compound in a case of Ta'zir the capacity to compound possessed by an heir of the victim at the time of murder of the victim stood exhausted upon the subsequent death of that heir---Being the father and an heir of the victim, the father had a capacity to compound the relevant offence but he had not compounded the offence during his own lifetime and upon his death his capacity to compound stood exhausted and the same was not heritable as father's heirs were not heirs of the victim because they did not, and could not, inherit from him---After father's death his heirs could not be treated as heirs of the victim and the only heirs of victim left in the field at such stage were those surviving heirs of victim who could inherit directly from him and they could compound the offence throughout their lifetime irrespective of timing of the father's death---High Court was, therefore, correct in holding that the victim's brothers, who were heirs of a subsequently dying heir of the victim, were not relevant to the matter of compounding of the offence]---[Per Syed Mansoor Ali Shah, J, agreeing with his own reasons (Minority view): Applying the principles of the Islamic Law of inheritance to the present case, in the presence of the victim's son and widow, his brothers stood excluded from the line of succession---Available heirs at the time of compromise were the son and the widow of the victim---Brothers of victim were excluded not because they were the heirs of the heirs of the victim but because they were not the heirs of the victim under the Islamic Law of inheritance---Even if the present case was one of Qisas, under Islamic Law of inheritance, the brothers of the victim would have stood ousted in the presence of the son of the victim and could not pass as wali of the victim even though they were the heirs of the deceased father---Any embargo on the exercise of the right to compound under S.345(2), Cr.P.C. by the subsequent heirs of the victim might not be in consonance with Islamic Law of Inheritance---Appeal was dismissed in circumstances.

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

----S. 345(2)---Penal Code (XLV of 1860), S.302(b)---Qatl-i-amd---'Ta'azir'---Compounding of offence---Timing---In cases of Ta'zir S.345(2), Cr.P.C. did not specify any time when compounding of an offence may take place---Provisions of S.345(2), Cr.P.C. did not place any embargo upon compounding of the relevant offence by the surviving heirs of a victim at a time when one or more of the heirs of the victim had already died.

Per Syed Mansoor Ali Shah, J: agreeing with Asif Saeed Khan Khosa, CJ, but with his own reasons [Minority view]

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

----S. 345(2)---Penal Code (XLV of 1860), Ss. 302(b), 305(a), 307, 309, 310 & 313---Qatl-i-amd---'Ta'azir' and 'Qisas'---'Wali'---Compounding of offence---'Heirs of the victim' or 'walis of the victim', determination of---Qisas and Ta'zir were two separate regimes, having their own sets of rules, however, when it came to the question of determining the heirs of the victim or walis of the victim, for the purposes of compoundability of the offence of qatl-i-amd, the two regimes converged and both took guidance from the Islamic Law of inheritance to resolve such question---Islamic Law of inheritance was the only law that provided for determination of heirs in the country. [Minority view]

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

----S. 345(2)---Penal Code (XLV of 1860), S. 302(b)---Qatl-i-amd---'Ta'azir'---Compounding of offence---Inheritable right---Heirs of the victim, determination of---Under the regime of Ta'zir, the heirs of the victim could compound the offence of qatl-i-amd under S.345(2), Cr.P.C. with the permission of the Court---Right vested in the "heirs of the victim" made the right of compoundability under Ta'zir inheritable---Such right was also an actionable claim, hence inheritable---Section 345(2) Cr.P.C. had no time limit and could be invoked by the accused party at any stage after the offense was committed and before the sentence was executed---Purpose of said provision was understandably to encourage settlements between warring parties in order to protect family life and ensure a peaceful community---Heirs of the deceased victim could exercise such right---First heirs of the victim were those who survived him immediately at the time of his death---Heirship of the victim continued in time and at any given time, when the heirs who survived at the time of death of the deceased were no more, there would still be heirs of the victim under the Islamic law of inheritance in the shape of sharers, residuaries or distant kindred---Heirship was based on blood and marriage and continued as the families evolved---Available heirship was to be determined afresh when the right to compound was to be exercised irrespective of the time of death of the victim---Available heirs of the victim and not heirs of the heirs were to be determined during such exercise. [Minority view].

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

----Ss. 299(m), 302(b), 305(a) & 307(c)---Qatl-i-amd---Waiver and compounding in cases of 'Qisas'---'Wali'---Right of Qisas devolving onto heirs of wali---Principles---Wali by definition was an heir of the victim---Right to Qisas was akin to an actionable claim and was, therefore, inheritable under the Islamic Law of inheritance---Right of Qisas held by the wali of the victim devolved on to the next wali of the victim, who was of course an heir of the victim and not necessarily an heir of the heir or heir of the wali---Section 307, P.P.C. did not provide a scheme of inheritance that helped identify the next wali of the victim. [Minority view]

Muhammad Akram Qureshi, Advocate Supreme Court for Appellant.

Rana Abdul Majeed, Additional Prosecutor-General Punjab for the State.

Rashid Mehmood Sindhu, Advocate Supreme Court, Syed Rafaqat Hussain Shah, Advocate-on-Record with Respondents Nos. 2 and 3 in person.

P L D 2019 Supreme Court 488

Present: Asif Saeed Khan Khosa, C.J., and Syed Mansoor Ali Shah, J

KANWAR ANWAAR ALI, Special Judicial Magistrate: In the matter of

Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No.259 of 2018, decided on 22nd February, 2019..

Notice in compliance with the order dated 12-2-2019 passed in Criminal Appeal No.259 of 2018 to Mr. Kanwar Anwaar Ali, Special Judicial Magistrate on account of dereliction of duty and lack of sufficient legal knowledge.

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

----Art. 22---Test identification parade---Evidentiary value and object of test identification parade in criminal cases stated.

Following is the evidentiary value and object of a test identification parade:

(i) Test identification parade and correct pointing out of an accused person by an eye-witness therein was not a substantive piece of evidence. Evidence offered through identification proceedings was not a substantive piece of evidence but was only corroborative of the evidence given by the witnesses at the trial. It had no independent value of its own and could not as a rule, form a sufficient basis for conviction though the same may add some weight to the other evidence available on record.

Muhammad Yaqoob and another v. The State 1989 PCr.LJ 2227; Muhammad Bashir v. The State PLD 1958 SC (Pak) 1 and Muhammad Afzal and another v. The State 1982 SCMR 129 ref.

(ii) Identification parade was necessary only where the offender was a complete stranger to the witnesses. Whole object of the identification proceedings was to find out whether the suspect was or was not the real offender. [p. 498] B

Ismail and another v. The State 1974 SCMR 175; Satya Narain v. The State AIR 1953 All. 385 and Kind v. Christle 1914 AC 545 ref.

(iv) Failure to hold a test identification parade was not always fatal to the prosecution's case. [p. 503] Y

Muhammad Akram Rahi and others v. The State and others 2011 SCMR 877 and Ghazanfar Ali alias Pappu and another v. The State 2012 SCMR 215 ref.

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

----Art. 22---Test identification parade---Guidelines, requirements and safeguards necessary for holding a test identification parade in connection with criminal cases stated.

Following are the guidelines, requirements and safeguards necessary for holding a test identification parade:

(i) Vital factor determinative of the worth and value of test identification proceedings was the effectiveness of the precautions taken, before and during the course of such proceedings which were designed to eliminate the possibility of unjustified convictions.

(ii) Test identification proceedings were not the testimony of a witness but the testimony of the senses of the witness. It was essentially a test of his power of observation and perception, a test of his power to recognize strangers and a test of his memory. Such gifts of God may vary from man to man. A witness may be honest, independent and truthful but then his memory may be faulty. Tricks of memory and its conscious and unconscious activity could also wrap the vision of a man. When mistakes were possible in the recognition of a man known from before, then the possibility of such mistakes in identifying strangers was definitely greater. And more so when the witnesses had seen the offender for the first time during the occurrence and that also briefly and not with a calm but in an excited, confused and terrorised state of mind.

Lal Pasand's case PLD 1981 SC 142 ref.

(iii) Memories faded and visions got blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period had intervened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrence.

(iv) Test identification, where the possibility of the witness having seen the accused persons after their arrest could not be ruled out, was worth nothing at all. It was, therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest, the suspects were put to identification tests as early as possible. Such suspects should preferably, not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings were held. This was to avoid the possibility of overzealous investigating officers showing the suspects to the witnesses while they were in police custody. Even when these accused persons were, of necessity, to be taken to Courts for remand etc. they must be warned to cover their faces if they so choose so that no witness could see them.

(v) Identification of an accused person by eye-witnesses before the trial court during a trial was generally considered to be quite unsafe because before such identification during the trial the eye-witnesses got many opportunities to see the accused persons appearing before the court in connection with their remand, distribution of copies of statement of prosecution witnesses, framing of the charge and recording of statements of other prosecution witnesses.

Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088; Muhammad Afzal alias Abdullah and another v. The State and others 2009 SCMR 436; Nazir Ahmad v. Muhammad Iqbal 2011 SCMR 527; Shafqat Mehmood and others v. The State 2011 SCMR 537; Ghulam Shabbir Ahmed and another v. The State 2011 SCMR 683 and Azhar Mehmood and others v. The State 2017 SCMR 135 ref.

(vi) Identification parades should never be held at police stations.

(vii) Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons had remained in police custody after their arrest and before the test identification and must incorporate such fact in his report about the proceedings.

(viii) In order to guard against the possibility of a witness identifying an accused person by chance, the number of persons (dummies) to be intermingled with the accused persons should be as much as possible. But then there was also the need to ensure that the number of such persons was not increased to an extent which could have the effect of confusing the identifying witness. Superior Courts had, through their wisdom and long experience, prescribed that ordinarily the ratio between the accused persons and the dummies should be 1 to 9 or 10. Such ratio must be followed unless there were some special justifiable circumstances warranting a deviation from it.

(ix) If there were more accused persons than one who had to be subjected to test identification, then the rule of prudence laid down by the superior Courts was that separate identification parades should ordinarily be held in respect of each accused person. Identification of many accused persons in one line in one go during a test identification parade was improper. Every accused person was to be put to a separate test identification parade.

Lal Pasand v. The State PLD 1981 SC 142; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Ziaullah alias Jajj v. The State 2008 SCMR 1210; Bacha Zeb v. The State 2010 SCMR 1189; Shafqat Mehmood and others v. The State 2011 SCMR 537; Gulfam and another v. The State 2017 SCMR 1189; Hakeem and others v. The State 2017 SCMR 1546 and Kamal Din alias Kamala v. The State 2018 SCMR 577 ref.

(x) It must be ensured that before a witness had participated in the identification proceedings, he was stationed at a place from where he could not observe the proceedings and that after his participation he was lodged at a place from where it was not possible for him to communicate with those who had yet to take their turn. It also had to be ensured that no one who was witnessing the proceedings, such as the members of the jail staff etc., was able to communicate with the identifying witnesses.

(xi) During a test identification parade the witness had to specify the role allegedly played by an accused person in commission of the offence. [pp. 502, 503] T & W

Ismail and another v. The State 1974 SCMR 175; Khadim Hussain v. The State 1985 SCMR 721; Ghulam Rasul and 3 others v. The State 1988 SCMR 557; Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088; State/Government of Sindh through Advocate-General, Sindh, Karachi v. Sobharo 1993 SCMR 585; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Siraj-ul-Haq and another v. The State 2008 SCMR 302; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Afzal alias Abdullah and another v. State and others 2009 SCMR 436; Shafqat Mehmood and others v. The State 2011 SCMR 537; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Muhammad Fayyaz v. The State 2012 SCMR 522; Azhar Mehmood and others v. The State 2017 SCMR 135; Hakeem and others v. The State 2017 SCMR 1546 and Kamal Din alias Kamala v. The State 2018 SCMR 577 ref.

(xii) Magistrate conducting the proceedings must take an intelligent interest in the proceedings and not be just a silent spectator of the same bearing in mind at all times that the life and liberty of someone depended only upon his vigilance and caution.

(xiii) Magistrate was obliged to prepare a list of all the persons (dummies) who formed part of the line-up at the parade along with their parentage, occupation and addresses.

(xiv) Magistrate must faithfully record all the objections and statements, if any, made either by the accused persons or by the identifying witnesses before, during or after the proceedings.

(xv) Where a witness correctly identified an accused person, the Magistrate must ask the witness about the connection in which the witness had identified that person i.e. as a friend, as a foe or as a culprit of an offence etc. and then incorporate such statement in his report.

(xvi) Where a witness identified a person wrongly, the Magistrate must so record in his report and should also state the number of persons wrongly picked by the witness.

(xvii) Magistrate was required to record in his report all the precautions taken by him for a fair conduct of the proceedings.

(xviii) Magistrate had to give a certificate at the end of his report in the form prescribed by C.H.II.C. of Vol. III of Lahore High Court Rules and Orders. [p. 501] R

(xix) Said measures listed should, however, not be taken as exhaustive of the steps which were required to be taken before, during and after the identification proceedings. All said requirements were no doubt mandatory but at the same time they were only illustrative of the precautions which the Courts of law demanded before some respect could be shown to the evidence offered through the test identification proceedings.

In attendance:

Kanwar Anwaar Ali, Special Judicial Magistrate (in person).

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab.

P L D 2019 Supreme Court 504

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Yahya Afridi, JJ

BASHIR AHMED through Legal Representative and others---Appellants

Versus

MUHAMMAD HUSSAIN and others---Respondents

Civil Appeal No.42-L of 2010, decided on 28th February, 2019.

(On appeal against the order dated 23.5.2005 of the Lahore High Court, Lahore passed in C.M.No.1/2002 in W.P. No.136-R/82.)

Civil Procedure Code (V of 1908)---

----S. 12(2)---Limitation Act (IX of 1908), S. 18 & First Sched. Art.181---Application under S.12(2), C.P.C, filing of---Limitation---Fraud---In terms of Art.181 of First Sched. to the Limitation Act, 1908, the period of limitation to file an application under S. 12(2), C.P.C. would be three years, and the crucial starting point for the period of limitation would be when the right to apply accrued to the aggrieved applicant, which in case of an application under S.12(2), C.P.C. would be the date when the impugned decision based on fraud and concealment was passed---In case the aggrieved person had, by means of fraud, been kept from the knowledge of decision of the Court, he may then seek the extension of the commencing point of the period of limitation of three years from the date of the decision under Art.181, to the date of knowledge of the said decision under S.18 of the Limitation Act, 1908---Ground of fraud or concealment had to be specifically pleaded with clear particulars and should not be a vague assertion.

Faizum alias Toor v. Nander Khan 2006 SCMR 1931; Mian Muhammad and others v. Pir Bakbsh and others 2005 SCMR 1505; Fida Hussain v. Ghulam Sarwar 2002 SCMR 1554; Mst. Amtul Kabir and others v. Safia Khatoon and others 1991 SCMR 1022; Muhammad Iqbal and another v. Muhammad Alamgir and others 1990 SCMR 1377; Ghulam Shabbir v. Mst. Nur Begum and others PLD 1977 SC 75; Izzat Bakhsh v. Nazir Ahmad and 13 others PLD 1976 SC 508; Faizum alias Toor v. Nander Khan and others 2006 SCMR 1931; Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCMR 431 and Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 ref.

Asif (grandson of Bashir Ahmad) in person.

Nemo for Respondents.

P L D 2019 Supreme Court 509

Present: Sh. Azmat Saeed, Mushir Alam, Maqbool Baqar, Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ

Justice MUHAMMAD FARRUKH IRFAN KHAN, Judge, Lahore High Court, Lahore---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs Division Government of Pakistan, Islamabad and 4 others---Respondents

Constitutional Petition No.39 of 2016, decided on 18th October, 2018.

(Under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, for setting aside the order of the Chief Justice of the Lahore High Court, dated 26.11.2016, passed on the administrative side).

(a) Constitution of Pakistan---

----Art. 194---Inter-se seniority of Judges of the (Lahore) High Court, determination of---Reckoned from date of oath---Re-fixing of inter-se seniority of the Judges of the (Lahore) High Court by its Chief Justice---Constitutionality---Petitioner and twenty one (21) other persons were appointed as Additional Judges of the (Lahore) High Court by the President and in such behalf a Notification was issued by the Secretary Ministry of Law, Justice and Parliamentary Affairs Division---On 19.02.2010, the then Chief Justice of the (Lahore) High Court administered the oath to 21 out of the 22 Additional Judges of the (Lahore) High Court---Petitioner at that point of time was not in the country and could not reach Pakistan for the oath scheduled for 19.02.2010 and as per his case the then Chief Justice of the (Lahore) High Court was informed accordingly---Petitioner admittedly was administered the oath of his office the next day on 20.02.2010---Subsequently certain senior Judges of the (Lahore) High Court ('the respondents') made a representation to the then Chief Justice of the (Lahore) High Court, claiming that they were senior to the petitioner as their inter-se seniority should be reckoned from the date when the petitioner and the said respondents made their respective oaths---Chief Justice vide impugned order accepted the representation of respondents and re-fixed their inter-se seniority by holding that respondents were senior to the petitioner---Primary basis of such an order was that the petitioner had entered his office by making his oath on 20.02.2010, while respondents had made their oath of office on 19.02.2010---Held, that plain reading of Art.194 of the Constitution suggested that a person could only enter the Office of a Judge when he made oath in the manner set out in the Constitution---In the absence of such an oath, the person had not entered the Office of a Judge and his appointment thereto did not stand completed and concluded---Person was not, in fact, or in law a Judge until and unless he made his oath in terms of Art.194 of the Constitution---Scheme of the Constitution suggested that where an Office for a fixed period envisaged a pre-condition of making an oath, such period would commence under the Constitutional dispensation from the date when the oath was made---Perusal of the notification whereby the Judges in question, including the petitioner, were appointed by the President as Additional Judges of the (Lahore) High Court revealed that the same did not have the tone and tenor of an appointment in praesenti; it did not state that the appointment was "with immediate effect" or that the President "hereby appoints" such persons as the Additional Judges of the (Lahore) High Court---Said appointments were to take effect when the said Additional Judges made their oaths, thus, it was the intention of the appointing authority that the appointment of the petitioner as well as the other Additional Judges would take effect from the date when they made their oaths before the Chief Justice of the (Lahore) High Court---Until such an oath was made, the person did not enter into the Office of an Additional Judge, which remained vacant---Admittedly the petitioner made his oath on the 20-2-2010 while the respondents made their oaths on 19.2.2010, hence, the respondents were senior to the petitioner having been appointed earlier---Constitutional petition filed by the petitioner was dismissed accordingly.

Supreme Court Bar Association through President and others v. Federation of Pakistan and others PLD 2002 SC 939 and Muhammad Aslam Awan, Advocate Supreme Court v. Federation of Pakistan and others 2014 SCMR 1289 ref.

(b) Estoppel---

----Acquiescence was a specie of estoppel.

(c) Estoppel---

----No estoppel could exist against the law or the Constitution.

Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486; Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. and another PLD 1995 SC 66; Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 and Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642 ref.

(d) Illegality---

----No one could claim permanent rights on the basis of an illegality or illegal orders.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207; Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907; Bashir Ahmed and others v. Deputy District Education Officer (M) and others 2005 SCMR 1040; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCMR 1814 and Muhammad Nadeem Arif and others v. Inspector- General of Police, Punjab, Lahore and others 2011 SCMR 408 ref.

(e) Constitution of Pakistan---

----Art. 194---Administrating of oath to Judges of the High Courts---Procedure---Every effort had to be made to ensure that all the persons appointed (as Judges of the High Court) made their oath together subject to unforeseen circumstances---No discretion in such behalf, was vested with the Chief Justice to take oaths in batches so as to artificially grant seniority to some Judge over other Judges---Such a course of action would be devoid of bona fide and hence, of jurisdiction and therefore justiciable.

Hamid Khan, Senior Advocate Supreme Court, Muhammad Waqar Rana, Advocate Supreme Court, Hassan Irfan Khan, Advocate Supreme Court assisted by Barrister Khadija Yasmin Bokhari, Advocate and M.S. Khattak, Advocate-on-Record for Petitioner.

Ch. Aamir Rehman, Additional AGP and Danish Aftab, Associate Lawyer for Federation.

Nemo for Respondents Nos.3 and 5.

Mansoor Usman Awan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.4.

Ahmed Awais, Advocate General, Punjab, Shah Gul, Additional A.G. Punjab and Zahoor Ahmed, Assistant Registrar, Lahore High Court on behalf of Government of the Punjab.

P L D 2019 Supreme Court 527

Present: Asif Saeed Khan Khosa, C.J., Mazhar Alam Khan Miankhel and Sajjad Ali Shah, JJ

NOTICE TO POLICE CONSTBLE KHIZAR HAYAT SON OF HADAIT ULLAH on account of his false statement: In the matter of

Criminal Miscellaneous Application No.200 of 2019 in Criminal Appeal No.238-L of 2013, decided on 4th March, 2019.

(Notice in pursuance of the order passed by this Court on 13.02.2019 in Criminal Appeal No.238-L of 2013 to Police Constable Khizar Hayat son of Hadait Ullah on account of his false statement made before the trial court in a criminal case).

(a) Maxim:---

----'Falsus in uno, falsus in omnibus'---Historical perspective of the phrase 'Falsus in uno, falsus in omnibus' stated.

George Fisher, The Jury's Rise as Lie Decector, 107 Yale L.J. 654 (1997); Thomas Starkie, A Pracical Treatise On The Law Of Evidence, 233 (Boston, Wells & Lilly) (1826); Trial of Hampden (9 Howell's State Trials 1953, 1101 (1684); Trial of Langhom (7 Howell's State Trials 417, 478 (1679); Trial of Coleman (7 Howell's State Trials I, 71 (1678); The Santissima Trinidad (20 U.S. (7 Wheat) 283, 339 (1822); John Henry Wigmore, A Treatise On the Anglo-American System Of Evidence in Trials At Common Law (1940); Barbara J. Shapiro, Beyond Reasonable Doubt and Probable Cause; Historical Perspectives on the Anglo-American Law of Evidence (1991); George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 655 (1997) and California Jury Instructions, Criminal Section 2.21.2 (West 1993) ref.

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

----S. 194---Perjury---'Falsus in uno, falsus in omnibus', rule of---Applicability in Pakistan---Historically the main reasoning given by the superior Courts in Pakistan for not applying the rule of 'falsus in uno, falsus in omnibus' related to the social conditions prevalent in the country---Superior Courts felt that generally witnesses testifying in criminal cases did not speak the whole truth and had a tendency to exaggerate or economise with the real facts, thus, there was a danger of miscarriage of justice in the sense that a real culprit may go scot free if a court disbelieved the whole testimony on account of reaching the conclusion that the testimony was false in some respect---Such an approach, which involved extraneous and practical considerations, was arbitrary besides being subjective and the same could have drastic consequences for the rule of law and dispensation of justice in criminal matters---Court of law could not grant a licence to a witness to tell lies or to mix truth with falsehood and then take it upon itself to sift grain from chaff when the law of the land made perjury or testifying falsely a culpable offence---Survey of case-law from the superior Courts of Pakistan wherein it was held that the rule of 'falsus in uno, falsus in omnibus' was not applicable in Pakistan provided.

Ghulam Muhammad and others v. Crown PLD 1951 Lah. 66; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Mohamed Fiaz Baksh v. The Queen PLD 1959 PC 24; Tawaib Khan and another v. The State PLD 1970 SC 13; Muhammad Ameer and another v. Riyat Khan and others 2016 SCMR 1233; The State v. Mushtaq Ahmad PLD 1973 SC 418; Samano v. The State 1973 SCMR 162; Bakka v. The State 1977 SCMR 150; Khairu and another v. The State 1981 SCMR 1136; Ghulam Sikandar and another v. Mumaraz Khan and others PLD 1985 SC 11; Ziaullah v. The State 1993 SCMR 155; Zulfiqar Ali v. The State 1993 SCMR 2046; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Muhammad Ahmad and another v. The State and others 1997 SCMR 89; Nazeer Ahmad alias Nazeera v. The State 1998 SCMR 1768; Sardar Khan and 3 others v. The State 1998 SCMR 1823; Mir Hassan and others v. State and others 1999 SCMR 1418; Khawand Bakhsh and others v. The State and others PLD 2000 SC 1; Rashid Khan and another v. The State 2000 SCMR 854; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Qutab-ud-Din v. The State PLD 2001 SC 101; Anwar and another v. The State 2001 SCMR 1518; Muhammad Zubair and another v. The State 2002 SCMR 1141; Ellahi Bakhsh v. Rab Nawaz and another 2002 SCMR 1842; Umar Hayat v. The State 2007 SCMR 1296; Ghulam Mustafa v. The State 2009 SCMR 916; Khadim Hussain v. The State 2010 SCMR 1090; Muhammad Zaman v. State 2014 SCMR 749; Muhammad Raheel alias Shafique v. The State PLD 2015 SC 145; Muhammad Afzal v. The State 2017 SCMR 1645 and Munir Ahmad and another v. The State and others 2019 SCMR 79 ref.

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

----S. 194---Perjury---'Falsus in uno, falsus in omnibus', rule of---Islamic perspective---Giving testimony its due importance and weight was an obligatory duty (under Islam) and those who stood firm in their testimonies were among the people of righteousness and faith---Among the necessities of faith was giving truthful testimony even if against oneself or a relative---If there were no other witnesses that would enable justice to be done and there was a fear that someone's right may be lost, it then became the individual responsibility of the few available witnesses to testify---Islam not only enjoined giving testimony, it also forbade concealing it because concealing evidence was something that was disapproved in Islam and detested by its nature---Giving false testimony had many evils for it supported falsehood against truth and promoted injustice and aggression against justice; it also effaced fairness and equity and posed danger to public safety and security---Corpus of traditions of the Holy Prophet (Peace Be Upon Him), also provided that false testimony was one of the greater sins.

(Surah Al-Baqarah: verse 42); (Surah Al-Baqarah: verse 282); (Surah Al-Baqarah: verse 283); (Surah Al-Ma'idah: verse 8); (Surah An-Nisa: verse 135); (Surah An-Nisa: verse 135); (Surah At-Talaq: verse 2); (Surah Al-Ma'idah: verse 106); (Surah Al-Haj: verse 30); (Surah Al-Furqan: verse 72); The Translation of Meanings of Sahih Al-Bukhari (Arabic-English), Volume III, Dr. Muhammad Muhsin Khan (Islamic University, Al-Medina Al-Munawwara), 4th Edition, Kazi Publications, page 499 and The Translation of Meanings of Sahih Al-Bukhari (Arabic-English), Volume III, Dr. Muhammad Muhsin Khan (Islamic University, Al-Medina Al-Munawwara), 4th Edition, Kazi Publications, page 515 ref.

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

----S. 194---Perjury---'Falsus in uno, falsus in omnibus', rule of---Applicability in Pakistan---Truth was the foundation of justice and justice was the core and bedrock of a civilized society and, thus, any compromise on truth amounted to a compromise on a society's future as a just, fair and civilized society---Supreme Court directed that the rule 'falsus in uno, falsus in omnibus' shall henceforth be an integral part of the country's jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit, and that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury---Application was disposed of accordingly.

In attendance:

Ch. Nusrat Javed Bajwa, Advocate Supreme Court along with Khizar Hayat Police Constable in person.

Ahmed Raza Gillani, Additionl Prosecutor General, Punjab and Munir Ahmed, S.I.

P L D 2019 Supreme Court 563

Present: Manzoor Ahmad Malik, Sardar Tariq Masood and Syed Mansoor Ali Shah, JJ

SECRETARY REVENUE DIVISION, ISLAMABAD---Appellant

Versus

IFTIKHAR AHMED TABASSAM and others---Respondents

Civil Appeal No.227-L of 2010, decided on 21st March, 2019.

(a) Accommodation Allocation Rules, 2002---

----Rr. 15(2) & 25(4)(b)---Unauthorized retention of Government accommodation after retirement---Payment of standard rent with penal charges---Respondent (retired civil servant) contended that he was not liable to pay rent in terms of R.25(4)(b) of the Accommodation Allocation Rules, 2002 (`the Rules') due to a stay order granted by the Service Tribunal during pendency of his appeal---Held, that as per Rr.15(2) & 25(4)(b) of the Rules, respondent could have retained official accommodation after his retirement only for a period of six months and thereafter he was liable to pay standard rent for the remaining period---Stay order granted by the Service Tribunal was insignificant as appeal was not decided on merits and was finally withdrawn by respondent, resulting in the withdrawal of the stay order, as if it never existed---After the withdrawal of the appeal respondent had no justification not to pay the penal rent in accordance with the Rules---Department was entitled to recover standard rent with penal charges from the respondent as per R.25(4)(b) of the Rules---Appeal was allowed accordingly.

(b) Constitution of Pakistan---

----Art. 212(3)---Appeal to Supreme Court---Substantial question of law of "public importance"---Meaning---To constitute "public importance," the matter must go substantially beyond the facts of the case; it was not sufficient that a question of law arose in the case, but whether the question of law transcended the facts of the individual case and was substantial enough to have a significant bearing on the public interest---In the context of service laws a substantial question of law of public importance was a question that may arise out of a case but then surpassed the parties, to the case, and had an overarching effect on the public or a community or a class of civil servants---To determine what might constitute a substantial question of law of public importance under Art.212(3) of the Constitution, a good test was to determine whether any decision by the Supreme Court in the matter would have a bearing on the public or on the rights of a community or segment of civil servants and would not be restricted to the parties to the case---Any question of law that involved interpretation of the law, rules, instructions, notifications or governmental policy; that had not been finally settled by the Supreme Court or was not free from difficulty or ambiguity or called for discussion of alternative views; that highlighted a state of uncertainty in the law, arising from a contradictory precedent, or, that pointed out blatant abuse of due process, may pass for a substantial question of law of public importance.

Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66; Suo Motu Case No.13 of 2007 PLD 2009 SC 217; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Sohail Butt v. Deputy Inspector General of Police 2011 SCMR 698; Watan Party v. Federation of Pakistan PLD 2012 SC 292 and Suo Motu Action Regarding Islamabad-Rawalpinid Sit-in/Dharna case PLD 2019 SC 318 ref.

(c) Accommodation Allocation Rules, 2002---

----R. 25(4)(b)---Constitution of Pakistan, Art. 212(3)---Substantial question of law of "public importance"---Scope---Unauthorized retention of Government accommodation after retirement---Payment of standard rent with penal charges---In the present case, the question was whether a civil servant could unauthorizedly retain official accommodation beyond a period of six months without paying penal rent---Hence, the case required interpretation of the Accommodation Allocation Rules, 2002 ('the Rules'), which constituted a substantial question of law of public importance because the decision by the Supreme Court would affect all those civil servants who were subject to the Rules---Appeal was allowed in circumstances.

Izharul Haque, Advocate Supreme Court for Appellant.

Hafiz Tariq Nasim, Advocate Supreme Court for Respondent No.1.

P L D 2019 Supreme Court 570

Present: Umar Ata Bandial, Qazi Faez Isa and Munib Akhtar, JJ

COMMANDANT, ELITE FORCE, KHYBER PAKHTUNKHWA and others---Appellants

Versus

JAMSHED ALI---Respondent

Civil Appeal No.699 of 2017, decided on 4th April, 2019.

(On appeal from the judgment/order dated 27-1-2017 of the Khyber Pakhtunkhwa Service Tibunal, Peshawar passed in S.A. No.881 of 2014).

Per Umar Ata Bandial, J; Qazi Faez Isa, J agreeing;

(a) Civil service---

----Government servant convicted for criminal offence---Acquittal on basis of compromise---Reinstatement in service---Legality---Both parties (i.e. the relevant department and the respondent-government servant) were interested in the holding of a proper inquiry in relation to the allegations leveled by the department against the respondent---Service Tribunal in the impugned judgment had overlooked such aspect of the case and directed reinstatement of respondent as an immediate consequence of merely the compromise between the parties---Supreme Court directed that the department was to conduct a fresh inquiry in accordance with the provisions of law, which inquiry shall be completed within two months, and that the respondent shall have no entitlement to back benefits unless the allegations against him were dismissed in the inquiry [Majority view].

Per Qazi Faez Isa, J: Munib Akhtar, J dissenting.

(b) Supreme Court Rules, 1980---

----O. XI---Constitution of a larger Bench, request for---Powers of the Chief Justice of the Supreme Court---Scope---[Per Qazi Faez Isa, J]: When the Supreme Court passed a judicial order and referred the case to the Chief Justice for the constitution of a larger Bench then the Chief Justice did not have the discretion not to constitute a large Bench; his discretion in such a situation was limited to administratively determining the constitution of such bench]---[Per Munib Akhtar, J (dissenting): Any request made to the Chief Justice for constitution of a larger Bench, howsoever phrased or expressed, could not be tantamount to an "order" that mandatorily required the Chief Justice to constitute a larger Bench---Position of the Chief Justice was not, and could not be, reduced to a mere administrative conduit in such circumstances---Any inclination not to accede to a request for constituting a larger Bench was not binding on any subsequent holder of the office of Chief Justice---Matter rested, and must necessarily rest, in the hands of the Chief Justice alone.

Per Qazi Faez Isa, J: Munib Akhtar, J dissenting.

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

----S. 345(6)---Penal Code (XLV of 1860), Ss. 302 & 324---Constitution of Pakistan, Art. 189---Compounding of offence---Scope---Question as to whether acceptance of a compromise submitted under S.345(6), Cr.P.C resulted in the automatic acquittal of a convict-murderer or only had a bearing on the sentence part of his conviction---[Per Qazi Faez Isa, J]: Such question needed to be decided as it affected a large number of pending cases and would also have a bearing on future compromises---Since applications under S.345(6), Cr.P.C were also submitted before the High Courts and Session Courts throughout the country, therefore, the answer to the said question of law needed to be clearly enunciated in terms of Art.189 of the Constitution]---[Per Munib Akhtar, J (dissenting): Law regarding effect of a compromise continued to be that laid down in the judgment reported as Suo Motu Case No. 3 of 2017 (PLD 2018 SC 703) regardless of the (apparently so far unattended) request for a larger Bench made by the majority in the judgment reported as Shafqat v. State (PLD 2019 SC 43)---For purposes of stare decisis such request, as a matter of law, was not to be taken into account either by the Supreme Court or any other court in the country.

Suo Motu Case No.3 of 2017 PLD 2018 SC 703 and Shafqat v.State PLD 2019 SC 43 ref.

Qasim Wadood, Addl.A.G. for Appellants.

Haifz S.A. Rehman, Senior Advocate Supreme Court for Respondents.

P L D 2019 Supreme Court 577

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

SHAUKAT ALI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.133-L of 2017, decided on 16th May, 2019.

(On appeal from the judgment dated 9-2-2015 passed by the Lahore High Court, Lahore in Criminal Appeal No.381 of 2012 and CSR No.7-T of 2012).

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

----Ss. 302(b), 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence, acts of terrorism---Reappraisal of evidence---Confessional statement before Judicial Magistrate, retraction from---Reliance upon such retracted confessional statement for conviction---Prosecution's reliance was primarily upon accused's confessional statement before a Judicial Magistrate---Accused when indicted claimed trial and retracted from his confessional statement, nonetheless, on a careful examination, his confessional statement was free from all taints---Such statement was seemingly voluntary without duress or inducement,and inculpatory in nature---Confessional statement reflected a complete and truthful narration of event leading to deceased's death---Magistrate had taken due care to administer necessary warnings to the accused and recorded each detail thereof in his own hand---Confessional statement did not appear to have been fabricated to advance prosecution's case and thus could be squarely relied upon without any reflection on safe administration of criminal justice---Retraction notwithstanding, the confessional statementwas in synchronization with the events leading towards deceased's death and recovery of dead body on accused's disclosure---Circumstances excluded every hypothesis of innocence of accused and thus the Courts below had rightly relied upon the retracted confessional statement---Conviction of accused was maintained in circumstances---Appeal was dismissed.

(b) Criminal trial---

----Conviction---Confessional statement before Magistrate, retraction from---Retracted confession could form basis for conviction if found voluntary and truthful.

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

----Ss. 302(b), 365-A & 201---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., causing disappearance of evidence of offence, acts of terrorism---Reappraisal of evidence---Sentence, reduction in---Death sentence reduced to imprisonment for life---Predominant purpose behind the crime was to extract ransom and it was in that process that the deceased lost his life due to suffocation and use of excessive tranquilizers to subdue him---Viewed from such angle alteration of death penalty into imprisonment for life on each count would be appropriate---Consequently, penalty of death awarded to accused on three counts was altered into imprisonment for life on each count---Appeal was dismissed accordingly.

Mian Subah Sadiq Klasson, Advocate Supreme Court for Appellant.

Mazhar Sher Awan, Additional Prosecutor General Punjab for the State.

P L D 2019 Supreme Court 580

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD YAQOOB---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.154-L of 2017, decided on 30th May, 2019.

(On appeal from the judgment dated 10-2-2015 passed by the Lahore High Court, Lahore in Criminal Appeal No.463 of 2010 and CSR No26-T/2010).

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

----S. 302---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Murderous assault in court premises---Reappraisal of evidence---Conviction under Anti-Terrorism Act, 1997---Scope---Accused was present in court to record his statement as a witness when the murderous assault took place and accused allegedly fired at the complainant side---Anti-Terrorism Court sentenced the accused to death on two counts---Held, that admittedly there was enmity raging between both parties---Accused was arrested on the spot in the court room and he had not denied his presence during the episode albeit with the story of uncalled for provocation offered by the deceased persons---Three casings secured by the investigating officer though in commensurate with the number of alleged fire shots,nonetheless, were opined to have been fired from the weapon carried by the accused---Totality of circumstances pointed to the accused's guilt, and he had rightly been convicted on the charge of homicide, however his conviction under the Anti-Terrorism Act, 1997 was not in consonance with the law declared by the Supreme Court in the cases reported as Amjad Ali and others v. The State (PLD 2017 SC 661) and Farooq Ahmad v. The State and another (PLJ 2017 SC 408) and was, therefore, set aside---Appeal was dismissed with the said modification.

Amjad Ali and others v. The State PLD 2017 SC 661 and Farooq Ahmad v. The State and another PLJ 2017 SC 408 ref.

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

----S. 302---Murderous assault in court premises---Re-appraisal of evidence---Sentence, reduction in---Death sentence altered to imprisonment for life---Accused was present in court to record his statement as a witness when the murderous assault took place and accused allegedly fired at the complainant side---Trial Court sentenced the accused to death on two counts---Held, that the accused himself sustained injuries during the occurrence receipt whereof was denied by the prosecution witnesses---Such circumstance clouded moments immediately preceding the occurrence into mystery, particularly when in the given background, the accused was appearing only as a witness and had no exclusive motive, targeted upon the deceased persons---Alteration of death penalty awarded to accused into imprisonment for life would not be unconscionable in circumstances---Consequently, penalty of death awarded to accused on both counts was altered into imprisonment for life, with both sentences to run concurrently---Appeal was dismissed with the said modification.

Saqib Akram Gondal, Advocate Supreme Court for Appellant.

Ch. M. Mustafa, Deputy Prosecutor General for the State.

PLD 2019 Supreme Court 583

Present: Umar Ata Bandial, Munib Akhtar and Yahya Afridi, JJ

Messrs ADAMJEE INSURANCE COMPANY LTD. KARACHI---Appellant

Versus

COLLECTOR OF CUSTOMS, SALES TAX AND CENTRAL EXCISE (ADJUDICATION) KARACHI-III, KARACHI---Respondent

Civil Appeal No.725 of 2008, decided on 31st January, 2019.

(On appeal from the order dated 26-9-2006 passed by the High Court of Sindh, Karachi in S.C.A. No.202 of 2003).

(a) Central Excises Act (I of 1944)---

----S. 3-D---Limitation Act (IX of 1908), S. 10---Excise duty, arrears of---Scope---Excess amount of excise duty retained by an insurance company---Amount deemed to be an arrear of duty could not be regarded as being a trust, or the corpus of a trust, for a specific purpose within the meaning of S. 10 of the Limitation Act, 1908.

(b) Central Excises Act (I of 1944)---

----S. 3-D---Central Excise Rules, 1944, R. 10---Deemed arrears of excise duty under S.3-D of the Central Excises Act, 1944---Rule 10 of the Central Excise Rules, 1944 was inapplicable to said arrears of duty.

(c) Central Excises Act (I of 1944)---

----S. 3-D---Limitation Act (IX of 1908), Art. 149---Deemed arrears of excise duty under S. 3-D of the Central Excises Act, 1944, recovery of---Limitation and procedure---Excess amount of excise duty retained by an insurance company---Deemed arrear of duty under section 3-D of the Central Excises Act, 1944 would be recoverable as a debt owed to the Government and by way of a suit filed by the same---Government was to file a suit for recovery of the deemed arrear of duty, for which the period of limitation would be as provided for under Art. 149 of the Limitation Act, 1908.

Nagappa Chettiar and another v. Union of India (1969) 72 ITR 255 and Inderchand v. Secretary of State for India (1941) 9 ITR 673 ref.

Syed Naveed Amjad Andrabi, Advocate Supreme Court for Appellant.

Dr. Farhat Zafar, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Abdul Hameed Anjum, Secretary Legal, FBR for Respondent.

P L D 2019 Supreme Court 592

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD PERVAIZ---Appellant

Versus

THE STATE and other---Respondents

Criminal Appeal No.37-L of 2016, decided on 6th May, 2019.

(On appeal from the judgment dated 7-10-2013 passed by the Lahore High Court, Lahore in Criminal Appeal No.1511 of 2009).

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 121---Reappraisal of evidence---Husband accused of murdering his wife in the matrimonial house---Failure on part of husband to satisfactorily explain cause of death---Adverse presumption---Scope---Silence or implausible explanation by the accused husband could not be equated with failure within the contemplation of Art. 121 of Qanun-e- Shahadat, 1984---Prosecution was not absolved from driving home the charge by itself on the strength of positive proof---Grievously unsafe to convict suspects on presumptions or upon failure to establish their innocence---Accused was acquitted of the charge of murder in circumstances.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused was alleged to have murdered his wife in the matrimonial home---Trial Court convicted the accused under S.302(b), P.P.C and sentenced him to death, which sentence was reduced to imprisonment for life by the High Court---Held, that once the deceased's brother and his accomplice, both purported eye-witnesses, had visited the deceased to take her back, apparently there was no occasion for them to change their plans, and in case they were allegedly present in the next room, there was no compulsion for the accused-husband to kill his wife at the risk of retaliation or prosecution---Prosecution script was far from being plausible and it was so viewed by the High Court itself when it observed that presence of purported eye-witnesses may be suspicious at the time of occurrence---By extending the benefit of doubt to the accused, appeal was allowed and he was acquitted of the charge of murder.

(c) Criminal trial---

----Conviction---Proof---Suspicions could not substitute legal proof nor a suspect could be condemned on the basis of moral satisfaction in the absence of evidentiary certainty.

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

----S. 302(b)---Qatl-i-amd---Reappraisal of evidence---Accused and co-accused assigned similar role of strangling the deceased---Same set of evidence forming basis of acquittal of the co-accused but conviction of accused---Held, that the evidence of prosecution qua the co-accused was rejected by the courts below and he was acquitted---Role assigned to the acquitted co-accused was inexorably intertwined with the accused's alleged participation in the crime, thus it would be unsafe to maintain the conviction of accused in such circumstances---Appeal was allowed and accused was acquitted of the charge of murder.

Nawab Ali Mayo, Advocate Supreme Court for Appellant.

Mehmud ul Islam, Advocate-on-Record (with caveat) for Respondent.

Nemo for the Complainant.

Mazhar Sher Awan, Additional Prosecutor General for the State.

P L D 2019 Supreme Court 595

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD AZHAR HUSSAIN and anohter---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No.11-P/2017 and Jail Petition No.726 of 2017, decided on 2nd May, 2019.

(On appeal from the judgment dated 19-4-2016 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat in Cr.As. 178 and 216-M of 2014 with M.R. 9-M and 10-M of 2014).

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

----S.302(b)---Qatl-i-amd---Reappraisal of evidence---Benefit of doubt---Accused and co-accused were convicted under S. 302(b), P.P.C and sentenced to death for killing a minor---Doubtful confessional statements---Fate of the prosecution's case was hinged upon confessional statements made by the accused and co-accused before a Magistrate---Both of them arrived before the Magistrate on the same day, one after another and gave confessions in a comfortable unison, in tune with the prosecution case, which reasonably excluded hypothesis of a voluntary disclosure, free from the taints of inducement or persuasion---Such confessional statements seemed to be more of anegotiated settlement rather than a volitional representation, and there was remarkable similarity in both the statements, in terms of sequential order as well as the pattern, and surprisingly both such statements were very exhaustive---Testimony of one of the main prosecution witnesses who last saw the minor with the accused was in conflict with the confessional statements---Evidence of said witness could not be accepted without excluding confessional statements from consideration and vice versa---In both the confessional statements, the accused and co-accused stated to have thrown weapon of offence, a churri in the river, however according to recovery memo, it was recovered with blood stains from inside bushes a day before confessional statements were recorded---Both the accused and co-accused were entitled to the benefit of doubt in such circumstances and were acquitted accordingly.

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

----S. 364---Confessional statement of accused, recording of---Procedure---Practice of using a printed form to administer warnings to the accused before recording his statement---Confession may entail formidable consequences for an accused facing indictment and thus it was incumbent upon the Magistrate to ensure that the maker consciously comprehended the consequences of his choice---Magistrate himself, face to face, was to faithfully communicate to the accused all the relevant warnings,as contemplated by S.364 of the Code of Criminal Procedure,1898, which was a surer way to establish that the confession was free from all taints---Supreme Court observed that it did not approve the practice of a printed form to administer warnings to the accused and obtaining his signatures on the same.

Khalid Mehmood, Advocate Supreme Court and Zahoor Qureshi, Advocate-on-Record for Appellant.

Petitioner through Jail.

Mujahid Ali Khan, Additional Advocate General, Khyber Pakhtunkhwa for the State.

P L D 2019 Supreme Court 599

Present: Mushir Alam and Qazi Faez Isa, JJ

MUHAMMAD AKRAM through L.Rs.---Appellants

Versus

Mst. NOOR BEGUM through L.Rs. and others---Respondents

Civil Appeal No.1137 of 2012, decided on 31st May, 2019.

(On appeal from the judgment dated 31-10-2012 of the Lahore High Court, Multan Bench passed in Civil Revision No.1176 of 1994).

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 20(a), 20(b) & 30---Tenancy rights---Succession---Plaintiff seeking to deprive his widow-mother and sisters of conferment of property rights---Plaintiff was not only present when the impugned mutations were made but he himself wanted them effected---Subsequently plaintiff wanted to undo his own acts whilst contending that the mutations did not conform with S. 20 of the Colonization of Government Lands (Punjab) Act, 1912 ('the Act') insofar as his widow mother was not entitled to one-third share in the property---Proprietary rights had been acquired by the widow pursuant to S. 30 of the Act and 'sanad sultani' was issued in her favour; the proprietary rights were also recorded vide a mutation---Once proprietary rights had been acquired, it became a case of merger of the tenancy or occupancy rights in absolute rights of ownership---Acquisition of propriety rights by the widow had been done with the full knowledge and consent of the plaintiff; he could not therefore raise objections thereto, let alone file a suit to undo the same thirty-three years after the said proprietary rights had been acquired---Plaintiff took no action with regard to the said acquisition of proprietary rights by his widow mother and did not approach the authorities designated under the Act to undo the same and/or to grant proprietary rights of the widow to him---Conduct of plaintiff and his successors in pursuing the litigation by depriving the rightful owners of the property was deplorable---Supreme Court directed that in case the land in question was held by the plaintiff or his successors, it shall be immediately handed over to their rightful owners without delay---Appeal was dismissed accordingly.

Mushtaq Ahmad v. Kakim Bibi PLD 1969 SC 338, 343 ref.

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

----Ss. 42, proviso & 52---Suit for declaration---Bar to such declaration---Scope---In his declaratory suit plaintiff did not seek the cancellation of any of the impugned mutations in terms of S. 52 of the Specific Relief Act, 1877---Proviso to S. 42 of the Specific Relief Act, 1877 stipulated that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omitted to do so---Suit filed by the plaintiff was therefore not maintainable---Appeal was dismissed accordingly.

Sardar Muhammad Aslam, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Appellants.

Syed Najamul Hassan Kazmi, Senior Advocate Supreme Court and Mian Muhammad Hanif, Advocate Supreme Court for Respondents Nos.1-6, 8(b) and 17 (e and f).

P L D 2019 Supreme Court 602

Present: Sh. Azmat Saeed, Faisal Arab and Ijaz ul Ahsan, JJ

ISHAQ KHAN KHAKWANI and another---Petitioners

Versus

RAILWAY BOARD through Cairman and others---Respondents

Constitution Petition No.2 of 2011 and Civil Miscellaneous Applications Nos. 1864 and 2960 of 2019, decided on 11th April, 2019.

(a) Constitution of Pakistan---

----Art. 184(3)---Power of judicial review under Art.184(3) of the Constitution---Scope---Instances where the Supreme Court may exercise its power of judicial review stated.

Following are the instances where the Supreme Court may exercise its power of judicial review:

(i) Acts or omissions on the part of State functionaries which reflected violation of mandatory provisions of law or the rules framed thereunder;

(ii) Breaches of contracts which did not entail examination of minute/disputed questions of fact committed by public functionaries involving dereliction of obligations flowing from a statute, rules or instructions;

(iii) Public functionaries must exercise public authority, especially while dealing with public property, public funds or assets, in a fair, just, transparent and reasonable manner, untainted by malafides or colourable exercise of power for ulterior motives, without discrimination and in accordance with law, keeping in view the constitutional rights of the citizens, even in the absence of any specific statutory provisions setting forth the process in such behalf;

(iv) Interference with the decision making process was warranted where it was vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it was actuated by mala fides;

(v) Governmental bodies powers to dispense and regulate special services by means of leases, licences, contracts, quotas, etc., were expected to act fairly, justly and in a transparent manner and such powers could not be exercised in an arbitrary or irrational manner;

(vi) Public funds, public property, licences, jobs or any other government largesse was to be dealt with by public functionaries on behalf of and for the benefit of the people;

(vii) Scrutinize matters where public money was being expended through procurement or public property was being sold, so as to ensure that transactions by the Government were undertaken and contracts executed in a transparent manner, legally, fairly and justly without any arbitrariness or irrationality and public money and public property was not squandered or stolen;

(viii) The presence of elements such as personal solicitation and personal influence in the procurement of contracts which directly lead to inefficiency in the public service and to unnecessary expenditures of the public funds;

(ix) All agreements for pecuniary considerations to control the business operations of the government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, were void as against public policy, without reference to the question, whether improper means were contemplated or used in their execution;

(x) If material changes were brought about in agreements subsequent to the bidding to benefit a particular party, it would negate the notion of a fair and open competitive bidding process; and

(xi) Courts should ordinarily refrain from interfering in the policy making domain of the Executive or in the award of contracts and should not substitute its decision for that of the latter unless the acts or omissions smacked of arbitrariness, favoritism and a total disregard of the mandate of law.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi, and others 1998 SCMR 2268; Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Suo Motu Case No.13 of 2009 PLD 2011 SC 619; Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651; Rental Power Plants and others 2012 SCMR 773; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Khawaja Muhammad Asif v. Federation of Pakistan PLD 2014 SC 206; Jamshoro Joint Venture Ltd. and others v. Khawaja Muhammad Asif and others 2014 SCMR 1858 and Asaf Fasihuddin Khan Vardag v. Government of Pakistan and others 2014 SCMR 676 ref.

(b) Constitution of Pakistan---

----Art. 184(3)---Constitution petition under Art.184(3) of the Constitution relating to a recreational club built on land belonging to Pakistan Railways leased out to private parties to finance, redesign, develop and manage its operations---Maintainability---Terms of the impugned lease agreement pertaining to the area of the property to be leased out, the term of the lease and the revenue sharing formula, were changed to benefit one bidder---Terms and conditions of the impugned agreement were substantially and materially different from what was advertised---Whole of the information was not available to all the potential bidders hence there was no level playing field---Most importantly the project involved public money---Such facts reflected from documents on record did not require a detailed inquiry or examination, and thus made the instant case a fit case for judicial review---Objections regarding the maintainability of the present petition were misguided and thus overruled.

(c) Constitution of Pakistan---

----Art. 184(3)---Constitution petition under Art.184(3) of the Constitution---Recreational club built on State land belonging to Pakistan Railways leased out to private parties to finance, redesign, develop and manage its operations---Illegalities, procedural improprieties and violation of due process and transparency in the advertisement, bid evaluation, revenue sharing and grant of lease for the project---Size of the area offered to the respondents (consortium of different parties) under the impugned lease agreement was in excess of the area mentioned in the three advertisements for the project---Furthermore, the third advertisement seemed to have been issued to accommodate the afterthought of the construction of a five star hotel within the project premises---Bid evaluation form did not mention any evaluation criteria and corresponding weightage for the hotel and was restricted to the golf course, the club house and sports facilities---Subsequently the concerned marketing official of Pakistan Railways sent a fax to one of the respondent parties, which was part of the consortium, stating that additional land adjacent to the golf club could be made available so as to facilitate the establishment of a hotel/resort---Admittedly no fresh public advertisement was issued in such regard---Said communication through fax was a private communication which fell foul of the principles of due process and transparency that was attached to bidding pertaining to State land, and it was clearly meant to favour one bidder to the complete exclusion of other interested and potential bidders---Change in one of the essential terms of the project specifically mentioned in the advertisements could not have been made without a fresh advertisement enabling all potential bidders to participate in the process---Bid submitted by the respondent consortium transgressed the terms of the advertisements in that it was for an area of 141 acres (as opposed to 103 acres in the advertisements) and was also for a period of 66 years as opposed to 33 years mentioned in the bid documents, although it was extendable with the mutual consent of the parties---Such material departure from the financial proposal would have led to a substantial reduction of amounts payable to Pakistan Railways and a corresponding increase in the income of the consortium, which was clearly mala fide and designed to cause wrongful loss to Pakistan Railways and wrongful gain for the consortium---By consciously and deliberately agreeing to such departure, the concerned officials acted illegally and in violation of their mandate and caused huge financial losses to Pakistan Railways---Bids Evaluation Report, its assessment by the Evaluation Committee, the First Letter of Contract Awarding, its approval by the Executive Committee of the Railway Board, and the Letter of Intent were all dated the same---Such undue and unholy haste with which the said documents were issued raised serious questions regarding their compliance with the rules and regulations as well as legality---Such activity was a mala fide attempt to give an appearance and false facade of a legal cover to the whole process which was clearly a sham---Finally when the impugned lease agreement was executed, in order to cater for the increased area from 103 acres to 140 acres, several houses of the employees of Pakistan Railways (various houses and a number of quarters of low paid employees) were demolished---Under what authority of law was the additional land taken over and who ordered demolition of houses worth millions of rupees remained shrouded in mystery---No initial draft of the agreement was ever made a part of the bid documents or shown to any of the pre-qualified parties apart from the respondent consortium after the issuance of the Letter of Intent wherein it was stated that the draft agreement shall be forwarded to them in due course of time---One of the respondent parties, forming part of the consortium, left the consortium through a shareholder buyout by the other parties midway through the completion of the project---Name, antecedents, experience, financial resources and know-how of the leaving party in setting up and operation of golf and country clubs was used as a major qualification to win the project---Be that as it may, this made it apparent having fraudulently used the name of the leaving party for the sole purpose of winning the project, the buyout parties maliciously elbowed it out to run the project on their own despite the fact that they did not have any prior experience in construction, development or financing of a golf club which was necessary for pre-qualification, for winning the project in the first place---Finally, in the year 2016 vide a letter issued by the Secretary/ Chairperson, Ministry of Railways, the impugned lease agreement was terminated on the grounds of failure to make timely payments, failure to send audited statements, failure to construct a five-star hotel and unauthorized construction and use of marquees and cinemas for public consumption---Said termination letter had not been challenged in any Court of law by the respondents---Admitted documents on the record, evidenced the various illegalities, procedural improprieties and violations of the well-established principles of due process and transparency involved in bidding which ought to be a fair and competitive process---Procedure adopted was tainted with mala fide and nepotism in order to award the project to a pre-determined party to the exclusion of others and was therefore devoid of transparency, fairness and openness, which rendered the whole process from the issuance of the advertisements to the execution of the lease agreement unlawful---Said agreement had been disowned by Pakistan Railways itself which had taken the categorical stand that the process for award of lease agreement was plagued with lapses and irregularities by the then office bearers in collusion with the respondent consortium in order to benefit the latter, which resulted in huge losses to Pakistan Railways and the national exchequer---Impugned lease agreement was declared non-est, nul and void ab initio and of no legal effect---Constitution petition was allowed accordingly.

(d) Constitution of Pakistan---

----Art 184(3)---National Accountability Ordinance (XVIII of 1999), S.9---Jurisdiction of the Supreme Court under Article 184(3) of the Constitution---Scope---No bar existed against the Supreme Court that precluded it from exercising its jurisdiction under Art.184(3) of the Constitution and passing a declaration to the effect that an agreement/contract (involving the State or a State institution) was void ab initio while simultaneously referring the matter to National Accountability Bureau (NAB) to determine criminal liability related to the transaction in question.

Raja Mujahid Muzaffar and others v Federation of Pakistan and others 2012 SCMR 1651; Khawaja Muhammad Asif v Federation of Pakistan and others PLD 2014 SC 206 and In the matter of: Alleged Corruption in Rental Power Plants and others 2012 SCMR 773 ref.

(e) Constitution of Pakistan---

----Art. 184(3)---Constitution petition under Art.184(3) of the Constitution---Recreational club built on State land belonging to Pakistan Railways leased out to private parties to finance, redesign, develop and manage its operations---Illegalities, procedural improprieties and violation of due process and transparency in the advertisement, bid evaluation, revenue sharing and grant of lease for the project---Impugned agreement executed between Pakistan Railways and the respondent consortium was significantly and substantially different from the terms originally conceived in the advertisements and other various documents brought on record in order to benefit the consortium at the cost of causing losses to Pakistan Railways and consequentially the national exchequer---Further, all changes were made non-transparently, without following the processes and procedures and in utter and total disregard of the interest of Pakistan Railways---Impugned agreement with the consortium was declared non-est, null and void ab initio and of no legal effect---Directions issued by the Supreme Court after declaring the impugned agreement null and void ab initio stated.

Following are the directions issued by the Supreme Court after declaring the impugned agreement null and void ab initio:

(i) Possession of the land given to the lessee/respondent consortium under the agreement was to be handed over to Pakistan Railways ("PR") forthwith along with all the assets and infrastructure thereupon. Pakistan Railways shall be responsible for running the Club and it shall nominate its officer(s) or a team of independent professionals, if it deemed appropriate to take over and run the Club;

(ii) Accounting firm appointed as the receiver of the Club vide an (interim) order of the Supreme Court shall stand indemnified and held harmless against any claim, law suit or any other proceedings before any Court, authority, Tribunal or functionary that may be contemplated or initiated by any of the parties for any act or omission on its part in the course of performance of its functions. Notwithstanding, any dispute, claim or complaint by any of the parties against the receiver shall only be filed before the Supreme Court. In that event, the matter shall be decided in accordance with law.

(iii) Auditor General of Pakistan was to conduct a detailed forensic audit of the Club; determine the scope and extent of the work done under the agreement; and determine the amount owed by Pakistan Railways to the respondent consortium and/or vice versa (if any). In doing so, the Auditor General shall identify and quantify the financial benefits derived by the respondents from the Club which shall be duly factored in while calculating and determining the liabilities of the respondents. Such liabilities alongwith other amounts found payable by the respondents will be set off against its verified claims and the differential/balance amount shall be paid or recovered. Accounting firm appointed as receiver shall assist and facilitate the Auditor General's office in conducting the forensic audit. Such exercise shall be undertaken within one month, at the end of which the Auditor General shall submit its report to the Implementation Bench constituted by the Supreme Court for purposes of present case. Once such exercise was complete, the said Bench would determine the manner and time frame in which the party which owed money would pay the other such amount. Logistic support and recurring expenses of the Auditor General shall be borne by both parties equally. Fee of the receiver/accounting firm for services performed shall be paid out of the funds of the Club against proper receipt. The rate of such fee shall be determined by the Implementation Bench;

(iv) Ministry of Railways/Pakistan Railways shall float an international tender in accordance with the laws pertaining to public procurement for a fresh lease of the Club. Such process including the final award of the new contract/lease shall be completed within three months or such further time as may be allowed by the Supreme Court pursuant to an appropriate application being moved. The Ministry of Railways/Pakistan Railways was required to submit weekly progress reports in such regard before the Implementation Bench of the Supreme Court;

(v) In the meantime, the normal activities of the Club and its operations shall not be impeded in any manner whatsoever including but not limited to its dining areas, golf course, gymnasium, sports activities, swimming pools, cinema halls and wedding functions that had already been booked and were to be held therein, which shall be allowed to be held strictly as per the booking orders etc. All assets including receivables, all systems including software/security, etc of the respondent consortium having any nexus with the Club shall be taken over and vest in Pakistan Railways. All employees of the Club shall continue to work for the Club subject to any orders that may be passed by Pakistan Railways. All bank accounts in the name of the Club shall be taken over, vest in and be operated by the nominees of Pakistan Railways. Respondent consortium shall henceforth have no right over such accounts/receivables, etc. All statutory registrations of the Club shall also stand transferred to Pakistan Railways/Club. Pakistan Railways shall provide all requisite financial support to the Club in the interregnum;

(vi) Proceedings before the Accountability Court in References related to the present case shall continue in accordance with law. Monthly progress reports shall be submitted by National Accountability Bureau (NAB) for the perusal of the members of the Implementation Bench in Chambers. Accountability Court shall decide the matter(s) before it independently, transparently and strictly in accordance with law on the basis of the evidence before it; and

(vii) For the purpose of implementation of present judgment and its continuous compliance, an Implementation Bench was to be constituted, subject to approval of the Chief Justice of the Supreme Court.

Mian Allah Nawaz, Senior Advocate Supreme Court for Petitioners.

Nemo for Applicants (in H.R.C. Nos.51057 and 29324 of 2010).

Sardar Muhammad Aslam, Advocate Supreme Court for Respondents Nos. 4 to 6.

M.S. Khattak, Advocate-on-Record for Respondents Nos. 9 and 13.

Salman Akram Raja, Advocate Supreme Court assisted by Abuszar Salman Khan Niazi, Advocate, Malik Ahsan Mehmood, Advocate, Asad Lodha, Advocate and Malik Ghulam Sabir, Advocate for Respondent No.1.

Wasim Sajjad, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.8.

Shahzada Mazhar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No.14.

Nemo for Respondent No.15.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court, Syed Faisal Hussain Naqvi, Advocate Supreme Court for Respondent No.16 and the applicants in C.M.A. No.2960 of 2019.

Ali Zafar, Advocate Supreme Court and Zahid Nawaz Cheema, Advocate Supreme Court for Respondent No.17 and in Crl. R.P.No.18 of 2019.

Sh. Rasheed Ahmad, Federal Minister, Iftikhar Ahmed, Audit Officer, Shakeel-ur-Rehman Khan, Advocate Supreme Court for Pakistan Railways (in W.P.No.22816 of 2016).

Mansoor Usman Awan, Advocate Supreme Court for A.F.Ferguson (in C.M.A. No.1864 of 2019).

Sajid Ilyas Bhatti, Addl. A.G. Pak. for Federation.

Nayyar Rizvi, Addl. P.G. and Naeem Tariq Sanghera, Special Prosecutor for NAB.

P L D 2019 Supreme Court 645

Present: Asif Saeed Khan Khosa, C.J., Qazi Faez Isa and Ijaz ul Ahsan, JJ

HUMAN RIGHTS CASE NO.18877 OF 2018

Human Rights Case No.18877 of 2018, decided on 24th April, 2019.

(In the matter regarding deduction of taxes and other charges by mobile companies in Pakistan)

Per Qazi Faez Isa, J; Asif Saeed Khan Khosa, CJ, agreeing; Ijaz Ul Ahsan agreeing with the result but dissenting with the reasoning adopted with respect to scope of Article 184(3) of the Constitution.

(a) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope---Jurisdiction under Art.184(3) of the Constitution was referred to as the original jurisdiction of the Supreme Court, which denoted that it was exercising jurisdiction when a case had not already been heard and decided by a tribunal and/or a High Court---Such original jurisdiction was also referred to as extraordinary jurisdiction---Supreme Court may invoke jurisdiction under Art.184(3) of the Constitution in respect of matters of public importance which required the enforcement of any of the Fundamental Rights---Whilst exercising such jurisdiction the Supreme Court regulated itself, therefore, it must ensure that the two stipulated preconditions were first met---Moreover, as there was no appeal against an order/judgment passed by the Supreme Court in exercise of jurisdiction under Art.184(3) of the Constitution every precaution should be taken to strictly act within the precise parameters set by the Constitution. [Majority view]

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

----Ss. 2(63), 2(66), 147, 168 & 236---Federal Excise Act (VII of 2005), S. 3 & First Sched. Table II, Sr. No. 6 --- Punjab Sales Tax on Services Act (XLII of 2012), Ss. 1(4), 2(38) & 3 & First Sched. Classification No. 9812.1210---Sindh Sales Tax on Services Act (XII of 2011), Ss. 2(97), 3 & 8 & Second Sched. Tariff heading No.9812.1210---Khyber Pakhtunkhwa Finance Act (XXI of 2013), Ss.2(48) & 19 & Sched. II, Serial Nos. 4(5) & 4(9)---Balochistan Sales Tax on Services Act (VI of 2015), Ss. 2(39) & 3 & First Sched. Classification No.98.12.1000---Constitution of Pakistan, Arts. 4(2)(a), 23, 24 & 184(3) & Pt. II, Chapt.1---Human rights case regarding deduction of taxes and other charges by mobile companies in Pakistan---Levy/imposition of advance income tax, Federal excise duty, sales tax on services and service/maintenance charges---Constitutionality and legality---Question as to whether the Supreme Court under Art.184(3) of the Constitution had the jurisdiction to determine the validity of the imposition and collection of taxes---[Per Qazi Faez Isa, J (Majority view): Only once the taxes imposed on customers of cellular companies by the Income Tax Ordinance, 2001, the Federal Excise Act, 2005, the Punjab Sales Tax on Services Act, 2012, the Sindh Sales Tax on Services Act, 2011, the Khyber Pakhtunkhwa Finance Act, 2013, and the Balochistan Sales Tax on Services Act, 2015, were declared contrary to the Constitution and struck down could their imposition and collection from subscribers/customers of cellular telecom companies be stopped---None of the said statutes, which had imposed the taxes, had been declared by a competent Court to be beyond the legislative competence of the legislature which had imposed them nor had it been declared that they contravened any constitutional provision---In exercise of power under Art.184(3) of the Constitution the Supreme Court may pass appropriate orders for the enforcement of Fundamental Rights---Said Fundamental Rights were those conferred by Chap. 1 of Part II of the Constitution; protection from taxation was not listed as one of these Fundamental Rights---Taxes could not be presumed to be against the public interest since taxes were spent for the benefit of the public---Supreme Court was generally slow in entertaining challenges to taxes which were imposed by the appropriate legislature in apparent conformity with the provisions of the Constitution---Interim order of the Supreme Court whereby the recovery of taxes by cellular companies was suspended did not record reasons nor did it determine that the imposition of the taxes was without jurisdiction---Supreme Court directed that the recovery of the taxes in question may be resumed by the cellular telecom companies, however, they were not allowed to impose any service/maintenance charge thereon as they had elected not to impose these charges, and that it would be unfair and unjust to demand that the cellular telecom companies make good the loss of the taxes that could not be recovered for the period during which their recovery was suspended by an interim order of the Supreme Court---Human rights case was disposed of accordingly---[Per Ijaz ul Ahsan, J dissenting (Minority view)]: Framers of the Constitution, had intentionally, deliberately and by conscious design placed no restriction on the types of fundamental rights for enforcement of which powers under Art.184(3) of the Constitution could and could not be exercised---As long as a matter met the two conditions, in that, it involved a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chap. I of Part II of the Constitution, it was immaterial whether the violation related to a fiscal matter, taxation, a matter involving property rights, personal freedoms or human liberties, the Supreme Court could and should exercise its powers to come to the rescue of the citizen whose rights may be at risk of being bulldozed, destroyed or encroached upon by the State with all the might and resources available to it---With a population of over 200 million out of which the number of cellular subscribers was approximately 150 million (in mid of the year 2018), there could be no two opinions that the present matter regarding imposition of taxes on, inter alia, topping up of mobile phone balance, affected and had repercussions on the public at large and was not an individual or private grievance---Issue in the present matter was that of alleged unlawful extraction of money in the form of advance tax under S.236 of the Income Tax Ordinance, 2001 from millions of cellular subscribers who did not fall within the relevant tax bracket for the purposes of the said Ordinance---Money being taken from cellular subscribers constituted 'property' as envisaged by Arts. 23 & 24 of the Constitution, therefore, the contention that the present matter did not involve the enforcement of any Fundamental Rights was incorrect---Apart from the Fundamental Rights contained in Chapter I of Part II of the Constitution, the deduction and collection of such advance tax was also seemingly a clear contravention of Art. 4(2)(a) of the Constitution---Contention that the Supreme Court did not have jurisdiction under Art. 184(3) of the Constitution to determine the validity of the imposition and collection of taxes which had been imposed pursuant to statutes passed by competent legislatures under the Constitution, was misconceived---While dealing with a matter under Art.184(3) of the Constitution, the Supreme Court was neither bound by the procedural trappings nor limitations of Art.199 of the Constitution, hence, the interim order of the Supreme Court whereby recovery of the taxes in question by the cellular telecom companies was suspended, was neither without jurisdiction, nor did it suffer from any legal, procedural or jurisdictional error, defect, flaw or infirmity whatsoever.

Engineer Iqbal Zafar Jhagra and another v. Federation of Pakistan and others 2013 SCMR 1337; All Pakistan Newspapers Society and others v. Federatin of Pakistan and others PLD 2004 SC 600; Ch. Muhammad Siddique and 2 others v. Government of Pakistan through Secretary, Ministry of Law and Justice Division, Islamabad and other PLD 2005 SC 1; 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; Thal Industries Corporation Limited through Legal Manager v. Government of the Punjab through Chief Secretary, Punjab and 10 others 2007 SCMR 1620; Jamat-e-Islami through Amir and others v. Federation of Pakistan and others PLD 2009 SC 549; Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan and another PLD 2011 SC 407, Watan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; Muhammad Azhar Siddique and others v. Federation of Pakistan and others PLD 2012 SC 660; Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice and others PLD 2012 SC 923; Dr. Muhammad Tahir ul Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others PLD 2013 SC 413; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 9 others (Panama Papers Scandal) PLD 2017 SC 265; PAKCOM Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 and Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109 ref.

Per Ijaz ul Ahsan, J, dissenting.

(c) Constitution of Pakistan---

----Art. 184(3)---Jurisdiction of the Supreme Court under Art. 184(3) of the Constitution---Scope---Article 184(3) was a power designed and meant to be exercised for the protection of the proverbial "Little Man"; those who did not have the means to approach Courts of law for enforcement and protection of rights guaranteed to them by no less a document as the Constitution which and each Article whereof the Judges of the Supreme Court were under oath to preserve, protect and defend---Failure or refusal to exercise such power in fit and appropriate cases was the violation of a trust and the hallmark of infidelity to the Constitution. [Minority view]

(d) Constitution of Pakistan---

----Art. 184(3)---Human Rights Cell (HRC) of the Supreme Court---Scope---Said Cell was charged with the responsibility of sifting through hundreds of petitions, complaints, letters and other information received on a daily basis by the Supreme Court, and bringing those, that prima facie and on tentative assessment and examination meet the criteria of Art.184(3) of the Constitution to the notice of the Chief Justice, who in that capacity decided whether or not the matter could and should be fixed in Court before a bench for appropriate orders. [Minority view]

Arrest of accused for murder of Mst. Bibi Zahida's daughter Waheeda 2014 SCMR 83 ref.

In Attendance:

Anwar Mansoor Khan, Attorney-General for Pakistan.

Sajid Ilyas Bhatti, Additional Attorney-General for Pakistan.

Tariq Mehmood Jehangiri, Advocate-General, Islamabad.

Salman Talib-ud-Din, Advocate-General, Sindh.

Abdul Latif Khan Yousafzai, Advocate-General, KPK.

M. Ayaz Khan Swati, Additional Advocate-General, Balochistan.

Barrister Qasim Ali Chohan, Additional Advocate-General, Punjab.

Barrister Qasim Wadud, Additional Advocate-General, KPK.

Zahid Yousaf Qureshi, Additional Advocate-General, KPK.

Syed Ghulam Abbas Kazmi, Member Legal, FBR.

Muhammad Qasim Raza, Chief Legal, FBR.

Dr. Raheal Ahmed Siddiqui, Secretary Finance, Punjab.

Javed Ahmed, Chairman, Punjab Revenue Authority.

Aamir Zahoor, Deputy Secretary (Legal), Finance, Punjab.

Javed Khan, Deputy Secretary, Finance, KPK.

Muhammad Khurram Siddiqui, Director, PTA.

Adil Umar, Director, CA, PTA.

Ali Sibtain Fazli, Senior Advocate Supreme Court.

Ali Raza, Advocate Supreme Court.

Syed Ali Zafar, Advocate Supreme Court.

Khalid Javed Khan, Advocate Supreme Court.

Munawar Iqbal Duggal, Advocate Supreme Court.

Muhammad Kassim Merjat, Advocate-on-Record.

Syed Rifaqat Hussain Shah, Advocate-on-Record.

P L D 2019 Supreme Court 669

Present: Manzoor Ahmad Malik, Syed Mansoor Ai Shah and Qazi Muhammad Amin Ahmed, JJ

MUHAMMAD NAEEM and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos.81-L and 82-L of 2017, decided on 10th May, 2019.

(On appeal from the judgment of Lahore High Court, Lahore dated 27-1-2016, passed in Crl.A.No.551 of 2009).

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

----Ss. 2, 3 & 9(c)---Possession of narcotic---Liquid mixture---Percentage of narcotic, determination of---Requirement of calculating the percentage of narcotic drug in a liquid preparation or mixture was mandatory as per S. 3 of the Control of Narcotic Substances Act, 1997 read with the definitional test under S. 2 of the Act.

Muhammad Imran v. State 2011 SCMR 1954 and Taimoor Khan v. State 2016 SCMR 621 ref.

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

----Ss. 3 & 9(c)---Possession of narcotic---Intoxicating liquid---Report of Chemical Examiner failing to mention the percentage of "morphine" found in the intoxicating substance---Effect---Such fatal omission made the report of the Chemical Examiner inconclusive, leaving it uncertain whether the substance passed for a narcotic drug, and the same was unreliable to support conviction under the Act.

(c) Administration of justice---

----Court being a neutral arbiter had to dispassionately appreciate, appraise, examine and weigh the evidence placed before it, rather than by ignoring the evidence and embarking on a probing journey guided by emotions, sentiments and sense of self-styled justice pegged on the lofty notion of societal reform.

(d) Constitution of Pakistan---

----Art. 10-A---Right to fair trial---Scope---Court could not allow one of the parties to fill lacunas in their evidence or extend a second chance to a party to improve their case or the quality of the evidence tendered by them---Any such step would tarnish the objectivity and impartiality of the court which was its hallmark---Such favoured intervention, no matter how well-meaning, struck at the very foundations of fair trial, which was recognized as a Fundamental Right under Art. 10-A of the Constitution.

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

----Ss. 3 & 9(c)---Constitution of Pakistan, Arts. 4 & 10-A---Criminal Procedure Code (V of 1898), S. 423(1)(a)---Possession of narcotic---Intoxicating liquid---Report of Chemical Examiner failed to mention the percentage of "morphine" found in the intoxicating substance---Trial Court acquitted the accused on the basis of such inconclusive Report---On appeal High Court gave directions for obtaining fresh samples of the alleged intoxicating substance and preparing a fresh report of the Chemical Examiner---Legality---Such direction of the High Court amounted to granting the prosecution a premium on its failure to put up a proper case in the first instance---Such judicial intervention was opposed to the adversary principle and offensive to the fundamental right of fair trial and due process guaranteed under the Constitution---High Court has travelled beyond its lawful powers under S.423(1)(a), Cr.P.C. and had in fact directed to conduct re-investigation or further investigation of the case, which was not permissible under the law---Even otherwise, calling for fresh examination of the intoxicating substance at the appellate stage after many years may frustrate the settled laws as to safe custody and safe transmission of the recovered substance making the report of the Chemical Examiner suspect and unreliable---Impugned judgment of High Court whereby the case was remanded to the Trial Court for retrial was set-aside and acquittal recorded by the Trial Court was restored---Appeals were allowed accordingly.

Dildar v. The State PLD 2001 SC 384; Painda Gul v. State 1987 SCMR 886; State v. Amjad Ali PLD 2007 SC 85; Mazhar Naeem Qureshi v. State 1999 SCMR 828; Amjad Ali v. State 2012 SCMR 577; Ikramullah v. State 2015 SCMR 1002 and State v. Imam Bakhsh 2018 SCMR 2039 ref.

Chaudhry Muhammad Din Ansari, Advocate Supreme Court for Appellants (in Crl.A.81-L of 2017).

Nemo. For Appellants (in Crl.A.82-L of 2017).

Irfan Malik, Special Prosecutor, ANF for the State (in both cases).

P L D 2019 Supreme Court 675

Present: Asif Saeed Khan Khosa, C.J. Sh. Azmat Saeed and Umar Ata Bandial, JJ

ISHTIAQ AHMED MIRZA and 2 others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 10, 11 and 12 of 2019, decided on 23rd August, 2019.

(Regarding the allegations levelled through a media briefing against Muhammad Arshad Malik, Judge, Accountability Court-II, Islamabad)

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

----S. 9(a)(v)---Qanun-e-Shahadat (10 of 1984), Art. 164---Constitution of Pakistan, Art. 184(3)---Constitutional petitions regarding the allegations levelled through a media briefing against a Judge of the Accountability Court ('the Judge') who had convicted and sentenced a former Prime Minister ('the accused')---Video recording of Judge purportedly showing him stating that he was pressurized into convicting the accused, in absence of any concrete evidence---Whether such video could be considered during the pending appeal of accused before the High Court---Held, that the Court alone could maintain, alter or set aside conviction and sentence of accused on the basis of the evidence brought on the record---Any Commission constituted by the Government or by the Supreme Court, any inquiry or investigation conducted by the police or by any other agency and any probe into the matter by any other institution or body could only render an opinion in the matter of the subject video which opinion was treated by the law as irrelevant and it could not per se be treated as evidence for the benefit of the accused in his appeal pending before the High Court---Subject video could not be of any legal benefit to the accused unless it was properly produced before the High Court, in the pending appeal, its genuineness was established and then the same was proved in accordance with the law for it to be treated as evidence in the case---Constitutional petitions were disposed of.

Asif Ali Zardari and another v. The State PLD 2001 SC 568 ref.

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

----Art. 164---National Accountability Ordinance (XVIII of 1999), S.9(a)(v)---Constitution of Pakistan, Art. 184(3)---Constitutional petitions regarding the allegations levelled through a media briefing against a Judge of the Accountability Court ('the Judge') who had convicted and sentenced a former Prime Minister ('the accused')---Video recording of Judge purportedly showing him stating that he was pressurized into convicting the accused, in absence of any concrete evidence---Question as to how such video was to be established as a genuine piece of evidence---Held, that with the advancement of science and technology it was now possible to get a forensic examination, audit or test conducted through an appropriate laboratory so as to get it ascertained as to whether an audio tape or a video was genuine or not and such examination, audit or test could also reasonably establish if such audio tape or video had been edited, doctored or tampered with or not---In the present case, the Judge had asserted through his press release that the conversation shown to be taking place in the subject video had been distorted and twisted---Advancement of science and technology had also made it very convenient and easy to edit, doctor, superimpose or photoshop a voice or picture in an audio tape or video and, therefore, without a forensic examination, audit or test of an audio tape or video it was becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law---Standard of proof required in a criminal case was beyond reasonable doubt and any realistic doubt about an audiotape or video not being genuine may destroy its credibility and reliability---Constitutional petitions were disposed of.

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

----Art. 164---Punjab Forensic Science Agency Act (XIII of 2007), S.9(3)---Audio tape or video, proving of---Admissibility in evidence---Requirements for admissibility of an audio tape or video in evidence before a court of law and the mode and manner of proving the same before the court stated.

Following are the requirements for admissibility of an audio tape or video in evidence before a court of law and the mode and manner of proving the same before the court:

(i) No audio tape or video could be relied upon by a court until the same was proved to be genuine and not tampered with or doctored.

(ii) A forensic report prepared by an analyst of the Provincial Forensic Science Agency in respect of an audio tape or video was per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007.

(iii) Under Article 164 of the Qanun-e-Shahadat Order, 1984 it laid in the discretion of a court to allow any evidence becoming available through an audio tape or video to be produced.

(iv) Even where a court allowed an audio tape or video to be produced in evidence, such audio tape or video had to be proved in accordance with the law of evidence.

(v) Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, had to be produced so as to rule out any possibility of tampering with the record.

(vi) An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.

(vii) The person recording the conversation or event had to be produced.

(viii) The person recording the conversation or event must produce the audio tape or video himself.

(ix) The audio tape or video must be played in the court.

(x) An audio tape or video produced before a court as evidence ought to be clearly audible or viewable.

(xi) The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognized such voice or person.

(xii) Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.

(xiii) The voices recorded or the persons shown must be properly identified.

(xiv) The evidence sought to be produced through an audio tape or video had to be relevant to the controversy and otherwise admissible.

(xv) Safe custody of the audio tape or video after its preparation till production before the court must be proved.

(xvi) The transcript of the audio tape or video must have been prepared under independent supervision and control.

(xvii) The person recording an audio tape or video may be a person whose part of routine duties was recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.

(xviii) The source of an audio tape or video becoming available had to be disclosed.

(xix) The date of acquiring the audio tape or video by the person producing it before the court ought to be disclosed by such person.

(xx) An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.

(xxi) A formal application had to be filed before the court by the person desiring an audio tape or video to be brought on the record of the case as evidence.

Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad - Applicant/Referring Authority v. Abdul Wali Khan, M.N.A. former President of defunct National Awami Party PLD 1976 SC 57; Hakim Ali Bhatti v. Qazi Abdul Hakim and others 1986 CLC 1784; Muhammad Zahir Shah Khan and another v. Nasiruddin and others 1986 CLC 2463; Mst. Rukhsana Begum v. District Judge, Karachi (East) and others 1987 MLD 2425; Asfandyar and another v. Kamran and another 2016 SCMR 2084; Ammar Yasir Ali The State 2013 PCr.LJ 783; Akhtar Ali Ghowda v. The State 2015 MLD 1661; Munas Parveen v. Additional Sessions Judge/Ex-Officio Justice of Peace, Shorkot and others PLD 2015 Lah. 231; Shahid Zafar and others v. The State 2015 PCr.LJ 628; Sikandar Ali Lashari v. the State and another 2016 YLR 62 and Muhammad Sadiq @ Husnain and others v. The State and others 2016 PCr.LJ 1390 ref.

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

----S. 428---National Accountability Ordinance (XVIII of 1999), S.9(a)(v)---Constitution of Pakistan, Art. 184(3)---Appellate Court---Further evidence---Scope---Constitutional petitions regarding the allegations levelled through a media briefing against a Judge of the Accountability Court ('the Judge') who had convicted and sentenced a former Prime Minister ('the accused')---Video recording of Judge purportedly showing him stating that he was pressurized into convicting the accused, in absence of any concrete evidence---Question as to which court could take such video in evidence---Held, that as the Trial Court in the case of the accused had already become functus officio and as his appeal against his conviction and sentence recorded by the Trial Court was presently pending before the High Court, therefore, the only Court which could take the relevant video in evidence was the High Court---High Court as an appellate court could take additional evidence under S.428, Cr.P.C.---If the High Court, either on its own motion or on an application submitted by the accused/appellant, felt the necessity of taking additional evidence in the form of the subject video then it may record its reasons for feeling such necessity and may then follow the steps mentioned in S. 428, Cr.P.C.---In such a case the relevant video may be taken as (additional) evidence only after complying with the requirements for proving a video before a court of law---Constitutional petitions were disposed of.

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

----S. 428---Appellate Court---Further evidence---Scope---Under S.428, Cr.P.C an appellate court could take additional evidence on its own or upon an application of a party to the appeal, i.e. the appellant, the State or the complainant but in both such cases the appellate court had to record its reasons why it thought that taking of additional evidence was necessary---Necessity of taking additional evidence at the appellate stage must be felt by the appellate court itself and the same was not dependent upon what a party to the appeal thought of such necessity---After feeling the necessity of taking additional evidence and after recording reasons for such necessity the appellate court may either take such evidence itself or direct it to be taken by a Magistrate or, when the appellate court was a High Court, by a Court of Session or a Magistrate---Where the additional evidence was taken by the Court of Session or the Magistrate it or he shall certify such evidence to the appellate court and the appellate court shall then proceed to decide the appeal on the basis of the pre-existing evidence as well as the additional evidence lawfully becoming a part of the record.

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

----S. 9(a)(v)---Constitution of Pakistan, Art. 184(3)---Constitutional petitions regarding the allegations levelled through a media briefing against a Judge of the Accountability Court ('the Judge') who had convicted and sentenced a former Prime Minister ('the accused')---Video recording of Judge purportedly showing him stating that he was pressurized into convicting the accused, in absence of any concrete evidence---Question as to what would be the effect of the subject video, if established to be a genuine piece of evidence and if duly proved before the relevant court, upon the conviction of the accused awarded by the Judge---Held, that if the subject video was taken as additional evidence by the High Court, where appeal of accused was pending, either on its own motion or on an application submitted by the accused or any other party to the case then the High Court shall have to decide as to whether the conduct of the Judge of the Accountability Court depicted through the said video, if found to be objectionable, had caused any prejudice or not---If the High Court came to the conclusion that the process of trial and the evidence recorded during the trial were not affected by the conduct of the Judge then the High Court shall have the option either to reappraise the evidence itself and decide the appeal on its merits after reaching its own conclusions on the basis of the evidence available on the record or to remand the case to the Trial Court for re-deciding the case after hearing of arguments of the parties on the basis of the evidence already recorded---Choices available with the High Court in either eventuality would lay within the jurisdiction and discretion of the High Court and such choices would be exercised by it on the basis of the facts found and the conclusions reached by it---Constitutional petitions were disposed of.

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

----S. 9(a)(v)---Constitution of Pakistan, Art. 184(3)---Constitutional petitions regarding the allegations levelled through a media briefing against a Judge of the Accountability Court ('the Judge') who had convicted and sentenced a former Prime Minister ('the accused')---Video recording of Judge purportedly showing him stating that he was pressurized into convicting the accused, in absence of any concrete evidence---Abhorrent conduct of Judge---Offensive to image of judiciary---Admitted conduct of the Judge that emerged from a press release and an affidavit submitted by him stank and the stench of such stinking conduct had the tendency to bring a bad name to the entire judiciary as an institution---Judge had admitted in the press release and the affidavit that he had a shady past and had skeletons in his cupboard for which he was vulnerable to blackmail; that during the trial of accused, conducted by him, he had been holding private meetings with sympathizers of the accused; that he was threatened and inducements were offered to him during the trial but he had not reported the same to any superior authority and had never considered recusing from the trial; that after convicting the accused person in the trial he had met the accused at his residence in a different city; that he had even met a son of the accused in a different country, and that he had also tried to help the accused in his appeal filed against the Judge's own judgment by dictating some grounds of appeal and pointing out some stated weaknesses in the case against the accused convicted by him---Such admitted conduct of the Judge was shocking, besides being abhorrent and offensive to the image of a Judge in the society---Sordid and disgusting conduct of the Judge had made the thousands of honest, upright, fair and proper Judges in the country hang their heads in shame---Attorney-General had assured the Court that the Judge was going to be repatriated to the relevant High Court, immediately---Supreme Court observed that it expected that after the Judge's repatriation appropriate departmental disciplinary proceedings shall be initiated against him by the High Court, forthwith ---Constitutional petitions were disposed of.

For the Petitioners:

Ch. Munir Sadiq, Advocate Supreme Court, Syed Ali Imran, Advocate Supreme Court, Ch. Zubair Ahmed Farooq, Advocate Supreme Court, Syed Rifaqat Hussain Shah, Advocate-on-Record (in Const. P. No. 10 of 2019).

Muhammad Ikram Ch., Advocate Supreme Court (in Const. P. No. 11 of 2019).

In person (in Const. P. No. 12 of 2019).

For the Respondents:

Anwar Mansoor Khan, Attorney-General for Pakistan, Sajid Ilyas Bhatti, Additional Attorney-General for Pakistan, Sohail Mehmood, Deputy Attorney-General for Pakistan (in all cases).

P L D 2019 Supreme Court 677

Present: Amir Hani Muslim, Mushir Alam and Maqbool Baqar, JJ

Mst. KUBRA AMJAD---Appellant

Versus

Mst. YASMEEN TARIQ and others---Respondents

Civil Appeal No.57-K of 2014, decided on 7th August, 2015.

(Aainst judgment dated 3-12-2013 passed by High Court of Sindh at Karachi in Constitution Petition No.D-2836 of 2011).

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

----S. 54---Specific Relief Act (I of 1877), S. 12---Limitation Act (IX of 1908), Art. 113---Agreement to sell---Proof---Oral sale agreement was made on 01-07-1999 which was allegedly reduced into writing on 10.3.2001---Such fact did not find mention in the purported sale agreement---Plaintiff had also not acted within a reasonable time, as the date of execution of purported sale agreement was March of year 2001, whereas the suit for specific performance of such agreement was filed much beyond the period of limitation on 9-10-2008, and that too as a counter blast to the rent case filed by the defendant on 14.4.2008---Plaintiff was not able to demonstrate that ever since the date of purported agreement to sell dated 10-3-2001, she made any overt act to keep the alleged agreement alive---Nothing was brought on record to show that she issued any reminder and or notices during the life time of the deceased vendor or thereafter, nor she objected to the mutation and or transfer of the property in favour of the defendants---Appeal filed by plaintiff was dismissed in circumstances.

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

----S. 12---Limitation Act (IX of 1908), Art. 113---Specific performance of agreement to sell immoveable property---Balance sale consideration to be paid to the vendor "very soon"---'Very soon'---Meaning and interpretation---Term 'very soon', ordinarily meant very shortly, in matters of hours or days; it could not be starched to a few months and certainly not years---"Very soon", in ordinary parlance, meant with utmost dispatch, as soon or as early as possibleand as the circumstances would permit and would be convenient and to do what the agreement to sell required the parties to do---Such period could not be stretched to mean an indefinite period or beyond the period of three years from the date if so fixed for the specific performance of the agreement to sell---Period of over eight years, as in the present case, in paying the balance sale consideration could not be termed to be paid to the vendor "very soon"---Appeal was dismissed in circumstances.

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

----S. 12---Specific performance of agreement to sell immoveable property---Time not essence of the contract---Even where time was not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property---Words 'reasonable time' meant, as soon as circumstances permitted.

Vidyanandam v. Vairavan 1997 (1)SCR 993 and Veerayee Ammal v. Seeni Ammal (2002)(1) SCC 134 ref.

(d) Words and phrases--

----"Very soon"---Connotation.

(e) Words and phrases---

----"Reasonable time"---Meaning.

Vidyanandam v. Vairavan 1997 (1)SCR 993 and Veerayee Ammal v. Seeni Ammal (2002)(1) SCC 134 ref.

Abdul Qadir Khan, Advocate Supreme Court for Appellant.

Anwar Hussain, Advocate Supreme Court for Respondents.

P L D 2019 Supreme Court 702

Present: Asif Saeed Khan Khosa, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU through Presecutor-General, National Accountability Bureau, Islamabad---Appellant

Versus

MIR FAIQ ALI JAMALI---Respondents

Criminal Appeals Nos. 386, 387, 388, 389 and 390 of 2018 and Criminal Miscellaneous Application No.487 of 2018, decided on 8th July, 2019.

(Against the judgment dated 12-12-2017 passed by the High Court of Balochistan, Quetta in Criminal Ehtesab Appeals Nos. 18, 19, 20, 21 and 22 of 2017)

National Accountability Ordinance (XVIII of 1999)---

----S. 15(a)---Corruption and corrupt practices---Sentence of imprisonment and fine imposed upon the convict---Disqualification to contest elections or to hold public office---Commencement of period of disqualification---Scope---Time of commencement of the convict's disqualification under S.15(a) of the National Accountability Ordinance, 1999 was to be the date on which he had completely served out all his sentences by undergoing the sentences of imprisonment as well as by payment of fine---In the present case,the convict had served out his sentences of imprisonment on 22-10-2013 when he was released from the jail and according to the record he had deposited the requisite fine on 29-11-2016---Disqualification of the respondent was, therefore, to be reckoned from 29-11-2016---Appeals were allowed accordingly.

Haider Ali, Special Prosecutor-General, Accountability for Appellant (in all cases).'

Safdar Hussain Tarar, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Respondents (in all cases).

P L D 2019 Supreme Court 704

Present: Amir Hani Muslim, Mushir Alam and Maqbool Baqar, JJ

Mst. KUBRA AMJAD---Appellant

Versus

Mst. YASMEEN TARIQ and others---Respondents

Civil Appeal No.57-K of 2014, decided on 7th August, 2015.

(Aainst judgment dated 3-12-2013 passed by High Court of Sindh at Karachi in Constitution Petition No.D-2836 of 2011).

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

----S. 54---Specific Relief Act (I of 1877), S. 12---Limitation Act (IX of 1908), Art. 113---Agreement to sell---Proof---Oral sale agreement was made on 01-07-1999 which was allegedly reduced into writing on 10.3.2001---Such fact did not find mention in the purported sale agreement---Plaintiff had also not acted within a reasonable time, as the date of execution of purported sale agreement was March of year 2001, whereas the suit for specific performance of such agreement was filed much beyond the period of limitation on 9-10-2008, and that too as a counter blast to the rent case filed by the defendant on 14.4.2008---Plaintiff was not able to demonstrate that ever since the date of purported agreement to sell dated 10-3-2001, she made any overt act to keep the alleged agreement alive---Nothing was brought on record to show that she issued any reminder and or notices during the life time of the deceased vendor or thereafter, nor she objected to the mutation and or transfer of the property in favour of the defendants---Appeal filed by plaintiff was dismissed in circumstances.

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

----S. 12---Limitation Act (IX of 1908), Art. 113---Specific performance of agreement to sell immoveable property---Balance sale consideration to be paid to the vendor "very soon"---'Very soon'---Meaning and interpretation---Term 'very soon', ordinarily meant very shortly, in matters of hours or days; it could not be stretched to a few months and certainly not years---"Very soon", in ordinary parlance, meant with utmost dispatch, as soon or as early as possible and as the circumstances would permit and would be convenient and to do what the agreement to sell required the parties to do---Such period could not be stretched to mean an indefinite period or beyond the period of three years from the date if so fixed for the specific performance of the agreement to sell---Period of over eight years, as in the present case, in paying the balance sale consideration could not be termed to be paid to the vendor "very soon"---Appeal was dismissed in circumstances.

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

----S. 12---Contract Act (IX of 1872), S.55---Specific performance of agreement to sell immoveable property---Time not essence of the contract---Even where time was not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property---Words 'reasonable time' meant, as soon as circumstances permitted.

Vidyanandam v. Vairavan 1997 (1)SCR 993 and Veerayee Ammal v. Seeni Ammal (2002)(1) SCC 134 ref.

(d) Words and phrases--

----"Very soon"---Connotation.

(e) Words and phrases---

----"Reasonable time"---Meaning.

Vidyanandam v. Vairavan 1997 (1)SCR 993 and Veerayee Ammal v. Seeni Ammal (2002)(1) SCC 134 ref.

Abdul Qadir Khan, Advocate Supreme Court for Appellant.

Anwar Hussain, Advocate Supreme Court for Respondents.

P L D 2019 Supreme Court 710

Present: Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ

PERVEEN SHOUKAT---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Civil Petition No.664-K of 2017, decided on 6th September, 2019.

(On appeal against the judgment dated 15-11-2017 passed by the High Court of Sindh, Karachi in C.P.No.D-4177 of 2016).

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

----Arts. 123 & 124---Presumption of death after expiry of seven years' period---Scope and significance---Article 124 of the Qanun-e-Shahadat, 1984 was attracted where a person had disappeared and was not heard for a period of seven long years by any of those who would have naturally heard of him had he been alive---Article 124 raised a presumption that a person who had disappeared without a trace for seven years may no more be alive---Without the proof of actual death as envisaged under Art.123, a missing person in terms of the legal fiction contained in Art. 124 was to be presumed dead, if he was not heard for seven years by those who would have definitely heard of him had he been alive---Article 124 prevented the court from entertaining a case for making a declaration of death of a missing person until the statutory seven years period prescribed therein expired---To prescribe a waiting period was of utmost importance as presuming a missing person to be legally dead without waiting for a sufficient period of time had its own adverse consequences on his rights e.g. his rights over his estate and his inheritance rights---By prescribing a minimum period of seven years what the law only suggested was that before presuming a missing person to be legally dead, persons interested in seeking such a declaration should wait for seven years as it was quite possible that within such period he might resurface or his whereabouts may become known, in case he was still alive---Seven years period was nothing but a safety precaution provided by law which required the concerned parties to wait for a certain period of time and only upon expiry of such period seek declaration from the Court that the missing person may no more be alive.

Ram Singh v. Board of Revenue U.P. Allahabad AIR 1964 All. 310 and Smt. Bhanumati Dayaram Mhatre v. Life Insurance Corporation of India AIR 2008 Bom. 196 ref.

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

----Art.124---Presumption of death after expiry of seven years' period---Determining probable time of death---Scope---By presuming a person dead in terms of Art.124 of Qanun-e-Shahadat, 1984, it did not mean that said Article was of any help in determining when the person actually died in those seven years' period; he was just presumed dead for all intent and purposes after a period of seven years had expired---Article 124 by itself was of no help in visualizing the probable time of death of a missing person within those seven years---Court which was seized of the matter for making a declaration in terms of Art.124 was not prevented from visualizing the probable time of death on the basis of the circumstances in which the person had disappeared---Inference as to the probable time of death of aperson who had gone missing for more than seven years could be drawn by the Court only by considering the facts and circumstances in which the person had disappeared---Once a missing person was presumed dead after the full seven-years statutory period had expired, the circumstances surrounding the disappearance of a person would facilitate the court in determining his probable time of death within those seven years.

Muhammad Sarwar v. Fazal Ahmad PLD 1987 Sc 1 ref.

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

----Art. 124---Civil service---Kidnapping of civil servant---Family pension---Presumption of death after expiry of seven years' period---Determining probable time of death during kidnapping---Scope---Civil servant in question was kidnapped and could not be recovered---Family pension was allowed to his widow-petitioner from date when civil servant went missing i.e. 09-05-1999---Petitioner took the stand that in terms of Art.124 of the Qanun-e-Shahadat, 1984, death of missing person was to be presumed after expiry of seven years' period, therefore, the petitioner was entitled for family pension at the rate that was applicable on the expiry of the seven years from the date of kidnapping i.e. 09-05-2006 and not that was applicable on the first day of kidnapping i.e. 09-05-1999---Held, that the probable time of death of a missing person could be any day within the statutory seven year period provided under Art.124 of the Qanun-e-Shahadat, 1984, thus determining the time of death depended on taking into consideration the circumstances in which the person had gone missing---Article 124 by itself was of no help in drawing the inference as to when within those seven years period the missing person might have died---History of kidnappings showed that many a times a kidnapped person was kept in captivity for months together---Keeping this in sight, it would be very difficult to fix the very first day of disappearance as the probable time of death in captivity---Considering that the probable date of death upon expiry of the statutory seven year period would also be too long, therefore, any reasonable time would be safe to visualize --- On the disappearance of the petitioner's husband, FIR was lodged on 14.01.2000, wherein it was stated that a day after the disappearance, the petitioner received telephone calls from unknown number and on 27-05-1999 an unknown letter was received from which it was deduced that the petitioner's husband had been kidnapped---After giving up all hopes and under the apprehension that the kidnappers might have killed the petitioner's husband, the FIR was lodged on 14-01-2000---Taking all such factors into consideration, the death of petitioner's husband probably may have taken place somewhere around the date of lodging of the FIR, therefore, such date should be assumed to be the probable date of his death---Family pension of petitioner was to be calculated from the date of lodging of the FIR i.e. 14-01-2000---Petition was converted into appeal and partly allowed accordingly.

Ram Singh v. Board of Revenue U.P. Allahabad AIR 1964 All. 310; Smt. Bhanumati Dayaram Mhatre v. Life Insurance Corporation of India AIR 2008 Bom. 196 and Muhammad Sarwar v. Fazal Ahmad PLD 1987 SC 1 ref.

Rafiq Ahmed Kalwar, Advocate Supreme Court for Petitioner.

Sibtain Ahmed, A.A.G. for Respondents.

Shahid Anwar Bajwa, Advocate Supreme Court: Amicus curiae.

Date of hearing: 31st August, 2018.

P L D 2019 Supreme Court 719

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ

Miss NUSRAT YASMIN---Appellant

Versus

REGISTRAR, PESHAWAR HIGH COURT, PESHAWAR and others---Respondents

Criminal Appeal No.3-P of 2017, decided on 2nd May, 2019.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 26-6-2014 passed in Crl.A.No.633-P of 2012).

Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011--

----Rr. 3(b) & 4(1)(a)(i)---High Court (Lahore) Rules and Orders, Vol.IV, Chapt. 1. Part-A, R. 4---Constitution of Pakistan, Arts. 202 & 203---Judicial strictures recorded against a judge of district/subordinate judiciary by the High Court---Propriety---Mechanism for warning or proceeding against a judge of the subordinate judiciary for grave incompetence or misconduct---Character of judicial determination by the High Court did not allow the court to go beyond and assess, evaluate and appraise the competence, diligence, conduct, integrity or temperament of a judge of the District Judiciary, other than judicial bias or malice if it was borne out from the record of the case and was essential for the determination of the lis---Constitutional domain of the High Court included exercising supervisory control over the District judiciary through administrative disciplinary mechanisms---High Court was not to pass strictures in a judgment against a judge of the District Judiciary or summon a judge in judicial proceedings, relating to his or her judgment, for public reprimand in open court---Course open to the High Court was on the administrative side and the judge(s) of the High Court hearing the case, could apprise the Chief Justice of the Court through a confidential administrative note highlighting the grave illegalities, irregularities and improprieties noticed, leaving it to the Chief Justice or the Administrative Committee of the High Court, as the case may be, to take an appropriate disciplinary action against the judge of the District judiciary Error, if any, in the legal reasoning, application of law or appraisal of evidence by the courts below, was rectified by the High Court, in accordance with the law, which may include the ground of bias or malice. Stricture recorded in a judgment, on the other hand, was a severe and a sharp criticism or a censorious remark and was akin to a piece of censure and passed for a critical remark regarding the conduct, integrity, diligence, behaviour, temperament, and competence of a judge. Stricture became accessible and remained in the public domain (as part of the judgment) for posterity. Subsequent exoneration of the judge in departmental disciplinary proceedings could not undo the damage

already done, as the stricture continued to exist in the judgment and the mind of the public. Strictures did not restrain the judge from continuing as a judge but at the same time, shattered his confidence and weakened his performance. Judicial stricture was not something reformative and was a stigma thrust upon a judge with no formal legal recourse to undo it.

AIR 1994 SC 1031; Chambers 21st Century Dictionary P.1396 and New Webster's Dictionary of the English Language. Deluxe Encyclopedic Edition p.969; The Concise Oxford Dictionary-New Edn. p.1140; V.K Jain v. High Court of Delhi through Registrar General and others [(2008)17 SCC 538], Awani Kumar Upadhyay v. The Hon'ble High Court of Judicature at Allahabad and others AIR 2013 SC 2189 and Amar Pal Singh v. State of U.P. and another AIR 2012 SC 1995 and PLD 1996 SC 229 ref.

Supreme Court observed that it was desirable that the High Court, while performing its judicial function, avoided passing strictures regarding the ability, competence, integrity, and behaviour of the judge whose judgment was under scrutiny before it. Judge of the High Court, even if unhappy over the quality of the judgment under challenge, must not let go of judicial precaution and propriety and restraint from making a personal remark. Articulation, scholarship and legal reasoning of the judgment of the High Court, couched in moderation, temperance, and sobriety, would automatically highlight the error and mistake of the lower Court. High Court was not to assume the role of a critic of the personal attributes and abilities of the judge. Instead the High Court, maintaining its judicial majesty, was to focus only on the legal reasoning of the judgment under challenge. Passing strictures and publically rebuking, condemning and reproaching a judge did not sit well with the judicial character of the High Court. Similarly it was also inappropriate to summon a judge of the District Judiciary to court for a public reprimand, during the hearing of the case against his judgment, in open Court. Character of judicial determination by the High Court did not allow the court to go beyond and assess, evaluate and appraise the competence, diligence, conduct, integrity or temperament of a judge of the District Judiciary, other than judicial bias or malice if it was borne out from the record of the case and was essential for the determination of the lis. Equally, it was necessary for a judge of the District Judiciary to refer or distinguish the judgments of the superiori courts with care, caution and respect.

PLD 1996 SC 176 ref.

While it was not in the majesty, character, and dignity of the High Court or the justice system to pass judicial strictures and summon judges of the District Judiciary in open court, it was eminently within the constitutional domain of the High Court and indeed desirable that the High Court, where appropriate, exercised supervisory control over the District Judiciary through administrative disciplinary mechanisms. Power to supervise and control the District Judiciary was to be exercised by the High Court (Chief Justice and Judges of the Court) under Articles 202 and 203 of the Constitution while exercising its administrative/authority.

William G. Ross, Civility among Judges: Charting the Bounds of Proper Criticism by Judges of Other Judges, 51 F.L.A. L. R.E.V. 957, 974 (1999) ref.

Structure of service laws relating to the District Judiciary empowered the competent authority (the Chief Justice or the Administrative Committee of the High Court) to take disciplinary action against the judge. High Court had ways of expressing disapproval of judgments of the lower courts. In case inadvertent errors or irregularities of the lower courts were noticed by the High Court they could be brought to the notice of the judge concerned through a memorandum or a note addressed to the said judge by the High Court on the administrative side but not through the judgment, in exercise of its judicial function. Such notes or memorandums did not form part of the judgment but were separate administrative communiqués delivered to the judge confidentially and also did not form part of the service dossier of the judge. However, in cases where Judge(s) of the High Court, espoused an opinion that the judge of the District Judiciary had exhibited grave incompetence or had misconducted himself in discharge of judicial duty and needed to be warned or proceeded against, the appropriate process was to inform the competent authority on the administrative side though a confidential note addressed to the Chief Justice of the Court, along with copies of the relevant judgment(s), and then leaving it to the discretion of the competent authority to take appropriate disciplinary action against the judge concerned. Such discreet and confidential process was consistent with the deliberative character of the judicial system.

Appellant in person.

Barrister Qasim Wadud, Addl. A.G. Khyber Pakhtunkhwa, Hasan Raza, Senior Civil Judge and Khalid Rehman, Advocate Supreme Court for Respondents.

Date of hearing: 2nd May, 2019.

P L D 2019 Supreme Court 730

Present: Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Yahya Afridi, JJ

SIKANDAR HAYAT KHAN JOGAZAI and others---Petitioners

Versus

MUHAMMAD HASHIM and others---Respondents

Civil Petitions Nos.522-L. 523-L and 588-L of 2013, decided on 16th September, 2019.

(On appeal from the judgment of Lahore High Court, Lahore dated 29-1-2013, passed in I.C.As. Nos.268/2010 and 51/2012).

(a) Islamic law---

----'Waqf'---Meaning and concept of waqf in Islam stated.

H. Wehr, A Dictionary of Modern Written Arabic, 1091-1094; Gregory C. Kozlowski, Muslim Endowments and Society in British India-Cambridge Sourt Asian Studies, 1985; Peter C. Hennigan. The Birth of Legal Institution-The formation of the Waqf in the Third Centrury, Brill, 2004; Webster's Revised Unabridged Dictionary (1913) by G. & C. Merriam Co.; D.F. Mullah Principles of Muhammadan Law, para, 173; A Digest of Muhammadan Law, pp.557-558 (Neil B.E. Bailllie) 2nd Edn. and The Hedaya, pp.231, 234 (Charles Hamilton) 2nd Edn. ref.

(b) Islamic law---

----'Waqf'---Origins of the concept of waqf in Islam provided.

Al-Quran, Surah Al-Baqarah (2:215, 261, 265, 271, 280; Aal-e-Imran (3: 92, 134), Al-Hadid (57:18) and Al-Lail (92:18-21); Vidya Varuthi v. Blusami AIR 1922 PC 123 and Sahih Muslim, Vol. III, Kitab al-Wassiya, Hadith-4005 (Translated by Abdul Hamid Siddiqi, 1973) ref.

(c) Islamic law---

----'Waqf'---Role of waqf in the development of Islamic civilization stated.

Peter C. Hennigan. The Birth of a Legal Institution-The formation of the Waqf in the Third Century, Brill, 2004; Gregory C. Kozlowski, Muslim Endowments and Society in British India-Cambridge South Asian Studies, 1985 and Baqutayan, et al. Waqf Between the Past and Present.Mediterranean Journal of Social Sciences, 9. 149. (2018) ref.

(d) Punjab Waqf Properties Ordinance (IV of 1979)

----Ss. 3(1), 15 & 17,---Punjab Waqf Properties (Administration) Rules, 2002, Rr. 4, 5 & 7---Waqf property---Chief Administrator Auqaf---Preparation of scheme---Control, management, development and maintenance of waqf properties by the Chief Administrator Auqaf --- Scope and mechanism---Administration and development of waqf property by the Chief Administrator Auqaf under the Punjab Waqf Properties Ordinance, 1979 ('the Ordinance') was through the mode and mechanism of schemes, with the singular object of advancing and maximizing the wishes of the wakif or the religious, pious and charitable purposes recognized by Islam---Scheme under S.15 of the Ordinance was, therefore, a strategic plan, a road map, a financial feasibility or a business plan for the administration and development of the waqf property, driven and directed by the objectives settled by the wakif or as given under the law---While the word "administration" in S.15, signified the overall control, management and maintenance of the waqf properties, the expression "development" enjoined upon the Chief Administrator Auqaf to expand, evolve and enlarge the scope of charitable work of the waqf with changing times---Scheme to be settled by the Chief Administrator Auqaf must not only carry a plan of action or a programme for the administration of the waqf properties but also the stratagem and vision for its development, evolution and future growth---Chief Administrator Auqaf must consider, at all time, the best use of the waqf property was to achieve its noble objectives, keeping in view the needs of the time and that of an evolving society---Chief Administrator Auqaf in settling a scheme must not lose sight of such central objective of the scheme and must always remain cognizant of the historical significance of waqf and how it contributed to the building of Islamic civilization; through which many mosques, schools, and educational centres were built alongwith libraries, scientific research centres and other fields in different walks of life, which gave way to the training of many scientists, researchers, inventors, and intellectuals---To draw up a scheme, therefore, required the Chief Administrator Auqaf to have sufficient expertise in management, administration, finance, accounts, marketing, planning, development, policy and in running of public charities---Chief Administrator should also be supported by informed and expert recommendations of the qualified managers and administrators appointed under the Ordinance---Waqf property could either be put to use to serve a religious, pious or charitable cause directly i.e., by running and managing a shrine or a khanqah or by establishing a school, college, university, hospital, research and training centres, etc for the general public utility and welfare of the society, either free or at subsidized rates; or indirectly, by leasing it out for purposes closer to the objectives of the waqf---Only as an exception and in the absence of any viable option to lease the property out for purposes closer to the objectives of the waqf, could the waqf property be leased out for commercial purposes---Scheme prepared by Chief Administrator must weigh, evaluate and discuss alternatives when leasing out waqf property and preference should always be given to lease out waqf property for purposes that were more akin or close to the wishes of the wakif or the objectives given under the law, including charitable purposes---Both the direct or indirect use of waqf property must be justified, with reasons, to be laid out in the scheme that was to be settled and sanctioned by the Chief Administrator Auqaf.

(e) Punjab Waqf Properties Ordinance (IV of 1979)---

----Ss. 15(2) & 17---Punjab Waqf Properties (Administration) Rules, 2002, R. 7---Waqf property---Part of waqf property leased out for commercial purposes by the Chief Administrator Auqaf without preparation of a scheme---Legality---Chief Administrator Auqaf granted lease of subject waqf property to the petitioner for setting up a petrol pump, on a monthly rent of Rs. 4,000/- per month for a period of 30 years---Descendants of the original dedicator (waqif) challenged the said grant on the ground that the lease offended the object of the waqf and was violative of the provisions of the Punjab Waqf Properties Ordinance, 1979 ('the Ordinance') and the Rules framed thereunder---High Court set aside the grant of lease for setting up a petrol pump holding that the trust property could not lawfully be given to the petitioner for establishment of a petrol pump, the grant of lease for 30 years was illegal and the land in question being a playground attached to a school could not be put to a different use---Held, that only as an exception and in the absence of any viable option to lease the property out for purposes closer to the objectives of the waqf, could the waqf property be leased out for commercial purposes---In the present case, the proposal for grant of lease of subject waqf property for setting up of a petrol pump did not form part of a scheme, that was to be prepared by the Chief Administrator Auqaf for administration of the waqf property---In fact no scheme had been submitted with the Court---Summary put up for the lease of waqf property (as in the present case) to set-up a petrol pump in isolation of the other factors and considerations, without an overall plan or a road map, did not constitute a scheme, envisaged under the Ordinance---Several questions and points needed to be explained in the scheme such as why was the waqf property required to be put on lease; why for a petrol pump and not for any other purpose more akin to the objectives of the waqf; why for a meagre rental of Rs 4,000/- per month and that too for a period of 30 years; why allegedly in a playground abutting a school; whether other alternatives were discussed and weighed by the Chief Administrator Auqaf; whether the waqf was in a deficit or loss, and how was the rental money to be utilized for the advancement of the objectives of the waqf---In the absence of a well thought out scheme, sanction for lease of any waqf property could not be permitted---Grant of lease of waqf property for the setting up of a petrol pump to the petitioner without there being settlement of a proper scheme, and in the absence of any plausible reasons for extending the lease beyond the statutory period given under R.7 of Punjab Waqf Properties (Administration) Rules, 2002 ('the Rules), was offensive to the provisions of the Ordinance and Rules, and hence illegal---Supreme Court directed that the Chief Administrator Auqaf, may lease out waqf property, in future, but after settlement and sanction of the scheme, in the manner provided under the Ordinance and the Rules---Petitions for leave to appeal were dismissed.

(f) Punjab Waqf Properties Ordinance (IV of 1979)

----S. 15---Punjab Waqf Properties (Administration) Rules, 2002, Rr.4, 5 & 7---Waqf property---Chief Administrator Auqaf---Preparation of scheme---Judicial review---Scope---Scheme settled for the administration and development of waqf properties was a manifestation of the discretion exercised by the Chief Administrator Auqaf, in the best interest of the waqf under the law and was, therefore, always open to judicial review by the courts.

Mehboob Azhar Sheikh, Advocate Supreme Court for Petitioners (in C.Ps.Nos. 522-L and 523-L of 2013).

M. Anwar Bhaur, Advocate Supreme Court for Petitioners (in C.P.No.588-L of 2013).

M. Usman Arif, Advocate Supreme Court/DAG for Respondents Nos. 5 to 8 (in C.Ps. Nos.522-L and 523-L of 2013).

Sharjeel Adnan Sheikh, Advocate Supreme Court for Respondents Nos. 1-4 (in all cases).

Rana Shamshad Khan, Addl. A.G. for Government of Punjab.

Date of hearing: 7th March, 2019.

P L D 2019 Supreme Court 743

Present: Umar Ata Bandial, Maqbool Baqar, Manzoor Ahmad Malik, Faisal Arab, Mazhar Alam Khan Miankhel, Sajjad Ali Shah, Munib Akhtar, Yahya Afridi and

Qazi Muhammad Amin Ahmed, JJ

JUSTICE QAZI FAEZ ISA and others---Petitioners

Versus

PRESIDENT OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. 17 and 19 of 2019 and C.M.A. No.7417 of 2019 in Constitutional Petition No.19 of 2019 and Constitution Petitions Nos. 20-27 of 2019.

Constitution of Pakistan---

----Arts. 184(3), 209 & 211---Civil Procedure Code (V of 1908), O.XXVIII-A--- Supreme Judicial Council--- Jurisdiction--- Determination---Petitioners raised questions for consideration by Supreme Court were essentially of a legal nature, including bar of jurisdiction imposed by Art. 211 of the Constitution---Notices under O.XXVII-A, C.P.C. were issued to the parties.

Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61 ref.

Salahuddin Ahmed, Babar Sattar, Tariq Mehmood, Kazim Hassan Advocates Supreme Court and Kassim Mijat, Advocate-on-Record assisted by Barrister Rabi Bin Tariq and Barrister Kabir Hashmi for Petitioners (in Const.P.No.17 of 2019).

Nemo for Respondents (in Const.P.No.17 of 2019).

Hamid Khan, Senior Advocate Supreme Court, Rasheed A. Rizvi, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in Const.P. No.19 of 2019).

Nemo for Respondents (in Const.P. No.19 of 2019).

Hina Jillani and Bilal Hassan Minto, Advocates Supreme Court for Petitioners ((in Const.P.No.20 of 2019).

Nemo for Respondents (in Const.P.No.20 of 2019).

Syed Amjad Ali Shah and Kamran Murtaza, Advocates Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-Record for Petitioners (in Const.P.No.21 of 2019).

Nemo for Respondents (in Const.P.No.21 of 2019).

Syed Amjad Shah and Abdul Basit, Advocates Supreme Court for Petitioners (in Const.P.No.22 of 2019).

Nemo Respondents (in Const.P.No.22 of 2019).

M. Asif Reki for Petitioners (in Const.P.No.23 of 2019).

Nemo for Respondents (in Const.P.No.23 of 2019).

Rasheed A. Rizvi, Senior Advocate Supreme Court for Petitioners (in Const.P.No.24 of 2019).

Nemo for Respondents (in Const.P.No.24 of 2019).

Nemo for Petitioners (in Const.P.No.25 of 2019).

Nemo for Respondents (in Const.P.No.25 of 2019).

Mian Raza Rabbani, Senior Advocate Supreme Court and Saalim Salam Ansari, Advocate Supreme Court for Petitioners (in Const.P. No.26 of 2019).

Nemo for Respondents (in Const.P.No.26 of 2019).

Nemo for Petitioners (in Const.P.No.27 of 2019).

Nemo for Respondents (in Const.P.No.27 of 2019).

Amir Rehman, Addl. A.G. Pak. (in all cases).

Date of hearing: 24th September, 2019.

P L D 2019 Supreme Court 745

Present: Umar Ata Bandial, Maqbool Baqar and Faisal Arab, JJ

ALTAF IBRAHIM QURESHI and another---Petitioners

Versus

AAM LOG ITTEHAD and others---Respondents

Constitution Petition No.18 of 2019, decided on 26th September, 2019.

(Transfer of cases from Sindh High Court, Karachi and Lahore High Court, Lahore to Islamabad High Court).

(a) Constitution of Pakistan--

----Art. 186 A---Transfer of election matter---Absence of petitioner before High Court-Effect---Petitioners remained absent before High Court and the matter was fixed for pronouncing of judgment---Petitioners sought transfer of the matter from Sindh High Court to Islamabad High Court due to lack of jurisdiction---Validity---Petition was filed to overcome consequence of default in appearance before Sindh High Court---Objection of petitioner to alleged lack of jurisdiction of Sindh High Court was taken in their pleadings/ comments filed in High Court---Such objection was also raised by two other Members of Election Commission of Pakistan before High Court---Supreme Court declined to hear such objection and the same was premature as High Court seized of the matter was to pronounce its judgment thereon---If the petitioners did not file their submissions on or before such date in office of the Registrar of Sindh High Court (for their placement on the case file of the case concerned) the Court that had heard the matter could forthwith proceed to announce its judgment---Petition was disposed of accordingly.

(b) Constitution of Pakistan---

----Art. 10 A---Fair trial and due process of law---Right of hearing---Scope---Right of hearng of a party to a lis is one of the fundamental principles of jurisprudence which is guaranteed by Art.10-A of the Constitution in is assurance of a "fair trial and due process of law" to a litigant.

Mian Abdul Rauf, Advocate Supreme Court for Petitioners.

Respondent No.2 (In person).

Date of hearing: 26th September, 2019.

P L D 2019 Supreme Court 749

Present: Asif Saeed Khan Khosa, C.J., Mushir Alam, Manzoor Ahmad Malik, Sardar Tariq Masood, Ijaz ul Ahsan, Mazhar Alam Khan Miankhel and Syed Manzoor Ali Shah, JJ

Civil Appeal No.1772 of 2008 and Civil Miscellaneous Application No.1990 of 2015

MOINUDDIN and others---Appellants

Versus

The STATE and others---Respondents

(Against the judgment dated 14-7-2008 passed by the High Court of Sindh, Karachi in Constitution Petition No.D-1372 of 2008).

Civil Petition No.1708 of 2011

ABDUL REHMAN---Petitioner

Versus

The STATE and others---Respondents

(Against the judgment dated 9-6-2011 passed by the Lahroe High Court, Lahore in Writ Petition No.6915 of 2011).

Civil Appeal No.253 of 2015

MUHAMMAD QAISER alias BILLA---Appellant

Versus

The LEARNED DISTRICT AND SESSIONS JUDGE/JUDGE ATC NO.1, FAISALABAD and others---Respondents

(Against the judgment dated 16-3-2015 passed by the Lahore High Court, Lahore in Writ Petition No.21957 of 2012).

Criminal Petition No.988 of 2015

WARYAM and others---Petitioners

Versus

The STATE---Respondent

(Against the judgment dated 29-1-2015 passed by the High Court of Sindh at Sukkur in Criminal Revision Application No.40-D of 2014).

Criminal Appeal No.391 of 2015

ZAFAR HUSSAIN and otheres---Appellants

Versus

The STATE and others---Respondents

(Against the judgment dated 13-8-2015 passed by the Lahore High Court, Multan Bench, Multan in Criminal Revision No.267 of 2015).

Criminal Appeal No.19 of 2018

KALAY KHAN---Appellant

Versus

The STATE---Respondent

(Against the judgment dated 27-1-2015 passed by the Lahore High Court Lahore in Criminal Appeal No.98-J of 2014, Criminal Appeal No.324 of 2014, Criminal Appeal No.337 of 2014 and Capital Sentence Referene No.11-T of 2014).

Civil Appeal No.1772 of 2008 and Civil Miscellaneous Application No.1990 of 2015; Civil Petition No.1708 of 2011; Civil Appeal No.253 of 2015; Civil Petition No.988 of 2015; Criminal Appeal No.391 of 2015 and Criminal Appeal No.19 of 2018, decided on 11th October, 2019.

Supreme Court Rules, 1980---

----O. XXVI, R. 9---Constitution of Pakistan Art. 188---Review jurisdiction of the Supreme Court--- Second/subsequent review petition before the Supreme Court---Maintainability---No scope for maintainability of a second or subsequent review petition before the Supreme Court after the first review petition had been decided.

Khalid Iqbal and 2 others v. Mirza Khan and others PLD 2015 SC 50; Syed Shabbar Raza Rizvi and others v. Federation of Pakistan, Ministry of Law and Justice Division through Secretary, Islamabad and others 2018 SCMR 514 and Akhtar Umar Hayat Lalayka and others v. Mushtaq Ahmed Sukhaira and others 2018 SCMR 1218 ref.

(b) Constitution of Pakistan---

----Arts. 184(3), 187(1) & 188---Review jurisdiction of the Supreme Court---Scope---After exhausting the review jurisdiction of the Supreme Court a party to a case could not invoke Art. 184(3) or Art.187(1) of the Constitution for reopening the same case.

Khalid Iqbal and 2 others v. Mirza Khan and others PLD 2015 SC 50; Syed Shabbar Raza Rizvi and others v. Federation of Pakistan, Ministry of Law and Justice Division through Secretary, Islamabad and others 2018 SCMR 514 and Akhtar Umar Hayat Lalayka and others v. Mushtaq Ahmed Sukhaira and others 2018 SCMR 1218 ref.

(c) Constitution of Pakistan---

----Arts. 184(3), 185, 187(1) & 188---Interpretation of law in a judgment by the Supreme Court---Question whether an interpretation of law in any earlier order or judgment of the Supreme Court needed to be revisited or not---Such question was to be decided by the Supreme Court upon its own initiative and no party to a case or any other interested person could approach the Supreme Court for revisiting its earlier orders or judgments.

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

----S. 345---Anti-Terrorism Act (XXVII of 1997), S. 7---Act of terrorism---Non-compoundable offence committed simultaneously with some other coordinate compoundable offence in the same case---Question as to whether a non-compoundable offence, such as terrorism, could be treated as a compoundable offence for the purpose of recording an acquittal in respect of that offence if a coordinate compoundable offence committed in the same case had been compounded by the relevant parties---Held, that a non-compoundable offence of terrorism was an offence distinct and independent from any other coordinate offence also committed in the same case---Offence which the law declared to be non-compoundable remained non-compoundable even if in a coordinate compoundable offence a compounding took place between the relevant parties and, therefore, despite any compounding of the coordinate compoundable offence an acquittal could not be recorded in the non-compoundable offence on that sole basis.

Muhammad Amin v. The State 2002 SCMR 1017; Muhammad Ali and others v. The State and others PLD 2004 Lah. 554; Muhammad Rawab v. The State 2004 SCMR 1170; Muhammad Akhtar alias Hussain v. The State PLD 2007 SC 447 and Kareem Nawaz Khan v. The State through PGP and another 2016 SCMR 291 ref.

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

----S. 345---Non-compoundable offence committed simultaneously with some other coordinate compoundable offence in the same case---Question as to whether a sentence passed in a non-compoundable offence could be reduced on the ground that a coordinate compoundable offence committed in the same case had been compounded by the relevant parties---Held, that in an appropriate case, keeping in view the peculiar circumstances of the case, compounding of a coordinate compoundable offence may be considered by a court towards reduction of the sentence, within the permissible limits, passed for commission of a non-compoundable offence---Consideration of such factor vis-à-vis reduction of the sentence passed for commission of the non-compoundable offence laid within the discretion of the court and could not be treated as automatic or as a matter of course.

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

----S. 345---Non-compoundable offence committed simultaneously with some other coordinate compoundable offence in the same case---Sentence passed in non-compoundable offence reduced on the ground that the coordinate compoundable offence committed had been compounded by the parties---Stage at which a court or forum could reduce the sentence passed in respect of the non-compoundable offence, if deemed warranted in the circumstances of the case explained.

In case of compounding of a coordinate compoundable offence, reduction of a sentence passed or to be passed for commission of a non-compoundable offence in the same case may be considered by the following courts at the following stages of the case:

(i) by the trial court at the time of passing the sentence at the end of the trial; or

(ii) if compounding of the coordinate compoundable offence took place at the appellate or revisional stage before a High Court or before the Supreme Court at the stage of petition for leave to appeal or appeal or review petition then a prayer for reduction of the sentence passed for commission of the non-compoundable offence may be made on that ground before the Court seized of the pending matter; or

(iii) if the Supreme Court had already passed a final order or judgment in a petition for leave to appeal or an appeal and no review petition had been filed so far then reduction of the sentence passed for the non-compoundable offence may be sought on the ground of compounding of the coordinate compoundable offence through filing of a review petition before the Supreme Court; or

(iv) if the remedy of filing of a review petition before the Supreme Court had already been exhausted then, there being no scope for filing of a second or subsequent review petition before the Supreme Court and a party to a case or anyone else interested in the matter being in no position to seek revisiting of an earlier order or judgment of the Supreme Court, the only remedy left for seeking reduction of the sentence passed for commission of a non-compoundable offence on the ground of compounding of a coordinate compoundable offence was to file a mercy petition before the President who may, in his discretion, consider such aspect in the light of the judgments passed by the Supreme Court on the subject from time to time; or

(v) if the remedy of a mercy petition before the President had already been exhausted before compounding of the coordinate compoundable offence had taken place then after acceptance of the compromise by the competent court in respect of the coordinate compoundable offence the Superintendent of the relevant jail shall, upon an initiative of the convicted prisoner, forward a fresh mercy petition to the President on behalf of that convicted prisoner seeking fresh consideration of the matter by him in respect of the sentence passed against the convicted prisoner for commission of the non-compoundable offence in the light of compounding of the coordinate compoundable offence committed by him. When seized of such a fresh mercy petition the President may, in his discretion, consider the matter of the convicted prisoner's sentence passed for commission of the non-compoundable offence afresh in the light of the judgments passed by the Supreme Court on the subject from time to time.

In attendance:

Shahid Azeem, Advocate Supreme Court, Javed Iqbal Raja, Advocate Supreme Court, Burhan Moazam Malik, Advocate Supreme Court, Mian Pervaiz Hussain, Advocate Supreme Court, Syed Tayyab Mehmood Jaffari, Advocate Supreme Court, Muhammad Ishtiaq Ahmed Raja, Advocate Supreme Court Raja Abdul Ghafoor, Advocate-on-Record, Malik Ghulam Mustafa Kandwal, Advocate Supreme Court, Kamran Murtaza, Advocate Supreme Court, Abid Hussain Saqi, Advocate Supreme Court, Muhammad Sadiq Baloch, Advocate Supreme Court, Ch. Munir Sadiq, Advocate Supreme Court, Zulfiqar Khalid Maluka, Advocate Supreme Court and Khadim H. Sandhu, Advocate Supreme Court

On Court's Notice:

Sajid Ilyas Bhatti, Deputy Attorney-General of Pakistan, Tariq Mehmood Jehangiri, Advocate-General, Islamabad, Ahmed Awais, Advocate-General, Punjab, Ch. Faisal Farid, Additional Advocate-General, Punjab, Ahmed Raza Gillani, Additional Prosecutor-General, Punjab. Barrister Shabbir Hussain Shah, Additional Advocate-General, Sindh, Salim Akhtar, Additional Prosecutor-General, Sindh, Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa, Syed Baqar Shah, State Counsel, Balochistan and Ayaz Khan Swati, Additional Advocate-General, Balochistan.

P L D 2019 Supreme Court (AJ&K) 1

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

Syed TASAWAR HUSSAIN SHAH---Appellant

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Secretary Home Department and 5 others---Respondents

Civil Appeal No.194 of 2017, decided on 18th September, 2017.

(On appeal from the order of the High Court, dated 15-3-2017 in Writ Petition No.270 of 2017).

Pakistan Army Act Rules, 1954 ---

----R. 53(d)---Criminal Procedure Code (V of 1898), S.382-B---Pakistan Army Act (XXXIX of 1952), S. 59---Official Secrets Act (XIX of 1923), S.3---Sentence awarded by Field General Court Martial---Period spent in confinement awaiting trial---Benefit of R. 53 of the Pakistan Army Act Rules, 1954---Scope---Provisions of R. 53(d) of the Pakistan Army Act Rules, 1954 were similar in nature to the provisions of S.382-B of the Criminal Procedure Code, 1898---Rule 53(d) suggested that the length of time, during which the accused had remained arrested, shall be considered by the Court Martial---In the present case, the Military Court had extended the benefit of R.53(d) of the Pakistan Army Act Rules, 1954 to the accused, but there was dispute regarding the exact date of his arrest, as he claimed that he was arrested in the year 2011, whereas the Advocate-General had taken the stance that the accused was arrested by the Military authorities in the year 2012---Report from Jail Superintendent showed that the accused was awarded 5 years rigorous imprisonment vide order dated 20-12-2013 and was entered in the jail on the same date, whereas his conviction started w.e.f. 28-8-2013, however, there was no mention about the date on which the accused was arrested---Even if the argument of the Advocate-General was assumed that the accused was arrested in the year 2012, even then while computing the period of detention passed before the commencement of the trial, he had served his legal sentence, therefore, he could not be allowed to be relinguished in jail for further time---Appeal was allowed accordingly.

Nizamuddin v. The State PLD 2014 Sindh 248; Dr. Muhammad Aslam Khaki v. The State and others PLD 2010 FSC 1 and Shahid Mehmood v. The State and others PLD 2001 Lah. 502 ref.

Syed Nazir Hussain Shah Kazmi for Appellant.

Raza Ali Khan, Advocate-General for Respondents.

P L D 2019 Supreme Court (AJ&K) 9

Present: Ch. Muhammad Ibrahim Zia, C.J., Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

Civil Appeal No.299 of 2018

YASIR BASHIR---Appellant

Versus

SABA YASIR and others---Respondents

(On appeal from the judgment of the High Corut dated 5-7-2018 in Writ Petitions Nos.161 of 2013 and 3114 of 2016).

Civil Appeal No330 of 2018

Mst. MANAZA WARIS and 3 others---Appellants

versus

MUSHTAQ HUSSAIN and others---Respondents

(On appeal from the judgment of the High Court dated 5-7-2018 in Writ Petitions Nos.161 of 2013 and 3114 of 2016).

Civil Appeals Nos.299 and 330 of 2018, decided on 10th January, 2019.

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

----Ss. 46, 13, 44-A & 47---Family Courts Act (XXXV of 1964), S.5, Sched---Suit for recovery of maintenance allowance---Execution of decrees passed by the Family Court of Pakistan in Azad Jammu and Kashmir---Requirements---Decree passed by the Family Court of Pakistan was sent for execution in Azad Jammu and Kashmir---District Judge sent the decree to the Family Judge for its execution who passed order that the decree passed by the foreign Court was not executable in Azad Jammu and Kashmir---High Court directed the Family Court to continue proceedings for execution of a decree passed by the Family Court of Pakistan on merit but restrained to execute an ex-parte decree of foreign Court---Validity---Decree passed by the Court of Pakistan could only be executed in the territory of Azad Jammu and Kashmir while complying with the statutory provisions of S.44-A, C.P.C.---Supreme Court observed that governments of Pakistan and Azad Jammu and Kashmir should make reciprocal arrangements for execution of decrees by notification to be published in the official gazette---Decrees passed by the Courts of Pakistan could be executed through reciprocal arrangements between the governments of Pakistan and Azad Jammu and Kashmir---Executing Court had power to attend the objection raised by the judgment-debtor and determine the same---High Court had misconceived the statutory provisions of law---Order passed by the High Court was not sustainable in circumstances---Impugned judgments passed by the High Court were recalled---Appeal was allowed in circumstances. [Genuine Rights Commission v. Federal Government and others PLD 2006 HC(AJ&K) 1 Overruled].

Muhammad Siddique Rathore v. Muhammad Muzaffar Khan PLD 2005 AJ&K 1; Robeena Fazil v. Yasin Khan 2005 SCR 37; Abdul Khaliq v. Sidra Khaliq and others 2014 SCR 280; Mst. Maryam Bibi and others v. Muhammad Iqbal and others PLD 1976 AJK 9; Commissioner Income Tax v. Messrs Haji Ali Khan and others PLD 1985 SC(AJ&K) 6; Shaliq Ram v. Firm Daulat Ram Kundanmal AIR 1967 SC 739; Nazakat Parveen v. Ikhlaq Ahmed 2001 MLD 1169; Ghulam Nabi v. Banking Court and others 2001 YLR 625; Grosvenor Casino Limited v. Abdul Malik Badruddin 1997 SCMR 323; The Attock Oil Co. Ltd. and others v. Dr. Ghaith R. Pharaon and others 1994 SCMR 811 and Karim Haider Shah and another v. Raja Khani Zaman and others PLD 1954 AJK 1 ref.

Mian Nazir Ahmad v. Abdur Rashid Qureshi 1986 CLC 1309 rel.

Genuine Rights Commission v. Federal Government and others PLD 2006 HC(AJ&K) 1 Overruled.

(b) Constitution of Pakistan---

----Arts. 1 & 257---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 2---Azad Jammu and Kashmir is a separate territory and not included in the territory of Pakistan.

Commission Income Tax v. Messrs Haji Ali Khan and Co. and others PLD 1985 SC(AJ&K) 62; Noor Hussain v. The State PLD 1966 SC 88 and Muhammad Rafique Dar v. Sarkar PLD 1973 AJ&K 1 rel.

Raja Gul Majeed Khan for Appellant (in Civil Appeal No.299 of 2018).

Fayyaz Ahmed Janjua for Respondent No.1 (in Civil Appeal No.299 of 2018).

Sardar Karam Dad Khan, Advocate-General, Raja M. Hanif Khan and Abdul Rashid Abbasi, Advocates: Amici Curiae (in Civil Appeal No.299 of 2018).

Shahid Ali Awan, Advocate for Appellants ((in Civil Appeal No.330 of 2018).

Ch. Shaukat Aziz, Advocate for Respondent No.1 (in Civil Appeal No.330 of 2018).

Sardar Karam Dad Khan, Advocate-General, Raja M. Hanif Khan and Abdul Rashid Abbasi, Advocates: Amici Curiae (in Civil Appeal No.330 of 2018).

P L D 2019 Supreme Court (AJ&K) 21

Present: Ch. Muhammad Ibrahim Zia, C.J. and Ghulam Mustafa Mughal, J

FAISAL MUSHTAQ---Appellant

Versus

NAJMA AZIZ---Respondent

(On appeal from the Judgment of the Shariat Appellate Bench of the High Court dated 1-3-2018 in Appeals Nos.46, 47 and 48 of 2018)

Civil Appeals Nos.69 and 70 of 2018, decided on 27th November, 2018.

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

----S. 5, Sched.---Suit for dissolution of marriage by wife through attorney---Allegation of torture/crulety by husband---Non-appearance of plaintiff-wife before Court---Effect---Family Court dissolved the marriage on the basis of Khula' but Shariat Appellate Bench of High Court dissolved the same on the ground of cruelty---Validity---Plaintiff-wife filed suit through attorney and she did not appear before the Trial Court for getting her statement recorded to prove the alleged facts-Authorized agent or attorney could plead case before Family Court on behalf of plaintiff or defendant but when severe allegation was levelled against husband or wife which could only be rebutted by their evidence then husband or wife should appear as a witness in support of the pleadings so that the allegation could be judged by the Court---Father of plaintiff-wife appeared in the case but on the basis of his statement the allegation levelled against the husband could not be said to have been proved---Family Court had assessed the evidence and drawn a reasonable conclusion--Impugned judgment passed by the Shairat Appellate Bench of High Court was set aside and that of Family Court was restored---Appeal was allowed, in circumstances.

Muhammad Sharif Khan v. Mst. Ismat Bibi and 4 others PLD 1982 SC(AJ&K) 76 rel.

Sardar Muhammad Raziq Khan, Advocate for Appellant (in Civil Appeals Nos.69 and 70 of 2018).

Abdul Razzaq Chaudhary, Advocate for Respondent (in Civil Appeals Nos.69 and 70 of 2018).

P L D 2019 Supreme Court (AJ&K) 25

Present: Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

BASHIR KHAN---Appellant

Versus

AHMED HUSSAIN and another---Respondents

Civil Appeal No.356 of 2018, decided on 13th April, 2019.

On appeal from the judgment of the High Court dated 11-7-2018 in Civil Appeal No.142 of 2016).

Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK) ---

----Ss. 4 & 6---Suit for right of prior purchase (pre-emption)---Participation of pre-emptor in the bargain of suit property---Effect---Principle of waiver---Applicability---Plea of defendant was that pre-emptor had participated in the bargain of suit land---Suit was decreed by the Trial Court and first Appellate Court but the High Court dismissed the same---Validity---Strong evidence was required to deprive the pre-emptor on the ground of waiver---Nothing was on record that pre-emptor was asked to purchase the suit land for the same amount and amount was in his knowledge and thereafter in presence of witnesses he had refused to purchase the land in question---Mere refusal to purchase the suit land at a high price or less than demanded one, could not be considered as "waiver"---Mere presence of pre-emptor at the time of bargain was not sufficient for defeating the right of pre-emption---Even attestation by the pre-emptor on the sale deed could not be considered that he was a consenting party---Impugned judgment passed by the High Court was set aside and that of Trial Court was restored---Pre-emptor was directed to deposit the decretal amount along with expenses of sale deed within one month failing which his suit would be deemed to have been dismissed---Appeal was allowed in circumstances.

Nazar Ahmad and others v. Fazal Hussain and 11 others PLD 2005 SC (AJ&K) 1; Muhammad Ejaz Khan and 4 others v. Sikandar Shah and 14 others 2012 MLD 1156 and Mst.Alamah Bibi and 4 others v. Muhammad Bashir and 6 others PLD 1994 SC (AJ&K) 26 ref.

Muhammad Yaqoob Khan Mughal for Appellant.

Respondent No.1 (in person).

P L D 2019 Supreme Court (AJ&K) 30

Present: Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

MUHAMMAD YAQOOB KHAN---Appellant

Versus

MUHAMMAD RAZZAQ KHAN and 18 others---Respondents

Civil Appeal No.29(sic) of 2017, decided on 26th March, 2019.

(On appeal from the judgment of the High Court dated 12.7.2017 in Civil Appeal No.31 of 2007).

(a) Islamic law---

----Will, execution of--- Requirements--- Inheritance--- Mutation---Scope---Impugned mutation had been attested on the basis of will which was made in favour of one of the legal heirs without the consent of other legal heirs---"Will" could not be executied in favour of legal heir until and unless other legal heirs who had right to inherent from the legacy had consented for the same---Right of inheritance would devolve on the legal heirs soon after the death of deceased Muslim---Attestation of mutation was not a sine qua non for devolving inheritance---Appeal was disposed of, in circumstances.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

(b) Co-sharer---

----Transfer of property by a co-sharer was subject to partition.

Syed Nazir Hussain Shah Kazmi, Advocate for Appellant.

Raja Iqbal Rasheed Minhas and Sardar Shamshad Hussain Khan, Advocate for Respondents.

P L D 2019 Supreme Court (AJ&K) 34

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others---Appellants

Versus

MUBASHAR AZIZ QADRI, Government Contractor--Respondent

Civil Appeal No.86 of 2019, decided on 28th March, 2019.

(On appeal from the judgment of the High Court dated 24th November, 2018 in Writ Petition No.1216 of 2018).

Azad Jammu and Kashmir Public Procurement Rules, 2017---

----R. 48---Bid approved in favour of petitioner was cancelled---Petitioner filed writ petition against cancellation of bid which was accepted---Validity---Performance guarantee was provided after expiry of stipulated period---Corrigendum was issued but conditions remained unchanged---Petitioner had failed to fulfil the conditions of submitting work schedule within the stipulated period according to terms and conditions of bid---Respondents were justified to cancel the bid acceptance letter---Bidder had alternate remedy but he had not approached the relevant forum for redressal of his grievance---Impugned judgment passed by the High Court was set aside and writ petition was dismissed---Apopeal was allowed, in circumstance.

Abdul Qadir v. Abdul Karim and others 1999 PLC(C.S.) 947; Azad Government and others v. Mrs. Jamshed Naqvi and others 2014 SCR 13; Azad Government and others v. Sardar Muhammad Rafique and others 2016 SCR 655; Paragon Constructions (Pvt.) Limited v. Azad Government and others 2011 CLC 469; Miss Uzma Ishaque v. Azad Jammu and Kashmir Nomination Board and others PLD 1986 AJK 112; Abid Hussain Jafri v. Azad Government and others 1998 PLC (C.S.) 141 and Azad Government and others v. Muhammad Siddique Khan and others PLD 2017 SC(AJ&K) 18 ref.

Ch. Shoukat Aziz, Advocate for Appellants.

Sardar Abdul Hameed Khan, Advocate for Respondents.

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